Missouri AG Opinions — 1972

A third class county which had an assessed valuation of more than $70,000,000 and less than $300,000,000, as determined by the State Tax Commission for the years 1967, 1968, 1969, 1970 and 1971, will become a second class county on January 1, 1973.

Section 311.298, RSMo 1969, applies to establishments licensed to sell 5 percent beer by the drink and such establishments can sell 5 percent beer by the drink on Sunday when December 31 falls on Sunday after 1:00 p.m. and until the time which would be lawful on another day of the week.

Opinion letter to the Honorable Frank L. Mickelson

With respect to city-county library districts under the provisions of Section 182.291 (Senate Bill No. 583, General Assembly, Second Regular Session): (1) “Fiscal year” as used in subsection 5 with respect to the merger for tax purposes refers to the tax year of the city; (2) The county library district fiscal year is the applicable fiscal year after the district is established; (3) Where the city and the county have the same name, it need not be repeated to properly identify the district and it is sufficient if the name is stated once identifying the district as a city-county library district.

Opinion letter to the Honorable Thomas D. Graham

The Governor's Executive Order dated May 2, 1972, purporting to place certain employees of the Missouri Public Service Commission under the provisions of Chapter 36, the state merit system, is invalid.

An employee of the State of Missouri who terminated such employment on July 31, 1957, then returned to employment by the state on January 13, 1969, who has since continuously remained in such employment, is not entitled to prior service credit for his state employment prior to July 31, 1957.

An individual who is presently retired and receiving retirement benefits which were calculated by multiplying one percent of his average pay (not to exceed $7,500 per year) during the five consecutive years of work when his pay was the greatest, times his years of creditable service, is not entitled to receive additional compensation under House Bill No. 1178, Second Regular Session, General Assembly as a result of the change in the definition of average compensation in October of 1967.

The employment, by the Missouri Department of Community Affairs, of a city councilman of Jefferson City, who intends to run for re-election, to a position within the Department of Community Affairs, the salary of which would come entirely out of state funds, and which would be a position having no responsibility, either direct or supervisory, over the administration or disposition of any federal funds or any federally funded programs, would not be in violation of the Hatch Act, because said individual would fall within the exception of Title 5 U.S.C.A. Section 1501(4) (A) as "an individual who exercises no functions in connection with that activity," the activity in question being one financed in whole or in part by the federal government.

Opinion letter to the Honorable J. William Holliday

Opinion letter to Mr. Gary G. Sprick

The employees of a not-for-profit corporation organized for the sole purpose of promoting some functions of comprehensive health planning and to receive, via contract, federal funds which have been provided the State of Missouri by reason of 42 U.S.C.A. §246(a), are precluded from campaigning for elective office by the provisions of the Hatch Act for the reason that the agency concerned qualifies as "the executive branch of a State, municipality, or other political subdivision of a State, or an agency or department thereof" the employees of which are prohibited from actively participating in a political campaign by Title 5 U.S.C.A. §1052(a).

Article IX, Section 1(a), of the Missouri Constitution of 1945 forbids a school district from charging any fee to any resident student who wishes to enroll in any course offered for academic credit.

Opinion letter to Mr. G. L. Donahoe

Opinion letter to the Honorable Don Owens

Except for special or emergency deputy sheriffs appointed for a period not exceeding thirty days under provisions of Section 57.119, RSMo, deputy sheriffs can lawfully be appointed in a county of the second class only in the number fixed by the judges of the circuit court of such county and in the manner provided in Section 57.220, RSMo. A person holding an “honorary deputy sheriff’s commission” that is one not issued under the provisions of Sections 57.119 or 57.220, RSMo, is not in contemplation of law a deputy sheriff and is not authorized to carry concealed weapons.

With respect to the distribution of fees collected by the circuit clerk in civil and criminal cases under the provisions of Sections 483.530, 483.540 and 483.541 (House Committee Substitute for Senate Bill No. 496, General Assembly, Second Regular Session) that: (1) Fifty percent of the fees earned and collected under Sections 483.530 and 483.540 go to the county and fifty percent to the director of revenue in the manner provided in Section 483.541; (2) Section 483.530 excepts from charge and collection the fees enumerated in such section in cases where the defendant is certified by the judge to be indigent and unable to pay; (3) Section 483.540 respecting fees in civil cases applies to juvenile court proceedings. Such fees are taxed under Section 211.281, RSMo, and whether collected from the county or from individuals fifty percent is to be paid pursuant to Section 483.541 to the director of revenue; (4) Section 483.540 respecting fees in civil cases applies to Uniform Support cases. Such fees may be taxed under Section 454.150, RSMo, and if collected from the county or from individuals fifty percent is to be paid pursuant to Section 483.541 to the director of revenue.

Opinion letter to Mr. Peter W. Salsich

A library district which desires to invest its funds in accordance with provisions of Section 182.800, RSMo Supp. 1971, should do so by drawing a warrant on a city or county treasury where such funds are deposited for the amount of the investment. The investment should be held by the board of trustees of the library district in the name of the district.

Opinion letter to Mr. Jack K. Smith

Opinion letter to the Honorable William H. Bolinger

Opinion letter to the Honorable Noel

Opinion letter to William G. Brooks

When votes are cast both for a deceased candidate and for his officially-designated successor in an election, the opposing candidate shall be declared elected if he receives more votes than were cast for both the deceased candidate and the successor candidate; the successor candidate shall be deemed elected if, not crediting him with votes for the deceased candidate, he receives more votes than were cast for the opposing candidate; and the election shall be declared void, if the opposing candidate receives more votes than the successor candidate but fewer votes than the total cast for the deceased candidate and the successor candidate. Straight party ticket votes for the party ticket which included the name of the deceased candidate shall be credited to the successor candidate as if the name of the successor had appeared thereon.

Persons who have resided in Missouri for thirty days or more but less than one year are eligible to vote in person or by absentee ballot for President and Vice President in this state without being registered. No person who has resided in Missouri for more than one year, and who is not registered to vote, except a person who has been absent from his home for such period of time that it has been substantially impossible for him to register to vote in person, is eligible to receive any ballot for the November 7, 1972, election, in those areas of Missouri in which registration is required, except that in areas with local option registration (Chapter 114, RSMo 1969), no person who has lived in Missouri more than one year and is not registered may receive a ballot. A person not registered who has resided more than one year in an area of Missouri in which registration is required (other than an area having local option registration) can receive an absentee ballot for President and Vice President only when he has been absent from his home for such period of time that it has been substantially impossible for him to register to vote in person.

A judge of the county court violates the prohibition of nepotism contained in Article , Section 6 of the Missouri Constitution if he participates in the appointment of a relative within the fourth degree of consanguinity to the board of trustees of the county library district.

A county library district which is a member of a regional library retains the power to levy taxes. When a city which contains a municipal library district annexes territory that is within a county library district, the annexed territory remains in the county library district and is subject to taxation by the county library district and not to taxation by the city library district.

The provisions of Section 70.610, RSMo, which authorize the governing body of a municipality to elect to come within the provisions of the Missouri Local Government Employees' Retirement System prevail over a charter provision of a constitutional charter city which requires that employee pension or retirement plans be submitted to the voters and that such a city may elect to come within the Local Government Employees' Retirement System by a majority vote of the governing body of such city without submitting the question to the voters.

With respect to the filing of nominations by party committees under the provisions of Section 120.550, RSMo to fill vacancies in the nominations for state representative and state senator: (1) The filing must be with the Secretary of State; (2) Telegraphic filing is not authorized under Section 120.550, RSMo.

A teacher is a permanent teacher, under the provisions of Section 168.104(5) of the Teacher Tenure Act (Sections 168.102 to 168.130, RSMo 1969), if he has been employed as a full-time teacher in the same school district for four successive years and reemployed for a fifth successive year after previously having been employed two years or more by another school district.

A Missouri state college or university, under Section 168.021, RSMo 1969, has the authority to issue the degree of bachelor of science in education without granting a life teaching certificate if the candidate does not present evidence of good moral character, as required by Section 168.031, RSMo 1969. The issuing authority's procedures for concluding that evidence of good moral character has not been presented should conform to recognized standards of fairness.

A notary public or other officer acknowledging absentee ballot affidavits is prohibited from assisting persons in marking absentee ballots and from receiving compensation for acknowledging absentee ballot affidavits.

A county clerk can publish notices of primary and general elections under Sections 120.400 and 120.580, RSMo 1969, in any two newspapers published in the county when the newspapers published in the county do not represent both of the two major political parties.

(1) The St. Louis Board of Election Commissioners should not send absentee ballots listing the names of candidates for state and local offices (including Congressional candidates) to legal residents of St. Louis temporarily living outside Missouri who are not registered voters. (2) The St. Louis Board of Election Commissioners send absentee ballots listing the names of Presidential and Vice Presidential candidates to legal residents of St. Louis temporarily living outside Missouri who are not registered voters.

The City of St. Louis has no authority to require that officers of the police force of such city hired after a specified date reside within the city.

Opinion letter to the Honorable Ralph Combs

Patronage employment within all levels of government in the state of Missouri is constitutionally impermissible where any of the following conditions attach to such employment: (1) Any requirement that political party membership or approval be obtained before consideration is afforded applicants for patronage positions or to assure job security in patronage employment; and, (2) Any requirement that contributions of money, time or talent be made to a political party or personage before consideration is afforded applicants for patronage positions or to assure job security in patronage employment. Likewise, any other form or manner of restriction or qualification placed on patronage employment would be constitutionally impermissible upon a determination by a court of law that it infringes or denies any of the following protected rights: (1) The First Amendment’s guarantee of free speech and political association; (2) The Ninth Amendment’s guarantee that allows one to engage in varying forms of political endorsements and activities to advance a particular view; (3) The Fourteenth Amendment’s protection against infringement of the right to have an equal chance to attain elective office; and, (4) The Fourteenth Amendment’s protection against infringement of the right to have an equally effective voice in the management of government.

The provisions of Section 66.250, RSMo (Senate Bill 389, General Assembly, Second Regular Session) requiring appointed police officers in police departments in any county of the first class having a charter form of government to complete training or show completion of certain training courses in law enforcement or possess specified experience will apply to appointed officers in the sheriff's office of Jackson County when its Charter goes into effect January 1, 1973.

The term “sale at retail” as defined by Section 144.010(8), RSMo 1969, does have the same meaning as the term “retail sale”, used in Section 114.025. The term “retail sale” refers only to sales made by those engaged in business and not in transactions between individuals. When an individual trades his automobile to another individual the net difference after a trade-in is immaterial because the transaction is not a “retail sale” and the full value of the automobile purchased is used to calculate the tax.

Neither the regular police officers of the Police Department of the City of St. Louis nor the reserve officers of such city appointed under the provisions of Section 84.175, RSMo (House Bill No. 1144, General Assembly, Second Regular Session) are under the provisions of Section 66.250, RSMo (Senate Bill No. 389, General Assembly, Second Regular Session) requiring certain training or experience of police officers in police departments in any county of the first class having a charter form of government.

The Missouri statutes with respect to the close of voter registration which provide for different closing dates for such registration are valid. The General Assembly of Missouri can by statutory enactment provide for a uniform closing date for registration throughout the state. County clerks are not prohibited from opening their offices for registration on a legal holiday under Sections 114.080 or 116.030, RSMo 1969.

Opinion letter to Honorable William E. Robinson

Opinion letter to Mr. Dexter D. Davis

Opinion letter to the Honorable Robert H. Martin

Article , Section 2(b) of the Constitution of Missouri provides that constitutional amendments proposed by initiative shall be voted on at the next general election (more than four months from the date of filing) or at a special election called by the Governor prior thereto. The circulators of the petition have no power to designate the date of the election at which the amendment is to be voted. If an initiative petition contains an election date, such petition is ineffective to authorize the submission of the measure at a date later than the date specified in the petition.

Opinion letter to the Honorable Richard E. Martin

Only educational institutions that have a department of anatomy and in which human anatomy is investigated or taught to all students in attendance at such institution or to all students in attendance at a school or department of such educational institution come within the provisions of Section 194.120, RSMo 1969, and are entitled to receive human cadavers from the State Anatomical Board. Penn Valley Community College is not entitled to receive human cadavers from the State Anatomical Board.

Opinion letter to Mr. Joseph Jaeger, Jr.

1. Under the provisions of Section 331.010, RSMo 1969, a chiropractor has authority to diagnose for the limited purpose of determining whether the particular treatment which he may legally render to a patient is proper treatment for the disease from which the patient is suffering. 2. A chiropractor is permitted to take and evaluate for diagnostic purposes only x-rays of the human spinal column and other parts of the human body for the limited purpose of determining whether the disease or ailment is one he can treat and to determine the proper treatment. 3. Section 331.010, RSMo 1969, prohibits chiropractors from employing any diagnostic tests or procedures which involve operative surgery or the administration or injection of any drug or medicine. Similarly proscribed are any procedures which are exclusively reserved to the fields of obstetrics, osteopathy, surgery or medicine.

The provisions of section 51, Article IV of the Missouri Constitution, requiring Senate confirmation of gubernatorial appointments, relates only to state executive branch officials.