North Dakota AG Opinions, 1951

OPINION 51-123 June 26, 1951 (OPINION) OFFICERS RE: Offices of Judge of County Court and Justice of the Peace not Incompatible In your letter of June 14 you state that you have a situation in Divide County where it is necessary to have the judge of the county court and the clerk of the district court a combined office appointed by your county commissioners as justice of peace. You state that this necessity arises from lack of suitable persons to so act as a justice of peace. It is our opinion that there is no conflict. The test in such cases is whether or not there is a co

OPINION 51-127 June 20, 1951 (OPINION) PARENT AND CHILD RE: Termination of Parental Rights, Adoption, Power of the Court Your have asked the Attorney General for an opinion regarding some features of our statutes pertaining to termination of parental rights and adoptions. One question is whether a district court in hearing a divorce case can issue a decree effectively terminating the parental rights of either party to the divorce action to the offspring involved. Another question raised by your request is, if an unmarried mother goes before a county judge as required in section

OPINION 51-129 June 18, 1951 (OPINION) PLUMBERS RE: Master Plumber Cannot sit as Journeyman Member on Board You ask for an opinion regarding section 42-1801 of the Revised Code of 1943. You state in your letter of June 11 that the State Association of Master Plumbers wishes to submit a candidate for a position on the board who is licensed master plumber and you state that he also is licensed as a journeyman plumber. You state that the candidate in question will sit as the journeyman member of the board. You also state that it is your opinion that the appointment would not b

OPINION 51-37 June 14, 1951 (OPINION) COUNTIES RE: Microfilming of County Records You have requested the opinion of this office as to the legality of the recording of various county instruments through the microfilming procedure, and the subsequent destruction of the records now kept. In some instances our laws may provide that the county official must keep the original document for recording purposes. In those cases, of course, where the law is mandatory, it is clear that the original of the document must be kept for the required number of years before it can be destroyed.

OPINION 51-37 June 14, 1951 (OPINION) COUNTIES RE: Memorial Funds Your letter of June twelfth calls for an interpretation of section 11-3201 1949 Supplement to N.D.R.C. 1943. This section provides several sources of funds for the memorial fund created by section 11-3202 Supplement; among them are the following: 1. Funds out of the general fund of the county; 2. Funds which have been raised by taxation for memorial construction; 3. Funds to be raised by special annual levy for five years; 4. Private donations. Clearly the memorial fund consists of moneys from all of th

OPINION 51-31 June 11, 1951 (OPINION) COUNTIES RE: County Commission Powers The question your board of county commissioners left for the Attorney General to answer the other day has been referred to the undersigned for attention and reply. You ask whether or not in our opinion the board of county commissioners has the authority to enter into a contract with anyone for the purpose of starting a law suit aimed at getting a reversal of the holding of the North Dakota Supreme Court that counties cannot reserve unto themselves fifty percent of mineral rights in tax deeds issued by

OPINION 51-210 June 11, 1951 (OPINION) WORKMEN'S COMPENSATION This is in answer to your request for an opinion on the following question - are the North Dakota workmen's compensation statutes intended to be final and conclusive in determining all the employees rights against the employer and insurer growing out of an injury in the course of the employment in the state of North Dakota. The pertinent sections that govern this are section 65-0108, which states, "An employer securing the payment of compensation to his employees by contributing premiums to the fund shall be relieved

OPINION 51-108 June 11, 1951 (OPINION) MONEYS RE: Distribution of Remittance Received from Sale of Confiscated Car You state that the office of the State Treasurer has received a check from the County of Burleigh, dated May 16, 1951, No. 3017 and in the amount of $1884.12. This remittance is money from the sale of a confiscated car. You request the opinion of this office as to the distribution or crediting of the above mentioned money. Section 29-3108, N.D.R.C. 1943 provides: "After deducting the costs and expenses of a proceeding for sale under this chapter (Confiscation

OPINION 51-178 June 7, 1951 (OPINION) TAXATION RE: Gasoline You have submitted the following questions to this office for an opinion: We submit the following questions which we would like to have interpreted. Please let us know whether or not the following Federal Government Agencies are exempted from the North Dakota gasoline tax. 1. Federal Government-owned vehicles operated exclusively by Federal Government personnel. 2. Federal Government-owned vehicles operated by private contractors which are engaged in the performance of Federal Government contracts. 3. Priva

OPINION 51-82 June 4, 1951 (OPINION) INSTITUTIONS RE: Request for Cadavers from University Medical Department You have requested the opinion of this office as to the method of procedure and whether parent or guardian consent is needed in cases where the department of anatomy of the University of North Dakota has requested bodies which are to be buried at public expense for the purposes of dissection. Section 23-0614, N.D.R.C., 1943, provides: * * * medical school, upon request, may receive and remove free of charge the bodies of the following deceased persons, if such bodies a

OPINION 51-105 June 2, 1951 (OPINION) MINERALS RE: Procedure When State Leases You request an opinion to House Bill 708, as well as the manner in which the state and its political subdivisions lease an interest in oil and gas. House Bill 708, passed at the thirty-second session of the legislative assembly, with the emergency clause attached, in its first section simply provides for the leasing of lands owned in whole or in part by the state under the terms of the act. Section 2 of the act provides that the state of North Dakota or any of its departments or agencies shall adver

OPINION 51-126 May 29, 1951 (OPINION) OPS RE: Conflict of State and Federal Laws House Bill 613, passed by the 1951 legislative assembly, provides for an increase in charges allowed on a warehouse and storage contract. Prior to the passage of this measure, grain was insured and stored subject to the charges provided in section 60-0217, NDRC, 1943, as follows: a. One-thirty-sixth of one cent net bushel per day, provided, however, that no storage shall be charged for grain so stored for 15 days from date of delivery. b. Payment or tender of a delivery charge per gross bushel

OPINION 51-75 May 25, 1951 (OPINION) HIGHWAYS RE: Compensation for Moving Poles on Right-of-way You have forwarded to this office a letter from Mr. Frank Hall, secretary of the Edinburg-Gardar Telephone Company, Edinburg, North Dakota, dated April 27, 1951. In that letter Mr. Hall stated: This is to let you know that we are not going to remove our telephone line in Walsh county along highway No. 32, at our expense. We have franchise from the township of Hampton, which is legal, and since the company was organized we have been paid for removal of all lines." We understand th

OPINION 51-85 May 23, 1951 (OPINION) INSURANCE RE: Purchase by Grafton State School The Attorney General's office is in receipt of a letter from an insurance agency inquiring whether or not the Grafton State School can buy an automobile policy from an assessable company, or a company which also requires a membership. Section 26-1411 N.D.R.C. 1943, provides: Any public or private corporation, board, or association in this state or elsewhere may make applications and enter into agreements for, and hold, policies in, any mutual insurance company organized under the provisions of

OPINION 51-147 May 23, 1951 (OPINION) SCHOOL DISTRICTS RE: Powers of Directors in Special You have requested an opinion from this office regarding the powers of the directors of a special school district. This question is propounded by you as you claim that statements are made that after a special school district is formed the officials of such school district have power to make excess levies, incur excessive indebtedness and burden the school district with excessive taxes. In response to your request we wish to inform you that special school districts have limitations on lev

OPINION 51-93 May 22, 1951 (OPINION) INSURANCE RE: What Property May A County Mutual Insure Your letter of May 11, 1951 enclosing a copy of policy No. 2023 of The Kenmare Farmers' Mutual Fire and Lightning Insurance Company, purporting to insure property belonging to Renville County has been received. After consulting the records in the Insurance Department we find that the Kenmare Farmers' Mutual is what is known as a 26-15 company, or county mutual. As a county mutual the territorial limits of the company's operation are defined by section 26-1513 and subsection 3 of 26-15

OPINION 51-197 May 22, 1951 (OPINION) UNIVERSITY RE: Bond Required When Medical Department at University Uses Cadaver In your letter of May 8, 1951, addressed to P. O. Sathre, State Supreme Court, and which letter was referred to this office, you request an interpretation of statute 23-0614, NDRC, 1943, which permits the use of human cadavers in medical instruction, together with statute 23-0616, NDRC, 1943, which requires that a bond be given by the medical school to officers surrendering bodies to the school. You state that it is difficult for the department or officer in cha

OPINION 51-176 May 22, 1951 (OPINION) TAXATION RE: Exemption of Farm Structures In your letter of May 17, 1951, you state that a problem has arisen relative to the construction of section 57-0208, NDRC, 1943, which reads in part as follows: All property described in this section to the extent herein limited shall be exempt from taxation, that is to say: * * * 5. All farm structures, and improvements located on agricultural lands. This subsection shall be construed to exempt farm buildings and improvements only, and shall not be construed to exempt from taxation industrial p

OPINION 51-166 May 22, 1951 (OPINION) STATUTES RE: Where No Appropriation in Act, Department May Petition Emergency Your letter dated May 18, 1951 has been received. In this letter you state that under the provisions of House Bill 760 the inspection of nurseries and nursery stock was placed in the Department of Agriculture, but the bill carried no appropriation for the cost of administration. Our supreme court in several instances has held that where an act provides that a certain salary is to be paid and where there is no specific appropriation, the declaration in the act fi

OPINION 51-122 May 21, 1951 (OPINION) OFFICERS RE: Judges - RETURN OF Retirement Contributions We have your letter of May 17 requesting an opinion as to the application made by Beth R. Thomson as executrix of the estate of Harold P. Thomson for repayment of contributions made to the retirement fund of judges. Chapter 206 of the 1949 Session Laws provides for retirement of justices of the supreme and district courts. Section 2 of that act provides that the judge shall pay an assessment of five per cent of his salary. The 1949 law had a provision that if any judge of the sup

OPINION 51-42 May 18, 1951 (OPINION) COUNTIES RE: Right to Delay Rentals After Supreme Court Decision Held Countie Could Not Retain an Interest In your letter of May 4, 1951, you state that your first problem is this: Section 38-0910, N.D.R.C., 1943, provides for rents and royalties after termination of the county's interest in land. You state that your county has held considerable land in the past which has been sold and consequently it has obtained a considerable amount of mineral interest, all of which was held void under the Supreme Court decision in the case of Northwes

OPINION 51-56 May 16, 1951 (OPINION) EDUCATION RE: City Superintendent of Schools Need Not Be Bonded I have searched and cannot find any law in the State of North Dakota requiring a city superintendent of schools to be bonded. It is therefore my opinion that a city superintendent of schools is not a "public employee, who is required by any law of this state to be bonded" as defined in section 26-2301, N.D.R.C. 1943. Unless further good reason is shown why city school superintendents should be bonded, I recommend that such bonds be denied. ELMO T. CHRISTIANSON Attorney Genera

OPINION 51-135 May 16, 1951 (OPINION) PRINTING RE: 1951 Amendment No Effect on Prior Valid Contract You state that you have a contract outstanding on pamphlets which does not expire until December 31, 1952. Senate Bill 64, which amended the law covering the classes of printing, also provides that separate contracts for each class shall be let by the commission under competitive bidding in accordance with the provisions of the printing law. This law, which did not carry an emergency clause, will become effective in July, 1951. You would like to know the effect of this law as o

OPINION 51-69 May 14, 1951 (OPINION) GAME AND FISH RE: Procedure on Seizure of Property Unlawfully Used in Taking Game Your letter of May 10 re above matter has come to my desk. You ask for the proper procedure of a warden on seizure of property unlawfully taken or used in the taking of fish or game, especially in view of H.B. 694, which amends section 20-1001 N.D.R.C. Section 20-1001 as amended sets forth particularly what may be seized, so there is no reason to set the same forth herein. This part of the section remains as it was before the amendment. The amendment relate

OPINION 51-191 May 8, 1951 (OPINION) TAXATION RE: Use Tax on House Trailers Your letter of May 8, 1951 has been received. You ask for an opinion on how the use tax can be applied to house trailers under recent legislation which will become effective July first, 1951. You further ask whether you can collect the use tax before you issue titles on house trailers. Under the provisions of Section 57-4002 a use tax is imposed on the storage, use or consumption in this state of tangible personal property purchased at retail for storage, use or consumption in this state at the rat

OPINION 51-57 May 2, 1951 (OPINION) EDUCATION RE: What Constitutes Regular Enrollment In your letter of April 28, 1951, you ask for an opinion from this office as to what constitutes regular enrollment under section 15-4014, N.D.R.C., 1943, as amended. You state that it is your understanding that the superintendent of public instruction interprets that section to mean regular attendance. You state further that it is your contention that a student is regularly enrolled even though he may miss a few days during the term. This office agrees with your contention. In reading the

OPINION 51-112 May 2, 1951 (OPINION) MOTOR VEHICLES RE: Registration of Trucks Used For Well Drilling You have submitted to this office the question of whether or not a truck on which is mounted well drilling equipment must be registered under our laws. We understand that generally the well drilling machine is built on the frame of the truck and derrick is carried over the top of the machine and over the cab with a support built on the front of the truck to carry the top end of the derrick. We understand further that the vehicles in question travel on the state highways whe

April 30, 1951 (OPINION) RESIDENCE RE: Old Age Assistance Yours of the 24th inst. in the above matter has been referred to my desk. This matter relates to the legal residence of Bertha Locken, of Northwood, North Dakota. The facts as stated to us are as follows: "Mrs. Bertha Locken is residing at Northwood, North Dakota and has recently talked with the rural caseworker regarding old age assistance. Mrs. Locken is the legal wife of Carl Locken who, we believe, is receiving old age assistance at the present time in Minot, North Dakota. Mrs. Locken told the worker that she h

OPINION 51-86 April 28, 1951 (OPINION) INSURANCE RE: Reserve Fund - Assessments After considering the situation explained in your letter of April 20, addressed to the Attorney General, and consulting the records, reports and statutes relative to the Fire and Tornado Fund, it would appear that several changes were made in 1947 with respect to the amount of reserve required and the manner by which the Fire and Tornado Fund was to be brought up to this new reserve requirement. For the purpose of this discussion and to arrive at proper answers to your questions, for comparison, we

OPINION 51-65 April 28, 1951 (OPINION) FEES RE: Not Authorized to Charge Fee for Inspection of Pumps Not Used to for Distribution You recently called at this office and requested an opinion concerning the inspection and fee schedule for the calibration of certain storage and bulk loading tank meters. You stated that a certain North Dakota station has refused to allow your inspectors to test its loading tank meters. Its refusal is based upon the proposition that the meters were used only for the loading of the company's own trucks and not for measuring products for sale. You

OPINION 51-36 April 26, 1951 (OPINION) COUNTIES RE: Limitation on Compensation of Commissioners Your letter of April 18, 1951, addressed to the attorney general, has been received. A part of section 11-10104 of the 1949 Supplement provides: * * *The total compensation and expense (allowed to county commissioners for the calendar years 1949, 1950, 1951, and 1952), including per diem, board and lodging and transportation expense received by any member of the board of county commissioners in any county having a population of eight thousand or less shall not exceed twelve hundred

OPINION 51-116 April 25, 1951 (OPINION) OASIS RE: Construction of 1951 Amendment This office has your letter of April 20, 1951, asking for a construction of Senate Bill 53, having specific reference to the effect of said bill upon persons receiving benefits under section 52-0914 and what their status will be after Senate Bill 53 becomes a law on July 1, 1951. After the first of July, 1951, the various sections of the law which will be in force are as follows: Subdivision a of section 52-0914, relating to benefit payments. You will note that this section refers to section f o

OPINION 51-48 April 18, 1951 (OPINION) CRIMINAL PROCEDURE RE: Arrest Your letter of April 12, 1951, concerning arresting procedure for certain traffic violations, has been received. Section 39-0709, of the North Dakota Revised Code of 1943, provides in part that: The arresting officer forthwith shall take any such person (one arrested and charged with any of the listed specific violations) before the nearest or most accessible magistrate." If the arresting officer did not follow this procedure, but rather released the accused upon written promise to appear, under the provisio

OPINION 51-188 April 18, 1951 (OPINION) TAXATION RE: Taxable assessed Valuation for Purpose of Levy In reply to yours of the 16th inst. we will say, that it is our opinion that the words "taxable assessed valuation" as used in section 15-5330 of the 1949 Supplement mean the valuation against which the taxes are levied, that is, 50 percent of the actual assessed valuation; in other words, the actual values as determined by the assessor. Therefore, under this section the remaining portion of a district not included in a reorganized district would have to have an actual assessed

OPINION 51-184 April 18, 1951 (OPINION) TAXATION RE: Nonprofit Incorporated Liquor Outlets in Cities You state in your letter of April 16, 1951, that the question of the taxability of income and physical properties of nonprofit incorporated liquor outlets which have been substituted in a number of cities for the municipal liquor stores has been reopened by representatives of the League of Municipalities. It is the opinion of this office that a corporation organized for the purpose of selling intoxicating liquor, although its profits or net income are donated to a municipality,

OPINION 51-196 April 17, 1951 (OPINION) UNFAIR TRADE RE: Not Illegal to Prefer One Distributor You ask the opinion of our office as to whether the practice hereinafter described is in violation of any law of this state. This practice relates to two milk plants which you designate as plants "A" and "B." You state that plant "A" was informed by one of his wholesale outlets that his competitor, plant "B", was giving a discount below the regularly scheduled wholesale price on their pasteurized milk. The question then is this: May one wholesaler of milk give a discount to one

OPINION 51-120 April 17, 1951 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Nursing Certificate - Fee You requested the opinion of this office concerning the amount of fee and penalty required for renewal of the professional nursing certificate. Section 43-1221 of the North Dakota Revised Code of 1943 provides: "A certificate of registration issued under the provisions of this chapter shall be valid for only one year and shall be renewed on or before the fifteenth day of February in each year. The fee for the renewal certificate shall be one dollar. On January first the secretar

OPINION 51-78 April 12, 1951 (OPINION) HIGHWAYS RE: Donation of Right-of-Way In a conference held in this office you stated that some former Attorney General of the state of North Dakota had issued an opinion to the effect that farmers owning land on a highway proposed to be built by the State Highway Department could not donate the right-of-way required in order to construct the highway, but that such had to be purchased by the county commissioners. This is to inform you that we can find no record of any opinion and if any such opinion was given, that it would be in error. A

OPINION 51-33 April 11, 1951 (OPINION) COUNTIES RE: Duty of Register of Deeds in Making Chattel and Real Estate Abst Your letter of the ninth instant in which you request our opinion as to the duties of registers of deeds in the matter of the making of chattel and real estate abstracts has been received. By section 11-1801 it is made the duty of the register of deeds to make either a chattel abstract or to continue a real estate abstract whenever it is requested that he do so, and the applicant pays the statutory fee therefor. Section 11-1805 provides the fees to be charged as

OPINION 51-77 April 5, 1951 (OPINION) HIGHWAYS RE: Department May Enter Into Agreement with ASF to Make Research St Your letter of March 30, 1951 has been received. You inquire as to whether or not the North Dakota Highway Department would have authority under the North Dakota law to enter into agreements with the Automotive Safety Foundation for the purpose of making research studies with reference to highways. This office issued an opinion on December 28, 1950. That opinion was in response to a request from your office as to whether or not you were authorized to expend mo

OPINION 51-194 April 5, 1951 (OPINION) TOWNSHIP RE: Failure to Hold Annual Meeting Your letter of March 30th has been received. You state that your township did not hold its annual meeting and you ask for our opinion on three specific questions, viz., 1. Can the levy as made for the year of 1950 be transferred also for the year 1951? 2. If 12 freeholders do not petition for a later date of election would then the township lose its levy for 1951, or can the supervisors cause the levy of 1950 to be transferred also to 1951? 3. Is it legal procedure for a township to pos

OPINION 51-29 April 3, 1951 (OPINION) COUNTIES RE: Coroner - Right to Order Post Mortem Without a Coroner's Jury Your letter of March 24, 1951, has been received. You say that in your county you do not have the facilities for holding a dead body, without embalming first, until a coroner's jury meets to decide whether an autopsy is necessary. Embalming before an autopsy can destroy valuable post mortem informations. You would like to know if a county coroner may order a post mortem examination by a licensed physician of a dead body in order to determine the cause of death: (

OPINION 51-177 April 2, 1951 (OPINION) TAXATION RE: Federal Government Exempt From Gas Tax Your letter of March 22, 1951, addressed to the attorney general, has been received. Our recent legislative assembly passed Senate Bill No. 181, which amended both section 57-4106, NDRC, 1943, the three cent motor vehicle fuel tax, and section 57-4809, Supp. 1949, the one cent motor vehicle fuel tax. This tax was formerly charged against the vendor, but under the amendment now will be a tax on the sale, collectible by the motor vehicle fuel dealer. You would like to know whether this c

OPINION 51-195 March 30, 1951 (OPINION) TOWNSHIPS RE: Use of Road Levy Limited Your letter of March 27, 1951, has been received. In your letter you ask for a construction of chapter 353 of the 1947 Session Laws, being House Bill 234 of that session. You inquire if the funds produced by an 8 mill levy levied pursuant to an election in an organized township under said chapter for the surfacing of highways within such township can be used for any other purpose except surfacing highways. You will note that the material section of said act reads as follows: "The electors of each or

OPINION 51-185 March 30, 1951 (OPINION) TAXATION RE: Reporting Joint Tenant Income Advice is requested with respect to the manner in which income from property owned by husband and wife as joint tenants or as tenants in common must be reported under the North Dakota income tax law. The general rules relating to joint tenants and tenants in common are applicable to husband and wife when they are deemed to hold as joint tenants and tenants in common, provided the common law disabilities of the wife have been removed by statute so that the rules apply." 41 C.J.S. 454, Section 33

OPINION 51-180 March 30, 1951 (OPINION) TAXATION RE: Governmental Agencies - Motor Vehicle Fuel Tax Your letter of March 22, 1951, to the attorney general, has been received. In your letter you inquire whether, under the provisions of Senate Bill 104 enacted by the recent North Dakota legislature, governmental agencies are required to pay the one cent motor vehicle fuel tax imposed by that act. As we construe the act, the tax is on the consumer, and in view of the decision laid down in the case of Federal Land Bank of St. Paul v. Bismarck Lumber Company, 314 U.S., 95, and supp

OPINION 51-121 March 30, 1951 (OPINION) OFFICERS RE: Duties of State Auditor Under HB 752 We have your letter of March 29, 1951, which reads as follows: "Will you kindly favor us with your opinion as to what are the state auditor's duties under House Bill No. 752 providing expense for elected state officers? Shall payments under this bill be approved by the state auditing board?" In reply to such letter, we are of the opinion that it is your duty to pay to the secretary of state, the state auditor, state treasurer, commissioner of insurance, each of the public service commiss