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AGO 1972 No. 4 - February 02, 1972
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Slade Gorton | 1969-1980 | Attorney General of Washington

DISTRICTS ‑- CEMETERY ‑- TAXATION ‑- FEE DIFFERENTIAL BASED UPON RESIDENCE OR PROPERTY OWNERSHIP

(1) A cemetery district created pursuant to chapter 68.16 RCW is thereby empowered to sell cemetery plots and render other customary cemetery services to persons who neither reside within nor own taxable property located within the district.

(2) A cemetery district created pursuant to chapter 68.16 RCW may impose higher fees for cemetery plots and other customary services provided to persons not residing or owning taxable property within the district than it charges to residents and property owners so long as this fee differential is reasonable in relation to the criteria upon which it is based.

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                                                                 February 2, 1972

Honorable Harold S. Zimmerman
State Representative, 17th District
Legislative Building
Olympia, Washington 98504

                                                                                                                   Cite as:  AGO 1972 No. 4

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on two questions which we paraphrase as follows:

            (1) Is a cemetery district which has been created pursuant to chapter 68.16 RCW thereby empowered to sell cemetery plots and to render other customary cemetery services to persons who neither reside nor own any taxable property within the district?

            (2) If question (1)is answered in the affirmative, may such a cemetery district charge higher fees for the sale of cemetery plots or the provision of such other customary cemetery services to those persons?

            We answer question (1) in the affirmative and question  [[Orig. Op. Page 2]] (2) in the manner set forth in our analysis.

                                                                     ANALYSIS

            Question (1):

            The formation of cemetery districts is provided for by chapter 68.16 RCW, codifying the provisions of chapter 6, Laws of 1947.  The basic powers of such a district are set forth in RCW 68.16.130 (1) as follows:

            "(1) A cemetery district organized under this chapter shall have power to acquire, establish, maintain, manage, improve and operate cemeteries and conduct any and all of the businesses of a cemetery as defined in this title.  A cemetery district shall constitute a cemetery authority as defined in this title and shall have and exercise all powers conferred thereby upon a cemetery authority and be subject to the provisions thereof.

            ". . ."

            The phrase "this title" appearing in RCW 68.16.130 is, in actuality, a reference to the "General Cemetery Act" ‑ chapter 247, Laws of 1943.  See, § 13 (a), chapter 6, Laws of 1947, which constitutes the session law source of the provision now codified under this RCW designation.

            "Cemetery business" is defined in § 21, chapter 247, Laws of 1943 (RCW 68.04.210) as meaning

            ". . . any and all business and purposes requisite to, necessary for, or incident to, establishing, maintaining, operating, improving, or conducting a cemetery, interring human remains, and the care, preservation, and embellishment of cemetery property."

            From the foregoing it seems clear that while one source of  [[Orig. Op. Page 3]] revenues to fund the operation of a cemetery district is property taxation,1/ such taxation does not constitute the exclusive source of cemetery district income.  In addition, such districts have the clearly implied authority to charge fees for the sale of cemetery plots and for the provision of other customary cemetery services to the purchasers thereof.  Moreover, there is nothing contained within the laws governing cemetery districts which precludes them from selling such plots or providing such services to persons who neither reside within the district nor own taxable property within its boundaries.

            It is, of course, a well-established general rule of municipal law that a municipal corporation in this state has no implied authority to furnish the services for which it was formed on an extraterritorial basis ‑ i.e., beyond its territorial limits.  See,Farwell v. Seattle, 43 Wash. 141, 86 Pac. 217 (1906);Municipal League of Bremerton v. Tacoma, 166 Wash. 82, 6 P.2d 587 (1931); cf.,State ex rel. P.U.D. Etc. v. Wylie, 28 Wn.2d 113, 182 P.2d 706 (1947);Alderwood Water Dist. v. Pope & Talbot, 62 Wn.2d 319, 382 P.2d 639 (1963); and 12 McQuillin, Municipal Corporations, § 35.34.

            However, the scope of this rule, as explained in Des Moines v. Hemenway, 73 Wn.2d 130, 437 P.2d 171 (1968), clearly demonstrates its inapplicability to the situation here under consideration.  InHemenway, the court stated that neitherWylie norFarwell, supra, stood for the proposition that a city has no power to provide facilities which will be used primarily by individuals residing outside its limits, saying:

            ". . . Both cases involved attempts by municipal corporations through extensions of services to act in a municipal capacity beyond their corporate limits.  It is one thing for a municipality to  [[Orig. Op. Page 4]] attempt to establish services beyond its corporate limits, and it is quite another for a municipality to attempt to establish services within its corporate limits which are to be utilized by individuals who may or may not reside within its corporate limits but who must come within the corporate limits to avail themselves of the services. . . ."

            It is, of course, the second type of extraterritorialty, and not the first, which is involved here; i.e., the rendition of services to persons living outside the boundaries of a district who must, nevertheless, come within the corporate limits of the district to avail themselves thereof.  Accordingly, absent any language in any of the governing statutes,supra, which precludes a cemetery district from selling its plots or providing other customary services to persons who neither reside within the district nor own any taxable property located therein, our answer to your first question (as paraphrased) is in the affirmative.  In the exercise of its general authority under RCW 68.16.130 (1) and related statutes, a cemetery district may provide these facilities and services to such persons.

            Question (2):

            Assuming the foregoing answer to question (1), you have next asked whether the cemetery district in establishing its fee schedule for its services, may charge higher fees to those persons referred to in that question than it charges to persons who are either residents or property owners within the district ‑ in recognition of the lack of financial support which the district receives from such persons through property taxation.

            It is basic that a legislative grant to a municipal corporation of the power to charge fees for services rendered carries with it the inherent power to make reasonable distinctions between classes of customers for the purposes of fixing such fees.  Port Orchard v. Kitsap County, 19 Wn.2d 59, 141 P.2d 150 (1943).  Furthermore, it has quite consistently been held in other jurisdictions that it is reasonable to differentiate between intramural and extramural customers for  [[Orig. Op. Page 5]] the purposes of fixing municipal fees.  See, 12 McQuillin, Municipal Corporations, § 35.37 i (1970).

            This power to differentiate between classes of customers on the basis of their place of residence vis-a-vis the boundaries of a municipal corporation is not dependent upon an express legislative authorization.  For example, inFaxe v. Grandview, 48 Wn.2d 342, 294 P. 2d 402 (1956), the requirement that extramural customers of a municipal utility pay higher rates than intramural customers was upheld by the court, even though the city's power to make this differentiation in utility rates was predicated upon statutory language which provided no more than that ". . . all water sold by a municipal corporation outside its corporate limits shall be sold at just and reasonable rates."  (See, RCW 80.40.010.)

            An even stronger case in point is Port Orchard v. Kitsap County, supra.  Although the issue in that case did not involve rate discrimination between extramural and intramural customers ‑ but rather between different categories of intramural customers ‑ the court upheld the discrimination between classes of customers even though the only statutory authority for the discrimination between classes of customers was contained in the following language:

            ". . . with full jurisdiction and authority to manage, regulate, operate and control the same, and to fix the price of service thereof, . . ."  (RRS § 9488; § 1, chapter 163, Laws of 1933.)

            Based upon the foregoing authorities, we also answer your second question, as paraphrased, in the qualified affirmative.  A cemetery district which sells cemetery plots and provides other customary cemetery services to persons who neither reside nor own taxable property within the boundaries of the districtmay, in its discretion, impose a higher level of fees upon such persons than are imposed upon residents or property owners so long as this differential is reasonably related to the criteria upon which it would be based, i.e., (in this case) the lack of financial support from such persons by way of property taxation.

             [[Orig. Op. Page 6]]   We trust that the foregoing will be of assistance to you.

Very truly yours,

SLADE GORTON
Attorney General


DONALD FOSS, JR.
Assistant Attorney General


THOMAS F. CARR
Assistant Attorney General

                                                        ***   FOOTNOTES   ***

1/See, RCW 68.16.110, which provides, in pertinent part, that:

            "Cemetery districts . . . are empowered . . . to levy and enforce the collection of taxes against the lands within the district, . . ."

            See, also, RCW 68.16.210.

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