TOWNSHIPS ‑- POWERS ‑- CEMETERIES ‑- POWER TO ESTABLISH ENDOWMENT CARE FUND ‑- CEMETERIES ‑- POWER TO ESTABLISH ENDOWMENT CARE FUND ‑- ENDOWMENT CARE ‑- POWER OF TOWNSHIP TO ESTABLISH FUND

TOWNSHIPS ‑- POWERS ‑- CEMETERIES ‑- POWER TO ESTABLISH ENDOWMENT CARE FUND.

TOWNSHIPS ‑- CEMETERIES ‑- POWER TO ESTABLISH ENDOWMENT CARE FUND.

CEMETERIES ‑- ENDOWMENT CARE ‑- POWER OF TOWNSHIP TO ESTABLISH FUND.

A township has no power to establish an endowment care fund for cemetery maintenance.

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                                                                February 26, 1958

Honorable Tom A. Durham
Prosecuting Attorney of Whatcom County
Whatcom County Court House
311 Grand Avenue
Bellingham, Washington                                                                                 Cite as:  AGO 57-58 No. 165

Dear Sir:

            You have requested the opinion of this office upon the following questions:

            (1) Can a township establish a perpetual care fund for its township cemetery?

            (2) If the answer to the first question is in the affirmative, can the township allow this fund to increase from year to year by investing these funds without regard to the two mill levy limit?

            We answer your first question in the negative.  The answer to your second question is thus rendered unnecessary.

                                                                     ANALYSIS

            In accordance with the general rule relating to the limited powers of municipal corporations, RCW 45.12.030 expressly provides that a township shall not  [[Orig. Op. Page 2]] "possess or exercise any corporate powers except such as are enumerated in this title or are especially given by law or necessary to the exercise of the powers so enumerated or granted."

            RCW 45.12.100 (10) (1953 Supp.) authorizes the electors of a township at their annual town meeting:

            "(10) To instruct by vote the board to purchase grounds for a town cemetery; to limit the price to be paid therefor, to raise a tax for payment thereon and to establish rules for the care and management thereof."

            However, the chapter makes no provision for the establishment of a perpetual care fund.

            Provisions for endowment care, formerly called "perpetual care," are found in chapter 68.44 RCW.  RCW 68.44.010 (1953 Supp.) authorizes the establishment of endowment care funds by "any cemetery authority."  However, the legislature has made it clear that these provisions do not apply to municipal cemeteries.  See RCW 68.04.190; also § 246, chapter 247, Laws of 1943 (cf. RCW 68.48.070).  The only exception appears to be in the case of a cemetery district, which is expressly made a "cemetery authority" as previously defined in the chapter.

            While certain special provisions in this regard are made for cities and towns (chapter 68.12 RCW (1955 Supp.)), there appears to be no such express power given to townships.

            Chapter 45.56 RCW clearly provides for the levying of taxes to pay town charges which constitutes a revenue source for the purpose of necessary cemetery maintenance; therefore, we are unable to find any strict necessity for an endowment care fund, in order to exercise the powers expressly granted to townships with regard to establishing and maintaining cemeteries.

            Accordingly, since our research discloses no express or implied authority in a township to establish a "perpetual care" or "endowment care" fund, we conclude that no such power exists.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

ROBERT F. HAUTH
Assistant Attorney General