AGO 80-031.

• Case Date: March 19, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-031. March 19, 1980 (OPINION) OPINION 80-31Mr. Aloys Wartner IIICity Attorney Harvey, North Dakota 58341 Dear Mr. Wartner: This is in response to your letter of March 3, 1980, wherein you provide the following information:

The City of Harvey is located in Wells County. Wells County has a County Court of Increased Jurisdiction. The Wells County Judge of the Court of Increased Jurisdiction has filed a petition to run for the position of the City of Harvey Municipal Judge. If the Judge is successful, he may be elected to both the position of Municipal Judge and the Judge of the County Court of Increased Jurisdiction.

My question is, may a person serve in the position of Municipal Judge and Judge of a County Court of Increased Jurisdiction, or does section 40-18-01 only apply to the position of County Justice?

Section 40-18-01 of the North Dakota Century Code sets forth the following information:

40-18-01. JURISDICTION OF MUNICIPAL JUDGE. The municipal judge within a city having a population of three thousand or more shall be an attorney licensed to practice law in this state, unless no person so licensed is available in the city, and shall have exclusive jurisdiction of, and shall hear, try, and determine, all offenses against the ordinances of the city. The offices of county justice and municipal judge may not be held by the same person. In a city with a population of less than three thousand, the municipal judge may be, but need not be, an attorney licensed to practice law in this state, nor shall he be required to be a resident of the city in which he is to serve.

A reading of this statute clearly indicates that the offices of county justice and municipal judge cannot be held by the same person. This statute, however, does not prohibit a person from holding the positions of judge of the county court of increased jurisdiction and municipal judge. In North Dakota, there is a strong line of legal authority for the proposition that a person may not, at one and the same time, rightfully hold two offices which are incompatible. In Tarpo v. Bowman Public School District No. 1, 232 N.W.2d. 67 (N.D. 1975), our Supreme Court held that the common law rule of incompatibility of positions is the law of this state. Furthermore, the Court stated that there is no constitutionally...