The opinion
On Rehearing.
Mr. Justice Steele
delivered the opinion of the court.
In behalf of the city and county of Denver, we are urged to modify the opinion and to hold that the city and county may issue bonds under the question submitted, so that the entire debt will be extinguished at the expiration of fifteen years. Counsel stated in submitting the case that bonds which provided for an annual payment of the principal, or bonds maturing annually through the period of fifteen years, were unsalable; and that unless depositing the required amount annually in a sinking fund could be regarded as a payment, the charter must be amended. Because of these statements we gave to the question now presented no serious consideration. We have held that article XX does not expressly confer power upon the municipality to erect an auditorium, and as that article does not purport to amend section 8 of article *413 XI -with, respect to bonds for the purpose of erecting an auditorium, bonds issued for such purpose must be issued under the limitation of that section.
Section 8 provides: “No city * * * shall contract any debt by loan in any form, except by means of an ordinance * * * specifying the purposes to which the funds to be raised shall be applied, and providing for the levy of a tax * * * sufficient to pay the annual interest and extinguish the principal of such debt within fifteen but not less than ten years from the creation thereof.” The question submitted to the electors'was: “Shall the city and county of Denver issue bonds * * * bearing interest at the rate of four per cent per annum, and maturing in not less than fifteen years nor more than thirty years, the principal to be payable in equal annual installments?” We are asked to determine whether, in view of the limitation of section 8 of article XI, and under the question thus submitted, the city and county may issue bonds maturing in fifteen years. If the question submitted had been, “Shall the city and county issue bonds maturing in ten years?” or had been “Shall the city and county issue bonds maturing in fifteen years?” an affirmative vote upon either question would have authorized the issuance of bonds and have met the requirements of the constitution. And we are satisfied that although the people, in directing the issuance of bonds maturing in not less than fifteen no-r more- than thirty years, exceeded the authority conferred upon them through the constitution, they did thereby confer power upon the council to issue bonds maturing in fifteen years; and that if the council shall direct the issuance of bonds providing for the annual installments of principal so that the entire debt will be extinguished at the expiration of fifteen years, the bonds will conform to the question submitted and will *414 meet the requirements of section 8 of article XI of the constitution. The mandate of section 8 that the ordinance shall provide for the levy of a tax sufficient to extinguish the principal of such debt within fifteen but not less than ten years does not mean that no part of the principal of the debt shall be paid within ten years, but does mean that provision shall be made by the levy of a tax for the extinguishment of the entire debt within not less than ten nor more than fifteen years. We see no legal objection to the municipality providing for annual payments of the principal. It is a more economical manner of discharging the debt than that of making annual deposits in a sinldng fund, and decidedly safer, for even sinking funds have, been known to take unto themselves wings; and these considerations, perhaps, induced the framers of the constitution to not prohibit the payment of the public indebtedness in installments. We therefore decide that the council may provide for bonds maturing annually during the period so that one-fifteenth of the whole debt will mature each year. We find support for our decision that the words “not more than thirty years,” in the question submitted to the electors, should be regarded as surplusage, and that they do not invalidate the whole submission, in an opinion by Mr. Justice Brewer, when a member of the supreme.court of the state of Kansas, in the case of Turner v. Commissioners of Woodson County, 27 Kan. 314 . The people of one of the townships in Woodson county, Kansas, voted bonds in an amount exceeding that authorized by statute. The bonds were held valid to the amount authorized by statute. In the course of the opinion it was said: “However excessive the authority apparently granted by the vote to the commissioners, that authority is good up to the statutory limit. The vote of the township was simply an authorization by a principal to its *415 agent, and the agent may perform the act authorized, except so far as it is restrained by some provision of law. Generally speaking, a grant of excessive authority is good up to the legal limit, and an authorization to do more than can legally be done is void only as to the excess.” One of the sections of the act under which the bonds were voted was unconstitutional, and counsel contended that as the section was written in the act, it must be presumed to have been considered by the voters and to have influenced their votes. Answering this point, Judge Brewer said:
“The idea of counsel seems to be that in this section 10 there is presented an extra inducement to the voters of the township to incur this indebtedness ; that but for such inducement the bonds would not have been voted, and as the inducement fails, the vote must also fail. Yet as all persons are presumed to know the law, the presumption of course is that the voters all knew that this section is unconstitutional, and were therefore uninfluenced in their action by this apparent inducement.”
The objection here is that the people cannot be said to have understood that the minimum limit of time was in fact the maximum, nor can it be told how they would have voted if the question had been put and had been ordered to be put in this restricted form. The objection is, we think, disposed of by the decision of the case we have cited.
It is suggested that this opinion is contrary to that in the case City v. Hayes, 28 Colo. 110 , but. we do not so regard it. In the Hayes case the court held invalid the proceedings of the city council in submitting to the electors of the city of Denver the proposition of creating a debt for eleven distinct purposes, without giving to the voter an opportunity to express his will as to any one of them.
*416 Our conclusions therefore are:
1. That the bonds proposed are not responsive to the question submitted.
2. That it is within the power of the city and county of Denver to provide by charter for the erection of an auditorium, to purchase a site therefor, and to issue bonds to discharge the indebtedness.
3. That bonds maturing in fifteen years after date, providing for the payment of one-fifteenth of the principal of the bond in annual installments, or bonds maturing each year through the period of fifteen year's, so that one-fifteenth of the entire debt will be extinguished each year, will be responsive to the question submitted to the people, and will not be in conflict with section 8 of article XI of the constitution, and that when so issued will be valid obligations of the city, authorized by the charter.
That portion of the former opinion stating our conclusions is withdrawn.
Decision by the court en banc.
In arriving at the conclusion that the judgment should be affirmed the justices all agree. From that portion of the opinion which holds that the people of the city and county of Denver have the power to direct the erection of a public auditorium at public expense, to purchase a site therefor, and to direct the issuance of bonds to- pay for the same, Chief Justice Gabbert, Mr. Justice Campbell and Mr. Justice Maxwell dissent, it being their opinion that the purpose mentioned is not a ‘ ‘ corporate- purpose. ’ ’
Chief Justice Gabbert, Mr. Justice Campbell and Mr. Justice Maxwell also dissent from that portion of the opinion which holds that it is not necessary to resubmit the question to the- people, and that the city may by ordinance issue bonds under the authority already given.