dissenting.
San Juan, Puerto Rico, July 14,1967
I wish to briefly state the grounds for my dissent.
The complaint of the jockey Eddie Belmonte in this case —whose allegations of fact should be taken as true for the purposes of defendants’ motion to dismiss — was dismissed by a decision entitled Judgment which reads thus:
“After examining the complaint in the manner most favorable to plaintiff, and in view of the provisions of § 9 of the Racing Act of Puerto Rico, Act No. 149 of July 22, 1960, the motion to dismiss is granted since the plaintiff has not exhausted the administrative remedy. Moreover, the plaintiff not having appealed to this Court by way of certiorari as provided by said § 9, the adjudication made by the racing jury or the Racing Administrator in his case, constitutes res judicata.”
However, the stenographic transcript containing the argument of the parties on the motion to dismiss, shows that the trial court, in open court, granted said motion stating the following: “The court grants the motion to dismiss on any of the first two grounds set forth therein.”
The first two grounds adduced in the aforesaid motion to dismiss were the following:
“1. The complaint does not set forth a claim which justifies the granting of a remedy.” and
“2. The punishment imposed on plaintiff having been complied with the claim is academic.”
A third ground, to which the court did not refer in granting the motion to dismiss in open court was: “The plaintiff has not exhausted the administrative remedy.”
T consider erroneous the order or judgment of the trial court granting the motion to dismiss on any of the foregoing grounds, in open court as well as in its order or judgment above-copied. Likewise I consider erroneous the holding of this Court to the effect that “the applicable administrative *258remedy was not properly exhausted” referring to the fact that Belmonte did not request timely the reconsideration of the Racing Board declaring itself without jurisdiction to take cognizance of an appeal brought by Belmonte from the suspension of 10 days imposed on him by the Racing Administrator; and that he did not appeal to the Superior Court by way of certiorari from the decision of the Racing Board within the term of 15 days after service of notice of the aforesaid decision.
Belmonte was not entitled to appeal before the Racing Board from the suspension of 10 days imposed on him by the Racing Administrator, since such appeal is authorized by the Racing Act, § 8 (15 L.P.R.A. § 188), only when the suspension is for a term of one month or more. The Court itself in its opinion accepts that the Racing Board acted correctly in declaring itself without jurisdiction for that reason. Therefore Belmonte was not entitled to the administrative remedy of appeal before the Racing Board, nor did he have to exhaust the requirement of the administrative proceeding of filing any motion for reconsideration, nor was he entitled to the remedy of certiorari provided by § 9 of the Act, 15 L.P.R.A. § 189, to review a final resolution of the Racing Board as to errors of law. His punishment not being one of a suspension of 30 days or more, the Racing Board was not empowered or did not have jurisdiction to grant him any remedy, and consequently, Belmonte did not have to exhaust any administrative remedy in search of a remedy which was not available to him. Therefore the ground that Belmonte did not exhaust the administrative remedy of reconsideration of the decision of the Racing Board, or that he failed to file the petition for certiorari before the Superior Court within the term specified by law, are not grounds valid at law for dismissing his complaint.
Nor is the ground valid that Belmonte’s judicial action was. academic because the punishment imposed had been *259complied with. From the facts alleged in the complaint it appears that notice of the decision of the Racing Administrator imposing on him a punishment of 10 days beginning on May 13, 1964, was served on him the same day on which the punishment expired. I do not see how that ground could be invoked against Belmonte, when the alleged compliance thereof does not arise from a voluntary act of the person punished, but it arises as a consequence of the proper action of the Racing Administrator fixing the extension of the punishment until the very day on which it expired from the time it was made effective on May 13.1 Belmonte did not have the statutory remedy of review against the decision of the Racing Board nor against the action of the Administrator imposing on him a suspension of 10 days. Therefore, not by way of statutory review, but because he challenged actions which he considered arbitrary, it was appropriate for the trial court to entertain the judicial action brought by Belmonte, for, irrespective of the power vested on the jury or Racing Administrator to impose suspensions of less than one month without statutory review, the fundamental question which appears from the allegations of his complaint centers on whether the phrases attributed to Belmonte with respect to the jury, at the races of May 10, constituted a violation of subsections 20 and '21 of § 1001 of the Racing Regulations, that is, “to act toward or address in a vulgar *260dr coarse way-or'to be: disrespectful to any official or employee of the Administration,” subsection 20, and “to‘make statements which are false and detrimental to the horse racing sport and the making of such statements about-persons connected with the same,” -subsection 21; or whether the statements attributed to Belmonte did not constitute Such violation, which is admitted by this Court in its opinion, footr note 8, in stating “we are the first to admit that the' phrases attributed to petitioner are not in any way detrimental to the racing sport and that they were rather the expression of petitioner’s spontaneous reaction before actions of the jury from which he dissented.”
It is easy to note that if the statements attributed , to Belmonte did not constitute a violation of subsections 20 and 21- afore-cited, the same could not give rise to a punishment, and under such conditions, it being possible that Belmonte’s right of freedom of speech might be involved in the investigation which the jury was to make of such statements (on a subsequent date to the 10th on which the races were held), it was not unusual for Belmonte to request a hearing before the jury-on the 17th accompanied by counsel (which was denied), for apart from the importance of Belmonte’s right which might be injured, it was not a question of an investigation by the jury at the same time that the races were being held, which because, of its nature -and for practical reasons should be brief, but of an investigation not directly related to the development of the races in' itself and which would not interrupt the development thereof.
The risk that the doors of courts be closed to the examination of the actions of administrative officers, which have their source in concepts of the right of speech which might be erroneous, is not saved by the fact that' Belmonte was punished for his' failure to appear before the jury in the investigation which the latter intended to carry out of the statements he had made and not of the statements themselves. It should be examined, in my opinion, whether under *261the circumstances of this case Belmonte’s failure to appear before the'jury was unjustified and whether the punishment imposed on him by the Racing Administrator was in effect for an act of “open lack of discipline,” or whether a reasonable action of the jockey for the protection of his rights is involved mot justifying the punishment finally imposed on him by the Administrator. That could only be determined after hearing the evidence which Belmonte offered to introduce before the trial court to support his allegations. Without prejudging a decision on the merits, I believe that Belmonte is entitled to his day in court.
According to the facts alleged in the complaint it was during the races held on May 10 of that year that the original incident occurred (see footnote 1 of the opinion of the Court), on which date Belmonte filed a claim of foul before the members of the jury who dismissed it and declared the finish official, thereafter upon going to the jockeys’ room, Belmonte had a wrangle with the jockey who, according to him, had obstructed him, as a consequence of which a suspension of 3 days was imposed on Belmonte.
I must assume that Belmonte complied with the punishment of 3 days of suspension imposed on him on account of the aforesaid wrangle, and that therefore the subsequent suspension of 10 days was imposed on him by the Racing Administrator as of May 13, that is, after the first suspension of 3 days had been complied with.