Opinion No. (1984) ( 1984 )

REQUESTED BY: Loren L. Lindahl, Saunders County Attorney, Wahoo, Nebraska Should the County Clerk or Register of Deeds assess a fee for the recording and indexing of a termination statement?

No, Neb.Rev.Stat. § 9-403(5) (Supp. 1984) specifically provides no fee shall be assessed for the filing of a termination statement.

You have requested our opinion regarding an apparent conflict between the provisions of Neb.Rev.Stat. §§ 33-109 and 33-112 (Supp. 1983), and Neb.Rev.Stat. § 9-403(5) (Supp. 1984). Section 33-109 provides for the payment of a fee of $5 per page to the Register of Deeds and County Clerk `for recording a deed, mortgage, . . ., or recording any other instrument.' Section 33-112 further provides a fee of fifty cents to be paid to the Register of Deeds or County Clerk `For entering each instrument presented for record in the numerical index. . . .' Subsection (5) of § 9-403, which establishes a uniform fee of $5 for the filing and indexing of `an original financing statement, an amendment, a separate statement of assignment, a continuation statement, a partial release, or a full release,' specifically provides, `There shall be no fee for the filing of a termination statement.'

The rule is well-established that `Special provisions of a statute in regard to a particular subject will prevail over general provisions in the same or other statutes so far as there is a conflict.' Kibbon v. School District ofOmaha, 196 Neb. 293, 242 N.W.2d 634 (1976). Furthermore, `Where general and special provisions of statutes are in conflict, the general law yields to the special, without regard to priority of dates in enacting the same, and a special law will not be repealed by general provisions unless by express words or necessary implication.' CommunicationWorkers of America, AFL-CIO v. City of Hastings, 198 Neb. 668,254 N.W.2d 695 (1977).

Applying these rules of statutory construction to the above-cited statutory provisions, we conclude that the plain and specific language of § 9-403(5), providing `there shall be no fee for the filing of a termination statement,' controls over the general provisions of §§ 33-109 and 33-112 relating to filing and indexing fees payable to the Register of Deeds and County Clerk. It is therefore our opinion that the Register of Deeds should not assess a fee for the filing and indexing of termination statements.

Very truly yours,

PAUL L. DOUGLAS Attorney General

L. Jay Bartel Assistant Attorney General

APPROVED:

Paul L. Douglas Attorney General