AGO 80-039.

• Case Date: January 31, 1980
• Court: North Dakota

North Dakota Attorney General Opinions 1980. AGO 80-039. January 31, 1980 (OPINION) OPINION 80-39Ms. Cynthia A. Rothe Cass County State's Attorney P. O. Box 2806 Fargo, North Dakota 58620Dear Ms. Rothe: This is in response to your letter of November 27, 1979, in which you asked several questions regarding the procedure for financing the construction of an addition to and the remodeling of the present Cass County courthouse following the special election in Cass County last November sixth at which the voters approved a three-mill levy for six years for that purpose. Rather than paraphrase your letter, we quote it in full as follows:

On November 6, 1979, the Cass County Board of Commissioners was authorized by the voters of Cass County to levy a three-mill tax for six years for the purpose of constructing an addition to and remodeling the present courthouse. The question as it appeared on the ballot was:

Shall the Board of Cass County Commissioners levy a tax of three mills on the taxable valuation of the county for the years 1980-1981-1982-1983-1984 and 1985 for the purpose of building an addition to the present courthouse and remodeling of the existing courthouse to provide needed additional space for county offices?

The history behind the November sixth special election is that the North Dakota Supreme Court recently gave the East Central Judicial District two additional district court judges chambered in Fargo. The Cass County Courthouse now has four district court judges and two courtrooms. In addition, various county offices, such as the Treasurer and Auditor, store files in the hallways of the courthouse. The presiding judge has appeared before the Board of County Commissioners and advised them of the urgency of the need for additional space. He has not ordered the Board of County Commissioners to provide additional space, but presumably he could do so under the inherent power of the judiciary.

The November sixth ballot proposal was based on North Dakota Century Code section 11-11-18 which allows the Board of County Commissioners to submit an extraordinary outlay to a vote of the people. The Board of County Commissioners, it would seem, now has a mandatory obligation to proceed with construction of an addition to and remodeling of the Cass County Courthouse. My question is: How can the Board of County Commissioners finance the construction and remodeling project? Can the County borrow in anticipation of proceeds from the mill levy or must they wait until sufficient revenue has accumulated in the building fund? How would the following statutes apply to this situation: North Dakota Century Code sections 21-01-04, 21-03-06, 57-47-02, and 21-02-02?

If the presiding judge were to mandate the Board of County Commissioners supply courtrooms and necessary operating space for county offices, in what manner could the county legally proceed to comply? In that circumstance, what are the limitations as to the amount of indebtedness the county could incur?

We note from your letter quoted above that the November 6, 1979, ballot proposal was based on North Dakota Century Code section 11-11-18 which allows the Board of County Commissioners to submit the question of an extraordinary outlay to a vote of the people. We note also that your letter as set out above quotes the question as it appeared on the November sixth ballot used in the Cass County special election that day. It is therefore necessary to examine the provisions of section 11-11-18 and other sections, particularly sections 11-11-20, 11-11-21, and 11-11-24, related to the question of an extraordinary outlay that is authorized in section 11-11-18. Sections 11-11-18, 11-11-20, 11-11-21, and 11-11-24 read as follows:

11-11-18. BOARD TO SUBMIT EXTRAORDINARY OUTLAY TO VOTE. The board of county commissioners shall submit to the electors of the county at any regular or special election any proposal for an extraordinary outlay of money by the county when the proposed expenditure is greater in amount than can be provided for by the annual tax levies. If the board considers the courthouse, jail, or other public buildings of the county inadequate for the needs of the county or deems it necessary to build a county hospital, and if it is thought that it is not for the best interests of the county to issue bonds to aid in the construction of such buildings or that the construction of such buildings by any other procedure is not for the best interests of the county, it shall submit to the electors of the county, at any regular or special election, the proposal for the construction of a courthouse, jail, or other public building by establishing a building fund to aid in the construction thereof. The requirements of this section shall not apply to lease-purchase agreements authorized by section 24-05-04.

11-11-20. NOTICE OF ELECTION ON QUESTION OF EXTRAORDINARY EXPENDITURE. Notice of the election on the proposal to make an extraordinary expenditure of county funds shall be published in the official newspaper of the county for four successive weeks. The notice shall set forth the whole question to be submitted, including the amount of money to be raised, the amount of the tax desired to be levied, or the rate per annum and the years in which the tax is to be levied, the precise purpose for which the money is to be expended, the time when the question will be voted upon, and the form in which the question will be submitted. If the county does not have an official newspaper, the publication shall be made by posting the notice in at least one of the most public places in each election precinct in the county. A copy of the question shall be posted at each voting place during the day of election.

11-11-21. PROPOSITION TO TAX MUST ACCOMPANY QUESTION SUBMITTED. When the question of extraordinary expenditure submitted to the electors of the county involves the establishment of a building fund for the construction of buildings or the borrowing or expenditure of money, the question must be accompanied by a proposition to levy a tax to provide for the payment thereof in addition to the usual taxes required to be levied. A vote adopting

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