dissenting:
In order to a proper understanding of this case, and of the grounds of my dissent from a part of the court’s conclusion, it is necessary to make a fuller statement of the facts than is given in the majority opinion.
On April 8, 1921, Governor Shoup appointed defendant public trustee for the term of four years, expiring April 8, 1925.
It is stipulated in the record that on January 4, 1923, defendant had, a conversation with the governor wherein it was agreed that if defendant would resign said office, the governor would accept his resignation and immediately appoint him to the office for the term of two years; that, pursuant to said understanding, said resignation was tendered and accepted on January 5, 1923, and Governor Shoup thereupon appointed defendant to said office for a term of two years, expiring January 5, 1925. The appointment was confirmed by the Senate on January 8,1923. On April 25th, after the final adjournment of the legislative assembly, Governor Sweet appointed the relator to said office.
On December 5, 1921, this court, in Chambers v. People, 70 Colo. 496, 202 Pac. 1081, decided that the office of public trustee is a county office, and that, under the Constitution, the term cannot be more than two years, though the statute made it four years.
Since section 2 of article XX of the Constitution provides that: “The charter shall designate the officers who shall, respectively, perform the acts and duties required of county officers,” and, as the charter contains nothing as to this county office, it is clear that there is no authority in the mayor to make the designation.
This is a necessary conclusion under the decisions of this court in which the rights and duties of the city have been determined. People v. Cassiday, 50 Colo. 503, 117 Pac. 357; Thrush v. People, 53 Colo. 544-549, 127 Pac. 937; Dixon v. People, 53 Colo. 527, 127 Pac. 930.
In the last named case, speaking of the City of Denver, the court held that the effect of Article XX is to impose *550upon the inhabitants of that territory the power and duty to designate the agency which shall exercise the powers and discharge the duties which are elsewhere committed to the county officers.
In this statement the court recognizes the distinction between the people, as inhabitants of the city, and by whom the charter is to be made, and the city as an organization.
By section 156 of the charter of 1904, provision was made for the discharge of the duties of county offices by various city officers named. Such provision was clearly a legislative act. To amend that section so as to provide what officers should perform the duties of any county office not therein specified would likewise be legislative. If the people of Denver wish to have the duties of public trustee discharged by an incumbent of some city office, they can amend the charter so to provide.
There being no authority in any officer of the city to make the appointment, the power must rest with the governor, if it is to be exercised at all. Public policy requires that offices be filled, so that the duties thereof may be discharged; hence it results that until the people of Denver amend their charter as above suggested, the appointment of a public trustee may be made by the governor. The necessity for keeping a county office filled is clearly recognized in Arnold v. Hilts, 52 Colo. 391, 121 Pac. 753, Ann. Cas. 1913E, 724.
The appointment of the defendant in 1921 was effective only for the term ending April 3, 1923; when, on January 5, 1923, he resigned there was created a vacancy for the remainder of the term, and his appointment on January 8th was good only until the end of that term; otherwise, it would be possible for a governor to extend the term of office in favor of an incumbent, and thus evade the provision of section 30 of article Y of the Constitution, which prohibits the extension of the term, or an increase of the emoluments of a public officer during his term.
I cannot agree that section 156 of the Charter of 1904 complies with section 2 of article XX of the Constitution, *551•which provides that the charter shall designate the city-officers who' shall perform, the duties of county officers, etc. Section 156 may be, as the opinion holds, intended to provide for an emergency, but it cannot legally provide for the doing of an act by the mayor which the Constitution requires to be done by a charter provision. The majority opinion, in effect, makes the charter prevail over a constitutional provision. I concur in the reversal of the judgment, but not in the conclusion that the relator is not entitled to the office.
I am authorized to state that Mr. Justice Allen and Mr. Justice Campbell concur in the views above expressed.