Opinion No. 70-44
April 28, 1970
TO: Patricio S. Sanchez Assistant District Attorney Sixth Judicial District P.O. Box 1025 Silver City, New Mexico 88061
QUESTIONS
QUESTIONS
Where an indigent dies and his body is taken to his church for final rites, at the church's expense, and later returned to a mortician for burial, is the Board of County Commissioners required to pay the amount of $ 100.00 for burial expenses specified under the Indigent Burial Law?
CONCLUSION
Yes.
OPINION
{*76} ANALYSIS
The Board of County Commissioners is under a duty to bury indigents. Section 13-2-4, N.M.S.A., 1953 Compilation. Section 13-2-6, N.M.S.A., 1953 Compilation, provides that the Board of County Commissioners shall pay expenses for burial of an indigent in an amount of $ 100.00 for the burial of an adult or a minor over the age of six years and of an amount of $ 75.00 for the burial of a minor up to the age of six years. This statute is phrased in the mandatory "shall," indicating the absolute duty of the commissioners in this respect. Section 1-2-2(I), N.M.S.A., 1953 Compilation (1969 P.S.).
There is nothing in the Indigent Burial Act, Sections 13-2-4 to 13-2-11, {*77} N.M.S.A., 1953 Compilation, to indicate that this duty of the County Commissioners ceases once an indigent is taken to his church for final rites. On the contrary, the Commissioners are under a duty to pay the amount of $ 100.00 for the burial of an indigent regardless of the particular circumstances prior to the indigent's burial.
By: James C. Compton, Jr.
Assistant Attorney General