Figueroa Fuentes v. Díaz

Opinion of

Mr. Justice Negrón Fernández

in which Mr. Justice Belaval concurs.

On July 25, 1952 there came to life in America the most precious and human of all postulates of social justice to which the democratic conscience of a nation may aspire: the equality of birth before the law. The chains which in our legislation still bound the fate of the children born out of wedlock to the discrimination of the juridical inferiority and to the disgrace of social indignity — and which in sound construction of law and sound justice might have been partly slackened in Vargas v. Jusino, 71 P.R.R. 862, dis. op., p. 369 — were shattered to pieces at the impact of the Bill of Rights of the Constitution of the Commonwealth of Puerto Rico,1 the enactment of which repealed ipso jure,2 as regards the children born in, or after said date, -the precepts of the Civil Code and of the other laws which in -one way or other established classes and categories of children, by reason of birth.3

Although this case is not governed by the state of law which flows from the former constitutional precept, but by the juridical relations which are derived from the legislation in force at the date of birth of the minor plaintiff, December 19, 1948 — mainly Act No. 229 of May 12, 1942 (Sess. Laws, p. 1296), amended by Act No. 243 of May 12, 1945 (Sess. Laws, p. 814) — we must not forget, upon establishing the scope and juridical effects of said law, that by the intrinsic merits of its own ethical values, the dignity of a human being must not depend, in order to be exalted and consecrated by the courts, upon the existence of a provision of law declarative of that standard of evaluation of the rights of man. The principle of dignification of the human being • pervades Act No. 229, within its limited sphere, although not expressly stated.4

I concur with the affirmance of the judgment appealed from, although on different reasons than those set forth in the opinion of Mr. Justice Ortiz. I also agree with his statement that “the main purpose of the Legislature in enacting § 1 of Act No. 229 of 1942 [was] to do away with any possible difference between natural and adulterine children born subsequent to the effectiveness of said Act.” I do not believe, however, that said opinion gives “full expression to the sense of human equities which inspired the legislation under consideration,” Vargas v. Jusino, supra, dis. op., p. 370, by subjecting the filiation suits under Act No. 229 to the narrow patterns of § 125 of the Civil Code, 1930 ed.,5 nor that it establishes, on the other hand, a rational juridical theory in overlooking — upon evaluating the elements of proof on uninterrupted possession of status — the requirement of uninterruptedness in said possession. Therefore I pass on to state separately the reasons on which I base my affirmative vote.

Plaintiff files the present action in her capacity of natural daughter of the defendant according to the juridical scope fixed to said term by § 1 of Act 229, supra, which provides: “All children born out of wedlock subsequent to the date this Act takes effect, shall be natural children, whether or not the parents could have married at the moment when such children were conceived. These children will be legitimized by the subsequent marriage of the parents, .to each other.” Contrary to the stern criterion adopted in the aforesaid opinion in determining the right of filiation of this new “natural” children, I believe that § 125 of the Civil Code has been substantially modified by the impact, and ever since the enactment of Act No. 229, which “may be considered as a basic law which requires an elaborate and definite development of the different Sections of the Code, implicitly and directly affected thereby.” Muñoz Morales, Anotaciones al Código Civil, First Book, p. 401.

In enlarging the scope, through Act No. 229, of the concept of natural children contained in $ 125 of the Civil Code, the legislator evidently wanted to vanish, as to children born thereafter, the differences between the various categories of illegitimate children which existed in our legislation: illegitimate natural children and other illegitimate children (adul-terines or incestuous). Therefore, to convey real meaning and full expression to that legislative intent, we must construe and apply Act No. 229 in a way that truly identifies both kinds of children, not merely in their juridical nomenclature, but in their actual opportunities of filiation, for it is undeniable that although Act No. 229 removes the juridical differences from the children, it does not remove — nor may it remove — the legal impediments of the parents, nor the criminal character of their intercourse, nor the punitive sanction imposed by society for the offense; and thereby if the adulterine or incestuous children under said law are submitted, in filiation suits, to the rules of evidence provided by § 125 of the Civil Code for the filiation of natural children, they would be burdened in their real opportunities for filiation, by the inequality arising from the juridical condition of their parents and the differences derived from the criminal relations out of which they were begotten. No true equality is created in that way between the illegitimate natural and other kinds of illegitimate children. This only tends to sanction the regime of inferiority of the latter, in their real impotence to be identified with the former. Thus an act of indignity committed by the father is perpetuated and the right of the child to its own dignity is .immolated. This is not the scope of Act No. 229. Those can not and should not be its consequences.

Laws should be construed and applied in consonance with the social end inspiring them. They should not be isolated from the human problem whose solution they pursue; they must not be stripped of the realities of life which society itself has projected over them, for the sense of justice which inspires them would then become illusory and lost in a vacuum. Therefore, the requirements of proof of § 125 in cases of concubinage and possession of status — which were set forth in said Section for the purpose of actions of acknowledgment of the former natural children, and which respond to real situations not proscribed in society — can not be the proper channels of real utility for the filiation of adulterine or incestuous children, begotten from socially proscribed relations.

Act No. 229, by the necessary implication of its social end, authorizes, for filiation purposes, an inquiry into the paternity of the illegitimate children not having the status of natural in the same way that nowadays that same paternity is investigated for support purposes. Otherwise, we would have to conclude that Act No. 229 does not really identify the adulterine or incestuous children with former natural children in their opportunities of filiation, for the latter would depend, in cases of concubinage and possession of status, on the proclamation of criminal acts, and faced with the reality that no man, according to his own standards of behavior in a social group, ever makes public ostentation either of adultery, or incest or of the children thus begotten, to submit the right of filiation of those children to the proof of the concubinage of their parents, or to the possession of status, would be equivalent to denying them beforehand any actual opportunity of acknowledgment, and to defeat the purpose of Act No. 229. If an adulterine or incestuous child were required to prove the uninterrupted possession of status by voluntary actions of acknowledgment of the father —according to the scope of paragraph 2 of § 125 of the Civil Code prohibiting inquiry into paternity, Judgments of the Supreme Court of Spain, of June 6, 1931, 200 Jurispru-dencia Civil 247; April 26, 1916, 136 Jurisprudencia Civil 279; October 12, 1907, 108 Jurisprudencia Civil 558 and June 26, 1903, 95 Jurisprudencia Civil 1021 — or to prove the concubinage of his parents at the time of his conception, his fate as a son “of chance and of the unknown” would be doomed, 1 Scaevola, Jurisprudencia del Código Civil 357, Colón v. Heirs of Tristani, 44 P.R.R. 163, because it would afford very meager or no opportunities to obtain filiation. It would be difficult, if not impossible, for an adulterine or incestuous child born under Act No. 229 to obtain his filiation, unless the paternity established in an authentic manner by any means of legal proof, were considered as an operative factor of filiation under said law. The case at bar proves it. The concubinage, which was found proved by the trial judge, was not established ■ by the evidence. The uninterrupted possession of the status of a natural child, in my opinion, is unreal. It may be reasonably forecast that under said Act there shall never be a judgment of filiation based on concubinage, in favor of an adulterine or incestuous child, because the latter, pursuant to § 125 of the Civil Code, would be compelled to prove that his parents behaved in public as married, when the truth is, —based in the habits of life and in the standards of behavior established by society — that nobody proclaims nor makes public ostentation of a crime— in such cases, adultery or incest. And likewise it may be foreshadowed that never — or almost never — a judgment of filiation shall be rendered in favor of one of such children, based on possession of status.

The requirements of proof of concubinage and of possession of status in the actions of filiation filed by adulterine or incestuous children born under Act No. 229, place them —due to the hardship of the illicit acts of their parents — at an obvious disadvantage, in their opportunities of filiation, compared with natural children born before the enforcement of said Act. The new juridical concepts of “natural” does not respond to the social reality under which the adulterine or incestuous children were begotten. To call them “natural children” and then mould them to the strict pattern of § 125 in order to have a father,'certainly does not fulfill the legislative intent. If that is the impact of Act'No. 229 on the previous legislation, we must then announce that in approving said Act the lawmaker did not eliminate the differences between the illegitimate children not having the status of natural and the natural children, but merely mitigated the crudeness of the concepts of adulterine or incestuous, calling them “natural,” but without doing away with the harshness of their actual disadvantages as compared with the natural children. ,If that were the case, the adulterine or incestuous children born under the force of Act No. 229 would actually continue being as inferior as before, despite the new label of “natural” children, because said Act did not destroy their juridical inferiority to the natural children in their actual opportunities of filiation, but merely gave them a new name, without raising their category, since for the purpose of filiation it left them as adul-terine, as incestuous and as devoid of justice as ever.

Our affirmative judgment of today does not fully achieve the end of social justice which inspired the Act in issue. Despite the outcome of this case, we have rather defeated that purpose. The elimination, because of obsolete and antijuridical, of the rule of “strong and convincing proof” of the possession of status, — which rule should have never taken root in our jurisprudence — is not achieved by the enactment of Act No. 229, nor does it offer an adequate means for the fulfillment of the broad social purpose of the statute. Even if said rule is done away with, paragraph 2 of § 125 requires that the adulterine or incestuous children prove the uninterrupted possession of the status of natural children. If said subdivision is applied its requirements must be fulfilled. That of uninterruptedness, in my opinion, is not present. Consequently, I consider that the evidence is insufficient to affirm the judgment on that ground.

A juridical anachronism results when the judicial power denies consequences to, and renders void in its essential purpose of real equality — in its deep sense of human dignity — a precept of substantive law, because of the fact that the legislative power did not expressly provide for a mean to manifest said equality. But the right to paternity should not depend on the degree of skill employed in drafting a statute. Once its purpose is known as well as the philosophy inspiring it, we should make effective its fundamental purpose. Equality does not allow for discrimination nor authorizes privileges. There can be no real equality between natural children and adulterine or incestuous children as long as the latter are submitted to the severity of an acknowledgment based on an uninterrupted possession of status and on concubinage, because in real life, under the established social order, those statuses if produced, are not consolidated, and if consolidated are not openly manifested so that the adulterine or incestuous children may derive benefit therefrom, the requirement of said proof actually constituting a denial of the right granted by Act No. 229 to investigate their origin.

Our generation has the duty of eradicating traditions and precedents which are archaic in our age because they are not up to the actual state of our collective conscience nor are they up to the progressive development of our judicial philosophy. The right of adulterine or incestuous children to filiation under Act No. 229 should be predicated on the investigation of paternity through any legitimate means of proof as said Act naturally implies; but never on public admissions of paternity, as required in the possession of status, or in public relations of adultery, which as regards the children, is required to prove concubinage.

The sense of injustice which sometimes disturbs the conscience in its search for truth and which as an active, spontaneous source of law contributes its current to the juridic stream, makes a practical working difference in courts upon becoming an adequate criterion to reach a true sense of justice in the judicial controversies. Cahn, The Sense of Injustice, 11, 31. It would not be fair to deprive an adulterine or incestuous child from his filiation under Act No. 229, because he is not able to prove judicially the improbable fact that his father confessed or publicly admitted his paternity or publicly proclaimed his crime. Laws are made by men and are construed for men. Therefore, in their interpretation, the reality of human life must predominate and not the dogmatic abstraction of eternal and invariable rules and much less the standards of social discrimination already repudiated by the fundamental law of the state even if prospectively. See, Max Radin, Law of Logic and Experience, p. VIII, 46, 160 et seq.;, Cardozo, Growth of the Law, pp. 87 et seq. and The Paradoxes of Legal Science, p. 31 et seq. Pound, Contemporary Juristic Theory, pp. 11, 17 et seq.; Garlan, Legal Realism and Justice, p. 13 et seq. In this age of social justice we must march towards the humanization of justice and of law, leaving behind in its rigorous decadence the dogmatic sense of law and of justice.

The scope of Act No. 229 must be fixed in order to give viability to the essential purpose of the legislator, placing emphasis in the social welfare as conceived by “the social sense of justice . . . immanent in the common mind,” since “Perhaps the most significant advance in the modern science of law is the change from the analytical to the functional attitude. The emphasis has changed from the content of the precept and the existence of the remedy to the effect of the precept in action and the availability and efficiency of the remedy to attain the ends for which the precept was devised,” Cardozo, The Nature of Judicial Process, p. 72 et seq., and having in mind that “A thing which is within the spirit of a statute is within the statute, although not within the letter; and the thing within the letter is not within the statute, unless within the intention.” In re Lambrecht (Mich.) 100 N. W. 606; Common Council v. Rush (Mich.) 46 N. W. 951; cf. § 19, Civil Code, 1930 ed. In so doing we would not be legislating, we would not be even traveling beyond the walls of the “interstices,” Cardozo, op. cit., pp. 98, 113 et seq.

It is my opinion that Act No. 229 has substantially modified § 125 of the Civil Code, incorporating thereto those means of proof permitted until then in the investigation of the paternity of an illegitimate not natural child. In other words: it broadened the scope of the juridical consequences of the judicial investigation of paternity, allowed for the illegitimate children not having the status of natural under § 129 of the Civil Code,6 in connection with § 128 of the same legal body, prior to Act No. 229, in the civil action for support, and that after the enactment of said law and under it, should be permitted to all illegitimate — now “natural” children — in the action of filiation. This is so because although they are called “natural,” the adulterine of incestuous children continue being' such, and the judicial investigation of the natural paternity authorized by paragraph 4 of § Í25 of the Civil Code, “When the child may present any authentic evidence of his paternity,” is not nor can it be an adequate means for the investigation of the illegitimate paternity of not natural children which by necessary implication is the one authorized by Act No. 229. The legislator was aware of the state of our jurisprudence interpretative of § 129 of the Civil Codé,7 and upon making the illegitimate not natural children acquire the legal status of “natural,” evidently they also acquired the means of proof provided by the aforesaid § 129 for the investigation of the paternity of illegitimate children not having the status of natural. Therefore, that requirement having been fulfilled and the paternity in this case satisfactorily proved, I vote for the affirmance of the judgment, independently of the insufficiency of the evidence of concubinage arid possession of status. The social purpose of Act No. 229 and the state of that jurisprudence — source of authority for the investigation of the paternity of illegitimate not natural children — make the former conclusion inescapable. To interpret Act No. 229 differently is to perpetuate the actual juridical contradiction —rather a juridical monstruosity — that the paternity having been judicially established, and the impediment for his filiation having disappeared, the child is not entitled to have a father, even though as such father he is ordered to support him: the child has support but has no name; parenthood is established by the judicial power, but such a parenthood carries no juridical consequences, because the State protects that “supernatural and miraculous entity . . . which may only be known when he deigns to descend from the throne of sexual passion and moved by pity or by mercy, he anoints the head of his child with the precious unction of filiation” 1 Scaevola, Jurisprudencia del Código Civil 357. Not to convey that meaning to Act No. 229, but to insist, instead, in the inexorable application of § 125 of the Civil Code — ■ which was inspired by the conservative social philosophy of § 135 of the Spanish Civil Code, and predicated in turn on the voluntary acknowledgment and the prohibition of the investigation of paternity — is to shut our eyes to the social reality of the law. The following words from Mr. Justice Frankfurter in his dissenting opinion in Pope v. Atlantic Coast Line Railroad Co. 345 U. S. 379, 392, 97 L. ed. (Advanced pp. 719, 726), seem to be written for the occasion: “To disregard the natural implications of a statute and to imprison our reading of it in the shell of the mere words is to commit the cardinal sin in statutory construction, blind literalness.”

The rights of the adulterine or incestuous children born in Puerto Rico in the decade of 1942 to 1952 under Act No. 229 — which decade penetrates into the second half of the Twentieth Century with a clear and deep sense of the rights of man — should not be submitted to the severity of a philosophy of privilege of birth which, in a manifest denial of the principles of human equality, was inspired by the Spanish legislation on the second half of the Nineteenth Century. In order to impart concretion of reality to those rights they must be measured by the standards of social justice which inspire the Puerto Rican legislation at present. The imperative social function of justice demands it.

1 Section 1 of Article II of the Constitution of the Commonwealth of Puerto Rico — Bill of Rights — provides: “The dignity of the human being is inviolable. All men are equal before the law. No discrimination shall be made on account of race, color, sex, birth, social origin or condition, or political or religious ideas. Both the laws and the system of public education shall embody these principles of essential human equality.” (Italics ours.)

As set forth in the Report of the Committee of the Bill of Rights of the • Constitutional Convention, submitted on December 14, 1951, “The purpose of this section is to indicate clearly as a consubstancial basis of everything that follows the principle of the human dignity and, as a consequence thereof, the essential equality of man within our constitutional system. Equality before the law predominates over accidents or differences, whether they emanate from nature itself or from culture. Any discrimination or privilege in violation of this essential equality is repugnant to the system of law of Puerto Rico. Insofar as necessary, our legal system is hereby buttressed by this constitutional provision, as well as bound to enhance its provisions to accomplish fully the purpose of this section.” By specific prohibition of discrimination by reason of birth, according to said report, “It is intended to eliminate the juridical stigma against children born out of wedlock. All children, are guaranteed equal rights with respect to their parents and with respect to the juridical order. Illicit relations may and should be forbidden and this provision shall tend to discourage them. But the innocent offspring should come to the world free of juridical disqualifications or inferiorities. It is thus required by the principle of individual responsibility, pursuant to which no one is to blame for the acts which he himself did not perform. Although the present legislation already embraces most of the provisions herein set forth, new laws must be enacted. For inheritance and property purposes future amendments to this section shall not be retroactive to births prior to its effectiveness.” (Italics ours.)

2 As regards the juridical effect of § 1 of Article II of the Constitution, the President of the Committee of the Bill of Rights of the Constitutional Convention, Mr. Jaime Benitez, stated the following, in the debates which in connection with the report of the Committee took place on January 2, 1952:

“Mr. Benitez: Further on in the fifth, sixth and seventh line it is stated that ‘both the laws and the system of public education shall embody these principles of essential human equality,’ and what has been established herein are certain basic and essential principles that have force ‘expropio-vigor6,’ but that besides having force of their own shall require completion of two kinds, educational and juridical. As regards the educational completion, there is already here an order to the public system of education which shall be ruled by these basic principles. As regards the juridical system and this íefers to the whole legal structure of the country, the unconstitutionality of any favoritism, is underlined. And any acknowledgment or distinction shall be prompted by merit, by virtue, by effort or by talent. As to what is meant by social origin, it means that no matter the person’s descent, his economic situation and his position in the community, all the Puerto Ricans and all the persons subject to the laws of Puerto Rico are equal before our laws, if this provision is approved, and any attempt towards discrimination in favor or against a citizen is illegal.” (Italics ours.) Journal of the Proceedings, Constitutional Convention of Puerto Rico, p. 524.

This was not the case in Spain when the Constitution of the disappeared Republic was approved on December 9, 1931. The merely “programmatic” precept, of its § 43, to the effect that “The civil laws shall regulate the inquiry into paternity,” did not have the effect of repealing or interrupting ipso jure the precepts of the Civil Code connected with filiation. Judgments of the Supreme Court of Spain of March 11, 1940 and of January 29, 1935. The aforesaid § 43 contains, besides, the following precepts connected with the obligation of the parents to their children and the establishment of the legitimacy or illegitimacy of the latter:

“The parents are bound to support, assist, educate and instruct their children. The state shall see that these duties are fulfilled and subsidiarily binds itself to their execution.

“The parents shall have the same duties for the children born out of wedlock as for those born from marriage.

“No statements regarding the legitimacy or illegitimacy of the births or the civil status of the parents shall be set forth in the birth record or in actions of filiations.” Constitución de la República Española, Enciclopedia Jurídica Española, Appendix 1931, First Edition, pp. 250, 255. <

3 Once the equality of rights of the children was established in principle by our Constitution — fundamental law of the State — Act No. 17 was approved on August 20, 1952 “To establish the equality of rights of children” retroactively to July 25 of that same year.

4 The Commission of the Bill of Rights of the Constitutional Convention seems to have so understood it upon affirming, see footnote 1, that “the present legislation already embraces most” of the provisions on the prohibition of the discrimination by reason of birth. Of course, the only thing left was to eliminate the juridical inferiority of the children born out of wedlock, since Act No. 229 had already done so as to illegitimate children who are not natural children with respect to the natural ones.

5 Said Section insofar as pertinent provides:

“Natural children are those born out of wedlock, from parents who at the moment when such children were conceived or were born, could have intermarried with or without dispensation.

“The natural child may be recognized by the father and mother conjointly or by one of them only either in the record of birth or in the testament or in any other public instrument.

“The father is obliged to recognize the natural child:

“1. When there exists an indubitable statement in writing of the father wherein he expressly acknowledges his paternity.

“2. Where the child has uninterruptedly enjoyed the condition as of a natural child of the defendant father justified by acts of the same father or of his family.

“S. When the mother was known to have lived in concubinage with the father, both during her pregnancy and at the time of the birth of the child.

“4. When the child may present any authentic evidence of his paternity. . . .”

6 The afore-cited Sections provide:

“Section 128. — The illegitimate children lacking fhe lawful qualification of natural children are only entitled to such support from their parents, as is prescribed in Section 143.”

“Section 129. — The right to the support mentioned in the preceding Section can only be exercised:

“1. — Where the paternity or maternity is inferred from a final judgment rendered in a criminal or civil action.

“2. — Where the paternity or maternity is shown by a indubitable document from the father or mother wherein the filiation is expressly recognized.”

7 Rivera v. Cardona, 56 P.R.R. 786; Cerra v. District Court, 67 P.R.R. 872; see People v. Rohena, 52 P.R.R. 301; People v. López, 54 P.R.R. 279; People v. Rotger, 55 P.R.R. 133; People v. Pérez, 55 P.R.R. 655; People v. Rodríguez, 67 P.R.R. 688; People v. Ramos, 61 P.R.R. 322; Rodríguez v. Cruz, 68 P.R.R. 696; People v. López, 67 P.R.R. 732; Sánchez v. District Court, 64 P.R.R. 456.