North Dakota Attorney General Opinions

OPINION 62-32 March 26, 1962 (OPINION) CITIES AND VILLAGES RE: Elections - Appointment of Judges and Inspectors Re: Election This is in response to your letter in which you state that the City of Carrington has a council form of government. The question then arises how are the judges for the municipal election appointed or designated for the election to be held on April 2, 1962. You also submit the following set of facts and ask how is the inspector for this ward to be appointed or designated: One of the aldermen has resided in another ward for approximately six months but yet he ha

OPINION 62-33 March 23, 1962 (OPINION) CITIES AND VILLAGES RE: Elections Vacancy on Ballot This is in reply to your request for an opinion on the following set of facts: The City of Jamestown is operating under the Council form of government. The regular election is to be held on April 2, 1962. At this election one of the aldermen whose term was up for election, filed a petition for the office in the regular manner. He was the only candidate that filed for the office. He has now died. The question is how may this office be filled? The time for election is determined

OPINION 62-76 March 14, 1962 (OPINION) COUNTY LIBRARY RE: Establishment - Mandatory or Discretionary This is in reply to your inquiry in regard to establishment and maintenance of Wells County library service pursuant to chapter 40-38 of the North Dakota Century Code. You ask whether: 1. Is it mandatory for the Board of County Commissioners to establish a library fund and enter a levy and cause necessary taxes to be collected? 2. Do the Commissioners alone determine if the levy should be one or two mills? 3. If this public library fund is crea

OPINION 62-75 March 9, 1962 (OPINION) COUNTY LIBRARY RE: Board of Directors - Mileage This is in reply to your letter of February 23, 1962, in regard to the payment of mileage to the Board of Directors of the Ward County Public Library established pursuant to chapter 40-38 of the North Dakota Revised Code of 1943. You call our attention to that part of section 40-38-03 of the North Dakota Century Code which states: . . . . No compensation shall be paid or allowed to a director. . . . " You inform us that you have directors on this board from the southern and northern part of the coun

OPINION 62-232 March 7, 1962 (OPINION) TAXATION RE: Assessment - Nurseries This is in regard to your letter of January 26, 1962, requesting an opinion as to whether a nursery, together with buildings and machinery, should be assessed as an agricultural or a commercial operation. You stated that the owner of this nursery grows trees and other nursery stock from seeds and the stock, when ready for sale, is sold by the owner. The nursery in question is located approximately three miles outside the city limits of Bismarck, North Dakota. While nurseries and nursery operators are required

March 5, 1962 (OPINION) ALCOHOLIC BEVERAGES RE: Food and Liquor Divorcement - Sale of Cooking Wine in Grocery St Your letter of February 15, 1962, has been received. You desire an opinion from our office to determine if cooking wine may be sold in grocery stores as a food or if the laws pertaining to liquor and beverages would apply. You state that it has recently come to the attention of your department that a number of grocery stores are selling cooking wine which contains an amount of alcohol from 12 percent to 20 percent by volume. The label on the bottle states that th

OPINION 62-71 February 27, 1962 (OPINION) COUNTY FAIR RE: Levy Limitation - Mandatory or Discretionary Levy This is in reply to your letter of February 10, 1962, concerning the above matter. You state that in 1918, an election was held in Towner County on the question of supporting the county fair with tax money. The vote carried in favor of the fair. In preparing the budget, the commissioners now feel that funds are not available within the eighteen mill limitation and made no budget for the fair. It is your opinion that an appropriation for a fair comes within the eighte

OPINION 62-56 February 26, 1962(OPINION) COUNTIES RE: County Officers - Salaries This is in response to your letter in which you refer a request for an opinion from the county commissioners on the subject of salaries for county officials. This request is referred to our office on the basis that your salary as State's Attorney is or will be affected by the opinion. The law in question, upon which an opinion is requested, was amended by Chapter 123 of the 1961 Session Laws, amending section 11-10-10 and provides as follows: SALARIES OF COUNTY OFFICERS. . . . 2. The county auditor, co

OPINION 62-64 February 23, 1962 (OPINION) COUNTIES RE: Sale of County Property - Procedure This is in response to your letter in which you ask for an opinion as to whether or not the Board of County Commissioners has the authority to sell certain real estate owned by Benson County and used in connection with the Benson County Agricultural School. The intended purchaser is Maddock School District No. 9. The property is intended to be used for a permanent site for a school building to be erected by Maddock School District No. 9. The question then is whether or not Benson County has t

OPINION 62-152 February 23, 1962 (OPINION) MOTOR VEHICLES RE: Implied Consent Law - Confidential Information This office acknowledges receipt of your letter of February 19, 1962, in which you ask for our opinion relative to the interpretation ofsection 39-20-02 of the North Dakota Century Code. You are concernedwith the last sentence of this section which reads as follows: . . . . Upon the request of the person who is tested, full information concerning the test or tests taken at the direction of the law enforcement officer shall be made available to him." You state that the physici

OPINION 62-84 February 21, 1962 (OPINION) DISTRICT JUDGE RE: Elections - Vacancy This is in response to your request for an opinion on the question whether or not the office now held by Ray R. Friederich as judge of the Second Judicial District is to be certified to the County Auditors in the Second Judicial District as one for which nominations will be made at the 1962 primary elections pursuant to the provisions of Section 16-04-11. The facts to be taken under consideration are as follows: At the November General Election of 1960, Roland A. Heringer was ele

OPINION 62-200 February 13, 1962(OPINION) SCHOOL DISTRICTS RE: Reorganization - Bonded Indebtedness This is in reply to your request for an opinion, telephone conversations and conferences with individuals who came down to this office at your suggestion in regard to the reorganization problem in Scotia Special School District, Landa, North Dakota. You inform us that the district has a bonded indebtedness of some $99,000.00 where the assessed valuation on the 50% basis is approximately $500,000.00. Computing the debt limit of the district pursuant to Section 183 of the North Dakota Consti

OPINION 62-199 February 13, 1962 (OPINION) SCHOOL DISTRICTS RE: Reorganization - Approval of Alteration of Boundaries This is in response to your letter in which you ask whether or not it is necessary that a county superintendent must first recommend changes in boundaries of a reorganized school district before any other steps may be taken by individuals, school boards, and/or county committees to develop plans of reorganization. This question is governed by section 15-53-23 of the N.D.C.C. and provides as follows: "REORGANIZED BOUNDARIES OF SCHOOL DISTRICTS NOT TO BE ALTERED WITHIN F

OPINION 62-41 February 1, 1962 (OPINION) CITIES AND VILLAGES RE: Water Supply - Election This office is in receipt of your letter under date of January 26, 1962 in which you say that the city of Dickinson is in immediate need of a supply of water in addition to 1100 acre-feet annually which the city, on September 24, 1949, agreed to purchase from the United States over a period of forty years, pursuant to the terms of a contract entered into with the United States, acting through the Bureau of Reclamation of the U. S. Department of the Interior. You say that the city has completed nego

OPINION 62-35 January 30, 1962 CITIES AND VILLAGES - Funds - Disposition This is in reply to your letter under date of January 26, 1962, in which you request the opinion of this office as to whether the city of Ellendale may donate money to a private corporation for the development of a dam site and whether the city may make a contribution to the local water conservation and flood control district or to the State Water Conservation Commission, if called upon to do so. With reference to your first question, we direct your attention to section 185 of the State Co

OPINION 62-155 January 25, 1962 (OPINION) MOTOR VEHICLES RE: Vehicles for Hire - Street - Railways This is in response to your letter in which you ask for an opinion on the interpretation of subsection 3 of section 39-10-43. This subsection provides: 3. This section shall not apply at street-railway grade crossings within a business or residence district." (Underscoring ours). The preceding subsections, all of which comprise section 39-10-43 to which subsection 3 has reference, substantially provides that certain vehicles carrying passengers for hire, or carrying explosive

OPINION 62-118 January 12, 1962 (OPINION) GOVERNOR RE: Insurance Commissioner - Report Your letter of January 3, 1962, together with attached letters, has been received and the contents thereof duly noted. You make certain comments on our opinion issued to the State Insurance Commissioner on December 28, 1961, and also request further clarification of that opinion by asking several specific questions with regard thereto. We shall not comment on your observations concerning our recent opinion to the Insurance Commissioner, but shall proceed directly to the questions you have p

OPINIONS 62-148 January 5, 1962 (OPINION) MOTOR VEHICLES RE: Emergency Vehicles - Use of Red Lights Your letter request for an opinion dated December 28, 1961, has been received by this office. You state that a situation is developing in our state in which privately owned and operated wreckers are mounting and using red flashing lights both within municipalities and on the highways of this state. You relate further that the question seems to revolve around the interpretation of sections 39-10-03, 39-11-20, 39-11-35, and Definitions no. 28 and no. 60 of title 39 of the North D

OPINION 62-74 January 2, 1962 (OPINION) COUNTY JUSTICE RE: County Judge - Compatibility of Offices This is in response to a question presented by Mr. Lowe, one of your deputy examiners, which you in turn referred to this office. From the information submitted, it appears that the Richland County Judge was also appointed County Justice on June 27, 1961, to act in such capacity effective July 1, 1961. As reported by Mr. Lowe, "His salary was set at two thousand dollars per annum, payable monthly, which is included with the amount of salary he receives as County Judge." We are

OPINION 62-215 January 2, 1962 (OPINION) SCHOOL DISTRICTS RE: Transportation - Pupils Attending Nonpublic Schools This is in reply to your letter of December 14, 1961, in which you enclose a letter from the Rugby Public Schools under date of March 18, 1960. This letter concerns transportation for children who do not attend public schools. You ask for our opinion relative to the transportation plan of Rugby wherein children are to be taken in public schoolbuses to the nonpublic school in Rugby. The plan is set forth at length in the enclosure with your letter. This office has p

OPINION 61-116 December 28, 1961 (OPINION) GOVERNOR RE: Insurance Commissioner - Report Your letter of December 21, 1961, requests an opinion from this office on the following set of facts: On August 21, 1961, you applied for out of state travel authorization from Bismarck to Las Vegas, Los Angeles, San Francisco and Seattle, from September 18, 1961 to October 14, 1961. This trip was for the purpose of investigating unauthorized insurance companies. While on this trip, you attended the meeting of the National Association of Fire Chiefs at Las Vegas, an association of which

OPINION 61-28 December 19, 1961 (OPINION) CIGARETTES RE: Cigarette Machines - Sales to Minors Your letter dated December 11, 1961, has been received by this office. You state that the City of Wimbledon would appreciate an opinion on the legality of having coin operated cigarette machines placed in restaurants. You also ask whose responsibility it is to safeguard the minors from purchasing cigarettes from these machines. The 1961 Legislature transferred the cigarette licensing functions from the State Laboratories to the Attorney General's Office, Licensing Division. The ap

OPINION 61-226 December 11, 1961 (OPINION) STATE INSTITUTIONS RE: Claim of County and State - Statute of Limitations This is to acknowledge receipt of your letter dated December 6, 1961, in which you request an opinion as to the following questions: The facts in this matter appear to be that the deceased was an inmate of the State Hospital at Jamestown, North Dakota, from 1949 until his death in 1961, and that the Board of Administration of the State of North Dakota has filed a claim against the estate of said deceased in the amount of $11,341.36 which represents the total actua

OPINION 61-199 December 8, 1961 (OPINION) SCHOOLS RE: Religious Instruction - Release Time We have received your letter dated November 29, 1961, with reference to release time in your school. When you called at this office we advised you that we believed your school district was justified in acceding to the wish of parents in your district that school children be permitted to go to the church of their choice to attend religious instruction classes for one hour per school week. This is authorized by section 15-34-07 of the North Dakota Century Code which reads as follows: PRE

OPINION 61-264 November 28, 1961 (OPINION) WATER CONSERVATION COMMISSION RE: Water Conservation District - Special Assessment Warrants This is in reply to your letter under date of November 12, 1961, in which you request the opinion of this office as to whether the State water Conservation Commission may accept special assessment warrants of a water conservation and flood control district in lieu of cash as payment of the cost of improvements constructed for the district on a cost-sharing basis. The act creating the State Water Conservation Commission, and prescribing its power

OPINION 61-244 November 27, 1961 (OPINION) TAXATION RE: Nonprofit and Charitable Properties - Property Not Used Exclusiv for Business and Ceremonies of Organization This is in answer to your letter of October 16, 1961, in which you requested my opinion on various questions relating to the exempt or taxable status for property tax purposes of the property of the Apple Creek Country Club located east of Bismarck. Your letter is quoted as follows: The Apple Creek Country Club, located about six miles east of Bismarck in Burleigh County, has been organized as a nonprofit organizat

OPINION 61-228 November 16, 1961 (OPINION) STATE INSTITUTIONS RE: Claim of State and County Against Patient's Estate - Disposition of Funds Re: County's Share of Expense in Care of Patients at the State Hospi This is to acknowledge receipt of your letter dated November 9, 1961, concerning the above-captioned matter. The facts in this matter appear to be as follows: The County Auditor of Grand Forks County has filed a claim against the estate of a deceased individual who was formerly institutionalized at the State Hospital. The claim has been approved by both the administra

OPINION 61-173 November 6, 1961 (OPINION) PUBLIC RECORDS RE: Register of Deeds - Use of Microfilm Re: Microfilming, Register of Deeds Office This is in reply to your letter of October 27, 1961, concerning the above matter. You state the following facts: The Register of Deeds of Burleigh County is anticipating the use of a microfilming machine in place of recording real estate transactions in the traditional recording books. The microfilming operations will reproduce in a miniature form the complete documents brought to the Register of Deeds office for filing and/or recor

OPINION 61-205 November 3, 1961 (OPINION) SCHOOL DISTRICTS RE: Reorganization - Transfer of Assets We have received your letter dated October 30, 1961, with reference to school reorganization. You state that in July 1960, a reorganization election was held in your county. A portion of Hay School District in your county was included in the plan. The election board declared that the election had failed. This election was contested and the court held the election had carried. Later an action was brought challenging the validity of the reorganization proceedin

OPINION 61-166 November 3, 1961 (OPINION) PARK DISTRICTS RE: Increased Levy - Duration of Increase This is in reply to your letter in which you say that on June 28, 1960, the Carrington Park District voted to increase the park levy by four mills. the question stated on the ballot is as follows: Shall the Carrington Park District increase the Park levy by four mills making its total levy eight mills on the dollar of the net taxable assessed valuation of the District for the purpose of improving, maintaining and operating its Parks and play grounds." You advise that one of the

OPINION 61-221 October 27, 1961 (OPINION) SOCIAL SECURITY RE: Soil Conservation Districts - Contributions This is in reply to your letter in which you state that a question has arisen in regard to the liability of soil conservation districts for the payment of contributions which are required by chapter 52-09 of the North Dakota Century Code and the contribution payments and wage reports required by chapter 52-10 of the North Dakota Century Code. You advise that the North Dakota Old Age and Survivors Insurance System has required soil conservation districts to file wage and co

OPINION 61-237 October 19, 1961 (OPINION) TAXATION RE: Equalization of Retail Stocks of Merchandise - Use of Sales Tax Information This is in reply to your request for my opinion regarding the powers of the State Tax Commissioner and the State Board of Equalization to use sales tax information to equalize the valuations of retail stocks of merchandise in some political subdivisions but not in others, which request you made in your letter of September 14, 1961, on behalf of your city council. You specifically requested "information on where and when the State Tax Commissioner h

OPINION 61-122 October 17, 1961 (OPINION) GOVERNOR RE: National Guard - Establishment of State Guard This is in response to your letter in which you ask the following: I am authorized by law to establish a State Guard as soon as fifty percent of the North Dakota National Guard has been called into active military service. Since there is no specific appropriation for the State Guard, am I authorized to utilize funds appropriated to the National Guard by the State Legislature for expenses incurred by the formation of a State Guard?" The answer to the first phase of your questi

OPINION 61-262 October 16, 1961 (OPINION) WATER CONSERVATION DISTRICTS RE: Budgets - Authority of County Commissioners In your letter of October 3, 1961, you requested our opinion in regard to several problems pertaining to the approval of the budget of the Oak Creek Water Conservation and Flood Control District by the Board of Commissioners of Bottineau County. You ask the following questions: 1. Does the Board of County Commissioners have the authority to check or revise the budget submitted by the Oak Creek Water Conservation and Flood Control District? 2. Does the bu

OPINION 61-261 October 4, 1961 (OPINION) WATER CONSERVATION DISTRICTS RE: Budgets - Alteration by County - Accumulation of Funds In your letter of September 29, 1961, you state the Board of Commissioners of the Oak Creek Water Conservation and Flood Control District of Bottineau County have instructed you to secure an Attorney General's opinion on the following questions: 1) Does the Board of County Commissioners and the County Auditor of the county in which a water conservation and flood control district is situated have an arbitrary power to reject the budget prepared by th

OPINION 61-171 October 3, 1961 (OPINION) PUBLIC RECORDS RE: Microfilm - Admissible as Evidence This is in reply to your letter of September 28, 1961, in which you request the opinion of this office as to the legality of motor vehicle titles that are microfilmed. Your question is: "Would they be legal in court or for reference?" You also ask if motor vehicle titles that have been microfilmed could be destroyed. Section 31-08-01.1 of the North Dakota Century Code provides: PHOTOGRAPHIC COPIES OF BUSINESS AND PUBLIC RECORDS ADMISSIBLE IN EVIDENCE. If any business, institut

OPINION 61-78 September 27, 1961 (OPINION) COUNTY LIBRARY RE: Levy - Discontinuance This is in reply to your letter of September 20, 1961, in regard to county public library service. You state that a number of people from your county have asked you how they might go about getting rid of the traveling library and the tax to support it. You further inform us that at the present time your county is united with LaMoure and Dickey Counties in support of this library. You further inform us that the law provides that the tax shall be levied on petition of fifty-one percent of the v

OPINION 61-156 September 26, 1961 (OPINION) NATIONAL GUARD RE: Employees of State and Political Subdivisions - Retention of Status In your letter of September 20, 1961, you ask for an opinion from our office on the views expressed in an opinion of yours to the Minot City Council under the date of September 20, 1961. Your opinion dealt with the applicability of sections 37-01-25 and 37-01-25.1 of the North Dakota Century Code to municipalities. More specifically, since your city manager who is a captain in the North Dakota National Guard is not under civil service, and thereb

OPINION 61-42 September 25, 1961 (OPINION) CIVIL DEFENSE RE: Alerts - Duty of City Governing Body Subject: Civil Defense Alerts In your letters you note the provisions of chapter 37-17 of the North Dakota Century Code and the fact that this chapter authorizes cities to establish local organizations for civil defense. You state, based on the information you have at hand, it is your opinion that in the case of state civil defense alerts the responsibility and authority for controlling and managing the affairs of the City of Fargo rests exclusively in the hands of the Board of

OPINION 61-123 September 25, 1961 (OPINION) GOVERNOR RE: Powers - Investigation of State Institutions and Departments We have your letter of September 21, 1961, wherein you state that you desire to establish a task force of qualified investigators to investigate policies and practices in several state institutions and state departments, and you ask us to outline your powers to conduct such investigation and how the cost can be paid. As Governor you possess no prerogative powers but only such powers as are conferred upon you by the Constitution or the laws of this state. Since n

OPINION 61-9 September 20, 1961 (OPINION) AIRPORTS RE: Disposition of County Airport Funds - Priority Re: Dickey and Edgeley Request for County Airport Funds This is in reply to your inquiry in regard to allocation of airport funds, i.e., that portion of the aircraft registration and aircraft spraying fees turned back to the county treasurer pursuant to chapter 2-05 of the North Dakota Century Code, and from thence distributed to municipalities operating airports. You inform us that prior to this year there has been no allocation of these funds and that same have accumulated

OPINION 61-231 September 13, 1961 (OPINION) SUNDAY LAWS RE: Cities and Villages - Regulation of Store Hours This is in reply to your letter of September 8, 1961, concerning section 40-05-03 of the North Dakota Century Code. You ask our interpretation of section 40-05-03 with regard to the right of municipalities to establish and regulate store hours on Sunday. Section 40-05-03 of the North Dakota Century Code provides: CITIES HAVING POPULATION OF FIFTEEN THOUSAND MAY PROVIDE FOR REGULATION AND INSPECTION OF FOOD MARKETS. The governing body of any city having a population of

OPINION 61-177 September 13, 1961 (OPINION) PUBLIC WELFARE RE: Medical Assistance for Aged - Fees Re: Medical Assistance for the Aged This is in reply to your letter of September 1, 1961, concerning the above named topic. You state the Public Welfare Board currently negotiated with the North Dakota State Medical Association and the North Dakota Hospital Association as to fees which the Public Welfare Board would approve for payment of medical and hospital care for any and all welfare cases for which medical and hospital care was authorized by the county welfare boards. The

OPINION 61-19 September 12, 1961 (OPINION) ALCOHOLIC BEVERAGES RE: Sale on Election Days - Township Election Held in City or Villag This office acknowledges receipt of your letter of September 8, 1961, in which you call our attention to section 5-01-13 of the North Dakota Century Code which reads as follows: SELLING LIQUORS ON ELECTION DAY AND MEMORIAL DAY AND CERTAIN OTHER DAYS PROHIBITED - PUNISHMENT. Every person who sells, gives away, or disposes of any alcoholic beverage on Memorial Day, Good Friday, Sunday, after six p.m. on Christmas Eve, on Christmas Day, or on the da

OPINION 61-217 September 7, 1961 (OPINION) SCHOOL DISTRICTS RE: Tuition - Residence This office acknowledges receipt of your letter of August 26, 1961, relative to a matter of residence in connection with the payment of tuition in a school situation. You state that last year one Gerald Reule attended the Carrington school while he was making his home with his married sister who lives near Melville. You state that he is making his home with his sister for the purpose of easing the load on his own family, consisting of ten children in the home, residing with their parents in

OPINION 61-214 September 7, 1961 (OPINION) SCHOOL DISTRICTS RE: Transportation - Expenditure of Funds In your letter of August 31, 1961, you ask for an opinion concerning the legality of a school district sending its buses into another district to pick up students. A school board has no authority to furnish transportation to students residing in other districts unless arrangements are made between the districts. There is no law specifically prohibiting this type of action, but if such transportation is furnished it should be paid for by the home district of the students who a