North Dakota AG Opinions, 1970

OPINION 70-122 June 16, 1970(OPINION) Mr. Richard B. Bear Assistant State's Attorney Burleigh County RE: Counties - Public Defenders - Authority of County to Cooperative This is in response to your letter in which you state that pursuant to action taken by the Burleigh County Bar Association, a study was made which concluded that the utilization of a regional public defender was feasible and that efforts should be undertaken to initiate a pilot project for this purpose in a nine (9) county area, surrounding and including Burleigh County. The proposed project contemplates that each coun

OPINION 70-107 June 11, 1970(OPINION) Mr. A. J. Pederson Burke County Justice RE: Counties - County Justice - Jurisdiction This is in response to your letter in which you ask does the County Justice have jurisdiction to try cases arising out of violations of section 19-03-28.1, as amended, of the North Dakota Century Code. Normally we do not answer legal questions for any person holding a judicial position lest we be accused of interfering with due process of law. However, the question of jurisdiction is one where the jurisdiction is with the Court or it is not, depending on the nature

June 10, 1970 (OPINION) Mr. John B. Hart State's Attorney Rolette County RE: Motor Vehicles - Tests for Intoxication - Type of Test This is in response to your letter of June 4, 1970, in which you state that in certain instances persons who are arrested while driving under the influence demand a blood test instead of a breathalyzer test. When this occurs the peace officer takes the person arrested to the Rolla Community Hospital where a technician (non-doctor) takes the blood sample. The Rolla Community Hospital then bills the County $25.00 for taking such blood sample. Yo

OPINION 70-52 June 9, 1970(OPINION) Mr. Dale W. Moench City Attorney Dickinson, North Dakota RE: Cities - Planning and Zoning Commission - Membership This is in response to your letter in which you ask for an opinion as to what number comprises the Planning and Zoning Commission. You call our attention to section 40-49-03, as amended, and to section 40-48-10, as amended. You the ask what is the total membership of a planning and zoning commission. You also ask, does the two-thirds vote of the membership as set out in section 40-48-10, as amended, contemplate two- thirds of the entire

June 8, 1970 (OPINION) Mr. Orrin B. Lovell State's Attorney Golden Valley County RE: Judgments - Register of Deeds - Recording Partial Judgment This is in response to your letter in which you enclosed a copy of the Attorney General's opinion dated April 5, 1955, and a copy of the stamp which is ordinarily used by the register of deeds, which you believe is more or less commonly used throughout the State of North Dakota. You then state the following: The Register of Deeds received a certified copy of a judgment and decree in distribution out of the Burleigh County Court. The jud

OPINION 70-117 June 4, 1970(OPINION) Mr. Albert J. Hardy Assistant State's Attorney Stark County RE: Counties - Housing Authority - County Commissioners May Not Invest This is in reply to your letter of May 15, 1970, wherein you request our opinion as to the legality of a chairman of a board of county commissioners investing a county housing authority under the Housing and Urban Development Act. Section 12-10-06 of the North Dakota Century Code provides that no public officer authorized to sell or lease any property, or make any contract in his official capacity, shall become voluntari

June 2, 1970 (OPINION) Honorable Carl Boustead State Representative, Thirty-second District RE: Taxation - Sales Tax - Exemption for Zoo This is in reply to your recent letter relative to the above-captioned matter. You state the following facts and questions: The Dakota Zoological Society, Inc., is a nonprofit corporation which in conjunction with the Bismarck, North Dakota Park District and Board operates the Dakota Zoo, located in Bismarck, North Dakota. It is my understanding that the city of Bismarck through its Park Board owns the real estate of the Dakota Zoo location

OPINION 70-90 May 29, 1970(OPINION) Mr. Charles E. Crane State's Attorney Hettinger County RE: Counties - Combination of Offices - Effective Date This is in response to your letter in which you ask for our opinion on the following matter: "Hettinger County has reportedly dropped to under 6,000 population as a result of the present Federal Census. "Chapter 11-10-02 of the North Dakota Century Code as amended provides that 'Counties having a population of 6,000 or less, the Register of Deeds shall be Ex Officio of the District Court and County Judge.' This County has always hereto

OPINION 70-62 May 28, 1970(OPINION) Mr. Jon R. Kerian Assistant City Attorney Attorney for Planning Commission Attorney for Minot Urban Renewal Agency RE: Cities - Urban Renewal Agency - Conflict of Interest Your letter of May 19, 1970, states in substance that on November 6, 1967, the City Council, pursuant to Section 40-58-05 of the North Dakota Century Code, adopted a resolution which found that one or more blighted areas existed in the City of Minot and that rehabilitation, conservation and redevelopment were necessary. The resolution also provided that the renewal powers be exer

OPINION 70-102 May 14, 1970(OPINION) Mr. Robert L. Striebel State's Attorney Slope County RE: Counties - County Judges - Fees for Certified Copies This is in reply to your letters dated April 24, 1970, and May 8, 1970, with regard to fees to be charged by the County Judge for certified copies furnished upon request to interested parties. We are enclosing herewith a copy of an opinion dated April 21, 1969, written by this office and addressed to the Judge of the County Court of Increased Jurisdiction of Burleigh County, with regard to this general subject. While obviously some of the

OPINION 70-59 May 13, 1970(OPINION) McGee, Van Sickle, Hankla, Backes & Wheeler Attorneys for the City of Surrey Minot, North Dakota RE: Cities - Special Improvements for Sewer and Water Protests This is in reply to your letter with regard to a prospective special improvement project being undertaken by your firm for a North Dakota city. You inform us that as an adjunct to its original water and sewer system, the City of Surrey has created Water and Sewer Improvement District No. 2, which will consist of the construction of 1,360 feet of sewer main and 1,430 feet of water main, togethe

May 13, 1970 (OPINION) Honorable Ben Meier Secretary of State RE: State - Public Buildings - Contracts This is in response to your letter in which you ask for an opinion on the following: 1. Can a department, agency, board or commission negotiate with the bidder or bidders when the total low base bid or bids exceeds the sum of moneys authorized for the project? 2. When alternate proposals are a part of the general plans and specifications, can a department, agency, board or commission accept any alternates they consider to be in the best interest of the state or the project

OPINION 70-479 May 12, 1970 (OPINION) Honorable Shiro Kashiwa Assistant Attorney General Land and Natural Resources Division U.S. Department of Justice Washington, D.C. RE: Taxation - Real Property Tax - Proration Between Vendor and Purchaser This is in response to your letter in which you relate that in instances in which the United States acquires title to land by direct purchases it has been the requirement of your department that all ad valorem taxes which have become a lien on the property must be paid, and if they are not due and payable at the time of settlement, a sufficient sum mus

May 11, 1970 (OPINION) Mr. Lloyd F. Zander Commissioner Department of Veterans' Affairs RE: Counties - Veterans' Service Officers - Mileage and Travel Expen This is in response to your letter in which you relate that during a recent conference it was learned that a variation exists as to reimbursement to county veterans' service officers for personal vehicle mileage in the various counties in the State of North Dakota. One county allowed 7 1/2 cents per mile, other allowed 8 1/2 cents, and still others allowed 9 cents. Some counties allow only $12.00 for meals and lodging per

May 6, 1970 (OPINION) Mr. H. J. Snortland Assistant Superintendent Department of Public Instruction RE: Schools - Teachers - Attendance at NDEA Conventions This is in reply to your letter of April 27, 1970, in which you set forth the following facts and questions: State law requires the school board to allow teachers to attend the NDEA Convention. School districts are also paid from the foundation program for these two days. A question has arisen as to whether teachers who are not members of the association should be permitted to be absent from school during the NDEA Conventi

May 4, 1970 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County RE: Counties - Weather Modification - Authority This is in reply to your letter of April 28, 1970, relative to Chapter 2-07 of the North Dakota Century Code, as amended, establishing a weather modification act. You state the following facts and questions: 1) Section 2-07-08 requires bids be taken where the contract exceeds $10,000.00 per year. The statute states that the county commissioners shall advertise for bids in the manner required by the laws of the state, and the county commissioners shall

April 28, 1970 (OPINION) Senator Richard E. Forkner Chairman, Legislative Council Committee on Transportation RE: Roads - Classification - Authority of Highway Department We acknowledge receipt of your letter of April 21, 1970, requesting an opinion relating to the legality of functional classification of highways and the legal effect of such a classification. You have asked that we reply to the following specific questions: 1. May the State Highway Department engage in a functional classification study of all public roads in North Dakota with or without the cooperation of t

OPINION 70-470 April 24, 1970 (OPINION) Mr. Byron L. Dorgan State Tax Commissioner RE: Taxation - Personal Property Tax Repeal - Replacement This is in response to your letter in which you state the following: As you know, the 1969 Legislature repealed taxation of locally assessed personal property and, as part of the repealing act, enacted section 57-58-01 N.D.C.C. Supplement (section 20 of chapter 528, S.L. 1969). This section provides for state-collected revenue to be distributed back to the counties and other political subdivisions to replace revenue that those taxing un

OPINION 70-115 April 21, 1970(OPINION) Mr. William D. Yuill Assistant State's Attorney Cass County RE: Counties - Employee Pension Plan - Private Companies This is in response to your letter of April 10, 1970, wherein you request an opinion of this office with regard to the property of Cass County contracting with private firms in funding and operating an employees pension plan. Together with copies of correspondence which you have had concerning the matter, you submit a xerox copy of an opinion dated March 10, 1970, which apparently your office rendered to the Cass County Commission,

OPINION 70-338 April 15, 1970 (OPINION) Colonel Ralph M. Wood Superintendent North Dakota Highway Patrol RE: State - Highway Patrol Retirement System - Disability Retirement This is in reply to your letter of April 7, 1970, concerning sections 39-03A-15 and 39-03A-16 of the North Dakota Century Code, relative to the North Dakota Highway Patrol Retirement System. You state the following question: Is an officer of the North Dakota Highway Patrol who becomes physically unable to continue to perform the duties of an officer and yet may be qualified for other employment eligible

OPINION 70-336 April 13, 1970 (OPINION) Mr. Walter R. Hjelle State Highway Commissioner RE: State - Highway Department Employees - Relocation Costs This will acknowledge receipt of your request for an Opinion as to your legal authority to adopt a policy and make relocation cost payments to Highway Department employees who are permanently transferred from one headquarters location to another when such transfer is deemed to be the most beneficial to the State. The Legislature authorized you to determine the "compensation" to be paid to Highway Department employees in section 24-0

OPINION 70-408 April 10, 1970 (OPINION) Mr. Byron L. Dorgan Tax Commissioner RE: Taxation - Exemption for New Industries - Application This is in response to your letter in which you set forth some of the problems encountered in the interpretation of Chapter 40-57.1 and advise that there are presently before the board applications for the tax exemption. You then ask for an opinion to help formulate policies that will guide the board in its future actions on the administration of Chapter 40-57.1. You further state that the State Board of Equalization has directed you, as sec

OPINION 70-231 April 7, 1970 (OPINION) Mr. Ralph M. Wood Colonel, North Dakota Highway Patrol RE: Motor Vehicles - Operation While Under Influence - Applies Off H This is in reply to your letter of March 31, 1970, with regard to the application of the provisions of chapter 39-08 of the North Dakota Century Code to off-highway situations pursuant to the provisions of Section 39-10-01 of the 1969 Supplement to the North Dakota Century Code. The statutes specified in your letter, Sections 39-08-01 and 39-10-01 of the North Dakota Century Code, as amended, provide as follows: PERS

OPINION 70-84 April 6, 1970(OPINION) Mr. Robert Q. Price State's Attorney Cavalier County RE: Counties - County Coroner - Assistants This is in response to your letter in which you call our attention to Section 11-19A-05. You then ask an opinion on the question, "Does the law of the State require that an assistant coroner be a citizen of the United States?" Section 11-19A-05 provides as follows: "11-19A-05. APPOINTMENT OF ASSISTANT. The coroner may appoint in writing an assistant coroner or coroners who shall be licensed physicians of good standing in their profession and/or pa

OPINION 70-508 April 6, 1970 (OPINION) Mr. Neil Thompson State's Attorney Ramsey County RE: Townships - Clerk and Treasurer - Merger of Offices This is in response to your letter in which you state the following: At the last township election held in Creel Township, Ramsey County, North Dakota, the following problem was created: A Clerk was elected as a result of the election; A Treasurer was elected as a result of the election; The offices of Clerk and Treasurer were merged as a result of the same election. I, therefore, request your opinion as to whether or not the merger

OPINION 70-493 April 6, 1970 (OPINION) Mr. Richard B. Thomas State's Attorney Ward County Court House RE: Taxation - Tax Deed - Effect on Special Assessments This is in response to your letter of March 26, 1970, wherein you make inquiry regarding a letter sent from this office dated February 13, 1970, addressed to Mr. Glenn Dill, Assistant State's Attorney, Minot, North Dakota, and request that this office supply Mr. Dill with an official opinion which encompasses the material set forth in such letter. Accordingly, our response to your inquiry of March 26, 1970, will constitu

OPINION 70-24 April 6, 1970(OPINION) Mr. Garylle B. Stewart Assistant City Attorney Fargo, North Dakota RE: Alcoholic Beverages - Licenses - Hospitals and Nursing Homes This is in response to your letter in which you ask if this office has issued a ruling whether or not hospitals or nursing homes may furnish beer or liquor to their patients and that we provide you with a copy of such ruling. If no such ruling has previously been issued, then you ask for an opinion whether or not such hospitals or nursing homes may furnish beer or liquor to the patients. You also inquire as to the legali

OPINION 70-456 March 5, 1970 (OPINION) Honorable Byron L. Dorgan Tax Commissioner RE: Taxation - Personal Property Tax Repeal - Classification of Prop This is in response to your letter in which you state that a number of questions have arisen since the repeal of the personal property tax. You also point out that probably the most important is the question of what constitutes "real" property and what constitutes "personal" property. You further advise that in April and May of 1969, following the repeal of the personal property tax, your department issued guidelines to the a

OPINION 70-66 April 1, 1970(OPINION) Mr. Russell Staiger Planning Administrator State Planning Division RE: Cities - Zoning and Platting - Inclusion of Extra-Territorial Ar This is in reply to your letter of March 25, 1970, relative to section 40-48-18 of the North Dakota Century Code, as amended. You state the following facts and questions: "In the process of preparing a Comprehensive City Plan for an incorporated North Dakota city, a question has been raised as to the intent of 40-48-18, N.D.C.C. and Senate Bill 158 (1967 session). The particular section of the Century Code and th

OPINION 70-9 March 30, 1970 (OPINION) Mr. Leland R. Miller Dairy Commissioner Department of Agriculture RE: Agriculture - Dairy Processors - Surety Bonds This is in response to your letter of March 17, 1970, wherein you make a request for an opinion of this office regarding amounts reported by milk and dairy processors as determining the amount of surety bond or certified bank draft referred to in section 4-30-03 of the North Dakota Century Code, as amended. You submit the following facts and observations in your letter of inquiry: "An opinion is requested relative to deductions made

OPINION 70-537 March 30, 1970 (OPINION) Mr. Leo G. Novacek Acting Superintendent Bureau of Criminal Identification and Apprehension RE: Weapons - Pistol Permits - Form of Application This is in reply to your letter of March 10, 1970, wherein you make inquiry of this office regarding permits to carry pistols as provided for in chapter 62-01 of the North Dakota Century Code. You submit the following facts and inquiries in your letter: For many years the license to carry a pistol has had a blank provided for the serial number of the pistols the applicant owns. Last fall this

OPINION 70-97 March 23, 1970(OPINION) The Honorable Ben Meier Secretary of State RE: Counties - County Coroner - Elective Office in Certain Counties This is in reply to your letter of March 19, 1970, relative to the office of county coroner. You state the following facts and questions: According to Section 16-01-11 N.D.C.C. the Secretary of State between June 1 and July 1 in each primary election year is to give notice to the County Auditors specifying the several officers to be nominated in each county at the next primary election. Referring you to Section 11-10-02 and Section 11-

OPINION 70-387 March 18, 1970 (OPINION) Mr. William D. Yuill Assistant State's Attorney County of Cass RE: Taxation - Disabled Veterans Exemption - Application This is in response to your letter in which you ask for an opinion on the following questions: 1. Is the exemption limited only to the property located upon lots in any city or village? 2. Would alternative personal property up to an assessed valuation of $4,000. used and owned as a homestead as defined in section 47-18-01 include mobile homes? 3. Would household goods, livestock or farm machinery located in a r

OPINION 70-152 March 18, 1970 (OPINION) Mr. J. D. Woodley Warden North Dakota State Penitentiary RE: Criminal Procedure - Extradition - Escape From State Farm This is in response to your letter in which you state: Recently I had three inmates escape from the North Dakota State Farm. All were sentenced for misdemeanor crimes and the sentences ranged from nine months to one year. I have information that all three of these inmates left the State of North Dakota and will not waive extradition back to the State of North Dakota. My question is, can these men be extradited on an e

OPINION 70-482 March 17, 1970 (OPINION) Mr. Byron L. Dorgan State Tax Commissioner RE: Taxation - Sales and Use Tax - Soft Drink Containers This is in reply to your letter of March 4, 1970, relative to the applicability of the North Dakota sales or use tax to the following: Members of the soft drink industry of the state of North Dakota are now using a relatively new method of merchandising or selling soft drinks in which the soft drink is prepared in a similar manner to other soft drinks but rather than packaging the product in the usual small containers the product is placed

OPINION 70-340 March 13, 1970 (OPINION) Mr. James E. Sperry Superintendent State Historical Society of North Dakota RE: State - Historical Society - Concession This is in reply to your letter requesting the opinion of this office in regard to concession operations, sales of books, historical reprints and back issues of your quarterly. You call our attention to that portion of section 55-02-04 of the 1969 Supplement to the North Dakota Century Code providing: All moneys collected as fees, compensation for concession agreements, or otherwise, shall be placed in the general fun

OPINION 70-215 March 12, 1970 (OPINION) Mr. Charles Bosch Motor Vehicle Registrar RE: Motor Vehicles - Destroyed Vehicles - Credit By your letter of February 26, 1970, you have requested an opinion from this office with regard to an interpretation of the word "destroyed" as it is found in Section 39-04-44 of the North Dakota Century Code. You state that in the past you have allowed a credit on the license fee or tax only for those vehicles destroyed in an accident by fire. You indicate that occasionally owners of motor vehicles request a credit where the motor in their vehi

OPINION 70-302 March 11, 1970 (OPINION) Mr. Orrin B. Lovell State's Attorney Golden Valley County RE: Schools - Excess Levies - Reduction of Basic Mill Levy This is in reply to your letter with regard to application of school district mill levy increase election. You inform us that, at the present time, the school district is operating a high school unit. We presume, under subsection 3 of section 57-15-14 of the 1969 Supplement to the North Dakota Century Code, that as such, their legal mill levy limit is thirty-four mills. You further inform us that in 1968 the residents of

OPINION 70-25 March 11, 1970 (OPINION) Mr. George M. Ackre State's Attorney Towner County RE: Alcoholic Beverages - Minors - Not Employed Where Served In your letter of March 4, 1970, you requested an opinion with regard to whether a supper club or restaurant in which alcoholic beverages are served can employ persons under the age of twenty-one years as bus boys or waitresses as long as such persons in no way handle or take part in the serving of the alcoholic beverages in such establishments. Section 5-02-06 of the North Dakota Century Code provides as follows: PERSONS UNDER TWENTY-O

OPINION 70-244 March 11, 1970 (OPINION) Honorable Richard E. Forkner Senator, Tenth District RE: Motor Vehicles - Truck Fees - Farm Truck Exemption This is in reply to your letter of March 8, 1970, relative to Section 39-04-19(5) of the North Dakota Century Code, as amended. You quote the section and state the following facts and questions: Under this law can a farmer trade work providing he trades with his neighbor only in the hauling of grain, potatoes, sugar beets, implements from field to field, etc. When a certain farmer has helped his neighbor harvest his crop and haul

OPINION 70-148 March 11, 1970 (OPINION) Mr. Thomas E. Rutten Assistant State's Attorney Ramsey County RE: Criminal Procedure - Arrests at Night - Warrant This is in reply to your letter of March 5, 1970, relative to the above cited sections. You quote the sections and state the following facts and questions: There appears to be some sort of conflict between these two statutes in as much as when under section 29-06-15 of the North Dakota Century Code, a peace officer could make an arrest without a warrant on a charge of driving while under the influence of alcoholic beverage

OPINION 70-43 March 10, 1970(OPINION) Mr. John A. Zuger City Attorney Bismarck, North Dakota RE: Cities - Initiative - Salaries This is in response to your letter in which you state that petitions under the provisions of Chapter 40-12 of the North Dakota Century Code seek to initiate a municipal ordinance reading as follows: "Be it enacted by the Board of City Commissioners of the City of Bismarck that the present salaries of the policemen and firemen of the City of Bismarck be increased by no less than 15 (fifteen) percent; "Be it further enacted that (1) this increase in salaries

OPINION 70-315 March 9, 1970 (OPINION) Mr. Harold Shaft Attorney for Grand Forks Public School District RE: Schools - Tuition - Military Bases This is in reply to your letter of March 4, 1970, relative to the Grand Forks Public School District. You state the following facts and questions: Representing the Grand Forks Public School District, we are concerned with the legal status of the children of Grand Forks Air Force Base personnel who reside on the base. As you are probably aware, for some years we have been operating two elementary schools on the base and have been rece

OPINION 70-188 March 9, 1970 (OPINION) Mr. Kenneth E. Raschke Commissioner State Board of Higher Education RE: Insurance - State Fire and Tornado - Proceeds Available for Reco This is in response to your letter in which you state as follows: On January 9, 1970 fire destroyed two connected structures at the University of North Dakota - Ellendale Branch. These structures were the two main instructional and office buildings at the school. The above buildings were covered by insurance through the State Fire and Tornado fund in the following categories and in the following amoun

OPINION 70-187 March 9, 1970 (OPINION) Honorable J. O. Wigen Commissioner of Insurance RE: Insurance - Credit Life and Health Insurance - Premiums This is in response to your request for an opinion on the construction and interpretation of section 26-35-09(4), as amended, of the North Dakota Century Code, which provides as follows: 4. The amount charged to a debtor for any credit life or credit health and accident insurance shall not exceed the premiums charged by the insurer, as computed at the time the charge to the debtor is determined." To more fully understand the provi

OPINION 70-485 March 6, 1970 (OPINION) Mr. Ellis L. Berg Executive Secretary North Dakota Poultry Improvement Board RE: Taxation - Sales Tax - Eggs Not Exempt This is in reply to your letter with regard to the application of section 57-39.1-04.1 of the North Dakota Century Code to eggs. You point out that as the North Dakota Egg Producers Association has stated in a previous letter to us, eggs are a poultry product, and a protein product used as a substitute for meat in human nutrition and therefore it is unfair to tax the sale of eggs and exempt meat for this makes the law di

OPINION 70-207 March 4, 1970 (OPINION) Honorable Donald C. Holand Senator, Twenty-seventh District Fargo, North Dakota RE: Legislature - Qualification - Residence This is in response to your letter in which you state as follows: "Since there is a possibility that I may be interested in a North Dakota Senate seat from the Twenty-first District I thought that it would be well for me to obtain an opinion relative to the residence question. "I opened a law office in Fargo on January 19th, but have not reestablished my legal residence which continues to remain in Lisbon (Twenty-se