The opinion
Robb, J.
(dissenting): I cannot agree with the majority opinion on the proposition that this court would have to resort to legislating in order to rule otherwise than it is doing in this case. I think the legislature was trying to refrain from being too specific and it desired to leave the courts some discretion in determining the equities of a particular situation. When this court adopts a standard of any kind in an effort to interpret legislative intent, it is, in truth, legislating — under the rule of the majority opinion herein. In view of this theory, I am unable to see how the court can adopt so arbitrary a standard of computation as to say, in effect, that the words “■within (or mainly within)” mean that the common boundary of a city and the boundary of the land to be added must constitute more than half the perimeter of the land sought to be annexed. That, in my opinion, is legislating just as much as any other interpretation of the legislative intent could be.
Keeping in mind what I think is meant by the legislative intent, I approach the question by considering the previous statutes on this subject.
In G. S. 1889, Volume 1, Chapter 18, Article 2, (552) Extend limits, § 8, we find the following:
“No unplatted territory of over five acres shall be taken into said city against the protest of the owner thereof, unless tire same is circumscribed by platted territory that is taken into said city.” (p. 199.) (My emphasis.)
In 1903 the legislature passed the following (G. S. 1905, Chapter 18, Article 2, § 741, Extending limits, § 9):
“. . . or whenever any unplatted piece of land lies within, or mainly within, any city -. . . said lands . . . may be added to, taken into and made a part of such city by ordinance duly passed.” (p. 163.) (My emphasis.)
*879 Then the 1907 legislature passed the following (G. S. 1909, Chapter 17, Article 21, § 1220, Annexing territory, § 353):
“. . . or whenever any unplatted piece of land lies within (or mainly within) any city . . . said lands . . . may be added to, taken into and made a part of such city by ordinance duly passed.” (p. 288.) (My emphasis.)
The above provision of the statute remains the same to this day (G. S. 1955 Supp. 13-1602a), as quoted in the majority opinion.
The term “circumscribed,” as used in the old law, had and continues to have a definite meaning which is accepted and understood by everyone. When something is “circumscribed,” it is entirely surrounded. The legislature did not continue the use of that word, which had such a connotation of definiteness, but instead substituted the word “within” whereby it must have intended something with more flexibility in its meaning than the word “circumscribed” had. The lawmakers did not stop there but also added “(or mainly ■within)” to be sure that the terminology of the statute had enough flexibility to leave something to the discretion of a court which might be called upon to determine what the legislature intended by this part of the statute. It is apparent the legislature did not intend to use “circumscribed” nor convey that meaning to the statute and to my way of interpreting the majority opinion, it says “within” means “circumscribed” and “mainly within” means “over 50% circumscribed.”
I have not overlooked the use of commas instead of parentheses before and after the term “or mainly within” in the intervening statute (G. S. 1905, supra) but that does not affect my opinion in the matter. The legislature, it seems to me, intended and expected the courts to exercise great discretion in determining the applicability of this statute and it must be remembered that all the elements of this statute, as well as other pertinent statutes, are to be considered in arriving at that determination.
Cities are creatures of the legislature and can grow only by legislative fiat, as interpreted by the courts. For authorities and a more thorough discussion of the powers of courts to interpret legislation and to determine the legislative intent, see 5 Hatcher’s Kansas Digest, rev. ed., Statutes, §§ 70, 71, 72, 73, 74, 76, 77, 89; 9 West’s Kansas Digest, Statutes, §§ 174, 176, 179, 181, 183, 184, 185, 187, 190, 199, 205, 206, 212.
*880 I can only conclude from the above authorities and my own interpretation of the statute that the majority opinion places too strict an interpretation on the statue in question. The Fairfax Industrial District is “mainly within” the city of Kansas City, Kansas, and the city had the power, under G. S. 1955 Supp 13-1602a to pass the ordinance that it did and I would enter judgment in favor of defendants for costs.
Fatzer, J., concurs in the foregoing dissenting opinion.