After the 2008 amendment to W. Va. Code § 59-1-10(a)(1) said county clerks could keep $11 of certain recording fees for their office's operation, can clerks set up a separate fund for those retained fees, or must the money go to the county treasury under the older general statute?

Plain-English summary

In 2008, the West Virginia Legislature passed S.B. 622, amending W. Va. Code § 59-1-10(a) to add a new subdivision (7). The new provision said that, of each recording fee a county clerk collects under subdivision (1), $11 "shall be retained by the county clerk for the operation of that office," and another $4 (along with $5 from a different recording fee) "shall be paid by the county clerk into the State Treasurer" for deposit into the Farmland Protection Fund and the Outdoor Heritage Conservation Fund.

The State Auditor asked the AG how to reconcile the new amendment with two older provisions:

• W. Va. Code § 59-1-28 says that "all fees" collected by a county clerk "shall be collected and received by such officer for the sole use of the treasury of the county."
• W. Va. Code § 59-1-31 says each county clerk "shall at the end of each month pay into the county treasury all fees . . . of whatever kind collected by his office during such month, which money shall be credited to the general county fund."

Read together, the older statutes seem to require that every fee, including the $11, goes to the county treasury, leaving the new amendment with nothing to operate on. The county clerks, on the other hand, took the position that they could keep the $11 and even set up a new dedicated fund to hold it.

The AG found in favor of the clerks. The reasoning ran in three steps:

1. The statutes really do conflict. No reading of §§ 59-1-28 and 59-1-31 can be squared with the new directive that the clerks "retain" the $11. The Supreme Court of Appeals' Harrison County Commission rule (try to give effect to both statutes if reasonably possible) cannot help if there is genuinely no harmonizing reading.

2. The newer statute wins. Under Wiley v. Toppings (which itself relied on the much older Joseph Speidel Grocery Co. v. Warder), when two enactments conflict, "effect should always be given to the latest expression of the legislative will." § 59-1-10(a)(7) was added in 2008 and is later than §§ 59-1-28 and 59-1-31. The new provision controls, and the older general rules yield to the more recent specific rule.

3. Clerks may set up a new fund. The Legislature evidently intended to create a mechanism that would let the clerks keep the $11 for "the operation of that office," and that mechanism necessarily means a separate accounting structure. The State Auditor has authority under W. Va. Code § 6-9-11 to audit the new fund, but cannot refuse to permit its creation.

The opinion does not endorse a specific naming convention or accounting structure for the new fund. It just confirms that clerks may set one up, that the State Auditor has audit (but not veto) authority, and that other West Virginia statutes (like § 11-1C-8 for the assessor's revolving valuation fund and §§ 31-20-10, 31-20-10b, 51-3-14 for various dedicated state-agency funds) provide examples of how dedicated public funds are typically structured.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How much of each recording fee does the clerk keep, and how much goes to the state?
A: Under § 59-1-10(a)(7) as amended in 2008, $11 of each recording fee under subdivision (1) is retained by the county clerk for the office's operation, and $4 of that fee plus $5 from the recording fee under subdivision (5) goes to the State Treasurer for the Farmland Protection Fund and the Outdoor Heritage Conservation Fund (deposited in equal amounts).

Q: Can the State Auditor block the county clerk from creating a separate fund?
A: No. The AG concluded that the State Auditor's broad authority under W. Va. Code § 6-9-11 as "chief inspector and supervisor of local government offices" includes audit authority over the fund, but does not extend to vetoing its creation. The clerks have the substantive authority to keep the money and the practical authority to manage it through a separate fund.

Q: What can the retained $11 be spent on?
A: The statute says it is "for the operation of that office," meaning the county clerk's office. The opinion does not parse the limits of "operation," but the natural reading would be normal office expenses (staff, supplies, equipment, technology) consistent with the clerk's statutory duties.

Q: How do conflicts between general and specific statutes get resolved in West Virginia?
A: The default rule from Wiley v. Toppings is that the later enactment prevails. The AG also noted that this rule applies even when both statutes were enacted on the same day. A separate, related rule is the specific-over-general canon, which would have produced the same outcome here since § 59-1-10(a)(7) is more specific than the general fee-deposit rule in § 59-1-28.

Background and statutory framework

The 2008 amendment to § 59-1-10(a) was part of a broader legislative push to fund the West Virginia Agricultural Land Protection Authority and the Outdoor Heritage Conservation Fund. Both programs receive money from new dedicated revenue streams created by the Legislature, and recording fees on real estate transactions were a politically practical source given that those transactions often involve land conservation interests.

The conflict that arose was a drafting artifact. § 59-1-10 (recording fees) and §§ 59-1-28 and 59-1-31 (deposit of fees to county treasury) had coexisted for decades on the assumption that all clerk fees went to the county. The 2008 amendment introduced a carve-out for specific allocations (state programs and clerk operations) without harmonizing the older deposit rules.

Wiley v. Toppings is the controlling Supreme Court of Appeals decision on conflicting enactments. It applied the older Speidel Grocery Co. v. Warder rule that the later expression of legislative will governs and also drew on out-of-state authority (Doe v. Massachusetts AG, 1997) for support. The same later-in-time principle applies even when the older statute uses sweeping "all fees" language; specific later carve-outs displace general earlier rules.

The state Auditor's authority under § 6-9-11 makes him "chief inspector and supervisor of local government offices." The AG's reading was that this authority is supervisory and audit-oriented, not blocking. Comparing with statutory examples of dedicated funds (the assessor's revolving valuation fund under § 11-1C-8, the Court Security Fund under § 51-3-14, the Regional Jail funds under §§ 31-20-10 and 31-20-10b, and the various circuit-clerk fee distributions described in § 59-1-28a) shows that West Virginia routinely allows dedicated public funds outside the general county treasury structure, so the new clerk fund has plenty of statutory company.

Citations and references

Statutes:
- W. Va. Code § 59-1-10(a)(1), (5), (7) (2008 amendment to recording fees)
- W. Va. Code § 59-1-28 (general deposit rule)
- W. Va. Code § 59-1-28a (circuit clerk fee distributions and special funds)
- W. Va. Code § 59-1-31 (monthly fee deposit)
- W. Va. Code § 6-9-11 (State Auditor authority over local offices)
- W. Va. Code §§ 11-1C-8, 31-20-10, 31-20-10b, 51-3-14 (examples of dedicated public funds)

Cases:
- Harrison County Com'n v. Harrison County Assessor, 222 W. Va. 25, 658 S.E.2d 555 (2008) (try to give effect to both conflicting statutes)
- Wiley v. Toppings, 210 W. Va. 173, 556 S.E.2d 818 (2001) (later enactment prevails over earlier)
- Joseph Speidel Grocery Co. v. Warder, 56 W. Va. 602, 49 S.E. 534 (1904)
- State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958)

Source

• Landing page: https://ago.wv.gov/media/18161/download?inline
• Original PDF: https://ago.wv.gov/media/18161/download?inline

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

State of West Virginia
Office of the Attorney General
Charleston 25305
Darrell V. McGraw, Jr., Attorney General
(304) 558-2021 / Fax (304) 558-0140

February 2, 2009

The Honorable Glen B. Gainer III
State Auditor
State Capitol, Room W-100
Charleston, WV 25305

Re: Opinion Request regarding Senate Bill 622, 2008 Regular Session, Amending West Virginia Code § 59-1-10(a)(1)

Dear Auditor Gainer:

This is in response to your opinion request regarding the amendment of West Virginia Code § 59-1-10(a)(1) by Senate Bill 622, enacted during the 2008 regular session of the West Virginia Legislature.

The amendment provides that

(7) Eleven dollars of each recording fee received pursuant to subdivision (1) of this subsection shall be retained by the county clerk for the operation of that office and four dollars of each of the aforesaid recording fees together with five dollars of the recording fee collected pursuant to subdivision (5) of this section, shall be paid by the county clerk into the State Treasurer and deposited in equal amounts for deposit into the Farmland Protection Fund created in article twelve, chapter eight-a of this code for the benefit of the West Virginia Agricultural Land Protection Authority and into the Outdoor Heritage Conservation Fund created in article two-g, chapter five-b of this code: Provided, That the funds deposited pursuant to this subdivision may only be used for costs, excluding personnel costs, associated with purpose of land conservation, as defined in subsection (f), section seven, article two-g, chapter five-b of this code.

We are advised that the Legislature intended that the clerks retain the fees and not be required to pay the fees to the county treasury.

West Virginia Code § 59-1-10 generally deals with the fees to be collected by the clerk of the county commission for admitting writings to record, and §§ 59-1-28 and 59-1-31 provide for the disposition of the funds collected.

West Virginia Code § 59-1-28 provides in pertinent part that "all fees . . . which by law may now or hereafter be collected or received as compensation for services by any clerk of the county commission, . . . shall be collected and received by such officer for the sole use of the treasury of the county in which he is an officer, and shall be held as public moneys belonging to the county fund, and shall be accounted for and paid over in the manner hereinafter provided."

West Virginia Code § 59-1-31 provides that "each of the officers named in section twenty-nine of this article shall at the end of each month pay into the county treasury all fees, . . . of whatever kind collected by his office during such month, which money shall be credited to the general county fund."

Sections 28 and 31 appear to conflict with the newly-enacted provisions of § 59-1-10(a)(7), which provides that a portion of the fees "shall be retained by the county clerk for the operation of that office[.]"

As recently noted by our Supreme Court, "[W]here two statutes are in apparent conflict, the Court must, if reasonably possible, construe such statutes so as to give effect to each." Harrison County Com'n v. Harrison County Assessor, 222 W. Va. 25, ___, 658 S.E.2d 555, 560 (2008) (quoting Syl. pt. 4, in part, State ex rel. Graney v. Sims, 144 W. Va. 72, 105 S.E.2d 886 (1958)).

However, given the plain language of the statutes, there does not appear to be any construction that would give effect to the provisions of the statutes in question. Under such circumstances, one must rely on other rules of construction. In Wiley v. Toppings, 210 W. Va. 173, 175, 556 S.E.2d 818, 820 (2001), our Supreme Court held that "[w]hen faced with two conflicting enactments, this Court and courts generally follow the black-letter principle that 'effect should always be given to the latest . . . expression of the legislative will[.]'" (quoting Joseph Speidel Grocery Co. v. Warder, 56 W. Va. 602, 608, 49 S.E. 534, 536 (1904)).

The Court went on to say: "'[T]he statute which is more recent . . . prevails. . . . This rule applies even where the two statutes were enacted to be effective on the same date.'" Wiley, 210 W. Va. at 175, 556 S.E.2d at 820 (quoting Doe v. Attorney General, 425 Mass. 210, 216-217, 680 N.E.2d 92, 96 (1997)).

West Virginia Code § 59-1-10(a)(7) is the more recently enacted statute, and pursuant to the Supreme Court decisions set forth above, such section prevails in any conflict with earlier enacted code provisions.

Accordingly, the provisions directing the clerk of the county commission "shall be retained by the county clerk for the operation of that office" must be given effect.

With that background, we now address the question of whether or not the clerks may set up a new fund with the $11.00 they retain. Your inquiry advises that "[t]he Clerks contend that since the bill [S.B. 622] did not specifically require the funds to be placed in the county treasury, they have the authority to set up a new fund." We understand from this assertion that the clerks contend that they are not required to pay these funds into the county treasury.

We believe that the Legislature intended to create a fund or a mechanism by which the clerks could retain the fees described in the newly-enacted statute, in order to give effect to the changes to the statute. Moreover, the new statute is specific with respect to the purpose of the funds, "for the operation of that office," and any fund or account is an account which the office of the county clerk may deposit into and draw upon so as to give effect to the statute.

We now address the issue of whether the county clerks may create new funds without the authorization of the State Auditor. There are instances wherein county officials are authorized to establish separate funds, such as West Virginia Code § 11-1C-8, creating a revolving valuation fund in each county which shall be used exclusively to fund the assessor's office. Other examples are separate funds maintained by state agencies that have statutory origins, such as the Regional Jail and Correctional Facility Authority Fund (West Virginia Code § 31-20-10), Court Security Fund (§ 51-3-14), and the Regional Jail Operations Partial Reimbursement Fund (§ 31-20-10b). These funds are described in West Virginia Code § 59-1-28a, which section provides for distribution of filing fees by circuit clerks and the establishment of specific funds to receive these distributions.

West Virginia Code § 6-9-11 provides the State Auditor with broad powers as the "chief inspector and supervisor of local government offices." It is our opinion that in the exercise of such powers, the State Auditor may exercise audit authority over such fund, but may not refuse to allow the creation of such fund or the use thereof.

Very truly yours,

Darrell V. McGraw, Jr.
Attorney General

By: Thomas W. Smith