Opinion of the Court. court of common pleas, except in the city and county of New York, on the first Monday of July, 1847, should become vested in the supreme court thereby established. It was held that an action is pending in a court, though judgment has been rendered, as long as the judgment is unsatisfied. The court say: "It was also decided in this court, in the case of Suydam v. Holden, that the supreme court has power under the constitution of 1846, which gives to that court jurisdiction over all suits pending in the court of chancery on the first day of July, 1846, to vacate the entry of satisfaction of a final decree of that court, entered on its records prior to 1846, on the return of the execution unsatisfied, and to order a new execution to be issued on the decree." In the case of United States v. Taylor, 44 Fed. Rep., 2, it is held in the syllabus that "Where a territorial court, by its final decree in a case, granted an injunction for the protection of a continuing right, the case is after such decree still a 'pending' case, within the meaning of the 23d section of the act providing for the creation of state governments for Washington and other territories, and is transferable to the court which by said act is made the successor of said territorial court." As to the contention that because a final decree had been previously rendered, the case had terminated and was not a pending case, the court say: "The decision upon this point involves simply a definition of the word 'pending,' as used in the 23d section of what is commonly called 'the Enabling Act.' * Opinion of the Court. "When all its provisions are considered, the act manifestly shows that congress intended to fully protect and preserve not merely the rights of parties in a few select and especially favored ones of the cases commenced in the territorial courts, but every right of every party in every case which at any time had been or should be commenced in those courts during their existence; and the words, 'all cases, proceedings and matters pending,' used in the act, must be construed to embrace all cases, proceedings and matters initiated in the territorial courts, and in which at the time of the actual transformation of the territorial judicial system into the state and national system there should be yet any vitality, force or virtue." This view of the meaning of the word "pending," in different connections in which it has been used, has been upheld in O'Maley v. Reese, 1 Barb., 643; Howell v. Bowers, 2 Cr. M. & R., 621; Ex parte Howland, 3 Okl. Crim. Rep., 142; Ulshafer v. Stewart, 71 Pa. St., 170; Mitchell & Rammelsburg Furniture Co. v. Sampson, 40 Fed. Rep., 805; Sherrer v. Caneza, 33 La. An., 314. Courts for the review of legal proceedings are, and have been, an essential part of our judicial system. Valuable rights acquired under a system in full and legal operation should not be held by the court to have been withdrawn and destroyed, unless by express language or by provisions from which it must follow, by necessary implication, that such result was intended. This doctrine was upheld in Commonwealth v. Balph, 111 Pa. St., Syllabus. 379; Endlich on Interpretation of Statutes, Sec. 522. A careful consideration of the purposes of the amendments in question and of the results which would follow the adoption of the construction contended for by those favoring these motions, leads us to conclude that all rights which parties had in cases pending in the circuit courts prior to January 1, 1913, are preserved in their full integrity, whether judgment was entered in such cases by the old circuit courts or by the courts of appeals into which they were merged. The motions will be overruled. SHAUCK, C. J., DONAHUE, WANAMAKER, NEWMAN and WILKIN, JJ., Concur. THE STATE, EX REL. CITY of Toledo, Provisions of the 18th 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, (3) 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 15th 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. Statement of the Case. 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 the 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 movingpicture 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-pic Statement of the Case. ture 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 |