North Dakota Attorney General Opinions

OPINION 76-200 December 3, 1976 (OPINION) Mr. Glenn Dill Attorney at Law Kenmare, ND 58746 Dear Mr. Dill: This is in response to your letter of 24 November 1976 with regard to action taken and to be taken by a Planning Commission and City Council, pursuant to section 40-47-04 of the North Dakota Century Code. You quote that portion of the statute stating: " . . . such notice shall contain a description of any property involved in any zoning change, by street address if streets have been platted or designated in the area affected." You enclose a copy of the published notice g

OPINION 76-46 November 24, 1976 (OPINION) Mr. John E. Jacobson State's Attorney Mercer County Stanton, North Dakota 58571 Dear Mr. Jacobson: This is in reply to your letter of November 17, 1976, relative to section 44-02-08 of the N.D.C.C., as amended in 1975. You state the following facts and questions: "This is to request an official Attorney General's opinion regarding the interpretation of North Dakota Century Code section 44-02-08 as amended in 1975. The question I have regarding that section is as follows: When may an individual elected under that provision of 44-

November 23, 1976 The Honorable Arthur A. Link Governor of North Dakota State Capitol Bismarck, North Dakota Dear Governor Link: This is in reply to your letter of October 19, 1976, relative to a document for receipt of confidential information. You state that before any information is requested and received by your office you request our opinion as to legality under North Dakota law of the documents. Briefly summarized, the request for confidential information was made by a member of your staff to the Bureau of Land Management of the federal government. The information con

November 23, 1976 The Honorable Arthur A. Link Governor of North Dakota State Capitol Bismarck, North Dakota Dear Governor Link: This is in reply to your letter of October 19, 1976, relative to a document for receipt of confidential information. You state that before any information is requested and received by your office you request our opinion as to legality under North Dakota law of the documents. Briefly summarized, the request for confidential information was made by a member of your staff to the Bureau of Land Management of the federal government. The information con

OPINION 76-128 November 23, 1976 (OPINION) Mr. Donavin L. Grenz Emmons County State's Attorney Emmons County Courthouse Linton, North Dakota 58552 Dear Mr. Grenz: To provide a clear record of our answers to your questions, each part of your letter will be quoted and an answer given: (1) Hypothetically assuming that an individual is driving a motor vehicle which he does not own, while in the course of his employment, that the vehicle was registered and licensed outside of the State of North Dakota, and that the temporary North Dakota registration has expired, could the drive

OPINION 76-167 November 19, 1976 (OPINION) Honorable Rolland Redlin State Senator District 5 1005 21st N.W. Minot, North Dakota 58701 Dear Senator Redlin: We are in receipt of your letter dated October 8, 1976. In that letter you set out the following facts and questions: In Trinity Hospital at Minot, North Dakota, there is a small gift shop located on the second floor of the hospital which sells primarily to persons who are visiting patients. Among the gifts handled are reading materials, flowers, candy, and other sundries. Since Sunday afternoon is a most important d

OPINION 76-19 November 15, 1976 (OPINION) Mr. Roger D. Schell Benson and Schell Attorneys at Law Benson Building - 616 Main Street Bottineau, North Dakota 58318 Dear Mr. Schell: This is in response to your letter requesting our opinion in regard to termination of special assessment levies with relation to payment of the obligations for which they were issued. Your questions are stated as follows: "1. If sufficient money is collected on a Special Assessment Project in less time than the assessment period, must the City stop levying assessments for the remaining years? 2.

OPINION 76-187 October 5, 1976 (OPINION) Mr. Arne F. Boyum Rolette County State's Attorney Rolla, ND 58367 Dear Mr. Boyum: This is in response to your letter of August 31, 1976, requesting an opinion on the question of whether the 1975 real estate taxes on the two-story residence in Rolla that is occupied by the Sisters of St. Mary of the Presentation should be abated by the board of county commissioners pursuant to an abatement application submitted by the Sisters' organization. In checking our files we note that two communications have already been issued by this office rel

OPINION 76-191 September 24, 1976 (OPINION) Mr. Byron L. Dorgan North Dakota State Tax Commissioner State Capitol Bismarck, North Dakota 58501 Dear Mr. Dorgan: This is in response to your letter of September 10, 1976, wherein you request an official opinion of this office relative to Section 54-03-20 of the North Dakota Century Code, as amended. You submit the following facts and considerations together with your inquiry: "This is a request for an Attorney General's opinion. A question has arisen as to the treatment for state income tax purposes of the allowance for living

OPINION 76-142 September 7, 1976 (OPINION) Mr. John E. Jacobson State's Attorney Mercer County Stanton, North Dakota 58571 Dear Mr. Jacobson: This is in reply to your letter of August 24, 1976, relative to an opinion issued to the Ramsey County State's Attorney on June 2, 1976, concerning the closing of section line roads. You state the following facts and questions: "In reviewing the opinion above mentioned, I find that Mercer County is also effected. (sic) We are presently involved in a zoning question where in the ANG Coal Gasification Company is requesting a zoning c

OPINION 76-63 August 25, 1976 (OPINION) The Honorable Layton Freborg State Representative Underwood, North Dakota 58576 Dear Representative Freborg: This is in response to your letter of August 7, 1976, wherein you make inquiry of this office relative to composition and powers of a county planning commission as authorized by Section 11-33-04, North Dakota Century Code. You submit the following questions for our response: "Because of my concern for the people of McLean County and because I believe that the intent of the Legislature was that all decisions made at the County l

OPINION 76-157 August 24, 1976 (OPINION) Mr. Albert A. Wolf Wheeler, Wolf, Wefald & Peterson, P.C. Dakota Northwestern Bank Building P.O. Box 773 Bismarck, North Dakota 58501 Dear Mr. Wolf: This is in response to your letter of August 11, 1976, wherein you request an opinion of this office relative to the application and interpretation of Chapter 43-09 of the North Dakota Century Code. You submit the following facts and inquiry in your letter: "At the regular July 13, 1976 meeting the State Electrical Board asked that I request an Attorney General's Opinion as to two questio

OPINION 76-96 August 23, 1976 (OPINION) Mr. LeRoy Anseth State's Attorney Williams County P.O. Box 476 Williston, ND 58801 Dear Mr. Anseth: This is in reply to your letter of August 16, 1976, relative to a vacancy in county office. You state the following facts and questions: The Sheriff of Williams County resigned from his office on July 30, 1976. According to North Dakota Statutes, the position under Section 44-02-02 shall be filled by the Board of County Commissioners. Under Section 44-02-08, the vacancy continues in force until the first general election. Thereaf

OPINION 76-2 August 10, 1976 (OPINION) The Honorable Myron Just Commissioner of Agriculture State Capitol Bismarck, ND 58505 Dear Commissioner Just: This is in reply to your letter of August 2, 1976, wherein you requested opinion as to certain portions of the North Dakota Pesticide Act of 1975, Chapter 4-35 of the North Dakota Century Code. You ask the following question: "Does subsection 3 of 4-35-19 exempt 'persons conducting laboratory-type research using restricted use pesticides and doctors of medicine and doctors of veterinary medicine applying pesticides as drugs or m

OPINION 76-67 August 5, 1976 (OPINION) Mr. Mervin Nordeng Cass County State's Attorney P.O. Box 2806 Fargo, ND 58102 Dear Mr. Nordeng: In your letter of July 8, 1976, you set forth the following: I would like to request your opinion regarding the following situation. The City of Fargo, together with other cities in Cass County, and together with the County of Cass, are investigating the possibilities of establishing some type of an area wide garbage and trash collection system. Such a program is regulated by the powers found in Section 11-11-14(14) and Section 23-29-06 of

OPINION 76-175 August 4, 1976 (OPINION) Mr. Walter Christensen State Treasurer State Capitol Bismarck, ND 58505 Dear Mr. Christensen: This is in reply to your letter of July 2, 1976, regarding the correct method of allocating coal conversion facilities tax revenues under section 57-60-14 of the North Dakota Century Code, insofar as those revenues consist of moneys received for those taxes for which a credit is allowed pursuant to section 57-60-06, N.D.C.C. A cooperative electrical generating plant taxed under chapter 57-60 is given (in section 57-60-06) a credit against that

OPINION 76-183 July 30, 1976 (OPINION) Mr. David L. Drey Office of the States Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Drey: Recently you requested an opinion from this office regarding an interpretation of subsections 6 and 8 of Section 57-02-08 of the North Dakota Century Code. Your request arises from a partial application for abatement and settlement of real estate taxes for the year 1975 filed by the St. Joseph's Hospital Corporation located at Third Street and Fourth Avenue S.E. in Minot, North Dakota. The specific factual circumstances set forth by yo

OPINION 76-111 July 22, 1976 (OPINION) The Honorable Dean Winkjer State Representative, 1st District Box 1261 Williston, ND 58801 Dear Representative Winkjer: This is in reply to your letter of July 19, 1976, relative to an initiated measure to appear on the September Primary Ballot. You state the following facts and questions: "In the past few weeks there has been a great deal of information out from governmental bodies as it relates to the effect of a proposed initiated measure limiting state general fund spending to $332,000,000.00 in the coming biennium. Much of this i

OPINION 76-57 July 19, 1976 (OPINION) Mr. John M. Olson States Attorney Burleigh County Box 1901 Bismarck, ND 58501 RE: Salaries of County Officer, 11-10-10, N.D.C.C. Dear Mr. Olson: This is in reply to your letter of July 8, 1976, relative to the above-captioned section. You have issued an opinion dated July 6, 1976 to the county auditor advising that a retroactive salary payback was proper in view of a special federal census taken in 1975. You ask whether we agree with your opinion. You state the following facts: " . . . a special federal census was conducted in F

OPINION 76-17 July 19, 1976 (OPINION) Mr. Dean Winkjer Representative, District 1 Box 1261 Williston, ND 58801 Dear Representative Winkjer: This is in reply to your letter of June 24, 1976, in which you request the opinion of this office on the question of whether a city operating under a home rule charter may impose levy limitations on real property in excess of those allowed cities which do not operate under home rule charters. We have examined a number of court decisions and legal discussions concerning this subject. Due to the great variety of laws and constitutional p

OPINION 76-102 July 16, 1976 (OPINION) Mr. David Strauss State Executive Director North Dakota Democratic-NPL Party Kennedy Memorial Center 1902 East Divide Avenue Bismarck, ND 58501 Dear Mr. Strauss: This is in response to your letter dated July 13, 1976, requesting an opinion " . . . relative to the legality of the distribution of paper shopping bags in conjunction with Senator Burdick's campaign for reelection to the U.S. Senate." You indicate in your letter that Senator Burdick desires to distribute free paper shopping bags throughout the state during his candidacy.

OPINION 76-49 July 15, 1976 (OPINION) Mr. Ronald G. Splitt LaMoure County States Attorney 19 First Avenue North LaMoure, ND 58458 Dear Mr. Splitt: Recently you requested this office to give its opinion concerning the county's authority to regulate the use of the right of way adjacent to its various county highways, when that use is for a nonhighway function. Specifically, your question stated: "* * * * does the securing of highway easements by LaMoure County enable us to prevent and halt the farming of the land contained in the easement?" Accompanying your request for the

OPINION 76-38 July 2, 1976 (OPINION) Harold G. Vavra, Director Aeronautics Commission Box "U" Bismarck, ND 58505 Dear Mr. Vavra: This is in response to your request for an opinion with regard to a prospective joint county/city airport. You indicate that the city (county seat of the county involved) through the City Airport Authority has determined that the benefits derived from operation of the airport are about 50 percent city and 50 percent county (outside of the county seat city). You indicate that the City Municipal Airport Authority has requested county financial assi

OPINION 76-94 June 23, 1976 (OPINION) The Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58505 Dear Mr. Meier: This is in response to your letter of June 22, 1976, in which you ask if petitions for nomination of candidates in the Primary Election must have a circulator's affidavit attached, such as is required by Section 16-01-11 for initiative, referendum or recall petitions. This matter would appear to be governed by Section 16-04-02 of the N.D.C.C., as amended, which provides in part as follows: Every candidate shall, . . . present to the secretary of st

OPINION 76-146 June 2, 1976 (OPINION) Mr. Neil Thompson Ramsey County State's Attorney Devils Lake, ND 58301 Dear Mr. Thompson: This is in reply to your letter of April 30, 1976 in which you request an opinion from this office on the subject of section lines. You have asked four questions. These are as follows: 1. When a section line road or section line is closed by action of a township board, does the owner thereof get the right to sell the property on each side of the section line within the 33 feet reservation? 2. Can the purchaser thereof obstruct the section line

OPINION 76-178 May 20, 1976 (OPINION) Mr. John F. Burke Walsh County State's Attorney Grafton, ND 58237 Dear Mr. Burke: This is in response to your letter of April 29, 1976 requesting my opinion on the interpretation of the real estate tax exemption for a farm residence that is provided in Subsection 15 of Section 57-02-08 of the North Dakota Century Code. You refer to the definitions of "farm" and of "farmer" that appear in that subsection and to the definition of "tract" that appears in Subsection 3 of Section 57-02-01 and you then state your question as follows: "The ques

OPINION 76-196 May 19, 1976 (OPINION) Mr. Milton O. Lindvig Secretary-Treasurer North Dakota Board of Water Well Contractors State Office Building 900 East Boulevard Bismarck, ND 58501 Dear Mr. Lindvig: This is in response to your letter of May 12, 1976, wherein you inquired of this office whether a water well contractor must secure a bond pursuant to Section 43-35-14 and a separate bond pursuant to Section 43-07-11. You inform us that Section 43-35-14 provides that as a condition to the receipt of a water well driller's certificate, a qualified applicant must execute a sur

OPINION 76-76 May 17, 1976 (OPINION) Murray G. Sagsveen Director, Legal Division State Water Commission 900 East Boulevard Bismarck ND 58505 RE: Your SWC Project #1629 Dear Mr. Sagsveen: This is in response to your request dated April 29, 1976, for an opinion regarding the authority of water management districts to acquire right of entry from landowners for survey purposes pursuant to Chapter 61-16, North Dakota Century Code. You state in your letter the following facts, questions and conclusions: This is a request for an opinion relative to eminent domain authority of

OPINION 76-74 May 17, 1976 (OPINION) Mr. James N. Purdy Dickey County States Attorney Box 697 Ellendale, ND 58436 Dear Mr. Purdy: We are in receipt of your letter of April 28, 1976, in which you inquire if a states attorney is obligated, upon the request of the county Social Service Office to bring an action to establish paternity. This office has consistently held that while a states attorney must furnish, without fee, his legal opinions to county officers on matters pertaining to their duties, he has no obligation to prosecute or defend law suits except as set forth by Sec

OPINION 76-14 May 14, 1976 (OPINION) The Honorable Evan E. Lips State Senator P.O. Box 775 Bismarck, North Dakota 58501 Dear Senator Lips: This is in reply to your letter of April 23, 1976, pertaining to Section 26-17.1-10 of the 1975 Supplement to the North Dakota Century Code. In your letter you state as follows: "I would like an opinion on the definition of Controlled Business as used in Section 16-17.1-10 of the North Dakota Century Code as amended. "Specifically, my question concerns Federal Savings & Loan Associations and State Chartered Savings & Loan Associations

OPINION 76-114 May 11, 1976 (OPINION) The Honorable Walter Christensen State Treasurer State Capitol Bismarck, ND 58505 Dear Mr. Christensen: In your letter of April 13, 1976, you set forth the following: I respectfully request your opinion as to whether or not it is legal for an individual or corporation who holds the necessary legal North Dakota retail alcohol beverage licenses to lease his retail alcohol beverage business including his license to an individual who does not have the proper legal alcohol beverage licenses. While we see no problem with the leasing of the phy

OPINION 76-130 April 29, 1976 (OPINION) Mr. Vern Fahy State Engineer State Water Commission 900 East Boulevard Bismarck ND 58505 RE: SWC Project No. 1595 Dear Mr. Fahy: This is in reply to your letter of April 12, 1976, relative to the relationship between the Public Service Commission and the State Engineer in administering the provisions of Chapters 49-22 and 61-04 of the North Dakota Century Code. You state the following facts and questions: I. "Specific provisions of the 'North Dakota Energy Conversion and Transmission Facility Siting Act', hereinafter referred to

OPINION 76-170 April 27, 1976 (OPINION) The Honorable George Longmire State Senator, 18th District 24 North Fourth Street Grand Forks, ND 58201 Dear Senator Longmire: This is in reply to your letter of April 19, 1976, relative to Chapter 12.1-30 of the N.D.C.C., the Sunday Closing Law. You state the following facts and questions: "Several questions have arisen in Grand Forks regarding the interpretation of Section 12.1-30-03 which provides that the operation of the following business, among others, shall be allowed on Sundays: Grocery stores operated by the owner-manager

OPINION 76-24 April 26, 1976 (OPINION) Mr. Mervin A. Tuntland, Esq. City Attorney City of Underwood Garrison, ND 58540 Dear Mr. Tuntland: This is in response to your letter dated March 16, 1976, wherein our opinion was requested on several matters of law relating to proposed coal mining development near the city of Underwood. Your letter states the following facts and questions: "I am writing you as the City Attorney for the City of Underwood, North Dakota. There is a big vein of coal in the area immediately adjacent to Underwood, and it is expected that within the next fe

OPINION 76-1 April 24, 1976 (OPINION) Honorable Myron Just Commissioner of Agriculture N. D. State Department of Agriculture State Capitol Bismarck, North Dakota 58505 Dear Commissioner Just: We have reviewed Chapter 4-35 of the North Dakota Century Code entitled "North Dakota Pesticide Act of 1975". On the basis of this review we can find no legal impediment which would prevent the state Pesticide Control Board and the State Department of Agriculture from assuming the administration and enforcement of the certification program for pesticide applicators pursuant to Section 4

OPINION 76-60 April 20, 1976 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County Courthouse Minot, North Dakota 58701 Dear Mr. Thomas: This is in response to your letter of March 30, 1976, wherein you request an opinion of this office relative to the direct deposit of net paychecks by county employees through the GEM Federal Credit Union. You submit the following facts and inquiry in your letter: "This office is in receipt of a request for an opinion regarding the direct deposit of net paychecks by Ward County Employees through the GEM Federal Credit Union. 31 US

OPINION 76-5 April 20, 1976 (OPINION) Mr. G. W. Ellwein, Commissioner Department of Banking and Financial Institutions State Capitol Bismarck, ND 58505 Dear Mr. Ellwein: This is in response to your letter of April 5, 1976, in which you advised that a state-chartered bank in North Dakota had recently requested permission to amend its articles of incorporation to include the power to engage in the sale of insurance, and requested answers to the following questions: (1) May a state-chartered bank in North Dakota engage in the business of selling insurance? (2) May the directors

OPINION 76-86 April 9, 1976 (OPINION) Mr. Ben Meier Secretary of State State Capitol Bismarck, ND 58505 Dear Mr. Meier: This is in reply to your letter of February 17, 1976. You refer to Section 74 of the North Dakota Constitution, and you ask whether a person may file a petition of endorsement or a certificate of endorsement for governor with your office without having the name of the lieutenant governor on the same petition or certificate, or, conversely, whether a person may file for lieutenant governor without having obtained a running mate for governor. Section 74 of

OPINION 76-124 March 30, 1976 (OPINION) Mr. Jay A. Palmer District Director United States Department of Justice Immigration and Naturalization Service 932 Post Office Building and Custom House 180 East Kellogg Boulevard St. Paul, MN 55101 Dear Mr. Palmer: RE: Your File SPM 287-C(I)(JPH) Recently your requested this office to issue its opinion regarding the authority of the state and certain law enforcement officers to seize a driver's license issued to illegal aliens. Your questions were: 1. Whether authority exists under North Dakota State laws for seizure of state dr

OPINION 76-42 March 26, 1976 (OPINION) Mr. Duane R. Breitling Ohnstad, Twichell, Breitling, Arntson and Hagen Box 458 West Fargo, ND 58078 Dear Mr. Breitling: This is in response to your letter of February 17, 1976, wherein you request an opinion concerning the procedure to be followed in petitioning for a drainage project consisting of two nonintersecting parallel drainage channels. You submit the following in your letter of inquiry. "This firm represents the Cass County Drain Board. In that regard, we have received a request from property owners in the Leonard, North

OPINION 76-164 March 18, 1976 (OPINION) Mr. Edward J. Klecker Director of Institutions State Capitol Bismarck, North Dakota 58505 Dear Mr. Klecker: This is in reply to your letter of March 12, 1976, relative to residents of the Grafton State School. You state the following facts and questions: "Based on prior legislation, Grafton State School collected as a creditor, for cost of care, from the estates of responsible relatives. However, as recorded in Chapter 245, Volume 1 of the 1975 North Dakota Session Laws, the legislature amended several provisions of the North Dakot

N.D.A.G. Letter to Atkinson (March 5, 1976) March 5, 1976 (OPINION) Honorable Myron Atkinson State Representative 32nd District Box 1176 Bismarck, ND 58501 Dear Representative Atkinson: This is in reply to your letter of February 27, 1976, relative to the North Dakota open meeting statute. You state the following facts and questions: "It appears that on January 22, 1976, a meeting was held of the North Dakota Water Commission in Hazen, North Dakota, for the purpose of transacting business which was pending before it. It appears that all of the members of the commission were present

OPINION 76-28 March 5, 1976 (OPINION) Ms. Janet Sauter, Secretary Public Service Commission State Capitol Bismarck, ND 58505 Dear Ms. Sauter: RE: Section 146 of the North Dakota Constitution You have asked this office to render an opinion concerning the applicability of Section 146 of the Constitution of the state of North Dakota to the ratemaking function through a rate bureau. Section 146 of the North Dakota Constitution provides as follows: Any combination between individuals, corporations, associations, or either having for its object or effect the controlling of the p

OPINION 76-181 February 24, 1976 (OPINION) Mr. Fred A. McKennett City Attorney P.O. Box 1306 Williston, ND 58801 Dear Mr. McKennett: This is in reply to your letter of January 21, 1976, in which you requested my opinion on the question of what constitutes a "project" within the meaning of Section 40-57.1-02, N.D.C.C., insofar as a motel and the ancillary businesses connected with it such as a bar, lounge, restaurant and specialty shops are concerned. You enclosed with your letter another letter you received from an attorney representing a client who is in the process of plann

OPINION 76-104 February 18, 1976 (OPINION) Mr. Richard J. Wolfert State Librarian North Dakota State Library Bismarck, North Dakota 58505 Dear Mr. Wolfert: This is in response to your letter of 9 February 1976, requesting an opinion as to whether certain moneys that may be received by the State Library Commission are "institutional income" within the meaning of Section 54-16-03 of the North Dakota Century Code. You inform us that the State Library Commission functions as a state clearinghouse for selected services to public libraries operated by cities and counties and to lib

OPINION 76-117 February 17, 1976 (OPINION) Mr. Ronald D. Johnson, Chairman North Dakota Board of Examiners in Speech Pathology and Audiology P.O. Box 6001 Fargo, ND 58102 Dear Mr. Johnson: In your letter of November 24, 1975, you set forth the following: As Chairman of the North Dakota Board of Examiners in Speech Pathology and Audiology, I am writing to you concerning two questions which have arisen from questions brought to the Board. The Board has discussed these and felt that a legal opinion from your office was needed before any action could be taken. The first ques

OPINION 76-194 February 12, 1976 (OPINION) Mr. Charles D. Orvik States Attorney Pierce County Courthouse Rugby, ND 58368 Dear Mr. Orvik: This is in reply to your letter of February 6, 1976, relative to Chapter 16-22 of the N.D.C.C., as amended, governing disclosure of financial interests of candidates for public office. You state the following facts and questions: "In accordance with N.D.C.C. 16-22-02, 'every candidate for elective office shall file a statement of interests as required by this chapter.' Thereafter in the same paragraph it sets forth the required time for