concurring in the result.
The right to a hearing as a condition pre- ■ cedent to the taking of life, liberty, or property has been a fundamental concept of the •common law ever since the time of the ’Magna Charta, and was made effective by our founders in the establishment of various protections, notably the Fifth Amendment of the United ’States Constitution and §§ 6 and 7 of Art. 1 in the Constitution of 'Wyoming.
. The litigation growing out of the deci■sions of administrative agencies has increased sharply in recent years both in state .and Federal matters, 1 Davis; Administrative Law Treatise, p. Ill, Preface (1958), in which latter jurisdiction under the due process clause it has been stated as a truism .that in our system of law adjudicatory action cannot validly be taken by any tribunal whether judicial or administrative except on 'a hearing wherein each party shall have opportunity to know the claim of his opponent, to hear the evidence introduced .against him, to cross-examine witnesses, to introduce evidence on • his behalf, and to make argument. Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129; *715Federal Radio Commission v. Nelson Brothers Bond & Mortgage Co., 289 U.S266, 53 S.Ct. 627, 77 L.Ed. 1166, 89 A.L.R. 406; Londoner v. City & County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103; L. B. Wilson, Inc. v. Federal Communications Commission, 83 U.S.App.D.C. 176, 170 F.2d 793; 1 Davis, Administrative Law Treatise, § 7.01, p. 409 (1958).
Because of repeated questions which have been and are being raised concerning the powers of the district boundary board under.. § 21-211, W.S.1957, and the tendency of this court to rule that such board has carte blanche authority to annex property to a school district whenever in its opinion an alteration is justified and because such tendency seems to be in violation of the right of all citizens to be heard, some general discussion of the subject is warranted.
Historically, the boundary board was authorized by c. 42, S.L. of Wyoming, 1913, to-alter district boundaries “as the convenience of the inhabitants of the aforesaid districts may require.” In 1921 the statute was amended to permit the alterations when “in the opinion of such board such changes, alterations or consolidations may be justified by existing circumstances and conditions” (c. 133, S.L. of Wyoming, 1921). This provision, although not in words directing a hearing, certainly implied that one" was necessary. The statute remains substantially the same, éxcept for a further amendment, c. Ill, S.L. of Wyoming, 1961, which included high school districts in the possible alterations if the boards of trustees of the high school districts consent.
In Chicago, B. & Q. R. Co. v. Byron School Dist. No. 1, 37 Wyo. 259, 260 P. 537, this court pointed out that the interests of all of the territory affected by the change in ■ boundaries, including that to be annexed, should be given consideration, and in effect required a hearing. In School District No. 9, in County of Fremont v. District Boundary Board In and For Fremont County, Wyo., 351 P.2d 106, this rule was reiterated even more clearly. The court now seems to have departed therefrom. The principal opinion in Marathon Oil Company v. Welch, Wyo., 379 P.2d 832, erroneously indicated that’the'court had previously held § 21-211 to be constitutional, although the question was not there raised, and went on to say that nothing in the School District No. 9 case implied the necessity of a formal notice and hearing for property owners and taxpayers. The concurring opinion further reduced the effect of the rule announced in the School District No. 9 case by interpreting the pronouncement to be at most that a boundary board acts arbitrarily if it has nothing before it to justify the decision it reaches. The obvious trend thus shown is here continued when the court says it cannot question the opinion of the board, accepts the problems created by changed economic conditions as a matter of “common knowledge” and even indicates that there need be no consideration of matters other than the requirements of the high school district to which the elementary areas are anpexed. . ,
As to the meetings of the Converse County Boundary Board, there were two.The first was an'open session on February 6, 1962, which apparently lasted about two hours where various citizens were present. The second, on February '7, was closed to the public, only the members of the boundary board and its attorneys being present. The minutes of the first meeting disclosed no matters pertaining to elementary district benefits which were the subject of inquiry in .the public session. At the district court hearing when various members of the board were called, they readily admitted that the financial problem of the high school district was the paramount issue and that the board was attempting to spread the tax burden. There was however some testimony which indicated a consideration by the board of the needs of high school students then living in the elementary districts and of the probably larger number in the future. This unchallenged evidence though slight and less than satisfactory constitutes some *716basis for the board’s determination that the changes and alterations were justified by the existing circumstances, and I therefore concur in the affirmance of the trial court’s judgment.