North Dakota Attorney General Opinions

OPINION 53-17 April 7, 1953 (OPINION) CORPORATIONS RE: Duration of Cooperatives This office is in receipt of your request of March 30, 1953, dealing with the corporate duration of the Farmers Cooperative Corporations organized under chapter 10-15 of the N.D.R.C. of 1943. The inquiry is prompted because of the request from the Farmers Union Central Exchange, Incorporated, of St. Paul, in which they set forth that they are contemplating amending the corporate charter of all their farmers cooperative oil companies affiliated with the Farmers Union Central Exchange and in which t

OPINION 53-70 March 20, 1953 (OPINION) LEGISLATION RE: Discrepancy in Recorded Proceedings We have a request from your office for an opinion to determine the correctness of House Bill 819 relating to county officers' salaries recently passed by the legislative assembly of North Dakota which amends section 11-10102 of the 1949 supplement to the North Dakota Revised Code of 1943. It appears from your request that there is a discrepancy between the recorded proceedings of the House and Senate and that of the enrolled and engrossed bill. In checking this matter, we find that Hous

OPINION 53-71 March 18, 1953 (OPINION) LEGISLATION RE: Vote Required for Initiated Measure We have your request for an opinion as to the vote needed in the House and Senate of the Thirty-third Legislative Assembly to legally pass Senate Bill 269. In searching the records, we find that the law establishing the Board of Administration was originally passed in 1919. Thereupon the said measure was submitted to the people of the state on a referendum petition and was approved by the people in the 1920 election. Thereafter, we find that the 1931 legislative assembly enacted chapte

OPINION 53-83 March 2, 1953 (OPINION) MUNICIPALITIES RE: Operation of Public Utility We have yours of February 26, 1953, presenting the following question for an opinion from this department. Could revenue bonds be issued by a municipality for the construction of a central heating plant, whether or not it is connected with any other public utility?" Section 40-3503 of the 1949 Supplement to the North Dakota Revised Code of 1943, provides, among others, the following provision: Any municipality, in addition to the powers prescribed elsewhere by the laws of this state, shall hav

OPINION 53-112 March 2, 1953 (OPINION) TAXATION RE: Levy for Advertising Purposes This office acknowledges receipt of your inquiry of February 26, 1953, asking for an interpretation of Section 57-15101 of the 1949 Supplement to the North Dakota Revised Code of 1943 which provides that counties and cities may levy for certain advertising purposes a tax not in excess of one-half mill on the dollar of the net taxable valuation of the county or city having a population in excess of 3,000, for the purpose of advertising the resources and processing opportunities in North Dakota and

OPINION 53-81 February 19, 1953 (OPINION) MOTOR VEHICLES RE: Unsatisfied Judgment Claims You have asked our opinion with regard to a matter involving the Unsatisfied Judgment Fund. You state that a case has arisen in which the defendant has been admittedly negligent in leaving upon a highway of this state a house trailer around which no warning lights or flares have been placed. We have found from our investigation and from discussion with you that defendant had been proceeding north on highway 22 in his automobile, attached to which had been the house trailer. A wheel havin

OPINION 53-88 February 3, 1953 (OPINION) OFFICERS RE: Public - Term of Lieutenant Governor We have your inquiry of January 30, 1953, asking that an opinion be rendered by this office as to when the term of office of lieutenant governor officially begins after election. Article III, Section 71 of the Constitution of the State of North Dakota provides that the executive power shall be vested in a governor, who shall reside at the seat of government and shall hold his office for the term of two years and until his successor is elected and duly qualified. Section 72 of the same ar

OPINION 53-110 February 3, 1953 (OPINION) TAXATION RE: Exemption of Certain Structures You have asked our opinion upon an interpretation of section 57-0208(15) of the North Dakota Revised Code of 1943, which section exempts from taxation buildings located on agricultural lands and comprising part of the farm plant. In the case in question, the taxpayer has located a chicken hatchery on an eight-acre tract of land outside the city limits of Bismarck. The land is used exclusively for the hatching and marketing of chickens and no crops whatsoever are grown on the land. The taxpa

OPINION 53-126 January 22, 1953 (OPINION) WAR MEMORIAL FUND RE: What Constitutes War Memorial Referring to your letter of today relative to H.B. 585, proposed for enactment at this session, we cannot, of course, say just what may be built as a memorial under this Act. That can only be done by the courts when considering a distinct proposed memorial as in the case of Ophaug et al v. Hildre et al. 77 N.D. 221, 42 N.W. 2d 438. in that case the court said that the law, chapter 125 S.L. 1947, was intended to furnish "sufficient funds but to leave the matter of this kind of mem

OPINION 53-7 January 13, 1953 (OPINION) APPROPRIATIONS RE: Withholding a Twenty-five Percent For Last Quarter In yours of January ninth you ask our opinion as to the application of section 54-2710 N.D.R.C. to the several states of fact recited in your letter. Section 54-2710 provides that, of appropriations made for the maintenance of any state institution, department, board, commission or bureau, twenty-five percent thereof must be conserved and be available only at the beginning of the fourth quarter of the biennium. This department has consistently held that this statute re

OPINION 53-30 January 8, 1953 (OPINION) EDUCATION RE: School District Qualified for Special Federal Aid Our opinion has been asked as to whether your school district has fully complied with the requirements and intent of chapter X, Department of Defense, Flood Control, providing for the building of a school house for your district. This provision requires that your district furnish "the maximum amount of money which can be provided through a bond issue within the general debt limitation permitted for such school district". We understand that your district has issued and sold

OPINION 53-28 January 8, 1953 (OPINION) EDUCATION RE: Disposal of Money Received on Sale of Abandoned School House In yours of today you state that your school district had a school house that had been unused for six years and that the electors of the district had authorized the sale of the building. Upon the sale the sum of four thousand five hundred twelve dollars was realized and now the question is, what may this money be used for? You state three different proposals for the use of the money and we will answer these in order. One: We know of no law authorizing a schoo

OPINION 52-102 December 29, 1952 (OPINION) STATE EQUALIZATION FUND RE: Institutions to Which It Applies You have directed to this office a question concerning the eligibility of certain state schools operating under the jurisdiction of your board to share in the benefits of the State Equalization Fund. This is with reference thereto. The schools to which you refer are the school for the blind, the school for the deaf and the state training school at Mandan. The particular benefits available under the laws providing for the State Equalization Fund are (1) appropriations for vo

OPINION 52-115 December 16, 1952 (OPINION) TAXATION RE: Oleomargarine Reference is made to your letter of December 10, 1952, in which you ask the opinion of this office as to the applicability of this state's tax on the sale of oleomargarine to sales made to a branch of the United States Veteran's Administration. Our statutes with reference to the per pound tax on oleomargarine, which is section 19-0508, as amended, makes no specific exemption in the case of sales made to the federal agencies. However, the doctrine of "implied constitutional immunity" has arisen in federal d

OPINION 52-22 December 8, 1952 (OPINION) DEPOSITORY BOND RE: Change of Securities In yours of December fifth you ask for an interpretation of section 21-0409 North Dakota Revised Code 1943. You indicate that the depository bond as permitted by this section may, on occasion, desire to substitute other securities in the place and stead of securities theretofore deposited. And you suggest the possibility of the Board of County Commissioners adopting a resolution authorizing either the county auditor or the county treasurer to accept such substitutions. Since section 21-0408 re

OPINION 52-101 November 28, 1952 (OPINION) SOIL CONSERVATION DISTRICTS RE: Who May Vote to Enlarge Reference is made to your letter of November 10, 1952, wherein you state that farmers and ranchers in the eastern portion of Sioux County are interested in being within the boundaries of a soil conservation district and the Cedar District of the western portion of the county would like to enlarge their present district to include all of Sioux County. A question has been raised as to the eligibility of the voters and specifically you would like to know which Indians are eligible to

OPINION 52-79 November 24, 1952 (OPINION) MOTOR VEHICLES RE: Size Permitted on Highways Reference is made to your letter of October 27, 1952, wherein you state that in your county "there has been rather extensive use of 'lowboy' trailers, which measure a width of 16 feet pulled behind tractors, on which there is loaded an entire stack of hay and which takes up practically one-half of the conventional highway." You therefore request an opinion as to whether or not it is permissible to operate such a vehicle upon the public highway without first obtaining a permit as provided in

OPINION 52-97 November 3, 1952 (OPINION) RECORDING DEEDS RE: Transfer by County Auditor Yours of October thirtieth relative to refusal of the register of deeds of Williams County to record certified copy of patent to the above land for the reason that the taxes for 1951 have not been paid thereon, has come to my desk for reply. In your conversation with me a few days ago, you stated that this patent was issued in 1911 to the homesteader named in the Final Receipt already of record in his name. And, further, that the present record owner is the person in whose name the land is

OPINION 52-124 October 30, 1952 (OPINION) TEACHERS INSURANCE AND RETIREMENT RE: Qualifications for Admission We are in receipt of your communication of October 28, 1952, in which you present the following facts: "We are in receipt of a communication from a former teacher who taught in North Dakota prior to January 1, 1914. She is now employed as a teacher in the state of Montana and is requesting that she be granted the privilege of membership in the North Dakota Teachers Insurance and Retirement Fund." Your inquiry is whether or not under those circumstances this teacher ma

OPINION 52-8 October 10, 1952 (OPINION) APPROPRIATIONS RE: Withholding Payment Old Age Insurance and Retirement Matching By your letter of October 6, 1952, you have asked the opinion of this office as to the propriety of retaining until after January 1, 1952, twenty-five percent of the item for matching for the Old Age Survivor's Insurance contained in the appropriation for the current biennium of the Livestock Sanitary Board. You make reference, of course, to section 54-2710 of the N.D.R.C. 1943, which provides: "Seventy-five percent of the total of all appropriations and of

OPINION 52-28 September 29, 1952 (OPINION) EDUCATION RE: Age of Children for Admittance Yours of the 26 inst. asking for an interpretation of this section has been received. (section 15-4701, 1949 Supp.) So far as we are able to ascertain, our court has not passed on this section. It is our opinion, however, that it does not prohibit the attendance of a child who is not of the age of six years and will not attain that age "by midnight, December thirty-first." The law simply means that if a child shall attain the age of six years on or before midnight on December thirty-fi

OPINION 52-73 September 2, 1952 (OPINION) MILITARY RE: Applicability of War Act In yours of August 30, you ask whether or not, in our opinion, section 57-4605 applies to members of the armed forces now in service in the present military operation. Section 57-4605 is section 5 of chapter 267, Laws of 1943. Under the applicable rules of construction, this section 5 must be construed in the light of the whole chapter. Section 1 of this chapter certainly makes it unmistakably evident that the chapter refers to the then continuing war with Germany, Japan and Italy. The title t

OPINION 52-88 August 20, 1952 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Surgical Chiropody You have written this office asking whether or not existing statutes permit practitioners holding degrees of Doctor of Surgical Chiropody to perform minor foot surgery. You state that the statute applicable to your profession were passed and approved in 1929. You add that scholastic requirements have been raised and that since the passage of the Act no amendments have been passed. Chapter 43-05, NDRC, 1943, contains the law applicable to your profession and in reading the provisions of

OPINION 52-80 August 20, 1952 (OPINION) MOTOR VEHICLES RE: Tonnage Tax - Farmers In your letter of August 18 you state that a resident of your county, while returning from harvesting outside the state, and driving a truck carrying a combine used in that operation, was ordered by the state highway patrolman to pay an additional license fee by reason of the fact that the truck was carrying the combine. You state that there is some question in your mind whether chapter 246 of the 1951 Session Laws applies to this case, for the reason that the driver is a farmer in this state who w

OPINION 52-103 August 20, 1952 (OPINION) STATE SEED DEPARTMENT RE: Potato Dealer's Bond In yours of August 2, 1952, you ask whether arrangements can be made to permit a continuous bond and license rather than dealers having to go through the formality of making application each year. We have read chapter 4-11 of the North Dakota Revised Code of 1943 and notice that section 4-1103 provides for the requirements a potato dealer must meet before being eligible for a license. We also note by section 4-1106 that it specifically provides that all licenses shall expire on June thirtiet

OPINION 52-37 July 29, 1952 (OPINION) ELECTIONS RE: Special to fill vacancies In your letter addressed to this office and received July 21, 1952, you state that on July 17, 1952, Governor Burnsdale signed a writ of election notifying the county auditor of Pierce County that the vacancy as a result of the death of Senator Willard B. Anderson shall be filled at a special election, and that the special election shall be held at the time of the general election which is November fourth of this year. You now ask for an explanation of the procedure to be used in making party nominat

OPINION 52-20 July 28, 1952(OPINION) COUNTIES RE: Fees for Dance Hall Permit Reference is made to your recent letter requesting the opinion as to whether or not it is permissible under North Dakota Law for a county to charge a fee for issuing a dance permit when the dance is to be held outside incorporated village or city limits in the county. Section 40-0501(66) of the N.D.R.C. 1943 gives the governing body of municipalities the power "To license, tax, and regulate public dances or public dance halls;". The state delegates the responsibility to the county commissioners to either issue

OPINION 52-36 July 17, 1952 (OPINION) ELECTIONS RE: Publications Returns on Measures Your letter of the fifteenth instant re publication of election returns on initiated and referred measures has reached my desk. Sections 16-1321 and 16-1332 are very specific as to the election information which the county auditor is required to publish. Section 16-1321, in our opinion, refers only to primary election returns, and section 16-1332 refers only to the fall general election returns. The publication required by sections 16-1321 would show the findings of the canvassing board on th

OPINION 52-35 July 16, 1952 (OPINION) ELECTIONS RE: Publications; Returns Yours of the fourteenth instant asking our opinion as to whether section 16-1332 N.D.R.C. of 1943 requires the county auditor to publish the election returns of the recent primary election or not has come to my desk. Section 16-0601 provides for the holding of an election on the first Tuesday after the first Monday of November of each even-numbered year "which shall be known as the general election." This provision was first codified as section 477, Revised Code 1895, and was enacted as section 1, Hous

OPINION 52-41 July 9, 1952 (OPINION) ESTATES RE: Succession Your letter of July seventh re above estate has been received. It is my opinion that your question is answered by section 56-0104(4)(a). You state: "There is no father, mother, brother or sister surviving, only nieces and nephews, etc." I understand from this that there is no surviving widow or child. If this be the case, then the matter is controlled by the above subsection, which reads thus: "If the decedent leaves: a. No issue, nor husband, nor wife, nor father, nor mother, nor brother, nor sister, then th

OPINION 52-42 July 7, 1952(OPINION) GAME AND FISH RE: Antelope Hunting Permits You request an opinion from this office as to whether you may refuse applications for permits for hunting antelope to those who had permits for such hunting in 1951. We know of no special statute covering this matter. By law you are of game animals in this state. Where the statute makes specific provision in this respect, the statute, of course, governs. It is practically impossible for the

OPINION 52-167 June 25, 1952 (OPINION) SUCCESSION AND WILLS RE: Stepchild as Heir In your letter of the 23rd you ask our opinion as to whether a stepchild who was not adopted by her mother's second husband is his heir and entitled to share in his estate, he having died intestate. It is our opinion that section 56-0112 N.D.R.C. 1943 does not apply, since it only applies when the surviving child is of the blood of the decedent. It applies, for instance, where two children of the same father, but of different mothers are his heirs. Each takes an equal share, and they are kindr

OPINION 52-80 June 20, 1952 (OPINION) INSTITUTIONS RE: County Jail May Not Be Made Part of State Tuberculosis Hospital Reference is made to your letter of June 6, 1952, wherein you state that the following resolution was passed by the board of county commissioners of Rolette County: Tuberculosis being a communicable disease, and the County of Rolette does not have facilities for confining anyone who has contracted such illness, it was decided that - one, two-bedroom unit on each of the second, third and fourth floors of the first unit of the Infirmary Building at the State Tube

OPINION 52-169 June 19, 1952 (OPINION) TAXATION RE: Commissioners Cannot Be Compelled to Sell for Less than Land is Your inquiry re these sections has been received. Our Court has held that when land has been sold to the county for unpaid taxes and the right to redeem has been regularly terminated, the county is the absolute owner of the real estate so acquired. It is our opinion that section 57-2815 is not mandatory, and that the county cannot be compelled to sell any specific tract if in the opinion of the commissioners it should not be sold. Further, the county commissioners

OPINION 52-54 June 17, 1952 (OPINION) DRAINS RE: Obstruction to Natural Channel May be Removed Your letter of June 10, addressed to the Attorney General, requesting the opinion of his office in regard to a drainage problem in Norden Township of LaMoure County, North Dakota, has been referred to me as Special Assistant Attorney General for the State Water Conservation Commission for consideration and reply. In your letter to the Attorney General you say that at the request of the township board of said township you request the opinion of his office as to whether or not obstruc

OPINION 52-55 June 10, 1952 (OPINION) DRAINS RE: Purchaser of Land Under Contract Votes as Owner Your letter of May 28, 1952, addressed to the "Office of the Attorney General", has on this tenth day of June been referred by the Attorney General to me, as Special Assistant Attorney General for the State Water Conservation Commission, for attention and reply. In your letter to the Attorney General you say: In numerous cases we find land that has been sold under contract for deed, and it is our thought that the contract holder (namely, the purchaser) is the person who would be en

OPINION 52-162 June 5, 1952 (OPINION) STATE DEPARTMENT OF HEALTH RE: Registration of Cemeteries Reference is made to your letter of May 28, 1952, requesting an opinion from this office as to the jurisdiction of the Health Department and procedure to be followed by the Health Department in enforcing the laws relating to the regulation of cemeteries. It is our opinion that the State Health Department is concerned primarily with the health aspects relating to the burial of the dead and the regulation of cemeteries. It need not concern itself with the financial structure of the c

OPINION 52-201 June 4, 1952 (OPINION) VETERANS RE: Soldiers Bonus - Eligibility Reference is made to your request for an opinion concerning the administration of the Veterans Adjusted Compensation Act. 8d of Section 37-2102 of the 1949 Supplement provides in part, "No person shall be considered a resident of North Dakota for the purpose of receiving any benefits under this act (chapter) if he was on continuous active duty in the armed forces for a period of five years or more, immediately prior to December 7, 1941, and has not established actual abode in North Dakota prior to

OPINION 52-12 May 23, 1952 (OPINION) BIDS AND BIDDERS RE: Certified Check Less Than Five Percent Does Not Void The Bid In your letter of May 21, 1952, you state the following facts. On the general contract for the Home Economics Building at the North Dakota Agricultural College the low bid was $244,045.00. The contractor posted a certified check in the sum of $12,000.00, or $202.25 less than the five percent required by statute. The next lowest bid was $254,500.00 and was accompanied by a certified check in the amount of $13,500.00, an amount in excess of five percent of th

OPINION 52-141 May 19, 1952 (OPINION) PUBLIC SERVICE COMMISSION RE: May Not Act Where Conflict Occurs Between Citizens This is directed to you in response to your request for an opinion construing section 49-0217 and 49-0218 of the N.D.R.C., 1943. These sections read as follows: 49-0217. Unreasonable Rates, Rules, and Practices Affecting Interstate Commerce. Whenever it shall come to the knowledge of the commission, either from its own investigation or by complaint made to it in any manner whatsoever, that the rates charged by any common carrier on interstate business are

OPINION 52-25 May 17, 1952 (OPINION) COUNTIES RE: Commissioners Authorized to Make Compromise Settlements with For Patients for Institutional Care Your letter of April 18, 1952, addressed to the State Board of Administration, has been referred by that office to us for consideration and reply. You request an opinion as to whether or not the county commissioners are legally empowered to make compromise settlements with former patients of state institutions or administrators of their estates. Our courts have consistently held that county commissioners are vested with the genera

OPINION 52-96 May 14, 1952(OPINION) LABOR RE: May Female Work for Two Employers Without Employers Violating the 48 Hour Law Your letter of May 12, 1952, has been handed to me for consideration and reply. You state that during a laundry strike, in order to staff a struck laundry, women who had been employed during the day in one laundry were shifted to the struck laundry where they were employed during the night shift, and you assume that the two employers knew that the women had worked o

OPINION 52-156 May 14, 1952 (OPINION) SOIL CONSERVATION RE: May Commissioners Make a Second Levy for Drainage Your letter under date of May 10, 1952, addressed to Attorney General Elmo Christianson, with reference to the construction of sec. 61-2145 of the 1949 Supplement to the 1943 Revised Code has been referred by him to me, as Special Assistant Attorney General for the State Water Conservation Commission, for consideration and reply. In your letter to the Attorney General you say: "Certain property owners in a drainage district petitioned the Board of County Commissioners

OPINION 52-67 April 28, 1952 (OPINION) FIREWORKS RE: Definition Under 1951 Amendment RE: Section 23-1501 of the 1947 Session Laws as amended by Chapter 1 Session Laws - FIREWORKS In 1947 the Legislature passed an act defining "fireworks". That act was as follows: Section 23-1501. FIREWORKS DEFINED. As used in this Act (chapter), the term 'fireworks' means any substance or combination of substances or articles prepared for the purpose of producing a visible or an audible effect by explosion, or detonation, and includes blank cartridges, toy cannons, and toy canes in wh

OPINION 52-51 April 28, 1952 (OPINION) DOMESTIC RELATION RE: Uniform Reciprocal Enforcement of Support Act - Fees Chargeable TO ALL STATE'S ATTORNEYS: Chapter 122 of the 1951 Session Laws is an act concerning the extension and reciprocal enforcement of duties of support. In the various counties of this state the administration of this law has given rise to problems concerning the filing fees and the payment thereof when an action is instituted under this act. There are the following three problems which I shall set out and give an opinion on each: QUESTIONS 1. In cases

OPINION 52-61 April 23, 1952 (OPINION) ELECTIONS RE: School District According to your letter of April 8, 1952, three new directors must be elected by reason of vacancy at the annual school district election so that one director must be elected for three years, one director for two years and one director for the period of one year. You further state in your letter, "After some discussion and thinking on the above matter it is my belief that probably the simplest and easiest method of handling this election would be to provide blank ballots and allow the electors to write in the

OPINION 52-170 April 17, 1952 (OPINION) TAXATION RE: County Library Levy Not Within 18 Mill Limitation According to your letter of April 5, 1952, Williams County is levying the full 18 mills as authorized by Section 57-1506 of the 1949 Supplement of the Revised Code of 1943 and they are now contemplating an additional levy for library and reading room purposes. You therefore request an opinion from this office as to whether or not the county library and reading room levy could be in excess of the 18 mills. Prior to its amendment, Section 57-1506 of the North Dakota Revised C