(dissenting).
The Wyoming Constitution and statutes guarantee that all property in the state shall be assessed and taxed uniformly and equally-
Article 15, §11, Wyoming Constitution, declares that all property shall be “uniformly assessed” for taxation. It is made the duty of the legislature to prescribe such regulations as shall secure a “just valuation” of all property. Article 1, § 28, Wyoming Constitution, provides that all taxation shall be “equal and uniform.”
With respect to railroad property, § 39-259, W.S.1957, directs the State Board of Equalization, from all the information it is able to obtain, to find the true value of all railroad property and to assess the same “on the same basis” as other property.
If railroad property is not assessed on the same basis as other property, after a determination of its true value, it is not legally assessed. In the record before us, there is an unequivocal and often repeated admission by the Board of Equalization that property generally in Wyoming, aside from mineral and railroad properties, is assessed at a level of 20 to 25 percent of its fair value.
The taxpayer in this case offered one kind of evidence after another indicating its assessment exceeds 25 percent of its true or fair value. For example, this evidence shows that if the assessment on appellant’s property in Wyoming, of $20,719,-660.00, is assumed to be 21 percent of its value, then the value of plaintiff’s property *501in Wyoming would be $98,665,048. Since, as the company claims, only 6.3 percent of Burlington’s entire value is located in Wyoming, the value of the whole Burlington system would have to he $1,566,111,873 if Wyoming’s assessment is correct. Or, if the assessed valuation in Wyoming is assumed to be at 25 percent, the indicated system value would still be in excess of one billion dollars.
Such figures were described by the company’s witnesses as clearly unrealistic; and the witnesses maintained such figures exceeded any actual figures for the value of the railroad, unless the valuation were based on what it would cost to reproduce the entire Burlington system new at 1962 price levels. This testimony was not challenged or contradicted.
I am not suggesting that the testimony of Burlington, extensive as it was, should be considered as binding or conclusive in this case. I do say, however, that it was the duty of the Board, under § 39-259, to have “all the information it is able to obtain.” If it had before it insufficient information upon which it could reasonably determine the true value of plaintiff’s property in Wyoming, its action should not be upheld. See School District No. 9, Fremont County, v. District Boundary Board In and For Fremont County, Wyo., 351 P.2d 106, 116.
As indicated in the School District No. 9 case, it is not necessary for a litigant to show that a board had some sinister intention in order to obtain relief from the board’s action. Admittedly, members of the Board of Equalization are individually honest and sincere and conscientious men. It cannot be said the Board has acted in bad faith; but its assessment procedure leaves something to be desired as far as legality is concerned.
The director of the Board’s ad valorem tax department testified the Board did not start with true value and did not at any time try to determine true value. He worked out what he considered was proper “assessed valuation.” This was done by taking the Burlington’s annual tax return and changing the figures thereon to represent what he thought was an equalized value. Admittedly the director gave no consideration to the earnings of the Burlington nor to its stock and debt value.
There is a total absence of evidence to show that the director had any information or any basis for finding the figures submitted by Burlington to be erroneous, or for making the changes which he made. If there was indeed no basis for his changes, then his action in making them was without sufficient information and therefore arbitrary according to the rule adopted in School District No. 9, Fremont County v. District Boundary Board In and For Fremont County, supra.
Most states, the evidence in this case establishes, have adopted a unit system of valuing railroad property for taxation purposes. It would seem to be a just and equitable system. However, it is conceded the Board of Equalization is not bound to accept that system or any other particular system. I would say, nevertheless, it should have some system which is capable of being described and explained when a taxpayer makes the kind of showing of inequality which plaintiff has made in this case.
It has come to our attention several times that buildings have been valued and assessed by application of a formula known as the Boeckh System. There is, however, no indication in the record before us in this case that any comparable formula or system was used for the valuing of railroad property.
Instead of coming forward with evidence showing a clear and comprehensible method of valuing railroad property, the Board of Equalization has shown only that for all intents and purposes it has taken figures from nowhere and used them as the assessed value of various categories of plaintiff’s property. It now asks us to uphold this action on the ground that there is an absence of proof to show that the Board meant to be arbitrary or that it acted in bad faith.
One of the Board members confirmed what the director testified to with respect *502to the lack of any system, formula or basis for determining valuation. He also indicated there was no “true value” determination; that the assessment figure arrived at was “roughly presumed” to represent approximately 25 percent of the value of the railroad in Wyoming. This member further verified that “very little” weight, if any, was given to the value of stocks and bonds or to earnings of the company. Neither of the witnesses attempted to explain how the assessment was actually made, nor what basis, if any, there would be for considering it equal to other assessments.
Section 39-258, W.S.1957, provides for returns from railroads to the Board of Equalization, which returns are to include showings of the market value of the capital stock, or if no market value then the true value; the company’s debt value; and its earnings. The section then specifies that all this information shall be “taken into consideration” by the Board in fixing value. Those testifying on behalf of the Board made it apparent that no meaningful consideration, if any at all, was given to such factors as stock value, debts, and earnings. The explanation is that the stock is not actively traded.
The Board is, of course, not precluded from giving weight to the fact that stock is not actively traded, but the assessment procedures should be such that the Board can show clearly, when challenged in that regard, that it has investigated the stock value, the debt value, and the earnings of an assessed railroad; and that it has given due and proper consideration under the circumstances of the particular case to these factors.
In J. Ray McDermott & Co., Inc. v. Hudson, Wyo., 370 P.2d 364, 370, we condemned the action of the Board of Equalization as arbitrary when it failed to consider a necessary and important factor in determining the value of oil for gross-product tax purposes. In the case now under consideration, the factors, ignored and not substantially or reasonably considered, are factors which the legislature itself has prescribed as factors to be considered and used in the valuing of railroad property.
These factors are: True value; the value of the capital stock; the company’s debt value; and its earnings. It is not for us to say, or even for the Board to say, whether consideration should be given to these items. The law itself requires this to be done. An attempted assessment without giving due and proper consideration to such factors is not only arbitrary but illegal as well.
If the Board were able to show and did show that it had used factors which would produce an equivalent result, we could be more tolerant of departures from strict compliance with the statutes. But this has not been done. It has not shown, for example, that actual costs less depreciation and obsolescence were used as a factor; it has not shown that any substitute for the statutory factor of earnings was used. In short, there is no showing that any factors, system or method of any kind were employed in the valuing and assessing of plaintiff’s property.
I recognize, as already indicated, that the-Board is not expected to accept without question figures submitted by the company; it need not accept the unit method of valuing railroad property, as proposed by plaintiff; and the court should not under any circumstances substitute its judgment for that of the Board in the matter of valuing and assessing property.
In my opinion, however, we should do-what was done in J. Ray McDermott & Co., Inc. v. Hudson, supra. We should reverse the case with instructions that the Board proceed with revaluation of plaintiff’s property in conformity with the requirements; of law.