(dissenting).
I would affirm the judgment herein, assuming that the evidence presented in the trial court was sufficient to meet the requirements of the Sawyers Act (§ 71.-015),1 a question not reached in the majority opinion, because I am not convinced that the 1963 Act (§§ 71.860-71.920)2 makes it mandatory that the elections prescribed by § 71.870 must be held before it is permissible to institute and prosecute a Sawyers Act case. I concur, however, with the conclusion of the majority opinion that § 71.870 is applicable to this annexation by the City of Kirkwood and that a favorable vote in simultaneous elections in the city and the area to be annexed would be required before the annexation could be completed.
The majority opinion finds that there is an irreconcilable repugnance between the provisions of § 71.015 (incorporated specifically by § 71.860 of the 1963 Act) and § 71.880, in the fact that each contains language requiring certain action before proceeding as otherwise authorized or provided by law. These two provisions, in effect, call for two different conditions precedent, says the majority opinion, and cannot be reconciled. Consequently, on the basis that § 71.015 is both a prior and a general law, purporting to apply to any city, whereas § 71.860 is both a later and a special law, applying only to cities, towns and villages in first-class charter counties, the majority opinion holds that § 71.880 repeals § 71.015 to the extent of the repug-nancy. The opinion further holds, as additional support for its conclusion, that the legislature intended compliance with § 71.-880 before the city should proceed with judicial review under § 71.015 on the basis that § 71.920 makes judicial review unnecessary if the proposal to annex is “approved by a unanimous affirmative vote in both the annexing municipality and the territory sought to be annexed.” I cannot agree with either of these conclusions, for the reasons hereinafter set forth.
The majority opinion overlooks the fact that § 71.860 of the 1963 Act specifically incorporated the provisions of § 71.015 into the 1963 Act and made it applicable to all municipalities located in first-class counties having a constitutional charter for their own local government. Prior to that time the Sawyers Act had been held inapplicable by its terms to towns and villages (Emerson Electric Manufacturing Co. v. City of Ferguson, Mo.App., 376 S.W.2d 643), but by § 71.860 the legislature now made it applicable to all cities, towns and villages in first-class charter counties. The *41effect thereof is the same as though the language of § 71.015 was repeated in § 71.860 verbatim, except to make it apply to all cities, towns and villages in first-class charter counties. Therefore, in interpreting the section requiring that a favorable declaratory judgment be obtained, we must construe it as an integral part of the 1963 Act. We are not confronted with the question of whether § 71.880 shall prevail as a provision in a later, special law over an earlier, general law. The question is not whether § 71.880 prevails over § 71.015, but rather whether § 71.880 prevails over § 71.860, or vice versa, or whether both can be made effective. We are dealing with two sections in the same law, passed at the same time. Hence, the cases cited in the majority opinion, such as State ex rel. City of Springfield v. Smith, 344 Mo. 150, 125 S.W.2d 883, are not applicable. Those cases are considering a situation involving two different statutes, passed at different times.
The question, then, becomes one of whether we can construe the various sections of the 1963 Act so as to avoid repugnancy and give effect and meaning to all. The very first section of the 1963 Act (§ 71.860), when we consider the language incorporated by reference as a part thereof, provides that whenever the governing body of a city, town or village in a first-class charter county has adopted a resolution to annex, it shall “before proceeding as otherwise authorized by law or charter” file a declaratory judgment action. The next sections are § 71.870, which provides for simultaneous elections in both the municipality and the area to be annexed, and § 71.880, which provides that the city “before proceeding as otherwise provided by law” shall certify notice of such proposed elections to the board of election commissioners and the governing board of the county. This is to be done by sending to the agencies indicated a description of the tract to be annexed and a copy of the order, resolution or ordinance which contains the legislative act of the municipality ordering the election. Nothing in either § 71.870 or § 71.880 provides specifically that the elections are to precede the Sawyers Act suit called for in § 71.860. Neither do I find such provisions by implication. It is to be noted that § 71.880, the section relied on primarily by the majority opinion to establish repugnance, calls for sending a copy of the order, resolution or ordinance directing the election. This is to be done before proceeding as otherwise provided by law. This does not imply that the declaratory judgment action could not have preceded, for the order directing the election is not necessarily the same as the resolution to annex referred to in § 71.015 and incorporated by reference into § 71.860. There simply is not any irreconcilable repugnance in the two sections. It even is arguable that this language as to the order, resolution or ordinance which “orders the election” evidences a recognition by the legislature that action under § 71.870 was to follow action under § 71.860, but certainly no clear and definite order of priority is established. It would seem that if the legislature had intended by the provisions of §§ 71.870 and 71.880 that the holding of the elections must precede the institution of a Sawyers Act suit, they certainly could and would have so provided.
As noted, both § 71.860 and § 71.880 contain language indicating that the acts required thereunder shall be performed before proceeding with annexation. The existence of such language in both sections is confusing, and leaves much to be desired, but the language of neither section clearly indicates that it is to precede the other or that one is a condition precedent to the other. The only thing absolutely clear is that both the Sawyers Act suit and the elections must precede annexation. Under these circumstances, I would construe the statute in such a way as to give effect both to § 71.860 and to § 71.880, rather than to nullify or repeal § 71.860, as the majority opinion does. It is our obligation to so do when possible. I would hold that it would be permissible to proceed first with the Sawyers Act suit pursuant to § 71.860, and then *42with the elections under §§ 71.870 and 71.-880, or vice versa, or that the two even could proceed simultaneously, but that compliance with both would be required before proceeding' with annexation. I would agree that if no Sawyers Act case has been brought or decided at the time of the elections under § 71.870, a unanimous vote in both elections would dispense with the necessity therefor. Section 71.920 so provides. The language of that section dispensing with the need for such a suit under those circumstances would indicate that the elections may be held first, but I do not agree that the statute thereby creates by inference a mandatory requirement that the elections precede the institution of the suit.
The majority opinion says that it repeals or nullifies § 71.015 to the extent it is repugnant to § 71.880, but it is submitted that instead the result is to repeal § 71.860 as it is the section which now makes the declaratory judgment suit provisions applicable to cities, towns and villages in first-class charter counties. Consequently, the effect of the majority opinion might be that the Sawyers Act would continue to be inapplicable to towns and villages in first-class charter counties, thus nullifying the intention of the legislature as expressed in § 71.860 to extend the requirement of a declaratory judgment action to such municipalities.
Insofar as the City of Kirkwood is concerned, the result of the majority opinion is that the present Sawyers Act case is dismissed. If the city later holds elections and obtains favorable votes in both the city and the area to be annexed, it then must retrace its steps by filing a new Sawyers Act case and trying the case anew, in effect redoing exactly what has been done in the case now pending in this court. This is a procedure which is wasteful of both time and money. I do not find such mandatory language in the various sections of the 1963 Act as to require that result, and I do not believe the legislature so intended.
. All references to § 71.016 herein are to RSMo 1959, V.A.M.S.
. All references herein to §§ 71.860 to 71.920, inclusive, are to Mo.R.S. Cumulative Supplement 1965, Vol. 5, V.A.M.S., Pocket Part.