North Dakota Attorney General Opinions

OPINION 67-173 May 10, 1967 (OPINION) Honorable Ben J. Wolf President Public Service Commission RE: Public Service Commissioner - Public Records - Records Included This is in reply to your request for an opinion to the law pertaining to the records maintained by your Commission, whether same is substantially the same as in the year 1958, the definition of "public official", and what is includible in "day to day" correspondence. You mention that the reason for your request is that your Commission is required to expend considerable sums of money through the use of its employees

OPINION 67-290 May 2, 1967 (OPINION) Honorable Edwin Sjaastad Tax Commissioner RE: Taxation - Sales tax - Construction contracts This is in response to your letter in which you call attention to H.B. No. 943 which, amongst other things, amends and reenacts Section 3 of H.B. No. 731 and Section 1 of S.B. No. 403 of the Fortieth Legislative Assembly, relating to sales and use tax. The composite effect of such amendments produce the following result: "In the case of a contract awarded for the construction of highways, roads, streets, bridges, and buildings prior to the effectiv

OPINION 67-320 April 29, 1967 (OPINION) Mr. Orville Hagen Commissioner of Labor RE: Time - Uniform Time Act - Applicable Your request for an opinion as to whether section 40-01-20 is applicable in our state so that the Uniform Time Act of 1966 passed by Congress need not be observed has been received. Subsection (b) of section 3 of Uniform Time Act of 1966 passed by the Congress of the United States provides as follows: b. It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the states or political subdivisions ther

OPINION 67-348 April 24, 1967 (OPINION) Mrs. Agnes Geelan Chairman Workmen's Compensation Bureau RE: Workmens Compensation - Attorneys Fees - Definition of Costs This is in response to your letter in which you recite some basic facts resulting in court actions. They may be summarized as follows: An employee in course of employment was fatally struck by a train while operating a motor vehicle through or on a railroad crossing. His widow brought a third party action in said district court. The district court dismissed the action, whereupon the case was appealed to the Unit

OPINION 67-146 April 24, 1967 (OPINION) Mr. Robert L. Eckert State's Attorney Richland County RE: Officers - City and State's Attorney - Compatibility This is in response to your letter in which you ask for an opinion whether or not the offices of state's attorney and city attorney may be held by the same person at the same time. The duties of a state's attorney are set forth in chapter 11-06 of the North Dakota Century Code and the duties of the city attorney are set forth in section 40-20-01 of the North Dakota Century Code. By reviewing the various statutory provisions pe

OPINION 67-333 April 20, 1967 (OPINION) Honorable Walter Christensen State Treasurer RE: Unsatisfied Judgment Fund - Subrogation - Workmens Compensation This is in reply to your letter of April 14, 1967, regarding the Unsatisfied Judgment Fund. You state the following facts and question: "In an opinion filed by the Supreme Court on March 30, 1967, the Supreme Court held that an insurance carrier which had paid claims for bodily injury under an uninsured motorist clause, and taken an assignment from its insured, could not recover the amount of its subrogated interest from th

OPINION 67-54 April 17, 1967 (OPINION) Mr. Lyle G. Stuart State's Attorney Adams County RE: Counties - Sheriff - Appointment of Deputy (Appointment of Deputy Sheriff) This is in reply to your letter of April 12, 1967, in which you request an opinion on the question of whether the appointment of a deputy sheriff would have to be made by the sheriff himself with the county commissioners determining only the number of deputies and the salary or whether the county commissioners may make the actual appointment of the deputy. Section 11-10-11 of the North Dakota Century Code, as am

OPINION 67-268 April 17, 1967 (OPINION) Mr. Walter R. Hjelle Highway Commissioner RE: Taxation - Highway Tax Distribution fund - Time of Distribution We acknowledge your letter requesting an opinion from this office as to the authority of the State Treasurer to make monthly rather than quarterly distribution of funds under the provisions of House Bill No. 580. Section 7 of House Bill No. 580 reads in part as follows: "Any moneys in the highway tax distribution fund shall be transferred on a calendar quarter basis by the state treasurer, * * *." It further provides that "Sixt

OPINION 67-155 April 17, 1967 (OPINION) Mr. R. G. Nerison Assistant State's Attorney Stutsman County RE: Park Districts - Tax Levy - Employees Pension This is in reply to your letter with regard to tax levy by a park district to provide park district employees with a Federal Social Security plan. Your specific question is stated as: "The Board of Park Commissioners now wish to know whether they can make the special levy provided for in section 40-46-26 of the North Dakota Century Code for the purpose of paying the park district's share of the Federal Social Security plan."

OPINION 67-94 April 15, 1967 (OPINION) Mr. L. F. Gerhart, Manager Fire and Tornado Fund RE: Insurance - Fire and Tornado Fund - Replacement Cost Insurance This is in response to your letter in which you call our attention to Senate Bill No. 363, which amends several sections in chapter 26-24 of the North Dakota Century Code. You then ask for an opinion as to whether or not the State Fire and Tornado Fund under the new act would be permitted to write "replacement cost insurance" if that type of insurance coverage is desired. In reviewing the provisions of Senate Bill No. 363,

OPINION 67-177 April 14, 1967 (OPINION) Mr. Fabian E. Noack State's Attorney Foster County RE: Public Welfare - State Hospital - Liability of County for Costs This is in reply to your letter of April 3, 1967, relative to the responsibility of Foster County for certain patients at the State Hospital. You state the following facts and questions: Frequently, patients are committed to the State Hospital at Jamestown through the Foster County Mental Health Board. Some of the patients so committed are residents of Foster County whereas other patients may be transients or tempora

OPINION 67-67 April 13, 1967 (OPINION) Mr. Frank F. Jestrab, President State Bar Association RE: Courts - Vacancies and Qualifications of Appointees This is in reply to your letter of April 10, 1967, relative to Senate Bill 58 enacted by the 1967 Legislative Assembly. You state the following facts and question: "The captioned statute authorizes and empowers the Governor of North Dakota to fill judicial vacancies created by the act within 30 days after the effective date of the act which I understand is July 1, 1967. It provides for the filling of two vacancies in the First

OPINION 67-62 April 13, 1967 (OPINION) Honorable Norbert J. Muggli District Judge Dickinson, North Dakota RE: Courts - Court Reporters - Salaries This is in response to your letter in which you call our attention to Senate Bill No. 123 of the 1967 Legislative Session, which amends Section 27-06-02 of the 1965 Supplement to the North Dakota Century Code, relating to the salary and expenses of court reporters. You state that your reporter had reported for the Public Service Commission of the state of North Dakota before he was employed by the District Court. Your specific ques

OPINION 67-231 April 13, 1967 (OPINION) Mr. C. R. Krogstad Dairy Commissioner RE: State Milk Board - Members - Qualifications This is in reply to your letter of April 10, 1967, relative to House Bill 596 enacted by the 1967 Legislative Assembly. You state the following facts and questions: House Bill 596 relating to the establishing of a Milk Board to regulate prices and trade practices, page 4, section 4, states in part: 'No appointee shall have held elective or appointive public office during the period of two years immediately preceding his appointment and no appointee s

OPINION 67-129 April 13, 1967 (OPINION) Dr. Richard W. Prouty State Toxicologist RE: Motor Vehicles - Blood Specimens of Accident Victims - Procedure This is in reply to your letter of April 10, 1967, relative to Senate Bill No. 44 enacted by the 1967 Legislative Assembly. You are concerned with the study to determine the relationship of alcohol, carbon monoxide and other drugs to motor vehicular deaths as provided in section 19 of said bill. You ask three questions concerning said section: 1. Is a licensed embalmer considered qualified to collect the blood specimens und

OPINION 67-259 April 12, 1967 (OPINION) Mr. Leo J. Beauclair State's Attorney Barnes County RE: Taxation - Discount - Prior Delinquent Taxes Your letter of March 28, 1967, is quoted in part as follows: Section 57-20-09 of the North Dakota Century Code provides in part as follows, 'Discount for early payment of tax. - The county treasurer shall allow a five per cent discount to all taxpayers who shall pay all of the real estate taxes levied on any tract or parcel of real property in any one year in full on or before February fifteenth prior to the date of delinquency.' In answ

OPINION 67-242 April 12, 1967 (OPINION) Mr. R. C. Hastings Seed Commissioner RE: State - Printing - Officers Name on Public Documents This is in reply to your letter of April 7, 1967, wherein you enclosed a letterhead, rules and regulations and seed lists which show one or more employee names. You ask which, if any, are in violation of Senate Bill No. 164 which was passed at the Fortieth Legislative Session. The full text of the substance of Senate Bill No. 164 as passed at the last session of the Legislative Assembly is as follows: SECTION 1. UNLAWFUL FOR PUBLIC OFFICIALS

OPINION 67-340 April 11, 1967 (OPINION) Mr. Roger D. Schell Assistant State's Attorney Bottineau County RE: Waters - Drain Assessments - Procedure in Spreading Re: Boundary Creek Water Management District This is in reply to your letter of April 4, 1967, in which you state the following facts and questions: Pursuant to section 61-16-26 of the North Dakota Century Code and other related sections, the above district will finalize the assessment list which will be certified to the Bottineau County auditor for spreading over the property. The Boundary Creek project is one proje

OPINION 67-193 April 11, 1967 (OPINION) Honorable M. F. Peterson Superintendent Public Instruction RE: Schools - Publication of Minutes - Application of Statute This is in reply to your letter of April 7, relative to Initiated Measure No. 5 on the 1966 General Election Ballot. You ask how much of the minutes shall be published. You further ask if it applies to all meetings, whether executive or general, special or regular. Measure No. 5 on the November 8, 1966, General Election Ballot was an initiated measure approved by the electors of the State of North Dakota. It prov

OPINION 67-6 April 5, 1967 (OPINION) Mr. C. R. Krogstad Dairy Commissioner RE: Agriculture - Livestock Dealers - Bonds and License Your request for an opinion from this office dated March 30, 1967, reads as follows: House Bill No. 598 amended subsection 1 of Section 36-04-06 of the North Dakota Century Code, relating to the bond required of livestock dealers and agents, to read as follows: '1. For a dealer in livestock ten thousand dollars and for agents of livestock dealers five thousand dollars each.' Prior to this amendment, the bond for a dealer in livestock has been $5,0

OPINION 67-141 April 5, 1967 (OPINION) Mr. Weldon Haugen Motor Vehicle Registrar RE: Motor Vehicles - Ton Fee Tax - Probation This is in reply to your letter of March 28, 1967, in which you state the following facts and questions: This office is charged with the administration of chapter 39-04a of the North Dakota Century Code, which provides for a 'ton fee tax' on certain motor vehicles engaged in the transportation of property. Section 2 of this chapter provides that the fee shall be levied annually and is made payable on January first of each year. Section 39-04a-04, as am

OPINION 67-304 April 3, 1967 (OPINION) Mr. Edwin Sjaastad Tax Commissioner RE: Taxation - Sales Tax - Motion Picture Films This is in response to your letter in which you state the following: "The Motion Picture Association of America, Inc., through their counsel, Mr. Bruce Thompson of Neville, Johnson & Thompson, 1705 First National Bank Building, Minneapolis, Minnesota, has requested a ruling from this office as to whether motion picture films distributed to theatre owners and television stations in the state of North Dakota are subject to North Dakota sales or use tax under

OPINION 67-240 April 3, 1967 (OPINION) Mr. Fred P. Brandt Director Economic Development Commission RE: State Planning Agency - Authority - Indian Reservation This is in reply to your letter of March 16, 1967, in which you set forth the following facts and question: The Tribal Council of the Standing Rock Sioux Tribe wishes to undertake an urban planning assistance program (701). As you know, the Standing Rock Reservation is situated in both North and South Dakota. However, its Council headquarters are situated in Fort Yates, North Dakota. The Tribal Council has adopted a re

OPINION 67-218 March 31, 1967 (OPINION) General James O. Guthrie Chairman State Employees' Retirement Board RE: Chapter 54-54, N.D.C.C. - State Employee Retirement Act This will acknowledge receipt of your request for an opinion as to the eligibility of the Lewis and Clark Job Corps Conservation Center to receive a refund of employer's contributions made to the State Employees' Retirement Plan during the period that such center functioned as an agency of the state of North Dakota. We are of the opinion that you correctly interpreted the law in your letter, dated February 2, 19

OPINION 67-131 March 29, 1967 (OPINION) Mr. John A. Alphson State's Attorney RE: Motor Vehicles - Emergency Vehicles - Use By State's Attorney Your letter to this office dated March 23, 1967, discusses the duties of your state's attorney's investigator and the fact that there is no authorization for his automobile to be equipped with a siren or flashing red light, and you request our opinion as follows: Therefore, I would request of you an opinion as to whether the state's attorney or his duly assigned investigator may legally utilize a red flashing rotating beacon on his vehic

OPINION 67-189 March 28, 1967 (OPINION) Mr. Lowell Williams Superintendent of Schools Calvin, North Dakota RE: Schools - Excess Levy Continuance - Retroactive Effect This is in reply to your letter of recent date relative to the extension of the excess levy for the school district under the provisions of Senate Bill 344 enacted by the 1967 Legislative Assembly. Ordinarily we prefer that requests for official opinion come through the state's attorney, the legal advisor of school officials. However, because of the statewide interest in this matter and the fact that time is of t

OPINION 67-161 March 28, 1967 (OPINION) Mr. Ralph Dewing Director Accounts and Purchases RE: Political Subdivisions - Competitive Bids - State Purchasing Age This is in reply to your letter of March 22, 1967, in which you state the following facts and ask the following questions: In recent months, cities, counties and school districts have been asking if it is permissible for them to purchase against term contracts established by this office. A term contract is a price agreement established through the competitive bidding process in which a contractor will supply a commodity

OPINION 67-50 March 27, 1967 (OPINION) Mr. Rodney S. Webb State's Attorney Walsh County RE: Counties - Officers - Fees and Qualifications This is in reply to your request for an opinion of this office with regard to disposition of sheriff's fees and commission and with regard to qualifications of an assistant state's attorney. Your first question is stated as: 1. Section 11-15-07 N.D.C.C. as amended provides for collection of 'county fees' by the sheriff of a county, section 11-15-08 N.D.C.C. provides for collection of 'sheriff's commissions.' In each instance, we would

OPINION 67-46 March 27, 1967 (OPINION) Mr. C. E. Crane State's Attorney Hettinger County RE: Counties - Historical Society - Purchase of Real Property This is in reply to your request for an opinion of this office as to whether or not the county historical society has power and authority to purchase and own real property and to enter into a contract for deed for the installment purchase of the same. Subsection 3 of section 11-11-53 of the 1965 Supplement to the North Dakota Century Code provides: 3. The appropriation and levy authorized by this section shall not be used to

OPINION 67-315 March 23, 1967 (OPINION) Mr. Edwin Sjaastad Tax Commissioner RE: Taxation - Use Tax - Exemptions for Poor and Needy This is in response to your letter dated March 8, 1967, in which you state the following: "The office of the state tax commissioner has, pursuant to section 57-39-05 and section 57-40-16 of the North Dakota Century Code, received from the Florence Crittenton Home of Fargo, North Dakota, the attached request for refund of use tax paid to suppliers of merchandise purchased by the home. "You will note that the Florence Crittenton Home is requesting a

OPINION 67-213 March 23, 1967 (OPINION) Mr. Geo. M. Thompson Manager Bank of North Dakota RE: State - Computers - Approval This is in response to your letter in which you state the following: "The Bank of North Dakota has been considering installing a computer system and had entered into a contract with the Burroughs Company for the installation of same. "Inasmuch as Senate Bill No. 89 prohibits the purchase of any computer system by any state department or agency, I would appreciate your opinion as to whether or not the Bank should consider further action in this matter, or

OPINION 67-188 March 17, 1967 (OPINION) Mr. John T. Traynor Attorney Public School Dist. No. 1 Devils Lake, North Dakota RE: Schools - Excess Levies - Continuance This is in reply to your letter of March 14, 1967, in which you set forth the following facts and questions: We represent Devils Lake Public School District No. 1 and the board requested that we ask you for an opinion concerning the application of Senate Bill No. 344 passed by the recent session of the North Dakota Legislature. This bill amended section 57-16-04, providing that prior to the termination of the exce

OPINION 67-297 March 16, 1967 (OPINION) Mr. Edwin Sjaastad Tax Commissioner RE: Taxation - Sales Tax - Errors in Acts This is in response to your letter in which you state the following: "S.B. 403 as passed by the 1967 Legislative Assembly imposes an additional three quarters of one percent sales and use tax on the items of tangible personal property and services subjected to sales and use tax in H.B. 731. "Section 1 of S.B. 403 pertains to the imposition of an additional three quarters of one percent sales tax. Lines 31 through 38 of S.B. 403 as engrossed provide as follows

OPINION 67-251 March 13, 1967 (OPINION) Mr. Jack D. Paul Executive Secretary Trade Commission RE: State - Trade Commission - Appropriation This is in reply to your letter of March 9, 1967, which states the following facts and questions: As you undoubtedly know, Senate Bill No. 55, authorizing the budget request of the North Dakota Trade Commission for the 1967-1969 biennium was killed in the House of Representatives during the Fortieth Legislative Session of the Legislature. Other Legislative action on the House Bill No. 564 and Senate Bill No. 283 in effect gave continuing l

OPINION 67-144 March 7, 1967 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County RE: Motor Vehicles - Windshield - Use of Decals We have reviewed the conclusions reached by Mr. Richard B. Thomas, State's Attorney of Ward County, North Dakota, in his letter of February 3, 1967, with reference to the legality of placing decals on the windshield of an automobile. The Minot Air Force Base poses the question whether it is legal to place a decal in the upper center of the windshield. It appears that the regulation of the Strategic Air Command requires a decal to be posit

OPINION 67-127 March 7, 1967 (OPINION) Mr. John A. Alphson State's Attorney Grand Forks County RE: Mental Health - Service Center - Deposit of Funds Re: Northeast Regional Mental Health and Retardation Service Center This is in response to your letter in which you advise that the Northeast Regional Mental Health and Retardation Service Center is a political subdivision. On this basis, it is our opinion that any funds that the Northeast Regional Mental Health and Retardation Service Center may have in excess of that needed for its immediate operation may be deposited under

OPINION 67-320 March 3, 1967 (OPINION) Mr. Ray H. Mattison Superintendent State Historical Society RE: Trademarks - State Historical Society - Sakakawea This is in reply to your letter with regard to use of a picture of possibly a statute of possibly Sakakawea on your letterhead. You enclose a copy of a letter from the General Counsel and Senior Vice President of an insurance company mentioning that they have registered a picture of Sakakawea as their trademark. You also enclose a sample of your letterhead and a letter sent out by you on such letterhead "advertising" what

OPINION 67-254 March 3, 1967 (OPINION) Mr. Jack D. Paul Executive Secretary Trade Commission RE: State - Trade Commission - Survey Your letter to this office dated March 1, 1967, requests our opinion as to whether or not the Trade Commission has authority under Section 5l-10-10 of the 1965 Supplement to the North Dakota Century Code to conduct a "cost of doing business" survey upon the petition of ten or more wholesalers. The first sentence of Section 51-10-10 of the 1965 Supplement to the North Dakota Century Code reads as follows: * * * The North Dakota trade commission is

OPINION 67-87 March 2, 1967 (OPINION) Honorable William L. Guy Governor RE: Governor - Signing of Bills - Time This is in response to your letter in which you ask what is the exact time and date in this legislative session after which bills received by the Governor can no longer be returned to the Legislature under the three-day constitutional provision. For purposes of answering your question, we must assume that the sixtieth legislative day comes to an end at twelve o'clock noon on Saturday, March 4, 1967. This would be in accordance with Section 53 of the North Dakota Con

OPINION 67-145 March 2, 1967 (OPINION) Mr. Fred P. Brandt, Director Economic Development Commission RE: Municipal Industrial Development - Facilities - Purchase This is in reply to your request for an opinion of this office with regard to the Municipal Industrial Development Act, as amended to date, specifically with regard to the facilities that may be acquired thereunder. You call our attention to a sentence from our opinion dated November 29, 1965, to Mr. Lloyd Omdahl, Tax Commissioner, stating: "Thus the fact that a building was originally constructed by private funds woul

OPINION 67-327 February 27, 1967 (OPINION) Mr. Lyle G. Stuart State's Attorney Adams County RE: Townships - Special Assessments - Authority This is in reply to your letter of February 21, 1967, in which you set forth the following facts and question: "I have had put to me a question upon which I would like your opinion. The question is this: Is a township authorized to create a special assessment district? The purpose of this would be to surface a particular stretch of road within the township but which lies adjacent in part to the city limits?" The powers of townships

OPINION 67-26 February 22, 1967 (OPINION) Mr. M. G. Anderson City Auditor LaMoure, North Dakota RE: Cities - City Attorney - Mandatory Office This office acknowledges receipt of your letter of February 16, 1967, which reads as follows: Our City Council wishes to question whether a municipality must appoint or obtain a City Attorney, or if it may elect to hire legal aid as needed. Out City is experiencing difficulty retaining an attorney at a salary within our budget. Are salary guidelines for this position available for cities of varying population in our State? Are the s

OPINION 67-273 February 21, 1967 (OPINION) Mr. Edwin Sjaastad Tax Commissioner RE: Taxation - Income Tax - Filing and Exemptions This is in regard to your letter of December 27, 1966, requesting my opinion on several questions relating to the North Dakota income tax filing requirements and exemptions allowed to nonresidents deriving income from North Dakota sources. Your questions relate to a factual situation wherein a nonresident has income from North Dakota source, is married, and his spouse has no income from North Dakota sources. Your questions are quoted as follows:

OPINION 67-183 February 8, 1967 (OPINION) Mr. Calvin A. Calton State's Attorney Divide County RE: Rural Fire Protection Districts - Purpose - Contracts This is in response to your letter in which you ask for an opinion on the following question: "'Under chapter 18-10, North Dakota Century Code, may a rural fire protection district be properly formed for the purpose only of levying taxes and contracting with a city for fire protection services, paying such tax levies over to the city pursuant to such contract - such rural fire protection district having no equipment, no fire d

OPINION 67-324 February 3, 1967 (OPINION) Mr. Robert L. Eckert State's Attorney Richland County RE: Townships - Officers - Incompatibility Your letter to this office dated February 1, 1967, requests our opinion as to whether or not a person may serve as both township assessor and a township supervisor. There is no statutory prohibition against one person holding both the position of assessor and township supervisor, but holding such offices simultaneously would be illegal if their functions are either conflicting or incompatible. Section 57-09-01 of the North Dakota Century C

OPINION 67-180 January 25, 1967 (OPINION) Mr. Larry Kraft Assistant State's Attorney Burleigh County RE: Register of Deeds - Recording of Deed - Witness of Signature This is in reply to your request for an opinion of this office with regard to whether a non-acknowledged warranty deed may be recorded where the signature of the conveyor is witnessed by two subscribing witness and the procedure for so doing. 2 Patton on TITLES, Second Ed., pages 184 and 185, section 360, informs us: A number of states allow an instrument to be authenticated, either by an acknowledgement of the g

OPINION 67-257 January 20, 1967 (OPINION) Mr. Robert L. Eckert State's Attorney Richland County RE: Taxation - Discount - Drain Assessments This is in reply to your letter of January 16, 1967, relative to the payment of taxes. You state the following facts and question: The question that I ask relates to payment of drain assessments pursuant to Chapter 61-21 of the North Dakota Century Code. As you are aware, if payment is made on real estate taxes prior to February 15, the taxpayer is entitled to a 5 percent discount (57-20-09). If a land owner pays the general tax in f