I joined in the judgment of affirmance that was originally given, but the argument upon the rehearing convinced me that the last ordinance should be sustained, and the property sought to be annexed, and which has enjoyed special benefits, should be held to bear its just proportion of the public burdens. Prom the title of the ordinance and its provisions, it seems to me to have been the manifest' purpose of the mayor and council to annex territory, and not to define and establish the boundaries of the city. Presumably they were doing that which they had the legal power to do, *573and were not attempting to do that which the law does not permit. They had the power to add territory, and to do so an extension of the city limits was required. The title of the ordinance indicates that they were endeavoring to extend the limits so as to take in additional territory. In doing so, they described a line which embraced both platted and unplatted territory. The unplatted territory could not be annexed, but they had authority to annex that which was platted; and, although the effort to annex was somewhat bungling, I think the ordinance is effectual to annex that which could be legally annexed. Ordinances to annex territory frequently embrace and describe several tracts, and the failure to properly describe one tract has never been held to defeat the annexation of those which were properly described. So here, the fact that the new boundary line made by the council in its effort to annex embraced unplatted tracts of ground should not defeat the annexation of that which was, subject to be annexed, and which was included within the limits as extended. I therefore think the rehearing should be allowed.
Per Curiam: The questions involved in the cases of M. W. Stewart et al. v. M. Schoonmaker et al., No. 8353, and M. W. Stewart et al. v. O. D. Burt et al., No. 8354, from the district court of Wyandotte county, are the same as those just decided in Stewart v. Adams, No. 8356, and the motions for rehearing in these cases will be overruled upon the authority of the opinion Per Curiam, filed in that case.
Johnston, J., dissenting.