Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

AGO 1954 No. 195 -
Attorney General Don Eastvold


The Cemetery Board Act, chapter 68.05 RCW, does not violate Art. I, sec. 23, of the constitution, by impairing the obligation of a corporate charter, and since all such charters are granted subject to the possible future exercise of the police power, the act affects all cemetery corporations no matter when incorporated.

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                                                                 February 1, 1954

Mr. Clinton S. Harley, Chairman
The Cemetery Board
11,111 Aurora
Seattle 33, Washington                                                                                                              Cite as:  AGO 53-55 No. 195

Dear Sir:

            We have received your recent letter concerning questions presented to the Cemetery Board.  You ask:

            "(1) Does RCW 1953 Supp. 68.05 [[chapter 68.05 RCW]](chapter 290, Laws of 1953) violate the provisions of Article I, Section 23 of the state constitution insofar as it applies to cemeteries incorporated under laws in existence prior to the effective date of the 1953 act.

            "(2) Would RCW 68.20.040 prohibit the application of the provisions of the 1953 act to a cemetery which was organized under the laws existing prior to June 9, 1943."

            We believe that both of these questions are to be answered in the negative.

             [[Orig. Op. Page 2]]


            The Cemetery Board was created by the legislature in 1953, and its functions, powers and duties are now codified in chapter 68.05 RCW (1953 Supp.).  The Board is to generally administer and enforce the provisions of the cemetery code, Title 68 RCW, by providing necessary rules and regulations, examining funds and reports, issuing and dealing with certificates, and prescribing rates for regulatory charges.  Art. I, sec. 23 of the Washington state constitution provides:

            "No bill of attainder, ex post facto law, or law impairing the obligations of contracts shall ever be passed."

            From the time of the Dartmouth College case, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629, it has universally been held that the charter of a corporation or articles of incorporation constitute a contract within the meaning of this constitutional prohibition, and the legislature cannot alter or change any rights under such contract unless this power was reserved in the charter.  To avoid these consequences, most legislatures have reserved the power to change rights under such charters.  Our constitution provides in Art. XII, sec. 1:

            "Corporations may be formed under general laws, but shall not be created by special acts.  All laws relating to corporations may be altered, amended or repealed by the legislature at any time, and all corporations doing business in this state may, as to such business, be regulated, limited or restrained by law."

            Cemetery corporations are usually regarded as organized for a public purpose and are held to be quasi public corporations.  They operate under franchise or charters conferred upon them by the state, and property rights may arise therefrom notwithstanding the provision of Art. XII, sec. 1 quoted above.  Nevertheless, these corporations are subject to legislative control in the exercise of the police power to promote the public health and well being.  Lake View v. Rose Hill Cemetery Co., 70 Ill. 191, 22 Am. Rep. 71.  The regulatory functions delegated to the Cemetery Board are undoubtedly within the proper  [[Orig. Op. Page 3]] exercise of the police power, and there is no dispute as to the reasonableness of these regulations and fees.

            The various corporations, or their stockholders, controlled by the Cemetery Act, have no rights impaired by the state that are protected by the constitution.  All contracts made with reference to any matter that is subject to regulation under the police power, must be understood as made in reference to the possible exercise of that power.  Raymond Lumber Co. v. Raymond Light and Water Co., 92 Wash. 330, 159 Pac. 133, L.R.A. 1917C, 574.  If a mere contract were permitted to limit the state in the exercise of its police power, there would be no police power; no reform would be possible, no matter how beneficial.

            The answer to your second question seems to follow directly from the first.  The language of RCW 68.20.040, has been so materially changed in revision and codification that we refer to the session law from whence it was derived.  Sec. 44, chapter 247, Laws of 1943 provides:

            "Theprovisions of this act do not affect the corporate existence or rights or powers of any cemetery organized under any law then existing prior to the effective date of this act, and as to such cemeteries and their rights, powers specified in their charters or articles of incorporation, the laws under which the corporation was organized and existed and under which such rights and powers become fixed or vested are applicable."  (Emphasis supplied.)

            The immunity against statutory provisions accorded to existing cemetery organizations was limited to "the provisions of this act."  (Chapter 247, Laws of 1943).  The Cemetery Board Act (chapter 68.05 RCW 1953 Supp.) is entirely separate and distinct from "this act" (Chapter 247 of the Laws of 1943), so sec. 44 thereof can have no possible effect in limiting application of the 1953 act.  In any event, the corporate powers and rights protected by the 1943 act are the ordinary ones granted by the charters and existing laws.  No corporate rights may arise to such position as to be immune from a reasonable exercise of the police power in a proper instance, for when a charter is granted, it is granted subject to the implied condition that the police power may be exercised at a future date.

             [[Orig. Op. Page 4]]

            The cemetery corporations organized prior to June 9, 1943, are governed by the provisions of chapter 68.05 RCW (1953 Supp.) to the same extent as those organized after that date.

Very truly yours,

Attorney General

Assistant Attorney General