dissenting:
The majority mandates an election on a measure initiated by certain voters of the City of Louisville to repeal an ordinance annexing lands to the city. I respectfully dissent.
The powers of initiative and referendum which have been reserved to the legal voters of every city, town, and municipality by Colo. Const. art. V, Sec. 1, are not unlimited powers, but rather are powers limited by qualifying language:
“The initiative and referendum powers reserved to the people by this section are hereby further reserved to the legal voters of every city, town and municipality as to all local, special and municipal legislation of every character in or for their respective municipalities.” (Emphasis added.)
Generally, the exercise of the power of initiative cannot be prevented by establishing that the proposed initiated law would be unconstitutional or otherwise invalid if it were adopted. City of Rocky Ford v. Brown, 133 Colo. 262, 293 P.2d 974 (1956); see Speer v. People, 52 Colo. 325, 122 P. 768 (1912).
However, there is a logically necessary exception to the foregoing rule. Simply stated, where the attempted exercise of the power of initiative or referendum exceeds the scope of the power reserved to the people, there can be no exercise of that power. This principle was recognized by this court in City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 *535(1977). There, this court permitted a challenge to a proposed referred measure in advance of passage where the challenge was based on a contention that the character of the proposed legislation was not within the constitutionally reserved referendum power. In that case, a judgment was upheld which declared that a proposed referred law was not within the referendum power reserved to city voters by Colo. Const. art. II, Sec. 1, because the law treated matters administrative and not legislative in character.
The reserved power of initiative is limited to “all local, special and municipal legislation of every character.” Colo. Const, art. V, Sec. 1. Annexation is not a subject of local, special and municipal character; rather it is a matter of statewide concern within the control of the General Assembly. Ft. Col. Wtr. Dist. v. Ft. Collins, 174 Colo. 79, 482 P.2d 986 (1971); Rogers v. Denver, 161 Colo. 72, 419 P.2d 648 (1966). See sections 31-12-101 to 122, C.R.S. 1973 (now in 1977 Repl. Vol. 12). Disconnection, or de-annexation, is likewise a matter of statewide concern. See Rogers v. Denver, supra; sections 31-12-501 to 503 31-12-601 to 605, and 31-12-701 to 707, C.R.S. 1973 (now in 1977 Repl. Vol. 12).
In Ft. Col. Wtr. Dist. v. Ft. Collins, supra, this court stated:
“The first fundamental precept in answer to the plaintiffs’ contentions is that, in the absence of express constitutional provisions to the contrary, the general assembly has unlimited power over annexation of territory by municipalities; and even the legislative denial of the rights to notice and to vote upon annexation is not a denial of due process of law or the equal protection of the laws. . . .”
In Rogers v. Denver, supra, this court adopted the general rule that in the absence of express constitutional provisions to the contrary the power of a state legislature over the boundaries of municipalities of the state is plenary. See also Mayor v. Shattuck, 19 Colo. 104, 34 P. 947 (1893).
Fundamental to the foregoing principles is the basic concept that municipalities exist for the convenient administration of government and are merely instrumentalities created to carry out the will of the state. In Commissioners v. Denver, 150 Colo. 198, 372 P.2d 152 (1962), this court quoted from Hunter v. Pittsburgh, 207 U.S. 161, 28 S. Ct. 40, 52 L.Ed. 151, (1907), where it was said:
‘“The state, therefore, at its pleasure may . . . expand or contract the territorial area (there of a city), unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All this may be done, conditionally or unconditionally, with or without the consent of the citizens, or even against their protest. In all these respects the State is supreme, and its legislative body, conforming its action to the state constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. . . . The power is in the State and those who legislate for the State are alone responsible for any unjust or oppressive *536exercise of it.’”
The General Assembly, in accordance with its plenary power over municipalities, enacted comprehensive legislation providing for the creation and organization of municipal corporations, annexation to municipalities, consolidation of municipalities, disconnection from municipalities, and discontinuance of municipal corporations. See generally articles 2, 3 and 12 of title 31, C.R.S. 1973. The statutes relating to annexation and disconnection provide the framework and control the method by which these objectives may be accomplished. They substantively delineate who may challenge the procedural compliance with the statutory mandates. Ft. Col. Wtr. Dist v. Ft. Collins, supra. Since these statutes are binding on municipalities generally, including home rule cities and towns (Colo. Const. art. XX), the municipal legislative bodies are bound to follow the statutory mandates. It follows that the legal voters of the municipalities are without power to initiate an ordinance that is beyond the power of the municipal legislative body to enact. In my view, it cannot be reasonably contended that annexation to or disconnection from a municipality is a subject of “local, special and municipal character” concerning which the limited powers of initiative and referendum may be exercised by the voters of a city. Therefore, the power of initiative in the voters of the City of Louisville does not extend to annexations and disconnections.
The majority does not reach the question whether the power of referendum is available with respect to the annexation ordinance which the plaintiffs seek to repeal. By parity of reasoning, the above discussion demonstrates that it is not.
There is a second reason that referendum is unavailable. Excepted from the power of referendum in our constitution are “laws necessary for the immediate preservation of the public peace, health or safety.” The annexation ordinance which the plaintiffs seek to undo contains a legislative declaration that it is necessary for those very purposes. This legislative determination is conclusive upon this court and is not subject to judicial review. E.g., Lyman v. Town of Bow Mar, 188 Colo. 216, 533 P.2d 1129 (1975); Shields v. City of Loveland, 74 Colo. 27, 218 P. 913 (1923). We have recognized previously that an emergency clause may appropriately be included in an annexation ordinance. See Board of County Commissioners v. City and County of Denver, 193 Colo. 211, 565 P.2d 212 (1977).
The constitution itself reflects that the powers of initiative and referendum do not extend to the proposed legislative action involved in the instant case. We should be not less scrupulous in enforcing express limits on constitutionally protected rights than in permitting full and free exercise of those rights within such limits.
I would affirm the judgment of the trial court.
*537I am authorized to say that JUSTICE LEE concurs in this dissent.