CEMETERY DISTRICTS ‑- RELATION OF COUNTY-WIDE DISTRICT TO 3RD CLASS CITIES ‑- ACQUISITION OR JOINT MANAGEMENT OF CEMETERIES OF 3RD CLASS BY DISTRICT -- ESTABLISHMENT OF CEMETERIES BY COUNTY, AS...

CEMETERY DISTRICTS ‑- RELATION OF COUNTY-WIDE DISTRICT TO 3RD CLASS CITIES ‑- ACQUISITION OR JOINT MANAGEMENT OF CEMETERIES OF 3RD CLASS BY DISTRICT --  ESTABLISHMENT OF CEMETERIES BY COUNTY, AS METHOD BY WHICH CEMETERY OF 3RD CLASS CITY MAY BE ACQUIRED ‑- MEANING OF "PRIVATE CEMETERIES" AS USED IN GENERAL CEMETERY ACT

1. A city of the third class may not be included in a proposed cemetery district, and its inclusion in the boundaries set forth in the petition for a proposed district invalidates the petition.

2. A cemetery district may not acquire, or jointly with the city operate or manage the cemetery of a city of the third class.

3. The term "private cemeteries" as used in the General Cemetery Act refers to cemeteries operated by corporations formed for that purpose.

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                                                              September 11, 1950

Honorable R. M. Sturdevant
Prosecuting Attorney of Columbia County
Dayton, Washington                                                                                                              Cite as:  AGO 49-51 No. 331

Dear Sir:

            We have your letter of August 28, 1950, in which you state that pursuant to the provisions of chapter 6, Laws of 1947 (3778-150 et seq. Rem. Supp. 1947), a petition for the establishment of a cemetery district including the whole of Columbia county, and embracing the city of Dayton, a city of the third class, was duly certified and presented to the Board of Commissioners of Columbia county, and that the hearing thereon was adjourned to September 15, 1950.  You state that the main objective of organizing such a district was to include the city of Dayton and its city cemetery, and to place all cemeteries under the jurisdiction of the cemetery district commissioners.  You further state that the Dayton city cemetery has accumulated a special fund of some $21,000.00 for perpetual care and other purposes.

            In your letter you request the opinion of this office as to the following questions:

            "1. May Dayton, a third class city, be included in the petition, and if not would it invalidate the petition embracing the whole of Columbia County.

            "2. If Dayton could not be legally included, is there any means of transferring its cemetery to the district, and become a part thereof and levying upon it the same millage as the remainder of the district or bringing its levy over the 15 mill limit.  Also the right to transfer its $21,000.00 to the district for maintenance and care.

            "3. If the above are not legal, is there any statute or basis for a joint operation of the district and city, and the Dayton city cemetery remain the property of said city.

             [[Orig. Op. Page 2]]

            "Also an interpretation of the meaning of 'Private Cemetery' as used in Laws 1943, Ch. 247, Sec. 146."

            Our conclusions may be summarized as follows:

            1. The city of Dayton, a third class city, may not be included in the proposed cemetery district, and its inclusion in the district as bounded in the petition invalidates the petition.

            2. A cemetery district established under the provisions of chapter 6, Laws of 1947, may not take over the cemetery of Dayton, a third class city.

            3. A cemetery district may not operate jointly with the cemetery of the city of Dayton.  However, the provisions of Rem. Rev. Stat. 3772 may provide a means of attaining the desired objective of a county-wide cemetery.

            4. The term "private cemetery," as used in section 146 of the General Cemetery Act (chapter 247, Laws of 1943; 3778-146 Rem. Supp. 1943) refers to cemeteries operated by corporations formed for that purpose.

                                                                     ANALYSIS

            Section 1, chapter 6, Laws of 1947 (3778-150 Rem. Supp. 1947), authorizes the establishment of cemetery districts in counties of the fourth, fifth, sixth, seventh, eighth and ninth classes.  Section 2 of the Act (3778-151 Rem. Supp. 1947), relating to the procedural steps to be taken, provides that the petition for the establishment of a cemetery district shall designate the boundaries of the proposed district in the manner therein set forth.  It further provides that such petition shall be signed by not less than fifteen per cent (15%) of the qualified registered electors who are property owners or are purchasing property under contract and who are resident within the boundaries of the district.

            Section 5 of the Act (3778-154 Rem. Supp. 1947), relating to the public hearing to be held on the petition by the board of county commissioners, provides in part:

            "* * *No land within the boundaries described in petition shall be excluded from the district."

            Section 13 of the Act (3778-162 Rem. Supp. 1947), provides in part:

             [[Orig. Op. Page 3]]

            "(b) A cemetery district may include within its boundaries the lands embraced within the corporate limits of fourth class towns and in any such case the district may acquire any cemetery or cemeteries theretofore maintained and operated by the town and proceed to maintain, manage, improve and operate the same under the provisions of this act.  * * *"  (Emphasis supplied)

            The general rule of construction is that where a statute enumerates the persons or things to be affected by its provisions, there is an implied exclusion of others and the natural inference follows that it is not intended to be general.  The courts commonly use the maxim "expressio unius est exclusio alterius" in referring to this rule of construction.  State ex rel. Port of Seattle v. Department of Public Service, 1 Wn. (2d) 102, 112 and 113, 95 P. (2d) 1007.  And see 50 Am.Jur. 238 and 239; Jones v. Robertson, 79 Cal. App. (2d) 813, 180 P. (2d) 929, 931.

            It therefore follows that the express provision of section 13, that "fourth class towns" may be included in the district, by implication prohibits the inclusion of towns or cities of any other class, and that Dayton, a third class city, cannot be included in the proposed cemetery district.

            Inasmuch as the Act makes no provision for the elimination of an area improperly included in the boundaries of the proposed district as designated in the petition, and in view of the above quoted portion of section 5 of the Act, which expressly prohibits the exclusion of any area included in the petition, no effective action can be taken on the petition as transmitted to the Board of Commissioners of Columbia County.

            Under the same rule of construction above referred to a duly organized cemetery district excluding the city of Dayton from its boundaries, could not acquire, maintain or operate the cemetery of the city of Dayton.  By implication the provisions of subsection (b) of section 13, above quoted, permit a cemetery district to acquire, maintain or operate cemeteries of fourth class towns only, and such authority is conditioned upon the inclusion of the fourth class town in the boundaries of the district.

            We can find no statutory provision or other basis which would avoid the limitations upon the powers of a cemetery district organized under chapter 6, Laws of 1947, as indicated by the above conclusions, or which would permit the joint operation of the city cemetery by the district and the city.

             [[Orig. Op. Page 4]]

            You indicate in your letter, however, that the main objective in attempting to form a cemetery district under chapter 6, Laws of 1947, is to organize a county-wide cemetery control which would include the city of Dayton and which would have power under a mutually agreeable arrangement, to take over the cemetery of that city.  Although there would appear to be no method by which this could be accomplished under the 1947 Act, we call your attention to 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."

            Although limited time has not permitted us to give careful consideration to the matter, it would appear that this section of the statutes may provide a means of accomplishing the desired result through an agreement between the City of Dayton and Columbia County by which the county would take over the city cemetery.

            The fourth inquiry set out in your letter refers to the meaning of the term "private cemeteries" as used in section 46 of the General Cemetery Act, being chapter 247, Laws of 1943 (3778-146 Rem. Supp. 1943).  The general distinction between "public" cemeteries and "private" has been stated as follows:

            "* * * The former class is used by the general community or neighborhood or church, while the latter is used only by a family or a small portion of a community."  14 C.J.S., Cemeteries, Sec. 1, page 63; City of Wichita v. Schwertner, 130 Kan. 397, 286 Pac. 266, 268; Parker v. Fidelity Union Trust Co., 2 N.J. Super. 362, 63 A. (2d) 902, 916.

            As used in section 143,supra, however, an examination of the Act as a whole indicates that the term "private cemeteries" is used in a more technical sense.  This section designates certain sections of the Act as "relating to private cemeteries" and expressly provides that such sections shall not apply to the organizations and municipalities enumerated in subsections (a) and (b) of that section.  Section 42 of the Act (3778-42 Rem. Supp. 1943) restricts the right to engage in the cemetery business to corporations organized for that purpose.  This is one of the sections designated by section 143 as applying to "private cemeteries."  It would appear, therefore, that the term "private  [[Orig. Op. Page 5]] cemeteries" as used in section 143 was used as meaning cemeteries operated by corporations organized for that purpose as distinguished from cemeteries lawfully operated by other organizations and municipalities, including cemetery districts established under chapter 6, Laws of 1947.

Yours very truly,

SMITH TROY
Attorney General

FRED L. HARLOCKER
Assistant Attorney General