concurring in part and dissenting in part: I concur in the holding of the court that the district court’s consideration of issues asserted by Northern as to the statewide assessment of its property is a nullity. That specific issue was advanced by the utility in Northern Natural Gas Co. v. Bender, 208 Kan. 135, 490 P. 2d 399, and determined adversely to its contention. (See Syl. ¶ 1, quoted in the court’s opinion.) Rut that is the extent to which I concur.
The issue presented concerns only Northern’s claim that the 1969 assessments of real property in Rice County resulted in invidious discrimination. However, it is clear to me that, from the record and the law as heretofore applied by this court, this tax protest action has been decided on its merits through consideration of issues not presented to this court on appeal. The court proceeds to review the entire record and quote and weigh the testimony of witnesses, which was discredited and found to be unreliable by the trier of facts — the district court. With the appeal in the posture stated, I must respectfully, although regrettably, premise my analysis of this case with a statement of the issues presented for appellate review, and which were clearly stated in oral argument by both parties.
The issues in this case were framed below by the pleadings and the pretrial order. One of the issues of fact to be determined, as stated in the pretrial order, was whether,
“. . . the assessment made of Northern Natural’s property assessed at around the area of 30 per cent of actual value, while assessments of other property . . . [was] so much lower, that disproportion shows the assessment of Northern Natural as being arbitrary and capricious, and hence legally indefensible?”
There was no dispute as an evidentiary matter of the Kansas Assessment Ratio Tax Study, or what the levy was in Rice County for 1969.
At the trial, evidence was introduced by both parties and the district court made the following pertinent findings of fact which are decisive of the question presented in this appeal:
“. . . In 1968 (sic), Rice County real estate as a whole was assessed at *42221% of fan- value. Rural realty was assessed at only 19% of fair value and urban realty was assessed at 30% of fair value.”
“There is no showing of actual fraud in the valuation or assessment of plaintiff’s property.”
“The difficult determination in this case is whether constructive fraud has been proven simply because Rice County real estate was generally assessed at 21% of true value while plaintiff’s property was assessed at 30% of true value.
“The law recognizes that there will always be some discrepancies in this area of valuation. The question is, how much difference may there be before a finding of constructive fraud is the proper finding? The finding of the court is that the assessment of county realty as a whole at 21% of fair value and the assessment of plaintiff’s property at 80% of fair value is not a sufficient difference, standing alone, to show constructive fraud.’’ (Emphasis supplied.)
On the basis the deviation of assessments was insufficient to show constructive fraud, the district court concluded as a matter of law that,
“The plaintiff has failed to meet his burden of proving by the most believable evidence [which the court found was the testimony of Dr. Francis O. Woodard who prepared the real estate assessment ratio study] that its 1969 Rice County valuation and assessment is illegal or excessive.”
Relying upon the findings, of fact of the district court, Northern perfected this appeal and here contends the district court’s findings require a reversal of the judgment as a matter of law. The contention is stated in Northern’s brief as follows:
“. . . that the property of other taxpayers was knowingly assessed at 21% of justifiable value, while Northern’s property was intentionally, consistently, and systematically assessed at 30% of original cost in contravention of Section 1 of Article 11 of the Constitution of Kansas, and of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States . . .”
It is important here to note that there was no cross-appeal perfected by the appellees — either from the findings of the district court, or from the judgment rendered, or from any other rulings of the court.
No cross-appeal having been perfected, there remains a single question to be resolved by this court. It should have been necessary only to consider whether the assessment of Northern’s property at 30 percent of “justifiable value” while all other property was generally assessed at 21 percent of “justifiable value” constituted constructive fraud upon the taxpayer in contravention of Article 11, Section 1 of the Kansas Constitution. However, the court leaves that question unanswered, and considers in the alternative whether *423the sales ratio study, which was supported by extrinsic evidence of an expert with wide experience on the subject and whose qualifications were accepted by the court, is competent evidence upon which to base a finding of “justifiable value” for assessment purposes. First, the court concludes the ratio study evidences only the sales price of real estate, and does not reflect the relationship of assessed value to “justifiable value” — the proper criterion under K. S. A. 79-501 and 79-503 upon which the assessment rate is to be applied for ad valorem tax purposes. Second, it concludes there are too many speculative elements involved and two few properties subject to sale in the ratio study, pertinent to this case, for it to be relied upon for appraisal purposes. Third, it concludes the sales price of real property as disclosed by the ratio study shows an imbalance of assessment and lack of equalization, but that sales price alone does not establish “justifiable value,” and that nowhere in the record does the ratio study purport to embrace a consideration of the mandatory factors enumerated in 79-503; hence, the taxpayer has failed to sustain its burden of proof to show discrimination. The court’s conclusion follows from the premise that this court has an inherent right to review the record to determine as a matter of law whether the evidence supports the findings of the district court, and if, upon such review, the evidence is concluded to be insufficient to support the findings, this court may determine the case on its merits as a matter of law.
The court’s affirmance of the judgment is based upon at least two assumptions with respect to the law of this jurisdiction, which I think are erroneous. In the first place, this court is not permitted to reach the merits of an issue without it having been raised by the parties either by direct or cross-appeal. In the second place, the court’s opinion holds that while the sales ratio study may be admissible in a tax protest action, the court proceeds to emasculate its probative value to a nullity, by concluding it is incompetent evidence of “justifiable value” for assessment or equalization purposes, and the rule announced by our former decisions concerning the relevancy and probative force of the ratio study is thereby overruled by implication. Those issues are hereafter respectively discussed.
First, it is settled in this state that if the appellant does not question the correctness of the findings of fact of the district court, and the appellee does not cross-appeal attacking the sufficiency of evidence to support those findings, they become the law of the case, and this court may not at the instance of the appellee examine the *424record to determine whether they are supported by substantial evidence. In that event, the scope of appellate review is limited to the question whether the judgment is supported by the pleadings, the pretrial order, and the findings of fact, and the evidence cannot be considered. It is unnecessary to extensively cite our many cases on this point, but a few of them are Benson v. Rosebaugh, 128 Kan. 357, 278 P. 41; Lake Superior Lbr. Co. v. Homestead B. & L. Ass'n, 139 Kan. 565, 32 P. 2d 202, and Shelton v. Simpson, 184 Kan. 270, 272, 336 P. 2d 159.
The rule was stated in Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138:
“. . . Where a case has been tried . . . and the district court has . . . rendered judgment in accordance with the findings of fact, and the plaintiff in error in the supreme court does not question the correctness of the findings of fact, and the defendant in error has filed no petition in error or cross-petition in error, the supreme court cannot at the instance of the defendant in error examine the evidence to determine whether the findings of fact are sustained by sufficient evidence, or not.” (Syl. If 6.)
In the recent case of Commercial Asphalt, Inc. v. Smith, 200 Kan. 362, 436 P. 2d 849, this court considered the question, and in the opinion said:
. . There has been no appeal from the findings and conclusions and they are now controlling in the case . . .” (1. c. 364.)
K. S. A. 60-2103 (h) provides in effect that where notice of appeal has been served in a case and the appellee desires to have a review of rulings and decisions of which he complains, he shall do so by cross-appeal. The statute is mandatory, and our case law is consistent with its mandatory language. Time does not permit quotation from our many cases with respect to the review of errors claimed by an appellee where he fails to cross-appeal. In essence, the principle may be stated, “if you don’s raise it, you waive it.” For analogous cases, see Schul v. Clapp, 154 Kan. 372, 376, 118 P. 2d 570; Hoffman v. Sohio Petroleum Co., 179 Kan. 84-86, 292 P. 2d 1107; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172; Gould v. Robinson, 181 Kan. 66, 70, 71, 309 P. 2d 405; Turner v. Benton, 183 Kan. 97, 102, 325 P. 2d 349; James v. City of Pittsburg, 195 Kan. 462, 463, 407 P. 2d 503; Scrammahorn v. Gibraltar Savings & Loan Assn, 197 Kan. 410, 412, 416 P. 2d 771, and Reinecker v. Board of Trustees, 198 Kan. 715, 722, 426 P. 2d 44.
In the instant case, this court was not appealed to for a review of whether the findings of fact were supported by substantial evidence, *425so, right or wrong, the findings settled the question of the deviation of assessment on Northern’s property and other real estate in Rice County and became the law of the case, and may not now be considered by this court upon appellate review. The pretrial order has been referred to, and it would serve little purpose to examine the pleadings. It is sufficient to say they presented the issues upon which the evidence of both parties was introduced and upon which the district court based its findings of fact and conclusions of law. In passing, it may be said that under our decisions hereafter referred to, there was substantial evidence introduced to support the district court’s findings.
Second, the clear import of our prior decisions concerning the sales ratio study is that its probative force is an evidentiary matter to be weighed and determined by the district court. Where no evidence is offered in support of the ratio study, such study, standing alone, is not conclusive evidence to establish a basis for comparison in determining uniformity of values for assessment purposes. Where, however, evidence is offered in support of the sales ratio study, and if found by the district court to provide a meaningful guide and the best evidence as to the relationship between assessed values in a county and justifiable or true value of real estate therein, it is my opinion such evidence may be considered substantial, and sufficient to warrant the upholding of findings of a district court of variations in the assessment of real property at justifiable value within a county.
In concluding as a matter of law that the sales ratio study, when supported by the testimony of an expert witness whose qualifications were accepted by the district court, has no relevancy or probative value and in effect is no evidence to support variations in the assessment of real estate as a whole in a county, the court has ignored a uniform course of decisions established in this jurisdiction holding to the contrary. The impressive body of rulings thus ignored repeals by implication those cases hereafter referred to, and such a massive repudiation is made possible by the assertion of a new and doctrinary concept that the sale price of real property has no relationship to justifiable value for ad valorem tax assessment purposes.
This court initially considered the probative value of the sales ratio study in Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906. Brookover was cited with approval in Cities *426Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, where it was held:
“Ratio studies provided for by K. S. A. 79-1436 are proper evidence of justifiable value but such evidence, standing alone, is not conclusive in establishing a basis for comparison in determining uniformity of values for assessment purposes.” (Syl. ¶ 4.)
In the opinion it was said:
“The force and effect of many of the 1963 enactments were considered and discussed in Board of County Commissioners v. Brookover, supra, where it was held that ratio studies provided for by K. S. A. 79-1436 may properly be considered in determining the necessity for reappraisal to arrive at justifiable value as provided by K. S. A. 79-1439. It was further held that the sale prices of real estate given by willing purchasers to willing sellers is substantial evidence of value for appraisal purposes, although consideration of other factors mentioned in K. S. A. 79-503 may be proper. In other words, the holding in Brook-over indicates that a ratio study, based on sales, is admissible and may be substantial evidence of justifiable value, but the holding therein cannot be construed to mean that such evidence is conclusive.
“Under the showing here, the trial court chose not to find the ratio study, based on sales of less than one percent of real estate parcels, standing alone, unsupported by any other evidence, as to actual percentage of justifiable value, to be a proper basis of comparison in establishing the assessment of plaintiffs’ properties as constructive fraud. Under the facts related, we believe the trial court’s finding is justified.” (1. c. 291, 292.) (Emphasis supplied.)
In Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117, the question was again considered, and we held:
“An assessment ratio study made pursuant to statute is admissible in evidence as tending to establish the assessment ratio of real estate even though it is not conclusive on that subject.” (Syl. ¶ 5.)
In the opinion it was said:
“The sole evidence offered to establish the assesssment ratio of real estate in the Cities Service case was the assessment ratio study for 1965, which disclosed the ratio as being twelve per cent of justifiable value. The trial court found this to be insufficient proof of value on which it might base a comparison with plaintiffs’ oil and gas properties. On appeal we said that while the assessment ratio study was admissible in evidence as tending to establish the assessment ratio of real estate, it was not conclusive evidence on the point, and that the trial court’s finding, under the facts of that case, was justified.
“In the Sebits case, although it is not disclosed in the opinion, the assessment ratio studies for several years were introduced in evidence to establish the real estate assessment ratio for 1965. There was no evidence offered in support of the studies, and the county assessor testified he had little faith in them. The trial court refused, under those circumstances, to find there was a deliberate assessment of real estate twenty-one per cent of value, as the studies *427purported to show, and a judgment entered for the defendants was affirmed on appeal.” (1. c. 808.) (Emphasis supplied.)
“In the present case the trial court found that the assessment ratio of real property in Hodgeman County was fourteen per cent of justifiable value. That finding is supported by substantial competent evidence. The evidence further established that oil and gas leases were assessed for that same year, through the use of state schedules prepared for such purpose, at thirty per cent of justifiable value.
We are constrained to hold that the inequality which existed between the assessment of Beardmore’s oil and gas leases on the basis of thirty per cent of justifiable value and the assessment of real property on the basis of but fourteen per cent of justifiable value was so gross and arbitrary as to constitute constructive fraud.” (1. c. 809, 810.) (Emphasis supplied.)
In Panhandle Eastern Pipe Line Co. v. Dwyer, 207 Kan. 417, 485 P. 2d 149, this court again stated the general rule of law, and it was said:
“We are forced to conclude that the ratio study standing alone is not conclusive as to value. In Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, we held:
“ ‘Ratio studies provided for by K. S. A. 79-1436 are proper evidence of justifiable value but such evidence, standing alone, is not conclusive in establishing a basis for comparison in determining uniformity of values for assessment purposes.’ (See, also, Beardmore v. Ling, 203 Kan. 802, 457 P. 2d 117.” (l. c. 423.)
In Northern Natural Gas Company v. Dwyer (Pawnee County), 208 Kan. 337, 492 P. 2d 147, this court considered again the ratio study and its evidentiary value in statewide assessment appeals as provided by K. S. A. 74-2426. In logical sequence from language in Panhandle, supra, this court declared the ratio study to be improper for challenging statewide assessments, the inference being that the proper action to present the ratio study would be a tax protest action initiated under K. S. A. 79-2005, challenging the local assessment of property in a county.
The holding of the decisions just reviewed, and then- clear implication, is that the sales ratio study is admissible, and may be substantial evidence of justifiable value as tending to establish the assessment ratio of real estate, but, standing alone, is not conclusive on the subject, and that where there is no extrinsic evidence offered in support of the sales ratio study, a district court may refuse to find that a variation in assessment ratio is sufficient to establish constructive fraud. On the other hand, where expert evidence is offered in support of the study, and the district court finds the evi*428dence provides a meaningful guide and is the best evidence as to the relationship between assessed values and justifiable or true value of real estate, such evidence is sufficient to uphold the finding of a district court of variations of the assessment of real estate. As indicated, the court’s opinion impliedly overruled the authority of Brookover, supra; Cities Service, supra; Beardmore, supra; Panhandle Eastern, supra, and Northern Natural Gas, supra, with respect to the probative value of the sales ratio study, and we owe it to the district courts, attorneys, and the litigants of this state to say so, positively;1 or if their authoriy is to be limited only, to point out definitely the extent of such limitation.
Before leaving this portion of the dissent, I wish to note my agreement that this court has appellate power to determine in a given case, whether the evidence supports the judgment rendered as a matter of law, where the sufficiency of the evidence is properly raised and presented for consideration by the court by appeal or cross-appeal. However, I cannot agree with that portion of the court’s opinion that considers the credibility of witnesses and substitutes its judgment with respect to the weight and sufficiency of the evidence introduced below. The dangers apparent in such a practice have long been recognized by this court. (Allen v. Schauf, 202 Kan. 348, 449 P. 2d 1010; White v. Hutton, 205 Kan. 715, 472 P. 2d 223.)
In view of the record presented and the findings of the district court, it is perhaps improper to comment upon the evidence introduced below. However, since the court chose to do so, I briefly respond. Upon the basis of the overwhelming preponderance of the evidence, only vaguely disputed by the appellees, the district court found and concluded the level of assessment in Rice County on January 1, 1969, was 21 percent. While Mr. Harvey, the county clerk, and Mr. Taggart, testified to the contrary, and the county clerk stated he believed the ratio study to be inaccurate, the level of assessment within the county was an issue of fact presented to the court by the pleadings and the pretrial order. The court had jurisdiction to decide the issue. Evidence was submitted to the court, proper foundation laid for the introduction of expert testimony, and upon its consideration the court made the finding it was authorized to make. It had jurisdiction to find either correctly or erroneously. It chose to give no credence to Mr. Harvey’s or Mr. Taggart’s testimony, and the court was within its jurisdiction in *429weighing their evidence. In addition, the county officials of Rice County failed to contest the results of the ratio study through procedures established by the Legislature (K. S. A. 79-1441 [a]), by effecting an appeal to the Board of Tax Appeals if they believed the ratio study to be inaccurate. The failure of those officials to pursue the statutory remedy to contest the validity of the ratio study, estops them from disputing its accuracy, or asserting as evidence that it was incorrect. But the assertions of both the county clerk and Mr. Taggart may be dismissed with the statement the appellees failed to raise the sufficiency of the evidence by a cross-appeal. Under K. S. A. 60-252, the court’s findings may not be set aside unless clearly erroneous, and due regard is to be given to the district court’s findings with respect to the credibility of the witnesses. In short, the district court was within its jurisdiction to discredit and find to be unreliable the testimony of either the county clerk or Mr. Taggart. In any event, the district court’s findings were not clearly erroneous, and they may not now be collaterally attacked in the absence of a cross-appeal.
I now turn to the question to be decided. Was the assessment of Northern’s property at 30 percent of justifiable value while all other real property in Rice County was assessed at 21 percent of justifiable value so arbitrary, capricious, or oppressive as to amount to constructive fraud? The district court concluded it was not; my brothers in the majority opinion, while deciding that question, affirm that determination by implication. I must respectfully disagree.
What amount of overvaluation must the taxpayer prove? There is no fixed rule as to the disparity required between the assessed valuation and the value found by the corut to establish constructive fraud. Each case must stand on its own facts. The rule prevailing in this state with respect to the uniformity of taxation was stated by Mr. Justice Rousseau A. Burch in Wheeler v. Weightman, 96 Kan. 50, 149 Pac. 977, as follows:
“. . . The essentials are that each man in city, county and state is interested in maintaining the state and local governments. The protection which they afford and the duty to maintain them are reciprocal. The burden of supporting them should be borne equally by all, and this equality consists in each one contributing in proportion to the amount of his property. To this end all property in the state must be listed and valued for the purpose of taxation, the rate of assessment and taxation to be uniform and equal throughout the jurisdiction levying the tax. The imposition of taxes upon selected classes of property to the exclusion of others, and the exemption of selected classes to *430the exclusion of others, constitute invidious discriminations which destroy uniformity . . .” (1. c. 58.)
In considering the question presented in this case and in applying the general statement above quoted, pertinent rules should first be stated. One, is that taxes will not be enjoined, or found grounds for relief under 79-2005, merely because they seem to the court to be excessive. The duty and discretion of placing a value on property for purposes of taxation is placed on the assessing officials, and a court may not assume that task merely because its judgment of value differs from that of the taxing officials. Mere errors of judgment of the assessing officials is no reason for interference by courts, but a taxpayer is entitled to the honest judgment of the assessing officials. Another, is that if an assessment is fraudulently made excessive, or if it is arbitrarily, or capriciously made, and is so out of proportion to the actual value as to give reasonable assurance the officials could not have been honest in fixing the valuation, courts of equity are justified in enjoining the enforcement of the tax, or in granting relief pursuant to 79-2005. (Salt Co. v. Ellsworth County, 82 Kan. 203, 107 Pac. 640; Garvey Grain, Inc. v. MacDonald, 203 Kan. 1, 453 P. 2d 59.) Under all of the decisions, a court may grant relief where fraud or conduct equivalent thereto exists, or where the action of the taxing officials is illegal, arbitrary and discriminatory as to amount to constructive fraud. (Hitch Land & Cattle Co. v. Board of County Commissioners, 179 Kan. 357, 363, 364, 295 P. 2d 640.)
This court has defined arbitrary to mean “without adequate determining principles . . . not done or acting according to reason or judgment”; oppressive, as “harsh, rigorous, or severe”; capricious, as “changing apparently without regard to any laws.” (Eureka B. & L. Ass’n v. Myer, 147 Kan. 609, 78 P. 2d 68.) In City of Clay Center v. Myers, 52 Kan. 363, 365, 35 Pac. 25, we defined constructive fraud to mean “any act of omission or commission contrary to legal or equitable duty, trust or confidence justly reposed, which is contrary to good conscience, and operates to the injury of another.”
A review of our cases considering the question of constructive fraud discloses that the court has followed two more or less clearly defined lines of reasoning. First, where the taxpayer seeks relief solely upon the ground of overvaluation, he must present to the court a clear and convincing case of excessive overvaluation if he is to prevail on that ground alone. Terms used by the court in defining *431“excessive” overvaluation are “gross discrimination” (C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039; “intentional discrimination” (Bank of Garnett v. Ferris, 55 Kan. 120, 39 Pac. 1042); “inequitable discrimination” (Bank v. Lyon County, 83 Kan. 376, 111 Pac. 496), and “invidious discrimination” (Wheeler v. Weightman, supra). See, also, Symns v. Graves, 65 Kan. 628, 70 Pac. 591, where the court determined that a 6 percent deviation standing alone was insufficient evidence to establish fraud. But see Salt Co. v. Ellsworth County, 82 Kan. 203, 107 Pac. 640, where it was alleged the tax commission fixed an exorbitant and excessive valuation upon the taxpayer’s property, which the commission knew to be grossly excessive. (Finney County v. Bullard, 77 Kan. 349, 94 Pac. 129; Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315; Beardmore, supra.) Generally speaking, it may be said that if the taxpayer cannot establish his claim of overvaluation by clear and convincing evidence, his alternatives for relief are restricted to reliance upon the tender mercies of the administrative hierarchy.
On the other hand, our cases tend to establish that if a taxpayer can show his property has been overvalued, and also that it was overvalued as a result of an adopted policy or practice on the part of state or local taxing officials to knowingly fail to carry out their statutory duty to equalize assessments, or when such discrimination results from divergent action by different assessing officials where such results follow from intentional, systematic, and persistent overassessment of one class of property by one official or department, so that the effect is action in concert to discriminate against the taxpayer, or from some other improper administrative misfeasance or nonfeasance, the taxpayer will be able to obtain relief from the court on a showing of a comparatively small mathematical disparity in assessment. (Bank v. Lyon County, supra; C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., supra; Bank of Garnett v. Ferris, supra; Beardmore v. Ling, supra; Kansas City Southern Rly. Co. v. Board of County Comm’rs, 183 Kan. 675, 331 P. 2d 899; Hitch Land & Cattle Co. v. Board of County Commissioners, supra; Garvey Grain, Inc. v. MacDonald, supra.) The list of authorities is not intended to be exhaustive.
The Legislature has provided some guidance for a permissible degree of tolerance in the appraisement and assessment of real property. K. S. A. 79-1426 (L. 1963, Ch. 460) provides criminal *432sanctions and penalties making it unlawful for any assessing official, including the Director of Property Valuation and the various local assessing officials, whose duty it is to list, value, assess or equalize real estate for taxation, to willfully or knowingly fail to appraise, assess or equalize the values of any real estate subject to general property taxes as required by K. S. A. 79-1439. The penalties for violation of the statute include forfeiture of office. The final sentence of the section, when enacted-in 1963, reads: “A variance of 10%, of 30% [i. e. 3%] shall not be considered a violation of this section.”
The section was amended in 1969 (Ch. 433, Sec. 4) in the same bill which amended what is now K. S. A. 79-1439. Both statutes were effective July 1, 1969. The latter section requires all real and tangible personal property which is subject to general property taxes, to be appraised uniformly and equally at fair market value in money as defined in K. S. A. 1968 Supp. 79-503, as amended, and assessed at 30 percent thereof. The last sentence of the section reads: “A variance of ten percent (10%) of such thirty percent (30%) [i. e. 3%] shall not be considered a violation of this subsection . . .” The last sentence of K. S. A. 79-1426, as amended in 1969 (Ch. 433, Sec. 4) reads: “A variance of 10% in the appraisal at fair market value in money shall not be considered a violation of this section.”
The two statutes should be construed in pari materia. As thus construed, 79-1439 establishes a standard for equalization, and 79-1426 establishes the same ten percent standard for appraisals.
While 79-1426 provides standards of proof of criminal violation of a taxing official for his failure to list or properly value, assess, or equalize real property for taxation, it would be futile to say that conduct of such an official, which is unlawful and the road to prison on the criminal side of the court, would not likewise be unlawful on the civil side of the court, where a taxpayer seeks to establish a deviation of appraisals or assessments of real property in violation of either 79-1426 or 79-1439. This court reached that conclusion in the Addington case in construing 79-1426, and it was said:
“... 79-1426 provides that any assessor who shall knowingly fail to list or return for assessment or valuation any real or personal property, or who shall knowingly or wilfully list or return for assessment or valuation any real estate or personal property at other than its true value in money, or who shall wilfully or knowingly fail to equalize any real or personal property at its *433true value in money, shall be guilty of a misdemeanor. Even though the assessor may have thought he was acting in good faith, his illegal acts in failing to comply with the mandate of the legislature constituted bad faith and constructive fraud . . (l.c. 533, 534.) (Emphasis supplied.)
The same conclusion follows witíi respect to the last sentence of 79-1439.
A rapid computation will show the Legislature intended to set lawful parameters of assessment between 27 and 30 percent. It is clear that the deviation found in this case by the district court constitutes a violation of the statute. I am forced to conclude that, on the basis of the findings of the district court, the assessment of Northern’s property in Rice County at the statutory maximum of 30 percent of justifiable value while other real property similarly situated was assessed at 21 percent of justifiable value fails to comply with the legislative mandate, constitutes bad faith, and constructive fraud.
In addition, the district .court specifically found “that in Rice County that department [Property Valuation Department] has clearly failed to carry out its statutory duty to equalize assessments.” The district court then referred to the case of McManaman v. Board of County Commissioners, 205 Kan. 118, 468 P. 243, in which this court stated its decision should not be interpreted as sanction by this tribunal of the serious inequities which have plagued taxpayers throughout the state, who find themselves the victims of unequalized assessments which principally have resulted since 1963, from the failure of the responsible administrative officials to carry out assessment laws enacted by the Legislature; that since the enactment of that statute (L. 1963, Ch. 460), taxpayers have been beset with unequal tax burdens resulting from the fact that not all counties were assessing property at 30 percent of justifiable value, or that property in a county was not being uniformly equalized and assessed. It is common knowledge throughout the state that the responsible taxing officials have in the past failed to come to grips with the duty enjoined upon them by the Legislature of equalizing the assessment of property throughout the state and within each of the various counties.. What was said by this court in Avery v. City of Lyons, 183 Kan. 611, 331 P. 2d 906, is an apt illustration:
“Justice would prove to be a mockery if evidence of tbe assessed value of property for taxation purposes in the State of Kansas were held to be conclusive evidence of the true value of such property, when as a matter of fact and in practice the State Commission of Revenue, and Taxation, which has super*434visory power over county assessors, with full knowledge permits assessments throughout the state to be made at substantially less than 50% of fair market value. See, Kansas City Southern Rly. Co. v. Board of County Comm’rs, 183 Kan. 675, 331 P. 2d 899. ” (l. c. 619.)
In Garvey Grain, Inc. and in McManaman, the supervisory responsibilities for the administration of the assessment and tax laws of this state were said to rest squarely on the shoulders of the Director of Property Valuation with attending enforcement power and authority. His duties with respect to his general supervision over assessors, boards of county commissioners, county boards of equalization, and all other boards of levy and assessment, were set forth in both opinions, to the end that all assessments of property— real, personal, and mixed — be made relatively just and uniform at 30 percent of justifiable value [30% of fair market value (L. 1969, Ch. 433)], and to require all such officials, under criminal sanctions and under penalties of forfeiture and removal from office, to assess all property at such a value. See, also, State ex rel., v. Dwyer, 208 Kan. 437, 493 P. 2d 1095, concerning this court’s approval of the Department of Property Valuation’s efforts to equalize the assessment of property throughout the state, commenced by the Director after the tax levy in this case was extended.
In light of the findings of the district court that the Property Valuation Department had failed to carry out its statutory duties to equalize assessments, it is hard to understand how it could have had any difficulty in determining the variance was discriminatory. The record indicates there was protracted failure of the state and local assessing officials to equalize the appraisal and assessment of real estate in Rice County, which has resulted in discriminatory treatment of the plaintiff, and which must be squarely laid at the department’s feet since the state has not removed such discrimination. In my judgment, the court has ample authority to grant complete relief to the wronged taxpayer under the provisions of 79-2005, irrespective of whether the discrimination results from an intentional, systematic, and persistent undervaluation of all other property of the same class, and a subsequent failure to carry out the statutory duties to equalize, or where, as here, the discrimination results from acts of both misfeasance and nonfeasance on the part of the taxing authorities.
In Kansas City Southern Rly. Co. supra, I concurred in the court’s holding that the petition stated a cause of action, and said:
*435“. . . Thus, for a period of years the commission was advised by its own studies that the statutes of the state were being flagrantly disregarded by the local assessment officials in Cherokee County, but it failed to take corrective measures to require that the assessments be made at the true or market value of the property assessed; consequently, such failure, over such period of years, can justify no other conclusion than that of an adopted policy or practice of constructive fraud and discrimination against the plaintiffs and their property. The result is that the rate of assessment fixed by the commission at 60 percent of the true or market value of plaintiffs’ property, when applied to the rate of assessment of 21 percent of the true or market value of all other property located in that county and subject to the same tax levy, is illegal and the petition states a cause of action. . . .” (1. c. 683, 684.)
Before concluding, an additional comment need be made. I cannot agree with the court’s opinion that those taxpayers in Rice County who were also assessed at 30 percent of justifiable value would receive unfair treatment if this court were to grant Northern the relief prayed for. The adopted rule of law in this state is to the contrary. The rule may be stated that where the unlawful discrimination results from the assessment of property owned by one taxpayer at a rate proportionately higher than that of others, the remedy almost universally supplied to the aggrieved taxpayer is to reduce his assessment to the same percentage of justifiable value as was used in the cases of those in whose favor the discrimination was granted, and compute his taxes accordingly. (Addington v. Board of County Commissioners, supra, pp. 531, 532).
In Addington this com! adopted the federal rule stated in Sioux City Bridge v. Dakota County, 260 U. S. 441, 67 L. Ed. 340, 43 S. Ct. 190, 28 A. L. R. 979, where it was said:
“. . . This Court holds that the right of the taxpayer whose property alone is taxed at 100 per cent, of its true value is to have his assessment reduced to the percentage of that value at which others are taxed even though this is a departure from the requirement of statute. The conclusion is based on the principle that where it is impossible to secure both the standard of the true value, and the uniformity and equality required by law, the latter requirement is to be preferred as the just and ultimate purpose of the law . . .” (p. 446.)
Those taxpayers in Rice County whose property was also assessed at 30 percent of justifiable value had a viable remedy to contest those assessments. (79-2005.) The failure of those consenting taxpayers to avail themselves of a statutory right does not estop Northern from asserting its right.
In my judgment, the record shows a protracted and flagrant disregard of the legislative mandate, and an adopted policy of *436illegality and constructive fraud that I cannot sanction. With respect to that, and related issues not before the court for appellate review, I must dissent.
Fontron, J., joins in the foregoing concurring and dissenting opinion.