concurring in part and dissenting in part: One of the important issues in this case, and in my judgment the decisive one, is the construction and application of K. S. A. 1970 Supp. 74-2426 (effective April 25, 1969), requiring the Board of Tax Appeals to make findings of fact upon which it bases its determination, and grants the appellant the right to appeal to a district court of a county in which a portion of its property is located, from the final order of the Board approving the assessment of its property, where such order is unreasonable, arbitrary or capricious.
Following our decision in Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906, the Legislature in 1969, amended K. S. A. 74-2426. Prior to the amendment, the Board was not required to make written findings of fact, and no right of appeal existed from the Board’s order approving an assessment of property for property tax purposes. The statute may be found as K. S. A. 1970 Supp. 74-2426 (since amended, see Ch. 249, L. 1971), and the additions made by the amendment are italicized in the pertinent portions, as follows:
“. . . Whenever the board of tax appeals shall enter its final order on any appeal, said board shall make written findings of the fact forming the basis of such determination and final order and such findings shall be made a part of such final order. Within ten (10) days after its decision the board shall mail a copy of its order by registered or certified mail to the person, firm, corporation or association who was a party to such appeal. Within thirty (30) days after the mailing of the final order of the board, any party to such appeal may appeal to the district court of the proper county: Provided, That no such appeal may be taken to the district court from any other determining, approving, modfying or equalizing the assessment of property for property tax purposes unless such order is unreasonable, arbitrary or capricious . . .”
The words “unreasonable, arbitrary or capricious” as used in the statute have reference to an assessment of property for property tax purposes that is illegal, or amount to constructive fraud, or the equivalent of fraud on the rights of a taxpayer.
Other pertinent portions of K. S. A. 1970 Supp. 74-2426 are quoted in the court’s opinion and it would be repetitious, and unduly *371lengthen this opinion to requote them here. Reference is made in the court’s opinion to numbers in brackets which were added to facilitate the discussion of the statute, and the bracketed numbers will be referred to in this discussion.
In amending the statute, it was the evident intent of the Legislature to require the Board of Tax Appeals to comply with basic principles of administrative law repeatedly stated by this court. It has been held that official boards, such as the Roard of Tax Appeals, are required by this court to express their orders and decisions in formal and explicit findings to the end that review may be intelligent, and where the Legislature has imposed a specific requirement that the basic facts conditioning action by administrative boards be ■stated in findings, such findings shall be stated explicitly. And in default of such fulfillment, there is no official action — only a vain show of it, with the result that such orders are unlawful and must be set aside and held for naught. (Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985; Rodc Island Motor Transit Co. v. State Corporation Comm., 169 Kan. 487, 219 P. 2d 405; City of McPherson v. State Corporation Commission, 174 Kan. 407, 413, 257 P. 2d 123; Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 380 P. 2d 396; Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572; Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.)
In Kansas Public Service Co. v. State Corporation Commission, supra, this court said:
“. . . An ultímate finding is a conclusion of law or at least a determination of a mixed question of law and fact . . . Such an ultimate finding is not enough, in the absence of basic findings to support it. This court must first know what the basic findings are before it can give them conclusive weight. We have repeated!y emphasized the need for clarity and completeness in basic or essential findings on which the administrative orders rest, and findings based on substantial evidence must embrace the basic findings which are needed to sustain the order . . .” (1. c. 743, 744.)
It was also said:
“The reasons for requiring the findings of basic facts by an administrative agency are so powerful that the requirement has been imposed with undeviating uniformity by this court. The rationale of the rule as gleaned from the foregoing cases and others, is to facilitate judicial review, avoid judicial usurpation of administrative functions, assure more careful administrative consideration to protect against careless and arbitrary action, assist the parties in planning their cases for rehearing and judicial review, and keep such agencies within their jurisdiction as prescribed by the Legislature . . .” (1. c. 744.)
*372Under the clear and direct language of 74-2426, the Board of Tax Appeals is required to express the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the courts, an adequate statement of the facts which persuaded it to arrive at its determination. The findings must be expressed in language sufficiently definite and certain to constitute a valid basis for the order, otherwise, the order cannot stand. When a decision is accompanied by findings of fact, the supreme court can determine whether the decision reached by the district court or the Board follows as a matter of law from the facts stated as its basis, and also whether the facts so stated have any substantial support in the evidence. In the absence of findings of fact, the reviewing district court, or this court on appeal, can determine neither of those things. The requirement of findings is, thus, far from a technicality. On the contrary, it is to insure against star-chamber methods of arbitrary, capricious, and unreasonable action, and to make certain that justice shall be administered according to fact and law. (Kansas Public Service Co. v. State Corporation Commission, supra.) More will be stated on this point when the findings of the Board’s order of August 20, 1969, are set forth and discussed.
Generally speaking, I concur in the court’s conclusion that when an appeal is perfected to a district court pursuant to the statute, the filing of the appeal constitutes the commencement of an original action, which shall be heard as an equity proceeding. (Walkemeyer v. Stevens County Oil & Gas Co., 205 Kan. 486, 492, 470 P. 2d 730.) The inherent issue is always: Is the assessment lawful and in conformity with K. S. A. 1968 Supp. 79-503 (since amended)? Likewise, I am in accord that the rules of evidence of the Code of Civil Procedure apply in the trial of such an action. Despite the fact the appeal is from an order of an administrative tribunal, the trial in the district court is de novo — in the sense the court may receive and consider any evidence relevant to the issues presented in the action, and is not limited to the evidence presented before the Board of Tax Appeals. This is so because the statute expressly provides [9] that the transcript of proceedings had at the hearing before the Board of Tax Appeals may be admissible in evidence. In other words, the district court may hear and consider relevant oral testimony and other relevant evidence procured by discovery, deposition, or pursuant to other available proceedings authorized by the code. The power of a district court to receive and consider relevant evi*373dence is provided for, but that power is not to be employed for the purpose of enlarging the scope of judicial review — the test being, the evidence must be relevant to the limited issues before the district court, namely, whether the order of the Board is “unreasonable, arbitrary, or capricious.” But bound up in that phrase is the ultimate question whether the assessment of property for property tax purposes conforms to K. S. A. 1968 Supp. 79-503, that is, whether the assessment is legal, or results in invidious discrimination, which is characterized by our decisions as being constructively fraudulent.
The limitations upon the power of a district court to review by a trial de novo the decisions of an administrative body are stated in Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239, as follows:
“It is true the appeal statute here (65-504) provides for trial de novo; however, as in Foote, the statute is to be construed in the light of the constitutional inhibition prescribed by the separation of powers doctrine. This means the legislature may not impose upon the judiciary the function of a trial de novo of action of an administrative agency in the sense of authorizing the court to substitute its judgment for that of the administrative agency in matters other than law or essentially judicial matters.
“65-504 authorizes the court to act if it finds the board’s order arbitrary, unlawful or unreasonable. The issue, then, before the district court upon appeal is the reasonableness and legality of the order appealed from . . .” (1. c. 729.)
And it was further said:
“. . . The lack of uniform requirements and resultant practice in recording evidence supporting administrative action, as well as the indiscriminate use of the term trial de novo, has contributed to some confusion in our law and points up the desirability of greater uniformity in our statutes governing hearings by administrative agencies and judicial review of their actions. This problem was recently discussed in Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513, where it was stated that evidence submitted upon judicial review of a zoning action was to be received in accord with our evidentiary code (K. S. A. chap. 60, Art. 4). The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review — the test being, the evidence must be relevant to the limited issue before the court on appeal; namely, the reasonableness and legality of the order appealed from . . .” (l. c. 731, 732.)
The need for the Legislature to enact a uniform administrative procedures act to bring about consistency of judicial review of administrative orders and decisions, is once again strongly sup*374ported by this case, as well as other cases recently considered by this court.
The foregoing requires a concurrence with my colleagues’ determination that the district court erred in failing to consider the testimony of Gillgannon submitted in his deposition. That evidence was clearly relevant and went directly to the main issue before the district court. The thrust of Gillgannon’s testimony was that the Director of Property Valuation had preconceived the value of Northern’s property, as well as the value of Panhandle Eastern’s property (No. 46,257), and other similar public utilities, by instructing the deponent to first compute Northern’s justifiable value to reflect 30 percent of the original cost, which directive was complied with as toill be hereafter demonstrated by quoting from the record, and second, not to deviate substantially from the manner of assessments in prior years. That gross misconduct by the Director, which was carried out by Gillgannon in practice and by his testimony before the Board of Tax Appeals certainly raised extrinsic issues that should be considered in an original equity proceeding as provided by K. S. A. 1970 Supp. 74-2426. This error was highly prejudicial, and standing alone should require a reversal of this case.
But the foregoing is the extent to which I can agree. In view of conclusion heretofore stated, I am of the opinion this case should be reversed with directions to the district court to remand the issues to the Board of Tax Appeals to carry out its mandatory duty to make essential basic findings of fact.
As indicated, the vice of this case is the order of the Board of Tax Appeals itself. The court did not set forth that order in its opinion and point out its deficiencies. However, the court frankly concedes the order violates the Board’s statutory duty to make written findings. Except for a few immaterial statements, the Board’s order approving Northern’s assessment of property on August 20, 1969, was identical with its order approving the assessment of Panhandle Eastern (No. 46,257, see my dissenting opinion in that case), and other similar public utilities. The Board’s order reads:
“Before the Board of Tax Appeals of the State of Kansas
“Sitting as the State Board of Equalization
*375“In the Matter of the Appeal of Northern Gas Company, "1 from the Order of the Property Valuation Department l Determining Their Assessed Valuation for the Year 1969. J
No. 2206-9
“Order
“Now, on this 31st day of July, 1969, the above matter comes on for hearing before the Board of Tax Appeals of the State of Kansas, sitting as the State Board of Equalization.
“The appellant appears by Mark Adams II, Counsel; Frank Duffy, Counsel; Larry Gipe, Counsel; K. R. Boyer, Manager, Tax Department; Dave Wortman, Tax Analyst; O. L. McQuin, Senior Tax Agent; Dr. Herbert Dorau, Consultant; Broley Travis, Consultant; Wm. Fields, Consultant; and Francis O. Woodward, Consultant. The Property Valuation Department appears by Clarence J. Malone, Chief Attorney; Ronald F. Dwyer, Director; and Mike Gillgannon, Appraiser.
“Thereupon the matter proceeds to hearing and evidence is produced by the appellant and the Property Valuation Department of the State of Kansas, which matter is taken under advisement by the Board.
“And now, on this 20th day of August, 1969, after careful consideration of the evidence presented and arguments of Counsel, the Board makes the following findings;
“1. Northern Natural Gas is a Corporation engaged in transporting natural gas in interstate commerce with some subsidiary intrastate operations.
“2. Appellant is under jurisdiction of the Federal Power Commission for purpose of rate regulation. Intrastate Subsidiary Commission operations are under jurisdiction of Kansas State Corporation for the purpose of rate regulation within Kansas.
“3. The contention of the appellant that the sole basis of valuation for assessment of his property should be the value placed upon it by the State or Federal regulatory body establishing rates is in error.
“4. The Board has taken administrative notice of the Kansas Ratio Study for 1968. The Ratio Study relates assessment levels with limited sales, but does not afford direct comparison with all elements included in justifiable value in accordance with K. S. A. 79-501 & 79-503, as amended, which provides the statutory authority under which the Director of Property Valuation is required to assess state assessed properties.
“5. The Board finds that the taxpayer has failed to sustain the burden of proof that the values determined by the 1968 Ratio Study in the counties involved are supported by any substantial evidence.
“6. That we find no evidence of bad faith, arbitrary or oppressive action, or systematic discrimination and distinction made by the Director of Property Valuation between the subject utility and the assessment of other utilities similarly situated.
“7. In the absence of any evidence that the assessment was arrived at fraudulently, arbitrarily, or capriciously, and in the absence of any evidence of arbitrary discrimination between, or a lack of uniformity in, the valuation and assessment of all other utilities similarly situated, a difference of opinion as to value or an alleged error or mistake in judgment by the assessing officer is *376no ground for interference by the Board of Tax Appeals, sitting as the State Board of Equalization.
“8. The taxpayer has the burden of proof and has failed to sustain the burden of proof to establish by evidence that the assessment lacks uniformity.
“9. That said property is not assessed relatively higher than other comparable property in this state; the facts presented for the Board’s consideration do not justify a reduction; the appeal should be denied and the valuation remain as assessed.
“It Is, Therefore, by the Board of Tax Appeals of the State of Kansas, Sitting as the State Board of Equalization, Ordered that the appeal be, and the same is hereby, denied.
“Dated at Topeka, Kansas, this 20th day of August, 1969.”
The court concedes the Board utterly failed to comply with its statutory duty to make essential findings of fact showing the basis of its determination, as stated in the majority opinion:
“While the Board did make what was denominated written findings of fact, our analysis of its written findings discloses they are mere conclusions which fail to give the basis for its determination and final order. The findings should have been specific setting forth the factual basis for the Board’s determination
The court’s concession of the unlawfulness of the Board’s order should automatically reverse this case with directions to the district court to remand the proceeding to the Board with instructions that it comply with K. S. A. 74-2426, and make explicit findings of fact showing the basis of its determination. However, and despite the foregoing concession, the court concludes that it does not regard the failure of the Board to make findings of fact fatal to further review. Its conclusion appears to be that the Board’s approval of “the assessment of Northern’s property by the Director thereby adopted the same justifiable value and assessment that had been made by the Director.” The court apparently proceeds upon the assumption that it may infer or imply from the Board’s order approving Northern’s assessment that the factual basis upon which the order was entered may be ascertained. This is gross error.
This court has passed upon an almost identical procedural question in Cities Service Gas Co. v. State Corporation Commission, supra. There, the Commission issued an order directed to several intrastate natural gas pipe line companies operating within Kansas to show cause why they should not be required to obtain a certificate of convenience and necessity from the Commission, and file rate tariffs on charges, and other matters. Following a hearing before the Commission, it issued its order asserting jurisdiction of *377the gas pipe line companies pursuant to its own Rule and Regulation No. 82-1-232 relating to proceedings before the Commission. The regulation described the form and content of orders to be issued by the Commission, which required it to make findings of fact, detailing all facts found by the Commission to be true, and to make conclusions of law based upon the facts as found. Upon appeal, the district court concluded as a matter of law that the order of the Commission was invalid and void for failure to make findings, and then as here, searched the record and made its own extensive findings of fact and conclusions of law.
Upon judicial review of the district court’s judgment, this court held the Commission’s order failed to comply with its own regulations with respect to making findings of fact, and that the order likewise failed to comply with basic principles of administrative law repeatedly stated by this court. The case was reversed with instructions to the district court to set aside its findings of fact and conclusions of law, except its conclusion of law that the order of the Commission was invalid and void for failure to make adequate findings of fact, and directed the district court to remand the case to the Commission for further proceedings consistent with the opinion. In the opinion, this court said:
“In the instant case, there were no basic findings of fact and there was nothing upon which the district court could review the evidence. In the absence of such findings, the district court was not called upon to examine the evidence in order to resolve opposing contentions as to what it showed or to spell out in its own findings of fact and state its conclusions of law as the record might permit. The commission [Board] is the fact finding body, and the court examines the record not to make findings for the commission [Board] but to ascertain whether its findings are supported by substantial evidence. It need hardly be said the district court can neither affirm nor disaffirm findings which were never made. As we have seen, our statute and our decisions and the commission’s rule demand that findings be made, and the courts and the parties are entitled to know how the commission disposes of the fact issues. Until that function has been performed, the courts cannot discharge theirs. We conclude the district court was not authorized under 66-118d to make findings of fact where no findings had been made by the commission, and in the absence of such findings, neither the district court nor this court on appeal can review them. Courts cannot perform the function assigned to them in the absence of adequate basic findings. (Pacific Telephone & Telegraph Co. v. Flagg, 189 Or. 370, 220 P. 2d 522; Valley & Siletz R. R. Co. v. Flagg, 195 Or. 683, 247 P. 2d 639.) In the latter case it was said:
“ ‘Pacific Telephone & Telegraph Co. v. Flagg, supra, holds, not only that an order by the commissioner, unsupported by evidence, is invalid, but also *378that a court cannot write findings for the commissioner.’ (1. c. 717.)” (1. c. pp. 234, 235.)
And it was further said:
“As noted, in the instant case there were no basic findings and there was nothing upon which the district court could review the evidence, and the order was void on its face. As stated in Kansas Public Service Co. v. State Corporation Commission, supra, courts will not search the record to ascertain whether there is evidence from which an ultimate finding can be made. Under the circumstances, the district court should have found the order contained no basic findings and concluded as a matter of law it was void on its face, and transmitted its judgment to the commission.” (1. c. 236.)
Under the authority of the Cities Service Gas case, the district court had a clear duty to declare the Board’s order void for failure to make basic findings of fact and to remand the proceedings to the Board with directions to comply with its statutory duty. It is obvious from an examination of the Board’s order there were no adequate findings made upon which it based a determination approving the Director’s assessment of Northern’s property for 1969. In the case of Rydd v. State Board of Health, supra, the point was decided, and we said:
“. . . And we have indicated it would have been beyond the scope of the trial court’s authority to make its own independent finding on the merits of appellee’s fitness for a license. That function lay exclusively with the board. As the matter stood, the court could have made no conclusive order in favor of either of the litigants without substituting its judgment for that of the board. What course then could have been taken by the trial court other than to remand the proceeding for further hearing? We think none ... In 2 Am. Jur. 2d, Administrative Law, § 764, the rule is stated:
“ \ . . the general rule is that even in the absence of statute, a court which sets aside an administrative determination has the power to remand the case to the administrative agency where such power is necessary to effectuate the demands of justice, and statutes frequently grant such authority to the courts. The court does not encroach upon the administrative function of such procedure, and there is nothing in the principles governing judicial review of administrative acts which precludes the courts from giving an administrative agency an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attached as invalid.’
“The rule is further elaborated in the same work § 765, as follows:
“ ‘The court must remand, or the administrative agency is entitled to have the proceeding returned to it, where the agency has taken action without meeting procedural requirements, has made invalid, inadequate, or incomplete findings . . . where judicial review discloses material errors but the reviewing court cannot enter a conclusive order . . .’
“The trial court properly remanded the proceeding.”
*379Likewise, and in my judgment, the court’s decision is directly contrary to established administrative law propounded by the court in a settled course of decisions. As indicated, the court apparently proceeds to examine the record to ascertain if the purported findings of the Board may be implied or inferred from its order. This court has repeatedly held that where findings of fact are required as a matter of procedural law in order to support the administrative determination, the lack of express findings will not be supplied, implied, or inferred. (Class I Rail Carriers v. State Corporation Commission, supra; Kansas Public Service Co. v. State Corporation Commission, supra; Cities Service Gas Co. v. State Corporation Commission, supra.) Our decisions have cited Atchison Ry. v. United States, 295 U. S. 193, 79 L. Ed. 1382, 55 S. Ct. 748, and Burlington Truck Lines v. United States, 371 U. S. 156, 9 L. Ed. 2d 207, 83 S. Ct. 239, and this court has adopted the following language from Atchison Ry., and Burlington, respectively, which may be found in Class I Rail Carriers, supra:
“ ‘. . . Its report does not disclose the basic facts on which it made the challenged order. This court will not search the record to ascertain whether, by use of what there may be found, general and ambiguous statements in the report intended to serve as findings may by construction be given a meaning sufficiently definite and certain to constitute a valid basis for the order. In the absence of a finding of essential basic facts, the order cannot be sustained. Florida v. United States, 282 U. S. 194, 215. Recently this court has repelled the suggestion that lack of express finding by an administrative agency may be supplied by implication. Panama Refining Co. v. Ryan, 293 U. S. 388, 433. See Beaumont, S. L. & W. Ry. v. United States, 282 U. S. 74, 86. Interstate Commerce Comm’n v. Chicago B. & Q. R. Co., 186 U. S. 320, 341 (pp. 201, 202.)”
« « #
“ . . Expert discretion is the life blood of the administrative process, but “unless we make the requirements for administrative action strict and demanding, (expertise, the strength of modern government, can become a monster which rules with no'practical limits on its discretion.” New York v. United States, 342 US 882, 884, 96 L ed 662, 663, 72 S. Ct. 152 .. . The Commission must exercise its discretion under §207 (a) within the bounds expressed by the standard of “public convenience and necessity.” Compare id 346 US at 91. And for the courts to determine whether the agency has done so, it must “disclose the basis of its order" and “give clear indication that it has exercised the discretion with which Congress has empowered it.” Phelps Dodge Corp. v. NLRB, 313 US 177, 197, 85 L ed 1271, 1284, 61 S Ct 845, 133 ALR 1317. The agency must make findings that support its decision, and those findings must be supported by substantial evidence . . . (pp. 215 and 216, 9 L. Ed. 2d.)’” (1. c.208.)
*380Turning now to Gillgannons deposition, the clear import of his testimony is that he was directed to predetermine a value of original cost. Then he was to manipulate his work sheets and place percentage weights upon certain valuation methods to achieve a result comparable to a 30 percent value of original cost. I am not prepared to say what effect that testimony might have upon the credibility of his evidence before the Board, or the viability of the Order of the Board; however, the lengthy quotation from the deposition as set out in the court’s opinion necessitates additional quotation from the deposition to indicate the inference of preconceived valuation, and that the work product of Gillgannon was merely “frosting on the cake,” so to speak. In his deposition he said:
“There was no documented directive in that respect but it was the policy of the Department to use this norm and Mr. Dwyer took the position that we shouldn’t deviate from this norm and that we should not go too far afield in establishing appraisals notably different than the prior year unless this was justified by new investment, increases in new plant. This position was made known to me more or less just in a conversation and I think that there was an understanding that this was the policy that would be followed. This conversation and this understanding took place prior to the appraisal in 1969 but with reference to that period. This was more or less in casual conversation with regard to the policy that we would use. It was just indicated that this would seem to be the better policy to follow, that is, to be guided by saying within the limits of or within the area of 30% of original cost and close to the prior year’s appraisal.”
* # a
“Original cost is value of some sort. It has weaknesses of course. It may be construed to be a very reliable measurement of value at the inception of cost but as years go by original cost does tend to lose its merit in determining the value of the property because of economic factors of appreciation and depreciation which start to work on the property immediately.”
a a a
“. . . Thirty percent of original cost was a measurement that the Department fell into as being a test of uniformity and in an effort to see whether one company as related to another was — that there is a correlation between the relationship of the appraisal of one company with that of another and originally it was not intended to really represent justifiable value but it got established that way and it has been perpetuated as a reliable test of justifiable value.
“In the Director’s determination of justifiable value of Northern’s properties in the State of Kansas in 1969, if a greater weight had been given to the cost approach than 85%, this would have resulted in a higher justifiable value. That justifiable value then on an assessment basis would have exceeded the 30% or 30.34% ratio which currently appears in Column C of defendant’s Exhibit 17, and this is the reason why no more weight was actually given to the trended cost than the 85%
*381“A. Well, I’d dislike to say that it was — or accepted that it was predetermined, but in view of the fact I guess it could be construed that way in view of the fact that there was a definite influence because there was a tendency, of course, not to deviate too far from 30% of the original cost or away from the bench-mark.
“Q. (By Mr. Adams) Specifically, is this the reason why only 85% weight was given to the trended cost study?
“A. Well, I think that the answer to that would have to be yes in view — and I regret the fact actually that there was any arithmetic value given to either one of the indicators.” (Emphasis supplied.)
e * #
“I am stating under oath that I was directed to predetermine a value of original cost and then work toward that value.” (Emphasis supplied.)
a # «
“Q. And are you stating under oath that you were directed at any time, impliedly or otherwise, to predetermine a value of original cost and then work toward that value? Are you saying that you were directed by anyone to do that?
“A. Yes, it was. As a matter of fact, there was a meeting in the Director’s office in which Mr. Jones and I were present — Mr. Rook (sic) was not present this particular day — and it was suggested that we not deviate notably from the previous year’s appraisal.”
* e *
“Q. (By Mr. Carter) As a matter of fact if they had directed you to do that, you wouldn’t have to have gone through the trouble of going through these different procedures and exercising your judgment as you have just testified to me that you did, would you?
“A. Well, this is true, but, of course, this is one appraisal practice over the years, that we were tied closely to the original cost as a benchmark.
“In my opinion, this is a weakness.”
As previously indicated, I concur with my colleagues on the admissibility and relevance of Gillgannon’s deposition as it relates to the issue of extrinsic fraud; however, I emphatically .disagree that the questions raised in this case were submitted in the form of mere documentation which would authorize this court to resift the evidence, place probative value on the same, and render a judgment on the merits of that testimony.
This court had analogous situations before it on prior occasions. In Boese v. Crane, 182 Kan. 777, 324 P. 2d 188, we stated:
“This court has recognized that under certain circumstances when the evidence is written, documentary in character, or in the form of depositions or transcripts its duty is to decide for itself what the facts establish, substantially as it would in an original case. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; In re Estate of Besse, 163 Kan. 413, 183 P. 2d 414; and White v. v. Turner, 164 Kan. 659, 192 P. 2d 200.)
*382“The testimony of Mr. and Mrs. Dimsdale in the trial court was in the form of depositions. All other witnesses were present and testified in person. It is urged that this court apply the foregoing rule in reviewing the decision of the trial court, that is, to treat the case as if it were an original case. This rule, however, is not universally applied under all condiions. It has been applied where all the evidence is in written form (White v. Turner, supra); where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form (In re Estate of Kemper, supra); but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others (Bolin v. Johnson County Nat'l Bank, 160 Kan. 61, 159 P. 2d 477 [deposition testimony]; Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, No. 40,871, decided April 12, 1958 [stipulated testimony]; and see, also, Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180).
“The circumstances in the present case do not call for an application of the rule urged by plaintiffs, where all of the evidence is in written form. The ordinary rule, giving credence where the trial court gave credence, as in Tucker v. Hankey, supra, and Truck-Trailer Supply Co. Inc. v. Farmer, supra, must control this decision. All of the plaintiffs’ witnesses testified in person and all of the defendants’ witnesses except Mr. and Mrs. Dimsdale testified in person. The deposition testimony of the Dimsdales was corroborated in many respects by one of the defendants’ witnesses, and the testimony of the plaintiff, Otto Boese, insofar as the issue in this case is concerned was contradictory to the plaintiffs’ evidence. Should the rule propounded by plaintiffs apply, a reversal would require this court to give credence to the testimony of Otto Boese, when as a matter of fact it is apparent that tire trial court rejected his testimony. The trial court had the opportunity to observe each of the witnesses who testified in person and familiarize himself with their demeanor on the witness stand, their interest in the controversy, and the greed and avarice manifested by each.
“Under these curcumstances plaintiffs’ specfication that the trial court erred in believing the evidence contained in the depositions of Frank and Myrtle Dimsdale is without merit.” (1. c. 779, 780.)
In Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, we stated:
“In reaching the conclusions last above announced we have not overlooked contentions strenuously advanced by appellants to the effect that since the only evidence of record is in documentary form this court is required to decide for itself what the facts established, substantially in the same manner it would if this were an original case. We have so held. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103, and earlier cases therein cited; In re Estate of Besse, 163 Kan. 413, 183 P. 2d 414; White v. Turner, 164 Kan. 659, 192 P. 2d 200.) It must be remembered, however, such rule is subject to some elasticity under certain conditions. In that connection we have pointed out that even though we determine the facts from the printed page we cannot disregard the testimony of one witness and accept as true the testimony of others but, under such *383circumstances, should follow the ordinary rule, giving credence where the trial court gave credence, unless its findings of fact are illogical, improbable and unwarranted. See, e. g., Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 655, 203 P. 2d 180.” (l. c. 760.)
See, also, In re Estate of Bernatzki, 204 Kan. 131, 460 P. 2d 527.
The Board is the trier of facts in this case fust as the district court was the trier of facts in the Boese and Karlan Furniture Co. cases. A substantial portion of the evidence presented at the adminstrative hearing of this matter was garnered from the witness stand. The Board, as the trier and finder of facts, is required to assess the demeanor of witnesses and determine whose testimony is to be believed. It is apparent to me from the record that the district court, which erroneously failed to consider the Gillgannon deposition, should direct the Board to consider that testimony, weigh its credibility and materiality, and then render its judgment after due consideration of that testimony. The position taken by the court’s opinion is clearly inconsistent with precedent, and the facts in this case do not compel a contrary result. We should not preempt the Board and substitute our opinion as to the relative probative force of Gillgannon’s deposition. That is not the business of this court in reviewing orders of an administrative board, and I am loath to believe the court intends to incur such prodigious responsibilities in futuro. A conclusion otherwise would be giving credence to an argument that this court now intends to go into the assessment business and weigh the probative force of that evidence, a function heretofore reserved exclusively for an administrative board. The district court, upon the proffering of Gillgannon’s deposition should have remanded the issues to the Board for a proper consideration of the testimony. In light of the oral testimony contained in the record, that error clearly compels a reversal of this case.
In Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59, we held that an assessment, made in adherence to an assessment schedule promulgated by the Property Valuation Department which failed to consider pertinent statutory factors prescribed by the Legislature in K. S. A. 79-503 will not be upheld by this court. In this case, as in Garvey, the statutory factors have been lost sight of or wilfully abandoned, and the mere assertion by the Director, or his official who made the assessment, that he considered all pertinent factors will not mitigate the admitted facts supplied from his own lips that he did not do so.
*384The statewide assessment of a public utility is a momentous task. However, since the enactment of K. S. A. 79-503 in 1963, and its subsequent amendments, including K. S. A. 1971 Supp. 79-5a04, effective January 1, 1971, the traditional ways of carrying out the state policy of assessing public utilities have been cast aside. By adopting the rationale of the majority opinion, this court has now entered into the era of the “bench mark” syndrome. For property taxation purposes, the Director is now permitted to consider as one of the factors of K. S. A. 1968 Supp. 79-503, a judicial fiction known as the “bench mark” declared synonymous with original undepreciated cost. As I understand the thrust of the court’s opinion, it appears that the Director may now disregard all factors in 79-503 and use the original cost from the prior year, add additional physical outlay of a gas pipe line company for the current tax year, declare that value to be “justifiable,” and be in harmony with the majority in this case.
This dissent has grown too long. Much more could be said and possibly should be, but other pressing matters require that it be concluded.