(dissenting). I cannot concur in the majority opinion.
Judgment was entered on a jury’s verdict. Defendant’s motion for new trial was granted, the trial court assigning as his reasons therefor that he had committed error in admitting Exhibits A and B.
The question of this error is all that is now before this court. In Browne v. Bassett, 191 Okla. 22, 126 P. 2d 705, we said:
“It is the duty of the trial court upon request of a litigant to state its reasons for sustaining a motion for new trial, and on appeal from an order granting a new trial this court will confine its review to the reasons so assigned by the court.”
I believe that Exhibits A and B were records within the purview of 12 O. S. 1941 §486, in that they were such records as were required by law to be made or kept by the State Board of Health. I further believe that the majority opinion is in conflict with our *125opinion in Town of Sentinel v. Riley, 171 Okla. 533, 43 P. 2d 742, and I do not believe that this court intends to strike down the holding or discard the reasoning of that case.
Exhibit A was an inter-office communication made to the Chief Engineer of the Bureau of Sanitary Engineering, who was the same officer to whom the questioned instrument was sent in the Town of Sentinel case. It was made by the duly authorized State Chemist in performance of his official duties, just as in the Town of Sentinel case.
Therein we held:
“Reports of the analysis of water made and kept in office of State Board of Health, State of Oklahoma, may be admitted in evidence as coming within the rule admitting official registers or records kept by persons in public office in which they are required, either by statute or by the nature of their office, to write down particular transactions occurring in the course of their public duties or under their personal observation.”
In the Town of Sentinel case we outlined in some detail the powers and statutory duties of the State Board of Health and we held that the reports on file covering water examinations of the vicinity concerned are records kept in a public office, used for public business and that they could properly be admitted in evidence. The same reasons exist as to Exhibit A as existed for sustaining admissibility of the report in the above mentioned case.
The opinion in the instant case holds that Exhibit B is not admissible under Kansas City Life Ins. Co. v. Meador, 186 Okla. 397, 98 P. 2d 20, wherein the Insurance Commissioner issued a certificate reciting that he had investigated a certain policy and could find no such rider as plaintiff therein contended for, and attached numerous letters and stated his conclusions that there was no such rider. It was merely a communication to a member of the public. This court held that the certificate involved in that case was not admissible under section 486 or any other section.
But Kansas City Life Ins. Co. v. Meador, supra, is distinguishable from this case. As held by this court, the questioned certificate was not such a report as is required to be kept in the office of the Insurance Commissioner of Oklahoma, and hence was not a public record. But in case at bar, 63 O. S. 1941 §619 required the State Board of Health to investigate and report upon alí matters relating to water supplies and sewerage and pollution of the waters of the state and to make such recommendations in relation thereto as it may deem wise and proper. And under section 614 of the Act, if the Board shall find that any of the waters of the state have been polluted it has authority to make an order requiring such pollution to cease or make such disposition of the sewerage as in its judgment may be necessary to prevent further pollution.
Exhibit B is more than a letter. It is a report and recommendation by this state agency as to what is necessary to be done in the way of improvement of the sewerage plant. If we look at its substance and not its form, it is a recommendation or order authorized by section 614. Under the Act this agency of the state had authority and it was its official duty to make its investigation and to make its findings and recommendations or orders set forth in both Exhibits A and B.
Since the Board has authority to make its investigation, surely its findings and orders are necessarily to be kept by it. 63 O. S. 1941 §4 defines the duties of the State Board of Health. Among its duties the Board is required to make sanitary investigations and inquiries relative to disease; to advise the state and all local governments in all hygienic matters and to make a report to' the Governor twenty days prior to each regular and special session of the Legislature upon the sanitary condition, prospect and needs of the state, and it is required that the Governor lay the report before the Legislature at its next ensuing term.
*126It is contemplated that the records of such investigations of sanitary conditions shall be kept, otherwise no report of intelligence or value could be prepared for future reference to the Governor, or Legislature, as required. Town of Sentinel v. Riley, supra. In that case we observed that “The office (Board of Health) could hardly function and make reports to the Governor for the Legislature without keeping records of its examinations, reports, and proceedings.”
Objection is made that Exhibit B is based on hearsay. An examination of the instrument establishes that it is based on the files of the Board itself and the reports of its representatives. It also reveals that such reports, findings and resultant recommendations by the Department were furnished to the City of Bethany. As a result of the facts recited the city was directed to provide an adequate sewerage disposal plant. Although couched in polite language it nevertheless amounted to a recommendation or order such as the Board of Health was authorized to make under the statute. 63 O. S. 1941 §614.
Exhibits A and B were properly admitted under authority of 12 O. S. 1941 §§486 and 502, which provide:
“Sec. 486. Copies of all papers authorized or required by law to be filed or recorded in any public office, or of any record required by law to be made or kept in any such office, duly certified by the officer having the legal custody of such paper or record, under his official seal, if he have one, may be received in evidence with the same effect as the original when such original is not in the possession or under the control of the party desiring to use the same.”
“Sec. 502. The books and records required by law to be kept by any county judge, county clerk, county treasurer, register of deeds, clerk of the district court, justice of the peace, police judge or other public officers, may be received in evidence in any court; and when any such record is of a paper, document, or instrument authorized to be recorded, and the original thereof is not in the possession or under the control of the party desiring to use the same, such record shall have the same effect as the original; but no public officer herein named or other custodian of public records, shall be compelled to attend any court, officer or tribunal sitting more than one mile from his office with any record or records belonging to his office or in his custody as such officer.”
The exhibits were competent under the pleadings in this case. In plaintiffs’ ’first amended petition it was alleged:
“ . . . That, although, the sewage system installed by the defendant may have been adequate to meet all requirements at the time the same was installed, it has long since ceased to meet said requirements and plaintiffs further allege that for more than five years prior to the filing of this action, the defendant has had notice of the inadequacy of the sewage disposal plant, but have failed, refused, and neglected to execute such measures as were necessary to remove the nuisance.”
Issue was joined and, under this allegation, the exhibits were competent to show that defendant had notice of the conditions created and existing by its operation of the sewerage disposal plant. Advice from the State Board, having authority to investigate and having made the investigation, was competent to show that defendant had knowledge of the condition complained of by plaintiffs.
The majority opinion bases is rejection of Exhibit B on our decision in Hadley v. Ross, 195 Okla. 89, 154 P. 2d 939. I do not believe that the opinion just cited is in conflict with my views above expressed. Judgment in the last mentioned case was reversed because a report of a highway patrolman on a motor vehicle accident was admitted in evidence, in a damage suit, over objections. It was conceded that the officer was not present at the time of the accident, and we held his entire report was hearsay and based on information conveyed to him after the *127accident had occurred. We held that if the officer who made the report had been present at the time of the trial he could not have testified to the matters contained in the report because he had no personal knowledge thereof. In the case before us Exhibit B is based on the matters and things contained in the official files of the state office that had jurisdiction to act in the issuance of the recommendation or order designated as Exhibit B.
In Hadley v. Ross, supra, we said:
“Ordinarily public officials whose duty it is to keep records for the pub-lice good make up such records from day to day and they disclose occurrences as they actually happen, and the public official, or some of his deputies, have or had personal knowledge of the facts recorded. In this manner events known by public officials to have transpired are preserved by rec-ordation. Obviously it would be extremely difficult, if not impossible, to bring to court as witnesses all those public officials or deputies who have personal knowledge of the relevant and material facts sought to be proved by records kept by them. The exception to the hearsay rule in this regard is justified because of convenience and necessity, in view of the fact that it is well recognized that officials perform their duties under oath without prejudice and bias, impelled only by official responsibility and duty. It must also be presumed that their duties are performed efficiently and accurately; their records are therefore considered trustworthy. The exception, however, does not make admissible evidence shown by public records that would not be competent if those who made the records, and who had personal knowledge of the facts disclosed thereby, were present and testifying.”
In my opinion, the State Health Commissioner, if present, could have testified from his records to all things contained in Exhibit B. He could have testified that his department had made an inspection of the sewerage disposal plant as it was authorized to do under 63 O. S. 1941 §§614 and 619; that an analysis of the water had been made or attempted as authorized by section 7 and under authority of Town of Sentinel v. Riley, supra; and that he had submitted reports to the city together with his recommendations as authorized by section 614. All these matters were reflected by the files of this administrative board. The report, Exhibit B, was not hearsay. It was factual as to what the official files reflected and it was such a report and recommendation as he was authorized by statute to make. Exhibit B was not at all similar to the report of the patrolman in the case of Hadley v. Ross, supra.
The rule governing the admissibility of these exhibits, in my opinion, is correctly stated in 20 Am. Jur., “Evidence”, §1023, as follows:
“It is a well-recognized general rule that official records and written reports of a public nature which public officers are required, either by statute or by the nature of the duties of their office, to keep of transactions occurring in the course of their public service, made either by the officers themselves or under their supervision, are ordinarily admissible in evidence as proof of the facts recorded therein, so far as they are relevant and material to the particular inquiry, although the entries have not been testified to by the persons who actually made them and although they have, therefore, not been offered for cross-examination.”
In my opinion, the trial court erred in granting a new trial for the reasons assigned by that court.
For the foregoing reasons, I respectfully dissent.