North Dakota Attorney General Opinions

OPINION 43-60 May 4, 1943 (OPINION) INSANE RE: Estates of: Estate of Hubert J. Hansen, Deceased. Your letter of April 29th addressed to the Attorney General has been received relative to the above entitled estate. You state that as attorney for the administrator, you are about to close the above-named estate. The surviving widow of the deceased is in the state hospital at Jamestown and has been there for five or six years. The County of McLean has filed a claim against the estate of Hubert J. Hansen, deceased for care and treatment of Mrs. Hansen, widow, at the state hospital. Yo

OPINION 43-39 May 3, 1943 (OPINION) CONSTABLES RE: Right to Bear Arms We have your letter of April twenty-ninth stating that you are a duly elected, qualified, and acting constable of Adams County and inquire whether or not you have a right to carry arms. As such a constable, under Sections 10364 and 10539 of the Compiled Laws of 1913, you are a peace officer. Section 9803a6 of the Supplement of 1925 prohibits the carrying of concealed pistols or revolvers, but Section 9803a7 of the Supplement of 1925 contains an exception for peace officers. Consequently, we are of the opinion that

OPINION 43-40 April 13, 1943(OPINION) COUNTIES RE: Form of Tax Deed I have been out of town for several days and upon returning I find your letter of April eighth, in which you enclose a copy of a letter of the E.J. Lander and Company to the auditor of Rolette County, dated March 30, 1943, and a blank auditor's quit claim deed published by the Knight Printing Company number 1575R. The question is whether or not this is the proper deed to be given to a purchaser on contract for deed under Section 19 of Chapter 286 Session Laws of 19041 upon the final payment of the contract by the purchase

OPINION 43-24 April 10, 1943 (OPINION) APPROPRIATIONS RE: In General This is in reply to your inquiry this morning relative to the following situation. House Bill 99 passed by the last Legislative session appropriated $45,000.00 to the North Dakota State Guard for the purpose of providing equipment and proper maintenance, as prescribed in chapter 230 of the Session Laws of 1941, and to meet other requirements prescribed by the Federal statutes for the biennium ending June 30, 1945. $20,000.00 of this appropriation is a regular fund and $25,000.00 is an emergency fund. No expenditure c

OPINION 43-35 April 2, 1943(OPINION) CITIES RE: City Manager - Powers of Your inquiry of March 30th, wherein two questions were submitted has been referred to the undersigned for attention. Question No. 1. Has the city manager power to make the appointment of city auditor, city health officer, city attorney, or city assessor without the approval or confirmation of the city council? "Section 5 of chapter 172 Session Laws of 1933 in part states: "The city manager * * * shall have the power to appoint all appointive officers and power to remove such officers at will. Provided, however

OPINION 43-101 February 23, 1943 (OPINION) SCHOOL HOUSES RE: Sale of Your inquiry of February 11th relative to the procedure to be followed in the disposal of rural school houses owned by the Carrington Special School District, and also the procedure required by a district which intends to purchase the building has been referred to the undersigned for attention. The school houses in question being owned by Special School District, I wish to call their attention to section 1251 Compiled Laws of 1913. Subsection 4 reads as follows: "to purchase, sell, exchange, and hire school houses an

OPINION 43-89 February 16, 1943 (OPINION) SALES TAX RE: Rule 27 I have your letter of February 16th requesting my interpretation of your sales tax rule 27, a copy of which was enclosed with your letter. It seems to me that the rule is so plainly drawn as to need no interpretation. The dentist, as such, primarily renders personal services, which, of course, are not taxable. In rendering these personal services, he used instruments which are not taxable. He also uses consumable supplies, such as mercury, silicates, alloys, amalgam, platinum, gold, etc. These are tangible personal pro

OPINION 43-17 February 13, 1943 (OPINION) APPROPRIATION RE: Charitable Institutions This is in reply to your letter of February 12th relating to the appropriation for St. John's Orphanage. You state that the bill presented by St. John's Orphanage for care given children during the month of December, 1942, was disallowed by the State Auditing Board for the reason that it exceeded seventy-five percent of the appropriation to the agency. You inquire whether or not the seventy-five percent limitation on appropriations for the first eighteen months of the biennium under the provisions of

OPINION 43-108 February 13, 1943 (OPINION) STATUTES RE: Interpretation I have your letter of February 11th relative to the appropriation made for the State Training School insurance premiums by the 1941 Legislature. I did say that the intent of the Legislature should be determined in interpreting any statute. However, where the clear wording of the statute does not permit of more than one interpretation, that interpretation must be accepted even though the Legislature intended something else. Legislative intent only becomes important when the statute is capable of being interpreted

OPINION 43-96 January 27, 1943 (OPINION) SCHOOL DISTRICTS RE: Funds not to be used for transportation to Private Schools Your letter of recent date addressed to the Attorney General with reference to certain school problems has been received and the contents of the same noted. You state that certain schools in your school district are closed and that some of the patrons are sending their children to a parochial school. The question you present is whether or not you have authority to pay transportation to these people when sending their children to a parochial school. The Constitutio

OPINION 43-49 January 18, 1943 (OPINION) ELECTIONS RE: Cities Your letter of January thirteenth wherein you inquire whether or not it would be possible to hold your special election to fill a vacancy and also an election to increase the tax levy has been considered. I see no reason why the two elections may not be held on the same date. However, it will be necessary for you to issue two notices of election, as each election is entirely separate and distinct from the other, and, of course, each will have to be on a separate ballot. There is a very serious question as to whether an elec

OPINION 42-22 December 12, 1942 (OPINION) APPROPRIATION RE: For Firemen's Association - Not subject to Chapter 22, Laws of 1941 We have your letter of December 5th in which you inquire whether or not the appropriation to the Firemen's Association provided for in chapter 39 of the Session Laws of 1941, must be paid out in the manner specified in chapter 22, Session Laws of 1941 which provides that appropriations for maintenance of any state institution, department, board, commission, or bureau can be used only in the following manner to wit: Seventy-five percent of t

OPINION 42-116 December 12, 1942 (OPINION) WELFARE BOARD RE: Liens on Real Estate I have your letter of December 8th, in which you request our opinion on the following set of facts: A owns a piece of land in Benson County and applies to the Welfare Board for old age assistance. In consideration for such assistance, A executed a trust deed to the county as security for such old age assistance payment, as he has received, or will thereafter receive, under the provisions of chapter 211 of the 1937 Session Laws. Subsequently, A fails to pay any taxes and the Welfare Board does not pay such

OPINION 42-50 December 10, 1942 (OPINION) ELECTIONS RE: Cities Tie Vote I have your letter of December ninth advising that in a special city election, the vote for mayor was a tie vote. You inquire as to how the election should be determined and who should be declared elected in case of a tie vote. Under the provisions of Section 3671, Compiled Laws of 1913, provision is made for a tie vote in the election of any city officer. That section reads in part as follows: In case of a tie in the election of any city officer, it shall be determined by lot, in the presence of the city coun

OPINION 42-49 December 5, 1942 (OPINION) ELECTIONS RE: Cities - Candidates Who May Be Your letter of December fifth addressed to the attorney general has been received and referred to the undersigned for attention. You state that the mayor and one of the city aldermen of Sykeston have moved away and the city is having a special election next Tuesday to fill the vacancies. One of the present aldermen is a candidate for mayor, but he has not resigned from the council. You ask whether or not he may legally be a candidate for mayor without resigning as alderman. There is no law which

OPINION 42-44 November 23, 1942 (OPINION) COUNTY TREASURER RE: Term of Office I have your letter of November twenty-first, advising that the county treasurer of Pembina County has resigned, or will resign to take the office of clerk of the district court after the first of January. The newly elected county treasurer does not take office until May 1, 1943, and you inquire whether the county commissioners can appoint the newly elected county treasurer to fill the unexpired term of the present treasurer, without having the term during which he serves to complete the unexpired term of the p

OPINION 42-37 October 30, 1942 (OPINION) CITIES RE: Residence of Aldermen Your letter of the twenty-seventh inst. addressed to the attorney general has been received and contents noted. You state that one of your aldermen has recently moved into a house in another ward in order to make it more convenient for his daughter to attend the teachers college. He still retains ownership of his house in the ward from which he moved, and he regards the same as his permanent residence. You ask whether under those circumstances, he would be disqualified from representing his original war

OPINION 42-43 October 21, 1942 (OPINION) COUNTY OFFICIALS RE: Who Are We have your letter of October sixteenth in which you ask whether or not, in our opinion, the provisions of Chapter 303 Session Laws of 1941 applied to county commissioners and county assessors. We are in agreement with you that the law applies to county commissioners. I think that the intent of the Legislature was to include county commissioners in the term, "elective officials of the several counties of the state". There is some question as to whether or not a county commissioner is a county officer as distinguis

OPINION 42-50 October 19, 1942 (OPINION) ELECTIONS RE: Officers You inquire whether a county chairman has the right to appoint himself a member of an election board. Section 951 of the 1913 Laws provides that: The chairman of the board of supervisors in organized townships shall by virtue of his office be inspector of elections." Said statute further provides that: The inspector shall, prior to the opening of the polls in his precinct, appoint as judges of election two qualified electors of such precinct who shall have been resident freeholders therein for at least ninety days nex

OPINION 42-97 October 10, 1942 (OPINION) SCHOOL DISTRICTS RE: Pupils - Residence The questions you present can be answered only in a general way. The school boards in this state have considerable discretion in adjusting questions arising in connection with the opening and closing of schools. Where schools are closed for economic reasons or lack of attendance, it is the duty of the board to furnish proper and convenient school facilities for the pupils from some other school. Such proper and convenient school facilities must be provided for the pupils in the territory of the school cl

OPINION 42-32 October 9, 1942 (OPINION) BEES RE: Destruction of foul hives Your inquiry of October 5th, relative to the right of the bee inspector to destroy beehives infested with American foul brood, owing to the fact that the law does not provide compensation to the owner, has been referred to the undersigned. The right of destruction is contained in section 2790a9 of the 1925 Supplement, as amended by chapter 91 Session Laws of 1929. This specifically provides that there shall be no compensation and I do not think that the fact that no compensation is paid would in any manner aff

OPINION 42-99 October 8, 1942 (OPINION) SCHOOL DISTRICTS RE: Transportation You state that you may have a problem in your school district, particularly with reference to transportation of certain pupils to your school. It is rather difficult to answer a general question such as the one presented in your letter. The school board has considerable discretion in the matter of providing proper and convenient school facilities for the pupils in their district. Chapter 206 of the Session Laws of 1939 provides, among other things, that: "The board may close a school when the average attend

OPINION 42-106 October 1, 1942(OPINION) SCHOOLS RE: Discontinuance This is in reply to your inquiry as to whether or not under chapter 206 of the Session Laws of 1939 it is discretionary with the school board to discontinue school if the attendance for ten consecutive days is less than six. Said chapter provides among other things, that any school may be discontinued when the average attendance of pupils therein for ten consecutive days is less than six, **** if proper and convenient school facilities be provided for the pupils therein in some other school; and such proper and convenient

OPINION 42-67 September 19, 1942 (OPINION) LIQUORS RE: Powers of Municipalities to Prohibit giving to minors by parents. I have your letter of September 17th, requesting my opinion on several matters. You first inquire whether the village trustees have the authority to prohibit the giving away or treating of beer to minor children by their parents or guardian. Under the so-called Beer Act, the governing board of a village has the authority to regulate the sale of beer at retail within the village. No provision is found prohibiting the giving away of beer by parent or guardian to min

OPINION 42-115 September 19, 1942 (OPINION) TAXES RE: Priority as between same and state judgment Re: Application for Satisfaction of Judgment vs. Henry Crawford. You have submitted the attached papers to me for my opinion as to whether or not the lien of the judgment held by the state has priority over the lien of the county of Burleigh for taxes on the lands described in these papers. In the case of state vs. Divide County, 68 North Dakota 708, it was that section 2186 of the Compiled Laws makes taxes upon real estate a paramount perpetual lien against all persons and bodies corpora

OPINION 42-96 September 17, 1942 (OPINION) SCHOOL DISTRICTS RE: Levies - Budget Your letter of September 16th addressed to the Attorney General has been referred to the undersigned for attention. You state that in August, 1941, Arrowwood School District voted to increase the levy to twenty-four mills on the basis of the valuation for the last year, which would be approximately the same for this year. A levy of twenty-four mills will produce $6,015.00, whereas the budget of the district as presented only calls for $3,290.31. I have examined the copy of the

OPINION 42-71 September 4, 1942 (OPINION) MAIL RE: Confidential, Workmens' Compensation Bureau Your letter of September third addressed to the Attorney General relative to the above- entitled matter has been received and contents noted. You state that there is a great deal of correspondence in the Workmens' Compensation Bureau relative to medical reports and the physical condition of claimants, as well as the financial standing of employers, claimants, and third parties, which correspondence is confidential in nature and you inquire whether or not such correspondence would come within

OPINION 42-37 August 31, 1942 (OPINION) CITIES RE: Levies for Band Your letter of August twenty-fifth, wherein you ask whether the band law means that the commission should levy an additional tax for the maintenance of the city band instead of taking it out of the regular budget, has been referred to me. Our present law governing tax levy limitations of cities is Chapter 210 Session Laws of 1941. This reads as follows: The aggregate amount levied for general city purposes shall not exceed such an amount as will be produced by a levy of fourteen mills on the next taxable assessed val

OPINION 42-100 August 31, 1942(OPINION) SCHOOL FUNDS RE: Expenditures of - Purposes I have your letter of August 26th in which you inquire whether the expenditure of school funds for the payment of liability insurance premiums on your school buses in the district is a legal expenditure. The general rule is that in the absence of specific statute a public corporation is not liable for the negligence of its agent when they are engaged in a governmental function. From this general rule it is apparent that the school district would not be liable for the torts of its employees in the exerci

OPINION 42-21 August 29, 1942 (OPINION) APPROPRIATION RE: Equalization Fund This is in reply to your letter of August 28th addressed to the Attorney General, relative to chapter 75 of the Session Laws of 1941. This is the appropriation bill which appropriates any money in the State Treasury belonging to the Retail Sales Tax Fund under and pursuant to the State Equalization Fund Law. The specific item to which you have reference is the item of $900,000 appropriated for the payment of Teacher Unit Basis. Chapter 255 of the Session Laws of 1941, known as the Sta

OPINION 42-114 August 28, 1942(OPINION) TAXES RE: Penalty and Interest I have your letter of August 24th inquiring as to whether the amount of penalty and interest to be collected on delinquent personal property taxes which became delinquent prior to the effective date of chapter 269 of the 1941 Session Laws should be governed by the provisions of chapter 279 of the Laws of 1931, which provides for a penalty of five percent when the taxes became delinquent, and three-quarters of one percent per month thereafter, or whether the penalty provision in chapter 269 of the

OPINION 42-76 August 13, 1942 (OPINION) OFFICES RE: Incompatibility I have your letter of August 7th inquiring whether a person who is a justice of the peace and who has recently accepted an appointment as deputy sheriff could hold both of these offices at the same time and whether he could act in cases in which he did not serve the papers. In my opinion, if a person who is justice of the peace in the county accepts an appointment as deputy sheriff it would be necessary for him to resign as justice of the peace. It is apparent that the two offices are incompatible and that this man c

OPINION 42-113 August 8, 1942 (OPINION) TAXES RE: Extinguishment of by transfer of title to State Re: Auditor's Notati on of Tax Record of Taxes Extinguished by Transfer to State. I have your letter of August 8th, in which you state that you have procured a number of rubber stamps, to be used by auditors in making notation on the tax records where taxes have been extinguished by a passing of title to the state on account of mortgage given to secure loan of school funds. This rubber stamp is as follows: "Taxes Extinguished by transfer to state of North Dakota, to settle a State Land

OPINION 42-95 July 30, 1942 (OPINION) SCHOOL DISTRICTS RE: Funding and Refunding Bonds Your letter of July 28th addressed to the Attorney General with reference to the question as to whether school districts may draw upon the general fund in payment for redemption of outstanding bonds, has been referred to me for attention. You refer to an opinion written by the undersigned under date of May 20th, 1942, in which it was held that under section 11 of chapter 235 of the Session Laws of 1929, school districts were prohibited from drawing upon the general fund for the

OPINION 42-92 July 29, 1942(OPINION) SCHOOL BUILDINGS RE: Use of for other purposes I have your letter of July 25th, requesting an opinion as to whether a school board would have authority to lease vacant school buildings for grain storage purposes. Chapter 241 of the 1931 Session Laws provides for the use of school buildings for certain purposes other than school purposes. That a chapter reads as follows: "When School Buildings May Be Used For Other Purposes.) School Boards and Boards of Education having charge of any school buildings may permit the use thereof, when not occupied for s

OPINION 42-46 July 29, 1942 (OPINION) DRAINS RE: Counties I have your letter of July twenty-fourth, inquiring whether, in our opinion, the county is legally liable for damages caused by failure of the county commissioners to keep open and to maintain certain damaged drainage ditches in Richland County. Section 2486 of the 1925 Supplement to the Compiled Laws provides in part as follows: All drains that may have been constructed under any law of this state, or that may be constructed under the provisions of this chapter and situated in this state, shall, except as otherwise provided, b

OPINION 42-54 July 20, 1942(OPINION) FLAG RE: Advertisements I have your letter of July fifteenth inquiring whether the provisions of North Dakota statute prohibiting the use of the flag in connection with any advertisement would prohibit the use of the flag in connection with advertising promoting war projects or other patriotic advertising, such as an appeal to buy war bonds issued over the name of a business firm. Section 10232 of the 1913 Compiled Laws prohibits the use, exhibition or display of the flag, standard, color or ensign of the United States in conne

OPINION 42-14 July 14, 1942 (OPINION) APPROPRIATIONS RE: Board of Higher Education Your letter of July sixth addressed to the Attorney General has been received and contents of same have been noted. You state that on June 30, 1941, the Board of Higher Education authorized the expenditure of $3,500.00 by the University for certain improvements and repairs to be made at that institution, such expenditures to be made from the Board's Emergency Fund. On June 2, 1942, the University submitted vouchers for the payment of the repair work which was done and these vouc

N.D.A.G. Letter to Roach (Nov. 15, 1988) November 15, 1988 Mr. Robert Roach Assistant Seed Commissioner ND State Seed Department State University Station Fargo, ND 58105 Dear Mr. Roach Thank you for your October 13, 1988, letter requesting my interpretation of the final paragraph of N.D.C.C. § 4-09-15. That paragraph states as follows: 4-09-15. Exemptions. No person shall be subject to the penalties of this chapter for having sold, exposed for sale, or transported for sale in this state any agricultural, vegetable, flower, or tree and shrub seeds which were incorrectly labeled or inc

N.D.A.G. Letter to Lindell (April 24, 1986) April 24, 1986 Mr. William F. Lindell Riverdale City Attorney P.O. Box 427 Washburn, ND 58577 Dear Mr. Lindell: Thank you for your letter of April 10, 1986, inquiring as to the status of land transferred from the federal government to the city of Riverdale pursuant to federal legislation adopted as part of the Supplemental Appropriations Act of 1985. The concern that has been raised involves the disposition of the land by the city of Riverdale and whether such disposition should occur pursuant to state law or in light of the federal statute pr

N.D.A.G. Letter to Koppy (March 14, 1990) March 14, 1990 Mr. Allen Koppy Morton County State's Attorney 210 2nd Avenue NW Mandan, ND 58554 Dear Mr. Koppy: Thank you for your February 2, 1990, letter asking whether the New Salem Public School District, which was reorganized in 1959, may legally charge a user fee to the riders of its rural bus service. N.D.C.C. § 15-27.3-10 provides: 15-27.3-10. Transportation required. A reorganization proposal must provide for the transportation of students and must specify if family-type or public schoolbus-type of transportat

N.D.A.G. Letter to Koppy (March 7, 1988) March 7, 1988 Mr. Allen Koppy Morton County State's Attorney 210 Second Avenue N.W. Mandan, ND 58554 Dear Mr. Koppy: Thank you for your letter of January 7, 1988, in which you seek my opinion on several questions regarding meal allowances under N.D.C.C. § 44-08-04. I will answer your questions in the order presented. N.D.C.C. § 44-08-04 states, in relevant part, as follows: 44-08-04. Expense account -- Amount allowed -- Verification. Except as provided in section 44-08-04.1, each elective or appointive officer, employee, repre

LETTER OPINION 96-L-205 November 7, 1996 Representative William Gorder 1345 Lawler Ave Grafton, ND 58237 Dear Representative Gorder: Thank you for your letter regarding the implied powers of job development authorities. Like political subdivisions and state agencies, a job development authority (JDA) created under N.D.C.C. ch. 11-11.1 is a creature of state statute and therefore possesses only those powers expressly granted to it by the Legislature or those necessarily implied from the powers expre

OPINION 72-500 August 22, 1972 (OPINION) Mr. Theodore Kessel Jr. City Attorney 19 First Avenue North LaMoure, ND 58458 Dear Mr. Kessel: This is in reply to your letter of July 14, 1972, requesting an opinion interpreting the tax exemption provision of Section 40-57-17 of the North Dakota Century Code as they relate to Colonial Manors Corporation of Sioux City, Iowa. The facts are quoted from the first and second paragraphs of your letter as follows: "* * *The construction of the above entitled nursing home was just recently completed and was established by sale of revenue b

OPINION 64-18 August 31, 1964 (OPINION) Mr. Arnold O. Goplen, Director State Department of Health RE: Atomic Energy - Regulation of Atomic Materials In your letter to this office dated August 21, 1964, you stated as follows: "Through the 1959 amendments to the Atomic Energy Act of 1954, the Atomic Energy Commission is authorized to transfer to the states, the regulation of the use of certain atomic energy materials. This transfer, under the terms of the Federal Act, is accomplished by an agreement between the Governor of the State and the Atomic Energy Commission." You then