Statement of the Case.

the fourteen sections of the eighteenth article. They are, in form or adequate summary, as follows:

"Sec. 1. Municipal corporations are hereby classified into cities and villages. All such corporations having a population of five thousand or over shall be cities; all others shall be villages. The method of transition from one class to the other shall be regulated by law.

"Sec. 2. General laws shall be passed to provide for the incorporation and government of cities and villages; and additional laws may also be passed for the government of municipalities adopting the same; but no such additional law shall become operative in any municipality until it shall have been submitted to the electors thereof, and affirmed by a majority of those voting thereon, under regulations to be established by law.

"Sec. 3. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws."

Sections 4, 5 and 6 relate to establishing and acquiring public utilities.

"Sec. 7. Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government.

"Sec. 8. The legislative authority of any city or village may by a two-thirds vote of its members, and upon petition of ten per centum of the electors shall forthwith, provide by ordinance for the

Statement of the Case.

submission to the electors, of the question, 'Shall a commission be chosen to frame a charter?' The ordinance providing for the submission of such question shall require that it be submitted to the electors at the next regular municipal election if one shall occur not less than sixty nor more than one hundred and twenty days after its passage; otherwise it shall provide for the submission of the question at a special election to be called and held within the time aforesaid. The ballot containing such question shall bear no party designation, and provision shall be made thereon for the election from the municipality at large of fifteen electors who shall constitute a commission to frame a charter; provided that a majority of the electors voting on such question shall have voted in the affirmative. Any charter so framed shall be submitted to the electors of the municipality at an election to be held at a time fixed by the charter commission and within one year from the date of its election, provision for which shall be made by the legislative authority of the municipality in so far as not prescribed by general law. Not less than thirty days prior to such election the clerk of the municipality shall mail a copy of the proposed charter to each elector whose name appears upon the poll or registration books of the last regular or general election held therein. If such proposed charter is approved by a majority of the electors voting thereon it shall become the charter of such municipality at the time fixed therein."

Section 9 relates to the amendment of charters. Sections 10, 11 and 12 relate to acquiring property

Argument for Relator.

for public uses by municipalities and providing money therefor.

"Sec. 13. Laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes, and may require reports from municipalities as to their financial condition. and transactions, in such form as may be provided by law, and may provide for the examination of the vouchers, books and accounts of all municipal authorities, or of public undertakings conducted by such authorities.

"Sec. 14. All elections and submissions of questions provided for in this article shall be conducted by the election authorities prescribed by general law. The percentage of electors required to sign any petition provided for herein shall be based upon the total vote cast at the last preceding general municipal election."

Mr. Cornell Schreiber, city solicitor, and Mr. Alonzo G. Duer, assistant city solicitor, for relator.

We contend that Section 3 granting to cities all powers of local self-government became effective November 15, 1912, and that no further action on the part of the legislature or on the part of the city is necessary to secure to cities all of the powers granted in Section 3.

It is a rule of statutory or constitutional construction that an act or a constitution, or the rights conferred by either, become effective at once, unless an intention to postpone the time that the same shall take effect is conclusively apparent. 1 Lewis' Sutherland Stat. Constr. (2 ed.), 308.

Argument for Relator.

We contend that the time that Section 3 takes effect is not in any wise limited or postponed by any other section of Article XVIII. Section 3 grants general power to the municipalities, beginning "Municipalities shall have authority," etc.

Section 7 does not provide that the city must adopt a charter. It simply provides that the city may frame and adopt a charter, leaving it optional with the city whether or not it wishes so to do. To say that Section 7 limits or postpones the powers granted by Section 3 would be to construe Section 7 as a proviso or limitation. That Section 7 is not intended as a proviso or limitation upon Section 3 is quite clearly apparent from its position in the amendment. Between Sections 3 and 7 are Sections 4, 5 and 6, pertaining to public utilities. The natural and logical position of a proviso is immediately after the matter which it is intended to limit. 2 Lewis' Sutherland Stat. Constr. (2 ed.), Secs. 352, 420.

The very language of Section 3 makes this section self-executing. It provides that municipalities shall have authority to exercise all powers, etc. The word "shall" here has a significant and conclusive meaning, which is strengthened by the argument that this is an entirely new section of the constitution, granting certain rights which the city did not heretofore have and which the legislature could have granted without the adoption of this amendment, and which the constitution evidently intends to secure to the municipalities without hindrance from any one. The word "shall" must be construed in this light when it is considered in connection with the object manifestly

Argument for Relator.

intended to be accomplished. Willis v. Mahon, 48 Minn., 140.

In the constitution of Ohio and in the amendments adopted on September 3, 1912, there are very many provisions that undoubtedly are selfexecuting, and as well stated in the above case such provisions are becoming more and more common for the purpose of granting absolute rights which the legislature cannot destroy.

In this very case, State, ex rel., v. Lynch, 87 Ohio St., 444, this court has declared one provision of the constitution to be self-executing, in the first and second sections of the syllabus. Hannibal & St. Jo. Rd. Co. v. State Board of Equalization, 64 Mo., 294.

That Section 3 is self-executing and imperative is further apparent from the fact that Article XVIII of the constitution clearly uses the words both "may" and "shall" advisedly and in their usual sense.

It seems to us to be perfectly clear that when the words "may" and "shall" appear so frequently in the same article and in such close proximity, that the same are used advisedly and in their natural sense, the word "shall" conveying the impression of command and the word "may" of permission. 2 Lewis' Sutherland Stat. Constr. (2 ed.), 1154.

That the provisions of Section 3 may be carried out under existing laws is quite in line with the decision of the New York court of appeals in People, ex rel., v. Roberts, 148 N. Y., 360, 31 L. R. A., 399.