North Dakota Attorney General Opinions

OPINION 71-300 May 7, 1971 (OPINION) Mr. H. J. Snortland Assistant Superintendent of Public Instruction RE: School District - Revolving Fund - Use This is in reply to your letter of April 29, 1971, in which you state the following facts and questions: "The 1971 session of the legislature passed House Bill No. 1246 which amends section 15-29-13 of the North Dakota Century Code to permit a school board by resolution to establish an incidental revolving fund of $1,000 from which the superintendent or school administrator may draw checks. The bill also amended subsection 4 or s

OPINION 71-475 May 3, 1971 (OPINION) Mr. John O. Garaas State's Attorney Cass County RE: Statutes - Food and Drug Act - Does Not Include Narcotics This is in response to your letter in which you state that on occasions the Police Department has arrested people in possession of drugs, including amphetamines, hallucinogenics and also marijuana. On arrest it has been found that these drugs, including marijuana, were carried in unmarked plastic bags. You then make reference to section 19-02.1-02 and subsections 1 through 14. You further observe that any violation of the aforeme

OPINION 71-349 April 20, 1971 (OPINION) Mr. Ellis Berg Executive Secretary Poultry Improvement Board RE: State - Poultry Improvement Board - Voting Members This is in reply to your letter of April 8, 1971, requesting an official opinion of this office in regard to voting by ex officio members of a board. Your question is stated as: Do ex officio members on a board having voting power n that board if it is not spelled out in the law?" You indicate your reference is to the Poultry Improvement Board law and the changes which will come about July 1, 1971. We assume that your spe

OPINION 71-304 April 19, 1971 (OPINION) Mr. W. P. Sebens Executive Secretary North Dakota State Soil Conservation Committee RE: Soil Conservation Districts - Supervisors - Election This is in reply to your letter of April 6, 1971, requesting an opinion of this office with regard to the effect of House Bill 1215 passed at the recent legislative assembly and approved by the governor changing the method and time of elections of Soil Conservation District supervisors. You indicate that at present the Soil Conservation District supervisors are elected at the regular annual townshi

OPINION 71-153 April 12, 1971 (OPINION) Mr. Thomas F. Kelsch State's Attorney Burleigh County RE: Firearms - Pistols - Licenses This is in reply to your letter of March 9, 1971, wherein you request the opinion of this office relative to certain questions arising out of Chapter 62-01, North Dakota Century Code, pertaining to the licensing of persons to carry pistols or revolvers. You state that several persons have attempted to obtain a license to carry a pistol from the sheriff's office by using for their purpose, self-defense. You also state that the sheriff's office has re

OPINION 71-57 April 8, 1971 (OPINION) Mr. Frank A. Wenstrom President North Dakota Constitutional Convention RE: Constitution - Convention Compensation of Delegates This is in response to your letter in which you state that some of the delegates to the Constitutional Convention are also officials in one form or another of district, county, or other governmental bodies from which they are receiving compensation. You then ask: "May these individuals receive the allowances provided for by law and at the same time continue to receive their regular salaries as officers or employe

OPINION 71-399 April 6, 1971 (OPINION) Mr. Rodney S. Webb State's Attorney Walsh County RE: Taxation - Exemption - Potato Warehouses This is in response to your request for an opinion as to the taxability of potato warehouses which are owned by more than one person or which may be used for manufacturing or commercial operations. You further state that it is your general understanding that potato storage facilities located on individual farmers' premises are probably exempt from taxation. However, you are now running into many variations of ownership and usage. Basically,

OPINION 71-252 April 6, 1971 (OPINION) Mr. Fabian Noack City Attorney Carrington, ND RE: Municipal Industrial Development Act - Projects - Corporate Farming This is in reply to your letter of March 24, 1971, with regard to a Municipal Industrial Development Project. You inform us that the city pursuant to authority contained in Chapter 40-57 of the North Dakota Century Code has passed a preliminary resolution authorizing the issuance of Municipal Industrial Development Act bonds as a vehicle to finance the acquisition, improvements and extension of a cattle feeder lot facili

OPINION 71-130 April 5, 1971 (OPINION) Mr. Maurice E. Cook Acting State's Attorney Slope County RE: Courts - Court Reporter - Employed by Defendant This is in reply to your letter of March 19, 1971, with regard to a court reporter engaged by the defendant in a criminal case. You indicate that in a recent trial of a misdemeanor traffic violation the defendant appeared in court with a court reporter. The court reporter was not requested by the state but brought by the defendant solely for the defendant's purpose. The court permitted the court reporter to take what it is assu

OPINION 71- 338 April 1, 1971 (OPINION) Mr. David L. O'Brien Director North Dakota Park Service RE: State - Park Service - Disposition of Gift This is in reply to your letter of March 15, 1971, with regard to a gift made to the North Dakota Park Service and disposition of same. You inform us that a named individual presented to the Park Service a dedicated gift of shares of stock in corporate entities. You indicate that, as a result of a corporate transaction involving one of the companies whose stock was given and the rising stock market, you wish to convert the stock into

OPINION 71-461 March 31, 1971 (OPINION) Mr. Neil Thompson State's Attorney Devils Lake, North Dakota RE: Townships - Assessors - Abolishment of Office This is in reply to your letter of 25 March 1971 inquiring as to the legal effect of Senate Bill No. 2466 passed as an emergency measure by the Legislative Assembly and duly signed by the governor as of the recent 1971 legislative session. You indicate that the most populous township in your county took action thereunder to abolish the office of assessor at their annual meeting. Your questions are stated as follows: 1. This

OPINION 71-250 March 26, 1971 (OPINION) Mr. Paul A. Muehler Attorney at Law Hankinson, ND RE: Municipal Industrial Development Act - Nursing Homes - Number of Projects This is in reply to your letter indicating that you are acting as city attorney for a city contemplating building a nursing home or having one built and as to various legal ramifications thereof. You indicate that the costs of the nursing home will run between three hundred thousand and three hundred and seventy-five thousand dollars, and that several legal questions have arisen in discussion of the project.

OPINION 71-111 March 26, 1971 (OPINION) Mr. Joseph McIntee State's Attorney McHenry County RE: Counties - Officers - Vacancies This is in response to your request for an opinion concerning the provisions of Section 44-02-04. The facts to be considered are as follows: Mr. John Miller, one of the county commissioners, has been seriously ill since November of 1970. Since then he has been hospitalized at Fargo and at Bottineau where he is presently still hospitalized and still considered seriously ill. He has been unable to serve as a member of the board of county commissio

OPINION 71-198 March 15, 1971 (OPINION) The Honorable I. J. Wilhite, Senator Chairman of Senate Rules Committee North Dakota Legislative Assembly State Capitol RE: Legislature - Senate - Membership - includes vacancies This is in response to your letter in which you observe that the name of Senator Kenneth Lowe has been removed from the Senate roster. You then ask if it still requires 33 votes to satisfy a constitutional two-thirds to amend or repeal a measure approved by the vote of the electors under Section 25 of the North Dakota Constitution. The specific provision is:

OPINION 71-272 March 12, 1971 (OPINION) Mr. Corliss F. Nelson Superintendent of Construction Secretary of State's Office RE: Public Buildings - Bids - Alterations This is in response to your letter in which you ask for an opinion on the following questions: 1. Can a contractor bidding on a state or public project submit his bid and bid security by telegram, assuming the information and requirements are received at the place designated for the opening of bids, and in advance of the time set for opening? 2. Can a formal bid on state or public projects meeting all the requi

OPINION 71-473 March 11, 1971 (OPINION) Mr. Idean M. Locken Attorney at Law Lakota, North Dakota RE: Waters - Management Districts - Protests to Improvements This is in response to your letter of date March 2, 1971, with regard to a flood control project. You indicate that the local county water management district's board of commissioners which you represent has proposed a flood control project to be financed by special assessments under Section 61-16-22 of the 1969 Supplement to the North Dakota Century Code. You indicate that property which will be benefited and thus liab

OPINION 71-159 March 4, 1971 (OPINION) The Honorable Earl H. Redlin State Senator, Twenty-eighth District State Capitol RE: Higher Education - Ellendale - Closing by Legislature This is in reply to your letter of March 3, 1971, relative to House Bill 1001 as amended by the House on pages 545 through 547 of the House Journal. You note the several pieces of legislation, both bills and resolutions, which have been introduced into the Forty-second Legislative Assembly affecting the status of the institution of higher education at Ellendale. You note the effect of the legislati

OPINION 71-93 March 2, 1971 (OPINION) Mr. John O. Garaas State's Attorney Fargo, ND RE: Counties - County Auditor - Term of Office This is in reply to your letter of date 23 February 1971 with regard to the date a newly elected county auditor takes office. You call to our attention the fact that the county auditor, pursuant to section 11-13-01 of the North Dakota Century Code, "shall qualify and enter upon the discharge of the duties of his office on or before the first Monday of April next succeeding his election, or within ten days thereafter." You request our opinion as to

OPINION 71-374 February 24, 1971 (OPINION) The Honorable Myron H. Atkinson, Jr. House of Representatives, District 32 State Capitol RE: Statutes - Initiative and Referendum Petitions - Validity of Sta Regulating Use We have received your inquiry as to the constitutionality of Senate Bill 2067. This bill relates to regulations governing initiative and referendum petitions. This bill among other things proposes to require the Secretary of State to mail questionnaires or contact a certain percentage of the signers to a petition to verify their signature. It also provides that

OPINION 71-391 February 19, 1971 (OPINION) The Honorable Don Halcrow Representative North Dakota Legislative Assembly State Capitol RE: Taxation - Exemption - Farm Buildings This is in response to your letter in which you ask whether or not Senate Bill 2045 excludes farm buildings from taxation as it now exists in the reprinted bill. You also call our attention to lines 26 through 33 on page 2 of the amended bill and ask if this is a proper classification. As to farm buildings and improvements, we issued an opinion to Byron L. Dorgan dated February 12, 1971, wherein we conc

OPINION 71-200 February 18, 1971 (OPINION) The Honorable William L. Guy Governor RE: Legislature - Senate - Special Election to Fill Vacancy This is in response to your letter in which you state: Please advise me if I am required to call a special election to fill the vacancy resulting from the death of State Senator Kenneth C. Lowe. If I am required to call a special election, please advise me of the procedures that should be followed by my office." Senator Kenneth C. Lowe was a holdover senator, and that office would be up for election in the year 1972. Section 16-07-09 pro

OPINION 71-49 February 17, 1971 (OPINION) Mr. Thomas F. Kelsch State's Attorney Burleigh County Courthouse RE: Cities - Special Assessments - Payment When Challenged This is in reply to your letter of date 8 February 1971 with regard to a judgment issued by the Clerk of Court, Fourth Judicial District, Burleigh County, on the fourth day of February, 1971, between 25 named party plaintiffs, and the City of Bismarck; Tom Baker, as City Auditor; and Katie Peterson, as Treasurer of the City Commission, as defendants. Your letter does not go into the factual background of the mat

OPINION 71-389 February 12, 1971 (OPINION) Mr. Byron L. Dorgan Tax Commissioner RE: Taxation - Exemption - Farm Buildings This is in answer to your request for my opinion as to whether Senate Bill 2045 as amended (Senate Journal page 371) and passed by the Senate (Senate Journal page 486) would have the effect, if enacted into law, of repealing the present property tax exemption for farm improvements. Senate Bill 2045 as reprinted incorporates the amendments adopted by the Senate as set out in the Senate Journal page 371. In my opinion, this bill as amended and passed by the S

OPINION 71-48 February 11, 1971 (OPINION) Mr. Herman F. Wegner Wegner, Fraase and Cooke Attorneys at Law Fargo, ND RE: Cities - Special Assessment Commission - City Policeman as Membe This is in reply to your letter of February 4, 1971, with regard to a problem arising out of your functions as city attorney in connection with a Water and Sanitary Sewer project, involving issuance of special improvement warrants, a portion of which will be repaid by special assessment procedures. Your question is stated as whether a man presently serving as the city policeman under a city coun

OPINION 71-102 January 26, 1971 (OPINION) Mr. A. S. Benson State's Attorney Bottineau County RE: Counties - Fairs - Mill Levy for Buildings This is in response to your letter in which you make reference to Section 4-02-32 of the North Dakota Century Code. You further advise that the County Fair Board has met with the Board of County Commissioners and has inquired as to its right to construct a building which would apparently cost in the neighborhood of $30,000 and would include, among other things, bathroom facilities and connection with a sewer line. You then ask the follo

OPINION 71-28 January 19, 1971 (OPINION) Mr. H. L. Thorndahl President The Bank of North Dakota RE: Bank of North Dakota - Judge Christianson Project - Sale This is in response to your letter in which you set forth that the Bank of North Dakota administers the Judge A. M. Christianson project which has assets of approximately $650,000 consisting of several tracts of land in the vicinity of Burlington, North Dakota, contracts for deed on about twenty of the pieces of land in that area, cash, farm home administration loans, and certificates of deposit. You further state that it

LETTER OPINION 71-192 January 18, 1971 (OPINION) The Honorable Don Halcrow House of Representatives Legislative Assembly State Capitol RE: Legislature - Compensation - Increase This is in response to your letter in which you call our attention to House Bill 1144. You then ask: "Is it proper for legislators to increase their own personal remuneration in light of rule 25 of the joint rules of the 42nd legislative assembly and also in light of section 43 of the State Constitution? A written opinion is hereby requested." Section 43 of the North Dakota Constitution provides as

LETTER OPINION 71-181 January 13, 1971 (OPINION) Mr. Leslie O. Ovre Executive Director Public Welfare Board RE: Indians - Jurisdiction - Licensing of Foster Homes This is in reply to your letter of 21 December 1970 requesting clarification of the power and authority of the State of North Dakota on Indian reservations in term of protective services and licensing of foster homes. You inform us that the State of North Dakota provides protective services for abused and neglected children under chapter 50-25 of the North Dakota Century Code and further corrective measures under the

LETTER OPINION 71-383 January 12, 1971 (OPINION) The Honorable E. N. Dornacker House of Representatives North Dakota Legislative Assembly Bismarck, ND RE: Taxation - Assessment - Value at Time of Assessment This is in response to your letter of January 6, 1971, wherein you make inquiry of this office concerning our opinion regarding assessed valuation. You submit the following in your letter: "I would like to have your opinion on the following: Under our laws shall property be assessed at the value of the time it is assessed or on a preceding (sic) 5 years average of its v

OPINION 70-91 December 29, 1970(OPINION) Mr. Dale H. Jensen State's Attorney Burleigh County Courthouse RE: Counties - Commissioners - Portfolio Government This is in response to your letter in which you state as follows: The question has come up with regard to Portfolio Type Government. As you know, Burleigh County elected their commissioners at large and there is a question as to the operation of the County Commission now that there is no longer any districts in Burleigh County. The question for your opinion is, are there any objections to Portfolio Type Government at the county

OPINION 70-104 December 28, 1970(OPINION) Mr. Neil Thompson State's Attorney Ramsey County RE: Counties - Joint Park Districts - Zoning Authority This is in reply to your letter enclosing a letter from the chairman of a joint park board with regard to priority of various governing bodies with regard to zoning, land use and similar regulations. As we understand the background of the problem, it appears from your letter and enclosure that the park board is apparently contemplating acquisition of park property, though apparently the mill levy for same has been defeated, but is expected to

OPINION 70-125 December 18, 1970(OPINION) Mr. Robert D. Hartl Attorney at Law Rugby, ND RE: Counties - State's Attorney - Indian Trial Judge This is in response to your letter in which you state that you have been issued a certificate of election which authorizes you to accept and fulfill the duties of the office of state's attorney in and for Pierce County with the term commencing in January, 1971. You further advise that on November 1, 1970, you commenced another four-year term as trial judge, Bureau of Indian Affairs, Turtle Mountain Indian Reservation, Belcourt, North Dakota. You

OPINION 70-207 December 17, 1970 (OPINION) Mr. George M. Ackre State's Attorney Towner County RE: Marriage - Incest - Adopted Relatives This is in reply to your letter of 9 December 1970 with regard to the application of the incest statutes of this state. Your letter indicates that your request is with regard to the legality of marriages between first cousins within the State of North Dakota where the parties to the marriage are related through adoption wherein one or the other of the first cousins was adopted into the family and no consanguine relationship exists. Your quest

OPINION 70-284 December 4, 1970 (OPINION) Mr. Dennis D. Schulz Secretary-Treasurer N. D. Real Estate Commission RE: Real Estate - Brokers Licenses This is in response to your request for an opinion of this office with regard to the application of section 43-23-05 of the 1969 Supplement to the North Dakota Century Code. You call our particular attention to that portion of the above cited statute providing that: "REAL ESTATE LICENSE REQUIRED. * * * No copartnership, association, or corporation shall be granted a license, unless every member of officer of such copartnership, a

OPINION 70-245 November 30, 1970 (OPINION) The Honorable Earl S. Strinden Representative Grand Forks, ND RE: Municipal Industrial Development Act - Health Facilities - Autho Project This is in response to your letter in which you mention that some local legislators met with hospital officials and discussed ways and means of providing hospital services. Plans were discussed for a new hospital and the question arose whether or not the provisions of Chapter 40-57 would be applicable and available to the city of Grand Forks. You specifically ask for an opinion whether or not th

OPINION 70-23 November 23, 1970 (OPINION) Mr. H. L. Thorndal President The Bank of North Dakota RE: Bank of North Dakota - Small Business Investment Corporation - Ownership of Stock. This is in response to your request for an opinion on the question whether or not the Bank of North Dakota can become a regular stockholder (Section 10-30-06), and if so, could we also be a nonstockholder member? If we could be a stockholder, is there any limit to how much the Bank of North Dakota could invest? $75,000? Another question is: Could a member of our advisory board act as a board member on a

OPINION 70-29 November 12, 19701(OPINION) Mr. G. W. Ellwein Commissioner Department of Banking and Financial Institutions RE: Banks - Municipal Development Act Bonds - Limits on Purchase This is in response to your letter in which you call to our attention to Section 40-57-10 and then ask for an opinion whether or not banks organized and chartered under the laws of this state may purchase revenue bonds issued under the provisions of Chapter 40-57 from more than one issuer as long as each purchase does not exceed 5 percent of their capital. To help clarify the question presented, you g

OPINION 70-112 November 5, 1970(OPINION) Mr. Leo J. Beauclair State's Attorney Barnes County RE: Counties - Officials - Salaries This is in response to your letter in which you state the following: "Several weeks ago, I believe that your office issued an opinion relative to the salaries of county officials as the same will be affected by the Federal Census for 1970. I believe that the opinion states that the officials elected to office in 1970 will not have a salary decrease until another election is held. Is this correct? "In Barnes County we will have a Court of Increased Jurisdic

OPINION 70-40 October 29, 1970(OPINION) Mr. Glenn Dill City Attorney Kenmare, ND RE: Cities - Elections - Polling Places in Precincts This is in reply to your letter of October 26, 1970, in which you state the following facts and questions: "I have been requested by the city council of the City of Kenmare to request an official opinion regarding whether Chapters 4021 and/or 1609 of the North Dakota Century Code require that a polling place for a specific precinct be within that district. "The ordinary polling place for the third ward for the city of Kenmare has been abandoned by th

OPINION 70-309 September 29, 1970 (OPINION) Mr. Curtis Olson State Auditor RE: State - Audits - Nonresident CPA This is in reply to your letter of September 22, 1970, with regard to out-of-state Certified Public Accountants, not certified in North Dakota, auditing counties, cities, and schools in North Dakota. You refer us to chapters 54-10 and 43-02 of the North Dakota Century Code. Section 43-02-17 of the of the North Dakota Century Code makes it a misdemeanor to "Assume to practice as a certified public accountant without first having received a certificate as provided in

OPINION 70-202 October 26, 1970 (OPINION) Mr. Richard J. Wolfert Director State Library Commission RE: Libraries - Service - Financing This is in reply to your letter of October 13, 1970, with regard to library service and financing patterns. You inform us that some North Dakota public libraries supported by city library mill levies currently and traditionally have provided free library service to the residents of the surrounding county or school district rural areas with no tax support directly from these surrounding rural areas so served. You further inform us that some N

OPINION 70-230 October 23, 1970 (OPINION) Mr. Charles Bosch Registrar Motor Vehicle Department RE: Motor Vehicles - Motorcyles - Modification This is in reply to your letter of date october 19, 1970, with regard to the application of section 39-21-45.1 of the 1969 Supplement to the North Dakota Century Code. You indicate you are asking our advice regarding the legality of registering a motorcycle that has been modified by extending the front wheel and front end assembly. You enclose copies of correspondence you have had with regard to a particular situation, and you inform

OPINION 70-345 October 22, 1970 (OPINION) Mr. James E. Sperry Superintendent State Historical Society RE: State - Peace Garden - Responsibility of State Historical Society This is in reply to your letter of October 13, 1970, in effect asking the following questions: 1. Is the State Historical Board, as trustee of the state of North Dakota responsible for the supervision of construction of any buildings constructed upon the International Peace Garden land when the funds therefore have been appropriated by the State Legislature? Is the responsibility the same for buildings

OPINION 71-306 October 22, 1971 (OPINION) Mr. Harold G. Vavra Director Aeronautics Commission RE: State - Aeronautics Commission - Authority This is in response to your letter of October 4, 1971, requesting opinion and certification of this office as to the legal authority and power of the North Dakota Aeronautics Commission with regard to a statewide airport system planning project. We assume that for purposes of this inquiry "airport system planning," means as defined in subdivision 5 of 49 USCA section 1711: * * * the development for planning purposes of information and gu

OPINION 70-115 October 22, 1970(OPINION) Mr. Erwin H. Brendel State's Attorney Renville County RE: Counties - Redistricting - Census Figures This is in reply to your letter of October 15, 1970, with regard to county redistricting as same may affect your county. Your letter states that you have three commissioner districts in the county and, of course, have every intention of complying with the statute. However, due to the fact that the 1970 census did not break down your county's population by township, it makes it difficult for obvious reasons. You suggest that our office has no dou

OPINION 70-319 October 21, 1970 (OPINION) Mr. Lloyd F. Zander Commissioner, Department of Veterans Affairs Fargo, ND RE: State Game and Fish Licenses - Members of Armed Forces This is in reply to your letter of October 14, 1970, relative to section 20-03-05 of the North Dakota Century Code relating to resident licenses which may be issued to servicemen at the discretion of the Commissioner of North Dakota Game and Fish Department. You state the following facts and questions: According to our interpretation, the above section among other provisions gives the State Game and F

OPINION 70-227 October 21, 1970 (OPINION) Mr. Walter R. Hjelle State Highway Commissioner State Highway Department RE: Motor Vehicles - Implied Consent Law - Validity of Arrest at Nig This is in reply to your letter of October 8, 1970, with regard to your administration of the Implied Consent Law as set forth in Chapter 39-20 of the North Dakota Century Code as amended to date. You mention that on numerous occasions the issue has been raised that an arrest made at night for an offense not committed in the officer's presence was not a valid arrest under the provisions of Section