Request By:
Mr. William S. O'Daniel
Commissioner
Department for Local Government
909 Leawood Drive
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your department has received an application for a direct grant of money from the Coal Severance Economic Aid Fund, as established in KRS 42.330. A "direct grant" involves a capital project, the estimated cost of which does not exceed $50,000, or a capital project which cost will exceed $50,000, provided the grant does not exceed one-third of the total cost of the proposed capital project. The project is the paving of the parking area of Cumberland Presbyterian Church's community cemetery. The cost will be $5,700, and the church, a nonprofit, charitable and religious institution, is the beneficiary agency.
You believe this provision of a cemetery constitutes a public purpose as recognized by statute. You cite KRS 97.530, 84.180, 86.110, 87.110, and 67.083. However, you doubt whether funds can be given to a religious organization.
Your question: Is a church a lawful beneficiary agency for the receipt of money from the Coal Severance Economic Aid Fund to pave the parking area of its cemetery?
Under the statutes you cited cities and counties can acquire and operate public cemeteries.
However, the first question is whether a church can qualify as a beneficiary agency under KRS 42.325 et seq.
KRS 42.325(1) reads:
"As used in KRS 42.330 to 42.340 the words:
"(1) 'Beneficiary agency' means an agency eligible to receive the benefit of a capital project to be wholly or partly financed out of the coal severance economic aid fund, including and limited to the fiscal courts of coal producing counties, political subdivisions, municipal corporations, special districts and agencies created pursuant to to the Interlocal Cooperation Act, within coal producing counties, or any combination thereof; and, not-for-profit corporations organized for public purposes and performing governmental functions and services within coal producing counties;"
Since we are not dealing with a fiscal court, political subdivision, municipal corporation, or a special district or agency created under the Interlocal Cooperation Act, the residual question is whether the church qualifies as a "not-for-profit corporation organized for a public purpose and performing a governmental function and service within a coal producing county."
The definition of "beneficiary agency" is subject to the restriction, found in KRS 42.330(2), that "moyen in the fund shall be used only for capital projects which contribute to community development in coal producing counties." (Emphasis added).
If the church cemetery is a public cemetery, i.e., one generally accessible to the public as a place of final repose, then it could qualify under KRS 42.325(1) [definitional statute]. However, the qualification must finally depend upon whether a cemetery parking lot is a project which will "contribute to community development" in the coal producing county. The phrase "contribute to community development" is not defined by statute. "Where the legislature has not defined words used in the act, the court must then determine as best it can the meaning of the language in accordance with the legislative intent and common understanding so as to prevent absurdities and to advance justice." Sands, Sutherland Statutory Construction, § 20.08, p. 59. We believe the phrase "contribute to community development" is so general and broad as to embrace any governmental function or service calculated to add to the general economic and social growth of the community. One of the definitions of "develop" is to promote growth. Webster's Seventh New Collegiate Dictionary, p. 227. This is so general as to embrace the paving of a parking lot of a public cemetery.
It is well settled that a private agency may be used 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. Hager v. Kentucky Children's Home Society, 119 Ky. 235, 83 S.W. 605 (1904). We have pointed out above that the maintaining and operating a public cemetery is a statutorily declared public purpose and governmental function. Thus the orderly disposition of the dead can be a gover mental matter as well as dealing with the living. See § 3 and § 171, Kentucky Constitution, requiring that tax revenues be spent for public purposes only.
If the subject cemetery is available for the burial of the dead in that county, regardless of their creed or religious faith, and even for the burial of those who profess no certain religious belief, then § 5 of the Kentucky Constitution, which prohibits a preference being given by law to any religious sect, society or denomination, would not be violated. As Judge Sims wrote in Kentucky Bldg. Commission v. Effron, 310 Ky. 355, 220 S.W.2d 836 (1949) 838, "Certainly, it was never the intention of the framers of § 5 of our constitution to prevent the state from aiding with money raised by taxes an institution rendering a public service merely because the governing body of the institution is composed of one denomination. " See also Abernathy v. City of Irvine, Ky., 355 S.W.2d 159 (1962) 161, of similar import.
Assuming that the subject cemetery is available for the burial of the dead in that county, regardless of their creed or religious faith, and even for the burial of those who profess no certain religious belief, it is our opinion that KRS 42.325, et seq. , is so broad as to permit money from subject fund to be spent on paving the parking lot of the church's cemetery.