North Dakota AG Opinions, 1955

OPINION 55-123 December 10, 1955 (OPINION) TAXATION RE: Levy on Sheep - Procedure This will acknowledge receipt of your request for an opinion of December 7, 1955, as to whether or not the petition provided for in section 20-1606 of the 1953 Supplement to the N.D.R.C. of 1943 is an annual procedure or if the petition once having been presented to the county commissioners the tax will continue to be levied until a petition to the contrary is presented to the board of county commissioners. This particular section deals with a tax levy on sheep for the eradication of predatory a

OPINION 55-75 December 9, 1955 (OPINION) LIQUOR ESTABLISHMENTS RE: Holiday - Christmas Day I have your letter of December 5, 1955, in which you raise this question: "Where Christmas Day falls on a Sunday are the liquor establishments required to close on the following Monday?" Replying to your question, I call your attention to section 5-0113 of the 1953 Supplement to the North Dakota Revised Code of 1943, which makes it unlawful to dispose of alcoholic beverages after six p.m., on Christmas Eve and on Christmas Day. Along with Christmas Day are named two other holidays, Me

OPINION 55-33 December 9, 1955 (OPINION) COUNTIES RE: Bond Issues - Board of Budget Review This office acknowledges receipt of your letter of December 7, 1955, discussing the question of the necessity to submit to the board of budget review the question of voting upon bonds with which to enlarge or improve your county court house. You seem to be of the opinion that a board of budget review is necessary for the county. It is true that the law does not exclude any county. However, you will notice that section 40-4101 outlining who shall be members of the board of budget rev

OPINION 55-60 December 6, 1955 (OPINION) GAME AND FISH DEPARTMENT RE: Authority to Accept Gifts Your request for an opinion as to your authority to accept and use gift moneys in matching federal aid in the purchase of wetlands, is herewith acknowledged. In an opinion dated June-24, 1954, we advised that section 1-0804 of the North Dakota Revised Code of 1943 authorized you to accept gifts of real estate in behalf of the State of North Dakota. Under the authorization in that same section, you may also accept gifts of personal property in behalf of the State of North Dakota, an

OPINION 55-28 December 12, 1955 (OPINION) CITIES RE: Ordinances - Uniform Traffic Ticket This office acknowledges receipt of your letter of December 7, 1955, inquiring whether or not a city like Rugby may enact an ordinance making it a municipal crime to commit the act of reckless driving or to have open liquor containers in the automobile. You make reference to the Uniform Traffic Act. It is our opinion that under the amendment as provided for by Chapter 254 of the 1955 Session Laws, section 40-0501 of said chapter, that a municipality may legally enact an ordinance and adop

OPINION 55-26 November 30, 1955 (OPINION) CITIES RE: Employees - Liability of City for Torts of Firemen We have received your letter of November 22, 1955, requesting an opinion in regard to the above matter. Generally speaking, in the absence of a statute creating liability, a municipality is not liable for the torts of its agents while engaged in any governmental function of such municipality. Since the operation and maintenance of a fire department is a governmental duty or function, no legal liability attaches to a city by reason of torts of firemen while engaged in the pe

OPINION 55-111 November 30, 1955 (OPINION) SPEED LAWS RE: State Highways Within Municipal Limits We acknowledge receipt of your letter of November 15, 1956, requesting an opinion with regard to the authority to establish speed limitations on portions of state highways within the corporate boundaries of municipalities. There is some doubt as to the intent of the Legislature in adopting measures such as section 3 of Chapter 254, S.L. 1955, which apparently grant to the Highway Commissioner and the Superintendent of the State Highway Patrol, complete control over the determining

OPINION 55-96 November 29, 1955 (OPINION) RECORDING RE: Fees We have your letter of November 22, 1955, in which you enclose a mimeographed copy of charges for recording certain documents. You state that a dispute has arisen because you charged three dollars for the recording of a North Dakota standard farm mortgage. In 1953 the Legislature enacted chapter 113 of the 1953 Session Laws which is an amendment of section 11-1805 and section 35-0306 of the N.D.R.C. of 1943 and it may be found in the 1953 Supplement likewise. Now in this Act of the Legislature, they have enumerated

OPINION 55-106 November 29, 1955 (OPINION) SCHOOLS RE: Pupils - Released Time Study You state that your school board has agreed to release the high school children for one hour per week for religious instructions. The hour allotted for this purpose is during a study hall period. You state that you have been told this illegal, and you ask for our interpretation of section 15-3407 of the N.D.R.C. of 1943. We believe that section 15-3407 is a released time statute, and under it a parent or guardian can demand that a school district release a child or children for one hour each wee

OPINION 55-47 November 23, 1955 (OPINION) DRIVER'S LICENSE LAW RE: "Final Conviction" We acknowledge receipt of your request for an opinion from this office with regard to convictions as that term is used in the driver's license law and as affected by a suspension of imposition of sentence under chapter 12-53 of the 1953 Supplement to the North Dakota Revised Code 1943 as amended. You ask whether there has been a final conviction where there is a plea of guilty or a finding of guilty but no sentence imposed. It is the opinion of this office that a plea of guilty with no legal

OPINION 55-88 November 22, 1955 (OPINION) NEWSPAPERS RE: Publication of Election Notices This is in reply to your letter of November 16, 1955, requesting an interpretation of section 46-0501 of the North Dakota Revised Code of 1943 in relation to publication of notices of election as provided in section 21-0312. According to your letter The Powers Lake Herold is published at Power Lake but the entire paper is printed in Stanley, North Dakota. This fact is stated on the date line of the paper as well as in the body of the paper below the official name. Your question arises as

OPINION 55-47 November 22, 1955 (OPINION) DRIVER'S LICENSE LAW RE: Plea of Guilty Under Municipal Ordinance as Conviction We hereby acknowledge receipt of your request for an opinion construing chapter 251 of the 1955 Session Laws with regard to the question of whether a plea of guilty to a charge of reckless driving in violation of a municipal ordinance constitutes a conviction. Charges under municipal ordinances are quasi-criminal in nature and in order to determine whether the word "conviction" is intended to apply to municipal ordinances, it is necessary to examine its use

OPINION 55-42 November 18, 1955 (OPINION) COUNTY TREASURER RE: Time of Qualification for Office This is in reply to your letter of November 16, 1955, requesting an opinion from this office as to whether or not a county treasurer who is completing his second term would legally be able to be a candidate in the 1956 June primary. The question arises as a result of a petition to amend the state constitution so as to eliminate the two consecutive term limitation. You state that the required number of petitioners has been obtained and that the constitutional amendment will be vot

OPINION 55-31 November 1, 1955 (OPINION) CORONER'S LAW RE: Fees This is in reply to your letter of October 26, 1955, wherein you request an opinion as to the procedure to be followed in determining the fee of a coroner appointed pursuant to chapter 115 of the 1955 Session Laws. Sections 16 and 17 of chapter 115 read as follows: "16. CORONER'S FEES PAID OUT OF COUNTY TREASURER; FEES TO BE CHARGED BY CORONER; DUTY OF COUNTY AUDITOR. The fees and mileage allowed to the coroner shall be paid out of the county treasury and the coroner's bill shall be presented to the county au

OPINION 55-105 November 1, 1955 (OPINION) SCHOOLS RE: Boards of Arbitration We have received your request for an opinion in regard to the above statute. Your specific question is whether it is mandatory for or discretionary with the county superintendent of schools to call a board of arbitration when requested to do so by a dissatisfied patron. As we interpret this law, it is a right of a patron who feels aggrieved to ask for a board of arbitration, consisting of one person named by the patron, one by the board, and the county superintendent serves as the third member of the

OPINION 55-61 October 28, 1955 (OPINION) HIGHWAYS RE: Destruction of Weeds Along We hereby acknowledge your request for the opinion of this office regarding the exclusion of county federal aid routes from the operation of chapter 350 of the 1955 Session Laws regarding the destruction of weeds along highways. It is the opinion of this office that the Legislature intended to exclude some highways in addition to the state highways in adopting the phrase "This Act shall not apply to any state or federal highways." There are no federal highways, as such, in this state, therefore we

OPINION 55-37 October 26, 1955 (OPINION) COUNTIES RE: Real Property - Cancellation of Land Contracts This is in reply to your letter of October 21, 1955 requesting an opinion of this office on cancellation of county contracts for sale of land, under the provisions of subsection 3 of section 57-2815 of the North Dakota Revised Code of 1943. The pertinent of subsection 3 of section 57-2815 states: "Such contract shall be in such form as the State Tax Commissioner may prescribe and shall give the county the right upon any default of the purchaser to cancel the contract by resolut

OPINION 55-131 October 25, 1955 (OPINION) TAXATION RE: Special Fuels - Exemptions This is in reply to your letter of October 5, 1955, wherein you request an interpretation of the exemption in section 4 of chapter 335 of the Session Laws of 1955 which imposes an excise tax of six cents per gallon on special fuel. Your letter reads, in part, as follows: "Am writing you in regard to the Special Fuels Tax Act. On page 562, line 10, 'when such fuel is delivered into a fuel tank connected with a heating appliance'. This means to my thinking that if you had a barrel in the woodsh

OPINION 55-28 October 19, 1955 (OPINION) COMMISSIONER OF AGRICULTURE AND LABOR RE: Certain Powers and Duties We acknowledge your request for an opinion regarding your authority and responsibility under chapter 20-16 and section 36-2110 of the North Dakota Revised Code. Section 83 of the North Dakota Constitution provides that your powers and duties shall be those prescribed by law. The power to cooperate with the Fish and Wildlife Service in the destruction of predatory animals is outlined in section 20-1601 N.D.R.C. and specifies the following animals only; coyotes, wolves,

OPINION 55-124 October 10, 1955 (OPINION) TAXATION RE: Lodges, Clubs - Exemptions This is in reply to your letter of October 3, 1955, requesting may opinion with respect to the situation set out by you as follows: "Many lodges or other organizations specified in subsection 11 of section 57-0208, N.D.R.C. 1943, such as Masonic lodges, Knights of Columbus, American Legion posts, etc., own a lot and a building situated thereon. The lodge may use a part of the building exclusively for the purposes set out in that subsection and lease the other part of the building to private per

OPINION 55-122 October 3, 1955 (OPINION) TAXATION RE: Farm Structures - Exemptions Your letter of September 29, 1955, asking for our views upon the question of the exemption of farm structures and improvements upon a one and one-half acre tract of land outside of the village of Sheyenne, belonging to Mr. Throlson, has been received. The basis for exemption for farm structures is found in section 57-0208, subsection 15 thereof. In this subsection 15 it will be noted that farm structures and improvements would be exempt if they are used or intended for use as a part of a farm p

OPINION 55-92 September 30, 1955 (OPINION) PARK COMMISSIONERS RE: Authority to Maintain Trailer Camp This is in reply to your letter of September 26, 1955, in regard to whether the board of park commissioners has the legal authority to establish, operate, and maintain a house trailer within the city limits of the city limits of the city of Kenmare. Under section 40-4904 of the N.D.R.C. of 1943, the park district is given general powers of a public corporate entity. Under section 40-4912, subsection 12, of the N.D.R.C. of 1943, it is given specific power to: "Plat and lay out

OPINION 55-11 September 28, 1955 (OPINION) ASSESSORS RE: Compensation We have received a letter dated September 22, 1955, with your enclosed opinion to the state examiner in reference to payment of assessors in unorganized territory. Your letter reads, in part, as follows: In 1953 I informed the assessors at their annual meeting that in my opinion they could not make a double charge for their assessing in any one 24 hours, or in other words their compensation was limited to $10.00 for each 24 hours plus their actual mileage and that the mileage traveled by them should be made

OPINION 55-30 September 27, 1955 (OPINION) CORONERS RE: Coroner's Jury This is in reply to your letter of September 24, 1955, in which you refer to an opinion issued by this office May 11, 1955, wherein chapter 115 of the Session Laws of 1955 was interpreted to authorize a county coroner elected in counties with eight thousand or more population to continue in office until his term expires or until the office becomes vacant by death, resignation or otherwise. In this opinion no mention was made as to whether or not the continuing coroner would have the power to appoint a coro

OPINION 55-76 September 24, 1955 (OPINION) LIVESTOCK RE: Brand Inspection In your letter of September 17, 1955, you request an opinion as to whether consignors of stock must first have their stock shipments inspected, you wish to know the cost per head of such inspection, and whether there must be an inspection on the receiving end before the stock can be sold. Indirectly the law requires shippers of stock to submit to the inspections by county brand inspectors. Section 36-1007 of the North Dakota Revised Code of 1943 states: No railroad company, truck line, or trucker opera

OPINION 55-58 September 19, 1955 (OPINION) FIRE DEPARTMENTS RE: Trucks - Mechanical Signal Lights This office is in receipt of your request of September 16, 1955 for an opinion as to whether or not it is mandatory for the fire department of your city to install mechanical signal lights on your fire truck. Section 39-1101 of the 1953 Supplement to the North Dakota Revised Code of 1943 provides that any vehicle that is sold after January 1, 1952, shall have such mechanical signal lights of the type approved by the motor vehicle registrar. The law, however, being chapter 237 of

OPINION 55-115 September 19, 1955 (OPINION) STATE LAND DEPARTMENT RE: Islands - Authority to Lease This is in reply to your request for an opinion of this office in regard to whether the state land department still has authority to lease and collect rentals on the islands which you have been leasing in the past. Prior to the 1953 amendment section 47-0608 of the N.D.R.C. of 1943 provided: "Islands and accumulations of land formed in the beds of streams which are navigable belong to the state, if there is no title or prescription to the contrary." The 1953 legislature added the provis

OPINION 55-70 September 16, 1955 (OPINION) ISLANDS RE: As State Game Refuges Your request for an official opinion as to the status of islands in the Missouri River as state game refuges, is hereby acknowledged. The reservation of all islands in Devils Lake and in the Missouri River as state game refuges was first made by the legislature by the adoption of the present section 20-1105 N.D.R.C. in the year 1911. The ownership in the state of islands formed in a navigable river is a right of sovereignty and section 47-0608 N.D.R.C., adopted first in 1895, claimed such ownership whe

OPINION 55-134 September 15, 1955 (OPINION) TOWNSHIPS RE: Roads - Procedure to Close This is in reply to your request for an opinion of this office on township roads. Your letter indicates that the township board wishes to close a "road" under the procedures set out in section 24-0705 of the N.D.R.C. of 1943. The statute requires that the petition be signed by at least six legal voters who own real estate, or who occupy real estate under the homestead laws of the United States, or under contract from this state, in the vicinity of the road to be altered. The problem is: as one man

OPINION 55-75 September 6, 1955 (OPINION) LAW ENFORCEMENT OFFICERS RE: Deputies - Fees for Arrest This office acknowledges a request of August 8, 1955, for an opinion relative to the following questions: Are regularly paid deputies entitled to any fees on making an arrest? If they take prisoners over to court are they entitled to any fees?" In an opinion rendered by this office on May 12, 1938, we laid down the following rule: Fees are only collectible, when expressly authorized by law, and an officer demanding fees either from the public, or the state or other governmental

OPINION 55-30 September 6, 1955 (OPINION) CONVICTIONS RE: Foreign Convictions - Second Offense We have received your request for an opinion dated August 26, 1955. You state that a certain person was convicted under section 39-0801 of the 1953 Supplement to the North Dakota Revised Code of 1943. This person had been convicted of a similar offense in Minnesota in 1951, and you ask the following questions: 1. Does the North Dakota law contemplate convictions in other states of the United States as a basis for imposing the higher sentence or does the statute contemplate merely tw

OPINION 55-72 September 1, 1955 (OPINION) LABOR RE: Status of Unions We have your letter of August 26, 1955, in which an opinion is requested on the following question: Has a company dominated-union or an independent union of employees the same status under state laws as a bona fide chartered labor union, and if they have the same status under the law do they have the right to choose other than an employee of the Company involved as their bargaining representatives." Section 34-0901 and 34-1005 of the 1953 Supplement to the North Dakota Revised Code of 1943 provide as follows:

OPINION 55-32 August 26, 1955 (OPINION) COUNTIES RE: Authority to Erect Bridge in City Your request for an official opinion from this office is hereby acknowledged. You have asked whether or not under Chapter 24-08 of the North Dakota Revised Code of 1943, the county may construct a bridge within the corporate limits of the city of Jamestown in view of the requirement in section 24-0501 of the 1953 Supplement to the North Dakota Revised Code of 1943, that twenty percent of the proceeds of the tax levied for highway purposes on property within the city, be turned over to the c

OPINION 55-132 August 17, 1955 (OPINION) TEACHERS RE: Insurance and Retirement Fund, Application of Statute of Limitations to Refund This office acknowledges receipt of your letter of August 8, 1955, requesting an opinion as to whether or not the six year statute of limitations applies to the payment of refund to teachers for money paid in as premium on their teachers insurance and retirement fund. As stated in your letter, some of these applications for refunds go back as far as 1915 and you have some for 1926 and 1927. Prior to the amendment provided for by chapter 139 of t

OPINION 55-77 August 16, 1955 (OPINION) LIVESTOCK RE: Venting Brands This office is in receipt of your letter of August 10, 1955, asking our opinion as to how best to proceed in rerecording livestock brands which is now in progress in your office. You state that many of the owners of livestock who may have bought other branded stock desire to vent the brands on such purchased animals, and you ask us how best to proceed. Prior to 1949, section 36-0907 of the North Dakota Revised Code of 1943 provided that it was mandatory for any person who sells livestock to vent his brand on

OPINION 55-97 August 9, 1955 (OPINION) RECORDING RE: Notaries Public - Necessity of Printed Name Etc. This is in reply to your letter requesting the opinion of this office on whether an instrument may be recorded if the stamped, typed or printed name and expiration of the commission of the notary public is not shown on the instrument, as required by section 44-0612 of the N.D.R.C. of 1943, as amended by chapter 287 of the 1955 Session Laws. Section 44-0612 was and is a part of the chapter "Notaries Public" in the title "Offices and Officers" of the N.D.R.C. of 1943. Its obvio

OPINION 55-87 August 8, 1955 (OPINION) MUNICIPALITIES RE: Power to Conduct Non-Profit Real Estate Business Your city attorney has requested that this office transmit an opinion to you on the following question: "Is it within the powers of a Municipal Government, to acquire real property within the existing city limits, cause sewer and water improvements to be made thereon and subsequently sell it in parcels for home buildings sites, on a non-profit basis?" A search of the statutes and constitutional provisions does reveal authority for a municipality to buy real property (40-05

OPINION 55-85 August 1, 1955 (OPINION) MUNICIPALITIES RE: Authority to Pay Group Insurance Premiums For Employees This is in reply to your request for an opinion from this office dated July 21, 1955. You state that your organization sponsors a group insurance plan which is strictly voluntary and participating municipal employees pay their premiums either directly or by authorizing the municipality to deduct the premium from their salary. Your question is whether a municipality can legally pay from city fund all or part of such premiums if it so desires? Although the question

OPINION 55-52 July 29, 1955 (OPINION) ELECTORS RE: Soil Conservation Districts We are in receipt of your letter of July 27, 1955, requesting an opinion on the matters involved in a resolution passed by the supervisors of the Golden Valley County soil conservation district. According to that resolution the supervisors propose to allow anyone who is eligible to vote in a township election to vote in a soil conservation district election. A voter in a soil conservation district election must be a "land occupier", defined in section 4-2202, subsection 8, of the 1943 North Dakota R

OPINION 55-85 July 26, 1955 (OPINION) MUNICIPALITIES RE: Park Property - Authority to Lease This will acknowledge receipt of your letter under date of July 13, 1955, requesting the opinion of this office as to whether or not the village of Sheyenne, in Eddy County, may legally lease to the United States for a period of five years one hundred twenty acres out of a quarter section of land acquired by the village several years ago for park purposes and for recreational use. You say in your letter that Congress has appropriated fifty thousand dollars for an "irrigated development f

OPINION 55-109 July 25, 1955 (OPINION) SPECIAL SCHOOL DISTRICTS RE: Admission of Pupils This is in reply to your letter of July 21, 1955, wherein you ask our opinion in regard to the following questions: 1. Assuming that the school board has determined that overcrowded conditions are created by the admission of pupils residing within the special school district, may the school board refuse admission to any pupils from, or children or persons not living in the special school districts? 2. Assuming that pupils residing within the special school district do not create crowde

OPINION 55-127 July 21, 1955 (OPINION) TAXATION RE: Priority of Liens We have your letter of July 18, 1955, pertaining to the question of priorities of state tax liens and federal government mortgages on personal property purchased by farmers through loans from the Farmers Home Administration. Your letter reads, in part, as follows: “During the years that these borrowers from the Farmers Home Administration have been in the act of farming operations, personal property taxes have been assessed and levied against such property and in some instances these taxes have become delinquent and

OPINION 55-106 July 21, 1955 (OPINION) SCHOOLS RE: Deputy Superintendents - Salary We have received your letter of July 15, 1955, requesting an opinion from this office on the following question: Section 15-2206 of the 1953 Supplement provides that the county superintendent of schools of the various counties in this state is to have a deputy and such deputy shall receive a salary equal to eighty percent of the county superintendent's salary. Chapter 110 of the 1955 Session Laws amends and reenacts subsection 2 of section 11-1010 of the 1943 code and repeals subsection 4 of se

OPINION 55-114 July 15, 1955 (OPINION) STATE LAND DEPARTMENT RE: Farm Loans - Meaning of "Farm Land" This is in reply to your letter of July 13, 1955, asking whether the words "farm land" as used in section 15-0307 of the 1953 Supplement to the N.D.R.C. of 1943 in referring to limitations on farm loans refers only to cultivated land or to both cultivated and uncultivated (grazing) land. Tracing back this statute, we find the original provision, section 172 of the 1895 N.D.R.C., authorizing such investments in "first mortgages on farm lands in the state," in practically the ide

OPINION 55-80 July 13, 1955 (OPINION) MEMORIALS RE: Korean Conflict In your letter of June 28, 1955, you raise the question as to whether or not under chapter 118 of the 1955 Session Laws, the board of county commissioners of Ward County may levy a tax not in excess of four mills on the dollar for the purpose of erecting a memorial in commemoration of the people of said county who rendered services or lost their lives in the service of their country during the Korean hostilities. It is recognized that Ward County has already levied the four mill tax for the building of a memor

OPINION 55-117 July 6, 1955 (OPINION) STATE VETERINARIAN BOARD RE: Licensing of Markets This is in reply to your letter of June 28, 1955, requesting our opinion in regard to licensing of markets and market establishments by federal or state inspection methods. The question is: "Does your board have a right to give such marketing and manufacturing establishments a state license merely on their statement that they are selling federally inspected meats without any inspection of their place under the provisions of chapter 36-23 of the Supplement to the Revised Code of 1943." W

OPINION 55-10 July 6, 1955 (OPINION) ALDERMEN RE: Vacancy in Office This is in reply to your letter of June 22, 1955, requesting our opinion relative to the appointment of aldermen. We call your specific attention to the provisions of Chapter 263 of the 1955 Session Laws. Your question is whether or not in our opinion this section authorizes the filling of a vacancy in the office of the alderman in a city where aldermen are elected at large, by appointment. It is our opinion that this statute was intended to provide for the appointment of aldermen in all cities coming with