CONCURRING OPINION OP
MR. CHIEF JUSTICE DEL TORO.I concur in the first part of the opinion of the court delivered by Mr. Justice Wolf. It is evident that the writ of mandamus is the adequate remedy in this case.
I do not agree that the jurisprudence established by the National Supreme Court in the case of United States v. Saunders, 120 U. S. 126, is entirely applicable. In my opinion both the phraseology and the spirit of the provisions of law interpreted by the Supreme Court in that case are distinct from the wording and the spirit of paragraph 13 of section 34 of the Organic Act in force in Porto Rico.
However, I am of the opinion that the judgment appealed from should be affirmed because it has not been shown that the offices of mayor filled by the petitioners are incompatible with that of Irrigation Commissioner to which they were elected. The prohibition of the Organic Act is that no person shall receive compensation for more than one office or position.
There are incompatible offices that clearly can not be filled by the same person without detriment to one of them, but that does not always occur. A mayor desirous of doing his duty has much to do however small the community in which he holds office, but the public service would not suffer because he may attend from time to time the sessions of the Irrigation Commission. On the contrary, in the body of the Commission he would be occupied in a work which if conscien*250tiously done would surely be of great benefit to the community, in a field of action similar to his activities as mayor.
What Congress established as the public policy to be followed in this territory in prohibiting its Legislature to enact any law permitting any officer or employee to receive compensation for more than one office or position was that very thing, that is, to prevent the occurrence of such a thing in practice and, should it occur, that it may be stopped as illegal.
I repeat that the prohibition does not consist of holding two or more offices which are not incompatible. The express prohibition is the receipt of compensation for more than one office or position. Experience shows that not only in emergencies, but in ordinary circumstance's of our life already strenuous and complicated, men of real worth and full of public spirit fill efficiently besides their main occupations not one but several positions in important public commissions to which they apply all the spare time at their disposal. To construe the Organic Act in the sense of prohibiting the holding of those other positions without any compensation merely because the law or the regulations fix a per diem to the commissioners would be not only to go against the letter but against the spirit of the law and against the welfare of the community.
What was meant to prohibit and has been prohibited is the receipt of more than one compensation, for although that might be right and just in many cases, it would degenerate into an immoral practice injurious in every sense to the public service.
As to the view that the preponderance of authorities favors the construction that these constitutional precepts are not applicable to municipal offices, it will be sufficient to say that the law in force in Porto Eico is too broad to admit such a restrictive interpretation. It is the Legislative Assembly of Porto Eico which is called to legislate on everything concerning the municipalities of the island and if it can not enact *251any law authorizing such, practice in them, the conclusion is clear that the rule of public policy established includes both the insular and municipal governments.
By virtue of the foregoing I am of the opinion that the petition should be denied and the decision appealed from affirmed for the reason that as petitioners Añeses and Banu-chi can hold their offices without receiving any per diem or compensation, the Executive Council should not refuse to issue to them the election certificates required in order to take possession of their offices.
I am authorized to say that Mr. Justice Hutchison concurs in this opinion.