Leon v. Torruella

• Decision Date: 12 November 1938
• Docket Number: No. 3341.,3341.
• Citation: 99 F.2d 851
• Parties: LEON v. TORRUELLA.
• Court: U.S. Court of Appeals — First Circuit

99 F.2d 851 (1938)

LEON v. TORRUELLA.

No. 3341.

Circuit Court of Appeals, First Circuit.

November 12, 1938.

J. A. Poventud and A. S. Poventud by José A. Poventud, both of Ponce, P. R., for appellant.

Raul Matos, of Ponce, P. R. (Fernando B. Fornaris, of Ponce, P. R., on the brief), for appellee.

Before BINGHAM and WILSON, Circuit Judges, and BREWSTER, District Judge.

BINGHAM, Circuit Judge.

This is an appeal from a judgment of the Supreme Court of Puerto Rico affirming a judgment of the District Court of Ponce in an action for divorce in which an amended complaint was filed January 23, 1936. In this complaint, on which trial was had, the plaintiff averred that he and the defendant were residents of Ponce, Puerto Rico, and had always resided in the Island; that they were married at Ponce on June 1, 1898, which marriage had not been dissolved or annulled; that no children had been born of the marriage; and that, since the month of March, 1926, there had existed and exists a complete and absolute separation of said spouses without interruption of any kind.

In her answer the defendant admitted the facts set forth in the complaint and, as new matter in defense, averred that the complaint did not state facts sufficient to constitute a cause of action, (1) because, according to it, the alleged separation began in March, 1926, and the seven year period of time had elapsed prior to the approval of Act No. 46 on May 9, 1933, whereon the present action was based; (2) because no retroactive effect could be ascribed to Act No. 46, as it contained no declaration whatever about its retroactivity; (3) because Act No. 46 expressly provided that it should become effective ninety days after its approval, and thereby the Legislature gave it a prospective effect; (4) because if Act No. 46 were retroactively applied it would be unconstitutional and in violation of Section 34, subdivision 6, of the Organic Act of Puerto Rico of March 2, 1917, 48 U.S.C.A. § 827; and (5) because it would likewise be unconstitutional and in violation of Section 2, subdivision 8, of the Organic Act of March 2, 1917, 48 U.S.C.A. § 737, par. 8, and of Article 1, Section 9, clause 3 of the United States Constitution, U.S.C.A.Const. art. 1, § 9, as an ex post facto law.

The only evidence offered at the trial was that of the plaintiff, and the court having found that the allegations of the complaint were true; that the parties had been married for nearly forty years; and that there had been a complete and uninterrupted separation of both spouses for more than seven years prior to the filing of the complaint in conformity with Section 164 of the Civil Code of Puerto Rico (1911 Ed. p. 610), as amended by Act No. 46 of May 9, 1933, rendered judgment granting the divorce, considering the defendant as the innocent spouse, with all the rights inherent in such condition, and granted the divorce in accordance with the law invoked by the plaintiff.

Act No. 46 was approved May 9, 1933, and in Section 3 provided that it should take effect ninety days after its approval. It amended Section 164 of the Civil Code (1911) by adding a ninth cause of divorce to those theretofore provided, as follows:

"9. The separation of both spouses for an uninterrupted period of time of more than seven (7) years; Provided, that when the separation for the said period of more than seven (7) years is satisfactorily proved, the woman, when the judgment is rendered, shall always be considered as the innocent spouse, with all the rights inherent in such condition following divorce."

Section 34, paragraph 6 of the Organic Act of Puerto Rico of March 2, 1917, 48 U.S.C.A. § 827, par. 6, provides:

"No act of the legislature except the general appropriation bills for the expenses of the government shall take effect until ninety days after its passage, unless in case of emergency (which shall be expressed in the preamble or body of the act) the legislature shall by a vote of two-thirds of all members elected to each house otherwise direct. * * *"

Section 2, subdivision 8, of the Organic Act of Puerto Rico of March 2, 1917, 48 U.S.C.A. § 737, par. 8, provides:

"That no ex post facto law * * * shall be enacted."

And Article 1, Section 9, clause 3 of the Constitution, U.S.C.A.Const. art. 1, § 9, cl. 3, contains a like provision, but it relates to the power of Congress.

We are met at the outset with the question of our jurisdiction to entertain this appeal. Section 128 of the Judicial Code, as amended by the Judiciary Act of 1925, Section 1, 28 U.S.C.A. § 225, provides:

"Section 128(a) Section 225. The circuit courts of appeal shall have appellate jurisdiction to review by appeal or writ of error final decisions — * * *

"Fourth. In the Supreme Courts * * * of Puerto Rico, in all civil cases, civil or criminal, wherein the Constitution or a statute or treaty of the United States or any authority exercised thereunder is involved; in all other civil cases wherein the value in controversy, exclusive of interest and costs, exceeds $5,000, and in all habeas corpus proceedings."

It is not claimed in this case, and there is no ground for claiming, that a sum, exclusive of interest and costs, exceeding $5,000 is in controversy. It is urged, however, that this is a case wherein a substantial federal question is involved and therefore this court has jurisdiction to entertain the cause.

We have set forth the above provisions of the Organic Act and of the Constitution of the United States, with which Act No. 46, approved May 9, 1933, is alleged to be in conflict. It is contended that Act No. 46 is in conflict with Section 34, paragraph 6, of the Organic Act, 48 U.S.C.A. § 827, par. 6, providing that "no act of the legislature except general appropriation bills for the expenses of the government shall take effect until ninety days after its passage, unless in case of emergency (which shall be expressed in the preamble or body of the act) the legislature shall by a vote of two-thirds of all members elected to each house otherwise direct."

We fail to see wherein Act No. 46 in its enactment fails in any respect to comply with the provisions of Section 34, paragraph 6, of the Organic Act. It was approved May 9, 1933, and expressly provided that it should not take effect until "ninety days after its approval," and fully complied with Section 34, paragraph 6. This provision of the Organic Act has only to do with the enactment of a law, not its application. This does not present a substantial federal question.

Our jurisdiction is also sought to be invoked on the theory that Act No. 46, as applied to this case, is an ex post facto law, and violates Section 2, subdivision 8, of the Organic Act, and probably Article 1, Section 10, clause 1, U.S.C.A.Const. art. 1, § 10, cl. 1 (not Article 1, Section 9, clause 3, U.S.C.A.Const. art. 1, § 9, cl. 3) of the Constitution of the United States providing that no ex post facto law shall be enacted, claiming that the complaint shows that the term of separation between the spouses occurred prior to the time Act No. 46 became a law. This contention overlooks the legal requirement that the continuous and uninterrupted separation should be a completed act or fact on the filing of the complaint and the finding of the court that the separation of the spouses was absolute and uninterrupted for more than seven years when the complaint was filed. The amended complaint was filed January 23, 1936, or about two years and a half after Act No. 46 was approved and became a law on August 9, 1933, and the seven year period of separation on which the divorce was granted was the seven year period that existed and had become complete on the date of the filing of the complaint. In other words, the complaint in this case was for a continuing cause which existed and was a completed act or fact on the day the complaint was filed.

Had it been found that a continued uninterrupted separation for the required time did not exist on the filing of the complaint,...