concurring in part and dissenting in part:
I concur with the majority opinion in affirming the judgment of the trial court as to the invalidity of Ordinance No. 234 imposing the so-called “earnings tax for general revenue purposes.” I likewise concur with the majority in affirming the judgment of the trial court upholding Ordinance No. 232 which imposes the business and occupational privilege tax.
However, I respectfully dissent from the majority opinion insofar as it upholds the validity of Ordinance Ño. 233 which imposes a so-called “Employee Occupational Privilege Tax” of $2.00 per month. Regardless of *106the name affixed to this tax, it is in my view an income tax. Therefore, it is not within the power and authority of the City and County of Denver to enact. Denver v. Sweet, 138 Colo. 41, 329 P.2d 441.
The majority opinion cites Englewood v. Wright, 147 Colo. 537, 364 P.2d 569, Ping v. City of Cortez, 139 Colo. 575, 342 P.2d 657, Jackson v. Glenwood Springs, 122 Colo. 323, 221 P.2d 1083 and Post v. Grand Junction, 118 Colo. 434, as the previous pronouncements of this court which purportedly uphold the validity of Ordinance No. 233. An analysis of these cases, however, reveals that each one involved the imposition of an occupation tax on a business, or, in other words, the privilege of conducting a certain business or occupation. In each case, the tax was upheld as a lawful occupation tax on the privilege of conducting certain named businesses or occupations within a municipality. As pointed out in Englewood, Ping, Jackson, and Post, the controlling element of an occupational privilege tax is the presence in the municipality of a business or occupational endeavor, project or enterprise. It is this thing itself that is subject to an occupational privilege tax. But, the imposition of a tax on an employee of the business because he earns more than $250 per month for services rendered to an employer within the municipality, is to impose a tax not on a thing, or a privilege, but on the personal right of an individual to earn an income by the performance of services for his employer.
The three cases from other jurisdictions referred to by the majority as supporting this type of tax are distinguishable from the precise issue involved here. The fact that an employee is earning a salary, commission or wages, is the controlling element in the imposition of an income tax as distinguished from the controlling element of an occupational privilege tax. An income tax is not levied upon the privilege of doing business or conducting an occupation within boundaries of a political subdivision, but upon the right of an individual to receive an *107income for services rendered by him. Paine v. City of Oshkosh, 190 Wisc. 69, 208 N.W. 790.
Section 1.2-1 of Ordinance No. 233 makes “the performance of services within Denver by an employee for an employer as herein defined, for any period of time in a calendar month for wages as herein defined,” the exercise of a taxable privilege, which is taxed under Section 1.3-1 at the rate of $2.00 “per month for each and every month in which such employee is, for any period of time, so employed.”
The obvious intention and purpose of the wording contained in the above ordinance provisions is to denominate the right to be employed and earn an income in excess of $250 in the City and County of Denver as a privilege, which is, therefore, taxable as such by the City and County of Denver. But such wording is not the determining factor which changes the inherent characteristic o'f an income tax. It is the operational feature of the tax itself which controls. If its imposition is conditioned upon the receipt of income or wages, and it is structured so that it is to be a direct charge on income of $250 or more per month, it is an income tax, and as such, only the Legislature in Colorado may impose it according to Sweet, supra.
For this reason, the validity of Ordinance No. 233 should not be upheld.
Mr. Justice Kelley and Mr. Justice Lee join in the views expressed herein.