Could a Louisiana cemetery board use maintenance tax money to buy land for an expansion?

Plain-English summary

Morehouse Parish asked whether Ward Two cemetery tax proceeds could buy land to enlarge its cemeteries. The Attorney General examined two voter-approved propositions. One funded “maintenance and upkeep”; the other covered specified cemetery facilities, a caretaker, and grounds care. He concluded that neither authorized buying additional land.

The AG said special tax proceeds had to be used for the purposes voters approved. He distinguished maintenance and operation expenses from capital acquisition and noted that neither proposition mentioned property purchases. The opinion said voters could be asked to rededicate the money for acquisition, but a rededication election required State Bond Commission approval under the statute he cited.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did “maintenance and upkeep” include buying more cemetery land?
No. The AG said those words did not authorize a capital purchase of immovable property.

Could the proceeds pay for equipment used to maintain the cemeteries?
The opinion said the approved purposes included items essential to maintenance and operation, while excluding land for expansion.

Was there a way to change the permitted use of the taxes?
The AG said voters could be asked to rededicate the proceeds to property acquisition, with State Bond Commission approval for the rededication election.

Background and statutory framework

The opinion relied on Article VI, Section 26 of the Louisiana Constitution and R.S. 39:704 to confine special tax revenue to the purposes stated in the propositions. It cited Hemler v. Richland Parish School Board for strict construction of special-tax authority and applied that approach to the two Ward Two cemetery propositions.

Citations and references

• Article VI, Section 26 of the Louisiana Constitution
• R.S. 39:704
• La. R.S. 39:1410.61
• Hemler v. Richland Parish School Board, 76 So. 585 (La. 1917)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/01-0016

Original opinion text

March 1, 2001

OPINION NUMBER 01-16

Mr. E. Dion Young 129 Taxation
Assistant District Attorney
Morehouse Parish
R.S. 39:704, Art. VI, §26
4th Judicial District
P. O. Box 1079
Taxes for maintenance and upkeep of cemeteries
Bastrop, LA 71220
cannot be used to purchase additional property.

Dear Mr. Young:

On behalf of the Morehouse Parish Police Jury and the Ward Two Cemetery Board, you are requesting the approval of this office as to whether the Cemetery Board may purchase additional property to be used to increase the size of the cemetery, with the monies collected from the following described tax propositions.

The first tax proposition was approved by the voters on October 3, 1998, and provides for a two mill tax in Ward Two “for the maintenance and upkeep of public cemeteries in Ward Two”. (Emphasis added) The second proposition approved October 19, 1991, authorizes the levy of a .98 mills in Ward Two for the purpose of “providing and maintaining streets, aisles, outside fences, drainage and buildings that may be necessary for the use of the sexton or caretaker and for providing for the employment of a sexton or caretaker and for cutting of grass and planting and care of trees and shrubbery and flowers in any cemetery in Ward Two...” (Emphasis added)

This office has long been of the opinion that ad valorem tax proceeds can only be used in the manner set forth in the proposition approved by the electorate. Atty.Gen.Op. Nos. 00-20, 98_369, 98_287, 97_434, 96_494, 88_601 and 74_984. We note that Article VI, Section 26(A) and (B) of the Louisiana Constitution of 1974 provides in pertinent part as follows:

(A) Parish Tax for General Purposes; Millage Limits; Increase. The governing authority of a parish may levy annually an ad valorem tax for general purposes ...

(B) Millage Increase Not for General Purposes. When the millage increase is for other than general purposes, the proposition shall state the specific purpose or purposes for which the tax is to be levied and the length of time the tax is to remain in effect. All proceeds of the tax shall be used solely for the purpose or purposes set forth in the proposition. (Emphasis Added)

R.S. 39:704 pertinently provides:

"The proceeds of any special tax shall constitute a trust fund to be used exclusively for the objects and purposes for which the tax was levied."

Additionally, the jurisprudence of this state provides that special tax authorizations must be strictly construed. Hemler v. Richland Parish School Board, 76 So. 585 (La. 1917); Watkins v. Ouachita Parish School Board, 136 So. 591 (La. 1931); Hodnett v. Monroe City School Board, 277 So.2d 598 (La. App.

Page 2

OPINION NUMBER 01-16
Mr. E. Dion Young
Assistant District Attorney
Morehouse Parish
Page -2-

2nd Cir. 1972) and Brock v. St. James Parish Council, 407 So.2d 1265 (La. App. 4th Cir. 1981), writ denied. In Hemler, at pg. 586, the Supreme Court stated:

"It is a familiar principle that laws authorizing taxation ... are in derogation of common rights; and therefore are to be strictly construed... this is especially true of laws authorizing special taxes."

It is with these principles in mind that we address your question.

It is the opinion of this office that the language of both of the propositions approved by the voters authorize use of the tax proceeds for maintenance and upkeep of the cemeteries in Ward Two, which would include the acquisition of items that are essential to the performance of maintenance and operation. We do not believe, however, that the words "maintenance and upkeep” or “providing and maintaining” can be considered as authorizing expenditures that are capital in nature. Op.Atty.Gen. 00-

20. See also, Op.Atty.Gen. Nos. 89-235 and 80-1294, where this office found that the authorization to
    maintain and operate public health units in the Parish did not include the authorization to expend funds for the acquisition of immovable property and buildings. The propositions in question make no mention of using the funds to acquire property. Therefore, we are of the opinion that the proceeds of both of the two taxes may not be used to purchase land to expand the cemeteries in Ward Two.

Please be advised, however, that the voters could be asked to rededicate the tax proceeds to allow for the acquisition of property; however, a rededication election would have to be approved by the State Bond Commission in accordance with La. R.S. 39:1410.61.

Page 3

OPINION NUMBER 01-16
Mr. E. Dion Young
Assistant District Attorney
Morehouse Parish
Page -3-

Trusting this adequately responds to your request, we remain

Yours very truly,

RICHARD P. IEYOUB
Attorney General

BY:
MARTHA S. HESS
Assistant Attorney General

RPI/MSH

Page 4

OPINION NUMBER 01-16
Mr. E. Dion Young
Assistant District Attorney
Morehouse Parish
Page -4-

Opinion Number 01-16
Syllabus

129 Taxation

R.S. 39:704, Art. VI, §26

Taxes for maintenance and upkeep of cemeteries cannot be used to purchase additional property.

Mr. E. Dion Young
Assistant District Attorney
Morehouse Parish
4th Judicial District
P. O. Box 1079
Bastrop, LA 71220

Date Received:

Date Released: March 1, 2001

Martha S. Hess
Assistant Attorney General