This is the second application by the principal appellee, Rest Hills Memorial Park, Inc., for authority under the Cemetery Act to establish a new cemetery between North Little Rock and Jacksonville. Ark. Stat. Ann. §§ 82-411 et seq. (Repl. 1960). Both applications have been resisted by the appellant, which owns another cemetery, North Hills Memorial Gardens, situated about two miles from the site of the appellee’s proposed cemetery.
Rest Hills ’ first application was denied by the Cemetery Board on March 26, 1962. The board’s order is not in the present record, but apparently the application was rejected on the sole ground that sufficient grave spaces were available in other cemeteries to meet the public need. Rest Hills took an appeal to the Pulaski Chancery Court, hut the corporation elected to dismiss its appeal before the matter was heard by the court.
The present application was filed by Rest Hills in October of 1962. After an extended hearing the board changed its position and filed an opinion on March 29, 1963, granting the permit. North Hills appealed to the chancery court, where the board’s decision was affirmed. This appeal followed.
At the outset the appellees, Rest Hills and three members of the Cemetery Board, attack the constitutionality of that section of the Cemetery Act that provides for an appeal to the chancery court. § 82-414. Counsel rely upon the settled rule that the legislature cannot enlarge or diminish the jurisdiction of equity as it existed when the Constitution of 1874 was adopted. German Nat. Bk. v. Moore, 116 Ark. 490, 173 S. W. 401.
We do not reach the merits of this contention. A constitutional question cannot be raised for the first time on appeal. Latham v. Hudson, 226 Ark. 673, 292 S. W. 2d 252. Even if the provision for a review in chancery is invalid it does not follow that there would be a complete absence of jurisdiction, as would be the ease if the chancellor attempted to hear a criminal case. In this situation the appellees’ jurisdictional objection cannot be interposed for the first time in this court. They waived the point by failing to seek a transfer of the cause to the circuit court. Green v. Garrett, 225 Ark. 311, 280 S. W. 2d 905.
It is first contended by the appellant that the board’s original denial of Rest Hills ’ application for a permit is res judicata. It is true that when an administrative board acts judicially or quasi judicially its decision may be res judicata in a second proceeding involving the same question. Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S. W. 2d 826. We are not convinced, however, that all the technical rules that make up the common-law doctrine of res judicata should apply with equal force to administrative proceedings.
For example, if the plaintiff in a lawsuit loses his case on the merits because of his inadvertent failure to prove some fact essential to his cause of action he is not allowed to file a second suit and try the issues again. There is no good reason for applying this rule in an administrative matter such as this one. Counsel for the appellees point out that Rest Hills may have elected to dismiss its first chancery appeal and start over again for the reason that it did not then have title to the site of its proposed cemetery — a defect that might have been fatal. It would hardly be reasonable to deny a second application for an administrative permit merely because of some technical flaw in the first application.
Again, a decision at common law is conclusive not only of those matters that were actually litigated but also of those questions that were within the issues and might have been explored. This rule ought not to apply to the decision of a law body such as the Cemetery Board. Rest Hills’ original application was denied on one ground only. At the second hearing the board considered additional matters, including the accessibility of the Rest Hills site, its beauty as compared to that of North Hills, and the various facilities that Rest Hills mean to provide. A chapel, a mausoleum, and a crematory were included in the applicant’s long-range plans. An important consideration is ££the need or desirability from the public standpoint of the proposed cemetery. ” §82-419. If there is really a need for the proposed cemetery, as the board found, then the public interest should not be thwarted merely because Rest Hills did not present all its available evidence at the first hearing. The plea of res judicata was correctly rejected.
A second contention is that the board erred in finding that there was a public need for the Rest Hills cemetery. On this issue the testimony is in sharp conflict. Harry Leggett and Harold Brown, both of whom had extensive experience in this general field, gave their reasons for believing that the cemetery was needed. The appellant produced much evidence to the contrary. If the case were being tried ele novo we might be inclined to think the board’s decision to be against the weight of the evidence. But that is not the standard of review. The question is whether the board’s decision was arbitrary. North Hills Memorial Gardens v. Hicks, 230 Ark. 787, 326 S. W. 2d 797. In view of the persuasive proof proffered by both sides we are unable to say that the board’s findings are not sufficiently supported.
In the chancery court the appellant made for the first time the interesting point that the Cemetery Board was not legally constituted. The original statute, Act 250 of 1953, created a three-member board. Ark. Stat. Ann. § 82-414 (Repl. 1960). In 1961, by Act 74, the legislature increased the membership to five (§ 82-414 [Supp. 1963]), but for some reason the two additional members had not been appointed when this application was heard by the board in the early part of 1963. The appellant insists that the proceedings before a board of only three members were void.
We are of the opinion that the board’s action had at least practical validity. When there is a de jure office, as there was here, sound policy requires that the acts of a de facto incumbent be given effect. See Pope v. Pope, 213 Ark. 321, 210 S. W. 2d 319. Act 74 of 1961, supra, specifically provided that three members of the Cemetery Board should constitute a quorum and that orders should be made by majority action of the five members. All three members acted in this case. They were unanimous. Thus they exercised the same authority that they would have had if the other two members had already been appointed but had not been present at the hearings. In the absence of any timely objection to the composition of the board the appellant cannot be permitted to challenge the validity of the proceedings only after the decision has proved to be unfavorable to it.
The appellant argues several other grounds for reversal, some being that a member of the board was absent for four or five minutes during one of the hearings,. that all the officers of Rest Hills were not excluded from the courtroom during the trial in chancery, that the board should have required Rest Hills to contribute to its perpetual care fund more than the statutory minimum of 10% (§ 82-422), and that there are other prejudicial errors in the record. We have reviewed these arguments and find them to be without merit.
Affirmed.
Johnson, J. dissents.