specially concurring:
I concur in Mr. Justice Hall’s opinion. However, I have additional reasons and I would also' answer the question of jurisdiction vel non raised by this court sua sponte and which forms the basis of Mr. Justice Moore’s vigorous dissent.
The principal thesis of the dissent is that the act of the trial court in appointing the receiver resulted in an all time void receivership. With this concept I cannot agree for reasons which more fully hereafter appear.
It has been urged by Mr. Justice Frantz that improvement district funds are not public funds within the true meaning of the constitutional and statutory provisions governing elected public officials and the various funds they handle; that a more proper theory is one of agency or trusteeship. With this concept I can agree. See authorities cited in Mr. Justice Frantz’s specially concurring opinion. Here they certainly are neither fish nor fowl.
I urge in addition, however, that here the question of jurisdiction is moot.
*14Mr. Justice Doyle in his specially concurring opinion suggests that the power to appoint such a receiver has been bestowed by statute in other jurisdictions, that we should thereby recognize that a gray area exists here and that in effect the equities of this case require us not to undo what we and the parties have so long acquiesced in.
The record and briefs here disclose that as a result of the decision in Flanders v. Pueblo (1945), 114 Colo. 1, 160 P. (2d) 980, other litigation followed in this controversy and that in 1952 Grand Carniolian brought a class action seeking appointment of a receiver to marshal and distribute the assets held under Ordinance No. 1373. Pueblo resisted that action, but the trial court on February 28, 1953, appointed this receiver as a result of its hearings. Following the appointment Pueblo sued out its writ of error seeking reversal (Case No. 17,059). On February 1, 1954, this court announced its opinion in case No. 17,059 wherein it determined the trial court had no jurisdiction to appoint a receiver. Among authorities cited were: State of New Mexico, ex rel. Lynch v. District Court of McKinley County, 41 N.M. 658, 73 P. (2d) 333, 113 A.L.R. 746; Thompson v. Allen, 115 U.S. 550, 29 L. Ed. 472; and Yost v. Dallas County, 236 U.S. 50, 59 L. Ed. 460.
On the date the opinion of this court was announced in Case No. 17,059, the City Council of Pueblo adopted Resolution No. 498, which expressly authorized and directed its city attorney “TO DISMISS THE CITY’S APPEAL TO THE SUPREME COURT FROM A RECEIVERSHIP GRANTED BY THE DISTRICT COURT PERTAINING TO ASSETS OF THE REFUNDING IMPROVEMENT BOND FUND.” Pursuant to resolution the announced opinion was withdrawn and the writ of error dismissed, therefore the order of the district- court appointing the receiver became final and is res judicata unless the court lacked jurisdiction. I now repeat that Mr. Justice Moore’s point is that there was no jurisdic*15tion. My point is that at this date that is an immaterial matter due to what happened after the dismissal of Case No. 17,059.
I certainly agree that it is fundamental that jurisdiction cannot be conferred upon a court either by consent or stipulation. Brooke v. People (1959), 139 Colo. 388, 394, 339 P. (2d) 993; McCoy v. McCoy (1959), 139 Colo. 105, 110, 336 P. (2d) 302, 305; Davidson Chevrolet v. Denver (1958), 138 Colo. 171, 175, 330 P. (2d) 1116, 1118-19; Avery v. County Court (1952), 126 Colo. 421, 425, 250 P. (2d) 122, 124; U.S.F. & G. Co. v. Ind. Com. (1936), 99 Colo. 280, 282, 61 P. (2d) 1033, 1034; 75 C.J.S. Receivers, §35 (1952); 1 Clark Receivers, §302 (1959).
Up to now it has always been considered fundamental that courts cannot appoint receivers to collect public taxes or otherwise interfere with the constitutional functions of other independent branches of government. Lynch, Allan, and Dallas County, supra.
I even suggest at this late date that the proper remedy for the bondholders to have used to compel Pueblo as a trustee to perform its fiduciary functions was mandamus. Paducah v. White (1932), 244 Ky. 733, 51 S.W. (2d) 935; 34 Am. Jur. 904, §122.
This is so because it has been held that “In the absence of legislation neither the federal nor the state courts possess power to appoint receivers for insolvent local political subdivisions of a state.” City of Enterprise v. State (1937), 156 Ore. 623, 69 P. (2d) 953; also see 45 Am. Jur. 74, §79. The recognition of this rule, and that of the constitutional separation of powers, by appellate courts is generally based upon those cases where there has been an interference with the governmental functions of non-judicial branches of government. It is for this reason that I can not follow Mr. Justice Doyle’s suggestion of a basis for decision in this case.
It is my position that we are faced with the questions as to whether: (1) the appointment and acts of this re*16ceiver are in fact an interference with the exclusive governmental functions of other branches of government (which I have noted was not earlier considered by this court), and, (2) if so, whether the receiver could nevertheless proceed on the theory of estoppel or waiver as to Pueblo as the result of Pueblo’s conduct.
Examining the latter question first it is recognized in Colorado that estoppel does not operate against the government acting in its public capacity. Bennetts, Inc. v. Carpenter (1943), 111 Colo. 63, 137 P. (2d) 780. However, a state or its subdivisions may waive sovereign immunity as well as other rights. 56 Am. Jur. 113, 511; cf. 49 Am. Jur. 313, 396.
Here the fact situation discloses that the receiver had no authority to levy or collect taxes or to perform other governmental functions; nor was he authorized to perform the duties of any elected official. His attempted appointment by a court of general jurisdiction extended no further than to marshal and distribute taxes and other assets already collected. His duties were and are those of a private trustee appointed under the long recognized equitable powers of the courts.
Though the law is that generally a court of equity cannot appoint a receiver to perform even non-governmental functions when insolvency involves a local political subdivision (State, supra) and that estoppel (Carpenter, supra) does not operate against the state, nevertheless the facts of the instant case compel a different answer, particularly in view of the doctrine of waiver.
We cannot be blind to the reality that here we are dealing with funds which are in fact not public funds but trust funds owned by the bondholders and that Predovich was actually the agent of Pueblo in dealing with these assets. Though his appointment was at first resisted, the fact is that Pueblo, the local subdivision of government, charged as trustee with the proper administration of this fund, by its action in Case No. 17,059, *17advocated, ratified and approved the appointment of a receiver as a substitute trustee. Thus the appointment was in fact Pueblo’s appointment and his acts were and are those of Pueblo. He was no longer a pseudo receiver presuming to act under a void court order but was a de facto trustee and agent though nominally called a receiver, but the appellation makes no difference; it is what he did for whom that matters. He was a coordinator, a centralized city agent to whom both the bondholders and Pueblo could look in order to have the tangled web of finances unravelled. His initial'appointment by the court, although invalid, is nevertheless effective as to Pueblo by reason of its acceptance of him as its own agent to do for it that which as trustee it was bound to do.
The exact nature of the legal status can be defined as an agency by estoppel because it was not an express delegation of power to Predovich, and because it was not a public function in the sense of having the exclusive functions of an elected official performed by the receiver.
The legal relationships of this latter type of agency are clearly set forth in Siegel Campion Live Stock Comm. Co. v. Arhdohian (1922), 71 Colo. 410, 207 Pac. 82, in which it is stated:
“An'agency by estoppel is apparent but not real. It is created by operation of law and established by proof of such acts of the principal as reasonably lead to the conclusion of its existence. Created for the protection of him who has in good faith relied upon it the acts of the principal which support it must, at the time of transaction, been known to him.
“A principal may bind himself by causing others to believe the agent’s authority to be greater than actually exists, but such acts by the principal must be known to and proved by the party relying thereon. He cannot *18claim reliance upon what he did not know.” (Emphasis supplied.)
See also Moore v. Switzer (1925), 78 Colo. 63, 239 Pac. 874, in which it was stated “Authority by estoppel is not actual but apparent only, and is imposed on the principal because his conduct has been such as to mislead, so that it would be unjust to let him deny it.”
The City of Pueblo has for many years permitted and encouraged Predovich to perform the city’s duties as trustee of this fund, and the bondholders have come to rely upon their knowledge of such fact and deal with him accordingly. I contend they had that right. The City thus is estopped to deny the agency of Predovich. It does not deny it, however, going so far in its brief in the current action as to say that it “ * * * WILL RATIFY THE RECEIVER’S ACTIONS INSOFAR AS HE ACTED PROPERLY.” In effect, it thus is acknowledging the existence of the agency because by offering to ratify acts, which must be acts of an individual acting on its behalf as its agent, it necessarily could only approve those which it had had the authority to grant to an agent to perform.
Under the facts of this case the act of Pueblo and its presently stated intention to ratify the acts of one who now turns out to be its agent “INSOFAR AS HE ACTED PROPERLY” impels the conclusion that his agency must be retroactive and effective to the date of his original appointment by the court.
I advert next to the initial question before us in the present proceeding. This is whether the so-called receiver, as Pueblo’s agent and trustee, can go behind the adoption of Refunding Ordinance No. 1373 and require his own principal to account for long past actions? Though I agree with Mr. Justice Hall’s contention, I again feel compelled to add an additional reason which buttresses his results.
The extent of an agent’s authority to act must be found in an express delegation by his principal or by *19necessary implication in the power delegated. Nippel v. Hammond (1878), 4 Colo. 211. Though this agent is a trustee he is also Pueblo’s alter ego. If, as it has emphatically indicated by these proceedings, Pueblo did not authorize its agent and trustee to investigate the matters in question, due in effect to impossibility of performance in accounting for matters occurring more than 22 years ago, it cannot be made to do so by its own employee.
Again I observe that if it had been proper for the bondholders at this late date, which I do not infer to be the case here due to laches and election of remedy, to compel such an accounting, the proper remedy would have been in mandamus. Having elected their remedy by class action, and having instituted and been a party to earlier proceedings, the bondholders must now be precluded from reaching through the hands of this so-called receiver, who is really the City’s trustee, for the relief they seek. This is as it should be for litigation must have an ending.
I agree with the reversal for these additional reasons.