(dissenting): I adhere to my dissent filed with the original opinion in this case. (Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 424, 485 P. 2d 149.) However, in view of the combs decision in Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147, in which I have joined, an explanation appears to be appropriate. My dissent herein is based on the premise that the record discloses the Director of Property Valuation, by his own admissions, ignored the mandate of K. S. A. 79-503 and on the further ground that the Director’s choice of 5% capitalization rate was not supported by any explanation or logical reasoning, thus compelling the conclusion that it was arbitrary. Even though the State Board of Tax Appeals is said to function independently of the Director in the matters of administrative judgment and decision, its rulings in the instant case are not supported by the evidence and in fact are contrary thereto.
While the central issues in the instant case are essentially the same as those framed in Northern Natural Gas Co. v. Dwyer, supra, the records in the two cases reveal marked differences in the evidence produced and in the findings of the respective trial courts. In particular the admissions of the Director and his expert which showed a disregard of 79-503 in the Panhandle case do not appear in the Northern record, and the Director’s choice of 5.5% rate in capitalizing the net income of Northern has a basis in the record as carefully pointed out by the trial court in its Finding No. 4, whereas in Paw-handle the 5% rate was an arbitrary choice with no basis established nor any explanation given.
In short, the issue to be determined on judicial review is whether the order of the Board is shown to be “unreasonable, arbitrary or capricious”; the respective records in the two cases show that the burden was sustained in Panhandle but not in Northern.