Missouri AG Opinions — 1970

Opinion letter to the Honorable George E. Murray

Opinion letter to the Honorable John C.

Opinion letter to Mr. Howard L. McFadden

Opinion letter to the Honorable William S. Brandom

Opinion letter to Mr. William P. Wright

The American Party is no longer an established political party for the purpose of nominating candidates for Governor or other statewide offices in the State of Missouri because the only candidate for state office received less than two percent of the vote at the 1970 General Election. Since the American Party is not now an established party for the entire state the Secretary of State should not accept declarations of candidacy for Governor or other statewide offices for such non existent party.

The buildings and facilities of junior college districts created pursuant to Section 178.770 through Section 178.890, RSMo 1969, are "state buildings and facilities" as that term is used in the perfected version of House Joint Resolution 1, Fourth Extraordinary Session, General Assembly and, therefore, the junior college districts of Missouri would be eligible for funds from the Third State Building Fund to be created if the proposed constitutional amendment contained in House Joint Resolution 1 is approved by the voters.

(1) The Missouri Income Tax law cannot be amended after January 1, 1971, increasing tax rates or otherwise altering tax liability, making the change effective for the entire year 1971. (2) Missouri may impose a surtax on income similar to the surtax imposed by the federal government. (3) The General Assembly cannot impose an income tax computed solely on the basis of taxpayer’s federal income tax liability. (4) The Missouri General Assembly cannot legally use the entire 1971 income as the basis for a surtax or as the basis for imposing a tax computed on a percentage of the federal tax where the law is passed after January 1, 1971. (5) Section 13 of Article I of the Missouri Constitution prohibits enactment of retrospective tax laws irrespective of whether the tax is imposed upon individuals or corporations. (6) The legislature can provide for referral of tax increase measures earmarking a part of the increase for support of public education to the electorate by referendum. (7) It is legal to impose a tax on sales of advertising.

1. The county assessor of Marion County, Missouri, may enter into a cooperative agreement with the City of Hannibal under such terms and conditions as may be approved by the county court, as provided under the provisions of Sections 70.210 to 70.230, RSMo to perform the duties of the City Assessor of Hannibal . 2. The County Assessor of Marion County has no authority to perform the duties of the City Assessor of Hannibal except as provided under Sections 70.210 to 70.230, RSMo. 3. Under such agreement the county assessor may use the facilities of his office and services of his deputies and clerks in performing the duties of the city assessor. 4. All compensation paid by the City of Hannibal for the use of such facility, and the services of the assessor, his deputies and clerks shall be paid to Marion County and deposited in the county treasury.

Opinion letter to the Honorable Raymond L. Skaggs

A commercial motor vehicle used by the owner or operator to deliver limestone to farms owned or leased by other persons more than twenty-five miles beyond the municipal area where the operation is based, is not a “local commercial vehicle” within the meaning of Section 301.010(12), RSMo 1969.

The Purchasing Agent is required to determine whether bids for supplies to be purchased by the State of Missouri show that the delivered price of a firm, corporation or individual not doing business as a Missouri firm, corporation or individual is the same or less than the bid of a Missouri firm, corporation or individual and if he determines that a Missouri bidder has submitted an equal bid, in competition with an out-of-state bidder, then the Purchasing Agent is required to prefer the Missouri bidder. The Purchasing Agent is not permitted to accept a higher bid from a Missouri bidder on the grounds that the economic interests of the state would be furthered by patronizing a bidder doing business as a Missouri firm, corporation or individual.

1. When Henry County, by a vote of the people, adopted the provisions of Chapter 114, RSMo for voter registration, voter registration applied to the City of Clinton in all state and county primary, special and general elections. 2. The City of Clinton , Henry County, Missouri may adopt voter registration for all municipal elections in the manner as provided for in Section 114.047, RSMo, and it would be the duty of the county clerk to furnish the proper registration records to the city election officials.

Opinion letter to the Honorable Thomas B. Burkemper

The provision of Section 332.131, RSMo 1969, which requires that candidates for licenses as dentists in the State of Missouri be citizens of the United States is unconstitutional.

House Joint Resolution No. 1, Third Extraordinary Session Seventy-fifth General Assembly (Constitutional Amendment No. 4 on ballot November 3, 1970), which enacts a new Section 11(c) of Article X of the Constitution of Missouri, provides that if the board of education of a school district does not submit to the electorate a proposal for a higher tax rate for school purposes after the effective date of the amendment, the last tax rate approved in the district shall continue for the current tax year.

A regularly employed police officer of a third class city retains the same powers to arrest while off-duty which he possesses while on duty; the liability of a police officer of a third-class city for false arrest and other related torts depends upon the lawfulness of the arrest; the lawfulness of an arrest made by a police officer from a third class city does not depend upon whether the policeman was on or off duty; and a private citizen may only arrest for those misdemeanors which involve breaches of the peace, petit larcency committed in his presence, or pursuant to those powers granted him by virtue of Section 537.125, RSMo 1969, and Section 560.415, RSMo 1969.

Opinion letter to the Honorable Robert S. Drake, Jr.

Opinion letter to the Honorable Robert Payne

Opinion letter to Mr. G. L. Donahoe

Opinion letter to the Honorable William G. Johnson

The term “public works” as used in Section 290.210(7), RSMo 1969, of the prevailing wages law means structural works having a permanent character and usefulness, such as roads, buildings, bridges, and dams. The term “maintenance work,” Section 290.210(4), RSMo 1969, means the repair or restoration of that portion of an existing facility which has fallen into a state of deterioration or decay to its original condition. “Maintenance work” does not include “major” repairs or “replacement;” the latter constitute “construction.” “Replacement” entails the complete substitution of an existing facility with a new or different facility. Installing a central air conditioning unit in a public building constitutes “construction” within the meaning of Section 290.210(1), RSMo 1969, if the building was formerly without such a unit. Substituting a new central air conditioning unit or furnace in a public building in place of a deteriorated or worn out unit or furnace also constitutes “construction.” However, replacing a worn out part of a central air conditioning unit or furnace in order to restore the unit or furnace to operational condition constitutes “maintenance work” within the meaning of Section 290.210(4), RSMo 1969. Installing new or different partitions in a public building, either at the location of former partitions or at a different location, and rearranging present partitions constitutes “construction,” Section 290.210(1), RSMo 1969. However, restoring an existing partition to sound condition by repairing the deteriorated portion constitutes “maintenance work,” Section 290.210(4), RSMo 1969. Tarring a roof of a public building constitutes “maintenance work,” Section 290.210(4), RSMo 1969, if the roof is in a state of disrepair or deterioration, otherwise it would be “construction,” Section 290.210(1), RSMo 1969. Putting an entirely new roof on a public building constitutes “construction,” Section 290.210(1), RSMo 1969. Installing new garage doors on a public building constitutes “construction,” Section 290.210(1), RSMo 1969. Seal coating small cracks in the surface of an asphalt highway constitutes “maintenance work,” Section 290.210(4), RSMo 1969.

Opinion letter to the Honorable James E. Schaffner

The amount of indebtedness which may be incurred by a school district is determined on the basis of a calendar year rather than a fiscal year.

Opinion letter to the Honorable Bob F. Griffin

A bondsman or surety is disqualified from making further bonds when a forfeiture has been entered upon a recognizance to which he is a party, even though motions to set aside such forfeiture may be pending.

The plain and rational meaning of the word "administration" as used in Section 161.112, RSMo 1969, which sets forth the qualifications for the State Commissioner of Education, involves as an essential element the performance of executive duties. From the facts set forth in your telegram, the individual in question does not possess "breadth of experience in the administration of public education" as required by Section 161.112 and is, therefore, not qualified for appointment to the office of State Commissioner of Education.

The County Planning Commission may not impose regulations or require permits with respect to lands used or to be used for the raising of crops which may include grassland. This restriction is applicable with respect to land used or to be used for the enumerated purposes and does not extend to land devoted to other uses although owned by the same landowner. The county court may not require permits on the construction or alteration of farm buildings or farm structures. In determining whether to regulate the construction or alteration of a particular building or structure, the use of the building or residence as a farm building or farm structure must be determined by examining the relationship of the building to the farming activities.

1. In order for information obtained from an alleged violator of conservation rules during "custodial interrogation" to be used against that person to support a conviction, the accused must first be informed of his Fifth Amendment rights in accordance with the guidelines set forth by the United States Supreme Court in the Miranda case. 2. A conservation agent acting in the performance of his duties will not be guilty of trespass by reason of his entering the lands of private persons; an agent is "within the performance of his duties" in entering the lands of private persons only if he has reason to suspect violation of fish and game laws. 3. A person accused of a game violation is not necessarily entitled to a written summons or complaint at that immediate time. 4. A person is not required to produce identification other than the production of a fishing or hunting license to an agent of the Conservation Commission.

Opinion letter to the Honorable Jack K. Smith

Section 111.591, RSMo 1969, does not authorize the prosecuting attorney or other public officer to inspect ballots in the custody of the county clerk or board of election commissioners, unless some judicial proceeding, grand jury investigation, or other investigation authorized by law is pending.

Section 375.380, RSMo 1969, making it unlawful for insurance companies to pay dividends except from surplus profits arising from the business, prohibits the payment of dividends by such companies where there is no earned surplus or undistributed profits.

A sheriff’s fees computed in accordance with Section 57.290, RSMo 1969, incurred when he apprehends a person, charged with the criminal offense of breaking jail after conviction, and transports that person from the county of his apprehension to that in which the offense was committed, even though such offense be for breaking jail after conviction, are properly included in those costs which may be taxed against the State pursuant to the provisions of Section 550.020, RSMo 1969.

Opinion letter to the Honorable Robert H. Branom

The blind pension fund of the State of Missouri is not entitled to share in the intangible personal property tax collected by the state.

Opinion letter to the Honorable Hugh A. Sprague

Opinion letter to the Honorable G. William Weier

Opinion letter to the Honorable G. William Weier

In the situation where a life estate is given to A with a vested remainder in B if B survives A but if not a contingent remainder in C, and if the tax rate is the same for B and C, then inheritance tax under Chapter 145, RSMo, should be taxed as a life estate against A and the remainder against B.

Opinion letter to the Honorable Arthur T. Stephenson

A fourth class city which makes street improvements and repairs under Section 88.703, RSMo 1969, can defray, by proper ordinance, out of general revenue the cost of said improvements or repairs which abutts city owned property, and that all other street improvements and repairs under Section 88.703 must be paid for proportionately by the abutting property owners.

Opinion letter to the Honorable Hardin C.

Opinion letter to the Honorable Joe D. Holt

Where the assessment of property in a school district is reduced by the State Tax Commission to a point where the district's levy is not sufficient to qualify it for the additional state aid for tax effort provided in Section 163.031(1), V.A.M.S. Senate Bill Nos. 1, 185 and 215, Seventy-fifth General Assembly, and the district does not increase its tax rate before the year ends, the district can do nothing thereafter to qualify for the additional state aid for tax effort provided in Section 163.031(1).

Opinion letter to Mr. Herbert Wheeler

The provisions of the Missouri Dairy Law, Section 196.520 to Section 196.690, RSMo, do not prevent the Missouri Division of Health from exercising authority under the provisions of the Missouri Food, Drug and Cosmetics Act, Sections 196.010 to 196.120, RSMo.

Opinion letter to Mr. Hubert Wheeler

1. County and/or township collectors may charge commissions authorized to them against funds collected for library purposes. 2. The County Library Board is not required to make payments from library funds of the “employer’s share” of social security tax payments for the benefit of the county or township collectors who have collected library taxes for the reason that such payments do not constitute taxable wages paid by an employer to an employee within the meaning of the Social Security Act.

Opinion letter to the Honorable Albert F. Turner

Opinion letter to the Honorable Richard Southern