IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2001 Term
LEONARD WILEY and LAFE BLOCK,
ROGER TOPPINGS and MARGARET TOPPINGS,
Certified Questions from the Circuit Court of Lincoln County
Hon. Jay M. Hoke, Judge
Civil Action No. 99-C-134
CERTIFIED QUESTION ANSWERED
Submitted: September 5, 2001
Filed: November 28, 2001
David L. Hill, Esq.
F. Hedges, Esq.
Hamlin, West Virginia
M. Lovett, Esq.
Attorney for Plaintiffs
State Justice, Inc.
JUSTICE STARCHER delivered the Opinion of the Court.
The controlling definition of
timbering operations enacted by the 1994 Legislature at W.Va.
Code, 19-1B-3  is the definition contained in the last-enacted version
at Volume I, Acts of the Legislature, 1994 Regular Session, Chapter 61,
In the instant case we hold
that the last-enacted version of the statutory definition of timbering
operations is legally controlling.
Facts & Background
The Honorable Jay M. Hoke
of the Circuit Court of Lincoln County, West Virginia, entered an order on October
6, 2000, certifying three questions to this Court. This Court has the discretion
to reformulate certified questions and/or to decline to address one or more
questions that have been certified by the lower court. See Syllabus Point 3,
Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993).
In the instant case, we have determined that two of the three questions are
not in a proper posture for our consideration. The question that we address
is as follows:
Is the definition of timbering
operations within W. Va. Code, 19-1B-3(e)  controlled by
its last enactment during the 1994 Regular Legislative Session (Chapter 61),
rather than its first enactment during said Legislative Session (Chapter 119)?
(See footnote 1)
The parties are in agreement
that the 1994 Regular Session of the Legislature enacted two versions of W.Va.
Code, 19-1B-3(e) , containing differing definitions of the term timbering
operations. Both versions were passed on March 12, 1994. The version that
was passed last in time reads as follows:
(e) Timbering operations
means activities directly related to the severing or removal of standing trees
from the forest as a raw material for commercial processes or purposes. For
the purpose of this article, timbering operations do not include the severing
of evergreens grown for and severed for the traditional Christmas holiday season,
or the severing of trees incidental to ground-disturbing construction activities,
including well sites, access roads and gathering lines for oil and natural gas
operations, or the severing of trees for maintaining existing, or during construction
of, rights-of-way for public highways or public utilities or any company subject
to the jurisdiction of the federal energy regulatory commission unless the trees
so severed are being sold or provided as raw material for commercial wood product
purposes, or the severing of trees by an individual on the individual's own
property for his or her individual use provided that the individual does not
have the severing done by a person whose business is the severing or removal
Volume I, Acts of the Legislature, 1994 Regular Session, Chapter
61, H.B. 4065, March 12, 1994, page 349, W.Va. Code, 19-1B-3(e) ,
The earlier-enacted version
of W.Va. Code, 19-1B-3(e)  is identical to the foregoing language
except that it includes the following additional language:
Individuals severing or removing
standing trees for sale occasionally, whether on their own property or the property
of another, where the aggregate gross income realized for all sales within any
calendar year of the logs, props, posts, firewood, rails or other products does
not exceed fifteen thousand five hundred twenty-eight dollars, are to be considered
engaged in the harvesting of timber and not engaged in severing timber for commercial purposes.
Harvesting of timber is specifically excluded from the definition of timbering
Volume II, Acts of the Legislature, 1994 Regular Session, Chapter
119, Com. Sub. for H.B. 4402, page 1917, W.Va. Code, 19-1B-3(e)
, page 1921.
Standard of Review
The certified question before
this Court is purely a matter of law that we address de novo. Syllabus
Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d
When faced with two conflicting
(See footnote 2) this Court and courts generally follow the
black-letter principle that effect should always be given to the latest
. . . expression of the legislative will . . . . Joseph Speidel Grocery
Co. v. Warder, 56 W.Va. 602, 608, 49 S.E. 534, 536 (1904). [T]he statute
which is the more recent . . . prevails. . . . This rule applies even where
the two statutes were enacted to be effective on the same date. Doe v. Attorney General, 425 Mass. 210, 216-217, 680
N.E.2d 92, 96 (1998) (in part quoting 2B Singer, Sutherland Statutory
Construction §§ 51.02 at 121 (5th Ed. 1992). See also People
v. Frye, 113 Ill.App.3d 853, ___, 69 Ill.Dec. 630, ___, 447 N.E.2d 1065,
1070 (1983) (bill passed after 4:30 p.m. was controlling over a conflicting
bill passed on the same day between 11:15 a.m. and 12:30 p.m.); State v.
Montiel, 56 N.M. 181, ___, 241 P.2d 844, 845 (1952); Bailey v. Drane,
96 Tenn. 16, ___, 12 Pickle 6, ___, 33 S.W. 573, 573-574 (1896) (two pieces
of conflicting legislation passed on same day, later enacted law controls);
Derby v. State, 14 Ohio C.D. 304, 24 Ohio C.C. 304, 6 Ohio C.C. (N.S.)
91, 1902 WL 918 (Ohio Cir.) (1902) (where two inconsistent acts bear the same
date, a court may resort to the legislative journals to ascertain which act
was actually last passed and that is the controlling statute), overruled
on other grounds, Yocheim v. State, 21 Ohio C.D. 430, 31 Ohio C.C.
430, 12 Ohio C.C. (N.S.) 430, 1909 WL 601 (Ohio Cir.) (1909).
Applying the foregoing principles,
we conclude that the controlling definition of timbering operations
enacted by the 1994 Legislature at W.Va. Code, 19-1B-3  is the
definition contained in the last-enacted version at Volume I, Acts of the
Legislature, 1994 Regular Session, Chapter 61, page 396.
(See footnote 3)