North Dakota Attorney General Opinions

OPINION 69-130 July 30, 1969 (OPINION) Mr. John A. Alphson State's Attorney Grand Forks County RE: Counties - Redistricting - Manner of Creating Districts This is in response to your letter in which you state that the County Commissioners, pursuant to Chapter 11-07, as amended, of the North Dakota Century Code, have commenced redistricting within the county. You then call our attention to the provisions of Section 11-07-03 which, in part, states as follows: "* * * In no event shall every district be formed in such a manner that the population of cities located within each dis

OPINION 69-415 July 29, 1969 (OPINION) Mr. Bruce L. Bartch, Director North Dakota Business and Industrial Development Department RE: Taxation - Exemption for New Industries - Property and Income In This is in reply to your request for an opinion of this office with regard to the interpretation of Chapter 385 of the 1969 Session Laws, Chapter 40-57.1 of the 1969 Supplement to the North Dakota Century Code. The first question you are apparently interested in is with regard to "* * * whether the legislature intended to exempt, for these industrial development purposes, land, as d

OPINION 69-69 July 28, 1969 (OPINION) Mr. Ralph Dewing, Director Director of Accounts and Purchases RE: Civil Procedure - Garnishments - State as Garnishee This is in reply to your letter of July 18, 1969, concerning the North Dakota garnishment statutes. You state the following facts and questions: "Section 32-09-05 of the North Dakota Century Code provides that service upon the State of North Dakota, or any institution, department, or agency thereof, as garnishee, may be made upon the director of the department of accounts and purchases in the manner provided by law for su

OPINION 69-468 July 28, 1969 (OPINION) Honorable Arne Dahl Commissioner of Agriculture RE: Taxation - Personal Property Tax Repeal - Predatory Animal Levy This is in reply to your letter of July 17, 1969, relative to section 26-16-06 of the North Dakota Century Code. You note that under this section Stark County is currently exercising the special tax levy to finance predatory animal control and Oliver County has expressed interest in utilizing this special levy for this purpose. You further note a question has arisen regarding the repeal of the personal property tax and it

OPINION 69-251 July 25, 1969 (OPINION) Mr. Ralph Dewing, Director Department of Accounts and Purchases RE: Officers - Judges - Retirement salary This pertains to the matter of the application of Harvey J. Miller, a retired judge, for additional retirement salary based on an increase in salary or compensation of District and Supreme Court judges. The North Dakota Legislature in 1969 enacted Chapter 276, which is now Section 27-02-02.1, and which provides as follows: "ADDITIONAL COMPENSATION - SUPREME AND DISTRICT COURT JUDGES. In addition to the judicial salaries provided by Sec

OPINION 69-68 July 8, 1969 (OPINION) Mr. Alfred C. Schultz Executive Director State Bar Association of North Dakota RE: Civil Procedure - Garnishments - Constitutionality This is in response to your letter in which you call our attention to the recent decision of the United States Supreme Court in the case of Christine Sniadach v. Family Finance Corporation, issued on June 9, 1969, Case No. 130. (Not yet printed in the Reporter system.) You then ask what effect will this decision have on our statutes authorizing garnishment before a hearing on the issues involved. We presu

OPINION 69-260 June 27, 1969 (OPINION) Mr. Lowell O. Tjon State's Attorney RE: Officers - Vacancies - County Court of Increased Jurisdiction This is in reply to your letter in which you state that a vacancy in the office of County Judge was created by the death of C. J. Mead on June 7, 1969. You also state as follows: "We have been searching the Constitution and the statutes for authority which would permit the appointment of a successor but we find certain restrictions in Section 111 and 173 of the Constitution, as well as Section 11-10-04 of the N.D.C.C. "Apparently there

OPINION 69-53 June 26, 1969 (OPINION) Mr. John A. Alphson State's Attorney Grand Forks County RE: Cities - Platting - Approval by County Planning Commission This is in response to a request for an opinion on the following situation: A local contractor made application to the Grand Forks City Zoning and Planning Commission for approval of a plat south of the City of Grand Forks - approximately seven miles. The contractor was turned down in his application. The contractor then applied to and obtained approval of the Grand Forks County Planning and Zoning Commission. The pla

OPINION 69-540 June 23, 1969 (OPINION) Mr. Paul E. R. Abrahamson Administrator State Wheat Commission RE: Wheat Commission - Tax Levy Deduction - Who Makes This is in response to your letter in which you ask for an opinion on the effect of House Bill No. 480 which was passed by the Forty-first Legislative Assembly in 1969. Your letter reads, in part, as follows: "House Bill 480 has reference to the wheat tax levy to be collected at the maturity of the lien, pledge or mortgage instead of at the time that the lien, pledge or mortgage was executed. We have in mind in this ca

OPINION 69-323 June 23, 1969 (OPINION) Mr. Donald R. Holloway Securities Commissioner RE: Securities - Annuity Plans of Institutions of Higher Learning - Salesmen Registered We are in receipt of your letter of June 12, 1969, wherein you request our opinion as to whether those persons that explain or present the annuity plans of Teachers Insurance, Annuity Association of America (TIAA) and College Retirement Equities Fund (CREF) to employees of our State institutions of higher learning must first be registered under Section 10-04-10 of the North Dakota Century Code as dealers o

OPINION 69-413 June 20, 1969 (OPINION) Mr. Loren Stadig Economist North Dakota Economic Development Commission RE: Taxation - Exemption for New Industries - Available to Lessor This is in reply to your letter with regard to the utilization of the ad valorem tax exemptions to new industries granted under Senate Bill No. 39 of the 1969 Session of the North Dakota Legislative Assembly. Your letter indicates that the question concerns the construction of an industrial building by an individual to be leased to an industry. Your question is stated as: "Would the exemption be availa

OPINION 69-439 June 18, 1969 (OPINION) Mr. Eugene A. Kruger State's Attorney Cass County RE: Taxation - Municipal Industrial Development - Exempt Status of Leasehold Interest This is in response to your letter of April 17, 1969, requesting an opinion regarding the tax exempt status of a leasehold interest held by a company under the Municipal Industrial Development Act. Your inquiry relates to the following factual situation: The Needham Packing Company, which is located near West Fargo, North Dakota, entered into a lease under the Municipal Industrial Development Act with th

OPINION 69-257 June 18, 1969 (OPINION) Mr. Raymond R. Rund State's Attorney Steele County RE: Officers - Incompatibility of Officers - County Auditor and Director of Tax Equalization This is in reply to your letter of June 11, 1969, relative to Senate Bill 166 enacted by the 1969 Legislative Assembly. You state the following facts and questions: I enclose a copy of Senate Bill No. 166, passed by the 1969 Legislature, establishing the position of County Director of Tax Equalization. Is there anything incompatible between the duties of this Director and the County Auditor o

OPINION 69-505 June 11, 1969 (OPINION) Mrs. Clara D. Brown Executive Secretary North Dakota Teachers' Insurance and Retirement Fund RE: Teachers Insurance and Retirement Fund - Teachers Contribution - Statutory Conflict This is in reply to your letter of June 9, 1969, relative to Senate Bill No. 258 enacted by the 1969 Legislative Assembly and effective July 1, 1969. You state the following facts and questions: Section 15-39-14 gives three percent of a teacher's salary as the rate to be contributed by the employer and not to exceed $150.00 per year. The intended rate was

OPINION 69-504 June 11, 1969 (OPINION) Mrs. Clara D. Brown Executive Secretary Teachers Insurance and Retirement Fund RE: Teachers Insurance and Retirement Fund - Minimum Annuity - Statu Conflict This is in reply to your letter of June 9, 1969, relative to Senate Bill 258 enacted by the recent Legislative Assembly. You state the following facts and questions: In section 3 of section 15-39-17 of the North Dakota School Laws the minimum annuity after twenty-five years of service is given as $750.00. The intent was a twenty-five percent increase which would calculate to $900.

OPINION 69-289 June 11, 1969 (OPINION) Mr. Bert L. Wilson, Jr. State's Attorney Burke County RE: Roads - Farm to Market - Mill Levy This is in response to your letter in which you ask for a clarification of Section 57-15-06.3, as amended, particularly on the following set of facts: On November 8, 1960, the electors of Burke County approved a tax levy of 5 mills for a farm to market Federal aid road program. On November 5, 1968, the electors of the county approved a 7 mill levy for any additional farm to market Federal aid program. There remains uncompleted one project of

OPINION 69-179 June 10, 1969 (OPINION) Mr. Kenneth E. Raschke Commissioner of Higher Education RE: Higher Education - Resident Tuition - Residence Required This is in reply to your letter of June 5, 1969, in which you set forth the following question: "Is there any way short of legislative action by which North Dakota students can register at a North Dakota institution of higher education and trade campus residence and class attendance with a student from another state (not contiguous with North Dakota) who registered in his state - without involving the payment of out-of-stat

OPINION 69-61 June 9, 1969 (OPINION) Mr. Robert L. Eckert City Attorney Wahpeton, North Dakota RE: Cities - Street Improvements - City's Share Not Within Levy Limi This is in response to your letter in which you ask for an opinion on the following situation: The City of Wahpeton contemplates paving streets which will exceed the standards of residential paving projects. The project will be financed pursuant to the provisions of Chapter 40-56 of the North Dakota Century Code and it is expected that the City's share in the cost will exceed 20 percent. You ten specifically ask

OPINION 69-270 June 2, 1969 (OPINION) Mr. Thomas E. Rutten Assistant State's Attorney Ramsey County RE: Public Welfare - Funeral Expenses - Indians This is in reply to your letter with regard to payment of funeral expenses involving Indians living off the Reservation. You inform us that in the particular matter with which you are concerned, a 2 1/2 year old Indian boy died in a home within the City of Devils Lake. He lived in this home with his mother and several brothers and sisters. The boy is known to be an illegitimate child but the father is known to be an enrolled In

OPINION 69-232 June 2, 1969 (OPINION) Mr. Charles Bosch Registrar Motor Vehicle Department RE: Motor Vehicles - Registration - Transfer of Title This is in response to your letter in which you set forth a reoccurring problem in your Department. Frequently you are asked to transfer title of a vehicle which has very little commercial value. The vehicle in question, in many instances, was in need of repair and was taken to a service station or garage for such repairs. The repairs approximated or exceeded the value of the vehicle. Upon being informed of this, the owner lost

OPINION 69-2 June 2, 1969 (OPINION) Mr. Arne Dahl Commissioner of Agriculture RE: Agriculture - Beekeepers - Nonresidents This is in reply to your letter with regard to Senate Bill No. 462 adopted as an emergency measure by the 1969 Legislative Session and enclosed various correspondence with regard to a particular corporate entity. The problem here appears to relate to the application of that part of Section 3 of the Bill amending section 4-12-04 of the North Dakota Century Code and more particularly to that part of such amendment stating: "Nonresident beekeepers

OPINION 69-34 4 May 29, 1969 (OPINION) Mr. Albert Schmalenberger State Land Commissioner RE: State - Land Department - Mineral Reservations This is in reply to your letter of April 29, 1969, wherein you request an opinion regarding the above captioned lands and mineral reservations thereon, also submitting the file for review of facts which have transpired in connection with the sale of gravel from said premises. You refer to a letter of March 4, 1969, from Mr. John R. Kerian, wherein request has been made for refund of certain monies which were received by the State Land Depa

OPINION 69-521 May 28, 1969 (OPINION) Honorable Clark J. Jenkins Representative, 21st District RE: Usury - Interest Rates - Investment This is in response to your letter in which you refer to House Bill No. 133, which amends section 47-14-09 of the North Dakota Century Code. You also refer to the opinion issued to the Honorable Frank A. Wenstrom, State Senator, dated March 25, 1969. You then submit questions which you believe were not answered in the aforementioned opinion. You specifically ask for an opinion as to whether or not the loan which is used for investment purp

OPINION 69-382 May 28, 1969 (OPINION) Mr. Raymond R. Rund State's Attorney Steele County RE: Taxation - Delinquent Taxes - Rate of Penalty and Interest This is in response to your letter of May 19, 1969, in which you refer to House Bill No. 358, which amends Section 57-20-01 of the North Dakota Century Code. You specifically inquire whether or not the higher penalties and interest rates as provided for in House Bill No. 358 will attach to unpaid 1968 taxes after the effective date of the Act. You also inquire if the higher penalties and interest will affect any unpaid taxe

OPINION 69-357 May 28, 1969 (OPINION) Mr. Ellis L. Berg Executive Secretary North Dakota Poultry Improvement Board RE: State - Poultry Improvement Board - Feed Manufacturers This is in reply to your letter of May 19, 1969 with regard to licensing of poultry feed manufacturers. You state that an identified entity, we presume to be corporate in nature, "is manufacturing poultry feed" at a named city within this state. Your letter quotes relevant portions of section 4-13-10. Your question is stated as: Is * * * (the named entity) required by this law to be licensed and pay tonn

OPINION 69-137 May 28, 1969 (OPINION) Mr. Lester J. Schirado State's Attorney Morton County RE: Counties - Retirement System - Definition of Employer This is in response to your letter in which you refer to Senate Bill No. 46 of the 1969 Legislative Assembly, which amends several provisions of Chapter 54-52, and specifically Section 54-52-06. You ask if a county employee is employed by more than one county but only one of the counties elects to participate in the State Retirement System, must the participating county withhold the four percent contribution on the total salary o

OPINION 69-530 May 28, 1969 (OPINION) Mr. John A. Amundson Attorney Bowman County Water Management District RE: Waters - Water Management Districts - Authority of Board to Limit Impoundments Your letter of April 18, 1969, requests an opinion relative to subsection 8 of section 61-16-11 of the North Dakota Century Code. This section describes the powers and duties of the board of commissioners of a water management district, and subsection 8 provides as follows: POWERS AND DUTIES OF BOARD OF COMMISSIONERS. The board of commissioners shall have the power: * * * 8. To make

OPINION 69-356 May 22, 1969 (OPINION) Mr. Ellis L. Berg Executive Secretary Poultry Improvement Board RE: State - Poultry Improvement Board - Employment of Attorney This is in response to your letter in which you ask for an opinion on the following questions: 1. Can the Poultry Board's funds be used to pay for the services of a lawyer to secure compliance with our law? 2. Is there some legal basis on which the attorney general's office can prosecute violators of state law?" The Poultry Improvement Board was created pursuant to the provisions of Chapter 4-13. Under the p

OPINION 69-276 May 22, 1969 (OPINION) Mr. Leslie O. Ovre Executive Director Public Welfare Board of North Dakota RE: Public Welfare - Residence - Effect of U.S. Supreme Court Decisi This is in response to your letter in which you make reference to certain provisions of Title 50 which, amongst other things, sets forth certain residence requirements for eligibility for Aid to Families with Dependent Children, Old Age Assistance, Aid to the Blind, and Aid to the Permanently and Totally Disabled in North Dakota. You then call our attention to the case entitled "Shapiro v. Thomps

OPINION 69-259 May 20, 1969 (OPINION) Mr. Don Hastings, Chairman Stutsman County Commissioners RE: Officers - State's Attorney - Resignation This is in reply to your letter of May 15, 1969, which has been referred to my desk for reply. You state in your letter that the county commissioners for Stutsman County have received a letter of resignation from your State's Attorney. You then ask whether you, as a Board, are required to accept such a resignation or if you can insist that he finish his term which expires December 31, 1970. With regard to the letter of resignation, it w

OPINION 69-498 May 13, 1969 (OPINION) Mr. Byron L. Dorgan Tax Commissioner RE: Taxation - Travel Trailers - Liability for Tax This is in response to your letter of April 28 in which you ask for an opinion in answer to several questions arising under Senate Bill No. 193 enacted by the 1969 Legislature. Senate Bill 193 relates to the taxation of or the licensing of certain recreational type travel trailers. It was enacted as an emergency measure and became effective on March 29, 1969. As to your "Question No. 1" we find it appropriate to quote from your letter as follows: "Th

OPINION 69-18 May 12, 1969 (OPINION) Mr. K. M. Kelly Executive Secretary Milk Stabilization Board RE: Agriculture - Milk Stabilization Board - Authority to Post Bond This is in response to your letter in which you recite the following: "The North Dakota Milk Stabilization Board has instituted an injunctive action against Fairmount Foods Company, Inc., Bridgeman Creameries, a division of Land O' Lakes, Inc., to enjoin and restrain the defendants from selling fluid milk and cream products below the minimum wholesale prices as established by order of the North Dakota Milk Stabili

OPINION 69-446 May 7, 1969 (OPINION) The Honorable Byron L. Dorgan State Tax Commissioner RE: Taxation - Oleomargarine - Refund for Stamps This is in response to your letter of April 24, 1969, in which you requested our opinion to several questions concerning whether or not you are authorized to grant certain credits or refunds for oleomargarine revenue stamps which were either in the inventory of manufacturers or distributors or affixed to oleomargarine packages in the possession of manufacturers, distributors and retailers on July 1, 1969, the effective date of the oleomargar

OPINION 69-522 April 28, 1969 (OPINION) The Honorable M. F. Peterson Superintendent of Public Instruction RE: Usury - Rate of Interest - School Bus Equipment This is in reply to your letter of April 24, 1969, concerning section 15-34-18 of the North Dakota Century Code and House Bill 133 enacted by the 1969 Legislative Assembly. You ask for our opinion relative to the rate of interest and the probable conflict between section 15-34-18 and section 47-14-09 of the North Dakota Century Code, as amended by House Bill 133. Section 15-34-18 of the North Dakota Century Code provides

OPINION 69-151 April 28, 1969 (OPINION) Hon. Wallace E. Warner County Justice Richland County RE: Criminal Procedure - County Justice - Instruction of Jury This is in response to your letter in which you refer to section 33-07-17 (civil procedure) which in substance provides that the justice shall not instruct the jury upon the law nor express an opinion as to the matters in controversy. You also refer to section 33-12-20 (criminal procedure) which provides that except as otherwise provided by this chapter the jury shall be drawn and the trial shall be conducted in the manne

OPINION 69-33 April 24, 1969 (OPINION) Mr. R. G. Nerison Assistant City Attorney City of Jamestown RE: Cities - Appeal From Municipal Court - Forfeiture of Bail This is in response to your letter in which you recite that recently two defendants were convicted in a municipal court of the City of Jamestown. As permitted by law (section 33-12-34) the defendants appealed to district court and posted bail as provided for in section 33-12-36. The defendants were given notice of the time and place of trail but failed to appear. In accordance with section 33-12-41 the judgment w

OPINION 69-204 April 24, 1969 (OPINION) Mr. J. M. Glaser Deputy Labor Commissioner RE: Labor - Mediation Boards - Exemption of Political Subdivisions This is in reply to your letter with regard to the application of a part of section 34-11-02 of the North Dakota Century Code. Your letter states that you would like our opinion as to whether a subdivision of government not specifically mentioned would be exempt from the provisions of this chapter although the reference is to public employees Section 34-11-02 of the North Dakota Century Code provides: "MEDIATION BOARD, HOW DESI

OPINION 69-202 April 24, 1969 (OPINION) Mr. J. M. Glaser Deputy Commissioner of Labor RE: Labor - Mediation - Political Subdivision This is in reply to your request for an opinion with regard to the construction of section 34-08-14 of the North Dakota Century Code. This statute enacted by the 1967 Legislative Assembly provides: "MEDIATORS - APPOINTMENT - FUNCTIONS - COMPENSATION. The state labor commissioner shall have power to act as mediator, or to appoint any competent, impartial disinterested person to act as mediator, in any labor dispute either upon his own initiative

OPINION 69-267 April 23, 1969 (OPINION) The Honorable Vernon E. Wagner State Representative, Thirty-second District RE: Pharmacists - Licenses - Exemptions for Federal Employees This is in reply to your letter of April 18, 1969, relative to a letter you received from the United States Public Health Service. That letter, as quoted by you, reads as follows: The Aberdeen Area of the United States Public Health Service, Indian Health Service, provides health services to approximately 60,000 American Indians in a seven-state area through a system of 11 hospitals, 5 health centers, a

OPINION 69-99 April 21, 1969 (OPINION) Judge W. J. Austin County Judge Burleigh County Court RE: Counties - County Court - Fees This is in response to your letter in which you refer to House Bill No. 322 as passed by the last Legislative Assembly which amends section 27-08-08 of the North Dakota Century Code. You also quote a portion of the Act as follows: 'All fees collected for official acts as judge of the county court shall be deposited by the court into the county treasury of the county in which the court is located.'" You then note that the quoted provision applies on

OPINION 69-451 April 18, 1969 (OPINION) Honorable Don Halcrow Representative, Eleventh District RE: Taxation - Personal Property Tax Repeal - Bonded Indebtedness This is in response to your inquiry as to section 20 of Senate Bill No. 137. Your inquiry relates to the situations where a political subdivision has an existing bonded indebtedness and where the political subdivision does not have a bonded indebtedness. For purposes of discussion we will recite the pertinent provisions of section 20, except the last paragraph. SECTION 20. DISTRIBUTION TO COUNTIES AND LOCAL SUBDIVI

OPINION 69-320 April 18, 1969 (OPINION) Mr. Harold Shaft Shaft, Benson, Shaft and McConn Grand Forks, North Dakota RE: Schools - Unlimited Tax Levy - Petition to Discontinue This is in reply to your letter of April 10, 1969, relative to Senate Bill 113 which amends sections 57-15-14 and 57-16-04 of the North Dakota Century Code. You state the following facts and questions: Prior to the effective date of Senate Bill No. 113, which became effective upon the approval of the Governor on March 19, 1969, a petition was filed with the clerk, signed by more than 5 percent of the num

OPINION 69-193 April 18, 1969 (OPINION) Mr. J. M. Glaser Deputy Commissioner of Labor RE: Labor - Discrimination Because of Sex - Hours of Employment This is in reply to your letter enclosing other materials with particular emphasis on what is designated as "EEOC Guidelines on Discrimination Because of Sex - Maximum Working Hours for Women." As we understand the background of the problem, 42 USCA, Section 2000e-2., provides in part: (a) It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to

OPINION 69-285 April 15, 1969 (OPINION) Mr. Raymond R. Rund Steele County State's Attorney RE: Roads - Culverts - Furnished by county This is in reply to your letter of 9 April 1969 with regard to culverts and whether same are to be furnished by county or township. You enclose a copy of a survey made by the State Highway Department as of September, 1967, with a column for the question of "Does County Supply Culverts to the Organized Townships." You indicate that the answers to this question range from a flat "No" to something in between and all the way to "Reimbursed in Full.

OPINION 69-190 April 14, 1969 (OPINION) Mr. J. O. Wigen Commissioner of Insurance Insurance Department RE: Insurance - Variable annuities - Right to issue This is in response to your letter in which you make reference to an opinion issued to your office on January 15, 1968, relating to variable annuities. You then ask: "Do foreign insurance companies have the right to issue group annuity contracts in North Dakota which provide for both fixed and variable benefits if they are permitted to write such contracts in their respective states of domicile and are authorized to do bu

OPINION 69-163 April 14, 1969 (OPINION) The Honorable Leslie C. Powers State Representative Twenty-fourth District RE: Elections - Radios for School Buses - Regular or Special School This is in reply to your letter of April 10, 1969, relative to House Bill 280 enacted by the recent Legislative Assembly. You note the bill allows a school district to levy one additional mill for communications equipment provided the issue receives a favorable vote. You further note there appears to be some question as to whether this issue can be voted on at a school election or if it must b

OPINION 69-294 April 11, 1969 (OPINION) Mr. Thomas E. Rutten Assistant States Attorney Ramsey County RE: Roads - Section Lines - Closing This is in reply to your letter of date April 7, 1969, with regard to closing of section line roads. You call our attention to the amendment of section 224-07-03 of the North Dakota Century Code, and more particularly to the amendments thereto adopted by the 1965 Session of the Legislative Assembly. You indicate that you have been advised that in the past, township roads, including section line roads, could be vacated upon action of the lo