North Dakota Attorney General Opinions

OPINION 51-116 April 25, 1951 (OPINION) OASIS RE: Construction of 1951 Amendment This office has your letter of April 20, 1951, asking for a construction of Senate Bill 53, having specific reference to the effect of said bill upon persons receiving benefits under section 52-0914 and what their status will be after Senate Bill 53 becomes a law on July 1, 1951. After the first of July, 1951, the various sections of the law which will be in force are as follows: Subdivision a of section 52-0914, relating to benefit payments. You will note that this section refers to section f o

OPINION 51-48 April 18, 1951 (OPINION) CRIMINAL PROCEDURE RE: Arrest Your letter of April 12, 1951, concerning arresting procedure for certain traffic violations, has been received. Section 39-0709, of the North Dakota Revised Code of 1943, provides in part that: The arresting officer forthwith shall take any such person (one arrested and charged with any of the listed specific violations) before the nearest or most accessible magistrate." If the arresting officer did not follow this procedure, but rather released the accused upon written promise to appear, under the provisio

OPINION 51-188 April 18, 1951 (OPINION) TAXATION RE: Taxable assessed Valuation for Purpose of Levy In reply to yours of the 16th inst. we will say, that it is our opinion that the words "taxable assessed valuation" as used in section 15-5330 of the 1949 Supplement mean the valuation against which the taxes are levied, that is, 50 percent of the actual assessed valuation; in other words, the actual values as determined by the assessor. Therefore, under this section the remaining portion of a district not included in a reorganized district would have to have an actual assessed

OPINION 51-184 April 18, 1951 (OPINION) TAXATION RE: Nonprofit Incorporated Liquor Outlets in Cities You state in your letter of April 16, 1951, that the question of the taxability of income and physical properties of nonprofit incorporated liquor outlets which have been substituted in a number of cities for the municipal liquor stores has been reopened by representatives of the League of Municipalities. It is the opinion of this office that a corporation organized for the purpose of selling intoxicating liquor, although its profits or net income are donated to a municipality,

OPINION 51-196 April 17, 1951 (OPINION) UNFAIR TRADE RE: Not Illegal to Prefer One Distributor You ask the opinion of our office as to whether the practice hereinafter described is in violation of any law of this state. This practice relates to two milk plants which you designate as plants "A" and "B." You state that plant "A" was informed by one of his wholesale outlets that his competitor, plant "B", was giving a discount below the regularly scheduled wholesale price on their pasteurized milk. The question then is this: May one wholesaler of milk give a discount to one

OPINION 51-120 April 17, 1951 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Nursing Certificate - Fee You requested the opinion of this office concerning the amount of fee and penalty required for renewal of the professional nursing certificate. Section 43-1221 of the North Dakota Revised Code of 1943 provides: "A certificate of registration issued under the provisions of this chapter shall be valid for only one year and shall be renewed on or before the fifteenth day of February in each year. The fee for the renewal certificate shall be one dollar. On January first the secretar

OPINION 51-78 April 12, 1951 (OPINION) HIGHWAYS RE: Donation of Right-of-Way In a conference held in this office you stated that some former Attorney General of the state of North Dakota had issued an opinion to the effect that farmers owning land on a highway proposed to be built by the State Highway Department could not donate the right-of-way required in order to construct the highway, but that such had to be purchased by the county commissioners. This is to inform you that we can find no record of any opinion and if any such opinion was given, that it would be in error. A

OPINION 51-33 April 11, 1951 (OPINION) COUNTIES RE: Duty of Register of Deeds in Making Chattel and Real Estate Abst Your letter of the ninth instant in which you request our opinion as to the duties of registers of deeds in the matter of the making of chattel and real estate abstracts has been received. By section 11-1801 it is made the duty of the register of deeds to make either a chattel abstract or to continue a real estate abstract whenever it is requested that he do so, and the applicant pays the statutory fee therefor. Section 11-1805 provides the fees to be charged as

OPINION 51-77 April 5, 1951 (OPINION) HIGHWAYS RE: Department May Enter Into Agreement with ASF to Make Research St Your letter of March 30, 1951 has been received. You inquire as to whether or not the North Dakota Highway Department would have authority under the North Dakota law to enter into agreements with the Automotive Safety Foundation for the purpose of making research studies with reference to highways. This office issued an opinion on December 28, 1950. That opinion was in response to a request from your office as to whether or not you were authorized to expend mo

OPINION 51-194 April 5, 1951 (OPINION) TOWNSHIP RE: Failure to Hold Annual Meeting Your letter of March 30th has been received. You state that your township did not hold its annual meeting and you ask for our opinion on three specific questions, viz., 1. Can the levy as made for the year of 1950 be transferred also for the year 1951? 2. If 12 freeholders do not petition for a later date of election would then the township lose its levy for 1951, or can the supervisors cause the levy of 1950 to be transferred also to 1951? 3. Is it legal procedure for a township to pos

OPINION 51-29 April 3, 1951 (OPINION) COUNTIES RE: Coroner - Right to Order Post Mortem Without a Coroner's Jury Your letter of March 24, 1951, has been received. You say that in your county you do not have the facilities for holding a dead body, without embalming first, until a coroner's jury meets to decide whether an autopsy is necessary. Embalming before an autopsy can destroy valuable post mortem informations. You would like to know if a county coroner may order a post mortem examination by a licensed physician of a dead body in order to determine the cause of death: (

OPINION 51-177 April 2, 1951 (OPINION) TAXATION RE: Federal Government Exempt From Gas Tax Your letter of March 22, 1951, addressed to the attorney general, has been received. Our recent legislative assembly passed Senate Bill No. 181, which amended both section 57-4106, NDRC, 1943, the three cent motor vehicle fuel tax, and section 57-4809, Supp. 1949, the one cent motor vehicle fuel tax. This tax was formerly charged against the vendor, but under the amendment now will be a tax on the sale, collectible by the motor vehicle fuel dealer. You would like to know whether this c

OPINION 51-195 March 30, 1951 (OPINION) TOWNSHIPS RE: Use of Road Levy Limited Your letter of March 27, 1951, has been received. In your letter you ask for a construction of chapter 353 of the 1947 Session Laws, being House Bill 234 of that session. You inquire if the funds produced by an 8 mill levy levied pursuant to an election in an organized township under said chapter for the surfacing of highways within such township can be used for any other purpose except surfacing highways. You will note that the material section of said act reads as follows: "The electors of each or

OPINION 51-185 March 30, 1951 (OPINION) TAXATION RE: Reporting Joint Tenant Income Advice is requested with respect to the manner in which income from property owned by husband and wife as joint tenants or as tenants in common must be reported under the North Dakota income tax law. The general rules relating to joint tenants and tenants in common are applicable to husband and wife when they are deemed to hold as joint tenants and tenants in common, provided the common law disabilities of the wife have been removed by statute so that the rules apply." 41 C.J.S. 454, Section 33

OPINION 51-180 March 30, 1951 (OPINION) TAXATION RE: Governmental Agencies - Motor Vehicle Fuel Tax Your letter of March 22, 1951, to the attorney general, has been received. In your letter you inquire whether, under the provisions of Senate Bill 104 enacted by the recent North Dakota legislature, governmental agencies are required to pay the one cent motor vehicle fuel tax imposed by that act. As we construe the act, the tax is on the consumer, and in view of the decision laid down in the case of Federal Land Bank of St. Paul v. Bismarck Lumber Company, 314 U.S., 95, and supp

OPINION 51-121 March 30, 1951 (OPINION) OFFICERS RE: Duties of State Auditor Under HB 752 We have your letter of March 29, 1951, which reads as follows: "Will you kindly favor us with your opinion as to what are the state auditor's duties under House Bill No. 752 providing expense for elected state officers? Shall payments under this bill be approved by the state auditing board?" In reply to such letter, we are of the opinion that it is your duty to pay to the secretary of state, the state auditor, state treasurer, commissioner of insurance, each of the public service commiss

OPINION 51-62 March 28, 1951 (OPINION) ELECTRICIANS RE: Proof of Compliance with Regulations After a conference with Mr. Clyde Kieley, president of the State Board of Electricians, it was agreed that an opinion should be issued by this office answering inquiries which have arisen before that board. First, the Board would like to know if it is authorized to compel a person supplying electrical energy to discontinue the service to the consumer when the consumer's buildings have been connected for energy without the prior filing of an affidavit by the contractor who wired the bui

OPINION 51-9 March 27, 1951(OPINION) AERONAUTICS RE: Airmarking The 1949 legislative session, by House Bill No. 54, appropriated to the Aeronautics Commission the amount of $5,000.00, the fund being designated for "airmarking." You have requested the opinion of this office as to the legal procedure which the Aeronautics Commission should take in awarding the airmarking contracts. You have advised us orally that nearly fifty percent of this appropriation has been spent for airmarking. The procedure followed by the Commission for that expenditure was advertising for bids and awarding th

OPINION 51-101 March 27, 1951 (OPINION) LEGISLATION RE: Journal Rule You have asked the Attorney General for an opinion relating to House Bill 538. We find that on page 1026 of the House Journal, line 40 of said bill was amended as follows: "In line 40 after the word 'thousand' insert the words 'two hundred.'" Upon roll call the bill, as amended, was passed, there being 94 ayes, 3 nays, 16 absent and not voting. On page 749 of the Senate Journal we find that House Bill 538 was voted upon as amended, the figure "two hundred" being inserted after the word "thousand" and upon

OPINION 51-25 March 20, 1951 (OPINION) COUNTIES RE: Auditor Must Call Assessors' Meetings Annually You have inquired by letter under date of March 20, 1951, whether or not county auditors are required by the North Dakota statutes to call and hold assessor's meetings every year. Your question is very definitely answered by section 57-0231 of N.D.R.C. 1943. The part of that section pertinent to your question reads as follows: "On or before the second Wednesday in April of each year, on previous notice by mail given by the county auditor to each assessor in the county, all such

OPINION 51-149 March 12, 1951 (OPINION) SCHOOLS RE: Reorganization Your letter of February 28, 1951, addressed to the Attorney General, has been received. You request an opinion from this office regarding the school reorganization act of 1947 in connection with West Central School District No. 2 of Towner County. It is the opinion of this office that the County Auditor and the County Treasurer of Towner County and the school officers of all school districts which become a part of the West Central School District No. 2 in Towner County as a result of the election called to vo

OPINION 51-150 March 9, 1951 (OPINION) SCHOOLS RE: Reorganization We have before us a letter written to you by Mattie Backen, County Superintendent of Schools, Wells County, which involves the construction of section 15-2309 and incidentally calls for a comparison between that section and section 15-2308. It is our opinion that under section 15-2309 the county commissioners of a county in this state upon receipt by them of a petition signed by at least two-thirds of the school electors residing within the confines of a proposed district to be made up of two or more school dist

OPINION 51-104 March 9, 1951 (OPINION) MILITARY RE: Civil Defense Your letter of March 7, 1951, attaching a communication from Millard Caldwell to the Governor of North Dakota has been received. Answering the same will say that there is no legislation upon our statute books at this time under which the Governor of the State of North Dakota can legally pay into the United States Treasury in trust advance sums to be used in payment of any share of the cost of defense equipment or supplies. Nor are there any funds available to the Governor which he can use to reimburse the feder

OPINION 51-168 March 6, 1951 (OPINION) TAXATION RE: Buildings of Cooperatives Yours of March 1st re taxation of Cass County Electric Cooperative of Kindred, North Dakota, has been received. We are not certain, but will assume that this is an electric cooperative association organized under the provisions of chapter 10-13 N.D.R.C. Section 10-1327 provides for an excise tax in the nature of a fee paid to the secretary of state, and further provides that the corporation "shall be exempt from all other excise taxes except as provided in chapter 33 of the title Taxation." This ex

OPINION 51-53 March 5, 1951 (OPINION) DRAINS RE: Method of Finance Your letter under date of February 27, 1951, addressed to the Office of the Attorney General, has been received. I assume that the cost of cleaning and repairing the drain referred to in your letter exceeds the amount produced by the maximum levy of fifty cents an acre prescribed by section 61-21425 of the 1949 Supplement to the Revised Code of 1943 plus an accumulated fund in an amount produced by such maximum levy for one year. I assume further that the Board of County Commissioners were petitioned by the ow

OPINION 51-178 March 3, 1951 (OPINION) TAXATION RE: Fuel Tax - Dealer Not Entitled to Commission for Collection We have your request for an opinion as to whether or not a dealer as defined in Senate Bill 104 is entitled to 1º% commission for collecting the tax provided for in said bill. We call your attention to section 2 of said bill as amended, which reads in part as follows: There is hereby imposed a tax of one cent per gallon on all sales of motor vehicle fuel sold in this state. The tax imposed by this section shall be separate and apart from and in addition to all othe

OPINION 51-15 March 2, 1951 (OPINION) CITIES RE: Funds Must be Used for Purpose Raised You have asked the opinion of this office upon the question of whether or not the city may borrow from a fund created for the building of a city auditorium, to augment the city's fund for building a sewage disposal plant. We understand that the auditorium fund was created by a sale of municipal bonds authorized by chapter 21-03 N.D.R.C. 1943. Section 21-0228 provides in part as follows: "all borrowed money shall be paid into the treasury of the municipality borrowing it, shall be kept ther

OPINION 51-136 March 2, 1951 (OPINION) PRINTING RE: Qualifications to Publish Legal Notices Your letter of February 23, 1951, addressed to Mr. L. C. Miller, state printer, has been referred to this office with a request for an opinion. The questions involved are: In the event a newspaper discontinues publication for one or more weeks, does the newspaper retain its qualifications to do legal work? If the newspaper retains it qualifications, what effect does the temporary suspension of publication have on legal notices that are in the process of publication at the time of th

OPINION 51-64 March 1, 1951 (OPINION) FEES RE: No Charge by County Court If No Taxable Estate Yours of the twenty-fourth of February has been referred to my desk. As I understand it, your question is whether or not your office should charge a fee of any kind for proceedings had as prescribed by section 57-3717 and section 57-3718 when it appears that there is no taxable estate involved. There is no fee prescribed by chapter 57-37 for these proceedings. In ordinary cases the proceedings prescribed by section 57-3717 would in fact be preliminary to and part of an administration f

OPINION 51-17 February 27, 1951 (OPINION) CITIES RE: Issuance of Bond for Combined Office In connection with the issuance of a bond for the combined office of City Treasurer and Ex-officio City Auditor of the City of Devils Lake, North Dakota, which is a city operated under the city commission form of government, it is our opinion that section 40-1505 of the 1943 Revised Code is legislative authority for combining the office of City Treasurer and City Auditor under such commission form of government. If the Board of City Commissioners has, by a majority vote, dispensed with an

OPINION 51-119 February 27, 1951 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Electricians - Personal Supervision by Licensed Electrician You have asked this office for an opinion on the question of the meaning of "personal supervision" as used in section 43 0918 of the Revised Code of 1943 which section reads as follows: "Apprentice to Master Electrician. Any person may serve as an apprentice under a licensed electrician, but a master electrician shall not allow an apprentice to work on any installation without personal supervision of a licensed electrician." From conversation

OPINION 51-21 February 23, 1951 (OPINION) CITIES RE: Use of Park District Funds Your letter of February twenty-first addressed to the Attorney General has been received. In this letter you ask for an opinion as to whether or not the park district of the city of Crosby owning a park four and one-half miles from the city has the right to use park funds for the improvement of the highway between the city and the park. We assume that Crosby is incorporated as a city and for that reason, under the provisions of section 40-4912, subdivision 1, the city is not affected by the one m

OPINION 51-79 February 9, 1951 (OPINION) HIGHWAYS RE: Duty of Party Discovering an Injured Person on Highway In your letter to this office of January 31, 1951, you ask a question in behalf of Mr. I. J. Iverson of Fairdale, North Dakota, with respect to the duties of a party discovering an injured person upon the highway. I call to your attention the case of the Owl Drug Company v. Crandall, 120 A.L.R. at page 1523. There it is held, and with numerous authorities from a great number of jurisdictions, that "One who, being under no duty to do so, takes charge of another who is

OPINION 51-206 February 9, 1951 (OPINION) WELFARE RE: Burial Your letter of January 26, 1951 has been received. You would like to have our opinion as to the meaning of section 50-0734, relating to burial of old age assistance clients. In your letter you tell me that it is the practice of certain welfare boards to prohibit additional payments by relatives and friends of the deceased, taking the attitude that the law requires them to do so, as their claim is that the law sets a limit on total burial expense allowable. You add that you were a member of the legislature when th

OPINION 51-121 February 6, 1951 (OPINION) OFFICERS RE: Incompatibility Your letter of January 24, 1951, has been received. You would like to know if one individual may hold the office of county judge, juvenile commissioner, and justice of the peace, drawing full compensation as provided by law in the way of a salary from the county for the office of county judge, drawing in addition thereto per diem approved by the district court as juvenile commissioner, and further, drawing from the county the fees permitted to a justice of the peace. The holding of one office does not of it

OPINION 51-193 February 2, 1951 (OPINION) TOWNSHIPS RE: Easements You called at this office on January 31, 1951, and requested a written opinion as to whether or not a board of township supervisors has the legal authority to grant an easement of a road right-of-way to a private power company. You state that your township had granted a twenty-year easement to the power company to enable them to construct power lines on the right-of-way. That twenty-year easement is about to expire and consequently is up for renewal. Section 24-0703 of the North Dakota Revised Code of 1943 pr

OPINION 51-10 February 1, 1951 (OPINION) APPROPRIATIONS RE: Land Grant Institutions You ask for an opinion from the office of the Attorney General regarding appropriations for land grant institutions. You ask if under the Constitution of the State of North Dakota you can eliminate the item "less estimated income" and throw that into the general appropriation of the institutions affected. Under section 159 of the Constitution all land, money or other property donated, granted or received from the United States or any other source for a university, school of mines, reform schoo

OPINION 51-157 January 26, 1951 (OPINION) TAXATION RE: Abatement This office has received your letter of the 24th inst. requesting an opinion "as to whether an application for abatement of taxes must be made on or before November 1 in the year in which such taxes become delinquent, or whether the county commissioners may, in their discretion, abate said taxes if application is made after that date." It is our opinion that section 57-2303 N.D.R.C. 1943 fixed the jurisdiction of the board of county commissioners by providing that "the board, if application is filed on or before t

OPINION 51-180 January 25, 1951 (OPINION) TAXATION RE: Hail Tax You inquire in your letter of January 24, 1951, on behalf of the Senate Judiciary Committee: 1. Whether the commissioner of insurance can use the interest income from the hail fund for the purpose of reducing the amount of hail indemnity tax necessary to pay hail losses. 2. Whether or not the commissioner of insurance can use the surplus hail fund or any part of it to reduce hail indemnity tax necessary to pay all losses. 3. Whether or not the interest and other income of the hail fund should be added to th

OPINION 51-103 January 25, 1951 (OPINION) LEGISLATURE RE: Initiated Measure Your letter of January 23, 1951, has been received. You ask whether or not Senate Bill No. 115 requires a two-thirds majority vote for passage. You ask further whether it requires a two-thirds majority vote to pass upon or reinstate an initiated measure in its original form. I refer you to section 1-0225 of the North Dakota Revised Code of 1943, which reads as follows: CONTINUATION OF EXISTING STATUTES. The provisions of this code, so far as they are substantially the same as existing statutes, mu

January 23, 1951 (OPINION) COUNTIES RE: Purchase and Sale of County Equipment You inquire whether a county may, in advertising for the purchase of highway equipment under section 24-0504 of the North Dakota Revised Code of 1943, combine in the same advertisement and proceeding the public sale of used equipment owned by the county under Sections 11-2701 to 11-2703 of the Revised Code of 1943, thereby permitting a trade-in on the purchase of the new. You state that certain bidders have contended that the Attorney General of the state of North Dakota has heretofore given an opinion

OPINION 51-182 January 22, 1951 (OPINION) TAXATION RE: House Trailers Your letter re taxation of house trailers of the 19th inst. has been referred to my desk. You will note that section 39-0446 N.D.R.C. refers in terms only to motor vehicles. A motor vehicle is a self-propelled vehicle - that is, it moves along a highway under its own motive power. A house trailer therefore is not a motor vehicle. It is either personal or real property and taxable as such. To be assessed, it must be assessed by the assessor in the township or assessment district wherein it is located

OPINION 51-20 January 20, 1951 (OPINION) CITIES RE: Street Lighting Your letter of January 16, 1951, concerning special assessment warrants for a special street lighting system in the city of New England, has been received by this office. The city of New England has declared a special street lighting system necessary and has had the plans and specifications filed and advertised in accordance with the statutory requirements. The city has rejected all bids and has caused the work to be done directly as allowed by section 40-2227 of the North Dakota Revised Code of 1943. You wo

N.D.A.G. Ltr to Robinson (Jan. 17, 1951) OPINION January 17, 1951 Hon. Dave N. Robinson Hon. A.A. Bentz Representatives, McLean County Bismarck, North Dakota Gentlemen: I have yours of the 16th inst. requesting my opinion “as to whether it is legal for a county to hire a lobbyist to be registered for a legislative session and to use taxpayers’ money for the same.” We call your attention to the opening paragraph of Section 54-0502, “Any person, corporation, or association that, in regard to any legislative affecting the pecuniary interests of such individual, association, or corporatio

OPINION 51-18 January 17, 1951 (OPINION) CITIES RE: Liability for Acts of Firemen This is in answer to your letter of January 13, 1951. You have asked whether or not the city of Mohall is liable for the negligent actions of a city fireman. The courts have upheld the general rule that municipalities are not liable for the negligent acts of its employees or agents, therefore it is my opinion that the city of Mohall would not be liable in this instance but that the fireman is personally liable for his negligent act. Section 39-0108 provides that municipal governments may purchas

OPINION 51-150 January 17, 1951 (OPINION) SCHOOLS RE: School District is Political Subdivision We have your letter of January 17, 1951, in which you ask whether or not a school district is a political subdivision. Your question may be of some importance as its construction may affect the provisions of section 37-0125 as amended. The last quoted section provides, "All officers and employees of this state or of a political subdivision thereof," who enter the military service after they have been in the employment of the state or political subdivision for a period of ninety days

OPINION 51-20 January 15, 1951 (OPINION) CITIES RE: Publication of Proceedings Your letter of the eleventh instant asking for an interpretation of the above section has been received. This section reads as follows: "40-0812. Publication of Proceedings. The city council shall publish a complete record of all its proceedings in its official newspaper." The Legislature has used the word "shall" and not the word "may." It is our opinion that this statute is mandatory and not permissive. Therefore, it is the duty of the city council to publish "a complete record of all of it