dissenting:
Originally I concurred in what has now become the majority opinion of the Court en banc. This concurrence was in a departmental determination. Now, following rehearing and further argument I find that I must disagree with the majority for these reasons:
(1) This is a collateral attack upon the validity of the improvement district and the proper parties are not before us; and (2) The case should be decided on its merits because a legislative body was at the time in existence. The council had at least a de facto existence and was possibly a de jure council.
*527(1) We have repeatedly held that the only manner by which the validity of a public corporation can be tested is by direct attack. People ex rel. Dunbar v. South Platte Water Conservancy District, 139 Colo. 503, 343 P. (2d) 812; Burns v. District Court, 144 Colo. 259, 356 P. (2d) 245. In Enos v. District Court, 124 Colo. 335, 238 P. (2d) 861, this court said:
“Municipal corporations of the character involved are created only upon the authority of the state by legislative enactment, and are, if created thereunder, solely for public and not private purposes, and become an arm of the state. The right to exist as such a corporation is derived solely from the state and any action aimed to attack its legal existence after it becomes at least a de facto corporation must be confined to the state through its official representative, and such official representative in the absence of a statute, cannot delegate such authority. Here the assumed relator has no interest in the subject matter distinct from the general public in the territory involved, and there is no denial that, in the last analysis, he was acting in his individual capacify * * * •”
(2) I fail to see any legal justification for the present collateral attack. This • case should be tried upon the merits. Some governing body was in existence capable of enacting necessary legislation. Five members of the “old” council were also members of the “new” council. Thus there was at least a “de facto” if not a “de jure” council. A glaring weakness in the majority opinion is its conclusion that there was no council in existence. Either the old council was not dead and a quorum was present, or a council consisting of five duly elected and properly sworn members joined with four newly elected but not properly sworn members to form a de facto council. In either case the adoptive procedures were effective. Butler v. Phillips, 38 Colo. 378, 88 Pac. 480.
Mr. Justice McWilliams joins in this opinion.