North Dakota Attorney General Opinions

OPINION 44-79 April 8, 1944 (OPINION) PAROLES RE: Authority to Grant This is in reply to your recent letter submitting the following questions. I shall consider your questions in the order in which they appear: 1. Does the Superintendent of the School have authority to: (a) Discharge inmates? Refuse to discharge when request is made? (b) Parole inmates, and what authority or supervision does he have over parolees? (c) What authority to revoke parole? Under the provisions of section 2553 of the Compiled Laws as amended by chapter 142 of the Session Laws of 1937, it is th

OPINION 44-16 April 3, 1944 (OPINION) APPROPRIATION RE: Board of Higher Education I have your letter of March 27, in which you inquire whether the State Board of Higher Education has authority to increase the salary of a college president in excess of the amount appropriated by the 1943 Legislative Assembly. The appropriations for all of the schools of higher education in the state contain specific items for president's salary. That appropriation is in a definite and specific amount. Those appropriations, however, were passed in view of the existing provisions of section 283c2 of the 19

OPINION 44-102 April 3, 1944 (OPINION) SCHOOLS AND SCHOOL DISTRICTS RE: Bond issues Your letter of March 30, addressed to the Attorney General, was duly received, and as Mr. Strutz was to be out of town, he turned the letter over to me for reply. I understand from your letter that your bond issue of $16,000.00, made in 1941, was made for the purpose of funding outstanding certificates of indebtedness. The law under which these funding bonds were issued, I presume, was chapter 105 of the Laws of 1935, later amended as to the time within which bonds could be issued. This law required,

OPINION 44-23 March 31, 1944 (OPINION) APPROPRIATION RE: Highways I have your letter of March 11, making several inquiries with reference to the provisions of chapter 64 of the 1943 Session Laws. You inquire whether the three percent additional appropriation, provided for in section 2 of that chapter, is intended to cover only funds expended currently within the biennial period. You are advised that it is our opinion that the three percent additional appropriation for operating expense out of the Construction Fund covers only funds expended during the biennial period. The three

OPINION 44-88 March 30, 1944 (OPINION) SALES TAX RE: Property Subject to I have your letter of March 8, in which you inquire whether gross receipt, taken in from bowling and billiards, are subject to the two percent sales tax. Section 2 of chapter 264 of the 1943 Session Laws, which is the Sales Tax Act, provides among other things: "And a like rate of tax upon the gross receipts from all sales of tickets or admissions to places of amusement and athletic events. . . ." The section above- referred to provides for a two percent tax upon such gross receipts. A careful reading of the pr

OPINION 44-66 March 29, 1944 (OPINION) LIQUOR RE: Prohibiting Sale to Minors Answering your inquiry, with reference to the validity of an ordinance passed by a city, which would prohibit the sale of intoxicating beverages to all persons under the age of twenty-one years, you are advised that in my opinion such enforcement is a reasonable regulation of the retail sale of intoxicating beverages and valid. This office has held on many occasions that, while the various municipalities may not lower the age fixed by state law, which prohibits the sale of both beer and hard liquor to minors,

OPINION 44-51 March 27, 1944 (OPINION) ELECTIONS RE: Soldiers Votes Your letter of March 27th addressed to the Attorney General has been received and contents of same have been noted. You state that the Legislature is contemplating legislation which permits absent voters ballots to be voted overseas and mailed back to the election officials in this state. Assuming that this is done, and further assuming that such ballots would be opened for censorship purposes, could the election officials count such ballots or would it be a violation or secrecy of the ballot to permit their use? The

OPINION 44-77 March 20, 1944 (OPINION) OFFICES RE: Incompatibility I have your letter of March 8, advising that your mayor left the city to join the Navy last October, and did not resign as mayor, and you would like to know whether you can elect a mayor to take his place at the coming spring election. We have received similar requests from several other persons, raising almost identical questions. Section 51 of chapter 221 of the 1941 Session Laws provides that any officer of a municipality, who is inducted into federal service, shall when ordered by proper authority to active non-ci

OPINION 44-53 March 11, 1944(OPINION) ELECTIONS RE: Time I have your inquiry of March 10, in which you request our opinion as to whether the time for holding elections under various statutes is to be Mountain war time or Central war time. You point out that some of the cities in the eastern part of the state are operating under the old time and have not adopted the time which the Legislative Assembly fixed by statute at its last session. In my opinion, the legal time in North Dakota is the time fixed by the Legislative Assembly. Where time for holding an election is fixed by law, the tim

OPINION 44-64 March 10, 1944 (OPINION) LIQUOR DEALERS RE: Liquor Dealers I have your letter of March seventh, in which you inquire whether a liquor dealer, who holds an off and on sale license, can legally refuse to sell a customer liquor by the bottle. The holder of a liquor license cannot be compelled to sell liquor to anyone. The courts have held time and time again that there is no inherent right in a citizen to sell intoxicating liquor. If there is no inherent right to sell, then we do not believe there is any inherent right to buy liquor. The sale of intoxicating liquors is a

OPINION 44-33 March 10, 1944(OPINION) BOARD OF HIGHER EDUCATION RE: Executive Secretary - duties Your letter of March ninth addressed to the Attorney General has been received and contents of same have been noted. Your inquiry relates to Public Law 113, 78 Congress, approved July 6, 1943, and which is an amendment to House Resolution 4438, approved June 2, 1920, and is "An Act to provide for the promotion of Vocational Rehabilitation of persons disabled in industry or otherwise and their return to civil employment." The Federal Office of Vocational Rehabilitation has promulgated certain

OPINION 44-75 March 7, 1944 (OPINION) MUNICIPAL OFFICERS RE: Cannot issue Liquor Licenses to Themselves Answering your inquiry as to whether a member of the city council can legally be granted a liquor license by the state, let me say that there is no provision in the liquor or beer acts, which prohibits a members of the city council from being the holder of a liquor or beer license. Neither is there any provision which prohibits a liquor or beer dealer from serving on the city council. Furthermore, a license has been held to be merely a permit of privilege to do certain things and is n

OPINION 44-23 January 29, 1944 (OPINION) APPROPRIATIONS RE: Game and Fish We have your letter of January eighteenth in which you inquire whether or not you can spend more than three-fourths of the $25,000.00 item appropriated to match federal funds, for projects undertaken by your department in connection with the federal aid to wildlife act, or whether or not you must retain twenty-five percent of this appropriation until the last quarter of the biennium, under Chapter 22, Session Laws of 1941. The $25,000.00 appropriation is contained as one of the items in Chapter 22 of the Session

OPINION 44-109 February 21, 1944 (OPINION) TAXATION RE: Farm Property situated in cities and villages You submit the following question upon which you desire an opinion from this office. There is a certain tract of land in the northeast part of Grafton and within the city limits, not platted but adjoining platted land, comprising 9.40 acres. In one corner of the tract are located a dwelling and some other buildings used as farm structures. For forty years or more, the tract has been owned by one family and operated as a vegetable truck farm, and has been the means of supporting a l

OPINION 44-85 February 9, 1944 (OPINION) RESIDENCE RE: Desertion Your letter of February fifth addressed to the Attorney General has been referred to the undersigned for attention and reply. You state that a husband and wife and their children were living in the state of Minnesota. They decided to go their own way. I presume that they decided to separate. The wife came to Grand Forks with the children with the knowledge and consent of the husband. She has been living in Grand Forks about two years. The husband went to Nebraska and is employed in a position with good pay. He has n

OPINION 44-110 February 8, 1944 (OPINION) TAXATION RE: Nonprofit Co-ops Your letter of February fourth addressed to the Attorney General has been received, in which you ask for our construction of chapter 266 of the Session Laws of 1943, classifying personal property of rural electric cooperatives for the purpose of taxation. Section 1 of said Act provides that: "The property of nonprofit cooperative corporations engaged in the distribution, transmission and/or generation of electrical energy for consumption in rural areas is hereby expressly

OPINION 44-34 February 4, 1944(OPINION) CAPITOL BUILDING RE: Office Room You state that due to the requests which come to the Board of Administration from time to time for space in the Capitol Building, the members of the Board have for some time had under consideration the making of a survey to ascertain whether some departments have space which could be used by other departments which are short of space. You are, therefore, asking an opinion from this office as to what authority, if any, the Board of Administration has to allocate space in the Capitol Building, among the various Stat

OPINION 44-72 January 22, 1944(OPINION) MEMBERS OF LEGISLATURE RE: Eligibility to other offices I have your letter of January 21, relative to the eligibility of members of the last session of the Legislative Assembly to state or county office, and also inquiring as to their eligibility to be elected as members of the Legislative Assembly at the coming election. The attorney general and his assistants are limited in their authority to give legal opinions to rendering such opinions to state officials, to state's attorneys and to members of the Legislative Assembly. However, since the que

OPINION 44-68 January 11, 1944 (OPINION) LOTTERIES RE: Lotteries I have your letter of January 4, in regard to "Bank Night" and have read the same carefully. Bank night, as it is usually conducted, consists of the drawing of numbers on a day certain, and the holder of the lucky number is awarded a prize. All persons, who purchase tickets to the theater at the regular price, not greater than is charged on other nights when bank night is not conducted, are eligible to sign their names in a register, which is usually kept in the lobby of the theater. Such register is also placed in th

OPINION 43-66 December 21, 1943(OPINION) LIQUOR RE: Sales I have your letter of December 20, in which you state that certain persons are criticizing you for not selling liquor and beer to service men under the age of twenty-one years. You inquire whether you can legally make such sales. Under the provisions of the Initiated Beer Act, section 9 of the Act provides that no retailer "shall be permitted under the provisions of this Act to sell beer to a minor. . . ." Under the provisions of section 4335 of the 1913 Compiled Laws, minors are defined as "males under twenty-one years of age. 2

OPINION 43-82 December 17, 1943 (OPINION) PUBLIC OFFICERS RE: Not to be Personally Interested in Contracts I have your letter of December 15, in which you raise the question of the legality of a county officer or his deputy buying county-owned land, that has been acquired by the county under tax deed proceedings. You inquire whether such officers can buy such land, either at the annual November sale or at any other time. Part of your question is answered by section 265 of the 1933 Session Laws. That chapter provides that county auditors, county treasurers, and each of their deputies or

OPINION 43-112 December 14, 1943 (OPINION) TAXATION RE: Telephone Property I have your letter of December 8th in which you state that sometimes property of a commercial telephone company is sold for delinquent taxes. Since property of a telephone company is assessed as personal property there is no sale of any land, and if a building, for example, standing upon land owned by a telephone company were sold by the sheriff it would be sold as personal property and the purchaser would have no title to it as real estate. You ask what can be done in such a situation. In this instance where s

OPINION 43-78 December 8, 1943 (OPINION) OSTEOPATH RE: Not qualified to act on Insanity Commission I have your letter of December 1, in which you inquire whether a doctor of osteopathy may act as a member of the insanity board of any county in the state. Section 2547 of the 1913 Compiled Laws provides for the appointment of a board of "Commissioners of Insanity". The County Judge shall be a member of such board and shall be its chairman. The other two members shall be appointed by the board of county commissioners, one to be a reputable practicing attorney, and the other "Shall be a

OPINION 43-59 November 30, 1943 (OPINION) INCOMPETENTS RE: Residence: DOROSCHUK, Kate and Mary. Your letter or November 26th addressed to the Attorney General and enclosing copy of a letter from the superintendent of the Grafton State School relative to the above-mentioned patients, has been received and referred to the undersigned for attention and reply. It appears that these patients were committed from Billings County in August, 1937, and in June, 1941. The board of County Commissioners of Billing County has now passed a resolution not to make further payment for the care and mai

OPINION 43-57 November 13, 1943 (OPINION) INCOMPETENTS RE: Residence Since you were here I have given this matter considerable thought, especially with reference to the proposition as to whether the removal to another state of the parents of a minor inmate of the School for Feeble Minded would change the legal residence of such minor. As you know, it held in the case of In re Boise, 11 N.W. 2d, page 80, that "in determining the right of a feeble-minded child to support under the public relief acts, the responsibility of the county is the same as that for an indigent or sound mind." In t

OPINION 43-81 September 29, 1943 (OPINION) POULTRY BOARD RE: Poultry Board We have your letter of September 28th and the enclosed copy of a letter to you dated September 21st from the International Baby Chick Association. You inquire whether it is possible to collect a fee on chicks ordered by farmers through local stores which are shipped from points outside North Dakota. Section 5 of chapter 7 of Session Laws of 1939 provides for the licensing of the occupation of selling baby chicks and turkey poults, fixing the license at one dollar per year plus fifty cents per thousand or fraction

OPINION 43-106 October 25, 1943 (OPINION) SCHOOLS RE: Reading Bible permitted without comment Your letter of October 19th addressed to the Attorney General has been referred to the undersigned for attention and reply. You desire our opinion upon the following questions: 1. Do the laws of the state of North Dakota permit the teaching of the Bible in the public schools? Answer: Section 1388 of the Compiled Laws of North Dakota for 1913 provides that: "The Bible shall not be deemed a sectarian book. It shall not be excluded from any public school. It may be at the option of the

OPINION 43-105 October 8, 1943 (OPINION) SCHOOLS RE: Consolidated - Transportation I have checked into the matter of transportation for pupils in consolidated schools. The transportation law for consolidated schools was amended by chapter 208 of the Session Laws of 1939. Among other things this chapter provides: "In the case of any consolidated school heretofore or hereafter established under the provisions of this Act, the school board may in its discretion and at its option pay to each family residing more than two miles from such school, by the nearest route, whose child or child

OPINION 43-93 October 7, 1943 (OPINION) SCHOOL DISTRICTS RE: Arbitration Your letter of October fourth addressed to the Attorney General has been received and referred to the undersigned for attention and reply. You ask for an opinion of this office on a situation which has developed in one of your school districts and the facts are briefly stated as follows: School number two in district 9 has three pupils residing in the district within three-fourths of a mile from school. One pupil from another district attended this school last term. At a regular meeting the school board decided t

OPINION 43-117 September 24, 1943(OPINION) WELFARE WORK RE: Probate to Estates of Relief Clients - States Attorneys - Duties Your letter of August 31st addressed to L. I. Nicholson, state supervisor, has been referred to this office for attention and reply. You state that your county Welfare Board questions the validity of the State's Attorney being given fees for handling county work, such as probate of estates of Old Age assistance recipients. The Old Age Assistance Act of 1943 provides that: on the death of any recipient the total amount of assistance paid to him shall be allowed

OPINION 43-48 September 17, 1943(OPINION) DRUGS RE: Dangerous We have your letter of September seventeenth, in which you enclose as advertisement from a daily paper in this state, advertising a "Sulfa Drug Compound" purporting to have in it the drug sulfanilamide offered for sale by mail from the Sulfa Products Company, 11225 Grand, Kansas City, Missouri. You also enclose communications from the chief of the Minneapolis station, of the United States Food and Drug Administration in Minneapolis, and a quotation from the regulations under the Section 502 (j) of the Federal Food, Drug and C

OPINION 43-86 September 3, 1943 (OPINION) RESIDENCE RE: Incompetents from other States A few days ago when you were in the Attorney General's office, you asked us to check into the question of residence of a minor who, as I recall, is in an institution in another state. As I recall our conversation, the parents of this inmate moved to Benson County, North Dakota, several years ago, and are now legal residents thereof. The minor child is still in the institution in another state. The authorities of that state are now about to transport this party to North Dakota. The theory is, that

OPINION 43-19 August 17, 1943 (OPINION) APPROPRIATIONS RE: Commissioner of Agriculture and Labor Your letter of August 16th has been received and contents of same have been noted. You inquire whether or not the items in the appropriation made by Chapter 2 of the Session Laws of 1943 are subject to the provisions of chapter 22 of the Session Laws of 1941, which provides that seventy-five percent of the appropriations made for the biennium shall become available on the first day of July of each year, and the remaining twenty-five percent shall be available only at t

OPINION 43-74 August 16, 1943 (OPINION) MINIMUM WAGE RE: Overtime I have your letter of August 13th drawing my attention to section 2 of chapter 222 of the 1943 Session Laws. You inquire whether the provision "One and a half times the wage paid per hour for a forty-eight hour week" means one and a half times the actual prevailing wage paid the employee or one and a half times the minimum wage provided for by the regulations of a minimum wage order promulgated by the Commissioner of Agriculture and Labor. In my opinion, the provision "One and a half times the wage paid per hour for a

OPINION 53-45 July 26, 1943(OPINION) CREDIT UNIONS RE: Authority to borrow money Your inquiry of July 16th, asking for an opinion relative to the authority of credit unions to borrow money from lending agencies for the purpose of reloaning the same to their members, was referred to the undersigned for attention. Credit unions are organized pursuant to chapter 108 Session Laws of 1935, as amended. This Act is complete in itself and needed no other legislation to make the same operative. Section 4 sets out the powers of a credit union and subsection f specifically authorizes a credit union

OPINION 43-104 July 14, 1943 (OPINION) SCHOOLS AND SCHOOL DISTRICTS RE: Organization You inquire as to the several statutory methods of procedure fororganizing new common school districts. Section 1147 of the Supplement to the Compiled Laws provides that the Board of County Commissioners and County Superintendent may organize a new school district from another district or from portions of districts already organized, if in their judgment the authorization of the new district is desirable and necessary upon being petitioned so to do by at least two-thirds of the school voters voting in

OPINION 43-64 July 13, 1943 (OPINION) LIQUOR LICENSE RE: Municipal Officers I have your letter of July eighth, making certain inquiries with reference to the violation of certain statutes of the State of North Dakota. I will attempt to answer these inquires in the order in which you make them. You first inquire whether it is legal for a councilman to sell liquor. We have recently held that a councilman cannot be granted a license to sell liquor by the city of which he is a councilman. This is on the ground that as a councilman he is issuing the license, and as a licensee, he is doing

OPINION 43-108 June 29, 1943 (OPINION) STATE FOOD COMMISSIONER RE: Commercial Feeds in answer to your letter of June 23rd, I will say that in our opinion concentrated commercial feeding stuff that is sold for use as an ingredient in mixing commercial feeds which are then to be resold is not subject to the tonnage tax provided by chapter 141 Session Laws of 1927 as amended. We base our opinion upon the language in the latter part of section 11 of chapter 141 Session Laws of 1927. To hold otherwise would be to tax these ingredients twice, first as an ingredient and second as a part of t

OPINION 43-39 June 26, 1943(OPINION) COUNTIES RE: Depositories of Funds Your inquiry of May eighteenth was recently placed on my desk to be answered. I have examined the opinions on Section 714a8 of the 1925 Supplement as amended by Chapter 222 Session Laws of 1931, and I failed to find any wherein it is stated that a depository may be designated at any other time than January of each even-numbered year. Evidently, the Legislature had some purpose in mind in providing that depositories should be designated in January of each even-numbered year, and it must also be noted that an exceptio

OPINION 43-61 June 23, 1943 (OPINION) LABOR RE: Hours of - Females I have your letter of recent date, pointing out that under the provisions of chapter 153 of the 1939 Session Laws, amending laws regulating and fixing the hours of labor for females in certain industries, that the following provisions are found: "Provided, however, that this Act shall not apply to females . . . in telegraph officers where the Commissioner of Agriculture and Labor after a hearing has determined that the condition of work is so light that it does not justify the application of this Act. In such cases t

OPINION 43-84 June 10, 1943 (OPINION) REGISTER OF DEEDS RE: Deposit of County Funds We have your letter of May 7th, in connection with the Register of Deeds of your county, who deposits his fees in one of the local banks and turns it over to the County Treasurer by check within three days after the close of each calendar month. The state examiner has objected to this practice and you inquire our opinion. We have very carefully considered this matter and we are of the opinion that the state examiner is right and that the Register of Deeds should discontinue this practice. The law appa

OPINION 43-56 June 7, 1943 (OPINION) HIGHWAYS RE: Patrol - Drivers License Your inquiry of June 2nd wherein you ask whether a person whose driver's license has been revoked following his conviction for operating a motor vehicle, while under the influence of intoxicating liquor, may secure a new license at the end of the revocation period without complying with the financial responsibility act has been referred to the undersigned for attention. This office has held on numerous occasions that a person, whose license has been revoked because of conviction, must comply with chapter 167 Ses

OPINION 43-27 June 7, 1943 (OPINION) APPROPRIATIONS RE: Self-executing I have your letter of June 5th, requesting an opinion as to whether the increase in salary for State Land Commissioner, which was passed as an emergency measure, became effective upon the signing of same by the Governor. You request that you be advised as to the law, based upon the facts as they appear from the enclosed application by Mr. Swanston. The act in question is chapter 190 of the 1943 Session Laws, which provides: "The annual salary for services rendered in his official capacity by the Commissioner of U

OPINION 43-107 June 3, 1943 (OPINION) SHERIFF RE: Deeds Issued When This is in reply to your letter of recent date in which you request the opinion of this office on the following state of facts: The Board of University and Schools Lands foreclosed a mortgage and at the sale received the usual sheriff's certificate of sale. This certificate was recorded. Thereafter, it was assigned by the state and the assignment was recorded. The original certificate of sale was misplaced or lost. The holder of the recorded assignment has a certified copy of the original certificate of sale, and

OPINION 43-55 June 2, 1943 (OPINION) HIGHWAY COMMISSION RE: Leasing Equipment Illegal I have your letter of May 24th enclosing a copy of your letter of the same date to J. S. Lamb, Highway Commissioner, regarding the leasing or loaning of highway equipment, such as mowers and tractors, to private individuals for haying purposes. Under the provisions of section 4 of chapter 159 of the 1927 Session Laws, the Department of State Highways is vested with full power and authority "to purchase, lease, or acquire all necessary road material, machinery,

OPINION 43-47 May 27, 1943 (OPINION) DRAINS RE: Repair of Your inquiry of May twenty-second, relative to the drainage law enacted by the last session of the Legislature was referred to the undersigned for attention. This law which you have reference to was House Bill No. 165 and will be Chapter 118, Session Laws of 1943. This Act was not an emergency measure and, therefore, will not become effective until July first. Under the provisions of Section 2486 of the 1925 Supplement, which is the section amended by the new law, responsibility for keeping drains open and in repair is upon

OPINION 43-47 May 24, 1943 (OPINION) DRUGS RE: Drugs This is in reply to your inquiry of May 5th in which you inquire our opinion as to whether vitamin products in concentrated form should be regarded as foods or drugs, and if as drugs whether their sales must be made through registered pharmacists as provided by law for other drugs. We have considered this question very carefully, and have made a study of the situation and the literature available on the question. It is our opinion, on the basis of present information, that in concentrated form, that is, in pills, capsules, tablets,