CEMETERIES ‑- ENDOWMENT CARE ‑- $25,000 DEPOSIT ‑- APPLICABILITY

CEMETERIES ‑- ENDOWMENT CARE ‑- $25,000 DEPOSIT ‑- APPLICABILITY.

1. $25,000 deposit not required for burial parks under ten acres, established after June 11, 1953: $25,000 deposit is required for cemeteries containing mausoleum, columbarium, or both, established after June 11, 1953, though under ten acres.

2. Cemetery established after June 11, 1953, then under ten acres as straight burial park, which expands to exceed ten acres, must deposit $25,000 before operating as endowment care cemetery.

3. Cemetery operating under perpetual care before June 11, 1953, under ten acres, need not deposit $25,000 in order to expand to exceed ten acres and operate on endowment care.

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                                                                  March 19, 1954

Mr. C. S. Harley
Chairman
Washington State Cemetery Board
11,111 Aurora Avenue
Seattle 33, Washington                                                                                             Cite as:  AGO 53-55 No. 224

Dear Sir:

            By letter, as previously acknowledged, you have requested the opinion of this office upon three questions concerning Chapter 290, Laws of 1953.  For the sake of convenience, we shall discuss them in the following order:

            1.  "Section 4, Chapter 290, would appear to make mandatory the deposit of $25,000 in an endowment care fund for everynew cemetery before disposing of any plot or making any sale thereof.  Even though the Cemetery Board does not have jurisdiction of a  [[Orig. Op. Page 2]] cemetery under ten acres in size, would the provisions of Section 4 with reference to the deposit of the $25,000 still be in effect?"

            2.  "If a cemetery under ten acres established after Chapter 290, Laws of 1953, went into effect, whether endowed or non-endowed [[nonendowed]], and thereafter increases its area so that it exceed ten acres, must said cemetery deposit $25,000 in an endowment fund before it can operate as anendowed care cemetery?"

            3.  "If a cemetery under ten acres in size was operating as an endowment care cemetery prior to the effective date of Chapter 290, Laws of 1953, and now desires to add to its size so that it will exceed ten acres in area, must it deposit the sum of $25,000 in its endowment fund as provided in Section 4 of Chapter 290 in addition to such funds as it already may have in the fund?"

            Our conclusions may be expressed in this way:

            1.  No; except where the cemetery includes a columbarium or mausoleum, or both, in which case the answer is "Yes."

            2.  Yes.

            3.  No.

                                                                     ANALYSIS

            1.  RCW 68.40.010, as amended by § 4, Chapter 290, Laws of 1953, provides in relevant part:

            "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 ofany plot or making any sale thereof."  (Emphasis supplied)

             [[Orig. Op. Page 3]]

            § 30, Chapter 290, provides that

            "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)

            The Code Reviser, in the 1953 supplement to RCW, has placed § 30 in RCW 68.05.280.  One reading the chapter might conclude, erroneously, that the section made exemptions only as to chapter 68.05 RCW.  Actually, it applies to all provisions of the 1953session law chapter, 290; and consequently modifies the effect of RCW 68.40.010 as quoted above.  This is true notwithstanding the use of the word "Any" in RCW 68.40.010.

            § 30, however, excludes only burial parks under ten acres in size.  Since the session law, Chapter 290, itself refers to RCW chapters, we must consider that the definition in chapter 68.04 RCW are still applicable.  They continue to control chapter 68.40 RCW as they did before its amendment.  RCW 68.04.050 defines "burial park."  RCW 68.04.040 defines "cemetery" to include one or any combination of the following: burial parks, mausoleums, and columbariums.

            RCW 68.40.010, as quoted above, refers to "endowment care cemetery" and sale or disposal of any "plot."  A "cemetery" may be only, or more than, a burial park.  By RCW 68.04.230 a "plot" is defined:

            " 'Lot,' 'plot' or 'interment plot' means space in a cemetery, used or intended to be used for the interment of human remains.  Such terms include and apply to one or more than one adjoining graves, one or more than one adjoining crypts or vaults, or one or more than one adjoining niches."  (Emphasis supplied)

             [[Orig. Op. Page 4]]

            From the foregoing, we must conclude that because § 30 excludesonly burial parks under ten acres in size, a cemetery combining a burial park with a mausoleum or columbarium, or both, all being subject to the same care fund, must comply with the deposit requirement although the acreage is under ten.

            2.  Subject to the conclusion expressed in (1.) above, any cemetery established after June 11th, 1953, the effective date of Chapter 290, and exceeding ten acres in size if it contains only a burial park, must comply with the $25,000 deposit fixed by RCW 68.04.010 before it operates as an endowment care cemetery.  As to straight burial parks established after that date, the exclusion of § 30 disappears when the area is extended beyond ten acres; and the cemetery must adopt either the endowed or non-endowed [[nonendowed]]care provisions of chapter 68.40 RCW.

            3.  We assume that the cemetery described in your third inquiry was established under the "perpetual care" provisions of chapter 68.40 RCW, as they existed before amendment.  Analysis of the amendments to chapter 68.40 RCW and chapter 68.44 RCW by Chapter 290, Laws of 1953, discloses that there is little difference between the former perpetual care, and the present endowment care cemetery.  The names have been changed throughout, and apparently it is now a misdemeanor to use the word "perpetual" in connection with a cemetery under RCW 68.40.085.  RCW 68.44.040, permitting loans from the perpetual care fund to the cemetery authority for certain purposes, was repealed.  RCW 68.44.030 relates the investment standard for the fund directly to RCW 30.24.020, which is not a major change.  Finally, in RCW 68.40.010, an endowment care cemetery must deposit the same percentage of sales, with increased minimums in some cases; and the following provision has been added:

            "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."  (Emphasis supplied)

            The question involves the meaning of the underscored phrase.  Since there wereno endowment care cemeteries before June 11, 1953, it might be argued thatevery cemetery wishing to continue its operation must deposit $25,000 before assuming endowment care status.

             [[Orig. Op. Page 5]]

            If that had been the intent of the legislature, there would have been no reason to use the phrase "hereafter established" in the section.  Read simply, the quoted phrase means "established any time after June 11, 1953."  It is prospective language, and does not turn back to include cemeteries previously established in fact.  We think establishment is used in the actual, physical sense, rather than as indicating the mere transition required from perpetual to endowment care.

            Thus the cemetery, previously established and operating under "perpetual care" although less than ten acres in size, which after June 11, 1953, is increased to more than ten acres is simply not "hereafter established" within the contemplation of the act.  The matter of size in this respect is unimportant; because the legislature apparently intended to require the deposit only of new cemeteries.

Very truly yours,

DON EASTVOLD
Attorney General

A. J. HUTTON, JR.
Assistant Attorney General