concurring in part and dissenting in part.
The opinion of the court apparently marks total forgetfulness of the fact that the City and County of Denver is a home rule city. Denver exists, not by grace of the state legislature, but’ in sovereign right as a direct creature of our state Constitution, effected by the adoption of article XX thereof in 1902, strengthened by the so-called Home Buie Amendment of 1912, and subject only to clear restrictions in the Constitution of the United States and the state of Colorado. By that article, as amended, the people of Colorado obviously intended to place the internal affairs of every home rule city in the hands of its own citizenry.
It was long supposed that thus the. Constitution actually set Denver up as a municipality which, subject to the necessary police power of the state, would be independent and self-governing in all its local and municipal affairs, without hindrance, from any outsider, even though that outsider be the executive or legislative branch of the state government, or any agency of the judiciary, whether it be this court or some other.
At different times in the past this court has given strong expression and support to the principle of municipal home rule thus established, but it has recently so *443narrowed the practical operation of that principle as to threaten the principle’s very existence. Compare Denver v. Highlander Boy Foundation, 102 Colo. 365, 79 P. (2d) 361. The case at bar caps the climax.
The main fallacy of the court’s opinion is in failing to distinguish between obligatory and optional powers of Denver.
The opinion declares that under section 48 of its charter Denver may lawfully advance from its treasury the funds necessary to pay the unpaid balance of a bond issue if the-proceeds from special assessments have paid four-fifths of the issue. The opinion therefore justifies as permissive what the charter clearly makes mandatory. However, it will be seen that said section 48, quoted in full by the opinion, says that the city “shall” pay in the circumstances mentioned. Nothing in the charter or elsewhere forbids the city’s paying in other circumstances.
It is clear to my mind that Denver possesses this right. By the 1912 Home Rule Amendment, which extended and enlarged the powers conferred in section 6 of article XX as originally adopted, the people of the entire state provided among other things that every home rule, city should have, in addition to the powers set out in sections 1, 4 and 5 of the original article:
“All other powers necessary, requisite or proper for the government and administration of its local and municipal matters, including power to legislate upon, provide, regulate, conduct and control: * * *
“(e) The issuance, refunding and liquidation of all kinds of municipal obligations, including bonds and other obligations of park, water and local improvement districts ; * * *
“ (g) The assessment of property in such city or town for municipal taxation and the. levy and collection of taxes thereon for municipal purposes and special assessments for local improvements; such assessments, levy and collection of taxes and special assessments to be made by *444the municipal officials or by the county or state, officials as may be provided by the charter. ’ ’
The charter has accordingly provided that these acts shall be performed by the municipal officials in so far as taxes and special assessments have to do with Denver’s internal government and particularly all matters relating to its own local and municipal improvements. See article numbered III in the Denver Charter, Municipal Code 1927, pages 35-70, entitled Department of Improvements and Parks.
Given an issue of local improvement bonds in Denver, the bondholder has the. absolute right to receive moneys derived from special assessments that are levied upon the property benefited. Section 48 of Charter, Municipal Code 1927, page 51. He cannot demand more, except that, where as much as four-fifths of the bond issue has been paid but the assessments are not sufficient to pay the balance, he can demand that the city pay that balance out of its treasury in accordance with section 48, just referred to.
If in a particular case, however, the shortage of revenues from assessments is for the time being so great that these have not paid as much as four-fifths of the issue, it is plain that the bondholder cannot demand that the general funds of the city be made to pay.
Must there, then, be what in such a case would amount practically to repudiation by failing to pay the bonds at maturity? I earnestly contend that, while the city cannot be compelled to pay, it is not forbidden to use sound discretion in applying its funds to payment of such an unpaid balance of more than one-fifth of the bond issue. Denver is of course reimbursed in that event by collecting the still unpaid assessments, just as in the case of the obligatory payment of the smaller balance of one-fifth or less.
Since the 1912 amendment is made expressly applicable to the City and County of Denver, the following provisions are in full force therein:
*445“It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny to such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right.
“The- statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except in so far as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters.
“All provisions of the charters of the City and County of Denver and the cities of Pueblo, Colorado Springs and Grand Junction, as heretofore certified * * * are hereby ratified, affirmed and validated as of their date.”
The matter of public improvement bonds, as well as all other fiscal matters of Denver, has been exhaustively dealt with in its charter. Hence, under article XX as amended in 1912 the General Assembly is deprived of all authority over Denver as a home rule city except that of exercising state-wide police power, not here involved.
The municipality has consequently replaced the General Assembly as the law-making body in respect to Denver’s local and municipal concerns. In relation to those it possesses the same plenary powers of legislation which were, originally possessed by the state legislature and is subject only to the same constitutional restrictions. Denver’s legislature is a body operating not within limits of a grant, like the Congress, but in the entire field of local and municipal legislation and subject only to express, constitutional restrictions.
No constitutional restrictions apply in the case at bar.. There is no suggestion of entering into a contractual liability or obligation, by which the liability of somebody else is abolished or diminished, or is assumed by the city or in any way shifted. Existing liens and assessments *446remain unaffected and those liens would eventually serve to reimburse tbe city treasury.
In short, Denver as a home rule city would simply be doing a business-like thing which tends to preserve municipal credit in connection with a purely local and municipal subject not within any constitutional inhibitions whatever. From what has been said it is obvious that Aurora v. Krauss, 99 Colo. 12, 59 P. (2d) 79, cited by counsel for plaintiff in error, is not in point under the facts of the case at bar, and the soundness of that decision need not now be considered.
Counsel for Denver also contend that the matters alleged in its third defense and counterclaim, mentioned in the opinion of the court, should be dealt with in the declaratory judgment. Some of those matters are manifestly germane to the ones dealt with in the opinion and should, as I think, also be included there. We ought not to require one homogeneous subject matter to be divided into two or more legal actions when one would suffice on any but the most technical grounds. The practical problems of the city should be solved in the most complete and comprehensive manner possible.
In so far as the opinion of the court sustains the tax levy and appropriation ordinances here involved I concur therein; but as to the. other matters, for the reasons above given, I respectfully dissent.