North Dakota AG Opinions, 1946

OPINION 46-27 December 14, 1946 (OPINION) CITIES RE: Building Permits Apply Also to Building Moved Into City This is in reply to your letter of December 10 addressed to the Attorney General. You state that one of your city ordinances provides that: "A permit must be obtained to erect a building; the cost of said permit to be one tenth of one-tenth of one percent of the value of the structure, but not less than $1.00 nor more than $10.00." You ask whether a building moved into the city would come within the regulation of such ordinance. You do not state the purpose of requi

OPINION 46-169 December 14, 1946 (OPINION) INTOXICATING LIQUOR RE: Divorcement Law Not Applicable to Railroads This will acknowledge your letter of December 6, 1946, in which you inquire as to the application of the liquor-food divorcement act as it applies to dining room and club cars on the trains of the Northern Pacific Railway Company. In your letter you state: We think it can be agreed that the intention of the Legislature, or in the case of an initiated act, the proponents of the act plus the people who voted for it, are controlling. We feel that this act should not appl

OPINION 46-193 December 9, 1946 (OPINION) OFFICERS RE: Bond of Deputy County Treasurer - Premium Paid by County This is in reply to your letter of December 6, 1946, addressed to the attorney general, in which you inquire whether a county treasurer must personally pay for the official bond of his deputy. I wish to refer you to sections 26-2305 and 26-2308 of the 1943 Revised Code, which should be read together. Section 26-2305 provides that before any public employee shall assume his duties, the state auditor, county auditor, city auditor, village clerk, township clerk, or sch

OPINION 46-157 December 9, 1946 (OPINION) INTOXICATING LIQUOR RE: Sale by Airlines This will acknowledge receipt of your letter of December 2, 1946 in which you request a license for the transportation of alcoholic beverages into and within the State of North Dakota in accordance with the provisions of Chapter 5-04 of the North Dakota Revised Code of 1943. The section relative to your request reads as follows: Any railroad company, dining car company, or sleeping car company, operating in this State may transport, import, handle, possess, purchase, sell, and dispense liquor as

OPINION 46-96 December 6, 1946 (OPINION) MARRIAGE RE: License Fees - Chapter 14-03 Re: Marriage License Fees of County Judges Your letter of December 3, regarding our opinion as to the lawful fees which may be charged and collected by county judges for issuing marriage licenses, has been received and sent to my desk. The fee chargeable for a marriage license, as provided by section 14-0322, is one dollar. Section 14-0313 provides that the county judge shall charge not to exceed fifty cents for a serological test, which fee is charged at the time of issuing a marriage licens

OPINION 46-168 December 5, 1946 (OPINION) JOINT TENANTS RE: Personal Property of - County Court Has No Jurisdiction Over This will acknowledge your letter of November 27 in which you inquire as to the authority of the county judge to issue an order granting the survivor of a joint cash account, a postal savings account, or joint ownership of government bonds to withdraw or cash the same upon the death of one of the joint owners. In other words you inquire whether or not you as county judge may issue an order to the survivor of two joint owners which would permit such joint own

OPINION 46-228 December 2, 1946 (OPINION) TAXATION RE: Gasoline Tax - Aviation Fuel This office is in receipt of your letter of November 26 asking for an opinion upon the question as to whether or not the Legislature only constitutionally devise some means of taxing aviation fuel, the revenue produced therefrom to be placed in an aeronautics fund. The first question to be considered is whether or not a statute such as the one you propose would contravene the provisions of Article 56 of the Amendments to the Constitution of the State of North Dakota. Said Article 56 provides th

OPINION 46-23 November 25, 1946 (OPINION) BOND SINKING FUND LEVIES RE: Not Reduced Your letter of November 23 addressed to the Attorney General has been received and contents noted. You inquire whether or not a county auditor may reduce an annual direct irrepealable bond levy without resolution from the governing board, the governing body of the municipality issuing the bond. By way of explanation, you state that a school district in your county made an annual direct irrepealable tax levy of $2,700 for the liquidation of principal and interest, which levy continues through to

OPINION 46-202 November 25, 1946 (OPINION) REGISTER OF DEEDS RE: Instruments Requiring Post Office Address of Maker Re: Chapter 249 S.L. 1929 - (35-0304, 47-1007, 47-1905) Your letter of November 21, relating to the above, has come to my desk. Chapter 249 of the Laws of 1929 applies both to deeds and to mortgages. A former law, chapter 108 of the Laws of 1917, was a similar provision, but applied only to mortgages. Some of the legislative history of these provisions is given in the case of J. I. Case Company v. Sax Motor Company, 64 N.D. 757, 256 N.W. 219. It appears th

OPINION 46-168 November 16, 1946 (OPINION) INTOXICATING LIQUOR RE: Separation of Bar from Restaurant This office is in receipt of your letter of November 12, 1946, making inquiry as to our construction of the provision in the recently enacted liquor divorcement bill, which provides that: "It shall be further unlawful to maintain or allow any connecting archways or doorways connecting any establishment where alcoholic beverages are sold with any other place of business where there is sold or offered for sale any commodity other than tobacco, tobacco products, and soft drinks."

OPINION 46-42 November 9, 1946 (OPINION) CITIES RE: Use of Surplus in Road Fund for Purchase of Snow Plow Your letter of November 7 addressed to the Attorney General has been received and contents noted. You state that your city is considering the purchase of a new street grade and snow plow and you would like information as to whether you can finance the purchase in the following manner: "There was no appropriation made for this amount (about $8,000), but we understand that we can legally transfer enough to make an initial payment from the amounts appropriated for street supe

OPINION 46-17 November 9, 1946 (OPINION) ASSESSORS RE: Qualifications - Owner of Property Re: District Assessor - Section 57-0233 and Chapter 13, S.L. 1944. You inform us that you were elected assessor in the first district in Sioux County and that you have been informed that you are ineligible for the reason that you do not own real property, except real property which is held in trust for you by the Federal Government. Section 57-0233 of the Revised Code of North Dakota of 1943 provides that "No person shall be eligible to be a district assessor, unless he is a voter and th

OPINION 46-240 November 8, 1946 (OPINION) VILLAGE RE: Vacancy on Board - Remaining Members Transact Business This is in reply to your letter of NOvember 5, 1946, in which you say that a member of your village board is leaving for a four month trip for a much needed rest. You desire the opinion of this office as to whether it will be necessary for him to resign or whether the two other members of the board can function in his absence. Section 40-0719 of the 1943 Revised Code provides: If a vacancy occurs in the board of trustees or any other office, such vacancy shall be fille

OPINION 46-28 October 7, 1946 (OPINION) CITIES RE: Civil Service Employees Re: Civil Service Employees Under City Manager Plan of City Government This office is in receipt of your letter of October 3, 1946, in which you say that petitions have been filed with the City Council of Grand Forks for the establishment of a City Manager Plan of government and that an election has been called by the City Council of Grand Forks for the submission of the proposal to the electors. The question discussed in your letter is the problem of the status of the civil service employees of a ci

OPINION 46-75 November 6, 1946 (OPINION) COUNTY RE: Not Required to Furnish Living Quarters for Sheriff This is in reply to your letter of November 4 addressed to the Attorney General. You inquire whether or not it is the duty of the county to furnish living quarters for the sheriff. There is no law requiring the counties to furnish living quarters for the sheriff or for the other county officers, but it is the duty of the county to furnish offices for the several county officers. With reference to jails, section 12-4401 of the North Dakota Revised Code of 1943 provides, "Ther

OPINION 46-36 November 2, 1946 (OPINION) CITIES RE: No Power to Impose Sales Tax This is in reply to your letter of October 31, 1946, in which you request the opinion of this office as to the right of a city to enact an ordinance imposing a sales tax on retail sales therein. Section 130 of the state Constitution provides: "The legislative assembly shall provide by general law for the organization of municipal corporations restricting their powers as to levying taxes and assessments, borrowing money and contracting debts, and money raised by taxation, loan or assessment for any

OPINION 46-193 November 1, 1946 (OPINION) OFFICER RE: Member of Legislature or County Commissioner This is in reply to your letter of October 30, addressed to the attorney general. You state that you are serving Benson County in the capacity of county commissioner and that your term as commissioner expires at the end of 1948. You are a candidate for the state legislature without opposition and will undoubtedly be elected. You inquire whether it will be necessary for you, in case you are elected, to resign as county commissioner. Section 37 of the Constitution provides as fo

OPINION 46-137 November 1, 1946 (OPINION) HIGHWAYS RE: Lowest Bidder - Bidders Bond This will acknowledge your letter of October 31, 1946, in which you seek an opinion of this office concerning the application of section 24-0221 of the North Dakota Revised Code of 1943 to a bid received in your office for the construction of a grade separation project near Kurtz, North Dakota. The facts as I understand them are as follows: The low bidder offered a bid of $160,033.53. Accompanying this bid for the construction of the grade separation project near Kurtz was a certified check o

OPINION 46-158 October 14, 1946 (OPINION) INTOXICATING LIQUOR RE: Defining Pauper I am in receipt of your letter of September 7, 1946, in which you state that in your county there are several persons receiving old age assistance and the question has arisen as to whether a person so receiving old age assistance would be a pauper under the provisions of Section 5-0112 of the North Dakota Revised Code relative to alcoholic beverages. The section referred to provides: Every person who sells or gives to any person, knowing him to be a pauper or inmate of any poorhouse or almshou

OPINION 46-83 October 5, 1946 (OPINION) CRIMES RE: Duties of City Attorney and States Attorney Your letter of October 4 addressed to the attorney general has been received and contents noted. You state that you are the police magistrate of the City of Aneta and there are several cases of criminal nature coming before you. Some of these are violations of city ordinances and some are violations of state laws. The question is as to the respective duties of the city attorney and the states attorney. Section 40-2001 North Dakota Revised Code of 1943 defines the duties of the ci

OPINION 46-69 October 5, 1946 (OPINION) COUNTIES RE: Compensation of Jailer This will acknowledge receipt of your letter of October 2, 1946, in regard to the appointment and compensation of the jailer for the county jail. As stated in your letter, section 11316 of the Compiled Laws of 1913, provided for the appointment and compensation of the jailer. Said section reads as follows: "The jailer or keeper of the jail shall, unless the sheriff elects to act as jailer in person, be a deputy appointed by the sheriff and such jailer shall take the necessary oath before entering up

OPINION 46-78 October 4, 1946 (OPINION) COUNTY COURT RE: No Jurisdiction in Partition After Estate Closed Re: Petition in County Court, Chapter 30-21 Your letter of October 2, regarding the above matter has been handed to me by the attorney general for attention. It is our opinion that the county court lost all jurisdiction in this matter when it made its final decree. The sole jurisdiction now, in our opinion, lies in the district court where any or all the heirs may commence proceedings for partition according to the rules of procedure in district court. This letter is

OPINION 46-141 October 4, 1946 (OPINION) GAME AND FISH RE: Hunting Predatory Animals - Use of Aircraft This will acknowledge your letter of October 1 enclosing proposed rules governing the hunting of predatory animals with aircraft promulgated by the State Game and Fish Department under the terms of chapter 20-0108 of the North Dakota Revised Code of 1943 and numbered 1 to 11 inclusive. I also acknowledge receipt of the letter written to you by Erling A. Nasset under date of September 30, in which he endorses and approves Rule No. 5, setting forth certain qualifications and req

OPINION 46-78 September 26, 1946 (OPINION) COUNTY COURT RE: Service of Citation by Publication Re: Section 30-0210, as Amended by Chapter 227 S.L. 1945 Your letter of September 24, addressed to the attorney general, has come to my desk. You ask, in substance, whether or not it is necessary to lay a foundation for service of citation by publication in the county court in the manner in which a foundation for service by publication is made in civil actions in district court. The source of the present law relating to service of citations is found in section 8544a4 of the 1925 S

OPINION 46-142 September 23, 1946 (OPINION) INSURANCE RE: Hail Insurance Warrant Stands in Place of Feed Destroyed I acknowledge your letter of September 16, in which you advise that you are now in the possession of a state hail insurance warrant in the amount of $607.84 for losses sustained to growing crops, all feed grains, seeded in the season of 1946. It is your desire to know whether you can legally make use of this money for the purchase of feed to be used by the Penitentiary in feeding stock on its farm, and whether you may deposit the sum realized from the losses incur

OPINION 46-43 September 16, 1946 (OPINION) CITIES RE: Vacancy in Office - Special Election This is in reply to your letter of September 7, 1946, in which you say that you have been instructed to inquire as to the correct procedure to follow to elect an alderman to replace one recently deceased. Section 40-0808 of the 1943 Revised Code provides: "If a vacancy occurs in the office of alderman by death, resignation, or otherwise within six months prior to the next city election, the city council shall appoint a person from the ward from which the alderman previously holding was

OPINION 46-121 September 13, 1946 (OPINION) EDUCATION RE: School Boards May Not Pay Transportation to Parochial Schools Your letter of September 12 addressed to the Attorney General has been referred to the undersigned for attention and reply. You state that Taylor Special School District is not operating any busses this year, but expects the parents to make their own arrangements to bring the children to school. You then pay the parents on the per pupil basis. Richardton has a bus which comes right by one of your school patrons. He lives six miles from the Taylor School but

OPINION 46-108 September 10, 1946 (OPINION) EDUCATION RE: Department of Public Instruction - Printing - Publication - North Dakota Teacher This is in reply to your letter of September 5 addressed to the Attorney General. You state that a request has been made to the Department for payment at the regular publishing rate of $45.00 per page, less 10%, for a monthly news bulletin in The North Dakota Teacher, the official magazine for the North Dakota Education Association. Undoubtedly it will be of interest to the teachers and others interested to have news items

OPINION 46-127 September 9, 1946 (OPINION) ESTATES OF DECEASED RE: Relatives-in-law Are Not Heirs This office is in receipt of your letter of August 26, 1946, in which you inquire whether a sister-in-law is an heir of her brother-in-law. I assume that the lady you have in mind is a widow and that the estate mentioned in your letter is the estate of a deceased brother of her husband. Since the deceased "brother" mentioned in your letter was a single man his parents, if living, and his brothers and sisters are his heirs. If he had a brother or sister who preceded him in death,

OPINION 46-238 September 3, 1946 (OPINION) TEACHERS RETIREMENT RE: Fund - Time of Teaching Out of State - Sec. 15-3915 This is in reply to your letter of August 31, 1946, in which you inquire: "May teaching in the Indian Service be counted toward retirement under the North Dakota Insurance and Retirement Fund Laws?" Section 15-3915 of the 1943 Revised Code provides as follows: "Any teacher who comes from a school or educational institution not included within the provisions of this chapter and becomes a teacher in a public school or state institution within this state, before

OPINION 46-241 August 29, 1946 (OPINION) VILLAGE RE: Marshal - Deputy - Oath of Office Your letter of August 26, 1946 relative to the appointment of a deputy marshal has been referred to me for reply. You state in your letter that you are village marshal and wish to be advised if it is necessary for a deputy appointed by you to take the oath of office before commencing his duties. As the functions and duties of a constable are largely ministerial, he may, in the absence of any statutory provision on the subject, act by deputy, at least for the execution of a particular duty.

OPINION 46-164 August 29, 1946 (OPINION) INSANE RE: Removal of Discharged Patients by County Your letter of August 26, 1946, addressed to the attorney general, has been received and contents of same have been noted. You refer to section 25-0322 of the 12943 Revised Code which provides that when the state hospital sends a notice of discharge to the county insanity board and such board fails to remove such discharged patients from the hospital within thirty days, the county shall be liable, at the expiration of thirty days, for the care of such patient at the rate of $2.00 per da

OPINION 46-174 August 27, 1946 (OPINION) LIVESTOCK RE: Per Diem of Members - Board of Veterinary Examiners This is in reply to your letter of August 23, addressed to the attorney general. You state that your board has a problem as follows: When your budget was made up for the present biennium, the salary of the members of the board was $5.00 per day; now under the new code, the salary is fixed at $10.00 per day. The appropriation for salary or per diem for the board members is $240.00 for the biennium. Under section 36-0202, the State Board of Veterinary Medical Examiners

OPINION 46-18 August 24, 1946 (OPINION) LOAN OF FUND BY BANK OF N.D. TO MEM. CORP. AT UNIVERSITY This will acknowledge your letter of August 21, 1946, in which you submit a question presented by President West of the University of North Dakota and which he stated as follows: Under the law as recited under section 6-0915 or by special resolution of the Industrial Commission, is it possible to make a direct loan to the Memorial Corporation, which is a non-profit enterprise and whose constitution and bylaws limit the activity of the Corporation to actions directly interested and con

OPINION 46-22 August 23, 1946 (OPINION) CERTIFICATES OF INDEBTEDNESS RE: Basis For Your letter of August 21, regarding what are "current taxes," has come to my desk. Certificates of indebtedness may be issued by a school district against uncollected taxes which have been levied during the year in which the borrowing is made, plus "uncollected taxes remaining upon the tax lists of the four preceding years," excluding sinking fund levies. See section 21-0203 provides: "A tax shall be deemed to have been levied when it has been voted by the tax levying board and certified to th

OPINION 46-41 August 22, 1946 (OPINION) CITIES RE: Sale, City Property - 2/3 Vote of Governing Body Re: Exchange of City Lots for Other Property Your letter of August 20, re the above, has come to my desk for attention. This office has had several letters of a similar nature from city auditors in the past few months. Section 40-0501, subdivision 56, authorizes the city to convey, sell, dispose of, or lease personal property and real property of the municipality, as provided by law. Section 40-1104 provides that a two-thirds vote of all the members of the governing body of

OPINION 46-159 August 12, 1946 (OPINION) INTOXICATING LIQUOR RE: County Commissioners Authority to Prohibit Sale of in Unincorporated Territory This will acknowledge your letter of July 30, 1946, in which you state that the board of county commissioners at a recent meeting passed a resolution providing that no licenses to sell liquor should be granted in territory outside of the limits of incorporated cities and villages of the county. The resolution previously existing provided for the licensing of one liquor establishment outside of incorporated villages and cities. In ot

OPINION 46-62 July 25, 1946 (OPINION) COUNTIES RE: Published Statement of Commissioners' Proceeding to be Itemized Your letter addressed to the state printer, dated July 15, 1946, has been referred to this office for attention. According to the record available to me, your newspaper is the official newspaper of Ransom County. I note that you say: "Previously the county commissioners' proceedings have itemized expenses of election such as poll rent, warrants to judges, clerks, etc., while this year the proceedings on these matters read as follows: 'Inspectors, Judges, Cler

OPINION 46-215 July 25, 1946 (OPINION) SCHOOLS RE: Board of Education - Power to Hire Teachers by Year - 15-4704 Your letter of July 23, 1946, addressed to this office has been received and contents noted. You submit two questions upon which you desire the opinion of this office, towit: 1. Is it legal for a school board in the state of North Dakota to hire teachers on a twelve months' basis when it is expressly planned that the three months during June, July, and August, the teacher or teachers would render service in behalf of the Dickinson Recreation Association. The te

OPINION 46-50 July 19, 1946 (OPINION) CORPORATIONS RE: Farming - Exceptions I have your letter of July 16, 1946, in which you refer to my letter to you of July 15, 1946, relative to the corporate farming law of this state. Your specific question is: "When may a corporation (with proper provision in its charter) avail itself of the exception provided in section 10-0603 and legitimately own and operate that amount of rural real estate which is reasonably necessary to the conduct of its business?" All of the provisions of the statute must be construed together. Section 1 of th

OPINION 46-195 July 17, 1946 (OPINION) OFFICERS RE: Offices of County and City Justices Not Incompatible This office is in receipt of your letter of July 12, 1946, in which you request our opinion as to whether the offices of county justice of the peace and city justice of the peace are compatible. In other words, you desire our opinion as to whether or not the same person can hold the office of city justice of the peace and county justice of the peace. Under the provisions of section 40-1802 of the 1943 Revised Code, a city justice of the peace has the same jurisdiction as a

OPINION 46-54 July 15, 1946 (OPINION) CORPORATIONS RE: Possess Only Powers Specifically Granted by Statute Your letter of July 5, 1946, addressed to the attorney general's office, has been received and contents of same have been noted. Your letter relates to chapter 10-06 of the North Dakota Revised Code of 1943, known as the "Corporate Farming Law." Section 10-0602 contains the following exception: "Except such as is reasonably necessary in the conduct of their business." A similar exception is found in section 10-0603. Your specific question is: Does this exception perm

OPINION 46-58 July 8, 1946 (OPINION) COUNTIES RE: No Power to Aid City in Purchase of Fire Equipment Your letter of July 5, 1946, addressed to the attorney general has been received and contents noted. You desire the opinion of this office on the following situation: The city fire department has requested the board of county commissioners to assist in the maintenance of the department insofar as the Jamestown organization is used for fires in the county, sometimes being called to points as far away as Streeter and Buchanan. The local firemen are demanding additional compensat

OPINION 46-133 July 3, 1946 (OPINION) HEALTH OFFICER RE: Appointment - Term of Office This office is in receipt of your letter of June 20, 1946, in which you say that on May 4, 1938, you were appointed city health officer by the mayor of McClusky, and that your appointment was confirmed by the city council; that thereafter no appointment was made and that you continued to hold the office. You say that, "on April 18, 1946, at a special meeting of the council the new mayor, without consulting the city attorney or conforming in any manner to the statutes of the state, appointed

OPINION 46-197 July 2, 1946 (OPINION) NEWSPAPERS RE: Legal Suspended During War - Becomes Legal Newspaper Thirty Days After Resuming Publication This is to acknowledge receipt of your letter of June 28, 1946, addressed to the attorney general. You inquire as to whether or not a newspaper which suspended during the war would thereby lose its legal standing. Section 46-0501 of the North Dakota Revised Code provides, among other things, "that any newspaper which suspended publication during the present war, but which shall resume publication within six months after the close of t

OPINION 46-75 July 1, 1946 (OPINION) COUNTY RE: Commissioners Not Authorized to Make Loans for Industrial Development This office is in receipt of your letter of July 1, 1946, written on your behalf by Chrissie E. Budge, in which she states that you desire our opinion on the following question: "Can the Board of County Commissioners use the fund raised under chapter 294, S.L. 1945, as a revolving fund, to either loan to industries getting started in the county, or to buy an interest in an industry, the loan in either case to be repaid to the County Commissioners." Section 1 of

OPINION 46-278 June 28, 1946 (OPINION) TEACHERS RETIREMENT FUND RE: Teaching - What Constitutes Your letter of June 19, addressed to the attorney general, has been received and contents noted. You inquire as to whether or not a person who is requested to retire from active service as an instructor in a state institution because of age, but who would continue to receive some remuneration for certain research work or for travel for the purpose of collecting material along the lines of his previous work, would come under the classification of "retired" within the meaning of the te