Opinion of the Court.

In State, ex rel. Duniway, v. Portland, supra, the court say: "Section 16 of Article II of the Constitution as amended June 1, 1908, among other things, provides: 'Provisions may be made by law for the voter's direct or indirect expression of his first, second or additional choices among the candidates for any office.' Now a city charter enacted by the voters of the municipality is as much a law as if it were enacted by the legislature. A provision, therefore, made in such charter for the expression by the voter of his first, second, or third choices among the condidates for any office is a 'provision made by law' for that purpose, and within the constitution."

This proposition is also upheld in People, ex rel., v. Williamson, 135 Cal., 415; Grant v. Berrisford, 94 Minn., 45; State, ex rel., v. District Court of Ramsey Co., 87 Minn., 148; Kansas City v. Marsh Oil Co., 140 Mo., 458.

Even if it be conceded that Section 7, Article V, applies to nominations for officers in cities which have adopted charters, a charter which provides for such nomination by petition is a compliance with the requirement of that section. The section does not require that any particular form of petition shall be provided.

We remark as to Section 7, Article V, that it became effective January 1, 1913. Pursuant to its requirement, the legislature passed a law approved May 3, 1913, providing for nominations by primary election, or by petition, of all state, district, county and municipal officers excepting in municipalities of less than two thousand popu

Opinion of the Court.

lation. By the terms of the law it does not become effective until January 1, 1914. Therefore, there is now no law passed by the legislature in effect, under Section 7, Article V. But it is contended that the provision of the Cleveland charter in question is obnoxious to the provisions contained in Section 3, Article XVIII, viz., "may adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws." because it conflicts with the primary election laws in existence on January 1, 1913.

It is urged that the "general laws" referred to are all laws that may be passed in the exercise of the police power, and it is claimed that the nomination of candidates for public office is a matter to be provided for in the exercise of that power.

Our attention is called to the case of the State, ex rel., v. Felton, 77 Ohio St., 554. In that case the validity of Sections 2916 et seq., as amended April 20 and 23, 1904 (97 O. L., 107, 439), was attacked. The statute provided that when any voluntary political party in any county, township or municipal corporation, by a vote of a majority of its controlling committee shall cause notice of the holding of a primary election and shall make application to the deputy state supervisors and inspectors of elections, or other proper board, such primary election shall be held under the provisions of this act.

The whole proceeding in its inception was the voluntary act of the political party. No party was compelled to nominate its candidates under this

Opinion of the Court.

law, but could nominate in its own way if it desired. The court sustained the validity of the statute on the ground that a party having decided to nominate its candidates in the manner referred to, the proper conduct of the primary was a matter that concerned the general welfare, and that in the exercise of the police power the legislature might make such reasonable regulations as would safeguard and keep the primary free from fraud. The court say at page 580: "Our statutes are not mandatory. The statute, so far as present legislation goes, only consents upon request by a political party to supply the facilities for holding the contest in the party and to act as umpire." It was in nowise the purpose of the statute involved in the Felton case to prescribe and enforce a method, but merely to furnish the facilities to assist recognized and organized portions of the citizenship to have their own method accomplished in keeping with decency and the good order of the community.

As we have already pointed out in this opinion the prescribing and defining of a system or method for the nomination and election of officers is a governmental function, and involves the exercise of political power.

Provisions for safeguarding the method are within the police power. In Freund on Police Power, Section 3, it is said: "From the mass of decisions, in which the nature of the power has been discussed, and its application either considered or denied, it is possible to evolve at least two main attributes or characteristics which differentiate

Opinion of the Court.

the police power; it aims directly to secure and promote the public welfare, and it does so by restraint and compulsion." And at Section 22: "The police power restrains and regulates, for the promotion of the public welfare, the natural or common liberty of the citizen in the use of his personal faculties and of his property. The state may also promote the public welfare to the use of what we may call its corporate capacity. This capacity belongs to the sovereign state as a matter of course, so that it may hold and dispose of property, make make contracts, employ agents or servants, and sue; and it may be bestowed by it upon subordinate political divisions like counties, cities, school districts, etc."

The system or plan to be followed in the nomination and election of the officials of any city is only of interest and concern to the people within the limits of the city, and when governmental powers have been conferred upon the city, it acts within its authority when it adopts its own plan, provided it violates no constitutional require ment. Cases cited in the briefs show that the exercise of eminent domain, that rules for assessments on private property for public improvements and that conditions imposed concerning suits for damages, have all been sustained under charters providing for local self-government.

Section 4963, General Code, which was in effect prior to the adoption of the amendment, Article V, Section 7, reads as follows: "Primaries under this chapter to nominate candidates for county offices or to select delegates to nominate candidates

Opinion of the Court.

for state or district offices, shall be held in each county at the usual polling places on the third Tuesday of May of even-numbered years, and primaries held to nominate candidates for township and municipal offices, justices of the peace and members of the board of education shall be held in each county at the usual polling places on the first Tuesday after the first Monday in September of odd-numbered years."

That section is repealed by the act referred to, supra, which will be in effect January 1, 1914.

It will be noted that Section 4963 and cognate sections do not provide for nominations by direct primaries of candidates for state and district offices, but do provide for such nominations of candidates for county offices and for all municipal offices.

The schedule, adopted at the time the amendments were, provides that they shall be effective January 1, 1913, and that all laws not inconsistent therewith shall continue in force until amended or repealed.

This law, therefore, as to state and district officers and as to cities and villages of less than two thousand population, is invalid because inconsistent with Section 7, Article V of the Constitution.

But assuming that this law, invalid in so many important parts, is still effective as to the portions not thus impaired, it is simply a general statute of the state, and could in no sense be held to supersede the provisions adopted by the city of Cleveland in its charter in compliance with the fundamental law.