The Pensacola journal. (Pensacola, Fla.) 1898-1985, 1921-12-23
COURTS DECISION
in PENSACOLA CASE
Opinion Of Judge West, Which Was
conourred in BY Other Members
of the Court.

The official documents IN relation to
the case of Frank ID. Sanders, Frank
r. Pou and George H. Hinrichs. con-
stituting the board OF commissioners
OF the city Of Pensacola. plaintiffs, vs..
state ex rel. ]. Heron DAlemberte,
Dudley r. Saunders and William L.
Meyer. defendants, were received yes
terday by the attorneys in the case.
The citizens were represented by Hon.
J. J. Sullivan, Sr.. and Judge E. c..
! Maxwell, and the city commissioners
by the city attorney John B. Jones,
and John s. Beard. The decision was
handed down by Judge West of the
supreme court, and was concurred in
by the other members of the supreme
court.
| In his summing up of the case, Judge
West makes the following statement:
stripped of unnecessary verbiage
and eliminating immaterial averments.
the answer contains nothing substan-
| TALLY different from the alternative
writ wherein, as we have seen, it is
expressly alleged that the petition was
filed in the office of the clerk Of the
circuit court of Bscambia county and
that thereupon the clerk ascertained
That II GOAldAlcQ Tie IEQQ1SlI6
OF qualified petitioners and certified
such fact to the city commissioners.
According to the allegations of the al
Tentative writ the certificate of the
clerk of the circuit court which is made
the basis of this case was made Oct.
rs. A. d. 1919. The several other GER
tificates of the clerk of the circuit
court mentioned in the amended an
swer antedate and apparently are dis
placed by this certificate. This being
true, such former certificates or de-
fects or Irregularities in them or pro-
ceedings certified by them become en-
tirely immaterial.
The defense sought to be set up by
the amended answer raises the ques-
ton of the proper place for filing the
petition in q proceeding under section
40 OF the statute which is a prelirn-
mary essential to the calling of an
election under this section Of the stat
ute. This Is a question of law. 1t is
averred that the petition in this case
was not filed with the city commits
sioners who are the respondents, and
in the briefs it is contended and upon
oral argument it was urged that a
proper reading and interpretation of
the entire statute requires petitions
for elections under this section to be
filed with the city commissioners. The
answer does not deny that such petit
ton was filed with the clerk of the cir
cult court OF Escambia county as al
| legged in the alternative writ. Neither
does 1t expressly deny that the petit
ton on file in the office OF the clerk
of the circuit court is in form and sub
stance such as the statute requires.
| The certificate of the clerk furnished
respondents, copy of which was made
a part OF the alternative writ and re-
produced in this opinion. indicates
substantial compliance with the re-
quirements of the statute by him.
| However, the conclusion reached by
the court renders it unnecessary to
discuss the provisions of the statute
which might be regarded as pertinent
to this inquiry.
fOn the former writ of error the al
Tentative writ was held to be good as
against the demurrer. The demurrer
presented the point of law which is
now conceded to be the controlling
question in this case. The alternative
writ, as shown by the quoted para
graph, alleges that the petition for the
election was filed with the clerk Of
the circuit court of Eseambia county.
In the oral argument on the former
writ of error the contention that this
allegation rendered the alternative
writ fatally defective was especially
stressed. In holding the alternative
writ not amenable to the demurrer the
court necessarily decided the question
now presented. Not only was the
question presented by the record and
emphasized in oral argument. but an
alleged omission to consider it was one
of the statute required the filing Of
the case for a rehearing. This appH
cation after due consideration, was
denied. If this court had not been of
the opinion then that a proper inter
probation of the applicable provision
OF the statute required tn efiling of
such petition with the clerk of the
circuit court Of Escambia county it Of
necessity would have found the alter
native writ fatally defective because
OF the allegation contained In it that
the petition was so filed and would
have affirmed the order sustaining the
demurrer and dismissing the alterna-
tive writ. The point is not discussed
In the former opinion but the conclu-
sion Is unacceptable that In reversing
the judgment sustaining the demurrer
the court held that it appeared from
the allegations of the alternative writ
that petitioners were, with respect to
this question, proceeding in conform
ity with the terms of the statute"
nTTRE OE V0px AnuTTrrD