(dissenting).
I respectfully dissent.
The principal opinion holds that by the enactment of the Sawyers Act (§ 71.015 RSMo 1969) “the legislature intended to require the city to comply with the Act with respect to the area ultimately annexed and to require judicial authorization for that particular action”. Stated differently, it holds, as I understand it, that when the court enters a judgment in a Sawyers Act case, approving and authorizing annexation of an area specifically described therein, that decree authorizes only annexation of the precise tract so described, and if the city concludes to change that area by deleting any part thereof, the situation is exactly the same as if the city had not brought a suit under the Sawyers Act and it must start all over with a new action and process that case to a successful and final conclusion.
Does the Sawyers Act so require? The answer, in my view, is a definite “no”.
In our resolution of this ease, certain established principles are applicable. Questions of whether and what to annex are legislative rather than judicial. The only judicial function is a determination of whether the annexation decided upon by a legislative body “is so palpably unreasonable and unnecessary as to be an arbitrary and oppressive exercise of its legislative power”. City of St. Joseph v. Hankinson, 312 S.W.2d 4, 9 (Mo.1958). The judicial function is limited to so determining and does not involve a judgment as to the propriety or advisability of the legislative decision. City of St Joseph v. Hankinson, supra; City of St. Ann v. Busehard, 356 S.W.2d 567 (Mo.App.1962). If it is found that reasonableness of the annexation is fairly debatable, that ends the question so far as the courts are concerned. City of St. Joseph v. Hankinson, supra; City of Aurora v. Empire District Electric Co., 354 S.W.2d 45 (Mo.App.1962).
The Sawyers Act did not change the judicial function in annexation matters. It simply changed the time of such judicial determination and the burden of proof therein. Prior to enactment of the Sawyers *740Act, any judicial determination of whether an annexation was arbitrary and unreasonable was performed in suits attacking an annexation already consummated. In such proceedings the burden of proof of an arbitrary and unreasonable legislative determination was on those attacking the annexation. Since enactment of the Sawyers Act, a city proposing to annex an area is obligated to bring suit before annexation. In that action the court, as a condition to annexation, is to find such annexation to be reasonable and necessary to the proper development of the city and that within a reasonable time after the annexation, the city will be able to furnish municipal services to that area. The burden of making a prima facie showing of these facts is placed on the city. City of St. Joseph v. Hankinson, supra; City of Aurora v. Empire District Electric Co., supra. In other respects, the law remains unchanged.
On April 6,1962, the city council of Liberty adopted a resolution in which it made a legislative determination that a tract of land described in said resolution was contiguous and readily accessible to the city of Liberty, that such tract was reasonably necessary to the proper development of that city, and that it would be able to furnish normal municipal services to such area within a reasonable time after January 1, 1967. Thereafter, pursuant to the requirements of the Sawyers Act, the city filed a declaratory judgment action seeking approval of and authorization for such annexation effective January 1, 1967.
After an evidentiary hearing in said proceeding, the circuit court entered a judgment in which it found that persons fairly representative of all landowners in the area to be annexed had been chosen and served as defendants and that the evidence disclosed (1) that the annexation sought was reasonable and necessary to the proper development of the city of Liberty and (2) that the city had the ability to furnish normal municipal services to the area in question within a reasonable time after the annexation scheduled for January 1, 1967. That judgment was not appealed and became final. Pursuant thereto, the city council, on September 6, 1963, the date the decree in the Sawyers Act case was entered, adopted Ordinance No. 2278 extending the city limits of Liberty so as to include the area described in the judgment of the court, said annexation to be effective from and after January 1, 1967.
The judgment of September 6,1963, complied with the requirements of the Sawyers Act and constituted a finding, binding on the inhabitants of the area described in the judgment, that annexation of the tract therein described (stated in the testimony to be a 20 to 25 square mile tract) was reasonable and necessary and that the city of Liberty could furnish municipal services thereto within a reasonable time. If the city had not thereafter amended Ordinance No. 2278, the annexation provided for therein would have been complete and effective January 1, 1967, and the lands of those who are plaintiffs in this suit would have been within the city limits of Liberty. This is not disputed by plaintiffs.
However, instead of allowing Ordinance No. 2278 to stand as originally passed, the city council on December 22, 1965 (before the ordinance was scheduled to become effective) amended said ordinance to exclude from the tract to be annexed that portion thereof lying east of Interstate Hwy. 35 and north of Fishing River. The record does not disclose the precise size of that tract. However, counsel for plaintiffs stated in circuit court that it consisted of “a very slight additional area that would in effect square off the northeast corner”. He also referred to it as “little, almost triangular”. Hence, it is clear that the tract deleted by action of the city council on December 22,1965, was a small portion of the area originally proposed for annexation.
Thereafter, after a series of ordinances which ultimately extended the effective date of annexation to January 1,1973, were adopted, the city council, on October 30, 1972, again amended the description contained in the ordinance so as to exclude an *741additional part thereof. The area remaining was that portion of the original tract which was nearest to the then existing city limits of Liberty. It was described in the testimony as a ten square mile tract.
On December 21, 1972, which was after the city had passed the ordinance substantially reducing the area to be annexed but before the annexation was to become effective, plaintiffs filed this action in three counts, seeking in Count One injunctive relief against the annexation, in Count Two, a declaratory judgment that the annexing ordinance was invalid and gave Liberty no authority to annex the revised area, and in Count Three, a decree in a quo warranto proceeding instituted by the prosecuting attorney which would prohibit the city and its officers from exercising any jurisdiction over the area included in the amended description. Said petition alleged numerous grounds for the relief sought, but insofar as material to the issue we deal with on this appeal, those allegations were that since the date fixed by the court (and by Ordinance No. 2278) as the effective date of the annexation originally sought, various substantial changes had occurred which caused the annexation no longer to be reasonable and necessary for the proper development of the city and since Liberty did not plan to and was not able to provide municipal services to the tract to be annexed, the prior adjudication was not a valid authorization for the annexation finally proposed.
A trial was held in this new action after which the trial court made the conclusions which are recited in the principal opinion. It should be noted that included therein is a determination that plaintiffs had failed to establish that there has been such a change in conditions and circumstances as to make annexation of the lesser area under authority of the judgment of September 6, 1963, unreasonable and that therefore annexation on January 1,1973, of the lesser area pursuant to the earlier judgment was valid and effective.
We thus deal with a situation in which Judge Elliott, after hearing evidence, on September 6, 1963, entered a judgment holding that annexation of the originally described tract was reasonable and necessary to the proposed development of Liberty and that the city had the ability to extend municipal services thereto within a reasonable time after annexation, then scheduled for January 1, 1967. Thereafter, after reductions in the area and delay in the date of proposed annexation to January 1, 1973, we have a finding and judgment by Judge Connett, entered after trial of this case, that the evidence heard by him did not show any change in conditions or circumstances which made the annexation then proposed (the area after deletions made December 22, 1965, and October 30, 1972) unreasonable or unnecessary and that the adjudications of reasonableness, necessity and ability to supply services made in the September 6,1963, judgment remained applicable and binding. Under such circumstances, is there any reason for us on appeal to nullify the effect of the September 6, 1963, judgment and, as a result, to invalidate the annexation made January 1, 1973?
Plaintiffs argue that we should, saying that the Sawyers Act decree must pass on and approve the exact annexation to be consummated. If the area is reduced at all or the time for annexation is postponed, say plaintiffs, the court has not scrutinized and approved the precise annexation to be consummated and a new Sawyers Act petition, hearing and judgment are required as a prerequisite to the right of the city to annex. The severity and inflexibility of plaintiffs’ position is demonstrated and underscored by what occurred during oral argument of this case. Counsel for plaintiffs was asked whether a new, full-blown Sawyers Act proceeding would be required if, after entry of the prior judgment had become final, an error in the description of the area to be annexed was discovered and a corrected description was adopted by the city. He replied in the affirmative. In other words, the city could not rely on the prior Sawyers Act judgment and would have to start anew.
*742In my judgment the Sawyers Act neither requires nor justifies such a result. The apparent objective of that act was simply to have the court look at a proposed annexation ahead of time, thereby avoiding the necessity of undoing an annexation previously consummated. It was not to impose supertechnical restrictions on judicial determination of reasonableness or to mandate repetitive and unnecessary litigation simply because some reduction in the area is made after adjudication but before annexation or because some delay in consummating the annexation occurs. Yet, that is precisely the effect of the rule announced in the principal opinion. To illustrate, no objections were raised when the city on December 22, 1965, deleted the small triangular area from the original tract and the city probably could have gone ahead at that time on the theory that it was authorized to complete the annexation under authority of the Sawyers Act judgment of September 6, 1963. That judgment, however, did not describe the tract as annexed and if the rule, espoused by plaintiffs and adopted in the principal opinion, is to be that the court must look at and approve the precise tract to be annexed, then on the basis of a super-technical requirement read into the Sawyers Act, the city was not authorized by the prior judgment to annex the decreased area and the annexation would be subject to subsequent attack.
' I cannot accept such a result as a correct interpretation of the Sawyers Act and what it requires. When Judge Elliott heard the original case, he necessarily looked at the 20 to 25 square mile tract and concluded that it, including all parts thereof, was reasonably necessary to the proper development of Liberty and that the city within a reasonable time could furnish municipal services to the entire tract. His finding is not subject to the interpretation that annexation was reasonable and necessary only if every foot of the original tract was annexed. Obviously, if Liberty had sought to add land not originally included and not considered by Judge Elliott, a new proceeding would have been required, but when the city simply deleted a portion of the tract approved by the court, an automatic new proceeding should not be a prerequisite to completion of the annexation.
This is a time when the courts of this state are hard pressed to handle expeditiously the greatly expanded and still growing case load with which they are confronted. When the language of the Sawyers Act does not require otherwise, it is both logical and reasonable to interpret it as saying that when a court, in a suit brought pursuant to that Act, approves a legislative determination to annex a tract therein described, that judgment will authorize annexation, without the necessity of a new Sawyers Act proceeding, of all of that tract or a part thereof, provided that if persons affected thereby so desire, they may bring a suit attacking annexation of the decreased portion of the original tract on the basis that because of the decrease in area (or a delay in consummation) the annexation no longer is reasonable or necessary. If and when such suit is brought and the court finds that the proponents therein have proved their contentions and that annexation is not reasonable and necessary for those reasons, the annexation should be prohibited. Such an interpretation protects the rights of persons genuinely affected by a decrease in acreage or a delay in consummation of the annexation. At the same time it avoids the useless and wasteful practice of requiring a whole new Sawyers Act proceeding simply because there has been a reduction in acreage or a delay in the date of annexation. In my judgment, this interpretation is in accord with what the General Assembly intended by the Sawyers Act.
An examination of the evidence offered by plaintiffs in this case discloses that plaintiffs were not relying on and did not seek to show changed conditions resulting from the decrease in the area to be annexed. For example, they did not seek to show that the reduced tract was of such a character that without the part excluded it would not be amenable to development, and *743that annexation of that part alone •vyould be unreasonable. They did not seek to show that access to the reduced area was not good or feasible. They did not seek to show that the boundaries, as now drawn, were so irregular as to be impractical or that the new area was not contiguous to the city. They did not even seek to show that the city’s financial situation had deteriorated so that it could not furnish services to the new area or that the city had less equipment and personnel than at the time of the prior Sawyers Act adjudication and for that reason could not furnish services. In other words, they did not present evidence to show that changes were produced by the reduction in area which made annexation unreasonable or unnecessary or that the city’s ability to perform had changed. Instead, they sought, as the transcript discloses, to go into matters settled by the September 6, 1963, judgment and on that basis to defeat the annexation. For example, they kept seeking to introduce evidence that Liberty has plenty of vacant land within the city and does not need to expand. They wanted to go into the character of the area to be annexed and to prove that it is mostly farm land, and not an area in which there are substantial housing developments or matters of that nature. The trial judge pointed out that these were attempts to go behind the prior judgment and to relitigate questions settled therein and he did not permit an attack on the annexation on such basis.
If the principal opinion stands, the city will have to pass a new resolution to annex the revised area and then bring an entirely new action under the Sawyers Act. The judgment rendered September 6, 1963, will not be res judicata of anything. The city again will be required to make proof that it needs to expand its boundaries, that it does not have enough undeveloped area within its present boundaries to meet its needs and that it is reasonable and necessary to annex the particular tract described. It also will have to prove again that it will be able to furnish municipal services within a reasonable time to this area. As a result, plaintiffs will get to relitigate issues resolved by the first judgment, and plaintiffs will get a third bite at the apple. They had their first bite in their opportunity to litigate these issues and they stood by, allowing a final judgment to be entered. They had their second bite in the trial of this case before Judge Connett. They had every opportunity to establish that the reduction in area and the delay in time had caused the annexation as then proposed to be unreasonable and unnecessary. They failed to so show and the court so found. They are not entitled to and I would not give them a third bite. I would affirm the judgment.