dissenting:
1. In concluding to take original jurisdiction of this proceeding'this court has departed from its established practice repeatedly announced in many, cases. The majority opinion is silent upon the subject and offers no reason for the unprecedented action. What are we solicited to do? The learned attorney general, who appears as relator, says that in some of its previous decisions, not citing them, this court has not permitted the people of Denver fully to realize all the purposes which article XX of our constitution was intended to -accomplish, and that leading commercial bodies and kindred organizations are under the conviction that such decisions were erroneously made, and that reconsideration thereof should now be had to the end that hut one set of officers, instead of two, may be installed in the new public organization which article XX created, and that greater economy of administration and more satisfactory results may be attained than un*542der the'existing regime. The names of these dissatisfied bodies are not furnished, but apparently their arguments were sufficiently cogent to induce the desired action, and it seems that though the petition does not reveal their identity, the appeal to their discretion has lead the majority of the court to comply with the request. The court has thereby committed itself to an assumption of a jurisdiction which, even in the.proper class of cases, is sparingly exercised, and should be asserted only when the question presented for determination is publici juris — one affecting the people of the entire state — and never where only a city or county is interested. Up1 to the present writing this tribunal is still the supreme court of the entire State of Colorado, not merely of one part, and, in exercising its original jurisdiction, should confine itself to questions that'affect the whole body of our people. The crowded condition of our docket calls for our diligent attention in disposing of delayed causes on review, which is our first duty, since this court was constituted primarily to review judgments of inferior tribunals. This circumstance of itself forbids the exercise of our extraordinary, prerogative, original jurisdiction, particularly where, as here, we are asked to reconsider a question thoroughly argued and decided by this court in a closely contested real cause, which has been followed in at least twenty other cases. It is no reflection upon the character or respectability of these distinguished bodies to say that they might not have fully apprehended the nature of their request, or accurately meásured the complications that will inevitably ensue if it be favorably considered. If, hereafter, the Anti-saloon League of Fountain should petition this court to reconsider one of its former decisions upon the local option law which the league thinks would permit open saloons in that town, or if the Liquor *543Dealers’ Association of Fairplay should invoke our original jurisdiction to reconsider another of its former decisions which the association anticipates might close saloons in that town, this case'--could be cited as a precedent, though the probability is that this court would not so quickly respond with the desired writ. And yet, the principle, that is the basis of tlie rule, is precisely the same in the supposed cases and in the case at bar. Though Fountain and Fairplay are small towns, their local affairs are just as important to their citizens as are the local affairs of Denver to its citizens, and their material interests are just as important to- the designated town organizations as are the material interests of the leading bodies of Denver to their members. The minority protests as earnestly as it can against this procedure, which, if followed as a precedent, will divert the attention of the court from its primary work as a court of review and still further impede the despatch of its unavoidable business, to- the prejudice of private litigants and other and less importunate bodies and municipalities.
2. Before entering upon a discussion of the grave legal propositions- involved, it is fitting to advert to the astonishing statement made at the beginning of the majority opinion, that “Under the issues herein only the soundness of the- reasoning, upon which the conclusion in the Johnson case was reached, is challenged,” and the further one that while, in that case, the right of the Denver charter to provide for two persons instead of one to- discharge the duties of county judge was involved, “the decision was not based upon the ground that that could not be lawfully done, nor will that question be now considered or decided.” Are not such statements pregnant with the admission, at least entirely consistent with-the concession, that the Johnson case *544was rightly decided upon principle, hut that the reasoning in which the court indulged was faulty? In harmony with this preliminary statement, the opinion throughout contains not even a mild intimation that the Johnson case was erroneously decided, hut it is altogether devoted to- an attempt to show defects in the reasoning. An appellate court, even upon appeal or error, does not concern itself with the reasoning of the trial court if its judgment is right. It is indefensible for the highest judicial tribunal of the state to permit its prerogative jurisdiction to be invoked merely to review and set aside the reasoning of one of its former decisions, when the case itself was rightly decided. In this connection we only add that it is inconceivable how the learned judge brought himself to say that this court in the Johnson case did not hold the charter attempt unlawful. The reasoning there employed to- show that it was unlawful may not, to his mind, be sound, but there can be no doubt that the court held the attempt to be not merely unlawful, but inhibited by the federal constitution, the supreme law of the land.
3. Coming now to- the opinion, let it be admitted that its author has made the most plausible.argument thus far advanced to- uphold the proposition that article XX confers upon the public corporation known as the city and county of Denver the power to override every other-conflicting article of the same instrument which bears not only upon local, but also upon county and state, government, so far as the particular territory is concerned, and to- nullify the provision of the federal constitution which guarantees to every state a republican form of government. No attempt to gild its baldness, or to soften its effect, can minimize the unbridled power which the opinion gives to the city and county of Denver. The learned justice avowedly adopts the reasoning con*545tained in the dissenting opinions of Mr. Justice Steele in tlie Johnson case, and of Mr. Jiistice Gunter in the Horan case, and says that their unanswerable arguments obviate the necessity of a more extended argument by him to support the views of the present majority, which, at considerable length, he proceeds to unfold. Were it not that, as will be conclusively shown later, the present majority really repudiates vital parts of such reasoning, the very reasoning, indeed, on which the dissent of the former justices was based, and takes a long step in advance and for the first time promulgates a new doctrine, which removes all barriers between the good people of Denver and the state constitution,. the present minority would content itself by referring, with full approval, to the logical, temperate, and comprehensive opinion of Mr. Justice Maxwell in the cases mentioned, which reflected the views of the majority of the court as then constituted, of which we were a part. Mindful of the implication in the opinion that the Johnson case ruthlessly set aside the ’policy of the people declared in article XX, and of other similar statements, and aware of the positive assertions that section 2 is so plain that it interprets itself, though many pages are devoted to its exposition, and that there is no room for two opinions abo-ut its propriety and meaning, we shall treat these expressions as fervent rhetoric and enter npon the discussion as though the matter was not entirely foreclosed for us and was not so intended by the fair-minded writer of the opinion.
Counsel for petitioner admit that article XX is sui generis — is wholly unlike anything in the history of constitutional or legislative enactment, and no authority of any court can furnish any aid whatever in its construction. This concession makes useless an argument here to show the inapplicability of *546the Missouri and California decisions on the constitutional provisions relating to the municipal governments of St. Louis, in the former state, and San Francisco- in the latter, which have heretofore been largely relied on by previous counsel and the previous minority of this court in support of their conclusions: Without the concession, however, Judge Dixon, in behalf of respondents, in his brief and in oral argument, has conclusively demonstrated that in Missouri the different systems of law applicable there must receive the sanction of the entire people of the state, or by one legislative body directly representing them, before any municipal or county charter or ordinance becomes effective; while, under the California scheme, no legislation upon any governmental matter contained in the city charter of San Francisco, or relating to- any city or county, can become a law by virtue of a favorable vote thereon •merely by the qualified electors thereof, but only after its adoption by the legislature of the state, which represents the entire people of the commonwealth, does it have any force whatever.
In a later and separate discussion it will appear that, for our present purpose, it is not important whether the reasoning of the Johnson opinion, or the decision itself, is sound; but, at the risk of repetition of arguments made in the opinions in other cases — which' repetition is unavoidable, also, under the different branches of this opinion — it is fitting that, as briefly as- may be, some of the many reasons for its doctrine that suggest themselves be now stated. '
‘No citation of authorities is made or abstract reasoning employed to- establish the point that 'the latést" amendment to a constitution on a particular subject prevails, in case a conflict, over those of an 'earlier date upon the general subject which includes *547the particular. We admit the doctrine. It would be true as to article XX, even in the absence of section 8 thereof, which reads: “Anything in the constitution of this state in conflict or inconsistent with the provisions of this amendment is hereby declared to be inapplicable to the matters and things by this amendment covered and provided for.” Learned counsel for petitioner concede that these words add nothing to what the law would be without them. The pertinency of this principle, as announced and as applied to this case in the majority opinion, is, however, not apparent. And this is so because, as we now proceed to demonstrate, and as heretofore has always been declared by this court, article XX was intended merely to furnish a system of home rule for Denver and other cities, exclusively applicable to' their local or municipal matters. Other amendments to the constitution were submitted, at the same time, on other and different subjects, namely, county and state government. The same legislature that proposed article XX took similar action upon other amendments. Among them was one which relates to district attorneys and county judges; another to county commissioners and other county officers. These two amendments, prepared by Senator Taylor, an experienced constitutional lawyer, were passed by the general assembly (Session Laws 1901, pages 110 and 112) at a later date than article XX, and the members of that body voting for them were aware of their previous action upon article XX. It is not to be supposed that the general assembly, at the same session, intended to submit for the adoption of the people at the same election, constitutional amendments that would nullify, and be irreconcilably repugnant to, each other; but, if the majority opinion is right, that is exactly what it did. These three amendments were adopted by the people at the same election. *548They took effect at the same time. Each is of equal rank with the others. Each one relates to a subject of legislation separate and distinct from that of the others. One of them — article XX — relates solely to' local or municipal government, another to- the subject of district attorneys and county judges, another to county commissioners and other county officers. The second one prescribes the duties and qualifications, and fixes the terms of office of district attorneys and county judges, and declares that they must be elected at the general state election in November, and similar provisions are in the third amendment. These three amendments are absolutely and irreconcilably repugnant, if article XX has the import which the majority opinion gives it, for thereby all county offices and officers are abolished and the officers to be designated by the charter, that may be adopted under the authority of article XX, are to be elected at a different time, and their qualifications, duties, and jurisdiction are, or may be, different from those prescribed in the other two- amendments. The amendment as to county commissioners expressly provides that, in counties having a population of. 70,000 or over, the board of commissioners may consist of five members. At that time, and now, Denver County is the only county in the state which has that, or a larger, population. It is altogether clear that the fhamers of this amendment and the general assembly which submitted, and the people who, by their vote, adopted it, intended to continue the existence of a board of county commissioners and all other county offices in Denver County, and it is equally apparent from these various amendments that it was the intention that local or municipal government in the new county should remain intact and distinct from county and state government. Statutes passed at this and subsequent ses*549sions also clearly recognize this. The only way to avoid the repugnance, as pointed out, is to' continue the construction of article XX, which was made in the Sours and Johnson cases, and followed by at least twenty others, and restrict it, as has always hitherto been done, to the local or municipal affairs of the new municipality.
Stress, in the petition, is laid on the alleged fact that economy will result by having only one set of officers in Denver. If that be true — and economy of administration is a desideratum in every government — it has no bearing on the construction of a written instrument. There is no' proof at all in this record of the assertion. On the contrary, if the statement of Mr. Hersey, in his reply brief, is true, and its accuracy is not disputed, when the affairs of Denver were so conducted, under the charter requirements, no advantages on the score of economy over the double set of officers were achieved. But if a more economical administration may be enjoyed by having only one set of officers hr perform both city and county functions, it may easily be secured by the adoption of a charter which designates duly elected county officers to perform local or municipal, as well as county and state functions. This ought to be done, for in that way, and no other, can article XX be construed so as to make it valid under the federal compact. By permission of the state, which article XX embodies, but if not, then by permission of the general assembly, it is entirely competent to impose municipal duties upon state or county officers; but it is not permissible, even by constitutional amendment, for the state to abolish state and county offices and officers and devolve the duties thereof upon merely municipal officers over whom the state has no control whatever, the majority opinion to the contrary notwithstanding.
*550Perceiving the force of the argument, as to the effect of submitting different amendments at the same time, as made by Justice Maxwell in People v. Horan, 34 Colo. 304, the dissenting opinion there falls back upon the following sentence at the close of each section of the Taylor amendment upon the subject of county officers: “This section shall gov-tern, except as hereafter otherwise expressly directed or permitted by constitutional enactment.” It is to be observed that no such language is in Senator Taylor’s amendment concerning district attorneys and county judges, and that article XX is just as repugnant to this amendment as to the one relating to county officers. But this language in the Taylor amendment above quoted does not make the. law different'from what it would otherwise be. We have' already seen that the similar language of section 8 of article XX adds nothing to- the pertinent law, and for the same reasons-these words in the Taylor amendment do not affect the-law thereof so far as it concerns .conflicting constitutional provisions. Moreover, it is significant that the provision is that the section governs “except as hereafter otherwise expressly directed or permitted by constitutional enactment.” In the dissenting opinion in the Horan case it was said that section 8 of article XX was. intended to> apply only to pre-existing conflicting provisions of the constitution. The language above quoted from the Taylor amendment, relating' to county officers, was not 'intended to make that amendment subject to article XX, which relates merely to home rule for cities; and if such had been the intention, it was easy to say so1. The two amendments, born at the same time, were upon entirely different subjects, one concerning municipal, the other county and state, government. Article XX is not later than the Taylor amendment; it does not even expressly *551direct or permit any of its provisions to override the Taylor amendment. Indeed, the two* Taylor amend-ments axe the very latest enactments upon the subjects of district and county offices, and, according* to the conclusion of the majority opinion, they override all previous constitutional provisions in so- far as there is any conflict. Therefore, there is no possible ground for saying that the Taylor amendment xnust yield to article XX on the hypothesis that the latter is a subsequent “enactment.” We repeat that these axnendments, according* to the majority opinion as to the scope of article XX, are irreconcilable. In no way may they be reconciled and all given full effect except by construing article XX, as was done in the Johnson ease, and in twenty of more subsequent eases, as applicable merely to local or municipal, in contradistinction to county and state affairs.
The opinion says all that article XX purports to do relative to county offices and officers, is to provide that the people of the city and county of Denver, through their charter, shall designate the ‘ ‘ agencies ’ ’ which are to discharge these several respective duties and functions. The implication is that this is a matter of no moment, merely a comparatively trivial thing. With such interpretation or construction the court says it contains a valid delegation of power. Let us analyze section 2, which reads: ‘ ‘ The officers of the city and county of Denver shall be such as by appointment or election may be provided for by the 'charter; and the jurisdiction, term of office, duties and qualifications of all such officers shall- be such as in the charter may be provided; but every charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers to be done by the constitution or by the general law, as far as applicable. ’ ’ It will be conceded that when the charter designates the “agencies” to *552discharge governmental duties they come within the general designation of “officers of the city and county” mentioned in the first line of the section. If so, the charter may not only fix their term of office, the time of their election and their salariés, which it has already attempted to do-, but may also define their jurisdiction and prescribe their- duties and qualifications. If such power has been conferred, it is absolute, not qualified, for there is no reservation or limitation accompanying the grant. All supervision by the state is gone, no- right of approval of the charter is left to the people of the whole state acting through the general assembly or by their direct vote. True, the majority opinion says that article XX does not invest the people of Denver with power by charter “to in any way change 'the duties of governmental. officers, so far as they relate to state and county affairs.” By the same process of reasoning, this conclusion applies equally to “the jurisdiction, term of office, * * * and qualifications of all such officers,” since all these things are mentioned in section 2 as being proper subjects of legislation in the charter. If, as the majority opinion says, the charter has nothing to do with governmental duties of a county and state officer, how can it have power to fix his term of office, or salary, or define his jurisdiction, or say when and how he shall be elected? The answer must be that the power exists as to- none of them.. If the power to legislate as to- one is lacking, it is lacking as to- all. It is idle to-say that the power by charter to fix or change the term of office or the salary of a county or state officer, or the time of his election, or so to- legislate as to some ‘ ‘ agency ’ ’ named by the charter to discharge the governmental duties of such county or state office, is not legislating with respect to- county and governmental affairs. It is just as much legislating con*553cerning governmental affairs as would be an act prescribing the duties, qualifications and jurisdiction of such officers. It is clearly beyond the power of the state, as said by Mr. Justice Steele in the Sours case, even by constitutional amendment, to strip itself of legislative control over county and state officers, and to delegate to any portion of the state, less than the whole, the sovereign legislative power to perform its full.duties to all its inhabitants concerning governmental, as distinguished from municipal, matters. For to do so would be for the state to disable itself to secure and maintain a republican form of government, which it is bound to maintain by the supreme federal authority. It is no answer to say that the state lias not improperly delegated such powers, and thus abandoned its sovereignty, that the same people who adopted article XX may repeal it and thus repossess themselves of what was parted with. For until it does so, the illegal grant is being exercised and illegal governmental action is being exerted.
And right here it is pertinent to point out a misconception in the opinion. It refuses to apply the familiar rule for the test of the constitutionality of a statute, which is equally germane when an amendment to a state constitution is assailed as being in conflict with the federal supreme law. That test is “not what has been done, but what, by its authority, may be done, under it.” — Ames v. People, 26 Colo. 83. The court closes its eyes to the fact that section 2 expressly authorizes a charter which shall provide for the jurisdiction, duties, term of office and qualifications of all its officers, municipal and .other, if any, and because the present charter has gone only to the extent of fixing the term of office, time of election and salaries of the “agencies” designated to perform county and state governmental duties, which is said not to be inhibited, the court refuses now to *554decide whether section 2 is a valid delegation of power, though, on its face, it authorizes a charter which may prescribe the duties of all its officers or “agencies,” and bases that refusal on the ground that no such charter has, as yet, been enacted, even though the attempted delegation be invalid as evading the federal compact. It says .that the court should not anticipate that such unwarranted action will be taken, and that it will wait until the concrete question is presented before passing upon It,. We know of no sanction in the law that will excuse the performance of judicial duty in a case like this. It is not a question whether the people of Denver will, or will not, transgress the supreme law of the land. It is whether section 2 attempts to give them unrestricted authority to legislate unlawfully if they see fit to do so. If such a legal delegation of power is embodied in section 2, this court ought to say so now. The section is invalid, as inhibited by the federal compact, if it takes from the sovereign state power to insure a republican form of government, even though the municipality of Denver never takes a single step in the exercise of the inhibited authority. If the general assembly should, by statute, purport to grant to municipalities a power which, on its face, clearly authorizes them to adopt an unconstitutional charter and ordinances, would this court, when the authority was properly challenged, decline to say so on the ground that the same had not been fully exercised?
4. To one who has carefully studied the decisions of this court in the many controversies growing-out of article XX, ranging from People v. Sours, 31 Colo. 369, to County Commissioners v. Lunney, 46 Colo. 403, the new departure taken in the majority opinion will come as a surprise. In no previous case has it been held that article XX expressly, or *555at all, abolished county offices in Denver County. In every opinion hitherto written it has been conceded that county offices in Denver County exist the same as in every other county in the state, the only dispute among the judges being as to- the manner of filling them. But now this court, for the first time, has committed itself to a new construction and held that article XX, in effect, has abolished every county office in Denver County. True the- opinion, in one or more places, says that it has abolished county offices “as such,” “purely as such.” In other places these phrases are omitted. “Purely as such” is meaningless. At all events, what it signifies the court has not taken the trouble to explain. Either county offices exist, or they do not exist — -they are not in a state of suspended animation. As we view it, the court discreetly let the subject rest without explanation, for “purely as such” in no sense qualifies the bold and startling declaration that county offices ceased to exist in Denver County in 1902 when article XX was adopted. This article certainly has not expressly abolished them. Section 3 ends the term of all officers of the former county of Arapahoe, and expressly provides that certain designated county officers -shall hold their (county) offices “until their successors are elected aud qualified,” thereby clearly recognizing that county offices in Denver County existed and were to be filled by elections. But neither that nor any other section purports to abolish a single county office in the new county of Denver. Just how or why, or by what provision of the article, county offices are wiped out, we are not advised. It is apparent, however, that the present majority conceived that, unless such a conclusion was reached, they had no ground at all for impeaching the reasoning in the Johnson opinion, and, while they say they adopt the reasoning of the dissenting *556opinion, in that ease, it is respectfully submitted that they do not, for that was based upon, the assumption that county offices exist in the new the same as in all Other counties of the state, but that they are to be filled and their duties discharged by “agencies” which the charter may designate, and not necessarily as the constitution and general laws declare.
Let the logic of the new doctrine be tested. In our scheme of government, old or new, counties are an essential part of the necessary machinery of government to> enable the state to discharge its own state functions, as well as to* comply with the federal compact. As we understand it, that is admitted in the opinion; at least is not denied. A county without officers is unthinkable. If the organization has no offices, it is not a county. To discharge the functions of a county the organization must have county officers and all the necessary political machinery to perform its governmental duties. If, as the majority opinion says, it' has no' county office or officer, there certainly is no existing method by which the organized territory embraced within its territorial limits can fulfill governmental functions, either for itself or for the state, whose creature it is.. And even if section 2 permits the Denver charter to designate the “agencies” which shall perform the duties required of county officers, this necessarily presupposes the existence intact of the county offices whose duties such ‘ ‘ agencies ’ ’ are to perform.' It is impossible to conceive how “agencies” can be designated by the charter to discharge governmental duties of county officers of Denver County, if, as the majority opinion says, Denver County has no county office or officer. Though we have no light from the opinion on the point, it will not answer to say that this objection may be overcome by construing article XX as conferring upon Denver County the *557power to establish for itself county offices as well as to fill them. No snch authority is to be found in article XX, and we apprehend it would scarcely be contended that it is to be implied from any express grant contained in it. Besides, this confessedly would be legislating strictly and directly, not incidentally, on the subject of county and state government, which even the opinion asserts is not within the contemplation of article XX. It is equally apparent that it would be an attempted delegation of the sovereign legislative power by the entire state to a subordinate ■ subdivision, which no one has hitherto been rash enough to intimate even a constitutional' amendment may do.
But if the new doctrine of the majority can, by any process of artificial reasoning, be established, it ought not to be declared even to give it the limitless power asserted, if there is any reasonable ground to escape it. If Denver County has no> county offices now, it has never had them since article XX took effect in 1902. If that is so, then it necessarily follows that every act is absolutely void which has been done by every supposed county officer of Denver after July 10, 1905, when, under the decision of this court, various county officers elected by the people were let into the enjoyment of their offices. From that time down to the present moment, every valuation of property for taxation, every dollar of tax collected, every tax sale, every act of recording a deed, every marriage license, every arrest, every execution sale, every levy of a tax, every contract in behalf of the new county by supposed county officers of Denver, is void, not merely voidable. Such acts were not done under color of office or by de facto officers. These supposed officers are liable in damages to every person affected by their acts, and no right can spring therefrom. In Butler v. Phillips, 38 *558Colo. 378, this court held that, so far as they concern the public or third persons, the acts of Judge Johnson, who theretofore had been ousted from the office of county judge by decision of this court in the Johnson case, were the acts of a de faoto■ public officer, and' therefore validbut the decision was planted squarely upon the proposition that Judge Johnson was a de faoto officer and that his acts were valid because, during his incumbency, he was discharging the duties of a legally existing office. In the course of the opinion, a,t pages 388 and 389, certain decisions of the courts were adverted to, which, among other things, held that “officers filling offices created by unconstitutional laws are ' *■ * de facto officers, until, under direct proceedings, the act had been declared unconstitutional. ” The court proceed to say that this and other such decisions are in conflict with the great weight of authority in this country. However that may be, all the authorities hold that there can be no de facto officer unless there is a corresponding-office in existence, and that a person assuming to hold an office which has been abolished cannot be an officer de facto. — 8 Am. & Eng. Enc. of Law, p. 799 et seq.
The various acts which have been performed by the supposed county officers in Denver for moré than five years last past -give rise to other questions than the mere light or title of the incumbents. The property lights of many individuals have been affected. Involuntary contributions in the way of taxes have been levied and collected of property owners. Persons have been arrested by a supposed sheriff and restrained by him of their liberty. Decisions of Judge Johnson of the county court, which, in the Phillips case, this court held valid so far as his acts affected third persons and the public, are now nulli*559fied, as to all oilier persons except Phillips, by the decision of the court in this case. This being true, people who are injuriously affected by the acts of these officers may properly raise the question that they have been deprived of their property without due process of law. This court, of course, might overrule its own former decisions, and, in a new pronouncement, try to validate such acts; but the federal courts will not be governed by state decisions on a question like this, for a federal question is involved. The United States supreme court, in a number of cases, has spoken in no uncertain worlds upon the point we are now considering. In Norton v. Shelby County, 118 U. S. 425, the court, spealdng by that distinguished jurist Mr. Justice Field, said, in the course of the opinion, at page 441, in reply to a contention made by counsel, “This contention is met by the fact that there can be no officer, either de jure or de facto, if there be no office to fill * # * The doctrine which gives ■ validity to acts of officers de facto, whatever defects there may be in the legality of their appointment or election, is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby •* * * But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an officer who holds no office, and a public office can exist only by force of law.” In answer to the proposition that one who assumes, to act as an officer under an unconstitutional law is a de facto officer till it is judicially declared to be so, the learned justice said: “An unconstitutional act is not a law; it confers no rights; it imposes no duties, it affords no protection; it creates no office, it is, in legal contemplation, as inoperative as though-it had never been passed.” The entire opin*560ion is instructive, and in concluding the subject the court, in reply to the contention that various cases have held to the contrary, said: “None of them sanctions the doctrine that there can be a de facto office under a constitutional government, and that the acts of the incumbent are entitled to consideration as valid acts of a de facto officer. ’ ’ And further on he says: “None of the cases cited militates against the doctrine that, for the existence of a de facto officer, there must be an office de jure, although there may be loose expressions in some of the opinions, not called for by the facts, seemingly against this view. Where no office legally exists, the pretended officer is merely a usurper, to whose acts no validity can be attached.” This is the settled doctrine of the federal courts. — McDowell v. United States, 159 U. S. 596. And it has been followed with approval by this court in Gorman v. People, 17 Colo. 596. Chief Justice Hayt, after adverting to’ the general rule that public policy frequently prohibits the questioning of official acts of an incumbent of an existing office said: “But this rule presupposes the existence of an office de jure. There is no principle of law under which a de facto court can be sustained.” And he cites the Norton case, supra, as so deciding. Many cases to the same effect might be cited, but our own cases and the authority of the supreme court of the United States are sufficient to warrant the statement that, under a constitutional government, where there is no office de jure — that is, no existing- office — there can be no de facto officer, and the acts of the one who purports to be such are of no validity whatsoever. To' be sure this rule does not obtain when the constitutional government is destroyed by revolution. But we are not engaged in an academic discussion as to what might be the situation where the reign of constitution and laws is no longer' recog*561nized. Let it be remembered that during these five years the persons who- have supposed that,, under the decision in the Johnson case, they were legal county officers of Denver County and performing the duties thereof, were elected by the people as county officers under the general laws and constitution of the state applicable thereto. They do not claim any title or right under any provision of the Denver charter, but what rights, if any they have, are antagonistic thereto. This court has now held that during these five years there were no county offices in Denver County — of course, “purely as such”; but, as we have seen, this is meaningless. This holding overrules the decision in the Phillips■ case and makes all of Judge Johnson’s acts as judge of the county court, and those of every other county judge since elected, absolutely void, and stamps with the same disapproval every act of every supposed county officer of the City of Denver that has been done during the five years. If this holding may not introduce chaos and give rise to numerous law suits and inflict greg,t hardships upon innocent citizens and involve county and state government in Denver County in inextricable confusion, it would be hard to say what would bring about such result. Ah inconveniente of course, is to- he ignored, if to a given conclusion inexorable logic and sound principle lead. And if the purging of our reports of limping logic is a judicial duty paramount to the obligation of adhering to stare decisis, possibly the disastrous results to follow in the wake of the-present pronouncement should be welcomed as ministering to the higher law.
5. Respondents have entered pleas of res adjudicata and stare decisis. It is elemental that when these principles apply, it is a matter of no importance *562if the judgments relied on are erroneous. These in their order.
In People ex rel. Lawson v. Stoddard et al., 34 Colo. 200, the precise questions herein involved were determined by this court adversely to the contention of the petitioner. It was there, held that the charter provision which designates the board of supervisors of the city of Denver as a board of county commissioners of Denver County is invalid, and that county commissioners of .Denver County, elected at the general state election in November, constitute its county board. In accordance with that ruling this court' ousted the supervisors, who were then in possession of the office, and put therein persons so elected as county commissioners. In that proceeding the people of the -State of Colorado was the party petitioner, just as the same people is the party petitioner here. By its legal representative there the people sought and obtained a decree declaring that there existed in Denver County the office of county commissioners, and that the commissioners, elected as the constitution and general laws provide, constitute the only legal board. Here the same people as petitioner, by its legal representative, seeks, and has obtained, a pronouncement of this court directly to the contrary. Not only common sense, but law, says the people should be estopped by the former decree to prosecute the pending suit. The first judgment is res adjudicaba as to the people, as the following, among other authorities, declare: 20 Enc. Pl. & Pr., 588; 26 Am. & Eng. Enc. of Law (2nd ed.), 485; 24 Am. & Eng. Enc. of Law (2nd ed.), 755; State v. Kennedy, 60 Neb. 300; 7th Com. Dig., Title Quo Warranto, 201; 3 Blackstone Commentaries, 263; Holsworth v. O’Chander, 49 Nev. 44; New Orleans v. Citizens’ Bank, 167 U. S. 371; State v. Board of County Commissioners, 162 Ind. 580; Wheeler v. *563City of Aberdeen et al., 45 Wash. 63; Minnesota Company v. National Company, 3 Wall. 332; City of Denver v. Lobenstein, 3 Colo. 216; Bartlett v. O’Mahoney, 47 Colo. 237; Starr v. Chicago R. I. & P. Ry. Co., 110 Fed. 3; Prout v. Starr, 188 U. S. 537; 23 Cyc. 1270; Keller v. City of Mt. Vernon, 48 New York (Sup.) 370; 23 Cyc. 1292.
The state is not obliged to submit itself to the jurisdiction of its own courts, but when it voluntarily does so, and without reservation tenders a controversy for judicial determination, it is as much bound thereby as is a private party in the same circumstances. Blackstone says: “A judgment on a writ of quo toarranto, being in the nature of a writ of right, is final and conclusive; even as- against the Crown.” To the same effect is the decision of the supreme court of Nebraska in the Kennedy case, supra, which is also authority for the general conclusion we have reached on this branch of the case. The present Chief Justice White of the supreme court of the United States, in New Orleans v. Citizens’ Bank, supra, says: “The very essence of judicial power is that when a matter is once ascertained and determined, it is forever concluded when it arises again under the same circumstances and conditions between parties or their privies,” * * * and that “The mere fact that there has been a change in the person holding the office, does not destroy the effect of the thing adjudged.”' In the Indiana case it was said, “A judgment estoppel in a case where an officer is a party, operates upon the office. The successor is in privity with his predecessor.” In the Minnesota Manufacturing case, in 3d Wallace, the court well said: “Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. Parties should not be encouraged to speculate on a *564change of the law when the administrators, of it are changed. Courts ought not to he compelled to- hear the infliction of repeated arguments by obstinate litigants, challenging the justice of their well-considered and solemn judgments.” And the same court also said: ‘ ‘ There would be no- end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions, or speculate on chances from changes in its members.” In City of Denver v. Lobenstein, supra, Chief Justice Thatcher, in perspicuous language, thus announced the doctrine: “It is held to be a ‘principle lying at 'the foundation of all well-conducted jurisprudence,- that when a right or a fact has been judicially determined by a court of competent jurisdiction, the judgment thereon, so long as it remains unreversed, shall be conclusive upon the parties, and those in privity with them in law or estate’.” — 23 Cyc. 1270. These excerpts from leading authorities are particularly applicable to the facts of this case and fully sustain the plea of res adjudieata.
But the majority opinion summarily disposes of this point by saying that there is no privity of title between these respondents and the relators in the Lawson case, and adds that if there were such privity, that would be an end to this litigation. „ The first statement is predicated upon another statement, that the relators in the Lawson case held under a different election from that on which respondents’ title here rests, and that the subject-matter of the litigation in the two> cases is not' the same, and the parties, nominally at least, are different. Let this contention be subjected to- analysis. Lawson and the other relators, and the respondents here, derive their title from the same ultimate source, namely, the constitution and general laws of the state, while respondents in the Lawson case based *565their title upon the conflicting provisions of the Denver charter. Respondents here and relators in the Lawson case, since they derive their title from the same source, are privies in law, notwithstanding they hold under different elections, in so- far as concerns the duties, qualifications, term of office, and its rights and privileges. It is and must be conceded that if the office of .county commissioner exists in Denver County and is to be filled at the November state election, relators in the Lawson case were, and respondents in this case are, entitled to- possession thereof. On the other hand, if the city charter provision legally makes the city supervisors the board of county commissioners of Denver County, they, and not the successful candidates at the state election, constitute the board. There is noi claim that respondents were not duly elected. Nor is there any controversy between the Lawson relators and the respondents here of any character whatever. Both contend for the some propositions, namely, that the successful candidates at the general election make up the county board. In the Lawson ease there was no dispute as to the facts; neither is there here. Neither there nor here is the controversy one as to which rival candidates were elected at the same election. The facts' were admitted, and the questions at issue, and the ones determined in the former case, were questions of law. • It will not do- to say that mere abstract principles of law may not be the subject of litigation. That was a concrete case that was before the court, and certain legal conclusions were reached, certain rights established. A determination of a court — the facts being admitted —is nothing but a determination of the law as applied to the facts, the very rights of the parties thereby adjudicated. A ruling on a general demur-' rer, on the merits, raising only an issue of law, is *566available as a plea of res adjudicata as completely as is a determination on the facts. — 23 Cyc. 1232. Precisely the same facts on which the former adjudication was made are present here. These legal questions were, first, whether county offices still exist in Denver County since the adoption of article XX, and whether the constitution and general laws relating to county offices and county officers were paramount or subordinate to- special article XX and the charter provisions on that subject. If the general laws are paramount, the relators in the Lawson case rightly prevailed. If subordinate,’ respondents there ought to have succeeded. Is it not conclusive that precisely the same material facts and the same legal questions are here involved, and the same rights determined, and is not the real object of the pending proceeding to obtain a ruling which not merely sets aside the reasoning of the Johnson case, on which the Lawson case was founded, but in effect overruling that case and'declaring that all county offices of Denver’ County are abolished, and that the city supervisors are entitled to act as a board of county commissioners'? It is, to- borrow the expression of the majority opinion, “a begging of the question” to- say that the subject-matter of the Lawson case is different from the- subject-matter here.
But, says the opinion, “there is no privity between the Lawson relators and respondents here, because they were holding under a different election and have a different term.” What difference does that make so far as concerns the application of the doctrine -of res adjudicata ? The present case is not one wbere the city supervisors, are asserting their right as against respondents to act as a board of county commissioners. Indeed, this proceeding is quite anomalous in that it calls for a theoretical discussion when there is no- real controversy between *567rival claimants, but where the determination iá to' be made just as effective as if the litigation were actual. The respondents here are not invoking res ad judicata against the successors in office of a previous body of supervisors who failed in the Lawson suit; but, if they were, the plea, on that account, should not be rejected. But the plea, here is directed by the respondents, who are successors in office of predecessors who were relators in the Lawson case, and whose right to this office in that case was determined to be perfect, because the pertinent provisions of the constitution and general laws on the subject of county offices and county officers were paramount to similar provisions of articule XX and the Denver City charter. And this plea is directed against the people of the State of Colorado' who’ were and are the parties petitioner in both cases. In the Lawson case the people, by its legal representative, authorized to bring the suit, took the position that the constitution and general laws relating to county officers, term of office, jurisdiction, duties and qualifications, were the paramount law of the land, and the apparently conflicting provisions of article XX and of the Denver City charter were to be disregarded, and held applicable strictly to municipal affairs, and in this way avoid tire otherwise irreconcilable repugnancy of constitutional provisions which became effective at the same time. The people were successful there and obtained a decree establishing the supremacy of the state constitution and general laws, and respondents’ title here is, as relator’s title' there was, based upon the judgment SO' rendered. Here the same people, by its legal representative, takes a squarely contrary position, and asserts and asks this court so to hold, that article XX, upon a special subject,and the Denver charter, enacted in pursuance thereof, override all other and conflicting consti*568tutional provisions and the general laws enacted in pursuance thereof. Is it not entirely clear that what this court really decided in the Lawson case was that county offices existed in Denver County, that election to fill them must be held in November, and that the general provisions of the state constitution and general laws on the subject control, and that special article XX and the Denver City charter, in conflict therewith, must yield?
If what we have said is true, then it follows that things decided in the Lawson case directly affect the public office itself and relate to public rights. That decision necessarily determined the very existence, the nature, powers, and duties, privileges, the jurisdiction, qualification, and source of the office. There cannot he conceived a case where a judgment more clearly affects and touches these, essential attributes of a public office, and if this is so, according to the decisions, and even according to' the majority opinion, the successors in office, relying upon the same source of title as their predecessors in which such determination was made, hold in privity with their predecessors and are not only bound by the previous judgment, but may assert it and rely upon it the same as could their predecessors, and use it as against their adversaries and all those who claim under them. And why should not the state be es-topped by this judgment? Is it immune from the rule that applies to all other litigants when it voluntarily submits itself to the courts of its own creation? It certainly was a party in the Lawson case, the moving party, and advanced the contention therein which was decided in its favor. That judgment should and does estop it in any subsequent suit against the same party, and the privies in law of that party, from taking a different attitude. That doctrine is applicable here, since the judgment in the *569former case touched so emphatically and unquestionably every attribute of the office of county commissioner, including the existence of the office itself. All the parties to it and their privies in law and estate are bound. Respondents here are clearly en-’ titled to maintain their plea because they are privies in office to relators in the Lawson case- as to all matters affecting the powers, duties, existence, etc., of that office, claiming as they do, under the same general right and from the same source, and petitioner here was petitioner there. — 2 Black on Judgments, sec. 582; 23 Cyc. 1350.
6. That the doctrine of stare decisis applies to the class of cases to which this belongs is admitted. Constitutional questions are as much within its purview as are those based upon the statute or the common law. In People v. LeFevre, 21 Colo. 218, at page 241, this court said: “We are not unmindful of the rule that the maxim stare decisis is applicable in its fullest sense only where property rights are involved. The doctrine, however, applies to constitutions as well as to statutory law, or to any other kind of law.” In this case, however, it is not enforced, for the reasons stated in the opinion. Of course the court has the power to disregard every one of its own previous decisions if it sees fit to do so-; but it should long hesitate to overrule a line of twenty or more cases upon the same subject, which it has been obliged to do in order to reach the conclusion which the majority opinion announces. If there ever was an instance where the maxim should be strictly applied, this case furnishes it. Nothing is further from our purpose than to revive the partisan passions which grew out of- the adoption of article XX, and this reference is made to the subject, solely as warrant for the assertion that the questions here involved, and already twenty times decided the same *570way, and which, are now being reconsidered, unfortunately have become, and are, saturated with partisan feeling and party prejudice. The grounds given for refusing ^to abide by the former decision are that it is so manifestly wrong and the subject-matter is of such momentous public importance that it ought to be decided right, since it has not become a rule of property. Two' decisions of this court, one written by each of the minority, are cited in support of this position. Neither, nor both, of them, nor any other cases that can be found, are authority therefor. A fair statement as to’ the Colorado Seminary case, 30 Colo-. 507, ought to have included the real reason given for the refusal to enforce the maxim in that case. No other organization in the state had a charter similar to the one held by Colorado Seminary, and the former decision, which was modified, had not, and never could, become a rule of. property on the faith of which private rights could be acquired. In the Calhoun-Ajax case, 27 Colo, 1, a former decision was overruled as wrong; but the court was not embarrassed in doing so, since it was based upon an erroneous conception of an act of congress, and a decision of a state court in construing it never could become a rule of property. The power to' bring about that result rests exclusively with the supreme court of the United States.
We have already expressed our views as to the ruling 'in the Johnson case. We emphatically take issue with the statement in the majority opinion here that that decision has not become a rule of property. How such a statement came to be made, we are unable to-discover. Less than one year after the Sours, and about one year before the Johnson, case was decided, this court, in Parsons v. People, 32 Colo, 221, had before it for consideration sections of the general revenue act of 1902, which levied upon all liquor *571dealers in this state a license tax to produce state revenue. In the opinion, concurred in by Mr. Justice Steele, in answering the argument that article XX of the Denver charter vested such power to tax exclusively in the city of Denver, it was said: “ Neither is this revenue act of 1902 in'violation of any provision of article XX. In the majority opinion of this court in People ex rel 'v. Sours, 31 Colo-. 369, it was clearly indicated that the general scheme of government therein contemplated is restricted to that of the municipality proper, and does not intrench upon county or state government. It does not purport to nullify the constitution or general laws of the state in so far as they pertain to county or state government, or attempt to interfere with the power of the state in raising state revenue. If there were no specific provision in that amendment upon the subject, such would be its construction.” That decision directly affected Mr. Parsons’ right of property. Thereby he gave up involuntarily some of his property. In the City and County of Denver v. Hallett, 34 Colo. 393, the opinion being by Justice Steele,' handed down only' a few months after the Johnson decision, the doctrine of that case was enforced, and' thereby taxpayers of the city of Denver were ' compelled to contribute to the building of an auditorium. Among other things, Justice Steele said: “The purpose of the twentieth article was to grant home rule to' Denver and the other municipalities of the state.” In Denver v. Bottom, 44 Colo. 308, again enforcing the doctrine of the Johnson case, this court prevented Mr. Bottom from collecting his salary as county attorney, which he claimed of the new county government. As to Mr. Bottom, this decision had passed into a rule of property, as he ascertained to his financial loss. Perhaps the most conspicuous ' in*572stance where the doctrine of the Johnson case 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, and it met the full approval of Chief Justice Steele and Mr. Justice Grabber!. Lunney sued the Board of County Commissioners of the City and County of Denver upon a demand aggregating over $30,000, which he claimed as a balance due him for transcribing a portion of the records of the late 'Arapahoe County which related to Adams County. The Board of Supervisors of the city of Denver, while assuming to act as a board of county commissioners of Denver County, had allowed this claim only a few days before they were ousted from office by this court under the application of the decision in the Johnson case and the other so-called county officers’ cases, all of which are reported in vol. 34 of our reports. 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 *573the new doctrine of -the present case had been enforced, Mr. Lnnney would have got his money. Other cases to the same purport as this might be cited. These, however, are enough conclusively to show that the Johnson case has become a settled rule of property in this state. Bights have been acquired by private individuals acting upon the faith of it. Bights have been lost as the result of its enforcement. This being so, the doctrine of stare decisis should be strictly applied here.
For another reason equally persuasive, should the doctrine be applied. The questions involved here, as already stated, have become partisan- in character, and particularly in su<ph cases should the doctrine of stare decisis be followed. In the LeFevre case, supra, it was applied in a case where property rights were not involved. That was a controversy merely over the right to a public office, and this case is no stronger. In Dickinson v. Freed, 25 Colo. 302, the writer concurred in the decision solely because a previous decision of our court, which he did not approve, so required, if it was to be followed. After so stating, the special concurring opinion at page 307 says: “But if the rule of stare decisis should ever be rigidly adhered to, it is in election controversies; for in no class of cases, and for reasons apparent to any candid mind, are there stronger reasons for the strict application of the rule. ’ ’ There are other decisions of our court to like effect, but it would avail nothing to reproduce them. There is one case, however, to which particular reference is pertinent. In 1904, what has been somewhat harshly termed “The original, exclusive, extraordinary prerogative jurisdiction of the King”s Bench,” which the constitution has conferred upon our supreme court, was invoked by the people of the state on the relation of its attorney general, and the *574same was exercised, to secure for Denver a fair and honest election and to1 preserve the purity of the ballot therein in the impending state election. If memory serves aright, this action of our court was not received with unqualified or rapturous approval, particularly by those directly affected, but criticism, more or less caustic, followed. A' few days before our November election in November 1910, a similar application to secure an election in Pluerfano County was presented to this court. Pour of the members who concur in the present majority opinion, and the two now dissenting, were then sitting, and a favorable response was given, with but one dissenting voice, jurisdiction was taken and the appropriate writ of injunction was issued, just as in People v. Tool, 35 Colo. 225. It may be, of course, that my brethren, who constitute the majority of this court now, and who did last October, think that the Tool case was rightly decided, and, if so, there is no pertinency in the present reference to■, and comment upon, the assumption of original jurisdiction in the later case. But it is apprehended — and if in this we are in error, a retraction of the statement will follow on notice — that this majority, following many illustrious precedents of this court, were so impressed with the wholesomeness of the doctrine felicitously expressed by “stare decisis,” and were so determined tenaciously to adhere to it in accordance with the established practice, — though in SO' doing they ran counter to their own deliberate judgment,— that they sank their individual views and, guided by this universal rule that prevails in all countries where courts are governed so largely by precedents, assumed this most unusual jurisdiction on the authority of the reported Tool case, and fearlessly, and without much hesitation, let the sweeping writ of injunction go. It is submitted, with all earnest*575ness, that snch action was a more extreme illustration of sticking fast to- stare decisis, and on the faith of a single reported case as a precedent, than would he following here thé rule in the Johnson case, approved and applied as it has been by twenty or more cases by the same court. For these and other reasons, so forcefully expressed in the brief of ex-Judge Dixon, we say, without hesitation, whatever may be the individual views of the present majority, they should observe the universal practice in such circumstances and yield obedience to at least twenty of our own previous decisions, although these adjudications are not in harmony with their own views. If within the course of a few years the personnel of this court changes, and a new majority should he of opinion that the Johnson case was rightly decided, and that the decision in the case at bar was so manifestly wrong that public interests demanded a reconsideration, with á view to its nullification, why, with equal propriety, may not the future majority, if some dissatisfied leading body of citizens demands it, — and, he it said with no- thought of criticism, there is always enough dissatisfaction, often stimulating and healthful, in a progressive community to demand a change of almost any existing decision or policy, — put forth the “royal, extraordinary prerogative jurisdiction of the King’s Bench,” and revivify the Johnson decision, to which the present majority has administered a blow that has effected its quietus. This suggestion, were there not other compelling reasons, ought to stay the hand of the court in this most unusual and unprecedented proceeding*, which it has permitted to progress to a conclusion.
7. It is not strange that the various counsel who have appeared in the many cases relating to article XX, have not always agreed among themselves as to its meaning and effect, and have not un*576qualifiedly assented to the prevailing opinion in tlie Sours, or the dissenting one in the Johnson, case. Apparently, as we have already seen, present counsel for petitioner have imbued the present majority with some of their new ideas quite at war with those entertained by former judges whose views are avowedly adopted. In the able brief of Messrs. Riddell and Thompson, in support of this petition, they refer to the statement of Mr. Justice Steele in his Johnson dissent, that, by the Sours decision, the people not only could free, but, by article XX, had freed Denver from several provisions of the constitution. In language as diplomatic as masters of human speech can employ, counsel express their inability to concur, by saying that the idea may be correct, but the language is inexact. Tet they also add that the sentence seems to concede what counsel themselves believe is not correct. But the full sweep of the statement was essential to: Judge Steele’s argument, and his conclusion was not justified, if, upon his statement counsel’s explanation is grafted. One' of these same learned counsel appeared in a former case, and he then took a position which, as we understand it, is directly opposed to his present attitude, as the quotation from his brief in that case, reproduced in Judge Maxwell’s opinion in the Johnson case, abundantly testifies. Indeed, that brief might be well used now, as heretofore, as a text for the various decisions in line with the Johnson case. The oral argument of Mr. Richardson, on the same side in the pending cause, bore ample evidence that his adroit mind' perceived the force of the argument employed by Mr. Justice Maxwell in applying the doctrine of the Sours case, and while the learned lawyer thought the Johnson decision wrong and the Sours decision right, he ventured to- submit a suggestion, which left a deep impression, that it might be well *577also to reconsider the Sonrs case and pnt the decision on the defensible ground, consistent with the construction that the real and primary purpose of article XX was not to give home rule to Denver and other cities, but to consolidate the city and county governments of Denver into a new body politic, with only one anomalous form of government; though this court in every case and by every judge wlm participated, had held time and again that its sole purpose was to secure home rule. Counsel may be right, and there is much force in his argument for a reconsideration of the Sours case. Now that this court has entered upon the task of reconsidering mere rea.soning of rightly decided cases, it ought to extend its jurisdiction and reconsider the Sours case, because, if for no other reason, the judgment here pronounced is irreconcilably repugnant, not only to the reasoning thereof, but to the decision itself. These reflections are prompted by the suggestion of the majority opinion that the meaning and effect of article XX is so obvious that no' fair-minded person can have any doubt about it. That we may not b.e suspected of partiality, or accused of reproducing the views of those with whom we agree, we have summoned some of their own witnesses to testify that there really are some intelligent and prominent lawyers, even on the same side, who entertain quite radically different views as to the meaning of this alleged self-interpreting document.
8. If, however, we are wrong in all that has been heretofore said in this dissenting opinion, there are other considerations which make it not only just and right from a moral standpoint, but imperative on legal grounds, to continue in full force the Johnson decision. If a personal reference in a judicial opinion be pardonable, the statement may not be inappropriate here that the present writer does not be*578lieve that article XX was adopted as the constitution itself prescribes. His reasons therefor are stated in his dissenting opinion in the Sours casé, reported at page 411 of the 31st Colorado- Report. If the majority opinion here had not, by favorably commenting upon it, dignified the baseless' charge that 'the majority in the Johnson case proceeded as if ah article of the constitution was itself unconstitutional, and that article XX had been treated by them as an interloper instead of a duly authenticated member of the organic act, the present reference would not be made. No judge of this court, so far as we know, has ever said or intimated that, when an article or section has once become a part of — that is, has been legally adopted by the people as a part of — the state constitution, it is unconstitutional, unless, of course, it contravenes some part of the higher federal law. It would then be invalid, because the higher law, not the supreme law of the state, condemned it. But before a proposed Or submitted amendment to- a state constitution can become a valid part thereof, it must be not only in harmony with the higher law, but must be adopted by the people in the manner in which the same people has prescribed in some existing provision of that Instrument. Equally fallacious is the criticism made by irresponsible persons, and apparently sanctioned in the opinion, that a permissible construction by a court of. one article or section of a constitution that makes- it harmonious with other provisions of equal rank in the same instrument and avoids a clash with the federal laws, while a different construction would jp-roduce an irreconcilable'conflict, thereby ruthlessly sets aside a vital part of the organic act. What the Johnson decision did was to put an entirely permissible construction on section 2 of article XX, s-o as to make it harmonious, not only with other parts of the same in*579strument of equal dignity, but especially to make it conform to that requirement of the federal constitution which imposes upon every state the necessity to maintain therein a republican form of government. And in doing so, this court merely followed and applied the principle which the prevailing opinion in the Sours case said must be applied to make the article harmonious with the federal law.
Most strenuous endeavor was made in the dissenting opinion in the Johnson case to escape the logic employed by the same judge in the Sours case, and the effort has been renewed by counsel for petitioner here to supplement that attempt. We submit with all confidence, unsuccessfully, if the ordinary rules of correct reasoning are to govern. Let us see if Justice Maxwell’s opinion in the Johnson case was properly based on the Sours decision. A mere reading of Judge Steele’s prevailing opinion in the Sours case ought to satisfy any candid mind that his reasoning was correctly apprehended and applied. We proceed now to show from the record that the Steele opinion was. exactly what Judge Maxwell said it was, and also that it was correctly applied in the Johnson case. In the Sours ease, one of the pleas interposed by the respondents was that article XX was repugnant to the constitution of the United States “in that it creates, or undertakes to create, independent municipalities within the borders of the State of Colorado, with authority to create their own charters or organic laws, and to act and legislate independent of and out of the control of the general assembly of the State of Colorado, which is composed of the electors chosen from the entire State of Colorado, and set up such form of government as the inhabitants of such municipalities may deem proper.” This excerpt is found in the brief prepared by the late Senator Hughes, H. M. Ora-*580hood, and Calvin P. Butler. In support of this cohtention, Messrs. Whitford & Parks, in their brief in the Sours case, by way of argument, use the words which Mr. Justice Steele quotes at page 385 of his opinion, and which were reproduced by Mr. Justice Maxwell at page 148 of his opinion in the Johnson case. The words quoted by Judge Steele were not the only ones on the subject in the Whitford-Parks brief. Both of these distinguished lawyers were members of the senate when article XX was voted on, and in addition to the language quoted in the Sours opinion, they said: “In the discussions in the senate on this act we could get no- satisfaction from its supporters as to the extent of the power they laid claim to under the act. We certainly heard no contention made that it applied only to the local affairs of a municipality. In vain we tried to- make them amend with some sort of limitation. We do not know whether they now propose to take that position or not — we mean the position that the act only carried authority to legislate on such city affairs that the present city is authorized to legislate on * * * If it were to be confined to- city affairs, why didn’t they say so? The mixing of the city government with the county government disposes of any such assumption. The county government is a legal subdivision of the state government. It is a state agency. It is the strong right arm of the state. Without it — -without the county officers and their functions — the state would be impotent and helpless. * * * What is the net result, considering only the mixture? Is it local government only? Or is it local, county and state? * * * With the judiciary and the district attorney mixed up- with the amalgamated county and city governments, are we to be told that this instrument only confers authority *581on this charter convention to deal with municipal questions ? ’ ’
Substantially the same argument was made in other of respondents’ printed briefs. Of the briefs of the petitioner in that case, the most exhaustive was'the one filed by Senator Push and J. Warner Mills, reputed to be the framers of article XX, and who were supposed to know, if any one does, what its purpose was. This is what they then said in answering the arguments of their opponents on this branch of the case. At page 322 of the brief, which was intended as a sufficient and conclusive reply to respondents’ contention, they say that section 2. of article XX sufficiently refutes the argument, for they add, it “brings the city and county of Denver strictly within the control and supervision of the state as to all matters of state concern. The only way a county comes in contact with the state is through its agents-, its officers. And by this provision all the fears of counsel may well’ subside and peace possess their souls. It is as if article XX had said that state control in state affairs is supreme, but, as to municipal affairs, the state will allow the people of the city to govern themselves.” In summarizing their conclusion at page 355, they say of article XX: “It is along the line of municipal growth and development. It relieves the state of petty local matters that can better be attended to by the local authorities. -It gives municipalities- the power of self-government in local affairs. It divorces Denver from the infamous system of despotic and autocratic government which is now its curse and its undoing. It places in the hands of the people such power that they may protect themselves from rapacious robbery, both official and corporate, but at the same time preserving to the state its full power over all matters of state cognisance and proper state control.” *582Elsewhere in this voluminous brief, the declaration was frequently made that the sole purpose of article XX was to provide home rule for Denver and other cities, and that county and state affairs were not within its purview. The principal oral arguments at the hearing in the Sours case were by the late Senator Hughes for the respondent, and by ex-Senator Patterson for the petitioner. With great power and eloquence these able lawyers presented their views on all the questions raised in that case, and, at great length and with unusual force and clearness dwelt' upon this particular phase of the controversy which we have just outlined. There was not the slightest doubt in the minds of any of the judges about the radically different constructions which these astute gentlemen put upon article XX. Senator Hughes, in behalf.of respondents, contended that, as to the newly defined territory and with respect to the new body politic, the intention of article XX and the language sufficiently evidenced the intent, was to cut it loose from the state constitution and general laws, and to free it from supervision by the general assembly, and to invest the people thereof with full and unrestrained power to legislate upon all city, county and state affairs as they saw fit. Senator Patterson, in behalf of the petitioner, contended, in harmony with its briefs, that there was no warrant for such construction, but, on the contrary, the new public body created was restricted, in its administration, solely to' local or municipal affairs. It was in answer to the foregoing contentions of opposing counsel that Mr. Justice Steele used the argument he did, and stated that if respondents’ construction was correct, the amendment could not be sustained. It was necessary, therefore,-in order to save any portion of it whatever, to hold, as was done, that it must be construed, considered and interpreted as having *583for its sole object, to rise Judge Steele’s own language, the “securing to the people of Denver absolute freedom from legislative interference in matters of local concern.” And he added, “So considered and interpreted, we find nothing in it subversive of the state government, or repugnant to the constitution of the United States.” We submit that the decision was squarely made that only municipal, and not county or state governmental, affairs were within the purview of the article. The federal compact must at all times be observed. The state can never rid itself of the sovereign legislative power exclusively to control and regulate all county and state affairs. To do so would be to incapacitate itself to maintain its own existence, and leave it powerless to keep .its sacred obligations to the federal government. The state is as powerless to delegate any essential part of its sovereign legislative power as it is to yield all of it. It is beyond cavil that legislation to fix the term of a county or a state officer, or “agency,” to prescribe his salary, time of election, jurisdiction, etc., is strictly the exercise of sovereign legislative power, which, under our form of state government, resides only and exclusively in our general assembly — subject, of course, to constitutional limitation. And yet, just such legislation as this is exactly what the majority opinion says article XX has delegated to the people of Denver, but which Mr. Justice Steele said could not be accomplished, even by constitutional amendment.
So that it is altogether clear that, in the Sours case, this court, in order to get article XX into the constitution, was obliged to give it a construction probably different from what some of its language, without reference to the context, might import; but of that its friends ought not to complain.
A reading of all three opinions in the Sours case *584discloses that there were other equally imperative reasons for restricting the scope of the amendment solely to local affairs. If it was given the interpretation which the respondents there contended for, and which the majority opinion here has put upon it, then the amendment embraced at least two distinct and separate schemes or subjects; an anomalous combined form of city and county government, each of which had always theretofore been regarded as a separate subject of legislation, and home rule for the government of the two. distinct entities constituting the combination. The thing submitted as. article XX would, if construed as it is herein, clearly constitute at least two amendments, each consisting of at least one subject. And while amended section 2 of article XIX permits more than one amendment to. be submitted at the same* general election, if the proposal, though in the' form of a single amendment, contains more than one subject, each must be separately submitted so. that it may be separately voted on. The proposal embodying article XX was not separately submitted or voted on. It necessarily follows that the interpretation made in the Sours case had to be given in order to escape the inhibition of article XIX. Attention is called to the dissenting opinion in the Sours case at 424, that relators’ counsel there “repeatedly assert that the only object of the amendment is to give home rule to Denver. ’ ’
There is still another reason for restricting article XX to local affairs. If its meaning is what the present majority says it bears, even according to the reasoning both of Justice Steele and Justice G-abbert in their separate opinions in the Sours case, and in the dissenting opinioii of Justice Steele in the Johnson case, the article would directly, not incidentally, and radically amend, or altogether repeal, some one or more sections of at least sixteen *585different articles of tlie constitution, whereas by section 2 of article XIX, at the same session, the general assembly may not propose amendments to more than six articles. While the writer did not, in the Sours case, and does not now, concur in the conclusions of the majority as to the meaning and scope of article XX, he submitted to that decision, as was his duty, and ever thereafter has consistently followed and applied it. The efforts of its self-constituted friends will have brought about the mischievous results, if any attend its continued enforcement with the unwarranted construction put upon it. Would any one be so rash as to say that the amendment could or would have been saved if, in the Sours case, that interpretation had been made which the present majority sanctions'? And is it not quite apparent that, if the majority of the court in the Johnson case had adopted such interpretation, they would have overruled the Sours decision and at the same time removed article XX from its setting in the peaceful bosom of the constitution, just as, in the Sours case, the entire court, if forced to such interpretation, would, in the first instance, have declared it not entitled to admission into that instrument? The writer is ready to' admit that the construction made by Senator Hughes and his associates is correct. So many reasons, however, were found for declaring the amendment not legally adopted, that he refrained from then expressing an opinion as to the construction which, in the view of the majority, had to be made in order to save the amendment. But what we say, with all the emphasis at our command, is that this court, having effected the salvation of article XX as a part of our organic law, by placing on it the construction that it was restricted solely to municipal or local matters, should forever thereafter adhere to and enforce the article *586with the same construction then given. If that construction was good enough to save the article, it is g'ood' enough now, when its practical operation is called in question.
In the proceeding in the Sours case, the people of the state of Colorado as a party litigant obtained a decision that the sole purpose of article XX was to secure home rule for Denver and other cities, and so put it into the. constitution. Such its framers thought was its purpose, for, in submitting it to a vote of the people, the tickets had on them: “For Home Buie for Cities,” and “Against Home Buie for Cities.” Having got the article securely imbedded in the constitution, the same people, by its attorney general, as a party in a second proceeding —the Johnson case — sought and obtained a judgment enforcing one of the announced doctrines of the Sours case, namely, that home rule for cities was the sole purpose of the amendment. In a third — this proceeding — the same people, by another attorney general, repudiates the two former decisions which were given at its own demand, and, in accordance with its own contention, and asks for, and has obtained, a reconsideration, with the result that these former decisions are overthrown and new and directly contrary doctrines established. If a private party so' conducted himself, it could be-well said that he was guilty of bad faith, a species of false pretense, for it would present a case where a party got a favorable decision upon one theory, and, after having enjoyed the full benefit of it, afterwards, for some reason satisfactory to himself, sought to obtain a directly contrary holding to meet his own changed condition. The court should not lend its aid to any such behavior. If some future attorney general should think the Johnson case absolutely sound, what is to prevent him from reopening the question *587and succeeding therein, if, hy the change in the personnel of the court which sometimes occurs, he is able to find a complaisant majority? The endless chain naturally occurs to- the reflective mind.
All that has been done in this proceeding may be useless labor, wasted effort, so far as the decision is intended as a guide for future action, as the signs of the times indicate the early approach of the commission form of government, and the rumbling of the advancing columns of the usually victorious army of its advocates may be heard by the listening ear. Whether it comes or not, we felt it a duty to register our dissent here and give our reasons for it. The fervent hope is expressed that the present announcement be received with the submission and respect which decisions of this court should always command. We concede to our brethren of the majority the same desire to do their duty and declare the law as they apprehend it, which we claim in our own behalf. That office holders.who are members of an opposing political party would be kept in office if the views of the minority judges had prevailed adds nothing to their fairness. Neither does the fact that officers of the same political faith as four of the majority judges are to be ousted as the result of their views, impart to their decision any virtue that it would not otherwise possess. And the purely fortuitous circumstance that the present city administration of Denver, which, by this same decision, is invested with power to designate the “agencies” to take the places of their decapitated brothers, is of the political faith of such majority, ought not to detract from their impartiality, or lessen the respect and confidence which conscientious performance of a delicate, and sometimes embarrassing, public duty ever merits.