author: Shauck, C. J. Wilkin, J., Donahue, J., Wan am aker, J.,

text:
    The State, ex rel. City of Toledo, v. Lynch, Auditor.

      Provisions of the l8th article of the constitution—As amended September, 1912—Continue in force the general laws—For government of cities and villages until changed—By (1) general laws, (2) additional laws ratified by electors, .(5) adoption of municipal charter—Municipality may not establish moving-picture theaters, when.

    1. -The provisions of the eighteenth article of the constitution as amended in September, 1912, continue in force the general laws for the government of cities and villages until the ISth day of November following, and thereafter until changed in one of the three modes following: (1) By the enactment of general laws for their amendment, (2) .by additional laws to be ratified by the electors of the municipality to .be affected thereby, (3) by the adoption of a charter by the electors of a municipality in the mode pointed out in the article.

      2. Whether a municipality acquires authority “to exercise all the powers of local self-government” by adopting a charter, or adopts a charter as an indispensable mode of exercising the authority, the powers to be exercised, being governmental, do not authorize taxation to establish and maintain moving-picture theaters.
    (No. 14064
    Decided May 6, 1913.)
    In Mandamus.
    ' The petition alleges the organization and existence of thé relator, the city of Toledo, as a municipal corporation under the laws of the state; that the defendant is its duly qualified and acting auditor; that after November 15, 1912, its council passed an ordinance of which the following is a copy:
    “An Ordinance, .
    “Transferring the sum of one thousand dollars from the General Fund, to the Department of Public Service Fund, and transferring the same for the purpose of establishing a municipal moving-picture theater, and directing the City Auditor to furnish to the Director of Public Service a certificate of such transfer and appropriation as provided by Section 3806 of the General Code of the State of Ohio.
    “Be it Ordained by the Council of the City . of Toledo, State of Ohio:
    “Sec. 1. That the sum of one thousand dollars be and is hereby transferred from the General Fund to the Department of Public Service Fund, and such amount is hereby appropriated for the purpose, of establishing a municipal moving-picturé theater, and shall be used for no other purpose, and the Auditor of the city of Toledo is hereby directed to make such transfer on the records of his office and to furnish a certificate of such transfer and appropriation to the Director of Public Service as is provided in Section 3806 of the General Code of the State of Ohio.
    “Sec. 2. This ordinance shall become operative from and after the earliest period allowed by law and is hereby declared to be an emergency measure to take effect immediately.”
    That the ordinance was approved by the mayor, and that, on demand, the defendant as auditor, refused to make the transfer and furnish the certificate required by the ordinance. The prayer of the petition is for a writ of mandamus to compel compliance by the defendant with the ordinance.
    The defendant, answering, admits the corporate character of the relator, his own official character, the passage of the ordinance, and his refusal upon demand to comply with its terms. To justify his refusal he alleges that: (1) The statutes of the state do not give to municipalities authority to establish a moving-picture theater, and (2) the amendment to the constitution of the state, adopted in September, 1912, relating to local government for municipalities, is not yet effective for the reason that the city of Toledo has not framed and adopted a charter providing for home rule in accordance with the provisions of said amendment. The pertinent provisions of the constitutional amendments .referred to in the answer and relied upon by the relator, were adopted in September, to become effective November 15, 1912. All are in ' 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 niay 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 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 com taining 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 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. Alonso 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.

      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 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 self-executing, 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.

      We contend that a municipal moving-picture theater is properly a municipal enterprise. 1 Dillon on Municipal Corporations (5 ed.), Sec. 21.
    It will be apparent from all the foregoing that our contention is that Section 3 enlarges the powers of the cities so that they now have all powers of local self-government. By this we do not mean to say that the cities are not subject to any laws of the state. Not at all. We simply mean to say that they operate under the general laws, but with enlarged powers. So that the amendment to the constitution supersedes those sections of the statutes conferring specific powers upon municipalities, but still leaving cities subject to the general laws as to the details with which such powers may be carried out.

      Mr. Frederick J. Flagg, for respondent.
    The contention of the respondent is that Section 3 is a declaration of a principle; that it is addressed to, and is a limitation on, the legislature; and that Section 2 and Sections 7, 8 and 9, prescribe the methods by which the local self-government shall be carried into effect; that Section 3 does not contain within itself the method or the means by which the right should be exercised, nor does it define what local self-government is and what its limits are, and that Section 3 is not self-executing. Cooley on Const. Lim. (7 ed.), 121; Illinois Central Ry. Co. v. Ihlenberg, 75 Fed. Rep., 877; Morley v. Thayer, 3 Fed. Rep., 740.
    : Construing the whole of Article XVIII together, it is apparent that Sections 2 and 7 point out the way the authority shall be given to municipalities.

      ' It is clearly the intention of the constitution that general laws “shall be passed” for the incorporation and government of cities under the idea that those cities shall exercise the powers of self-government, and it is also clear that there are now no general laws in force for the incorporation and government of cities, having in view the declarations of Section 3, that cities shall have authority to exercise all powers of local self-government. Section 6, Article XIII of the Constitution of 1851, said: “The general assembly shall provide for the organization of cities * * * by general laws and restrict their power of taxation,” etc. The word “government” in Section- 2 of Article XVIII is very important and was put there for a purpose..
    We contend that these sections supply the method which is lacking in Section 3 and that they should be construed with Section 3 to effectuate the spirit of the article, which is home rule for cities, the -powers of government coming from the electors. Section 7 is made subject to Section 3, which shows they should be construed together.
    It is very clear from the whole article that the powers of local self-government shall be exercised by cities under general laws to be passed by the general assembly. This appears from Section 2, Section 3 and Section 7. The article does not mean that municipalities shall be absolutely independent in their local self-government.
    We submit that the words, “shall have authority” mean that the general assembly shall in the future give the cities their powers, or they can secure them by the adoption of a charter. Under the prior constitutions, the general assembly has always given to cities their powers, and it is a fair argument to say that the constitutional convention had this in mind when they drafted this section. The interpretation of one constitution may be aided by the provisions of the constitution preceding. City of Newport News v. Woodward, 104 Va., 58.
    It is significant that although California has had a section similar to Section 3 for many years, and Washington for several years, counsel for relator do not cite any case which holds that the cities of California had the authority to make and enforce within its limits all “such local police, sanitary and other similar regulations,” without first having framed a charter. That they have not, is proof that there is none.
    After the Washington constitution was passed, the legislature passed an act providing for the organization, classification, incorporation and government of cities. Seattle v. Clark, 28 Wash., 723; 8 Cyc., 739; Langdon v. Applegate, 5 Ind., 327.
    Parts of the Ohio constitution have been held not to be self-executing. Lamb v. Lane, 4 Ohio St., 167.
    In Illinois, Missouri, West Virginia and Alabama, the constitutional provisions against taking private property for public use without just compensation therefor, are held to be self-executing, even though the method of ascertaining such compensation is left in the legislature’s determination. 6 Am. & Eng. Ency. Law (2 ed.), 913; 8 Cyc., 754.

      Thus Ohio, in the matter of construing this provision of the constitution, does not go as far as the states mentioned. W. T. Spice & Son v. Steinruck, 14 Ohio St., 213.
    In other states the authorities do not agree as to whether constitutional provisions authorizing cities of a limited number of inhabitants to frame charters for themselves are self-executing. 8 Cyc., 757; People v. Hoge, 55 Cal., 612; Reeves v. Anderson, 13 Wash., 17; Fusz v. Spaunhorst, 67 Mo., 256; Tuttle v. Natl. Bank of Republic, 161 Ill., 501.
    If a constitutional provision succeeds another on the same subject, and the former plainly required legislative action to become effective, while the latter is ambiguous on that subject, the courts will hold- that the latter requires legislative action also. Newport News v. Woodward, 104 Va., 58; 8 Cyc., 753.
    If Section 3 gives full powers of local self-government to all cities, then Sections 7, 8 and 9 are entirely unnecessary, and cities under Section 3 would have full power to make any kind of a charter by any method they pleased.
    If Section 3 gives of itself full powers of self-government to municipalities, they may by ordinance establish a municipal moving-picture theater, and by ordinances do all the things they wish to, such as pass rules for their government. Then these ordinances would be their charter, and it would be by a different method from that laid down in Section 7, and absolutely opposed to it, and" to the-spirit of it, as it would be the legislative authority which would be framing the charter and not the electors. It would give the.legislative authority in cities eo instanti,.all (he ,authority possible'which .the people under Section 7. might or might not give them. . • ;.

      Mr. Timothy S. Hogan, attorney general, and Mr. J. M. McGillivray, special counsél, amici curiae.

    The powers of municipalities are such as are expressly conferred by law, and such implied'power as may be necessary to carry the express powers into effect. Ravenna v. Pennsylvania Co., 45 Ohio St., 118.
    Their powers are strictly limited. Bloom v. Xenia, 32 Ohio St., 465. •'
    Inasmuch as the grant of power, in Section-3 of Article XVIII,. is worded, “Municipalities'Shall have authority to exercise all powers of local self-government,” and the contention of relator is'that the power to •• pass the ordinance in question is found in this - grant, does' not the conceded fact that there are no laws now in force authorizing the doing of that which is attempted end the' controversy, because, all laws then in forcé (meaning, of course, as to the matter under consideration November 15, 1912), shall remain in'- force-"until amended or repealed, unless they be inconsistent with the amendment?
    The result, therefore, is, laws in force on November 15, 1912, are still in force. They dd not authorize the. Toledo ordinance, yet it is claimed to be supported and given validity by Section 3 of Article XVIII on account of- the fact thát it is-claimed to .bé self-executing. ¡-

      As a term descriptive of a policy, home rule is significant and appropriate, but as descriptive of a right is indefinite, for it is coextensive with the right of local regulation and control and its extent must always be tested by the constitution. 21 Cyc., 447; Attorney General v. Lowrey, 131 Mich., 642.
    What is local self-government? The answer to this question is to be found, in so far as we have any answer, in conditions that prevailed prior to the adoption of the home-rule amendment and in the light that existed prior to that time. Cooley on Const. Lim. (7 ed.), 265.
    Local powers and rights are powers and rights that are inherent in a municipality. The legislature does not confer such local powers and rights— it has only the right of regulation, and there should be reasons of state policy before this right is to be interposed. So that, in theory, the home-rule amendment has conferred very little upon municipalities which they did not heretofore enjoy. What has heretofore been understood as matters proper to be regarded as coming under the head of local government are still so, and nothing beyond that. It may be said at this point that the legislature has power to make laws only because that power has been conferred by the constitution. Cooley Const. Lim. (7 ed.), 264.
    Will it be said for a moment that although the legislature must look to the people speaking through the constitution for legislative power, and although they are subject to all of the limitations contained in the constitution of Ohio, yet a municipal corporation by virtue of Section 3 of Article XVIII, and Section 3 of Article XVIII only, is an omnipotent local legislature? Such an interpretation as this would confer upon the council of a municipal corporation a prerogative equalled only by the British parliament. Surely we have not in Ohio approached such vagaries as that. If unbridled license is given to the council of a municipal corporation under Section 3 of Article XVIII, what need of the grant of power contained in Sections 4, 5 and 6 following Section 3? The fact of the necessity of adding the subject-matters contained in Sections 4, 5 and 6 discloses that the powers therein to be exercised have not heretofore been regarded as coming properly undér the head of local self-government. Cooley Const. Lim. (7 ed.), 265.
    How can it well be claimed that the legislature could heretofore invest municipalities with the right to go into the picture-show business? Is that a governmental business? Opinion of Justices, 155 Mass., 601; Baker v. Grand Rapids, 142 Mich., 687.

      Mr. Henry J. Booth; Mr. Thomas H. Hogsett; Mr. Thomas J. Keating and Mr. Frank M. Cobb, for respondent.
    One of the cardinal rules of interpretation requires that all provisions in pari materia must be construed with reference to each other, so that, if possible, effect may be given to every word, clause and sentence in the article or statute under consideration; another is that grants of power to municipal corporations are strictly construed against the corporation and in favor of the public.
      Markley v. Mineral City, 58 Ohio St., 430; 1 Smith’on Municipal Corporations, Sec. 82; Abbott on Municipal Corporations, Secs. 113, 890.
    The 'power to establish, maintain and operate theaters and other similar enterprises may, and in most instances 'would/ involve the exercise of the power of taxation, the incurring of indebtedness and the expenditure of public moneys; and thé rule which prevails with reference to the construction of statutes would by parity of reason apply to the construction of constitutional provisions. 2 Lewis’ Sutherland Stat. Constr. (2 ed.), 632; Sedgwick on Stat. and Const. Constr., 19; Cooley’s Const. Lim. (7 ed.), 271; Dillon on Municipal Corporations (5 ed.), Sec. 239; Leonard v. Canton, 35 Miss., 189; Opinion of Justices, 155 Mass., 598; Sutherland-Innes Co. v. Village of Evart, 86 Fed. Rep., 597, 30 C. C. A., 305; Lowell v. Boston, 111 Mass., 454; Loan Assn. v. Topeka, 20 Wall., 655; Ottawa v. Carey, 108 U. S., 110; Cole v. La Grange, 113 U. S., 1; State v. Osawkee Tp., 14 Kans., 418; Allen v. Inhabitants of Jay, 60 Me., 124; Mather v. Ottawa, 114 Ill. 659.
    ' Section 3 of Article' XVIII of the constitution authorizes municipalities to exercise all powers of local self-government, etc.
    Is. the establishment of a moving-picture theater - the:exercise of such power? ■ If not, the relator is-not (entitled to the relief sought in this case.
    Municipal corporations perform two kinds of functipns—governmental and proprietary—and this-court'-has- frequently recognized the well-defined distinction between thése funct'ibns.

      The power which the city of Toledo is seeking ;to exercise by establishing a moving-picture theater is not governmental. Cincinnati v. Cameron, 33 Ohio St., 336.
    The principle.of respondeat superior applies to municipal corporations where the acts of their servants or agents refer to powers and duties ministerial in their nature and character. Toledo v. Cone, 41 Ohio St., 149; Davoust v. City of Almeda, 149 Cal., 69, 5 L. R. A., N. S., 536; South Carolina v. United States, 199 U. S., 437; Western Savings Fund Society v. Philadelphia, 31 Pa. St., 175.
    It is certainly unnecessary to cite authorities to this court in support of the proposition that no such action would lie in case of injury resulting from negligence where the municipality is exercising purely governmental functions. Wheeler v. Cincinnati, 19 Ohio St., 19.
    The constitution provides that private property shall not be taken' for public use without just compensation. If the establishment, maintenance and operation of a theater, as held in Brooks v. Brooklyn, 146 Ia., 136, and on principle in numerous other cases, is not within the corporate powers of a municipality, we insist that the taxation necessary to procure' funds for such an enterprise is the taking of private property without just compensation. Opinion of Justices, 58 Me., 590; Opinion of Justices, 204 Mass., 607; Kingman v. Brockton, 153 Mass., 255; Baker v. Grand Rapids, 142 Mich., 687; Hayward v. Red Cliff, 20 Cal., 33; Eufaula v. McNab, 67 Ala., 588; Donable’s Admr. v. Harrisonburg, 104 Va., 533; Keen v. Waycross,
      101 Ga., 588; City of Radford v. Clark, 73 S. E. Rep., 571; 1 Cooley on Taxation (3 ed.), 210; Audit Co. of N. Y. v. City of Louisville, 185 Fed. Rep., 349.
    We claim, first, that Section 3 of Article XVIII is merely the declaration of a general principle and does not provide any procedure or rule by which the same may be carried into effect; second, that if the powers of local self-government specified in Section 3 may be exercised by municipalities the mode of such exercise is specified in Sections 7, 8 and 9. Cooley’s Const. Lim. (7 ed.), 121; 8 Cyc., 753; Davis v. Burke, 179 U. S., 399.
    Municipalities may exercise the power of local self-government only as provided in Sections 7, '8 and 9 of Article XVIII. State v. Covington, 29 Ohio St., 102.
    The question of the construction of these provisions and the power conferred is considered at length in Dillon on Municipal Corporations (5 ed.), Sec. 63. In all of the states where freeholders’ charters are authorized by the constitution, there are provisions similar to those contained in Section 3, Article XVIII of the Constitution of Ohio, that is, provisions authorizing the municipality to exercise all powers of local self-government. In all of them it has been held that the adoption of a freeholders’ charter is the means by which the electors of a municipality may exercise the powers of local self-government. In none of these states is it suggested that the. council of a municipal corporation may frame such a charter. In fact, the right to frame a charter otherwise than by a charter commission has never been attempted, at least so far as the reported decisions disclose. All of the cases assume, and in some cases it is expressly stated, that the right to frame a charter must be exercised under and in accordance with the procedure set forth in the constitution. People v. Gunn, 85 Cal., 238; Ex parte Braun, 141 Cal., 204; Reeves v. Anderson, 13 Wash., 17; State v. Field, 99 Mo., 352; Kansas City v. Marsh Oil Co., 140 Mo., 458; State, ex rel., v. Scales, 21 Okla., 683.
    In Ohio only a few provisions of the constitution have been passed upon by this court in respect to the question of whether or not they are self-executing. These decisions will be supplemented by authorities from other jurisdictions which may be of assistance in passing upon the question involved. Lamb et al. v. Lane, 4 Ohio St., 167; Kulp v. Fleming, 65 Ohio St., 321; Middletown Natl. Bank v. Toledo, A. A. & N. Ry. Co., 197 U. S., 394; Older v. Superior Court, 157 Cal., 770; Woodworth v. Bowles, 61 Kans., 569; Tuttle v. Natl. Bank, 161 Ill., 497; Lewis v. Lackawanna County, 200 Pa. St., 591; Commonwealth, ex rel., v. Harding, 87 Pa. St., 343; Morley v. Thayer, 3 Fed. Rep., 737; Roback v. Taylor, 2 Bond, 36; Austin v. Gulf, C. & S. F. Ry. Co., 45 Tex., 234; Brown & Co. v. Seay, 86 Ala., 122; State, ex rel., v. Spokane, 24 Wash., 53; Newport News v. Woodward, 104 Va., 58; Chittenden v. Wurster, 152 N. Y., 345.

      Mr. Scott D. Kenñeld and Mr. A. J. Freiberg, also submitted briefs on behalf of respondent.
   Shauck, C. J.

We understand it to be conceded that prior to November 15, 1912, when the constitutional amendment set out in the statement of the case became effective, the councils of municipalities were without authority to use public moneys for the purpose of establishing and operating moving-picture shows. Certainly the absence of plain statutory authority therefor denotes its absence. As the city of Toledo had existed and flourished from its founding without a municipally-owned attraction of that character, the declaration of the second section of the ordinance that it is an “emergency measure” must be taken to mean that it is a measure for which there is now supposed' to be opportunity.

The case of the relator requires it to maintain the two propositions that without action by the general assembly or the electors of the city' its council may “exercise all powers of local self-government,” and that the suggested mode of entertainment is within those powers. Both propositions are denied. Brief attention to the history out of which this amendment arose will aid materially in understanding its form and some of its provisions and in answering some of the questions which the present case presents for determination.

The first half-century of our statehood, as was universally conceded, had demonstrated the necessity for uniform legislation upon the subject of corporations, both municipal and private, in order that there might be a system of corporate law. This was a recognition of the very great importance of opportunity to know what the law is. Such uniformity was in terms required by the constitution of 1851. Thereafter municipalities rapidly increasing in size and numbers attracted the attention of lobbyists whose schemes were not always acceptable to each other nor to a majority of legislators, and resort was had to a scheme of acts of limited operation, though in a form assumed to be general, whereby the-practical operation of the requirement was weakened and finally so far annulled that the municipal law of the state was without form and much of it was void. By the year-1902, the situation was recognized as intolerable and the full operation of the constitutional requirement was restored. Throughout the ensuing decade, that requirement was respected by all departments of the government of the state; municipal credit was greatly improved, and it became apparent that every city in the state had a much better government than any had before. But progress toward the perfection of the uniform municipal code was slow. It-was retarded partly,' at least, by differences in the suggestions of natural persons who control or desire to control the exercise .of municipal power. These were said to be differences in the needs of different municipalities. Many believed that thfe differences were altogether subjective and in no sense objective. There was, too, a belief entertained by many disinterested persons that the form of government devised was, at least in many of the municipalities, too expensive and that it added unnecessarily to the burden of taxation. It resulted that in framing the amendment now under consideration, influence was exercised both by those who believed that the best results could be obtained by continuing to unite the intelligence and activity of the state upon a further improvement of the General Code and by those who believed that more satisfactory results could be reached by conferring upon the electors of different municipalities a larger influence in establishing the instrumentalities for their local government. Full authority for this statement is found in the provisions of the article.

By the first and second sections municipalities are classified as cities and villages, and the legislature is peremptorily required to pass general laws for their organization and government. On the 15th of November, when the article took effect, such laws were already in force, and they continued to be in force, operating upon every municipality in the state until a change should be effected in some mode authorized by the amendment. This conclusion results necessarily from the fa.miliar doctrine of Cass v. Dillon, 2 Ohio St., 607, where it was held that the new constitution of the state (that of 1851) created no new state. It only altered in some respects the fundamental law of a state already in existence; and even this was done pursuant to the prior constitution, under whose provisions the convention was called and the new constitution framed. It follows that all laws in force when the latter took effect, and which were not inconsistent with it, would have remained in force without an express provision to that effect: and all inconsistent laws fell simply because they were inconsistent; in other .words, all repugnant laws were repealed by implication. The conclusion also results from the express provision of the general schedule to the present amendments: “All laws then in force [when the adopted amendments took effect] not inconsistent therewith shall continue in force until amended or repealed.” It follows that on the 15 th of November the government of every municipality in the state remained unchanged.

But the amended article authorizes the electors of a municipality to secure some immunity from the uniform government which it perpetuates as the primary status of all municipalities, and to entitle their municipality “to exercise all powers of local self-government.” We have heard and read much discussion of the cases upon the self-executing capacity of constitutional provisions. The rational rule upon the subject clearly deducible from the decided cases is that such provisions are, or are not, self-executing according to their nature and terms. Much of the discussion in the cases cited relates to constitutions which perform the function heretofore regarded as appropriate of locating the powers of government and defining the modes of their exercise. From that source but little argument can be drawn to affect the interpretation of an instrument so largely legislative as is this. It is also to be observed that questions respecting the self-executing capacity of constitutional provisions usually relate to the necessity for legislative action to make them effective. This article provides two modes of securing the permitted immunity from the operation of the uniform laws which the legislature is required to pass. One of them is defined in the second section, and manifestly it is .not self-executing, for it expressly authorizes the legislature to pass “additional laws,” that is,- taws additional to the general laws which the legislature is required to pass, such additional laws to become operative in a municipality only after their submission to the electors thereof and affirmance by a majority of those voting thereon. The other mode is defined in the provisions of the later sections relating to the adoption of charters. From the terms and nature of these latter provisions they are self-executing in the sense that no legislative act is necessary to make them effective.

A fundamental defect in the relator’s case is that it assumes that a power conferred upon a municipality is conferred upon its council, although every provision of the amendment with respect to this body merely áuthorizes. it to make provisions for ascertaining the will of the electors. No additional act of the legislature is contemplated with respect to the adoption of a charter. The clear provisions of that article are first for the submission by the council to the electors ■ of the question: “Shall a commission be chosen to frame a charter?” and, that question being answered in the affirmative by a majority of the electors, that any charter framed shall be submitted to the electors at. an election “provision for which shall be made by the legislative authority of the municipality in so far as not prescribed by general law;” the meaning of. which plainly is that the municipal council may legislate first with respect to the preparation of a charter and second with respect to a submission to a popular vote of a charter framed, and that an approving vote of a majority of the electors of the municipality is indispensable to the adoption of a charter or the securing of any power beyond the general law. It seems, therefore, to be entirely beyond doubt that'since the city of Toledo had not by a vote of its electors approved any additional law passed by the general assembly, • and that its electors had not adopted a charter, the municipality and all of its departments have only such powers as were conferred by the general law; that is, such power only as it had prior to the 15th of November. In some of the cities of the state the subject of adopting charters is, as we learn from counsel and from the public press, receiving consideration. It should occasion no •surprise that we are urged to attempt here a complete exposition of the powers of local self-government which in that mode municipalities may exercise. But as the case we are to determine does not call for such comprehensive exposition, judicial propriety forbids it. Obviously, the adoption of a charter will be regarded as offering opportunities for the use of public money which the uniform law does not permit, and which perhaps it will never permit, but we cannot anticipate all the enterprises which may be suggested, and we should not assume in advance to be able to anticipate all the learning which may be bestowed upon an analysis of the instrument. It is, however, pertinent to observe that at a time when there is serious need to use the public credit for the repair of extensive injuries to public property wrought by disastrous floods, something has occurred to impair that credit to a very serious extent. Obviously, there are far-reaching laws which cannot be annulled by statutes or constitutional amendments.

But the case before us presents the question whether the establishment and operation of a moving-picture show is within “the powers of local self-government,” and the question has received' the attention of able counsel. In the amendment the phrase is used without definition and with the manifest intent that its operation shall be according' to its established meaning. It is fundamental in interpretation that statutes in derogation of the common law and amendments to statutes and constitutions shall have such and only such operation as is due to the natural import of their terms. The effective search for truth as well as the decorum due the convention and the people by whom the' amendment was framed and adopted requires us to impute to them a knowledge of that fundamental and familiar rule, and also to assume that they expected the courts to apply it to their work. Since municipalities get their powers from the. state, it is mathematically certain that they can include no power not possessed by the state. Local self-government is necessarily a part of government less than the whole.

In The State, ex rel., v. Guilbert, 56 Ohio St., 575, we recognized the truth familiar to all constitutional lawyers, that the functions of the state are governmental only, except so far as proprietary rights may become incident to the exercise of the primary function, and that since the insuring of titles does not essentially differ from any other insurance or business, the state cannot enter upon the business of insurance. How little would remain of the assurance which the Bill of Rights gives to minorities as well as to majorities that:' “All men * * . * have certain inalienable rights, among which are those of * * * acquiring, possessing and protecting property,” and that private property may be taken only for uses which are public, if the proceeds of industry and thrift may be seized for the establishment and operation of moving-picture shows and all other imaginable purposes not more frivolous nor more remote from the functions of government.

Consciousness of inadequate prevision forbids an attempt at a conceptual definition of the phrase “all powers of local self-government” to be applied to all cases that might arise. But an obviously correct descriptive definition is sufficient for the case in hand. They are such powers of government as, in view of their nature and the field of their operation, are local and municipal in character. The force of the terms employed requires the inclusion of such powers to be exercised by officials who in some manner and to some extent represent the sovereignty of the people. It as clearly excludes the exercise of functions which are appropriately exercised by caterers and impresarios. The suggestion that moving-picture exhibitions might be made educational is gratuitous because^ that is not their natural object. It is unavailing because article VI. of the Constitution shows that education supported by taxation is to be conducted by “a system of common schools throughout the state.”

Among those who had attentively studied the functions of written constitutions it was accepted as a sound proposition that a municipality might own and operate only such utilities as it used in / its municipal operations. Those- who are respon-' sible for this amendment were aware that no enlargement of that capacity was denoted by the provisions of the third section that “municipalities shall have authority to exercise all powers of local self-government,” and, therefore, they employed the express language of the later section of the article to confer that capacity with respect to other utilities. And as to them there are provisions to safeguard the interests of the people, while capacity to operate- amusements, if conferred at all, is conferred without restriction. If the language of this instrument were so doubtful as to require construction, a most natural question would occur, and the answer to it would be inevitable: Could we rationally impute an intention to authorize such use of the public money to those who were seeking to reduce the cost of municipal government and the consequent burdens of taxation?

The conclusion that this would be an unauthorized use of public money seems clearly to result from these considerations. If additional authority is desired to support a conclusion so obvious, it may be found in the reporter’s abstract of the briefs.

Writ refused.

Newman and Wilkin, JJ., concur.

Johnson, J., concurs in the first proposition of the syllabus and in the judgment.

Wilkin, J.,

concurring. The city council by ordinance ' directed the auditor to appropriate $1,000 from the general fund of the city “for the purpose of establishing a municipal moving picture theater.”

The relator concedes that nowhere do the statutes of the state confer any authority upon municipal councils to maintain or establish moving-picture theaters. The power to do that thing is predicated upon Section 3 of Article XVIII of amendments to the constitution of the state, adopted September 3, 1912, viz.: “Municipalities shall have authority to exercise all the powers of local self-government.”

The council is not the municipality; it is but an agent of the municipality. When this agent was appointed, its powers were definitely enumerated in the municipal code. It had not “all the powers of local self-government,” and the particular power now claimed by it is not one of those designated in the code.

It is only begging the question to say, the clause quoted from Article XVIII confers the power upon the municipality. The question is, Has the municipality, the civil organization of the people of the city of Toledo, assumed all the power- thus conferred upon it by the people of the state?

It cannot be argued that an agent of the- municipality, chosen before the state granted to municipalities all this local-governmental power, may exercise a power not within the scope of the agency ■when the agency was created. There is no pretense that the principal (the people of the city) has done anything since the council was elected to enlarge the authority of the agent (the council). The action of this council is based solely upon the first clause of Section 3, Article XVIII. And the argument of the relator- is that the clause shall be interpreted to read thus: Municipal coun cils shall have authority to exercise all the powers of local self-government.

If this be true, this amendment of the constitution at once exalts the creature (the council) above its creator (the municipality). The city of Toledo has not only not a government by the people (which is self-government), but all the powers of government are at once thrust into the hands of municipal councilmen.

If this council may do what it seeks to do by this ordinance, it may at once proceed to exercise all the powers conferred by Article XVIII of the .constitution upon the people of the city. Any council may by a series of ordinances forge upon the people of any city a system of city government to suit the politicians, whereas the very purpose of the home-rule amendment is to lodge directly with the people of the municipality the authority to govern their local domestic affairs within the territorial limits of the city as they may choose.

The people of the commonwealth as the paramount sovereign have the ultimate power to create and govern municipal corporations within the state. The former constitution delegated that power in part to a representative branch of sovereignty, the state legislature. The latter in turn passed over to the municipal lawmaking bodies a share of that power. The advocates of home rule proclaimed that the machinations of politicians and petty bosses, and the occult trade of the lobby, during the last half century, have beguiled these state and city legislators of the interests of the people and diverted those interests to venal uses.

The eighteenth amendment to the constitution was adopted by the people of the state to thwart this perversion and abuse of power, by giving to the people of the municipalities the' authority of controlling their own local affairs by any system of municipal government which they may choose, but subject to certain constitutional restraints. Municipal home-rule therefore means the very opposite of boss-rule, whether the bosses rule through the municipal council or the state legislature.

The purpose of the home-rule amendment (Article XVIII) is to pass the sovereign power of municipal government (within certain subjective limitations) directly from the people of the state to the people of the city, if the latter choose to exercise it. In other words, it parcels out a definite branch of the paramount sovereignty of the commonwealth to certain territorial subdivisions of the state, whose electors by popular ballot decide to assume and to exercise the local sovereignty thus permitted to them as “municipalities,” that is, as the incorporated people of a village or city. When the people have elected thus to become a local sovereign, then it may “exercise all the powers of local self-government,” through a council, or a director, or a town-meeting, as it may please.

There is no suggestion in this case that the people of Toledo have relieved its council from the restrictions of “the general laws” (which define the councils limited powers), and that the people have made the council a free lance to range over the whole domain of municipal government at will. ,

Grant that this particular ordinance is intended to promote some beneficent end. The people have not adopted it. In the whole record before us there is not á vague hint that the people of Toledo have expressed their wish to have a municipal moving-picture theater, or that the theater is to be endowed and operated for the moral or material well-being of the people. For aught that appears the theater may be- operated purely for gain, in competition with private persons or companies in the same business. And for what purpose or whose benefit the profits will be used, the promoters of this new departure in municipal government have not disclosed. The business may be conducted by the council as a monopoly, to destroy the business of private owners of picture shows. If the city council may thus drive out the picture shows, then why not the barbers, the laundries, the bakeshops, groceries, music teachers, coal dealers, drug stores, newspapers, and so on ad ínñnitumf All these concern the public health, morals and well-being more intimately than exhibitions of' moving pictures for popular entertainment.

Whether this clause of Section 3, Article XVIII, is self-executing or otherwise, we need not discuss. The question is not in this case, and only confüsés the issue. One thing is certain. It is not mandatory. By the structure of its language, it is permissive only: “Municipalities shall have authority to exercise all the powers of local self-government.” This is not equivalent to saying they must dr shall exercise, etc.

There is no token in the record that this municipality (the people of Toledo) has chosen, to. avail itself of this grant of all powers of local self-government. Neither the council, the mayor, the director of public safety, nor other agency of the municipality can determine for the people the form, character and objects of their municipal government.

The constitution speaks of but three methods: I. By the state: “General laws shall be passed for the incorporation and government of cities and villages.” (Section 2); II. “Any municipality may frame and adopt a charter for its government” (Section 7) which “shall be submitted to the electors,” etc. (Section 8) ; III. Both of these methods may be combined: “Additional laws may be passed which shall not become operative until submitted to the electors,” etc. (Section 2).

The city is still governed by the first method— under general laws of the state. The maintenance .of moving-picture theaters is not a function of municipal government authorized by the General Code. Until the electors of the city adopt one of the other methods, no branch of the city government may divert the general funds to the business of managing moving-picture shows for profit.

The question has been mooted and debated in this case, whether the maintenance and management of moving-picture shows is a legitimate function of municipal government. This question would better be raised on a different record than tire one before us. But it has been pressed upon us as one fairly arising upon the facts of the case. As defined by this record, the moving-picture theater must be understood according to the common acceptation—a business for profit. It may be for loss. Public revenue may not be raised nor expended in that way. This is not a function of constitutional government in Ohio. The kinetoscope may be used at some time, in some way, in the proper management of municipal affairs and for the public weal. But the moving-picture show-business, as defined, or rather undefined, in this ordinance, is not a fair instance of such a use. Upon the record before us, it is, to say the least, prima facie ultra vires of the municipal council.

The relator has failed to show us that such a use of public funds in a business of profit or loss, in competition ■ with private enterprise, is a function of government, so far as the people of Ohio have as yet, during one hundred and ten years of statehood, by their courts or in their constitution or the recent amendments thereto, defined their theory and practice of government.

By entitling this amendment “Home Rule,” did the revisers of the constitution indicate more than a redistribution of some powers of government, shifting all legislation in local affairs from the general assembly of the state to the electorate of incorporated urban communities ? Or did they indicate a change of the essential nature of government from the free American plan of individualism toward the foreign cults of communism and paternalism? To the people of Ohio who adopted it, “Home Rule” signified the former change rather than the latter. We are aware that the regulation of the intensely complex and highlv artificial life of great modern cities is a problem of practical sense and skill rather than of philosophic theory. Probably the ideal system of municipal management is a composite form of individualism modified as to certain communal interests by paternal favor and oversight. The evolution of modern city government seems to be toward that ideal. We do not seek to retard it.

This court is not dealing with a priori theory. Our province is to interpret a formal fact and to deduce its meaning from the document in which it is couched. True, we may view the fact in the historical perspective, but only to find its genesis in the common law of the land; as Coke says: “Out of the old fields springeth the new corn.” Our question is: Does the document embody a quiet revolution or a social evolution? The latter, we think. It is not a new constitution, but a modification of the old. Nowhere in the original constitution of Ohio, nor probably in any of the last-century state charters, can we find the power of taxation employed for competitive enterprise in the hazard of profit and loss, or that such an enterprise is within the sphere of constitutional government according to the American idea. If the people of Ohio meant to depart so radically from the ancient landmarks, they should and would have used proper language to convey that meaning.

Sections 4, 5 and 6 of Article XVIII, empower municipalities to acquire and operate certain designated public utilities. No claim is made that the business of moving-picture theaters is included in this additional grant of power; theaters are not “utilities” and are not mentioned in the grant. Expressio unius exclusio alteriiis est.

What is the proper range of government is not a legal but a political question to be decided by the people. It cannot be solved by speculation, but must ever lie open to the teaching of experiencé and history. But that the people of Ohio on September 3d last voted to make their state a political laboratory in which every village and city may, at the behest of the council. With funds raised by taxation, experiment in every variety of trade or business, as private persons do, is the proposition urged upon us by the advocates for the relator. We must be allowed at least to doubt the soundness of this construction of Article XVIII of the amendments. The rule of law is that the grant of powers to corporate bodies, purely the creatures of law and the agents of the state, is to be strictly construed, and if the grant does not clearly include the power in question, it must be denied. The natural development and safe progress of society, require that the expounders of its constitution shall be cautious—without, of course, being obstructive.

The great and extraordinary writ of mandamus should never issue, unless the right to it is strong and clear and the motives for seeking it are just and lawful, and above suspicion or reasonable doubt.. The writ should be refused.

Donahue, J.,

concurring in the judgment but dissenting from the reasons given therefor in the majority opinion.

The fact that I dissent from the reasons given by the majority of the court for the judgment entered in this case and yet concur in that judgment, requires that I should give in this separate opinion my reasons for such concurrence.

It is true that the' two propositions covered in the majority opinion are the only important questions in this case and the only ones that were argued by counsel. Yet, notwithstanding I dissent from the conclusion reached by the majority upon these questions, in order to be consistent with the conclusion I have reached in respect thereto, I am compelled to concur in the judgment refusing the writ.

The first question arising upon the pleadings and record in this case is whether municipalities now have authority to exercise all powers of local self-government, without adopting a charter, or without further legislation upon that subject. It would seem that the language employed in Section 3 of Article XVIII of the amendment to the constitution, is so plain that it does not require any construction other than to give to that language its usual and ordinary meaning.

This court, in the case of Slingluff v. Weaver, 66 Ohio St., 621, held that in the construction of á statute, “the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation.”

That rule of construction applies equally to the construction of the constitution, or any paragraph thereof, or to the construction of any contract, or other writing, involving judicial inquiry, and applying that rule to the construction of Section 3 of Article XVIII, it would appear to be the end of controversy.

That part of Section 3 with which we are particularly concerned reads as follows: “Municipalities shall have authority to exercise all powers of local self-government.” Certainly there is nothing obscure or uncertain in this language. It is so plain, concise and unambiguous that it affords no ground for controversy and suggests no doubt as to its meaning.

It is now insisted' on behalf of the respondent, that there must be read into this plain provision of the constitution words imposing conditions precedent to the exercise of this power; that is to say, it must be construed the same as if it read that “Municipalities shall have authority to exercise all powers of local self-government whenever the legislature shall pass the general or additional laws provided for in Section 2 of Article XVIII, or whenever the municipality shall adopt a charter in conformity to the provisions of Section j of that article

For aught I know to the contrary, that might have been a very wise provision to have written in the constitution. But, wise or unwise, it is not there. If it were a mistake not to so write this amendment, correction must be made in some other way than by a construction that will do violence to the language actually found therein.

It probably must be conceded that this language standing alone is not subject to any such construe-* tion as contended for by counsel for respondent. If it is to receive such a construction, it must be because other sections found in Article XVIII so modify the language of Section 3 as to require that construction. Therefore it becomes necessary to consider the further provisions of Article XVIII to determine that question.

The remaining part of Section 3 reads as follows: “And to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” Evidently this does not affect in any way •the time when the previous provisions of this section shall go into operation.

Section 1 applies only to the classification of cities and villages. It does not in any sense affect the provisions found in Section 3. But it is important to note that this section, like Section 3, is a clear and positive declaration of a status that is not dependent upon any condition precedent before going into effect.

Section 2 provides that “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.” This section is another grant of power absolutely effective on the day this amendment went into effect, and it is not important whether the legislature avails itself of the authority to pass these laws; it is nevertheless the constitution of the state and in full force and operation.

This section certainly contemplates the existence of general laws in effect at the time this amendment was adopted, and these general laws in relation to municipalities, that are not in conflict with other provisions of this amendment, are now the general laws of the state in relation to municipal corporations, and will continue as such, in full force until repealed or amended.

It is not necessary to have recourse to the doctrine announced in the case of Cass v. Dillon, 2 Ohio St., 607, as to the effect of the adoption of the constitutional amendments on existing' laws, for the reason that the general schedule attached to these amendments provides, among other things, that “all laws then in force not inconsistent therewith shall continue in force until amended or repealed.”

As said by this court in Cass v. Dillon, supra, “the new constitution of Ohio created no new state. It only altered, in some respects, the fundamental law of the state already in existence.” So that it follows, particularly in view of the schedule specifically providing that all laws in force not inconsistent with the amendments shall continue in force until amended or repealed, that the people of this state, in adopting these amendments to our constitution, must have contemplated and intended that these general laws relating to municipal corporations, not inconsistent with the provisions contained1 in the constitutional amendments, should remain as the “general laws” provided for in Section 2, subject, however, to amendment, repeal and further legislation. So that, if it be contended that these general laws provided for in Section 2 must be passed by the general assembly of this state before the provisions of Section 3 shall go into effect, then the answer to that contention is that these general laws are already on our statute books, and therefore the full measure of that demand is met and satisfied. The folly of delaying the operation of Section 3 for further legislation is so apparent that it would seem that the people of Ohio could not have intended to predicate this substantial grant of power upon the mere possibility of legislative action. The present general laws may never be repealed or amended. No further general laws may ever be enacted. But whether they are repealed, amended or others enacted, that fact cannot change the constitution of the state or affect its operation..

Section 2 of Article XVIII further provides that additional laws may be passed for the government of municipalities adopting the same, and it has been suggested that when these laws are passed and adopted then the grant of power found in Section 3 may become effective. This is in line with the former proposition as to general laws, and I do not care to discuss it further, except to say that if either this or the former construction is to obtain, then the municipalities are still dependent upon the general assembly of the state to measure out to them their power and authority to control their own local affairs, and Section 3 of Article XVIII might just as well never have been written. Undoubtedly it was the intention of this article to change the existing condition of affairs and grant to municipalities directly the authority to exercise all powers of local self-government.

It would be unprofitable to discuss the fact that cities and towns existed and exercised powers of local self-government before the state was created. The fact remains that at the time of the adoption of this amendment municipalities were recognized as creatures of the state, possessing only such powers as the general assembly of the state chose to confer upon them; and it has been uniformly held, in Ohio at least, that municipalities had no power beyond the express powers granted to them by statute. It was this condition of affairs that this provision of the constitution intended to change, and this, I think, these amendments have accomplished. It would therefore follow that the provision of Section 2, authorizing the enactment of general laws for the government of cities and villages, and additional laws for the government of municipalities adopting the same, does not authorize the legislature to grant any powers to municipalities, or to expand the powers already granted by the people, or to fix any date or any condition precedent to the exercise' of these powers. The grant of powers found in Section 3 is full, absolute and complete within itself. Therein is granted authority to exercise all powers of local self-government. Nothing further remains to be granted, and no authority is lodged anywhere, except in the donors of the grant, to impose conditions or delay the exercise of the rights conferred.

It is not suggested that any other section of this article, except Section 7, is in any wise related to Section 3, or in any way modifies the grant of power contained in that section. Yet, looking to all those other sections, we find that they are all declaratory of the rights of municipalities and are not dependent in any sense upon legislative action, except that Section 13 authorizes the passage of laws that limit the power of municipalities to levy taxes and incur debts for local purposes. So it would seem that if these other sections are independent of legislative action, Section 3 also is independent thereof.

Section 7 provides that 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. This section does not purport upon its face to control the operation of Section 3. On the contrary, it does purport upon its face that this must be done subject to the provisions of Section 3. In other words, it clearly appears from the language used in Section 7, that Section 3 is the dominant section. Even if this did not appear, there is no language used in Section 7 that even suggests the necessity of a charter before the exercise of the powers conferred in Section 3. If the construction contended for by the .respondent is to be given to this section, then it is necessary to read into it a mandatory provision that this charter must be adopted before municipalities can exercise the powers, of local self-government. That is to say, such a construction would require us to read this section as if it were written in the following language: “Before any municipality may exercise the powers of local self-government, it must frame and adopt or amend a charter for its government.” Suppose this section actually read in these words, would any contention be made here, or in any other forum, that without adopting a charter a city might nevertheless exercise these powers? And yet the construction asked would do as much violence to the language actually used as the other construction would do to the language suggested.

The language used in this section is just as plain and unambiguous as the language used in Section 3. It does not purport to create any conditions, but rather to grant a further privilege to municipalities to frame and adopt or, having so framed and adopted, amend a charter for its government, and then grants the authority to exercise under this charter all powers of local self-government; but particularly provides that this is all subject to the provisions of Section 3.

The impossibility of a construction of these amendments that would delay the exercise of these powers until a charter is adopted becomes apparent when we consider the condition of affairs that would obtain in this state under such a construction. Some municipalities would adopt charters and some would not. Those municipalities adopting charters would then derive their powers of local self-government from the constitution itself, while those municipalities not adopting a charter would still be dependent upon the general assembly of Ohio for authority to control their local municipal affairs. To determine the power and authority of cities not adopting a charter, we must look to the statutes of the state. For the power and authority of those adopting charters, we must look to the constitution itself. I cannot believe that such was the intention either of the framers of this amendement to the constitution or of the •voters who adopted it. Undoubtedly it was intended that on and after the time fixed in the schedule for these amendments to go into effect, all municipalities of the state should' starid alike and alike receive their powers directly from the same source; and not that part should receive their powers from the general assembly and part from the constitution itself.

Again, the schedule attached to Article XVIII reads as follows: “If the foregoing amendment to the constitution be adopted by the electors and become a part of the constitution, it shall take effect on November 15th, 1912.” It would seem as if this positive provision of the schedule sufficiently evidences the intention of thé people of this state •when they wrote this amendment into their constitution. True, it may be said' that that means only that on and after November 15, 1912, action might be taken to make all the provisions of Article XVIII operative. But when we look to the several sections of Article XVIII, we find that each and all of them are of such nature that they either declare a status or grant authority to do a particular thing. Certainly it cannot be successfully contendéd that where any provision of a constitution grants the authority to do a particular thing the doing or not doing of that particular thing affects in any manner the authority so granted. In other words, some of these sections authorize the general assembly to pass certain laws. That authority is complete on the day the amendment went into effect and any time thereafter the general assembly may exercise that authority. Other sections of this, article provide that the municipalities may acquire, construct, own, lease and operate public utilities, and raise money for such purposes by issuing .mortgage bonds for the ■ purchase, extension or ■equipment thereof; and that any municipality may ■frame and adopt or amend a charter for its government. These things they could do immediately on and after the 15th of November. In fact the only thing that it is contended could not be done immediately on and after the 15th of November, 1912, is that municipalities could not and cannot exercise the powers of local self-government in pursuance of the grant contained in Section 3. The language of this section is just as plain and certain as the language of the other sections. The power is conferred absolutely and without condition, and I can ■see no reason whatever for selecting out this particular section of Article XVIII and saying that this shall not go into effect until certain other .things are accomplished, but that all other sections in this article must be given immediate operation.

For these reasons I cannot concur in the first paragraph of the syllabus written by the majority of this court.

While this first paragraph of the syllabus practically disposes of the case before us and compels a refusal of the writ, yet undoubtedly the second paragraph of the syllabus deals with a proposition equally if not more important than the question covered by the first, and it is unfortunate indeed, that this question could not be settled authoritatively at this time. In view of the fact that I am of the opinion that Section 3 of Article XVIII of the Constitution grants full authority to municipalities to exercise all powers of local self-government without the aid of any legislation and without the necessity of adopting a charter as a condition precedent thereto, I would not consider it necessary to look to the statutes of the state to determine the powers and authority of municipalities, were it not for the holding of a majority of this court that Section 3 of Article XVIII has not yet become effective in the city of Toledo. If that is the correct view of this case, then, perhaps, it must be conceded that there is no' statute now authorizing municipalities to purchase and operate a municipal moving-picture theater; but following the conclusion I have reached, that these statutes purporting to grant powers to municipalities are inconsistent with the amendment to the constitution and entirely superseded thereby, the question is not whether there is any statute conferring such powers upon municipalities, but rather whether the operation of a moving-picture theater comes within the powers of local self-government. This question perhaps involves much more doubt than the former and presents far greater difficulties in arriving at a satisfactory conclusion.

I do not believe that governmental purposes include only the protection of life, liberty and property. On the contrary, I aril firmly of the opinion that one of the most important duties of the state is to promote the health, convenience, comfort and welfare of its citizens and advance the standard of citizenship in every legitimate way. But I do not believe it is within the purview of municipal government to invade the sphere of purely private enterprise wholly disconnected and divorced from public needs or public purposes. It is difficult, perhaps almost impossible, to prescribe a limit where governmental functions end and. private enterprise begins. In the last quarter of a century our views on this subject have so changed that a limit fixed along the line of the prevailing opinion on that subject at that time would seem absurd now, and so it may be a quarter of a century hence.

As an index to what has been generally understood to be comprehended in the term “governmental powers,” it is interesting to note that the general assembly of the state has heretofore conferred upon municipalities by statute the power to own and operate municipal lighting, power and heating plants; to provide for water supply, public grounds, parks and recreation centers; to hold property for charitable purposes; to establish municipal lodging houses, public baths and bath houses; to prevent the sale and distribution of vicious literature; to provide public libraries and reading rooms, to purchase books, papers, maps and manuscripts therefor, and to receive gifts and bequests of money for that purpose; and to maintain and .regulate public band concerts. In addition to this, authority has been granted to municipalities to construct railroads, 66 O. L., 80; 67 O. L., 11; 77 O. L., 91; 79 O. L., 82; 76 O. L., 149; 76 O. L., 180; 89 O. L., 323; 88 O. L., 737; 87 O. L., 110; 89 O. L., 308; 94 O. L., 648 ; 88 O. L., 593;'66 O. L., 83; also to fill and improve lands for terminal facilities, 82 O. L., 143; to empower municipalities to erect machine shops and issue bonds to pay for them, 88 O. L., 8; 77 O. Li, 155; 88 O. Li, 5; 77 Oi L., 292; 88 O. L., 199; 78 O. L., 103; 78 O. L., 39; 89 O. L., 28; 87 O. L., 108; 78 O. L., 51; 77 O. L., 7; 78 O. L., 146; 78 O. L., 60; 77 O. L., 193; also to construct glass works, 78 O. L., 67; 78 O. L., 24.

It is true that statutes authorizing municipalities to build railways have been held unconstitutional (P., Ft. W. & C. Ry. Co. v. Martin, 53 Ohio St., 386), but for the reason only that this legislation offended against Section 1 of Article XIII of the Constitution, which provides that “The general assembly shall pass no special act conferring corporate powers.”

In the case of Walker v. City of Cincinnati, 21 Ohio St., 14, an act authorizing cities of' the first class having a population exceeding 150,000 inhabitants to construct a railway, ' issue bonds for such purpose and levy a tax to pay such bonds, was held to be constitutional. In that case, however, the question whether the act then under consideration was a special act conferring corporate powers, was not made by counsel and was not considered by the court. It might also be added that Section 26 of Article II of the Constitution was also overlooked. However, the particular thing to which I desire to call attention is the pertinent fact that it was not even suggested in these cases, much less decided by the court, that the authority attempted to be conferred by these statutes did not come within the scope of governmental purposes.

It is a matter of general knowledge that practically all of the cities of this state, and of our •sister states, maintain a public recreation department; parks are maintained and beautified for the pleasure and recreation of the people; music is provided for their entertainment; municipal lodging houses, baths and bath houses are maintained, as well as other things of kindred nature, all tending not only to the betterment of immediate conditions, but also tending to the creation of higher ideals, and consequently a better citizenship. In this capital city of our state, immediately following the disastrous flood on the west side, the recreation department provided at public expense a moving-picture theater for the benefit of' the children of that unfortunate district until the schools could be reopened. Judge Dillon, in his work on municipal corporations, 5th ed., Section 21, calls attention' to the fact that municipalities in Great Britain, in addition to the enterprises in which our American cities are engaged, also own and operate ice manufactories, buildings for entertainment and music; engage in the sale and distribution of milk; engage in brick-making; maintain buildings and dwellings for laboring men, and other kindred commercial and altruistic enterprises.

It has been suggested that if the purposes of this moving-picture theater are educational, then any attempt of the municipal authorities to appropriate public money for such purpose is unconstitutional, for the reason that such matters come directly within the control of the board of education. I do not think this view is correct. While I do not believe any municipality has the -right to interfere with the established school system of this state, yet because a municipal project may be educational in effect is certainly no sound reason for holding that it does not come within the scope of the governmental powers of a municipality. The cities of this state, and the state itself, engage in many projects that are educational in their nature aside from the public school system, which is clearly within the control of boards of education.

It is further contended that this ordinance is in violation of Section 19 of Article I of the Constitution, which provides, among other things, that private property shall ever be held inviolate, for the reason that if municipalities are permitted to engage in such enterprises, private property may be confiscated by taxation. Section 13 of Article XVIII of the' Constitution' provides that laws may be passed to limit the power of municipalities to levy taxes and incur debts for local purposes. This is full protection to the citizens and a complete answer to the suggestion. However, it may be said in passing, that if every beneficent purpose of government must be abandoned because taxes are to be levied upon some unwilling person, then we might as well prepare to abandon all plans of civic betterment, tear down our libraries and close our schools. It is said that it is of grave importance that public credit should be protected, particularly the credit of the municipal corporations of this state, and that the granting to municipalities the power to engage in such enterprises as this would impair that credit. This is a question largely for the municipality to determine, subject to the limitations of Section 13 of Article XVIII above referred to. Citizens should have enough interest in their own affairs to compel honest, efficient and economical administration of their local government. But if it be granted that neither the vigilance of the people nor the provisions of Section 13 of Article XVIII are sufficient safeguards to protect municipal credit, then the further answer may be made that the people themselves make the constitution and the courts are but instruments also created by the people to give effect to that constitution, and that, therefore, it is not the province of a court to inquire as to the wisdom or the folly of any provision, either of the law or of the constitution, but rather to interpret and enforce the same according to the meaning and intent of the authority creating it. It is entirely possible that different minds honestly searching for the truth may arrive at different conclusions as to the construction of any written constitution or of any law. This is fairly demonstrated by the fact that the members of this court, who have been equally industrious, honest and intelligent in their efforts to arrive at the true meaning and purpose of this amendment to our constitution, having no purpose to serve except to arrive at the right, are, nevertheless, evenly divided as to one proposition, and but a bare majority concur in the other. The peace of the state demands that the controversy arising from such difference of opinion must be submitted to the arbitration of a court for final determination, and if perchance this court should err in its judgment, these constitutional amendments themselves provide a ready means for the correction of that error.

It is contended in the brief of counsel for relator that it is not the intention of the city to embark on a private money-making enterprise and that it is not about to engage as a competitor with enterprises operated exclusively for profit, but that, when such theater is established, it will be used in a strictly public sense, to promote the education and the patriotism of the citizens generally, and to advance the understanding and appreciation of the individual civic responsibilities of each citizen. If that is, the fact, then these purposes should have been declared in the ordinance as the purposes for which the appropriation was sought to be made, without reference to the methods or the instruments to be used in the accomplishment of these purposes, but, so. far as this ordinance reads, it may or may not be operated for any public purpose whatever. In fact, it does not appear from the ordinance itself that this moving-picture theater is to be established in the city of Toledo. If it is to be established without the city of Toledo, of course, that is the end of the controversy, for by no possibility could such an enterprise be held to come within the powers of local self-government. It is true the ordinance designates a “municipal moving-picture theater,” and it might be argued that the use of the word “municipal” is sufficient indication that the theater is to be used for municipal purposes. But such things are not so common in Ohio that the mere use of the word “municipal” sufficiently defines or qualifies the nature and the purposes of the theater to be established. This designation, perhaps, is sufficient to show that it is to be established and operated within the limits of that city, and I think it only fair so to hold, but further than that no presumption obtains as to the purpose of this theater aside from these considerations; however, in the passage of this ordinance the municipal authorities entirely overlooked the general laws of the state now in force in reference to municipal corporations.

Section 2 of the act passed May 31, 1911 (102 O. L., S21), entitled, “An act to provide for the initiative and. referendum in municipal corporations,” provides, among- other things, that no ordinance involving the expenditure of money shall become effective in less than sixty days after its passage.

Section 3 of this act provides that any act not included within those specified in Section 2 may be declared to be an emergency measure, and may go into effect immediately. This ordinance is one involving the expenditure of money, and one that, by the provisions of ■ Section 2 of the act above referred to, shall not go into effect for sixty days after its passage. Therefore, the city council had no power or authority to declare this ordinance to be an emergency measure, to take effect immediately.

It is suggested that counsel have waived this defect. I do not understand either from briefs or oral arguments that any such waiver is intended or attempted. But whether it is attempted to be waived or not, it is sufficient to say that neither the auditor nor his counsel have any right or authority to waive the positive provisions of a statute designed for the protection of the taxpayer.

It is true this question is not of general importance, but the relator is asking for a peremptory writ of mandamus, and before such a writ can be issued its right to such a writ must be clear. Having held that these general statutes, not inconsistent with the amendment, are the general statutes contemplated and comprehended in the provisions of Section 2 of Article XVIII, it follows that to be consistent they must be given application to this particular case, but, of course, not for the purpose of evading the real questions presented. .

For the reason, therefore, that this ordinance does not show on its face that this appropriation is for the public purposes mentioned in counsel for relator’s brief, or any other public purpose, and for the further reason that the city council has no authority to declare a resolution or ordinance involving the expenditure of money an emergency measure, and for no other reason, I concur in the judgment refusing the writ.

Wan am aker, J.,

dissenting. I decisively dissent, not only from the judgment in this case, but also the syllabus, as well as the majority opinion by which it is sought to sustain such judgment and syllabus.

A decent regard for the inherent importance of-the questions involved and the widespread state and national interest in the same, as well as a due respect for the majority opinion, demand more than a brief statement of the grounds of disagreement.

Let us start from some generally admitted ancient landmarks as to which we are aptly admonished in the Ohio constitution of 1802, Section 18 of the Bill of Rights: “That a frequent recurrence to the fundamental principles of civil government, is absolutely necessary to preserve the blessings of liberty.”

■ The cornerstone of American government is found in that fundamental principle: “All political power is inherent in the people.” Constitution of Ohio, 1802, Bill of Rights, Article VIII, Section 1; Constitution of Ohio, 1851, Bill of Rights, Article I, Section 2.

A few primary principles of political power and good government from the American viewpoint may furnish common ground for our consideration and help to clear some hazy notions as to political rights and powers, to the end that we may better understand the present status of our Ohio cities and villages.

In every American municipality to-day there are being exercised three distinct and differentiated kinds of political power:

First, municipal, that deals with purely municipal affairs; second, state, that deals with purely state affairs; third, national, that deals with purely national affairs.

The national power is now and always has been supreme in its own proper jurisdiction.

The state power is now and always has been supreme in its own proper jurisdiction.

The municipal power—quaere—but why not supreme in its own proper jurisdiction?

In point of time, which of these three great political powers was first in existence and operation—national, state, or municipal?

Manifestly, all must agree that we had towns, villages and cities exercising the powers of local self-government a long time before we had a state to exercise the state power or a nation to exercise the national power. This historic fact is so self-evident that it would seem unnecessary to support it’ by distinguished authority. However, to please those who pride themselves on precedent, let .us note the following very eminent authorities: Cooley’s Const. Lim. (7 ed.), 65; 1 McQuillin on Munic. Corps., 156; 1 Dillon (5 ed.), Sec. 14, et seq.; C. W. & Z. Rd. Co. v. Commissioners, 1 Ohio St., 77; Cass v. Dillon, 2 Ohio St., 630.

An even stronger case on the right of local .self-government is that of People v. Hurlbut, 24 Mich., 45, and I specially enjoin upon all students of municipal rule to carefully read the very able opinions of the various judges in that case, especially Campbell’s and Cooley’s. I quote briefly from page 98:

“Our constitution has been adopted in view of a system of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or displaced, and the continued existence of which is assumed; and, second, the liberties of the people have generally been supposed to spring from, and be dependent upon, that system. * * * The doctrine that within any general grant of legislative power by the constitution there can be found authority thus to take from the people the management of their local concerns, and the choice, directly or indirectly, of their local officers, if practically asserted, would be somewhat startling to our people, and would be likely to lead hereafter to a more careful scrutiny of the charters of government framed by them, lest some time, by an inadvertent use of words, they might be found to have conferred upon some agency of their own, the legal authority to take away their liberties altogether.”

If that be true as to the selection of local officers, how much more then would it be true as to the designation of powers that they might exercise? To the same effect, 28 Mich., 228.

If, now, we had and exercised municipal powers in matters of local self-government before we had a state and before we had a nation, how came we to lose those powers? Who took them away from us? Who perchance surrendered them, and to whom ?

Is there, in the national constitution, any denial or limitation of the powers exercised by the many municipalities that were in existence all over the nation at the time and prior to the adoption of the national constitution ? ■ Certainly not.

The state constitution declares and defines the state powers, save as they are denied and limited by the national constitution. But does that same state constitution deny or limit the powers of local self-government in existence and in exercise by the cities and villages of the Ohio territory at the time the state was organized and the constitution adopted? If so, where is it provided that the power of local self-government henceforth, that is, after the adoption of the constitution, shall be denied or otherwise limited to the cities and villages of Ohio? Point out the article and the section.

Our state constitutions are composed only of delegated powers. You say: “How do you know that?” Well, the constitutions themselves ought to be pretty trustworthy .witnesses on that elementary proposition.

“To guard against the transgression of the high powers, which we have delegated, we declare, that all powers, not hereby delegated, remain with the people.” Ohio constitution, 1802, Bill of Rights, Section 28.

“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers, not herein delegated, remain with the people.” Ohio constitution, 1851, Bill of Rights, Section 20.

If, now, any municipal powers were granted to the legislature or conferred upon it by the constitution, it would probably appear with tolerable clearness.

It is highly significant that there is no reference here whatsoever to municipalities, either as villages or cities. They are not even mentioned anywhere in the constitution of 1802. Hence, it cannot be said that the people intended in that constitution to deprive the numerous towns and villages of the state of their right of local self-government and transfer such right and power to the legislature. If such a radical departure from the then existing custom and law had been intended, is it not reasonable to suppose that there would have been at least some clear and apt constitutional reference thereto ?

How about the Ohio constitution .of 1851,?....

The only reference in the constitution of 1851, that can possibly apply to legislative or state control of municipalities, is the following:

“Art. XIII, Sec. 6. The general assembly shall provide for the organization of cities, and incorporated villages, by general laws, and restrict their powers of taxation, assessment, borrowing money, contracting debts - and loaning their credit, so as .to prevent the abuse of such power.”

Clearly, this does not delegate to the general assembly the. right to confer powers. It recognizes the powers as then being exercised by cities and villages, and merely provides that the general assembly shall provide for organisation by general laws and restrict their power in the above respects -so as to prevent the abuse of such power. Cass v. Dillon, 2 Ohio St., 623.

Does not this provision to “restrict” their power concede the power as already existing without a legislative •' grant ?

What is' ¿leant by the word “restrict?” Does it mean prohibit? Does it mean deny? Or does it mean to give or grant, and then restrict? Nonsense 1

“Restrict: to' limit; bound; circumscribe; restrain; curb, or repress.” Web. Int. Diet.

And when they wrote into the constitution the word “restrict,” did they not in substance and effect provide that the legislature should exercise no other control over municipalities in respect to rnunicipal powers?

When the Fathers came to frame and adopt the constitution-of 1831, it would have been an easy matter then to have said that the municipalities shall exercise no powers save .such as are granted expressly or impliedly by the- general assembly, especially in view of the fact that the constitution of 1802 significantly omitted all reference to villages or cities.

But they did not say that. They simply gave the legislature power to restrict certain municipal powers, not to confer them, so as to prevent an abuse of those powers. How could they-.restrict a power unless it theretofore existed?

Again, I ask, how did we lose the municipal power that was formerly enjoyed and exercised by our municipalities under the common law?

The state legislature, for over a century, has asserted and assumed, without constitutional right, to be the source of all municipal' power, and'in this has been stanchly and overwhelmingly' supported by our courts, which,', together with a century or more of acquiescence oh. the part of the people, has built up .a false system of. political power unintended ' and unthought of by the Fathers in reference to municipal rule..

By reason of the many years of legislative invasion and usurpation of the powers of -local self-government, believed, by the Fathers to be wisely left to the towns and villages as they were exercising them at the time the several constitutions of Ohio were adopted, there developed in widely different portions of the state a movement -to reclaim and restore this political power back into -the hands of the people, to prevent further aggressions on the part of the legislature, and to give the cities and villages of Ohio now what they had before any constitution of the state was adopted, to-wit, full local self-government.

The legislatures of Ohio, sanctioned by our courts, have been responsible for this embezzlement of municipal power. Instead of standing on the original proposition that “all political power is inherent in the people,” the legal and logical effect of the position of the legislature of Ohio has been, “No political power for municipalities is inherent in the people save what the legislature sees fit to give them.”

To the average man, all political power means all political power, whether national, state, municipal, or otherwise. When the Fathers used this most comprehensive, qualifying- word “all” would it be likely that they intended to except from it municipal power—the one pozuer above all others that they first exercised, and the one that most intimately and directly touched their own home affairs three hundred and sixty-five days in the year? A mere statement of this proposition shows its absolute absurdity.

Our friends of the majority necessarily are forced into the position that “the legislature is the reservoir of all political power as to municipal rule and authorityI can well conceive how that could be by special grant expressed in the constitution. But the grant of legislative power to the general assembly- of Ohio was of state powers for state purposes, and not municipal power for municipal purposes and it did not include within its terms the surrender or deprivation of the municipal power that had always existed and had always been exercised by the people before we had legislatures, constitutions and states.

The legislature was intended to do with the forms of government, forms of power, the ways and means of exercising and expressing them, as to powers actually delegated and nothing more.

Let us now proceed to analyze this Article XVIII. The intention of the dead man determines his will: the intention of living men should determine their will.

Paul, himself a great lawyer, but a greater master of language and logic, in his letter to the Corinthians, lays down a fundamental rule of construction that seems to fit the present case :• “Who also hath made us able ministers of the new testament; not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life.” 2 Corinthians, 3 ch., 6 v.

Looking now for .the living potential will of the new constitution-makers and adopters, guided by Paul’s doctrine of the spirit and purpose that giveth life, let us apply one more primary rule of Blackstone:

1. The old law.

2. The mischief to be avoided.

3. The remedy intended to be provided.'

The old law, as applied by the legislature and sanctioned by the courts, was in substance that “municipalities have no power except such as given to them expressly or impliedly by legislative act.”

Though this doctrine has no foundation in common sense, common law, or constitution, it has been passively acquiesced in for a century.

Petition after /petition addressed to the legislature, case after: case decided by the'courts, justified the -.hopelessness of home rule in local affairs through' either of these sources. Accordingly application- was made to the constitutional convention for a new declaration' of independence for municipalities. . \

The constitutional- coiivention, with great unanimity, in substance and effect declared that “municipalities are and of right ought to he free and independent in their municipal affairs

That this was their paramount and patriotic purpose there can be no doubt.

Did they accomplish that purpose for home rule, or shall it turn out at the last, by judicial interpretation, that this boasted independence and home rule is just -no ■ independence at all, and that the municipalities are still as hopelessly servile and subject to legislative control as ever, save and except that they may escape from further legislative interference or obstruction in the possibility of agreeing on some new charter for the village or city?

Did the people who asked bread get a brick, and that of the “gold”, variety, too, all under the label on the ballot: “Municipal Plome Rule?”

Is it possible that this home-rule amendment, so widely advertised through the constitutional convention and the campaigns that followed as a panacea for municipal ills, is, as a former statesman a half - century ago declared, just a “barren ideality”- as to 'dll villages and cities that are unwilling or unable to adopt a new form of government under a charter?

Over three million of Ohio’s people are to-day living in more than one thousand cities and villages. A bare dozen have taken preliminary steps .for a new charter. All the rest will still continue to be helplessly dependent upon either an adjourned or an unfriendly legislature.

The smaller cities and villages constitute the great majority of municipalities, and the probabilities are that they are quite content with their present form of government and will not adopt a new charter. Then it must follow that the great majority of villages and cities must make their appeal to the legislature, and be just as absolutely helpless and dependent as they were before we had a home-rule amendment.

While examining and analyzing this home-rule amendment, Article XVIII, we must ever keep in mind the distinction between municipal power and state power.

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

You will notice the italicized portion, which is clearly and absolutely a grant of full and immediate municipal power, unless the second part of this section, or some cognate sections, cut down or limit such power.

The second part of the section, “and to adopt such local police,” etc., regulations, deals with a state power and in no sense municipal power. The police power of the state, whether pertaining to the public health or the public peace, has always been recognized by all authorities as essentially state police power. It is necessarily so. Why? Because we have riots disturbing the public peace, calling for the intervention of the state authorities, and we have epidemics requiring action of the state board of public health to protect neighboring and adjoining portions of the state. There can be no question about this grant of power being, in the first half of the section, a grant of municipal power to municipalities, and in the second half, a grant of state power to municipalities; the first unlimited in the section by the phrase “not in conflict with general laws,” the second part of the section being limited by such phrase, because it relates to a general state power and hence should be in harmony with general laws conferring and governing such power.

But some one says: I believe that “not in conflict with general laws” also qualifies the italicized part of Section 3. Well, if that be true, then municipal powers to-day are as absolutely under the control of the legislature as they were before the adoption of the home-rule amendment, and that, too, whether the cities adopt new charters or not. Why? Because the power of self-government provided for in Section 7 is the identical power conferred in Section 3. And if Section 3 must all the while and in all respects yield to general laws, it manifestly follows that Section 7 must do likewise.

“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.”

Certainly Section 7 in no wise cuts down the powers conferred by Section 3. ' It is nowhere provided in Section 7 that before powers of local self-government may be exercised under Section 3, a charter must first be framed and adopted. If it were so intended, is it not probable that some apt words such as, “before exercising the powers of local self-government as provided in Section 3, municipalities shall frame, or must frame and adopt, an amended charter for their government,” as is provided in the home-rule provisions of the constitutions of California, Minnesota, Missouri, Michigan and other states? That would have made it perfectly clear if they had so intended. But they evidently did not so intend. The grievance to which this home-rule amendment was directed was not so much to the forms of government as to the substance of government; not to the officers who should exercise the powers, but to the fact that there was no power to exercise, save by grace of the legislature.

Again, if the charter must first be adopted before Section 3 shall become self-executing, isn’t it strange that there is absolutely no limitation upon the kind of charter that the municipality may adopt? They may adopt anything that a majority see fit to adopt. It may be:

First, a most radical departure from our present form of government.

Second, it may be a slight amendment or alteration of the present form of government.

Third, it may simply be a recodification of our present law pertaining to municipalities.

In either event, if the charter is adopted, according to the contention of the majority, home rule becomes at once available. In the last two classes of cases, though there is no substantial change in the political machinery for carrying out the provisions and exercising the powers under this amendment, still, because they got a paper writing called a charter, or a municipal constitution, a new spring political dress, so to speak, they may now exercise the municipal powers conferred by Section 3. But all the. villages and cities which are unable to agree upon a charter, or are unwilling to make any change because of their satisfaction with their present municipal form, all these are denied home rule by this sort of judicial interpretation.

Section 2 of the amendment is not a restraint upon municipal corporations in any wise, except they shall be subject in the first instance to general laws as to their incorporation and preliminary government. The restrictions are rather upon the legislature suspending the operation of their laws until they shall be ratified by the people. .

There is a section, however, of the amendment that does undertake to limit the municipal power of municipalities, and must be read in connection with Section 3 and Section 7. Section 13 reads as follows:

“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 maybe 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.”

It will be noticed that the legislature is here authorized to limit the -municipal power of municipalities, if they see fit to do so, in certain respects, and they fall into two classes: (1) To levy taxes; (2) to incur debts for local purposes, and certain requirements as to. reports, etc. The very fact that that is the only limitation put upon municipalities as .to their municipal rule, invokes the old maxim: expressio unius est exclusio alterius. The very wording of this statute authorizing the legislature to limit the power concedes that the municipalities already have the power, but merely allows legislative regulation of the same in above respects.

If the above premises be true, the conclusion is irresistible that all municipal powers for local self-government, save the restriction to limit taxation and debt, as provided in Section 13 of the home-rule amendment, are now available to ¿11 municipalities in the state. The amendment is automatically self-executing, the executive or administrative powers to be exercised by the usual executive or administrative officers, and the legislative powers to be exercised by the council, which is made by statute the legislative body of municipalities.

The necessary legal and logical effect of the majority opinion in this case is to read into Section 3 the words at the beginning of Section 2, to-wit: “General laws shall be passed to provide” that municipalities shall exercise all powers of local self-government, etc., or the clause “laws shall be passed.” The clause “as may be provided by law” and other similar expressions appear throughout these various amendments. The omission of it in Section 3 is strikingly significant.

The grand Old Roman, Judge Thurman, from whom I again quote, so rich in his rules of interpretation along the lines of common sense and the common law, used this language on page 623 of Cass v. Dillon, supra:

“Can it be believed” [which I quote with interpolation] “that, with the subject immediately before them,” [then making the constitution, then just having framed Section 2, which made it dependent on legislative action] “with a section framed to meet it under consideration,” [just having framed Section 2] “and with the strongest disposition to suppress the evil,” [emancipate cities and villages from legislative control as to their local municipal affairs] “so far as policy required, the convention, through mere carelessness, failed to expressly prohibit what they intended to forbid; nay, more, by a change of phraseology, as striking as it is singular,” [note the change between Sections .2 and 3, where in the former they provide for legislative control and in the latter omit it] “opened a wide door for saying no such prohibition was designed? Can it be believed that a prohibition so important was left to mere inference, when fewer words would have made it explicit, and' that, too, after it had been openly asserted that the true inference was it did not exist ?”

The striking omission from Sections 3 and 7, and every other section of this home-rule amendment, of clear, apt words expressing a plain intention of requiring some prior affirmative action, either by the municipality adopting a charter or the legislature giving a further grant of power, especially when those matters were all before the convention, obviously shows the absence of any such purpose or intention.

Throughout the convention and the campaign for. the adoption of the constitutional amendments it was universally claimed that the home-rule amendment was automatically self-executing. What we know as men we can not unknow as judges. Construction of home rule must not lead to destruction of home rule.

The striking omission from Section 3 of legislative control as to municipal powers shows most clearly and conclusively that no legislative control as to the municipal power was in any wise intended and that the only control to be exercised was the state power as provided in the last half of that section. The majority opinion simply amends this whole section, makes it speak and mean what it never was intended to speak and mean, and is therefore simply judge-made constitution.

What was the spirit of 1911, that called for a new constitution?

What was the spirit of 1912, that framed and adopted the new constitution?

It was the spirit of Jefferson at Philadelphia, in 1776.

It was the spirit of Lincoln at Gettysburg, in 1863.

It was the spirit of government for the people by the people.

And the convention wisely concluded that we could not get government for the people until we got government by the people. The legislature prevented such government of villages and cities for a century. Shall the courts now further prevent it for another century?

Would not the people have more confidence in our courts if our courts showed a little more confidence in the people?

Is a moving-picture theater a proper municipal public use?

What is a public use, and who may determine whether or not a given project is a public use?

Dillon on Municipal Corporations, at Section 21, Vol. I, Sth ed., says: “Cities and other municipalities in Great Britain are now to be found which own and operate street railroads, river steamboats, gas and electric light works, waterworks, markets, slaughter-houses, cold-air stores, ice manufactories, bathing establishments, lodging-houses, buildings for entertainments and for music, and engage in the sale and distribution of milk, brick-making, etc., the building and renting of dwellings for laboring ¿hen, and' other commercial and altruistic enterprises which, twenty years ago, were considered to be within the sphere of individual effort alone. The question whether it is expedient to embark in these enterprises has been referred to the people, and cannot be solved upon a philosophical or economic basis. Munic ipalities have acquired the right to manage their own affairs, and the will of the voters, however mistaken, will determine what powers should be obtained and exercised. We therefore find an increasing diversity in the character of the public enterprises now undertaken by municipalities and a resulting complexity in their powers, rights, duties and obligations.”

Since we have in all cities the initiative and referendum, known as the Crosser law, it is up to the people to determine in the first instance whether or not they want to “embark in these enterprises.” They may permit the council to take the initiative, reserving the right to exercise the referendum upon the council’s action, but under their own power of local self-government; it being strictly a municipal purpose, or at least a purpose which affects nobody but those within the municipality, legislated for by the municipality, paid for and operated by the municipality, who else has any right but those within the municipality to object? And they have their day in court, before the council, and before the people at the time the vote is being had.

The old parent case, often referred to, as to who may determine whether or not it is a public use, is Goddin v. Crump, 8 Leigh R., 120, in which it is said: “If then the test of the corporate character of the act is the probable benefit of it to the community within the corporation, who is the proper judge whether a proposed measure is likely to conduce to the public interest of the city? Is it this court, whose avocations little fit it for such inquiries? Or is it the mass of the people themselves—the majority of the corporation, acting (as they must do if they act at all) under the sanction of the legislative body? The latter, assuredly.”

Judge Ranney, in C. W. & Z. Rd. Co. v. Commissioners of Clinton County, 1 Ohio St., 95, uses this language: “In accomplishing the lawful purposes of legislation, it must be admitted, that the choice of means adapted to the end proposed, and not prohibited by the constitution, must be left exclusively to the discretion of the legislative body.”

Manifestly, if this be true as to the state’s legislative body, it must apply also to a municipal legislative body, unless prohibited by the constitution. Judge Ranney quotes with distinguishing approval the case of Goddin v. Crump, supra.

Manifestly, at least in. the first instance, a municipality has the right to determine that matter for itself, and should not be interfered with in the exercise of its municipal power or its municipal government, unless the power sought to be exercised be so glaringly and palpably beyond the powers of local self-government that a court should say that the power was unauthorized and unconstitutional.

In the light of modern-day development of our modern-day municipalities; in the light of what municipalities in almost every foreign nation have done; in the light of what American municipalities hope to do; in the light of the genuine home rule which they believe was provided for under the new constitutional amendment, I am entirely free and frank to say, the exercise of such power on the part of the city council of Toledo was entirely lawful, fully, authorized and ought not to be denied, in a case of this character, by this court.

The majority opinion written by Judge Shauck is a -most able presentation of the doctrine involved in the judgment and syllabus, and if amenable to criticism at all, it is because it seems to be assumptive rather than analytic and argumentative, dogmatic rather than discriminating or discursive. The most significant thing about it is not “what it does say,” but “what it does not say.”

Ordinarily in a question of interpretation or construction of any written instrument, whether it be a contract between parties to a lawsuit, a bond, a deed, a will, a statute, or a constitution, the first step is to ascertain the will, the intention, the purpose, of the parties to such writing—the will of the parties as 'expressed in the statute, or in the provision of the constitution in question. It is rather remarkable that in this opinion, the word “intention,” “purpose,” or “will,” is not even referred to, nor does any effort whatsoever seem to have been made to ascertain if possible from the language used what the intention, purpose or will of the constitution-makers, the delegates, or the constitution-adopters, the people, was in reference to the home-rule constitutional amendment. This rule of interpretation is so primary, so elementary, that certainly no authorities need be cited in support of it.

Two cases are cited in the majority opinion in support of the same. I want to call attention to them briefly.

First, in Cass v. Dillon, supra, Judge Thurman says in the opinion: “The constitution did not create the municipalities of the state, nor does it attempt to enumerate their powers. It recognizes them as things already in being, with powers, that will continue to exist, so far as they are consistent with the. organic law, until modified or repealed. Thus, there is no express provision that a county may make a road, or contract a debt, yet no one will doubt for a moment that it may do both. Indeed, its power to contract debt is recognized, beyond even the authority conferred by law. It is clearly assumed in Section 5, of Art. 8, that it may create debts to repel invasion, suppress insurrection, or defend the state in war, although no such power has ever been conferred by statute, so far as I can discover. If it can thus incur debts, it may, of course, levy taxes to pay them; notwithstanding its only express grant of the taxing power is, by Art. 10, Sec. 7, for “police purposes.’ The same thing may be said of townships, cities, towns and villages.”

• I know of no better case in support of this dissenting opinion than the whole case of Cass v. Dillon, whether you read the majority opinion by Judge Thurman or the dissenting opinion by Judge Ranney. They both tell the same truth as to the political powers inherent in the people, in matters of local self-government in particular. I venture to stake this whole dissenting opinion upon this single case cited in the majority opinion.

In the dissenting opinion of Cass v. Dillon, Judge Ranney especially refers to the doctrine of delegated powers, which the majority opinion seems to lose all thought of in citing State, ex rel., v. Guilbert, 56 Ohio St., 575. This is quoted as a reason why the state may not engage in the insurance business and, therefore, reasoning by analogy that it not being a proper public governmental purpose for the state, it must follow that a municipal picture show is not a proper public governmental purpose for a municipality, the court holding in the second section that the act providing for the registration of land titles in Ohio is repugnant to Section 19 of the Bill of Rights “because it attempts to authorize the taking of private property for uses that are not public, and without compensation.”

If the Guilbert case has any virtue at all it must be because of the fact that the state’s powers are all delegated powers, which the Fathers of the constitution and the jurists of early days all recognized as absolutely binding upon them. And there being no authority delegated in that constitution to engage in such business, it was therefore unlawful and unconstitutional.

But that cannot apply in the case of municipal government, because, as Judge Thurman has stated in the Cass v. Dillon case, municipal governments antedated state governments and national governments and exercise their common law powers with which they came into the state. The state constitution simply recognized them as in existence and •operation, and there is nothing in the state constitution in any wise denying or limiting those powers, save and except’ as heretofore referred to in this opinion.

I shall not make any further comment on the majority opinion save to say that I am entirely unable to see the relevancy of the “flood” argument.

As to the suggestion that if a moving-picture show were urged as a proper educational use it would be a matter for the board of education, I think it is sufficient to answer that if this doctrine be followed to its logical conclusion, it would result in the abolition of all public libraries owned and operated by the many municipalities of the staté.

Coünsel on both sides having advised the court to disregard the emergency feature of the ordinance, and the court having therein concurred, it is unnecessary to discuss that question in this case.

Courts themselves are largely responsible for the widespread criticism of courts. They too often invade the provinces of administrative and legislative officers without right or authority of law or constitution. They too often claim the right of judicial independence without according to the other branches of the government their proper independence. But an invasion of the rights and powers of the people in the making of a constitution, under the guise of judicial interpretation, is, to put it mildly, seriously to be regretted by reason of its impairing and undermining a proper public confidence in the administration of justice. The courts above all others should be the first and foremost, not to destroy, but to defend, the people’s rights in their great ¡charter of liberties, the Ohio constitution.

The honored Harlan, of the supreme court of the United States, in the Standard Oil and Tobacco Trust cases, rendered a not only distinguished but immortal dissenting opinion. In that opinion the court’s judgment was most severely criticised because of judge-made law in amending the Sherman act, under the mask of interpretation.

“After many years of public service at the National 'Capital, and after a somewhat close observation of the conduct of public affairs, I am impelled to say that there is abroad in our land, a most harmful tendency to bring about the amending of constitutions and legislative enactments by means alone of judicial construction. * * * To overreach the action of Congress merely by judicial construction, that is, by indirection, is a blow at the integrity of our governmental system, and in the end will prove most dangerous to all. Mr. Justice Bradley wisely said, when on this bench, that illegitimate and unconstitutional practices get their first footing by silent approaches and slight deviations from legal modes of legal procedure. Boyd v. United States, 116 U. S., 616, 635. We shall do well to heed the warnings of that great jurist.” Standard Oil Co. v. United States, 221 U. S., 104.

I regret that I am unable to adequately express my hearty endorsement of the wise and wholesome policy announced by Judge Harlan. If Judge Harlan’s dissent- is just condemnation of judge-made law, what is the proper' measure of just condemnation of judge-made constitutions? The judge-made statute can be easily and readily amended, but the judge-made constitution is as permanent as the people-made constitution, and more, for- it will probably have more protection from the- courts.

Constitutional provisions are--too often devitalized .in t.he name of judicial construction. They are too often bled to death and nullified by judicial order and. decree. Of what avail is the legislative or- constitutional act if the teeth be all pulled out of it by judicial interpretation? The doctrine announced in the case at bar has not yet become the settled law of the state of Ohio. I have discussed this, question at so great length, because I still indulge the hope that this court, with the aid of an enlightened public opinion, may finally settle the law. along the lines of old landmarks, that all political power is inherent in the people and should be exercised by all branches of the government, not to destroy, but to defend, the people’s rights and protect the people’s powers.