AGO 1955 No. 56 - Apr 13 1955
The exemptions provided in RCW 68.05.280 applies to the provisions of RCW 68.40.010.
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April 13, 1955
Honorable W. A. Gissberg
Marysville, Washington Cite as: AGO 55-57 No. 56
By letter previously acknowledged you have submitted two questions as follows:
(1) Must a cemetery which will hereafter be established and which would provide endowed care service and which cemetery would have a total area of less than ten acres comply with the provisions of RCW 68.40.010?
(2) Or does the exemption provided by RCW 68.05.280 apply to RCW 68.40.010?
Your first question is answered in the negative, as qualified herein; your second in the affirmative.
RCW 68.40.010 defines endowment care cemeteries while RCW 68.05.280 lists the exemptions to which the chapter shall not apply. Both sections are derived from chapter 290, Laws of 1953. A further reading of this chapter, particularly §§ 36 and 39 (RCW 68.05.090 and 68.05.100), indicates that the entire title has now been integrated and any interpretation that is given to any particular section should take into consideration the title as a whole.
[[Orig. Op. Page 2]]
Your question is limited to the application of the endowment care provisions of chapter 68.40 RCW to burial parks under ten acres and insofar as the operation of such a burial park is concerned, it would be excepted. The exception section (section 30, chapter 290, Laws of 1953, codified as RCW 68.05.280) reads as follows:
"The provisions of this chapter do not apply to any of the following: Any religious corporation, church, coroner, religious society or denomination, a corporation sole administering temporalities of any church or religious society or denomination, or any cemetery organized, controlled, and operated by any of them,any county, town, or city cemetery, or any burial park having an area not exceeding ten acres." (Emphasis supplied)
It is to be noted that a distinction is made between cemeteries and burial parks in the exception section, as well as their definition under RCW 68.04.040 defining cemeteries and RCW 68.04.050 defining burial parks. The exception statute applies to "county, town, or city cemetery" or "any burial park having an area not exceeding ten acres."
Consequently, county, town or city cemeteries and burial parks with an area of not exceeding ten acres are not governed by chapter 68.40 RCW (the endowment care provisions). It should be noted, however, that if either of these excepted groups engaged in other activities governed by the title (Title 68 RCW) which do not fall within the statutory definition of their function, as, for example, a burial park of less than ten acres operating a columbarium, mausoleum or crematory, the statutory provisions would apply. This distinction is mentioned in an opinion (AGO 53-55 No. 224) [[to C. S. Harley, Cemetery Board on March 19, 1954]], a copy of which is enclosed for your consideration.
We hope the foregoing will prove of assistance to you.
Very truly yours,
ROY C. FOX
Assistant Attorney General