(dissenting).
I am left wondering what has caused the great turnabout in this case. As far as I am concerned, I am unpersuaded there is anything wrong in our original opinion, which is reported as Johnson v. Schrader, Wyo., 502 P.2d 371. I continue to stand with such opinion in its entirety; and I find no area of agreement in any of the majority’s new opinion. The temptation is great to take the new opinion paragraph by *820paragraph and point out its fallacies. However, that would serve no useful purpose; and it is sufficient to simply say the original opinion was and is correct in every respect.
Perhaps the thing that disturbs me most is that I read into the new opinion a caveat that administrative agencies, such as the state committee, can do no wrong. Therefore, their actions are final and not subject to judicial review. Of course, my colleagues will disclaim having expressed such a caveat; but I insist what is being said makes a nullity of judicial review.
The new opinion purports to stand on a finding that evidence and information were available to the state committee from which a decision could be made that Plan 3 did not comply with the criteria requirements of § 21.1 — 109(e), W.S.1957, 1971 Cum.Supp. This overlooks that the state committee had acted ex parte, without an opportunity for other interested parties to be heard and furnish evidence. It also overlooks that sub-section (e) requires only that county committees “shall consider” a ratio of average daily membership to assessed valuation as nearly equalized as practicable among the unified districts in the various counties.
It is apparent from the record we are dealing with that the county committee in Goshen county had made such a consideration, and indeed the ratio of average daily membership to assessed valuation was equalized better than it has been in many approved reorganization plans in other counties.
The record in this case makes it perfectly clear that the court before whom appellants were seeking a review refused to allow any evidence at all to be introduced. Its statement in that regard was this:
“The Court isn’t going to hear any evidence in this hearing, that is to be done by the Board and not by this Court.”
Thus, regardless of any explanations my colleagues may seek to make, it remains a fact that appellants have been denied their day in court.
As pointed out in our original opinion, § 21.1-128, W.S.1957, 1971 Cum.Supp., expressly guarantees the right of an appeal from any final decision of the state committee to the district court. Thus, the majority cannot justify a denial of judicial review from the final decision of the state committee, by talking about proceedings at other levels. Moreover, Rule 72.1(a), W. R.C.P., and § 9-276.32(a), W.S.1957, 1971 Cum.Supp., allow for the appeal and review appellants properly sought in this case.
We also pointed out in our original opinion that Rule 72.1(h), W.R.C.P., provides that additional material evidence may be presented in noncontested cases like the one here involved. We said, and I do not hear my colleagues disputing it, that the only limiting factor is materiality. Certainly the most important and most material evidence in this case bears on the question of whether Plan 3 met the criteria requirements of § 21.1-109(e).
Therefore, I repeat again, regardless of any explanation made, appellants definitely have been denied their day in court and their right to review in the courts. In my opinion, the reversal of our original opinion results in a miscarriage of justice and a denial of due process.
The petition for rehearing should be denied.