North Dakota Attorney General Opinions

OPINION 74-79 June 27, 1974 (OPINION) Mr. William J. Johnson Larimore City Attorney Northwood, ND 58267 Dear Mr. Johnson: This is in response to your letter of June 11, 1974, stating that you are the city attorney of a named city in this state and are presently meeting with their special assessment board to set the Special Assessments for a specified improvement. You inform us that in approximately September of 1968 the City Council passed a resolution creating the specified street improvement district, enclosing a copy of same. You inform us that in September of 1968 the C

OPINION 74-76 June 27, 1974 (OPINION) Mr. A. S. Benson Attorney at Law 616 Main Street Bottineau, ND 58318 Dear Mr. Benson: This is in reply to your letter of June 10, 1974, in which you state the following: "The Senior Citizens of our community have asked me to write you to obtain an opinion as to whether or not they can borrow in anticipation of a mill levy which was voted and carried in the last election in the City of Bottineau. It is my opinion that they may borrow for one year in anticipation of this levy but not beyond a years time as the statute (sic) seems to be si

OPINION 74-31 June 26, 1974 (OPINION) Mr. R. E. Lommen State Land Commissioner State Land Department Sixth Floor, State Capitol Bismarck, ND 58501 Dear Mr. Lommen: This is in response to your letter of May 31, 1974, wherein your request an opinion of this office relative to a recent land sale of the Board of University and School Lands, conducted by and through the State Land Department and our interpretation of the application of Section 15-06-27 of the North Dakota Century Code. Insofar as your letter of inquiry makes specific mention of said Section 15-06-27 of the Nort

OPINION 74-139 June 13, 1974 (OPINION) Mr. Robert L. Eckert State's Attorney Richland County Wahpeton, ND 58075 Dear Mr. Eckert: This is in reply to your letter of June 6, 1974. You state that the existing Richland County jail which also services prisoners from the City of Wahpeton, North Dakota, will be torn down while a new Richland County - City of Wahpeton Law Enforcement Center will be constructed. You further state that there will be a time lag of about 15 months before a new Richland County Jail will be available. You also state that an agreement has been reached w

OPINION 74-510 May 28, 1974 (OPINION) Mr. John A. Zuger City Attorney P. O. Box 1695 Bismarck, ND 58501 Dear Mr. Zuger: This is in answer to your letter of April 11, 1974, requesting my opinion on the question of how a 47.55 acre tract of hayland annexed by the City of Bismarck should be assessed for property tax purposes because of the 1973 amendment to section 57-02-27, North Dakota Century Code, which added the following language to that section: "Agricultural lands within the corporate limits of a city, whether or not platted, shall constitute agricultural property and b

OPINION 74-302 May 22, 1974 (OPINION) The Honorable Robert Martinson State Representative 32nd District 200 Summit Boulevard No. 39 Bismarck, ND 58501 Dear Representative Martinson: This is in reply to your letter of May 15, 1974, relative to awarding of contracts for a new State Laboratories facility. You enclose a copy of an editorial which appeared in a local newspaper on Monday, May 13, 1974, and, apparently, based upon such editorial, you ask the following questions: 1. Did the apparent renegotiation with bidders in excess of $25,000 constitute a violation of the st

OPINION 74-110 May 22, 1974 (OPINION) Mr. John O. Garaas State's Attorney Cass County 10 1/2 Broadway Fargo, ND 58102 Dear Mr. Garaas: This is in reply to your letter of May 8, 1974, in which you ask whether Cass County could pay for mileage on amount it desires to employees of the county so long as they are not county officials or deputies of county officers, either elective or appointive. You note that section 11-10-15 of the North Dakota Century Code provides that county officials and their deputies can receive 10 cents per mile for motor vehicle travel on county busine

OPINION 74-598 May 21, 1974 (OPINION) Mr. John O. Garaas State's Attorney Cass County 10-1/2 Broadway Fargo, ND 58102 Dear Mr. Garaas: This is in response to your letter of May 10, 1974, wherein you request an opinion of this office relative to zoning powers and authority of townships and the relinquishment of such powers to the county. You submit the following facts and inquiry in your letter: "As I have received a copy of a letter from Lynn E. Erickson, Assistant Attorney General, directed to Mark A. Beardsley, Assistant Planner at R. C. and D. concerning relinquishment

OPINION 74-43 May 15, 1974 (OPINION) Mr. Thomas E. Rutten City Attorney Devils Lake, ND 58301 Dear Mr. Rutten: This is in reply to your letter of March 28, 1974. You request the opinion of this office concerning an apparent conflict between Chapter 40-22 and Chapter 40-31 of the North Dakota Century Code. You further request the advice of this office on whether your city may proceed to reseal streets and assessed adjoining property owners for the costs of resealing had been previously done within the past year. Section 40-22-01 of the North Dakota Century Code provides that

OPINION 74-320 May 13, 1974 (OPINION) Mr. Dennis Schulz, Secretary North Dakota Real Estate Commission Box 727 410 East Thayer Avenue Bismarck, ND 58501 Dear Mr. Schulz: This is in response to your letter of April 22, 1974, wherein you request an opinion of this office relative to section 43-23.1-02 of the North Dakota Century Code, as amended. You submit the following for our consideration: "The North Dakota Real Estate Commission requests an opinion of your office with regard to whether or not out-of-state condominiums offered for sale to residents of North Dakota are r

OPINION 74-249 May 8, 1974 (OPINION) Mr. Paul G. Woutat Attorney Grand Forks County Board of Drainage Commissioners Box 1617 Grand Forks, ND 58201 Dear Mr. Woutat: This is in reply to your letter of May 1, 1974, requesting our opinion on behalf of the Grand Forks County Board of Drainage Commissioners as to their authority under chapter 61-21 of the North Dakota Century Code to acquire wildlife easements incident to the construction of legal drains. You state the following facts and questions: At the present time it is necessary that the Grand Forks County Board of Drain

OPINION 74-560 April 29, 1974 (OPINION) Mr. R. G. Nerison City Attorney P. O. Box 1560 Jamestown, ND 58401 Dear Mr. Nerison: This is in response to your letter of April 10, 1974, requesting an opinion of this office "as to the tax exempt status of certain real property in the City of Jamestown". The following is quoted from your letter: "The real property involved is a portion of the State Office of the North Dakota Conference of the Seventh Day Adventist Church. In addition to the State Offices of the Church, the building houses the North Dakota Bible Book Store which sel

OPINION 74-323 April 23, 1974 (OPINION) Mr. Maurice E. Cook Burne & Cook Attorneys at Law 105 North Main Bowman, ND 58623 Dear Mr. Cook: This is in response to your letter of April 9, 1974, wherein you make inquiry of this office concerning the recordation of deeds containing no description of real property. You submit the following facts and questions in your letter: "The Register of Deeds of Bowman County has handed me a deed which by its terms purports to convey real property, among other things. The deed was presented to the Bowman County Register of Deeds with the

OPINION 74-537 April 19, 1974 (OPINION) Mr. Neil W. Fleming State's Attorney Pembina County P.O. Box 388 Cavalier, ND 58220 Dear Mr. Fleming: This is in answer to your letter of March 7, 1974, formally requesting my opinion regarding the interpretation of Sections 57-02-01(10) and 57-02-08(15) of the North Dakota Century Code. You state that these two provisions appear to be in conflict regarding the taxation of farm residences and the defining of the term "farm", presumably because Section 57-02-01(10) states in part that there shall be "a presumption that a unit of land is

OPINION 74-63 April 17, 1974 (OPINION) The Honorable A. G. Bunker State Representative Legislative District 21 P. O. Box 2664 Fargo, ND 58102 Dear Representative Bunker: On November 15, 1973, this office issued an opinion to you in which we concluded that we were not aware of any authority that would allow a city to levy a local excise tax, not to exceed fifty percent, on the gross sales of liquor sold by alcoholic beverage establishments in that city. During a routine survey of currently licensed alcoholic beverage establishments in the State, it was observed that the city

OPINION 74-391 April 10, 1974 (OPINION) The Honorable M. F. Peterson Superintendent of Public Instruction State Capitol Bismarck, ND 58501 Dear Mr. Peterson: This is in reply to your letter of March 25, 1974, in which you enclose a copy of a letter dated March 22, 1974, from H. C. Gulbrandson, Assistant Superintendent of Schools, Fargo, North Dakota. Mr. Gulbrandson's letter is concerned with State Department of Labor's Minimum Wage Order No. 7 dated January 7, 1974, and effective March 7, 1974. He notes there appears to be a lot of confusion relative to whether or not sc

OPINION 74-606 April 8, 1974 (OPINION) The Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58501 Dear Mr. Meier: This is in reply to your request of date March 22, 1974, for our opinion regarding the disposition of the Financing Statements for the Uniform Commercial Code. You state that under section 41-09-42, section 2 (except as provided under subsection 6) North Dakota Century Code, it is stated that a Financing Statement is effective for five years from the date of filing. The effectiveness of a filed Financing Statement lapses on the expiration of th

OPINION 74-167 April 4, 1974 (OPINION) Mr. John O. Garaas State's Attorney Cass County Fargo, ND 58102 Dear Mr. Garaas: This is in reply to your letter of February 26, 1974, asking for my opinion on the question of whether the Board of County Commissioners of Cass County has authority to employ assistants on behalf of the county to help a special assessor make a reassessment ordered by the board pursuant to section 57-14-08 of the North Dakota Century Code. You advise that the Board of County Commissioners has ordered a reassessment of Barnes Township in Cass County and that

OPINION 74-426 March 27, 1974 (OPINION) Mr. Myron Just Commissioner of Agriculture Department of Agriculture State Capitol Bismarck, North Dakota 58501 Dear Mr. Just: This is in reply to your letter of March 5, 1974, with regard to reports of butchered cattle. You refer us to Section 39-09-15 of the North Dakota Century Code requiring "Butcher to keep record of branded cattle slaughtered by him - Report to Commissioner of Agriculture required." You ask whether this section applies to a custom slaughter operation wherein a private individual brings in an animal, has it slaugh

OPINION 74-366 March 27, 1974 (OPINION) Mr. Erwin H. Brendel State's Attorney Renville County Mohall, ND 58761 Dear Mr. Brendel: This is in reply to your letter of March 12, 1974, in regard to a rural fire protection district. You inform us that recently there was formed a new rural fire protection district headquartered at a named city in the northern party of your county. You state that as far as can be determined, all the preliminaries were properly handled, the notice of hearing was published, the hearing duly held by the Board of County Commissioners and, no one appea

OPINION 74-10 March 18, 1974 (OPINION) The Honorable Jay Schultz State Senator 210 Arikara East Bismarck, ND 58501 Dear Senator Schultz: This is in response to your letter in which you call our attention to Section 6-03-63 of the North Dakota Century Code and Chapter 28-32 of the North Dakota Century Code. You then ask for a formal opinion on the following questions: 1. Is it legal for banking associations in North Dakota to pay more than six percent (6 percent) per annum on deposits? 2. Is the State Banking Board required to follow the Administrative Agencies Practices

OPINION 74-368 March 14, 1974 (OPINION) Mr. Raymond R. Rund State's Attorney Steele County Finley, ND 58230 Dear Mr. Rund: This is in response to your letter of March 4, 1974, in regard to indebtedness of a specified rural fire protection district. You call our attention to the provisions of Section 18-10-08 of the North Dakota Century Code and particularly the sentence thereof providing: "Within the limits herein authorized, the district shall have power to borrow money at a rate not in excess of six percent per annum and to issue appropriate evidence of indebtedness there

OPINION 74-94 March 11, 1974 (OPINION) Mr. W. R. Goulet, Jr. Assistant City Attorney P. O. Box 150 Grafton, ND 58237 RE: Chapter 39-06.1 N.D.C.C. Dear Mr. Goulet: We refer to your request for a legal opinion on the question of whether a prosecutor may compel a person who has been charged with a noncriminal traffic offense to testify at a hearing to determine whether that person committed such offense, or whether such action would constitute a violation of the privilege against self-incrimination. Our opinion is that the privilege against self-incrimination as guaranteed i

OPINION 74-280 March 11, 1974 (OPINION) Mr. Walter Christensen State Treasurer State Capitol Bismarck, ND 58501 Dear Mr. Christensen: This is in response to your letter in which you state the following: "North Dakota Century Code 54-27-19 regarding the Highway Tax Fund Distribution does not outline a specific method for the State Treasurer to use concerning motor vehicle registrations in making a monthly distribution. "It has been the policy of the State Treasurer's office in the past to use the monthly motor vehicle registration figures supplied by the Motor Vehicle Registr

OPINION 74-532 March 6, 1974 (OPINION) Mr. Wayne O. Solberg City Attorney P.O. Box 1897 Fargo, ND 58102 Dear Mr. Solberg: RE: Fargo Parking Authority - Tax Exemption This is in reply to your letter of February 12, 1975, in which you outlined a proposal whereby the Fargo Parking Authority created pursuant to Chapter 40-61 of the North Dakota Century Code, would purchase certain property for use for parking purposes. The authority proposes to lease the property (or enter into a contract for deed) with a private entity whereby the entity would lease at a sum sufficient to mee

OPINION 74-497 March 6, 1974 (OPINION) Mr. Thomas F. Kelsch State's Attorney Burleigh County P. O. Box 1901 Bismarck, ND 58501 Dear Mr. Kelsch: This is in reply to your letter in which you state the following: "Within the past year we have had several cases involving firearms and knives that were used by a defendant in the commission of a crime or were found on the person when he was arrested. In those instances we have requested, pursuant to section 62-04-04, North Dakota Century Code, that the weapon be forfeited. Unfortunately we find no procedure for disposing of th

OPINION 74-180 March 6, 1974 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County Minot, ND 58701 Dear Mr. Thomas: This is in response to your letter of February 25, 1974, with regard to mileage for special service on county welfare board. You call our attention to the provisions of section 11-10-10, subparagraph 5 of the North Dakota Century Code regarding the maximum salary, together with mileage and expenses a county commissioner may receive. You state that this subsection provides in effect that the total shall not exceed $4,800.00 in counties with a population

OPINION 74-101 February 21, 1974 (OPINION) Honorable Ben Meier Secretary of State State Capitol Bismarck, ND 58501 Dear Mr. Meier: This is in response to your letter of 13 February, 1974, requesting an opinion from this office as to whether that sentence referring to fees in section 10-31-13 of the 1973 Supplement to the North Dakota Century Code means that the license fee under section 10-23-07 of the North Dakota Century Code would not be required. Said section 10-31-13 provides: "10-31-13. ANNUAL REPORTS. Each professional corporation organized under this chapter shal

OPINION 74-212 February 19, 1974 (OPINION) Mr. Ben Meier Secretary of State State Capitol Bismarck, ND 58501 Dear Mr. Meier: This is in response to your letter in which you make reference to the Decision of a three judge panel dated January 30, 1974, in the case entitled Chapman et al. v. Ben Meier, Secretary of State, Civil No. 4664. You observe that the Decision did not make any mention as to which legislative districts will be electing senators in the ensuring election. You request an opinion specifically on the question which legislative districts will be electing sena

OPINION 74-59 February 14, 1974 (OPINION) Mr. Donavin L. Grenz City Attorney Linton, ND 58552 Dear Mr. Grenz: This is in response to your letter as City Attorney requesting our opinion on whether it is necessary for an alderman, whose term will not expire at the next municipal election, to resign before he can run for mayor or whether he can run and if elected, then resign his position as alderman. You call to our attention Section 40-08-09 of the North Dakota Century Code, which provides: "40-08-09. RESTRICTIONS ON MEMBERS OF COUNCIL. No member of the city council shall

OPINION 74-162 January 31, 1974 (OPINION) Mr. Walter R. Hjelle State Highway Commissioner State Highway Building Bismarck, ND 58501 Dear Mr. Hjelle: RE: Section 24-05-04.1, N.D.C.C. Equipment Rental Rates This will acknowledge your request for an opinion concerning the above referenced statute. Section 24-05-04.1 was introduced as House Bill 359 in the Forty-first Legislative Assembly and appears as Chapter 263 of the Session Laws of 1969. The Act, including the title reads as follows: Leasing of Political Subdivision's Road Equipment An Act to prevent counties from l

OPINION 74-402 January 24, 1974 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County Courthouse Minot, ND 58701 Dear Mr. Thomas: This is in reply to your letter of January 14, 1974, with regard to fees to be charged by the sheriff. You enclose a letter from the sheriff of your county to your office explaining the details of the problem. Our attention is called to subsection 2 of section 11-15-07 of the 1973 Supplement to the North Dakota Century Code providing: "11-15-07. COUNTY FEES. The sheriff shall charge and collect the following fees on behalf of the coun

OPINION 74-356 January 24, 1974 (OPINION) Mr. Russell W. Stuart Commissioner North Dakota Game and Fish Department Bismarck, ND 58501 Dear Mr. Stuart: This is in reply to your letter of January 14, 1974, with regard to a particular resident hunting license application. You enclose a photocopy of a letter from a named individual stating circumstances and asking a question. You ask whether taking into consideration the language of section 20.1-01-02, subsection 4, of the North Dakota Century Code, is this individual eligible to be classified as a resident hunter in North Dak

OPINION 74-146 January 21, 1974 (OPINION) Mr. Thomas Kelsch State's Attorney Burleigh County Bismarck, ND 58501 Dear Mr. Kelsch: This is in response to your letter in which you state the following: "Due to the energy crisis, the average cost of gasoline in Burleigh County has increased from an average of 36.9 cents in January, 1973, to 50.9 cents as of the past week, with indications that it will be raised even higher. "Burleigh County requires each of the patrol officers in the Sheriff's Department to purchase, maintain and service their own vehicles. The only reimburseme

OPINION 74-472 January 16, 1974 (OPINION) Mr. Rich Slagle Executive Director North Dakota Beef Commission 107 South Fifth Street Bismarck, North Dakota 58501 Dear Mr. Slagle: This is in response to your letter of January 9, 1974, wherein you request an opinion concerning the North Dakota Beef Promotion Act, found in Chapter 4-34 of the North Dakota Century Code, as amended. You submit the following facts and inquiry in your letter: "According to this Act, not less than 50 percent of assessments collected shall go to the National Live Stock and Meat Board and no less than 25

LETTER OPINION 74-423 January 14, 1974 (OPINION) The Honorable Edward Metzger State Representative 410 Shady Lane Bismarck, North Dakota 58501 Dear Representative Metzger: This is in response to your letter in which you state the following: "I have been requested by one of my constituents to request the opinion of your office on the following legal questions: 1. Is a Special Assistant Attorney General appointed to your office to represent an agency of the state, and to be paid by the funds of that state agency, exempt from the provisions of 54-06-10 N.D.C.C.? 2. Is a mem

LETTER OPINION 74-20 January 10, 1974 (OPINION) Mr. R. E. Lommen State Land Commissioner State Capitol Bismarck, ND 58501 Dear Mr. Lommen: This is in reply to your letter dated November 15, 1973, in which you inquire as to whether or not the securities held for investments can be sold at a loss and reinvested in order to obtain a higher yield on the investments for the common schools and other institutions. In your letter you state: "During the 1969 Legislature, Senate Concurrent Resolution No. 62 was introduced for the purpose of amending sections 153 and 156 and repealin

January 4, 1978 The Honorable M. F. Peterson Superintendent of Pubilc instruction State Capito! Bismarck, North Dakota 5850! Dear Mr. Peterson: This Is In reply to your letter of December 21, 1973, in which you request an opinion relative to the status of a guidance counselor in teacher negotiation processes. You state the following facts and questions: "Section 1$-39.1-04 defines 2 teacher for purposes of the Teachers' Fund for Retirement and lists nearly everyone engaged in education with the exception of counselors. Librarlans, supervisors, and special teachers are mentioned. “Section

OPINION 73-46 December 18, 1973 (OPINION) Mr. Lester J. Trnka Attorney at Law Box 88 Oakes, ND 58474 Dear Mr. Trnka: This is in reply to your letter of December 6, 1973, with regard to the office of city treasurer. You state that you note that under Section 40-14-01 of the North Dakota Century Code, as amended by the 1973 Legislature, that municipalities no longer elect a treasurer. You state further that you are writing to us on behalf of the City Council of a named city, to raise the question as to whether or not they can have a treasurer if they so desire. You state the

OPINION 73-377 December 11, 1973 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County Minot, ND 59701 Dear Mr. Thomas: This is in reply to your letter of December 4, 1973, in which you enclosed a copy of a letter addressed to your office on November 29, 1973, by Dr. Marlowe Johnson, Superintendent of Minot Public Schools. You ask this office to render an opinion as to whether or not the State of North Dakota can deduct from payments that would otherwise be made to the City of Minot School Board District because of the fact they are receiving PL 973 impact funds. Dr.

OPINION 73-41 November 30, 1973 (OPINION) Mr. S. Lee Vinje City Attorney Goose River Bank Building Mayville, ND 58257 Dear Mr. Vinje: This is in response to your letter in which you ask for an opinion on the following: "The City of Mayville is presently seeking annexation by resolution of an area considered to be contiguous to the City. The area sought to be annexed contains a number of residential homes privately platted as 'Westwood Acres.' In addition to this portion, the area sought to be annexed contains a golf course owned by the Mayville City Park Board and a school

OPINION 73-488 November 28, 1973 (OPINION) Dr. N. G. S. Rao State Toxicologist State University Station Fargo, ND 58102 Dear Doctor Rao: This office is in receipt of a letter from Vernon Pederson, Special Assistant Attorney General, State Highway Department, dated November 21, 1973, which reads as follows: "In establishing the office of State Toxicologist in 1961, the Legislature stated in Section 15-12-21 that it was 'for the purpose of providing toxicological services to any person or the state or any political subdivision utilizing such services.' "In 1967 the Legislatur

OPINION 73-62 November 15, 1973 (OPINION) The Honorable A. G. Bunker State Representative Legislative District 21 State of North Dakota P. O. Box 2664 Fargo, ND 58102 Dear Representative Bunker: This is in reply to your letter of October 31, 1973, wherein you make reference to a recently adopted ordinance of a named city which ordinance enacts a gross excise sales tax of 50 percent, not to exceed $1,000 on sales paid by a liquor store in that city. You asked whether such a tax would be legal under current law. We are not familiar with the ordinance in question, and therefo

OPINION 73-547 November 5, 1973 (OPINION) Mr. John A. Zuger City Attorney City of Bismarck P.O. Box 1695 Bismarck, ND 58501 Dear Mr. Zuger: This is in response to your letter of September 1973, in regard to the taxation of leaseholds under the Municipal Industrial Development Act of 1955, as amended. You inform us that your city has pending applications by two groups of developers to use the MIDA. You state that the Act classified the leasehold as personal property, with the intent, you believe, to subject it to taxation as the lessee's interest in the project except as an

OPINION 73-17 October 23, 1973 (OPINION) Mr. R. E. Lommen State Land Commissioner State Capitol Bismarck, ND 58501 Dear Mr. Lommen: This is in response to your letter in which you state the following: "On July 26, 1973, the Board of University and School Lands held its last meeting. At that meeting the Board discussed the current rate of interest charged on farm loans and the possibility that the rate might go higher in the future. Several members did not like locking in the interest rate charged on farm loans at 7 percent or 7 1/2 percent for a period of thirty years. I

OPINION 73-618 October 9, 1973 (OPINION) The Honorable Arthur A. Link Governor State Capitol Bismarck, ND 58501 Dear Governor Link: This is in reply to your letter of September 18, 1973, relative to the appropriation for the Souris-Red-Rainy project. You state the following facts and questions: "House Bill 1015 (Chapter 15, 1973 Session Laws) provided a line item appropriation of $60,000 for state participation in the Souris-Red-Rainy project. The Souris-Red-Rainy River Basins Commission terminated on June 30, 1973, by operation of Section 7 of Executive Order No. 11359

OPINION 73-418 October 9, 1973 (OPINION) Mr. James O. Fine Executive Director Department of Vocational Rehabilitation P. O. Box 1037 Bismarck, ND 58501 Dear Mr. Fine: This is in reply to your letter of September 28, 1973, relative to certain contracts between the Secretary of Health, Education and Welfare and the Division of Vocational Rehabilitation. You state the following facts and questions: "Chapter 383 of the 1973 Session Laws transferred the responsibility for the State Division of Vocational Rehabilitation from the State Board of Public School Education to the So