dissenting.
I am not in accord with the majority opinion herein which is contrary to my judgment, and the gravity of *243the matter involved impels me to indulge an expression of disagreement.
It is my studied conclusion that the court in the majority opinion holds that the ordinance involved is, in effect, a franchise and as such can only be granted except upon vote of the qualified taxpaying electors’; and that the opinion further holds that by section 280 of the charter of the City and County of Denver, the people have the exclusive power to regulate the charges for which provision is made in the offending ordinance.
It is not a franchise and I fail to understand how the section of the charter can be construed to mean exclusive power.
From a reading of article 18 of the charter, containing five sections numbered from 277 to 281, inclusive, dealing with franchises, it is unmistakable that the framers of the charter were mindful of necessary restrictions and prohibitions, and did not overlook placing certain restrictions and prohibitions by words, the meaning of which need no judicial interpretation. They were ready to, and did, say that no franchises, etc., shall be granted except upon the vote of the qualified taxpaying electors. They were equally positive in saying that franchises granted shall be limited to twenty years, and could have said, if they so intended, that the power to regulate charges for service by public utility corporations is exclusively reserved to the people. This they did not do, but did reserve — not exclusively — the right to fix or change the rates in the event the council, under its legislative authority, failed to do, or did, in a manner unsatisfactory to the people.
.Nowhere in the books has it ever been said that the power to regulate utilities is not a legislative function, and it is not here contended that the power to fix charges is not a part of that function.
That power vested in the state legislature, and by the home-rule amendment to the Constitution, all such power as the state legislature had was alienated from *244the state to the specified municipalities, as to matters of local and municipal concern and this court has long since determined that the regulation of the rates and charges of utility corporations was a matter of local and municipal concern. When that power passed to Denver, the people formulated and adopted their charter and vested all power possessed by the city, which was every power that had been conferred by amendment No. XX of the Constitution, in the board of councilmen. Nowhere in their charter have the people withheld this vested legislative function from the council. By section 280 of their charter, they retained not only equal, but a final, power in the matter of the regulation of the charges for service by public utilities. It is clearly disclosed that the people reserved the right to exercise this legislative function when, in their judgment, it was necessary and proper to do so, and it is further equally clear that such action, when taken by the people, is final so far as any other authority is concerned.
This power of the people is to be exercised in the manner provided for initiating an ordinance as set out in the charter. This is but a phase of the constitutional power of initiative and referendum. Can it be said because the people reserved to themselves the power to propose ordinances, that it strips the legislative body of the city of its right to do so? In principle and purpose, the initiative process is no different in home-rule municipalities, than in the state. Who would venture to say that the reservation in the constitutional provision for initiative and referendum deprives the legislature of its primary right to function?
Section 1, article V, of the State Constitution, in part, is as follows: “The legislative power of’the state shall be vested in the general assembly consisting of a senate and house of representatives, both to be elected by the people, but the people reserve to themselves the power to propose laws and amendments to the constitution and to enact or reject the same at the polls independent of *245the general assembly, and also reserve power at their own option to approve or reject at the polls any act, item, section or part of any act of the general assembly.” I do not dispute the statement in the majority opinion that the word “all” as used in section 280 of the charter, “included everything and excluded nothing.” Of course, the people have every power to act, as prescribed, but it does not mean that the legislative body of the city is precluded. I'may have all rights, powers and privilege» to do certain things, reserved to me, but at the same time, others may have like privileges, unless the reservation is to me alone.
I challenge the use of the word “exclusive” wherever used in the opinion with reference to section 280. The word “reserve” as used in the section, is not a prohibitive word. It here means that the power referred to is kept in store for use, if thought to be needed.
The council being invested with full legislative power, we are not further concerned about its authority to pass the ordinance in question, but only to ascertain if it is prohibited. A study of the charter reveals no specific or direct prohibition. On the other hand, it does disclose section 281, which gives direct power to the council to grant a temporary or revocable license or permit, said section being: “The council may grant a license or permit at any time, in or to any street, alley, or public place, provided such license or permit shall be revocable at any time, and such right to revoke shall be expressly reserved in every license or permit which may be granted hereunder.”
This is an express grant by the people. It would be glaringly absurd and irrational to grant such a license or permit without some regulation or limitation on the temporary use. The ordinance here, by its plain terms, is such a temporary measure, and in no sense a franchise. If, according to the majority opinion, the council has no power to pass such a temporary ordinance, then section 281 will forever pose as a dead letter.
*246The ordinance contemplates submission to the vote of the people. The temporary regulation of the rates involved in this ordinance is law-making, is a proper exercise of the police power, and in character, purely legislative. This legislative power is not forbidden to the city council.
It is now apparent that in my opinion the ordinance in question is a valid exercise of the power given the council by the people and in nowise prohibited by the charter. Concerning this, I entertain not the slightest doubt. However, the validity of the ordinance is doubted by counsel for plaintiff in error, and such doubts are ably expressed, and a like view entertained by some of my associates on this court. My views, inadequately expressed, are supported by able counsel for the City and the Tramway Company, as well as by the findings of the learned trial judge, and, I might add, by the United States Circuit Court of Appeals, when it said in City and County of Denver v. Stenger, 277 Fed. 865, in 1921, in discussing similar ordinances, “Subsequently the power to pass such ordinances was vested in the council of the City and County of Denver. * * * The Council of the City and County of Denver possessed the power to do what it said it was doing, * *
It is obvious that a doubt exists as to the validity of the ordinance, passed in due form, with all regularity. When so enacted it is clothed with the presumption of validity and not to be declared void. I quote from language used by Mr. Justice Shaw in Wellington Petitioners, 16 Pick. 95, and approved by us in Alexander v. People ex rel., 7 Colo. 155, 2 Pac. 894: “The delicacy and importance of the subject may render it not improper to repeat what has been so often suggested by courts of justice, that when called upon to pronounce the invalidity of an act of legislation, passed with all the forms and solemnities requisite to give it the force of law, courts will approach the question with great caution, examine it in every possible aspect, and ponder *247upon it as long as deliberation and patient attention can throw any new light on the'subject, and never declare a statute void unless the nullity and invalidity of the act are placed, in their judgment, beyond a reasonable doubt.”
Finally, there can be no doubt that this court has oh numerous occasions determined that the matter of regulating the charges by public utilities is a legislative function. By the Speer Amendment, which is now section 209 of the Denver charter, “All legislative powers possessed by the city * * * shall be vested in a board of councilmen * * *.” The word “all” has identically the same meaning in this section of the charter as it has in section 280. If it could be thought that there is a conflict between these two sections on account of the use of the word “all,” then the well known rule is to give effect to both sections. If fixing rates is a legislative function, the people have expressly granted that power to the council by the Speer Amendment, reserving, of course, the concurrent right in the people to do the same thing.
The council, having full legislative authority to enact the ordinance here in question, it is entirely valid, subject to the power of the people to change it if so desired. In that respect, the judgment of the trial court was right and should have been affirmed.