dissenting.
Roberto H. Todd, mayor of San Juan, was the petitioner in a certiorari suit before the District Court of San Juan and he was partially successful, and failed in part. The object of the writ was to annul impeachment proceedings of the Municipal Assembly of San Juan. He duly appealed to this court, but at the time of the appeal the court was in vacation. To suspend further proceedings by the municipal assembly *814pending the appeal, an application was made to Mr. Justice Texidor of this court to restrain the municipal assembly from proceeding further in the impeachment case initiated by the said assembly. The order so solicited was granted by Mr. Justice Texidor on the 25th of September, 1928. On the 9th of October Mr. Justice Texidor issued a rule to show cause why the municipal assembly, or rather its constituent members, should not be punished for contempt, inasmuch as they had gone on with the impeachment case. The rule was made returnable to the full court and was heard by us on November 14, 1928. The difficulties between the mayor and the municipal assembly gave rise to several proceedings in the court and all of them have been decided save this one.
There can be no doubt that by appealing from the order of Judge Texidor dated September 28, 1928, the respondents to the rule did not vary their legal situation. In my opinion there is no possible appeal to the full court from the action of an individual judge of this court unless given by statute. No statute gives such an appeal in a case like the present one.
Nor can any doubt exist that, by reason of the appeal by Mayor Todd, this court acquired jurisdiction of the certiorari proceeding. It would necessarily follow that if an appeal from an order in certiorari suspends proceedings in a court below, then the mere appeal was operative to suspend the action of the court if the said court had taken any action capable of being' suspended. It is well to say immediately that in the instant case the court below in its final judgment refused to order or did not order the municipal assembly to desist from trying the impeachment proceeding.
The respondents say that the order of the District Court of San Juan was to annul the action of the municipal assembly in so far as the said assembly attempted to suspend the employment and salary of the mayor, but that the said order contained no other pronouncement limiting or restricting the rights of anyone. The decision did order the return, to the assembly of the documents certified up to the court. *815What these documents were the record before us does not disclose.
Now it is readily conceivable, under the classical certiorari, when a district court annuls a writ of certiorari originally granted by it against a municipal court and the petitioner appeals, that the appeal would suspend the return of the record to the municipal court, assuming, as would generally be the case, that the said record had been certified up to the district court. The total effect would be that the municipal court could not go on with the case.
It was not the classical certiorari that was presented to the district court. As we have pointed out in various decisions, this is a special remedy to annul ordinances or actions of municipal assemblies, under section 65 of the Municipal Act (Session Laws 1924, p. 106). It reads as follows:
“That on. motion of the aggrieved party the district courts shall have jurisdiction—
“(a) To annul or review by writ of certiorari any legislative or administrative act of the municipal assembly, mayor or other municipal officer, which infringes the constitutional right of the complainant or which is contrary to the Organic Act or the laws of Porto Rico;
“(b) To stay by injunction the execution of any ordinance, act, resolution or order which infringes rights guaranteed by the Constitution or Insular laws;
“(c) To compel by writ of mandamus a compliance with ministerial duties by municipal officials;
“(d) To grant, through ordinary action compensation for damages to parties injured by acts or omissions of municipal officials through malice or inexcusable negligence or ignorance.
“In the first two eases the aggrieved party may only bring his suit within the term of thirty days from and after the date on which the executive or administrative action shall have been performed or the ordinance, action, resolution or order published or comunicated to the complainant.”
What is certified up to the district court on the issuance of such a writ? One hardly knows, and the record does not disclose it in this case. We do not even know whether, when *816a writ of certiorari is so issued, the issuance of it suspends pendente lite without more the effect of the legislative or administrative act sought to be annulled.
Let us suppose in any place, at any time, one desires to attack any legislative act as unconstitutional or inoperative. The most appropriated writ or action is taken, but is it conceivable that the action of an individual citizen can, in testing an act, suspend a law of the Legislature? The analogy holds mutatis mutandi for the acts of a municipal assembly. The operation of the act of a municipal assembly is not annulled or suspended by the mere issuance of a writ of certiorari. The act still has the force of law. The annulment or suspension must come from the court itself, independently of the issuance of the certiorari, perhaps by injunction or what not.
In the instant case the District Court of San Juan refused to annul the proceeding of the municipal assembly in so far as it began a proceeding to impeach Mayor Todd. A fortiori so far as the record discloses, nothing was suspended that had not been suspended before. The case is similar to a preliminary injunction granted and subsequently dissolved. The appeal does not keep alive the said preliminary injunction, unless by statute or special order of the court. 3 C. J. 1405. If it were otherwise, courts would be more loath than ever to issue a preliminary injunction.
The effect of the appeal in this case was not to suspend the action of the municipal assembly in the impeachment case. The appeal did not preserve the status qtio because nothing, so far as the record discloses, was suspended in the court below.
This court was without power to order a suspension of the impeachment proceeding pending the appeal unless the said proceeding had been suspended before, and I maintain that it had not.
It would follow necessarily that the acting judge of this couid could not do what the court itself could not do.
*817Assuming, however, that this court had such a power, there is nothing in the law that authorized a single judge to act for the court. The extensions of time granted by the acting judge bear no analogy. Even in term time the Chief Justice, without consultation by long practice acquiesced in by the court acts alone. In vacation the acting judge is acting Chief Justice. The provision of law requiring one of the justices to remain in San Juan may be to have an acting Chief Justice or to provide for such writs like habeas corpus or matters issued by an individual judge returnable to the court. The actions of trial judges in vacation bear no analogy. I find nothing in the law that authorizes an individual judge of this court to act for it and suspend proceedings not otherwise duly suspended.
If, as counsel for Mayor Todd contend, the appeal suspended the action of the municipal assembly, then there was no necessity for a further order of supersedeas.
The order in this case is for failing to obey the super-sedeas of Judge Texidor and not, in terms at least, for failing; to suspend, due to the appeal.
The rule to show cause should be discharged.