(dissenting): I am unable to concur in the opinion of the majority that the Fairfax Industrial District does not lie “within or mainly within” the city of Kansas City. I believe that it does and that ordinance 40,220 is valid as a proper exercise of the city’s authority to annex under G. S. 1955 Supp., 13-1602a.
I agree with paragraphs 1, 2, and 8 of the Syllabus of the opinion that the advisability of enlarging the territorial limits of the city, and providing therefor, is a legislative function which cannot be delegated to a court; that cities are creatures of the legislature and can exercise only the power conferred by law; and that courts should not judicially legislate so as to broaden the plain letter of a statute.
I disagree with the result of the majority opinion because its interpretations of the annexation statute in the case at bar (13-1602a) are not a proper application of these rules of law.
In determining whether or not the Fairfax Industrial District had been subdivided into “blocks and lots” so as to come within the statute, the majority opinion applies the test stated in Syllabus 4 that the word “block” as used in 13-1602a ordinarily refers to a space rectangular in shape, enclosed by streets and used or intended to be used for building purposes, citing in support thereof Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405; McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438; Berndt v. City of Ottawa, 179 Kan. 749, 298 P. 2d 262.
These cases are all interpretations of G. S. 1949, Sections 12-601 and 12-602, otherwise known as the general paving law. These sections provide that assessments for pavement shall be made on the property to the middle of the “block.” In the early interpretations of the word “block” under this statute nothing was said about them being rectangular or used or intended to be used for building. In the Bowlus case, Justice Burch said:
*881. . According to all the dictionaries and the popular understanding everywhere a block is a portion of a city surrounded by streets. In common practice city plats are made to conform to this understanding, and the legislature had in mind blocks so constituted, and not tracts arbitrarily designated as blocks by the donor of a plat. . . (p. 776.)
In the later cases, particularly Berndt v. City of Ottawa, supra, the court defined the word “block” as follows:
“Ordinarily the word block’ as used in G. S. 1949, 12-601 and 12-602, refers to a space in a city, usually rectangular, enclosed by streets and used or intended for buildings (following Wilson v. City of Topeka, 168 Kan. 236, 212 P. 2d 218).”
Syllabus 4 here follows the definition in the Berndt case.
These decisions are neither persuasive nor stare decisis of the definition of “lots and blocks” as the term is used in the annexation statute G. S. 1955 Supp., 13-1602a.
The annexation statute simply provides that whenever any land adjoining or touching the limits of any city has been subdivided into "blocks and lots” it may be annexed. The standards of the above cases are impractical of application to the statute here. The Bowlus case describes a “block” as a portion of a city surrounded by streets. This is a fair test under the paving assessment law but can hardly apply under the annexation law where the “block” to be annexed is not yet a portion of the city. Likewise, the same impractical result follows under the Berndt definition. The annexation statute says nothing about “blocks” being “rectangular in shape, enclosed by streets and used or intended to be used for building purposes.” It is understandable that this kind of a definition may be helpful in the application of the paving law but it is totally beyond the scope and requirements of the annexation statute. Contrary to the position of the majority opinion there is nothing in the statute which requires certain arbitrary standards of common usage to which a “block or lot” must in some measure conform. There is also no basis whatsoever to place the annexation statute in pari materia with the tax statutes G. S. 1949, 79-405, 79-406 and 79-407, under which this plat was allegedly filed, the platting statute G. S. 1949, 13-1413, or for that matter any other statute.
As a matter of fact in these times land is being platted on more esthetic lines than ever before. “Blocks and lots” may be of all sizes, shapes and descriptions. Many “blocks” may be dedicated for parks or recreational areas and may lie in between rows of *882houses and not be enclosed by streets or alleys. Are they not to be considered “blocks and lots” within the statute because they fail to comply with an arbitrary standard of common usage?
Section 13-1602a provides in clear and unambiguous language that land adjacent or touching the limits of any city which has been subdivided into “lots and blocks” may be annexed. We should not judicially change the plain words of the statute by adding descriptive adjectives of limitation such as we have done here.
In the instant case it is doubtful even under more liberal interpretation that the Fairfax Industrial District has been subdivided into “blocks and lots” to come within the purview of the statute but the law of this case goes far beyond the determination of this fact and as stated in Syllabus 4 is a serious limitation to annexation not intended by the legislature.
In determining whether or not the Fairfax Industrial District is “within or mainly within” the city of Kansas City the majority opinion first defines the meaning of the words “within and mainly within.”
The court then states that:
“Our cases dealing with unplatted lands assume that more than one-half of the perimeter of the unplatted land sought to be annexed must have a common boundary with the city. . . .”
citing in support thereof, State, ex rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873; State, ex rel., v. City of Hutchinson, 109 Kan. 484, 207 Pac. 440; State, ex rel., v. Kansas City, 122 Kan. 311, 252 Pac. 714.
This rule is then applied and inasmuch as less than one-half of the total perimeter of the Fairfax Industrial District lies adjacent to the city the opinion concludes that the area is not “within or mainly within” the city.
Under the cases cited the assumption that more than one-half of the perimeter of unplatted land must have a common boundary with the city is unwarranted. These cases turn on other points. In fact the precise question of the meaning of “within or mainly within” has never been decided in this state. This is a case of first impression.
It will be noted that the definitions of the words “mainly” and “within” in the majority opinion are based upon the general references of Ballentine’s Law Dictionary, Corpus Juris, and Corpus Juris Secundum. Surprising as it may seem the words really have not been defined in relation to annexation statutes. They are defined in McGill v. Baumgart, 233 Wis. 86, 288 N. W. 799, but this *883definition adds nothing additional to the definitions in the general reference books.
The point is that in determining the interpretation and application of the words “within and mainly within” this court is not bound by any precedent and has the freedom of decision such a situation implies. The question was raised in State, ex rel., v. City of Kansas City, 169 Kan. 702, 222 P. 2d 714, but the court did not decide it.
“Defendant next argues that Fairfax Industrial District is a proper subject of annexation and that it lies within or mostly within the city. The contention is not important here. The ordinance in question did not attempt to annex Fairfax Industrial District to the city. It attempted to annex only a part of Fairfax Industrial District, the part specifically described in the ordinance. While there was much evidence received by our commissioner pertaining to the Fairfax Industrial District as a whole its only purpose was to show the general situation and the history of the development of the district. These are the only purposes for which such evidence can be considered here. We must necessarily limit our decision to the authority of the city to annex the particular property described in the ordinance, in view of our statute (G. S. 1935, 13-1602) under which the city acted.” (p. 717.)
Here again Section 13-1602a provides in clear and unambiguous language that unplatted land lying “within or mainly within” a city may be annexed. We should not judicially substitute the fixed mathematical requirement of “more than one-half the perimeter” for the words “within or mainly within.” This too is a limitation on annexation not intended by the legislature.
There is nothing difficult in either the definition or application of the words “within and mainly within.” Under the definitions of the commonly accepted reference books set out in the majority opinion the application must necessarily depend upon the facts and circumstances of the given case. It should not depend alone on a mathematical calculation. Following the rules of law laid down in paragraphs 1, 2, and'8 of the Syllabus this court has a duty to inquire as to the authority of the city to act. Beyond that we should not substitute our judgment on the facts and circumstances for that of the city in the application of the words “within and mainly within” in the absence of a clear abuse of discretion.
We certainly should not require more of cities under this statute than we require in others. The test of “arbitrary, capricious and unreasonable” is an almost universal one in the review of acts of public bodies.
In the instant case the city certainly had authority to act under the statute.
*884The Fairfax Industrial District is bounded by the Missouri River which winds around the district on the north and east, by a small portion of Quindaro Township to the west, and the balance by the city.
Under a total perimeter test as applied by the majority, the city, of course, does not occupy fifty percent of the total boundary, but there are other facts and circumstances which the city considered in enacting the ordinance. Most important of all is the fact that the city has reached its greatest possible surroundment of the area. The Fairfax Industrial District cannot grow into the river nor can it extend itself into Missouri. The river which forms the state boundary presents a natural and jurisdictional barrier both to the district and to the city. The city actually occupies 24,040 feet of the possible 24,590 feet of non-river boundary. This comes to ninety-six percent. For this and other reasons the city decided the district is “mainly within” the city. Can we say such a judgment is unreasonable and a clear abuse of discretion? I think not.
There is no basis to presume the legislature was aware of this situation and intended that special statutes would be necessary to achieve annexation. The same problem will arise whenever any city attempts to annex land which is contiguous to it and which borders to a state boundary. There is no reasonable ground for presuming that the legislature intended to exclude any case involving unplatted lands from the purview of the statute, or that it intended specifically to exclude a case involving a state boundary.
The situation differs from the one in which the legislature did make special provision for annexation of areas across a county line from a city. There, statutory authority was provided to allow a city to go beyond a county boundary and annex land in an adjacent county. ' Where state boundaries are concerned, the city can never do more than annex up to the boundary. No statutory provision could effect a contrary result.
It is more reasonable to presume that the legislature intended the statute to provide for every case involving unplatted lands. Whether or not the legislature contemplated the instant case or cases like it, it is within the accepted scope of the judicial function to apply a general statute to a specific case. In doing so, the court does not legislate.
Fatzer, J., concurs in the foregoing dissent.