1972 MISSOURI ATTORNEY GENERAL'S OPINIONS

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Opinion Date Topic Summary
1-72 Jan 7 Opinion letter to Mr. Charles O'Halloran
2-72 Jan 14 ELECTIONS.
ABSENTEE BALLOTS.
The list of the names of applicants for absentee ballots posted by the election authority in a conspicuous place accessible to the public at the entrance of the office of the election authority should include the post-office address to which the ballot is to be sent, the street address in the application for an absentee ballot and the ward or precinct number given by the applicant.
3-72 Jan 19 BONDS.
LIBRARIES.
CITIES, TOWNS & VILLAGES.
CONSTITUTIONAL LAW.
A municipal library district has authority to issue general obligation bonds for the purchase of grounds or the erection of public library buildings or the improvement of existing buildings when authorized by a vote of two-thirds of the qualified electors of the district voting thereon.
4-72 Feb 1 LABOR.
MEDIATION BOARD.
Missouri State Board of Mediation is not precluded from mediating dispute in industry subject to federal labor relations statutes, pursuant to Section 295.080, RSMo 1969, unless Federal Mediation and Conciliation Service actually assumes jurisdiction by proffering its services.
6-72     Withdrawn
7-72 Jan 5 ANTI-TRUST. Arrangements among insurance companies to effectuate the price or any part thereof of competitive bids submitted by automotive repair shops is an unlawful restraint of trade in violation of Sections 416.020 and 416.040, RSMo 1969. However, any arrangement between an insurance company and an automotive repair shop whereby the former requires the latter to afford it discounts on specified work is not violative of Sections 416.020, 416.030, or 416.040, RSMo 1969, absent an arrangement among insurance companies to effectuate such a practice. Also, any arrangement among insurance companies to limit competitive bidding on automotive repair to only those automotive repair shops which agree to pre-conditioned limits on their competitive bid is violative of Sections 416.030 and 416.040, RSMo 1969, as an unlawful restraint of trade.
8-72 May 16 Opinion letter to Mr. Dexter D. Davis
9-72 Feb 9 Opinion letter to the Honorable Maurice Schechter
10-72 Jan 19 ROAD DISTRICTS.
ROADS & BRIDGES.
A road district organized under the provisions of Sections 233.320 to 233.445, RSMo 1969, may issue bonds pursuant to Section 233.345, RSMo 1969, for the purpose of construction of a maintenance building for road machinery and equipment of the district.
12-72 Mar 20 SCHOOLS.
TAXATION (SCHOOLS).
EXCEPTIONAL CHILDREN.
Under subsection 3 of Section 167.151, RSMo 1969 (providing that a nonresident taxpayer must receive credit on tuition charged his child in an amount equal to the tax paid to the school district), school taxes paid in prior years or delinquent taxes paid in the current year may not be used as a credit against tuition charges for the current year. Furthermore, exceptional children, as defined by Section 178.260, RSMo 1969, whose parents are nonresident taxpayers of a district, are entitled to “appropriate instruction” in accordance with subsection 2 of Section 178.260, RSMo 1969.
13-72     Withdrawn
15-72 Jan 10    Opinion letter to the Honorable J. Anthony Dill
16-72 Mar 6 CONSTITUTIONAL LAW.
PENSION FUNDS.
INVESTMENTS.
Trustees of pension fund may make investments authorized by statutes without being restricted by constitutional limitations on investments by political corporations or subdivisions of the state.
17-72 Feb 15 COUNTIES.
TOWNSHIPS.
Upon a third class county becoming a second class county, pursuant to Chapter 48, RSMo 1969, the alternative form of government, i.e., township organization, if previously adopted, automatically ceases to exist.
18-72 Mar 28 SCHOOLS.
TEACHERS.
1. Under Section 168.126, RSMo 1969, a board of education need not give a probationary teacher ninety days notice prior to April 15 of its intention not to rehire the teacher because of incompetency in order to lawfully refuse to renew that probationary teacher’s contract for the next school year; 2. The time periods in Sections 168.116 and 168.126, RSMo 1969, should be computed on the basis of calendar days excluding the first day and including the last in accordance with Section 1.040, RSMo 1969.
19-72 Mar 8 Opinion letter to Mr. Joseph Jaeger, Jr.
20-72 Jan 7 LIBRARIES. The governing boards of county, city-county and municipal libraries are vested with the administrative authority of such libraries and are not under the direction of the officers or governing bodies of such cities or counties.
21-72 Mar 10 SCHOOLS.
JUNIOR COLLEGES.
CONSTITUTIONAL LAW.
TAXATION (SALES AND USE).
A junior college district in Missouri is an institution of higher education supported by public funds, as that term is used in Section 144.040.2, Senate Bill No. 72, Seventy sixth General Assembly; and Section 144.040, Senate Bill No. 72, Seventy-sixth General Assembly, which does not exempt institutions of higher education supported by public funds from collecting sales tax on retail sales made by them, is constitutional. Therefore, it is our opinion that every junior college district must collect state sales tax on retail sales it makes after September 28, 1971.
22-72 May 22 BANKS.
RULES AND REGULATIONS.
Rules and regulations proposed by the Commissioner of Finance providing that state banks and trust companies may purchase securities of a corporation carrying on a project which is predominantly service, community or public in nature when such purchase has been authorized by the Comptroller of the Currency as a proper investment for national banking associations are a valid exercise of his rule making authority and may be enacted if approved by the State Banking Board.
23-72 Feb 1 ROADS & BRIDGES.
STATE HIGHWAYS.
OUTDOOR ADVERTISING.
CONSTITUTIONAL LAW.
1. The State Highway Commission may not utilize state road or highway fund moneys to defray the cost of the administration of a system of permits for the regulation of outdoor advertising. 2. The adoption of the permit system by the State Highway Commission is mandatory under Section 226.550, RSMo Supp. 1971. 3. Regulations for a permit system for outdoor advertising need not be adopted by the State Highway Commission and filed with the Secretary of State prior to such system’s becoming effective. 4. Section 226.550, RSMo Supp. 1971, provides that permits be issued on a one-time basis. 5. Permits are specifically required only for the outdoor advertising specified in Section 226.520(5), RSMo 1969. Pre-existing signs that come within this provision are subject to permit regulation. Other pre-existing and non-conforming signs, subject to removal under Sections 226.560 and 226.580, RSMo 1969, need not obtain permits. 6. Section 226.550, RSMo Supp. 1971, refers to subparagraph (5) of Section 226.520, RSMo 1969. Therefore, outdoor advertising located in unzoned commercial or industrial areas, as defined and determined pursuant to Sections 226.500 to 226.600, RSMo 1969, is required to have a permit.
25-72 Mar 30 Opinion letter to Mr. James Flanagan
26-72 Apr 4 LEVEES.
LEVEE DISTRICTS.
DRAINAGE DISTRICTS.
The St. John Levee and Drainage District, a circuit court drainage district of New Madrid and Mississippi Counties, Missouri, has statutory authority to give assurances to the Department of Army as are required by the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970.
27-72 Feb 14 Opinion letter to the Honorable J. Anthony Dill
28-72     Withdrawn
30-72 Jan 7 PAROLE.
NARCOTICS.
CRIMINAL LAW.
CRIMINAL PROCEDURE.
CONTROLLED SUBSTANCE.
(1) Section 195.220, S.C.S.H.C.S.H.B. No. 69, 76th General Assembly (RSMo Supp. 1971, 195.221), as it concerns the granting of parole from a state correctional institution of anyone who is convicted of selling, giving, or delivering a controlled substance as defined by newly enacted Chapter 195, affects only those persons sentenced pursuant to such chapter after the effective date of its passage. (2) Such section does not affect the administrative function of the Department of Corrections in reference to Section 216.355(1), RSMo. (3) An individual under supervision of the Board of Probation and Parole who was sentenced to the State Department of Corrections for selling, giving, or delivering a controlled substance pursuant to Chapter 195 is not to be given credit for parole time as time toward service of his sentence for application of the three-fourths rule, Section 216.355(1), RSMo 1969.
31-72 May 9 Opinion letter to the Honorable Joe A. Johnson
32-72 Feb 1 ELECTIONS.
POLLING PLACE.
CRIMINAL LAW.
CORRUPT PRACTICES.
The boundaries of a "polling place" are determined by the perimeter of the area actually occupied by the election personnel, supplies, and equipment of the place at which the voters cast their ballots. Where a room is fully occupied, the walls of the room define this perimeter. Where less than the total area of an enclosure is occupied, the perimeter of the area actually occupied defines the boundaries.
33-72 Feb 29 PLANNING COMMISSION.
COOPERATIVE AGREEMENTS.
A regional planning commission organized under the provisions of Sections 251.150, RSMo 1969 et seq., is advisory to the governmental units in the region and does not have authority to exercise the legislative functions of local government although the participating municipalities may, under Sections 89.010, RSMo 1969 et seq., adopt planning and zoning as recommended by the commission. Such a regional planning commission has no authority to enter into an agreement with municipalities to enforce municipal codes.
34-72 Feb 14 Opinion letter to the Honorable William S. Brandom
36-72     Withdrawn
37-72 Feb 25 Opinion letter to Mr. John C. Vaughn
38-72 March 22 PENSIONS.
RETIREMENT.
PUBLIC RECORDS. STATE EMPLOYEES.
STATE EMPLOYEES' RETIREMENT SYSTEM.
An individual who is not a member of the Missouri State Employees' Retirement System may inspect the records of the proceedings of the board of trustees of the system under the provisions of Section 104.480, RSMo 1969, for the purpose of determining how many members over the age of seventy years are employed by the state.
39-72 Jan 11 Opinion letter to the Honorable Robert S. Wiley
40-72     Withdrawn
41-72 Feb 2 COUNTY CLERKS.
COMPENSATION.
CONSTITUTIONAL LAW.
Section 51.310, House Bill No. 484 of the 76th General Assembly, effective September 28, 1971, relative to compensation for certain county clerks for duties performed by them under Section 51.121, RSMo 1969, relating to a survey of voters, provides for an increase in compensation during the term of such officers in violation of Section 13 of Article VII of the Missouri Constitution and is not effective during such officers’ terms.
42-72 May 12 Opinion letter to Mr. G. L. Donahoe
43-72 Feb 2 JURORS.
GRAND JURY.
CONSTITUTIONAL LAW.
Paragraph 2 of Section 494.020, RSMo Supp. 1971, renders any person who has served as a member of a grand jury panel prior to the effective date of the statute and within ten years next preceding his selection ineligible for service as a grand juror and such statute is constitutional.
44-72 Jan 7 Opinion letter to the Honorable Ray Lee Caskey
45-72 Feb 14 TAXATION (SALES & USE).
CONSTITUTIONAL LAW.
STATE COLLEGES.
UNIVERSITIES.
The University of Missouri is subject to the imposition of a sales tax by a municipality on sales made by the University. If the University is delinquent only on payments owed to the city, the city must bring an appropriate action to collect the tax.
47-72 May 22 LIQUOR.
LICENSES.
CRIMINAL LAW.
CONTRABAND.
The possession of "winemaking kits" fit for the use in the unlawful manufacture of intoxicating liquor, by business establishments or individuals who are not licensed by the state to manufacture intoxicating liquor, constitutes a violation of the Missouri Liquor Control law. However, this law does not prohibit the possession of winemaking equipment that is held for sale exclusively to businesses or individuals holding a state license to manufacture wine.
48-72 Mar 22 FIRE PROTECTION DISTRICTS. 1. A fire protection district in constitutional charter counties has authority to contract with another fire protection district for providing a joint fire and emergency dispatching service. The dispatching center which furnishes the dispatching service may hire a chief dispatcher but does not have authority to contract with a private corporation to furnish a chief dispatcher. 2. A chief dispatcher as required in Section 321.245, RSMo 1969, to be in charge of the operation and directly responsible to the management of the dispatching service is not required to be physically present twenty-four hours a day seven days a week. Such chief dispatcher must give his position his complete and undivided attention and may not engage in any other activities that would either consume any of the portion of the time required for him properly to function as chief dispatcher or which would in any respect interfere with his ability to perform his duties.
50-72 Jan 11 LAW ENFORCEMENT ASSISTANCE COUNCIL.
EXECUTIVE ORDER.
COMPENSATION.
CONFLICT OF INTEREST.
The Governor of Missouri properly established the Missouri Law Enforcement Assistance Council by Executive Order. Such Council may properly determine the compensation and allowances of the Chairman.
52-72 Mar 1 SUNDAY.
FIRE PROTECTION DISTRICTS.
The board of directors of a fire protection district may hold meetings and conduct its regular business and pass legally binding ordinances on Sunday.
53-72 Feb 2 TAXATION (INTANGIBLE).
CORPORATIONS.
An account receivable held by a parent corporation evidencing an obligation of a subsidiary corporation, is intangible personal property as defined by Section 146.010, RSMo 1969. The proceeds received by the parent corporation constitute "yield" as that term is used in Section 146.010. Therefore, such parent corporation holding the legal or equitable title or beneficial interest in intangible personal property is subject to the property tax imposed by Chapter 146, RSMo.
55-72     Withdrawn
56-72 Sept 12 CHIROPRACTIC. 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.
57-72 Apr 17 Opinion letter to the Honorable Donald L. Manford
60-72 May 1 RESIDENCE.
FIRE PROTECTION DISTRICTS.
A fire protection district may enact a rule or regulation requiring all future firemen to reside within the fire protection district.
61-72     Withdrawn
64-72 June 7 STATE TREASURER.
LAND RECLAMATION COMMISSION.
The attached trust agreement between the State Treasurer and the Missouri Land Reclamation Commission covering moneys received by the Commission which are required as bond by Sections 444.772 and 444.778, RSMo Supp. 1971, is not in violation of Section 13 or 15 of Article IV, Constitution of Missouri.
66-72 Mar 27 ELECTIONS.
REGISTRATION.
COUNTY CLERKS.
Section 51.121, RSMo 1969, requiring the county clerk to inspect voting precincts and present a report to the county court and certain party officials is not applicable to counties in which there is registration under either Chapters 114 or 116, RSMo 1969 but in which there is not registration as provided for by both chapters.
67-72 June 8 Opinion letter to Dr. Arthur L. Mallory
69-72 May 18 Opinion letter to the Honorable E. Richard Webber
70-72 Mar 8 CITIES, TOWNS & VILLAGES.
CITY COLLECTOR.
ELECTIONS.
A third class city with the Mayor-council form of government cannot abolish the office of collector and appoint a member of the city clerical staff or any other person to collect the city’s taxes. Under Section 77.370, RSMo 1969, a third class city with Mayor-council form of government can abolish by ordinance the office of city collector only when the city contracts for the collection of taxes by the county collector or township collector.
71-72 Mar 16 MARRIAGES.
MAGISTRATES.
COMPENSATION.
CONSTITUTIONAL LAW.
Section 24, Article V of the Missouri Constitution prohibits magistrates from receiving any compensation for solemnizing marriages.
73-72 Aug 17 TAXATION (EXEMPTIONS).
CONSTITUTIONAL LAW.
1. Tangible personal property consigned to a warehouse from an out-of-state point acquires a tax situs in this state when it is warehoused for the convenience of the owner of the property; 2. Goods that are shipped from different out-of-state sources and combined together as one item in the warehouse before being forwarded to an out-of-state consignee do acquire tax situs at the warehouse; 3. The documentary proof required to prove that shipments are in transit are those documents that, in the particular business involved, accurately reflect the destination or eventual sale or consignment of the goods; 4. To secure the exemption provided by Section 137.093, RSMo, bills of lading do not necessarily have to show shipments from the point of origin through a Missouri county to the final destination outside the state on one and the same document; 5. A public warehouse owner, when authorized to do so by the owner of tangible personal property consigned to his warehouse, may show documentary proof of in-transit status in the same manner as the actual owner of the goods and claim an exempt status for the owner; 6. The federal import exemption that applies to uncrated goods is binding on county assessors. 
75-72     Withdrawn
77-72 May 2 COUNTY CORONER.
DEATH CERTIFICATE.
DIVISION OF HEALTH.
A coroner in a county of the fourth class does not have the authority to prepare and submit a certificate of death to the local registrar when a death has allegedly occurred in the county but the body of the decedent has not been discovered.
78-72 May 25 TORTS.
RECREATION.
STATE PARK BOARD.
SOVEREIGN IMMUNITY.
The state of Missouri acting through the Inter-Agency Council for Outdoor Recreation and the Missouri State Park Board, pursuant to Section 258.500, RSMo 1969, can agree under long-term contract with the United States to provide operation, maintenance and replacement of federally financed water control projects under the Federal Water Projects Recreation Act, 16 U.S.C.A., Sections 460l-12 and 13, and further to agree to reimburse the federal government in those projects; that under present law neither the Council nor the Park Board has the authority to agree to hold and save the United States free from damages due to the construction works.
79-72     Withdrawn
80-72 Feb 14 LEGISLATURE.
LEGISLATORS.
CONSTITUTIONAL LAW.
ELECTIONS.
In order for a person to be eligible to file as a candidate for the office of state senator in a district in which such office will be filled at the November 7, 1972 general election, he must have been a resident of such district for one year prior to the November 7, 1972 election date.
81-72 Aug 2  CITIES, TOWNS AND VILLAGES.
CITY OFFICERS.
OFFICERS.
TOWN TRUSTEES. 
(1) A duly elected town trustee forfeits his office by moving from the town of his election; (2) until his removal from the board of trustees, a nonresident trustee is a de facto officer and his official acts and decisions are valid; and, (3) Section 80.230, RSMo 1969 provides that all vacancies in the board of trustees shall be filled by the remaining members of the board, the chairman or temporary chairman not voting except in case of a tie.
82-72 Mar 6 Opinion letter to Mr. James E. Schaeffner
87-72 Apr 11 ELECTIONS.
CANDIDATES.
COMMITTEEMEN.
COUNTY CLERK.
A county clerk may refuse to place the name of a candidate he believes to be ineligible on the ballot and his action is subject to review by the courts. A person cannot have a residence for voting purposes only which is separate from his legal residence.
88-72 Mar 17 Opinion letter to the Honorable Donald J. Gralike
89-72 June 2 INSURANCE. Neither Chapter 382, RSMo 1969, the Insurance Holding Companies Act, nor Section 375.320 of the Revised Statutes of Missouri 1969, prohibits a domestic insurer from operating a subsidiary which it acquired on March 23, 1971, and which subsidiary was organized and incorporated for the purpose of engaging generally in the automobile salvage business to dispose of salvage obtained by the insurer in the ordinary course of its insurance business.
90-72 Mar 17 Opinion letter to the Honorable Norman L. Merrell
92-72 June 7 Opinion letter to Mr. Robert E. Myers
93-72 May 19 TAXATION.
ELECTIONS.
COUNTY LIBRARIES.
After a county library district has been in existence for five years there is no limitation on the frequency with which the proposition to reconsider a library district's tax rate can be submitted to the people at the annual election. Said annual election is the annual school election held on the first Tuesday in April of each year.
94-72 May 16 Opinion letter to the Honorable Hayden Morgan
96-72 May 23 LAND SURVEYORS.
COUNTY SURVEYOR.
DEPUTY COUNTY SURVEYOR.
1. Only a person duly registered as a land surveyor under Chapter 327, RSMo 1969, is qualified to be elected to the office of county surveyor. 2. County surveyors who were qualified for the office when elected continue to hold the office for the remainder of their terms. 3. County surveyors have authority to appoint a duly registered land surveyor as a deputy to perform work as a land surveyor. 4. The state land surveyor may in his discretion require land surveys to be made by a local registered land surveyor when no registered county surveyor exists. 5. The only compensation the county surveyor in third and fourth class counties is entitled to receive for his services, whether the work is performed by him or his deputy, is the compensation provided by statute for the county surveyor. Any compensation to the deputy for his services must come from the county surveyor.
97-72 May 16 Opinion letter to Mr. Robert E. Myers
98-72 Mar 3 Opinion letter to Mr. Robert E. Myers
99-72 Apr 24 RAILROADS.
POLICE.
HIGHWAY PATROL.
LICENSES.
Railroad police licensed by the Superintendent of the State Highway Patrol under the provisions of Section 388.600, RSMo Supp. 1971, are exempt from regulation of the St. Louis Board of Police Commissioners under the provisions of Section 84.340, RSMo 1969.
100-72 Sept 27 Opinion letter to the Honorable Robert H. Martin
101-72 Apr 18 Opinion letter to the Honorable Robert H. Branom
102-72 Mar 10 Opinion letter to the Honorable Lloyd J. Baker
103-72 May 19 Opinion letter to the Honorable Phil Snowden
106-72 Nov 9 Opinion letter to the Honorable Noel Cox
107-72 Apr 20 Opinion letter to the Honorable Floyd E. Lawson
108-72 Mar 22 RECORDER OF DEEDS. A quit claim deed of release in full or partial satisfaction of a deed of trust is not subject to the user fee charge of one dollar by the recorder of deeds under Section 59.319, RSMo 1969.
109-72 June 7 Opinion letter to Mr. Henry Maddox
111-72 May 18 PENSIONS.
TAXATION (INTANGIBLE).
FIRE PROTECTION DISTRICTS.
A fire protection district located in a county of the first class may use the intangible personal property taxes it receives for pensioning of its firemen provided a majority of the qualified voters casting votes vote in favor of pensioning the salaried members of the fire department as provided under Section 321.600, RSMo 1969.
112-72 Mar 22 Opinion letter to the Honorable J. H. Frappier
114-72 July 3 Opinion letter to the Honorable R. J. Gordon
115-72 Mar 27 Opinion letter to the Honorable Thomas D. Graham
116-72 Apr 11 ELECTIONS.
CANDIDATES.
RESIDENCE.
COMMITTEEMEN.
Under the provisions of Sections 120.770 and 120.340, RSMo 1969, a candidate for the office of committeeman who is not a resident of the ward for which he files is not eligible to have his name placed on the ballot.
117-72 Mar 27 Opinion letter to the Honorable Harold F. Reisch
122-72 Oct 11 TAXATION (SALES & USE).
TAXATION (EXEMPTION).
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.
123-72 May 10 ELECTIONS.
REGISTRATION.
1. The requirement of one year’s residence in the state as a condition to voting established by Article VIII, Section 2 of the Missouri Constitution and Section 111.021 RSMo 1969 is unconstitutional and void. 2. If the durational requirement of sixty days residence in a county, city or town as a condition to voting is held valid by the court in the case now pending in the United States District Court for the Western District of Missouri, such duration of residence will be required as a condition for voting at the November election but such duration of residence is not required in order to vote at the preceding primary election. 3. Any otherwise qualified person who is a resident of the City of St. Louis at the time of registration, regardless of the duration of his residence, may register to vote at the primary at any time prior to 5:00 p.m. on the 28th day preceding the primary election date as provided in Section 118.240, RSMo Supp. 1971. 4. The St. Louis City Election Board should register all residents of such city who apply before 5:00 p.m. on the 28th day preceding the August 1972 primary date if they have all other constitutional qualifications. Such persons are entitled to vote in the 1972 primary.
123a-72 July 19 ELECTIONS. No person who establishes residence in Missouri 28 days or less prior to a primary or general election can register or vote in places where registration is required or vote in places where registration is not required at such ensuing primary or general election.
126-72 Oct 11 SHERIFFS.
POLICE.
COUNTIES.
COUNTY OFFICERS.
COUNTY CHARTERS.
The provisions of Section 66.250, RSMo (Senate Bill 389, 76th 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.
127-72 May 26 HIGHWAY PATROL.
MOTOR VEHICLES.
MOTOR VEHICLE INSPECTION.
Section 307.365(5), RSMo Supp. 1971, dealing with the refunding of moneys for vehicle safety inspection stickers of those inspection stations which discontinue operation, are suspended or revoked, is applicable only to those inspection stations which discontinued operation, were suspended or revoked, after the effective date of Section 307.365(5), RSMo Supp. 1971, the 28th day of September, 1971.
128-72 Aug 7 PENSIONS.
RETIREMENT.
CITIES, TOWNS & VILLAGES.
A city is prohibited by Section 70.615, RSMo from establishing a pension and retirement fund for employees who are other than policemen or firemen on an independent basis and not under the Lagers Retirement Plan (Sections 70.600 to 70.760, RSMo 1969, as amended) other than the Federal Social Security Old Age, Survivors and Disability Insurance program, as amended, unless the city has an assessed valuation of at least forty million dollars and does not now have a pension system for its officers and employees adopted pursuant to state law.
129-72 Sept 20 CONSTITUTIONAL LAW.
INITIATIVE AND REFERENDUM.
Article XII, 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.
131-72 Apr 20 Opinion letter to the Honorable James C. Kirkpatrick
132-72     Withdrawn
133-72 May 22 ELECTIONS. Section 118.510, RSMo 1969 is valid.
134-72 May 17 ELECTIONS.
CANDIDATES.
SHERIFFS.
COUNTY CLERK.
A person is not eligible for the office of sheriff unless he has resided in the county for more than one whole year next before filing for said office whether he files by declaration of candidacy or by nominating petition. The time for such filing is on or before five p.m. on the last Tuesday of April preceding the primary. The clerk of the county court may refuse the filing of such a person who does not possess the requisite residency eligibility.
137-72 Apr 25 NAMES.
BALLOTS.
ELECTIONS.
CANDIDATES.
A candidate cannot have the nickname "Judge" appear before his name, or in parenthesis in his name, on the ballot because such nickname is a descriptive appellation.
139-72 Apr 27 Opinion letter to the Honorable Richard M. Webster
142-72 June 19 APARTMENT HOUSES.
CITIES, TOWNS & VILLAGES.
TAXATION (CITIES, TOWNS & VILLAGES).
A third class city cannot levy a business license tax upon apartment buildings.
145-72 May 4 Opinion letter to the Honorable James C. Kirkpatrick
146-72 May 19 COUNTIES.
COOPERATIVE AGREEMENTS.
Counties may cooperate with each other and expend county funds under the provisions of Section 70.210, RSMo 1969 et seq., within appropriate limitations, by becoming members of an association of counties for the purposes of research in the field of local government, providing training for county officials, providing information for the efficient operation of county government and supporting or opposing legislation affecting such counties.
147-72 May 4 GOVERNOR.
LEGISLATURE.
CONSTITUTIONAL LAW.
Senate Bill No. 488 of the Second Regular Session of the 76th General Assembly is unconstitutional because it authorizes the Senate and House of Representatives to determine, by resolution, the number of their officers and employees in excess of the limitations imposed by Article III, Section 17 of the Missouri Constitution.
148-72 Aug 22 TAXATION (CITIES, TOWNS & VILLAGES).
POLITICAL SUBDIVISIONS.
EARNINGS TAX.
School districts in St. Louis County, under the provisions of Section 92.350, RSMo 1969, must deduct the St. Louis City Earnings Tax from the wages and salaries of their employees who are residents of the City of St. Louis, and remit the amount withheld (less statutory allowances) to the St. Louis City Collector.
152-72 June 20 AMBULANCES.
MOTOR VEHICLES.
FIRE DEPARTMENT.
EMERGENCY VEHICLES.
MOTOR VEHICLE EQUIPMENT.
Fire trucks and ambulances, whether publicly owned or privately owned, operated by a member of an organized fire department or ambulance association, may display lighted red lights, or, with a permit from the chief of the organized fire department or ambulance association, may display a flashing blue light when responding to an emergency call, and the operators of such vehicles may park irrespective of the provisions of Sections 304.014 to 304.026, RSMo 1969, with caution, disregard stop signals, speed limits, and regulations requiring parking and turning of vehicles in specified directions, but comply with all other traffic laws and regulations, and the operator of all other vehicles on a street or highway, shall yield the right-of-way when such vehicle approaches.
154-72 June 13 Opinion letter to the Honorable George W. Parker
156-72 June 30 BANKS. For the purposes of Section 362.107.2(4), RSMo Supp. 1971, which establishes a minimum distance between a drive-in facility of a bank and a main banking house of another banking institution, the distance between the bank facility and the competing main banking house should be measured along the shortest and straight line from the building of the main banking house devoted to banking activity to the building of the facility devoted to the banking activities permitted to be conducted at a facility.
157-72 June 19 Opinion letter to Dr. Arthur L. Mallory
158-72 May 31 Opinion letter to Dr. Arthur L. Mallory
159-72 May 25 Opinion letter to the Honorable James C. Kirkpatrick
160-72 May 18 Opinion letter to the Honorable James C. Kirkpatrick
161-72 May 24 Opinion letter to the Honorable A. Basey Vanlandingham
165-72     Withdrawn
171-72 June 23 TAXATION (INTANGIBLE).
CONSTITUTIONAL LAW.
House Bill No. 537 does not violate the provisions of Article X of the Missouri Constitution and is therefore not unconstitutional.
172-72 July 5 COUNTY HOSPITALS. A county hospital organized under the provisions of Sections 205.160, RSMo 1969 et seq., has authority to furnish food at cost to certain "shut-ins".
173-72 Nov 8    Opinion letter to William G. Brooks
174-72 June 23 Opinion letter to Dr. Arthur L. Mallory
175-72 June 21 ELECTIONS.
POLITICAL PARTIES.
The American Party is not a “political party” on a statewide basis in Missouri and therefore cannot nominate presidential electors at a convention of such alleged party. It is the further opinion of this office that under Section 120.160, RSMo, a new political party can be formed and presidential electors nominated by filing the required petitions. Such petitions must be filed in the office of the Secretary of State no later than July 31 of even-numbered years.
176-72 Aug 7 CONVICTS.
PRISONERS.
PAROLE & PROBATION.
INTERSTATE COMPACT.
1. A parole hearing may be had before officials of a receiving state pursuant to the Interstate Corrections Compact. 2. The Board of Probation and Parole of the State of Missouri may hold a parole interview or hearing in a state, other than Missouri, for an inmate sentenced to the Missouri Department of Corrections who has been transferred pursuant to the Interstate Corrections Compact. 3. The Director of the Department of Corrections may authorize the removal to the State of Missouri, for a parole interview or hearing, of an inmate who has been transferred to an institution without the State of Missouri pursuant to the Interstate Corrections Compact. 4. Parole interviews, or hearings, may be held before transfer for those inmates who are transferred to other states pursuant to the Interstate Corrections Compact.
178-72 June 6 Opinion letter to Mr. B. W. Robinson
179-72 June 6 Opinion letter to Mr. Clifford L. Summers
185-72 Sept 15 Opinion letter to Mr. Joseph Jaeger, Jr.
186-72 Oct 24 SCHOOLS.
TEACHERS.
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.
188-72 Nov 16 Opinion letter to Mr. Peter W. Salsich
189-72 July 21 Opinion letter to Mr. Clyde Burch
191-72     Withdrawn
192-72 Aug 16 OFFICERS.
CITY OFFICERS.
COUNTY OFFICERS.
CITY ASSESSOR.
COUNTY ASSESSOR.
CONFLICT OF INTEREST.
1. A person whose name is written in on a ballot at the general election for city assessor in a third class city who receives a majority of the votes cast is elected city assessor. 2. The county assessor in a county of the third class can also hold the office of city assessor in a third class city.
193-72 Nov 9 Opinion letter to the Honorable William H. Bolinger
195-72 Aug 1 Opinion letter to the Honorable William J. Esely
196-72 June 23 Opinion letter to Dr. Arthur L. Mallory
197-72 July 21 DOGS.
ANIMALS.
COUNTY OPTION DOG TAX.
The county dog license fund established under the local option dog tax law (Sections 273.040 to 273.180, RSMo) shall be used only for the purpose of compensating persons who have suffered loss or damage through injury or killing by dogs of any livestock or poultry owned by them and located in said county at the time of such injury or killing.
198-72 July 21 TAXATION.
METROPOLITAN DISTRICT.
ST. LOUIS METROPOLITAN DISTRICT.
The Board of the Metropolitan Zoological Park and Museum District of the City of St. Louis and St. Louis County is not authorized to fix a permanent levy rate under Section 184.350, RSMo, for each of the three subdistricts of such District but is authorized to fix an annual rate varying as may be necessary within the prescribed statutory limits. Such District Board has no regulatory control over subdistrict funds and has no supervisory control over the subdistrict officers, employees or operations. Such Board must honor proper subdistrict vouchers.
199-72     Withdrawn
200-72 Aug 2 Opinion letter to Dr. Arthur L. Mallory
203-72 Dec 4 HATCH ACT.
STATE EMPLOYEES.
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).
205-72 Aug 16 COUNTIES.
COUNTY CHARTER.
COUNTY CLASSIFICATION.
When a second class county which has adopted a charter form of government becomes a first class county it continues as a charter county.
206-72 July 24 Opinion letter to Mr. John T. Wiley
207-72 Nov 1 LIBRARIES.
CITY LIBRARIES.
COUNTY LIBRARIES.
TAXATION (CITIES, TOWNS & VILLAGES).
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.
211-72 Aug 16 ELECTIONS.
CORRUPT PRACTICES.
Section 129.300, RSMo 1969, which requires the identification of persons publishing, circulating or distributing certain printed matter relative to the candidacy of any person seeking nomination or election to any public office applies to pamphlets, circulars, handbills and similar printed matter but does not apply to yard signs.
212-72 Aug 21 CRIMINAL LAW.
CRIMINAL PROCEDURE.
PROBATION & PAROLE.
The cumulative period of both parole and probation of a person convicted of a misdemeanor, granted pursuant to Sections 549.071 and 549.101, RSMo, may not exceed the two year maximum set out in Section 549.071.
213-72 Aug 16 MINING.
COUNTIES.
COUNTY COURT.
LAND RECLAMATION.
The county courts of third and fourth class counties who are conducting surface mining operations are not required to obtain permits under the provisions of Sections 444.760 through 444.786, RSMo Supp. 1971, because they are not "operators" as defined by Section 444.765(5).
216-72 July 25 SECRETARY OF STATE.
INITIATIVE AND REFERENDUM.
CONSTITUTIONAL LAW.
Secretary of State should refuse to issue his certificate when examination of initiative petition shows such petition does not contain a constitutional enactment clause, does not contain a title, does not contain sufficient signatures or if the petition contains more than one amended and revised article of the Constitution or one new article which contains more than one subject. He has no power to determine the validity or genuiness of signatures on such petitions.
218-72 July 26 Opinion letter to the Honorable Robert B. Paden
219-72 Oct 27 CITIES, TOWNS & VILLAGES.
CONSTITUTIONAL CHARTER CITIES.
PENSIONS.
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.
221-72 Dec 13 HATCH ACT.
CITY OFFICER.
STATE EMPLOYEE.
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.
224-72     Withdrawn
227-72 Aug 14 Opinion letter to the Honorable Dan Harmon
228-72 Sept 19 DEAD BODIES.
ANATOMICAL BOARD.
STATE ANATOMICAL BOARD.
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.
231-72 Dec 1 Opinion letter to Mr. G. L. Donahoe
233-72 Oct 24 SCHOOLS.
TEACHERS.
TEACHER TENURE.
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.
234-72 Nov 10 LIBRARIES.
COUNTY LIBRARIES.
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.
237-72 Aug 30 Opinion letter to the Honorable Vic Downing
246-72 Sept 19 Opinion letter to the Honorable Richard E. Martin
247-72 Nov 30 Opinion letter to the Honorable Don Owens
249-72 Sept 27 Opinion letter to Mr. Dexter D. Davis
250-72 Oct 16 POLITICAL PARTIES.
PUBLIC EMPLOYEES.
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.
253-72 Sept 12 GOVERNOR.
CONSTITUTIONAL LAW.
The provisions of section 51, Article IV of the Missouri Constitution, requiring Senate confirmation of gubernatorial appointments, relates only to state executive branch officials.
254-72 Oct 17 ELECTIONS.
NEWSPAPERS.
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.
256-72 Nov 1 LIBRARIES.
NEPOTISM.
COUNTY LIBRARIES.
A judge of the county court violates the prohibition of nepotism contained in Article VII, 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.
257-72 Dec 22 LIBRARIES.
CITY LIBRARIES.
COUNTY LIBRARIES.
With respect to city-county library districts under the provisions of Section 182.291 (Senate Bill No. 583, 76th 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.
258-72 Oct 2 Opinion letter to Honorable William E. Robinson
262-72 Oct 20 ELECTIONS.
ABSENTEE VOTING.
NOTARY PUBLIC.
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.
269-72 Dec 1 SCHOOLS.
TUITION.
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.
271-72 Oct 6 CHARTER COUNTIES.
COUNTIES.
POLICE.
CONSTITUTIONAL LAW.
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, 76th General Assembly, Second Regular Session) are under the provisions of Section 66.250, RSMo (Senate Bill No. 389, 76th 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.
272-72 Dec 11 Opinion letter to the Honorable J. William Holliday
273-72 Oct 4 ELECTIONS.
COUNTY CLERKS.
REGISTRATION.
HOLIDAYS.
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.
274-72 Oct 16 Opinion letter to the Honorable Ralph Combs
276-72 Oct 16 POLICE.
RESIDENCE.
ST. LOUIS CITY.
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.
277-72 Oct 16 RESIDENCE.
ELECTIONS.
ABSENTEE VOTING.
(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 must 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.
280-72 Nov 20 FEES.
COURT COSTS.
CIRCUIT CLERKS.
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, 76th 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.
283-72     Withdrawn
284-72 Oct 25 NOMINATIONS.
ELECTIONS.
CANDIDATES.
SECRETARY OF STATE.
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.
287-72 Nov 9 Opinion letter to Mr. Jack K. Smith
289-72 Nov 3 ELECTIONS.
BALLOTS.
ABSENTEE BALLOTS.
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.
290-72 Dec 4 Opinion letter to Mr. Gary G. Sprick
291-72 Dec 21 Opinion letter to the Honorable Thomas D. Graham
293-72 Dec 13 PENSIONS.
RETIREMENT.
STATE EMPLOYEES.
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, 76th General Assembly as a result of the change in the definition of average compensation in October of 1967.
294-72 Nov 6 ELECTIONS.
ABSENTEE VOTING.
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.
299-72 Nov 21 SHERIFFS.
DEPUTY SHERIFFS.
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.
302-72 Dec 19 GOVERNOR.
EXECUTIVE ORDERS.
MERIT SYSTEM.
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.
304-72 Dec 22 Opinion letter to the Honorable Frank L. Mickelson
305-72 Dec 13 STATE EMPLOYEES.
RETIREMENT.
PENSIONS.
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.
327-72 Dec 29 COUNTIES.
COUNTY CLASSIFICATION.
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.
328-72 Dec 22 LIQUOR.
SUNDAY SALES.
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.