(dissenting). The city of Milwaukee, a special charter city, is now permitted, under the majority opinion, to enjoy a very substantial and special advantage under the provisions of the general charter law and over every other city in the state, the annexation of territory here permitted being based upon area rather than value basis. And furthermore, such substantial advantage is given without any prior adoption of the provisions of the general charter law by such special charter city.
The annexation of territory to a city, thereby enlarging its boundaries, is an amendment to its charter. State ex rel. Shawano v. Engel, 171 Wis. 299, 305, 177 N. W. 33; Wauwatosa v. Milwaukee, 180 Wis. 310, 192 N. W. 982. In all other instances than the present one it has been held that to take advantage of provisions under the general charter law requires adoption by ordinance of such provisions and that such action results in an amendment to the special char*636ter of such city. Davey v. Janesville, 111 Wis. 628, 635, 87 N. W. 813; Adams v. Beloit, 105 Wis. 363, 370, 81 N. W. 869. That there must be a substantial compliance with the law in order to- be of any avail is held in State ex rel. Boycott v. La Crosse, 107 Wis. 654, 84 N. W. 242. La Crosse subsequently took the proper steps to so comply, as is said in Schintgen v. La Crosse, 117 Wis. 158, 162, 94 N. W. 84. There must be the adoption of a substantial and complete part, not a fragment only, of such general charter law or it is of no avail. Borgman v. Antigo, 120 Wis. 296, 300, 97 N. W. 936; State ex rel. Mueller v. Thompson, 149 Wis. 488, 495, 137 N. W. 20; Sayles v. Hartford, 161 Wis. 136, 152 N. W. 853; Smelker v. Campbell, 165 Wis. 358, 361, 162 N. W. 171. When once adopted it cannot thereafter be repudiated. Holt L. Co. v. Oconto, 145 Wis. 500, 507, 130 N. W. 709.
Such have been the consistent and strict holdings of this court heretofore as to all other special charter cities. In all those cases special charter cities have been required to exercise a substantial compliance with that which' is referred to as “the manner provided” in sec. 925 — 17 for adoption of parts of the general charter law, and which requirement is a definite and specific part of sec. 926 — 2.
The legislative policy that special charter cities, in order to take advantage of the general charter law, must first formally indicate their purpose so to do by ordinance adopting the desired provisions, has been continuous and is in the present general charter law, sec. 62.03. Yet in this instance that prerequisite proceeding, so absolutely essential in all other instances, is entirely ignored and in effect read out of the statute.
This dissent is compelled because I cannot see any legal or logical basis for granting to respondent the unique and exceptional privilege now being accorded to it.
Prior to November, 1892, when sec. 31, art. IV, Const., prohibiting special or private laws for incorporating towns *637or villages, or amending the charters thereof, was further amended by prohibiting such special legislation as to the granting of charters, or amendments thereof, of cities, Milwaukee, as a special charter city, annexed territory by virtue of special legislation, as is instanced by the annexation of Bay View by ch. 37, P. & L. Laws of 1887.
In 1889, just prior to the above cited amendment, the legislature embarked on the policy of trying to do away with the great confusion that arose by reason of the multitude of special charters for the cities of the state by enacting ch. 326 of that year, a general charter law, but which provided that special charter cities should not be affected thereby unless they adopted the whole of such general charter law. (Subsequently adoption of parts thereof was permitted.) Then came the constitutional amendment of 1892, supra, very distinctly ending, as a matter of public policy, all future special legislation as to particular city charters or modifications thereof. Immediately following this came ch. 214, Laws of 1893, providing in substance that special charter cities may annex adjacent territory in the manner provided by subch. IV of ch. 326, Laws of 1889, the general charter law, and giving to special charter cities a right to annex upon a petition based upon area basis as distinguished from the value basis in the requirement by sec. 18 for general charter cities.
By ch. 245, Laws of 1895, the aforesaid sec. 18 was again changed as to general charter cities in manner not material here, and by a separate section said “chapter 214, Laws of 1893, is hereby repealed.”
The respondent very earnestly contends, appreciating the need of finding somewhere in existence the grant of such wide power to a special charter city as was found in that ch. 2Í4, so speedily repealed, that such repeal was not intended or was a-mistake by the legislature. As is pointed out in the majority opinion, such position is not tenable, however. That it was intentionally repealed is further em*638phasized by the fact that in the revision of 1898 sec. 4978 expressly repealed said ch. 214 as well as ch. 245, Laws of 1895.
It is evident that under the constitutional amendment of 1892, after the repeal in 1895 of ch. 214, Laws 1893, there was then no method bjr which a special charter city could in any manner annex territory. The succeeding legislature, evidently appreciating the then situation, by sec. 1, ch. 138, Laws of 1897, added to such sec. 17, subch. IV, of the general charter law, supra, a provision that the annexation power under the general city charter shall be exercised by such special charter city as shall by ordinance declare itself of a certain class and adopt in the manner provided in ch. 326, Laws of 1889 (the general charter), the provisions of said subch. IV (general charter) relating to annexation of territory.
The right thus restored to special charter cities to annex territory was, however, thus expressly conditioned upon such city adopting by ordinance the appropriate provisions of the general charter law. That such prerequisite was of substance and importance is clearly indicated by the decisions hereinbefore cited.
Evidently the legislature in 1897 by this sec. 1, ch. 138, indicated an intention not to restore to special charter cities the broad gift which was given by ch. 214, Laws of 1893, and taken away by sec. 3, ch. 245, Laws of 1895, supra. The power to annex, by ch. 214, Laws of 1893, was an absolute and unlimited gift to be exercised at the will of such special charter cities. The power in 1897 was a limited and conditional gift, not taking effect by the mere passage of that ch. 138, but only after such special charter city had, on its own part, conformed with the conditions precedent of the gift by formal acceptance of such privilege.
The prerequisite of declaring its classification as a city has been since rendered unnecessary by subsequent legislation making a general classification and defendant city one *639of the first class. Such legislative classification, being superior to and controlling over any that the city itself might make, needs no further consideration here.
The second of such conditions, however, the adoption by ordinance of the appropriate provisions of the general charter law, has not been done here, as is so specifically alleged in the answer, though the contrary was alleged in the complaint.
Then came the revision of 1898 by the 1897 legislature, and an examination of the report of the revisors and the special committee of the legislature to whom such report was referred discloses, as to sec. 925 — 17 involved here, the following situation:
The revisors presented, at page 348 of their printed report, a going back to the original sec. 17, subch. IV, ch. 326, Laws of 1889, so as to have it read: “Section 925' — 17. Territory lying adjacent to any city organized under this chapter may be annexed in the manner hereinafter set forth.” The special committee, however, at page 174 of their printed report recommended that the amendment of limitation made by sec. 1, ch. 138, Laws of 1897, supra, should be incorporated so that it should read as it did when finally adopted by the legislature, and for convenience is here inserted as follows:
“What cities. Section 925 — 17. Territory lying adjacent to any city organized under the provisions of this chapter or adjacent to any city organized under a special charter which, by ordinance, has declared such city to be of a certain class according to the provisions of section 925 — 1, and has adopted, in the manner provided by section 92$ — ¿¡, sections 925 — 17 to 925 — 21, inclusive, may be annexed to such city in the manner hereinafter set forth.”
This change by the committee and as adopted by the legislature was a deliberate expression on their part of the intent to have the annexation power contained in the general charter law applicable to only such special charter cities *640as should, by prior ordinance, express their option of adopting such general charter law provision. Such addition by the committee was entirely unnecessary if considered merely as a part of the general charter law scheme itself, that being taken care of by sec. 925 — 17 as proposed by the revisors. It clearly showed the definite legislative purpose of having the annexation power of general charter cities extended to a limited class of special charter cities only, viz. those who adopted the annexation provisions. This view is strengthened when consideration is given to the note at the head of ch. 40&, R. S. 1898 (the special charter law), viz.:
“On recommendation of the committee on revision, all provisions ‘pertaining exclusively to cities of the first and second classes,’ except so much of ch. 40a as relates to such cities, were stricken out of the revisors’ bill, and all laws relating solely to such cities were omitted from the report of said committee.”
It is now in effect held by the majority opinion that sec. 926 — 2, found in the special charter chapter of the revision of 1898, reading: “Territory lying adjacent to any city so incorporated [viz. under special charter] may be annexed to such city in the manner provided by sections 925- — 17 to 925 — 21 inclusive,” is the only source of any power granted to respondent to act as it did. Yet sec. 925 — 17, supra, is as much included in sec. 926 — 2 as is sec. 925 — 18, upon which latter alone respondent hinges its entire right of procedure. And the manner provided for in sec. 925' — 17 is the adoption by the special charter city by ordinance of the appropriate parts of the general charter law. All other special charter cities have been required to follow just such a manner of adopting by ordinance part of the general charter law of which they wished to avail themselves; and I am unable to see why such a course should not be followed in' the instant case.
No good reason has been suggested why the respondent city, having no annexation power under its own special charter and yet desiring to step over into the general charter law *641to take there that which is a larger power than any granted to general charter cities, should not have taken the plain and simple method of specifically, by ordinance, making subch. IV of the general charter law a part of its charter, as is required in every known instance under these laws.
That there is some possible duplication or repetition of provisions regarding annexation in the general charter law and the special charter law is of no more material significance than is the triplication as to classification of cities in these two laws, as is shown by sec. 925 — 1 in ch. 40a in the general charter law, again in sec. 926, and again in 926 — 1, both in ch. 40&, the special charter laws.
In the preface to the printed volume of the' Milwaukee city charter prepared in 1914, it is mentioned that a difference of opinion exists as to what parts of ch. 40a (the general charter law, R. S. 1898) apply to the city of Milwaukee without a prior adoption, and that it is fairly well settled, however, that no section in the general charter law applies to Milwaukee without adoption unless it contains a phrase substantially as follows: “Applicable to cities specially incorporated,” or “to cities operating under special charter;” neither of which phrases appears in the statutes relied upon by respondent here.
It may also be noted that in such revised Milwaukee charter as a part of ch. 1, in sec. 2b thereof, headed, “Annexation of territory,” sec. 926 — 2, R. S. 1898, supra, is quoted verbatim as the only provision on the subject.
From the evident public policy of this state heretofore recognized there ought to be clear legislative grant of the peculiar and exclusive power exercised by the defendant special charter city of general charter provisions before it should receive judicial approval.
I am authorized to say that Mr. Justice Jones concurs in this dissent.
A motion for a rehearing was denied, with $25 costs, on February 10, 1925,