Missouri AG Opinions — 1969

Opinion letter to Mr. Hubert Wheeler

(1) The signers of a given sheet of a referendum petition are not required to reside in the same congressional district and a signature on a referendum petition would not be invalid because the petition purports to come from a congressional district in which the signer does not reside; (2) a petition that omits the county in which a signer resides or incorrectly states the county in which a signer resides is not invalid and signatures should not be disqualified on that account; (3) the Attorney General or a prosecuting attorney has no authority to act to prevent the filing of petitions that appear to contain forged signatures; the Secretary of State’s function in filing petitions is ministerial and he has no authority to reject signatures that appear forged; (4) those same officials have no authority to ascertain whether or not a copy of the bill to be referred was attached to a referendum petition, and therefore may not act to prevent the filing of a petition on the ground that a copy of the bill allegedly was not attached at the time the petition was circulated; (5) a notary may witness the sworn statement of a circulator when the notary has also signed the sheet of the petition which he notarizes; (6) a notary may notarize petitions in any part of the state in which he has authority to act as a notary, there being no requirement that referendum petitions be notarized in the county in which they are circulated.

The circuit clerk of a second class county must keep safe and have readily available for payment $25,000 deposited in court by the parties pending the outcome of litigation. The clerk, in keeping these funds safe, can deposit such funds in a demand deposit or a time deposit, so long as the money is readily available for payment. This can be done on the clerk’s own initiative or upon consent of both parties by written agreement. The clerk can also invest in other interest-bearing accounts when done pursuant to court order. The clerk can only pay the funds and the interest earned from investment of the funds as directed by the court. The clerk must also adhere to the requirements of Section 483.312, RSMo 1959.

Pursuant to § 557.390, RSMo 1959, an individual,allegedly absent without leave from the military detained by civilian law enforcers is "lawfully imprisoned or detained . . . upon any criminal charge . . . for the violation of any penal statute," and may be convicted for escaping from such detention.

Because of the absence of constitutional or statutory provisions requiring that a deputy county clerk be a resident of the county in which he or she serves, it is permissible for such person to reside in another county in this state.

Section 564.630, RSMo Supp. 1967, requires that a retail dealer in firearms purchasing a concealable firearm from another such retail dealer or from a person who is neither a wholesaler nor a manufacturer must obtain and deliver to the seller a permit authorizing such retail dealer to purchase the concealable firearm.

A person may be appointed as a policeman in a fourth class city who is not a resident of such city.

Opinion letter to the Honorable William Y. McCaskill

The Secretary of the Missouri Real Estate Commission is prohibited from engaging in the real estate practice.

Opinion letter to Dr. Walter C. Daniels

Opinion letter to Mr. Gene Sally

Opinion letter to the Honorable A. Basey Vanlandingham

Opinion letter to the Honorable Robert H. Branom and the Honorable Kenneth J. Rothman

(1) Consideration paid by buyer to lender for bona fide services is not interest. (2) Consideration by seller to lender to induce making of loan is not interest unless shown to be subterfuge to establish artificially high purchase price. (3) Mortgage insurance premiums collected by lender and paid to do not constitute interest. (4) Section 362.195, RSMo 1959, purporting to exempt guaranteed loans from usury laws is unconstitutional.

Opinion letter to the Honorable N. William Phillips

1. Section 327.030 and Section 327.271, RSMo 1959, which authorized the predecessor of the Missouri State Board for Architects, Professional Engineers and Land Surveyors to issue special permits to architects and to collect fees when such permits were renewed, were repealed when Senate Bill 117 of the General Assembly became law on October 13, 1969, and 2. Senate Bill 117 does not authorize the Missouri Board for Architects, Professional Engineers and Land Surveyors to renew, or collect renewal fees for the renewal, of special permits issued before Sections 327.030 and 327.271 were repealed.

A township board may consent to pay the cost of a surety bond of the township collector. Such consent is discretionary with the township board and if it is not given the township collector must pay the cost of such bond whether it be a personal or surety bond.

Opinion letter to the Honorable Ray Lee Caskey

1. Section 64.900, RSMo 1967 Supp., does not authorize the voters of Jefferson County to terminate county planning and zoning adopted pursuant to the authority of Sections 64.510 through 64.690, RSMo 1959, as amended. 2. There is no constitutional or statutory authority for conducting a referendum on whether Jefferson County shall continue with planning and zoning unless the voters of Jefferson County, pursuant to Section 64.905, RSMo 1967 Supp., adopt county planning or zoning under the provisions of Sections 64.800 to 64.905, RSMo 1967 Supp., thereby bringing the county within the coverage of Section 64.900, RSMo 1967 Supp.

Opinion letter to Mrs. Olean Barton

Opinion letter to the Honorable E. J. Cantrell

Under Sections 202.805 and 202.807 of House Bill 43 of the General Assembly, (1) An indigent patient is entitled to an attorney and the attorney is entitled to a reasonable fee for his services which fee is assessed as a cost to be paid by the county of residence regardless of whether or not the proceedings are held in the county of residence or in the county wherein the facility is located. (2) Commitment proceedings instituted under Section 202.807 pursuant to and as prescribed by Section 202.805 are to be held in the county wherein the facility is located unless the patient applies to have said proceedings transferred to the jurisdiction of the probate court of his county of residence as defined in Section 202.010.

Hearings to organize Commodity Merchandising Councils authorized by Senate Bill No. 65, General Assembly, shall be conducted by the person holding the office of Administrative Hearing Commissioner who has been appointed by the Governor with the advice and consent of the Senate pursuant to Section 161.252, RSMo Supp. 1967, and that the Commissioner of Agriculture is empowered to make the determination from the record taken of the testimony received at the hearing.

Bonds do not satisfy the Missouri constitutional requirement for just compensation for property taken by the state by condemnation.

There is no statutory requirement that appointed police officers in third class cities governed by provisions of Chapter 77, RSMo 1959, be residents of such city, but such cities may by ordinance require residence or other qualifications in addition to those prescribed by statute. An existing ordinance requiring such residence is not rendered invalid or ineffective by a statutory amendment permitting the employment of nonresident police officers.

The Department of Revenue has the right, and duty to collect the fees for motor vehicle registration as provided in Senate Bill No. 242, General Assembly. The Department of Revenue must collect these fees regardless of whether one or two license plates are provided pursuant to Senate Bill No. 242. While the Department of Revenue must collect the increased fees provided for in Senate Bill No. 242, the Department of Revenue need not provide two license plates until January 1, 1971.

The county court of a second class county having anticipated the assessed valuation of the county to be in excess of $300 million cannot consistent with Article X, Section 11(b), Missouri Constitution, and Section 50.550, RSMo 1959, propose and adopt a budget for the next fiscal year within which budget there is a recommendation for a tax levy in excess of 35 cents per hundred dollars of assessed valuation.

1. Insubordination as used in paragraph 168.107 1(3) means: A teacher's willful, intentional refusal or neglect to obey an express or implied command, instruction, order or rule of the teacher's employing school board, which command, instruction, order or rule is known to the teacher, is reasonable in nature and is given by and with proper authority. 2. A teacher belonging to a voluntary organization whose membership consists in part of teachers would not be in violation of Section 168.116 if the association takes part in the management of a campaign for the election or defeat of a member of a board of education so long as the teacher member does not take part in the initiation or control of the campaign.

Opinion letter to the Honorable James C. Kirkpatrick

Opinion letter to Mr. George W. Flexsenhar

A school board has the discretionary authority to pay the premiums for life insurance for its employees as part of their compensation.

Pursuant to Section 174.140, Senate Bill No. 12 Seventy-Fifth General Assembly, a state college board of regents has the discretionary authority to pay as part of an employee's compensation the premium for hospitalization, health or life insurance.

(1) A jury in a municipal court in a fourth class city in a second class county should be selected as provided in Chapter 499, RSMo, when no written request has been made by a magistrate as provided for under Section 495.040, RSMo Supp. 1967. (2) The number of jurors for a jury in a municipal court in a fourth class city is to be determined as provided for under Section 543.210, RSMo.

Opinion letter to the Honorable

Opinion letter to the Honorable Frank

The Clerk of the Circuit Court of the City of St. Louis has the discretionary power and authority to invest funds deposited in the registry of the court in the manner provided in Section 483.310, RSMo 1959, without any action by the General Assembly.

If a school board reasonably concludes that a student resides more than one mile from school via the shortest reasonably suitable route for pedestrian traffic and, furthermore, decides to provide public transportation for that student, the school district is entitled to state aid for the transportation of that pupil computed in accordance with Section 163.161, Senate Bills No. 1, 185 and 215, General Assembly.

The Missouri Conservation Commission has the authority to regulate the method and manner of taking predatory animals and that Rule IV, Section 4.10 of the Wildlife Code of Missouri, 1969, is a lawful exercise of that authority.

The courts of Missouri do not have jurisdiction to suspend or revoke permits issued by the Conservation Commission and further the Conservation Commission does not have the power to confer such jurisdiction on the courts and any such rule purporting to confer such jurisdiction is invalid.

(1) During a vacancy in the office of the clerk of the circuit court and pending the appointment of a successor by the Governor and qualification of such officer, the circuit court may appoint a temporary circuit clerk; (2) Such an appointment where the offices of circuit clerk and recorder are combined, also constitutes the person appointed by the court ex officio recorder as a matter of law; (3) Such clerk appointed by the circuit judge is entitled to the emoluments of the office during the period he serves as circuit clerk and recorder of deeds; (4) The person appointed by the Governor to fill such a vacancy is not entitled to any emoluments of office until such time as he duly qualifies for such office.

Opinion letter to the Honorable John A. Grellner

Opinion letter to the Honorable Haskell Holman

An operator of an amusement center is subject to the license fee provided in Chapter 318, RSMo 1959, with respect to a coin operated pool table used in the establishment, even though he is not the owner of the table.

When a testator leaves realty to a husband and wife subject to a life interest in two individuals and the will provides that the grantees of the life interest must pay rent in a specified sum to the remainder interest, under Section 145.200, RSMo 1959, the value of the life interest is reduced by the rent payments and the value of the remainder is increased by the same amount.

(1) House Bill No. 2, as passed by the First Extraordinary Session of the General Assembly, is within the scope of the Governor's special proclamation. (2) House Bill No. 2 complies with the provisions of Section 23 of Article of the Constitution which require that no bill shall contain more than one subject which shall be clearly expressed in its title. (3) The emergency clause contained in Section A of House Bill No. 2 is invalid in that such clause is not "necessary for the immediate preservation of the public peace, health or safety."

Opinion letter to the Honorable James L. Paul

Opinion letter to the Honorable Kenneth Rothman

Person charged with receiving stolen property may be prosecuted in any county in which he is shown to have been in possession of the property.

1. An applicant for a liquor license in this state must be denied a license by the Supervisor where he has been convicted under the laws of the United States or of any state of an offense involving a violation of the provisions of any law applicable to the manufacture or sale of intoxicating liquor subsequent to the ratification of the Twenty-first Amendment to the Constitution of the United States.; 2. An applicant for a liquor license in this state must be denied such license by the Supervisor where he has been convicted in another state of an offense not related to any liquor laws but which is a felony under the laws of that state where such conviction disqualifies him from voting under the laws of this state.; 3. Where the conviction or convictions are not sufficient to disqualify an applicant on the above grounds, the Supervisor of Liquor Control may refuse to grant such applicant a license where the circumstances surrounding such conviction or convictions are such as to show bad moral character.

A contest that requires the entrant to go to a store selling the contest sponsor's product or to buy a magazine in order to obtain an entry blank, and in which prizes are awarded based on a drawing from the submitted entry blanks, does constitute a lottery within the meaning of Article , Section 39, Missouri Constitution, and therefore, is prohibited in Missouri.; A contest that requires the entrants to submit a photograph taken by the entrant, and in which prizes are given, but in which the winners are selected on clearly defined elements of skill, is not a lottery within the meaning of the above cited constitutional provisions, and therefore, is not prohibited in Missouri.