North Dakota Attorney General Opinions

OPINION 49-62 February 4, 1949 (OPINION) FEES RE: County Insanity Board Re: Section 25-0315, fees of members of county board of insanity. Your letter of February second asking our interpretation of the above section and in particular as to whether or not the physician who is a member of the board is entitled to per diem as a member of the board is sitting and also to the fee of five dollars for an examination of the person alleged to be insane has been received and referred to my desk. It is our opinion that the physician who is a member of the board is entitled to per diem of

OPINION 49-108 February 4, 1949 (OPINION) LEGISLATURE RE: Two-Thirds Vote Necessary Your letter of February 4 addressed to the Attorney General has been received and contents of same have been noted. You ask for the opinion of this office as to whether or not a two-thirds majority vote is necessary to pass Senate Bills 218 and 219. Senate Bill 218 is an act imposing a separate and additional tax on all sales at wholesale of alcoholic beverages, other than malt beverages, containing more than four percent of alcohol by weight but less than twenty-four percent of alcohol by weig

OPINION 49-97 January 31, 1949 (OPINION) JOINT TENANTS RE: Authority of County Court Re: Section 57-3729 of the 1943 Revised Code. Your letter of January 28, 1949, asking our opinion upon the following situation, has been received. You are particularly interested in joint tenancies when one of the joint tenants or owners is deceased. If the county court can determine without a regular probate proceeding that there would be no estate tax due, would it be proper for the county court to make an ex parte order directing the depositaries to deliver such securities to the surviv

OPINION 49-91 January 31, 1949 INSURANCE — Benefits in Riders This is in reply to your letter of January 28, 1949, requesting an opinion on the following matter: “I would like to have your opinion as to whether or not this phraseology, ‘the company will determine the amount of payment, if any, for a cutting operation not specified in this schedule’, in these two riders comply with Article 5 of Section 26-0338 of the North Dakota laws.” The general law is that when a law is

OPINION 49-117 January 13, 1949 (OPINION) LIQUOR RE: Effect of Bonus Bill Your letter of January 12 addressed to the Attorney General has been received and contents noted. You request the opinion of this office relative to Senate Bill No. 1 which was introduced in the Senate of the thirty-first Legislative Assembly of the state of North Dakota. You refer particularly to the provisions in said bill which provide for a tax on the sale of beer and liquor and whether or not in case such bill becomes a law, the people of the state by legislative enactment or through the initiativ

OPINION 49-53 January 11, 1949 (OPINION) ELECTIONS RE: State Board of This is in reply to your letter of January 6, 1949, requesting the attorney general's opinion on the following matters: 1. An opinion interpreting the provisions of chapter 43-09 and particularly sections 43-0909 and 43-0912 of the 1943 Revised Code. 2. An opinion defining the rights, duties, and powers of the state board of electricians with respect to disposition of applications for licenses from companies, partnerships, and corporations, as well as individuals. 3. An opinion setting forth the proce

OPINION 49-105 January 10, 1949 (OPINION) LEGISLATURE RE: President Pro Tempore--On What Question Lieutenant Governor May Vote You have propounded two questions upon which you desire the opinion of this office. 1. What is the required vote necessary in the senate for the election of a president pro tempore? 2. Section 77 of the state constitution provides that the lieutenant governor shall be president of the senate, but shall have no vote unless they be equally divided. On what questions may the lieutenant governor vote? Answer to Question No. 1. On January 5, 1949, S

OPINION 49-104 January 5, 1949 (OPINION) LEGISLATURE RE: President Pro Tempore of Senate This is in reply to your request for an opinion from this office as to the required number of votes to elect a president pro tempore of the senate. Section 31 of the state constitution provides that: "The senate at the beginning and close of each regular session, and at such other times as may be necessary, shall elect one of its members president pro tempore, who may take the place of the lieutenant governor under rules prescribed by law." Section 47 of the state constitution provides tha

OPINION 48-157 December 30, 1948 (OPINION) OFFICERS RE: Taking Oaths and Performing Marriages Your letter of December 27 has been received stating that you have been appointed as Deputy County Judge and Ex Officio Clerk of the District Court of Logan County and asking if you have the right to take oaths or perform a marriage. Under the provisions of Section 11-1011 of the North Dakota Revised Code of 1943 county judges and clerks of the District Court are authorized to appoint clerks and deputies. As the office of county judge is a judicial office, he cannot appoint a deputy

OPINION 48-7 December 20, 1948 (OPINION) AERONAUTICS RE: Zoning Board - Hazards Re: Section 2-0403 (2), 1947 Supp., to 1943 Revised Code Your letter of December 16, 1948, has been referred to my desk. It is my opinion that where, for instance, an airport owned and controlled by a political subdivision, as that term is defined by section 2-0401 of the 1947 Supplement, and an airport hazard exists with reference to such airport in areas surrounding such airport, the joint zoning board shall consist of two representatives appointed by the political subdivision owning and control

OPINION 48-37 December 17, 1948 (OPINION) DRAINS RE: Culverts This is in reply to your letter of December 9, 1948, in which you say: In a drain construction namely the Garfield Drain #32 an inlet culvert was installed. This culvert lies across a section line. The drain, an open ditch, is along the west side of the road. A farmer on the east side to get rid of his water must have a culvert across the road or to the west side. This culvert and the installing would be over $350.00. The county commissioners refused to pay for the culvert and installation on the grounds th

OPINION 48-207 December 17, 1948 (OPINION) WELFARE RE: Residence I have your letter of December 14, 1948, in which you request the opinion of this office as to the residence for relief purposes of a certain family who had received assistance from Foster County. The facts as you state them are as follows: A family, whose original residence was in Sheridan County, left said county in October, 1947, and lived in Stutsman County until April, 1948. Your county welfare board gave this family a small order for relief, about $8.00, when some member of this family was sick. You do

OPINION 48-8 December 16, 1948 (OPINION) APPROPRIATION RE: National Guard Your letter of December 13, 1948, addressed to this office, has been received and contents noted. You make reference to subsection 25 of chapter 16 of the 1947 Session Laws, which appropriated $150,000.00 for the maintenance of the national guard for the biennium beginning July, 1947 and ending June 30, 1949. You refer to section 37-0603 of the 1943 Revised Code, which directs the paymaster general from time to time to file with the state auditor a written requisition, approved by the adjutant general, f

OPINION 48-209 December 14, 1948 (OPINION) WILLS RE: Foreign Re: Sections 30-0523, 1943 Revised Code Your letter of December 13, 1948, re the above section, has been received. I concur in the opinion expressed in your letter. When a foreign will is offered for probate here it must be accompanied by the certificate of probate of the court where the will is originally admitted to probate, with anything else that may be required to show the authenticity of the will. The will should be admitted to probate in this state on such prima facie showing. If there is any objectio

OPINION 48-34 December 8, 1948 (OPINION) COUNTY COURT RE: Jurisdiction Over Insane Persons Your letter of December 3, relative to the petition for release of an inmate of the Federal hospital at St. CLoud, has been received and sent to my desk. Section III of the Constitution prescribes the jurisdiction of county courts and does not seem to give the county court any jurisdiction whatever over insane persons. It would seem, therefore, that such powers as are given the county judge as a member of the insanity board are ex officio powers and not powers of the court. It appears

OPINION 48-134 December 8, 1948 (OPINION) MOTOR VEHICLES RE: Soil Conservation District This will acknowledge your letter of November 30th, in which you state that a question has been raised as to whether or not a soil conservation district is entitled to register a motor vehicle on an exempt basis as provided by section 39-0421 of the 1947 Supplement. Under that section, a motor vehicle owned and operated by this state or any of its subdivisions is exempt from the regular license fees provided by law, except the payment of $1.00 for each set of number plats, which is charged t

OPINION 48-210 November 29, 1948 (OPINION) WORKMEN'S COMPENSATION RE: Adoption of Child You state that the commissioners of the Workmen's Compensation Bureau would like an opinion regarding the following state of facts: An employee was killed while in the course of his employment and his widow filed a claim which was allowed, and there was a minor son, who is now approximately nine years old. The widow has remarried and a settlement has been made with her pursuant to the law under such conditions. The stepfather writes that he desires to adopt the child and he now inquires

OPINION 48-99 November 15, 1948 (OPINION) LABOR RE: Minors Acting as Paid Chauffeur I have your letter of November 10, 1948, in which you inquire whether or not section 34-0716 of the 1943 Revised Code would prohibit minors under sixteen years of age from driving an automobile as a paid chauffeur. Subsection 1 of section 34-0716 of the 1943 Revised Code prohibits a minor from any employment involving the use of any power driven machinery. It is true that under the provisions of section 39-0605 of the 1947 Session Laws, "an operator's license may be issued to any child, who is

OPINION 48-96 October 14, 1948 (OPINION) INSURANCE RE: Terms of Existence of Companies I have your letter of October 11 relative to the term of existence of the Griggs County Mutual Fire and Lightning Insurance Company and the Merchants National Mutual Fire Insurance Company, together with copies of the articles of incorporation of these two companies. You state that you have written to these companies informing them that their term of existence has expired. You enclose correspondence relative to this matter, including a letter from A. I. Johnson, attorney for the Merchants Nat

OPINION 48-204 October 8, 1948 (OPINION) VILLAGES RE: Vacation of Streets Re: Chapter 40-39 of the 1943 Revised Code Your letter of October 6, 1948, has been received and sent to my desk. The vacation of streets is governed by chapter 40-39 of the 1943 Revised Code. The petition for vacation must be signed by "all of the owners of the property adjoining the plat to be vacated." You state that the church owns all of the land on both sides of the street to be vacated. If this is the case, the church would be the only petitioner necessary. When the petition is presented to

OPINION 48-112 September 29, 1948 (OPINION) LIBRARY RE: Who is Depositary of Money Donated to Public Library Re: City operated Public Libraries under Chapter 40-38 N.D.R.C. 1943 and as Amended by Chapter 260, Session Laws of 1945 Your letter of September 27, 1948, re above, has been received and sent to my desk. You ask whether or not money donated to public libraries established under chapter 40-38 of the 1943 Revised Code has to be deposited with the city treasurer, or whether the library board can hold this money in a separate account and write checks against the same. It

OPINION 48-147 September 28, 1948 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Pharmacists - Drugs Sold at Retail Stores Mr. Dan Hall of this city has left with this office the correspondence you sent to him with reference to drugs which may be sold by retail stores not employing a registered pharmacist. Section 43-1514 of the North Dakota Revised Code of 1943 provides that: DRUGS, POISONS, MEDICINES, CHEMICALS; WHO MAY SELL. No drug, poison, medicine, or chemical, except patent or proprietary preparations, shall be manufactured, compounded, sold, or dispensed in this state f

OPINION 48-57 September 25, 1948 (OPINION) ELECTIONS RE: Write-In Candidacy Your letter of September 24, 1948, relating to the question of rights to a place on the ballot of one having been nominated by stickers at the primary, has been received and sent to my desk. You state that there was no candidate for the office of county treasurer, as no one filed a petition, but that three persons in the county received sufficient votes by stickers or "write-on" to entitle them to a place on the ballot. You state that the two highest of these three have withdrawn and do not wish to ha

OPINION 48-78 September 18, 1948 (OPINION) GAME AND FISH RE: License for Members of Armed Forces I am in receipt of your letter dated September 9, 1948, requesting an opinion from this office on the provisions of section 20-0305 of the 1943 Revised Code, as amended by chapter 184 of the 1945 Session Laws. I also note the letter directed to your office by Odin J. Wold, county auditor of Richland County. In Mr. Wold's letter it is stated: "I would appreciate it if you would let me know if a member of the United States armed forces, and a resident of North Dakota, can hunt or f

OPINION 48-61 September 13, 1948 (OPINION) FEES RE: Chief of Police Your letter of September 11, 1948, regarding the matter of your fees for serving warrants of arrest and witness fees, received this morning and sent to my desk. Generally, the salary, fees, or other compensation, of all city officers is fixed by city ordinance. If your city has no such ordinance, it should proceed to enact one. Policemen are not only the peace officers of a city, but they are also peace officers of the state and have all the duties and powers as such peace officers. See sections 12-0104 (1

OPINION 48-39 September 9, 1948 DRAINS — Expenses of Members of County Board This office is in receipt of your letter of September 1, 1948, in which you request the opinion of the attorney general as to whether or not members of county boards of drain commissioners are entitled to mileage in order to attend meetings of their boards. Section 61-2146 of the 1943 Revised Code provides for the compensation of drain board commissioners. It reads as follows: “Each drain commissioner shall

OPINION 48-40 August 23, 1948 (OPINION) DRAINS RE: Jurisdiction Re: Question of jurisdiction in the matter of improvement of drains and providing sufficient outlets for same. This will acknowledge the receipt of your letter dated August 16, 1948, addressed to the Attorney General's Office "Attention P.O. Sathre." I have examined the pleadings, findings of fact and conclusions of law made by Hon. G. Grimson, Judge of the District Court, Second Judicial District, in the case of Allen V. Reilly, plaintiff, vs. A. B. Purdy, et al, an the declaratory judgment entered thereon. In

OPINION 48-93 August 21, 1948 (OPINION) INSURANCE RE: Loss at McHenry Poor Farm Your letter of August 19 has been received and contents noted. You state you have at hand a proof of loss from McHenry County in the amount of $2000, covering destruction of machine shed on the poor farm on the nineteenth of February, 1948. Your adjuster's report shows that this property, consisting of all buildings and 700 acres of land, was sold by McHenry County under a contract of deed to one Fredrick Wolhowe in November, 1947, for the sum of $15,200, and that one fourth of the purchase price wa

OPINION 48-129 August 21, 1948 (OPINION) MARRIAGE RE: Indians Your letter of August 18 has been received by this office and referred to my desk. The question which you ask is one of some difficulty. If Indians request a marriage license from a county judge, they must comply with all of the statutory requirements for such license. The difficulty arises from the fact that Indians living on a reservation, having tribal relations one with another, may contract marriages which would be valid under the state law, simply by complying with their own tribal regulations. For insta

OPINION 48-72 August 18, 1948 (OPINION) GAME AND FISH RE: Form of License I am in receipt of your letter dated August 17, 1948, relative to the issuance of certain types of licenses under the provisions of chapter 20-03 of the North Dakota Revised Code of 1943. In your letter it is stated: "The county auditor or his agent will be asked for a nonresident fishing license, and in the event that he is out of them will accept the out-of-state license fee and issue a resident fishing license, writing across the top of it 'Nonresident.' There is no question of the honesty of the a

OPINION 48-120 August 18, 1948 (OPINION) LIQUOR RE: Fees by Municipality I am in receipt of a reply to my letter addressed to the City Attorney at Fargo, North Dakota, relative to the fees a municipality may charge for a liquor license. In his letter it is stated: "We have not found any authority on the matter and feel that it is a nice question as to whether the courts, in view of the authority given cities to regulate and license liquor dealers, would permit a situation to exist where a fee to any person desiring to engage in both types of sale would be $4000.00. We have

OPINION 48-112 August 16, 1948 (OPINION) LICENSES RE: Automobile Dealer Re: Section 39-0459 of the 1947 Supplement to 1943 Revised Code Your letter of August 13 re the above has been received and referred to my desk. We agree with your interpretation of this section. We believe that a dealer in automobiles must have a license for each location from which he does business. Certainly, he cannot have a license to do business in Grand Forks and do business under this license in Williston. He must have the same facilities for the repair, etc. of motor vehicles at every loca

OPINION 48-75 August 13, 1948 (OPINION) GAME AND FISH RE: Governor's Proclamation Your letter of August 10, 1948, relative to the taking of deer in this state has been received and noted. In your letter you state: "In thinking of the coming proclamation I have decided if it were possible to close an area around a few of the important towns located within the territory which will be open for the taking of deer, and have the right to do this under the proclamation, it would be a safety measure that has been neglected in the past, but should be considered at this time. This is p

OPINION 48-74 August 12, 1948 (OPINION) GAME AND FISH RE: Governor's Proclamation I am in receipt of your letter, dated August 6, 1948, relative to the Governor's power under the provisions of chapter 20-08 of the North Dakota Revised Code of 1943 with respect to his proclamation and the contents thereof. You state in your letter that in the Governor's proclamation for 1947 appears a section which provides that female or hen pheasants be not killed, and further, that evidence of sex be not destroyed in storage or transit. It appears that there has been some question as to wh

OPINION 48-74 August 2, 1948 (OPINION) GAME AND FISH RE: Governor's Proclamation -- Chapter 20-08 and Sections 20-1101 and 20- 1104 of the N. Dak. Revised Code of 1943. Your letter of July 29 re the above addressed to the Attorney General has been received and sent to my desk. Chapter 20-08 of the North Dakota Revised Code of 1943 provides specifically what may be provided in the Governor's Proclamation. It is our opinion, therefore, that the Governor would have no authority by his proclamation to keep legally shot game taken in South Dakota from being brough

OPINION 48-56 July 27, 1948 (OPINION) ELECTIONS RE: Vacancy on No-Party Ballot I should have answered your letter of July 8 sometime ago, but due to the pressure of many things, there has been a delay. I note with regret that you have resigned as County Auditor of Pembina County and that your resignation will be effective August 1, 1948. You cite Section 16-0807 of the North Dakota Revised Code of 1943 with reference to the filing of a petition to fill a vacancy on the no-party ballot. This statute was amended by Chapter 25 of the 1944 Special Session. The words, "or for a

OPINION 48-68 July 24, 1948 (OPINION) GAME AND FISH RE: Commercial Fishing License Re: Sections 20-0301, 20-0302, and 20-0314 of the 1948 Revised Code. Your letter of July 22 re the license for commercial fishing of a person exempted from the requirement of procuring a general fishing license has been received and come to my desk. Section 20-0301 provides for a fishing license. Section 20-0302 specifically exempts certain persons from the necessity of procuring license. Section 20-0314 provides for the issuance of a commercial fishing license to holders of general licenses.

OPINION 48-42 July 22, 1948 (OPINION) ELECTIONS RE: Construction of Statutes Your letter of July 19, 1984, addressed to the attorney general, has been received and the contents duly noted. You refer to changes in language made by the code commission in certain sections of the election laws, more particularly sections 16-0301 and 16-0302 of the 1943 Revised Code. These sections, as they now appear in the 1943 code, read as follows: 16-0301. INDIVIDUAL NOMINATIONS MAY BE MADE WHEN. Nominations of candidates to appear in the individual column at any general or special elect

OPINION 48-70 July 16, 1948 (OPINION) GAME AND FISH RE: Fishing License Early last winter your office was in contact with this office, which in turn transmitted your correspondence to the Game and Fish Department, with reference to the right of anyone to catch, take, or kill unprotected fish without a license. On January 27, 1948, Mr. Campbell, the then Deputy Game and Fish Commissioner, wrote a letter in which he stated that it was the opinion of the department that under chapter 20-03 of the 1943 Revised Code it was only necessary to have a license for catching, taking, or

OPINION 48-189 July 13, 1948 (OPINION) TAXATION RE: Township Roads - Levy for Surfacing of Re: Chapter 353, 1947 Session Laws Your letter of July 12, 1948, regarding township taxation for surfacing roads, has been received and sent to my desk. It is our opinion that chapter 353 of the 1947 Session Laws provides for a special fund to be used for a specific purposes. Although the legislature does not say so in so many words, it is our opinion that it was the intent of the legislature that this specific fund and the levy therefor of 8 mills were not intended to be limited, or

OPINION 48-9 July 7, 1948 (OPINION) BANKS AND BANKING RE: Investments This is in reply to your recent inquiry as to whether there is a conflict between section 7-0409 and section 6- 0338 N.D.R.C. 1943 with reference to the legal right of banks to invest funds held by them in investment certificates of savings and building and loan associations which are under state supervision and shares of federal savings and loan associations organized under the laws of the United States and under federal supervision. It will be noted that said section 7-0409 authorizes *** banks and other f

OPINION 48-18 July 2, 1948 (OPINION) CITIES RE: Annexation I have before me correspondence and other documents in connection with your inquiry relative to the attempted annexation by the City of Williston of a portion of the Drylands Substation near Williston, North Dakota. From the correspondence, it appears that in the month of October, 1945, the City of Williston initiated proceedings for the purpose of annexing certain territory adjoining the City of Williston and included in the annexation was a strip of land 265 feet wide which is a part of the land belonging to the Expe

OPINION 48-16 June 15, 1948 (OPINION) ASSESSMENT BOOKS RE: Unsigned Upon Death of Assessor This office is in receipt of your letter of June 12, in which you state that your city assessor assessed the city, all his assessor slips were properly signed, and his assessment books were made up. He was taken ill and died before he signed the certificate in the back of the assessment book. You inquire whether the assessment will be valid without such certificate or whether you will have to reassess the property of the city. You refer to the case of Eaton v. Bennett, 10 N.D. 346 and G

OPINION 48-171 June 14, 1948 (OPINION) LOTTERY DEFINED RE: Elements Present This will acknowledge receipt of your letter dated June 14, 1948, relative to the North Dakota Conservation Show to be held in Bismarck during September of this year. In your letter you state: In order to properly advertise this Conservation Show, the merchants of Bismarck are giving away, absolutely free, a five room house fully furnished. This house will be on display in Bismarck from July 1st through September 19th and it will not be necessary to purchase a ticket, nor will the merchants sell an

OPINION 48-59 June 11, 1948 (OPINION) COUNTIES RE: Funeral Expenses Patient of T.B. Sanitarium This is in reply to your letter of June 10, addressed to the attorney general. You refer to an opinion issued out of this office, reported in the Attorney General's Report for 1932-1934, in which it is held that the funeral expenses of an indigent patient who dies in the State Tuberculosis Sanitarium should be paid by the county of his residence. You inquire whether this is still the holding of this office. I beg to advise that it still is the holding of this office. You further

OPINION 48-83 May 18, 1948 (OPINION) CRIMINAL PROCEDURE RE: Plea of Guilty May Be Entered Only by Defendant in Person Your letter of May 14 relative to the possibility of a plea of guilty being entered in the absence of the defendant by his counsel has been received. It is our opinion that under section 29-1302 the defendant's personal appearance is unnecessary at the arraignment and he may appear by counsel only. Section 29-1421, in our opinion, prohibits the entry of a plea of guilty being entered by counsel. This section seems to admit of no other construction. However

OPINION 48-116 May 13, 1948 (OPINION) EDUCATION RE: Public Funds - May Not Be Paid to Sectarian Schools This is in reply to your letter of May 12, 1948, enclosing a letter from Mrs. Margaret Deserly, an Indian woman of Sanish, North Dakota. The question presented is whether or not your department may pay tuition to a parochial school from funds allotted to the state by the federal government for educational privileges for Indians. Some time ago your department entered into an agreement with the federal government whereby the federal government would pay to your department in on