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AGO 1954 No. 351 - December 02, 1954
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Don Eastvold | 1953-1956 | Attorney General of Washington

CEMETERIES ‑- PERPETUAL CARE ORDINANCES

Trust fund care provisions authorized by RCW 68.12.040 and 68.12.060 which may have been called "perpetual care" provisions need not be deleted from municipal ordinances relating to public cemeteries, and where contractual duties respecting them have accrued, the municipality is obligated to continue such care.

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                                                                December 2, 1954

Honorable Donald H. Webster
Director
Bureau of Governmental Research and Services
University of Washington
266 J. Allen Smith Hall
Seattle 5, Washington                                                                                                              Cite as:  AGO 53-55 No. 351


Dear Sir:

            Your letter of November 2, 1954, requested an opinion concerning whether RCW 68.40.085, 1953 Supp., creates a perpetual care prohibition which requires municipalities to delete from their ordinances the perpetual care provisions relating to municipally owned cemeteries and also whether such municipalities are obligated to continue such care pursuant to contracts heretofore consummated.

            In our opinion, trust fund care provisions authorized by RCW 68.12.040 and 68.12.060, which may have been called "perpetual care" provisions, need not be deleted from municipal ordinances relating to public cemeteries and where contractual duties respecting them have accrued, the municipality is obligated to continue such care.

                                                                     ANALYSIS

            RCW 68.12.040 and 68.12.060 authorize certain municipalities to hold land  [[Orig. Op. Page 2]] for cemetery purposes and to create and invest a trust fund utilizing the income therefrom for future maintenance and care of the cemetery.  These statutes apparently have been construed to grant designated municipalities the authority to enact ordinances with "perpetual care" provisions.  But, "perpetual care" is an inaccurate representation as acknowledged by the legislature in RCW 68.40.085, 1953 Supp.  There it provides:

            "It is a misdemeanor for any cemetery authority, its officers, employees, or agents, or a cemetery broker or salesman to represent that an endowment care fund, or any other fund set up for maintaining care, is perpetual."

            The foregoing statute prohibits the use of the term "perpetual care" by cemeteries.  Though RCW 68.48.070 would seem to exempt city cemeteries from this prohibition, it is not clear that it does.  The general type reference is that of the codifier and not of the legislature.  Furthermore, the prohibition in question is a 1953 act, while the exemption statute is a 1943 act.  Nor is there any reason in principle why public cemeteries should be exempt.  It is inaccurate to represent that any fund is perpetual.  No matter what type of investment is made with a trust fund, there is some chance of loss.  But it should be made clear that it is the representation that a fund is perpetual that is objected to, not that a trust fund of the type authorized by RCW 68.12.040 and 68.12.060 exists.  In loose terminology, one might say this is perpetual care, but such would be misleading.  Endowment care or some similar language would be more appropriate.

            Contractual duties of the type involved in endowment care agreements were not abrogated by RCW 68.40.085, 1953 Supp. nor was such intended.  The contracting parties are still obligated to perform such duties under any contract previously consummated, but in the future they should be referred to as endowment or trust fund care rather than perpetual.

            In conclusion, trust fund care provisions authorized by RCW 68.12.040 and 68.12.060 which may have been called "perpetual care" provisions need not be deleted from municipal ordinances relating to public cemeteries, and  [[Orig. Op. Page 3]] where contractual duties respecting them have accrued, the municipality is obligated to continue such care.

Very truly yours,

DON EASTVOLD
Attorney General


E. ALBERT MORRISON
Assistant Attorney General

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