De Castro v. Board of Com'rs of San Juan

• Citation: 136 F.2d 419
• Decision Date: 14 June 1943
• Docket Number: No. 3796.,3796.
• Parties: DE CASTRO v. BOARD OF COM'RS OF SAN JUAN.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

136 F.2d 419 (1943)

DE CASTRO v. BOARD OF COM'RS OF SAN JUAN.

No. 3796.

Circuit Court of Appeals, First Circuit.

June 14, 1943.

Hugh R. Francis and Gabriel de la Haba, both of San Juan, Puerto Rico, for appellant.

F. Fernandez Cuyar and H. Gonzales Blanes, both of San Juan, Puerto Rico, for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

MAGRUDER, Circuit Judge.

On January 4, 1937, the Board of Commissioners of San Juan (the newly elected members of which took office on that day) appointed Carlos M. de Castro, appellant herein, as city manager of the Capital of Puerto Rico. Pursuant to § 22 of Act No. 99, Laws of Puerto Rico (1931) pp. 638-640, the said Board of Commissioners, after hearing upon charges, removed de Castro from office on April 5, 1939. The District Court of San Juan upheld the Board. On appeal the Supreme Court of Puerto Rico reversed the judgment of the district court and directed appellant's reinstatement. The Supreme Court's judgment which was rendered June 28, 1940, read as follows: "For the reasons set forth in the foregoing opinion, the judgment appealed from, which was rendered by the District Court of San Juan on August 21, 1939, is hereby reversed, and in its stead a new one rendered, annulling Ordinances No. 370, of January 5, 1939, and No. 373, of April 5, 1939, which decreed the suspension and removal of the city manager, and in consequence thereof, ordering the reinstatement of the petitioner Carlos M. de Castro in his office of city manager, said reinstatement to date back from January 5, 1939, when the petitioner was suspended from office and pay."

An appeal was duly allowed, and on July 30, 1940, the court below approved a supersedeas bond. This court affirmed the judgment of the Supreme Court of Puerto Rico on January 10, 1941. Board of Commissioners of San Juan v. De Castro, 1 Cir., 116 F.2d 806. Certiorari was denied on October 13. 1941, 314 U.S. 614, 62 S.Ct. 61, 86 L.Ed. 495.

Shortly after our mandate went down to the Supreme Court of Puerto Rico the Board, on October 27, 1941, filed in that court a motion to stay the execution of its judgment of June 28, 1940 (which we had affirmed) insofar as it ordered the reinstatement of appellant, on the ground that meanwhile appellant's term of office as city manager had expired.

Appellant filed an opposition to this motion, and after a hearing thereon, the Supreme Court of Puerto Rico on January 14, 1942, entered its judgment, from which the present appeal is taken reading as follows: "For the reasons set forth in the foregoing opinion, the motion filed by the Board of Commissioners of San Juan on October 27, 1941, is granted, and in consequence thereof the execution of the judgment of this court of June 28, 1940, is stayed insofar as it decrees the reinstatement of petitioner Dr. Carlos M. de Castro in the office of city manager of the capital because the term for which he was appointed expired in February, 1941."

If the court below was correct in its conclusion that appellant's term of office expired at some time subsequent to its judgment of June 28, 1940, ordering appellant's reinstatement, we think it is manifest that that court had jurisdiction to stay the execution of its judgment insofar as it decreed reinstatement, despite the fact that the said judgment had been affirmed by this court. See Puerto Rican Code of Civil Procedure, § 7, subdivision 8. Appellant urges that the issue as to his tenure of office had become res judicata in his favor, because in his brief before the Supreme Court of Puerto Rico at the earlier hearing he had advanced the contention that the city manager holds office during good behavior. But that court in its opinion of June 28, 1940, did not go into the question of the tenure of the office at all, and did not need to, because at that time appellant's four-year term, which the Board claims was the extent of his tenure, had not expired. Certainly, when we affirmed on the previous appeal we had no idea that we were passing on the tenure of the office. We affirmed a judgment holding that appellant had been improperly removed and ordering his reinstatement. How long appellant should retain his office after reinstatement was quite another question. When the Supreme Court of Puerto Rico, upon remand from us, regained jurisdiction over its judgment of June 28, 1940, a new situation was then presented. It was then inappropriate, if appellant's term of office had meanwhile expired, for the Supreme Court of Puerto Rico to carry into execution its decree of reinstatement.

This brings us to the merits, the question whether under the applicable statute the city manager holds office for a life tenure (during good behavior), or as contended by the Board, for a definite term of four years coincident with the four-year terms of the members of the Board which appointed him.

Act No. 99 of the insular legislature approved May 15, 1931, established a special government for the body politic to be known as the "Capital of Puerto Rico". Relevant portions of this Act, Laws P. R. (1931) p. 626, and of amendatory Act No. 10, Laws P. R. (1937) p. 131, are copied in the footnote.¹

The legislative powers are conferred upon a governmental body known as the "Board of Commissioners of San Juan". As originally constituted by § 9 of the Act, this was a continuing body, composed of five commissioners, appointed by the Governor and confirmed by the Senate, with staggered terms, the term of one commissioner expiring each year. Section 50 of the Act, however, provided that at the general elections in 1936 and every four years thereafter the commissioners should be elected by popular vote, the commissioners previously appointed by the Governor under § 9 to hold office until the first Monday in January, 1937. Act No. 10, approved March 24, 1937, increased the membership of the Board by providing that the Governor should forthwith appoint, with the advice and counsel of the Senate, four additional commissioners to serve with the five commissioners who had been elected in 1936. For the future it was provided that the nine members of the Board should take office on the second Monday in February following each general election, which seems to imply that the four appointed commissioners are to hold office for four years, as in the case of those elected by popular vote.

Section 10 creates the offices of city manager, treasurer, director of public works, director of health and charities, school director, auditor and secretary of the Capital.

Section 21 provides that the city manager shall be the chief executive of the Capital; "he shall be appointed by the Board of Commissioners created by this Act and shall hold office during good conduct." Italics ours. Procedure for removal of the city manager by the Board "for just cause" after hearing is set forth in § 22.

Section 26 provides that the city manager shall appoint the various departmental heads previously mentioned, except the auditor. No specific provision is made as to the tenure of these officers so appointed by the city manager, but § 27 provides that they may be removed by the city manager, for just cause after hearing, the removal provisions being the same as those empowering the Board to remove the city manager.

Section 36 provides that the auditor shall be appointed by the Board of Commissioners. No specific provision is made as to the auditor's term of office; but he also may be removed by the Board for just cause after hearing.

It is to be observed that the legislature has dealt in various ways with the tenure of officers and employees of the city government. The commissioners have fixed terms of years. Of the two officers to be appointed by the Board, the city manager "shall hold office during good conduct"; the auditor's tenure is not stated. Nor is any tenure stated for the other offices to which the city manager has the appointing power. "Employees" are appointed for the term of the appointing officer.

Act No. 99 supersedes, so far as concerns the capital city, the Municipal Law of April 28, 1928, Laws, P.R.(1928) No. 53, p. 334, under whch the chief executive was a mayor, elected for a fixed term, though subject to impeachment by the municipal assembly. Appellant contends that the legislature, in providing that the city manager should hold office "during good conduct," evidenced a clear and unambiguous purpose to introduce experimentally in the city of San Juan a new type of city government, under which the chief executive or city manager would hold office during good behavior "without being tied to the whims and uncertainties of partisan politics."

The court below, however, reached the conclusion that "the tenure of office of the city manager of the capital is that of four years, provided that during the same he observe good behavior."

It is difficult for us to see how § 21 could mean anything different in 1937, and thereafter, from what it meant in 1931, when the new form of government was instituted. There is no basis for saying that the first city manager, appointed in 1931, held a four year term, for at that time the tenure of office of the commissioners themselves was not four years, and their terms were staggered so that only one of the five commissioners went out of office each year.

But passing that difficulty, suppose it had been provided from the outset that the whole body of commissioners should be elected by popular vote every four years, as § 50 provided for 1936 and thereafter. It might then be implied that the auditor, whose tenure is not specifically stated, holds office during a four year term, coinciding with that of the commissioners. The only other alternative would be (1) that the auditor holds office at the pleasure of the Board, which would seem to be contrary to the implication of the further provision that the auditor is removable by the Board for just cause, after notice and hearing,² or (2) that the auditor...