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Bob Ferguson

AGO 1951 No. 431 -
Attorney General Smith Troy


Counties may not give financial assistance to a private cemetery association for the purpose of expanding the cemetery facilities of such an association.

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                                                                 January 16, 1951

Honorable Charles T. Sharp
Prosecuting Attorney
Asotin County
Asotin, Washington                                                                                                              Cite as:  AGO 49-51 No. 431

Dear Sir:

            By letter of December 26, 1950, you advise that there is no public cemetery in Asotin County and that the only regularly operated cemetery in the county is maintained by a private cemetery association.  You further state that the cemetery association has insufficient funds to expand its facilities to meet increased requirements; that, subject to approval as to the legality of such action, the board of county commissioners is willing to assist financially, and has provided a general expense fund appropriation of $1200.00 for 1951 for the purpose of developing additional areas of the cemetery association's property.  You request our opinion on the question:

            "Can the Board of County Commissioners appropriate moneys from the general expense fund of the County for the purpose of improving and preparing property of a cemetery association for burial purposes, there being no public burying ground in the county?"

            Our conclusion is as follows:

            The board of county commissioners does not have authority to appropriate monies from the general expense fund of the county for the purpose of improving the property of a private cemetery association.

             [[Orig. Op. Page 2]]


            The powers of a county to acquire and maintain cemeteries and burial grounds are set forth in Rem. Rev. Stat. 3772, which provides:

            "Each and everycounty, town, or city shall have power to provide a hearse and pall for burial of the dead, and to procure and hold lands for burying grounds, and to make regulations, and fence the same, and to preserve the monuments erected therein, and to levy and collect the necessary taxes for that purpose, in the same manner as other taxes are levied and collected."  (Emphasis Supplied)

            With respect to counties, the provisions of this section clearly contemplate acquisition of any such burial grounds or burial areas by the county in its own right.  We have found no statute which purports to authorize a county to contribute to the acquisition, improvement or maintenance of cemetery property owned by a private corporation, such as a cemetery association.  In any event, such a contribution by a county, or any statute attempting to authorize such a contribution, would, in our opinion, violate the mandate of Article VIII, section 7 of our state constitution, which is as follows:

            "No county, city, town, or other municipal corporation shall hereafter give any money or property, or loan its money or credit, to or in aid of any individual, association, company, or corporation, except for the necessary support of the poor and infirm, or become directly or indirectly the owner of any stock in or bonds of any association, company, or corporation."

            InJohns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914), the legislature had, by statute, attempted to give counties authority to make grants for the payment of the expenses of, and premiums awarded by incorporated agricultural fair associations.  In holding that such an act was in violation of Article VIII, section 7 of the constitution, the court said:

            "The section of the constitution last quoted, in most express terms, prohibits a county from giving any money, property or credit to, or in aid of, any corporation, except for the necessary  [[Orig. Op. Page 3]] support of the poor and infirm.  If the framers of the constitution had intended only to prohibit counties from giving money or loaning credit for other than corporate or public purposes, they would doubtless have said so in direct words.  That agricultural fairs serve a good purpose is not questioned, but the constitution makes no distinction between purposes, but directly and unequivocally prohibits all gifts of money, property, or credit to, or in aid of, any corporation, subject to the exception noted.  * * *"

            And seeState ex rel. Washington Navigation Company v. Pierce County, 184 Wash. 414, 51 P. (2d) 407 (1935); and Mitchell v. Consolidated School District, 17 Wn. (2d) 61, 135 P. (2d) 79 (1943).

            We, therefore, advise that the proposed contribution by Asotin County for the purpose of improving and preparing property of the private cemetery association is unauthorized and in violation of the prohibition contained in our state constitution.

            Pursuant to your request, we forward herewith a copy of our opinion No. 376 to the prosecuting attorney of Columbia County, dated September 11, 1950 [[Opinion No. 49-51-376]], relating to cemetery districts.

Very truly yours,

Attorney General

Assistant Attorney General