Pagán v. Towner

Mb. Justice Aldbey

delivered the opinion of the court.

The petitioner prays this court to issue a writ of mandamus commanding the Governor of Porto Rico to appoint him a member of the Insular Board of Elections, alleging in substance the following: That he is more than twenty-one years, of age, a citizen of Porto Rico and a resident of this city; that the Insular Board of Elections is a permanent body composed of three members appointed by tbe Governor of Porto Rico, two of them on the recommendation of the central directive organizations of the two principal political *2parties of the Island; that the number of votes cast in the last general election of November, 1924, by 'the Socialist Party for its candidate as Commissioner to the United States converted it into one. of the two principal political parties and deprived the Porto Rican Republican Party of that character, for which reason the position which the representative of the latter party occupied in the Insular Board of Elections is vacant; that after the result of the election was known the central directive organization of the Socialist Party recommended the petitioner to the G-overnor for appointment as member of the Insular Board of Elections to represent the said party, and that the Governor has refused to appoint him to that office, giving no reasons for his refusal referring to any objection to the candidate recommended or against his legal, intellectual, moral or physical conditions.

Without issuing the writ prayed for this court summoned the parties for a hearing on the merits of the petition, and the respondent pleaded at the said hearing that the petition did not state facts sufficient to justify the granting of the relief prayed for, whereupon the court allowed the parties time for filing briefs on that question. Consequently, in view of the demurrer interposed by the respondent, the question at issue is whether the facts alleged by the petitioner, if taken as true, are sufficient to justify an order of this court that the Governor appoint him to the said office.

For the issuance of a writ of mandamus it is necessary that the person against whom it is directed have a ministerial duty imposed by law to perform the act demanded of him, for if such is not the case and it is within his discretion to perform the act or to choose the manner of performing it, the writ of mandamus should not be issued, as held in the cases of Zavala v. Executive Council, 9 P.R.R. 191, and Negrón v. Supervisor of Elections, 11 P.R.R. 352. For this reason it is well to leave established, as said in 18 Ruling Case Law, 116, and in 38 Corpus Juris, 598, that it *3is frequently and universally recognized that mandamus only lies to enforce a ministerial act or duty; that in this sense a ministerial duty may be defined briefly to be some duty imposed expressly by law involving no discretion in its exercise, but mandatory and imperative; that the distinction between merely ministerial and judicial and other official acts is that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial. We also desire to say that in order that a writ cf mandamus may issue there must be a clear legal right to compel the performance of the act or duty demanded (38 Corpus Juris, 582), for although a conditional writ may issue, it must command the respondent to perform the act, unless he show sufficient reasons for not doing so. This is why the right claimed must be clear, since the issuance of the writ means that the court understands that the petitioner has the right asserted and that the respondent has a ministerial duty to perform the act as ordered, unless he show sufficient reasons for his refusal to perform it.

This being understood, we shall inquire whether the facts alleged in the petition in this case are sufficient upon which to hold that the writ of mandamus should issue.

The law provides for a permanent Insular Board of Elections composed of three members, two of whom shall be representatives of the two principal political parties in Porto Rico and shall be appointed by the Governor on the recommendations of the central governing boards of the respective principal political parties, wherefore the main cuestión involved in this case is whether, assuming that the Socialist Party became one of the two principal political parties after the last election, as alleged in the petition, and recommended the petitioner to represent it on the said *4board, the Governor has a ministerial duty to appoint the only candidate proposed, or whether that duty is discretional.

Although the petitioner contends that because he was X'«roposed by the Socialist Party the Governor has the ministerial duty to appoint him, yet he does not seem to be sure of his ground, for in alleging that none of the reasons given by the Governor for refusing to appoint him refer to his legal, physical, moral or intellectual conditions he tacitly admits that if some of these reasons existed the Governor would not be obliged to appoint him. And that is a fact, for the only limitation imposed by the law on the Governor is that the person appointed should be proposed by the corresponding party, and we can not believe that the intention of the Legislature was that the Governor must authorize by his signature the appointment of any person proposed to form a part of the official Insular Board of Elections, whatever might be the legal, moral, physical, intellectual or other conditions of the person proposed. And from that allegation it may be deduced also that the Governor refused to make the appointment because of some objection distinct from those stated in the petition and not mentioned therein which may have been sufficient for his refusal.

In giving the two principal political parties the right to have representatives on the Insular Boai-d of Elections appointed by the Governor the law empowered those parties to propose their candidates, but not to appoint them, and if the theory of the petitioner is correct the Governor would rot make the appointments, but they would be made by the political patties and the Governor would become an automaton whose sole province in this case would be to sign the appointments of .the persons proposed by the political parties. When the law has intended to give to the political parties the right to appoint their representatives for official duties it has done so expressly, as in providing that each one of the two principal parties should name one person of the three who *5form the local board of elections in each municipality. Section 13 of Act No. 79 of 1919, amended in 1923 (p. 562) and 1924 (p. 4).

For the Insnlar Board of Elections the law did not give to the two principal political parties the right to name the persons to represent them thereon, but only the right to propose their candidates to the Governor for his appointment. To propose, according to the Dictionary of the Spanish Academy, is “to state a thing with reasons for the knowledge of another or to induce him to adopt it; to consult or present a person for - an employment or benefit.” The words “a propuesta” used in the Spanish text of the Act are rendered in the English text “on recommendation,” which is even more explicit and clear in its meaning, for which reason the political parties have only the right to propose or recommend their candidates, a right which reciprocally gives the Governor the right not to accept the proposal or recommendation and therefore the right of not being compelled to accept and appoint necessarily the persons recommended and of requesting the central governing boards of the parties to recommend other persons who in their judgment may be appointed by him. The power to appoint on the proposal or recommendation of another involves in itself the discretion to appoint or not the person proposed or recommended. Clearly that power, which is recognized in the Governor in this case, is to be exercised within reasonable limits, and if it is abused mandamus will lie. For instance, the Governor, as we have said, could not appoint any person not recommended by the party and must select a name from among those proposed, if there be no valid reason for rejecting all of them. From the petition in this case it does not appear that the Governor abused his discretion in failing to appoint the petitioner.

The other grounds of the respondent’s opposition to the *6petition are secondary to that considered and for that reason we do not discuss them.

In the case of Piovanetti v. Paz et al., 28 P.R.R. 498, cited with approval in the case of Torres v. Municipal Assembly of Guánica, 33 P.R.R. 337, we held that according to the law then in force the municipal assemblies were obliged to fill such vacancies as might occur in them with persons recommended by the local directing organization of the party which elected the member whose vacant place was to be filled, and that they could not ask that more than one person be recommended, for they had no right to select; but the decision is not applicable to the present case because, as we then said, the election of the person who was to represent therein the minority party could not be left to the will of the opposite party, while’in the present case it is not the adverse party which, with its ideas and interests contrary to the other, must ■make the appointment, but the Governor of Porto Rico, in whom we can not suppose such interests.

Por the foregoing reasons the petition for a writ of mandamus should be denied.

Mr. Justice Franco Soto dissented.