dissenting.
This is a suit in equity, involving the authority of the city council of the City and County of Denver to make sale of block 208 East Denver, otherwise known as the “Old Court House Square.” The council, proceeding on the theory of its authority, and in form, passed an ordinance, presently to be stated, made sale of the property to Spencer and Iserman, the interveners herein. The ordinance provided that the “terms of sale shall be fixed by the mayor and council,” but in truth the purchasers, not the mayor and council, proceeding after the passage of the ordinance, fixed the terms thereof, as will appear from their formal bid, with their “terms and conditions attached” thereto, which will also be set forth at an appropriate place in this opinion. Plaintiffs in error, appearing as “residents, citizens and taxpayers” of Denver, challenge the council’s authority in the premises, contending variously. Although other points urged by them are not without merit, in the interest of brevity I confine my discussion to two contentions emphasi-zed by the complaining taxpayers. The first is that the property involved is a “Park” and may not be sold (Denver Charter, 1927 Compilation, article III, section 86); and the second is that an ordinance known as No. 34, series of 1921, passed May 2, 1921, and approved the following day, but defeated by the people, considered in the light of section 5, article XX, Colorado Constitution, and section 272, article XVII, Denver City Charter, so operates as to make void any authority theretofore existing in the council to make sale and disposition of the property *551in question. The trial court resolved against the taxpayers.
1. Much might be said in support of the claim that the property is a park. Always, in a large sense, the courthouse property has been enjoyed as public ground by the people generally. Its central location and accessibility, its shade trees, public benches and comfortable seats, its fountains and flowers, gladdened the hearts of lovers of the .beautiful and the weary in. quest of brief respite. Not only were these privileges the portion of our own residents, but they were the delight of tourists from every land. What was true for many decades before the stately old court house became inadequate, and was razed, for more than one decade thereafter, and with increásed tempo, that delightful spot, which bears every outward appearance of a park, was used by the people as such. Moreover, with relation to the rest of the city it is situated where in many cities a comparable park, the boast of residents and the toast of visitors, is maintained. So, although, as I conceive, we might well, and soundly, have resolved that the property involved was a park, and not subject to sale, as we have seen, still, out of respect to the views of my brethren, I refrain from a more extended presentation of the point. In connection therewith, however, I venture the comment that the council was not proceeding under legal mandate — it was not required to take action opposed to the not unreasonable conception that the property is a park.
2. That by operation of the action of the people in 1921, the council had lost the right to make sale of the property involved seems clear. In exposition thereof, I will review the record generally, and quote some documents in extenso. Before doing so, however, I call attention to article XX of the Constitution, by authority of which the “City and County of Denver” became, and is, existent, and of the Denver Charter adopted-pursuant to that article of the Constitution. “No charter, charter *552amendment or measure adopted or defeated under the provisions of this amendment,” reads the Constitution, “shall be amended, repealed or revived, except by petition and electoral vote.” Art. XX, §5, Const. “No ordinance defeated by a vote of the people,” says the Denver Charter, “shall be reenacted or passed by the council.” §272, Denver Charter. By the several action of the council and the people in 1921, as none may deny, an ordinance contemplating several things, including the sale of the property involved, was enacted by the council, but was rejected by the people. The author of the court’s present opinion, Justice Jackson, referring to the sale feature of the ordinance, says it was “merely an incident to the main purpose of creating a building commission,” while in an earlier opinion in this same case written by Justice Burke, he said, “It occurs to us as more reasonable to conclude that all other provisions of the measure were in fact mere incidents to that contemplated sale.” Regardless of the relative importance of the two features of the ordinance emphasized by Messrs. Justices Jackson and Burke, and I subscribe to that of the latter, all must agree that by the ordinance of 1921, the sale of the property involved was presented to the people and rejected. That, I submit, resulted in bringing to bear the inhibition provisions of both the Constitution and the Charter, already quoted. In connection with the sale proposed in 1921, it is important, I think, to call attention to the fact that in that ordinance it was specifically provided that sale of the property involved should be for not less than one million dollars. Also, that in 1933, at the depth of economic depression, the Denver Real Estate Exchange valued the property at one million two hundred thousand dollars, and the city auditor’s report for the same year gave the value at one and one quarter million dollars. Yet, in 1945, when valuations of all real estate had increased to heights never before known, and were continuing to soar, this property, the most desirable in Denver, was *553to be sold, at first, as is common knowledge, for $750,-000, but finally, the increase not being due.to the efforts of the council, the price was fixed at $818,600. Why, in times of unequalled prosperity, highest valuations and a lively market, should this choice property be sold for the price indicated? In addition to the fact that the council is powerless to sell the' property at all, as I believe, there is such manifest absence of good faith in this effort to despoil the public of one of its prize possessions, for a moiety of its value, that a court of equity may not give it countenance. But, say some of the propagandists, the sale price is of passing importance — the public should think of the vast sums the New York purchasers have committed themselves to expend in improving the property, and of other incidental advantages “assuredly” to result therefrom. Witness these sample bits of misinformation widely published by authority of an organization that ignores the record. Addressing itself to those who oppose the sale, this organization observes: “Is it that the price offered for this property is too small, even when we take into account' the firm commitment by the reputable and successful realty firm of Webb and Knapp to improve this property by the erection of a building to cost approximately 6 million dollars?” The propagandists continue: “Is it assumed that the investment of 6 million dollars of eastern capital in Denver would be detrimental to the interests of this, the natural center of the Rocky Mountain Empire? Will the taxpayers of Denver benefit or suffer from the sale of this property, which sale will add immediately approximately $800,000 to the city treasury and, in the future, tax revenue on a 6 million dollar structure?” Let it be noted that the purchasers, experienced and shrewd above many, and guided by counsel of recognized ability, were careful to have the contract reduced to writing. The “writing” consists of an ordinance passed by the council, and the purchasers’ bid, including the precise terms and conditions thereof. I quote them in or*554der, as follows: “Be it Enacted by the Council of the City and County of Denver:
“Section 1. The sale of Block 208, East Denver, in the City and County of Denver, Colorado for the net price of not less than Seven Hundred and Sixty-five Thousand Dollars is hereby authorized.
“Section 2. The terms of the sale shall be fixed by the Mayor and the Council but in no event shall the payment of the final installment be deferred longer than the expiration of six months from the date when the proper government official, or officials, certifies that the materials necessary to construct the improvement or improvements to be erected by the purchaser on said property are no longer needed for war purposes and are available to the general public.
' “Section 3. Subject to the conditions herein set out, sales shall be made to such person, persons, corporation or corporations as shall offer terms and conditions most beneficial to the City and County of Denver in the opinion of the Mayor and the Council.
“Section 4. Good and sufficient deed of conveyance shall be executed to the purchaser upon the completion of the payment of the purchase price and the property shall be free and clear from all liens and encumbrances except liability to be assessed for the Moffat Tunnel Improvement District and liability to be assumed for general taxes accruing after the payment of the final installment of the purchase price. The said deed shall be executed by the Mayor and attested by the Clerk and Recorder under the corporate seal of the City and County of Denver.
“Section 5. The City and County of Denver shall furnish the purchaser with an abstract of title to said property, certified to date by an abstract company doing business in said City and County.
“Section 6. In the opinion of the Council, this ordinance is necessary for the immediate protection and preservation of the public health, safety, convenience *555and general welfare, and it is enacted for that purpose and shall be in full force and effect immediately after its passage and final publication.”
“Passed by the Council June 11, 1945, and signed and approved by the Mayor June 13, 1945.
“June thirteenth, 1945
“Hon. Benjamin F. Stapleton,
Mayor City and County of Denver,
City and County Bldg.
Denver,
Colorado.
“Dear Mayor Stapleton:
“We hereby bid the sum of Eight Hundred Eighteen Thousand Six Hundred Dollars ($818,600.00) for Block Two Hundred Eight (208) East Denver, City and County of Denver, State of Colorado, in accordance with the terms and conditions attached hereto.
“A certified check for Twenty Thousand Dollars ($20,000.00) has been heretofore lodged with you and is now in your possession, and is a deposit on this specific bid.
“Spencer and Iserman “By H. A. Hicks, Jr.,
“B. B. Harding,
“Their Agents and Attorneys-in-fact.”
The Attached
“Terms and conditions for sale of
Block 208, East Denver “Price
“The purchase price shall be not less than $792,000.
“Terms of Payment
“$20,000 of the purchase price is payable immediately *556and an additional $80,000 within twenty days after the effective date of the ordinance authorizing the sale.
“The final payment shall in no event be deferred longer than the expiration of six months from the date when the proper government official or officials, certifies that the materials necessary to construct the improvement or improvements to be erected on said property are no longer needed for war purposes and are available to the general public.
“Improvements
“Within two years after materials are available, as set forth in the terms hereinbefore mentioned, the purchasers will proceed with the erection of improvements on said land at a cost in excees of one million dollars, or will pay the sum of $25,000 annually for the privilege of delaying construction.
“This provision shall be binding upon all grantees of the purchasers and in case the ownership of said property is split up, then the cost of the aggregate improvements on said property shall be in excess of one million dollars.
“Conveyance of Property
“The purchaser will be furnished with an abstract of title certified to date of closing by an abstract company doing business in the City and County of Denver.
“On the completion of the payment of the purchase price a good and sufficient deed of conveyance shall be executed to the purchasers. The property shall then be free and clear from all liens and encumbrances except assessment for Moffat Tunnel special improvements and assessments for general taxes accruing after the payment of the final installment of the purchase price.
“The deed shall be executed by the Mayor and attested by the Clerk and Recorder under the corporate seal of the City and County of Denver.
*557“Assignability of Contract
“The contract of purchase may be assigned whereupon the assignee shall replace the purchaser under the contract.
“Remedies in Case of Breach of Contract
“If any installment of the purchase price is not paid when the same should be paid hereunder (time being of the essence), all prior payments shall be retained by the seller as liquidated damages in full, and both parties be relieved from this contract.
“If the title to the property be not merchantable, then all prior payments of purchase price made to the seller shall be returned, and both parties be relieved from this contract.”
Considering the foregoing, and proceeding but briefly, I think it pertinent to observe as follows: First of all, that the purchasers are Spencer and Iserman, not Webb and Knapp. However responsible the latter gentlemen may be, not disclosed, they have not contracted to do anything whatever in this matter; secondly, that the cost of improvements to be made on the property is not “six million dollars,” but simply in excess of one million dollars; thirdly, that the promise is not to pay the purchase price “immediately,” but at the rate of not less than $50,000 annually, which means that the purchasers, at their option, may make the final payment fourteen years hence, and meanwhile the property is not to be taxed; fourthly, that when the final payment shall have been made, and other conditions are met, the purchasers still have two years of grace within which to commence to improve the property; fifthly, that even then, by the payment of $25,000 annually, they may postpone making improvements indefinitely; sixthly, that the contract is subject to divisible assignments, and should there be resort thereto, then not one majestic improvement to cost one million dollars shall constitute the requirement, but the total sum to be expended by the several as*558signees for improvements of their individual choosing, must be not less than one million dollars. In short, the alleged contract fairly appraised, the purchasers have-a most favorable option on choice property, in relation to which, considering the evident great value thereof, they have promised nothing of moment, and risked very little.
Not only do I think the constitutional and charter provisions quoted herein, operate to defeat the contract of the purchasers’ reliance, but in the adoption thereof the people were farseeing and wise in the day thereof. I decline to have part in voiding these public safeguards.