dissenting:
Were the question of the appointment of a registration committee and judges of election for the state election in November before this court, the reasoning and conclusion of the majority, as it appears to me, would be more pertinent. The duties to be performed in Denver in the preparation for and conduct of the November election are duties to be performed by county officers. They are such duties as have been frequently called by this court, state governmental duties, concerning which the people of Denver cannot legislate except to designate in their charter who shall perform them.—People v. Sours, 31 Colo. 369; People v. Cassidy, 15 Colo. 503; Hilts v. Markey, 52 Colo. 382.
*577It was made plain in the Cassiday case that there are no county offices in Denver as such, but that the duties appertaining to such offices remain as before to be performed by agencies designated in the charter. In other cities the line of demarcation between county offices and the duties appertaining thereto, and municipal offices and their duties is sharply defined. In Denver, while there are no county offices as such, but only municipal offices, the line of demarcation between the duties appertaining to county offices and those appertaining to municipal offices is just as sharply defined. For instance, in other cities, there is a county treasurer and a municipal treasurer. The duties to.be performed by the,county treasurer are prescribed by statute, while those to be performed by the municipal treasurer are prescribed by the charter, whether that charter is the general law appertaining to towns and cities, a special charter granted by the general assembly, or one adopted under the provisions of article XX and the line between the two classes of dúties is clear. In Denver there is a municipal treasurer only, and the charter, in obedience to the mandate of article XX, requiring the charter to designate the officers who shall perform the duties of county officers, provides that the municipal treasurer shall perform the duties of county treasurer. While the duties appertaining to each office are to be performed by the same person, yet the line between them is as well defined as when they are performed by two persons. For state elections, at which state, district and county officers are to be elected, the general assembly may prescribe certain duties to be performed with respect thereto by certain county officers, and it has prescribed in the act of 19x1 that certain duties shall be performed by the county clerk and county commissioners. These are *578state governmental'.duties, referred to in the cases cited above. They cannot be changed or regulated by charter, but in Denver/in obedience to the mandate of article XX, the charter shall designate who shall perform these- state governmental duties. • That is as far as the charter can go with respect to them. The Denver charter, in section 156, has designated who shall perform these duties by providing that the election commission shall perform “the acts and duties required of a board of county commissioners, county clerks and justices of-the peace in all matters pertaining to registration and elections.”' With respect' to these duties, the election commission performs 'the duties of county officers, which duties are prescribed by the legislature and cannot be interfered with by the ■charter. To my mind, the performance of these duties is not before us in this case. ' Those duties - relate- to another and different registration committee and set of election judges to be appointed under the provisions of the -state laws governing state and county elections.
The reasoning and conclusion of the -majority, it -appears to me, are not applicable to the case now before the court. The election commissioners are municipal ■officers, and as such are charged with certain municipal ■duties as well as the state governmental duties aforesaid. It is plain from the decisions of this court/ appertaining to the right and power of the people of Denver to legislate in their charter, that the general assembly has no control over municipal duties. These municipal duties of the election commission are prescribed by section 174 of the •charter and can relate only to. municipal elections, at •which the municipal officers of Denver are to be elected in May. The case before us relates to the appointment of election judges for the municipal election in May. The - *579duties to be performed by the election commission, in preparation for and in the conduct of the municipal election in May, pertains to local and municipal government, over which the general assembly has no control under article XX of the constitution if the prior decisions of this court are followed, any more than it has control over the municipal duties of a municipal treasurer, or the municipal duties of a municipal clerk in Denver. Therefore, in the appointment of a registration committee and a set of election judges for the state election, the election commission performs the duties of county officers and should appoint such judges from the lists furnished by the chairmen of the respective political parties as provided in the act of 1911; but in the appointment of a set of judges for the municipal election in May the commission performs the duties of municipal officers only and should appoint such judges in the manner provided in the charter, which does not provide for any list from the chairmen of the respective political parties. If the act of 19x1 attempts by legislative interference to regulate and control the local municipal election it is to that extent ineffective.
In his dissenting opinion in the case of People v. Johnson, 34 Colo. p. 189, the reasoning of which dissenting opinion was adopted in the Cassiday case and is now the express pronouncement of this court, Mr. Justice Steele said:
“For when the people of the state granted to Denver by article XX power to select public officers, fix their salaries, designate a time for their election, although1 they relinquished a power theretofore retained by them or delegated to the legislature, they but granted Denver power to legislate in matters of local concern.”
Section 2 of article XX says :
“The officers of the city and county of Denver shall *580be 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.”
To me that language clearly means that the charter may provide what officers the municipality may have, and may provide for their appointment or election. How can it be said under that section 2 that the charter may provide what officers the city and county of Denver shall have ancl may not provide that such officers be appointed, -or elected, but that the general assembly may provide by' law for their appointment or election? Certainly under this section the charter may provide not only what officers the municipality may have, but also for their appointment or election. It is obvious that if the charter should provide that certain municipal officers of Denver shall be appointed that the general assembly could not step in and say by whom, or how, or when they shall be appointed; This being true with respect to appointments, it is equally true with respect to the election of such officers as the. charter may provide shall be selected by election. How can it be said that if the municipal officers shall be selected by election they shall be selected as the general assembly may provide, and when they are to be selected by appointment they shall be selected as the charter may provide when the words “appointment” and “election”, are used in the same clause and in the same connection?
It is plain from the above quotation from People v. Johnson, supra, that the people of the state granted to Denver power to select its public officers and when the people did so they but granted to Denver power to legislate in matters of local concern. In the case of People v. Sours, supra, at p. 387, it was said:
“The amendment- (article XX) is to be considered» *581as a whole, in view of its expressed purpose of securing to the people of Denver absolute freedom from legislative interference in matters of local concern; and, so considered and interpreted, we find nothing in it subversive of the state government, or repugnant to the constitution of the United States.”
It is thus plain to me, as a matter already determined by this court, and as a fact flowing from the very nature of the thing itself, that the selection of the public municipal officers of Denver is a matter of local concern ■—a local municipal affair, concerning which article XX has secured to the people of Denver absolute freedom from legislative interference. In cities and towns organized and operating under the general statutes, or a special charter from the general assembly, there is no doubt that the general assembly may and does legislate concerning matters pertaining to municipal elections, within constitutional limits. By general law, applicable alike to all towns and cities operating thereunder, it may prescribe a different time, a different ballot, different rules and regulations for the conduct of municipal elections therein than are prescribed for state and county elections in November, except as it may be limited by the constitution. Those town and city elections are municipal local elections and pertain to local governrhent in the municipalities where held, and the general election law for state and county elections does not apply to them except in so far as is expressly provided by statute. The duties to be performed by the city or town officers with respect to these elections are purely municipal and not state governmental duties. By the adoption of article XX of the constitution the entire population of the state conferred upon the people of Denver all the powers concerning their local municipal government theretofore possessed by the legislature. *582This court has said so emphatically. In Denver v. Hallett, 34 Colo. 393 at 398-9, Mr. Justice S'i'EEEE, delivering the opinion of this court, said:
“The purpose of the twentieth article was to grant home rule to Denver and the other municipalities of the state, and it was intended to enlarge the powers beyond those usually granted by the legislature; and so it was declared in the article that until the adoption of a new charter by the people that 'the charter as it then existed should be the charter of. the múnicipality, and further that the people of Denver shall always have the exclusive power of making, altering, revising or amending their charter; and further that .the charter, when adopted by the people, should be the organic law of the municipality and should supersede all other charters. It was intended to confer not only the powers specially mentioned, but to bestow upon the people of Denver every power possessed by the legislature in the making of a charter for Denver.”
In Londoner v. City and County of Denver, 119 Pac. 156 at 158-9, this court said:
“By that decision we determined that the powers enumerated in section 1 of article 20 of the constitution do not constitute a limitation of the powers conferred on the municipality; and, moreover, the article conferred upon such people ‘every power possessed by the legislature in the making of a charter for Denver.’ ”
Before the adoption of article XX, Denver operated under charters granted by the general assembly. In the various charters thus granted, the legislature provided for the appointment and election of municipal officers and the preparation for and conduct of municipal elections.— Sess. Laws 1883, p. 72; Sess. Laws 1885, p. 98; Sess. Laws 1893, p. 190.
*583' ' There is no doubt that the preparation for and the conduct of municipal elections in Denver were had in accordance with the provisions of these charters and the constitution. While, after making specific' provisions, these charters generally provided that the matters provided for by the general state law should be used as far as applicable when no other provision was made in the charters, yet the state election'1' law came in to 'govern in these elections so far as it did govern, only- because the charter specifically provided that it should. Any provision in the charter thus granted by the general assembly, providing for a different method or detail than that provided for in the general state law, prevailed over the latter. There is no doubt that the general assembly could have provided for all details and methods with regard to elections in Denver in the charter which it had the power to grant, entirely different from the state law, keeping of course within the limits of the constitution. The judges of election were appointed in accordance with the provisions of these charters and the general state law was never regarded unless the charter specifically provided that it should be, so far as' applicable when no other provision was made. That was the power possessed by the legislature or general assembly with respect to elections in Denver under the legislative charter, and as is seen from the decisions of this court quoted above, that power, under article XX descended to the people of Denver and they were given the power to legislate with respect to their municipal elections which the general assembly or legislature theretofore possessed.
While article XX freed the people of Denver from legislative interference by the general assembly, so far as their local government was concerned, I do not wish to be understood as holding that this article freed them from *584the constitution. The legislative power theretofore possessed by the general assembly over such matters was of course subject to the limitations of the constitution, and when the people of Denver succeeded to the legislative powers of the general assembly, with respect to their local affairs, as has been determined by this court, of necessity they took such powers subject to the same constitutional limitations. »
I cannot notice specifically each of these general constitutional limitations, but will refer to them somewhat generally to illustrate what I mean. Dor instance, section 5 of article II provides that all elections shall be free and open and no power shall interfere to prevent the free exercise of the right of suffrage. There can be no doubt that the people of Denver, in legislating for their municipal elections, must observe that section, the same as the general assembly. Article VII of the constitution relates to suffrage and elections. It provides the qualification of electors, privilege of voters, eligibility for office, that elections shall be by ballot, and other general provisions. No argument is necessary to show that the qualification of electors and the other general provisions as fixed in that article limited the p$wer of the general assembly to legislate concerning elections in towns and cities, whether by general law or special charter, and it necessarily follows that the people of Denver who took the power theretofore possessed by the general assembly to legislate concerning municipal affairs in Denver took it subject to the same constitutional limitations. Of course section 7 of article VII, which fixes the time for the general state and county election, is and always has been inapplicable to Denver or to any other city in its municipal capacity. If the people of Denver succeeded to the powers of the general assembly to legislate with regard *585to their local affairs, then section 11 and section 12 of that article, which provides that the general assembly shall pass laws to secure the purity of elections and to provide for election contests must have passed to the people of Denver so far as their power to legislate with regard to their local affairs is concerned. There is no evidence to indicate that the people of Denver are more likely to ignore these provisions than the legislature. On the contrary, it must be assumed that any officer or body of people charged with the performance of a duty will discharge it, and the fact that they may not discharge'it is not a contingency within the meaning of the law that will tend to nullify the power of performance. People v. Sours, supra, 388. The fact is that the people of Denver, in their charter, have legislated to secure the purity of elections in their city. Furthermore, article XX does not deprive the general assembly from passing laws with respect to the purity of elections that will cover municipal elections in Denver. The general assembly may declare an act committed in any place in the state a crime. Murder, larceny and all other crimes committed in Denver are defined and punished under the general laws qf the state. -So equally can illegal voting, ballot box stuffing or other election crimes, in any election including municipal elections in Denver or elsewhere, be defined and punished under the general law of the state making them crimes and prescribing the punishment therefor. The same act that constitutes a crime under the state law, is frequently made a violation of a town or city ordinance, and the actor is made to suffer the penalty prescribed^ by the state law as well as that prescribed by the ordinance.
It is strongly urged that the people of the whole state are concerned in municipal elections in Denver because the state is interested in the purity of elections, and *586that, therefore, the state should have the power to regulate all elections, and municipal elections in Denver are put on a different basis in this regard than other municipal affairs. It appears to me conclusively from what I have said that the state gave, the people of Denver exclusive power, subject to constitutional limitations, over their municipal elections, and having given such power it thereby manifested that what concern it had it was willing to and .did trust to the people of Denver. There is no doubt that the state is concerned in municipal elections in Denver, but it has the s^me concern in that regard that it has with respect to the police regulations in Denver, the same concern that it has with respect to the material welfare and prosperity of Denver, the same concern that it has that everything the people of Denver do in the management of their local affairs will be for the best, and fod the .advancement of good morals and good government. If such concern is regarded as sufficient to deprive the people of Denver of the power, expressly given them, to regulate and control by charter their municipal elections; then, for the like reasons, these people can be deprived of-most, if not all, of the powers given them in article XX, the article.'wiped out, and home rule.for Denver, which has been accepted as real and substantial, and which this court has said was intended to be accomplished by that article,'will exist no more.
It is also urged that, because the charter shall designate' the persons who shall perform the duties of county officers, the state has such interest that it should control the municipal election. The power to so’ designate was expressly given to the people of Denver in article XX by the'people of the entire state by constitutional amendment. ■ It was thus bestowed without qualification, reservation or limitation. The language used in giving it is *587plain and unambiguous. That the people of the state had a constitutional right to grant this power to the people of Denver was finally and conclusively settled by this court in the Cassiday case. By granting this power as they did, the people of the entire state manifested and declared that it was their concern and policy that the people of Denver should have this right and power freed from legis-' lative interference by the general assembly, until the same people that gave it shall take it away by constitutional amendment. What right has any court to say that it is the concern of the. state that the general assembly shall control the matter of municipal elections in Denver, when the people of the whole state have declared that it is their concern that the people of Denver in their charter shall control such elections, subject only to such constitutional limitations as are applicable?
Speaking of article XX, this court in the Cassiday case, at page 507, said: -
“It (article XX) is not only a part of the constitution, but it is there to stay, until the authority which voted it in shall vote it out. It, as any other part of the constitution, is to be given force and effect according to its plain intent, purpose and meaning. When the whole people speak through a fundamental law, or by amendment thereto, not in conflict with the federal constitution, all should hear and heed, more especially the courts, whose function is to interpret, and, where possible, uphold and enforce, not nullify, overthrow and destroy the law.”
And on page 508, speaking directly with reference to section 2 of article XX, which I have quoted above and which relates to the power of the people of Denver to provide in their charter for the appointment or election of their'municipal officers, and that the charter shall desig*588nate the officers who shall respectively perform the acts and duties required of county officers, this court said:
“There is .no element of uncertainty about this provision. It needs no construction; it interprets itself. The question is, shall it be given its plain, obvious and common-sense meaning, and enforced accordingly, as other provisions of the constitution are interpreted and enforced? There is no apparent reason for doing otherwise. Why scrutinize article XX in hostile spirit or treat it as an interloper ? It is a child of the same parentage as the original constitution. This court has ag-ain and again held it .to be a part thereof, and it is so in all its provisions, and for all purposes, according to its clear intent.”
I say now, in speaking- with reference to the matter in point, there is no element of' uncertainty about this provision. It needs no construction and it interprets itself. The question is, shall it be given its plain, obvious and common-sense meaning and enforced accordingly ? Why engraft upon it something that is not there? Why say, when the people of the state have declared that the people of Denver should appoint or elect their officers as provided in their charter, that the people of Denver shall not do it, but that they shall do it as the general assembly may provide?
And on page 509, speaking with reference to the duties of county officers, and of the provision that the charter shall designate the persons who shall perform them, this court said:
“The whole people of the state have declared, by their fundamental law that this may be done. That was a question of governmental policy for the people to determine, and this policy, when once declared, may not be ruthlessly set aside by the courts, except it is shown *589to violate in some way the federal compact with the state.”
If the people of the state have settled as a question of governmental policy that the people of Denver may designate in their charter who shall perform the duties of county officers, by what right has the court to say now that that is not the governmental policy declared by the people, but that the policy declared by the people is, that the general assembly shall step in and control in this, matter ?
Enough has been said, to conclusively convince me that I must dissent from the opinion and conclusion of the majority of this court, and'it is my opinion that the election judges for the municipal election in Denver should be appointed by the election commission in accordance with the terms of the charter.
It follows from this that the judgment of the district court was wrong and should be reversed; that the cause should be remanded and the complaint dismissed.