concurring specially.
If this were an administrative agency governed by the Administrative Agencies Practice Act, ch. 28-32, NDCC, I have no doubt we would conclude that the record before the State Board of Equalization was inadequate to permit any meaningful judicial review under any standard of scrutiny. But, as the majority opinion chronicles, the decision in Soo Line Railroad Co. v. State, 286 N.W.2d 459 (N.D.1979), wherein we concluded that the State Board of Equalization was an administrative agency as de*514fined by § 28-32-01(1), NDCC, was nullified by the 1981 North Dakota Session Laws ch. 337, § 1, which specifically excluded the Board from the definition of an administrative agency. We are therefore left with a statute, § 57-08-03, NDCC, which we have previously construed to provide for judicial review but no statute which requires a record upon which to base such a review. Concededly, the statute is couched in language which requires that the review be in the nature of an independent action rather than an appeal from the decision of the Board, but the doctrine of separation of powers apparently does not permit the court to try the action as it would other original actions brought in the court.
Because the court must determine whether a board has acted arbitrarily, capriciously or unreasonably on the basis of the evidence before the board and not the court, some record of the proceedings before the board is necessary. Thus we have concluded that even in those instances in which the statute permits a “de novo” appeal from a decision of a board of county commissioners, the district court is “permitted to continue to hear testimony and receive exhibits, but that evidence must be viewed in light of the findings, if any, the decision, and the reasons given therefor by the boards of county commissioners.” Shaw v. Burleigh County, 286 N.W.2d 792, 796 (N.D.1979). In so .concluding we observed:
“From an evolutionary standpoint, we have allowed the district court to hear testimony, receive exhibits, and make a decision as it would in any trial, without regard to the findings and decisions of the Board of County Commissioners. [Citation omitted.] The practical reason for allowing the district court to proceed in this manner is that there is no complete record of the proceedings before the Board. The proceedings at the county agency level are not transcribed. [Citation omitted.] However, if the Legislature intended to provide that the court should substitute its judgment for that of the Board, totally disregarding the Board’s findings, then such intent cannot be carried out. The Legislature may not constitutionally delegate to the judiciary duties which are essentially administrative in character.” Id.
Here there is no doubt that the Legislature did not intend the courts to substitute their judgment for that of the Board, for § 57-08-03 specifies that the plaintiff in an action brought under that section is entitled to a refund if the facts show “substantial injustice in the determination by the state board of equalization_” The procedure is not totally unlike that crafted by teachers who claim they were wrongfully denied renewal of their teaching contracts. See, e.g., Belcourt v. Fort Totten Public School District No. 30, 454 N.W.2d 703 (N.D.1990); Dobervich v. Central Cass Public School District, 302 N.W.2d 745 (N.D.1981). But in those instances there was considerable “evidence” adduced before the board. Here there was little if any evidence presented to the State Board of Equalization other than the Tax Commissioner’s tentative valuation as provided in § 57-06-11, NDCC, and the observation of a member of the Board that Phillips was under intense economic pressure from a hostile takeover bid.
That record, compared with that before the county board of equalization in Riverview Place, Inc. v. Cass County, 448 N.W.2d 635 (N.D.1989), reveals substantial differences which exist in proceeding before the various boards and the record, if any, resulting therefrom. It raises a question in my mind as to whether or not we ought to adhere to a similar standard of review, in both instances, i.e., whether or not the action was arbitrary, capricious, or unreasonable. Perhaps we ought to conclude that a meager or nonexistent record, similar to the one in this instance, will necessarily result in a conclusion that the action was arbitrary, capricious, or unreasonable. Or, we ought to recognize, in some fashion, that the Legislature did not intend the same standard of review for those cases in which it provided for an appeal de novo, such as that specified by § 11-11-43, NDCC, prior to its amendment *515in 1989,1 and the “review” in this instance wherein the Legislature specified not an appeal but a separate action by the utility which must allege and prove “substantial injustice” in order that it be entitled to a refund of the taxes paid. That section, § 57-08-03, when read in conjunction with §§ 57-06-11 and 57-06-15, providing for a tentative valuation by the tax commissioner, appears to require a conclusion that the Legislature intended the valuation to be presumptively2 correct notwithstanding the evidence or lack thereof before the Board, and only when the utility can prove in district court by independent evidence that the assessment created a “substantial injustice” will it be entitled to judicial relief. Such a conclusion recognizes the differences in the procedure prescribed by the Legislature for judicial action as well as the apparent difference it intended in the scrutiny it desired from that judicial review by appeal on the one hand and judicial intervention by way of a separate action on the other hand.
Because I believe we should recognize the difference and because, on the record before us, I cannot discern that Koch bore its burden of proving a substantial injustice at the trial court by independent evidence, I concur in the result. Were it not for this difference I would favor a remand to the Board for further proceedings wherein a record adequate to permit review should be made. I believe it is misleading and deceptive for the legislative and judicial branches to pretend there is a meaningful review of the Board’s action on the basis of the record before us. Only by construing the statutes to place the total burden on Koch to rebut the presumptive validity of the Tax Commissioner’s tentative assessment and the presumption that Phillips sold its property to Koch at less than market value am I able to agree to affirm this result. I cannot agree or disagree that on the record before us the Board did not act arbitrarily, capriciously or unreasonably, for the record does not permit a review which could justify either conclusion. If the courts are to review these actions, and it is not necessary as a matter of constitutional right that they be empowered to do so, it should be a meaningful review recognizing the limitations thereon by the doctrine of separation of powers. Anything less than a meaningful review gives a false sense of adherence to oúr system of checks and balances which makes the judicial branch little more than an apologist for the actions of the executive branch of government, on the one hand, or a usurper of powers on the other. Neither is a desirable result.
. Section 28-34-01, NDCC, enacted by the Legislative Assembly in 1989, and the amendment of other statutes deleting the provision for a "de novo” review apply only to “local governing bodies” which are defined to include any officer, board, commission, resource or conservation district or other political subdivision. Because the State Board of Equalization is a state agency, § 28-34-01 apparently does not apply.
. The conclusion that the Tax Commissioner's tentative valuation and the valuation placed upon the property by the Board are presumptively correct arises not only from the "substantial injustice” language of § 57-08-03, but also from the provisions of § 57-06-15, which require that only when the Board increases the tentative assessment must it give notice to the utility of any such proposed increase. Although the valuation and tentative valuation are only for "the guidance of the state board of equalization in assessing such property” and are to "be considered merely findings of fact of the executive officer of the board” insofar as the board is concerned, the opinion of the majority gives them a much greater role insofar as the utility is concerned, for if they have no presumptive validity there is only the rankest hearsay evidence that Phillips was under economic stress to overcome the price paid by Koch for the property in question. Moreover, cost-less-depreciation, or business-as-usual, is apparently the only basis for the Tax Commissioner’s evaluation and assessment. It ignores Koch’s purchase price. The Board obviously reached a compromise approximately midway between the two. In view of the fact the utility can prevail only if the determination by the Board creates a "substantial injustice,” it appears that the statute does not require preciseness in valuation and assessment. It only prohibits "substantial injustice.”