STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6156

June 22, 1983

CEMETERIES:

Prohibition on operation of funeral establishment

CONSTITUTIONAL LAW:

Due process and equal protection clauses--cemetery barred from operating funeral establishment

MORTURAY SCIENCE:

Operation of funeral establishment by cemetery

1980 PA 299, Sec. 1812, which prohibits cemeteries from operating a funeral establishment is constitutional under the due process and equal protection clauses of the federal and state constitutions.

Honorable Joseph S. Mack

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the constitutionality, under the due process and the equal protection clauses of the federal and state constitutions, of 1980 PA 299, Sec. 1812; MCLA 339.1812; MSA 18.425(1812), which prohibits any individual, partnership, association, municipal corporation, body politic, or corporation which owns or conducts a cemetery or burial ground from owning or operating a funeral establishment.

1980 PA 299, Sec. 1812, supra, provides:

It should be noted that 1980 PA 299, Sec. 1812, supra, is the successor statute to 1949 PA 268, Sec. 13, as added by 1954 PA 183, and as last amended by 1974 PA 292. The predecessor statute was repealed by 1980 PA 299, Sec. 2601; MCLA 339.2601; MSA 18.425(2601).

Legislation challenged on a constitutional basis is clothed in a presumption of constitutionality. Kelley v Judge of Recorder's Court of Detroit, 239 Mich 204; 214 NW 316 (1927); Gauthier v Campbell, Wyant & Cannon Foundry Co, 360 Mich 510; 104 NW2d 182 (1960); Grocers Dairy Co v Department of Agriculture Director, 377 Mich 71; 138 NW2d 767 (1966); Cruz v Chevrolet Grey Iron Division of General Motors Co, 398 Mich 117; 247 NW2d 764 (1976). As the court stated in Kelley, p. 214-215, supra:

In determining whether a particular legislative enactment comports with due process guaranteed by the federal and state constitutions, the Michigan Supreme Court, in McAvoy v HB Sherman Co, 401 Mich 419, 435-436; 258 NW2d 414 (1977), has applied the traditional test found in Nebbia v New York, 291 US 502, 525; 54 S Ct 505; 78 L Ed 940 (1934):

The purpose achieved by the regulation contained in 1980 PA 229, Sec. 1812, supra, is in harmony with the well settled public policy of Michigan concerning cemeteries. As the Michigan Supreme Court expressed in Avery v Forest Lawn Cemetery Co, 127 Mich 125, 129; 86 NW 538, 540 (1901), and reaffirmed in Forest Hill Cemetery Co v City of Ann Arbor, 303 Mich 56, 61-62; 5 NW2d 564, 566 (1942):

In furtherance of this express policy of the state, the court reasoned that it was essential to protect the property and land of a cemetery company from a lien and sale.

In recognizing and attempting to carry out this settled public policy, the Legislature, in 1893 PA 206, Sec. 7(t), as added by 1980 PA 142; MCLA 211.7t; MSA 7.7(4q), provided:

Similar tax exemptions are provided for all lands of cemetery corporations set apart for cemetery purposes, 1869 PA 12, Sec. 8; MCLA 456.108; MSA 21.878, and cremation companies, 1915 PA 58, Sec. 5; MCLA 456.205; MSA 21.915. By providing that such properties be exempt from taxation, and therefore, from any liens or encumbrances, the Legislature is effectively accomplishing the policy of this state to preserve and maintain burial grounds. The tax exempt status afforded all lands set apart for cemetery purposes assures that these lands will not be subject to foreclosure and sale.

The Legislature, through the prohibition against joint operation of a cemetery and funeral establishment, and by granting tax exempt status to all lands used exclusively for cemetery purposes, has guaranteed that the policy of this state to preserve and maintain burial places will be effectuated. The means selected by the Legislature are not unreasonable, arbitrary, or capricious, but rather, have a real and substantial relation to the object sought to be attained, and, therefore, fully comply with the guaranty of due process contained in the federal and state constitutions.

Turning to the question whether the regulation contained within 1980 PA 199, Sec. 1812, supra, violates the equal protection clause, the proper standard to test equal protection as well as due process challenges to legislation was set forth by the Michigan Supreme Court in Johnson v Harnischfeger Co, 414 Mich 102, 113; 323 NW2d 912 (1982):

The courts, in analyzing an equal protection or due process challenge to such legislation, must focus their inquiry on whether any state of facts would support the legislative judgment. Here, the Legislature has seen fit to exempt lands used exclusively as burial grounds from general taxation. This is to assure that such lands will not be encumbered and sold, but rather, will be preserved and maintained as burial grounds.

Applying the test set forth by the Michigan Supreme Court in Johnson v Harnischfeger Co, supra, the inquiry must be restricted to the issue whether any state of facts, either known or which could reasonably be assumed, affords support for the legislative judgment. Here, if a funeral establishment were allowed to operate within cemetery property, that property would no longer be used exclusively for burial purposes, and therefore, would not be tax exempt under 1983 PA 206, Sec. 7t, supra. In forfeiting its tax exempt status, the property would become subject to lien and sale in order to pay any taxes assessed against it. The possibility of the sale of cemetery property would be adverse to the settled public policy of this state to 'preserve and maintain' the burial places of the dead.

The Legislature, by enacting 1980 PA 299, Sec. 1812, supra, and by providing that land used exclusively for burial purposes shall be exempt from ad valorem property taxation, has undertaken to further the public policy of this state.

It is noted that there are two lines of authority as to whether a mortuary may be operated on cemetery property. The Supreme Court of Georgia in Greenwood Cemetery v MacNeil, 213 Ga 141; 97 SE2d 121 (1957), in affirming an interlocutory injunction restraining the construction of a mortuary on cemetery property, held that property dedicated for cemetery purposes may not be used for the construction of a mortuary. This view was incorporated in the decision of the Kansas Court of Appeals in Connolly v Frobenius, 2 Kan App 2d 18, 33; 574 P2d 971, 982 (1978), rev den (March 1, 1978). In affirming a permanent injunction forbidding the construction and operation of a mortuary on land dedicated to a cemetery, the Kansas Court of Appeals, after recognizing and declining to follow the California rule, concluded 'that the construction and operation of a mortuary on the real estate here involved (which was dedicated for purposes of sepulture), or any other commercial use . . . constitutes use in a manner not contemplated by the original dedication, . . . and not within the scope of the statutes of this state regulating cemetery corporations.'

The opposite view was taken by the California courts. In permitting a cemetery corporation to operate a mortuary on cemetery land, the court reasoned that such an activity was a use incidental to the use authorized by statute. Wing v Forest Lawn Cemetery Association, 15 Cal 2d 472; 101 P2d 1099 (1940); People, ex rel Groman v Sinai Temple, 20 Ca App 3d 614; 99 Cal Rptr 603; (1971), rev den December 9, 1971.

A situation not unlike that here present was before the Massachusetts Supreme Judicial Court in Blue Hills Cemetery, Inc v Board of Registration in Embalming & Funeral Directing, 379 Mass 368; 398 NE2d 471 (1979). A cemetery, seeking to establish a funeral directing operation on its premises, challenged Mass GL, c 112, Sec. 87, which provided that a corporation or partnership may engage in a funeral directing business only if it was engaged in no other business. The plaintiff contended that the statute violated the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. The court, applying the rational basis test, ruled that the Massachusetts Legislature was open to conclude that the integration of funeral directing services into another business operation would diminish the quality of funeral services, a reasonably related valid legislative objective, despite the fact that the cost of funeral services to consumers might be reduced thereby. The court further held that the means chosen did not deny due process of the laws. The court found no violation of the equal protection clause and held that the classification employed was reasonably related to the legitimate state purpose of maintaining the quality of funeral services. The court also held that while less restrictive means might have been employed, that was a matter not for the courts, but for the Legislature.

It is my opinion, therefore, that the prohibition contained in 1980 PA 299, Sec. 1812, supra, against cemeteries owning or operating a funeral establishment is constitutional under the due process and the equal protection clauses of the federal and state constitutions.

Frank J. Kelley

Attorney General