North Dakota Attorney General Opinions

OPINION 47-21 May 14, 1947 (OPINION) STATE EXAMINER RE: Redemption of Property Sold for Texas This is in reply to your inquiry with reference to the construction of section 6-0738 N.D.R.C. 1943. This section provides among other things that "the state examiner shall be custodian of all books, records, documents, and other property of such bank and of the dividends unclaimed upon the winding up of the receivership proceedings, and shall be vested with title to any assets belonging to such bank and not distributed in such receivership, and he shall have full power and authority t

OPINION 47-84 May 12, 1947 (OPINION) SCHOOLS RE: Tuition Foster Children Your letter of May 8, 1947, addressed to the attorney general, has been received and referred to the undersigned for attention and reply. You ask for the opinion of this office on the following situation: A child has been removed from his own home because of its unsuitable nature and has been placed in a foster home. The child is of school age, and the question you present is whether tuition must be paid for the child in the district of his foster home. I assume for the purpose of this letter that the

OPINION 47-61 May 10, 1947 (OPINION) COUNTIES RE: State's Attorney Not Required to Prepare Papers for Township Bond Issue This will acknowledge the receipt of your letter of May 7, 1947, requesting the opinion as to whether a state's attorney is required to prepare the necessary papers, forms, etc., in connection with a township bond issue. Mrs. Eklund, clerk of Dunbar Township, Sargent County, in a letter addressed to the attorney general is entitled to a fee for assisting a township board in drawing the necessary papers in connection with a bond election.

OPINION 47-162 May 10, 1947 (OPINION) INTOXICATING LIQUORS RE: License Fees for Clubs or Lodges This will acknowledge your letter of May 8, 1947, in which you want to know whether an ordinance, if passed by the city of Crosby making the license fee $1,000.00 for the sale of liquor generally, and further providing a lesser sum for the sale of liquor by a club or lodge, would be lawful. House Bill 185, which becomes law on July 1, 1947, provides that liquor license fees within the incorporated limits of a village or city shall range from $200.00 minimum to $2,000.00 maximum, and

OPINION 47-80 May 1, 1947 (OPINION) COURTS RE: County Judge - Fees - Sec. 14-0322-11-1014 Your letter of April 24, addressed to this office has been received and contents noted. You state there has been disagreement among the county judges of the state as to whether or not under sections 14-0322 and 11-1014 the $1.00 marriage license fee should be paid to the county treasurer. Section 14-0322 provides among other things as follows: "For each license and the record herein required, the county judge shall be entitled to a fee of one dollar to be paid by the party applying for

OPINION 47-12 May 1, 1947 (OPINION) APPROPRIATION RE: Limitation on - Expenditure - Exception This will acknowledge your letter of April 29, 1947, in which you state that Commissioner C. W. McDonnell has requested you to write this office for an opinion with reference to the expenditure of $1200.00 appropriated by the 30th legislative assembly for license plates, seals, etc., for the department of weights and measures. In your letter you state as follows: Material purchased under this appropriation consists of metal license plates (required by law) for gasoline pumps and coi

OPINION 47-246 April 28, 1947 (OPINION) WORKMEN'S COMPENSATION RE: Salaries This office is in receipt of your letter of April 28, in which you ask for the opinion of this office on the following proposition: Chapter 264 of the Session Laws of 1945, which amends section 65-0202 of the North Dakota Revised Code of 1943, provides as follows: "Before commencing to perform his duties, each commissioner (members of Workmen's Compensation Bureau) shall file an oath of office in the usual form and shall be bonded by the State Bonding department in the sum of five thousand dollars for

OPINION 47-173 April 28, 1947 (OPINION) LIVESTOCK RE: Sales Ring License This will acknowledge your letter of April 23, 1947. From your letter it appears that a sales ring was constructed for the public auction of cattle only and was built in conjunction with the railroad stockyards and operated for several years until about two years ago when license was refused because of irregularities on the part of the operator. It now appears that George Remillong of Dickinson has purchased the sales ring premises and wants to secure a license. You ask whether under section 2 of Regul

OPINION 47-87 April 18, 1947 (OPINION) DRAIN DISTRICTS RE: Dissolution of Irrigation Districts This will acknowledge receipt of your letter of April 11, 1947, in which you say: Application has been made to the Cass County Commissioners to dissolve a drainage district as provided in section 2 in chapter 14 of the Special Session Laws of 1944. Chapter 14 was an amendment of section 2486 of the 1945 Supplement to the Compiled Laws of 1913, as amended by chapter 118 of the 1943 Session Laws and which appeared in the North Dakota Revised Code of 1943 as section 61-2142. The regu

OPINION 47-45 April 18, 1947 (OPINION) DISTRICT COURT RE: Filing Fees This will acknowledge your letter of April 9, 1947, with reference to Senate Bill No. 151of the 1947 session. You want to know whether the filing fee of $7.50 provided by subsection 1 of section 11-1704 of the 1943 Revised Code, as amended by section 3 of Senate Bill No. 151, should be charged in divorce actions, quieting title actions, discharges of old mortgages, trusts, deposit actions and adoptions. Undoubtedly the $7.50 filing fee should be charged in the filing of divorce actions and quieting title a

OPINION 47-40 April 18, 1947 (OPINION) CITIES RE: Salary of City Auditor - No Change During Term The Attorney General is in receipt of your letter of April 9, 1947, in which you say that you desire the opinion of this office as to whether the salary of the City Auditor of Lehr may be increased from $65.00 per annum to $125.00 per annum. I am not aware of any state law which prescribes the salaries of city auditors. Salaries vary, depending upon the size of cities. In small towns the salaries of city auditors are usually nominal, as appears to be the case Lehr. In cities s

OPINION 47-14 April 17, 1947 (OPINION) APPROPRIATIONS RE: Repairing and Recalking of Capitol Building Your letter of April 16, 1947, addressed to this office, has been received, in which you ask for the opinion of this office on the following situation. Senate Bill 54 is the general appropriation bill for the maintenance of the state government and includes for the board of administration an item of $50,000.00 for repairing and recalking the capitol building. The board of administration has charge and supervision of the capitol building and appurtenances, and it is therefore

OPINION 47-86 April 16, 1947 (OPINION) DRAINS RE: Cleaning and Repairing - Use of Unobligated Moneys in Drain Fund Re: Cleaning and Repairing Drains The attorney general is in receipt of your letter dated April 14, 1947, in which you say: The Board of County Commissioners of Sargent County have before them a petition to clean an existing and established county drain. I realize it is the mandatory duty of the Board of County Commissioners to keep all drains constructed under the law of this state open and in good repair. The particular drain in question has now several thou

OPINION 47-226 April 11, 1947 (OPINION) TAXATION RE: Gasoline Tax Act - Applicability of to Gasoline Used by Railroads This office has had under consideration your letter of some time ago in which you state: "The Northern Pacific Railway Company ships in a certain amount of gasoline for their won use. They advise that most of their gasoline is purchased in the state but that they do bring in a certain amount in supply trains four times a year from Brainerd, Minnesota, for their own exclusive non-highway use. "The Chicago, Milwaukee, St. Paul and Pacific Railroad Company, lik

OPINION 47-167 April 11, 1947 (OPINION) JUSTICE OF THE PEACE RE: Jurisdiction of Criminal Cases This is in reply to your letter of April 9 addressed to the Attorney General. With reference to the jurisdiction of a justice of peace in criminal matters, Section 33-0108 of the North Dakota Revised Code of 1943 provides that, "In each county where no county court with criminal jurisdiction exists, each justice court has jurisdiction and authority coextensive with the county to hear, try and determine every criminal action in which the offense charged is punishable by a fine of not

OPINION 47-129 April 11, 1947 (OPINION) FIREWORKS RE: Kinds Prohibited - Sale Authorized This will acknowledge your letter of April 7, in which you ask for an interpretation of House Bill 142 of the Thirtieth Legislative Assembly on behalf of your client, Rich Brothers, distributors of fireworks in the city of Fargo, North Dakota, insofar as it may be determined from that law what fireworks may be legally sold in the state of North Dakota. This statute was passed as an emergency measure and approved by the Governor on March 11, 1947. The specific nature of your inquiry on be

OPINION 47-9 April 10, 1947 (OPINION) AERONAUTICS RE: Airport Development - Federal Funds This will acknowledge your letter of April 7, 1947, in which you seek interpretation of section 6 of Senate Bill 40, passed by the 30th legislative assembly, and which under a recent opinion we held would become effective as the law of this state on July 1, 1947. You state that it is the considered opinion of your office that all federal moneys appropriated for airport development in this state should, under the terms of section 6 of Senate Bill 40, be deposited in the state treasury to be

OPINION 47-63 April 10, 1947 (OPINION) COUNTIES RE: Welfare Workers Entitled to Mileage But Not Rental for Use of Car Your letter of April 8, addressed to the attorney general, has been received and contents noted. You state that in several county welfare boards within the state they are paying rental as well as five cents per mile, or in lieu of mileage, for the use of personally owned automobiles to county welfare board employees. You state further that in some of the larger cities the county welfare board does pay a monthly rental for the use of personally owned automobile

OPINION 47-47 April 10, 1947 (OPINION) COOPERATIVE MARKETING ASSOCIATIONS RE: Sale of Stock This office has had under consideration your letter of March 20, 1947, relative to the sale of stock by local cooperative marketing associations. You ask for our written opinion upon the following questions: 1. Must local cooperative marketing associations file with the North Dakota Securities Commission the information required under section 10-0405, North Dakota Revised Code of 1943 when the stock is sold among the persons who will be or who are members of the association?" 2. Wo

OPINION 47-102 April 5, 1947 (OPINION) EDUCATION RE: County Superintendent Duties Re City Schools Having a Superintendent Your letter of March 31, 1947, addressed to this office, has been received and contents of same have been duly considered. You desire the opinion of this office upon the following proposition: As county superintendent of schools of Burleigh County you have under your superintendence schools employing a total of 95 teachers. The schools in which these teachers are employed are common school districts and therefore within your jurisdiction so far as general

OPINION 47-96 April 2, 1947 (OPINION) ADOPTION RE: Children Right of Inheritance - Sec. 14-1113-14 I received your letter of March 28, 1947, concerning the distribution of the Alex Stalarenko estate. Alex Stalarenko died in 1940, leaving four heirs, sons and daughters, one of whom a child by the name of Mary Ann Christ, now know as Mary Ann Christ Holden, was adopted. Mr. and Mrs. Anton Christ adopted this child on February 6, 1929, when the child was six years of age. I understand that the adoption proceedings appear regular and that there is no question that Mary Ann Chri

OPINION 47-38 April 2, 1947 (OPINION) CITIES RE: Ownership of Property Acquired by Chamber of Commerce Your letter of March 27 has been received and contents considered. You ask the opinion of this office on the following proposition: About a year ago the Williston Chamber of Commerce after considerable work and activity secured from the Federal Government eleven buildings and various other properties from the C.C.C. Camp located at Trenton, North Dakota. This property was secured from the Soil Conservation Service of the Federal Government with headquarters at Omaha. It wa

OPINION 47-239 April 1, 1947 (OPINION) TUITION RE: Payment of - When Your letter of March 29 to the Attorney General has been received and contents noted. You submit three questions upon which you desire the opinion of this office as follows: 1. Is it possible to collect tuition for the type of student indicated above, in advance? In other words make one collection of the entire amount due for the entire term at the beginning of the school year. If payment it refused may the Board refuse admission to the person concerned? "2. If a student is living out of our district f

OPINION 47-238 April 1, 1947 (OPINION) TEACHERS RETIREMENT FUND RE: Rulemaking Power of Board Your letter of March 21 addressed to the Attorney General has been received and contents noted. You desire information relative to the provisions of the laws enacted by the recent Legislative Session as the same apply to the teachers' insurance and retirement fund. These laws do not become effective until July first and we have been waiting to have a conference with the Superintendent of Public Instruction with reference to the provisions of these laws. The Board of Trustees of the

OPINION 47-21 March 28, 1947 (OPINION) BONDS RE: Debt Limit - Municipal Water Supply Your letter of March 26, addressed to this office, has been received and contents noted. You refer to subdivision 3 of section 21-0304 of the North Dakota Revised code of 1948. This section is in conformity with Article 35 of the Amendments to the State Constitution, which, among other things, provides that any incorporated city may become indebted in any amount not exceeding four percent of the assessed value without regard to the existing indebtedness of such city, for the purpose of const

OPINION 47-76 March 21, 1947 (OPINION) COUNTY COURT RE: Fees In This will acknowledge your letter of March 14, 1947, in which you state that you have received a copy of Senate Bill No. 151 regarding the collection of filing fees in district and probate courts. I note that you take the position that heirship proceedings do not come within the provisions of this law. Section 5 of the act, amending section 27-0740 of the 1943 Revised Code, reads as follows: "Before a petition for letters testamentary, of administration, or guardianship is filed in a county court of this state,

OPINION 47-104 March 21, 1947 (OPINION) EDUCATION RE: County Superintendent - Salary Your letter of March 20, 1947, has been received in which you ask for an opinion as to whether there is a conflict between Senate Bills 119 and 136 relative to the salary of county superintendents. Senate Bill 119 was passed as an emergency measure and approved February 27, 1947, at 4:00 p.m., by the governor. It is a bill providing for an increase in the salaries of all county officers including the county superintendent, for the years 1947, 1948, 1949 and 1950. The salaries of the several

OPINION 47-194 March 20, 1947 (OPINION) OFFICERS RE: Office of Sheriff and Coroner May Not be Held by One Person This office is in receipt of your letter of March 19, 1947, asking for an opinion as to whether a person who has been elected and qualified for the office of coroner may also accept appointment and act as a deputy sheriff. Section 11-1901, of the 1943 Revised Code provides that when there shall be no sheriff or deputy sheriff in an organized county, the coroner of the county shall exercise all the powers and duties of that office until the same shall be filled as pro

OPINION 47-208 March 19, 1947 (OPINION) SCHOOL DISTRICTS RE: Reserve Fund Your letter of March 18 addressed to this office has been received and contents of same have been noted. You present the following proposition upon which you desire an opinion of this office. A school district in the western part of the state has built up a substantial reserve fund. At the beginning of the school year this fund was drawn upon by the district in enable it to operate until sufficient taxes for the current year would be available. There are no delinquent taxes for any previous years in

OPINION 47-141 March 17, 1947 (OPINION) GARNISHMENT RE: Refund of Fee on Dismissal This will acknowledge your letter of March 15, 1947, in which you state that on or before January 30, 1947, Attorney H. L. Halvorson, Jr., deposited a $3.00 fee in connection with a garnishment proceeding of R. W. Pence v. Joe Clementich, defendant. This fee was deposited by Attorney Halvorson before any disclosure by the state auditory. The garnishment proceeding was dismissed. You inquire whether the $3.00 fee tendered with the garnishment proceeding and deposited with the state treasurer

OPINION 47-203 March 14, 1947 (OPINION) RESIDENCE RE: Holding Township Office Your letter of March 11, 1947, addressed to the attorney general, has been received in which you enclose copy of a letter written by you on March 11, 1947, to Mr. Herb Schrank, original letter written by you on April 1, 1943, to Mr. John Hopperstad, and letter dated May 8, 1943, written to you by Mr. Wm. R. Pearce, then assistant attorney general. The question presented is as follows: "A semi-retired farmer moved from his farm to town but keeps his legal and voting residence in the township. He h

OPINION 47-233 March 12, 1947 (OPINION) TAXATION RE: Township Roads - Levy for Surfacing of This office is in receipt of your letter of March 11, requesting the opinion of this office as to the construction of the provision of Senate Bill No. 98 and House Bill No. 234, both being emergency measures enacted by the Thirtieth Legislative Assembly of the State of North Dakota, your specific question being whether the eight mill levy provided in House Bill No. 234 must be within the ten mill levy provided in House Bill No. 234 and Senate Bill No. 98. House Bill No. 234, is, as its t

OPINION 47-93 March 10, 1947 (OPINION) INDIANS RE: Negroes - Marriage License - Section 14-0305 This will acknowledge your letter of March 6, 1947, in which you request the opinion of this office upon your authority to issue a marriage license based on the following facts: A young man named Francis Peter Houle, born February 7, 1926, and supposed to be of half white and half Indian blood has applied for a license to marry a girl also of half white and half Indian blood. This young man has all the characteristics of a Negro, looks like one, acts like one, and was classified as a

OPINION 47-95 March 6, 1947 (OPINION) PARENT AND CHILD RE: Stepchildren This is in reply to your recent letter in which you inquire as to what facts are necessary under section 14-0909 of the North Dakota Revised Code of 1943 to constitute voluntary acceptance on the part of a stepfather to accept into his family a stepchild so as to become liable for and support and maintenance. Section 14-0909 provides as follows: "A husband is not bound to maintain his wife's children by a former husband, but if he receives them into his family and supports them it is presumed that he does

OPINION 47-139 March 1, 1947 (OPINION) HIGHWAYS RE: Purchase of Material - Necessity for Bids Your letter of February 27, addressed to the attorney general, has been received and contents duly noted. You desire the opinion of this department upon the following proposition which is now before your office: You have a proposal from the Minot Sand and Gravel Company to supply the State Highway Department with all of the necessary materials which you anticipate as being required in 1947, at a fixed price per ton. You enclose a copy of the proposal which you state in no way obliga

OPINION 47-63 February 27, 1947 (OPINION) COUNTIES RE: States Attorney - No Fee for Advice to Township Supervisors This is in reply to your letter of February 24, in which you state that the township board is getting ready to submit to a vote of the people the question of issuing bonds to raise money for graveling the highways. You inquire whether the state's attorney is entitled to a fee for assisting the board in drawing up the necessary papers. Section 11-1601, of the 1943 Revised Code, prescribes the duties of the state's attorney, providing, among other things, that he sh

OPINION 47-233 February 19, 1947 (OPINION) TAXATION RE: Tax Title Land Sold by Counties - When May Deed Be Transferred by County Auditor Your letter of February 13, 1947, addressed to the attorney general, has been received and contents noted. You present the following questions: "If the property was purchased or repurchased under preference right, should the deed be transferred before payment of delinquent taxes and taxes for years for which the property was not listed for taxation? "If delinquent taxes and taxes for years for which property was not li

OPINION 47-51 February 15, 1947 (OPINION) CORPORATIONS RE: Foreign - Sale of Stock by - Common Carrier Excepted Under Section 10-0403 Your letter of February 13, addressed to this office, has been received, with reference to the proposed sale of stock by the Midwest Motor Express, Incorporated. You inquire whether the sale of stock by this corporation would come within any of the exemptions enumerated in section 10-0403. Under subdivision 3 of said section, any security issued or guaranteed as to principal, interest, or dividends by a corporation owning or

OPINION 47-10 February 15, 1947 (OPINION) AERONAUTICS RE: Cities Negotiating for Funds with CAA You inquire whether under section 6 of Senate Bill No. 40 cities are prohibited from negotiating with the Civil Aeronautics Administration for funds and whether they are prohibited from making application for airport development without first submitting it to the State Aeronautics Commission, or whether the provisions of section 6 of said bill would begin to operate only after the negotiations and application for funds were made and funds pursuant thereto awarded to the municipality.

OPINION 47-85 February 12, 1947 (OPINION) DRAINS RE: Cost of Cleaning and Repairing - How Apportioned You have requested the opinion of this office as to the method of apportioning the levy authorized under chapter 329 of the Session Laws of 1945 for cleaning and repairing of drains. Section 61-2142 of the 1943 Revised Code, as emended by chapter 329 of the Laws of 1945, provides that "the levy in any one year for cleaning out or repairing any drain shall not exceed a maximum of fifty cents per acre on any lands in such drain district." This same section also provides that "the

OPINION 47-52 February 8, 1947 (OPINION) CORPORATIONS RE: Foreign - Sale of Stock in State This office is in receipt of your letter of February 6, enclosing a letter received by your office from Kingman, Cross, Morley, Cant & Taylor, in Minneapolis, in which you ask for an opinion from this office on the following proposition. Where a foreign corporation has made application for license to sell its stock in this state, the stock has been approved, and such license has been granted, must such a corporation also comply with the foreign corporation act under the following circumst

OPINION 47-157 February 7, 1947 (OPINION) INTOXICATING LIQUOR RE: Stamp Tax - Credit to General Fund This will acknowledge receipt of your letter addressed to the attorney general's office under date of February 6, 1947, relative to section 5-0309 of the 1943 Revised Code. The question you ask is whether or not under the provisions of said statute it is incumbent upon the state treasurer annually on the first day of July to credit the general fund of the state with the sum of $19,637.50 from the money received from the sale of stamps representing the excise tax provided for in

OPINION 47-182 February 6, 1947 (OPINION) MOTOR VEHICLES RE: Drunken Driving - Blood Tests This will acknowledge the receipt of your letter under date of February 3, 1947, in which you say: Recently in Sargent County four persons came to their deaths due to an automobile collision where two automobiles collided. The drivers of the automobiles that were involved in the accident were placed in a hospital and were unconscious when placed in the hospital and remained in that condition for some time. The Sheriff of Sargent County requested the hospital authorities to take a blood

OPINION 47-209 January 29, 1947 (OPINION) SCHOOL DISTRICTS RE: Special School Districts - How Established Your letter of January 11 addressed to this office was received, but owing to the rush of work in connection with the Legislature we have been unable to give it our attention until now. You refer to an act of the territorial Legislature approved March 13, 1885, which created Brightwood Independent School District No. 1 consisting of 22 sections of land in Richland County. Later and in 1913 an act was passed increasing the debt limit of the district. This act, however, was

OPINION 47-60 January 27, 1947 (OPINION) COUNTIES RE: County Commissioners Must Maintain Legal Residence in District for Which Elected This is in reply to your letter of January 21, 1947, in which you say: Could a county commissioner live across the border of his respective county and still serve his full term as county commissioner. For instance, could I live in Streeter two miles from Logan County border, and serve my people as county commissioner. In fact I would be more in the middle of my county in Streeter as I am in Gackle. Gackle is located at the end of Logan Cou

OPINION 47-17 January 24, 1947 (OPINION) BANK OF NORTH DAKOTA RE: Not Authorized to Function as Trust Co. This will acknowledge the receipt of your letter of January 21, 1947, in which you submit the following question: Does the Bank of North Dakota have trust powers so that it may act as trustee in a mortgage pledging the equipment and property included in a garbage disposal system, financed under chapter 40-34 of the 1943 Revised Code?" Under date of October 7, 1944, the then attorney general, Alvin C. Strutz, in an opinion written by Assistant Attorney P. O. Sathre, at the

OPINION 47-170 January 21, 1947 (OPINION) LEGISLATION RE: Form of Bills You inquire whether or not chapter 266 of the 1945 Session Laws, amending section 46-0306 of the 1943 Revised Code, has any application to a bill or law as finally passed by the house and senate. Chapter 266 of the 1945 Session Laws contains the following language: If the bill amends a present statute, the portion thereof constituting the amendment or amendments shall be set in italic type and shall be indicated for the guidance of the printer by underscoring in the typewritten copy delivered to him. A