State Ex Rel. Miller v. Dwyer

*450Schroeder, J.,

dissenting: Under the guise o£ equalization the orders of the Director of Property Valuation result in discrimination equivalent to constructive fraud far greater in magnitude and more flagrant than the facts presented in Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117; Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315; and Kansas City Southern Rly. Co. v. Board of County Comm’rs, 183 Kan. 675, 331 P. 2d 899.

What the court has said in substance is that a little equalization is better than none at all, admitting that “Some lack of equality cannot truthfully be denied, but we reject the concept that it vitiates or poisons the entire plan.” Here, however, the Kansas Supreme Court’s approval of the orders, which purport to equalize the assessed valuation of farmlands in the state, establishes a dangerous precedent authorizing departure from the constitutional requirement of uniformity and equality in the taxation of property.

I agree with the court’s position that the law recognizes a distinction between the process of assessment, by which properties are valued on an individual basis, and the blanket equalization procedures, whereby changes may be made in assessed values affecting all or an entire class of property within a taxing district; and that prior notice is not required to be given where equalization of assessed values is affected by means of increasing or decreasing the value of all taxable property, or a class thereof, in an assessment or taxing district.

The court, however, has ignored the foregoing law by approving the practice of the Director. Here the Director did not equalize the assessed values of all or an entire class of property toithin a taxing district.

K. S. A. 79-1446 need not be construed as violative of the provisions of either the state or federal constitution. But if this statute be construed as the Director of Property Valuation has applied it in this case, then, in my opinion, it is definitely unconstitutional.

The constitution and the statutes of Kansas demand not only equality of assessment of property as between property owners within a county, but also as between property owners of the state. (McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 2d 243.)

The requirement of Article 11, Section 1 of the Kansas constitution is that the rate of assessment and taxation must be uniform and *451equal throughout the jurisdiction levying the tax. (Voran v. Wright, 129 Kan. 1, 281 Pac. 938; and Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977.) If the state levies the taxes, the rate must be equal and uniform throughout the state. If the county levies them, then they must be equal and uniform throughout the county. (Hines and others v. The City of Leavenworth and others, 3 Kan. 186.)

Equalization is attempted by the Director in his plan here presented for the entire state, because the state imposes a 1.5 mill tax levy on all taxable property in the state. (See, Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5.)

Under K. S. A. 79-1411a the county is declared to be the governmental unit charged with the primary responsibility for the administration of all laws relating to the assessment, review, equalization, extension and collection of real and personal property taxes; nevertheless, the state as a whole may be said to comprise a taxing unit or district for the purpose of levying state general taxes. (McManaman v. Board of County Commisisoners, supra.)

Now just what has the Director of Property Valuation done by his equalization orders in this case? First, he has divided the state into nine districts and has attempted to equalize within each district as if it were a taxing district of the state of Kansas for ad valorem tax purposes. (See the appendix to the court’s opinion.) This is contrary to our case law construing Article 11, Section 1 of the Kansas constitution. Second, the Director has attempted to equalize only “agricultural investment” property. By legislative definition “agricultural investment” property is merely a subclass of rural real property within Kansas. It is not all of the taxable property or an entire class of taxable property within the state of Kansas, which is the taxing district the Director of Property Valuation purports to cover by his orders. Third, gross discrimination in the assessed valuations of “agricultural investment” property from one district to another is created by the directives.

To give substance to the foregoing charges it is necessary to resort to the statutes in some detail and to spell out what the record discloses.

The statutory enactments designed to enforce the constitutional demand that assessments be uniform and equal in the various counties throughout the state were discussed in McManaman v. Board of County Commissioners, supra, where counties comprising a taxing unit or district were not complying with the assessment law. The *452State Board of Tax Appeals sitting as the State Board of Equalization has power to equalize assessments between counties of the state under K. S. A. 79-1409 as suggested in Harshberger v. Board of County Commissioners, supra.

In McManaman the court said:

“Of even greater importance, in our opinion, is that the legislature saw fit to vest ultimate supervisory responsibility for the administration of the assessment and tax laws of the state squarely on the director of property valuation with attending enforcement power and authority. (K. S. A. 79-1401, 79-1402, 79-1404, and 79-1405.) . . .” (p. 126.)

Further discussion following the foregoing quoted statement in McManaman, in the form of dictum by the court, spelled out in some detail the legislative directions to the Director of Property Valuation. This statement by the court was unanimously approved, and while the parties to this appeal attempt to construe McManaman favorably to their respective view points, I think its directions are clear and require no construction.

The Director of Property Valuation is empowered to exercise general supervision over assessors, boards of county commissioners, county boards of equalization, and other boards of levy and assessment, to the end that all assessments of property, real, personal and mixed, be made relatively just and uniform (K. S. A. 79-1404 First) and at 30% of its fair market value in money as defined in K. S. A. 1968 Supp. 79-503, as amended. (K. S. A. 79-1439.)

K. S. A. 79-503 (L. 1969, ch. 433, § 10), here applicable, provides in part:

“Fair market value in money shall mean the amount of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting, assuming that the parties thereto are acting without undue compulsion and that the property has been offered at the market place for a reasonable length of time. Sales in and of themselves shall not be the sole criteria of fair market value but shall be used in connection with cost, income and such other factors as may be appropriate including but not by way of exclusion:
“(a) The proper classification of lands and improvements;
“(b) the size thereof;
“(c) the effect of location on value;
“(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
“(e) cost of reproduction or improvements;
“(f) productivity;
“(g) earning capacity as indicated by lease price or by capitalization of net income;
“(h) rental or reasonable rental values;
*453“(i) sale value on open market with due allowance to abnormal inflationary factors influencing such values; and
(/) comparison with values of other property of known or recognized value. The ratio study shall not be used as an appraisal for appraisal purposes.
“In each county of the state the county assessing officer shall on January 1, 1971, and on January 1 of each year thereafter classify and subclassify all real estate into the following classes:
“A. Urban property
“1. Residential. [Defined]
“2. Multifamily. [Defined]
“3. Commercial. [Defined]
“4. Industrial. [Defined]
“5. Vacant lots. [Defined]
“B. Rural property
“1. Agricultural investment. Agricultural investment shall include those properties presently used and operated as units with a source of economic life from the production of agricultural products that originate from land productivity.
“2. Agricultural noninvestment. [Defined]
“3. Home sites. [Defined]
“4. Planned subdivisions. [Defined]
“5. Spot industrial and commercial. [Defined]
“6. Recreational. [Defined]
The appraiser or assessor in arriving at fair market value in money may use different factors in determining the classification best suited to arrive at fair market value in money as defined in this section. . . .” (Emphasis added.)

The Director of Property Valuation is empowered under K. S. A. 79-1404 Sixteenth:

“To require any county board of equalization, at any time after its adjournment, to reconvene and to make such orders as the director of property valuation shall determine are just and necessary, and to direct and order such county boards of equalization to raise or lower the valuation of the property, real or personal, in any township or city, and to raise or lower the valuation of the property of any person, company, or corporation; and to order and direct any county board of equalization to raise or lower the valuation of any class or classes of property; and generally to do and perform any act or to make any order or direction to any county hoard of equalization or any local assessor as to the valuation of any property or any class of property in any township, city or county which, in the judgment of said director of property valuation, may seem just and necessary, to the end that all property shall be valued and assessed in the same manner and to the same extent as any and all other property, real or personal, required to be listed for taxation.” (Emphasis added.)

It is to be noted from the foregoing statutes that the Director of Property Valuation is empowered to cause a change in the valuation and assessment of any class or classes of property, but not of a *454subclass of property. In 79-503, supra, “agricultural investment” property is clearly defined as a subclass of rural real property. Rural real property is a class made up of six subclassifications.

By definition, “agricultural investment” property includes all farmlands of the state. Why has the defenseless farmer been singled out in the Director’s efEort to equalize? Is it because the great wealth of the state is comprised of its farmlands? Clearly, isolating a subclass of property on a statewide basis for purposes of equalizing property assessments does not comply with the statutory directives pursuant to which the Director of Property Valuation has been given authority to equalize.

Nowhere does the constitution or the statutes enacted by the legislature authorize the establishment of arbitrarily defined districts within the state for the purpose of equalizing the assessment of property within such districts. The districts arbitrarily established by the Director are not taxing districts of the state of Kansas. The powers conferred upon the Director by K. S. A. 79-1446, “to order the county assessor of the offending county to increase or decrease the appraised values of his county to the level of surrounding counties to make all such counties comparable to adjoining areas” (Emphasis added) cannot be construed to authorize the division of the state into separate districts for the purpose of equalization.

In my opinion 79-1446, supra, can be constitutionally construed because each and every county of the state adjoins other counties. If the assessed valuation of property in each county and its surrounding counties in the state is comparable to adj'oining areas of the state, it stands to reason that the entire state must be embraced. It is the taxing district for which equalization must be accomplished.

The Director of the Kansas Department of Property Valuation on March 24, 1971, issued directives to 96 Kansas County Boards of Equalization, requiring them to convene or reconvene immediately, and then adopt a resolution directing the county assessor to make certain changes set forth in the directives. The 9 counties not embraced within the directives were in the process of reappraisal in 1971. Under K. S. A. 79-1439 the 9 remaining counties in the process of spreading reappraisals on their tax rolls were within their statutory right to reach full compliance in the year 1971.

The facts in this case are not contested. The director in his answer admitted the material facts alleged by the attorney general in his *455petition, including the exhibits attached thereto to substantiate the allegations.

In 1971 prior to the issuance of the 96 directives, the Director conducted a survey of all Kansas rural “agricultural investment” properties in every county in Kansas by a systematic process of classifying and evaluating as indicated by Exhibit No. 2, which reads as follows:

“To properly achieve equalization of rural agricultural investment properties in the State of Kansas, it was necessary to devise a systematic process of classifying and evaluating the characteristics of this subclass in order to make a reasonable judgment of the end result.
“There are four characteristics that are inherent in all property that influence value. They are: Social, economic, governmental and physical.
“A partial list of the forces are:
“Social: (1) Population growth and decline; (2) shifts in population density; (3) changes in family size; (4) attitude toward educational and social activities.
“Economic: (1) Natural resources; (2) employment trends and wage levels; (3) commercial and industrial trends; (4) available money and credit; (5) price levels, interest rate, tax burdens.
“Governmental: (1) Zoning laws; (2) police and fire regulations; (3) U. S. D. A. policies; (4) monetary policies which affect the free use of real estate.
“Physical: (1) Climate and topography; (2) soils; (3) mineral resources; (4) transportation, schools, churches, recreation areas; (5) flood control; (6) soil conservation.
“These forces, either singly or in combination, set the pattern for variables in real estate values.
“For appraisal, assessment and equalization purposes, it is necessary to divide the State of Kansas into several districts. These districts should be composed of factors that will result in homogenous and/or comparable districts.
“To accomplish this, a research program was developed to obtain the necessary data to make a conclusion of the number and content of districts required. Among the items considered were: (1) Climate; (2) soils; (3) crops and cropping practices; (4) hazards; (5) income and expenses; (6) sales.
“After considering the items listed above, and others, it was determined that to divide the State of Kansas into nine (9) districts would be both reasonable and practical.
“The soil survey for individual counties prepared by the Soil Conservation Service in cooperation with Kansas State University, where available, were used as source documents to identify soils and land capability classifications found in the district and were both referred to in defining district boundaries. Among the items considered were: (1) Texture of soil; (2) depth of soil; (3) permeability of soil; (4) slope; (5) drainage; (6) erosion; (7) terrain.” (Emphasis added.)

*456It is to be noted the Director specifically recognized “agricultural investment” property to be a subclass of property.

The Director in his brief recognizes and admits that his plan is not perfect but contends it is a move toward better statewide equalization than presently exists. The Director in his brief says:

“So, within districts positive equalization of rural agricultural investment property was actually accomplished.
“It is submitted that this could not have been accomplished on a completely statewide basis. Buffalo grass cannot be compared with blue stem pasture. The cow carrying capacity is just simply different. Brown county com land cannot be compared with Thomas County dry wheat land. Irrigated land in Finney County cannot be compared with irrigated land in Gove county. Can Sumner county farm land be compared with farm land in Cherokee County? Rural land in Johnson County cannot be compared with rural land in Wallace County. It would seem reasonable to divide the state into districts where comparisons can be made. While some inequities might appear along district lines, these inequities do not approach the size that would exist if the whole state were one big district, or if we return to the intolerable situation where each county existed as a district unto itself.”

It is amusing that the Director argues there exists no common denominator upon which “agricultural investment” property of the state can be equalized. By the very definition of “agricultural investment” property stated in 79-503, supra, it consists of the farmlands of the state which are operated as units for the production of income. The statute itself (K. S. A. 79-503) defining how real property in the state should be valued for assessment purposes provides that the income factor shall be used. The statute also requires that such other factors enumerated as may be appropriate be used. These include productivity, earning capacity as indicated by lease price or capitalization of net income; and rental or reasonable rental values. These all pertain to the income approach in the valuation of farmlands.

Nowhere in Exhibit No. 2, heretofore quoted, has the Director in his explanation of the assessment equalization considered the income approach. In fact, the only place income and expenses were recognized was said to permit the Director to make a conclusion of the number and content of districts required. In short, the Director in his assessment equalization has completely ignored K. S. A. 79-503.

In an attempt to circumvent this requirement the Director proceeded as follows, quoting from his brief:

“The director reasonably judged that the 1970 abstracts of value for rural *457agricultural investment land represented a faithful attempt by the various Kansas County Assessing Officials to arrive at the full fair market value and then assess at 30% thereof. In doing so the directives are not a substitute for the judgments of the local county assessing officials, nor is it the Director’s appraisal. Rather, the directives constitute a process whereby a ‘level’ of fair market value is determined by obtaining a ‘median’ of the collective judgment of all the assessors within a given district as to the fair market value of a particular category of rural land. If the director had disregarded the reappraisals in the various counties and had undertaken equalization based on his own reasoning, such as using only the sales ratio study in each county as the basis of equalization, without co-relating that study to the reappraisals, the directives might well be considered unreasonable and arbitrary.”

The director assumes he could have used the ratio study, contrary to legislative mandate. (K. S. A. 79-503 [j]; and Northern Natural Gas Co. v. Williams, 208 Kan. 407, 493 P. 2d 568.)

It is submitted the common denominator by which all “agricultural investment” property in the state can be valued for purposes of equalization in the assessment process has been completely ignored. The income which “agricultural investment” property is capable of producing in terms of money serves as a satisfactory basis to equalize the valuation and assessment of such property throughout the state.

The valuation of property for tax purposes is an administrative function. (Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; and Mobil Oil Corporation v. McHenry, 200 Kan. 211, 436 P. 2d 982.) Equalization is a function in the process whereby property is valued. The standards prescribed by the legislature in delegating this function to the Director of Property Valuation and other assessing officials are set forth in K. S. A. 79-501 and 79-503.

In determining the validity of assessments of real property for taxation purposes, the essential question is whether the standards prescribed by 79-503, supra, have been considered and applied by taxing officials, or intentionally and grossly disregarded. (Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59.) Compliance with the provisions of the statute is mandatory upon assessing officials in assessing real property. This includes officials engaged in the process of equalization. (Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147.)

The income approach is one of the two basic methods used to determine the value of agricultural lands, and, as heretofore noted, *458must be used as one of the approaches in valuing “agricultural investment” property. (79-503, supra.)

The relationship of land income to land values was reported by the United States Department of Agriculture in Department Bulletin No. 1224, dated June 11, 1924. This Bulletin was the product of an extended study conducted in this country by the United States Department of Agriculture for a period of years prior thereto. Since that time the art of valuing agricultural lands by the income approach has become scientifically refined. For many decades in the department of agriculture at Kansas State University the subject of valuing agricultural lands by the income approach has been taught to students in economics and agriculture.

It is not the purpose of this opinion to write a treatise on the subject, but recent authoritative texts widely used in teaching the subject of farmland appraisal throughout the universities in this country are: Farm Appraisal (3rd Ed.) by William G. Murray, Professor of Economics, Iowa State College, published by the Iowa State College Press, Ames, Iowa, in 1954; Farm Appraisal and Valuation (5th Ed.) by William G. Murray, published by the Iowa State University Press, Ames, Iowa, in 1969; Agricultural Finance (5th Ed.) by Aaron G. Nelson and William G. Murray, published by the Iowa State University Press in 1967; Land Resource Economics by Raleigh Barlowe, published by Prentice-Hall, Inc., Englewood Cliffs, New Jersey, in 1958; and Rural Appraisals by Earl F. Crouse and Charles H. Everett, published by Prentice-Hall, Inc. in 1956.

These authoritative references provide sufficient guidelines for the equalization of farmland valuations, and indicate among other things “bench marks” used by agricultural financing institutions in the valuation of farm real estate. A “bench mark” is familiar to the Director of Property Valuation. (See Northern Natural Gas Co. v. Dwyer, supra.)

In the book entitled Rural Appraisals, supra, it is said:

“Income capitalization is the direct and primary approach to value. This ‘earnings value’ can be developed to a large extent from definite mathematical data. Earning capacity is the foundation on which the American Rural Appraisal System is built.
“The income capitalization approach to value is based upon the monetary returns that may reasonably be expected from the future operation of the property. The gross income is estimated and expenses are deducted. Typical operation and management are assumed. The net income is then capitalized to obtain the property value based upon income or earnings.
“Income is calculated on a rental basis if possible. This is on the theory *459that rent share is the portion of production accruing to ownership. It is simpler to estimate the rent share and owner’s expenses than to deduct all expenses, including operating costs, from total production.
“The Farm Credit Administration has been among the pioneers in the use of income capitalization in land appraising. They are compelled by law to make the earning power of the land a principal factor in appraisal. Appraisers for Federal Land Bank loans have for years used capitalized earnings as a check against their values, determined by the comparative process.
The income capitalization method of determining land values, when reduced to its simplest terms, is not a highly complicated process. . . .” (pp. 14, 15.) (Emphasis added.)

The valuation of agricultural land by the income approach is commonly expressed by the following equation:

v . _Annual Net Income a ue Capitalization Rate

The sales price approach is commonly expressed by the following equation:

Sales Value =

Annual Net Income Capitalization Rate

± Intangibles

The income capitalization method of appraisal is based largely upon the capacity of a farm to produce net income. In using this method it usually is assumed that the values of farms in an area will have a fairly consistent relation to the average annual net income they will produce over a period of years. The relation, or ratio, which farm values in an area may have to net incomes, is called the capitalization rate for the area. Sometimes this rate is the same as the percentage rate charged on farm mortgage loans in the area, but it may be considerably higher or lower than the loan rate.

To illustrate the gross discrimination resulting from the directives issued by the Director of Property Valuation in this case, a few specific examples taken from the directives set forth in the record will be sufficient. In District No. 7 (see appendix to court’s opinion) pertaining to “agricultural investment” properties for the year 1971 (Exhibit No. 5g — giving the average assessed value per acre per subclass and grade by county, after adjustment as ordered by the Director) the assessed valuation of Native Grass Land No. 1 was equalized in each of the ten counties of the district at $23 per acre. For Native Grass Land No. 2 it was equalized at $14 per acre.

Rasically, District No. 7 covers the Flint Hills of Kansas and consists largely of native grassland. The simplest case possible will be used for illustration — that is, unimproved Native Grass*460land No. 1, the best in the Flint Hills, which has nothing but a fence around it. Such native grassland will produce at most $6 per acre gross income for the landlord. Deducting ad valorem taxes which will approximate $1.20 per acre annually, the net return to the landowner is $4.80 per acre. Using the capitalization formula and a 6% capitalization rate (the legal rate of return authorized by K. S. A. 16-201) yields a value of $80 per acre. Applying the assessment rate of 30% to $80 per acre results in an assessed valuation of $24 per acre.

In comparing the assessed valuation determined by the income approach with the assessment equalization of $23 per acre it would appear the director’s order for District No. 7 with respect to Native Grass No. 1 was accurate. That is, it resulted in an assessed valuation varying less than “ten percent (10%) of such thirty percent (30%)” as required by K. S. A. 79-1439.

The foregoing assessment equalization should now be compared with that in District No. 8 for 1971. For this district the directive discloses that Cultivated Bottom Land No. 1 was equalized at $61 per acre; that Cultivated Bottom Land No. 2 was equalized at $46 per acre; that Upland Cultivated Land No. 1 was equalized at $39 per acre; and that Upland Cultivated Land No. 2 was equalized at $25 per acre.

Brown County in District No. 8, for example, whose Bottom Cultivated Land No. 1 was originally assessed at $71 per acre, Cultivated Bottom Land No. 2 at $57 per acre, Upland Cultivated Land No. 1 at $69 per acre, and Upland Cultivated Land No. 2 at $49 per acre, toas reduced in equalizing the assessments for these respective categories by 14%, 19%, 43% and 49% respectively. For Doniphan County the directives were similar, a substantial reduction in assessments was ordered by the Director.

The Farm Facts Bulletin issued by the Kansas State Board of Agriculture for the years 1968-1969, 1969-1970 and 1970-1971 (the same source material used by the Director to prepare his Exhibit No. 3 in the record) discloses the average corn yield per acre in Brown County, covering all types of upland and bottom land, was 82 bushels in 1968, 84 bushels in 1969 and 42 bushels in 1970. For Doniphan County the average corn yield per acre, covering all types of upland and bottom land, was 86 bushels in 1968, 86 bushels in 1969 and 60 bushels in 1970.

On January 4, 1971, the price of yellow corn in Topeka was $1.43 *461per bushel and for white com $1.88 per bushel. On February 10, 1971, the average price for yellow com in Topeka was $1.39 and for white com it was $2 per bushel. On March 1, 1971, white com went up to $2.10 per bushel.

Now, if calculations are made from the foregoing figures most favorable to the Director, considering the average corn yield of all upland and bottom land in Doniphan County for the past three years, and the median price of yellow corn between January 4 and February 10, 1971 (the directives were applicable to the year 1971 and valuations determined as of January 1, 1971), an acre of Doniphan County unimproved com land with nothing more than a fence around it (using the average com yield for the entire county) would yield $108.50 per acre gross return. (77 bushels per acre X $1-41 per bushel.)

The landlord’s share of the crops from productive agricultural land varies from one-third to one-half. The more highly productive land commands a greater crop share. Commonly in Doniphan County two-fifths of the crop delivered to the nearest market is paid as rent. The crop share to the landlord on the basis of two-fifths rent would yield $43.40 per acre gross return. Ad valorem taxes on the average land planted to com in Doniphan County annually would approximate $3.40 per acre, thus yielding a net return to the landlord of $40 per acre. Capitalized at 6% the income value of all cultivated land in Doniphan County planted to com (using the average com production for the county) would be $666 per acre. An assessment at the 30% level would require a $200 per acre average assessment. Note particularly that in Doniphan1County the Cultivated Bottom Land No. 1 was equalized at $61 per acre. The Cultivated Bottom Land No. 2 was equalized at $46 per acre. The Cultivated Upland No. 1 was equalized at $39 per acre, and the Cultivated Upland No. 2 was equalized at $25 per acre. The average production of com in Doniphan County for the preceding three years was produced from all of these categories of cultivated land in the county.

It is probable the Cultivated Bottom Land No. 1 in Doniphan County produced well over 100 bushels of corn per acre on the average and the Cultivated Upland No. 2 produced well under 77 bushels per acre for the three-year average.

The conclusion to be drawn is that all cultivated land in Doniphan County should have been assessed at least 300% higher, at a *462minimum, if its assessment is to be equalized with Native Grass Land No. 1 of the Flint Hills.

Similar situations are disclosed by the directives issued equalizing the irrigated and bottom lands of the Kaw Valley. In Douglas County Irrigated Land No. 1 was reduced from $84 per acre to $70 per acre as the assessment equalization value. This land commonly sells on the market between $800 to $1000 per acre.

Another glaring example of discrimination in the directives issued to the 96 counties is the variation in the dollar value assigned per acre for waste land in the various districts. In District No. 1 it is assigned $1 per acre; in District No. 2 it is assigned $2 per acre; in District No. 3 it is assigned $6 per acre; in District No. 4 it is assigned $10 per acre; in District No. 5 it is assigned $5 per acre; in District No. 6 it is assigned $7 per acre; in District No. 7 it is assigned $4 per acre; in District No. 8 it is assigned $3 per acre; and in District No. 9 it is assigned $6 per acre. The variation from the low valuation to the high in the various districts is 1000%.

If the assessed value of waste land is to be equalized over the entire state it would appear that the nominal dollar amount per acre should be the same over the entire state, because waste land by definition produces no economic return to the landowner.

The court by slight of hand rejects the gross and arbitrary discrimination above disclosed by saying that it does not vitiate or poison the entire plan of equalization adopted by the Director.

The court graciously extends to individually aggrieved taxpayers a sham escape hatch by citing various statutory remedies to which he may resort. Let us analyze them. First, the court cites K. S. A. 74-2438 as providing an appeal by an aggrieved taxpayer to the State Board of Tax Appeals from any finding, ruling, order, decision or other final action of the Director. But the discrimination present here is approved by the court as inevitable, and insufficient to vitiate the equalization plan of the Director. In any such action the Director, who represents the Board of Tax Appeals in a lawsuit (K. S. A. 74-2426; and see Northern Natural Gas Co. v. Dwyer, supra), has a complete defense — the decision of the court herein which establishes a precedent. Second, the court cites K. S. A. 79-1413a which it says furnishes another safeguard — providing that when on complaint of any taxpayer to the State Board of Tax Appeals, it is made to appear that the assessment of taxable real estate in any county is not in compliance with the law, and that *463the public interest will be promoted by reappraisal, the Board shall order a reappraisal of all or a part of the taxable property in the district. Here again the Director has relied upon the reappraisals in the 96 counties to which his directives have been issued, proclaiming the validity of the reappraisals, and equalizing within each of the 9 arbitrary districts upon the median of such reappraisals within each district. The court’s approval of the Director’s plan forecloses any relief a taxpayer may have had under this statute. Third, the court cites K. S. A. 79-2005 (now K. S. A. 1971 Supp. 79-2005) pursuant to which a taxpayer may pay his taxes under protest, and then bring suit for the recovery thereof within the time fixed by the statute. Relief to an individual taxpayer on the discrimination here disclosed as between one county and another in a protest action has been foreclosed by McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 2d 243. Furthermore, relief by way of the injunctive route under K. S. A. 60-907 (a) on similar facts has been foreclosed in Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5.

It follows that under the present state of Kansas law the farmer or owner of “agricultural investment” real property in the state is defenseless where gross discrimination amounting to constructive fraud is shown to exist. Both the director and the court in its opinion admit discrimination exists between the arbitrarily established districts.

Good faith alone by taxing officials is not enough if assessments are in fact discriminatory. (Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117.)

The right to equal treatment in matters of taxation is also a federal right. The constitutional requirement of equality under the United States Constitution is not satisfied if a state does not itself remove the discrimination. (Hillsborough v. Cromwell, 326 U. S. 620, 623, 90 L. Ed. 358, 66 S. Ct. 445; and Northern Natural Gas Co. v. Dwyer, supra.)

It is respectfully submitted the equalization orders of the Director of Property Valuation should be set aside and his plan for equalization vitiated.