North Dakota Attorney General Opinions

OPINION 54-101 September 7, 1954 (OPINION) SCHOOL DISTRICTS RE: Election - Sufficiency of Ballot In your letter of August 31, 1954 you state that Yellowstone School District No. 14 in McKenzie County, North Dakota, on June 30, 1953 held an election on the question of the establishment of a school building fund. The establishment of such fund was approved at the election, but the form of the ballot used has now been questioned and you ask our opinion as to its legality. The ballot reads as follows: "Shall the Yellowstone School District No. 14 increases its building fund levy

OPINION 54-112 August 30, 1954 (OPINION) STATE HOSPITAL RE: Professional Staff - Malpractice This office acknowledges receipt of your letter of August 19, 1954 requesting our opinion on several questions pertaining to the operation of the State Hospital, in particular as it pertains to the work of the doctors in connection with the treatment of the patients committed to your custody. Your questions are as follows: 1. Does the professional staff of the State Hospital have any protection from the State of North Dakota in malpractice suites? 2. Can the doctors of the State H

OPINION 54-83 July 23, 1954 (OPINION) MOTOR VEHICLES RE: Equipment - "Hollywood" Mufflers I wish to acknowledge receipt of your request for an opinion as to the legality of the use of mufflers of the type known as Hollywood and Smitty mufflers. Section 39-1129 of the North Dakota Revised Code of 1943 provides that no person shall drive a motor vehicle on a highway unless such motor vehicle is equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise and annoying smoke. It is the opinion of this office that if any person opera

OPINION 54-62 July 13, 1954 (OPINION) HIGHWAYS RE: Speed Laws - Exemption to Volunteer Firemen You Have invited our attention to section 39-0906 of the North Dakota Revised Code of 1943 which provides in part that fire department or fire patrol vehicles when traveling in response to a fire alarm are exempt from the speed limitations set out in section 39-0902 of the said code, as amended. You have asked us if this exemption extends to volunteer firemen when driving their private cars to the fire hall to get their fire trucks and fight a fire. Section 39-0902, after enumerating

OPINION 54-42 June 24, 1954(OPINION) GAME AND FISH RE: Acquiring Real Estate I wish to acknowledge receipt of your request for my opinion concerning your authority to accept, in behalf of the State of North Dakota, the gift of certain so-called water supply property at Magnolia, North Dakota, from the Northern Pacific Railway Company. It is my opinion that you are granted such authority by the provisions of section 1-0804 of the North Dakota Revised Code of 1943. PAUL BENSON Attorney General

OPINION 54-19 June 24, 1954 (OPINION) COUNTIES RE: County Road Levy - Distribution to Cities and Villages You have invited our attention to a declaratory judgment secured by the city of Bismarck in an action brought in the district court, fourth judicial district, before the Honorable Geo. Thom, Jr. The judgment construes chapter 179 of the 1953 Session Laws of North Dakota and provides, in substance, as follows: That pursuant to the provisions of chapter 179 of the 1953 Session Laws of North Dakota, as said chapter amended and reenacted section 24-0501 North Dakota Revised C

OPINION 54-59 June 22, 1954 (OPINION) INDIANS RE: Jurisdiction - Insane This office acknowledges receipt of your letter of June 14, 1954, asking for an opinion relative to a question of jurisdiction over insane Indians. You put your questions as follows: "1. An insane Indian whose residence is in this county, but not on the Indian Reservation, and 2. An insane Indian who resides on the Turtle Mountain Indian Reservation in this county. not withstanding that the United States Indian Bureau has at this time no contract with the State Board of Administration for the paying of the costs of

OPINION 54-33 June 16, 1954 (OPINION) ELECTION BOARD RE: Qualifications of Members You have asked us if a candidate for precinct committeeman may serve on an election board. Section 16-1001 of the 1953 Supplement to the North Dakota Revised Code of 1943 provides as follows: "BOARD OF ELECTIONS: WHAT CONSTITUTES; QUALIFICATIONS OF MEMBERS. The judges of election, together with the inspector of elections, shall constitute the board of elections. No person shall be a member of the board of elections who: 1. Has anything of value bet or wagered on the result of an electio

OPINION 54-117 June 12, 1954 (OPINION) TAXATION RE: Use Tax on Equipment Television Materials We have your request of June 8, 1954, for an opinion on the question as to whether or not the interstate commerce exemption found in section 57-4003(3) of the North Dakota Use Tax Act is applicable to materials and equipment used in transmission of television programs. The tangible property which makes up telecasting facilities is used by North Dakota stations in telecasting programs which originate from network sources located outside this state and reception of telecasts by North Dak

OPINION 54-121 June 8, 1954 (OPINION) TEACHERS INSURANCE AND RETIREMENT FUND RE: Apportionment Tuition Fund This office acknowledges receipt of your letter of June 5 asking for an opinion relative to the apportionment made by the county treasurer under the provisions of Section 15-3923 of the North Dakota Revised Code of 1943. Your question in particular deals with the problem as to what bearing Section 15-4713 of the 1953 Supplement of the North Dakota Revised Code of 1943 has upon this apportionment. Section 15-4713 of the 1953 Supplement provides that the school board or b

OPINION 54-56 June 7, 1954 (OPINION) HIGHWAYS RE: Township Road Contracts This office acknowledges receipt of your letter of June 3, asking for our opinion as to whether a township desiring to hire a private contractor to do township road work, grading and rebuilding township roads must advertise for bids before entering into a contract with such private contractor. Prior to 1943, we had in effect section 24-0608 of the North Dakota Revised Code of 1943, providing for the advertising of bids for township road work. However, in 1953, the legislature repealed this provision an

OPINION 54-32 June 7, 1954 (OPINION) EDUCATION RE: School Site on Leased Land We have received your letter of June 1, 1954, wherein you ask the following questions: 1. Does a school district have the legal right to construct a permanent school building on a school site on the basis of a ninety-nine year lease? School boards have only such powers as are vested in them by law, either expressly or by necessary implication and can bind the district only within the scope of their authority. The power of an independent school district board reference to school buildings and sites

OPINION 54-15 June 4, 1954 (OPINION) CITIES RE: Employees Entitled to Pay - National Guard Encampment This is in reply to your letter of May 28, 1954, in regard to section 37-0125 of the 1953 Supplement to the N.D.R.C. of 1943 and section 37-0101 of the N.D.R.C. of 1943 in connection with leaves of absence for employees of this state and its political subdivisions for the purpose of attending National Guard Encampments for training purposes. It appears that you have construed these statutes to require continued payment of wages or salary to municipal employees with ninety days

OPINION 54-10 June 4, 1954 (OPINION) ASSESSMENT RE: Implement Dealers Where Assessed We have your letter of June first relating to assessment of merchandise of a machinery dealer which is stored and left for sale in your township. As we understand, this merchant has a place of business in a city or village outside of your township, but has a lot outside of such city or village and in your township where he keeps for sale that part of his stock of merchandise consisting of used machinery and from which lot he makes sales of such machinery. In other words, part of his stock is

OPINION 54-120 June 3, 1954 (OPINION) TAXES RE: Five Percent Discount We have your letter of May 22, 1954, in which you ask us to confirm an opinion of this office dated March 14, 1949. In that opinion it was stated that a taxpayer who desired to pay his real estate taxes without paying the special assessments on the real estate was entitled to the five percent discount if the taxes were paid within the statutory time entitling him to such discount. The principle that general taxes may be paid without at the same time paying special assessments since declared in the cases of St

OPINION 54-46 May 27, 1954 (OPINION) GAME AND FISH RE: Real Estate - Exchange of Land with Federal Government I herewith acknowledge receipt of your request for an official opinion from this office regarding your authority, with the approval of the Governor, to complete an exchange of lands with the Federal Government by virtue of the provisions of section 20-0205 of the North Dakota Revised Code of 1943. It is my opinion that the power to purchase and sell lands as granted by section 20-0205, by implication, authorizes a direct exchange of lands. PAUL BENSON Attorney General

OPINION 54-29 May 25, 1954 (OPINION) EDUCATION RE: Levy Building Fund We have received your letter of May twentieth with reference to the school building fund. You state in your letter that a common school district in your county voted to create a building fund on June 5, 1951, under authority of section 57-1516 of the 1953 Supplement, and have since been levying for that purpose to a special school district and such change has now been effected. The new district embraces the same territory and the same people as the old district. Now a petition has been filed with the new b

OPINION 54-35 May 24, 1954 (OPINION) ELECTIONS RE: Filing for Two Offices This is in reply to a telephone conversation of May twelfth, your letter dated May eleventh and subsequent conferences with Mr. Feidler, your state's attorney, in regard to whether or not a person can file a nominating petition for the office of Justice of the Peace and at the same time for the office of Assessor, and whether a person can file a nomination petition for the office of Justice of the Peace and at the same time for the office of County Coroner, all of which offices are to be voted on at the P

OPINION 54-25 May 24, 1954 (OPINION) EDUCATION RE: Acquiring of Site Outside of Boundaries of District Your letter of May eleventh, relative to a proposed school site has been received and contents noted. You state that the site that the school board for Devils Lake Special School District proposes to acquire, either by voluntary purchase or eminent domain, is located outside of, but adjacent to the City of Devils Lake and the Special School District. You state that this site has been recommended by the planning board set up by the University of North Dakota. You further st

OPINION 54-10 May 21, 1954 (OPINION) ASSESSMENT RE: Refinery - Pipe Line This is in reply to your letter of May 17, 1954, wherein an opinion is requested as to the procedure to be followed in the tax assessment of the pipe line which has been constructed by Standard Oil Company of Indiana from their refinery property in Morton County to Moorhead, Minnesota. According to information which you have received from this company the pipe line is for the exclusive use of this company in transporting its refined petroleum products from its refinery to marketing areas. The line is wh

OPINION 54-114 May 18, 1954 (OPINION) TAXATION RE: Memorial Fund - Distribution You have requested an official opinion from this office as to whether or not the county commissioners may lawfully, under a changed or new resolution, disburse the funds in equal shares to the six American Legion posts in the county. You further enclose and state in your communication certain pertinent facts, to-wit: That on June 1, 1948, the board of county commissioners of Rolette County passed a resolution levying a tax under the provisions of chapter 11-32 of the North Dakota Revised Code of

OPINION 54-42 April 12, 1954(OPINION) GAME AND FISH RE: Hunting - Bow and Arrow I wish to acknowledge receipt of your request for an opinion dated April 9, 1954, concerning a permit season for bow hunters. It is my opinion that sections 20-0310 and 20-0311 of the North Dakota Revised Code of 1943 do not prevent the issuance of permits for bow hunters by virtue of a proclamation in addition to regular big game hunting license. At the time sections 20-0310 and 20-0311 were adopted, it was illegal to hunt with

OPINION 54-84 April 7, 1954 (OPINION) NURSERY STOCK RE: When License Required Yours of April 6th with letter of the State Entomologist, of April 1st has been received. We will answer the questions submitted as follows: (1) It has come to our attention that a certain out-of-state nursery, presently operating in North Dakota under the reciprocal agreement section of the North Dakota Nursery Law, has agents representing this firm who solicit nursery stock orders for future delivery. In several instances we have found that the agent who solicited the original order also acts a

OPINION 54-23 March 3, 1954 (OPINION) DRAINAGE RE: Assessment for Clean Out Your letter, under date of February 27, 1954, addressed to Honorable Elmo Christianson, Attorney General, has been referred to me for attention. In your letter to the Attorney General you say that the County Commissioners of your County are considering a levy of fifty cents an acre against the lands benefited by the Tri County Drain for the purpose of cleaning it. You say in your letter that several thousand dollars of bonds, issued for the construction of the drain, have not been paid and that there

OPINION 54-100 March 3, 1954 (OPINION) SOIL CONSERVATION RE: Contract Work In yours of March second you ask: "In other words, does the Soil Conservation Districts law require, by direction or implication, that the operation programs of the district boards be confined to the conservation of soil resources and the control and prevention of soil erosion with the district." It is our opinion that the answer to this question is "yes." In other words, the soil conservation district has no power to contract for work which is not directly concerned with soil conservation operations.

OPINION 54-100 March 2, 1954 (OPINION) SOIL CONSERVATION RE: Funds By Whom Disbursed In your letter of February 23, 1954, you ask "whether, by law, there is any direct or implied control over the expenditure of monies accumulated in these (soil conservation) districts by their various district boards even though the monies have not been raised by taxation or other governmentally approved procedures, but because such funds were raised cooperatively but in the procedures, but because such funds were raised cooperatively but in the name of a Soil Conservation District as a politic

OPINION 54-17 February 18, 1954 (OPINION) CONTRACTORS RE: Residence Preference I wish to acknowledge receipt of your request for an opinion regarding the application of the preference statutes to a foreign corporation, authorized to do business in this state and maintaining a bona fide place of business in this state. It is the opinion of this office that a preference to resident bidders for the furnishing of equipment is not granted by section 24-0235 but is granted by section 44-0801. The definition of a resident bidder or seller, for purposes of preference under section 4

OPINION 54-122 February 15, 1954 (OPINION) TEACHERS INSURANCE AND RETIREMENT FUND RE: Instructors at State Hospital May Qualify This is in reply to your letter of January 28, 1954, in regard to the applicability of either the state teachers retirement or the state old age and survivors insurance system to certain officials of the State Hospital. More specifically your question appears to be, which system is applicable to the persons occupying the following positions? 1. Director of rehabilitation services, whose responsibilities include maintenance of training programs for pa

OPINION 54-104 January 27, 1954 (OPINION) TAXATION RE: Allocation Gross Production Tax This is in reply to your letter of January 15, 1954, in regard to chapter 339 of the 1953 Session Laws, our gross prodiction tax on producing oil and gas properties, and Section 186 of our State Constitution. I will answer the questions asked in that letter in order stated. Question No. 1. Shall the state treasurer and state auditor maintain a special fund? Section 14 of the Act requires "deposit" with the state treasurer of all moneys collected by him under this Act. Section 15, subse

OPINION 54-40 January 25, 1954(OPINION) ESTATES RE: Probate - No Heirs - State's Attorneys' Duties In your letter of January twenty-second you ask for our interpretation of section 30-2501, particularly with reference to the duties of the state's attorney prescribed by this section. It is our opinion that the state's attorney has performed his full official duty when he has petitioned "for administration as soon as the facts come to his knowledge." The County Court then takes over and appoints an administrator, who may be the public administrator or any other proper person. There may b

OPINION 54-118 January 25, 1954 (OPINION) TAXATION RE: Use Tax on Property Brought into North Dakota In your letter of January 21st you state: I have just moved from St. Vincent, Minnesota, across the river to Pembina, North Dakota. I have lived in St. Vincent for the past six years and a little over two years ago I purchased a used House Trailer from a dealer in Kennedy, Minnesota. I have licensed the trailer in Minnesota for the last two years, 1952 and 1953. "I would like to bring the House trailer to my home in Pembina, North Dakota, where it will be stored until about

OPINION 54-71 January 19, 1954 (OPINION) LEGISLATION RE: Resolution - Import We are in receipt of your letter of November 25, 1953, requesting an opinion of this office as to the meaning and effect of Senate Concurrent Resolution H. The term "resolution" is normally used to denote the adoption of a motion, the subject matter of which would not properly constitute a statute, such as a mere expression of opinion, a formal expression of the will of the enacting body, other than a law. Thus the resolution here concerned, expresses the opinion of the legislature as to knowledge of

OPINION 54-56 January 5, 1954 (OPINION) HIGHWAYS RE: Weeds - Township - Cutting This office is in receipt of your letter of December 29, 1953, asking for an opinion as to the responsibility for the cutting of weeds upon the right of way of township highways and you state that your township had cut these weeds and certified the expenses thereof to the county auditor, but that your county auditor, on the advice of the state's attorney, held that the cutting of these weeds must be outside of the 33 feet nearest the section line. This office has heretofore unofficially ruled that t

OPINION 53-5 December 30, 1953(OPINION) AGRICULTURE RE: Commissioner to Compile Statistics This office is in receipt of your letter of December 24, 1953, inquiring as to the obligations which are imposed upon you by virtue of chapter 4-01 of the N.D.R.C. of 1943 dealing with the question of statistics. It will be noted that section 4-0104 outlines the kind of information which is to be furnished your department through the assessors and the county auditors of the State of North Dakota. This information is outlined: What is the number of farms, the number of acres cultivated or to be cu

OPINION 53-24 December 30, 1953 (OPINION) DRAINAGE RE: Funds of Water Conservation Commission May Be Used Your letter under date of December 22, 1953, addressed to Honorable Elmo Christianson, Attorney General, has been referred to me for consideration and reply. You say in your letter that Pembina County has requested financial assistance to meet the cost of "snagging and cleaning the channel of the Pembina River as well as some channel straightening" You request the opinion of the Attorney General as to whether or not funds appropriated to the State Water Conservation Com

OPINION 53-107 December 29, 1953 (OPINION) TAXATION RE: Assignment of Delinquent Tax Certificate Attorney Schulte requested that we render to you an opinion upon the question as to whether it is mandatory or discretionary with the county to assign tax certificates. There is nothing in the statute which specifically states that the county must assign a tax certificate held by the county for delinquent taxes upon real estate, but neither is there any statute which says that the county may not do so. In fact the wording of the statute indicates the very thought that such assignm

OPINION 53-106 December 29, 1953 (OPINION) TAXATION RE: Assessment of Land Subject to Highway Easement I wish to acknowledge receipt of your letter dated December 21, 1953, in which you request an opinion concerning the taxation of lands upon which the owner thereof has granted an easement for highway right-of-way. It is the opinion of this office that the legal owners of all lands are subject to be taxed therefor, regardless of the existence of easements or servitudes unless specially exempt by the Legislature as in section 57-0210. There is no such special exemption for hig

OPINION 53-117 December 16, 1953 (OPINION) TAXATION RE: Separation Special From General Tax Your letter of the 11th inst. has come to my desk. Your questions require an answer to the question: Has property owner against whom general taxes and special assessments have both been levied, the right to pay either one or the other without paying both? It is our opinion that he may pay either one without paying both. This is clearly indicated by the statutes concerned. Section 40-2414 N.D.R.C. provides only that the county treasurer shall collect special assessments as general t

OPINION 53-78 December 10, 1953 (OPINION) MOTOR VEHICLES RE: Registration When in Military Service This office acknowledges receipt of your request for an opinion relative to the applicability of Section 39-0404 with reference to the registration of motor vehicles owned and operated by a person in military service now stationed in the State of North Dakota, but whose home and residence is in the State of Ohio. In checking into this matter, we find that the 1942 Congress passed an act declaring that for the purpose of taxation in respect to any person or of his property by any s

OPINION 53-113 December 9, 1953 (OPINION) TAXATION RE: Lien for Personal Property Tax This office is in receipt of your request of December 2, 1953, asking for an opinion relative to the interpretation to be given section 57-2221 of the North Dakota Revised Code of 1943 and in connection therewith you ask the following questions: 1. Can the board of county commissioners select, at their discretion, the particular tract of land owned by the tax debtor, against which the delinquent personal property tax is to be extended on. It is the opinion of this office that the board of c

OPINION 53-77 December 8, 1953 (OPINION) MOTOR VEHICLES RE: Out of State Registered Vehicles This office is in receipt of your request of December 7, 1953, submitting for our interpretation and opinion a request from the Highway Patrol of Grand Forks, North Dakota, the question as to whether the Packard Motor Car Company of Minneapolis, Minnesota may operate in this state one of their automobiles owned by the said concern but used by a block man for the company and who lives in North Dakota. In answer to said request, it is the opinion of this office that Section 39-0446 of th

OPINION 53-93 November 20, 1953(OPINION) OIL AND GAS RE: Industrial Commission - Rule Making Powers At a hearing held in the State Capitol on November 16, 1953, the North Dakota Industrial Commission considered certain rules and regulations proposed to it, together with objections to and corrections for those rules. The Commission requested an opinion of the Attorney General upon three specific questions: 1. Whether the proposed definition of waste is within the statutory and constitutional powers o

OPINION 53-57 October 28, 1953 (OPINION) HOLIDAYS RE: Armistice Day We have your request of October 26, asking for an official opinion relative to the holiday known as Armistice Day, which is designated specifically as the eleventh day of November. Your question in particular is as to whether or not this holiday is of such importance that ordinary places of business should be closed or if they are justified in remaining open. This is a question upon which some people might differ, but our opinion is as follows: Section 1-0301 of the 1949 supplement to the North Dakota Revis

OPINION 53-75 October 13, 1953 (OPINION) MILITARY RE: Recording of Form D-214 In your letter of October 7, 1953, you state that servicemen who are being released from service at the present time are being issued a form DD-214 which contains the pertinent information with reference to their age, date and place of entry into service, date of separation, etc. You also state that this is not a complete discharge due to the fact that they are being released to inactive duty and that the usual form of discharge appears at a later date when the serviceman is finally and completely d

OPINION 53-80 October 5, 1953 (OPINION) MOTOR VEHICLES RE: Taxation of Trucks - Local Hauling This opinion is written in response to your oral request for a clarification of Section 6, Chapter 242, Session Laws of 1953 as it applies to deliveries of goods by a merchant in his own truck, to a farmer-customer living over two miles from the recognized limits of the merchant's home city but such city being the usual local trading place for such farmer. You have asked whether Section 6 excepts this motor vehicle from the annual fee provided in this chapter. General provisions of l

OPINION 53-96 September 29, 1953 (OPINION) OIL AND GAS RE: Leasing by County We are in receipt of your letter of September 22, 1953, in which you request our opinion relative to an interpretation of chapter 232 of the 1951 Session Laws, as amended. You state that a railroad has discontinued operating in your county and has quit claimed to the county certain small tracts varying from one to twelve acres, variously located throughout the county. These tracts of land have been would back to the owners of the land adjacent to such tracts and in so doing the county has reserved one

OPINION 53-108 September 28, 1953 (OPINION) TAXATION RE: Cancellation When Property Acquired by City You have requested our opinion with reference to the question of abatement of delinquent real estate taxes on property recently purchased by the City of Dickinson for street purposes. Our Supreme Court in the case of State v. Towner County, 68 N.D. 629, 283 N.W. 63, has decided that where property is purchased by the state, all outstanding and unpaid taxes against such property are cancelled. Moreover, the general rule appears to be as stated in 158 A.L.R. at page 505 that "the