dissenting:
The opinion of the majority, which, overrules the previous decisions of this court hearing* on the principal question involved, appears to proceed upon the theory that these decisions overlooked the fact that article XX was a part of the constitution. This assumption is purely gratuitous and misleading. It has always been recognized as a part of the constitution in every case in which it was involved, and this court, as now constituted, has not, as the majority opinion would indicate, discovered and promulgated something new and startling, by declaring that article XX is a part of the constitution — a fact which no one has ever disputed, and which even the veriest tyro knows. What has been heretofore decided in the case referred to is based upon its interpretation and effect in connection with other provisions of the constitution of equal rank, and to which force and effect must also be given. Thus construed and tested, it was held, beginning with the first decision, where the article was involved — the Sours case — that its whole scope and purpose was to provide home rule for certain cities with respect to matters local in their nature. On this subject, Mr. Justice Steele said:
“The amendment is to be considered as a whole, in view of its express purpose of securing to the people of Denver absolute freedom from legislative interference in matters of local concern; and so1 considered and interpreted, we find nothing in it subversive óf the state government or repugnant to the constitution of the United States.”
In the same case, the writer said: “The whole scope and purpose of the amendment was to provide home rule for certain cities with respect to certain governmental matters local in their nature”; *589and also said: “What particular subjects, however, relating to governmental affairs are embraced in the amendment, is a matter for the convention assembled to form a charter to most carefully consider. It should also be borne in mind that there may be provisions of the constitution other than article XX which must be observed in the creation of a charter.”
Clearly, ‘ ‘ local matters ’ ’ could not extend beyond municipal affairs, for the very obvious reason that", to give the article any other scope by determining that under its provisions the people of the city and county of Denver could control county affairs in any respect, to the exclusion of either the executive or legislative departments, would include governmental functions relating to state affairs, powers which can only be exercised by the whole people of the state under their constitution, and the different departments of government thereby created. It was only by giving- it this construction that the article could be upheld. Speaking to this point, Mr. Justice Steele said, in the Sours case:
“Even by constitutional amendment, the people cannot set apart any portion of the state in such manner that that portion of the state shall be free from the constitution, or delegate the making of constitutional amendments concerning it to a charter convention, or give to such charter convention the power to prescribe the jurisdiction and duties of public officers with respect to state government, as distinguished from municipal or city government. The duties * * * , generally, of county officers, are mainly governmental; and so' far as they are governmental, they may not be controlled by other than state agencies, without undermining the very foundation of our g-overnment. Under the constitution of the. United States, the state government *590must be preserved throughout the entire state, and it can be so preserved only by having within every political subdivision of the state such officers as may be necessary to 'perform the duties assumed by the state government under the general' laws as they now exist, or as they may hereafter exist.”
The particular criticism of the previous decisions of this court by the majority opinion,'is directed to the Johnson case, of which it is said, in effect, that it is wholly incomprehensible. That an opinion is incomprehensible to some should not always be regarded as indicative that it is not sound. Since the opinion was handed down in the Johnson case, it has been recognized by all political parties, and by every branch of the state government, as the law; and having thus been acquiesced in for several years by those most vitally interested, and particularly by the same litigant in that case that now appears here, namely, the people of the state, ought to be, and is, sufficient to estop all parties, including the courts, from questioning its correctness, ánd especially upon grounds not tenable, and heretofore so decided by solemn judicial construction.
Again, in speaking of the Johnson case, which, assertions to the contrary notwithstanding, was based upon what had been declared in the Sours case, the majority opinion says:
■ “Thus, we are confronted with the grotesque spectacle of one case decided upon the authority of another, the main features and principles of which latter case the former flatly overrules.”
In the Johnson case, it was determined that the people could not, by an amendment to the constitution, vest in the citizens of the city and county of Denver any authority to legislate upon matters other than those purely municipal. In the majority opinion here it is said they can, and this, it is claimed, *591is in conformity with the decision in the Sours case, which, we have pointed ont, is not true; so that, paraphrasing the quotation above referred to, we are confronted with the “grotesque spectacle” of a decision professed to be based upon the Sours case which, however, it “flatly overrules.”
In the Sours case, no charter provision, as in the case at bar or in the Johnson case, was before the court for consideration. The basic principle upon which the latter was grounded was the proposition deducible from the above quotation from the opinion in the Sours case, wherein it was .said, in substance, in addition, in speaking of the effect of article XX in displacing the constitution of the statt, the general laws, and authority of the general assembly, that if the article must be given that construction, it could not be upheld..
The authority to provide by charter the officers who shall perform the duties of county officers appears to exist, in the opinion of the majority, by virtue of the provision that “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.” Speaking to this point, it is said in the majority opinion, in substance, that to give the article a construction which permits a charter to provide agencies different from those provided for other counties in the state to discharge the functions of county officers does not in any manner affect the state government. This conclusion is based upon an argument to the effect'.that to ask the question if it does, is to answer it. Notwithstanding that this appears to be regarded as a lucid explanation of what the majority evidently recognize as an important question, we are forced to admit that it does not enlighten us,' and neither does it appear to have *592been satisfactory to the majority, for further questions are propounded, which evidently are intended to elucidate that a federal inhibition is not invaded by providing* in the charter that officers are to be chosen in the spring-time, instead of autumn; that they are elected for four, rather than for two years; that one set of officers is .named to discharge the duties pertaining* to both municipal and governmental affairs, since all such governmental acts and duties in this territory remain intact and are to be fully performed. None of these questions or premises upon which they are based are pertinent; rather, the question is, What authority has this state to. create an absolutely independent sovereignty within its borders, which the federal constitution expressly inhibits? This, the majority opinion holds, has not been done, because the government provided for the city and county of Denver rests solely upon the will of the people, which they may modify or withdraw in the future. The opinion then proceeds to state, in substance, that since the power rests with the people, to completely annul article XX, or amend or alter its provisions at will, it follows, as of course, that a sovereignty independent of the state has not been created, “for, were it otherwise, such change in the constitution would be impossible.” The part just quoted seems to be a recognition of the proposition that if article XX does permit the creation of a sovereignty independent of the state, then, necessarily, it could not be upheld.
Let us consider, briefly, if the arguments advanced in the opinion by which it is attempted to demonstrate that an independent sovereignty has not been created by the charter, are sound. On this phase of that proposition, the question is. not what the people may do, in the future, with respect to annulling or modifying* article XX; but what have *593they done, according to the interpretation of the ■ article by the majority and the charter under consideration, which the majority opinion says is a valid exercise of power delegated by article XX. The question is not difficult to answer. Provision has been made in the charter for so-called agencies to discharge the functions of county officials. Their term of office, their compensation, time of election, and filling of vacancies, are thereby fixed. In short, the legislative and executive departments are shorn of all power to control the so-called agencies in any of these respects — a power which, according to the opinion .of the majority, the people of the city and county of Denver may exercise by virtue of article XX. If this is not an absolute release of such control by the state over county officials who, in the discharge of their duties, must exercise governmental functions in which the state is directly interested, and which it is necessary to discharge under the constitution, and which the state must control, in order to carry on the state government, it is impossible to frame a provision which would bring about this result. Sovereignty with respect to governmental matters and functions necessary to carry on and maintain the state. government, cannot be divided. It cannot be delegated to the people of an independent territory to make provision for governmental matters necessary to carry on state 'government, in such territory, and exercised by the remainder of the people of the state for that portion not embraced in such independent territory, unless we recognize that the people may create out of a part of the state an independent sovereignty, something which the majority opinion says cannot be done, but which, by their conclusion, has been done. It is not sufficient to say that this has not been accomplished, because the people may repeal article XX. As long as it *594stands as a part of the constitution, the independent sovereignty thereby created exists; so that the article is invalid, because of the conditions it has brought into existence by the construction now given it, in the majority opinion, entirely independent of what action the people may take in the future on the subject of-repealing it.
It is said, in substance, in the majority opinion, that the people of the state have plenary power by constitutional amendment to provide such methods of government for any part of the state as they please, so long as there is no violation of the federal •compact, and as they have by these means, authorized the people of the city and county of Denver to designate the agencies by which governmental duties therein shall be discharged," no provision of the federal constitution has been violated. That is not the test. By the decision of the majority, the state has released its authority to absolutely control these agencies. If the authority to which the power to designate and elect these agencies refuses or neglects to exercise it, the state, neither through the executive nor legislative departments, can take, any steps to supply these agencies, and the result would be that the territory embraced within, the city and county of Denver would be without officials to discharge the functions of county government, and the state powerless to- supply them- — a condition which Mr. Justice Steele, in the Sours case, said would undermine the very foundations of our state government, which can, only be preserved by having within every political subdivision of the state the officers necessary to perform the duties devolving upon the state government.
As stated before, the test of the validity of a law is not what has been done, but what, under its provisions, may be done or accomplished. With un*595limited power delegated to the people of the city and connty of Denver to name the agencies which shall discharge the functions of county officials, with no power reserved to the remainder of the people of the' state through any department of their government, or by any law which the general assembly might pass, to provide against the contingency of the people of the city and county of Denver disobeying the mandate of article XX, is it not clear beyond successful contradiction that the people of the state have surrendered their sovereignty over the territory embraced within the city and county of Denver? The majority opinion attempts to answer it by asserting that, because article XX contains a mandate that agencies shall be designated by charter to discharge the functions of county officials, that, therefore, control with respect to these matters is not surrendered. This begs the question in that'-it fails to meet the proposition that the state is powerless to act if this provision is not observed. No one questions the authority of the people to amend their constitution, but in so doing the mandate of the federal constitution, as well as of the state, must be observed. ■ The people, when amending their fundamental law, are as much bound by the limitations thus imposed as any other legislative body.
It was freely prophesied,- when article XX was adopted, that it would lead to endless litigation. It gave promise that it would until the decision in the Johnson case was announced, which clearly defined its meaning- and scope by-limiting the authority of the people of the city and county of Denver to provide by charter for - municipal government only. Now the line thus drawn, which-was clear and definite, leaving no room for debate with respect to what matters -could- be legislated upon by charter, has been obliterated. Necessarily,- litigation without end *596must follow. Had either the doctrine of stare decisis or res judicata been applied, as it should have been, the confusion and litigation sure to follow on the heels of the opinion promulgated by th- majority, would have been prevented.
Now that the majority opinion opens the door for some future party or future organization to again institute proceedings calculated to obtain another and different interpretation of the article, than that given it in the case at bar, it is only a question of time when such a proceeding will be commenced. When and where is this to end? When will the people of the city and county of Denver know that they are living under a fixed and stable government? Each time there is a change in the personnel of this court, litigation of the character suggested is almost certain to be commenced; but, worse than all this, the construction now given the article renders it absolutely invalid, because it not only violates the federal constitution, but likewise violates, article XIX of our state constitution, which inhibits the general assembly from proposing amendments to more than six articles of the constitution at the same session. Under the construction given the article in the Johnson case, no question could be successfully raised regarding its validity. Now that it can be questioned, it must necessarily follow that the acts of the municipal and county authorities in the past, ás well as in the future, of every kind and character, may be drawn in question, and, possibly, invalidated.
In any event, the uncertainty of the validity of article XX, as the result of the construction placed upon it by the decision of the majority, may seriously embarrass the future administration of municipal and county affairs. The decision in the Johnson case construed the constitution as a whole, and, as thus construed, rightly limited the power of the peo*597pie of the fcity and county of Denver under the provisions of article XX to create a charter dealing with municipal affairs only. It brought order out of chaos. This condition should have been maintained by dismissing the proceedings.