North Dakota Attorney General Opinions

OPINION 70-138 September 28, 1970(OPINION) The Honorable Ben Meier Secretary of State RE: Elections - Ballots - Primary Loser Not On General Election Ball This is in response to your request for an opinion whether or not under the laws of the State of North Dakota you may accept the certificate of nomination in behalf of C. Warner Litten and place his name on the general election ballot for the office of State Senator from the Twenty-first Legislative District. The facts to be considered are that C. Warner Litten was a candidate for nomination as State Senator from the Twenty-first Legi

OPINION 70-216 September 25, 1970 (OPINION) Mr. Bernard Larsen Director, Commission on Alcoholism State Capitol RE: Mental Health - Commitment - Procedure This is in reply to your letter of September 22, 1970, in which you state the following facts and questions: We frequently are asked about the correct procedure for having an alcoholic committed for treatment and also whether or not an alcoholic can be committed to a facility other than the State Hospital such as the Heartview Foundation in Mandan. There also seems to be considerable discrepancy in the way commitment proced

OPINION 70-266 September 21, 1970 (OPINION) Mr. Al Doerr Secretary State Board of Pharmacy Bismarck, ND RE: Pharmacists - Prescriptions - Ownership Dear Mr. Doerr: This is in reply to your letter of September 11, 1970, relative to ownership of prescriptions. You state the following facts and questions: Of late this office has been approached on the question of the ownership of a prescription (the physician's order). Once a doctor has written a prescription or an order and hands it to his patient has he lost all control of that order? In turn the patient hands this presc

OPINION 70-89 September 16, 1970(OPINION) Mr. Eugene Kruger States Attorney Cass County RE: Counties - Cemetery Maintenance - Obligatory This is in reply to your letter of September 8, 1970, with regard to the sale of the county farm. You inform us that adjacent to the property offered for sale is the county hospital. Three cemeteries are located upon the property offered for sale, which were established by the county for the burial of deceased patients from the hospital. One of these cemeteries continues to be used for this purpose. You letter further indicates that in the bid speci

OPINION 70-61 September 16, 1970(OPINION) The Honorable Ben Meier Secretary of State Bismarck, ND RE: Constitution - Convention - Election of Delegates This is in response to your request for an opinion on the following matter: "Chapter 462 of the 1969 Session Laws relating to the State Constitutional Convention provides in part that a person who desires to be a delegate to the Constitutional Convention may file a nominating petition with the Secretary of State not less than thirty days before the next general election to have their name placed on the ballot. Thirty days before the gen

OPINION 70-210 September 14, 1970 (OPINION) Mr. Richard B. Bear Assistant States Attorney Bismarck, North Dakota RE: Mental Health - Commitment - Procedure Your letter of August 26, 1970, with regard to mental health board procedures was referred to my desk for the necessary attention and reply. It points out that our statutes provide for commitment of individuals to a state institution or other suitable place. It further mentions that there are two procedures under Chapter 25-03, emergency hospitalization and involuntary hospitalization. It indicates that the latter proc

OPINION 70-142 September 14, 1970 (OPINION) The Honorable Ed Doherty State Senator, Thirteenth District New Rockford, ND RE: Elections - Campaign Expenses - Statement Not Required This is in reply to your letter of September 10, 1970, in which you set forth the following facts and questions: "It is my understanding that, according to Section 16-20-04, N.D.C.C., it is no longer necessary for candidates for public office in North Dakota to file a statement of moneys expended, contributed or promised with a county or state official. "It appears the old law making such a require

OPINION 70-107 September 14, 1970(OPINION) Mr. Vincent A. LaQua State's Attorney Wells County RE: Counties - Mental Health Levy - Elimination This is in reply to your letter of September 10, 1970, in which you set forth the following facts and questions: "The voters in the General Election will be voting on a levy not to exceed three-quarters of a mill for Mental Health Service Units. "If the measure passes and in years to come if there is dissatisfaction with the program: "1. Can the Board of County Commissioners eliminate the three-quarter mill levy on their own prerogative byres

OPINION 70-5 September 11, 1970 (OPINION) Mr. Glenn Dill Assistant State's Attorney Ward County Courthouse RE: Ambulances - Tax Levy - Not Excess Levy This is in reply to your letter of September 4, 1970, relative to a mill levy for ambulance service. You state the following facts and questions: "I have been requested by the Board of County Commissioners of Ward County to request an official opinion regarding whether sections 57-15-50 and 57-15-51 of the North Dakota Century Code contain authorizations for a levy for city or county ambulance which are over and above the basic mill le

OPINION 70-99 September 10, 1970(OPINION) Mr. Leo J. Beauclair State's Attorney Barnes County RE: Counties - Court of Increased Jurisdiction - Election of County This is in response to your letter in which you state that the question of whether or not the county court should be given increased jurisdiction was favorably voted upon by the electorate in the election held on September 1. You then make the following observations: "Since Section 27-08-04 provides that the change in the jurisdiction of the court becomes effective upon 'the expiration of the t

OPINION 70-152 September 10, 1970 (OPINION) Mr. M. C. Hiaasen State's Attorney Benson County RE: Elections - Vacancy on General Election Ballot - Nomination Decl This is in response to your letter in which you state the following: "One Joe Chaske of Fort Totten, North Dakota filed petitions to get on the ballot for sheriff. After the ballot was printed, he called at the Benson County Farmers Press office and stated he was no longer a candidate for sheriff. I am enclosing the writeup by the Benson County Farmers Press stating that Mr. Chaske was no longer a candidate. Ther

OPINION 70-295 September 2, 1970 (OPINION) The Honorable Earl H. Redlin State Senator Twenty-eighth District Ellendale, ND RE: School Districts - Fees - Validity This is in reply to your letter of August 25, 1970, relative to the following facts and questions: Enclosed find fee schedule for the 1970-71 Ellendale Public School year. The local school has tried unsuccessfully twice, to pass a mill levy increase. It is the opinion by some that this fee schedule is to circumvent the inability of the school to pass the levy. I have been requested by interested patrons whether a

OPINION 70-67 August 31, 1970(OPINION) Mr. R. J. Bloedau Republican Chairman of the 38th Legislative District Mott, ND RE: Constitution - Convention - Legislators May Be Delegates This is in response to your request for an opinion on the following questions: 1. Are members of the Forty-first Legislative Assembly eligible to be elected or to serve in the proposed constitutional convention? 2 Could senators and representatives elected to serve in the Forty-second Session which will convene in January be eligible delegates to the proposed constitutional convention? You call our attention to

OPINION 70-22 August 24, 1970 BANK OF NORTH DAKOTA - REFERRAL OF BUILDING - EXPLANATION OF VOTE Mr. Dale H. Jensen States Attorney Bismarck, North Dakota This is in reply to your letter of 24 August 1970, with regard to Measure No. 1, a referral on a building that would be added to the Capitol and would house the North Dakota State Bank Building. You indicate that you would appreciate our clarifying what a yes vote or a no vote on Measure No. 1 would do. We are enclosing herewith Xerox copy of the Secretary of State’s notification to county auditors of the measures to be submitted to t

OPINION 70-290 August 19, 1970 (OPINION) Mr. Leslie R. Burgum Assistant State's Attorney Jamestown, ND RE: Real Estate - Recording of Deeds - State Deed Need Not Be Acknow This is in response to your letter of August 10, 1970, with regard to the interpretation of section 47-19-02 of the North Dakota Century Code. You indicate that the register of deeds of your county is concerned about this statute and has raised the question as to whether or not deeds issued by the state of North Dakota, signed by the Governor and attested by the Secretary of State with the Great Seal affixed

OPINION 70-2 August 18, 1970 (OPINION) Mr. Gerald Rustad Assistant State's Attorney Williams County RE: Alcoholic Beverages - County License Fees - Amount This is in reply to your letter of August 7, 1970, wherein you request an opinion on Section 5-02-03 of the North Dakota Century Code which section concerns itself with the establishment of local license fees for alcoholic beverage licenses. You ask the following question: May the board of County Commissioners by resolution set the annual local license fees at varying amounts for the various establishments throughout the county?"

OPINION 70-188 August 14, 1970 (OPINION) Mr. J. M. Glaser Deputy Commissioner Labor Department RE: Labor - Females - Hours Limited This is in reply to your letter of August 6, 1970, wherein you inquire as to an interpretation of a provision contained in Section 34-06-06 of the North Dakota Century Code. You ask the following question: Our question is particularly with regard to the wording, which prohibits the employment of females for longer than six days in any one week. In your opinion does the statute intend that females should have a day off after any six days of wor

OPINION 70-470 August 6, 1970 (OPINION) Mr. Leo J. Beauclair Barnes County States Attorney RE: Waters - Legal Drains - Liability for Damage This is in reply to your letter of July 29, 1970, requesting an opinion of this office with regard to liability for establishment and construction of legal drains, by local boards of drainage commissioners. You call our attention to Chapter 61-21 of the North Dakota Century Code empowering the board of drainage commissioners to establish and construct legal drains in the county whenever the same shall be conducive to the public health, con

OPINION 70-274 August 4, 1970 (OPINION) Mr. E. F. Welch State Plumbing Inspector State Plumbing Board State Office Building RE: Public Buildings - Plumbing - Authority of Plumbing Board This is in reply to your letter requesting an opinion of this office as to whether or not the State Plumbing Board can require that all plumbing work done on state owned buildings be done under the supervision of a licensed master plumber and that all plumbing work performed be done by licensed journeyman plumbers. You are undoubtedly aware of the provisions of subsection 1 of section 43-18-08

OPINION 70-264 August 3, 1970 (OPINION) Mr. Charles Bosch Motor Vehicle Registrar State Capitol RE: Notary Public - Signatures - Use of Facsimile This is in response to your letter dated July 23, 1970, wherein you request our opinion regarding the use of facsimile signatures by a notary public. You submit the following in your letter: "We have recently been asked by a Notary Public if he could use a 'signature stamp' when notarizing North Dakota certificates of title. This is a situation where a signature stamp would be preferable rather than signing the signature, due to

OPINION 70-394 July 31, 1970 (OPINION) Senator Edwin C. Becker 204 Avenue A West Bismarck, ND RE: Taxation - Exemption Parochial Schools Used for Other Purposes This is in response to your letter in which you state that a number of parochial schools throughout the state are being closed and a number of buildings owned by religious organizations as well as parishes are standing idle and are used only occasionally for religious purposes. The question has arisen whether such property is exempt from taxation. In your opinion these properties would not be taxed unless the same

OPINION 70-32 July 27, 1970(OPINION) Mr. Idean M. Locken City Attorney Lakota, ND RE: Cities - Alcoholic Beverage License - Service on City Council This is in reply to your letter of July 7, 1970, wherein you state that due to certain circumstances which have presented themselves in your city, you request a reviewal of previous opinions issued several years ago by this office which in effect held that a person holding an alcoholic beverage license from the city cannot serve on the city council. You also request that such reviewal includes the question of whether a person holding an al

OPINION 70-277 July 27, 1970 (OPINION) Mr. Calvin N. Rolfson Pembina County State's Attorney RE: Public Welfare - County Residence - Residence in Hospital This is in reply to your letter requesting an opinion of this office with regard to county residence for poor relief purposes under the provisions of section 50-02-04 of the North Dakota Century Code. You quote that portion of said section 50-02-04 stating: "RESIDENCE IN COUNTIES - HOW GAINED. If no type of public assistance of poor relief, whether county, state, or federal, has been received, residence in a county, for poo

OPINION 70-74 July 16, 1970(OPINION) Mr. Albert J. Hardy Assistant State's Attorney Stark County RE: Coroners - Autopsy - Consent of Relatives This is in reply to your inquiry with regard to the legality of a County Coroner conducting an autopsy without the permission of the deceased or next of kin pursuant to statute. Your questions are stated as: 1. May a coroner conduct an autopsy without the consent of the next of kin when the decedent has not been under doctor's care and upon cursory examination of the body the County Coroner is strongly suspicious of the decedent having died o

OPINION 70-55 July 16, 1970(OPINION) Mr. James H. Williams State's Attorney Eddy County RE: Cities - Water and Sewer Extension - Payment by City This is in reply to your letter of 12 June 1970 with regard to a proposed extension of water and sewer lines. Your letter informs us that it has been proposed that the governing body of your city, upon its own motion, expend funds from its water and sewer operating fund for the purpose of extending city water and sewer lines to the boundary of a tract of land being developed as an industrial park. Your letter further informs us that the indust

OPINION 70-194 July 15, 1970 (OPINION) Mr. Austin Engel North Dakota Indian Affairs Commission State Capitol RE: Legislature - Indian Affairs Commissioner - Eligibility to Serve This is in response to your request for an opinion on the following question: Under the laws of North Dakota, is it possible for an employee of the N.D. Indian Affairs Commission to be a candidate for the N.D. Legislature and, if elected, to serve in that body and still continue as an employee of the N.D. Indian Affairs Commission?" A somewhat similar question arose in 1966. Enclosed is a copy of an

OPINION 70-124 July 13, 1970(OPINION) The Honorable W. J. Austin County Judge Burleigh County Court of Increased Jurisdiction RE: Counties - Salaries of Officers - Increase This is in response to your letter in which you call our attention to the provision of section 11-10-10 of the N.D.C.C. as amended by Chapter 129 of the 1969 Session Laws. You then ask for an opinion whether or not the county commissioners may take advantage of this section to raise the salary of a judge of a county court of increased jurisdiction by 10 percent. Section 11-10-10 as amended, among other things, prov

OPINION 70-280 July 7, 1970 (OPINION) Mr. Thomas E. Rutten Assistant States Attorney Devils Lake, ND RE: Public Welfare - Liability of Stepfather for Support - ADC Eligibility This is in response to your letter in which you asked for an opinion whether or not the case of King v. Smith, 392 U. S. 309, 20 L. Ed. 2d. 1118, has any effect on section 50-09-08.1 of the North Dakota Century Code. Your inquiry is prompted by Manual Letter No. 765 issued by the executive director of the Public Welfare Board of the state of North Dakota dated June 23, 1970, which states: "Paragraph 1.

OPINION 70-339 July 1, 1970 (OPINION) Mr. James E. Sperry Superintendent State Historical Society Liberty Memorial Building RE: State - Peace Gardens - Authority of Historical Society This is in reply to your request for an opinion of this office with regard to a contemplated agreement between the State Historical Board and the Bureau of Outdoor Recreation to receive funds for improvements at the International Peace Garden. Your letter states that a project proposal was submitted and withdrawn in 1967 due to questions raised by the Bureau of Outdoor Recreation. You indicat

June 19, 1970 (OPINION) Alfred G. Brose, Director Radio Communications Department Fraine Barracks RE: State - State Radio - Responsibility for Contents of Broadcast This is in reply to your letter which was received by this office on June 11, 1970. You have requested our opinion regarding the responsibility of the State Radio Communications Department for statewide broadcasts for the apprehension of criminals, where at the time of such broadcast a warrant or theft report has not been issued. Section 54-23A-04 provides as follows: BROADCASTING DISPATCHES - REPORTS REQUIRED. I

June 18, 1970 (OPINION) Mr. Michel W. Stefonowicz State's Attorney Divide County RE: Taxation - Personal Property Tax Repeal - Duties of County Audit This is in response to your letter of May 28, 1970, in which you requested an opinion on several questions which have been submitted to you by the Divide County Auditor, relating to the duties or responsibilities of the county auditor under section 57-58-01 of the North Dakota Century Code and distribution of revenues pursuant thereto. For convenience we will recite the various questions presented followed by the answers to each q

OPINION 70-290 June 18, 1970 (OPINION) Mr. Wallace D. Berning Assistant State's Attorney Ward County RE: Roads - Farm to Market - Use of Levy for Right-of-Way Acquisitio This is in response to your letter in which you attached a sample ballot of the measure that was approved by the electors of Ward County on November 8, 1966. The ballot sets forth the road construction program which is to be financed from a four mill levy under the provisions of section 57-15-06.3 of the North Dakota Century Code. The ballot contained the following information: priority number, federal aid

OPINION 70-122 June 16, 1970(OPINION) Mr. Richard B. Bear Assistant State's Attorney Burleigh County RE: Counties - Public Defenders - Authority of County to Cooperative This is in response to your letter in which you state that pursuant to action taken by the Burleigh County Bar Association, a study was made which concluded that the utilization of a regional public defender was feasible and that efforts should be undertaken to initiate a pilot project for this purpose in a nine (9) county area, surrounding and including Burleigh County. The proposed project contemplates that each coun

OPINION 70-107 June 11, 1970(OPINION) Mr. A. J. Pederson Burke County Justice RE: Counties - County Justice - Jurisdiction This is in response to your letter in which you ask does the County Justice have jurisdiction to try cases arising out of violations of section 19-03-28.1, as amended, of the North Dakota Century Code. Normally we do not answer legal questions for any person holding a judicial position lest we be accused of interfering with due process of law. However, the question of jurisdiction is one where the jurisdiction is with the Court or it is not, depending on the nature

June 10, 1970 (OPINION) Mr. John B. Hart State's Attorney Rolette County RE: Motor Vehicles - Tests for Intoxication - Type of Test This is in response to your letter of June 4, 1970, in which you state that in certain instances persons who are arrested while driving under the influence demand a blood test instead of a breathalyzer test. When this occurs the peace officer takes the person arrested to the Rolla Community Hospital where a technician (non-doctor) takes the blood sample. The Rolla Community Hospital then bills the County $25.00 for taking such blood sample. Yo

OPINION 70-52 June 9, 1970(OPINION) Mr. Dale W. Moench City Attorney Dickinson, North Dakota RE: Cities - Planning and Zoning Commission - Membership This is in response to your letter in which you ask for an opinion as to what number comprises the Planning and Zoning Commission. You call our attention to section 40-49-03, as amended, and to section 40-48-10, as amended. You the ask what is the total membership of a planning and zoning commission. You also ask, does the two-thirds vote of the membership as set out in section 40-48-10, as amended, contemplate two- thirds of the entire

June 8, 1970 (OPINION) Mr. Orrin B. Lovell State's Attorney Golden Valley County RE: Judgments - Register of Deeds - Recording Partial Judgment This is in response to your letter in which you enclosed a copy of the Attorney General's opinion dated April 5, 1955, and a copy of the stamp which is ordinarily used by the register of deeds, which you believe is more or less commonly used throughout the State of North Dakota. You then state the following: The Register of Deeds received a certified copy of a judgment and decree in distribution out of the Burleigh County Court. The jud

OPINION 70-117 June 4, 1970(OPINION) Mr. Albert J. Hardy Assistant State's Attorney Stark County RE: Counties - Housing Authority - County Commissioners May Not Invest This is in reply to your letter of May 15, 1970, wherein you request our opinion as to the legality of a chairman of a board of county commissioners investing a county housing authority under the Housing and Urban Development Act. Section 12-10-06 of the North Dakota Century Code provides that no public officer authorized to sell or lease any property, or make any contract in his official capacity, shall become voluntari

June 2, 1970 (OPINION) Honorable Carl Boustead State Representative, Thirty-second District RE: Taxation - Sales Tax - Exemption for Zoo This is in reply to your recent letter relative to the above-captioned matter. You state the following facts and questions: The Dakota Zoological Society, Inc., is a nonprofit corporation which in conjunction with the Bismarck, North Dakota Park District and Board operates the Dakota Zoo, located in Bismarck, North Dakota. It is my understanding that the city of Bismarck through its Park Board owns the real estate of the Dakota Zoo location

OPINION 70-90 May 29, 1970(OPINION) Mr. Charles E. Crane State's Attorney Hettinger County RE: Counties - Combination of Offices - Effective Date This is in response to your letter in which you ask for our opinion on the following matter: "Hettinger County has reportedly dropped to under 6,000 population as a result of the present Federal Census. "Chapter 11-10-02 of the North Dakota Century Code as amended provides that 'Counties having a population of 6,000 or less, the Register of Deeds shall be Ex Officio of the District Court and County Judge.' This County has always hereto

OPINION 70-62 May 28, 1970(OPINION) Mr. Jon R. Kerian Assistant City Attorney Attorney for Planning Commission Attorney for Minot Urban Renewal Agency RE: Cities - Urban Renewal Agency - Conflict of Interest Your letter of May 19, 1970, states in substance that on November 6, 1967, the City Council, pursuant to Section 40-58-05 of the North Dakota Century Code, adopted a resolution which found that one or more blighted areas existed in the City of Minot and that rehabilitation, conservation and redevelopment were necessary. The resolution also provided that the renewal powers be exer

OPINION 70-102 May 14, 1970(OPINION) Mr. Robert L. Striebel State's Attorney Slope County RE: Counties - County Judges - Fees for Certified Copies This is in reply to your letters dated April 24, 1970, and May 8, 1970, with regard to fees to be charged by the County Judge for certified copies furnished upon request to interested parties. We are enclosing herewith a copy of an opinion dated April 21, 1969, written by this office and addressed to the Judge of the County Court of Increased Jurisdiction of Burleigh County, with regard to this general subject. While obviously some of the

OPINION 70-59 May 13, 1970(OPINION) McGee, Van Sickle, Hankla, Backes & Wheeler Attorneys for the City of Surrey Minot, North Dakota RE: Cities - Special Improvements for Sewer and Water Protests This is in reply to your letter with regard to a prospective special improvement project being undertaken by your firm for a North Dakota city. You inform us that as an adjunct to its original water and sewer system, the City of Surrey has created Water and Sewer Improvement District No. 2, which will consist of the construction of 1,360 feet of sewer main and 1,430 feet of water main, togethe

May 13, 1970 (OPINION) Honorable Ben Meier Secretary of State RE: State - Public Buildings - Contracts This is in response to your letter in which you ask for an opinion on the following: 1. Can a department, agency, board or commission negotiate with the bidder or bidders when the total low base bid or bids exceeds the sum of moneys authorized for the project? 2. When alternate proposals are a part of the general plans and specifications, can a department, agency, board or commission accept any alternates they consider to be in the best interest of the state or the project

OPINION 70-479 May 12, 1970 (OPINION) Honorable Shiro Kashiwa Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. RE: Taxation - Real Property Tax - Proration Between Vendor and Purchaser This is in response to your letter in which you relate that in instances in which the United States acquires title to land by direct purchases it has been the requirement of your department that all ad valorem taxes which have become a lien on the property must be paid, and if they are not due and payable at the time of settlement, a sufficient sum mus

May 11, 1970 (OPINION) Mr. Lloyd F. Zander Commissioner Department of Veterans' Affairs RE: Counties - Veterans' Service Officers - Mileage and Travel Expen This is in response to your letter in which you relate that during a recent conference it was learned that a variation exists as to reimbursement to county veterans' service officers for personal vehicle mileage in the various counties in the State of North Dakota. One county allowed 7 1/2 cents per mile, other allowed 8 1/2 cents, and still others allowed 9 cents. Some counties allow only $12.00 for meals and lodging per

May 6, 1970 (OPINION) Mr. H. J. Snortland Assistant Superintendent Department of Public Instruction RE: Schools - Teachers - Attendance at NDEA Conventions This is in reply to your letter of April 27, 1970, in which you set forth the following facts and questions: State law requires the school board to allow teachers to attend the NDEA Convention. School districts are also paid from the foundation program for these two days. A question has arisen as to whether teachers who are not members of the association should be permitted to be absent from school during the NDEA Conventi