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Concurring Opinion.

by the word was a local subdivision of the state endowed with limited political autonomy within certain definite branches of governmental functions -in short, a legal creature of restricted powers. (Title XII, General Code.) The revision adds a new idea to the notion; the amendments have doubled the concept. The word now means a territorial organization of people under a charter with unlimited powers of self-government, and also, as formerly, such a body of people organized with restricted powers under general law. Now, if we must give "law" its old restricted force of general or statutory law in Section 7, Article V, then why not read "municipal" in its old restricted sense of urban community governed by general law? Counsel for the state have given us no reason why, and we have found none. So by their own logical interpretation, self-governed charter cities are excluded from the purview of Section 7, Article V.

However, we do not rest upon formal logical interpretation of a mere word. We have in mind the sage wisdom of Chief Justice Marshall: "In performing the delicate and important duty of construing clauses of the constitution of our country, * * it is proper to take a view of the literal meaning of the words to be expounded, of their connection with other words, and of the general objects to be accomplished * * * by the grant of power." (Brown v. Maryland, 12 Wheat., 419, 437.) Also Judge Cooley: "A reasonable construction is what such an instrument demands and should receive; and the real question is, what the people meant, and not how meaningless.

Concurring Opinion.

their words can be made by the application of arbitrary rules." (Const. Lim., 7 ed., 95). And Blackstone: "The most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it." (1 Comm., 61.) And Ihering, the German jurist: "Methods which attempt forcibly to transmute jurisprudence into legal mathematics, are wholly wrong and founded in a misunderstanding of the nature of law. Law is what life, business, and a sense of right decree to be The ideas of law must be

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sought in practical grounds. Logical intuition has not given being to a single one of them. Even legal dialectics, where it had to work out the consequence of principles and ideas, was really guided by the practical fitness of the results." (4 Geist des Roemischen Rechts, 3 ed., pp. 311, 315.)

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Candor, quickened by an amiable communion with our brethren on the bench who disagree with us, bids us confess that one circumstance troubles us. The first section of Article V ordains that "Every white male citizen * who shall have been a resident * * * such time as may be provided by law, shall have the qualifications of an elector." Clearly the italicized words refer to the statutory law of the state. That the learned men and sagacious lawyers who collaborated upon these amendments would use the same phrase, "as provided by law," in a different sense when they penned Section 7, is very doubtful. That they made such an ambiguous use of the phrase consciously, is incredible. The most natural expla

Concurring Opinion.

nation of this equivocal use of the word "law" is that they did not observe that it has a more narrow signification in Section 1 than they intended by its use in Section 7 (if they so intended).

We must bear in mind that the men who wrote Section 7 one year ago had a different purpose in mind than the men had who wrote Section 1 sixty years ago, and that the people of Ohio who adopted Section 7 did not compare its phraseology with similar forms of expression in the old constitution, but contemplated Section 7 only as a separate amendment abolishing the old style of nominations, unrelated to Section 1 of the original document, which prescribes the qualifications of electors. Shall we cause their purpose to fail in regard to a still more remote subject, viz., direct popular government of municipalities, because imperfections of literary style and incongruities of expression appear in the document when the new parts are placed here and there amongst the old? Shall we practically nullify the biggest and most elaborate amendment, which the people have ordained by a vast majority, for the sake of what may be called unity of design and precision of legal ideas?

We recall a canon of interpretation as laid down by Chief Justice Marshall: "The same words have not necessarily the same meaning attached to them. when found in different parts of the same instrument; their meaning is controlled by the context." (Cherokee Nation v. Georgia, 5 Pet., 1, 19.) Again: "The intention of the instrument must prevail; this intention must be collected from its words; its words are to be understood in that

Concurring Opinion.

sense in which they are generally used by those for whom they are intended; its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them, nor contemplated by its framers

v. Saunders, 12 Wheat., 332).

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Counsel for the state must go a step further. They must persuade us that Section 7, Article V, requires that nominations shall be by both methods, by primary election and by petition. They paraphrase the section thus: All nominations

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* shall be made as provided by law (statute law) at direct primary elections, or by petition, as the electors may choose. They contend that the lawmaking body cannot adopt either mode to the exclusion of the other; and so they argue that if the local law, the charter, prevails over municipal nominations, the charter must give voters the alternative of nominating by primary election or by petition, because this section of Article V is intended to guarantee to citizens of the state both modes of selecting candidates. This process of reasoning raises a doubt; it certainly does not resolve the doubt.

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But the process is not a legitimate one. The primary rule of interpretation is that the language is to have its ordinary and usual signification, if it be not absurd. The simple common-sense meaning of the clause, "All nominations shall be made at direct primary elections or by petition as provided by law," is that nominations shall be restricted to these two modes, and the law may provide for one or the other. The phraseology of the section standing alone is

Concurring Opinion.

ambiguous. Hence it does not require construction with anything else. (Slingluff v. Weaver. 66 Ohio St., 621.)

Counsel are not content to paraphrase the clause thus: "at direct primary election or by petition, or both." That would still allow the city to adopt either method; so counsel go the great length of reading "and" for "or." We think this is a strained construction. We do not say it is unnatural, because it is suggested by a plausible reason. The thought is that the revisers of the constitution were aware of the tyranny of party machinery, and they provided that if the minority are not given fair treatment at the party primary, resort may be had to petitions to bring forward minority candidates. We cannot deny that some thought of this kind may have been in the minds of some members of the constitutional convention and of some electors who voted for this amendment. But we do not feel such a conviction that this was the motive of it as to warrant us to depart from the direct, positive and customary signification of the language. We think every good purpose will be subserved by our interpretation according to the primary and natural import of the language. This gives to the state, and to the cities as well, party nominations at primary elections if the people want their ballots made that way. But, upon the people of a free-charter city, to whom the constitution in ample and positive terms has guaranteed the form and method of government they have chosen for themselves, we will not enforce party nominations against their will.

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