Gelpi v. Tugwell, 3648.

• Decision Date: 14 November 1941
• Docket Number: No. 3648.,3648.
• Citation: 123 F.2d 377
• Parties: GELPI v. TUGWELL, Governor.
• Court: U.S. Court of Appeals — First Circuit

123 F.2d 377 (1941)

GELPI v. TUGWELL, Governor.

No. 3648.

Circuit Court of Appeals, First Circuit.

November 14, 1941.

Ismael Soldevila, of San Juan, P. R. (Jose Rafael Gelpi, of Mayaguez, P. R., on the brief), for appellant.

William Cattron Rigby, of Washington, D. C. (George A. Malcolm, of San Juan, P. R., and Nathan R. Margold, of Washington, D. C., on the brief), for appellee.

Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.

WOODBURY, Circuit Judge.

This appeal is from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the Chief Justice of that court sitting in vacation denying the plaintiff's petition for a writ of mandamus. The jurisdiction of this court is predicated upon certain federal questions raised and considered in the court below.

The Governor of Puerto Rico on April 17, 1936, appointed the plaintiff for a term of four years to the office of secretary of the District Court of Mayaguez. By executive order on August 12, 1938, he removed her from that office as of April 25 of that year. The plaintiff thereupon petitioned, as above described, for a writ of mandamus alleging therein that she had been illegally removed from office and praying that: "a peremptory writ of mandamus be issued against the Governor of Puerto Rico ordering him to reinstate the petitioner as secretary of the Mayaguez District Court."

The plaintiff's appeal must be dismissed.

She makes no claim for damages either as measured by the salary withheld from her during the remainder of her term of office or as measured in any other way, nor can she do so in this proceeding under the rule of Belaval v. Todd, 24 P.R. 24, 765. Her only prayer is for reinstatement in office. But, since her term of office expired over eighteen months ago and we cannot assume that she is still entitled to it as a holdover (Tennessee v. Condon, 189 U.S. 64, 70, 23 S.Ct. 579, 47 L.Ed. 709), it is now impossible, even if we should be of opinion that her claim was meritorious, to grant her this relief. Our duty in the premises was pointed out by the Supreme Court of the United States in the case of Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, in the following language:

"The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal."

The above case has been quoted from and cited with approval by the court which rendered it many times since. Tennessee v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709; Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 48 L.Ed. 913; Security Life Ins. Co. v. Prewitt, 200 U.S. 446, 26 S.Ct. 314, 50 L.Ed. 545; Blackman v. Stone, 300 U. S. 641, 57 S.Ct. 514, 81 L.Ed. 856. The situation of the plaintiff is not altered by her prayer for costs, Tennessee v. Condon, supra, and we fail to see how the civil disabilities, if any, which may be imposed upon her because of her removal from office (Laws, P.R. (1931), pp. 600, 608), can render it possible for us to grant the impossible relief for which she asks.

Since appellant, without fault on her part, is prevented from obtaining a review of the judgment below merely because, from intervening events, the appeal has become moot, that judgment will not become res judicata on the issues involved, in any subsequent litigation based upon a different cause of action. Appellant will be free to attack collaterally the executive order of removal, either in a suit for salary, or in an appropriate proceeding to test her eligibility to hold certain civil offices should she later aspire thereto.

The appeal is dismissed.

MAGRUDER, Circuit Judge (dissenting).

It does not seem to me that this appeal should be dismissed on the ground that it has become moot. Counsel for the Governor, at the oral argument before us, disclaimed any such contention.

The petition alleges on various legal points that the Governor's executive order of removal is null and void, and therefore asks the court below to issue a peremptory writ of mandamus. The necessary preliminary to granting such a writ is an adjudication that the order of removal is void and of no effect. Appellant's statutory term of office has now elapsed, so it is too late for a court to order her reinstatement. But though the affirmative relief of reinstatement is no longer available, it does not follow that a judgment or decree vacating the executive order would be inappropriate. For two reasons, such a judgment would not be a decision on a mere academic or abstract issue: (1) It would settle appellant's right to recover her salary for the balance of the term. The order of removal being vacated, the fiscal officer of the insular government whose duty it is to pay the salary would no longer have any defense to a suit for its recovery. (2) It would settle her eligibility to hold certain other offices from which she would be disbarred by statute if she had been lawfully removed by the Governor "for delinquency or immoral conduct." Laws of P.R., 1931, No. 88, § 21, pp. 550-552; Laws of P.R., 1931, No. 98, §§ 18, 29, pp. 600 and 608.

In the leading case of Mills v. Green, 159 U.S. 651, 16 S.Ct. 132, 135, 40 L.Ed. 293, the plaintiff brought a bill in equity against a supervisor of registration to secure the right to vote at a forthcoming election of delegates to a constitutional convention. The circuit court of appeals reversed an order of the trial court granting an injunction and remanded the case to that court with directions to dismiss the bill. The plaintiff appealed to the Supreme Court, but shortly before this appeal had been taken the election had been held. The Supreme Court dismissed the appeal as moot because "no relief within the scope of the bill could now be granted." The case is clear; the delegates to the constitutional convention having already been elected, there remained to the plaintiff only an academic interest in the legal questions presented by his bill. It seems to me that this case is not at all controlling in the case at bar, for the reasons I have above indicated. Cf. Commonwealth v. Fleckner, 167 Mass. 13, 44 N.E. 1053; Barthelemy v. People, 2 Hill, N.Y., 248, 255; Masses Publishing Co. v. Patten, 2 Cir., 245 F. 102; Id., 2 Cir., 246 F. 24, L.R.A.1918C, 79, Ann.Cas.1918B, 999; 34 Harv.L.Rev. 416; Willis v. Buchman, 240 Ala. 386, 199 So. 892, 132 A.L.R. 1185.

The opinion of the court, in dismissing the appeal as moot, reserves to appellant the right to raise in subsequent litigation the same issues which she sought to have us pass on in the present case. I agree that if the appeal is to be dismissed on this ground it would be most unjust to leave the judgment below standing as res judicata; and I think that the doctrine of res judicata is sufficiently flexible to avoid such a harsh result. Cf. Blackman v. Stone, 300 U.S. 641, 57 S.Ct. 514, 81 L.Ed. 856. But it seems to me unfortunate to put upon appellant the burden of subsequent litigation when, as I see it, these issues are legitimately before us for decision now.

I shall briefly indicate my view on the merits.

Section 49 of the Organic Act, 39 Stat. 967, 48 U.S.C.A. § 873, vesting in the Governor the power of appointing the secretaries of the insular courts by and with the advice and consent of the Senate, does not by implication give the Governor an absolute power of removal. To that effect, see the able and exhaustive opinion of the Supreme Court of Puerto Rico in Jimenez v. Reily, 30 P.R.R. 582. By the saving provisions of §§ 40 and 57 of the Organic Act, 39 Stat. 965, 968, 48 U.S.C.A. §§ 861, 735, 736, Congress left in force so much of the Act of March 9, 1905, Laws of P.R., 1905, p. 120, as fixed a four-year term for the office of secretary and provided that the secretary "shall be subject to removal at any time by the Governor for cause shown." This Act of 1905 had been validly enacted by the legislature of Puerto Rico pursuant to the express authority of § 33 of the earlier Organic Act, 31 Stat. 84, 48 U.S. C.A. § 861 note. The Governor derives his power wholly from the statute, not from the Constitution of the United States. His power of removal has been limited by the conjoint effect of the Organic Act and the legislative act of 1905. This conclusion I would arrive at, whether the secretary of the court is the kind of officer whom the President of the United States would have unrestricted constitutional power to remove as incident to the power of appointment (Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160), or is the kind of officer as to whom Congress may lawfully circumscribe the President's power of removal. Humphrey's Executor v. United States, 295 U.S. 602, 55 S.Ct. 869, 79 L.Ed. 1611.

Removal "for cause shown" clearly implies due notice of charges, and a hearing at which the accusing evidence is presented and at which the officer is afforded fair opportunity to offer relevant evidence in refutation of the charges. Such appears to be the construction of the statute accepted by the Supreme Court of Puerto Rico. See Jimenez v. Reily, 30 P.R. 582, 650, 675. The question, then, is whether the statutory requirements were met in the instant case.

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