dissent.
Mr. Justice Allen and Mr. Justice Denison not participating.
Mr. Justice Allen and Mr. Justice Denison decline to participate in the decision, each having decided questions involved at nisi prius, Mr. Justice Denison having tried the cause finally. It therefore becomes necessary to determine what number of judges constitute the Supreme Court en banc, and how many must participate to decide a case.
Section 5 of Article YI of the Colorado Constitution reads: “The Supreme Court shall consist of seven judges, who may sit en banc, or in two or more departments as the court may, from time to time, determine. In case said court shall sit in departments, each of said departments shall have the full power and authority of said court in the determination of causes, the issuing of writs and the exercise of all powers authorized by the Constitution, or provided by law, subject to the general control of the court *497sitting en bane, and such rules and regulations as the court may make, but no decision of any department shall become the judgment of the court unless concurred in by at least three judges, and no case involving a construction of the Constitution of this State or of the United States, shall be determined except by the court en bane.”
Section 8 of Article VI provides: “The Chief Justice shall preside'at all sessions of the court en banc, and, in case of his absence, then the judge present who would next be entitled to become Chief Justice, shall preside.”
This section also provides that the judge having the shortest time to serve, not holding office by appointment or election to fill vacancy, shall be the Chief Justice, and of the two judges whose terms of office expire upon the same day, the younger in years of the two judges shall be the Chief Justice during the next to the last year of his term of office. ■ >
From these sections of the Constitution it will be noted that provision is made for the court to sit in either of two ways: In departments, or en banc. The number of departments may be two or more, but no decision of a department shall become the judgment of the court unless concurred in by at least three judges.
It is unnecessary to enter into a mathematical determination of the different combinations that would be possible for the creation of departments. Whatever the number of departments, or the number of judges constituting a department, there must be a concurrence of at least three judges for a department decision. There may be two departments, each composed of the Chief Justice and three other justices, or, according to the present arrangements, there may be three departments, each composed of the Chief Justice and two other justices. In either case, as already stated, three judges must concur in order to render a decision. In the one case three of four judges may render a court judgment, and in the other all three .of the judges constituting the department must concur. Speculation might be indulged as to why the concurrence of three *498judges is required, and it might be urged that the number fixed is that number which would be the minimum majority of a minimum quorum of all the judges when sitting en banc.
■ Under this view it would follow that, when the court sits en banc, the least number of judges which could constitute a quorum is four, and a majority of the four — that is, three judges — must concur in order to render a judgment of the court en banc. However, unless inference be drawn from what is said of the power of the department of the court and the number of judges necessary to a decision, the Constitution is silent upon the subject as to the number of judges required to constitute the court en bane. We say it is silent. This is true in so far as any express statement of the minimum number of jurges constituting the court en banc, is concerned. It is perfectly clear, however, that the court en banc may be composed of less than all the judges, since it expressly declares that the Chief Justice shall preside at all sessions of the court en banc, and in case of his absence, then the judge present who would be next entitled to become the chief justice shall preside. Now, if the Chief Justice is absent because, for example, personally interested in the case or because he feels himself disqualified, then the judge present who would next be entitled to become Chief Justice, shall preside. If that judge is also absent, the inference is irresistible that the next judge present who would be entitled to become Chief Justice shall preside and there is no limit fixed by the Constitution as to how many judges might thus be absent.
Under a constitutional provision such as ours, a majority of the members of the court constitute the court en banc, and a majority of the court as thus constituted, of course may decide. Cases which directly sustain this principle are: Oakley v. Aspinwall, 3 N. Y. 547; State v. Lane, 26 N. C. 434; Commonwealth v. Mathues, 210 Pa. 372, 59 Atl. 961.
There is an old statute in this state, carried forward and found as section 1412 of the Revised Statutes of 1908, *499which provides: “If there shall not be a quorum of the justices of the supreme court present on the first day of any term, the court shall be and stand adjourned from day to day until a quorum shall attend.” * * *
This statute clearly determines, that which is necessarily implied in the constitutional provision,, that a quorum of the justices may transact business and decide cases. The statute does not define a quorum. The word, therefore, must be held to be used in its ordinary meaning, and that meaning is a majority of the entire body. Decker v. School District No. 2, 101 Mo. Appeals 115, 74 S. W. 390; Ex Parte Willocks, 7 Cowan 402, 409, 17 Am. Dec. 525; Zeiler v. Central R. Co., 84 Md. 304, 35 Atl. 934, 34 L. R. A. 469; Snider v. Rinehart, 18 Colo. 18, 31 Pac. 716.
The necessary and inevitable inference from the constitutional provision as to who shall preside over the court en banc, when the Chief Justice is absent, is that the court en banc, may consist of a less number than all the judges. If not equally divided, the inference is also irresistible that a decision may be made according to the views of the majority of the members of the court sitting.
The opinion in the famous “Telephone Cases” decided by the Supreme Court of the United States in 1888, the report of which fills the entire volume of 126 U. S. Reports, is illustrative of the power of a majority of a quorum to decide. These great cases were argued before the Supreme Court of the United States on January 24, 25, 26, 27, 28, 31, and February 1, 2, 3, 4, 7 and 8, in the year 1887. At the time of the oral argument the Supreme Court was composed of Chief Justice Waite and Justices Miller, Field, Bradley, Harlan, Woods, Matthews, Gray and Blatchford. Mr. Justice Gray, however, was not present at the argument, and for that reason took no part in the decision, and Mr. Justice Woods, by reason of illness, did not sit at the argument, and died April 14, 1887, before the cases wore decided. Mr. Justice Lamar was appointed to fill a vacancy caused by the death of Mr. Justice Woods, and was sworn in on January 18, 1888, but, not having been a member of *500the court when the cases were argued, took no part in the decisions. Only seven members of the court, therefore, participated. There were Chief Justice Waite, and Justices Miller, Field, Bradley, Harlan, Matthews and Blatchford. The opinion of the court was delivered by Chief Justice Waite, and was concurred in by Justices Miller, Matthews and Blatchford, with Justices Field, Bradley and Harlan dissenting. The decision was rendered by a majority of a quorum only, which number was not a majority of all the members of the court.
Upon the theory that a majority of the court constitutes a quorum, and this seems to be incontrovertible, we are of opinion that a majority of such quorum has full power to hear and determine any cause. Even upon this assumption three judges at least must concur in order to reach a final determination, just as that number is required in a department to finally decide. Any other rule might often completely paralyze and render impotent one branch of the State Government, a situation which is simply unthinkable.
Upon the question of how many judges constitute the court en banc and how many may decide a case, in which all the members of the court take part, the Chief Justice, Justices Allen, Burke and Denison concur. Justices Scott and Teller dissent.
Mr. Justice Teller dissenting-: According to the majority opinion, the defendant is lawfully in the streets of Denver, not because it has a perpetual franchise to use them, as defendant claims, but because from the city’s dealings with it, a license is implied to use said streets. From the facts of this license, it is concluded that, until it is revoked by the city, a proceeding in the nature of quo warranto to question the defendant’s rights to occupy the streets may not be prosecuted. With so much of the opinion as appears to hold that the defendant has no franchise from the city', I heartily concur; but I cannot agree that the action was prematurely brought; or .that it was not properly begun by the District Attorney on the relation of a citizen taxpayer.
The conclusion that the writ will not lie until the city *501orders the defendant from the streets, results, in my opinion, with due deference to my associates thus concluding, from a misapprehension of the ground of the proceeding.
The statute makes it the duty of the District Attorney to bring the action “whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held.” If, then, the District Attorney is of the opinion that a franchise is being unlawfully held, either by reason of the fact that the party has no franchise at all, or. an alleged franchise which he deems invalid, his duty is to begin proceedings to determine such right. He is not required to wait until someone else acts. If the defendant had a license, that fact would not militate against the right of the state to determine whether or not the company is now lawfully in the streets of the city. Beyond doubt the state has the right to have determined the question of the authority of any person or corporation to occupy streets under a claim of right, whether based upon an alleged franchise or a supposed license. If there be a franchise or license the proof thereof is a matter of defense. Were the inquiry by the city, a different question might be presented, it not being at liberty to deny the validity of the license which it had assumed to grant.
It must not be forgotten that this is an action by the state in its sovereign capacity, acting through the District Attorney, who is specifically authorized by statute to act for the state in these matters. The state is the. principal and the city the agent, and if the agent — the' agency being special and limited — exceeds its powers, the principal is not bound by such acts. The defendant, having obtained, as it claims, through the city, rights which only the state can grant, either mediately or immediately, clearly the state need not wait for the city to take action to test the question whether or not there has been a valid grant of those rights. If the state must thus wait for action by the city, the latter might exercise any powers it chose to assert, and its subsequent refusal to question its own action would *502leave the state powerless in the premises. That would effectually nullify all limitations on the powers of the city, and render unnecessary any consideration of what powers had been granted to it. This view is in accord with both reason and authority.
In State v. Railway Co., 135 Iowa, 694, 109 N. W. 867, the court said: “It is a thoroughly well-established proposition that rights granted to a corporation, either directly or by the State indirectly through the act of a minor municipality authorized by the State, are to be regarded as franchises no less than is the right to be a corporation. Both classes of rights are derived mediately or immediately from the State, and both are subject to the inherent power of the State to guard against their abuse by the grantee or usurpation by a wrongdoer.”
Again, speaking of' the privilege of using city streets, the court said: “The municipality to which is given authority to grant such a privilege exercises a delegated power only, and it cannot grant to any person or corporation a privilege which is confessedly in derogation of the common right, in a manner which shall exclude the power of the State to inquire into its abuse, or to prevent the subversion of the public interests which the legislative grant was intended to promote.”
And again: “To say that the State has surrendered to the city all its power and authority to protect public interests against usurpation, neglect, or abuse by a corporation of its own making, and that so long as the city authorities are content to remain quiescent the State is powerless in the premises, is to say that the State may surrender its sovereignty and the Legislature estop itself by an abdication of its legislative power. Even the State itself cannot constitutionally authorize the occupation of the street for anything but a public purpose, and if a city government by its indifference to public interests or by a mistaken estimate of its own power in the premises permits a corporation to occupy its streets without legal right to such franchise or to assume without authority other rights *503which are not common to the people generally, the State has the inherent and reserved right to call upon such corporation to show by what warrant it assumes to hold or exercise such franchise. The right and power of the State over its highways, roads, and streets and its duty to preserve and protect these avenues of public travel against unlawful encroachment and obstruction are as wide as its territorial jurisdiction.”
Counsel for plaintiff in error say that it should ever be borne in' mind that the right to use the streets is derived from the state; yet they deny that the power that grants the right may inquire whether or not the use of a street is under a grant, or in accordance with one admitted to have been made. I confess my inability to follow counsel’s reasoning. Since, then, the state can inquire as to the acts of its agent, whenever it appears that the public interest requires such inquiry, it can never be said that such inquiry, as to acts fully performed, is premature. It would seem that, after it was ruled that the proceeding was prematurely begun, no consideration of other questions argued was necessary.
The opinion, however, determines that under the circumstances recited, a private citizen, with no special interest involved, may not maintain an action of ouster; this, especially, it is said, because the city may, at any time, revoke licenses. This overlooks the statute which specifically authorizes the District Attorney to bring such a proceeding in the name of the state, on the relation of a private party. It is in no sense a private action. The relator, as in many other proceedings, merely acts, under statutory authority, or by established practice, to set the machinery of the law in motion. This proceeding is no more the private suit of the relator, than would be a prosecution under an information, as a basis for which he made the necessary affidavit. As well might it be said that a proceeding for constructive contempt is private, because it is initiated by the affidavit of a private party.
*504In State ex rel. v. Railway Co., supra, objection was made that the relator, a private citizen, could not institute the proceeding, as is here contended. The court there points out that the purpose of the proceeding is to protect the public interest, and that the relator acts not for his private interest, but to set the machinery of the law in motion to vindicate the interests of the public.
The majority opinion refers to statements in the answer which, it is said, “tend to establish that the complaint fails to state facts sufficient to constitute ■ a cause of action.” Then follows a recital of the allegations which are presumably, the ones which discredit the complaint. This criticism of the complaint ignores our recent ruling, by the. full bench in Lockhard et al. v. The People ex rel. Weisbrod, 65 Colo. 558, 178 Pac. 565. We there held that the complaint in quo warranto may be general in its terms, “alleging facts showing capacity to institute the action, and directly charging acts which show an intrustion into or the usurpation of an office, or franchise.” We said: “The rule is that the state has no burden to assume in the first instance. The complaint or information is a challenge to the defendant to show by what right he is exercising a franchise or holding an office.” The ultimate fact to be alleged in this case was that the defendant was exercising a franchise without right. People v. Reclamation Dist., 121 Calif. 522, 50 Pac. 1068, 53 Pac. 1085. The attack on the complaint is, therefore, without basis.
The reversal of the judgment on the ground that the defendant has an implied, revocable license is without any support whatever in the record. The answer sets up, not that the city has done things from which a license to the defendant is implied, but that the defendant has from the constitution and the statutes a perpetual franchise, which neither the city nor the state can revoke, i. e., a contract with the state, which is protected from abrogation by the federal constitution. This claim to a perpetual franchise is repeated again and again, and nowhere in the record is there a suggestion that a right is claimed under an im*505plied license. The argument for plaintiff in error follows the . same line.
It is true, of course, that a plaintiff may recover upon any right of action fairly stated in his complaint, and possibly, by a liberal construction of the allegations of the answer, the matter of an implied license might have been considered; but it is equally true that a party cannot try his cause on one interpretation of his allegations in the' trial court, and change the theory of his case and obtain relief in a reviewing court on a new interpretation.
Counsel claim a franchise under section 13 of Article XV of the Constitution of Colorado; under the law of 1877; under the law of 1885, the city having given the required, consent; and under the general incorporation laws of the state.
In view of the length of their brief, counsel kindly furnished the court an “outline of the briefs.” In it I find this in capital letters: “Whether self-executing or not, the constitution, supplemented by the statutes and consent of the city, conferred upon all persons obtaining such consent the right to construct telephone poles and wires upon all of the public highways of the state, including streets and alleys of the consenting city; and when the right thus conferred was accepted by the actual construction of a plant, the constitution and statutes operated to grant a perpetual and irrevocable right to maintain and operate the telephone plant thus constructed.”
And again: “The construction at some time in the past, with the consent of the municipality, having been thus admitted by the complaint, it follows that the Act of 1885 and the Act of 1907 have constituted and still constitute a continuing grant to the person in possession of said constructed telephone plant within the municipality -of the right to operate and maintain it.” The only claim of right to use the streets, which the plaintiff in error made at the trial or in the briefs on file here, is that arising from a perpetual franchise.
*506No attempt was made to show any other right until, on the second oral argument, counsel suggested that certain ordinances of the city passed since the transcript was filed in this court, should be treated as a recognition of defendant’s right to use the streets. The various acts of the city which the majority opinion holds to have given the defendant a revocable license were pleaded, and treated in the briefs, as evidence of the city’s recognition of an existing franchise, a right perpetually to occupy the streets.
To reverse the judgment on this record, and under such circumstances, is to violate the settled rules of practice, and establish a precedent which is likely to be productive of evil. I, therefore, feel impelled to record my dissent.
I am unable to agree with the conclusion announced that a majority of the five judges of the Supreme Court, that is to say three of them, may determine a case required to be presented to the court en banc. The question is not, in my opinion, to be determined by precedents of other courts, 'because of the peculiar provisions of our constitution.
This court is authorized to sit in departments consisting of three members, all of whom must agree upon a decision rendered by a department. The constitution requires that certain cases be determined by the court en banc. According to the rule laid down in the majority opinion, three judges may, if sitting en banc as a part of a quorum, which might be only four members, determine a constitutional question, the very authority which has been denied to them by the constitutional provision creating the departments. If the members of a quorum consisting of four judges be equally divided in opinion, the judgment under review is affirmed under section 403 of the code. These two judges may determine a constitutional question, which three judges may not constitutionally consider, if sitting in department.
I do not think that this court may, by its ruling, make nugatory a constitutional provision by a mere making of *507the tribunal a court en banc, instead of a court in department.