North Dakota Attorney General Opinions

OPINION 46-54 March 22, 1946 (OPINION) CORPORATIONS RE: Stock Increase - Securities Commission This office acknowledges receipt of your letter of March 20 relative to the Midwest Motor Express, Inc., which is about to increase its capital stock from one hundred thousand dollars to three hundred thousand dollars. Your inquiry is as to whether, in the opinion of this office, this corporation must secure approval of the Securities Commission before it can sell the stock to be issued under the increased capital. You state that in the case of this corporation, no public offering wi

OPINION 46-259 March 21, 1946 (OPINION) SCHOOL DISTRICTS RE: Teacherages This is in reply to your inquiry over telephone in which you stated that you have no teacherage and no house is available as a residence for your superintendent. In order, therefore, to retain his services, which are very satisfactory, it would be necessary for your district to provide him with a residence. There is at this time a residence for sale which your district may purchase, but such purchase must be made within a short time otherwise the residence will be sold to someone else. Section 15-2607

OPINION 46-95 March 20, 1946 (OPINION) ELECTIONS RE: Precinct Committeemen May Not Act as Election Officers This will acknowledge the receipt of your letter of March 16, 1946, in which you inquire whether or not a candidate for precinct committeeman is qualified to act as clerk or judge of an election board. Section 16-1001 of the 1943 Revised Code reads as follows: "The judges of election, together with the inspector or elections, shall constitute the board of elections. No person shall be a member of the board of elections who: 1. Has anything of value bet or wagered on

OPINION 46-301 March 20, 1946 (OPINION) VETERANS RE: Preference for Employment This office is in receipt of your letter of March 11 in which you propound the following questions: 1. One part of the statute provides that State employees who served in the armed forces are entitled to pay during the first thirty days of a military leave of absence. Is this provision retroactive insofar as those who enlisted or volunteered prior to the passage of the act is concerned or would it be applicable only in the instances where the person volunteered or enlisted following the passage

OPINION 46-28 March 18, 1946 (OPINION) BANKS AND BANKING RE: Sales of Stock This is in reply to your letter of February 25 addressed to the office of Attorney General, with reference to the propriety of certain stipulations proposed as part of subscription to stock and contents of same in stock certificates and in the by-laws of a proposed banking association. The proposed stipulations are stated in your letter, and are as follows: It being one of the purposes of this corporation to provide proper banking facilities for the community where it is located, which is best accompl

OPINION 46-218 March 16, 1946 (OPINION) OFFICES RE: Compatibilities Mr. F. L. Monroe has requested the attorney general to give his opinion on the following questions: 1. Is a person eligible for election to the office of mayor of a city if he is not owner of property therein? 2. May the same person hold the office of mayor of a city and also be a member of the school board of the school district embracing the same territory as that of the city? In answer to your first question, I beg to advise you that any person who is a qualified voter in a city is eligible for election

OPINION 46-44 March 15, 1946 (OPINION) CITIES RE: Power of Commission to Appoint Attorneys to Appear for Litigants in Private Matters This office is in receipt of your request for an opinion upon the following question: "Is it legal for the Bismarck City Commission to appoint an assistant city attorney to represent the city's interest in rents, attempted evictions and allied matters?" We have a letter from Mr. Kenneth W. Simmons, Chairman of the Rent Control Committee, appointed by the Bismarck City Commission, asking for an opinion on practically the same q

OPINION 46-53 March 14, 1946 (OPINION) CITY OFFICERS RE: May Not Hold Liquor Licenses This will acknowledge the receipt of your letter of March 11, 1946, in which you inquire whether or not a liquor dealer can hold the office of mayor or councilman on the governing board of a city. The statutes do not specifically bar a liquor dealer or beer tavern keeper from holding the office of mayor or councilman, but because of conflicting interests it is my opinion that anyone engaged in business which requires a city license cannot hold such office. Holding the office of mayor or counci

OPINION 46-30 March 13, 1946(OPINION) BANK OF NORTH DAKOTA RE: Exempt from Documentary Tax I have reviewed the memorandum brief and opinion prepared by Robert A. Birdzell, special assistant attorney general, attached hereto, in which he holds that the bank is not required to affix documentary revenue stamps on deeds, bonds, and other documents issued or transferred by the bank. It is pointed out in Mr. Birdzell's memorandum that section 1808, Title 26, U.S.C., provides: There shall not be taxed under th

OPINION 46-216 March 4, 1946 (OPINION) OFFICE RE: Public Power to Discontinue This is in reply to your letter of March 1 addressed to the Attorney General. You state the village of Nome voted at the annual election had in 1945 to adopt the system of electing the trustees from the village at large rather than from districts. The trustees were elected at the 1945 election to serve for a period of two years as provided by law. The question now arises as to whether or not the trustees who have an unexpired term of one year should be voted on or elected to serve a term of two yea

OPINION 46-278 March 2, 1946 (OPINION) TEACHERS RETIREMENT FUND RE: Teaching in Schools Out of State - Private Schools This will acknowledge your letter of February 26, 1946, enclosing a copy of a letter written to Miss Lauga Geir apparently after she had sent a copy to you of a letter written to her by me on February 20, 1946, with reference to her right to participate in the teachers retirement fund. Lauga Geir is an old personal friend of mine, and since it seemed to me that the statute was clear on the question propounded by her, and that she was entitled to credit for the

OPINION 46-41 February 27, 1946 (OPINION) COOPERATIVES RE: Electrification - Sales Tax - Payable When This will acknowledge your letter of February 20, 1946, in which you apparently refer to an opinion issued out of this office on January 24, 1946, concerning the application of the sales tax law to electrification cooperatives when buying materials for the building of power lines. In order that you may know the contents of this opinion fully, I enclose a copy thereof. If I understand your proposition correctly, the contracting firm that has contracted to build a transmission

OPINION 46-235 February 25, 1946 (OPINION) PRECINCT COMMITTEEMEN RE: Vacancies This office is in receipt of your letter of February 23 relative to vacancies in the office of precinct committeemen. You first inquire whether the county executive committee may declare a vacancy and appoint a successor to a precinct committeeman who is absent from the state and serving in the armed forces of his country. Section 16-1702 of the North Dakota Revised Code of 1943 provides that each political party in each voting precinct in this state shall be entitled to elect one precinct committeem

OPINION 46-52 February 19, 1946 (OPINION) COUNTY COMMISSIONERS RE: Not Entitled to Expense for Attending Meetings of Association Your letter of February 13, 1946, has been received. In this letter you inquire whether you as county commissioner of Pierce County are entitled by law to collect expenses incident to your attendance at the meeting of the county commissioners' association held in Valley City, North Dakota in January of 1946. Section 44-0803 of the North Dakota Revised Code of 1943 provides for the collection of traveling expenses of a public official of a political

OPINION 46-33 February 16, 1946 (OPINION) COUNTY COMMISSIONERS RE: When May Declare Emergency This will acknowledge your letter of February 9. I note from your letter that the question has been discussed by you, Mr. Stormon, Mr. Teigen, and Mr. L. L. Butterwick, whether the county commissioners of a county may declare an emergency and purchase road machinery and other supplies without advertising for bids, as provided by law. The county commissioners must be governed by the statutes with reference to advertising for bids for road machinery, as well as supplies needed by the c

OPINION 46-247 February 15, 1946 (OPINION) SALE OF COUNTY LANDS RE: When Appraised In answer to your letter of February 11, 1946, I beg to advise you that section 57-2810 of the Revised Code of 1943 provides: All real estate acquired by tax deed shall be appraised by the board of county commissioners at least thirty days prior to the annual sale provided by this chapter. The appraised price shall be sufficient to cover all general taxes, special assessments, hail indemnity taxes, penalties, interest, and costs, which were levied or extended against the property at the time o

OPINION 46-129 February 13, 1946 (OPINION) HIGHWAYS RE: Obstructions This office is in receipt of your letter of February 11, 1946, in which you say: This department has been experiencing considerable difficulty, especially with the advent of heavy snows, as the result of parking upon the highways. Not only is such a practice hazardous to the driving public, but it also increases the hazard and cost of snow removal. Furthermore, by parking a vehicle upon the highway, it provides an obstruction around which the snow quickly forms a drift." You request the opinion of this o

OPINION 46-38 February 11, 1946 (OPINION) COUNTY-OWNED LANDS RE: Sale-Rights of Lessees This will acknowledge the receipt of your letter dated February 8, 1946, in which you request our answers to the following questions: "1. What duties and or authority do County Commissioners have in connection with the sale of county owned land acquired by tax deed? "2. In the event a certain person has made application in the county auditor's office for and paid the appraised value in full or one fourth of such value on a certain parcel of land owned by the county thru tax deed, and anothe

OPINION 46-225 February 11, 1946 (OPINION) POWER OF ATTORNEY RE: Duration of Your letter of February 5, 1946, has been received in which you ask for how long a period of time a power of attorney is valid. Ordinarily, a power of attorney must be revoked by an instrument of the same formality and solemnity as the power of attorney itself. When the power of attorney deals with real property the revocation thereof should be recorded. In order to determine the nature of the power of attorney, it is almost necessary to examine the instrument itself. Some powers of attorney are ir

OPINION 46-277 February 7, 1946 (OPINION) TOWNSHIP RE: Property - Procedure for Sale of I am in receipt of your letter of February 2, 1946, in which you say that during the depression years Peterson Township in your county sponsored a C.W.A. project and that a club donated about two-thirds of the money required for materials, and that he township furnished the balance; that the board of supervisors have decided to sell the building thus erected. You desire to be informed as to whether or not the board may sell without first being authorized to do so by the township voters. A

OPINION 46-248 February 6, 1946 (OPINION) SALES TAX RE: Exemptions Attention: A. J. Vensel, Sales Tax Deputy This office is in receipt of your letter of February 4, 1946, in which you say: A nurses' home has recently been constructed by the Trinity Hospital at Minot. Said hospital entered into contracts with a building contractor, electric and plumbing contractors. The building contractor has agreed to pay to the State 2% sales tax on 40% of the contract price but refuses to pay 2% sales tax on the 60% of said contract for the reason that the 60% of the contract cost is

OPINION 46-109 February 5, 1946 (OPINION) HAIL TAXES RE: Delinquent - Penalties Under date of January 28, 1946, I replied to your letter of January 24, in which you requested our opinion as to the statutory penalties and interest which delinquent hail taxes bear. Mr. Owen, assistant attorney general attached to your department, has called my attention to provisions in the hail tax law, chapter 26-22 of the 1943 Revised Code, which I overlooked and which necessitate a modification of conclusions contained in my letter to you. In view of the provisions of section 26-2240 of t

OPINION 46-282 February 1, 1946 (OPINION) TEACHERS' RETIREMENT FUNDS RE: Benefits - How Calculated This office is in receipt of your letter of January 28, 1946, in which you say that the teachers insurance and retirement law provides that the minimum annuity which may be paid to a retired teacher is $350.00; that a teacher is interested in knowing what she would receive if she should retire at the age of fifty. You say: "We find that computing it actuarially she would get $316.52 which is less than the minimum. The puzzle for which we need your solution is would we be all

OPINION 46-226 January 31, 1946 (OPINION) POOR RELIEF RE: Allotment From Son in Service Not Poor Relief Your letter of January 28 has been received and contents of same have been duly noted. You ask for the opinion of this office on the following state of facts: 'A' had a son in the service and has been receiving an allotment from the government during the period of service by this son. Prior to that, but within the year, this 'A' had received poor aid from another county. Now 'A' applies for poor relief from this county." The question which you present, as I gather from

OPINION 46-61 January 30, 1946 (OPINION) CITY ORDINANCES RE: Regulating Liquor Sales This will acknowledge your letter of January 24, 1946, in response to my letter of January 22. I think it would be a very good idea if the "model liquor ordinance," adopted by many cities of the state of North Dakota, was to provide for a suspension of the local liquor license as well as its revocation. I will contact Mr. Atkinson, the secretary of the League of Municipalities, to see if he deems it feasible to get the cities to amend their ordinances to provide for suspension of a local liqu

OPINION 46-297 January 30, 1946 (OPINION) VETERANS RE: Service Officer I have your letter of January 25, 1946, in which you say that as county service officer you are asked every day by some war veteran whether or not he could be legally assessed for the school poll tax and for personal property taxes, while in the service, if he did not possess any personal property other than the clothing which he had to store or discard when he enlisted or was inducted. Section 57-1523 of the North Dakota Revised Code of 1943 provides for a levy each year of a per capita tax of one dollar on

OPINION 46-39 January 24, 1946 (OPINION) COOPERATIVES RE: Rural Electrification Sales Tax This will acknowledge your recent letter of January 19, with reference to the application of the sales tax law to purchases made by rural electrification cooperatives. As I understand the situation that you have particularly in mind, it is this: The REA cooperatives are now finding it extremely difficult to contract for construction and procure the construction of their lines through contractors who are able to furnish all of the materials necessary to complete the contract, and as a resul

OPINION 46-288 January 23, 1946 (OPINION) TEACHERS' RETIREMENT FUND RE: Payments Re: Teachers' Retirement Fund You requested an opinion of this office as to whether or not a certain teacher is entitled to participate in the Teachers' Retirement Fund or not. The facts with reference to this teacher, as I understand it, as as follows: She taught twelve years in Minnesota, then came to North Dakota and taught here continuously eighteen years, the eighteen years ending in June 1944. She automatically joined the fund when she came to the state and has made all the necessary

OPINION 46-124 January 22, 1946 (OPINION) HIGHWAYS RE: Trucks-License For At our conference of the other day, we discussed the interpretation of subsections 3 and 4 of section 39-0453 of the North Dakota Revised Code of 1943, as amended by chapter 247 of the 1945 Session Laws, under the following factual situation: The Dakota Power Company owns and operates a truck or trucks used to transport tools, equipment, and material in the performance of the lawful occupation of the company, but incidently, once in a while, uses the same truck to transport merchandise within the city, or

OPINION 46-154 January 19, 1946 (OPINION) INTOXICATING LIQUOR RE: Separation From Other Business Establishments This will acknowledge your letter of January 12, 1946, advising that on January 7, 1946, the city council passed and enacted Ordinance No. 8 which amended and reenacted the old ordinance covering the opening and closing hours for the sale of beer, alcohol, and alcoholic beverages. The new ordinance fixes the closing hours from 11 o'clock p.m. to 8 o'clock a.m., on week days, and from 11 o'clock p.m. on Saturday to 8 o'clock a.m., on the following Monday morning. I

OPINION 46-92 January 18, 1946 (OPINION) ELECTORS RE: Registration - Not Required for Special Election Your letter of January 16 addressed to the Attorney General has been received and contents noted. You inquire whether or not it will be necessary for voters to regular for the special election to be held in June, 1946. Section 16-0201 of the North Dakota Revised Code of 1943 provides that all cities and villages containing fifteen hundred or more inhabitants according to the last state or federal census are required to register the voters. Section 16-0202 provides that the bo

OPINION 46-104 January 18, 1946 (OPINION) GAME AND FISH RE: Trapping - Sale of Hides This will acknowledge the receipt of your letter of January 16, 1946, in which you say that a question has been submitted to you by one of your trapper constituents as to whether or not hides of predatory animals may be sold after the bounty has been paid. You say that, "he was quite insistent that this office had given an opinion some time ago holding that after a bounty has once been paid the hides cannot be sold." I cannot find that this office has at any time given an opinion to the effe

OPINION 46-42 January 17, 1946 (OPINION) CHATTEL MORTGAGES RE: Discharge of - Removal From File This is in reply to your recent letter relative to satisfaction and release of chattel mortgages. You inquire whether or not a chattel mortgage that has been paid and satisfied may be returned to the mortgagor. Section 35-0412 of the North Dakota Revised Code of 1943 provides that the register of deeds must keep mortgages of personal property on file and must not permit them or any of them to be removed from his office until canceled. It provides further that every mortgage of per

OPINION 46-59 January 16, 1946 (OPINION) COUNTY COMMISSIONERS RE: Have Only Powers Granted by Law This office is in receipt of your letter under date of January 11, 1946, in which you say that an Order of the Catholic Sisters plan on erecting an Old People Home in connection with their hospital; that in order to make the home a success they plan on taking care of all persons who become charges of McHenry County; that at the present time such persons are being cared for at the county poor farm. You say that this Order of Catholic Sisters has proposed to the board of

OPINION 46-243 January 16, 1946 (OPINION) STATE TRAINING SCHOOL RE: Placement of Pupils in Private Homes This will acknowledge your letter in which you state: It is the business of the state training school to place many, many boys and girls. Some of these are placed on trial vacations. Some are placed out for short periods of work. Others are placed in homes for more or less permanent residence or for school advantages, etc. Needless to say we make a very careful study of all these situations. We have a full time field worker and a social worker and often the state wel

OPINION 46-229 January 14, 1946 (OPINION) POOL ROOMS RE: Who May Frequent This will acknowledge your letter of January 9, advising that an application for pool and billiard tables has been sent to the attorney general's office by one H.K. Trimmer, of Maddock, North Dakota. You want to know the law concerning the playing of pool, who may play, and when, and whether pool may be played on Sunday, and if so, what time. Chapter 287 of the 1945 Session Laws, amending section 53-0508, is as follows: It shall be unlawful for the owner of any pool or billiard hall or bowling alley or

OPINION 46-252 January 7, 1946 (OPINION) SHERIFFS RE: Commission - Collection of on Executions This will acknowledge your letter of January 3, with reference to the right of the sheriff to collect a commission upon collections of money made by him under an execution in his hands, without any levy having been made by him under and by virtue of the terms of such execution. It seems to me that your construction of section 11-1508 of the North Dakota Revised Code of 1943 is entirely correct. It is, therefore, the opinion of this office that the sheriff is entitled to charge and

OPINION 46-128 January 4, 1946 (OPINION) HIGHWAY COMMISSIONER RE: Signing Pay Roll This will acknowledge the receipt of your letter of January 3, 1946, in which you say that some time previous to your appointment as state highway commissioner it was the practice of the commissioner to authorize the acting head of the accounting department to sign pay roll vouchers in his absence, and that since your appointment this practice has been continued. You say that this has been done so that pay rolls for employees in outlying districts around the state would not be forced to wait lo

OPINION 45-74 December 18, 1945 (OPINION) DRAINAGE RE: Land Owners - Majority Each Owner Has - Right to Vote This will acknowledge the receipt of your letter of December 15, 1945, in which you request the interpretation of this office of section 61-2115 of the North Dakota Revised Code of 1943. You request our answers to the following questions: 1. Does 'majority of landowners' mean majority of people benefited or does it mean a majority of acres benefited? 2. When there are two or more owners of a parcel of land each holding an undivided interest, is each one entitled to

OPINION 45-302 December 18, 1945 (OPINION) VETERANS RE: Free Recording Discharge Papers This will acknowledge your letter of December 13, in which you state that the attorney general of the state of Illinois has recently given an opinion in connection with the recording of honorable discharge certificates from the Army of the United States, which in effect holds: 1) That free recording of honorable discharges is available to all veterans in the county recorder's office in all of the counties of the state of Illinois; 2) That all county recorders in Illi

OPINION 45-79 December 17, 1945 (OPINION) DEATH CERTIFICATES RE: Who May Issue This will acknowledge your letter of December 14, 1945, in which you advise that upon investigation of death certificates on file in your office you find that in several counties the practice has been followed by the county coroner to sign the medical certification on death certificates when there was no physician in attendance. I also note that some of the local registrars contend that in many instances coroners sign death certificates when, according to law, investigation of the death should be m

OPINION 45-290 December 17, 1945 (OPINION) UNIVERSITY RE: Medical Center Your letter of December 15 addressed to the Attorney General has been received and contents of same have been noted. You refer to chapter 172 of the Session Laws of 1945 which creates the State Medical Center, and you state that at the initial meeting of the council created by said act, officers were elected, including treasurer. You state further there was some discussion as to the rights and duties of the office of treasurer, and whether in fact a treasurer should be elected. You also state that the advisory c

OPINION 45-176 December 17, 1945 (OPINION) LABOR UNIONS RE: May Not Prescribe Conditions of Employment to Municipalities Your letter of December 5 addressed to the attorney general has been received and same has had our consideration. The question you present is whether the employees of the park district of the city of Minot may, under the law, require such district to employ only union men or require anyone employed by the district to join the union. We have no record of any opinion given by Mr. Strutz on this matter, but he advised us that he did give an opinion to the effect

OPINION 45-119 December 6, 1945 (OPINION) Hail Insurance RE: Surplus Funds - Investments This office is in receipt of your letter of December 5 relative to investment of surplus funds in the department of hail insurance, the fire and tornado fund, and the state bonding fund. You state that there are surpluses in these funds which your department deems advisable to invest in accordance with the provisions of section 26-2407 of the North Dakota Revised Code of 1943; and you inquire whether your department would be authorized to invest such funds in insured building and loan certi

OPINION 45-253 December 3, 1945 (OPINION) SEARCH WARRANTS RE: Validity Re: Search Warrants I received your letter of November 26 relative to the sufficiency of proceedings had in connection with the issuance of search warrants on the twenty-first of November, 1945 by Henry S. Grinde, Justice of the Peace. You inquire whether a justice of the peace has a right to issue search warrants without the approval of the state's attorney. Ordinarily the justice of the peace should consult the state's attorney before issuing search warrants. Procedure under search warrants is a seri

OPINION 45-176 November 26, 1945 (OPINION) LAND DEPARTMENT RE: Grantees Where Purchaser is Dead Re: Albert E. Krick Estate - Contracts Nos. 235, 236, 241, 212, and 209 The title clerk in the State Land Department has called my attention to your letter of November 19, in the above matter, in which you request that, the contracts having been paid in full, the patents issue to Annie Krick, as administratrix. It is my opinion that this cannot legally be done and this has been my uniform holding over a period of nine years during which time we have had many cases where the contrac

OPINION 45-246 November 24, 1945 (OPINION) SCHOOLS RE: Special Reserve Fund - Use of This will acknowledge the receipt of your letter of November 20, 1945, in which you say that Independent School District No. 1 of Grand Forks has a balance of $60,000.00 in the reserve fund authorized under the provisions of chapter 57-19 of the North Dakota Revised Code of 1943; that the moneys in said fund were transferred from the general fund of the district and were not accumulated through a levy of three mills authorized under section 57-1904. You say further: "The superintendent conten