North Dakota Attorney General Opinions

OPINION 49-63 May 13, 1949 (OPINION) FEES RE: Doctor on Insanity Board Your letter of May 11 addressed to the Attorney General has been received and contents noted. The question you present, as I understand from the information in your letter, is whether the physician who is a member of the insanity board may charge the fee of five dollars for examining a patient in addition to his per diem of five dollars. Section 25-0311 provides, among other things, that the board shall appoint a regularly practicing physician of the county, who may or may not be a member of the board, to v

OPINION 49-122 May 6, 1949 (OPINION) LIQUOR RE: License Fees for Clubs I have your letter addressed to the Attorney General dated April 23, 1949, in which you ask for an opinion as to the authority of the city commission to charge a lower fee for liquor licenses for private clubs than is charged for private liquor dealers. C.J. 2d. 237. Authorities differ as to whether or not a bona fide club must obtain a license in order to sell liquor to its members. 30 Am. Jr. Sec. 308, states that a state may prohibit the selling and serving or dispensing of intoxicating liquors in clubs

OPINION 49-115 May 3, 1949 (OPINION) LICENSES RE: Moving Picture Operators This is in answer to your letter of May 2, 1949. You have asked whether or not operators of switch boards in building or enclosures used for public assemblages must be licensed moving picture machine operators or under the supervision of one. Subsection 4 of section 43-0901 of House Bill 288 which became law on March 19, 1949, provides: "'Moving picture machine operator' shall mean a person having the necessary qualifications, training and experience to operate moving picture machines and switchboards i

OPINION 49-197 April 30, 1949 (OPINION) VETERANS RE: Grave Registration Your letter of April 29, 1949, addressed to the attorney general, has been received and contents of same have been noted. You ask for a construction of Chapter 250 of the 1947 Session Laws relative to registration of graves of North Dakota veterans. Said Chapter 250 reads as follows: It shall be the duty of the adjutant general of the state of North Dakota, to register and compile records of the graves of deceased soldiers, sailors, and marines, including Wacs, Waves, Spars, and members of nurses corps of

OPINION 49-196 April 30, 1949 (OPINION) VETERANS RE: Certified Copies This office is in receipt of your letter of April 28 relative to certified copies of discharge certificates for veterans of World War II. In an opinion written by our Mr. Brace under date of April 18, 1949, he said: "It is the opinion of this office that these two acts which are now sections 37-0136 and 37-0134 respectively, are not in conflict and are both in full force and effect. Therefore, it is our opinion that a veteran, when the law requires him in the furtherance of any right he may have by virtue

OPINION 49-138 April 29, 1949 (OPINION) OLD AGE ASSISTANCE RE: House Bill 314 Your letter of April 16 addressed to the Attorney General has been received and contents noted. You ask this office for a construction of the provisions of House Bill 314 enacted by the 1949 Legislature. This bill is an amendment of Section 50-0713 of the North Dakota Revised Code of 1943 and increases the minimum of old age assistance from $40 per month in case of one recipient and $30 per month in the case of two or more to $60 per month in case of one recipient and $45 in case of two or more. T

OPINION 49-194 April 22, 1949 (OPINION) TOWNSHIPS RE: Place of Holding Elections Re: Elections in Township When City Extends Limits to Include Town Hall Your letter of April 19th has been received and referred to my desk. You state that your township had a town hall and that the city of Williston has extended its city limits to take in the land your town hall was on. You ask whether or not your township can continue to hold township meetings in the hall which is now in the city limits of Williston. It is the opinion of this office that your township may continue to hold to

OPINION 49-182 April 21, 1949 (OPINION) TAXATION RE: Medical Center - University Re: Constitutional Amendment for 1-mill Levy for Medical Center It is the opinion of this office that the constitutional amendment proposed by Chapter 119 of the Laws of 1947, and adopted by the people at the 1948 general election, provides for a one-mill levy for the purposes therein set forth, which one-mill levy is to be made entirely irrespective of section 174 of the Constitution, as amended, and is to be levied in addition to the levy permitted by said section as amended. WALLACE E. WARNER

OPINION 49-17 April 19, 1949 (OPINION) BONDS RE: Village Trustees You have asked whether or not the State Bonding Fund is legally obligated to bond village trustees. Section 26-2302 provides: The fund shall be under the management of the commissioner, and shall be maintained as a fund for the bonding of public employees." Section 26-2301, subsection 2 defines: " 'Public employee' shall mean and include any officer, deputy, or employee of the state or any of its subdivisions who is required to be bonded by any law of this state." "Subdivision" is defined in Words and Phrase

OPINION 49-156 April 14, 1949 (OPINION) OFFICERS RE: State Senator Ineligible for Appointment on Highway Patrol Your letter of April 14 to the Attorney General relative to the appointment of Frank C. Albers of Center, North Dakota, as a member of the Highway Patrol, has been received. I understand that Mr. Albers is now a member of the State Legislature and that his term will not expire until 1951. I also understand that the salaries of the Highway Patrol were raised by the last legislative session. It is our opinion that the office of highway patrol, under our statute, Chap

OPINION 49-113 April 12, 1949 (OPINION) LICENSES RE: County Fee for Dance Permit I have your letter addressed to the Attorney General, dated 8th of April, 1949, in which you ask for an opinion as to whether or not it is permissible under the law for a county to charge a fee for issuing a dance permit. Chapter 53-02 of the North Dakota Revised Code provides that in unorganized townships the county commissioners are the responsible authorities for the granting or refusing of a public dancing permit. Black's Law Dictionary defines a permit as "A written license or a warrant issue

OPINION 49-152 April 11, 1949 (OPINION) OFFICERS RE: Poultry Improvement Board Your letter of April 9, 1949, to the Hon. Wallace E. Warner, attorney general, has been received. You inquire as to the status of the members of the Poultry Improvement Board with reference to per diem and mileage while engaged in official duties. I call your attention to H.B. 28 which was an emergency measure and has been passed and signed by the governor. It states that the state officials, whether elective or appointive, and their deputies, assistants, and clerks, or other state employees, enti

OPINION 49-69 April 9, 1949 (OPINION) GAME AND FISH RE: Definition of "Take" Re: Section 20-0709 1947 Supplement Your letter of April 7, re the above, has come to my desk. It is my opinion that the word "take" referring to the taking of game as used in the above section, means to have the animal dead and in manual possession. To have an animal caught in a trap is not, in my opinion, the taking of the animal. It must have been killed while in the trap or snare, or cornered in some way. In my opinion, the intent of this law is to prohibit the killing of the animal by shoot

OPINION 49-33 April 8, 1949 (OPINION) COUNTIES RE: Memorials This office is in receipt of your letter of April 7 enclosing proposed resolution for adoption by the board of county commissioners of Adams County under the provisions of chapter 125 of the Session Laws of 1947 as amended by House Bill 272 enacted by the recent legislative assembly. Chapter 125 of the Session Laws of 1947 as amended by House Bill 272 of the 1949 Assembly authorizes the board of county commissioners of any county in this state to erect a memorial or memorials or other suitable recognition in commemor

OPINION 49-30 April 8, 1949 COUNTIES - Commissioners - Per Diem and Expenses Your letter of April 6 addressed to the Attorney General has been received and contents noted. You ask for our opinion relative to Senate Bill 208 and House Bill 228 enacted by the recent legislative assembly. Senate Bill 208 provides that the county commissioners in each county shall be allowed the sum of $7.00 per day while performing the duties of their office and actual traveling expenses and living

OPINION 49-26 April 7, 1949 (OPINION) CONTRACTS AND CONTRACTORS RE: Water Conservation Commission Your letter of April 5 to the Attorney General has been received and contents noted. You state that the Water Conservation Commission is contemplating the purchase of certain motor vehicles as follows: 1 Sedan Delivery 1 Carryall Sedan 1 Four-door Sedan 1 3/4 Ton Pick-up 1 3 to 4 Ton Truck These vehicles are necessary in the conduct of the work of making surveys, repairing dams, etc. You have advertised for bids and a copy of the notice of bids is attached to your l

OPINION 49-116 April 5, 1949 (OPINION) LIQUOR RE: Cashing of Checks by Licensed Dealers Your letter of April 2, 1949, re the above matter, has been received and referred to my desk for attention. Of course, cities and villages have only such powers as are given by statute, or such as are necessarily implied by statute. City of Fargo v. Sathre, Attorney General, 36 N. W. 2d 39. Municipalities, including counties, have the right to regulate the sale of beer. (Se. 5-0207 and 5-0208 N.D.R.C.) The statute relating to the regulation of the sale of beer is found in section 5-020

OPINION 49-181 April 2, 1949 (OPINION) TAXATION RE: Inheritance Re: Inheritance Tax on Local Bank Deposit of Nonresidents At a conference in your office yesterday, we were asked for an opinion on the question of the taxability of a checking account in a local bank owned by a nonresident. Your specific question is: "A nonresident deceased had a checking account in a North Dakota bank. Is this account taxable under the provisions of section 57-3703 N.D.R.C. 1943?" This section provides that: "All tangible personal property having an actual situs within this state" shall

OPINION 49-102 April 2, 1949 (OPINION) LEAVE OF ABSENCE RE: National Guard Entitled to Leave with Pay Re: Section 37-0125; of 1947 Supplement to R.C. 1943--Chap. 239 S.L. 1945 This statute provides that certain persons enumerated in said section "when ordered by proper authority to active non-civilian employment, shall be entitled to a leave of absence from such civil employment for the period of such active service without loss of status or efficiency rating, - - - - without loss of pay during the first thirty (30) days of such leave of absence." It is our opinion that where

OPINION 49-39 April 1, 1949 (OPINION) DRAINS RE: Financing Re: Section 61-2142 of 1947 Supplement Your letter of March 28th, 1949 relative to payment by Board of County Commissioners of cost of keeping established drains open and in repair as provided by section 61-2142 of the 1947 Supplement, has been received and referred to my desk. This section makes it the mandatory duty of the Board of County Commissioners to keep all established drains in their several counties open and in repair. This section provides that funds for the payment of the costs shall be levied, assesse

OPINION 49-94 March 31, 1949 (OPINION) INSURANCE RE: Reciprocity Between States On March 29 you asked me to give an opinion in answer to a telegram sent to you by an attorney, W. W. Heath of Austin, Texas. The telegram presents the following question: Under the North Dakota retaliatory law does the insurance department of the state of North Dakota require Texas companies doing business in the state of North Dakota to invest seventy-five percent of their reserves in the state of North Dakota in similar securities as is required by Texas law as a prerequisite to doing business

OPINION 49-32 March 31, 1949 (OPINION) COUNTIES RE: Memorial Levy Your letter to the attorney general, dated March 26, 1949, has been received. In your letter you desire an interpretation of chapter 125 of the 1947 Session Laws, as amended by section 11-3201, which is a portion of chapter 125 of the 1947 Session Laws, authorizing the county commissioners of any county to erect a memorial, or memorials, or other suitable recognition, in commemoration of the people of the county who rendered services in World Wars I and II. In order to erect such memorials they must use funds ou

OPINION 49-182 March 31, 1949 (OPINION) TAXATION RE: Mineral Rights Re: Chapter 340 1947 Session Laws Your letter of March 29, regarding the above law, has been received and referred to my desk. There is no provision in this law for a division of the tax with reference to the question whether or not the reservation is all or a part of the mineral rights. This tax is not an ad valorem tax. It is a privilege tax and the tax is for the privilege of reserving undeveloped any share or the whole of the mineral rights, and it makes no difference how the mineral rights are divid

OPINION 49-179 March 31, 1949 (OPINION) TAXATION RE: House Trailers Your letter of March 29, re this matter, has been received and referred to my desk. You ask whether or not a trailer house owned by a farmer and located on his farm and used by him as his farm dwelling is liable to taxation. It is our opinion that if this is a bona fide residence, it would be exempt from taxation as farm buildings generally are. The mere fact that it is on wheels would not, in our opinion, make it any less a farm building than if it were taken from the wheels and actually affixed to the gr

OPINION 49-25 March 30, 1949 (OPINION) CLERK OF COURT RE: Mechanic's Lien Your letter of March 19, 1949, addressed to the Honorable Wallace E. Warner, attorney general, has been turned over to me for attention. In said letter you ask for a construction of section 35-1222 of the 1943 Revised Code, pertaining to the discharge of mechanics' liens. Said section provides that upon written demand to the holder, suit must be commenced within thirty days or the lien shall be forfeited. This section also provides, in a separate sentence, that no lien shall be valid or effective unless t

OPINION 49-155 March 29, 1949 (OPINION) OFFICERS RE: State Senator Elected County Treasurer This is in reply to your letter of March 25 addressed to the Attorney General. You state that Mr. Frank Albers, who was elected State Senator in 1946 from your district which includes Oliver County and whose term does not expire until January, 1951 was elected county treasurer of Oliver County at the 1948 General Election. The question now arises whether under the provisions of Section 39 of the state Constitution Mr. Albers can qualify as county treasurer. Section 39 of the Constitut

OPINION 49-171 March 28, 1949 (OPINION) SOIL CONSERVATION RE: District May Employ Own Attorney Re: Section 4-2213, Section 4-2223 and Section 4-2226 R.C. 1943 Your letter of March 24th addressed to the attorney general has been received and referred to my desk for attention. You inquire with reference to the power and authority of the district to employ an attorney to assist in making collections under contracts entered into which may require the bringing of lawsuits. Section 4-2213 N.D.R.C. 1943 makes the district "a governmental subdivision of the state and a body corporate

OPINION 49-98 March 23, 1949 (OPINION) LABOR RE: Cause of Action for Female Employee Your letter of March 19, 1949, addressed to Mr. Wallace E. Warner, attorney general, has been turned over to me for attention. You ask for a construction of section 34-0113 of the 1947 Supplement to the 1943 Revised Code, and especially that part of the section which reads: "shall be brought within one year after the accrual of such cause of action, ***." Your question is, when does a cause of action accrue where a female employee is employed overtime? It is our opinion that if the employee is

OPINION 49-51 March 23, 1949 ELECTIONS — Qualification for Village Office Your letter of March 21, relating to the village election at Zap, has been received and referred to my desk. It is the opinion of this office that one who has not resided in the village for a period of at least nine months prior to the date of election is not a qualified candidate and even though he receives a majority of the votes he cannot qualify. The provisions of section 40-1301, providi

OPINION 49-95 March 22, 1949 (OPINION) INSURANCE RE: Sale of Stock With Policy This is in answer to the last paragraph of your letter of January 18, 1949, wherein you ask, "I would like to know if this stock can be sold with insurance under the requirements of section 26-1010 of the North Dakota laws." Section 26-1010 of the 1947 Supplement states in brief, that no insured person and no insurer can receive or grant rebates, favors, advantages or inducements not recited in the policy of insurance. It is evident from the documents in the file of the National Farmers Union Auto

OPINION 49-164 March 22, 1949 (OPINION) PUBLIC LIBRARY AND CEMETERY RE: Funds Re: Chapter 40-38 R.C. 1943 and Chapter 312 S.L. 1945. Your letter of March 19, with questions relative to your public library fund and cemetery fund, has been received and referred to my desk. The law authorizing the public library is chapter 40-38 of the Revised Code. There is an amendment to this chapter found in chapter 260 of the Laws of 1945. The public library which you refer to evidently is the county library established by the county commissioners. Something over a year ago, we wrote w

OPINION 49-116 March 22, 1949 (OPINION) LIQUOR RE: Airlines I have your letter addressed to the Liquor Control Division, in which you ask the question: "If you feel the serving of liquor to passengers while aloft is within the jurisdiction of your state, we would like to know the requirements under your laws and regulations to which we must submit when liquor is sold by the drink to passengers and when it is dispensed gratuitously." As to jurisdiction Sec. 2-0302 of the N. D. Revised Code of 1943 states: "Sovereignty in the space above the lands and waters of this state is d

OPINION 49-51 March 17, 1949 ELECTIONS — Publications Re: Section 15-5318 1947 Supplement Your letter of March 15, asking our interpretation of the above section, has been received and sent to my desk. It is our opinion that the published notice must be so published that the first publication is at least 30 days prior to the day of the election; that is, if the election were to be held on the 31st day of the month, the first publication would have to be at least as early as the

OPINION 49-189 March 17, 1949 (OPINION) TAXATION RE: Township Levy Re: Sections 57-15191 and 57-1520 1947 Supplement Your letter of March 16, concerning the amount of permissible levy in a township, has been received and referred to my desk. This office has construed section 57-15191 as providing for a special fund outside of the levy limitation prescribed by section 57-1520. Section 57-15191 permits a special levy not to exceed 8 mills for road surfacing. This section does not authorize this special fund to be used for anything other than the surfacing of highways and is

OPINION 49-79 March 14, 1949 (OPINION) GAME AND FISH RE: Licenses Your letter of March 12, relating to section 20-0305 of the Revised Code, has been received and referred to my desk. This section in the Revised Code has been amended by the Laws of 1945. This amended section gives you a discretion as to whether or not to issue license to any of the enumerated classes. However, if a person in either of these classes is clearly entitled to a license, I think it would be an abuse of discretion to refuse to issue the license. This section as amended provides for the issuance of

OPINION 49-181 March 14, 1949 (OPINION) TAXATION RE: May Pay Real Estate Taxes Without Paying Special Assessment Your letter of March 11, asking for an opinion on the following situation, has been received, and referred to my desk. You state that the Dakota Transfer and Storage Company has been charged with special assessments for paving adjacent to their property. You state, further, that they are dissatisfied with the assessment and desire to pay the real estate taxes now in order that they be entitled to the five percent discount, without paying the special assessments. I

OPINION 49-19 March 10, 1949 (OPINION) CITIES RE: Courtesy Cards Your letter of March 9, re use of so-called "courtesy cards" which would permit out-of-town guests to occupy parking space on city streets without said guest being liable for payment of fines, etc., has been received and sent to my desk. You perhaps have in mind two or three opinions we gave regarding the use of a "courtesy coin" in parking meters. This, of course, is not the question here and your question has not been answered, so far as I know. So long as your city ordinance makes one parking longer than a

OPINION 49-7 March 8, 1949 (OPINION) APPROPRIATION RE: Fuel Tax Division Your letter of March 7 addressed to the Attorney General has been duly received and contents noted. You state that under Chapter 57 of the Session Laws of 1947 the Legislature appropriated $10,000 to be set aside in the State Treasury for the purpose of defraying the expenses of the maintenance and operation of the Motor Vehicle Fuel Tax Division in the office of the State Treasurer for the biennium beginning July 1, 1947, and ending June 30, 1949. The appropriation is broken down as follows: Clerk Hire

OPINION 49-143 March 2, 1949 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Dentists - Dental Hygienist Your letter of February 28, 1949, addressed to the attorney general, has been assigned to me for attention. You desire a ruling from this office as to whether or not, under the dental hygienist law, the dental hygienist may apply sodium fluoride to the teeth. You also inquire as to whether or not a dental assistant may apply sodium fluoride to the teeth. Answering your last question first, will say that under our law there is no provision permitting a dental assistant, whom we t

OPINION 49-67 March 1, 1949 (OPINION) GAME AND FISH RE: Big Game Animals Re: Senate Bill No. 130 Your letter of February 28, re the above, has been received and sent to my desk. Reading section 20-0507 as a whole, it is our opinion that the hunter immediately after killing a big game animal and taking possession thereof, must do two things: 1. Affix to the carcass of such animal the stub or tag of his big game hunting license; 2. Affix to the carcass of such animal, before it is transported in any manner, or offered for transportation, a metal locking seal, as provided i

OPINION 49-149 February 26, 1949 (OPINION) OFFICERS RE: County Judge Your letter of February 22, stating that Judge Backlund of the LaMoure County court has acted at the written request of the county judge of Ransom County in several matters. You also state that Judge Backlund has submitted a bill covering the actual expenses he incurred and a per diem. It is our opinion that the judge, whether he is acting as judge in his own county or an adjoining county pursuant to law, is drawing a salary covering his official acts and that he is not entitled to a per diem while acting o

OPINION 49-107 February 26, 1949 (OPINION) LEGISLATURE RE: Senate Bill 30 Your letter of February 25 addressed to the Attorney General has been received in which you request an opinion from this office regarding the legal status of Senate Bill 30 in the light of the action by the House of Representatives on Thursday, February 24, printed in the House Journal beginning on page 923 through page 925. You state that the request for the opinion is made because of the question as to the proper use of the expunging motion made by Representative Fitch. According to the House Journal

OPINION 49-177 February 23, 1949 (OPINION) TAXATION RE: Extension of Discount This office is in receipt of your letter of February 19 relative to the above entitled matter and contents of same have been noted. Senate Bill No. 239 is an amendment of Section 57-2009 of the North Dakota Revised Code of 1943. The amendment is short and provides as follows: Whenever the county commissioners, by resolution, determine that an emergency exists in any county by virtue of weather or other catastrophe they may extend the discount period to March 15, 1949." The first question is whethe

OPINION 49-81 February 22, 1949 (OPINION) GAME AND FISH RE: Responsibility of County Auditor Re: Chapter 20-03 N.D.R.C. 1943 Your letter of February 21, 1949, re issuance of hunting licenses, has been received by the attorney general and sent to my desk for attention. It appears from your letter that a certain county auditor delivered a block of hunting license blanks to a hardware dealer and authorized him to issue licenses and collect the fees therefor; that these blanks to a hardware dealer and authorized him to issue licenses and collect the fees therefor; that these blank

OPINION 49-176 February 22, 1949 (OPINION) TAXATION RE: Alcoholics Anonymous Exempt I acknowledge receipt of your letter of February 21, 1949, and copy of a letter from Mr. P. W. Lanier, Jr., attorney at Fargo, North Dakota, relative to the taxation of the Silver Dollar S.O.S. Society at Fargo. You ask me whether or not it is the opinion of this office that the Silver Dollar S.O.S. Society, as a branch of the National Alcoholics Anonymous Association, is exempt from taxation in the state of North Dakota. In reply, I wish to quote you subsection 11 of section 57-0208 of the No

OPINION 49-32 February 17, 1949 (OPINION) COUNTIES RE: Commissioners - Per Diem and Expenses Re: Section 11-10101 1947 Supplement Your letter of February 15, 1949 has been received and sent to my desk. You ask: "Have I a right to bill the county for $6.00 plus $2.00 for mileage and meals while in session one day?" Section 11-10101 of the 1947 Supplement to the North Dakota Revised Code of 1943 by its terms applies only to meetings lasting more than one day. Therefore, the $2.00 charge provided by subsection 2 of this section may not be charged by a commissioner if the me

OPINION 49-102 February 15, 1949 (OPINION) LEGISLATURE RE: Gas Tax Increase Must Have Two-Thirds Vote You have requested the opinion of this office as to whether or not House Bill 306 is an amendment of the initiated law of 1926 known as the gasoline tax law and if so, whether it requires a two-thirds majority for enactment. The initiated measure of 1926 defines dealer as including any person or persons, firm, association or corporation who imports or causes to be imported from any other state or county any motor vehicle fuel for operating or propelling motor vehicles for use,