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August 17, 1970
Honorable James P. Thompson
Whatcom County Courthouse
Bellingham, Washington 98225
Attention: Mr. William A. Gardiner
Deputy Prosecuting Attorney
Cite as: AGLO 1970 No. 110
By letter dated July 23, 1970, receipt of which is acknowledged, you requested our opinion upon the following question:
"Can land embraced within the corporate limits of the City of Lynden (a third-class city), Whatcom County (a second-class county), Washington, be included within the boundaries of a cemetery district?"
We believe that this question must be answered in the negative, for the same essential reasons as are contained in AGO 49-51-331 [[to Prosecuting Attorney, Columbia County on September 11, 1950]], copy enclosed. In that opinion, this office pointed out that under the provisions of the governing statute as it then read, the only incorporated territories which might be included within a cemetery district were those contained in fourth class towns. See § 13, chapter 6, Laws of 1947. Accordingly, it was concluded that the city of Dayton, a third class city, could not lawfully be included within the boundaries of a proposed cemetery district.
Thereafter, the statute in question was amended through the enactment of § 1, chapter 39, Laws of 1957, so as to authorize the inclusion within cemetery districts of those third class cities which are located within the boundaries of counties of the fourth class. It is now codified as RCW 68.16.130 (2), and reads as follows:
"A cemetery district may include within its boundaries the lands embraced within the [[Orig. Op. Page 2]] corporate limits of third class cities in counties of the fourth class, or within the corporate limits of fourth class towns in the classes of counties enumerated in RCW 68.16.010, and in any such cases the district may acquire any cemetery or cemeteries theretofore maintained and operated by any such city or town and proceed to maintain, manage, improve and operate the same under the provisions hereof. In such event the governing body of the city or town, after the transfer takes place, shall levy no cemetery tax. The power of eminent domain heretofore conferred shall not extend to the condemnation of existing cemeteries within the district."
However, as Whatcom county is a second class county, rather than a county of the fourth class, it seems quite clear to us that this amendment to the subject statute has no applicability to a cemetery district in your county.1/
Very truly yours,
FOR THE ATTORNEY GENERAL
Robert J. Doran
Deputy Attorney General
*** FOOTNOTES ***
1/While, in accordance with the foregoing, lands located within the corporate limits of the city of Lynden may not be included within the boundaries of a cemetery district, the city is, of course, authorized to contract with the cemetery district to provide services. See, RCW 35.24.274.