DEPOSIT REQUIRED FOR ESTABLISHMENT OF ENDOWMENT CARE SECTIONS IN PREVIOUSLY NON-ENDOWED CEMETERIES

CEMETERIES ‑- JURISDICTION OF CEMETERY BOARD ‑- DEPOSIT REQUIRED FOR ESTABLISHMENT OF ENDOWMENT CARE SECTIONS IN PREVIOUSLY NON-ENDOWED CEMETERIES

1. Cemetery board has jurisdiction over non-endowed cemeteries in the state larger than ten acres and not excluded by section 30, chapter 290, Laws of 1953.

2. Cemetery operating without endowment care prior to 11 June, 1953, must deposit $25,000 in endowment care fund before placing sections under endowment care.

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                                                                November 5, 1953

Mr. C. S. Harley, Chairman
The Cemetery Board
11,111 Aurora Avenue
Seattle 33, Washington                                                                                                              Cite as:  AGO 53-55 No. 166

Dear Sir:

            We have examined the contents of your two letters of October 8, 1953, requesting the opinion of this office on the following questions:

            1. Does the cemetery board have jurisdiction over non-endowed cemeteries within the state over ten acres in size and not otherwise excluded by section 30, chapter 290, Laws of 1953?

            2. Must a cemetery established and operating without endowment care prior to the effective date of chapter 290, Laws of 1953, deposit $25,000 in an endowment care fund before placing new sections under such care?

            In our opinion, the answer to both questions is "Yes."

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            1. Section 36, chapter 290, Laws of 1953, provides:

            "The board may establish necessary rules and regulations for the administration and enforcement of this title and the laws subject to its jurisdiction and prescribe the form of statements and reports provided for in this title:  Provided, however, The board shall have no jurisdiction with regard to the provisions of chapter 68.48, RCW."

            The cited RCW chapter relates to penal provisions.  Section 39, chapter 290, Laws of 1953, provides:

            "The board shall enforce and administer the provisions of chapter 68.04 to 68.44, RCW [[chapter 68.04 to 68.44 RCW]], inclusive, subject to provisions of section 30 of this act."

            The Cemetery Board is thus authorized to administer and enforce state legislation upon cemeteries and allied subjects as indicated, which is to say that it has jurisdiction over them.  That jurisdiction is subject to the exception noted as to penalties, and to the provisions of section 30, which provides:

            "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.

            Non-endowed cemeteries are defined by RCW 68.40.070, as amended by section 9, chapter 290, Laws of 1953.  Requirements concerning such cemeteries are set out in chapter 68.40 RCW, as amended by chapter 290.  Assuming that the particular cemetery does not fall within one of the exclusions made by section 30,supra, it lies within the jurisdiction of the Cemetery Board by virtue of section 39 as quoted above.

             [[Orig. Op. Page 3]]

            2. By section 4, chapter 290, Laws of 1953, RCW 68.40.010 was amended to include among other changes the following requirement:

            "Any endowment care cemetery hereafter established shall also have deposited in its endowment care fund the additional sum of twenty-five thousand dollars before disposing of any plot or making any sale thereof."

            This provision became effective on June 11th, 1953.  Section 4 defines an endowment care cemetery by amending the former definition of a perpetual care cemetery.  The minimum deposits in the care fund for graves and crypts are increased.  But the endowment care cemetery is clearly the direct successor and substitute for the perpetual care cemetery.  The same is true of a nonendowment cemetery, as the successor to the non-perpetual care cemetery.  RCW 68.04.070, as amended by section 9, chapter 290.  It seems clear from the words "hereafter established" in the section last quoted above that previously established perpetual care cemeteries may be considered as outside the requirement of that section, although technically no endowment care cemeteries existed before June 11th, 1953.

            However, it must be noted that while endowment care cemeteries are authorized to contain carefully marked non-endowment care sections (RCW 68.40.020, and amendment by section 5, chapter 290), no such authority exists for a non-endowment cemetery to contain endowment care sections, nor did it exist for nonperpetual care cemeteries.  The only provision for such a change in status from non-endowment to endowment care seems to contemplate a change in the entire cemetery.  Section 11 of chapter 290, amending RCW 68.44.010, provides in part:

            "Any cemetery authority may place its cemetery under endowment care, and establish, maintain, and operate an irreducible endowment care fund.  * * *" (Italics supplied)

            A deposit of $25,000 might be much larger than would be necessary to maintain one or two endowment care sections.  There would be difficulty with the requirements of RCW 68.40.080, under which a non-endowment cemetery must  [[Orig. Op. Page 4]] advise the public that it is not an endowment care property by signs upon its buildings, stationery, and documents.

            From the foregoing it seems that any cemetery, in order to maintain endowment care plots, must qualify within the definition of RCW 68.40.010 (section 4, chapter 290) by making the specified deposits for plots sold, the additional deposit of $25,000, and satisfactory compliance with the requirements of RCW chapter 68.44.

            We conclude that a cemetery which included no endowment care (or perpetual care) sections before June 11th, 1953, must deposit $25,000 in an endowment care fund before offering endowment care sections to the public.

            We hope the foregoing analysis will prove to be of assistance to you.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General