MUNICIPAL CORPORATIONS ‑- CEMETERIES.
A fourth class city may acquire and maintain a cemetery, but it may not sell lots therein to provide funds for maintenance.
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August 12, 1954
Honorable Delbert R. Scoles
Colville, Washington Cite as: AGO 53-55 No. 295
In a recently acknowledged letter you ask the opinion of this office relative to the operation of a cemetery by a town. You ask whether, in the light of RCW 68.12.030 and 68.12.040, a town or fourth class city may acquire and maintain a cemetery and sell lots to provide funds for its maintenance.
It is our opinion that a town may acquire and maintain a cemetery, but it may not sell lots therein to provide funds for maintenance. Such funds must be raised by taxation.
It is provided in RCW 68.12.030 that:
"Every county, city, or town may provide a hearse and pall for burial of the dead, and procure and hold lands for burying grounds, fence the same, and preserve the monuments therein, make regulations, and levy and collect the necessary taxes for that purpose, in the same manner as other taxes are levied and collected."
[[Orig. Op. Page 2]] This section of the code expressly authorizes a town to acquire and maintain a cemetery. It should be noted, however, that the funds for maintenance expenses are to be provided by taxation. The statute seems to contemplate a free public burial ground, supported by taxation.
It is provided by RCW 68.12.040 that:
"Anycity may acquire, hold, or improve land for cemetery purposes, and may sell lots therein, and may provide by ordinance that a specified percentage of the proceeds therefrom be set aside and invested, and the income from the investment be used in the care of the lots, and may take and hold any property devised, bequeathed or given upon trust, and apply the income thereof for the improvement or embellishment of the cemeteries or the erection or preservation of structures, fences, or walks therein, or for the repair, preservation, erection, or renewal of any tomb, monument, gravestone, fence, railing, or other erection at or around a cemetery, lot, or plat, or for planting and cultivating trees, shrubs, flowers, or plants in or around the lot or plot, or for improving or embellishing the cemetery in any other manner or form consistent with the design and purpose of the city, according to the terms of the grant, devise, or bequest." (Emphasis supplied)
These provisions were superimposed upon those of RCW 68.12.030 in 1909. This section of the law provides not only for the acquisition and maintenance of cemeteries, but also for the sale of lots to provide maintenance funds. It should be noted that here only the word "city" is used. This word may or may not include a fourth-class city or town; whether it does so depends upon the usage of the word in its context. State ex rel. Czerny v. Superior Court of King County, 70 Wash. 592, 596;Town of Elma v. Carney, 4 Wash. 418, 419; State v. Board of Harbor Line Com'rs., 4 Wash. 6.
The legislature seems to have clarified the problem of construction for us in dealing with the powers of towns.
[[Orig. Op. Page 3]] A town originally had the power, Laws of 1890, page 201, section 154:
"(2) To purchase, lease or receive such real estate and personal property as may be necessary or proper for municipal purposes, and to control, dispose of, and convey the same for the benefit of the town: Provided, That they shall not have power to sell or convey any portion of any water front;
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In 1941 the legislature amended this by adding these underlined portions, Laws of 1941, chapter 74, section 1:
"(2) To purchase, lease or receive such real estate and personal property as may be necessary or proper for municipal purposes, and to control, dispose of and convey the same for the benefit of the town; the towns whose population shall be between 1250 and 1350 according to the 1940 Federal census shall have the power to acquire, own, and hold real estate for cemetery purposes either within or without the corporate limits, to sell and dispose of such real estate, to plat or replat such real estate into cemetery lots and to sell and dispose of any and all lots therein, and to operate, improve and maintain the same as a cemetery: Provided, That they shall not have the power to sell or convey any portion of any water front;
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(The amended section is not codified in RCW 35.27.370 (2), so resort must be had to the session laws). By providing that towns of only a certain population may sell lots in town-owned cemeteries, it seems that the legislature recognized that other towns had no such power. It would follow then that the word "city," as used in RCW 68.12.040, should not include a town.
[[Orig. Op. Page 4]]
It is our conclusion that a town may acquire and maintain a cemetery and support it by taxation under the provisions of RCW 68.12.030, but it may not provide for the support of a cemetery by selling lots therein under the provisions of RCW 68.12.040.
A similar subject was dealt with in an opinion to the State Auditor on June 12, 1946. We believe that opinion to be distinguishable from this, and so not overruled hereby.
Very truly yours,
KEITH S. BERGMAN
Assistant Attorney General