
    Socialist Party, Petitioner, v. Horace M. Towner, Governor of Porto Rico, Respondent.
    No. 238.
    Argued June 21, 1926.
    Decided July 29, 1926.
    
      Bolívar Pagan for the petitioner.
   Mb. Chief Justice Del Tobo

delivered the opinion of the court.

On March 12, 1926, the Snpreme Court, by a majority of its justices, decided to deny the petition for a writ of mandamus. The grounds for the denial are set forth in the opinion of the court delivered by' Mr. Justice Wrolf on that date. Mr.- Justice Franco Soto filed a dissenting opinion. Socialist Party v. Towner, ante, p. 171.

The petitioner has filed a petition for a writ of error, accompanied by an assignment of errors. A day was set for hearing’ the parties on the petition and only the petitioner has appeared.

When the case was taken np by the court in conference Mr. Justice Wolf submitted a memorandum contending that the writ of error should not be allowed. Mr. Chief Justice Del Toro and Justices Aldrey and Hutchison announced their conformity with the substance of the memorandum. Mr. Justice Franco Soto was of the opinion that the writ of error was allowable.

In view of the attitude of Mr. Justice Franco Soto, and the question involved having tó be decided finally by the Circuit Court, Mr. Chief Justice Del Toro and Mr. Justice Hutchison were of the opinion that the petition for the writ should be granted. Mr. Justice Wolf and Mr. Justice Aldrey insisted that the writ of error should be denied.

It is true that on various occasions this court has denied recourses to the Supreme Court of the United States and to the Circuit Court, but this was done when the court was unanimous in its opinion.

On no occasion that we know of has the First Circuit Court of Appeals considered with respect to the Supreme Court of Porto Eico this power which we have assumed in accordance with other precedents that we have consulted, and it would be well that it should do so in order to dispel any doubt on a matter of such import and of such frequent occurrence.

It has been said that if this court should deny the recourse, the petitioner may apply to the Circuit Court for a writ of mandamus ordering the Supreme Court of Porto Eico to allow it. That is true, but Mr. Chief Justice Del Toro and Mr. Justice Hutchison believe that a litigant should not be forced to resort to an extraordinary remedy when the Circuit Court has made no express decision on the subject, and when one of the justices of this Supreme Court dissents and considers that in accordance with his previous dissent on the merits of the case this case is appealable ac- ■ cording to law.

Tbe petition is granted;

Justices Wolf and Aldrey dissented.  