Opinion No. ( 2005 )

The Honorable Terry Jones Prosecuting Attorney, 4^th Judicial District Washington County Courthouse 280 North College, Suite 301 Fayetteville, AR 72701

Dear Mr. Jones:

I am writing in response to your request for an opinion on the following matter regarding the publication in each county of the list of delinquent real estate:

May a newspaper charge for other parts of the required publication in addition to the legal fee of one dollar and fifty cents ($1.50) per tract per insertion?

RESPONSE

No. In my opinion, if you are referring to whether the newspaper may charge an additional fee to publish the list of delinquent real estate based on the language of the statute, the newspaper may only charge the statutorily authorized fee of one dollar and fifty cents per tract per insertion.

As I understand your question, you are asking for an opinion on whether a newspaper that is publishing the required listing of delinquent taxes on real property may charge the county an additional fee for the components of the publication other than the legal fee of $1.50 per tract per insertion for the tract listing, such as the precatory language or a leader.

Arkansas Code Annotated § 26-37-107 details the requirements for publication of the list of tax delinquent real property in a county. It states:

(a)(1)(A) The collectors of the counties of this state shall cause the list of the delinquent lands in their respective counties to be prepared and a copy of the list to be delivered to a legal newspaper of the county by no later than December 1 of each year.

(B)(i) Within seven (7) days thereafter, the newspaper shall publish the list. The newspaper shall publish the list in at least seven-point type. If the newspaper regularly publishes a total market coverage edition or supplement publication that has wider circulation within the county or district, the newspaper may publish the list in that edition or publication.

(ii) If there is no newspaper in the county or district, the publication shall be in the nearest newspaper having a general circulation in the county or district for which the list is being published.

(2) The list of delinquent lands shall contain at least the name of the owner and the legal description of the property as was recorded on the tax book.

(b) The publication shall be in substance as follows:

"DELINQUENT REAL ESTATE TAX LIST

The Real Estate Tax Books of _________ County reflect the following list of real property to be delinquent for nonpayment of taxes for the year _______ (The amount included in the "Tax, Penalty and Cost" column may not include all penalties and costs and will not include interest and special improvement assessments that may be due at the time of payment.)

NAME OF OWNER LEGAL DESCRIPTION BASE DELINQUENCY

Brown, Bill pt. W 1/2 NE SW Sect 6 Twp 17 Rn 5 5 Acs $44.25

Doe, John Lot 3 Blk 5 Plainview Add. $31.25

Jones, John W 1/2 Lot 8 Blk 54 Meriweather Trust $42.24

Roe, Richard SW 1/4 SE 1/4 Sec 12 Twp 18E Rn 6E 40 Acs $37.25

NOTICE IS HEREBY GIVEN THAT said several tracts, lots or parts of lots, will be held as delinquent for a one-year period from this date and then certified to the State of Arkansas, Commissioner of State Lands, for collection or to be sold, unless the delinquent taxes, penalties, and costs are paid before the end of the one-year period.

(Date of Notice) ___________ Collector _____________ County."

(c)(1) The legal fee for each required publication of delinquent real property tax lists shall be one dollar and fifty cents ($1.50) per tract per insertion.

(2) The fee shall be added as costs of forfeiture and shall be paid by the collector from any moneys in the collector's hands derived from the payment of real property taxes.

(3) The receipts for the payment, verified by the certificate of the county clerk as to its correctness, shall entitle the collector to a credit for the amount so paid.

A.C.A. § 26-37-107 (Supp. 2003).

In my opinion, a newspaper may not charge a fee greater than the amount specified by law for the publication of the list as specified by A.C.A. §26-37-107.¹ A court will first look to the plain and ordinary language of a statute. Sluder v. Steak Ale of Little Rock, Inc., ___ Ark. ___, S.W.3d ___ (March 31, 2005) (quotation omitted); see also Op. Att'y Gen. 2004-339. If the statute is clear and unambiguous on a plain and ordinary reading of the language, there is no need to resort to further statutory analysis. Id. In this situation, A.C.A. § 26-37-107 sets forth the format requirements of the list of delinquent taxes for real property. A.C.A. § 26-37-107(b). The statute further specifies that the legal fee to be charged for the publication of this list is $1.50 per tract per insertion. A.C.A. § 26-37-107(c)(1) (Supp. 2003). This fee is added to the amount required to redeem the delinquent property. A.C.A. §26-37-104 (Repl. 1997). The statute is clear and unambiguous. The newspaper may only charge $1.50 per tract per insertion for the publication of the list of delinquent real property required by statute. While the county may negotiate for additional components of the publication not required by statute, only the $1.50 statutory fee is added to the redemption costs of the property.

Assistant Attorney General Joel DiPippa prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE,

Attorney General

MB: JMD/cyh

¹ If the county is requesting the publication of a list that deviates from the statutory requirements, the fee that the newspaper will charge the county is subject to whatever contractual terms may be negotiated. I do note, however, that only the statutorily authorized fee of $1.50 will be added to the redemption cost regardless of the price charged the county for the nonconforming list of delinquent property.