North Dakota Attorney General Opinions

OPINION 56-171 July 9, 1956 (OPINION) SCHOOL DISTRICTS RE: Investing Surpluses We have received your request for an opinion in regard to the authority of a school district to invest surplus funds. The 1955 Legislative Assembly amended section 21-0607 of the 1953 Supplement by passage of Chapter 173 of the 1955 Session Laws which reads as follows: From and after the passage an approval of this Act, it shall be lawful for counties, cities, village, school districts, park districts and townships in this state to invest surpluses in their general fund, or surpluses in any special

OPINION 56-138 July 9, 1956 (OPINION) OFFICES AND OFFICERS RE: County Welfare - Expenses We have received your letter of July 9, 1956, requesting an opinion as to whether chapter 111 of the 1955 Session Laws is applicable to county officials other than county commissioners. Your question arises from the following state of facts: The board of county commissioners of Cass County allowed vouchers submitted by the county welfare board workers for meals while attending a welfare board conference held in Fargo, the home city of these employees. While chapter 111 of the 1955 Session

OPINION 56-139 July 2, 1956 (OPINION) OFFICES AND OFFICERS RE: Municipal - Interest in Contract In your letter of June 29, 1956, you request the opinion of this office as to whether section 40-1305 of the Code (prohibiting officers from being interested in contracts or work of the municipality) would apply to a city commissioner who wishes to sell goods and services to the Park and Recreation Boards of which he is not a member. In our opinion the above cited statute would not apply to your situation. That law was obviously designed to inhibit possibilities of corrupt practic

OPINION 56-91 June 20, 1956 (OPINION) OIL LEASES RE: Serving Notice of Expiration of Redemption Period This is in reply to your letter of June 5, 1956 requesting an opinion of this office concerning service of notice of expiration of period of redemption on oil leases. The statute requires that such notice be served upon the owner of the record title of the estate sold to the county for taxes, and upon each mortgagee, lienholder and other person interested therein as may appear from the records of the register of deeds and the clerk of the district court of said county (section

OPINION 56-13 June 18, 1956 (OPINION) BANKS RE: Authority to Own and Operate Parking Lots In your letter of June 6, 1956, you request an opinion as to the legal basis on which banks established under the laws of North Dakota may own and operate automobile parking lots. This office has searched the banking laws without finding any reference therein to parking facilities. The present statute, Chapter 99 of the 1955 laws, impliedly authorizes a state banking association to "invest in a banking house, including the lot, piece or parcel of land on which the same is located, and in

OPINION 56-15 June 16, 1956 (OPINION) BANKS RE: Bank Stocks - Votes by Holders in Joint Tenancy We have received your request for an opinion dated June 12, 1956, with reference to the above matter. Your specific question is how bank stock held by joint tenants shall be voted. You suggest that stock owned by two joint tenants be voted on the basis of one-half vote each. This would perhaps answer the problem provided it is permitted by the bylaws. Another way would perhaps be for one of the joint tenants to authorize the other by proxy to vote the stock. This method could

OPINION 56-36 June 15, 1956 (OPINION) COUNTIES RE: Officials - Duty to Turn Over Moneys Collected to Treasurer This is in reply to your letter requesting an opinion of this office on county officials turning over moneys collected to the county treasurer. You inform us that in several counties it is customary for the sheriff, register of deeds, and other collecting county officials to maintain their own bank accounts, properly entitled with their official county designations and in which they deposit collections as received, and do not make a remittance to the county treasurer u

OPINION 56-23 June 15, 1956 (OPINION) CITIES RE: Council Members - Right to be Members of School Board This is in reply to your letter requesting an opinion of this office on whether or not a member of the city council can also be a member of the school board. You call our attention to section 40-0809 of the North Dakota Revised Code of 1943 restricting members of the city council from holding any other office, the salary of which is payable from the city treasury or holding any other office under the city government. We believe that at least for this purpose, the school dist

OPINION 56-90 June 13, 1956 (OPINION) OFFICERS RE: Travel - Meaning of "Common Carrier" In your letter of June 6, 1956, you request an opinion as to whether travel by air is authorized by section 11-1015 of the 1953 supplement. The pertinent part of that statute does authorize travel "by rail or other common carrier." A search through "Words and Phrases" indicates that for almost every purpose imaginable, a commercial airline does qualify as a common carrier within the meaning of various statutes. Therefore it is our opinion that section 11-1015 does authorize plan travel.

OPINION 56-137 June 13, 1956(OPINION) WITNESSES RE: Fees - Are Law Enforcement Officials Entitled to Fees for Testifying in Criminal Cases We acknowledge receipt of your request of June 8, 1956, for an opinion as to whether or not highway patrolmen, policemen and deputy sheriffs are allowed witness fees for testifying in a criminal case. An opinion issued from the Attorney General's office on February 7, 1948, stated that "The patrolmen in performing the duties indicated is simply performing the duties of his office and for which he is paid a salary. No officer is entitled to a fee for p

OPINION 56-19 June 11, 1956 (OPINION) CITIES RE: Beer and Liquor Licenses We have received you letter of June 5, 1956, with reference to beer and liquor licenses. Your specific question is whether a city that is charging two thousand dollars for a liquor license may charge an additional fee for a beer license. Chapter 5-03 of the North Dakota Revised Code of 1943 deals with the sale and taxation of liquor. Section 5-0303 of the 1953 Supplement provides that the license fees in cities and villages for a liquor license shall be not less than two hundred dollars, nor more than

OPINION 56-9 June 4, 1956 (OPINION) ALCOHOLIC BEVERAGES RE: Retail Licenses - Responsibility for Minors on Premises We have received your letter of May 31, 1956, in regard to interpretation of section 5-0504 of the 1953 Supplement, which prohibits permitting persons under twenty-one years of age to be in any room wherein is operated or maintained a bar, on or over which beer or alcohol and alcoholic beverages are sold, furnished or distributed. It has always been our position that this section of the code must be read as a whole and that a licensee is responsible when minors ar

OPINION 56-89 May 29, 1956 (OPINION) OFFICERS RE: Aldermen - Interest in Contract of City In your letter of May 26, 1956, you request an opinion as to whether an alderman of your city may accept employment with a contractor doing business with the City as low bidder on a project. You state additionally that the alderman's son is actually doing the work while using his father's machinery, so it is not completely clear if the alderman himself is an employee of the firm doing business with the City of Linton. At any rate, under either factual situation, you wish to know if the

OPINION 56-93 May 22, 1956 (OPINION) PENITENTIARY RE: Inmates - Right of Escapee to Discharge Pay In your letter of May 18, 1956, you request an opinion as to whether an inmate of the Penitentiary who has completed his original sentence but is now serving a sentence for escape, which sentence commenced immediately upon completion of the prior sentence, is entitled to discharge pay under the terms of section 12-4731 of the Code. The pertinent part of that statute provides as follows: "Every person committed to the penitentiary, when discharged, shall be provided with a decent

OPINION 56-92 May 22, 1956 (OPINION) PENITENTIARY RE: Inmates - Escapees Liable for Costs or Own Capture In your letter of May 18, 1956, you request an opinion as to whether a penitentiary inmate who has been transferred to and has escaped from the State Hospital is liable to have his credit account used to pay the expense of his capture, pursuant to section 12-4820 of the Code. Insofar as pertinent, that section provides: "The money to the credit of any prisoner who escapes or violates his parole shall be used to pay the expense of his apprehension and capture." In our opin

OPINION 56-84 May 22, 1956 (OPINION) MUNICIPAL IMPROVEMENTS RE: Financing This is in reply to your letter of May 11, 1956, requesting an opinion of this office in regard to financing a part of the cost of sewer, water, or parking lot municipal improvements by a pledge of service charges. You refer us specifically to chapter 286 of the 1951 Session Laws (section 40-2216 of the 1953 Supplement to the North Dakota Revised Code of 1943) and ask in connection therewith whether it is mandatory to state in the Resolution of Necessity the fact that the municipality intends to pay a po

OPINION 56-111 May 15, 1956 (OPINION) SPECIAL SCHOOL DISTRICTS RE: Must Remain Open When In your letter of May 10, 1956, you request an opinion as to whether a special school district must keep open and maintain a graded school within its district when the majority of the six or more pupils regularly attending such school is composed of non-residents of the district. You make reference to section 15-29081 of the 1953 Supplement. We believe that "average attendance of pupils therein" within section 15-29081 does not refer to residents of the district, especially in view of th

OPINION 56-23 May 12, 1956 (OPINION) CITIES RE: Council - Salaries In your letter of May 8, 1956, you request the opinion of this office as to whether the members of the Napoleon city council may increase their own salaries from four dollars to five dollars per meeting, said increase to be effective the second reading of the ordinance pertaining thereto. Since section 40-0807 of the Code indicates that the maximum salary for aldermen shall be five dollars per meeting, we can see nothing to prohibit raising the salaries to the legal limit. It is clear, after referring to sect

OPINION 56-39 May 11, 1956 (OPINION) COUNTY CORONERS RE: Generally I have your letter of April 30, 1956, requesting our opinion on chapter 115 of the 1955 Session Laws, entitled "County Coroners." The first question you raise is: Does the deputy coroner have to be a doctor when the coroner is not one? This is answered by section 5 of chapter 115, which states that the coroner may appoint in writing an assistant coroner who shall be a licensed physician of good standing or a pathologist. Your second question concerns whether the coroner has the right to authorize the sheriff

OPINION 56-90 May 9, 1956 (OPINION) OFFICERS RE: Nepotism This is in reply to your letter of May 1, 1956, requesting an opinion as to the construction of section 44-0409 of the Code, said section concerning nepotism. We believe that the statute cited does not apply to heads of subordinate departments of the Public Welfare Board. Also, in our opinion the statute does not apply to county, city, township, or village offices. LESLIE R. BURGUM Attorney General

OPINION 56-43 May 9, 1956 (OPINION) COURTS RE: Court Reporter This is in reply to your letter of April 30, 1956, requesting an opinion of this office on whether you can appoint a legal resident of the State of Minnesota as court reporter in your district. You call our attention to section 44-0304 of the Code which provides as follows: "No person shall be appointed as deputy in any state, county, or municipal officer, nor as a member or officer upon any official board, of any kind, of the state, or of any county or municipality of the state, who is not a citizen of the United

OPINION 56-38 May 7, 1956 (OPINION) COUNTY COMMISSIONERS RE: Vacancy - Filing of Unexpired Term In your letter of March 8, 1956, as received by this office on May 2, 1956, you request an opinion as to whether a county commissioner elected in the 1954 General Election is to serve two or four years. You point out that the commissioner elected for a four year term in 1952 died and that a new commissioner was appointed to fill this vacancy until the 1954 General Election, at which election the commissioner about whom you are concerned gained office. Section 44-0205 of the Code, so

OPINION 56-119 May 3, 1956 (OPINION) TAXATION RE: Does Social Security Income Derive From a "Public Assistance" Pr This is in reply to your letter of May 1, 1956 requesting an opinion of this office on the construction of section 57-0221 of the 1953 Supplement to the N.D.R.C. in regard to social security "income". The pertinent part of the statute to which you have reference provides: "*****The personal property of any person who receives a major part of his income from any state or federal public assistance program shall be exempt from taxation and the name of such person, if

OPINION 56-93 April 27, 1956 (OPINION) POLITICAL ADVERTISING RE: Generally We are in receipt of your letter of April 23, 1956, with reference to chapter 16-20 of the 1943 Revised Code. You raise a question relative to section 16-20171 of the 1953 Supplement which requires political advertisements to disclose the name of the sponsor and the name of the person paying for the advertisement. This section reads as follows: "From and after the passage of this Act (section), each and every political advertisement whether on behalf of or in opposition to any candidate for public o

OPINION 56-90 April 24, 1956 (OPINION) OFFICERS RE: Incompatibility - Police Magistrate and City Assessor In your letter of April 20, 1956, you request an opinion as to whether the offices of police magistrate and city assessor can be legally held by the same person. A case study reveals no common law incompatibility in the offices of city assessor and police magistrate. Likewise, a search of the statutes does not disclose any statutory incompatibility between the two. It is interesting to note, however, that under section 12-1009 of the Code, one who makes a false statemen

OPINION 56-9 April 16, 1956 (OPINION) ALDERMEN RE: Residence in Ward We have your letter of April 3, 1956, which reads, in part, as follows: On our election of April third this year we have an alderman living in ward two and acting as alderman in ward one. Also while still living in ward two he voted in ward one. He claims that his residence is still in ward one but has lived out of there for about one year. We would like your opinion on this matter as soon as possible." The law of this state pertaining to qualifications of aldermen is found in section 40-0805 of the Nort

OPINION 56-49 April 13, 1956 (OPINION) ELECTIONS RE: Ballots - Is Vote on Measures Printed on Same Ballot With Office Seeker's Names Void? In your letter of April 9, 1956, you request an opinion as to whether the vote on a measure printed on the same ballot with the names of office seekers is void, in view of section 16-1107 as amended which states in effect that such measure "shall be printed on a separate ballot * * *." Ordinarily, of course, attorneys consider the word "shall" in a statute to indicate that the statute is mandatory, rather than directory. Due to your excel

OPINION 56-50 April 11, 1956 (OPINION) ELECTORS RE: Residence - Military Personnel In your letter of March 24, 1956, an opinion is requested in reference to residence status for voting purposes of military personnel stationed in North Dakota. You state that an opinion from this office would be helpful to the various election boards in determining whether or not United States military personnel stationed in North Dakota may vote in North Dakota, where their original residences are outside the state. The Constitution of North Dakota in Article V pertaining to elective franchis

OPINION 56-107 April 10, 1956 (OPINION) SECURITIES RE: Must Issuers Register as "Dealers"? This is in reply to your letter of April 6, 1956, wherein an opinion is requested as to whether or not issuers of securities, who wish to sell such securities in North Dakota, must register as "dealers" in the same manner as "dealers" who are selling the securities as representatives of the issuers. The question arises as a result of section 10-0408(1)(e) pertaining to the registration of securities by qualification which reads, in part, as follows: "After such registration the securitie

OPINION 56-95 April 4, 1956 (OPINION) PUBLIC WELFARE BOARD RE: Records - Availability to Congressional Investigators This is in reply to your letter of March 28, 1956, in which you state that a United States Senate Committee, headed by Senator Kefauver of Tennessee, will arrive in Bismarck early in April for the purpose of taking testimony with reference to the matter of exorbitant interest rates and service charges in connection with small short-time loans. You have also been advised that this committee, of which Senator Langer of our state is a member, may ask for records of t

OPINION 56-70 April 2, 1956 (OPINION) JUSTICE COURT RE: Plea of Guilty Without Advice of Counsel In your letter of March 9, 1956, you raise a question as to the interpretation of chapter 222 of the 1949 Session Laws of North Dakota. The last sentence of chapter 222 reads as follows: Any defendant having pleaded guilty without the advice of counsel shall, within thirty days thereafter, upon application of his attorney, be entitled to have any judgment entered on such plea vacated and a new trial granted." This sentence sets forth the question you raise, namely, what is meant b

OPINION 56-132 March 29, 1956 (OPINION) TEACHER'S RETIREMENT AND INSURANCE FUND RE: Employees Covered - Right to Participate in Federal Social Security Program This is in reply to your request for an opinion on the question "Can all the employees covered by the Teacher's Retirement and Insurance Fund, employed by a county, by the procedure provided in Chapter 306, Session Laws 1955, come under the Federal Old Age and Survivors Insurance?" Under section 218(d) of the Federal Social Security Law 1954 teachers employed by a county and covered by Teacher's Retirement and Insurance Fund may

OPINION 56-77 March 26, 1956 (OPINION) MEMORIALS RE: Cooperation Between City and County We have received your letter of March 21, 1956, in which you state that there is a possibility of the city of Hillsboro joining with Traill County in the erection and operation of a Traill County Memorial Armory under the provisions of chapter 11-32 of the 1953 Supplement to the North Dakota Revised Code of 1943, as amended by chapter 118 of the 1955 Session Laws. You state further that under such a plan certain facilities in such Memorial Armory building would be available to the veterans

OPINION 56-23 March 22, 1956 (OPINION) CITIES RE: Constructing Fire Station - Use of Free Labor In your letter of March 15, 1956, you wish to know if your city can construct a fire station without asking for bids; your purpose, as stated, is to save money by using donated labor when possible. Chapter 48-02 of the 1943 Revised Code contains the laws concerning construction of public buildings; as you will see upon referring to that chapter, the law clearly requires, among other things advertisement for bids, if project amounts to three thousand dollars or more. Assuming, howeve

OPINION 56-117 March 22, 1956 (OPINION) STATE WATER CONSERVATION COMMISSION RE: Creation of Water Conservation Districts This office is in receipt of your letter under date of March 12, 1956, in which you request our opinion as to whether or not the State Water Conservation Commission is authorized by law to establish a water conservation and flood control district embracing territory contained within the boundaries of a county. In other words, whether the boundaries of such district may coincide and be commensurate with the boundaries of a county. It is our opinion that any

OPINION 56-48 March 20, 1956 (OPINION) ELECTION LAWS RE: Filing of Petitions, Computation of Time This is in reply to your letter of March 16, 1956, in reference to the requirement for filing petitions for nomination of elective officials in municipalities "at least twenty days prior to the holding of the election". This provision is contained in section 40-2107 of the North Dakota Revised Code of 1943. In determining the twenty days, we must look to section 1-0215 of the North Dakota Revised Code of 1943 which reads as follows: "COMPUTATION OF TIME. The time in which any a

OPINION 56-49 March 13, 1956 (OPINION) ELECTIONS RE: Absent Voter's Law - Application to City Elections We have received your letter of March 9, 1956, wherein you ask whether our absent voters law applies to city elections. Section 16-1801 of the 1953 Supplement to the North Dakota Revised Code of 1943 reads as follows: "ABSENT VOTER, WHO MAY VOTE. Any qualified elector of this state, who is absent from the county in which he is in the military or naval service or the merchant marines of the United States of America, and, is unable to attend at the polling place in his preci

OPINION 56-20 March 12, 1956 (OPINION) CITIES RE: Bonds; Is Swimming Pool "Public Bath" Within Meaning of City Bond Laws? Although the present bond law originated with Chapter 196 of the 1927 Session Laws, there was provision in sections 3818 (74) and 4016 of the 1913 Compiled Laws for issuance of city bonds for the erection of "public baths, or other public places of amusements or entertainment, . . . ." Referring to the Century Dictionary, 1906 edition, at page 473 of volume 1, we find the following: There are many kinds of baths, all of which may be divided into four class

OPINION 56-79 March 10, 1956 (OPINION) MEMORIALS RE: Expenditures Justified I have your letter of March 1, 1956, with reference to expenditures by a board of county commissioners for erection of war memorial building as provided by sections 11-3201, 11-3202, and 11-3203 of the 1953 Supplement to the North Dakota Revised Code of 1943, as amended. You call attention to the fact that some boards have been making purchases of supplies, movie projectors, fire trucks, and other equipment, and your question is whether or not such expenditures are justified under the provisions of the

OPINION 56-92 March 9, 1956 (OPINION) PARK DISTRICTS RE: Funds - Sponsor Baseball Team We have received your request for an opinion, dated March 7, 1956, wherein you ask whether a park district board has the legal authority or power to use park district funds to help pay the expenses in connection with sponsoring and operating a junior legion baseball team. A park district board has only such power as are conferred upon it by statute either specifically or by necessary implication. There is no statute that we can find that confers upon a park district board the power to expend

OPINION 56-24 March 9, 1956 (OPINION) CITIES RE: Electors - Petitions We have received your request for an opinion dated March 8, 1956, with reference to a petition recently filed with your city auditor asking for an election to change the form of city government from commission to the aldermanic system. Your specific questions are as follows: 1. What constitutes an elector and how shall the auditor determine if the petition contains the necessary number of legal signers? 2. What voters' register shall the auditor examine in order to ascertain whether the petition is sign

OPINION 56-140 March 8, 1956(OPINION) WORKMEN'S COMPENSATION BUREAU RE: Investments - Authority to Buy Dormitory Revenue Bonds This is in reply to your request for an opinion on the question whether or not the bureau has the authority to make investments of its funds in dormitory revenue bonds of various educational institutions of this state as outlined in chapter 15-55 of the 1953 Supplement to the N.D.R.C. of 1943. It is a general principle and rule of law that the governmental departments, agencies, bureaus etc. may invest excess moneys only to the extent they have authorization from

OPINION 56-44 February 27, 1956 (OPINION) CRIMES RE: Juvenile, Publication of Names This is in reply to your letter of February 16, 1956, in which you request an opinion from this office, regarding newspaper publications of names of juveniles as set out in section 27-1631. This section provides as follows: "PUBLICATION OF NAME OF CHILD. No publication of the name of any child under the jurisdiction of this court shall be made by any newspaper except as contained in process of the court and published by order of the court. Any violation of the provisions of this section s

OPINION 56-64 February 17, 1956 (OPINION) INDIANS RE: Real Estate Subject to Special Assessments This is in reply to your letter of February 8, 1956, in which you inquire as to whether or not certain real estate owned by Indians is subject to special assessments for water and sewer mains and improvements. You state that certain lots in the city of Dunseith have been assessed for water and sewer main improvements, and that the Indian owner holds a deed to said lots which states that the property is inalienable without the consent of the Secretary of the Interior, but the lots w

OPINION 56-100 February 17, 1956 (OPINION) SCHOOL DISTRICTS RE: Assessments Your letter of February 15, 1956, requesting an opinion from this office, has been received. You state that Dunn Center installed a sewer system to which your school has been connected. You ask whether your school district can legally pay the assessment from your school building fund. Section 57-1517, subsection 1, of the 1953 Supplement, as amended, referring to expenditures from the school building fund, reads in part as follows: "Such funds shall be used solely and exclusively for the purposes of

OPINION 56-68 February 14, 1956 (OPINION) INSTITUTIONS RE: Patients - Reimbursement to State or County by Guardianship Esta This is in reply to your letter of February 9, 1956, pertaining to reimbursement by a guardianship estate of expenses incurred by any county or by the state for treatment and maintenance of any patient at the state hospital, state school or state sanatorium. You set forth a hypothetical question as follows: Supposing that John Jones is committed to the State Hospital from Cass County and Cass County has to pay for his keep at the rate of $45.00 per month

OPINION 56-45 February 1, 1956 (OPINION) DEPARTMENT OF HEALTH RE: Deceased Employee, Obligation to Pay Heirs for Unused Leave of Deceased This is in reply to your request for an opinion on the question whether or not the North Dakota State Department of Health operating under the State Merit System is obligated and has the legal right to pay the heirs or estate of a deceased employee for accumulated and unused annual leave remaining to the credit of the employee's account at the time of his death. The rules and regulations adopted under the provisions of Article XIV have been