October 12, 1976
Mr. John L. Maynes
Attorney at Law
Maynes Building
505 South Washington
Aberdeen, South Dakota 57401
OFFICIAL OPINION NO. 76-96
Township cemeteries
Dear Mr. Maynes:
As counsel for Shelby Township of Brown County, South Dakota, you have requested our opinion in regard to the following issues:
QUESTIONS:
(1) Can Shelby Township, of Brown County, South Dakota, establish a perpetual care fund under the terms, rules, and regulations set forth by the Shelby Township Board?
(2) If the answer to Question Number 1 is yes, can Shelby
Township of Brown County, South Dakota, solicit donations from the public to fund the perpetual care fund?
(3) If the answer to Question Number 1 is no, can Shelby Township solicit donations from the public to care for the township cemetery without setting up a perpetual care fund?
IN RE QUESTION NO.1:
In regard to your first question, SDCL 8-2-10 provides:
No organized township shall possess or exercise any powers except such as are enumerated in this chapter, or are especially given by law or are necessary to the exercise of the powers so enumerated or granted.
In Memorandum Opinion No. 76-48, I concluded that townships do have authority, under SDCL 8-2-1(4), to provide for the operation of a township cemetery. To the "extent that this conclusion conflicts with 1959-60 AGR 383, the latter is specifically superseded by this opinion.
In regard to your first question, SDCL 55-12-1 excludes political subdivisions owning, operating or maintaining a cemetery, from the limitations of the chapter relating to perpetual care cemeteries. This exclusion itself, however, does not determine whether or not political subdivisions can own and operate a perpetual care cemetery. This determination needs to be made in relation to the specific powers granted by the Legislature to the particular political subdivisions. SDCL 55-12 does not, per se, prohibit a political subdivision from operating a cemetery on a perpetual care basis.
Having determined that townships can operate a cemetery under SDCL 8-2-1(4), I believe that SDCL 8-2-1(5) is significant in regard to your first question. That statute provides:
Each organized township in the state is a body corporate and has power:
. . .
(5) To make such orders for the disposition, regulation, or use of its corporate property as may be deemed by the board of supervisors conducive to the best interests of the inhabitants.
If a township board of supervisors makes the determination that a township cemetery is necessary for the protection of the lives and property of its citizens and passes an ordinance to that effect, I believe SDCL 8-2-1(5) authorizes the board to decide that provision for the care of such county property should be through a perpetual care fund arrangement. I do not intend to imply that I believe such a determination is wise or necessary; I merely wish to state that I believe it is possible under the authority granted to townships in SDCL 8-2-1.
IN RE QUESTION NO.2:
As to your second question regarding solicitation of donations from the public for the perpetual care fund, I do not believe townships have authority to solicit such contributions. Such a function is not a specifically created power of townships, nor is it reasonably nor necessarily implied from those powers specifically granted. In view of SDCL 8-2-10, and my review of the law relating to township powers, the answer to your second question is NO.
IN RE QUESTION NO.3:
In view of the above responses, it is not necessary to address your third question.
Respectfully submitted,
WILLIAM J. JANKLOW
ATTORNEY GENERAL
WJJ:DOC:mhb
