North Dakota Attorney General Opinions

OPINION 66-215 July 1, 1966 (OPINION) Honorable William L. Guy Governor RE: State - Emergency Commission - Grants to Political Subdivisions This is in reply to your letter of June 30, 1966, relative to the possibility of establishing a state aid program to help finance reconstruction of county and township roads and bridges and other public works in the counties recently damaged by flood waters. You note that the last Legislature did provide for a grant program from the State Contingency Fund through the National Guard Bureau to counties for snow removal and state it is your

OPINION 66-25 June 27, 1966 (OPINION) Honorable Ben Meier Secretary of State RE: Banks and Banking - Trust Company - Inclusion of Term Bank in Na This is in reply to your letter of June 22, 1966, in which you state the following facts and question: "We have received for processing an amendment of change of name for a Trust Company corporation - American Trust and Deposit, Inc., changing its name to First American Bank & Trust Company. We believe that in a recent opinion given to our State Examiner you contended that such use of the word 'Bank' in a trust company corporate nam

OPINION 66-308 (June 24) June 24, 1966 (OPINION) General James O. Guthrie Chairman State Employee Retirement Board RE: State - Employees Retirement System - Fee for Services We acknowledge receipt of your letter of June 24, 1966, in which you request the opinion of this office as to the validity of imposing a service charge on dormant accounts left on deposit with the Retirement Board by terminated state employees and also the propriety of the board's performing deposit and investment services to nonemployees by permitting accounts to be left intact by employees whose services

OPINION 66-349 June 23, 1966 (OPINION) Mr. Roger A. McKinnon State's Attorney Oliver County RE: Taxation - Estate Taxes - Nonresident Attorneys This is in reply to your letter of April 12, 1966, in which you asked that we give our opinion concerning certain questions regarding the determination of estate taxes by the county courts and the state tax commissioner. In addition, you also asked certain questions relative to who may represent an administrator or executor in a probate matter and in the determination of estate taxes. We herein submit our opinion relative to your que

OPINION 66-33 June 22, 1966 (OPINION) Mr. Harold B. Herseth Zap Village Attorney RE: Cities and Villages - Incorporation of Village as Council City - Date of Election This is in reply to your letter of June 20, 1966, relative to the following facts and questions: "The Village Board was presented with a petition under the provisions of Section 40-03-01. The petition appears to be a valid petition and was accepted by the Board. It was agreed that the matter would have to be submitted to the electors. The only question remaining then is when the election must be held. "I ha

OPINION 66-137 June 14, 1966 (OPINION) Mr. William C. Kelsch State's Attorney Morton County RE: Judicial Procedure - Change of Venue This is in response to your letter in which you say that, after consultation with your clerk and judge of the district court, the question has arisen as to the proper procedure in filing and handling of cases where an order for a change of venue has been entered. You also express the belief that there is no uniform practice throughout the State in this regard. You specifically ask what the proper procedure is where an action is transferred fro

OPINION 66-301 June 13, 1966 (OPINION) Mr. Wallace E. Warner Securities Commissioner RE: State - Employees Retirement System - Appointed Officials This is in response to your request for an official opinion on the interpretation and construction of section 54-52-01(2) as created by the 1965 Legislature, which reads as follows: DEFINITION OF TERMS. As used in this chapter, unless the context otherwise requires: * * * * 2. 'Eligible employee' shall mean all permanent employees who meet all of the eligibility requirements set by this chapter and who are twenty-one years or m

OPINION 66-446 June 6, 1966 (OPINION) Mr. Albert Schmalenberger Land Commissioner RE: University and School Lands - Utilization by Lessee - Shelterbelt This is in reply to your letter of June 1, 1966, requesting the opinion of this office in regard to utilization of original grant and nongrant lands. Your first question relates to whether the Board of University and School Lands has authority to grant a lessee permission to plow up, plant and maintain trees for a shelterbelt on Original Grant Lands. Your second question is stated as: Does the Board of University and School La

OPINION 66-71 June 1, 1966 (OPINION) Mr. Linn Sherman Attorney for Kidder County Fair Association RE: Counties - County Fair Levy - Election This is in reply to your letter of May 11, 1966, in regard to levy in aid of a county fair. You inform us that: "In either 1957 or early 1958, pursuant to an application for a grant duly made by the Kidder County Fall Fair Association, the county commissioners of Kidder County levied a tax in aid of the fair, and at the general election held on November 4, 1958, the question of continuing a tax levy in aid of the fair was submitted to th

OPINION 66-477 June 1, 1966 (OPINION) Mr. Loren Johnson Nelson County State's Attorney RE: Waters - Water Management District - Authority This is in response to your letter of May 4, 1966, in which you ask if a water management district, may, under the authority of section 61-16-11, subsection 10 of the North Dakota Century Code, "develop facilities at a dam project for recreational purposes and the maintenance thereof, including the establishment of parking areas, beaches, picnic tables, wells, fireplaces, toilets, etc." Section 61-16-11, subsection 10 authorizes the board of

OPINION 66-116 June 1, 1966 (OPINION) Mr. John A. Alphson State's Attorney Grand Forks County RE: Highways - Stop Signs - Access Roads The following opinion is given in response to the inquiry addressed to you from Lieutenant Col. Roger W. Stinchcomb, Jr., wherein he submitted the following question: "At the present time we are in need of information concerning the required placement of stop signs. Are stop signs required by state law or policy on missile site access roads at their junction with state, county or township roads?" Section 24-01-15 of the North Dakota Century C

OPINION 66-68 May 31, 1966 (OPINION) Mr. Lowell O. Tjon State's Attorney Ransom County RE: Counties - Cities - Street Contracts This is in reply to your letter of May 20, 1966, in regard to a proposed county-city contract for stockpiling gravel for the city. You inform us that the county will use its present road equipment and gravel equipment to do the work and the gravel will be taken from and stockpiled in the pit belonging to the city. It is your understanding that the county is generally not to be in the contracting business and can only use its equipment on its own pr

OPINION 66-66 May 31, 1966 (OPINION) Mr. Lowell O. Tjon State's Attorney Ransom County RE: Counties - Cities - Street Contracts This is in reply to your letter of May 20, 1966, in regard to a proposed county-city contract for stockpiling gravel for the city. You inform us that the county will use its present road equipment and gravel equipment to do the work and the gravel will be taken from and stockpiled in the pit belonging to the city. It is your understanding that the county is generally not to be in the contracting business and can only use its equipment on its own pr

OPINION 66-311 May 31, 1966 (OPINION) Mr. John Greenslit State Liaison Officer North Dakota State Outdoor Recreation Agency RE: State Fair - Association - State Agency This is in reply to your request for an opinion on the legal entity of the North Dakota State Fair. You indicate your interest in this regard is motivated by their contacting your offices in regard to the possibility of sponsorship of a project under the Land and Water Conservation Fund Act of 1964. Section 4-02.1-16 of the North Dakota Century Code, 1965 Supplement, provides as follows: ORGANIZATION UNDER CO

May 26, 1966 Anna M. Orser County Superintendent of Schools Steele County Finley, North Dakota Dear Madam: This is in reply to your letter of May 25, 1966, in which you ask several questions relative to school matters. You state: The questions concern the Colgate School District. There has been no school in session for the past two years and the County Committee on School Reorganization is contemplating the dissolution of the district in June. Petitions have been received for annexation to the Hope District and the Page District (Cass County). The Committee rejected the annexatio

May 26, 1966 Anna M. Orser County Superintendent of Schools Steele County Finley, North Dakota Dear Madam: This is in reply to your letter of May 25, 1966, in which you ask several questions relative to school matters. You state: The questions concern the Colgate School District. There has been no school in session for the past two years and the County Committee on School Reorganization is contemplating the dissolution of the district in June. Petitions have been received for annexation to the Hope District and the Page District (Cass County). The Committee rejected the annexatio

OPINION 66-109 May 26, 1966 (OPINION) Mr. Walter R. Hjelle Highway Commissioner RE: Highways - City Owned Utilities - Cost of Relocating This is in response to your inquiry of May 25, 1966, wherein you have requested this office to give its opinion on the following proposition, after setting forth the factual background. * * * (I)s the Highway Department obligated to the city for payment of the cost of relocating the governmentally owned utility facilities located on their right-of-way, when they agree to acquire the right-of-way for the new construction project?" Section 14

OPINION 66-410 May 25, 1966 (OPINION) Mr. Eugene A. Kruger, State's Attorney Cass County RE: Taxation - Tax Sale - Transfer of Land to City This in reply to your letter of inquiry as to transfer of tax sale lands between county and city. You inform us that: For may years and particularly of late, we have been encountering difficulties primarily with city lots that are returned to the County for failure to pay delinquent real estate taxes. As a practical matter, it seems the County has little, if any, interest in these lots and they become a heavy burden on the County because

OPINION 66-370 May 25, 1966 (OPINION) Mr. Edwin Sjaastad Tax Commissioner RE: Taxation - Income Tax Returns - Confidential This is in reply to your letter of May 13, 1966, relative to the production of state income tax returns, or copies of them, for examination by the state fire marshal. You state the fire marshal has indicated to you that he may find it necessary in connection with his investigation of a fire to require the production of such records for examination. You note the provisions of sections 18-01-10 and 57-38-57 of the North Dakota Century Code and state the f

OPINION 66-333 May 16, 1966 (OPINION) The Honorable Ben Meier Secretary of State RE: Supreme Court - Vacancy - No Election Required This is in reply to your letter of May 9, 1966, in which you state the following facts and question: The death of the Honorable Thomas Burke created a vacancy on the Supreme Court. This vacancy was filled by an appointment of the governor until the first general election. The term for which the Honorable Thomas Burke was elected is to end on the first Monday in January, 1967. Section 16-04-11 provides in part that between the first day of Jun

OPINION 66-308 (May 13) May 13, 1966 (OPINION) General James O. Guthrie Chairman State Employees Retirement Board RE: State - Employees Retirement System - Forfeiture of Unvested Fun This is in reply to your letter of April 28, 1966, relative to the State Employees Retirement System. You note the provisions of section 54-52-11 of the North Dakota Century Code, as amended, and state the following facts: It is the consensus of this board that the law gave this board certain implied powers under section 54-52-04, subject to the limitation of this chapter, among which was the fo

OPINION 66-494 May 11, 1966 (OPINION) Mr. E. Odin Sjaastad Chairman Workmen's Compensation Bureau RE: Workmens' Compensation - Medical Evaluations - Cost This is in response to your letter in which you make reference to section 65-02-14 and 65-05-07 of the North Dakota Century Code. You then state that injured employees whose liability has been accepted by the Workmen's Compensation Bureau are oftentimes recommended by the physician for rehabilitation. You also state that under the foregoing sections of law the Bureau pays the necessary costs of vocational rehabilitation.

OPINION 66-254 May 10, 1966 (OPINION) Mr. Vincent A. LaQua State's Attorney Wells County RE: Schools - Elections - Preparation of Absent Voters' Ballots This is in reply to your letter of May 1, 1966, relative to the use of absent voters' ballots in school district elections. You note that section 16-18-04 of the North Dakota Century Code, as amended, provides in part that in school elections, among others, "it shall be the duty of the clerk of the school districts * * * to prepare or have printed and available for distribution to the public at least fourteen days prior to t

OPINION 66-502 May 9, 1966 (OPINION) Mr. E. Odin Sjaastad Chairman Workmen's Compensation Bureau RE: Workmen's Compensation - Payments - Awards Not Confidential This is in response to your letter in which you ask for an opinion on the following questions: Question No. 1: If a partial lump-sum is granted, do the regular payments continue on a weekly basis, or should they be discontinued until such time as lump-sum settlement is used up at the regular rate. This would pertain to either permanent total or permanent partial. Question No. 2: If an award is made and claimant an

OPINION 66-37 May 9, 1966 (OPINION) Mr. Richard P. Gallagher, City Attorney Mandan, North Dakota RE: Cities and Villages - Municipal judge - Qualifications This is in reply to your letter of May 5, 1966, relative to the position of municipal judge in the city of Mandan. You note the provisions of Section 113 of the North Dakota Constitution, as amended, and the provisions of Sections 40-13-01 and 40-18-01 of the North Dakota Century Code, as amended. You state the following facts and question: "In the recent municipal election held i this city no candidate filed for the of

OPINION 66-36 May 9, 1966 (OPINION) Mr. A. J. Greffenius, City Attorney Valley City, ND RE: Cities and Villages - Municipal Judge - Availability of Qualifie This is in response to your letter in which you call our attention to Section 40-18-01 of the North Dakota Century Code, which provides as follows: "JURISDICTION OF MUNICIPAL JUDGE. The municipal judge within a city or village having a population of three thousand or more shall be an attorney licensed to practice law in this state, unless no person so licensed is available in the city or village and shall have exclusive

OPINION 66-197 May 9, 1966 (OPINION) Motor Vehicle Registrar and State Tax Commissioner RE: Motor Vehicles - Taxation and Registration - Military Personnel This is in response to your requests for an opinion of this office with regard to registration and taxation of servicemen's motor vehicles and mobile homes pursuant to sections 57-39.1-02 and 57-40.1-02 of the 1965 Supplement to the North Dakota Century Code, supplementary to our opinion of March 25, 1966, in regard to application of the reasoning of the United States Supreme Court in California v. Buzard and Snapp v. Neal.

OPINION 66-129 May 5, 1966 (OPINION) The Honorable K. O. Nygaard Commissioner of Insurance RE: Insurance - Fire and Tornado Fund - Coverage of Property in Leased Offices This is in response to your letter in which you ask whether personal property located in offices in privately owned buildings at Fargo, Minot and Grand Forks, North Dakota, but belonging to and being used by a department of the State, such as the Tax Department, is insurable in the Fire and Tornado Fund. The answer to the question rests primarily upon the statutory provisions which in this instance is Section

OPINION 66-90 May 4, 1966 (OPINION) Mr. Wallace D. Berning Assistant State's Attorney Ward County RE: Elections - Petitions - Average Vote This is in reply to your letter dated May 2, 1966, requesting an opinion of this office supplementary to an opinion issued to you dated April 27, 1966. Your specific question is stated as follows: "* * * whether in taking the number from the average vote cast for the auditor, sheriff and superintendent of schools, should the superintendent's vote be taken from the 1964 general election and the vote for the auditor and sheriff taken from t

OPINION 66-69 May 3, 1966 (OPINION) Mr. Conrad J. Ziegler State's Attorney Pierce County RE: Counties - County Commissioner - Vacancy This is in response to your letter in which you set forth the following facts and ask for an interpretation and construction of the law as applied to these facts with particular emphasis on the question whether or not the office is up for election this year (1966) or if the "special" election in 1964 was for a four-year term or merely for the unexpired term of Joe Rudnick which began in January, 1963, to which he was elected in 1962. A county c

OPINION 66-92 April 27, 1966 (OPINION) Mr. Wallace D. Berning Assistant State's Attorney Ward County RE: Elections - Petitions - Number of Signatures This is in reply to your letter stating that you have been asked by your county auditor to request our interpretation of section 16-04-04 of the North Dakota Century Code in light of the recent redistricting as it affects your county. Your question is stated as: "Specifically what do we use as a base for the 'not less than two percent, nor more than five percent' requirement referring to votes cast for the same office in the las

OPINION 66-364 April 22, 1966 (OPINION) Honorable Curtis Olson State Auditor RE: Taxation - Importer for Use Tax - Refund This is in reply to a letter from your office dated April 19, 1966, relative to the Importer for Use Tax Act enacted by the 1965 Legislative Assembly as Chapter 57-54.1 of the North Dakota Century Code, as amended. You state the following facts: Our office is experiencing some difficulty relative to refunds to trucking companies for fuel purchased in North Dakota and used in other states. As you will note by the enclosed Importer for Use Tax Report form,

OPINION 66-357 April 15, 1966 (OPINION) Mr. Robert Q. Price State's Attorney Cavalier County RE: Taxation - Exemption for Disabled Veterans - Construction This is in response to your letter in which you ask the following questions, all of which pertain to the construction of section 57-02-08, subsection 20, as amended, of the North Dakota Century Code: 1. Does the restriction that the unmarried widow shall not 'earn' more than $3,000.00 including income from investments or Social Security or any source other than wages or salaries? 2. We presume that the law became effec

OPINION 66-67 April 14, 1966 (OPINION) Mr. Larry M. Hatch State's Attorney Emmons County RE: Counties - Allocation of Motor Vehicle and Gas Tax - Authority of County Commissioners This is in response to your letter in which you include some correspondence between a county commissioner and yourself in which the allocation of motor vehicle registration funds and gasoline taxes are discussed. To summarize, the question presented is whether or not the county commissioners have the authority to allocate and divide among the five districts of the county the funds it receives as its

OPINION 66-26 April 13, 1966 (OPINION) The Honorable Walter Christensen State Treasurer RE: Banks - Deposit of Trust Company - Withdrawal This is in response to your letter in which you ask for an opinion on the request of the Banker's State Bank and Trust Company of Fargo, North Dakota, to withdraw from your office their deposit of $50,000.00. The deposit in question, as you stated in your letter, was made by said corporation to comply with the provisions of Sections 6-05-03 and 6-05-04 of the North Dakota Century Code as a condition precedent to transacting any business in

OPINION 66-221 April 1, 1966 (OPINION) Mr. Lloyd Omdahl Tax Commissioner RE: Oleomargarine - Revenue Stamps - Redemption This is in reply to your letter of March 29, 1966, in which you inquire about the correct procedure for the redemption or repayment of oleomargarine revenue stamps returned by manufacturers or distributors after they have been taken from oleomargarine packages that have been determined unfit for any reason for sale to consumers, or that have been returned by dealers to manufacturers, jobbers, or distributors for any other reason, pursuant to the provisions of

OPINION 66-169 March 30, 1966 (OPINION) Mr. John A. Alphson State's Attorney Grand Forks County RE: Mentally Ill - Service Units - Operation This is in reply to your letter presenting several questions with regard to the operation of your county's Mental Health Service Unit. You give us historical background as follows: "During the formulative period of our mental health unit, a non-profit corporation was formed to serve as a vehicle to organize five counties into what would be known as the Northeast Regional Mental Health and Retardation Center. The directors of this corpo

OPINION 66-194 March 25, 1966 (OPINION) Mr. Weldon Haugen Motor Vehicle Registrar RE: Motor Vehicles - Registration - Nonresident Servicemen This is in reply to your letter requesting an opinion of this office with regard to registering of servicemen's motor vehicles, with particular regard to the "Soldiers' and Sailors' Civil Relief Act of 1940." You state that you have been informed that the United State Supreme Court handed down a decision in January wherein it was held that under the Soldiers' and Sailors' Civil Relief Act of 1940 the various states cannot require a nonres

OPINION 66-451 March 24, 1966 (OPINION) Mr. Lloyd F. Zander Executive Secretary Veterans' Aid Commission RE: Veterans Aid Commission - Loan Requirements This is in reply to your request for an opinion in regard to loans made by the Veterans' Aid Commission. You call our attention to the citizenship and residency requirements set out in section 37-14-06 of the North Dakota Century Code. You also mention that in the past it has been the policy of the Veterans' Aid Commission to grant loans only to veterans who entered military service from the State of North Dakota and who rec

OPINION 66-282 March 22, 1966 (OPINION) Mr. A. R. Nestoss Deputy Superintendent Public Instruction RE: Schools - School Board - Vacancies This is in reply to your letter of March 21, 1966, relative to the filling of vacancies on a school board. You state the school board of a school district has five members. Three of the members have resigned. The question presented is how are the three vacancies on the school board filled. Section 15-29-06 of the North Dakota Century Code, as amended, provides: VACANCIES ON SCHOOL BOARD - HOW FILLED. The school board shall have pow

OPINION 66-303 March 21, 1966 (OPINION) General James O. Guthrie Chairman State Employee Retirement Board RE: State - Employees Retirement System - Definition of Future Eligible Employees We acknowledge your request as to the meaning of the phrase in section 54-52-05, N.D.C.C., that "all future employees shall be participating members" in the State Employee Retirement Plan. Section 67 of the North Dakota Constitution provides that statutes of North Dakota are effective on July first, following the passage and approval of the Act, unless otherwise provided in the Act itself to

OPINION 66-230 March 18, 1966 (OPINION) Mr. Wallace D. Berning Assistant State's Attorney Ward County RE: Public Funds - Depositories - Interest Rates This is in response to your request for an opinion regarding section 21-04-18 of the North Dakota Century Code, which provides as follows: INTEREST RATES. The rate of interest on all public funds deposited as provided in this chapter shall not exceed two percent on daily balances subject to check or draft, credited monthly, and shall not exceed four percent on time deposits. Depositories of public funds in this stat

OPINION 66-268 March 14, 1966 (OPINION) Mr. A. R. Nestoss Deputy Superintendent Public Instruction RE: Schools - Involuntary Dissolution of Districts - Procedure This is in reply to your letter of March 7, 1966, relative to the interpretation of Section 15-22-21 of the North Dakota Century Code, as amended. You state the following facts and questions: Section 15-22-21 provides for the dissolution and attachment of school districts which meet the following conditions: 1. When any school district within the county has had its assessed valuation reduced to an amount which wil

OPINION 66-244 March 11, 1966 (OPINION) Mr. Harold O. Bullis State's Attorney Richland County RE: Schools - Attendance in Public Schools - Shared Time This is in reply to your letter of March 1, 1966, relative to parochial school students attending the public schools on a shared time basis. You state the following: I understand your office has advised that a student cannot be enrolled in both a public and a parochial school at the same time. Is this correct? If the student cannot be enrolled in both a parochial school and a public school, is it still possible for a student

OPINION 66-283 March 10, 1966 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County RE: Schools - Special Education Levy - Deposit This is in reply to your letter of March 4, 1966, relative to the special education fund as governed by Chapter 15-59.1 of the North Dakota Century Code, as amended. You state Ward county has established such a fund and is making a levy for same. A portion of the receipts of the levy have been invested in certificates of deposit with local financial institutions. The revenue from this surplus has been reinvested in the county special ed

OPINION 66-84 March 8, 1966 (OPINION) Mr. Harold D. Bullis State's Attorney Richland County RE: Counties - Taxation - Roads This is in response to your request for an opinion of this office with regard to a mill levy for a county farm to market federal aid road program in accordance with the provisions of section 57-15-06.3 of the 1965 Supplement to the North Dakota Century Code. You inform us that at the November 6, 1962, general election the voters of your county approved a mill levy of not to exceed three mills annually for a county farm to market federal aid road program