(dissenting).

The court’s opinion, in determining the legislative intent in providing for the enlargement of incorporated areas, fails to consider the absence of police protection in outlying Alaska homes confirmed in our judicial knowledge by the Alaska judiciary attending our circuit conference. It further ignores the fact that the annexation statute also has the purpose of bringing the adjoining areas under the Town’s taxation.

More particularly, the court’s opinion fails to consider the earlier annexation proceeding by the Town of Fairbanks prior to the 1947 amendment, admitted by appel-lees so to have been litigated. That litigation makes it clear that the legislative purpose in creating the presumption is that "Those owners of land” who have registered "slwll he presumed to be the owners of substantial property interests” who arc entitled to vote in the annexation election. The opinion ignores the use of the article “the” in the phrase “the owners” as referring to the owners in the earlier portion of the Act to which the amendment was added. It would construe the amendment as if it had omitted the article “the” and is to be deemed to read “shall be presumed to be same of the owners” and no more.

The petition of the Town of Fairbanks was filed under the authority of Alaska Compiled Laws Annotated 1949, §§ 16-1-21 to 16-1-28. Petitioner claimed to have made a prima facie case under the authority of Chapter 50, § 1, p. 119, Laws of Alaska 1947, an amendment to § 16-1-22, later discussed. On appellees’ motion, the petition was dismissed.

*129 Section 16-1-22 requires that the petition of the Council of the Town of Fairbanks shall be signed by “a majority of the owners of substantial property interests” in the land proposed to be annexed tO 1 the town.

After the enactment of § 16-1-22, but pri- or to its amendment, the Legislature of Alaska made it the duty of one owning land not “located within an incorporated town” to file in the United States Land Office for the district in which the land is situated a sworn statement giving a description of the tract of land, its acreage, use and character. 1

After the enactment of this registration provision, the Town of Fairbanks unsuccessfully litigated an annexation proceeding for this same territory, in which the same court ruled that testimony by one who had made a “last record owner” search of the real property records was incompetent to show even a “claim of ownership” unless coupled with proof of actual possession by the last record owner; and if the property was vacant the court indicated it would quite likely hold an abstract of title necessary to make proper proof.

Succeeding this litigation, the legislature in 1947 amended the annexation statute by creating the presumption here in question. It reads: “Those owners of land within the limits of the territory sought to be annexed who have filed a statement of their ownership in the United States General Land Office for the District in which the land is situate, in compliance with Chapter 49 of the Session Laws of Alaska, 1945, (§§ 22-2-1-22-2-18 herein), shall be presumed to be the owners of substantial property interests in land or possessory rights in land, tidelands or improvements upon land or tidelands within the 'limits of the territory proposed and sought to be annexed in the absence of a clear showing to the contrary.” (Emphasis supplied.)

Appellees contend and the court agrees that the registration act was solely for the purpose of facilitating taxation on lands outside incorporated towns. Assuming that such was its sole purpose when enacted, this does not prevent the legislature from adding the purpose of using the registrations to determine “the” owners of land required to> consent to annexation, by which they became subject to the Town’s taxation.

The legislature made this clear by a 1949 amendment 2 to the Land Registration Act making its requirements of no further effect but saving the rights and 'liabilities then accrued under it in full force and effect and providing the Act, as so amended in 1949, shall be to aid in taxation. This 1949 amendment reads:

“Section 1. That the provisions of the Land Registration Act, Secs. 22-2-1 to 22-2-18 ACLA 1949 are hereby modified as follows:

*130 Obviously the right to have owners of land so registered to be deemed "the owners” in an annexation proceeding and the right of the Town to tax these lands were “accrued” rights which Section 1(a) of the 1949 amendment preserved.

The petitioner introduced testimony that the records of the Land Office showed that a total of 207 persons had registered as owners of land in the territory to be annexed and that 106 of those had signed the petition for annexation. The petition of the town alleged there were 282 such owners and that 53% had joined in the petition. The appellees claim that this allegation of 282 owners required the consent of 142 of the owners be proved and that but 106 were shown to have consented and hence the dismissal was proper. The allegation of the petition is not controlling. The evidence, admitted without objection, showed that a total of 207 had registered and that a majority thereof, 106, had consented to the annexation. This required the amendment of the petition to comply with the prooís as was suggested by the petitioner after the evidence was in. We are required to' treat the case as if the amendment had been made.

The judgment should have been reversed.

. Laws of Alaska 1945, ch. 49, § 1, p. 112, A.C.L.A.1949, § 22-2-1: “Duty of owner or transferee to file statement: Exemptions: Penalty: Lien. It shall be the duty of each owner of land, other than of land * * * which * * * is located within an incorporated town, to file in the United States Land Office for the District in which the land is situated, on or before June 30, 1946, a sworn statement, or a statement signed by two witnesses when it is impossible to obtain a sworn statement, giving his name, his post office address, a description of the tract of land, its acreage, use, character, and any other information necessary for the purposes of this Act * * (Emphasis supplied.)

. Session Laws of Alaska 1949, ch. 106.