dissenting.
San Juan, Puerto Rico, September 29,1972
With the votes of four colleagues, the Court considers that the petition for mandamus should be considered as a petition for declaratory judgment and, thus considered, it declares itself without jurisdiction.
I dissent. The petition raises the question of whether the constitutional right of the citizen in the exercise of the electoral prerogative — to act as challenger of a polling place— may be restricted by legislation because of the mere fact that such citizen discharges an office paid by the Government of the United States. Section 48a of the Election Law, 16 L.P.R.A. § 173. The great public interest to have this serious contention decided now should not be doubted. It is a question not only of the basic right of the citizen to enjoy the guarantee and protection in the exercise of the electoral prerogative, but also of the fundamental right to the equal protection of the laws, right which, from the face itself of the section of the law challenged, seems to have been equally denied to petitioner.
The Election Law provides (16 L.P.R.A. § 171) that the officers of polling places — inspectors, secretaries, and challengers — shall be appointed prior to twelve o’clock noon of the 1st day of October of the election year. The problem raised demands a prompt and final decision. We will not be running *842a risk by asserting that it would not be attained in the manner in which the majority has disposed of this question.
The authority of this. Court to entertain petitions for mandamus in first instance should not be doubted. 32 L.P.R.A. § 3421. And the requirements which we have demanded in the past are present in the instant case: (a) the petition is directed to a high officer of the government as is the General Supervisor of Elections, (b) questions of great public interest are raised, and (c) the problem demands a prompt and final solution. Dávila v. Gen’l Supervisor of Elections, 82 P.R.R. 257 (1960).
In judging the availability of the remedy and the procedural vices which it may have, we should not disregard the facts and the merits of the case and the urgency with which it deserves to be decided. It would be worthwhile to remember the provision of law which says:
“The Supreme Court of Puerto Rico shall hereafter [1903] be a court of appeals and not a court of cassation. In its deliberations and decisions, in all cases, civil or criminal, said court shall not be confined to the errors in proceeding- (procedure) or of law only, as they are pointed out, alleged or saved by the respective parties to the suit, or as set fourth (forth) in their briefs and exceptions, but in furtherance of justice, the court may also take cognizance of all the facts and proceedings in the case as they appear in the record, and likewise consider the merits thereof, so as to promote justice and right and to prevent injustice and delay.” 4 L.P.R.A. § 36.
I have taken as a basis the Constitution and justice as supreme values for which the proceeding should constitute an instrument and not a straightjacket. I think that the decision of the Court is forcing petitioner to follow a procedure which is so slow that it would probably turn out to be ineffectual. It wouldn’t be surprising that petitioner would be bound to resort to the federal courts, which in view of the serious constitutional contentions and of the absence of an effective local *843proceeding, would probably agree to decide this important question of Puerto Rican law.
■ For that reason I have voted for the issuance of the writ of mandamus.