(dissenting). I do not agree with the majority view. The entire record before us strongly indicates pungent tinges of an expedient opinion by the Arkansas State Cemetery Board, a ruling which on appeal can only be disturbed by a finding that the board acted arbitrarily. Newton v. American Sec. Co., 201 Ark. 943, 148 S. W. 2d 311. In fact that majority concedes that “if the case were being tried de novo we might be inclined to think the board’s decision to be against the weight of the evidence.” The board’s decision is not only against the weight of the evidence it is against virtually all of the evidence. On March 26, 1962, after a full and complete hearing on all issues this board judiciously denied appellee’s application for a cemetery permit. A few short months later this same board based upon practically the identical testimony did a complete flip flop and granted appellee’s permit. The record is silent as a tomb as to why. It is true as pointed out by this court in North Hill Memorial Gardens v. Hicks, 230 Ark. 787, 326 S. W. 2d 797, “there is nothing in Act 250 of 1953 calculated to create a monopoly in favor of existing cemeteries,” still, in that case, we were careful to determine that Act 250 is a hanking measure regulating the creation, maintenance and operation of perpetual care cemeteries, investing certain descretionary powers in the board not for the creation of monopolies but to insure the exercise of sound financial practices.
The legislature in its wisdom obviously recognized a need to protect the investiments of hundreds of thousands of the unsuspecting public when it enacted Act 250 of 1953. The law requires such cemeteries to set aside a percentage of the sales price of these lots in a perpetual care fund, from which must he met the cost of maintaining these cemeteries eternally. The spirit of the act is to guarantee that persons who invest in lots for their loved ones in perpetual care cemeteries will receive what they pay so dearly for. Yet the record here shows beyond question that not a perpetual care cemetery in the Pulaski County area could fulfill this contractual obligation for perpetual care if their present sales were diminished. Even now some of these cemeteries appear to be teetering on the brink of bankruptcy. At this point there is not a perpetual care cemetery in the Pulaski County area which could be maintained by their perpetual care fund. Far from it. The record is as follows:
Pine Crest Memorial Park, Inc., is a garden type cemetery located ten miles west of Little Eock, approximately two miles from the Saline County line on the old Hot Springs highway. It consists of 229 acres, out of which 150 acres have been dedicated. 150,000 burial spaces have been sold from such 150 acres, and 206,000 more are available for sale from such acreage. Only 6,000 persons are buried in this cemetery, and its present rate of funerals is 300 per year. It maintains a perpetual care fund derived from 10% of the sale price of burial plots. At present the fund has a balance of $119,000.00, which earns from approxed investments about $4,000.00 annually. The cost of maintenance of the cemetery is $60,000.00 each year; therefore 1,000 spaces must be sold at an average of $100.00 each during the period of a year for the enterprise to operate successfully.
North Hills Memorial Gardens, a new cemetery, is situated midway between Little Eock and Jacksonville. It contains 200 acres, which will be utilized in both garden type and monument sections. At the present it has sold 1,000 burial spaces and is offering 179,000 additional spaces for sale. It must sell 500 to 600 spaces per year in order to meet its maintenance cost, which is presently $15,000.00. Forty-five persons are buried there.
Forest Hills Memorial Park is established on State Highway 5 at the Pulaski-Saline County line. In comprises 140 acres which if developed in entirety would require an expenditure of $35,000.00 per year for maintenance. Additional burial spaces in the amount of 40,000 should be sold in order to provide an annual income of $35,000.00.
Chapel Hill cemetery, containing 40 acres, is situated near Jacksonville. It has available for sale 19,000 spaces provided through the development of 20 acres and a like number of space can be secured by the development of the remaining 20 acres. Sales totaling $40,000.00 annua]ly are necessary to meet the maintenance cost of $8,000.00.
Now against this overwhelming evidence appellant offered the testimony of its star witness, Mr. Harold Brown. Mr. Brown testified as an expert. He was qualified as follows:
“I live in Topeka, Kansas. I am a cemetery consultant, for approximately 11 years. You do not learn this in schools, but through experience. I was in the business 3 years prior to becoming a consultant. I act as a consultant on basic management problems relative to the business sales development. I consult with people before they go into the cemetery business. I do consultant work in several states, principally sales operation. I am consulted on almost every phase of the business. People consult me on all phases of the operation of the cemeteries. I am a member of the National Association of Cemeteries. These associations operate some schools for sales and administration. I have been an instructor in both associations. I have written a number of articles that have been published in the American Cemetery Magazine as well as a book called “How to Sell Cemetery Property Before Need.’ ”
On cross-examination Mr. Brown candidly admitted that he had worked for perpetual care cemeteries in the Pulaski County area and found the selling of cemetery lots as hard as he had ever encountered, that he gave it up because he didn’t find it profitable.
Not one disinterested witness testified as to need for this additional cemetery.
The state of the record being thus, I am impelled to the conclusion that the State Cemetery Board when it granted appellee a permit acted arbitrarily and with reckless' abandon flooded the already glutted marked with approximately 45,000 new cemetery lots, to be pushed by the accompanying avalanche of salesmen. By so doing the Board severely jeopardized the investments of all the people in the Pulaski County area who have heretofore invested in perpetual care cemetery lots. By the enactment of Act 250 the legislature in no uncertain terms admonished the Cemetery Board that “the need to be considered is a need from a public standpoint.” Clearly the board failed in its responsibility.
For the reasons stated, I respectfully dissent.