Missouri Advisory Opinions January 01, 1968: MO Att. Gen. Op. 48-68

Advisory Opinion Text

January 30, 1968

Honorable Daniel R. Ferry
Prosecuting Attorney
Vernon County Courthouse
Nevada, Missouri 64772

Dear Mr. Ferry:

This opinion is prepared to answer your six questions which you submitted on the application of the laws involving the registration of voters in cities over 7,000 and less than 10,000 population, as provided in Chapter 116, RSMo 1959 as amended. The questions which you submitted are set out below:

"1. When must the registration process be commenced and completed?"

"2. If a special election is called before registration is completed, what procedure is to be followed?"

"3. Does registration apply to all city, county, school and township elections, as well as to state and federal elections?"

"4. Under Section 116;050 must all temporary registration offices be open at the same time, or may such offices be scheduled for different times at different locations?"

"5. Who determines the size and boundaries of voting precincts or places within the city?"

"6. How are persons who are: residents of a nursing home or hospital; unable physically to attend the place of registration; or who are outside the city and not able to be physically present to register enabled to register if otherwise qualified, and seek, request or desire to register as a voter?"

Your first question on when the registration process should be commenced and completed is not clearly answered by the statute itself. Analysis of the applicable laws clearly establishes that this is a so-called "local option law" which the citizens of a city with a population between 7,000 and 10,000 can adopt as they wish. A discussion on the time local option laws take effect is found in Section 402 on "Statutes," 82 C.J.S. 970, where it states:

"The suspended provisions of a local option law will not be in force in any particular locality until all the steps required by statute have been taken."

"The language of an act affecting only particular subdivisions of a state must, with respect to the time it takes effect, be strictly followed, as where, by the terms of a statute, a question affecting only a particular subdivision of the state is authorized or directed to be submitted to the votes of such subdivision, or the application of a general law to particular localities is suspended until adopted in such localities by popular vote or the decision of some local government body, and the suspended provisions will not be in force in such locality until all the steps required by the statute have been taken. As a general rule, when a canvassing board to which is committed the duty of determining the result of such election decides that the provisions of the statute have been adopted, such decision is final and conclusive, and the courts are without authority to inquire whether all who participated in the election were legally qualified voters."

We find the Supreme Court En Banc in the case of State ex rel Pedrolie v. Kirby, 163 S.W.2d 964, held generally, that a law became effective when adopted and approved. You advised us that the law was voted upon by the people on April 4, 1967, and by a majority vote of the qualified electors of Nevada, the electorate adopted registration at such election.

Section 116.060, RSMo 1959, provides that:

"Within twenty days after the last day of the first general registration herein provided for, the county clerk shall cause the . . . affidavits of registration to be arranged into permanent binders."

Under Section 116.050, RSMo 1959, the county clerk is charged with arranging for registration places in Nevada, giving notice in the daily paper of their location places of temporary registration and the dates the places of registration will be opened to the public. The expenses of the initial registration are borne by the county court (Section 116.050, supra). The action should be taken as soon as possible after the registration has been voted upon and passed by the electorate of the citizens of Nevada. Under Section 116.030, RSMo 1959, the county clerk is in charge of such general registration and of all subsequent individual registrations provided for under Chapter 116. We hold, therefore, that when the people of Nevada adopted the registration laws provided under Chapter 116, they did so on April 4, by voting for the law, and it is the duty of the county clerk to initiate the registration of the citizens of Nevada as noted above, within a reasonable time after such election.

Your second question, involving the possibility of a special election that could be called before the registration is completed, is not considered at this time. Since this is a hypothetical question and no specific election is contemplated, we cannot consider your second question at this time.

Your third question, whether registration applied to all city, county, school and township elections as well as to state and federal elections, is so broad and general in its application that we are unable to precisely determine your exact question and the nature of its application. We, therefore, will not attempt to answer your question until such time as a special problem develops with respect to registration in Nevada and its application to a particular election.

Your fourth question is answered by stating that under Section 116.050, RSMo 1959, the county clerk designates not more than 27 places for registration in the first general registration and not more than 5 places for registration during any subsequent rush periods, as in his judgment such additional places are necessary, indicates that the number of places for general registration are left to his discretion. Further in said section, it provides that such temporary registration places may be kept open between the hours of 8:00 a.m., and 9:00 p.m. We hold that Section 116.050, RSMo 1959, left to the discretion and judgment of the county clerk the number of places to be open for the first general registration and the times that such individual, offices are scheduled to be open.

Your fifth question is answered by Section 116.140, RSMo 1959, where it says that the city council may provide voting precincts in the ward. The wards, of course, are defined by the city council.

Your sixth question, on the registration of those physically unable to go to the places of registration because of illness, etc., does not appear to have been directly provided for by statute. It does provide for registering of voters at the office of the county clerk and at the temporary places provided for by Section 116.050, RSMo 1959. Generally speaking, the statutes do not provide for the registration of ill or physically disabled voters, as has been done in other chapters.

Section 116.050, RSMo 1959, does not impose a mandatory duty upon the county clerk to hold special registration, as the provisions of the above section are directory. It has been left to the discretion of the clerk as to whether he will or will not hold special registrations. In the event he elects to hold the registrations, then the statute does require the county clerk to provide for and give notice of the time and place or places of registration, by notice published in a daily paper in any such city, of the selection and location of such places of such temporary registration, and the dates for which the places will be open for the convenience of the voters (Section 116.050, RSMo 1959).

In view of these facts and the provisions of Section 116.050, RSMo 1959, it is believed that the kind of notice given to the prospective registrants informing them of the time and place of the registration, will be sufficient notice within the meaning of the statute.

There is no prohibition under the statute that would keep the county clerk from designating one or more of these homes where the ill may presently be confined, as a place of registration, providing the requirements of Section 116.050, are complied with.

Accordingly, while there is no specific provision with respect to registering the physically infirm who cannot register in the usual manner, we see nothing that would prohibit the designation of one or more of the hospitals or institutions where the physically disabled may be, as places of registration, providing Section 116.050, RSMo 1959, is complied with.

It is the opinion of this office that in cities between 7,000 and 10,000 which have adopted the provisions of Chapter 116 RSMo:

1. The registration process should be commenced with a view to completion as soon after the election as it can reasonably be accomplished.

2. Under Section 116.050, RSMo 1959, the temporary places of registration are left to the discretion of the county clerk, providing they are operated within the period of time and manner specified by statute.

3. Pursuant to Section 116.110, RSMo 1959, the city council determines the size and boundary of the voting precincts within the city.

4. In order to register, the voters must register in the office of the county clerk or at such other places of temporary registration as may be provided for from time to time, under Section 116.050, RSMo 1959.

5. The county clerk, in his discretion, may designate various places of temporary registration - and providing there is compliance with Section 116.050, RSMo 1959 - such temporary places are appropriate places of registration. There would be no reason why an institution or other place where physically infirm or disabled voters are maintained, could not be designated as a place of temporary registration, provided the requirements of Section 116.050, RSMo 1959, are complied with. In this fashion those persons within the institution could be registered.

The foregoing opinion, which I hereby approve, was prepared by my assistant Richard C. Ashby.

Very truly yours,

Norman H. Anderson
Attorney General