dissenting:
The opinion of Mr. Justice Bailey, upholding the validity of the three-mill levy, is based upon the assumption that the territory embraced within the boundaries of the city and county of Denver constitutes two entities, one a city and the other a county. This assumption is directly in the teeth of section 1, of article XX of the constitution, creating the municipality of the city and county of Denver, which, in express terms, declares, after describing the exterior boundaries, that the municipality thus created and described, shall “be a single body politie and corporate, by the name of the City and County of Denver.” It is manifestly impossible for a single body politic to include two distinct municipal entities. The *390next- section of the - article provides,, that-.the officers., of the new municipality should be. s$ch ,as the charter to be -adopted provided,, and that such charter, should designate the officers who; shoyld exercise the -functions and discharge the -duties of county officials required of such ^officials by the constitution ,and-general laws of the state. This requirement did not recognize that there should be a- county government and a city government distinct from -each Other, but,, on the contrary, a- consolidated government, 'with one set of officers, empowered to discharge •the. duties - resulting from ■ the consolidation.. These ofikers can-exercise no functions except for. the single body ..politic, and in exercising these functions, they act for the municipality Jmown • and created by article XX as the city and county of Denver, and no other. If this is not correct, then the whole scheme of government provided by article XX does not accomplish what is claimed for it, and which, by the decisioin .in the Cassidy case, it is claimed it did accomplish. In my judgment the majority opinion is directly opposed to the majority opinion of this court in that case, which Mr. Justice Baieey cites as an authority in support of his conclusion in the case at •bar. The Johnson case, 34 Colo. 143, was based upon the ground that the municipality of the city and county of Denver included the city and also the county, each distinct from the'other. The Cassidy case in express terms •purports to overrule that case, and yet, with due deference I submit; that by the opinion in the case at bar, the Cassidy case is, in effect, overruled, and the doctrine announced in the' Johrison :case upheld: The logic of the ' Cassidy case’ is, that the whole effect of article XX was to empower the'people of the city and county of Denver to provide by charter 'for local, government, but that in so doing/ they should designate the agencies to discharge *391the duties and functions which are to be discharged by county officials elsewhere in the state, as provided by the constitution and general laws; consequently, it was held, in the Cassidy case, that since the adoption of article ..XX arid the formation of the municipal corporation- of the city and cóunty of Denver, there has never been within the. limits thereof a. county office or county officer, as such. Logically, then, this must mean,, tha-t the officials of the city and county of Denver-are- officers of that municipality, and fióne other; and that such officials as are designated to discharge the functions of-county officials- prescribed by the constitution and general laws, are mere agencies 'of the municipality for that purpose; but that does hot rnáké them cóúnty officials, because t’Here ' is, no -entity, for which they can act in that capacity alone...
Decided February 21, A. D. 1912. Rehearing denied April 1, A. D. 1912.In my judgment, the limitation imposed by the char- - ter as to the maximüm tax levy "is not involved. The three-mill levy was confessedly made for county purposes. There is no county. Theré is but one entity, the one created by article XX, which is a singlé body politic,- and any levy of taxes made for the benefit of that entity must • be levied for its use, and not for an entity which’ does not exist. In my opinion, the judgment of the district court should be affirmed.