Opinion No. ( 1997 )

The Honorable David R. Malone, State Senator P.O. Box 1048 Fayetteville, Arkansas 72702-1048

Dear Senator Malone:

This opinion is issued to supplement and clarify Opinion 97-005 recently issued to you. That opinion concluded that the appropriate fee for filing hospital liens with the circuit clerk is fifty cents pursuant to A.C.A. § 18-46-115 (pertaining specifically to hospital liens), rather than six dollars for one page and two dollars for each additional page pursuant to A.C.A. §21-6-306 (which sets fees to be charged by the circuit clerks for recordable instruments generally). It has come to my attention that another statute, which was not mentioned in Opinion 97-005, requires discussion and impacts the conclusion reached in Opinion97-005. Specifically, A.C.A. § 21-6-101, enacted as Act 333 of 1977, provides:

The appropriate fee prescribed in §§ 21-6-306, 21-6-402, and 21-6-403 shall be in lieu of the fee prescribed in § 18-44-117 for filing mechanics' and materialmen's liens, and in lieu of the fee prescribed in § 18-46-115 for filing medical, nursing, and hospital liens, and in lieu of the fee prescribed in § 16-65-117 for filing judgments to establish judgment liens on lands, and in lieu of the fee prescribed in § 17-89-303 for recording licenses of optometrists. [Emphasis added.]

This statute on its face states that the "appropriate fee" prescribed in A.C.A. § 21-6-306 shall apply instead of the fee prescribed in A.C.A. § 18-46-115 for filing medical, nursing and hospital liens. The statute above amends the fifty cent filing fee found in A.C.A. § 18-46-115(c), and extends the "appropriate" provisions¹ of A.C.A. § 21-6-306 to medical, nursing, and hospital liens. Thus, the legislature's expressed intention is that the higher six dollar and two dollar fees be applicable to the filing of hospital liens. This statute is thus the controlling law on the question and is presumed to be constitutional.²

Opinion No. 97-005 is thereby superseded to the extent inconsistent with this opinion.

The foregoing opinion, which I hereby approve, was prepared by Deputy Attorney General Elana C. Wills.

Sincerely,

WINSTON BRYANT Attorney General

WB:ECW/cyh

¹ It is a little unclear what the "appropriate fee" in A.C.A. § 21-6-306 is with regard to hospital liens. Presumably, this phrase refers to the fee to be charged for filing "other recordable instruments" in § 21-6-306(a)(1).

² A question may arise as to the constitutionality of A.C.A. § 21-6-101 under Arkansas Constitution, art. 5, § 23 which prohibits the amendment or extension of any law by reference to its title only. Such laws are sometimes referred to as "blind legislation." To resolve any possible constitutional issue in this regard, legislative clarification is indicated.