The Conservation Commission may not pay a final judgment for actual or punitive damages obtained against one of its enforcement officers as a result of his conduct while he was in the actual performance of his enforcement duties.

STATE EMPLOYEES: TORT DEFENSE FUND: CONSERVATION COMMISSION: a result of his conduct while his enforcement duties. The Conservation Commission may not pay a final judgment for actual or punitive damages obtained against one of its enforcement officers as he was in the actual performance of OPINION NO. 21 January 29, 1975 Mr. Carl R. Noren , Director Department of Conservation Post Office Box 180 F \LED AI ,. - Jefferson City, Missouri 65101 Dear Mr. Noren: This letter is in response to your opinion request in which you ask: "May the Conservation Commission pay a fi- nal judgment for actual and punitive damages obtained against one of its enforcement of- ficers as a result of his conduct while he was in the actual performance of his enforce- ment duties?" Because of the divergent nature of actual and punitive dam- ages, we will consider this as a request wh1ch asks two question, to-wit: I. May the Conservation Commission pay a fi- nal judgment for actual damages incurred by one of its enforcement officers in the performance of his duties? II. May the Conservation Commission pay a fi - nal judgment for punitive damages incurred · by one of its enforcement officers in the performance of his duties? At the outset, it should be noted that this op1n1on deals only with the situation where the judgment obtained was rendered Mr. Carl R. Noren in a civil cause brought against the agent and not against the Department of Conservation. I. The Missouri legislature, by the enactment of the "Tort De- fense Fund" (Sections 105.710, et seq., RSMo Supp. 1973), has de- termined that the state will reimburse certain agents or officers for certain final judgments obtained against them for acts per- formed in connection with their official duties. Prior to the 1973 revision, Section 105.710 (1) read as follows: "As part of the compensation to be paid to the director of the department of correc- tions, the direction of the division of health, the director of the division of mental diseases and other officers, em- ployees and agents of the department of corrections, the division of health and the division of mental diseases the comp- troller is authorized to pay from the 'Tort Defense Fund', which is hereby created, all final judgments awarded in courts of com- petent jurisdiction to any claimant against the aforesaid officers, employees, and agents, for acts arising out of and performed in con- nection with their official duties in behalf of the state. Payment shall be limited to a maximum of one hundred thousand dollars for all claims arising out of the same act ex- cept that no payment shall be made for any claim which arises because of or in connec- tion with the operation of a motor vehicle either privately or publicly owned." This subsection did not name the Missouri Conservation Com- mission as one of the agencies entitled to participate in the "Tort Defense Fund." Instead, it specifically enumerated the Department of Corrections and Divisions of Health and Mental Dis- eases as those agencies to benefit from its coverage. In 1973 this subsection was amended to read as follows: "1. As part of the compensation to be paid to the director of the department of correc- tions, the director of the de~artment of pub- 11c health and welfare, the d1rector of the division of health, the director of the divi- sion of welfare, the curators and regents of -2- Mr. Carl R. Noren public institutions of higher education which award baccalaureate degrees, the di- rector of the division of mental health, the adjutant general and other officers, employees and agents of the department of corrections, the division of health, the division of welfare, and the division of mental health, and members of the Missouri national guard while on active duty for the state of Missouri, the comptroller is authorized to pay from the 'Tort Defense Fund', which is hereby created, all final judgments awarded in courts of competent jurisdiction to any claimant against the aforesaid officers, employees, agents, and members of the Missouri national guard, for acts arising out of and performed in con- nection with their official duties in behalf of the state. Payment shall be limited to a maximum of one hundred thousand dollars for all claims arising out of the same act, except that no payment shall be made for any claim which arises because of or in con- nection with the operation of a motor vehi- cle either privately or publicly owned." (emphasis added) Again, in this revision, employees of the Missouri Conservation Commission were not named to receive the benefit of its coverage. It is a general principle of statutory construction that the mention of one thing implies the exclusion of another. (For an exhaustive annotation on this "rule of exclusion," see: 73 Am.Jur.2d Statutes §212 and the citations collected thereunder.) As exceptions in a statute strengthen the force of law in cases not excepted, so enumerations weaken it in cases not enumerated. Marx & Haas Jeans Clothing Co. v. Watson, 67 S.W. 391 (Mo.Banc 1902). Hence, a statute which mandates a thing to be done in a given manner or by certain persons or entities normally implies that it shall not be done in any other manner or by any other persons or entities. Botany Worsted Mills v. United States, 278 u.s. 282, 49 s.ct. 129, 73 L.Ed. 379 (1929). Although this rule of exclusion is not a rule of law, it does provide the preferred construction of a statute where its coverage is specifically ex- tended to certain persons, classes, or entities by enumeration. State v. Bengsch, 70 S.W. 710 (Mo.Banc 1902); Citizens' Nat. Bank of Kansas City v. Graham, 48 S.W. 910 (Mo.Banc 1898); Henderson v. Koenig, 68 s.w. 72 (Mo.Banc 1902). -3- Mr. Carl R. Noren It is submitted that, from the plain language of Sections 105.710, et seq., that it was the clear intent of the legisla- ture to give only those agencies named in subsection (1) the privilege of reimbursing their officers and agents for success- ful tort judgments obtained against them. This contention is supported not only by the rule of exclusion, but also by the 1973 revision of that subsection which enlarged the group of agencies covered by the fund, yet continued to enumerate the individual entities so named. Therefore, it seems apparent that to extend the coverage of the Tort Defense Fund would be unwar- ranted and contrary to the obvious legislative intent expressed in enacting this law. Because of this, it is the opinion of this office that the Missouri Conservation Commission, not being within the state's Tort Defense Fund, may not reimburse its agents or officers for an actual damage judgment obtained against them for their acts in connection with the performance of their duties. II. The second question posed in this inquiry need not be reach- ed since the contentions asserted in Part I of this opinion would preclude the Conservation Commission from paying a punitive darn- age award obtained against one of its enforcement agents for his acts in connection with the performance of his duties. Further, even assuming, arguendo, that the Conservation Commission could pay a judgment under the provisions of the "Tort Defense Fund," this office has explicitly held that punitive damages could not be paid from this fund, as such payment would violate public pol- icy (Attorney General's Opinion Letter No. 46, Sartorius, May 28, 1974). CONCLUSION Therefore, it is the opinion of this office that the Con- servation Commissfon may not pay a final judgment for actual or punitive damages obtained against one of its enforcement officers as a result of his· conduct while he was in the actual performance of his enforcement ·duties. The foregoing opinion, which I hereby approve, was prepared by my assistant, Timothy Verhagen. Enclosure: Op. Ltr. No. 46 5-28-74, Sartorius Yours very truly, ~.0--t'~ -4- JOHN C. DANFORTH Attorney General