The opinion
This case, after opinion and judgment filed November 28, 1933, is now before us on motion for modification of the opinion. The motion having been duly considered, it appears to the Court that all questions presented by the record have been definitely settled by this Court in the opinion filed herein and in the opinion and judgment in the case of Orange County v. Robinson, decided July 13, 1933, and reported 149 So. 604 , and cited in this case, and that, therefore, no good purpose could be served by reiterating what was said in that case.
We are asked by the motion for modification to determine whether the provisions of Chapter 11904, Acts of 1927, or *Page 69
of Chapter 11954, Acts of 1927, constituted the controlling statute. The plaintiff in the court below in separate counts of his amended declaration based his right to recovery in some counts on one section of the statute and in some counts on the other. This constituted an admission in the pleadings by the plaintiff that both Acts were valid, the only difference being, as we see it, that if it were found that Duval County during the period involved had a population of not less than 145,000 and not more than 155,000 then the provisions of Chapter 11904 would apply; whereas, if it did not have that population the provisions of Chapter 11954 would apply. It does not appear that the validity of Chapter 11904 was challenged and determined by the lower court and, therefore, we do not assume to determine the validity or invalidity of that Act at this time.
Therefore, the petition for modification is denied.
So ordered.
WHITFIELD, P. J., and BROWN and BUFORD, J. J., concur.
ELLIS and TERRELL, J. J., concur in opinion and order.
DAVIS, C. J., disqualified.