concurring and dissenting. I concur in Syl. ¶ 1 and the corresponding portion of the opinion relating to exhaustion of administrative remedies. I dissent from that portion of the opinion relating to the scope of review of administrative orders which discards the doctrine of separation of powers.
In considering the scope of review question we should not forget the nature of the order of the Kansas Commission on Civil Rights (KCCR) with which we are dealing in this particular case. The commission found discrimination, ordered the teacher reassigned and forbade the further transfer of the teacher and his wife without commission approval. There was no dollar penalty or judgment assessed. The school district was merely ordered to correct the discriminatory practice. Such an order was in the nature of administrative action designed to carry out the legislative policy against discrimination assigned to the KCCR for administrative aotion.
The doctrine of separation of powers has long been a part of the law of Kansas. If this doctrine is no longer in tune with the changing law of Kansas it should be discarded in appeals from the orders of all administrative agencies. It should not be discarded piecemeal. If this court is to enlarge the scope of review of orders of administrative commissions and agencies it should be based on the nature of the order being reviewed and not on the overall nature of the functions of a particular administrative agency.
Under the doctrine of separation of powers it has previously been held that the legislature may not impose upon the judiciary the function of trying an appeal de novo (in the true legal sense) on review of orders of administrative agencies. (See Jenkins v. Newman Memorial County Hospital, 212 Kan. 92, 510 P. 2d 132, and cases in support thereof cited at page 97 of the opinion.) This court now disregards the doctrine and accepts the imposition of a jury trial de novo when reviewing orders of the KCCR.
The justification for such an abrupt departure from past precedent seems to be based entirely on the singular decision, Gawith v. Gage’s Plumbing & Heating Co., Inc., 206 Kan. 169, 476 P. 2d 966. Gawith deals with the scope of review on appeal from a director’s award in a workmen’s compensation case. It hardly needs mentioning that the functions of the workmen’s compensation director, determining liability under that act and awarding thousands of dollars in compensation for disabilities incurred by a workman on the job, are completely different from the functions of the KCCR. The *238functions of the KCCR are directed toward minimizing unlawful discrimination against individuals in employment relations, public accommodations and in housing.
The scope of review of administrative orders as historically applied was iterated in the Neioman case. Historically the review has been limited in Kansas to deciding (1) whether the administrative agency acted fraudulently, arbitrarily or capriciously, (2) whether its order is within the scope of its lawful authority, and (3) whether its order is supported by substantial competent evidence. It is generally understood that administrative agencies are created to dispose of the great mass of business in a particular area of legislative concern by informal and formal administrative process with judicial reconsideration available for the occasional case which is important enough to one of the parties to warrant the special values of judicial treatment. (Jaffe, Judicial Control of Administrative Action, p. 103.)
As I understand the present holding the district court is now being required to grant the party appealing from the administrative order a new trial. It may hear additional evidence and on request must afford the parties a jury trial on all issues raised in the application for rehearing filed with the KCCR. I assume the jury function will be limited to the determination of factual issues, whatever they may be.
It is true the scope of review statute in the present case (K. S. A. 44-1011) directs that appeals from orders of the KCCR be heard by the district court, that additional evidence may be introduced, that either party be granted a jury trial on request and that the trial be ele novo. However, these legislative provisions are not so different from provisions for review of certain other administrative agencies in Kansas which have been restricted by this court to the usual three-fold scope of review.
On suspension or revocation of a driver’s license by the Motor Vehicle Department of the State Highway Commission the order of suspension or revocation is subject to review in the district court. K. S. A. 8-259 (a) in pertinent part provides:
“. . . The trial on appeal as herein provided for shall be a trial de now and the licensee shall have the right of trial by jury upon demand therefor:
In Lira v. Billings, 196 Kan. 726, 414 P. 2d 13, the so-called trial de novo is limited by this court ¡to “the reasonableness of petitioner’s failure to submit to such test.”
*239The State Board of Health is authorized to grant and revoke licenses for operating nursing homes. Orders of that board are subject to review in the district court. K. S. A. 65-504 (now 1974 Supp.) in pertinent part provides:
“. . . Such an appeal shall be tried de novo and the court shall receive and consider any pertinent evidence, oral or documentary, concerning the order of the board from which the appeal is taken. . . .”
In Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239, this review statute was considered by this court, the doctrine of separation of powers was recognized and review of the administrative order was limited to tire traditional three areas of concern previously mentioned.
Other than Gawith v. Gage’s Plumbing & Heating Co., Inc., supra, (the workmens compensation case) I can find no Kansas cases which have enlarged the scope of review on appeal from orders of administrative agencies and commissions. In all cases the findings of the commission or agency are held to be conclusive on the reviewing court if supported by substantial competent evidence unless the agency has acted fraudulently, arbitrarily or capriciously or unless the order is outside the scope of the agency’s lawful authority.
See Union Pac. Rld. Co. v. State Corporation Commission, 165 Kan. 368, 194 P. 2d 939; Lira v. Billings, supra; Bodine v. City of Overland Park, 198 Kan. 371, Syl. ¶ 1, 424 P. 2d 513; Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P. 2d 828, 28 A. L. R. 3rd 472; Rydd v. State Board of Health, supra; Lauber v. Firemen’s Relief Association, 202 Kan. 564, Syl. ¶ 3, 451 P. 2d 488; Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, Syl. ¶ 1, 479 P. 2d 860, 403 U. S. 914, 29 L. Ed. 2d 692, 91 S. Ct. 2240; Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P. 2d 590; Thompson v. Amis, 208 Kan. 658, 661, 493 P. 2d 1259, 409 U. S. 847, 34 L. Ed. 2d 88, 93 S. Ct. 53; Neeley v. Board of Trustees, Policemens & Firemen’s Retirement System, 212 Kan. 137, Syl. ¶ 2, 510 P. 2d 160; Copeland v. Kansas State Board of Examiners in Optometry, 213 Kan. 741, 742, 518 P. 2d 377. The majority opinion acknowledges and approves the holdings in these cases.
The rules stated by the majority to determine whether an administrative agency has performed a quasi-judicial function or an administrative function are easy to verbalize but hard to apply. All *240administrative agencies and commissions have some functions which may be classified quasi-judicial and others which may be classified administrative. For instance, the KCCR has powers and duties under K. S. A. 1974 Supp. 44-1004 which may be classified as administrative. It may adopt rules and regulations to carry out the provisions of the act. It may apply to the district court of the county where the respondent resides seeking enforcement of a conciliation agreement. It prepares and carries on a comprehensive educational program designed for use in the public schools. It may endeavor by conciliation and persuasion to eliminate discrimination. It may accept contributions and enlist the aid of outside organizations to prevent discrimination, and it may issue publications on its investigations and research in order to promote goodwill and minimize discrimination.
This court’s opinion is overly broad in holding that the KCCR exercises a judicial function in determining whether specific conduct of a respondent constitutes an unlawful discriminatory practice. The act permits an investigation, informal conference and a conciliation agreement. If the commissioner after an investigation determines that probable cause exists for crediting the, allegations of the complainant an informal conference may be held and the discriminatory practice complained of may be eliminated by conciliation. In such case the commission acts more in the nature of an administrative agency than a quasi-judicial agency. A judicial inquiry investigates, declares and enforces liabilities yet the KCCR must go to the district court to enforce a conciliation agreement. (K. S. A. 1974 Supp. 44-1004 [7].) In the present case conciliation was not possible so the KCCR held a formal hearing and issued its order but that does not change the nature of a proceeding by the commission which ends in a conciliation.
It is impossible for me to ascertain what there is about the order of the KCCR in this case which sets it apart from all other agencies and commissions of the state, except the Workmen’s Compensation Director, and which justifies a trial de novo in the true sense. Other agencies do investigate present and past facts, they make decisions based upon such investigations, and their actions may be in the nature of a judicial inquiry. For instance, the State Board of Health investigates and inquires in order to determine whether present facts justify the issuance or revocation of a license to operate a nursing home. Yet such determination when made is subjected to a limited scope of review reserved for “purely” administrative agen*241cies. (See Rydd v. State Board of Health, supra.) The same is true of the various other agencies that grant certificates of public convenience and necessity to carriers, that issue driver’s licenses, that determine public employee’s retirement benefits, that determine welfare payments and that determine entitlement to relief funds. In all of these cases the ultimate decision by the agency is based upon an inquiry judicial in nature. The administrative agency has investigated facts, past and present, has declared the rights of the person, and then attempts to enforce the declared liabilities.
The present opinion of the court is also inconsistent with the long standing rule that a party appearing before an administrative body cannot produce his evidence piecemeal by producing part of his evidence before the administrative agency and then produce the balance on judicial review. (See Strader v. Kansas Public Employees Retirement System, supra.) By extending the scope of review in the district court to a new trial before a jury on all issues raised on application for rehearing and permitting additional evidence the rule in Strader, to which this court pays lip service, is no longer the law.
This court states that the record discloses the district court “did not limit its review to determining whether the commission’s findings were supported by substantial evidence, but substituted its own judgment for that of the commission on what the evidence proved.” This court then determines that the district court “did not find any discrimination on either grounds”, and with this negative finding states “unless the trial court arbitrarily disregarded undisputed evidence” its decision must stand. It would serve no useful purpose to set forth all the evidence in this case in this dissent. Suffice it to say the majority opinion acknowledges that the district court’s “findings of evidentiary fact were not greatly at odds from those of the commission.” Assuming this to be true the district court would have been authorized to find the decision of the commission was arbitrary and unreasonable. Such a determination would be within the scope of review historically provided in appeals from administrative agencies. In fact this was the basis for the district court’s decision as it appears in the journal entry of judgment prepared by the attorney for the school district and signed by the judge.
The majority opinion recognizes that some distinction must be made between the functions of the RCCR and those of other administrative agencies whose orders are subjected to a limited scope *242of review. It attempts to do so by likening the functions of KCCR to those of the Workmens Compensation Director. In my opinion this is like comparing apples to oranges. The functions of these two agencies are entirely dissimilar and in my opinion they make strange bedfellows.
One final matter deserves comment. The majority opinion seeks further support on the scope of review question by citing Union Quarries, Inc. v. Board of County Commissioners, 206 Kan. 268, 478 P. 2d 181. That is an action seeking a declaratory judgment on property rights and injunctive relief against interference with the property. It was not an appeal from an administrative agency decision and no scope of review question was presented in that case. It can have no application to our present case.
There is no sound basis stated in the majority opinion for the singular treatment of appeals from orders of the KCCR as compared to the treatment of all other appeals from the orders of other administrative agencies in Kansas.' The opinion will add confusion to the law regarding scope of review and it will result in channeling a great mass of the business of the KCCR through the district courts of this state. The effect of the majority opinion will be to remove the power and authority to minimize discrimination from the KCCR and place the ultimate power and authority in the various district courts of this state. Discrimination will no longer be dealt with on a statewide basis. Attempts to minimize discrimination will be finally handled and determined by twenty-nine separate district courts in this state.
Therefore I respectfully dissent from that portion of the court’s opinion covering the scope of review question.