North Dakota Attorney General Opinions

OPINION 45-14 April 5, 1945 (OPINION) ALCOHOLIC BEVERAGES RE: Booths - Tables Your letter of March 31 addressed to the Attorney General has been received and contents noted. You state that you operate the 5-Spot and Gene's which is a combination restaurant and retail liquor store located at 205 Broadway, Fargo. You refer to Senate Bill 109 passed by the recent legislative assembly. You make inquiry regarding section 4 of this bill with reference to the word "tables", and you are wondering whether tables would include booths. Section 4 of this act provides that, "No licensee authoriz

OPINION 45-282 April 4, 1945 (OPINION) TAX DEEDS RE: Forms of to Purchasers I have before me the following proposed forms of tax deeds submitted to us by your office for examination and approval: No. 1 - Auditor's Tax Deed to Original Purchaser or Assignee No. 2 - Auditor's Tax Deed to County No. 3 - Auditor's Tax Deed to Assignee of County Certificate No. 4 - County Deed to Purchaser at November Sale No. 5 - County Deed to Purchaser at Private Sale No. 6 - County Deed to Repurchaser On the last page of No. 1 in the acknowledgment, insert "Notary Public, ______________ County, Nort

OPINION 45-212 April 2, 1945 (OPINION) MUNICIPAL BONDS RE: Retirement - General Fund Not Available We are in receipt of your letter of March 31, 1945, wherein you say that the city of Garrison has several thousand dollars in its general fund, and you desire to have information as to the procedure to follow in order to retire the outstanding bonds. Your financial situation is undoubtedly similar to the condition now found in many taxing districts throughout the state. Owing to the collection of delinquent taxes the amount of money flowing into your general fund has probably ma

OPINION 45-98 March 28, 1945 (OPINION) ELECTIONS RE: Township - One Vote Does Not Elect On the 27th day of March, 1945, you called at the office of the attorney general and requested that you be furnished the opinion of this office as to whether or not a person who wrote in his name for the office of township assessor and received one vote was thereby elected. You stated that the duly elected, qualified, and acting assessor had submitted his resignation to the township board of supervisors prior to the election and that his resignation was accepted by the board; that when not

OPINION 45-265 March 26, 1945 (OPINION) SCHOOL BUILDINGS RE: Dances - No License Required for Occasional Dance Re: Dances Held by Teachers and 4H Clubs and Y.C.L. This will acknowledge the receipt of your letter of March 24, 1945, wherein you state that the teachers or children are "putting on a dance and have billed it for Friday night, April 6th, at Deer Lake School; that Mrs. Wayne Gushawa, a teacher in the school at Buchanan, and Orvin Olson, school clerk, are putting on a public dance; and that the teacher and school clerk at Windsor are sponsoring a danc

OPINION 45-132 March 21, 1945 (OPINION) HAIL TAXES RE: Priority We are in receipt of your letter under date of March 17, 1945. It is possible that we have not correctly interpreted your letter and therefore do not comprehend the problem which you say confronts your county auditor. Under the provisions of section 11-1312 of the North Dakota Revised Code of 1943, the county auditor is required to ascertain from the books and records in his office, and the office of the county treasurer, if there are delinquent taxes or special assessments against the land described in the ins

OPINION 45-284 March 19, 1945 (OPINION) TOWNSHIP OFFICERS RE: Commencement of Terms This is in reply to your letter of March fifteenth with reference to the commencement of the term of township supervisors. You refer to section 58-0509 of the North Dakota Revised Code of 1943 which provides that, "Except when otherwise specially provided, the regular term of office of each township officer, when elected for a full term, shall commence on the first Monday of January next succeeding his election." If we consider that statute standing alone, it would appear, of course, that a township off

OPINION 45-27 March 19, 1945 (OPINION) BONDS ISSUED BUT NOT SOLD RE: Right of Issuing Body to Destroy We are in receipt of your letter under date of March 15, 1945, wherein you request the opinion of this office as to the authority of the state water conservation commission to destroy bonds which have been printed but not sold, bonds which have been paid and canceled, and bonds which have been canceled by reason of the issuance of other bonds in lieu thereof. A search of the statutes does not disclose that the legislative assembly has enacted any legislation providing for the d

OPINION 45-167 March 17, 1945 (OPINION) INSURANCE RE: Failure of Companies to File Report - Penalty This is in reply to your inquiry with reference to section 26-0705 of the North Dakota Revised Code of 1943 regarding reports to be furnished to your office by insurance companies doing business in this state. Said statute provides that, "Every insurance company doing business in this state shall transmit to the commissioner of insurance not later than the first day of March in each year a statement of its condition and business for the year ending on the preceding thirty-first

OPINION 45-289 March 14, 1945 (OPINION) TAXES RE: Liability of Property of One Spouse for Taxes of the Other You inquire in your letter of March 12 whether the wife's personal property is liable for the delinquent personal property taxes of her husband and whether the sheriff can seize any part or portion of the wife's property by way of levy, for delinquent personal property taxes due from the husband. Under section 14-0708 of the North Dakota Revised Code of 1943, the separate property of the husband is not liable for the debts of the wife and the separate property of the wife is not

OPINION 45-292 March 10, 1945 (OPINION) U.S. SENATOR RE: Power of Governor to Appoint - Vacancies You have requested an opinion as to your right as governor of the State of North Dakota to appoint a member of the North Dakota Legislative Assembly to succeed the Honorable John Moses, deceased, as United States senator. Section 39 of the State Constitution reads as follows: no member of the legislative assembly shall, during the term for which he was elected, be appointed or elected to any civil office in this state, which shall have been created, or the emoluments of which shall have b

OPINION 45-143 March 6, 1945 (OPINION) HUSBAND AND WIFE RE: Abandonment - Situs of Offense Your letter of February addressed to the Attorney General has been referred to the undersigned for attention and reply. You enclose copy of my letter to Mr. Meldahl and you state that you feel this opinion was given without complete facts concerning the case. As I read your letter, your statement of facts is substantially the same as the facts stated in Mr. Meldahl's letter, and which I set out in my letter to him on February seventh. There is no doubt that Mr. Sidener abandoned his wif

OPINION 45-239 March 1, 1945 (OPINION) REGISTER OF DEEDS RE: Records - Removal and Destruction I acknowledge your letter of February 26, with reference to Sections 11-1814 and 35-0410 of the Revised Code of 1943. Under the authority of Section 11 1814, the register of deeds is authorized to remove and destroy all seed liens, labor liens, stallion liens, chattel mortgages, and threshing liens filed prior to January 1, 1937, in his office, which, by reason of the failure to renew the same by affidavit or otherwise, have become outlawed and no longer constitute liens upon the prop

OPINION 45-237 February 28, 1945(OPINION) PUBLIC UTILITIES RE: Transfer of Funds Re: Chapter 40-3312 of the North Dakota Revised Code of 1943 Your letter of February 24, addressed to the attorney general, has been handed to me for attention. It seems to me that section 40-3312 limits the power of the city to divert and transfer from the surplus in the municipal utilities fund and for the general benefit of the city. I am of the opinion that the city water works is a public utility and that the same

OPINION 45-237 February 28, 1945 (OPINION) PHARMACY RE: Board of - Funds - Deposited Where I acknowledge your letter of February 22 with reference to the so-called jackpot amendment of the State Constitution, now being section 186 of the Constitution, as contained in the North Dakota Revised Code of 1943. You inquire specifically whether the state board of pharmacy is under obligation to deposit its funds with the state treasurer, when the entire income of the state board of pharmacy is derived from fees charged for examinations and annual license certificates and does not inv

OPINION 45-67 February 24, 1945 (OPINION) COMMUNITY HALL RE: Not Taxable You have asked me to ascertain for you whether Lincoln Township community hall, a nonprofit association, is exempt from real estate taxes. As I understand the situation, this hall was built by the residents of Lincoln Township with funds that were contributed by them to the project. The association consists of the local residents of the township, the hall is used for municipal purposes, and no profit is derived therefrom. Section 57-0208 of the North Dakota Revised Code of 1943 reads: "All property d

OPINION 45-32 February 24, 1945 (OPINION) BOUNTIES RE: Payable When I acknowledge your letter of February 19, concerning House Bill 40, recently enacted as an emergency measure. The Secretary of State informs me that this measure was approved on February 8, 1945. Accordingly, the law is now in effect. This law amends and reenacts section 20-1301 of the North Dakota Revised Code of 1943, and therefore supersedes the same. Section 20-1301 provided for the payment of bounty between the first day of April and the first day of October of each year. It also provides that no b

OPINION 45-287 February 23, 1945 (OPINION) TAXES RE: Not Lien on Original Grant Lands Re: Tax Deed to SE 1/4 of 16-144-54 The State Land Commissioner has handed me your letter of February 21, re the above, in which you state that the county took tax deed in 1940 for the taxes from 1929 to 1939 inclusive. This land was original grant school land and was sold to Martha T. Cooley, of Hope, North Dakota, under contract for deed dated March 8, 1916. This contract was canceled by resolution of the board on December 30, 1938, for failure to make payments. This land was resold at public s

OPINION 45-223 February 23, 1945 (OPINION) OFFICES RE: Incompatibility This will acknowledge your letter of February 19, enclosing a copy of two motions passed by the county commissioners of Ward County appointing E.G. Pierson, one of their number, as Ward County veterans' service officer as provided by chapter 30 of the 1944 Special Session Laws. You further advise that Mr. Pierson accepted the appointment, and has been and now is serving as a part-time county veterans' service officer of Ward County. Chapter 30 of the 1944 Special Session Laws authorized the board of count

OPINION 45-105 February 22, 1945 (OPINION) GASOLINE TAXES RE: Budget - Deducted Your letter of recent date addressed to the Attorney General has been received and contents noted. Owing to the rush and the demands made upon this office by the Legislature now in session, we have been unable to reply to your letter sooner, but trust that the delay has not in any way caused you a great deal of inconvenience. The substance of your inquiry is whether or not the monies your county receives from gasoline tax and motor vehicle registration fees are to be taken into consideration in pre

OPINION 45-180 February 19, 1945 (OPINION) LIEUTENANT GOVERNOR RE: May Not Cast Deciding Vote on Legislative Bills This is in reply to your inquiry as to whether or not the lieutenant governor may vote on the passage of a bill in case the vote in the senate is equally divided. 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." Section 65 of the state constitution provides that: "No bill shall become a law except by a vote of a majority of all the members-elect in

OPINION 45-183 February 17, 1945 (OPINION) LEGISLATIVE EXPENSES RE: Bill Providing for Same This is in reply to your request for an opinion from this office as to the constitutionality of House Bill No. 84, which is an act for allowance of expenses of members of the legislative assembly and making an appropriation therefor. House Bill No. 84 provides that, "Each member of the legislative assembly of the State of North Dakota shall be entitled to, and shall receive the sum of three hundred dollars as reimbursement for his living expenses for each legislative session including th

OPINION 45-240 February 10, 1945 (OPINION) RECORDS RE: Medical - May be Inspected by Whom This is in reply to your inquiry relative to the following situation: A representative from the federal department of justice has asked your office for certain information in this situation. The federal department of justice has a warrant for the apprehension of several parties charged with bank robbery. it is thought that one of the parties involved had consulted a physician in this state, presumably in connection with a certain malady, which has been reported to your office. In ord

OPINION 45-72 February 5, 1945 (OPINION) CORPORATION FARMING I acknowledge your letter of January 27, in which you ask whether the so-called "Corporation Farming Law" permits you corporation to rent the surface of coal land owned by your corporation for farming purposes. I take it that the land you refer to is held and owned by your company primarily for the purpose of mining the coal imbedded therein. I also take it that that is the primary object you have in mind with reference to this land. I also assume that you mine the coal by stripping the surface of the land. If tha

OPINION 45-306 February 5, 1945 (OPINION) VETERANS RE: Appointments During Their Absence While in the Armed Forced I understand the K.C. Lauster is now the acting director of the division of sanitary engineering in the state department of health. I further understand that he has asked to be designated as the director of the division of sanitary engineering. I also understand that Major Lloyd Clark, now serving in the United States Army, was the director of the division of sanitary engineering at the time he entered the United States army. You want to know whether, under the circumsta

OPINION 45-71 January 31, 1945 (OPINION) COUNTY COMMISSIONERS RE: Per Diem Your letter of January 26 addressed to the Attorney General relative to the above entitled matter has been received and contents of same have been noted. You call attention to section 11-1117 of the North Dakota Revised Code of 1943, which provides that each commissioner appointed to supervise, etc., the building and repairing of roads, bridges or other property shall receive as compensation for his services the sum of five dollars per day; while section 11-1010, subdivision 3, of the North Dakota Revis

OPINION 45-266 January 31, 1945(OPINION) SEARCH WARRANTS RE: Right to Search Without In your letter of January 23 you submitted the question of whether or not a game warden has the authority to search a locker plant for the purpose of ascertaining whether there exists any unlawful possession of games birds by the lessees of the lockers. Section 18 of the Constitution of our state reads: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, su

OPINION 45-320 January 30, 1945 (OPINION) WELFARE RE: Old Age Assistance - Amount of Your letter of January 24 addressed to the attorney general has been received and contents of same noted. You call attention to that portion of chapter 257 of the Session Laws of 1939 which was incorporated in section 50-0713 of the North Dakota Revised Code of 1943. The language as it appears in said chapter 257 is as follows: The amount of assistance shall be sufficient when added to all other income of the recipient to provide such person with a reasonable subsistence compatible with dec

OPINION 45-103 January 30, 1945 (OPINION) FINES AND PENALTIES RE: Paid Without Protest Under Judgment - Not Recoverable I acknowledge your letter of January 19, in which you refer to the case of the State of North Dakota v. Victor F. Johnson, defendant. In view of the decision rendered in that case, you ask whether the fines imposed in cases involving the violation of the speed limit set by the proclamation of the Governor, that is, driving a motor vehicle in excess of thirty-five miles, but less than fifty miles, could be refunded. That raises the question whether a fine impo

OPINION 45-163 January 25, 1945 (OPINION) INTOXICATING LIQUOR RE: Power of Cities to Regulate or Prohibit I acknowledge your letter of January 18, in which you submit a question involving the legality of an ordinance adopted by the city of Washburn, the pertinent part of which reads as follows: Sec. 1. After the adoption of this ordinance, it shall be unlawful to sell, offer for sale, give away, barter, or consume alcoholic beverages in any place where is sold or offered for sale any commodity other than tobacco, tobacco products, and soft drinks." The question you submit is

OPINION 45-288 January 24, 1945(OPINION) TEACHERS' RETIREMENT RE: Chapter 15-39 - Teachers' Retirement Fund Before anyone is entitled to participate in the Teachers' Retirement Fund, they must have completed twenty-five years teaching, eighteen of which years must have been in the schools of North Dakota, and the five last years must have been in the schools of North Dakota. Further, before anyone is entitled to participate in the fund, they must have been paying into the fund for twenty-five years, or if they have not been a member of the fund for that length of time, they must pay into

OPINION 45-208 January 19, 1945 (OPINION) MINERALS RE: Coal - Taxability Yesterday you presented the question as to whether or not any county in the state could impose a tax upon coal mined within its borders. Section 174, 175 and 176 of the Constitution of the State of North Dakota deal with revenue and taxation. Section 175 of the North Dakota Constitution says; No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same, to which only it shall be applied." It is entirely clear that in order to tax coal, you w

OPINION 45-219 January 17, 1945 (OPINION) OFFICE RE: Treasurer and Sheriff - Limited to Two Terms I understand that you were elected treasurer of McIntosh County, November 7, 1944. I also understand that the present treasurer was elected county auditor. The county auditor will take office, according to the statute, about a month before you take over your office. What you want to know now is whether or not you can serve, if appointed by the county commissioners, the unexpired term of the present treasurer, should he resign as treasurer and qualify as county auditor at the

OPINION 45-210 January 17, 1945 (OPINION) MEDICAL EXAMINERS RE: Funds - Use of I received your letter of January 11, with reference to the surplus funds of the State Medical Association and the funds of the State Board of Medical Examiners. If I have the facts correctly, the State Medical Association is purely a voluntary association. The State Board of Medical Examiners is provided for by law, section 43-1703 of the 1943 Revised Code. Section 43-1715 of the 1943 Revised Code provides: "All moneys and fees collected or received by the board under the provisions of this chapt

OPINION 45-134 January 12, 1945 (OPINION) HEALTH RE: District Board - Rules and Regulations This will acknowledge your letter of January 9, concerning the right of a district board of health to adopt rules and regulations involving its work. I note from your letter that a district board of health unit exists in Burke, Ward and McLean Counties. I understand that it is the desire of this health unit to adopt rules and regulations for the purpose of preparing certain standards of sanitation and of safety in restaurants, beer parlors, soda fountains, dairies and pasteurization p

OPINION 45-285 January 10, 1945 (OPINION) TAX DEED PROCEEDING RE: Form of Deed to County Your letter of January 4 addressed to the attorney general has been received and contents of same have been noted. You refer to chapter 235 of the Session Laws of 1939, which is an amendment of section 2202 of the Supplement to the Compiled Laws, dealing with the issuance of deeds to the county in tax deed proceedings, and which provides that the county auditor shall issue a tax deed to the county in the same manner as to individual persons. You further call attention to chapter 286 of the Session

OPINION 45-100 January 9, 1945 (OPINION) EDUCATION RE: Board of Higher - Vocational Director Your letter of January 9 addressed to the Attorney General has been received and contents noted. You state that since July 6, 1943, when a new act of Congress became law, Vocational Rehabilitation in North Dakota has been greatly expanded with the aid of Federal funds channeled through the Federal Office of Vocational Rehabilitation. However, one of the conditions imposed by the Federal Office of Vocational Rehabilitation is that the State Director for Rehabilitation shall devote all

OPINION 44-318 October 7, 1944 (OPINION) WATER CONSERVATION COMMISSION RE: Authority to Issue Bonds Your letter of October 6 addressed to the attorney general has been received and referred to the undersigned for attention and reply. You state that the state water conservation commission has under consideration the issuance of bonds for the purpose of retiring or refunding two outstanding bond issues and also to obtain sufficient funds with which to repay certain loans that have been made to the commission in connection with the construction of certain irrigation works and facilities.

OPINION 44-28 June 23, 1944(OPINION) BANKS RE: Inactive Accounts Your letter of June 21 addressed to the attorney general has been received and referred to the undersigned for attention and reply. You inquire whether a bank may eliminate a deposit account in its individual ledger through the means of service charges where the account is otherwise inactive. You further inquire whether there is a law in respect to the proper disposition of funds deposited in a bank and where the depositors have apparently forsaken the funds or forgotten about them and where the bank is unable to contact

OPINION 44-53 June 16, 1944 (OPINION) ELECTORS RE: Qualifications This will acknowledge receipt of your letter of June 12, 1944 regarding the qualifications of voters. You have cited the case of a family who formerly resided in North Dakota but moved across the line over one year ago. You want the exact status of this family with respect to the right to vote and act as judge of the election in North Dakota on June twenty-seventh. In reply, I wish to state that Section 948 of the 1925 Supplement to the Compiled Laws of North Dakota for 1913 provides as follows: "Every person of th

OPINION 44-111 June 13, 1944 (OPINION) TAXATION RE: State owned property Your letter of June 7 addressed to the Attorney General, relative to the above-entitled matter, has been received and same has had our consideration. Section 176 of the Constitution, as amended, provides specifically that "The property of the United States and of the state, county, and municipal corporations and property used exclusively for schools, religious, cemetery, charitable, or other public purposes shall be exempt from taxation." Chapters 191 and 193 of the Session Laws of 1933 provide specifically that

OPINION 44-55 May 17, 1944 (OPINION) GAME AND FISH RE: Trapping This is in reply to your letter of May twelfth addressed to the Attorney General and which letter has been referred to the undersigned for attention and reply. Your ask whether or not a trapper employed and paid by the county may collect a bounty on foxes and coyotes. Your question is answered by Section 2 of Senate Bill No. 1 passed by the recent Special Session of the Legislature. It provides that: "hunters and trappers employed under the provisions of this Act shall be residents of the state of North Dakota but shall

OPINION 44-90 May 4, 1944 (OPINION) SCHOOL BOARDS RE: Contracts Your letter of May 4rd addressed to the Attorney General has been received and contents of same have been noted. The question you present is whether or not a member of the board of education of a special school district, who is engaged in the hardware and lumber business, may sell to the school district such supplies as are in daily use in light of sections 1246 and 1349 of the Compiled Laws for 1913. These sections read as follows: "Section 1246. Compensation of Members. Must not be Interested in Contracts.) Each

OPINION 44-41 April 26, 1944(OPINION) COUNTIES RE: Judgments Against Not Lien on County Lands Mr. R.B. McDonald is in the office and he advises that an abstract of title involving county land shows a judgment in favor of the state and against Sioux County on account of institutional care. This is to advise that a judgment in favor of the state and against the county is not and cannot constitute a lien against land or other property owned by the county. Chapter 133 of the 1941 Session Laws which makes provision for procuring judgments against counties for institutional care provides spe

OPINION 44-29 April 25, 1944 (OPINION) BANKS RE: Joint Deposits Right of Survivorship This is in reply to your letter relative to the right and liability of banks with reference to payments to survivors of deposits in joint accounts with right of survivorship. Joint tenancies are recognized by statute in the State of North Dakota. Section 5262 of the Compiled Laws of North Dakota for 1913 provides that: "A joint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenan

OPINION 44-100 April 25, 1944 (OPINION) SCHOOL DISTRICTS RE: Tuition Annexation Your letter of April 15 addressed to the Attorney General has been received and contents of same have been noted. With reference to tuition of pupils in the grades, I beg to advise that there is no statute on same, and the school board has the right to fix the amount of the tuition to be paid by pupils from other districts. With reference to annexation of school districts, I beg to advise that the procedure in such matters is governed by statute. If you plan on annexing another or a portion of another sc

OPINION 44-42 April 22, 1944(OPINION) COUNTY COMMISSIONERS RE: May Not Appoint Themselves Tax Collectors Your letter of April nineteenth addressed to the attorney general has been referred to the undersigned for attention and reply. You state that it has come to your attention in one county of the state that the board of county commissioners have appointed one of their own number as tax collector for a city located in the county with compensation fixed at $150.00 per month less compensation otherwise payable as a member of the county commissioners. According to the record of the board