agrees, dissenting:
I cannot agree that the facts of this case in all respects meet the four requirements necessary for de facto annexation, as defined by the majority, i.e. (1) a statutory scheme; (2) attempted compliance in good faith; (3) colorable compliance; and (4) an assumption in good faith of municipal power over the annexed property.
Our original opinion, wherein we declared the attempted annexation of Parcels Nos. 38 and 41 “wholly nugatory,” was filed January 10, 1973. 89 Nev. at 14. Because of intervening motions by the North Las Vegas City Attorney, the case was not actually remitted to the district court until March 29. On March 30, the district court ordered the annexed property returned to the county.
First, I suggest that as of January 10, 1973, if not before, the City of North Las Vegas had clear notice its exercise of municipal power was invalid. If, indeed, de facto annexation ever was present, it would have to terminate as of that date. From the record, one cannot discern if funds were taken by the City between January 10 and March 30, but the record most certainly does not foreclose this possibility, and most *718certainly such funds could not have been taken in “good faith.” During oral argument, the North Las Vegas City Attorney acknowledged this.1 At a minimum, on remand, as its counsel candidly admits, the City should account for any monies received after January 10, 1973.
Second, I suggest colorable compliance never existed with respect to Parcel No. 38. Assuming that colorable compliance requires a defect of a technical rather than material nature, how can we consider the defects with respect to Parcel No. 38 merely technical? The problem with respect to Parcel No. 38 was more than a mere misdescription of the land. The City circulated a proper petition for Parcel No. 39 and then attempted to file the petition for the purpose of annexing No. 38, an area % the original size. In effect, no petition at all has been filed. Of course, the petition contained an adequate number of signatures by landowners within Parcel No. 38 — but these people signed the petition under the mistaken belief that a far larger parcel was to be annexed.
No one — and certainly not the North Las Vegas city fathers — could presume to say how the citizens would have reacted if they had been asked about Parcel No. 38, which the City ultimately sought to annex.
In Peterson v. Bountiful City, 477 P.2d 153 (Utah 1970), a case the majority have cited, the Utah Supreme Court allowed an action for return of funds where the city failed to secure the required number of landowners in favor of annexation. In City of Birmingham v. Bouldin, 190 So.2d 279 (Ala. 1966), the Alabama Supreme Court held annexation void because the statutory notice provision was not complied with prior to an annexation election. The defects involved in those cases were considered to be of a substantial nature.
*719At least as to Parcel No. 38, we are not concerned with, a mere technical defect. Respondent simply failed to comply with the statutory scheme.
At oral argument, the following colloquy took place:
Chief Justice Gunderson: “I have a little difficulty seeing how the City could claim to be in good faith in taking the revenue beyond the time of our original decision, and I think you’d have to concede that, at that point, they were on rather clear notice that they did not hold property under color of law. Wouldn’t you agree with that?”
Mr. Schofield: “I would agree to that right now, your honor.”
Chief Justice Gunderson: “Do you think then that, at least insofar as the decision [now on appeal] fixes a date beyond our initial decision, that it is incorrect?”
Mr. Schofield: “I believe so, your honor. Again, I don’t know if that’s the case. I assume it is until the final order came down, but I would not argue at all with that. And that was not the intent, of course, of our argument on the motion to go on remittitur. That very question, in fact, has never come up before. But I would concur 100%. January 10 would be the date — ”