Request By:
Mr. Frank H. McCartney
Fleming County Attorney
Courthouse
Flemingsburg, Kentucky 41041
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The Fleming County Fiscal Court has before it the question as to whether or not county road equipment may be used on graveyards, cemetery roads, and church lots.
Section 171 of the Kentucky Constitution provides in part that " Taxes shall be levied and collected for public purposes only. . . ." (Emphasis added).
Our appellate courts have held the following to be a "public purpose" for county or city expenditure: A county's acquisition and operation of a river steamboat for recreational purposes (
Boone v. Cook, Ky., 365 S.W.2d 100 (1963)); a city to acquire a factory building for lease to private industry, to promote employment (
Faulconer v. City of Danville, 313 Ky. 468, 232 S.W.2d 80 (1950)); and a city to acquire and operate an inter-city bus line to promote the general economy of the city (
Chrisman v. City of Cumberland Coach Lines, Ky., 249 S.W.2d 782 (1952)).
In
Youtsey v. County Debt Commission, Ky., 501 S.W.2d 266, 268 (1973), the Court of Appeals held that the use of county bond funds to subsidize low fares for mass transportation is a "public purpose. "
The case of
City Lexington v. Hager, Ky., 337 S.W.2d 27 (1960), makes it restrictively clear that the "public purpose" clause of § 171 of the Constitution applies only to the public purpose of the particular tax levying unit.
The care of the indigent poor was held to be a "public purpose" for which the taxing power may be exercised.
Hager v. Kentucky Children's Home Soc., 119 Ky. 235, 83 S.W. 605 (1904). Judge O'Rear, for the court, wrote this at page 606:
"That the care of the indigent poor is a purely public charity is not really questioned by the Attorney General. Christ commended it as a public privilege, whilst every civilized people upon the earth now regard it as a public duty. That great evasive question propounded in the adjustment of the first social relation of men, 'Am I my brother's keeper?' is answered emphatically in the affirmative upon the consciences of this era of civilization, when speaking of the destitute and helpless. In this state, from its earliest history, it has been treated, as it had been in Virginia and England before us, as a public charge imposed as a matter of rightful exercise of governmental power upon the state, or such subdivisions of it as legislation might provide."
"It is well settled that a private agency may be utilized as the pipe-line through which a public expenditure is made, the test being not who receives the money, but the character of the use for which it is expended."
Kentucky Bldg. Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836 (1949) 837. In the latter case the appellate court upheld the expenditure of state money to nonprofit privately owned hospitals as a public purpose under § 3 of the Kentucky Constitution, the court holding that the construction of nonprofit hospitals was for the "common good of all people" throughout the state. (Emphasis added).
Now as to this question of using county road equipment on graveyards and cemetery roads, we assume you refer to a permanent church, corporate, or religious sect graveyard or cemetery, other than a purely private family graveyard.
In 14 C.J.S., Cemeteries, § 1, page 63, it is written that " That law contemplates two classes of cemeteries, public and private. 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. A public cemetery is as much a public place as a courthouse or a market." (Emphasis added).
As relates to a permanent church graveyard or cemetery, the case of
Cave Hill Cemetery Co. v. Gosnell, 156 Ky. 599, 161 S.W. 980 (1913) involved the attempt of the City of Louisville to impose the cost of improvement of Payne Street as a charge upon the cemetery and cemetery company as abutting property. The court, in ruling that such an assessment would, in ultimate effect, violate a state statute prohibiting the mutilation of graves, monuments, fences, shrubbery in a cemetery, wrote this at page 983:
"It is a sound public policy to protect the burying place of the dead. Families scatter; family burying grounds sooner or later fall into decay, and experience has shown that the only way to protect permanently burying grounds is to have some organization similar to appellant."
Elsewhere in Cave Hill Cemetery, the Court wrote this at page 982:
"It must be conceded that in a large city like Louisville the existence of burial grounds becomes a matter of necessity, and, if not placed under corporate control, where money may be invested and donated for the purchase and improvement of grounds to be used for cemeteries, the expense for such a purpose would be a public burden, and hence the state is, or should always be ready to encourage the creation of such corporations, not only to lessen the rate of taxation, but to invest the corporate body with the power to raise such funds as will enable them to beautify and ornament the homes of the dead. "
Especially in rural America and Kentucky by long tradition and custom the church graveyard has been established as the resting place for the dead.
Judge Stanley, in R.B. Tyler Company v. Kinser, Ky., 346 S.W.2d 306 (1961) 308, wrote that "The resting places of the dead have been revered and regarded as hallowed ground from the earliest days." In speaking of protecting the dead from disturbance and maintaining the sanctity of the grave,
Judge Stanley, in Brunton v. Roberts, 265 Ky. 569, 97 S.W.2d 413 (1936) quoted from Shakespeare's choice of his own epitaph:
"Good frend, for Jesus sake forbeare To digg the dust encloased heare; Bleste be the man that spares thes stones, And curst be he that moves my bones."
But the interest of the living in these cemeteries are inextricably entertwined with the whole social and legal concept of the church or corporate graveyard. The grave markers often pinpoint in cryptic but sentimental language of gratitude the impression of the image of the dead person held by those left behind. So life and death are entertwined.
The old Court of Appeals positively, in the Cave Hill Cemetery case, recognized the public purpose underlying the maintenance and operation of permanent public graveyards. The court recognized that churches and private corporations have removed what would otherwise be a public burden on the taxpayers in taking over primarily the operation of graveyards.
In the more recent case of
Cave Hill Cemetery Company v. Scent, Ky., 352 S.W.2d 61 (1961), the old Court of Appeals dealt with the question of whether securities held by the Cave Hill Cemetery Company and the Cave Hill Investment Company were subject to ad valorem tax assessments by the state. The history of the cemetery was detailed. The court held that such securities were not subject to ad valorem taxation of the state, since Cave Hill property was being used as public property for a public purpose. The court said the funds served the public purpose of preserving, beautifying and maintaining the cemetery. The court reiterated the earlier doctrine that the legislature's purpose of making this public cemetery self-sustaining served to avoid the need of granting it support from public taxation.
It was pointed out in 14 C.J.S., Cemeteries, § 2, pages 63-64, that "private interests in the place of burial are so far public that they are subject to the control of the public authorities having charge of police regulations, and the state in the exercise of its police power has the right to provide for the establishment and discontinuance of cemeteries and to regulate their use, including the right to require the removal of the remains of persons theretofore buried. The exercise of the police power with regard to cemeteries is subject to the usual constitutional limitations, and the only basis for its exercise is the protection of life, health, comfort, and wellbeing of the community." See KRS 307.100, et seq., and various regulatory statutes in KRS Chapters 84 (KRS 85.120(6)), 97 (KRS 97.540), and 381 (KRS 381.697). See also KRS 525.110, involving desecration of cemeteries and other venerated objects.
In connection with a public cemetery, as defined above, and a public cemetery not held for private or corporate profit (§ 170, Const., exempts the latter from taxation) , it is our opinion that county road equipment or other county equipment may be used on such public graveyards and cemetery roads where such use promotes the proper upkeep and maintenance of such public cemeteries and cemetery roadways. The fiscal court's authority to so use its equipment is amply reflected in the case holdings above. Moreover, the county's authority to so use its equipment is expressly provided for in KRS 67.083(3)(g). That subsection provides that the fiscal court shall levy taxes and appropriate funds in performance of the following public functions: ". . . . (g) provision of cemeteries and memorials." (Emphasis added). This authority to use county equipment does not extend to its use on church lots where the use of land for burial of the dead, or ground set apart for the burial of the dead, marking it, distinguishing it from the adjoining ground as a place of burial, is not involved.
As a caveat, we wish to stress the two classes of cemeteries: public and private. In 14 Am.Jur.2d, Cemeteries, § 2, pages 699-700, a public cemetery is defined as follows: "A public cemetery is one used by the general community, a neighborhood, or a church, while a private cemetery is one used only by a family or a small portion of the community. However, the test of whether a cemetery is public or private is public user, and not who has the title thereto. Thus, a cemetery though privately owned or maintained, may be deemed a public cemetery if it is open, under reasonable regulations, to the use of the public for the burial of the dead. " (Emphasis added).
In practical terms a cemetery open to the use of the public for burial is a public cemetery, regardless of the fact that it is privately owned or maintained.
Now suppose a particular cemetery in the county will only provide for the burial of persons of a particular religious faith. Then county money cannot be legally used on such cemetery or cemetery road, since it would involve the use of public funds with a preference for a particular religious faith. Such use of county funds is prohibited by § 5 of the Kentucky Constitution. That section expressly prohibits a governmental preference extended to a particular religious faith. See
Kentucky Bldg. Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836 (1949) 838. In that case the Court of Appeals upheld the expenditure of state funds to nonprofit privately owned hospitals rendering public services. The court said that the hospitals were governed by boards of certain religious faiths; however, the hospitals were open to the public of all creeds and faiths, and even to those who profess no certain religious belief. Thus, even though the cemetery is maintained by a particular religious faith, if the cemetery is available for the public generally, regardless of the particular faith of the maintaining church, it would be constitutional.
In addition, the expenditure of county money on a cemetery maintained exclusively for the burial of persons of a particular religious faith would be arbitrary under § 2, Kentucky Constitution. See