concurring specially:
It had not been my intention to give a written expression of my views upon the very important questions under consideration, but simply to concur in the ultimate conclusions reached in the opinion of Mr. Justice Bailey, holding that art. XX, in its entirety, is a part of the constitution as announced by the late Chief Justice Steele in the case of The People v. Sours, 31 Colo. 369.
I am unable to appreciate or conceive wherein the people, in their sovereign capacity, have not the right to say that the power may be vested in the people of the city and county of Denver, to designate the persons who' shall perform the duties pertinent to certain local county offices, or wherein this creates an unrepublican form of government. If this cannot be done, I think the main objects and purposes for which article XX was enacted are without meaning and the whole amendment becomes a farce. But, as I view it, it is possible and proper to discriminate between a duty fixed by a general law and the local agency by which that fixed duty must be performed, and, in this respect, when applied to these local offices, in my opinion, the John*537son ease and the other cases following it are not only in conflict with the Sours case, supra, and those following it, bnt are also radically wrong in their reasonings, which I think are based upon a false premise or structure, wherein it is assumed that certain things exist and that certain conclusions lead, irresistibly, to other conclusions, when the other conclusions are not properly deducible therefrom. In this connection it could be suggested that the Sours case says this article is valid; other cases following approve the Sours case, and in addition, say that this court should apply the meaning to it intended by the legislature consistent with the language used. Then comes the Johnson case, which says, while it is true we did say in the Sours case it is, yet it isn’t. That this conflict in former opinions is apparent, to my mind is not debatable. However, it is not my purpose to enter upon a discussion of these questions, as I am perfectly content to rest my ultimate conclusions upon the dissenting opinions by the late Chief Justice Steele and Mr. Justice Hunter in the former cases, and the majority opinion in this case.
The object of these expressions is to- take issue with the interpretation placed upon and the effect to be given the opinion of the writer in the case of County Commissioners v. Lunney, 46 Colo. 403, as- given it by the present Chief Justice in his able dissenting opinion in tins case, wherein he contends that the Johnson case has become a rule of property in this state, and wherein he says: ■
“Perhaps the most conspicuous instance where the doctrine of the Johnson ease was enforced as a rule of property, is to be found in County Commissioners v. Lunney, 46 Colo. 403. The opinion was written by Mr. Justice Hill, who concurs in the majority opinion in the case at bar.”
Referring to the facts pertaining to the Lunney *538case, as affected by. the Johnson case, among other tilings, he further says:
“When the regularly elected Board of County Commissioners,- which was let into office as the result of that decision, took their seats, they reconsidered Lunney’s claim and disallowed it. On appeal to the district court the board’s action was overruled; but, on error, this court reversed the ruling and held, under the doctrine of the Johnson case and the other county officers’ cases alluded to, that the new. board was. the legally elected and constitutional board of county commissioners, and had the right to disapprove and nullify the previous action of the supervisors/ Our judgment could not have been as it was unless the Johnson case was followed. That it was again enforced in the Lunney case as a rule of property is too' plain for argument. If the decision of the majority in the case at bar is right, the decision in the Lunney case was wrong. Mr. Lunney has lost his claim of over thirty thousand dollars, whereas, if the new doctrine of the present case had been enforced, Mr. Lunney would have got his money.” '
The opinion in the Lunney case will disclose that the de jure board (as decided in the case of People ex rel. v. Stoddard, 34 Colo. 200) only reconsidered the actions of the former board in allowing these claims pending an investigation and report therein called for, and that the matter was referred to the county attorney for the1 purpose of investigation and report’in the interest of the taxpayers. This was the condition of matters when Mr. Lunney brought his suit, which was for the purpose of compelling the county commissioners, by mandamus, to issue to him warrants for the amount of his claims as previously allowed him by the former board. This court, in that opinion, held that where the bills *539showed upon their face they were not in compliance with the statute, that under such circumstances the new board had the right to reconsider for the purposes of investigation; we did not hold, that, were the same circumstances presented concerning such bills, and had the original board attempted a reconsideration for the same purpose, they could not have done so, nor did we hold that had any succeeding board, within the time limit that these matters had transpired, attempted it, that they could not have done so, or that a citizen could not have likewise prevented payment of the illegal amounts. None of these questions was before us; neither was the question of the soundness of the opinion in the Johnson, case raised, considered, discussed or decided in the Lunney case.
I am unable to appreciate wherein the opinion in the Lunney case, by its recognition of the existence of the Johnson case, and the results thereunder, in any manner establishes a rule of property, even against Mr. Lunney, when it did not cause a loss to him of one dollar, nor even one cent, to- which he was lawfully entitled; at page 423 in the Lunney opinion it is so shown in the following language:
“This action, upon the part of the board, did not defeat any rights of the defendant in error, and was not a refusal to pay any proper claim due him by the county; it was his privilege then, as it is now, to have presented to the regular board his bills properly itemized in compliance with the statute, and in case they were, or are, disallowed, he has his right to appeal therefrom.”
Under this decision, as a matter of- law, Mr. Lunney was entitled to recover the greater portion of his claim, and, while it is not a matter of record here, yet I have every reason to believe that it was so adjusted with him.
*540It was further held in the Lunney case that the board of supervisors, as well as the trial court, had misconceived the proper construction of the statute under which Mr. Lunney was employed, and upon which the right and the amount of his recovery depended. These were the only issues pertaining to his claim and the main question presented in his case. The recognition of the Johnson case was only an incident in connection with the various stages of the history of the Lunney contention and litigation; it was a recognition which had to be accepted for the reason that it referred to matters which had taken place under it in the past, and it was proper and right for a department of this court to accept its existence and adhere to its results until it was properly challenged, presented and overruled by a constitutional majority of the entire court.
In recognizing the existence of the' facts and results brought about by the Johnson case and the county officers’ cases, I take issue with the chief justice that it established a rule of property pertaining to Mr. Lunney in his case, or to any one else in any other case, or that it in any manner tended to cause a loss to him of any amount, to which he was entitled under the law as it exists, and as I think was properly construed by this court.
I also take issue with the position of the chief justice wherein'he says: “If the decision of the majority in tlie case at bar is right, the decision in the Lunney case was wrong. ” As I view it, if the Lunney case was yet to be decided after the opinion in this case becomes final, the result could not be different than it was, for the reason that under the Johnson case and the other county officers ’ cases following, a change was made in the personnel of the parties to' perform the duties of those offices, and whether the reasonings which made these changes *541were sound or otherwise, they were the final decisions in those cases and conclusive as to the individuals affected, but the official acts of all were binding either as the de facto or de jure boards during the periods they performed the duties thereof, and it was necessary in the Lunney case to take into consideration those facts and these changed conditions as they actually existed and had been brought about by the result of these decisions; but, if the Lunney case was yet to be decided, it would likewise be necessary to take into consideration the same state of facts as was shown to exist at that time, as these facts would not and could not be different than they then were even after the decision in this case becomes final.