North Dakota AG Opinions, 1950

OPINION 50-68 October 25, 1950 (OPINION) GAME AND FISH RE: Hunting on Highways Yours of the twentieth inst., asking for a clarification of the law governing the rights of licensed hunters to hunt on state highways, has been received and referred to my desk. We had noticed an item in recent newspapers to the effect that the attorney general of Minnesota had recently given it as his opinion that hunting on public highways was permissible in his state. We procured a copy of his opinion. His opinion, however, turns upon the interpretation of statutes of Minnesota relative to th

OPINION 50-95 October 24, 1950 (OPINION) LABOR RE: City Has No Authority to Fix Age Limits for Civil Service Positi Your letter of the twenty-third inst. requesting a clarification of chapter 40-44 N.D.R.C. has been received and referred to my desk. You state that a certain city in North Dakota, which has adopted the civil service plan authorized by said chapter, "has set an age limit span for men taking civil service examinations for plumbing inspector between the ages of 26 and 45 years." You say that you would like an opinion from this office as to whether or not the enabli

OPINION 50-83 October 20, 1950 (OPINION) INSURANCE RE: Organization of Mutual Life Insurance Company We are in receipt of your letter of October 13, 1950, in which you ask whether or not a domestic Mutual Life Insurance Company may be organized with assets of a suitable nature in the amount of $25,000.00 and $10,000.00 surplus. Section 26-1102, N.D.R.C. 1943, provides: No policy shall be issued by a purely mutual life insurance company until not less than two hundred thousand dollars of insurance in not less than two hundred separate risks have been subscribed for and entered

OPINION 50-68 October 18, 1950 (OPINION) GAME AND FISH RE: Forfeiture of License Yours of the seventeenth inst. received. You ask about the construction of section 20-0337 N.D.R.C. 1943. This section hardly needs any interpretation. It plainly says that a person convicted of a game law violation, in addition to any fine and imprisonment inflicted by the court "shall forfeit any license or permit held by him for the privilege he has violated,". The forfeiture follows automatically any conviction. There is no option for the court but to declare the forfeiture. We believe

OPINION 50-199 October 18, 1950 (OPINION) VETERANS RE: Certified Copies Furnished Without Charge Yours of the 16th inst. has been received and referred to my desk. You ask for our interpretation of Section 37-0136 (Chapter 235, Laws 1949). This section provides that when any veteran, his guardian, dependent, or representative needs a certified copy of "any public record" for use in connection with an application for benefits made available by Federal or State Laws, the official charged with the custody of such public record, shall furnish such copy without charge. It is our opinion that t

OPINION 50-19 October 16, 1950 (OPINION) CITIES RE: Proper Use of Public Park Your letter of the twelfth instant relating to use of part of the land conveyed to the city for park purposes for airport use has been received. You say that this land was deeded to the city for park purposes with a provision for reversion unless there was continued use as a park and public playground and place of public recreation. You say that the city desires to use a portion of this land as a municipal airport and ask an opinion as to whether such use would cause a reversion to the original gra

OPINION 50-152 October 4, 1950 (OPINION) SCHOOLS RE: Use of Building Fund This is in reply to your request for an opinion from this office on the following situation: During the past year it became necessary to install a new floor in your gymnasium which is a part of your high school building. It also became necessary to equip the building with Rusco windows in order to save fuel and make the building more comfortable for the teachers and pupils. You also have a building fund established by a vote of the electors a year or so ago and the accumulation in said building fund am

OPINION 50-171 September 29, 1950 (OPINION) TAXATION RE: Crude Oil Pipe Line Passing Through State Not Subject to Use Tax Your letter of September 27, 1950, addressed to the Attorney General has been received and contents duly noted. You state that the Interprovincial Pipe Line Company, a Canadian corporation, and your client, Lakehead Pipe Line Company, Inc., a Delware corporation, a subsidiary of the Interprovincial Pipe Line Company, are building an 1100 mile pipe line for the transmission of crude petroleum from the oil fields near Edmonton, Alberta to a Lakehead dock at Su

OPINION 50-9 September 20, 1950 (OPINION) AGRICULTURE RE: Sale of Unlawful Cream In your letter of the eighteenth, you ask our interpretation of chapter 4-18 N.D.R.C. 1943 and, specifically, whether or not this chapter makes a producer, i.e.; a dairy farmer, guilty of a misdemeanor if he sells cream classed as "unlawful cream" by subsection 4 of section 4-1815. From our examination of the whole chapter, it is our opinion that the producer may sell with impunity cream classed as "unlawful cream" if he can find a purchaser. But, unfortunately for the purchaser, he is guilty of

OPINION 50-141 September 16, 1950 (OPINION) PROPERTY RE: Tax Contracts In your letter of September 14 you ask: "If a person has an unpaid tax contract with the county but other taxes are paid can one put on a quit claim deed and certify the taxes as being paid?" Tax contracts, which you refer to, were made under the terms of chapter 240, laws of 1937. This act merely permitted a property owner owing taxes for years prior to 1936 to make a contract with the county to pay such delinquent taxes in six annual installments. The making of such contract merely suspended the opera

OPINION 50-130 September 14, 1950 (OPINION) PLUMBING RE: Board's Jurisdiction Yours of September 13th requests an opinion as to whether or not the board would be within the law if it demanded that plumbing installed in a building in an incorporated municipality having a public waterworks and sewage system be corrected to comply with the plumbing code, when such installation is not made as required by said code. And further, whether the board would be within the law if it caused a prosecution of the person who made such installation, he not being a licensed and registered plumbe

OPINION 50-131 September 12, 1950 (OPINION) PLUMBING RE: Examinations Re: Sections 43-1812 and 43-1813 N.D.R.C. 1943 and Rule 6 Plumbing Rules. Yours of the 12th inst. asking for an opinion as to the procedure of the board in the matter of examinations under the above sections and section 6 of rules and regulations of the board has been received. You state that the way the board now operates is as follows: "Persons desiring to become licensed make application on forms provided by us and submit the examination fee, the board then reviews the application and passes or rejects

OPINION 50-137 September 7, 1950 (OPINION) PROPERTY RE: Execution of Oil and Gas Leases Your letter of September 5th, 1950 is at hand. You state that you recently forwarded to the register of deeds of Dickey County a gas and oil lease on certain property in Dickey County and that the register returned it to you unrecorded for the reason that it had not been executed and acknowledged by the lessee. It is our opinion that a gas and oil lease, so-called, is governed by the same rules of law as govern leases of any other real property. Our statute, section 47-1001, provided: "An

OPINION 50-16 August 23, 1950 (OPINION) CITIES RE: Green River Ordinances This is in answer to your letter of August 12, 1950. You ask whether or not the following ordinances of Rugby are constitutional: It defines a solicitor as: "A person who goes from place to place or house to house or who stands in any street or public place taking or offering to take orders for goods etc. * * * or for services to be performed in the future, or making, manufacturing, or repairing any article or thing whatsoever for future deliver." "The practice of going in or upon private residences

OPINION 50-138 August 23, 1950 (OPINION) PROPERTY RE: Liability of State-owned Property for Special Assessments Your letter of August 22, with enclosure of letter of the city auditor of Hettinger, re special assessments on certain lots in Hettinger belonging to the State of North Dakota, has come to my desk for reply. From your letter we infer that these lots belong to the state and are used by your department, and that the city of Hettinger has made special improvements and has made assessments against this property. You ask our opinion as to whether or not the state of North

OPINION 50-72 August 19, 1950 (OPINION) GAME AND FISH RE: Regulation of Migratory Waterfowl You have asked the opinion of this office as to whether or not your department has authority to grant permits to farmers whose crops are being damaged by migratory waterfowl to kill, frighten, or otherwise herd such migratory waterfowl for the purpose of protecting their crops. Ever since the case of Missouri v. Holland, 252 U.S. 416, 64 L. ed. 641, 40 S. Ct. 382, 11 A.L.R. 984, decided by the Supreme Court of the United States in 1920, Congress has assumed the exclusive right to contro

OPINION 50-177 August 19, 1950 (OPINION) TAXATION RE: Farm House Within Village Limits Subject to Taxation Your letter of August 16, 1950, addressed to the attorney general, has been received and contents noted. You state that a taxpayer is the owner of approximately 16 acres of land adjoining an incorporated village. This was platted as an auditor's lot and was taxed within the village. The buildings upon this plot of land, including a barn, granary, windmill, machine shed, and other such farm buildings, were also taxed. These buildings are being used in connection with

OPINION 50-99 August 12, 1950 (OPINION) LABOR RE: Minors - Employment Involving Power Driven Machinery I am in receipt of your letter of August 10, 1950, requesting an interpretation of section 34-0716(1) of the North Dakota Revised Code of 1943. Your specific question is contained in the second paragraph of your letter, which reads as follows: We would like your opinion as to whether this section (34-0716(1)) would apply to a minor under the age of sixteen years who helps to unload a power driven machine in the form of a truck but does not at any time drive or assist in drivi

OPINION 50-118 August 12, 1950 (OPINION) OATHS RE: Who May Administer Your recent letter, undated, has been received and referred to my desk. We know of no ruling by this office that village clerks are ex officio notaries public and, if such ruling has been made, it is certainly erroneous. Our statute, section 47-1914, provides in part as follows: "47-1914. The proof or acknowledgment of an instrument may be made in this state within the judicial district, county, subdivision, or city for which the officer was elected or appointed, before: 7. A township or village clerk

OPINION 50-188 August 10, 1950 (OPINION) TAXATION RE: Tax on Property Removed from City Limits After Assessment Date Your letter of August 9, 1950, re - the above matter has been received. You state that certain real property was regularly withdrawn from the city limits of the city of Bismarck after the assessment for 1950 had been made, but before the tax levy based on such assessment was made. You ask our opinion "as to whether or not the city taxes can be levied against the property for 1950, the property being no longer a part of the territory within the corporate limits."

OPINION 50-144 July 31, 1950 (OPINION) RAILROADS RE: Full Train Crew Your letters of June 8, 1950, and July 17, 1950, addressed to Mr. P. O. Sathre of this office, have been turned over to the undersigned. In your letters you request an interpretation of section 49-1311, NDRC, 1943, as applied to a set of facts outlined in your letter of June 8, 1950. These facts are set out in the third paragraph of your letter as follows: "It seems that a week or ten days ago, the exact date not being known at this time, train No. 219 left Minot with E. J. Pratt as its conductor and it had

OPINION 50-59 July 25, 1950 (OPINION) ELECTIONS RE: Marking Ballot Re: Section 16-1205 N.D.R.C. 1943 Your letter of the twentieth inst. re above section has been received. This section provides that the voter shall "prepare his ballot by placing a cross mark (x) within the square * * *." In Howser v. Pepper, 8 N.D. 484, 79 N.W. 1018, our court held that, under a statute which required the voter to indicate his choice by a "mark or cross," "a ballot which is only marked with a single straight mark in the party square should be counted." 29 C.J.S. P. 257 states that in so

OPINION 50-59 July 21, 1950 (OPINION) ELECTIONS RE: Electioneering on Election Day Yours of the nineteenth re above has been received and referred to my desk. You state that one of the judges of election who had not filed as a candidate for precinct committeeman and therefor did not have his name upon the ballot, did have his name written upon a blackboard in the polling place as such candidate. He received a majority over the candidate who had filed and whose name was upon the ballot. It is our opinion that the writing of his name on a blackboard and displaying it in the po

OPINION 50-114 July 20, 1950 (OPINION) OASIS ACT RE: Coverage This is in answer to your letter of June 23 in which you request the opinion of this office as to whether the employees and board members of the State Electrical Board are required to participate in the Old Age Survivor Insurance as set up in chapter 52-09 of the 1949 Supplement. Certain questions have been raised which I will answer. Since the North Dakota State Board of Electricians was established by North Dakota Law it is my opinion that the employees of that board are required by our low to pay contributions

OPINION 50-175 July 15, 1950 (OPINION) TAXATION RE: Excess Levy Authorized For One Year Only Your letter of July 13th re elections to increase levies under the above section has been received and referred to my desk. It is our opinion that the election authorized by this chapter can authorize an increase levy for only one year. The whole chapter seems to contemplate relief for only the current year, and it certainly does not, in terms, authorize an election to increase future levies. If such are included, why stop at seven years? How can the governing board know what the

OPINION 50-151 July 15, 1950 (OPINION) SCHOOLS RE: School Districts Not Within Purview of Se. 40-4101 Re: Section 40-4101 N. D. R. C. 1949 Supplement. Your letter of July 11, re the above section, has been received and referred to my desk. It is our opinion that no school district is a municipality within the purview of section 40-0101 1949 Supplement. I think this is clear from section 40-4002 N. D. R. C. which defines municipality with reference to municipal budgets as "any city, village or park district." Clearly, a school district is not a municipality within the pur

OPINION 50-153 July 13, 1950 (OPINION) SECURITIES RE: Mutual Life Insurance Companies I have your letter of July 11 asking for an opinion on subdivision 9 of section 10-0403 of the North Dakota Revised Code of 1943 relating to exemption to the securities and which provides, "Any security issued by any corporation, cooperative, company or association, whose earnings are distributed to its members, stockholders, or patrons according to patronage." Your inquiry is particularly as to whether the language quoted is sufficient to exempt securities issued by a mutual life insurance c

OPINION 50-148 July 12, 1950 (OPINION) SCHOOLS RE: Attendance at Educational Association Meetings This is in reply to your letter of July 10 addressed to the Attorney General. You ask for an interpretation by this office of the word "authorized" as used in the statute quoted in your letter. The statute reads as follows: "The board of education in special or independent districts, or the school board in any common school district is hereby authorized to allow the superintendent, principal or teachers of the schools under its charge, to attend, without loss of salary, any mee

OPINION 50-58 July 8, 1950 (OPINION) ELECTIONS RE: Candidate Nominated by More Than One Party I am in receipt of your letter of July 6, 1950, in which you request the opinion of this office on a matter involving the election of a precinct committeeman in Noble township. You say that one C. O. Swenson has received the highest number of votes for precinct committeeman in both the Democratic and Republican columns. You say that Mr. Swenson was not a candidate whose name appeared on the ballot and that his vote was a "write in" vote in both cases, and further that Mr. Swenson was

OPINION 50-94 July 3, 1950 (OPINION) JUSTICE COURT RE: Payment of Fines and Costs This is in reply to your letter of June 29 relative to section 33-1233 of the North Dakota Revised Code of 1943. Your question is whether a justice of the peace in finding a person guilty and imposing a fine may in addition thereto require the defendant to pay costs. Section 33-1233 provides that, "When in a criminal action the fine is paid, the justice must apply the money in payment of the legal costs and expenses of the prosecution and pay over the residue, if any, to the county treasurer." Y

OPINION 50-60 July 3, 1950 (OPINION) ELECTIONS RE: Precinct Committeemen Your letter of June thirtieth asking four questions re county precinct committeemen has been received. I will answer your questions in the order stated: Question No. 1. If a legislator is also elected precinct committeeman from his precinct, is he entitled to one vote or two? It is our opinion that such a committeeman could have only one vote on the committee. Question No. 2. If he is only entitled to one vote, can he name a proxy for the other vote, although he is not absent? In our opinion he ca

OPINION 50-20 June 9, 1950 (OPINION) CITIES RE: Electricity from Bureau of Reclamation I am in receipt of your letter of May 29, 1950, in which you request information relating to a proposed contract to be entered into between the city of Lakota and the Bureau of Reclamation. You state that the Bureau of Reclamation has offered to sell electricity to the city-owned municipal light plant at a price much lower than the plant is able to produce its own electricity. The source of the electricity is to be the Missouri River Basin Project. Your first question is: (1) May a council

OPINION 50-193 June 2, 1950 (OPINION) TOWNSHIPS RE: Levy In your letter of May 29, 1950, you request the opinion of this office interpreting section 57-15191, 1949 Supplement. You state that you would like to know what the eight mill levy provided for under the above section can be used for. Your specific questions being: 1. Can it be used for rebuilding an existing road? 2. Can it be transferred to the general fund by the voters in the township? 3. Is there a limit to the amount that can accumulate in this fund?" Section 57-15191, 1949 Supplement, provides as follow

OPINION 50-46 May 31, 1950 (OPINION) ELECTIONS RE: Death of Lemke, Congressman Your letter of May 31 addressed to the Attorney General has been received and contents of same have been noted. You state that the sudden death of Congressman William Lemke brings to the Secretary of State the special problem of notifying county auditors and to provide for likely rearrangement of the primary election ballot. You state further that the names of candidates for which nominating petitions have been filed were certified by your office to county auditors on May 29, 1950, in accordance wi

OPINION 50-23 May 31, 1950 (OPINION) CITIES RE: Lease of Room I am in receipt of your letter of May 23, 1950. You state that in view of the fact that the city hall has become inadequate, that the city of Parshall wishes to buy or lease a room in the memorial building for holding council meetings. You wish to know if this is within the power of the municipality. You also wish to know if the Memorial Hall Association is prohibited from entering into such an agreement. You say that the city is contemplating a long-time lease at an agreed figure of $2000.00. Section 48-0801 N.D.R

OPINION 50-150 May 26, 1950 (OPINION) OFFICERS RE: Justices I am in receipt of your letter of May 20, 1950, in which you state: I would like your opinion as to whether a County Justice of the Peace may also hold the office of City Justice." Inasmuch as there does not appear to be any inconsistency or conflict between the offices of county justices and city justices of the peace, it is the opinion of this office that the offices mentioned may be held by the same person. WALLACE E. WARNER Attorney General

OPINION 50-162 May 25, 1950 (OPINION) POULTRY IMPROVEMENT BOARD RE: Collection of Feed Fees I am in receipt of your letter of April 29, 1950, in which you request an opinion relative to the "collection of feed fees." You state that: "The Board is interested in knowing whether or not the manufacturer shipping feed into the state under bill of lading can be held responsible for the fees." You enclose a letter you have received from the attorneys representing the Northrup, King & Co., and as you do not contradict the facts set out therein, I assume that you are agreed that the

OPINION 50-69 May 23, 1950 (OPINION) GAME AND FISH RE: Federal Migratory Waterfowl Stamp After our conversation of May 19, 1950, I checked into the matter which we discussed, relative to the requirement of a federal migratory waterfowl stamp, the so-called "duck stamp." Your problem, as your outlined it to me, is as follows: You state that the governor, in his proclamation, rendered North Dakota hunters to have a federal duck stamp attached to their hunting licenses, and you wonder whether this requirement in the proclamation is authorized by the statutes, and what may be don

OPINION 50-169 May 20, 1950 (OPINION) SCHOOLS RE: Riverdale This is in reply to your letter of May 20, 1950, in which you request the opinion of this office as to the authority of your department to enter into a contract with the United States for the operation of the public schools heretofore maintained by the Federal Government in the town of Riverdale, McLean County, North Dakota. The proposed contract was duly considered at a joint meeting of your department and Col. F. M. Albrecht, Corps of Engineers, District Engineer, Contracting Officer, a short time ago, at which meeti

OPINION 50-64 May 17, 1950 (OPINION) FEES RE: Supreme Court Filing Fees Are Public Moneys This is in reply to your letter of May 8 addressed to the attorney general relative to the filing fees to be paid through the clerk of the Supreme Court upon appeals. The question you present is as to the method of handling these fees by the clerk of the Supreme Court. Section 27-0305 of the 1949 Supplement provides as follows: "FEES TO BE CHARGED AND COLLECTED AND COLLECTED BY THE CLERK OF THE SUPREME COURT. The clerk of the Supreme Court shall charge and collect in advance a fee of fi

OPINION 50-50 May 12, 1950 (OPINION) ELECTIONS RE: Precinct Committeemen Re: Publication Sample Ballots for Precinct Committeemen - Ch. 174 S.L. '47; Ch. 16-17 1949 Supp. Your letter of the 11th inst. re above has been received and referred to my desk. This office has held in a number of opinions that "Precinct committeemen" are not public officers and that the election of such committeemen at the time of the primary election does not make their election a part of the primary election - their election is not a nominating election but a final election. The primary nomination

OPINION 50-206 May 11, 1950 (OPINION) WELFARE RE: Employees Can Sign Nominating Petitions for County Officers I am in receipt of your letter of May 8, 1950, in which you request the opinion of this office, "as to whether or not employees of the county welfare board can or cannot sign nominating petitions for county officers." You enclose a copy of the merit system regulations affecting the political activity of welfare board employees. Said regulations read as follows: "Merit System Regulations C. Politics and Religion Par. 5. No employee of the agencies or the Council

OPINION 50-168 May 10, 1950 (OPINION) SCHOOLS RE: Memorial I am in receipt of your letter of May 5, 1950, in which you request the opinion of the attorney general's office on a proposed memorial to be set up for the Alexander high school. You state: The McKenzie County Commissioners have authorized a memorial levy subject to the approval of the county voters. When the levy was authorized the money was to be split between the Alexander High School Gymnasium and the Watford City Hospital. This was agreed on in the spring of 1949. We had already passed a bond issue for a bu

OPINION 50-11 May 3, 1950 (OPINION) BIDS AND BIDDERS RE: Certified Check Your letter of April 28 addressed to the Attorney General has come to my desk for attention. You state that the Board of Administration advertised for bids for a certain project and the bids were opened April 12, 1950. The low bidder did not enclose a certified check, but instead only a plain check. when this was discovered this bidder furnished a bank draft and about two weeks later furnished a certified check. You inquire whether the failure of the low bidder to submit the certified check as provide

OPINION 50-167 April 28, 1950 (OPINION) SCHOOLS RE: Additional Indebtedness This is in reply to your letter of April 25 in which you ask for a clarification of Section 15-4801 relative to the authority of the school board in the matter of additional indebtedness. You inquire whether the 5% of the assessed valuation is based upon 100% assessed value or whether it is computed on 50% of the valuation. Section 183 of the State Constitution, as amended by Article 35, provides that a school district may by majority vote increase its indebtedness beyond its 5% an additional 5%. Sec

OPINION 50-127 April 28, 1950 (OPINION) LIVESTOCK RE: Inspection Certificate I am in receipt of your letter of April 20, 1950, in which you request an opinion regarding chapter 36-10, N.D.R.C. 1943. You ask whether or not a private farmer may ship livestock out of your county without securing a certificate of inspection from the brand inspector where, as you say, the farmer is using his own truck in shipping his own livestock. I agree with the last paragraph of your letter in which you say that the chapter "seems to deal only with railroads and truck lines operating in or thro

OPINION 50-114 April 28, 1950 (OPINION) LICENSES RE: Interstate Sale of Oleomargarine Your letter of the 26th inst. re above matter hs been received and referred to my desk. Of course, our statutes (ch. 19-05 N.D.R.C. 1943) prohibit the sale in this state of oleomargarine without complying with the provisions of this chapter with reference to licenses, stamps, etc. However, we cannot require persons beyond the jurisdiction of the state to comply with these provisions; that is, we cannot interfere with out-of-state companies selling by mail and shipping this product into this s