North Dakota Attorney General Opinions

OPINION 45-275 July 9, 1945 (OPINION) TAX DEED PROCEEDINGS RE: County Owned Lands - Redemption - Repurchase Re: Stutzman v. Smith , 18 N.W.2nd 639 This will acknowledge the receipt of your letter of July 6, 1945. You will find the case of Stutzman v. Smith in the N.W. Reporter Advance Sheet under date of June 13, 1945. Evidently no petition for rehearing was filed for there is no mention of such petition in the opinion. Reference to your letter requesting our interpretation of the court's decision, in answer to which I mailed you a typewritten copy thereof, discloses that the former

OPINION 45-13 July 7, 1945 (OPINION) AIRPORTS RE: Rights of Cities and Villages to Purchase Land for This office is in receipt of your letter under date of July 3, 1945. You say in your letter that your city council is considering buying from the State School Land Department a tract of land containing approximately 150 acres at fifteen dollars per acre for use as an airfield. You desire to know whether or not this land may be purchased by your city without being authorized to do so by the vote of the electors. You further say that some time ago your city bought a small tract

OPINION 45-90 July 5, 1945 (OPINION) EDUCATION RE: Board of Higher - Powers Your letter of July 3, addressed to this office, has been received and contents noted. You state that the State Auditor has raised the question as to her right to issue warrants out of the 1945-47 appropriation in payment of that portion of salaries for instructors at the summer school session during the month of June, 1945. Summer school sessions have been part of the educational work of the state institutions practically since their establishment. Until 1941, students at the so-called "summer session

OPINION 45-258 July 5, 1945 (OPINION) SCHOOL DISTRICTS RE: Teacherages - Power of Board to Buy Your letter of July 3, addressed to the Attorney General, has been received and contents noted. You ask for our opinion as to whether or not under the provisions of section 15-2607 of the North Dakota Revised Code of 1943 a school district may purchase a building suitable for a teacherage at a cost of $2100. The statute referred to provides that "The school board in any district may build and equip a dwelling for the use of teachers in such district. Such building shall be known as

OPINION 45-73 June 25, 1945 (OPINION) CERTIFICATES OF INDEBTEDNESS RE: Basis For This office is in receipt of your letter dated June 21 asking for our interpretation of section 21 0202 of the North Dakota Revised Code of 1943 with reference to the basis for issuing certificates of indebtedness by counties, cities, villages, townships, school districts, park districts and irrigation districts. Your specific question is as to whether the current year, as used in said section, contemplates the assessed valuation of 1945 or 1944. The statute provides that the aggregate amount of bo

OPINION 45-264 June 25, 1945 (OPINION) SPECIAL TRUST FUND RE: Sales Tax Your letter of June 22 addressed to the Attorney General has been received and contents of same have been noted. You inquire relative to the allocation of the revenues of the sales tax fund. Section 57-3932 of the North Dakota Revised Code of 1943 provides that all moneys collected and received thereunder shall be paid into the state treasury and shall be credited by the state treasurer into a special fund to be known as the "Retail Sales Tax Fund." Out of this fund the state treasurer first shall provi

OPINION 45-33 June 22, 1945 (OPINION) BIRTH AND DEATH CERTIFICATES RE: Stillborn Children I acknowledge your letter of June 19, in which you call my attention to the amendment of section 23 0216 by the enactment of chapter 197 of the 1945 Session Laws. Under section 23-0216 of the Revised Code of 1943, both a birth and a death certificate had to be filed for a stillborn child. After July 1, under the terms of chapter 197 of the 1945 Session Laws, only one certificate will be needed, in accordance with that statute. Under the terms of section 23-0211, setting the fees of loc

OPINION 45-68 June 20, 1945(OPINION) CITIES RE: Publishing Proceedings of Council Mandatory This will acknowledge your letter of June 16, in which you ask for an opinion concerning the requirement of a city under a mayor-council form of government to publish its proceedings. Section 40-0812 of the North Dakota Revised Code of 1943 provides: "The City council shall publish a complete record of all its proceedings in ts official newspaper." This statute is mandatory. The city council is required by it to publish its official proceedings. No discretion is left to the officers of the city

OPINION 45-233 June 19, 1945 (OPINION) POULTRY RE: North Dakota Improvement Board - Travelling Expenses Re: North Dakota Poultry Improvement Board Activities - Sections 4-1303 to 4-1314 Rev. Code of 1943 Your letter of June 19, asking a number of questions regarding your board, at hand. I will try to answer them in the order in which they are asked. 1. "Are board members entitled to their actual expenses in addition to $5.00 per day remuneration?" In my opinion, the answer to this question must be no. You will note that section 4-1307, after providing for a $5.00 per d

OPINION 45-31 June 16, 1945 (OPINION) BARBER SHOPS RE: Inspection - Fee This will acknowledge your letter of June 12, in which you enclose a notice from the North Dakota Barber Board, which cites rule 17, concerning shop license, and which rule reads as follows: "No barber shop shall be open for business of barbering until a certificate of approval is given by the State Board of Barber Examiners. Any person or persons proposing to open a new barber shop in a new location or to change locations shall first make application for an inspection and approval of the premises, conta

OPINION 45-141 June 16, 1945 (OPINION) HIGHWAY DEPARTMENT RE: Emergency Powers Pursuant to your request, I am herewith submitting answers to your four questions: 1. Does a landowner, after sale of some of his land to the highway department or the state for highway purposes, have to pay taxes on that portion of the land sold and deeded for highway purposes? In my opinion, it is elementary that no one can be taxed for property which he does not own. Therefore, if a farmer, or any landowner, sells a right-of-way for a highway along, across, or through his farm, such owner is

OPINION 45-239 June 15, 1945 (OPINION) ROAD POLL TAX RE: Repealed Re: Road Poll Tax This office is in receipt of your letter of June 12, 1945, wherein you say that the question of poll tax was brought up at your township meeting and that you desire to be informed as to who pays poll tax and what persons, if any, are liable for such tax. The tax to which you probably refer is the road poll tax which was prescribed by section 2006 of the Compiled Laws of 1913. This section provides: Each male inhabitant above twenty-one years and under fifty years of age, excepting paupers,

OPINION 45-17 June 15, 1945 (OPINION) ALCOHOLIC BEVERAGES RE: Sales - Number of Licenses This office is in receipt of your letter of June 13, 1945. You say that there are two liquor stores in your village and that another party is applying for a license to open and operate a third liquor store. You further say that no ordinance has been enacted limiting the number of such stores, but that the trustees of your village feel that two such stores are sufficient. You desire to be informed whether the board of trustees of your village may refuse to license more liquor stores in

OPINION 45-66 June 14, 1945 (OPINION) CITY RE: Lots - Special Assessment This is in reply to your letter of June 7 which you ask the opinion of this office as to whether city lots - for instance, in the city of Bismarck - sold by the county after March thirty-first are subject to special assessments for improvement purposes or whether the provisions of section 57-2818, which provides that land sold by the county after March thirty-first shall not be assessed and taxed for the current year, includes special assessments. We do not believed that special assessments are included in

OPINION 45-18 June 13, 1945 (OPINION) ALCOHOLIC BEVERAGES RE: LICENSES - Maximum Fees This will acknowledge the receipt of your letter dated June 11, 1945, wherein you request the opinion of this office in answer to the following questions: 1. Is it compulsory for the governing body of a city or village to issue a liquor license to any applicant? 2. What is the limit of a fee for a city liquor license? In answer to your first question, it is my opinion that it is not compulsory for the governing body of a city or village to issue a liquor license to anyone who applies for

OPINION 45-166 June 13, 1945 (OPINION) IMPEACHMENT RE: Lieutenant Governor - Per Diem This is in reply to your request for the opinion of this office as to whether or not the lieutenant governor, while presiding at the impeachment trial of Oscar E. Erickson, is entitled to and may receive the expenses and per diem provided for in Senate Bill 211 of the 1945 legislative session, the same being Chapter 262 of the Session Laws of 1945. The title of the act in question is as follows: "COURT OF IMPEACHMENT, COMPENSATION An Act amending and re-enacting section 44-0926 of the North

OPINION 45-81 June 12, 1945 (OPINION) DRAINAGE DISTRICTS RE: Organization of This office is in receipt of your letter under date of May 31, 1945. I have delayed in answering it on account of absence from the city after receipt of the letter. You say in your letter that Messrs. Croal, Spalding, Covert, and Sandback from Cass County appeared before the state water conservation commission at its last meeting and requested permission to advance moneys for the organization of drainage districts. I assume that such moneys would be advanced from the funds made available by the com

OPINION 45-67 June 12, 1945 (OPINION) COUNTY AUDITOR RE: Refunds and Abatements In your letter of June 6, you state that Mr. Albert T. Johnson, the county auditor of Dickey County, has raised the question as to whether or not county auditors are required to report refunds and abatements to the state auditor. Section 2165 of the 1925 Supplement to the 1913 Compiled Laws provided for abatement of taxes. This statute contains the following language: "The county auditor shall make out a certified statement of the amount of state taxes to abated which statement shall be forwarde

OPINION 45-271 June 11, 1945 (OPINION) SCHOOL DISTRICTS RE: Common - Elections - Candidates Re: Solen School Election Your letter of June 9 relative to the above entitled matter has been received and contents noted. The question you present is as to the validity of the election of two members to the Solen School District No. 3. It appears that two candidates who sought election as members of the school board filed their names and the names of the offices with the school clerk at least five days prior to the election. For some reason the clerk failed to have their names printed on

OPINION 45-164 June 11, 1945 (OPINION) IMPEACHMENT RE: Duty of State Auditor to Issue Warrants In your letter of June 8, 1945 you requested an opinion from this office relative to your right to issue warrants for the expenses now being incurred in the impeachment trial against the $75,000.00 appropriation passed by the 1945 session of the legislative assembly, being Senate Bill 212. Under House Concurrent Resolution EE it was resolved that the Senate recess until the twenty-second day of May, 1945 at one o'clock when the Senate was to reconvene for the purpose of conducting t

OPINION 45-21 June 7, 1945 (OPINION) APPROPRIATIONS RE: Sec. 54-2710 Applies Only to Maintenance and Not to Specific Projects Your letter of recent date with reference to appropriations made by the 1945 legislature for the experiment stations at Dickinson and Minot has been duly received and contents noted. House Bill 203, which is Chapter 44 of the 1945 Session Laws, makes provision for the establishment of an addition to the Dickinson Agricultural Experiment Station to be selected by the State Board of Higher Education under the supervision and control of the North Dakota Agr

OPINION 45-211 June 5, 1945 (OPINION) MUNICIPAL BONDS RE: When Callable This will acknowledge the receipt of your letter under date of June 1, 1945, wherein you say that Hettinger special school district no. 13 has $25,000.00 in refunding bonds outstanding, all callable on December 1, 1945; that the interest rate on these bonds is 3 1/2 percent per annum; that your school board has been informed that they can refinance this bonded indebtedness at 1 3/4 percent. You desire to know whether or not the school district may issue new bonds in lieu of the outstanding bonds and thus

OPINION 45-23 June 4, 1945 (OPINION) ATHLETIC RE: Commission - Waiver by Parent or Guardian This will acknowledge your letter of May 28, in which you enclose a form of waiver that has been used by the State School of Science in connection with its Golden Gloves Tournament. I believe the first part of the waiver which reads, "I hereby for myself, my heirs, executors and administrators waive and release any and all rights and claims for damages I may have against all other entrants and against The State School of Science, its sub-committees, agents, representatives and assigns fo

OPINION 45-142 June 1, 1945 (OPINION) HIGHWAYS RE: Prescription Re: Establishment of Highway by Prescription Your letter of May 31, regarding the question as to whether or not a road continuously traveled in your county for thirty-five years has become a highway by prescription, or not, has been received. It is my opinion that the question really involved is whether or not the travel for the last twenty years has or has not been in substantially the same course. If the trail wandered widely from year to year, it might be held not to have been established as a highway by p

OPINION 45-171 May 26, 1945 (OPINION) INSURANCE RE: Casualty - On State Cars This office is in receipt of your letter of May 24, 1945. You request our opinion as to whether or not under the provisions of chapter 214 of the 1945 Session Laws (H.B. 79) casualty insurance may be carried, and paid for, by the state or any department or political subdivision on automobiles owned by employees thereof, or whether this Act applies only to automobiles owned by the state or by political subdivisions of the state. Chapter 214 reads as follows: From and after July 1, 1945, the State of N

OPINION 45-160 May 26, 1945 (OPINION) INTOXICATING LIQUOR RE: Sale to Indians - Minors You have asked in your letter of May 22, whether a half-breed Indian who receives government aid, is allowed in a beer parlor and whether he may buy beer. Under chapter 5-02 of the North Dakota Revised Code for 1943, dealing with manufacture, sale and distribution of beer, we find section 5-0210, which provides: No person shall sell beer to a minor, incompetent person, Indian as defined by federal law, or a person who is an inebriate or habitual drunkard." Under chapter 5-03, dealing with t

OPINION 45-270 May 24, 1945 (OPINION) SCHOOL DISTRICTS RE: Schoolhouses - Removal I received your letter of May 21, in which you state that about eighteen years ago an election was held in Cedar School District in Williams County, North Dakota, for the purpose of removing an existing school to another location, which location was specifically designated in the notice of election and in the ballot. Nothing was ever done by the board of directors of the school district to comply with the wishes of the voters. Then you further state that the present board of directors of this school distr

OPINION 45-208 May 22, 1945 (OPINION) MEMBERS OF U.S. ARMED FORCES RE: Domicile - Voting Place You have requested my opinion concerning the following questions: 1. May a person domiciled at Fort Lincoln, North Dakota establish a residence in the voting district where the fort is located and vote therein if he is a citizen of the United State and has resided in this state and at Fort Lincoln for the period prescribed by law? 2. Is the tangible personal property of a person stationed and residing at Fort Lincoln subject to assessment and taxation under the laws of North Dako

OPINION 45-264 May 21, 1945 (OPINION) STORAGE LOCKERS RE: No Law Governing Charges Re: 5F:6:L:MSA. I received your letter of May 18, in which you state that a question has arisen as to what charges a cold storage locker plant operator may charge for locker rentals under appropriate maximum price regulations and particularly as to what additions he may make over his base period prices. You also state that part of your question is dependent upon whether or not the locker plant operator must furnish insurance under section 60-0704 of the North Dakota Revised Code

OPINION 45-192 May 21, 1945 (OPINION) MORTGAGES RE: Discharged by District Judge This will acknowledge your letter of May 16, in which you inquire as to the fee that the clerk of the district court should require for filing and indexing an order for the discharge of a real estate mortgage granted by the district court under section 35-0313, of the North Dakota Revised Code of 1943. If the application or petition for the discharge of a real estate mortgage under this statute is in the form of an action, undoubtedly the clerk of the district court must charge the five dollar fee

OPINION 45-19 May 21, 1945 (OPINION) ALCOHOLIC BEVERAGES RE: License - Qualifications of Applicant This will acknowledge the receipt of your letter under date of May 15, wherein you request the interpretation of this office of subdivision 2 of section 3 of house bill 109, enacted by the 1945 legislative assembly, which reads as follows: "Applicant shall not have been convicted of a felony, or of keeping or maintaining a house of prostitution, or have been convicted within five (5) years of the date of his application of any violation of the laws of this state or the laws of the

OPINION 45-221 May 18, 1945 (OPINION) OFFICERS RE: May Furnish Own Bond - Same Not to be Paid for by Municipality This office has received your letter dated May 16, 1945, wherein you request an interpretation of section 26-2322 of the North Dakota Revised Code of 1943, which reads as follows: "Any person elected or appointed to office, in lieu of the bond provided for in this chapter, may furnish a bond issued by a duly authorized surety company, but no officer or board of the state or of any county, city, village, school district, or township shall pay for such bond or bonds o

OPINION 45-188 May 15, 1945 (OPINION) LANDS RE: Public Grant - Highways Mr. Neville of the state land department called at the office of the attorney general this morning and stated that McLean County has built a road across state school lands, that the right-of-way for such road has not been acquired by purchase or by the exercise of the power of eminent domain, ordinarily referred to as condemnation, but that the county contends that the road across said lands has been in continuous use for more than twenty years, and that consequently it has been established by prescription.

OPINION 45-221 May 14, 1945 (OPINION) OFFICIALS RE: Appointive - Bonds This will acknowledge the receipt of your letter under date of May 9th, 1945, wherein you say that Mr. Klaudt of the highway department has inquired of your office whether or not individuals whom the highway commissioner appoints as agents to issue motor-vehicle operator licenses may be bonded with the state bonding fund. You have requested the opinion of the attorney general in regard thereto. Section 39-0615 of the North Dakota Revised Code for 1943 provides: The commissioner shall appoint in each county

OPINION 45-107 May 14, 1945 (OPINION) GRAIN RE: When Exempt From Taxation Re: Assessment of Farmers' Grain Your letter of May 12 is at hand. You refer in your letter to Sections 57-0208 (19) and 57-0301 of the North Dakota Revised Code of 1943. It is my opinion that all grain and seed of any kind, kept or stored by the farmer who raised it, in his own bins, separate and apart from all grain raised by other farmers, no matter where the bin may actually stand, is exempt from taxation under 57-0208, subdivision 19. It is my opinion that the words "premises used for agricultu

OPINION 45-169 May 10, 1945 (OPINION) INSURANCE RE: Public Buildings - Permanent Contents Your letter of April 28 addressed to the attorney general has been received and contents noted. You state that under section 26-2401 of the North Dakota Revised Code of 1943 it appears that fire trucks are excluded from "Permanent Contents" as used in said section. You state further that fire trucks are regularly in municipal fire halls except when in actual use for extinguishing fires, and in addition to this, a large quantity of fire equipment constitutes "Permanent Contents" and are

OPINION 45-106 May 10, 1945 (OPINION) GASOLINE RE: When Exempt From Tax I have before me your recent letter in which you submit six inquiries, all with reference to exempt gasoline purchases under Section 57-4121 of the North Dakota Revised Code of 1943. Section 57-4121 provides as follows: "Motor fuel, except motor fuel used in the construction, reconstruction, or repair of state or county highways, may be sold in this state for agricultural or industrial purposes, without the payment of the motor fuel tax, by any dealer who is licensed to sell the same as pro

OPINION 45-241 May 8, 1945 (OPINION) RECORDS RE: Medical - Used as Evidence - When I acknowledge your letter of May 4, 1945, in which you ask the opinion of this office concerning three questions, to-wit: 1. What is the law concerning the ownership and use of medical records? 2. What is the law regarding the use of medical records as evidence in court? 3. How long do records have to be kept by the hospital? I will answer these questions in the same order as you ask them. As far as I have been able to determine, there is no law on our statute books concerning the owner

OPINION 45-69 May 7, 1945 (OPINION) CONDITIONAL SALES CONTRACTS RE: Not Required to be Notarized I acknowledge your letter of May 3, in which you raise the question whether a conditional sales contract to be filed in the office of the register of deeds must contain an acknowledgment of the receipt of a copy of the contract, signed by the purchaser, as is required in the case of a chattel mortgage. Section 51-0121 authorizes the reservation of right of possession or property in goods until certain conditions are fulfilled. Section 51-0710 of the 1943 Revised Code provides: "All

OPINION 45-223 May 4, 1945 (OPINION) OFFICES RE: Incompatibility This is in reply to your recent letter addressed to the attorney general with reference to the employment of a leasing agent for Burleigh County. Mr. W.G. Worner was elected county treasurer at the last election. Prior to his election he was serving as a member of the board of county commissioners, and as such was acting as leasing agent as provided by section 57-2825. The question presented is whether or not Mr. Worner, as county treasurer, may also act as county land or leasing agent and receive a salary there

OPINION 45-156 May 2, 1945 (OPINION) INTOXICATING LIQUOR RE: Bar Defined After further study and consideration of Senate Bill No. 109, and particularly section 4 thereof, we have concluded to modify the opinion issued out of this office addressed to yourself under date of April 3, 1945. Section 4 of Senate Bill No. 109 is as follows: No license authorized to sell beer or alcohol and alcoholic beverages shall operate or maintain a bar on or over which beer or alcohol and alcoholic beverages are sold, furnished or distributed in any room or rooms wherein food is served at tabl

OPINION 45-15 May 2, 1945 (OPINION) ALCOHOLIC BEVERAGES RE: Bar - What Constitutes After further study and consideration of Senate Bill 109, and particularly section 4 thereof, we have concluded to modify the opinion issued out of this office addressed to yourself under date of April 3, 1945. Section 4 of Senate Bill 109 is as follows: "No licensee authorized to sell beer and alcoholic beverages shall operate or maintain a bar on or over which beer or alcohol and alcoholic beverages are sold, furnished or distributed in any room or rooms wherein food is served at tables for

OPINION 45-294 May 1, 1945 (OPINION) USE TAX RE: Property Subject to Re: Use Tax on Property "Not Readily Obtainable in North Dakota." Chap. 241 S.L. 1939 - Chap. 57-4001-4003 R.C. 1943 You have submitted to me letters from W.S. Nott Company of April 13, and April 27, 1945, re use tax on wire rope. The correspondence does not show which North Dakota firm is involved. It simply states that one of the company's North Dakota customers has refused to pay use tax on wire rope, stating that "this is exempt due to the fact that this material is not warehoused in North Dakota." I take it t

OPINION 45-284 April 26, 1945 (OPINION) TAXABILITY OF FARM RE: Real Property Within City Limits Your letter of April twenty-sixth addressed to the Attorney General has been received and contents noted. You state that the opinions issued out of this office on April 17, 1945, to Carl Nelson of Ryder, N. Dak., seems to be in conflict with opinions issued by the former administration with reference to the taxation of farm property situated within corporate limits of villages and cities. We do not believe that there is a conflict. Each case must necessarily stand on its own state of fact

OPINION 45-70 April 25, 1945 (OPINION) COUNTY RECORDS RE: Destruction of Old Re: Destruction of Old County Records, Chapter 128, Laws of 1941. Your letter of April 24, asking whether or not the register of deeds can turn over old records, which he is authorized to destroy by the above law, to the paper salvage, or whether these records must be burned, has been received. It is the opinion of this office that the object of this law is to allow the register of deeds to destroy old records, which are taking up storage space, and the method of destruction provided by the law is mer

OPINION 45-70 April 24, 1945 (OPINION) COUNTIES RE: Election Supplies - Competitive Bids Re: Printing of Ballots Your letter of April 20, re the above matter, has come to my desk for attention. Section 16-1101 provides that general election ballots shall be provided at the expense of the county. Section 16-1102 provides that county auditors shall provide ballots and have them printed. Section 11-11126 provides among other things that when the amount to be paid during the current year for election ballots and supplies exceeds $300.00, the board of county commissioners sha

OPINION 45-133 April 23, 1945 (OPINION) HAIL TAX RE: Lien - Attaches When Re: Priority of Lien for Hail Tax for 1928 on Lots 3-4 and S 1/2 NE 1/4 of 5-155-93--Mountrail County. Your letter of April twenty-third, re the above matter, shows that the then owners of the above land mortgaged the same to the State to secure a loan of school money in 1928, the mortgage being dated September twenty-eighth, and the same was recorded on October 2, 1928. Later, by reason of delinquency of the mortgagors, the State intended to foreclose, but, rather than have the foreclosure, the mort