North Dakota Attorney General Opinions

OPINION 72-468 June 9, 1972 (OPINION) Mr. Rodney S. Webb State's Attorney Walsh County RE: Usury - Exemptions - PCA This is in response to your letter in which you call our attention to the Farm Credit Act of 1971 and then make reference to the opinion of this office dated March 1, 1972, in which we stated that it was our understanding that the P.C.A. is not an instrumentality of the United States Government. You ask us in view of this additional information to review the previous question, and issue an opinion on the question whether or not production credit associations ar

OPINION 72-452 June 9, 1972 (OPINION) Mr. Byron L. Dorgan Commissioner State Tax Department RE: Taxation - Special Fuel Refund - Time for Filing This is in response to your letter in which you state the following: "On May 18, 1972, the Tax Department received a claim for a refund of special fuels tax for fuel purchased in 1971. Since the claim was filed after the deadline of March 31, 1972, as provided in section 57-50-03, we rejected this claim on May 22, 1972. Since that time officials from Kidder County have contacted this department and advise me that the late filing

OPINION 72-352 June 2, 1972 (OPINION) Mr. Al Bumann Secretary Public Service Commission RE: State - Public Service Commission - Safety Jurisdiction This is in response to your request for an opinion of this office as to what the jurisdiction of the Public Service Commission of this state is in relation to safety practices relating to railroad facilities, equipment, rolling stock and operation in the State of North Dakota and as to the Commission's ability to conduct investigative and surveillance activities relating thereto. The North Dakota Public Service Commission, (former

OPINION 72-237 May 26, 1972 (OPINION) Mr. Charles Bosch Motor Vehicle Registrar RE: Motor Vehicles - Registrar - Branch Office Contract This is in reply to your letter of May 24, 1972, in which you enclosed a proprosed contract to be executed by the various managers of the several branch offices of this State. You state the contract includes the various recommendations made in the recent audits of the State Bank Examiner and the State Auditor. You ask us to review the proposed agreement as to form and substance to determine if it is in conformity with section 39-02-03 of th

OPINION 72-238 May 23, 1972 (OPINION) Honorable Peter S. Hilleboe State Representative Fargo, ND RE: Motor Vehicles - Registrar - Status of Branch Offices This is in reply to your letter of May 18, 1972, in which you state the following facts and questions: "Pursuant to a Motion passed at a special meeting of the Legislative Audit and Fiscal Review Committee in Fargo on May 17, 1972, it is requested that your office issue an opinion at your earliest convenience, answering the following questions: 1. The Motor Vehicle Registrar is authorized under section 37-02-03 (sic) of

OPINION 72-356 May 22, 1972 (OPINION) Mr. Robert P. Brady Assistant Attorney General State Capitol RE: State - Safety Responsibility - Information Confidential This is in response to your letter of April 26, 1972, wherein you make inquiry of this office relative to accident reports and inspection thereof. You submit the following observations and inquiry in your letter: The undersigned acting director of the North Dakota Unsatisfied Judgment Fund respectfully requests your opinion with regard to the following matter: Subsection 1 of section 39-08-14, North Dakota Century Co

OPINION 72-94 May 15, 1972 (OPINION) Mr. Wayne P. Jones Assistant States Attorney Ransom County RE: Counties - County Judge - Records This is in response to your letter in which you state that the County Judge of Ransom County has made inquiry as to the keeping of certain records. You further state that you have researched the question, but are unable to find an answer for him. You call to our attention Chapter 301 of the 1971 Session Laws which among other things repeals section 27-07-32 of the North Dakota Century Code. You then ask for an opinion whether or not the re

OPINION 72-316 May 15, 1972 (OPINION) Mr. W. Van Heuvelen Executive Officer State Department of Health RE: State - Fire Marshal - Hospitals This is in response to your letter in which you state the following: "The Social Security Administration, which administers the Medicare program nationwide, has designated the National Fire Protection Associations's Life Safety Code, 1967 Fire Protection Association's Life Safety Code, 1967 revision (commonly referred to as NFPA No. 101, 1967) as the basis for surveying hospitals from the fire safety point of view. They have requested a

OPINION 72-365 May 10, 1972 (OPINION) Mr. John A. Zuger City Attorney Bismarck, ND RE: State - Uniform Relocation Assistance Act - Compliance This is in reply to your letter of March 24, 1972, requesting an opinion of this office regarding the ability of the state of North Dakota to comply with the legal requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646; 42 USC 4601). You call our attention to the effect of same and of specific provisions thereof. You enclose a copy of a legal opinion prepared by the Office o

OPINION 72-286 May 1, 1972 (OPINION) Mr. Dennis D. Schulz Secretary-Treasurer North Dakota Real Estate Commission RE: Real Estate - Brokers Licenses This is in reply to your letter of April 11, 1972, requesting an opinion of this office with regard to the interpretation of Section 43-23-14 of the 1971 supplement to the North Dakota Century Code. As you indicate this statute provides: “43-23-14. FUND HANDLING BY BROKER.--Every real estate broker or mortgage broker as herein defined shall remit immedia

OPINION 72-379 April 26, 1972 (OPINION) Mr. John O. Garaas State's Attorney Fargo, ND RE: Sunday - Closing Statutes - Interpretation This is in response to your letter of April 17, 1972, wherein you make inquiry of this office regarding the Sunday closing statute. You submit the following in your letter: We request your opinion of the correct interpretation of subsection 28 of North Dakota Century Code section 12-21.1-04. This statute provides as follows: 1. Notwithstanding any other provisions of this chapter, the operation of any of the following businesses shall be allo

OPINION 72-400 April 21, 1972 (OPINION) The Honorable William L. Guy Governor RE: Signal Oil and Gas Company v. Williams County This is in response to your letter in which you ask that we join with the Tax Department to evaluate the impact of the Court's ruling in the above matter in terms of diminished tax collections and also what legal steps might be taken to remedy any tax loss which would result from this decision of it is upheld by the Supreme Court. You specifically ask for an opinion as to whether the new Constitution if adopted on April 28 would permit the next session

OPINION 72-43 April 20, 1972 (OPINION) Mr. John C. Haugland City Attorney Devils Lake, ND RE: Cities - Initiated Ordinances - Validity This is in response to your letter of April 11, 1972, enclosing an initiated ordinance of your city that was passed by a majority of the electorate of your city voting on the matter on the April 14, 1972, election. You indicate that you would appreciate our reviewing the ordinance and advising whether in our opinion the ordinance is legal and whether the city commission is obligated to abide by same, taking into consideration all of the other

OPINION 72-147 April 17, 1972 (OPINION) The Honorable Ben Meier Secretary of State RE: Elections - Residency Requirements - Constitutionality This is in response to your request for an opinion as to the status of the North Dakota residency requirements as defined by Section 16-01-03 of the North Dakota Century Code in light of the recent Supreme Court decision negating such statutes. The residency requirements in North Dakota are found in Article 40 of the North Dakota Constitution and in Section 16-01-03. Article 40 provides as follows: "North Dakota: Every qualified elec

OPINION 72-137 April 12, 1972 (OPINION) The Honorable Ben Meier Secretary of State RE: Elections - Absent Voters - Application Forms This is in response to your letter in which you request an opinion on the following question: "Whether a voter wishing to use an absentee ballot may make use of the application form published in newspapers as an alternative to requesting such form from their county auditor." North Dakota has provided for an absentee ballot for a great number of years with the obvious purpose of making the elective franchise available to all who are entitled to vo

OPINION 72-325 March 29, 1972 (OPINION) Mr. Tor A. Hegland Executive Director North Dakota Public Employees Retirement System RE: State - Group Health Insurance - Contributions This is in response to your letter in which you ask for an Attorney General's Opinion on the following question: Where a husband wife are both 'eligible employees' under N.D.C.C. section 54-52.1-01(1) and one has directly requested enrollment with his employing department and has elected to include his spouse within the optional family coverage under the Uniform Group Insurance Program, does the statut

OPINION 72-437 March 24, 1972 (OPINION) Mr. Byron L. Dorgan State Tax Commissioner RE: Taxation - Refunds - Motor Vehicle Fuel Tax This is in response to your letter in which you state that the Tax Department is faced with uncertainties in the application of Section 57-50-05.1 of the North Dakota Century Code relating to claims for refunds of taxes paid on motor fuel. You ask for an opinion "whether the work performed by the subcontractor is 'paid for from public funds' within the meaning of Section 57-50-05.1 so as to prohibit payment by the state of any refund of motor vehic

OPINION 72-150 March 8, 1972 (OPINION) The Honorable Ben Meier Secretary of State RE: Elections - Special Elections - Publishing of Ballot This is in response to your letter in which you state that some concern has been expressed over the special election that is scheduled to be held on April 28 and the required legal publication of the sample ballot, etc. The concern relates to the time schedule of the legal publication and apparently arises from the fact that the election is held on Friday, whereas normally the elections are held on Tuesday, and from the fact that many of t

OPINION 72-114 March 8, 1972 (OPINION) Mr. Thomas E. Rutten Assistant State's Attorney Ramsey County RE: Counties - Park Levy - Suspension of Township Levy This is in response to your letter in which you state that you have been requested to ask for an opinion on the question whether or not a park levy made by a township located within a tri-county park district continues or is automatically suspended when the tri-county park district imposes a park levy. Section 11-28-06 authorizes the county commissioners to levy a tax not to exceed one-half mill without approval of the vote

OPINION 72-384 March 2, 1972 (OPINION) Mr. Jerome Jaynes State's Attorney Grant County RE: Taxation - Assessors - Election This is in response to your letter in which you state the following: "The Grant County Director of Tax Equalization asks two questions relating to property tax administration which are of statewide interest. I would like to present them to you with a request for an official opinion. "The first question has to do with the election or appointment of an assessor for an unorganized territory as set forth in Section 57-02-33 of the North Dakota Century Code.

OPINION 72-287 March 1, 1972 (OPINION) Mr. Rodney S. Webb State's Attorney Walsh County RE: Real Estate - Mortgages - Rate of Interest This is in response to your letter in which you ask for an opinion on the following questions: 1. May a mortgage on real property be recorded, in the state of North Dakota, which does not contain a stated rates of interest? 2. Are Production Credit Associations exempted from the provision of the Usury Laws specified in Chapter 47-14 of the North Dakota Century Code?" For our benefit you have furnished us with a copy of the mortgage form

OPINION 72-119 March 1, 1972 (OPINION) Mr. Vincent A. LaQua State's Attorney Wells County RE: Counties - Redistricting - Completion This is in reply to your letter of December 21, 1971, with regard to redistricting problems in your county. You inform us that your county formed a County Redistricting Board pursuant to Section 11-07-01 of the 1971 Supplement to the North Dakota Century Code. You inform us that each township took its own census, as did each city, as of April 1, 1970. You indicate that based on said census, two proposed plans were presented at Public Hearing af

OPINION 72-441 February 24, 1972 (OPINION) Mr. Byron L. Dorgan State Tax Commissioner RE: Taxation - Sales Tax - Indian Reservations This is in response to your letter in which you state that uncertainties exist whether or not retailers located within the boundaries of an Indian reservation must charge sales tax on some or all of the retail sales made by them and pay the tax to the state. You then ask for an opinion on the following questions: 1. Is a non-Indian retailer whose place of business is located within the boundaries of an Indian reservation and on 'trust land,' as

OPINION 72-276 February 24, 1972 (OPINION) Mr. Dale W. Moench City Attorney Dickinson, ND RE: Public Recreation System - Mill Levy - Election This is in reply to your letter of February 4, 1972, with regard to the application of sections 40-55-08 and 40-55-09 of the North Dakota Century Code to a contemplated city park district recreation system. You indicate petitions are being circulated in your community with regard to the above. You state there is no public recreation system in the community at present and that the question thus arises as to whether or not the mill levy

OPINION 72-78 February 23, 1972 (OPINION) Mr. Robert Eckert State's Attorney of Richland County and President of State's Attorney's Association RE: Coroners - State's Attorney's Inquest - Open to Public This is in response to your request for an opinion whether or not a state's attorney's inquiry under section 11-19A-09 of the North Dakota Century Code is or is not a public hearing. This question involves the confrontation between two contentious theories - the one is the so-called right to know and the other is the protection of the individual. Both positions are well meanin

OPINION 72-177 February 23, 1972 (OPINION) Mr. Walter Hjelle State Highway Commissioner RE: Highways - Revenues - Use This is in response to your letter in which you state that North Dakota State University recently completed and published an "Attitude and Perception Study of Rural North Dakota." Excerpts from such publication are attached to your letter. You then state that this prompts you to further explore the possibility of finding a solution to this problem, and for this reason you request an opinion based on the following: Section 24-02-37 requires that all funds ap

OPINION 72-322 February 9, 1972 (OPINION) Mr. Walter R. Fiedler Director of Institutions RE: State - Grafton State School Patient Records - Confidentiality This is in reply to your letter received by this office dated January 31, 1972, with regard to confidentiality of patient records maintained by the Grafton State School. You indicate that the records involved are those contained in a "clinical" file would indicate that same contains various medical, psychological, sociological, educational, familial and individual information about the specific patient concerned, and that th

OPINION 72-388 February 4, 1972 (OPINION) Mr. John A. Zuger City Attorney Bismarck, ND RE: Taxation - Exemption - County Housing Authority This is in reply to your letter of January 21, 1972, requesting our opinion as to whether or not the Burleigh County Housing Authority, as the owner of real property in the City of Bismarck, would qualify for any of the exemptions from real property taxation. You point out that Section 57-0208 (2) provides an exemption for property belonging to a county. Section 23-11-29 of the 1971 Supplement to the North Dakota Century Code provides: "2

OPINION 72-86 February 3, 1972 (OPINION) The Honorable Ben Meier Secretary of State RE: Corporations - Profit - Amendment of Articles This is in response to your letter in which you state the following: We herewith request your opinion on the following question: May a corporation organized for profit under N.D.C.C. Chapter 10-19 become a nonprofit corporation through amendment of its original articles of incorporation. In considering this question special attention should be given to sections 10-19-01, 02-03 and 58. "It is our thought that such an amendment is prohibited by s

OPINION 72-6 February 3, 1972 (OPINION) Mr. Leland R. Miller Dairy Commissioner Department of Agriculture RE: Agriculture - Livestock Dealers Bond - Coverage This is in reply to your letter of January 10, 1972, enclosing a copy of a letter from the Area Supervisor of the United States Department of Agriculture Packers and Stockyards Administration of date January 5, 1972, with regard to the coverage of the North Dakota Livestock Dealers Bond. It appears from same that the Office of the General Counsel for the Department of Agriculture is of the opinion that the North Dakota L

OPINION 72-337 February 1, 1972 (OPINION) Mr. Ronald A. LaCouture Acting Executive Director Midwestern Board for Medical and Allied Education RE: State - Medical and Allied Education Board - Acceptance of Grant This is in response to your letter of January 14, 1972, wherein you make inquiry of this office requesting a letter from this office stating that the Midwestern Board of Medical and Allied Education has the authority to receive and accept grants of money, either public or private. You state that such a letter is needed to prepare a request for funds from private found

OPINION 72-243 January 20, 1972 (OPINION) Mr. Charles Bosch Registrar Motor Vehicle Department RE: Motor Vehicles - Snowmobiles - Definition This is in response to your letter in which you refer to a vehicle described as an "all terrain type. You also call our attention to the statutory definition found in subsection 2 of section 39-24-01 defining what constitutes a snowmobile. You further observe that the vehicle is amphibious in nature and would seem that registration would sanction its use the year around in various lakes and water courses of the state, as well as on pu

OPINION 72-387 January 19, 1972 (OPINION) Mr. John T. Paulson Attorney at Law Valley City, ND RE: Taxation - Delinquent Personal Property Taxes - Publication This is in response to your letter in which you note that Section 57-22-02.1 of the North Dakota Century Code requires publication of such personal property taxes which are delinquent. You also state that it is your feeling that the auditor would have to publish the list, as long as these taxes are not canceled by commissioners. You then ask for an opinion on this matter. Section 57-22-02.1 as amended remains in full

LETTER OPINION 72-334 January 13, 1972 (OPINION) Mr. James E. Sperry Superintendent State Historical Society RE: State - Historical Society - Disposition of Funds This is in reply to your letter of December 13, 1971, with regard to disposition of an item of funds on hand. You indicate that under paragraph III.3 of the past audit of the State Historical Society from July 1, 1970, to June 30, 1971, the recommendation was made that "an Attorney General's opinion should be obtained on the Seventh U. S. Cavalry Custer Memorial Association C. D. No. 3857 for $4,014.34 to determine

LETTER OPINION 72-360 January 10, 1972 (OPINION) Mr. John Greenslit State Liaison Officer North Dakota State Recreation Agency RE: State - Uniform Relocation Assistance Act - Compliance This is in reply to your letter of December 10, 1971, with regard to the application of Pub. L. 91-646, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, to activities of this state and particularly your agency. You enclose a memorandum from the United States Department of the Interior, Bureau of Outdoor Recreation, and call our specific attention to the ques

LETTER OPINION 72-64 January 6, 1972 (OPINION) Mr. Dean F. Bard Executive Director North Dakota Constitutional Convention RE: Constitution - Convention - Publication This is in response to your letter in which you state that a question has arisen concerning the requirements for the publication of the convention's final product prior to the time it will be voted upon by the people. In this respect you call our attention to certain provisions of Chapter 462 of the 1969 Session Laws as amended by Chapter 526 of the 1971 Session Laws. You also call our attention to the last se

LETTER OPINION 72-235 January 6, 1972 (OPINION) Mr. Fred A. McKennett City Attorney Williston, ND 58801 RE: Motor Vehicles - Operator's License - Not Necessary on Private P This is in response to your letter in which you state that the city is currently in the process of promulgating an ordinance controlling the operation of snowmobiles within the city limits. You ask the following question: "Is it necessary for an operator of a snowmobile upon private property to have a valid North Dakota Motor Vehicle Operator's license in his possession?" You also ask in regard to the

OPINION 71-448 December 31, 1971 (OPINION) Mr. Byron L. Dorgan Tax Commissioner RE: Taxation - Sales Tax - Newspaper or Magazine This is in response to your letter in which you ask for an opinion whether or not the official publication of the Farmers Educational and Cooperative Union of America, North Dakota Division, which is circulated monthly and entitled, "North Dakota Union Farmer" is, for sales and use tax purposes, a newspaper rather than a magazine or other periodical. You also submitted the following for our information in resolving the question: 1. A copy of the N

OPINION 71-298 December 27, 1971 (OPINION) Mr. John O. Garaas State's Attorney Cass County RE: School Districts - Funds - Investment This is in response to your letter in which you ask for an opinion whether or not a school district can place its funds with a savings and loan association in the state of North Dakota. You also call our attention to section 21-04-05 and to section 7-04-09. You further state that the question is prompted as the as the result of an audit by the State Auditor's Office involving a school district in Cass County. Basically state agencies, depart

OPINION 71-187 December 16, 1971 (OPINION) Mr. Leslie O. Ovre Executive Director Department of Social Services RE: Indians - Jurisdiction - State Youth Authority This is in response to your letter of December 2, 1971, with regard to Indian jurisdiction matters. You call to our attention the provisions of Chapter 27-21 of the 1971 Supplement to the North Dakota Century Code with regard to creation of the State Youth Authority within the Public Welfare Board (now Social Services Board), and such State Youth Authority's powers and duties. You mention that under the provisions of

OPINION 71-405 December 13, 1971 (OPINION) Mr. Bert L. Wilson, Jr. State's Attorney Burke County RE: Taxation - Mobile Homes - No Proration or Refund This is in response to your letter in which you state the following facts: A certain party bought a mobile home to be occupied as a residence and taxed under 57-55, paying the first installment in January, 1971, receiving a temporary decal. In July of the year he traded his mobile home for another with a licensed mobile home dealer and attached the new home to a permanent foundation on land owned by him which will now be asses

OPINION 71-83 December 3, 1971 (OPINION) Mr. Vincent A. LaQua State's Attorney Wells County RE: Coroners - State's Attorneys Inquests - Transcript This is in response to your letter in which you state that you held a State's Attorney's inquest concerning the death of two persons in a two-car automobile accident. You further advise that one of the drivers was represented by an attorney and the testimony of witnesses was reduced in writing by a court reporter. The advisory jury concluded that the driver represented by legal counsel should not be charged with any criminal vio

OPINION 71-261 November 30, 1971 (OPINION) Colonel Ralph M. Wood Superintendent North Dakota Highway Patrol RE: Notary Public - Oaths - Defined This is in reply to your letter of November 23, 1971, in which you request our opinion on the following: It has been brought to my attention that two cases which involve drivers suspended for refusal to take a chemical test for intoxication have had their licenses reinstated, for the reason that the officer that signed the affidavit was improperly sworn. In these two cases the officer signed the affidavit before a notary but was not

OPINION 71-354 November 23, 1971 (OPINION) Mr. Victor Abraham Bank Examiner Department of Banking and Financial Institutions RE: State - Retirement System - Officer of Employee This is in response to your request for an opinion whether or not you are to be considered an employee or an appointive official under the North Dakota Employees Retirement Act. The specific provision and the retirement act which has application in this instance is section 54-52-01(2) and it provides as follows: 'Eligible employee' shall mean all permanent employees who meet all of the eligibility re

November 22, 1971 TAXATION - MULTISTATE COMPACT - EFFECT Mr. Byron L. Dorgan Tax Commissioner This is in response to your letter in which you state that as a result of the enactment of Chapter 57-59 (Multistate Tax Compact) the state of North Dakota has become a member of the Multistate Tax Commission. The requisite number of states (minimum of seven) as provided for in Article X of the Compact having enacted the same law, the provisions of the Multistate Tax Compact are now in full force and effect. In reality, twenty-two states have now enacted the same law. Article VIII of the Compact provi

OPINION 71-39 November 12, 1971 (OPINION) The Honorable Bernice Asbridge State Treasurer RE: Cities - Distribution of Tax Funds - Dissolution This is in reply to your letter of November 9, 1971, concerning the distribution of the Highway Tax Fund and the Cigarette Tax. You state the following facts and questions: "According to the North Dakota Century Code, the State Treasurer is directed to distribute the Highway Tax Fund (Section 54-27-19) monthly, and the Cigarette Tax (Section 57-36-31) semiannually on a per capita basis to incorporated cities. "As of November 1, 1971,

OPINION 71-424 November 9, 1971 (OPINION) Mr. Thomas Kelsch State's Attorney Burleigh County RE: Taxation - Personal Property Replacement - Reduction of Levies This is in response to your letter in which you state that some questions have come up as to the manner in which the county auditors shall apply the provisions of Section 57-58-01.1. You stated the questions as follows: 1. Does Section 57-58-01.1 apply in a case where the 1971 bonded indebtedness levy of a political subdivision is for retirement of a bond issue that was approved by the voters at an election that wa