North Dakota Attorney General Opinions

OPINION 63-265 September 11, 1963 (OPINION) TEACHERS' INSURANCE AND RETIREMENT FUND RE: No Authority to Purchase Real Estate This is in reply to your letter of September 9, 1963, in which you ask whether the Teachers' Insurance and Retirement Fund has the authority to purchase an office building. The Retirement Fund Board would not need the entire building and what is not used by the board would be leased to others. There is no authority in the chapter (15-39 of the North Dakota Century Code, as amended) governing the Teachers' Insurance and Retirement Fund which would author

OPINION 63-127(Aug 22) August 22, 1963 (OPINION) ELECTIONS RE: Special Election - Holiday in Particular District This is in response to your letter in which you ask for an opinion whether or not October 22nd, which is the day on which a special election will be held in the First Congressional District to fill the vacancy in the United states House of Representatives, is a holiday in view of Section 1-03-01 of the North Dakota Century Code. You further ask whether or not certain business establishments will be required to close on October 22nd. If so, would it apply to the ent

OPINION 63-283 August 20, 1963 (OPINION) WORKMEN'S COMPENSATION BUREAU RE: Preexisting Conditions This is in response to your letter in which you ask for an opinion on the construction of section 65-05-15 of the North Dakota Century Code, which provides as follows: AGGRAVATION OF INJURY OR DISEASE - COMPENSATION AND BENEFITS NOT PAID FOR PREEXISTING CONDITION. In case of aggravation of an injury or disease existing prior to a compensable injury, compensation, medical, hospital or funeral expenses, or death benefits, shall be allowed by the bureau and paid from the fund only

OPINION 63-195 August 16, 1963 (OPINION) SCHOOL DISTRICTS RE: Annexation - Procedures When Adjoining Counties This is in reply to your letter of August 13, 1963, concerning Chapter 147 of the 1963 Session Laws. You state hte following facts and questions: We would also like to have your interpretation as to the meaning of the word 'annexing' as found in Section 15-27 05 where the word is used in this manner: 'In the event that a majority of members of each committee fail to approve the annexation, the county superintendent of the county in which the annexing district is loca

OPINION 63-134 August 13, 1963 (OPINION) EMERGENCY COMMISSION RE: Validity of Transfer of Funds This is in response to your letter in which you state that at a meeting attended by all members of the State Emergency Commission on July 29, 1963, the Commission by majority action authorized the transfer of money from the State Contingency Fund in the following manner: 1. The sum of $12,000 to the State Land Commissioner for salary of deputy - Chapter 1, page 8, 1963. Session Laws. 2. The sum of $18,000 to the State Laboratories Department for salary of Director - Chapter 1, p

OPINION 63-133(Aug 13) August 13, 1963 (OPINION) EMERGENCY COMMISSION - Director of Accounts and Purchases - Duties RE: This is in response to your letter in which you ask for an opinion on certain transfers made by the Emergency Commission. The question on the transfer of various funds to various departments was considered in an opinion addressed jointly to the Governor and you. However, in your letter you also asked for an opinion whether or not you are required to follow the directions of the Emergency Commission in making entries on your appropriation control accounts. Sect

OPINION 63-262 August 7, 1963 (OPINION) TAXATION RE: Sales Tax - Laundromats This office acknowledges receipt of your letter of July 15, 1963, in which you ask our opinion relative to the applicability of sales tax to gross receipts derived from self-service laundries or dry-cleaning facilities. Your two questions are as follows: Question No. 1. Did the gross receipts from self-service laundries and dry-cleaning plants, whether or not coin operated, become subject to the sales tax on July 1, 1963, because of the enactment of House Bill 559? See sections 1 and 2 of Chapter

OPINION 63-201 July 25, 1963 (OPINION) SCHOOL DISTRICTS RE: Bond Issues - Board of Budget Review This is in reply to your letter of July 23, 1963, concerning the board of budget review in Guelph Public School District. You state the Guelph Public School District is contemplating adopting an initial resolution for bond issue to build an elementary school. Guelph itself is an unincorporated village within Dickey County. The school operated by the Guelph School District is in Guelph. There are no incorporated cities or villages within the boundaries of Guelph Public School Dis

OPINION 63-123 July 24, 1963 (OPINION) ELECTIONS RE: Special Election - Congressional District This is in reply to your letter dated July 19, 1963, wherein you request an official opinion on the procedure and requirements relative to filling the vacancy in the United States House of Representatives due to the death of Congressman Hjalmer Nygaard. You specifically ask for an opinion on the following questions: 1.) whether this vacancy can only be filled by a special election or whether it may be accomplished by appointment; 2.) in the event a special election is called, the pr

OPINION 63-140 July 23, 1963 (OPINION) GIRL SCOUTS ROUND-UP COMMISSION RE: Expenditures This is to acknowledge receipt of your letter of July 19, 1963, requesting an opinion, pursuant to resolution duly adopted by the Girl Scouts Round-up Commission, whether the Commission has the authority to pay two categories of bills, one category composed of bills submitted by private individuals and the second category composed of bills submitted by state agencies and whether the commission has monies available to it to pay these bills if it is authorized to do so. You have previously s

OPINION 63-258 July 22, 1963 (OPINION) TAXATION RE: Equalization - Proration Your letter request of July 11, 1963, for an opinion concerning section 57-02-18.2 of the North Dakota Century Code, is acknowledged. You relate certain facts as follows: A large number of livestock was purchased in another State by a resident o Foster County and which purchase and delivery of the livestock was completed April 5, 1963. The Township Assessor valued the livestock at a reduced amount based upon the above title provision. Thereafter, the Township Equalization Board approved the said a

OPINION 63-109 July 22, 1963 (OPINION) DEPARTMENT OF PUBLIC INSTRUCTION RE: Correspondence Schools - Lack of License This is in reply to your letter of July 18, 1963, in regard to licensing of trade and correspondence schools. You call our attention to Chapter 15-50 of the North Dakota Century Code. You inform us that out of state trade and correspondence schools are continually allowing their solicitors to come into our state and solicit students before the school secures a license. You ask us to give an opinion as to whether the application form which is generally written

OPINION 63-92 July 10, 1963 (OPINION) DAIRY PRODUCTS RE: License - Expiration Dates You have requested an official opinion on the following matter: * * *In Chapter 19-06, section 04 of the North Dakota Century Code, it deals specifically with ice milk and we would like to have an interpretation as to whether this section has anything to do or will be in conflict with Chapter 4-30, section 02 of the North Dakota Century Code. This department is not clear on the interpretation as to the ice milk plant as it appears in both instances." You also relate that: The issuance of lic

OPINION 63-224 July 10, 1963 (OPINION) SCHOOL DISTRICTS RE: Transportation - Computing Payments This is in reply to your letter of July 8, 1963, regarding Senate Bill No. 48 as enacted by the 1963 Legislative Assembly. You state the following facts: This law provides that a school district shall receive seven cents per mile for a bus up to a passenger capacity of nineteen, and for twenty or more twelve cents per mile. It provide also that the manufacturer's rated pupil capacity shall govern. My question is, if a school district uses a twenty-four-passenger bus, for exampl

OPINION 63-145 July 10, 1963 (OPINION) HIGHWAY DEPARTMENT RE: Commissioner's Authority - Rules and Regulations This is in reply to your letter of July tenth, 1963, concerning chapter 43-07 of the N.D.C.C., as amended by S.L. 1963, Ch. 304, Sec. 5, where you asked the question: Are contractors bidding on or performing work on federal aid projects bound by 43-07, as amended, or may the Highway Commissioner promulgate rules and regulations for licensing, qualification and prequalification and utilize different procedures from those in 43-07, amended? Chapter 43-07 N.D.C.C. was a

July 9, 1963 (OPINION) ELECTIONS RE: Special Election - Setting Date For This is in reply to your letter of July 8, 1963, in which you ask if you have the authority to suspend, delay or reschedule any one or all of the referred measures now scheduled for the July 17 special election. As you are aware the matter of calling a special election to vote upon measures referred to the people is governed by Section 25 of the North Dakota Constitution. The decision as to whether to call a special election, at least insofar as the measures under consideration are concerned, is discretio

OPINION 63-163 July 2, 1963 (OPINION) LIVESTOCK RE: Brands - Position of Your letter of June 31, 1963, is acknowledged. You relate as follows: "We request an opinion in regard to recording livestock brands for hips of cattle with two or more characters of which one is a number. "According to the North Dakota Livestock Brand Law, Chapter 36-09, section 02 of the 1960 North Dakota Century Code, is it permissible to record a brand for hips of cattle with two or more characters of which one character is a number." Section 36-09-02, at subsection 3 thereof, of the North Dakota Ce

OPINION 63-131 June 19, 1963 (OPINION) ELECTIONS RE: Special Election - Publication of Sample Ballot This office acknowledges receipt of your letter of June 17, 1963, with reference to the special election to be held July 17, 1963. Your letter is a follow-up to our telephone conversation of last Friday, June 14, 1963. In your letter, you make reference to Sections 16-07-01 and 16-06-02 of the North Dakota Century Code, and you ask us whether or not these sections required the publication of a sample ballot prior to the special election July 17, such as is prescribed for the gen

OPINION 63-128 June 13, 1963 (OPINION) ELECTIONS RE: Special Election - Procedure Your letter of June 12, 1963, provides as follows: his office has just been notified that the petitions referring the following measures enacted by the Thirty-eighth Legislative Assembly have been accepted, filed and found sufficient by the Secretary of State: S.B. 39 - withholding tax S.B. 50 - adjusted tax on individual income S.B. 360 - graduated income tax H.B. 750 - tax levy limitation in school districts H.B. 771 - tax levy for new urban renewal projects Request is hereby made for an

OPINION 63-87 June 10, 1963 (OPINION) COUNTY JUSTICE RE: Police Magistrate - Compatibility of Offices This is in reply to your letter of June 4, 1963, concerning the offices of county justice and police magistrate of city or village. The question presented is whether these offices may be held simultaneously by the same person. As you have noted in your letter, Senate Bill No. 304, enacted by the recent Legislative Assembly, provides in part that the offices of county justice and police magistrate may not be held by the same person. This law becomes effective July 1, 1963. T

OPINION 63-147 May 31, 1963 (OPINION) HIGHWAY DEPARTMENT RE: Commissioner's Discretion This will acknowledge receipt of your request for an official opinion, clarifying an earlier opinion, addressed to Senator Meidinger on the subject of the constitutionality of the use of highway funds for the acquisition of advertising control rights and an agreement relating to such acquisition between the State Highway Commissioner and the Secretary of Commerce. You specifically asked: (1) Does your expressing doubt as to these constitutional matters impose on me any personal liability, sh

OPINION 63-81 May 29, 1963 (OPINION) COUNTIES RE: Property Assessments - Spot Checks This is a reply to your letter of May 21, requesting my opinion on several questions relating to Senate Bills No. 51 and No. 217 enacted by the 1963 Legislature, both of which become effective on July 1, 1963. Section 1 of Senate Bill No. 51 states that the board of county commissioners of each county shall provide for spot checks of real and personal property assessments in the county each spring, and it then provides for the procedure to be allowed in making these spot checks. The last sen

OPINION 63-215 May 29, 1963 (OPINION) SCHOOL DISTRICTS RE: Religious Instruction This is in reply to your letter of May 20, 1963, concerning release time for religious instruction. As you know this office, in an opinion dated March 13, 1962, held that section 15-34-07 of the North Dakota Century Code constituted a release time statute. This was not the first expression of opinion on this matter. On November 29, 1955, this office issued an official opinion to Mrs. Alfred Pack, School Director, Selfridge, North Dakota, which held that section 15-34-07 constituted a release ti

OPINION 64-34 May 21, 1964 (OPINION) BOARD OF ADMINISTRATION RE: Transfer of Funds This letter is in response to the inquiries of May 5 and 6, 1964, from your office. You wish to know whether it is legal to transfer $51,000.00 from the current State Hospital appropriation line item "Improvements and Repairs" to the State Office of Vocational Rehabilitation for the purpose of matching federal funds. (70 percent federal and 30 percent state). The estimated costs of this project for remodeling basement areas at the hospital into shop areas for industrial and occupational ther

OPINION 63-188 May 20, 1963 (OPINION) PUBLIC SERVICE COMMISSION RE: License - Limited to Statutory Authority Referring to your opinion request of April 3, 1963, the question is whether or not the Public Service Commission may "* * *license weighmasters, and/or weighman, to perform official weighing of commodities or goods other than grain or livestock?" The correspondence accompanying the opinion request indicates that the question arose as a result of a request that the commission license a weighmaster for a coal company. In your request, you refer this office to sections 60

OPINION 63-29 May 15, 1963 (OPINION) BOARD OF ADMINISTRATION RE: State Highway Building - Maintenance and Telephone Service This will acknowledge receipt of your request for an official opinion as to the authority and responsibility of the State Highway Commissioner and the Board of Administration, concerning maintenance, repair and the furnishing of fuel and light for the state office building, also known as the State Highway Building, and also for providing local and "WATS" telephone service. Chapter 360 of the 1959 Session Laws, which provided for the purchase of the buildin

OPINION 63-13 May 15, 1963 (OPINION) ARREST RE: Peace Officer or Private Citizen - City Ordinance This office acknowledges receipt of your letter of May 7, 1963. You state that the city officials of Dunseith would like to have an opinion as to whether a city policeman or other person can make an arrest without a warrant for the violation of a city ordinance committed in his presence. Your letter contains the following additional paragraph: I have noted sections 40-11-10 and 40-11-11, N.D.C.C., along with the case annotated there of Kist v. Butts, and I have noted section 4

OPINION 63-244 May 14, 1963 (OPINION) STATE LAND DEPARTMENT RE: Drainage Assessment Returned herewith is drainage tax statement from Grand Forks County Auditor in regard to the above-described land. You inform us that same is original grant land under the jurisdiction of the Board of University and School Lands. Said premises as state lands are exempt from all taxation pursuant to subsection 2 of section 57-02-08 of the North Dakota Century Code. See also: Article IX of the North Dakota Constitution and particularly Section 168 thereof. Said lands are therefore not subject

OPINION 63-189 May 14, 1963 (OPINION) PUBLIC SERVICE COMMISSION RE: Municipalities - Street Lights This is in reply to your letter of May 2, 1963, concerning section 40-05-05 of the North Dakota Century Code. You ask the following question: "Does the commission under this statute, have jurisdiction over the rates at which utilities provide electricity to municipalities for street lighting purposes?" Section 40-05-05 of the North Dakota Century Code provides: "CITIES AND VILLAGES MAY CONTRACT FOR ELECTRICAL ENERGY OR GAS. The governing body of any city or village may enter in

OPINION 63-68 April 29, 1963 (OPINION) COUNTIES RE: Officer of County Commissioner and Township Supervisor - Incompa Your letter of March 19, 1963, has been received. You wish an opinion from this office to determine if the same person may hold the office of township supervisor and county commissioner at the same time. There is no general statute in North Dakota prohibiting the holding of two offices by the same person. As you know, we do have statutory provisions to allow the offices of the county judge, clerk of court and register of deeds to be held by the same person, i

OPINION 63-233 April 29, 1963 (OPINION) STATE EMERGENCY COMMISSION RE: Application for Emergency Funds - Existing Conditions Your letter of April 22, 1963, has been received. Your letter provides as follows: The appropriation for the Department of Agriculture and Labor in Senate Bill No. 1, passed by the 38th Assembly for the fiscal period beginning July 1, 1963 and ending June 30, 1965, includes a line item 'Predatory Animal and Rodent Control $101,500.00'. This line item was disapproved by the Governor. As an individual member of the State Emergency Commission, I respect

OPINION 63-156 April 19, 1963 (OPINION) HIGHWAYS RE: Section Line - Travel by Public Your letter of March 27, 1963, has been received. You wish an opinion from this office on the following set of facts: 'A' owns a small tract of land in the northwest corner of a quarter section. The western boundary line of this tract runs along the north-south section line a distance of approximately 38 rods. 'A' has a township road on the northern frontage of this tract giving access thereto from both east and west. 'A' owns pasture land in the quarter section directly south of the qua

OPINION 63-152 April 10, 1963 (OPINION) HIGHWAYS RE: Driver's License - Judgment Debtor This office acknowledges receipt of your letter of February 8, 1963, in which you request the interpretation of this office of chapter 39-16 of the North Dakota Century Code. The question involved could be stated as follows: If a person whose driver's license was suspended under the provisions of chapter 39-16 of the North Dakota Century Code for failure to comply with section 39-16-05 or for failure to satisfy a judgment of a private party under the provisions of section 39-16-13(4), is he

OPINION 63-248 April 9, 1963 (OPINION) STATE SOIL CONSERVATION COMMITTEE RE: Federal Participation Develop Recreational Areas Your letter of April 1, 1963, is acknowledged. You have requested an opinion from this office in connection with section 61-16-01, subsection 4 of the North Dakota Century Code which provides as follows: * * * 4. The term 'project,' as used in this chapter, shall mean, and include, any undertaking for water conservation, flood control, watershed improvement and drainage of surface waters, including incidental features of any such undertaking." (Emphas

OPINION 63-77 April 4, 1963 (OPINION) COUNTIES RE: Officer of County Commissioner and Township Supervisor - Incompatible Your letter of March 19, 1963, has been received. You wish an opinion from this office to determine if the same person may hold the office of township supervisor and county commissioner at the same time. There is no general statute in North Dakota prohibiting the holding of two offices by the same person. As you know, we do have statutory provisions to allow the offices of the county judge, clerk of court and register of deeds to be held by the same perso

OPINION 63-55 April 2, 1963 (OPINION) CIVIL DEFENSE RE: Administration of Federal Funds Your letter request for an opinion dated March 7, 1963, relative to your administration of federal funds advances and reimbursement moneys is acknowledged. Since March 7, 1963, you have supplied us with additional correspondence dated March 15, 1963, from the Region 6 Director, Mr. Ren F. Read, of Denver, Colorado, and also copies of letters dated February 13, 1963, from Mr. James J. Kearney, Assistant General Office (Administration), and letter from John L. Turpin, Director of Support Req

OPINION 63-158 April 2, 1963 (OPINION) LEGISLATION RE: Referred Measures - Form This is in response to your request for an opinion as to the correct form of a referral petition. You specifically ask if the measure referred must be set forth in its entirety in the petition or can it be referred to by title and subject matter. The question involves the interpretation and construction of Section 25 of Article 2 of the North Dakota Constitution. As is material here, this section provides as follows: The legislative power of this state shall be vested in a legislature consistin

OPINION 63-71 April 1, 1963 (OPINION) COUNTIES RE: County and Township Zoning Commissions - Precedence of Township Your letter requesting an opinion on township and county zoning commissions has been received. You state that several years ago a zoning commission was established in Burleigh County in accordance with chapter 11-33 of the North Dakota Century Code. The districts designated by the county commissioners included Apple Creek Township located near the city of Bismarck. This commission functions for approximately three years with the representative from Apple Creek

OPINION 63-150 March 18, 1963 (OPINION) HIGHWAY DEPARTMENT RE: Eminent Domain - Unity of Use This will acknowledge receipt of your request for an opinion from this office as to the obligation of the State Highway Department to pay for severance damage to separated tracts of land where it is shown that there is unity of use. Although there is no specific statute or decision by the North Dakota Supreme Court on this matter, it is the opinion of this office that it is the law of North Dakota that when a parcel of land is taken by eminent domain, severance damages for noncontiguous

OPINION 63-148 March 16, 1963 (OPINION) HIGHWAY DEPARTMENT RE: Contract with Federal Government - Right-of-Way Control This is in response to your request for an opinion on the validity or constitutionality of the agreement entered into between the State Highway Commissioner and the Department of Commerce of the United States of America, dated May 18, 1961. In the contract, as such, it is agreed that the State will control, or cause to be controlled, the erection and maintenance of outdoor advertising signs, displays and devices in adjacent areas within such state along the int

OPINION 63-88 March 13, 1963 (OPINION) COUNTY WELFARE BOARD RE: Powers and Duties - Related to County Commissioners This office acknowledges receipt of your letter of March 7, 1963, in which you request the opinion of this office on certain matters related to the powers and duties of the county welfare board of your county. In your letter you state that the board of county commissioners of Richland County recently adopted a resolution requiring all county employees, except elected officials, to retire at the age of 65. You further state that the director of the county welfare

OPINION 63-207 SCHOOL DISTRICTS - Discipline and Punishments - Superiority of Religious Beliefs This is in reply to your letter of March 11, 1963. You state substantially as follows: A resident of your county “has eight children going to the Dunseith Public School - the oldest child who is in the eighth grade naturally respects the religion which is Jehovah’s Witness, in which she was raised. She will not get up to face the flag and join in the patriotic singing because this is contrary to her religion. Her teacher has punished her for refusal to stand and join in the signing of the p

OPINION 63-85 March 4, 1963 (OPINION) COUNTY FAIRS RE: Acquiring Land - Disposing of Excess This is in reply to your letter of February 28, 1963, in regard to real estate owned by Foster County acquired by the county commissioners for county fair purposes. We tentatively presume that same was acquired pursuant to section 4-02-31 of the North Dakota Century Code which provides: PURCHASE OR LEASE OF LAND - ELECTION REQUIRED. The board of county commissioners in any county in the state may submit, or when petitioned by at least five percent of the legal voters of the county in

OPINION 63-75 February 11, 1963 (OPINION) COUNTIES RE: Delinquent Personal Property Taxes - Collection Your letter of February 1, 1963, is acknowledged. You relate that the sheriff and the county commissioners of Stutsman County have requested an opinion of you as to whether or not the county could contract with a private collection agency or concern to collect all out-of-state delinquent personal property taxes which are over one year old. You also relate that the private collection agency would charge fifty percent for the collection services. Further, the collection agency

OPINION 63-120 February 9, 1963 (OPINION) ELECTIONS RE: Legislative District - Special Election This is in response to your request for an opinion as to the procedure to be followed in calling a special election in Eddy-Foster legislative district due to the death of Representative Don Nicolson. Pursuant to section 16-07-09 of the North Dakota Century Code the special election is predicated upon receiving notice from the county auditor that a vacancy exists. Section 16-07-01 requires publishing and posting of a notice at least eight days prior to the holding of election. Se

OPINION 63-21 February 8, 1963 (OPINION) BANK OF NORTH DAKOTA RE: Investments - Certificates of Deposits You have requested the opinion of this office as to the power of the Bank of North Dakota to purchase bearer form certificates of deposits of metropolitan banks currently in circulation and bearing interest somewhat better than the rates available on short term government paper. Our examination of the Bank of North Dakota Act convinces us that the Bank may deposit funds in any bank or banking association within or without the state upon such terms and conditions as the Indus

OPINION 63-110 January 31, 1963 (OPINION) DEPARTMENT OF PUBLIC INSTRUCTION RE: Foundations Program Payments - Necessity of Bond This is in response to your request for an opinion on the following questions: 1. Would it be lawful for the North Dakota Department of Public Instruction to make Foundation Program payments to the Grandin School District if a bond is filed in the Department of Public Instruction or in court, conditioned on the payment of the Wiger tuition on the final determination in court of liability? 2. Must this bond, if permitted, be ancillary to a le