Request By:
Hon. James F. Dinwiddie
Attorney at Law
80 Public Square
Leitchfield, Kentucky 42754
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Alan J. George, Assistant Attorney General
You write to ask whether or not a non-profit corporation created for purposes of preserving, maintaining, promoting and beautifying an existing family cemetery is exempt from the Kentucky Cemetery Law, KRS Chapter 307.
For purposes of the aforementioned chapter, "person" is defined as ". . . an individual, corporation, partnership, joint venture, association, business trust, or any other form of business organization" KRS 307.100(1). A "cemetery company" is defined in KRS 307.100(7) as ". . . any person, except a religious society, municipal corporation or fraternal burial association, that conducts the business of a cemetery. " At first glance, then, it seems that a non-profit burial association is to be considered a "person" for the purposes of, and subject to the requirements of, the Kentucky Cemetery Law. However, a non-profit burial association is exempted along with these other exempted groups from the requirements as to a merchandise trust fund under KRS 307.140.
Your particular concern is whether the legislative intent was to include a non-profit burial association along with the other exemptions listed in KRS 307.100(7), but that this was not done as the result of an oversight. Our initial concern, then, is to review the prior cemetery law so that we might determine whether this omission was intentional or not.
KRS 307.010(1), Enact. Acts. 1960, ch. 227, § 1, effective 6-16-60, repealed 6-19-76 and replaced by KRS 307.130. (Perpetual care and maintenance fund), provided that:
"Any person, firm or corporation, except a religious organization, engaged in the business of . . . a cemetery, shall cause to be established . . . a perpetual care and maintenance fund. . ."
The penalty provision in effect at that time, KRS 307.990, Enact. Acts 1960, ch. 191, § 3, ch. 227, § 10, extended only to "any person, firm, or corporation" intentionally violating certain cemetery laws.
These prior provisions evidence the intent, at the time, to exempt only religious organizations from the requirements of the cemetery chapter. Obviously, the legislature has intended to expand the scope of exemptions, but these past statutes offer no guidance on the issue of whether or not non-profit burial associations were also intended to be exempted. Instead, we must turn to an old Kentucky case for guidance in this area.
In Commonwealth v. Lipginski, 212 Ky. 366, 279 S.W. 339 (1926), the Court of Appeals of Kentucky was faced with a strikingly similar situation. The court was confronted with the problem of construing a statute in which the word "newspaper" had been omitted from the second sentence of a statute, "newspaper" having appeared in the same context in the first sentence of the statute. At issue was the correct interpretation and construction of the first two sentences of subsection 15 of section 331a, Kentucky statutes. Those sentences read as follows:
"No boy under fourteen years of age * * * shall be employed, permitted or suffered to work * * * in any city of the first * * * class * * * in connection with the street occupations of peddling, boot-blacking, the distribution or sale of newspapers, magazines, periodicals or circulars, nor in any other occupation pursued in any street or public place. No boy between fourteen and sixteen years of age shall be employed * * * in any city of the first * * * class * * * in connection with the street occupations of peddling, boot-blacking, the distribution or sale of magazines, periodicals or circulars, nor in any other occupations pursued in any street or public place except upon the following conditions."
The Court of Appeals observed that:
"Just why the word 'newspaper' was omitted from the second sentence of the statutes the court is unable to say. The record does not disclose why this was done. Of course, it may be conjectured that it was omitted for one reason or another with an apparent showing of reason, but there is no legal way by which the court may determine for a certainty why the word 'newspapers' was omitted from the second sentence. This being true, must we not accept the statute as we find it and concede that the General Assembly in its wisdom omitted the word 'newspapers' from the second sentence for some reason which appeared to that august body to be sufficient. Whatever may have influenced the General Assembly to omit the word 'newspapers' from the second sentence in the statute, if it did purposely do so, is sufficient, and courts are not authorized to interpolate words into a statute which the lawmaking body has purposely omitted."
The Court also quoted approvingly from the opinion of the trial judge as follows:
"'. . . [u]nder the Constitution it is the province of the Legislature to enact and the province of the judiciary to interpret, and it is of vital importance to the maintenance of our institutions that the functions of the two departments shall be kept separate and distinct as provided in the Constitution. However beneficent a law might be, it is for the Legislature to pronounce it. However much public policy may demand the enactment of a law, the court cannot enact it."
The Court concluded that the act must be considered as presented by the Legislature without the interpolation of words which it may appear to some were intended to be, but were not employed by the lawmaking body in the enactment of the statutes. The Court went on to hold that the sale of newspapers was not included or intended to be included in the inhibition of the second sentence of subsection 15 of section 331a, Kentucky Statutes.
As is the case here, where a statute on its face is intelligible, the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision. It makes no difference that it appears the omission was mere oversight. Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248 (1960).
In light of these holdings, this office is in no position to infer omissions or to remedy defects in a statute, which we must assume has been adopted after full consideration by the Legislature. This office is guided by what the Legislature has said or done; or, as in this case, by what the Legislature has omitted to say and then subsequently said. Under the rules of construction announced by the Kentucky Court of Appeals in the Lipginski case, we may not presume an omission of a word in a statute, such as in this case, to be the product of legislative negligence.
Thus, it is the opinion of this office that a non-profit burial corporation is a "person" for purposes of the Kentucky Cemetery Law, and must comply with the requirements of KRS 307. The only exemption which could be claimed by such an association is from the requirements for a merchandise trust fund as set out in KRS 307.140.