OPERATION OF CEMETERY BY NONPROFIT CORPORATION CONTROLLED BY RELIGIOUS ORGANIZATION

CEMETERIES ‑- CORPORATIONS ‑- CHURCHES ‑- OPERATION OF CEMETERY BY NONPROFIT CORPORATION CONTROLLED BY RELIGIOUS ORGANIZATION

A nonprofit corporation formed under chapter 24.06 RCW which is wholly owned and controlled by a religious corporation sole and organized for the purpose of operating a cemetery will qualify for the exemptions granted under RCW 68.48.070 and RCW 68.05.280 in conducting its operations.

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                                                                October 21, 1977

Honorable A. J. "Bud" Pardini
State Representative, 6th District
E. 1625 20th
Spokane, Washington 99203                                                                                                               Cite as:  AGLO 1977 No. 46

Dear Sir:

            By letter previously acknowledged you have requested our opinion on the following question:

            "Does a nonprofit corporation formed under RCW 24.06 and wholly owned and controlled by a religious corporation sole and organized for the purposes of operating a cemetery qualify for the exemptions granted under RCW 68.48.070 and RCW 68.05.280 in conducting its operations?

            We answer your question in the affirmative for the reasons set forth in our analysis.

                                                                     ANALYSIS

            By letter opinion dated March 30, 1977, copy enclosed, this office earlier advised The Honorable Bruce K. Chapman, Secretary of State, that a nonprofit corporation may be formed by a religious organization under chapter 24.06 RCW for the purpose of operating a private cemetery.  In so concluding, however, we then went on to make the following additional observation:

             [[Orig. Op. Page 2]]

            ". . .

            ". . .  Furthermore, as we view it, if such a corporation should be formed under either of those RCW chapters, it would then constitute a civil not a religious corporation.  Therefore, the exclusion set forth in RCW 68.48.070 would be inapplicable and the corporation could, pursuant to the express terms of RCW 68.20.020, establish, maintain and operate a cemetery.

            ". . ."

            Your present inquiry, as we understand it, is an outgrowth of this last quoted statement.  The problem can perhaps best be highlighted by quoting the pertinent language of the two statutes cited therein.  First, RCW 68.48.070 states that:

            "The provisions of RCW 68.20.010 through 68.20.040, 68.24.020 through 68.24.150, 68.24.180 and chapters 68.32, 68.40 and 68.44 RCW, relating to private cemeteries, do not apply to any of the following:

            "(1) Any religious corporation, church, 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;

            "(2) Any county, town or city cemetery."

            Then, in turn, RCW 68.20.020 provides as follows:

            "Any private corporation authorized by its articles so to do, may establish, maintain, manage, improve or operate a cemetery, and conduct any or all of the businesses of a cemetery, either for or without profit to its members of stockholders.  A nonprofit cemetery corporation may be organized in the manner provided in chapter 24.16 RCW.  A profit corporation may be organized in the manner provided in the general corporation laws of the state of Washington."

             [[Orig. Op. Page 3]]

            In dealing with the question of whether a religious organization could form a non-profit corporation for the purpose of operating a private cemetery we were thus faced with the possible argument that since RCW 68.20.020,supra, was among the statutes listed in RCW 68.48.070, supra, and since the latter statute declared the former, among others, to be inapplicable to ". . . any religious corporation . . .," a nonprofit corporation controlled by a religious organization would be unable to engage in those activities enumerated in RCW 68.20.020;i.e., operate a cemetery.

            Because of the broad scope of chapter 24.06 RCW, the current non-profit corporation act, we were not inclined to accept the foregoing argument ‑ and, in fact, we obviously did not do so.  We did not, however, intend to infer in the process that such a corporation, when wholly owned and controlled by a religious organization, would not generally qualify for the exemptions granted under RCW 68.48.070, supra, in conducting its operations.

            Title 68 RCW sets forth various statutory provisions regulating the creation and operation of cemeteries within this state.  However, both RCW 68.48.070,supra, and another statute, RCW 68.05.280, exempt certain cemeteries from numerous designated provisions of that law.  We have, of course, already noted the text of RCW 68.48.070,supra.  RCW 68.05.280 is similar in thrust in that it grants an exemption from the provisions of chapter 68.05 RCW to 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. . . ."  (Emphasis supplied)

            Notably, except for the absence of the word "coroner" from RCW 68.48.070,supra, the language of subsection 1 of that statute is identical to that of RCW 68.05.280 which we have last above quoted.

            Your question assumes that the nonprofit (chapter 24.06 RCW) corporation involved in the operation of a cemetery would be "wholly owned and controlled by a religious organization sole".  Under those circumstances it is our opinion that the  [[Orig. Op. Page 4]] cemetery in question would be "organized, controlled and operated by" the corporation sole ‑ and thus would be within the purview of both RCW 68.48.070 and RCW 68.05.280.  Therefore, in the words of your qustion, such a cemetery would qualify for the exemptions granted under those two statutes in conducting its operations.

            We trust that the foregoing will be of some assistance to you.

Very truly yours,

SLADE GORTON
Attorney General

PHILIP H. AUSTIN
Deputy Attorney General

JAMES R. SILVA
Assistant Attorney General