This action in quo warranto wаs instituted by the attorney general on the relation of Edward and Lucille Forde, the real parties in interest, to have set aside and declared invalid a certain annexation proceeding of the town of Corte Madera in Marin County, which annexation included .67 of an acre owned by the Fordes. It appears that the town of Larkspur, which on its southerly and easterly boundaries abuts Corte Madera, annexed some land adjoining that annexed by Corte Madera, and including the strip in which the Fordes’ property is located. The basic question presented is whether the Corte Madera or the Larkspur annexation shall prevail. The trial court concluded that the Corte Madera annexation was valid and prior, and, therefore, superior to that of Larkspur, and entered its judgment denying the plaintiffs any relief. From that judgment the plaintiffs appeal.
The map, which is made a part of this opinion, discloses most of the factual situation. Corte Madera and Larkspur are sixth class cities in Marin County. The two towns have a common boundary towards the north and northwest of Corte Madera. The Fordes, the appellants, own .67 acres in the corridor which runs east and west and is marked part of Parcel A-l on the map. The Fordes’ рroperty is marked with *35 diagonal lines. A-l also includes a long corridor along the easterly boundary of Corte Madera running north and south. The owners of the Fifer-Moore tract, consisting of 37.85 acres, and designated as Parcel A-2 on the map, desired to annex their property to Corte Madera. The long right-angled corridor designated A-l is connected to A-2 by Parcel A-3, which is simply that part of the roadbed of Highway 101 that touches A-2. The long, narrow corridor marked Parcel A-l that runs north and south is occupied by the Northwestern *36 Pacific Railroad Company’s main line, and is used solely for railroad purposes. At the south of thе map that right of way is within the town limits of Corte Madera, but prior to the annexation proceedings the westerly boundary of the right of way was the easterly boundary of Corte Madera.
On August 28, 1950, the sole owners of A-2, being the owners of more than one-fourth of the area sought to be annexed by area and assessed value, petitioned Corte Madera to annex A-l, A-2 and A-3. This petition was filed under the “Annexation of Uninhabited Territory Act of 1939,” Government Code, sections 35300 to 35326. It is conceded that the area is uninhabited within the meaning of that statute. On October 2, 1950, the Pordes appeared before the city council of Corte Mаdera and protested the annexation, but their protests were overruled. (See Gov. Code, § 35313.) On October 9, 1950, an annexation ordinance was introduced which was passed by the council October 16, 1950. A copy of this ordinance was filed with the Secretary of State on November 27, 1950. (See Gov. Code, § 35316.) It will be noted that if Corte Madera desired to annex the Pifer-Moore tract, it was necessary to go around certain areas already annexed to Larkspur. In 1944 Larkspur had annexed a long corridor extending westerly from the town of Larkspur and marked on the map “Extension of William Avenue.” It is not now developed as a street. This constitutes part of the north boundary of Corte Madera. In 1950, Larkspur had annexed “Parcel B-l,” so that the Pifer-Moore tract was cut off from Corte Madera unless a corridor of the type of A-l and the portion of the highway (A-3), were also annexed.
In the meantime, Larkspur had also commenced an annexation proceeding. On September 5, 1950, eight days after the institution of the Corte Madera proceedings, a petition under the Uninhabited Territory Act was filed to annex to Larkspur the area marked “B-2” on the map, which includes that portion of the corridor in which the Pordes’ propеrty is located. It was necessary for Larkspur to annex this corridor, for otherwise, because of the Corte Madera annexation, B-2 would not be contiguous to Larkspur. The Larkspur annexation ordinance was passed October 10, 1950, and was filed with the Secretary of State on November 13, 1950. It is this inclusion of the easterly-westerly leg of the A-l corridor in both annexation proceedings that has led to the present controversy. No proceeding of any kind has ever been brought by Corte Madera or anyone else to contest the validity of the *37 Larkspur annexation ordinance. The evidence shows that Corte Madera is closer to the disputed area by road than is. Larkspur. The trial court held that the Corte Madera annexation, having been started prior to that of Larkspur, prevailed over the Larkspur annexation. It is this holding that appellants challenge on this appeal.
One of the major contentions of appellants is that the present proceeding constitutes an attack on the Larkspur annexation in violation of section 349% of the Code of Civil Procedure which provides: ‘ ‘ The validity of .any proceedings for the annexation of territory to a municipal corporation, оr for the consolidation of municipal corporations, shall not be contested in any action unless such action shall have been brought within three months after the completion of such proceedings, or, in case such proceedings are completed prior to the time that this act takes effect, then within three months after this act shall have become effective.”
Admittedly, this statute is applicable to
quo warranto
proceedings, and would warrant, if applicable to the problem here involved, the relief prayed for by appellants.
(People
v.
City of Los Angeles,
There can be no doubt that the Uninhabited Territory Act, under which both annexations proceeded, grants priority to Corte Madera as the annexer prior in time. The sections of the Government Code so providing are sections 35308 and 35309. They read as follows:
Section 35308 : “When a petition for the annexation of any territory to a city has been received by its legislative body a petition asking for the annexation of any of the territory described in the petition shall not be presented to the legislative body of any other сity until an ordinance disapproving such annexation becomes effective.”
Section 35309: “After one legislative body has received a petition, no other legislative body shall take any action for the annexation of any part of the territory described in the petition, until the ordinance of the first city disapproving annexation becomes effective.”
It is the theory of the respondents, found to be correct by the trial court, that, where the first annexation is completed, these sections constitute a positive prohibition of subsequent proceedings; that such subsequent proceedings are
*38
an absolute nullity and are void; that no life can be breathed into such void subsequent proceedings by the failure to contest them; and that section 349% of the Code of Civil Procedure does not accomplish this result. With this theory we agree. This result follows because the absence of a prior annexation is, by the law, made an indispensable condition precedent to the filing of a subsequent proceeding. The existence of a prior proceeding renders the subsequent one void, under the well settled principle that an act is void if specifically prohibited by statute.
(Smith
v.
Bach,
The rule conferring priority on the first city to file is part of the public policy of the state. It was the rule at common law.
(People
v.
City of Monterey Park,
It should be pointed out that section 7 of the Act of 1913, in less wordy form, is now section 35115 of the Government Code governing annexation of inhabited territories. The two sections here involved—sections 35308 and 35309—relate to annexation of uninhabited territories. Thus, at common law, and pursuant to a consistent statutory scheme, priority is granted to that city first instituting proceedings. In
City of Burlingame
v.
County of San Mateo,
But, say appellants, conceding that the proceedings instituted by Corte Madera had priority, nevertheless section 349% of the Code of Civil Procedure operates to confer priority on Larkspur, because the Larkspur proceedings were not contested within three months after their completion. In support of this somewhat startling concept that a proceeding invalid when instituted, a proceeding that was then void
*39
and in violation of law, becomes not only valid bnt takes priority over a proceeding valid when instituted and entitled by law to priority, appellants cite many cases that hold that invalid acts, even those infected with a jurisdictional defect, are subject to being perfected by the passage of a limitation period, or by the application of a general or special validating act.
Tannhauser
v.
Adams,
That language seems pretty broad, but it was not directed at the effect of a statute of limitations provision upon a conflict between a prior valid and a subsequent invalid annexation proceeding. The case did not, in fact, involve the unauthorized extension of the boundaries of a utility district. The actual holding of the court was that there was no vice in the extension of the district’s boundaries, and, in truth, not even a procedural defect that might be cured by section 6e.
Appellants also rely upon
Miller & Lux Inc.
v.
Secara,
Curative legislation, however, cannot be used as against a prior valid proсeeding to breathe life into a subsequent proceeding which, from its very inception, was, as against the prior proceeding, void and violative of the state’s statutory law. None of the appellants’ cases, except one, even hints at the proposition that a statute of limitations provision can breathe life into a void later instituted proceeding as against a valid prior instituted proceeding. The one case that contains some language that supports appellants’ position is
Hunt
v.
Atkinson,
(Tex.Com.App.)
Upon general and fundamental principles, we are convinced that the curative provisions of section 349% of the Code of Civil Procedure will cure any failure to comply with the procedural provisions of the annexation statute, but we are equally convinced that such section cannot operate, as against a prior valid proceeding, so as to vitalize a completely invalid subsequent proceeding. A curative statute may operate to cure any procedural irregularity—even one going to jurisdiction—but it cannot operate to breathe life into a proceeding, the very filing of which is prohibited by statute. As the United States Supreme Court declared in
Turpin
v.
Lemon,
Appellants next attack the Corte Madera annexation, contending that, on the merits, that annexation was illegal. They urge that, under the facts, there was neither physical nor substantial contiguity as required by the statutes, and that the Corte Madera annexation was therefore invalid.
There can be no doubt that only an area that is contiguous to the existing town may be annexed under the Uninhabited Territory Act. (See Gov. Code, § 35302.) This is conceded.
The argument that physical contiguity does not exist is predicаted upon the contention that the railroad right of way and the portion of Highway 101 designated as Parcel A-3, separate Parcel A-2 from Corte Madera, with the legal result that physical contiguity does not exist. Appellants base this argument upon the claimed authority of prior case law and upon the terms of the relevant statutes.
The contention that prior case law has determined that, where a railroad right of way or public highway separates a city from the area sought to be annexed, such area is not physically contiguous to the city, is based primarily on that part of the decision of
People
v.
City of Lemoore,
This very language the Supreme Court, in denying a hearing, refused to approve. At page 86 the Supreme Court stated:
“The conclusion of the district court of appeal is fully sustained by what is correctly stated as to parcel No. 1, and the remaining parcel or parcels, and in denying a hearing in this court we are not called upon to express or indicate any opinion with regard to whether the parcels other than that numbered 1 together constitute a single body of land.
“Our dеnial of the petition for a hearing in this court is not to be taken as an assent to what is said in the opinion of the district court of appeal on this point.”
- Thus what the Supreme Court condemned was the attempt to.use the corridor so as to make two separate parcels one body of land. That epurt did not approve the holding that a highway or right of way prevented physical contiguity with the city.
In
People
v.
City of Whittier,
In
People
v.
City of South Gate,
Appellants next make a statutory argument, contending that the existence of such a highway or right of way in
*43
an annexation under the Uninhabited Territory Act, when the statute is properly interpreted, prevents physical contiguity as required by the statute. This statutory argument is predicated upon the fаct that title 4, division 2, part 2, of the Government Code, deals with “Alteration of Boundaries.” Chapter One of part 2 is entitled “Annexation of Territory,” and that chapter, which deals with various methods and types of annexation, is, in turn, divided into five articles. Article 2 contains the Annexation Act of 1913, as amended and codified, which relates to the annexation of inhabited territory. Article 5 contains the Annexation of Uninhabited Territory Act, the particular statute here involved. In article 2 dealing with the annexation of inhabited territory, appears section 35105 which provides: “Contiguous inhabited territory may be annexed as one parcel although divided by a road, stream, or other natural or artificial barrier or right of way.” A similar section does not appear in the Annexation of Uninhabited Territory Act. Appellants argue that such omission brings into play the maxim
“expressio unius est exclusio alterms,”
contending that as to uninhabited territory the statute must be interpreted, because it omitted a section similar to section 35105, to have adopted a rule contrary to section 35105. (See for a proper application of such rule of construction,
People
v.
Town of Corte Madera,
The argument lacks merit. Section 35105 was added to the Government Code in 1949 when the provisions of the Annexation Act of 1913, as amended, were incorporated into that code. Previous to that time the statutes—both the inhabited and uninhabited annexation acts—merely had a provision requiring physical contiguity. Prior to 1949, as the cases already cited indicate, it was the rule that physical contiguity was not broken by the existence of a highway or right of way. That was the rule before section 35105 was adopted as to both inhabited and uninhabited territories. By expressly including this established rule of law in the Annexation of Inhabited Territory Act the Legislature could not have intended to adopt a contrary rule as to uninhabited territory. To arrive at such a conclusion not only would be highly unreasonable, no logical explanation existing as to why such a basic difference should exist between the two statutes, but would require us to imply that by nonaction the Legislature intended to change existing law: Section 35105 must be construed as being merely declaratory of existing law as to the annexa *44 tion of inhabited territory, and it in no way changed existing law as to the annexation of uninhabited territory.
The last major contention of appellants is predicated upon the fact that Corte Madera has used a long narrow railroad right of way one mile long and 150 feet wide, and a right angle corridor to reach Parcel A-2. It is urged that this is “a sham attempt to comply with the law requiring contiguity,” that such “shoestring strips” are a, “fraud” upon the statute and prevent the annexation from being valid. (App.Op.Br. p. 12.) This is a somewhat strange argument for appellants to make in view of the fact that the validity of the Larkspur annexation depends upon a prior annexation by Larkspur in 1944 of a “shoestring strip” much more pronounced than the one here involved. Appellants do urge, however, that even though there may be physical contiguity, such physical contiguity is not sufficient unless it is also substantial contiguity, and that the courts may set aside an annexation proceeding as a fraud upon the act where the contiguity is secured by a long narrow corridor of the type here involved. To hold otherwise, say appellants, would be to countenance the use of corridors to accomplish a subterfuge and a fraud upon the statute requiring physical contiguity.
The point is without merit. Before discussing the law, something should be said about the facts. The annexation proceeding here did include the right of way of the railroad for a distance of about one mile. But the use of that strip could not have been any part of an attempt to evade the statute so far as Parcel A-2 is concerned. An examination of the map will disclose that to the south of the map that right of way is now within the city limits of Corte Madera. Such examination will also disclose that it was not necessary for Corte Madera to secure contiguity with Parcel A-2 to condemn the mile long strip. Actual physical contiguity with Parcel A-2 could have been secured by simply condemning the east-west corridor of Parcel A-l and a very short portion of that corridor that runs north and south.
There can be no doubt that the courts will interfere with an annexation proceeding that amounts to а fraudulent abuse of the powers conferred by the statute.
People
v.
City of Lemoore,
The Illinois case, however, does not represent the law of this state. The leading case is
People
v.
City of Los Angeles,
Again at page 224 the court stated: ‘‘ Hence it was doubtless concluded by the legislature in conferring a power of annexation in the general terms used in the statute that the voters in a municipality could best determine whether its growth and conditions surrounding it called for an extension of its municipal limits by the increase of additional territory and its extent, and that the voters of the territory ■ proposed to be annexed could with equal wisdom determinе whether it was of advantage to them to become a part of the municipality to the extent and in the form as proposed. With the wisdom
*46
of their determination in the matter the courts cannot interfere. They only interfere where some substantial provision of the law has been violated or where fraud was perpetrated in the matter of the boundaries or the extent of the annexed district. That the extent and shape which the annexed territory shall take is a political, and not a judicial question, is clear from the conclusion announced by this court in the case of
People
v.
Town of Loyalton,
These two cases, as pointed out by appellant, did arise under the Annexation of Inhabited Territory Act, while the present case arises under the Annexation of Uninhabited Territory Act, but there is no substantial difference in the two statutes on the point under discussion. Moreover, under the very act here involved, it has been held that the rule of the Los Angeles case is applicable. In
City of Burlingame
v.
County of San Mateo,
■ At page 709 the court stated: “Contiguity does not depend on the extent of the property annexed and the question whether a municipal corporation should annex certain territory is political rather than judicial.” After quoting extensively from the Los Angeles case, supra, the court stated (p. 710) : “The only limitation imposed by the statute in our case is that the annexed property must be contiguous to Burlingame. ' The ‘horseshoe strip,’ as respondent calls it, is contiguous to, i.e., has a common boundary with, Burlingame for an aggregate, distance of 200 feet and ‘the extent and shape which annexed -territory shall take is a political, and not a *47 judicial question. ’ ” After again quoting from the Los Angeles case the court continued (p. 711) :
“The wisdom or expediency of the annexation of this territory is not a concern of the courts. We can go no further than to see that the existing laws are complied with. . . .
“The motives of the city council of Burlingame (5 Cal.Jur. 640) or of Mills Estate, Incorporated (1 Cal.Jur. 336) cannot be inquired into so long as they proceeded according to established law.”
The Supreme Court denied a hearing in this ease, with but one justice dissenting. That case is decisive of the problem here presented. It was not qualified in any respect by the decision in
People
v.
Town of Corte Madera,
It should be pointed out that the extremes of gerrymandering made possible by the Burlingame case are now at least partially prohibited by changes in the law adopted in 1951. (See sections 35002.5, 35105.5 and 35304.5 as added in 1951.) These statutory changes, however, are not applicable to the present case, having been passed subsequent to the proceedings here challenged. They would not, if applicable, have prevented the annexation here involved.
The judgment appealed from is affirmed.
Bray, J., and Wood (Fred B.), J., concurred.
Appellants’ petition for a hearing by the Supreme Court was denied February 19, 1953.