Fitzsimmons v. Leon

• Decision Date: 06 April 1944
• Docket Number: No. 3899.,3899.
• Citation: 141 F.2d 886
• Parties: FITZSIMMONS, Auditor, et al. v. LEON.
• Court: U.S. Court of Appeals — First Circuit

141 F.2d 886 (1944)

FITZSIMMONS, Auditor, et al. v. LEON.

No. 3899.

Circuit Court of Appeals, First Circuit.

April 6, 1944.

Robert E. Sher, of Washington, D. C. (M. Rodriguez Ramos, Acting Atty. Gen. of Puerto Rico, and Monroe Oppenheimer, of Washington, D. C., of counsel), for appellants.

Hector Gonzalez-Blanes, of San Juan, P. R., for appellee.

Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.

WOODBURY, Circuit Judge.

Manuel Leon Parra, the appellee, petitioned the Insular District Court for the Judicial District of San Juan for a writ of mandamus directed to the Auditor and Treasurer of Puerto Rico ordering them respectively to authorize the payment of, and to pay him, the sum of $1,365, that being the aggregate of amounts which he alleged had been unlawfully deducted from his salary as a member of the Industrial Commission of Puerto Rico during the fiscal years 1932-1933, 1933-1934, and 1934-1935. The district court dismissed his petition, and he appealed to the Supreme Court of Puerto Rico. That court reversed and the Auditor and Treasurer thereupon took this appeal to us. The facts not of record are stipulated.

The Legislature of Puerto Rico by Act No. 40 of 1929 (Laws of Puerto Rico, 1929, p. 222), established an Industrial Commission in the Department of Agriculture and Labor. Section 1 of this Act provides that this commission "shall be composed of three commissioners appointed by the Governor of Puerto Rico on recommendation of the Commissioner of Agriculture and Labor, with the advice and consent of the Insular Senate;" that "One of said commissioners shall be designated as chairman by the Governor of Puerto Rico;" that "the term of office of the commissioners shall be three years, and until their successors have been legally appointed and have qualified" and that "The chairman shall receive a salary of four thousand five hundred (4,500) dollars a year, and the two commissioners a salary of three thousand five hundred (3,500) dollars a year each."

In compliance with this Act, and four days after he had approved it, the Governor of Puerto Rico on April 29, 1929, appointed the petitioner (by recess appointment) to the commission and on June 25, 1929, the Senate confirmed. Upon appointment the petitioner qualified and entered upon his duties. He does not deny that he was paid the salary called for by the Act through the month of June, 1932. With this as background we come to the events which gave rise to the present litigation.

On April 15, 1932, the Puerto Rican Legislature passed an act making appropriations for the Industrial Commission for the ensuing fiscal year (July 1, 1932, to June 30, 1933) and adjourned. Section 1 of this Act contained an appropriation of $3,500 for the salary of each of the two members of the commission. It was submitted to the Governor and on May 13 he signed it but with this notation:

"Government House — Puerto Rico — San Juan, Puerto Rico, May 13, 1932. — By virture of the authority vested in me by Section 34 of the Organic Act of Puerto Rico, the following items and parts or portions thereof of House Bill No. 232, making the appropriations necessary for the operation of the Industrial Commission during the fiscal year 1932-33, are hereby objected to by the undersigned:

"Line 17 — eliminate `3,500' and insert `3,150'."

Then, on June 15, 1932, the petitioner's term of office having expired, the Governor reappointed him and on July 4 following the Senate confirmed. He qualified and served for another three year term.

The next year substantially the same events occurred with respect to appropriations for the commission for the fiscal year 1933-34, only this time the Governor reduced the appropriation for the salary of each member of the commission from $3,500 to $2,992.50. In a similar appropriation act for the fiscal year 1934-35, the Legislature itself fixed the salary for the office held by the petitioner at $2,992.50 and the Governor approved that figure without modification.

The questions raised are: (1) Whether the Governor, acting under the veto power conferred upon him by § 34 of the Organic Act of Puerto Rico, can reduce an appropriation by the Legislature for the petitioner's salary which appropriation is in the amount fixed by a prior statute for the office held by the petitioner, and (2) Whether the Legislature itself can, in spite of another provision of the same section of the Organic Act, reduce the petitioner's salary during his term of office. We think that both of these questions must be answered in the negative.

In paragraph 1 of § 34 of the Organic Act of Puerto Rico (39 Stat. 961, 48 U.S.C.A. § 825) it is provided that: "If any bill presented to the governor contains several items of appropriation of money, he may object to one or more of such items, or any part or parts, portion or portions thereof, while approving of the other portion of the bill." From these words the intention of Congress to empower the Governor to scale down as well as to disapprove items in appropriation bills is clear, but to avoid a grave constitutional question and in view of the nature of the veto power itself, we do not feel that they should be construed as broad enough to empower the Governor to scale down an item in an appropriation bill appropriating money to pay the full amount of a salary as fixed by prior legislation.

In exercising the veto power it is generally said that the executive is exercising a legislative power (see Commonwealth v. Barnett, 199 Pa. 161, 48 A. 976, 55 L.R.A. 882; Cammack v. Harris, 234 Ky. 846, 29 S.W.2d 567; Wood v. State...