North Dakota Attorney General Opinions

OPINION 50-114 April 28, 1950 (OPINION) LICENSES RE: Interstate Sale of Oleomargarine Your letter of the 26th inst. re above matter hs been received and referred to my desk. Of course, our statutes (ch. 19-05 N.D.R.C. 1943) prohibit the sale in this state of oleomargarine without complying with the provisions of this chapter with reference to licenses, stamps, etc. However, we cannot require persons beyond the jurisdiction of the state to comply with these provisions; that is, we cannot interfere with out-of-state companies selling by mail and shipping this product into this s

OPINION 50-179 April 26, 1950 (OPINION) TAXATION RE: Income Tax - Indians Your letter of April 14, 1950, has been referred to the undersigned for answer. In your letter you state: A question has arisen as to whether the State of North Dakota may subject to its income tax statute income which Indians residing on Indian reservations receive from employment by the Federal Government." You then go on to explain the reasons why, in your opinion, the income of Indians residing on the reservation and deriving their income from salaries paid to them by the federal government should

OPINION 50-205 April 20, 1950 (OPINION) WELFARE RE: Burial Re: Section 23-0603(5) 1949 Supp. Your letter of the 18th inst. re above matter has been received and referred to my desk. You ask for a construction of section 23-0603 N.D.R.C. 1943, as amended by Chapter 198 of the Laws of 1947, and further amended by Chapter 188 Laws of 1949. It is our opinion that, since this section was amended by the laws of 1947, by increasing the expense of burial to $100.00, and making no provision for transporting the body to place of burial when burial is made outside of the county, and a

OPINION 50-191 April 20, 1950 (OPINION) TOWNSHIPS RE: Firefighting Equipment Yours of the 17th inst. re above chapter has been received and referred to my desk. You state that several townships in Richland County and two adjoining townships in Sargent County have been jointly authorized by the elections of said townships to purchase firefighting equipment under the provisions of chapter 18-06 N.D.R.C. 1943, and that the only legal problem that has arisen is one of finances. Section 18-0603 expressly provides that "the equipment shall be paid for out of the general fund of the

OPINION 50-100 April 15, 1950 (OPINION) LABOR RE: Railroad Crew I am in receipt of your letter of April 10, 1950, requesting an interpretation of section 49-1313, N.D.R.C., 1943, which reads as follows: "No railroad corporation doing business in this state shall operate or permit to be operated on or over any of its main track any self-propelled crane, pile driver, weed-burner, or other self-propelled engine or machine not used for the transportation of passengers and freight or property for hire which has sufficient power to draw or propel itself and one or more standard rai

OPINION 50-160 April 14, 1950 (OPINION) PLUMBING RE: Qualifications Before Examination I am in receipt of your letter of April 8, 1950, in which you request an opinion relating to rule number six (6) of the Rules and Regulations of the State Plumbing Board. You wish to know "the extent the Board may take in deciding upon the applicant's qualifications before permission is allowed for him to submit to the examination." Rule Six is as follows: No applicant shall be entitled to take the examination for either the master or journeyman plumber's certificate and license unless and

OPINION 50-130 April 14, 1950 (OPINION) MINERALS RE: Reservation by State Re: Chap. 165 L. 1941 (38-0901) and Chap. 231 L. 1943 (15-0715) (5) Your letter of instant date re above statutes has been received. You ask our opinion as to whether or not the state is required to make the mineral reservation provided for by section 38-0901 N.D.R.C. 1943, in cases of resale to the former owner as authorized by the provisions of section 15-0715 (5) N.D.R.C. 1943. Our Supreme Court has not construed section 15-0715 (5). However, the court has held that, under a similar statute giving

OPINION 50-49 April 12, 1950 (OPINION) ELECTIONS RE: No additional Compensation for Those Making Return to City Auditor I am in receipt of your letter of April 10, 1950, in which you ask whether or not section 16-1307, N.D.R.C. 1943, applies to city elections in respect to the compensation payable for returning the reports of the election, ballots, etc. Section 16-1307 N.D.R.C. 1943, provides: Within three days after an election, the inspector of elections, or one of the judges appointed by him, shall deliver, either in person or by registered mail, the duplicate reports, prov

OPINION 50-26 April 10, 1950 (OPINION) CONTRACTS AND CONTRACTORS RE: Master Electricians This is in answer to your letter dated April 6, 1950. You state that the Bacon Sign Company of Minot, North Dakota is contracting for lighting equipment, such as Neon lighting and signs on which they bid for complete installation of lighting. You have asked whether or not this company can lawfully do that contracting when the company does not employ a master electrician. Section 43-0920 of the North Dakota Revised Code of 1943 provides as follows: No contract, agreement, or undertaking w

OPINION 50-24 April 10, 1950 (OPINION) CITIES RE: Service Charge for Sewer Your letter of the 7th inst. re service charge for sewer accommodations has been received and referred to my desk. You state that your city has decided to make a service charge of 50 cents on all private homes and $1.00 on all business houses for sewer accommodations. We presume that this charge is made monthly. This charge is made, apparently, to pay cost of repairs and upkeep of your sewer system. It is our opinion that this charge is a lawful charge, and that the city may lawfully make a reasonable

OPINION 50-144 April 10, 1950 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Dentists - May Inject Penicillin in Buttocks Re: Interpretation of Section 43-0801, Subsection 1 This is in answer to your letter of April 8, 1950, requesting an opinion as to whether or not it is lawful for a dentist to inject Penicillin in the buttocks of a patient for the purpose of treating a dental infection. Section 43-0801, subsection 1 of the North Dakota Revised Code defines what constitutes the practice of dentistry. It reads as follows: "1. 'Practicing dentistry' shall mean: a. The use, b

OPINION 50-160 April 6, 1950 (OPINION) PLUMBING RE: License I am in receipt of your letter of April 6, 1950, in which you enclose a write of mandamus issued out of the court of Judge George Thom, Jr., Fourth Judicial District. The writ commands the issuance of a master plumber's license to one Robert Cook of Minot, North Dakota. You then ask our opinion as to the course you should follow as regards said writ. It is the opinion of this office that there is no legal defense by which you can avoid the command contained in said writ, and that you should immediately issue a maste

OPINION 50-77 April 4, 1950 (OPINION) GAME AND FISH RE: Leasing of Lands Re: Leasing State Land to Sportsman's Organization - Section 20-0205 (7) R.C. 1943. Your letter of April 3rd, re agreement between your department and a private sportsman's club, whereby you allow it to build a fish rearing and holding pond upon state-owned land, has been received and referred to my desk. We are of the opinion that such an agreement as you suggest is not authorized by the statutes now in force defining the powers of your department. Section 20-0205 (7) refers solely to cases where, inste

OPINION 50-80 April 1, 1950 (OPINION) GAME AND FISH RE: Over Population of Certain Fish Re: Section 20-0803 (2) N.D.R.C. 1943 Yours of March 31 received and referred to my desk. You state that the fisheries biologist in charge of the fisheries program of your department has reached the conclusion "that an over population of certain species now protected by law has produced in most of our waters a condition whereby these fish are and will remain stunted unless thinned out." You state further that it is your intention to increase the creel limit on these species over that curren

OPINION 50-165 March 31, 1950 (OPINION) RECORDING RE: Bureau of Reclamation I am in receipt of your letter of March 30, 1950, requesting our opinion as to the necessity of your department (Bureau of Reclamation) paying in advance for the recording of instruments with the registers of deeds of the various counties. You say that such procedure materially hampers the operations of your department inasmuch as the federal government "cannot pay such fee or for any service or material until such time as the service or material has been received." Section 11-1801 N.D.R.C. 1943 provid

OPINION 50-47 March 29, 1950 (OPINION) ELECTIONS RE: Initiative Petitions This office is in receipt of your letter of March 27 relative to initiative petitions filed in your office. The purpose of these petitions is to amend and reenact Section 57-3826 of the North Dakota Revised Code of 1943 as amended by Chapter 306, Laws of 1945, relating to exemptions for individuals from income tax, and Section 57-3827 of the North Dakota Revised Code of 1943, relating to exemption for fiduciaries from income tax, and to establish the basis for computing the tax upon joint returns of husb

OPINION 50-203 March 21, 1950 (OPINION) VILLAGES RE: Purchase of Fire Trucks Re: Section 40-0509 N.D.R.C. 1943 Your letter re purchase of fire truck by your village, of March 15th, has been received and referred to my desk. You state that your volunteer fire department has received donations in the sum of $2500 to go toward purchase of a fire truck, and that your village board promised to contribute a like sum for the same purpose. You state, also, that you have a surplus in your village treasury, some of it arising from surplus left out of funds budgeted in former years an

OPINION 50-55 March 20, 1950 (OPINION) ELECTIONS RE: Townships for Surfacing of Highways Your letter of March 16 addressed to the Attorney General has been received and referred to the undersigned for attention and reply. You refer to Section 57-15191 of the 1949 Supplement, which provides that "The electors of each organized township within this state may at their annual meeting by a majority vote authorize a levy, not to exceed eight mills, upon the valuation of all taxable property within the township, the proceeds of which shall be used for the surfacing of highways within

OPINION 50-184 March 20, 1950 (OPINION) TAXATION RE: Old Age Assistance Clients Re: Per Capita Tax on Old Age Assistance Clients Your letter of March 17th, re construction of chapter 238, Laws of 1949, has been referred to my desk for reply. That Act 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 certified to the county auditor by the county welfare board shall be removed from the personal property tax roll." You ask wheth

OPINION 50-24 March 6, 1950 (OPINION) CITIES RE: Vacancy in Aldermen Your letter of March 4 addressed to the Attorney General has been received and referred to the undersigned for attention and reply. You state that in your city is a vacancy in the office of alderman from the first ward by reason of death. This vacancy will be filled by appointment by the council as provided by Section 40-0808 since there will be an election within the next six months. You refer to Section 40-0806, which among other things, provides that whenever, for any cause, more than one-half of the tota

OPINION 50-27 March 3, 1950 (OPINION) CORPORATIONS RE: Increase of Capitol Stock Re: Section 10-0330 N.D.R.C. 1943 Your letter to the attorney general of date March 3rd, 1950, concerning the interpretation of the above section has been received and referred to my desk for attention. You state that you have recently received papers from several domestic corporations purporting to increase their capital stock, all failing to show compliance with section 138 of the North Dakota Constitution and section 10-0330 N.D.R.C. 1943 in the matter of notice of the proposal to increase th

OPINION 50-52 February 23, 1950 ELECTIONS - Qualification of Candidate Your letter of the 21st inst. has been received and referred to my desk. You state that a certain person established his residence in your county November 1st, 1949. You ask whether or not he may be a candidate for a county office at the 1950 general election. The general rule is that the eligibility of a candidate for office is determined as of the date of the election or as of the date of entrance upon the dut

OPINION 50-203 February 23, 1950 (OPINION) VILLAGES RE: Sale of Property Re: Sale of Village Property Your letter of the 20th inst. has been received and referred to my desk. You state that the American Legion Post has offered to purchase the Plaza Community Hall. You ask whether the village may sell and convey this property and, if so, what the procedure would be. Section 40-0501(56) gives the village board authority "to convey, sell, dispose of, or lease personal and real property of the municipality as provided by this title." It is our opinion that the village board c

OPINION 50-76 February 21, 1950 (OPINION) GAME AND FISH RE: Islands Re: Section 20-1105 R.C. 1943 Yours of the 20th inst. desiring our opinion as to what would constitute an island under the provisions of section 20-1105 has been referred to my desk. With reference to Devils Lake, an island would be a body of land entirely surrounded by water. If any of the islands then in this lake at the time of the land survey were retained by the government as part of the public domain, such islands would not be affected by this law. But if land in the lake has emerged from the water b

OPINION 50-59 February 21, 1950 (OPINION) ESTATES RE: State's Attorney's Fees Re: Administration of Estates of Decedents Leaving No Known Heirs - Sections 30-2501, 30-2502, 11-2105. You state that one Thomas B. Scannell died intestate in your county, leaving property, but no known heirs. You state that as state's attorney you took charge of the estate and proceeded with the administration. You state that the time for filing claims has expired and that every effort has been made to locate heirs but with no success. You ask whether or not you are entitled to charge and colle

OPINION 50-195 February 21, 1950 (OPINION) TOWNSHIPS RE: Supervisors Re: Sections 58-0602, 24-0601, 57-15191 Your letter of the 19th inst. has been received in this office and referred to my desk. You state that your town board levied taxes under Chapter 353 S.L. 1947 (Sec. 57-15191 of 1949 Supplement) for road surfacing and that the supervisors themselves supervised the work of surfacing about eight miles of township roads. You also state that they did not bill the township for this work. And you state further that your state's attorney holds that $50.00 is the limit th

OPINION 50-30 February 14, 1950 COUNTIES RE: Commissioners May Not Allot Funds Among Districts to be Spent by Individual Commissioners I am in receipt of your letter of February 7, 1950. In your letter you state that the board of county commissioners has in mind some sort of allocation of funds to the different commissioner districts. That this allocation would “take the total amount of money raised by taxation within the county and dividing the same by the number of commissi

OPINION 50-12 February 10, 1950 (OPINION) BONDS RE: Revenue Producing Bonds Not General Obligations of State This is in reply to your letter of February 6, 1950, advising that the State Board of Higher Education has adopted a resolution for the issuing and sale of bonds under chapter 154 of the 1947 Session Laws and chapter 161 of the 1949 Session Laws. You request an opinion as to whether or not such bonds are now or may become obligations of the State of North Dakota. Chapter 154 of the Session Laws of North Dakota for 1947 authorizes the construction of revenue producing bui

OPINION 50-67 February 3, 1950 (OPINION) FENCES RE: Building of Re: Section 17-0105 N.D.R.C. 1943 Your letter of today, re the above section, has come to my desk. Your question is, as I understand it, whether, when one of two adjoining land owners elects to erect a fence along the line dividing the lands of the adjoining owners, the other must share the expense of building such fence. This matter is covered by section 17-0105 N.D.R.C. 1943. Clearly, if one of the adjoining "owners chooses to let his land lie open" he may not be compelled to contribute to the expense of erect

OPINION 50-28 February 2, 1950 (OPINION) CORPORATIONS RE: Service Re: Section 10-1733 N.D.R.C. 1943 Yours of this date to the attorney general, re acceptance of service of process in suits against foreign corporations, has been received and referred to my desk. Section 10-1733 N.D.R.C. 1943 has not been amended, and the statute is now as it appears in the N.D. Revised Code of 1943. This section, in our opinion, gives a plaintiff suing a foreign corporation which does not maintain a business office in this state and who has no registered agent in the state for acceptance of

OPINION 50-130 February 2, 1950 (OPINION) MINERALS RE: Deeds May Be Recorded I am in receipt of your letter of January 31, 1950, in regard to the recording of mineral deeds. In your letter you draw a distinction between a case where taxes have accrued after a mineral deed has been given and a case where the taxes accrued prior to the giving of the deed. No distinction is made in section 11-1803 of the 1943 Revised Code, which section specifically provides that a mineral deed conveying oil, gas, and other minerals in or under the surface of lands may be recorded by the register

OPINION 50-166 January 12, 1950 (OPINION) RECORDING RE: Fees for Must Go Into General Fund I acknowledge receipt of your letter of January 10, 1950, whereby you state that it has been the custom for the county treasurer to credit fees by the register of deed's office to the general fund of the county, and you ask whether or not it would be possible to credit such fees to a special "salary fund" and if times become harder salary warrants might be written against such fund. In reply, I wish to quote section 11-1014 of the 1943 Revised Code, which reads as follows: FEES RECEIVED

OPINION 50-81 January 11, 1950 (OPINION) GAME AND FISH RE: Penalty Clauses Re: Sections 20-0117 and 20-0124 R.C. 1943 as amended. Your letter of January 10, re the above, together with the letter of Herman Weiss, Assistant State's Attorney of Stutsman County, has been received. I note what Mr. Weiss says. However, it is our opinion that the amendment of section 20-0117 by chapter 187 of the Laws of 1947 merely amended section 20-0124 by providing a specific and greater penalty for the violation of that section than the general penalty provided by section 20-0124. Therefore

OPINION 50-146 January 7, 1950 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Electricians - REA - Interest on Meter Deposits Your letter of December 9, 1949, has been turned over to this writer for reply. In your letter you inquire whether a REA cooperative is required to pay interest on meter deposits made by the customers under the provisions of Section 49-2014 of the 1943 Revised Code. Section 49-2014 reads as follows: "METER DEPOSITS TO ELECTRIC POWER COMPANIES. No person or corporation engaged in the business of furnishing electrical current for light, heat, or power in th

OPINION 49-153 December 22, 1949 (OPINION) OFFICERS RE: Public Service Commissioner I acknowledge receipt of your letter of December 21, 1949, requesting an opinion from this office relative to the appointment of Mr. Nelson of Sentinel BUtte as a member of the Public Service Commission by Governor Aandahl, and as to whether the said appointment of Mr. Nelson will be for the full unexpired term of Mr. Larkin or whether it will be only until the next election. In reply, I wish to quote section 44-0208 of the North Dakota Revised Code of 1943, and I believe that this will be bindi

OPINION 49-163 December 20, 1949 (OPINION) PRINTING RE: Distribution of 1949 Supplement I acknowledge receipt of your letter of December 20, 1949, wherein you inquire to what extent the secretary of state is authorized to distribute Volume 8 of the North Dakota Revised Code of 1943, in accordance with chapter 46-04 of the North Dakota Revised Code of 1943, governing the distribution of public documents. In view of the specific language of chapter 46-04, which states that the officers are entitled to receive a copy of any publication of the laws of the state, and of any compilat

OPINION 49-161 December 19, 1949 (OPINION) POULTRY IMPROVEMENT BOARD RE: Attachment of Gummed Stamps I acknowledge receipt of your letter of December 14, 1949, wherein you request an opinion on the legality, under the statute creating the Poultry Improvement Board and collection of fees by said Board on all feed sold in the state of North Dakota, to have attached to the back of the ingredient tag, which is required by law, a gummed stamp so as to facilitate the collection of fees now allegedly being lost to the Board. It is the opinion of this office that the attachment of such

OPINION 49-61 December 15, 1949 (OPINION) FEDERAL HOUSING ACT RE: North Dakota Has Adequate Statutes To Be Eligible to Accept Assistance and Create Housing Authorities Your letter of December 14, 1949, to the attorney general, has been received. In your letter you ask the opinion of this office as to (1) whether existing state legislation authorizes the creating of housing authorities in cities and counties of the state, and (2) whether state laws, now in effect, would enable these authorities, when established according to law, to accept assistance in any form from the federa

OPINION 49-175 December 14, 1949 (OPINION) SUPERINTENDENT OF CRIMINAL IDENTIFICATION RE: Fingerprints Pursuant to section 12-5804 of the 1943 Revised Code, all state's attorneys, sheriffs, chiefs of police, and other law enforcement officers shall take the fingerprints of any person who, in the judgment of the arresting officer, is wanted on a felony charge, or who, the arresting officer has reason to believe, is a fugitive from justice. Copies of such fingerprints in duplicate shall be transmitted to the superintendent of criminal identification within 24 hours after an arre

OPINION 49-83 December 13, 1949 (OPINION) GAME AND FISH RE: Trapping of Bank Rats Section 20-0706 N.D.R.C. 1943 provides for the method of taking muskrats. This section provides for the taking of muskrats when they are "injurious to any property." This matter is left to the discretion of the Commissioner. This section provides the methods of trapping muskrats and provides that the animals may be trapped "in their houses when the houses are opened by means of removing a wedged-shaped portion from the side of each house not to exceed one square foot in size by either a saw

OPINION 49-99 December 12, 1949 (OPINION) LABOR RE: Public Employees Have Right to Organize a Union and Bargain Collectively I received your letter of December 10, 1949, wherein you state that the North Dakota Labor Division has had numerous requests to clarify the status of public employees as they relate to the legal right of such employees--state, county, and municipal--to join a union of their own choice and to engage in collective bargaining and negotiating procedure, and you state that you would like our opinion as to whether or not there are specific provisions in the st

OPINION 49-87 December 12, 1949 (OPINION) HIGHWAY PATROL RE: Retirement Act Your inquiry of December 8, 1949, addressed to the Honorable Wallace E. Warner, Attorney General, has been referred to the undersigned for attention in his capacity as Special Assistant Attorney General for the State Highway Department. Specifically your inquiry is directed as to the status of patrolmen appointed prior to World War II and who served in the military forces during World War II. Section 8 of chapter 239 Laws of 1949 provides that in computing the length of service of a contributor for re

OPINION 49-157 December 12, 1949 (OPINION) PLUMBING RE: Interpretation and Definition In your letter of November 9, 1949, you request, "an opinion from your office at your convenience pertaining to the State Plumbing Law, Chapter 43-18, R.C. 1943." You then state, "We are in the process of printing a new Plumbing Code and it is possible we may make some changes from the present one. We are anxious to know if it may be possible to include water softeners, storage heaters, dish washing sinks, etc., as plumbing." When we discussed this matter with you personally you requested th

OPINION 49-127 December 12, 1949 (OPINION) LIVESTOCK RE: Running at Large on Highway Acknowledging receipt of your letter of December 8th addressed to Hon. Wallace E. Warner, Attorney General, the matter has been referred to me in my capacity as Special Assistant Attorney General for the State Highway Department. Section 36-1101 N.D.R.C. 1943 provides as follows "no cattle, horses, mules, swine, goats or sheep shall be permitted to run at large at any time except as provided in this chapter". The exceptions to this law are cases where the County Commissioners by resolution es

OPINION 49-36 December 9, 1949 (OPINION) CREDIT UNIONS RE: Refund of Interest Your letter of December 6 addressed to the Attorney General has been received and referred to the undersigned for attention and reply. The question you present for consideration by this office is whether or not a chartered credit union may legally refund interest paid by a borrower as a patronage dividend and in this connection you refer to Section 6-0626 which provides that at the end of any fiscal year a credit union upon recommendation of its board of directors may declare a dividend which shall be

OPINION 49-90 December 7, 1949 (OPINION) INSURANCE RE: Articles of Incorporation The Secretary of State has transmitted the attached Articles of Incorporation of the American Christian Life Insurance Company of Fargo for our examination and approval. They have also asked us to forward them to you for your approval after we have made our examination. I find on examining the attached Articles of Incorporation that they are conformable to chapter 26-08 of the Revised Code of 1943 and not consistent with the constitution and laws of the State of North Dakota, with the exception

OPINION 49-184 December 5, 1949 (OPINION) TAXATION RE: Rural Electric Cooperative Re: Section 57-3301-02-4 R.C. 1943 Your letter of November 30, re taxation of rural electric cooperatives, has come to my desk. This matter is governed by sections 57-3301, 57-3302 and 57-3304. Section 57-3304 imposes a gross receipts tax on these corporations and provides that this tax shall be in lieu of all other taxes "on the personal property" of the corporation. Section 57-3302 defines what property shall be included in the term "personal property." It is our opinion that this definitio