North Dakota Attorney General Opinions

OPINION 59-62 August 18, 1959 (OPINION) COUNTIES RE: Memorials - Public Recreation System - Recreation Centers As Memorials We have received your letter of August 6, 1959, in which you state that the park board of the city of Glen Ullin has requested the board of county commissioners of Morton County to authorize the use of five thousand dollars of the memorial fund in Morton County toward the development of a memorial park in the city of Glen Ullin. Such park to include a well, picnic shelters, and playground equipment, as well as memorial markers. It was proposed that the

OPINION 59-205 August 14, 1959 (OPINION) MUNICIPAL GOVERNMENT RE: Public Recreation System - Recreation Center as Memorial We have received your request for an opinion as to the legality of a proposed memorial to be erected in the city of Hebron, Morton County, North Dakota, in memory of the veterans of said county. The memorial to be paid for in part with funds accumulated by virtue of the levy for which provision is made in chapter 11-32 of the 1957 Supplement to the N.D.R.C. of 1943. You state that the memorial will be a swimming pool to be named "The Hebron Memorial Pool"

OPINION 59-35 August 12, 1959 (OPINION) CORPORATIONS RE: Annual Report, Failure to File - Corporate Name This is in reply to your letter of July 22, 1959, in which you state that your office has many domestic corporations which are defunct by failure to file their annual reports as provided for under section 10-0525 of the N.D.R.C. of 1943. You further state that you took the steps provided for in sections 10-0527 and 10-0528 of the N.D.R.C. of 1943. Section 10-0529 of the N.D.R.C. of 1943 provided for the reinstatement of these corporations. These sections were repealed a

OPINION 59-228 July 30, 1959 (OPINION) OFFICES AND OFFICERS RE: Mileage and Expenses - Association Meeting This is in reply to your letter in which you state that the North Dakota Treasurers Association will hold its annual meeting in Bismarck in the near future. You then ask would the county treasurers who belong to the association to entitled to mileage and expenses? If so, what mileage may they collect when travel is by car, and what is the amount they may collect for room, lodging and sustenance? Section 11-1015 as amended by chapter 122 of the 1959 Session Laws provid

OPINION 59-100 July 30, 1959 (OPINION) EDUCATION RE: Teachers' Insurance and Retirement Fund - Retired Teacher's Annuity This is in reply to your question, "May a teacher retiring under the old formula with an $1800.00 maximum, have his or her annuity increased by $60.00 per year in excess of that amount?" This question was dealt with in a letter dated April 16, 1959, page 2, paragraph 3, and is as follows: These conditions are retroactive on a perspective basis. It is retroactive in so much that the formula established under this bill can be applied retroactively after July

OPINION 59-157 July 29, 1959 (OPINION) LABOR AND EMPLOYMENT RE: Mediation of Disputes between Public Employers and Employees - Grievances Submitted by Union We have received your request for an opinion with reference to the following question: "Is a head of a public department or board in this state compelled to consider grievances concerning employment submitted to him by a union representing such employees? Section 34-1101 of the 1957 Supplement is the pertinent statute on this question. It deals with mediation of disputes between public employers and employees and reads a

OPINION 59-209 July 28, 1959 (OPINION) MUNICIPAL GOVERNMENT RE: Sidewalks - Notice - Served by Whom Re: Sidewalks, Sections 40-2903 and 40-2912 This is in reply to your letter of July 21, 1959, concerning the above cited sections. You state that section 40-2903 of the N.D.R.C. of 1943 provides that a copy of the notice shall be served as provided in section 40-2912. Section 40-2912 provides that: . . . . The street commissioner shall serve such notice by delivering a copy thereof to the occupant or owner of each lot . . . ., or by leaving a copy thereof at the dwelling house

July 27, 1959 (OPINION) PRINTING LAWS RE: Distribution of Public Documents - Destruction of Public Records Receipts and Handgun Permits This is in reply to your letter of July 21, 1959, in which you ask the following questions: Under Chapter 41-18 of the 1957 Supplement to the 1943 Revised Code. Uniform Trust Receipt Act. An agreement between truster and the trustee which is called a trust receipt is filed in our office and we wonder how long we have to keep that instrument on file until we are authorized to destroy it. Chapter 62-01, Possession, Sale and Use of Pistols and

OPINION 59-269 July 22, 1959 (OPINION) TAXATION RE: Payment and Collection of Taxes - Personal Property Taxes, Delinquent - Penalty This is in reply to your letter of July 20, 1959, requesting my opinion on two questions relating to the following provision added to section 57-2001, N.D.R.C. 1943, by Chapter 387, S.L. 1959: From and after January first of the year following the year in which the taxes become due and payable, simple interest at the rate of six percent per annum upon the principal of the unpaid taxes on personal property shall be charged until such taxes and pena

OPINION 59-123 July 22, 1959 (OPINION) GOVERNMENTAL FINANCE RE: Bonds - Resolution - Debt Limit Re: Bond Issue - Increase of Debt Limit - Oakes Special District We have this date examined file showing proceedings of the above municipality in re increase of debt limit and in re issuance of bonds. Purpose of bonds is stated as "erecting additional school buildings in Oakes, North Dakota." In view of the decision of our supreme court in Stern v. Fargo, 18 N.D. 289, it is possibly arguable that said purpose is not definitive enough to satisfy the requirement of subsection 5 o

OPINION 59-49 July 20, 1959 (OPINION) COUNTIES RE: County Commissioners - Power to Contract for Group Insurance for County Officials This is in response to your request for an opinion on the following question: Do the County Commissioners have the power to enter into a contract between Divide County and New York Life Insurance Company so as to provide group insurance benefits for county officials and county employees?" You advise further that the contract provides that the county will contribute 50 percent of the premium and the employee would be required to pay the other 50

OPINION 59-59 July 16, 1959 (OPINION) COUNTIES RE: Memorials - Memorial Fund - Expenditure to Complete Building I have your letter of July 9, 1959, in which you request an opinion on the question as to whether or not the board of county commissioners of your county is justified in appropriating a sum of money out of the memorial fund for the purpose of completing a school gymnasium. Apparently, the building in question was erected nine years ago and is still in a state of incompletion. Some of the funds to be appropriated would be used for the repair of the gymnasium. I cal

OPINION 59-126 July 13, 1959 (OPINION) GOVERNMENTAL FINANCE RE: Transfer of Certain State Funds - Commission on Alcoholism, Funds This is in reply to your letter of July 8, 1959, concerning chapter 214 of the 1959 Session Laws. You state that the Commission on Alcoholism has on deposit with the State Treasurer $971.81 in the special fund. This money represents the remainder of a total of $2,000.00 received from the United States Public Health Service, Division of Indian Health, in return for which the Commission on Alcoholism shares office space and provides secretarial ser

OPINION 59-235 July 6, 1959 (OPINION) PROPERTY RE: Trademarks - Record of This is in reply to your letter of June 26, 1959, concerning the recording of corporate, cooperative and trademark instruments. In your letter you state that under corporation, cooperative and trademark statutes in effect prior to July 1, 1957, and partially in effect until July 1, 1959, your office has recorded all corporate, cooperative and trademark documents. This has entailed the typing, verbatim, in a book designated for such purpose, the entire document and the proofreading of the same. You wish

OPINION 59-296 June 30, 1959 (OPINION) WORKMEN'S COMPENSATION RE: Bureau - Fee Schedule for Hospital and Medical Services This is in reply to your request for an opinion or a copy of an opinion if one had been issued on section 65-0208 of the N.D.R.C. of 1943 relating to fees on hospital and medical services. From your letter it appears the bureau has adopted and is following a fee schedule for hospital and medical services which is below the normal standard. The hospital then in turn bills the injured person for the difference. You further state that the bureau has been ad

OPINION 59-265 June 30, 1959 (OPINION) TAXATION RE: Levies and Limitations - Park District - Levy For Airport This is in reply to your letter of June 19, 1959 in regard to expenditure of funds of your park district for the construction of a swimming pool and in regard to the tax levy of the district. You inform us that the district operates an airport and has for a period of many years maintained a special levy therefor. You further inform us that the district also holds lands not now used for the airport but held for future use of the airport. In the meantime the city's sh

OPINION 59-54 June 25, 1959 (OPINION) COUNTIES RE: General Provisions - Salaries of County Officers - Additional Compensation for Additional Duties This in reply to your letter in which you state that the county auditor has been appointed zoning director by the county commissioners of the county. You then ask "Is she entitled to receive additional compensation for her services as Zoning Director?" In searching for the answer to this question we note the following sections: Section 11-3305 of the 1957 Supplement to the North Dakota Revised Code of 1943 states in part as foll

OPINION 59-80 June 19, 1959 (OPINION) DOMESTIC RELATIONS RE: Marriage Contract - License - Nonresidents This is in reply to your letter of May 28, 1959, concerning the issuance of marriage licenses. You state that a couple with a North Dakota marriage license. The lady resides in Oregon and the gentleman resides in Illinois. You further state that you believe they plan to secure an Oregon license. Section 14-0319 of the North Dakota Revised Code of 1943 provides as follows: "LICENSE ISSUED TO ALL WHO COMPLY WITH LAW. If a county judge is satisfied that there is no lega

OPINION 59-169 June 18, 1959 (OPINION) MOTOR VEHICLES RE: Additional Fee - Exceptions - Farmers This is in reply to your request for a clarification as to whether a party having bees and engaging in the honey business only is considered a farmer under chapter 39-04A of the 1957 Supplement to the North Dakota Revised Code of 1943 so that he would not be subject to the ton fee tax for the truck used to transport the bees from one location to another in this state where the truck has a gross weight of more than twelve thousand pounds. You also state that it is your understanding t

OPINION 59-86 June 10, 1959 (OPINION) EDUCATION RE: Organization and Dissolution of Special School Districts - Adjacent Territory Attached - Adjustment of Assets and Liabilities We have received your letter with reference to interpretation of section 15-4719 of the North Dakota Revised Code of 1943. Your problem arises where an annexing district under section 15-2714 of the North Dakota Revised Code of 1943 has offered territory to be annexed to become annexed without assuming any part of the bonded indebtedness of the annexing district. Section 15-4719 provides for a board of

OPINION 59-166 June 9, 1959 (OPINION) MINING AND GAS AND OIL PRODUCTION RE: Control of Gas and Oil Resources - Jurisdiction of Commission - Bonds This is in reply to your letter of June 2, 1959, in which you state that the recent Legislature enacted a law amending the 1953 Oil and Gas Conservation Statute insofar as the requirement of a drilling bond is concerned. You ask the opinion of this office on the following points: 1. Will it be necessary for the surety on bonds currently in force to supply some form of acknowledgement that the bonds now in effect comply with the pr

OPINION 59-271 June 8, 1959 (OPINION) TAXATION RE: Refund Motor Fuel Tax - Assignment of Refund Claim This is in reply to your request for an opinion on Senate Bill No. 115 of the 1959 Legislature which amended and reenacted section 57-5011 of the 1957 Supplement to the N.D.R.C. of 1943. The question is: Whether or not the assignments of refund claims on motor fuels can be legally made even though the product is not paid for by the purchaser, during the period set forth in the new Act." The Senate Bill No. 115 adds additional language to section 57-5011. This new language is

June 8, 1959 (OPINION) PUBLIC WELFARE RE: Children's Psychiatric Clinic - Joint Venture We have received your letter of June 1, 1959, wherein you state that the Board of Administration has been requested to consider a joint venture with the Lutheran Welfare group of Fargo, North Dakota, in a child welfare program. The total cost would be approximately $40,000.00, $20,000.00 of which would be contributed by the Board of Administration out of funds appropriated by S.B. 108 enacted by the last legislative assembly. We have carefully considered S.B. 108, and it appears to us that y

OPINION 59-194 June 5, 1959 (OPINION) MUNICIPAL GOVERNMENT RE: Municipal Memorial Levy - Armory Levy - Expenditure This is in reply to your letter of May 27, 1959, in which you ask for an opinion of this office concerning section 40-5901 of the 1957 Supplement to the North Dakota Revised Code of 1943. Your question is stated as follows: "The question has arisen as to the uses for which the funds derived from such tax may be spent. Must such funds be spent solely for building repairs, alteration, reconstruction and actual building maintenance such as painting and other prot

OPINION 59-113 June 4, 1959 (OPINION) GOVERNMENTAL FINANCE RE: Bonds - Debt Limit We have examined transcript showing proceedings of the above municipality in regard to issuance of bonds and in regard to increase of debt limit. From examination of same, it is out opinion that the district has substantially complied with the applicable statutes and it is therefore our conclusion that the municipality has increased its debt limit to ten percent of one hundred percent of assessed valuation of the district and that it may now issue its bonds for the purpose expressed in the initi

OPINION 59-290 June 3, 1959 (OPINION) WATERS RE: Water Conservation Commission - International Stream - Utilization of Allocated Waters We are in receipt of your letter of June 2, 1959, with references to the urgent need of the City of Westhope to obtain water from the Souris River for the city's municipal requirements and for domestic use of its inhabitants. You say in your letter that Westhope has been granted the right to appropriate water from the Souris River but due to the fact that lands lying adjacent to the river are owned by the federal government, and are under the

OPINION 59-218 June 2, 1959 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Dentists - Dental Laboratories - Prescription This is in reply to your letter of May 18, 1959, concerning the new dental practice act adopted by the recent session of the Legislature. You wish to know if North Dakota dental laboratories must require a prescription from dentists who practice in adjacent states. The pertinent provisions of Senate Bill No. 163, the dental practice act, are as follows: SECTION 2. EXCEPTIONS. The provisions of this Act shall not apply: 1. To the filling of written prescript

OPINION 59-26 May 29, 1959 (OPINION) AGRICULTURE RE: Wheat Commission - Power to Borrow This is in reply to your request for an opinion whether or not the North Dakota State Wheat Commission may borrow money to carry on its program and project under the provisions of Senate Bill No. 166 of the 1959 Legislature. It is further stated that in borrowing such money the credit of the state or the state agencies would not be pledged, and that the money would be repaid from the revenue resulting from the tax on wheat sold. In reviewing the provisions of Senate Bill No. 166, it is not

OPINION 59-256 May 25, 1959 (OPINION) STATE GOVERNMENT RE: Merit System Council - Powers and Duties - Compensation Plan This is in reply to your request for an opinion on section 3 of chapter 332 of the 1957 Session Laws which is section 54-4203 of the 1957 Supplement to the N.D.R.C. of 1943. More specifically subsection 2 of said chapter. You submitted the following questions: 1. In establishing rules covering the establishment of compensation plans, does the Council have final authority to determine what compensation plans will be maintained by the agencies covered by t

OPINION 59-163 May 25, 1959 (OPINION) MINING AND GAS AND OIL PRODUCTION RE: Control of Gas and Oil Resources - Commission Sets Spacing Units - Exception to Spacing Pattern In reply to the request of the North Dakota Industrial Commission for an opinion concerning the original jurisdiction of the commission to grant drilling exceptions to spacing patterns already established by the commission, we understand the facts to be as follows: At a recent hearing of the Industrial Commission an application was made for an exception to the drilling pattern established by the commission in

OPINION 59-51 May 20, 1959 (OPINION) COUNTIES RE: County Highway Engineer - Mileage Allowance This is in reply to your request for an opinion on the question which has arisen in your county as to whether the county engineer and those employed by him are entitled to mileage under section 11-1015, or whether the mileage is a matter within the discretion of the county board. The county engineer is created by chapter 11-31. The county engineer, serving as such, under chapter 11-31 is a county officer within the meaning of section 11-1015. Persons employed as assistants to the

OPINION 59-149 May 20, 1959 (OPINION) JUDICIAL BRANCH OF GOVERNMENT RE: Retirement of Judges - Retirement Salary This is in reply to your request for an opinion dated May 19, 1959. In your request you state that you have received numerous inquires from retired judges pertaining to Senate Bill No. 74 as passed by the thirty-sixth legislative assembly. Your question is whether under the judges retirement program, chapter 27-17 of the 1957 Supplement to the N.D.R.C. of 1943, retired judges are entitled to increased retirement benefits as the result of the increase in judges' salar

OPINION 59-149 May 20, 1959 (OPINION) JUDICIAL BRANCH OF GOVERNMENT RE: Jurors - Fees and Mileage This is in reply to your inquiry of May 15, 1959, in which you ask whether or not jurors are entitled to mileage to their homes each night while on jury duty. Basically compensation and mileage to jurors for service rests on statutory provision rather than common law. Section 27-0905 of the 1957 Supplement to the N.D.R.C. of 1943 as hereinafter set out is controlling. FEES AND MILEAGE FOR JURORS. A juror shall receive: 1. Six dollars, payable by the county, for each day's a

OPINION 59-98 May 20, 1959 (OPINION) EDUCATION RE: State Equalization Fund - Non-High School Districts - Tuition Payments We have received your request for an opinion with reference to tuition payments. By statute, all non-high school districts must pay tuition fees based on the average county cost of education less payments from the county and state equalization funds. The combined amount paid annually per pupil from these funds is now $234.00. Effective July 1, 1959, the new foundation program becomes effective. This new law reduces the payment to $198.00. The paymen

OPINION 59-83 May 19, 1959 (OPINION) EDUCATION RE: Foundation Finance Program - Appropriation We have received your request for an opinion with reference to the following problem: House Bill No. 551 passed by the last legislative assembly is the new foundation finance program in education. This new program will require more money to operate than the present program. The legislature overlooked this and appropriated only on the basis of the present program. This will leave a deficit or shortage, and you ask what your department shall do under the circumstances. House Bill

OPINION 59-53 May 1, 1959 (OPINION) COUNTIES RE: General Provisions - Mileage of Officials - Public Health Nurses This is in reply to your request for an opinion on the question whether section 11-1015 as amended by House Bill 631 or section 23-1410 as amended by House Bill 767 governs and controls mileage allowances for public health nurses. Section 11-1015 as amended substantially provides that "unless other wise provided by the laws of this state, every county official whether elective or appointive, . . . shall be allowed . . . . ten cents per mile when such travel is by mo

OPINION 59-266.doc May 1, 1959 (OPINION) TAXATION RE: Levies and Limitations - Park Districts - Levy Increase This is in reply to your letter of April 24, 1959, requesting and interpretation of subsection 3 of section 57-1512 of the 1957 Supplement to the N.D.R.C. of 1943. You wish to know if this section permits an increase of the levy from four to fourteen mills or if it restricts the increase from four mills to a maximum of ten mills. The section reads as follows: 3. Whenever the board of park commissioners deem it advisable to raise moneys by taxes in excess of the levy

OPINION 59-17 April 28, 1959 (OPINION) AGRICULTURE RE: State Seed Department - Certified Seed; Labeling This is in reply to your letter of March 31, 1959, in which you enclosed a tag from a seed being sold in North Dakota. You state that your department objected to this tag on the grounds that it bears the word "Registered" in a rather prominent place. Your basis for this objection was section 4-0917 of the North Dakota Revised Code of 1943 which reads as follows: CERTIFIED SEED; REGULATIONS GOVERNING LABELING AND REPRESENTING. No seed grown in North Dakota, or grown els

OPINION 59-221 April 23, 1959 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Professional Nurses - Scholarships Qualification of Candidates I have received your letter of April 14, 1959, in which you state that at a recent meeting of the North Dakota Nursing Scholarship Committee the question was raised as to whether or not the Committee could require a nursing scholarship recipient to be employed in only one hospital or institution in North Dakota when fulfilling her obligation to the state of North Dakota. It is my understanding of your letter that you refer to section 43-1228 of

OPINION 59-263 April 22, 1959 (OPINION) TAXATION RE: General Property Assessment - Exempt Property - Veterans' Organizations This is in reply to your letter of April sixteenth asking for an opinion as to whether the hotel portion of a building purchased by the VFW Club in Valley City should be exempt even though the VFW intends to continue to operate the hotel portion as a public hotel by leasing out its fifty rooms to individuals other than members. You state that the building is a large business building known as the Valley Hotel in which the VFW had leased club rooms which

OPINION 59-32 April 16, 1959 (OPINION) BANKS AND BANKING RE: Powers of Banks - Interest on Loans; Rate This is in reply to your request for an opinion on the following set of facts: A bank establishes an open line of credit for a client of $1,000, and the client issues a special check for $100 in January , which check immediately becomes a note of $100, upon payment of the bank, with a charge of 1 percent per month on this $100, if not repaid within 7 months, the interest charge would exceed the allowable rate of 7 percent per annum. You then ask whether or not a bank may oper

OPINION 59-229 April 15, 1959 (OPINION) OFFICES AND OFFICERS RE: Miscellaneous Provisions - Expense Account - Lodging Expenses This is in reply to your request for an opinion whether or not it is proper to split or divide the charge for lodging by charging one-half of the room to one day's expense and one-half to the next succeeding day's expense. The question comes under section 44-0804, 1957 Supplement to the North Dakota Revised Code of 1943. The material portion of this section states; No elective officer . . . . nor any appointive officer, employee, . . . of this state,

OPINION 59-161 April 15, 1959 (OPINION) MILEAGE RATES RE: Public Health Nurses, Juvenile Commissioners, District Judges Welfare Employees, and County Agents This is in reply to your letter of April 10, 1959, in which you ask if the county mileage or the state mileage statutes would pertain to the following personnel: Public health nurses Juvenile commissioners District judges Welfare employees County agents Public Health Nurses Section 23-1410 of the North Dakota Revised Code of 1943 governs the mileage paid to public health nurses appointed by a health district organized

OPINION 59-151 April 10, 1959 (OPINION) JUSTICE COURT RE: Criminal Actions - Indigent Defendant - Attorney not appointed f This is in reply to your request for an opinion whether or not under the North Dakota laws an indigent defendant is entitled to a court appointed attorney at public expense in matters before a police magistrate or justice of the peace. The question as to when a defendant is entitled to an attorney at public expense to be appointed by the court is far from settled in this country. There are some views expressed that the constitutional guarantee relates onl

OPINION 59-132 April 9, 1959 (OPINION) HIGHWAYS RE: Utility or Transmission Lines, Construction - County Highways This is in reply to your of March 23, 1959 requesting an opinion of this office in regard to the interpretation of House Bill No. 811 of the 1959 Legislature. You first call our attention to section 1 of the Act providing that no electrical supply or communication line shall be constructed parallel to and within seventy-seven feet of the center line of any county highway right-of-way, without first obtaining the consent of the board of county commissioners. You re

OPINION 59-111 April 6, 1959 (OPINION) FIRES RE: Rural Fire Protection Districts - Powers of Directors - Mortgage This is in reply to your letter of March 25, 1959, concerning the power of rural fire protection districts to mortgage property. You ask if the board of directors of such districts has the power to mortgage property and if they have such power is a bank making a loan secured by such mortgage confined by the limitations regarding real estate loans. As you have noted in your letter, section 18-1006(7) of the 1957 Supplement to the North Dakota Revised Code of 1943 p