Establishment And Regulation
The establishment of a cemetery involves the process of formally designating a tract of land for use for the burial of the dead. It must be set apart, marked, and distinguished from adjoining ground as a graveyard.
The state, in the exercise of its POLICE POWER, has the right to regulate the creation of cemeteries by providing for their establishment and discontinuance as well as to monitor their use. Private interests in the place of burial are subject to the control of public authorities, which have the right to require the disinterment of bodies if deemed necessary.
Burial sites may not be absolutely prohibited by legislative action inasmuch as they are considered indispensable and directly related to the public health. Provisions in corporate charters cannot prevent the exercise of POLICE POWERS
with regard to which lands may be used for burial purposes, since burial in certain places might create a public NUISANCE.
Regulation by Municipal Corporations Subject to express legislative authority, and by virtue of its general police powers, a municipality may reasonably regulate places of burial within its borders. The key requirement is that a municipality may not act arbitrarily with regard to the regulations it adopts.
The power of a municipality to regulate cemeteries is an ongoing one that may be exercised as required by considerations of public health and welfare. Regulations may prohibit such actions as future burials in existing cemeteries, the enlargement of existing cemeteries, or the establishment of new ones.
A municipality may own and maintain a cemetery when it is expressly authorized to do so. General control may be exercised over a cemetery that a municipality owns, but control may not be exercised arbitrarily, capriciously, or unreasonably.
Corporations and Associations A cemetery corporation, as defined expressly by statute, is any corporation formed for the burial of the dead in a receptacle or vault. Such a corporation may or may not be organized for pecuniary profit and may or may not be organized under the general corporate law.
The members of a cemetery corporation are those people who own plots according to express statutory provisions. They cannot make a profit out of the sales of lots if the corporation is not for profit. Nor can they make a gift of their plot to another independent corporation.
If statute permits, cemetery corporations may issue stock and pay dividends to stockholders. Stockholders may enact bylaws.
Some statutes provide that a cemetery may give land shares, which are certificates entitling the holder to receive a portion of the profit from the subsequent sales of plots, in exchange for payment for the land purchased. This type of certificate is not a stock certificate but is in the nature of a nonnegotiable promise to pay money.
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