North Dakota AG Opinions, 1949

OPINION 49-206 August 4, 1949 (OPINION) WELFARE RE: Mileage of Members of County Board Your letter of August 8, re mileage of members of the county welfare, board, has been received and referred to my desk. It seems clear to us that Chapter 50-01 makes members of the county welfare board county officials. There is no doubt of this in our minds. Chapter 297 of the Laws of 1949 provides that members shall be paid legal mileage for necessary travel. This is an amendment to the prior law which merely authorized payment to them of their actual expenses. Under the new law the

OPINION 49-129 July 29, 1949 (OPINION) MINERALS RE: Deeds Your letter of the 27th inst. re the above has been received and referred to my desk. Our court has held that mineral rights in land can be severed from surface rights by reservation in a deed, and such reservation is an interest in land. Northwestern Improvement Co. v. Oliver County, 38 N.D. 57, 164 N.W. 315. Mineral rights, being an interest in land, can be conveyed only by deed. Until there is a severance of the mineral rights from the surface right either by deed directly, or by reservation in a deed conveying

OPINION 49-151 July 26, 1949 (OPINION) OFFICERS RE: Judges' Retirement Your letter of July 21 addressed to the Attorney General has been received and contents duly noted. You refer to Chapters 206 and 207 of the Session Laws of 1949 relating to retirement and salaries of the judges of the district and supreme courts and you present five questions which I shall answer in the order presented. (1) The first question that arises under Chapter 206 relates to the payment or collection of the assessment made on the salaries of the judges. Do I deduct from the salary warrant issued

OPINION 49-87 July 23, 1949 (OPINION) HIGHWAY PATROL RE: Retirement Act I acknowledge receipt of your letter of July 20 requesting an opinion from this office on the so-called North Dakota Highway Patrolmen's Retirement Act, which is chapter 239 of the 1949 Session Laws of North Dakota, and more particularly, section 10 thereof. Section 10 reads as follows: "Contributions by the State of North Dakota." The state of North Dakota shall annually contribute to the fund a sum equal to the amount contributed by patrolmen to this fund from the driver's license fund." The question

OPINION 49-154 July 19, 1949 (OPINION) OFFICERS RE: Salary of Tax Commissioner Your letter of July 16 addressed to the Attorney General has been received and contents of same have been noted. You refer to subdivision 16 of Chapter 3 of the Session Laws of 1949 (House Bill 54) which appropriates $9600.00 for the salary of the tax commissioner for the current biennium, and you state that the question has been raised as to whether or not the state auditor should comply with this particular salary item. The question as to whether or not the state auditor should issue salary warran

OPINION 49-64 July 16, 1949 (OPINION) FEES RE: No Filing Fee for Determination of Inheritance Tax Re: Section 27-0740 1947 Supplement. Your letter of July 14, 1949, has been received and sent to my desk. I understand the general rule to be that no fee is chargeable by any county officer for any official act performed by him, unless the statute expressly provides for such fee, and courts have held that the charging of an illegal fee is ground for the removal of the officer. The fees to be charged by the county court are those provided by section 27-0740 of the 1947 Supplement.

OPINION 49-89 July 7, 1949 (OPINION) INSTITUTIONS RE: Lisbon Soldiers Home This is in reply to your letter of June 24 addressed to the Attorney General. You refer to Senate Bill No. 108 which is chapter 85 of the Session Laws of 1949 which appropriated an additional amount for the completion of the new building, equipment, etc. for the North Dakota Soldiers Home at Lisbon. The first item of the bill calls for general work finishing second and third floors, and you have a statement authorizing an additional expenditure of $73,034 to Meinecke& Johnson for the completion of sec

OPINION 49-185 June 30, 1949 (OPINION) TAXATION RE: Sales Tax Your letter of June 29 addressed to the Attorney General has been received and contents of same have been noted. You refer to House Bill No. 163 enacted by the legislature which is the sales tax act effective July 1, 1949, and expires by its own limitation on June 30, 1951. This act levies a tax of two percent upon the gross receipts from all sales of merchandise, except as otherwise provided in the act, sold at retail in the state of North Dakota to consumers or users. A like rate is also imposed upon the gross

OPINION 49-175 June 11, 1949 (OPINION) STATE HISTORICAL SOCIETY RE: Liability for Alleged Fire Your letter of June 9, enclosing a copy of the letter of Mr. and Mrs. Pulkrabek, of May first, has been received. Under the circumstances stated in your letter, there is no possibility of the state being liable for any damages. Even if it could be shown that the fire had been started by someone working for the Historical Society in the park, there would be no liability on the state. If it could be shown that the fire was started by the negligence of any individual or the intention

OPINION 49-82 June 4, 1949 (OPINION) GAME AND FISH RE: Rights of Owner to Hunt Your letter to Honorable Wallace E. Warner, attorney general, has been received. In your letter you ask if a landowner or tenant has the right at any time of the year to kill protected birds or animals, such as pheasants and deer which may be depredating crops on land owned or leased by him. In answer thereto, will say that it is our opinion that the landowner of tenant is not allowed to hunt game, such as you describe, out of season. While such game may be depredating crops, the problem for reco

OPINION 49-149 May 27, 1949 (OPINION) OFFICERS RE: Justice of the Peace - Dockets I acknowledge receipt of your letter of May 25, 1949, wherein you inquire whether it is the responsibility of the board of county commissioners of a county to provide a duly elected and qualified county justice of the peace with proper dockets. Under the statutes of North Dakota, (s. 33-0112 of the 1943 Revised Code), it is the mandatory duty of a justice to keep a docket, and the statute outlines the contents thereof; and goes on to give the effect of the docket as evidence and provides that it h

OPINION 49-200 May 24, 1949 (OPINION) VETERANS RE: Soldier's Bonus Pursuant to our oral conversation and your letter of May 20, 1949, you ask me for a ruling whether or not the following section of S.B. No. 2, enacted by the recent legislative assembly, is mandatory: In any case where the veteran or the applicant for payment under this Act is indebted to the Veterans Aid Commission of the State of North Dakota, the Adjutant General shall determine the amount of such indebtedness and certify such determination to the State Auditor together with the record of payment due. Within

OPINION 49-171 May 17, 1949 (OPINION) SCHOOLS RE: Tuition This is in reply to your letter of May 12, 1949, addressed to the attorney general. You ask for the opinion of this office on the following state of facts: A family living in Grand Forks city and attending Special School District No. 1, Grand Forks city, have purchased a home just outside the city limits and will live in rural Falconer District No. 59 next year. Falconer district has a school in operation, but this party has his business in Grand Forks and will be sending his children to Grand Forks city next year.

OPINION 49-63 May 13, 1949 (OPINION) FEES RE: Doctor on Insanity Board Your letter of May 11 addressed to the Attorney General has been received and contents noted. The question you present, as I understand from the information in your letter, is whether the physician who is a member of the insanity board may charge the fee of five dollars for examining a patient in addition to his per diem of five dollars. Section 25-0311 provides, among other things, that the board shall appoint a regularly practicing physician of the county, who may or may not be a member of the board, to v

OPINION 49-122 May 6, 1949 (OPINION) LIQUOR RE: License Fees for Clubs I have your letter addressed to the Attorney General dated April 23, 1949, in which you ask for an opinion as to the authority of the city commission to charge a lower fee for liquor licenses for private clubs than is charged for private liquor dealers. C.J. 2d. 237. Authorities differ as to whether or not a bona fide club must obtain a license in order to sell liquor to its members. 30 Am. Jr. Sec. 308, states that a state may prohibit the selling and serving or dispensing of intoxicating liquors in clubs

OPINION 49-115 May 3, 1949 (OPINION) LICENSES RE: Moving Picture Operators This is in answer to your letter of May 2, 1949. You have asked whether or not operators of switch boards in building or enclosures used for public assemblages must be licensed moving picture machine operators or under the supervision of one. Subsection 4 of section 43-0901 of House Bill 288 which became law on March 19, 1949, provides: "'Moving picture machine operator' shall mean a person having the necessary qualifications, training and experience to operate moving picture machines and switchboards i

OPINION 49-197 April 30, 1949 (OPINION) VETERANS RE: Grave Registration Your letter of April 29, 1949, addressed to the attorney general, has been received and contents of same have been noted. You ask for a construction of Chapter 250 of the 1947 Session Laws relative to registration of graves of North Dakota veterans. Said Chapter 250 reads as follows: It shall be the duty of the adjutant general of the state of North Dakota, to register and compile records of the graves of deceased soldiers, sailors, and marines, including Wacs, Waves, Spars, and members of nurses corps of

OPINION 49-196 April 30, 1949 (OPINION) VETERANS RE: Certified Copies This office is in receipt of your letter of April 28 relative to certified copies of discharge certificates for veterans of World War II. In an opinion written by our Mr. Brace under date of April 18, 1949, he said: "It is the opinion of this office that these two acts which are now sections 37-0136 and 37-0134 respectively, are not in conflict and are both in full force and effect. Therefore, it is our opinion that a veteran, when the law requires him in the furtherance of any right he may have by virtue

OPINION 49-138 April 29, 1949 (OPINION) OLD AGE ASSISTANCE RE: House Bill 314 Your letter of April 16 addressed to the Attorney General has been received and contents noted. You ask this office for a construction of the provisions of House Bill 314 enacted by the 1949 Legislature. This bill is an amendment of Section 50-0713 of the North Dakota Revised Code of 1943 and increases the minimum of old age assistance from $40 per month in case of one recipient and $30 per month in the case of two or more to $60 per month in case of one recipient and $45 in case of two or more. T

OPINION 49-194 April 22, 1949 (OPINION) TOWNSHIPS RE: Place of Holding Elections Re: Elections in Township When City Extends Limits to Include Town Hall Your letter of April 19th has been received and referred to my desk. You state that your township had a town hall and that the city of Williston has extended its city limits to take in the land your town hall was on. You ask whether or not your township can continue to hold township meetings in the hall which is now in the city limits of Williston. It is the opinion of this office that your township may continue to hold to

OPINION 49-182 April 21, 1949 (OPINION) TAXATION RE: Medical Center - University Re: Constitutional Amendment for 1-mill Levy for Medical Center It is the opinion of this office that the constitutional amendment proposed by Chapter 119 of the Laws of 1947, and adopted by the people at the 1948 general election, provides for a one-mill levy for the purposes therein set forth, which one-mill levy is to be made entirely irrespective of section 174 of the Constitution, as amended, and is to be levied in addition to the levy permitted by said section as amended. WALLACE E. WARNER

OPINION 49-17 April 19, 1949 (OPINION) BONDS RE: Village Trustees You have asked whether or not the State Bonding Fund is legally obligated to bond village trustees. Section 26-2302 provides: The fund shall be under the management of the commissioner, and shall be maintained as a fund for the bonding of public employees." Section 26-2301, subsection 2 defines: " 'Public employee' shall mean and include any officer, deputy, or employee of the state or any of its subdivisions who is required to be bonded by any law of this state." "Subdivision" is defined in Words and Phrase

OPINION 49-156 April 14, 1949 (OPINION) OFFICERS RE: State Senator Ineligible for Appointment on Highway Patrol Your letter of April 14 to the Attorney General relative to the appointment of Frank C. Albers of Center, North Dakota, as a member of the Highway Patrol, has been received. I understand that Mr. Albers is now a member of the State Legislature and that his term will not expire until 1951. I also understand that the salaries of the Highway Patrol were raised by the last legislative session. It is our opinion that the office of highway patrol, under our statute, Chap

OPINION 49-113 April 12, 1949 (OPINION) LICENSES RE: County Fee for Dance Permit I have your letter addressed to the Attorney General, dated 8th of April, 1949, in which you ask for an opinion as to whether or not it is permissible under the law for a county to charge a fee for issuing a dance permit. Chapter 53-02 of the North Dakota Revised Code provides that in unorganized townships the county commissioners are the responsible authorities for the granting or refusing of a public dancing permit. Black's Law Dictionary defines a permit as "A written license or a warrant issue

OPINION 49-152 April 11, 1949 (OPINION) OFFICERS RE: Poultry Improvement Board Your letter of April 9, 1949, to the Hon. Wallace E. Warner, attorney general, has been received. You inquire as to the status of the members of the Poultry Improvement Board with reference to per diem and mileage while engaged in official duties. I call your attention to H.B. 28 which was an emergency measure and has been passed and signed by the governor. It states that the state officials, whether elective or appointive, and their deputies, assistants, and clerks, or other state employees, enti

OPINION 49-69 April 9, 1949 (OPINION) GAME AND FISH RE: Definition of "Take" Re: Section 20-0709 1947 Supplement Your letter of April 7, re the above, has come to my desk. It is my opinion that the word "take" referring to the taking of game as used in the above section, means to have the animal dead and in manual possession. To have an animal caught in a trap is not, in my opinion, the taking of the animal. It must have been killed while in the trap or snare, or cornered in some way. In my opinion, the intent of this law is to prohibit the killing of the animal by shoot

OPINION 49-33 April 8, 1949 (OPINION) COUNTIES RE: Memorials This office is in receipt of your letter of April 7 enclosing proposed resolution for adoption by the board of county commissioners of Adams County under the provisions of chapter 125 of the Session Laws of 1947 as amended by House Bill 272 enacted by the recent legislative assembly. Chapter 125 of the Session Laws of 1947 as amended by House Bill 272 of the 1949 Assembly authorizes the board of county commissioners of any county in this state to erect a memorial or memorials or other suitable recognition in commemor

OPINION 49-30 April 8, 1949 COUNTIES - Commissioners - Per Diem and Expenses Your letter of April 6 addressed to the Attorney General has been received and contents noted. You ask for our opinion relative to Senate Bill 208 and House Bill 228 enacted by the recent legislative assembly. Senate Bill 208 provides that the county commissioners in each county shall be allowed the sum of $7.00 per day while performing the duties of their office and actual traveling expenses and living

OPINION 49-26 April 7, 1949 (OPINION) CONTRACTS AND CONTRACTORS RE: Water Conservation Commission Your letter of April 5 to the Attorney General has been received and contents noted. You state that the Water Conservation Commission is contemplating the purchase of certain motor vehicles as follows: 1 Sedan Delivery 1 Carryall Sedan 1 Four-door Sedan 1 3/4 Ton Pick-up 1 3 to 4 Ton Truck These vehicles are necessary in the conduct of the work of making surveys, repairing dams, etc. You have advertised for bids and a copy of the notice of bids is attached to your l

OPINION 49-116 April 5, 1949 (OPINION) LIQUOR RE: Cashing of Checks by Licensed Dealers Your letter of April 2, 1949, re the above matter, has been received and referred to my desk for attention. Of course, cities and villages have only such powers as are given by statute, or such as are necessarily implied by statute. City of Fargo v. Sathre, Attorney General, 36 N. W. 2d 39. Municipalities, including counties, have the right to regulate the sale of beer. (Se. 5-0207 and 5-0208 N.D.R.C.) The statute relating to the regulation of the sale of beer is found in section 5-020

OPINION 49-181 April 2, 1949 (OPINION) TAXATION RE: Inheritance Re: Inheritance Tax on Local Bank Deposit of Nonresidents At a conference in your office yesterday, we were asked for an opinion on the question of the taxability of a checking account in a local bank owned by a nonresident. Your specific question is: "A nonresident deceased had a checking account in a North Dakota bank. Is this account taxable under the provisions of section 57-3703 N.D.R.C. 1943?" This section provides that: "All tangible personal property having an actual situs within this state" shall

OPINION 49-102 April 2, 1949 (OPINION) LEAVE OF ABSENCE RE: National Guard Entitled to Leave with Pay Re: Section 37-0125; of 1947 Supplement to R.C. 1943--Chap. 239 S.L. 1945 This statute provides that certain persons enumerated in said section "when ordered by proper authority to active non-civilian employment, shall be entitled to a leave of absence from such civil employment for the period of such active service without loss of status or efficiency rating, - - - - without loss of pay during the first thirty (30) days of such leave of absence." It is our opinion that where

OPINION 49-39 April 1, 1949 (OPINION) DRAINS RE: Financing Re: Section 61-2142 of 1947 Supplement Your letter of March 28th, 1949 relative to payment by Board of County Commissioners of cost of keeping established drains open and in repair as provided by section 61-2142 of the 1947 Supplement, has been received and referred to my desk. This section makes it the mandatory duty of the Board of County Commissioners to keep all established drains in their several counties open and in repair. This section provides that funds for the payment of the costs shall be levied, assesse

OPINION 49-94 March 31, 1949 (OPINION) INSURANCE RE: Reciprocity Between States On March 29 you asked me to give an opinion in answer to a telegram sent to you by an attorney, W. W. Heath of Austin, Texas. The telegram presents the following question: Under the North Dakota retaliatory law does the insurance department of the state of North Dakota require Texas companies doing business in the state of North Dakota to invest seventy-five percent of their reserves in the state of North Dakota in similar securities as is required by Texas law as a prerequisite to doing business

OPINION 49-32 March 31, 1949 (OPINION) COUNTIES RE: Memorial Levy Your letter to the attorney general, dated March 26, 1949, has been received. In your letter you desire an interpretation of chapter 125 of the 1947 Session Laws, as amended by section 11-3201, which is a portion of chapter 125 of the 1947 Session Laws, authorizing the county commissioners of any county to erect a memorial, or memorials, or other suitable recognition, in commemoration of the people of the county who rendered services in World Wars I and II. In order to erect such memorials they must use funds ou

OPINION 49-182 March 31, 1949 (OPINION) TAXATION RE: Mineral Rights Re: Chapter 340 1947 Session Laws Your letter of March 29, regarding the above law, has been received and referred to my desk. There is no provision in this law for a division of the tax with reference to the question whether or not the reservation is all or a part of the mineral rights. This tax is not an ad valorem tax. It is a privilege tax and the tax is for the privilege of reserving undeveloped any share or the whole of the mineral rights, and it makes no difference how the mineral rights are divid

OPINION 49-179 March 31, 1949 (OPINION) TAXATION RE: House Trailers Your letter of March 29, re this matter, has been received and referred to my desk. You ask whether or not a trailer house owned by a farmer and located on his farm and used by him as his farm dwelling is liable to taxation. It is our opinion that if this is a bona fide residence, it would be exempt from taxation as farm buildings generally are. The mere fact that it is on wheels would not, in our opinion, make it any less a farm building than if it were taken from the wheels and actually affixed to the gr

OPINION 49-25 March 30, 1949 (OPINION) CLERK OF COURT RE: Mechanic's Lien Your letter of March 19, 1949, addressed to the Honorable Wallace E. Warner, attorney general, has been turned over to me for attention. In said letter you ask for a construction of section 35-1222 of the 1943 Revised Code, pertaining to the discharge of mechanics' liens. Said section provides that upon written demand to the holder, suit must be commenced within thirty days or the lien shall be forfeited. This section also provides, in a separate sentence, that no lien shall be valid or effective unless t

OPINION 49-155 March 29, 1949 (OPINION) OFFICERS RE: State Senator Elected County Treasurer This is in reply to your letter of March 25 addressed to the Attorney General. You state that Mr. Frank Albers, who was elected State Senator in 1946 from your district which includes Oliver County and whose term does not expire until January, 1951 was elected county treasurer of Oliver County at the 1948 General Election. The question now arises whether under the provisions of Section 39 of the state Constitution Mr. Albers can qualify as county treasurer. Section 39 of the Constitut

OPINION 49-171 March 28, 1949 (OPINION) SOIL CONSERVATION RE: District May Employ Own Attorney Re: Section 4-2213, Section 4-2223 and Section 4-2226 R.C. 1943 Your letter of March 24th addressed to the attorney general has been received and referred to my desk for attention. You inquire with reference to the power and authority of the district to employ an attorney to assist in making collections under contracts entered into which may require the bringing of lawsuits. Section 4-2213 N.D.R.C. 1943 makes the district "a governmental subdivision of the state and a body corporate

OPINION 49-98 March 23, 1949 (OPINION) LABOR RE: Cause of Action for Female Employee Your letter of March 19, 1949, addressed to Mr. Wallace E. Warner, attorney general, has been turned over to me for attention. You ask for a construction of section 34-0113 of the 1947 Supplement to the 1943 Revised Code, and especially that part of the section which reads: "shall be brought within one year after the accrual of such cause of action, ***." Your question is, when does a cause of action accrue where a female employee is employed overtime? It is our opinion that if the employee is

OPINION 49-51 March 23, 1949 ELECTIONS — Qualification for Village Office Your letter of March 21, relating to the village election at Zap, has been received and referred to my desk. It is the opinion of this office that one who has not resided in the village for a period of at least nine months prior to the date of election is not a qualified candidate and even though he receives a majority of the votes he cannot qualify. The provisions of section 40-1301, providi

OPINION 49-95 March 22, 1949 (OPINION) INSURANCE RE: Sale of Stock With Policy This is in answer to the last paragraph of your letter of January 18, 1949, wherein you ask, "I would like to know if this stock can be sold with insurance under the requirements of section 26-1010 of the North Dakota laws." Section 26-1010 of the 1947 Supplement states in brief, that no insured person and no insurer can receive or grant rebates, favors, advantages or inducements not recited in the policy of insurance. It is evident from the documents in the file of the National Farmers Union Auto

OPINION 49-164 March 22, 1949 (OPINION) PUBLIC LIBRARY AND CEMETERY RE: Funds Re: Chapter 40-38 R.C. 1943 and Chapter 312 S.L. 1945. Your letter of March 19, with questions relative to your public library fund and cemetery fund, has been received and referred to my desk. The law authorizing the public library is chapter 40-38 of the Revised Code. There is an amendment to this chapter found in chapter 260 of the Laws of 1945. The public library which you refer to evidently is the county library established by the county commissioners. Something over a year ago, we wrote w

OPINION 49-116 March 22, 1949 (OPINION) LIQUOR RE: Airlines I have your letter addressed to the Liquor Control Division, in which you ask the question: "If you feel the serving of liquor to passengers while aloft is within the jurisdiction of your state, we would like to know the requirements under your laws and regulations to which we must submit when liquor is sold by the drink to passengers and when it is dispensed gratuitously." As to jurisdiction Sec. 2-0302 of the N. D. Revised Code of 1943 states: "Sovereignty in the space above the lands and waters of this state is d

OPINION 49-51 March 17, 1949 ELECTIONS — Publications Re: Section 15-5318 1947 Supplement Your letter of March 15, asking our interpretation of the above section, has been received and sent to my desk. It is our opinion that the published notice must be so published that the first publication is at least 30 days prior to the day of the election; that is, if the election were to be held on the 31st day of the month, the first publication would have to be at least as early as the

OPINION 49-189 March 17, 1949 (OPINION) TAXATION RE: Township Levy Re: Sections 57-15191 and 57-1520 1947 Supplement Your letter of March 16, concerning the amount of permissible levy in a township, has been received and referred to my desk. This office has construed section 57-15191 as providing for a special fund outside of the levy limitation prescribed by section 57-1520. Section 57-15191 permits a special levy not to exceed 8 mills for road surfacing. This section does not authorize this special fund to be used for anything other than the surfacing of highways and is