SPECIALLY CONCURRING.
I concur in the result. I also concur in the majority opinion insofar as it holds that the annexation proceeding is void as an unreasonable exercise of the legislative power vested in the city under the provisions of ch. 210, Oregon Laws 1949. The specially concurring opinion of Mr. Justice Rossman gives eloquent additional support to that conclusion.
In the instant matter, Miles et al. v. Veatch et al., 189 Or 506, 220 P2d 511, 221 P2d 905, is apparent authority for the application which is made of it in the majority opinion. This case will, however, continue to embarrass us and again be so used and possibly abused in the future until re-examined and overruled on the point which occasions its employment in the majority opinion or until it is appropriately limited, as I think should be done.
The division in the court arises over the propriety of the procedure employed by plaintiff to produce its desired result. This, however, was waived in the lower court and is raised here for the first time and, for that reason, should not command the degree of importance here which those dissenting presently attach to it. If it had been first raised in the lower court, I would have been compelled to now follow the conclusions reached by the dissenting opinions.
Reluctant as I am, as a matter of personal policy and practice, to rest my support solely upon the result achieved.by a majority opinion, I find in this instance a further condition which I believe justifies and excuses my part in thus concluding this litigation at this time.
The majority of the court, if not all, is united on the ultimate and all-important proposition that the attempted annexation is void as an unreasonable exercise of the powers conferred on the city of Estacada *201by ch. 210, Oregon Laws 1949. It is this point of accord which, in my opinion, particularly warrants my qualified concurrence in this matter. As above stated, our differences are only with reference to procedural propriety. None of us will venture to gainsay that if the present appeal were dismissed on the controverted point of procedure alone and the same matter eventually returned to us in due course by quo warranto, we would not once again declare, as does the majority opinion, that the entire annexation proceeding is void. Here, a public question of no small importance is involved. Its early solution is important not only to plaintiff but to every other property owner within the extensive area annexed. It is also important to the city of Estacada for, pending a final determination of the issues raised, its municipal plans and operations in the new area must remain in a state of suspension and uncertainty. Nothing new can be brought back to this court if this case is now dismissed and later retried as a proceeding in quo warranto. If we would thereby compel the plaintiff to resort to quo warranto and return here again one or perhaps two years hence, it would only be to obtain the same judicial result which the majority opinion presently accords. More than two years have already elapsed since the annexation was first voted.
Under the circumstances here present, justice demands a prompt and final response concerning the legality or illegality of the instant annexation matter. It should not be delayed nor denied by a difference of opinion over what is the proper legal vehicle to convey the problem to the court. I, therefore, join with the majority of my associates in giving a present answer to the litigants now before us but without subscribing to their views on the propriety of plain*202tiff’s form of remedy as the proper or most effective method to achieve that end in the future in matters of like kind.