dissenting:
I respectfully dissent. The opinion approved by- the majority of the court makes no mention whatever of an issue which is of first importance in the determination of the validity of any judgment. That issue in the instant *23case is whether the trial court at any time had jurisdiction to appoint a receiver to perform the duties which by valid legislative enactment are placed exclusively in the executive branch of the government. Full oral argument was ordered by this court on that issue alone, and comprehensive briefs have been submitted by counsel. It should not be by-passed on grounds of expediency.
The appointment of a receiver under the facts disclosed by the record here, either was or it was not, a-proper exercise of judicial power. The constitution of this state provides for a separation of the powers of government into “three distinct departments.” It commands that, “ * * * no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any power properly belonging to either of the others, * *
Is the majority opinion to become a precedent by which this court will evade its duty and by-pass a basic constitutional limitation upon the exercise of judicial power, if by so doing a result might be achieved which seems expedient under a given set of facts? Expediency should never prompt this court to cast doubt upon the soundness or vitality of that basic concept of our system of government which prohibits any one of the separate branches thereof from usurping powers “properly belonging to either of the others.”
In the instant case the duties and obligations of the City of Pueblo and its officers who are charged with the responsibility of administering and disbursing the Refunding Improvement Bond Fund can only be found in the provisions of Ordinance No. 1373 and the applicable statutes of this state. None of these enactments provide for the appointment of a receiver at the instance of a bondholder.
In the absence of a statute, or a provision in the bonds so providing, a court does not have jurisdiction to appoint a receiver to collect, marshal and distribute special improvement tax funds to bondholders. To hold other*24wise is to recognize a power in the courts to appoint receivers for any agency of government. Such a result would be subversive of the basic principles upon which our government is founded.
A case in many essentials identical with the instant action is State of New Mexico, ex rel. Lynch v. District Court of McKinley County, 41 N.M. 658, 73 P. (2d) 333, also reported in 113 A.L.R. 746, where the leading authorities are reviewed. In the course of its opinion the court observed:
“After careful consideration of the authorities and argument of the respective parties, we feel constrained to hold that the respondent [District Judge] exceeded his jurisdiction in the appointment of a receiver to take over and administer the town of Gallup.”
In Thompson v. Allen County, 115 U.S. 550, 29 L. Ed. 472, it is said that there was no more reason to hold that the collection of taxes already assessed is a function of a court of equity than the levy or assessment of such taxes.
In Yost v. Dallas County, 236 U.S. 50, 59 L. Ed. 460, the court said: “It is impossible for the courts to substitute their own appointee in place of the one contemplated by the act.” To the same effect is Paducah v. White, 244 Ky. 733, 51 S.W. (2d) 935; City of Enterprise v. State, 156 Ore. 623, 69 P. (2d) 953; McMillan v. Board of Commissioners of Adams County, 113 Colo. 387, 157 P. (2d) 146. See also 45 Am. Jur. 74, section 79.
It is no answer to the question to brush aside the issue on the ground that the parties themselves, at least for a time, agreed to the exercise of jurisdiction by the trial court in appointing a receiver. The law upon this point is very clear and is well stated in McKinnon, et al. v. Hall, Adm’r., 10 C.A. 291, 50 Pac. 1052, in the following pertinent language:
“It seems to be assumed on both sides that because the parties consented that the case presented might be heard and determined by the court, upon the allegations *25of the pleadings, and such evidence as might he introduced in their support, therefore the court was authorized to proceed to a hearing, and render its judgment on the merits of the case. But if the subject-matter of the litigation was outside of the jurisdiction of the court, its judgment is not aided by the consent given. The jurisdiction of courts is defined by the law, and where it does not legally exist, no consent of parties can confer it. There was no suggestion of want of jurisdiction made in the district court, and none is made here, hut where such want appears upon the face of the record we are compelled to notice it.” (Emphasis supplied.)
To like effect is Whipple v. Stevenson, et al., 25 Colo. 447, 55 Pac. 188.
I am at a complete loss to understand how my brethren who make up the majority can reconcile the present opinion with that in Davidson Chevrolet, Inc., et al. v. City and County of Denver, 138 Colo. 171, 330 P. (2d) 1116, in which all members of this court concurred and where the court speaking through Mr. Justice Frantz said:
“A void judgment is a simulated judgment devoid of any potency because of jurisdictional defects only, in the court rendering it. Defect of jurisdiction may relate to a party or parties, the subject matter, the cause of action, the question to be determined, or the relief to be granted. A judgment entered where such defect exists has neither life nor incipience, and a court is impuissant to invest it with even a fleeting spark of vitality, but can only determine it to be what it is — a nothing, a nullity. Being naught, it may be attacked directly or collaterally at any time. Stubbs v. McGillis, 44 Colo. 138, 96 Pac. 1005, 130 Am. S. R. 116, 18 L.R.A. N.S. 405.”
It is my firm opinion that the language last above quoted is a forceful and correct statement of the law. It is not something to be applied “willy-nilly.” It is not “herd today and gone tomorrow” depending upon how individual members of the court may think applying the *26rule will affect the litigants. To countenance such a result is to abandon the concept of government by law, and to install government by an unrestrained appraisal of what is deemed expedient at the time.
I can have no part in the usurpation of power by any one of the three branches of the government and the consequent weakening of constitutional limitations upon authority of each. I sincerely believe that the majority opinion will ultimately lead to such result.
This court should remand the cause to the trial court with instructions to discharge the receiver.
Mr. Justice Knauss and Mr. Justice Day join in this dissent.