The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5287

April 3, 1978

CEMETERIES & DEAD BODIES:

Exemption of municipal, church or religious cemetery from the provisions of the Cemetery Regulation Act

RELIGIOUS ORGANIZATIONS & SOCIETIES:

Exemption of municipal, church or religious cemetery from the provisions of the Cemetery Regulation Act

MUNICIPALITIES:

Exemption of municipal, church or religious cemetery from the provisions of the Cemetery Regulation Act

CONSTITUTION LAW:

Equal protection

CONSTITUTION OF MICHIGAN:

Art 1, Sec. 2 (equal protection)

The statutory exclusion of municipal and religious cemeteries from the Cemetery Regulation Act is not unconstitutional.

Honorable Casmer P. Ogonowski

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the following question:

'Does Section 10 of Act 251 of the Public Acts of 1968 violate the equal protection provisions of the Michigan Constitution in that it arbitrarily, capriciously and unreasonably exempts municipal, church or religious cemeteries from the provisions of the 'Cemetery Regulation Act,' without a justifiable basis?'

The Cemetery Regulation Act, 1968 PA 251, as amended, MCLA 456.521 et seq; MSA 21.820(21) et seq, is an act which establishes the State Cemetery Commission, sets forth licensing standards for cemeteries, and otherwise regulates the cemetery industry.

Section 10 of Act 251, supra, reads in part as follows:

'The commission shall institute a system of registration and inspection of cemeteries authorized to be created, maintained and operated under Act No. 12 of the Public Acts of 1869, as amended, being sections 456.01 to 456.119 of the Compiled Laws of 1948 and Act 87 of the Public Acts of 1855, as amended, being sections 456.1 to 456.36 of the Compiled Laws of 1948, as well as other cemeteries operating under any state law or local ordinance or law. Cemeteries owned and operated by a municipality, church or religious institution shall be exempt from the provisions of this act.' [Emphasis added]

Const 1963, art 7, Sec. 23 provides:

'Any city or village may acquire, own, establish and maintain, within or without its corporate limits, parks, boulevards, cemeteries, hospitals and all works which involve the public health or safety.' [Emphasis added]

The people of the community in which the cemetery is located control the operation and maintenance of the cemetery through the elected officials of their municipal government. See 1937 PA 215, MCLA 128.1 et seq; MSA 5.3165 et seq; 1909 PA 272, MCLA 128.151 et seq; MSA 8.141 et seq; and 1931 PA 46, MCLA 128.11 et seq; MSA 5.3101 et seq.

Cemeteries which are owned and operated by a church or religious institution are under the control of an organization which is guaranteed the right to free exercise of its religious rites and practices by the First Amendment to the United States Constitution and Article 1, Section 4 of the Michigan Constitution of 1963. Many religious cemeteries are located upon the grounds of churches and the burial of the deceased members of their faith is in accordance with the religious practices of the church.

The Fourteenth Amendment to the United States Constitution states in pertinent part:

'. . . nor shall any State deprive any person of life, liberty, or property, without the process of law; nor deny to any person within its jurisdiction the equal protection of the law.' US Const, Am XIV

Const 1963, art 1, Sec. 2 also affords equal protection to the people of the State of Michigan. It provides:

'No person shall be denied the equal protection of the laws . . .'

The equal protection guarantee of the Michigan Constitution, Const 1963, art 1, Sec. 2 affords the same rights as the Equal Protection Clause of the Constitution of the United States, US Const, Am XIV. Wolodzki v Wayne Circuit Judge, 382 Mich 528, 534; 170 NW2d 9, 12 (1969). Thus, we must decide whether the foregoing classifications, which exempt municipal cemeteries and religious cemeteries from the Cemetery Regulation Act, supra, violates our constitutional equal protection guarantees.

In Mutchall v City of Kalamazoo, 323 Mich 215; 35 NW2d 245 (1948), the Michigan Supreme Court stated:

'. . . The general rule is that classifications in a statute or ordinance are not discriminatory if based on any reasonable ground of distinction. In Naudzius v Lahr, 253 Mich 216 (74 A.L.R. 1189, 30 N.C.C.A. 179), in considering the question as to what was a reasonable classification in a statute, the Court said:

"The equality of rights protected by our Constitution is the same as that preserved by the Fourteenth Amendment to the Federal Constitution. In re Fox's Estate, 154 Mich 5. The standards of classification are: '1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in adoption of police powers, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is without any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely because it is not made with mathematical nicety or because in practice it results in some inequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary.' Lindsley v Natural Carbonic Gas Co., 220 U. S. 61, 78 (31 Sup. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160).'

'Applying the rules thus states, we find that the ordinance [singling out 'bottle clubs' for regulation] is neither arbitrary nor unreasonable.'

In State v McKune, 215 Wis 592; 255 NW 916 (1934), the court held that a statute enacted under the police power which purports to treat all members of a class equally by prohibiting a certain practice which all members of the class might indulge in, but which actually affects in its operation only a certain part of the class, because only that part indulges in the practice, is not discriminatory.

Indeed, the Legislature enacted 1968 PA 251, supra, to regulate only that class of cemeteries in order to rectify abuses related to such cemeteries. See, Harvey v Lewis, 10 Mich App 696; 160 NW2d 391 (1968), where the Michigan Court of Appeals upheld an order of commitment for contempt against the superintendent of a cemetery, neither governmentally or religiously owned, for failing to locate graves of persons who were buried in the cemetery, who rested his refusal to identify the graves because the records of the graves were not complete.

As a result of its consideration of the subject matter of 1968 PA 251, supra, it must be assumed that the Legislature reached the conclusion that the restrictive provisions of the Act were not necessary insofar as governmental or religious cemeteries were concerned. Beacon Club v Kalamazoo County Sheriff, 332 Mich 412; 52 NW2d 165 (1952), People v Japinga, 115 Mich 222; 73 NW 111 (1897). Both Beacon Club, supra, and Japinga, supra, were decided in the context of a challenge to the constitutionality of a Michigan statute under test of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States because of statutory exclusion of certain classes.

Therefore, it is my opinion that the statutory exclusion of municipal and religious cemeteries from 1968 PA 251, supra, does not violate the Equal Protection Clause of either the Fourteenth Amendment to the United States Constitution or Michigan Constitution.

Frank J. Kelley

Attorney General