North Dakota AG Opinions, 1949

OPINION 49-61 December 15, 1949 (OPINION) FEDERAL HOUSING ACT RE: North Dakota Has Adequate Statutes To Be Eligible to Accept Assistance and Create Housing Authorities Your letter of December 14, 1949, to the attorney general, has been received. In your letter you ask the opinion of this office as to (1) whether existing state legislation authorizes the creating of housing authorities in cities and counties of the state, and (2) whether state laws, now in effect, would enable these authorities, when established according to law, to accept assistance in any form from the federa

OPINION 49-175 December 14, 1949 (OPINION) SUPERINTENDENT OF CRIMINAL IDENTIFICATION RE: Fingerprints Pursuant to section 12-5804 of the 1943 Revised Code, all state's attorneys, sheriffs, chiefs of police, and other law enforcement officers shall take the fingerprints of any person who, in the judgment of the arresting officer, is wanted on a felony charge, or who, the arresting officer has reason to believe, is a fugitive from justice. Copies of such fingerprints in duplicate shall be transmitted to the superintendent of criminal identification within 24 hours after an arre

OPINION 49-83 December 13, 1949 (OPINION) GAME AND FISH RE: Trapping of Bank Rats Section 20-0706 N.D.R.C. 1943 provides for the method of taking muskrats. This section provides for the taking of muskrats when they are "injurious to any property." This matter is left to the discretion of the Commissioner. This section provides the methods of trapping muskrats and provides that the animals may be trapped "in their houses when the houses are opened by means of removing a wedged-shaped portion from the side of each house not to exceed one square foot in size by either a saw

OPINION 49-99 December 12, 1949 (OPINION) LABOR RE: Public Employees Have Right to Organize a Union and Bargain Collectively I received your letter of December 10, 1949, wherein you state that the North Dakota Labor Division has had numerous requests to clarify the status of public employees as they relate to the legal right of such employees--state, county, and municipal--to join a union of their own choice and to engage in collective bargaining and negotiating procedure, and you state that you would like our opinion as to whether or not there are specific provisions in the st

OPINION 49-87 December 12, 1949 (OPINION) HIGHWAY PATROL RE: Retirement Act Your inquiry of December 8, 1949, addressed to the Honorable Wallace E. Warner, Attorney General, has been referred to the undersigned for attention in his capacity as Special Assistant Attorney General for the State Highway Department. Specifically your inquiry is directed as to the status of patrolmen appointed prior to World War II and who served in the military forces during World War II. Section 8 of chapter 239 Laws of 1949 provides that in computing the length of service of a contributor for re

OPINION 49-157 December 12, 1949 (OPINION) PLUMBING RE: Interpretation and Definition In your letter of November 9, 1949, you request, "an opinion from your office at your convenience pertaining to the State Plumbing Law, Chapter 43-18, R.C. 1943." You then state, "We are in the process of printing a new Plumbing Code and it is possible we may make some changes from the present one. We are anxious to know if it may be possible to include water softeners, storage heaters, dish washing sinks, etc., as plumbing." When we discussed this matter with you personally you requested th

OPINION 49-127 December 12, 1949 (OPINION) LIVESTOCK RE: Running at Large on Highway Acknowledging receipt of your letter of December 8th addressed to Hon. Wallace E. Warner, Attorney General, the matter has been referred to me in my capacity as Special Assistant Attorney General for the State Highway Department. Section 36-1101 N.D.R.C. 1943 provides as follows "no cattle, horses, mules, swine, goats or sheep shall be permitted to run at large at any time except as provided in this chapter". The exceptions to this law are cases where the County Commissioners by resolution es

OPINION 49-36 December 9, 1949 (OPINION) CREDIT UNIONS RE: Refund of Interest Your letter of December 6 addressed to the Attorney General has been received and referred to the undersigned for attention and reply. The question you present for consideration by this office is whether or not a chartered credit union may legally refund interest paid by a borrower as a patronage dividend and in this connection you refer to Section 6-0626 which provides that at the end of any fiscal year a credit union upon recommendation of its board of directors may declare a dividend which shall be

OPINION 49-90 December 7, 1949 (OPINION) INSURANCE RE: Articles of Incorporation The Secretary of State has transmitted the attached Articles of Incorporation of the American Christian Life Insurance Company of Fargo for our examination and approval. They have also asked us to forward them to you for your approval after we have made our examination. I find on examining the attached Articles of Incorporation that they are conformable to chapter 26-08 of the Revised Code of 1943 and not consistent with the constitution and laws of the State of North Dakota, with the exception

OPINION 49-184 December 5, 1949 (OPINION) TAXATION RE: Rural Electric Cooperative Re: Section 57-3301-02-4 R.C. 1943 Your letter of November 30, re taxation of rural electric cooperatives, has come to my desk. This matter is governed by sections 57-3301, 57-3302 and 57-3304. Section 57-3304 imposes a gross receipts tax on these corporations and provides that this tax shall be in lieu of all other taxes "on the personal property" of the corporation. Section 57-3302 defines what property shall be included in the term "personal property." It is our opinion that this definitio

OPINION 49-132 December 2, 1949 (OPINION) MOTOR VEHICLES RE: Liability of Drivers Operating Government Vehicles The question of whether or not operators of government-owned vehicles involved in an accident must comply with the provisions of the Financial Responsibility Act, chapter 39-16, 1947 Supplement of the North Dakota Revised Code of 1943, has been under discussion on numerous occasions, and several opinions have been written concerning it. The matter has been up principally to vehicles under the control of Colonel J.S. Seybold, Corps of Engineers, Fort Lincoln, North Dak

OPINION 49-168 December 1, 1949 (OPINION) SCHOOLS RE: Reorganization The letter of Gertrude Quam, county superintendent of Cavalier County, of date November 28, 1949, asking this question: "Must the bonded indebtedness of the district involved be paid by those individual districts themselves or may such indebtedness be spread over the entire reorganized area?", which you transmitted to this office, has been referred to my desk. The statute, chapter 15-53 of the 1947 Supplement to N.D.R.C. 1943, does not specifically answer the question. Sections 15-5312 and 15-5313 merely

OPINION 49-145 November 26, 1949 (OPINION) OCCUPATIONS AND PROFESSIONS RE: Electricians - Affidavit Necessary The following question has been raised by several people and members of the board. They have asked whether or not a person, form or corporation furnishing electrical power may connect the current to electrical wiring in a building where the wiring was done several years ago and does not now comply with the rules and regulations of the State Board of Electricians, the Public Service Commission, the Commissioner of Insurance or the State Fire Marshal made under authorit

OPINION 49-195 November 21, 1949 (OPINION) TOWNSHIPS RE: Share of Funds Yours of the 17th inst. relative to Fryburg Township has been received and referred to my desk. You state that Fryburg Township thinks that it should receive a share in the following funds: First: Motor fuel tax: The allocation of the part of this fund not going to the State Highway Fund, (2/3 to State Highway Fund) is to the various counties in proportion to the number of motor vehicles registered in each county to the total number of motor vehicles in the entire state. Each county's share is to be

OPINION 49-38 November 15, 1949 (OPINION) DRAINS RE: Drain Commissioners - Power of In a letter addressed to you under the date of November 10, 1949, Mr. Elmer L. Worthington, District Conservationist of the U.S. Department of Agriculture, Bottineau, North Dakota, asked you to request the opinion of the Attorney General as to legal right of the Board of Drain Commissioners to construct a drain terminating in an established drain, for the drainage of lands which were not assessed for the costs of constructing the established drain. Under the provisions of Section 61-2133 of the

OPINION 49-84 November 12, 1949 (OPINION) HEART BUTTE IRRIGATION DISTRICT Your letter under date of August 28, 1949, addressed to Honorable Wallace Warner, Attorney General, and the questionnaire attached thereto, has been referred to me as Special Assistant Attorney General for the State Water Conservation Commission for consideration and reply. I shall state my opinion as to each of your questions in the order set forth in your questionnaire. "Question 1: What lands in the irrigation district are assessable, and how will the designation of assessments on various tracts, parcel

OPINION 49-208 November 3, 1949 (OPINION) WELFARE RE: Soldier's Bonus is a Gratuitous Payment I have your letter dated October 27th, 1949, in which you state that a widow is receiving old age assistance of $404.00 per month, which is administered by the State Welfare Society and they have informed her what she must do with this bonus she is about to receive, as the mother of a deceased son, who was entitled to a bonus payment. You further state that she was instructed that she must set aside a portion of this bonus to take care of her own funeral expense when she dies, and us

OPINION 49-67 October 31, 1949 (OPINION) GAME AND FISH RE: Bounty Payments Your letter of October 27, 1949, has been referred to the undersigned for answer. In your letter your request our opinion as to whether it is sufficient to exhibit the head and ears together with the tail of a coyote or fox for the purpose of collecting bounty. The statute, section 20-1302 of the 1943 Revised Code, is quite explicit in requiring that the skin of such animal, including the tail, the skin for the forehead, and both ears, and the skull, be exhibited. I am of the opinion that exhibiting th

OPINION 49-191 October 31, 1949 (OPINION) TOWNSHIPS RE: Easements Your letter of October 27, 1949, has been referred to the undersigned for answer. In your letter you state that a township in your county has given to a telephone company a right-of-way to place telephone poles and wires along a township highway; that the highway is located on a section line; and that the poles will be placed within the 33 feet on each side of the section line which is allowed, by statute, for highway purposes. You then ask, "May the township give such an easement and may such an easement for r

OPINION 49-80 October 25, 1949 (OPINION) GAME AND FISH RE: Migratory Bird Hunting Stamp Yours of this date, requesting the opinion of this office as to the construction of Section 718a, Title 16, U.S.C.A. (Vol. 16), has been received and referred to my desk. This section provides that "No person over sixteen years of age shall take any migratory waterfowl unless at the time of such taking he carries on his person an unexpired federalmigratory-bird hunting stamp validated by his signature written by himself in ink across the face of the stamp prior to his taking such birds;* * *

OPINION 49-83 October 24, 1949 (OPINION) GAME AND FISH RE: Seizure of Gun Re: Chapter 20-10 N.D.R.C. 1943 Your letter of the 19th inst. involving the construction of the above chapter has been received and referred to my desk. You state that recently a party was arrested for a game law violation and pleaded guilty. You also state that the game warden seized the gun used in the violation, and that the gun had been purchased on a conditional sales contract and was only about one third paid for. You ask whether, in our opinion, this gun was subject to seizure and condemnation.

OPINION 49-154 October 24, 1949 (OPINION) OFFICERS RE: Sickness Re: Section 44-0201 of 1947 Supplement Your letter of October 20th, re the above, has been received and referred to my desk. Your letter is short and is as follows: In case an official of a county office is ill for over sixty days and unable to perform the duties of his office how long will the county have to pay him his monthly salary? Will this go on indefinitely or will the officer still retain his title and remuneration?" To answer your question we must construe the above section. It is our opinion that,

OPINION 49-52 October 21, 1949 (OPINION) ELECTIONS RE: Resignation of Mayor Your letter of October 19, re the situation in your city resulting from the resignation of your mayor, has been received and referred to my desk. You state that your then mayor resigned on July 5, 1949; that your next regular city election will be held in April, 1950; that your city council accepted such resignation; that your council, on July 13th, elected one of your aldermen to act as mayor until the next regular election. This all complies with the provisions of section 40-0816 N.D.R.C. 1943. Y

OPINION 49-167 October 21, 1949 (OPINION) RECORDING RE: Filing of Conditional Sales Contract Your letter of the 18th inst. has been referred to my desk. You ask whether a conditional sales contract may be filed in your office when the execution thereof has not been proven by the signatures of two witnesses, or by an acknowledgement. Conditional sales contracts are authorized by section 51-0121 N.D.R.C. 1943. Section 51-0710 provides that all reservations of title to personal property, as security for the purchase price thereof, when the possession of such property is delivered

OPINION 49-190 October 20, 1949 (OPINION) TOWNSHIPS RE: Culverts Your letter of the 17th inst., re duty of township to enlarge culvert in road to accommodate an increased flow caused by an artificial drain constructed by a landowner, has been received and referred to my desk. 67 C.J., page 875, says: * * *an upper owner has no right to increase materially the quantity or volume of water discharged upon the lower estate; * * *." In view of this statement of the law, it is our opinion that the upper owner had no right to construct an artificial drain which would materially inc

OPINION 49-176 October 14, 1949 (OPINION) TAXATION RE: Estates The question has been submitted to this office with reference to the application of Chapter 338 of the Session Laws of 1949. This chapter amends section 57-3716 N.D.R.C. 1943, relating to estate taxes. Section 57-3716 provides that the estate taxes shall be due and payable at the death of the decedent and if not paid within one year after the death of the decedent shall bear interest at the rate of six percent per annum to be computed from the expiration of one year after death of decedent until the amount is paid.

OPINION 49-182 October 13, 1949 (OPINION) TAXATION RE: Minerals Re:L Chap. 57-49 1947 Supplement Your letter of October 10th, re the above, has been received and referred to my desk. This Act, in express terms, imposes a tax only on the grantor in a deed when he reserves any interest in the minerals which may lie on or in land. It does not purport to lay any tax on the mineral rights which may be conveyed by deed. Therefore, where a grantor by deed grants the surface rights to and and reserves any interest in minerals therein or thereon to himself, he, himself, becomes l

OPINION 49-92 October 7, 1949 (OPINION) INSURANCE RE: Gift of Fire Alarm to Each Policy Purchaser Illegal You have asked this office for an opinion in regard to a letter written by Mr. W.E. LaPlante, on October 3, 1949, to the Insurance Commissioner. In his letter, Mr. LaPlante is suggesting that one of two types of fire alarms systems be given to the purchaser of an insurance policy from his company. In the letter he writes: "I am suggesting to one of my insurance companies that they give one or another of these alarms to each policyholder who purchases insurance with a prem

OPINION 49-126 October 3, 1949 (OPINION) LIQUOR RE: Sunday Sales are Violation of Sabbath Breaking Act I have your letter in which you state that a certain retail dealer in alcoholic beverages sold intoxicating beverages after the hour of midnight Saturday night and on Sunday morning. You ask for an opinion whether or not this is a violation of section 5-0509, subsection 4 of the 1947 supplement to the 1943 Revised Code, which states that the holder of a license shall not be authorized to sell or permit the consumption of beer or alcoholic beverages on any licensed premises,

OPINION 49-11 October 3, 1949 (OPINION) BONDS RE: Dealers Re: International Harvester Company - Dealer's Bonds This is in reply to your request this morning for an opinion as to whether or not the International Harvester Company, a corporation, is required to furnish a bond under chapter 244 of the Session Laws of 1949 for each of its dealers in North Dakota. This company has a dealer in each of the three cities of Grand Forks, Fargo and Bismarck and a dealer's license has been issued to each of these dealers. The International Harvester Company is a corporation and as such

OPINION 49-58 September 30, 1949 (OPINION) ELECTRICAL COOPERATIVES RE: Emergency When you were in the office on September 28, you asked me to pass on the legality of action taken by the Baker Electric Cooperative in declaring an emergency as provided in section 9 of House Bill No. 288 of the 1949 Legislative Session. The excerpts from the minutes show that a motion was made, seconded, and carried that certain people be allowed to do electrical wiring under the emergency clause. This motion took place at the directors meeting on August 25, 1949. The minutes of the meeting do

OPINION 49-93 September 29, 1949 (OPINION) INSURANCE RE: Investment of Funds You have asked whether the Home Protective Benevolent Society may invest funds of the company in real property or land. Section 26-2501 of the North Dakota Revised Code of 1943, as amended by chapter 208 of the 1945 Session Laws, provides, "Benevolent societies, as defined in section 26-2502, shall be under the jurisdiction of the commissioner of insurance and shall be and remain subject to all the laws, rules and regulations applicable to insurance companies transacting business within this state, exc

OPINION 49-150 September 29, 1949 (OPINION) OFFICERS RE: Judges' Retirement This is in reply to your letter of September 27 in which you ask for an opinion of this office as to whether judges of the supreme court retired under Chapters 206 and 207 of the 1949 Session Laws are required to pay the assessments provided for by Section 2 of Chapter 206. Chapter 206 provides for the retirement of judges who have reached the age of seventy years and who have served in a judicial capacity for eighteen years. Section 4 of said Act provides that any such retired judge shall for the re

OPINION 49-29 September 23, 1949 (OPINION) COUNTIES RE: Club Work Re: Chapter 2, S.L.1949 Yours re payment of appropriation made by Chapter 2 S.L. 1949 for boys' and girls' club work for Sioux County, addressed to the attorney general, has come to my desk for reply. It appears that Irvin D. Morrison, County Agent for Grant County, serves as part time county agent for Sioux County. He has made application for payment of the $200.00 appropriation for Sioux County for payment of premiums for boys and girls club work in Sioux County. It further appears that Sioux County is to

OPINION 49-128 September 22, 1949 (OPINION) MARRIAGE RE: Certified Copy of Decree of Divorce Re: Section 14-0317 R.C. 1943 Yours of the 21st inst. regarding the requirement of section 14-0317 (2) that a certified copy of the decree of divorce be filed by any applicant for a marriage license who has been divorced, has been received. From your letter it appears that the applicant was divorced in Nebraska; that he entered the army in the last war and that his copy of the decree was lost; that the court records were burned some time ago; and that it is now impossible to secure a

OPINION 49-35 September 21, 1949 (OPINION) COUNTY JUDGE RE: The Fact of Having Witnessed the Will Does Not Disqualify Further Actions by County Judge After It Has Been Admitted to Probate by a Disinterested Judge Your letter of September 19 addressed to the Attorney General has been received and contents of same have been noted. You refer to Sections 27-0719 and 27-0720 of the North Dakota Revised Code of 1943 which provides for situations in which a judge of the county court may be disqualified. You state that you have been disqualifie

OPINION 49-124 September 16, 1949 (OPINION) LIQUOR RE: Limitation of Licenses I have your letter of September 9 and contents of same have been noted. The question that you submit is whether or not the Ward County Commissioners may refuse to issue a beer license to an applicant who is properly qualified under the law to engage in the business of selling beer. You also enclose a copy of an opinion written by Mr. Alvin C. Strutz in which he takes the position that the county commissioners have no discretion and they must issue a license if the person making the application has t

OPINION 49-161 September 14, 1949 (OPINION) PLUMBING RE: Qualifications of Members of State Board Re: Section 43-1802 R.C. 1943 Your letter of September 13, asking our interpretation of the above section, has been received and referred to my desk. It is our opinion that neither of the members of the board who are required to be plumbers are required to be licensed plumbers at the time of their appointment. If they have been residents of the state for five years and have had five years' experience in the plumbing business in the classification to which they belong, they are e

OPINION 49-63 September 10, 1949 (OPINION) FEES RE: Discharging Real Estate Mortgage Your letter of August 30, 1949, to Honorable Wallace E. Warner, attorney general, has been received. In your letter you ask regarding the fee to be charged by the clerk of the district court for the filing of application and order in the matter of discharging a real estate mortgage. Your are informed, under the wording of the statute, this office holds that the filing fee in such cases is the sum of seven dollars and fifty cents. WALLACE E. WARNER Attorney General

OPINION 49-205 September 10, 1949 (OPINION) WELFARE RE: Duty to Investigate Re Adoptions Your letter of September 6, 1949, to the Honorable Wallace E. Warner, Attorney General, has been received. In your letter you refer to section 14-1109 of the 1943 Revised Code, pertaining to adoptions, which section provides that it is the duty of the public welfare board to make certain investigations. You also call our attention to section 50-0109 of the 1943 Revised Code, relative to the duties of the county welfare board, and you request the opinion of this office as to whether the publ

OPINION 49-137 September 1, 1949 (OPINION) OLD AGE AND SURVIVORS INSURANCE ACT You have asked this office for a construction of portions of chapter 52-09 of the 1947 Supplement, usually referred to as the "old Age and Survivor Insurance Act." There is a certain amount of confusion as to the meaning of various terms and definitions set out in the act. You will note that subsection F. of section 52-0920 undertakes to define a "fully insured individual", and you will note that section 52-0921 makes a provision as to when an employee may withdraw contributions from the fund. Sect

OPINION 49-88 August 30, 1949 (OPINION) INSANE PERSONS RE: Liability for Keep Re: Chapter 198 S.L. 1949 Yours regarding the above law has been received and referred to my desk. It is our opinion that chapter 198 of the Session Laws of 1949 makes no change in liability to the county for institutional care at the state hospital, the state school, or the state sanatorium. A patient discharged as cured, or his estate, if he dies at the institution, is liable. The new law merely makes the auditor responsible for keeping records so that the accounts can be kept account of and co

OPINION 49-97 August 24, 1949 (OPINION) INSURANCE RE: Use of Proceeds of Insurance on Village Hall Your letter of August 22, asking whether or not the village board may use the proceeds of the insurance of the village hall to put in new water mains in the village, has been referred to me for reply. It is our opinion that this may not easily be done. When an insured public building burns, the insurance money stands to the public exactly as the building did, and the money can legally be used only to replace the building burned. If your village no longer desires to have and own

OPINION 49-68 August 22, 1949 (OPINION) GAME AND FISH RE: Confiscation of Gun Re: Sections 20-1001 and 20-1003 1943 Revised Code Your letter of August 20, re the above sections, has been received. It is the opinion of this office that under the provisions of sections 20-1001 and 20-1003 any gun used by any person in the unlawful killing of game or unlawful hunting with intent to kill game is subject to confiscation. If makes no difference that the gun may belong to someone else. There may be some question if the gun is used without the knowledge of the owner whether or not

OPINION 49-60 August 19, 1949 (OPINION) FARGO POLICE PENSION ORDINANCE RE: Rights of Withdrawal Re: Chapter 40-45 R.C. 1943 Yours of the 17th inst. re Fargo Police Pension Ordinance has been received and referred to may desk. The Legislature had undoubted authority to enact chapter 40-45 found in the North Dakota Revised Code of 1943. We find no authority in section 40-0501 or 40-0502 N.D.R.C. giving cities any authority to enact ordinances relating to a pension system for the city. The only law relating to police pensions, therefore, is chapter 40-45. McQuillin says: "More

OPINION 49-202 August 18, 1949 (OPINION) VETERANS RE: Soldier's Bonus The following two statements express the opinion of the Attorney General's office as to two questions arising in the process of making adjusted compensation payments: 1. If the parents of the deceased veteran are entitled as next of kin to adjusted compensation, and the parents are divorced, both parents shall apply. The parents shall share equally in the compensation, and the fact that one parent was awarded custody of the deceased veteran shall not entitle that parent to the entire amount of the compe

OPINION 49-183 August 17, 1949 (OPINION) TAXATION RE: Motor Vehicle I am herewith returning letter from Mr. A. R. Bergesen, Attorney at Law, Fargo, North Dakota, dated August 11, 1949, wherein he takes issue with Regulation No. 2 of your department with reference to use tax. We have your request for an opinion on this matter. As we understand it, Mr. Bergesen has a client who owned an automobile upon which he had paid the sales tax in the state of North Dakota. He took said car to a foreign state and traded it for a new car and paid a sales tax in that foreign state upon th