Opinion letter to the Honorable James F. McHenry

OFI<'JCF.lS 01•' TUF.l JOHN C. DANFORTH ATTORNEY GENERAL JJ<~Fl<'IOHSOX CITY February 11, 1976 OPINION LETTER NO. 27 Honorable James F. McHenry Prosecuting Attorney Cole County Courthouse Jefferson City, Missouri 65101 Dear Mr. McHenry: This is in response to your request for an opinion from this office as follows: "a. Are there any public disclosure or re- porting requirements for a committee or not- fo:;:-p:;:ofi t corporct L..i.on wh.i.d1 _i._::; .Lurmeu for the purpose of promoting an amendment to the Constitution of Missouri through the initia- tive process, and which does not promote or expend funds to promote any political party . or candidate for office, and, if so, what are they? In this connection it may be assumed · that the committee or corporation would not have any designated poll watchers or canvass- ers at the election. ::r. "b. May a corporation, bank and/or labor or- ganization lawfully make contributions to such a committee or corporation? "c. In view of the pending constitutional challenges in court to the Campaign Finance and Disclosure Law (Proposition No. 1), should law enforcement officials attempt to enforce the provisions of law 'repealed' by the terms of Proposition No. 1 prohibiting corporate con- tributions to committees promoting initi~tive Honorable James F. McHenry drives and imposing disclosure and reporting requirements upon such committees promoting initiative drives? "A number of groups are proposing amendments to the Constitution by the initiative process and some of those groups are proposing of- fices and operations in Cole County. Such groups propose drives to secure voter sig- natures on initiative petitions, and cam- paigns to secure voter approval at an elec- tion if such a proposal is placed on the ballot. Such groups are not connected with any political party nor do they support any individual candidates. Such groups contem- plate raising funds from individuals, and also, if such may be lawfully done, from corporations, banks or labor organizations." You also state in the brief you have submitted with your opin- ion request that: "It is understood that various ~uestions have been raised relative to the consti- tutionality of Proposition No. 1 and that the constitutionality thereof is now sub- ject to pending court action. If Proposi- tion No. 1 is unconstitutional in whole or in part, would this have the effect of re- instating the law presumably repealed? It is noted that Section 18 of Proposition No. 1 is a 'severability' provision. Would this provision have the effect of leaving the prior law in a 'repealed' state in the event of a determination of ·unconstitutionality of the new provisions of Proposition No. 1? The guidance of the Attorney General is requested as to the position which should be taken by Missouri law enforcement officials at present relative to 'enforcing' the provisions of 'law' above noted which preclude contribu- tions by corporations to initiative drives and impose reporting and disclosure require- ments with respect thereto, which presumably have been repealed by Proposition No. 1, but which might be considered reinstated in the event Proposition No. 1 is declared unconsti- tutional by the courts." -2- Honorable James McHenry In response to the first two questions you have submitted, we are enclosing herewith Opinion Letter No. 372 issued December 30, 1974, to Donald L. Manford, in which we stated that, in the absence of exceptional circumstances, this office should defer answering questions concerning the interpretation and requirements of Prop- osition No. 1 since the Missouri Elections Commission is authorized by statute to issue, upon request, opinions upon the requirements of this act and such questions should be submitted to the Commission. We believe your primary question concerns your duty and liabil- ity as a public official in enforcing the provisions of Proposition No. 1 at the present time since you allege that questions have been raised as to the constitutionality of Proposition No. 1 in whole or in part. Every reasonable presumption is made in favor of the constitu- tionality of a statute. Varble v. Whitecotton, 190 S.W.2d 244 (Mo. Bane 1945). In 16 C.J.S. Constitutional Law§ 82 p. 251, it is stated that as a general rule a public official whose rights are not adversely and injuriously affected by the operation of a stat- ute or ordinance, or the particular feature of it complained of, may not raise the question of its constitutionality. Concerning the acts done by public officials under a statute l.::=ti-Pr ,ort1::::l,....c..~ +,-.. hr'. ,.,""',..,,......,.....,....,_~.+- .. .,.J-..:.---1 -'-l-- .......... ,_ ..::_ -J...-.L.-. ... "1 .!.._ .,,... --w--- --------- -- _,_,_ '""'.&..a.'-""-'.a."-"-''-..L.'-""-"'-"-'-"".1.1(,..4...Lf \-J..LC .L..U~C J..o::> Ul-O.L.C\...l ..L.ll ..1..0 C.J.S. Constitutional Law§ 101 p. 480 as follows: " ... ministerial officers are authorized to treat every act of the legislature as prima facie valid, and have been held not liable for any acts committed under an un- constitutional statute because of its un- constitutionality. Also, the rule that an unconstitutional law is a nullity cannot be applied to work hardship and impose liability on a public officer who, in performance of his duty, has acted in good faith in reliance on the validity of a statute before any court has declared it invalid; ... " In State ex rel. Williamson v. County Court of Barry County, 363 S.W.2d 691 (Mo. 1963), the court stated that ordinarily a pub- lic official may not question the constitutionality of a statute as a defense to mandamus to compel him to perform a ministerial duty. We have been unable to find any appellate court decisions in this state directly in point, and we are relying primarily on theory. -3- Honorable James McHenry In Bricker v. Sims, 259 S.W.2d 661 (Tenn. 1953), the court held that even if a city ordinance was unconstitutional, the arresting officers could not be held responsible in damages since they were entitled to act upon the assumption that all public laws and ordinances of munic- ipalities are constitutional. Without deciding whether the ordinance in question was void, the court stated that every act of the legisla- ture is presumptively constitutional until judicially declared other- wise and the oath of office ''to obey the Constitution" means to obey the Constitution, not as the officer decides, but as judicially de- termined. In discussing the general rule that officers are not per- mitted to question the validity of a statute or city ordinance as a general rule, the court stated, l.c. 664: "'"It is certainly true that, under the great weight of authority as estab- lished by our own court, the presumption in favor of the constitutionality of a statute is so binding that the public and individuals are bound to treat it as valid. Hence it follows that the public and in- dividuals are compelled, by judicial con- struction, to assume toward a legislative enactment, precisely the same attitude, whether it be constitutional or unconsti- In Feuchter v. City of St. Louis, 210 S.W.2d 21 (Mo. 1948) con- cerning the liability of public officials in enforcing the law, the court stated, l.c. 25: " . . Public officers are not liable for an error of judgment, in line of their of- ficial duty and within the scope of their authority, resulting in a wrong decision on questions, such as the one in this case, involving the determination of facts and the application thereto of provisions of law. [43 Am.Jur. 84; Sees. 272-275; State ex rel. Funk v. Turner, 328 Mo. 604, 42 S.W.2d 594; State ex rel. Songer v. Fidel- ity & Deposit Co., Mo.Sup., 53 S.W.2d 1036, 85 A.L.R. 955; Pike v. Megoun, 44 Mo. 491.] We hold that defendants cannot be held to any personal liability for leaving to the Courts the final decision of the question in this case, upon which there could rea- sonably have been a difference of opinion, before making substantial payments to plain- tiff out of public funds. The city is not -4- Honorable James McHenry liable in any event because the defendants were acting as public officers in a govern- mental capacity. [State ex rel. Gallagher v. Kansas City, 319 Mo. 705, 7 S.W.2d 357, 59 A.L.R. 95.] ... " It is our opinion that Proposition No. 1, adopted by the voters by initiative petition and which became effective January 1, 1975, is presumptively constitutional and valid at the present and remains so until declared unconstitutional by an appellate court in this state. Enclosure: Op.Ltr.No. 372 12-30-74, Manford Yours very truly, ~,Jc---(~ -5- JOHN C. DANFORTH Attorney General