specially concurring:
I concur in the majority opinion as authored by Mr. *104Justice Day. However, I would like to add a few observations of my own.
" Nobody apparently likes to pay taxes, be it with or without representation. However, it should be remembered that courts do not enact tax laws nor are they concerned with the wisdom of any tax law. Hence, as concerns the instant controversy, the wisdom of any of thé three taxing ordinances here under attack is not a matter to be passed upon by us. That particular matter has been resolved, at least for the time being, by the People of the City and County of Denver, acting through their elected representatives. The only issue in the present controversy to be resolved by us concerns the power of the Denver City Council to enact the three taxing ordinances with which we are here concerned.
This court has now unanimously upheld the power of Denver to enact the so-called occupational tax as it relates to employers. In my opinion no other result could be reached on this phase of the case unless we overrule not one, but four, prior decisions of this Court which have upheld similar taxing ordinances in Englewood, Glenwood Springs, Grand Junction and Cortez. ■■ ^Notwithstanding the fact that this Court has now unanimously upheld the so-called occupational tax as it rélates to employers, the Court has by only a 4-3 vote upheld the so-called occupational tax as it would apply to employees. I for one cannot see how the occupational tax is, on the one hand, valid when applied to employers,but somehow invalid when sought to be applied to employees. In other words, it is difficult for me to see how the occupational tax is truly an occupational tax when applied to employers, but somehow becomes an income tax when sought to be applied to employees. The differences in these two taxing ordinances are simply not such as would justify upholding one, and striking down the other. In my view the employers and the employees in this connection are in the same boat —■ the occupational tax is either valid as to both, or invalid as to both.
*105As concerns the so-called earnings tax, this Court on the basis of Denver v. Sweet, supra, has now unanimously declared it to be invalid. I agree, though with some reluctance. To explain, in my opinion the result reached in Denver v. Sweet, supra, is wrong and the reasoning contained therein is to me, at least, unconvincing. As I see it, the rule of Denver v. Sweet, supra, represents an unwarranted impingement upon the broad powers constitutionally vested in the Home Rule cities. Though in my view I am not bound to follow the rule announced in Denver v. Sweet, supra, for the reasons set forth by Mr. Justice Day I feel however that I should and I now do. It is on this basis that I concur in the determination that the earnings tax should be declared invalid.
Mr. Justice Pringle has authorized me to state that he concurs in the majority opinion authored by Mr. Justice Day and also concurs in this specially concurring opinion.