8. constitutionai, tíon-: in°?ayor°"of constitutionality. — In a petition for rehearing, it is earnestly contended by appellees that the act of the general assembly authorizing the creation of restricted residence districts in cities is unconstitutional, as attempting to confer legislative authority upon private citizens, and making it obligatory upon the city council to establish such district when petitioned therefor by 60 per cent of the owners of real estate therein, even though, as a matter of fact, the petitioners may own only a small fractional part of the property to be affected by such action.
*11189. Constitutional law: ^construe-as permissive If this were the correct construction, to be placed upon tbe language of the act, the objection thus made would be a serious one; but when it is read with care, and with due regard to the familiar rule that, if the language of a statute . . . is fairly capable of a meaning which is not constitutionally objectionable, it must be so construed, the suggested difficulty disappears. Let us look now to the terms of the statute itself. The first section, containing the grant of authority, is in the following words:
“Cities of the first class, including cities under commission form of government, and cities under special charter may (and upon petition of sixty per cent of the owners of the real estate in the district sought to he affected residing in such city shall) designate and establish, by appropriate proceedings, restricted residence districts within its limits.”
The italics and parenthetical marks our ours. For reasons already sufficiently considered, the validity of such a delegation of power to the city is not open to doubt, unless, as contended by counsel for appellees, it is to be held vitiated by the parenthetical clause which we have italicized. Opposed to any such ruling there are two insuperable obstacles:
(1) Even if the clause be held invalid as an unconstitutional delegation of power to private citizens to control the legislative functions of the city council, its judicial condemnation does not involve nor require the condemnation of the entire act in which it is found. In other words, the clause may be obliterated entirely, without affecting the validity of the grant of power to the city:
(2) To preserve the constitutionality of the act, the word “shall,” found in said clause, will be held to be not mandatory, but directory or permissive. Santo v. State, 2 Iowa 165; State v. County Judge, 2 Iowa 280; Duncombe v. Prindle, 12 Iowa 1; Cooh v. Marshall County, 119 Iowa 384; Parish & Porterfield v. Elwell, 46 Iowa 162; State v. Minor, 106 Iowa 642, 648; Jordan v. Circuit Court, 69 Iowa 177, 179; People v. Sanitary Bist., 184 Ill. 597 (56 N. E. 953); Burns v. Henderson, 20 Ill. 264; Thompson v. Board of Trustees, 144 Cal. 281 (77 Pac. 951); City of Denver n. Londoner, 33 Colo. 104 (80 Pac. 117, 121); State v. *1119Board of Com., 27 Nev. 469 (77 Pac. 984) ; Norman v. Thompson, 30 Tex. Civ. App. 537 (72 S. W. 64).
The above cited, case of Thompson ■v. Board of Trustees is quite in point. There, an ordinance provided that, on petition of a certain per cent of voters, “the board of trustees shall submit [a certain proposition] to 'said voters;” and it was held that the duty so imposed was not mandatory. So, also, in City of Denver v. Londoner, supra, a charter provision that the city council “shall pass” an assessing ordinance when recommended by a board of public works was construed as meaning that the council may pass such ordinance. The precedents to this general effect are quite numerous, but we have mentioned sufficient to show the trend of all the authorities.
We are, therefore, disposed to hold that, while the statute here in question authorizes the stated percentage of property owners in a proposed restricted residence district to initiate a movement therefor by petition to the city-council, such petition or consent does not impose upon the council the mandatory duty to enact the requested ordinance. In other words, the enactment of such an ordinance remains within the legislative discretion of the council.
What we have said with reference to the absence of mandatory effect of a petition to establish a district is doubtless equally applicable to that provision of the ordinance not found in the statute, as to the effect of objection by 60 per cent of the property owners to any proposed building permit. That question is, however, not directly raised in this appeal; but we speak of it to remove, if practicable, a possible occasion for future litigation. The petitions for rehearing by the several appellees are overruled.