Marquez v. Aviles, 5250.

• Decision Date: 10 March 1958
• Docket Number: No. 5250.,5250.
• Citation: 252 F.2d 715
• Parties: Carmen MARQUEZ et al., Plaintiffs, Appellants, v. Margarita AVILES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

252 F.2d 715 (1958)

Carmen MARQUEZ et al., Plaintiffs, Appellants, v. Margarita AVILES, Defendant, Appellee.

No. 5250.

United States Court of Appeals First Circuit.

February 25, 1958.

Rehearing Denied March 10, 1958.

Bolívar Pagán, San Juan, P. R., for appellants.

Enrique Cordova Díaz, San Juan, P. R., with whom Manuel A. García Méndez and Manuel A. García Hermida Aqudilla, P. R., were on the brief, for appellee.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

MAGRUDER, Chief Judge.

Appellants herein are seven persons all born between the period 1928-1940 as illegitimate children of an adulterous union between Bonifacio Aviles Perez and Narcisa Marquez. Appellee is the legitimate daughter of Bonifacio Aviles Perez and his wife Josefa Cruz Barreto, and is at present the sole and universal heir of Bonifacio Aviles Perez, who died in Puerto Rico in 1954; that is, appellee is the sole universal heir, if appellants are not also lawful heirs of Bonifacio Aviles Perez, entitled to share in his hereditary estate.

A civil action for filiation was filed by appellants as plaintiffs in the Superior Court of Puerto Rico, Aguadilla Part, in which these illegitimate children sought a court decree declaring that the plaintiffs are the children of Bonifacio Aviles Perez, deceased, with hereditary rights over the properties left at his death.

On November 12, 1954, the Superior Court entered judgment dismissing the complaint in toto, although by Act No. 243, approved May 12, 1945, Laws of Puerto Rico 1945, p. 814, the plaintiffs, as children in fact of Bonifacio Aviles Perez, were entitled to a declaration that they were to be considered "as natural children for the sole purpose of bearing the surname of their parents". See Cruz v. Andrini, 66 P.R.R. 119 (1946); Fernandez v. Heirs of Fernandez, 66 P.R.R. 831 (1947). Accordingly, on appeal, the Supreme Court of Puerto Rico on September 6, 1955, reversed the judgment of the Superior Court and remanded the case to that court for further proceedings.

After such further proceedings in the Superior Court, that court on May 10, 1956, entered judgment declaring that the seven plaintiffs are the "acknowledged illegitimate children of Bonifacio Aviles, with all the rights belonging to said children as such, including the right to inherit from his father in a share equal to that of his legitimate daughter mentioned above, in the properties left by him at his death." Upon a second appeal of the case, the Supreme Court of Puerto Rico on March 29, 1957, entered judgment modifying the judgment of the Superior Court so as to declare merely that the seven plaintiffs "are all natural children of Bonifacio Aviles-Perez, for the sole purpose of bearing their father's surname," and as thus modified the judgment below was affirmed. Thus, as appears from an accompanying per curiam opinion by the Supreme Court of Puerto Rico, that court in effect struck from the judgment of the Superior Court the important provision declaring that the plaintiffs are heirs of Bonifacio Aviles Perez, entitled to share in his hereditary estate. From that judgment of the Supreme Court of Puerto Rico the seven original plaintiffs took the present appeal to this court.

Our jurisdiction of this appeal is based on 28 U.S.C. § 1293. Appellants seek to raise certain federal questions of due process of law and of equal protection of the laws. They also seek to raise certain questions of insular local law, as to which they say the judgment of the Supreme Court of Puerto Rico was "inescapably wrong".

This appeal is patently frivolous in so far as it seeks to torture the questions presented into federal constitutional questions. We have hitherto found it unnecessary to determine whether we should apply to Puerto Rico the due process clause of the Fifth Amendment or of the Fourteenth Amendment since July 25, 1952, when the status of Puerto Rico was changed to that of a commonwealth under the American flag. See Mora v. Mejias, 1 Cir., 1953, 206 F.2d 377, 382. Nor do we have to decide that question now. Appellants' due process argument assumes in their favor the very point of local law at issue, namely, whether under the law of Puerto Rico appellants have the legal status of heirs, entitled to share in the hereditary estates of Bonifacio Aviles Perez. Making that assumption, appellants say that they have a property right, of which they have been deprived by the Commonwealth of Puerto Rico acting through its judicial branch. But if that assumption is found to be incorrect, as a matter of local law, the appellants have obviously not been deprived of any property right without due process of law. Of course "due process of law does not mean infallible process of law", as Learned Hand, J., observed in Schechtman v. Foster, 2 Cir., 1949, 172 F.2d 339, 341. It all gets back, then, to a question of local law as to what are the legal rights of appellants as illegitimate children of an adulterous union.

As to equal protection of the laws, this court had the following to say in Stagg, Mather & Hough v. Descartes, 1 Cir., 1957, 244 F.2d 578, 583:

"It is true that this court in due process cases has not yet found it necessary to decide whether the Fifth or the Fourteenth Amendment applies in Puerto Rico, and the Fifth Amendment, unlike the Fourteenth, has no equal protection clause. But Fifth Amendment due process covers at least some denials of equal protection, for the Supreme Court in Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884, after pointing out that both concepts stem from the American idea of fairness said:

"`The "equal protection of the laws" is a more explicit safeguard of prohibited unfairness than "due process of law," and, therefore, we do not imply that the two are always interchangeable phrases. But, as this Court has recognized, discrimination may be so unjustifiable as to be violative of due process.\'"

In any event, it is manifestly impossible to make out a case of denial of equal protection of the laws here, for, as we held in Everlasting Development Corp. v. Sol Luis Descartes, 1 Cir., 1951, 192 F.2d 1, 7, certiorari denied, 1952, 342 U.S. 954, 72 S.Ct. 626, 96 L.Ed. 709: "There must be a purposeful discrimination against one person and in favor of another person in like case, with no rational basis for a differentiation between the two." Appellants founded their claim of legal right upon a provision of § 1 of the Bill of Rights of the Commonwealth Constitution, which became operative July 25, 1952, 48 U.S.C.A. § 731d note and upon Act No. 17 of August 20, 1952, Laws of Puerto Rico, Spec.Sess.1952, p. 200, an act passed to implement the rights granted in the Commonwealth Constitution. The Supreme Court of Puerto Rico rejected this contention on the ground that all of the appellants were born prior to July 25, 1952. In this respect the court was merely applying to appellants the same rule of non-retroactivity which it had already applied to other persons born prior to the establishment of the Commonwealth, in Alvarez v. Alvarez, 77 P. R.R. 862 (1955), and in Sanchez v. Diaz, 78 P.R.R. 771 (1955). There has been no discrimination, "purposeful" or otherwise, between appellants and other persons "in like case".

There remains for consideration only the question of the correctness of the ruling of the Supreme Court of Puerto Rico as a matter of local law.

In Figueroa v. People of Puerto Rico, 1 Cir., 1956, 232 F.2d 615, 618, without deciding the point, we suggested the possibility that, when the Congress passed its joint resolution approving the constitution of the Commonwealth, 66 Stat. 327, which constitution in § 3 of Art. V provided that the Supreme Court of Puerto Rico "shall be the court of last resort in Puerto Rico", the Congress might be deemed to have thereby impliedly withdrawn from the Court of Appeals for the First Circuit "this anomalous vestige of federal jurisdiction over local law questions" as provided in 28 U.S.C. § 1293, with the gloss put upon that provision by De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 64 S.Ct. 1121, 88 L.Ed. 1384, and cases cited therein. Though our technical jurisdiction to review local law questions has not been challenged in the present case, we are aware, of course, of the statement frequently made that a court sua sponte must always take note of its own lack of jurisdiction. If we were inclined to reverse the Supreme Court of Puerto Rico upon a determination that its decision of a local law question was "inescapably wrong", we would certainly have to determine of our own motion whether we had any jurisdiction in the premises before we exercised such appellate power of reversal. But where, as in the present case, we are so clearly of opinion that the decision of the Supreme Court of Puerto Rico on a point of local law must be sustained, we are inclined, in the absence of challenge, to assume that our vestigial jurisdiction remains unimpaired, however much technical niceties might suggest that we ought not to make that assumption.

When Puerto Rico in 1952 became a commonwealth, under its own constitution, that change of status certainly reinforced and intensified the reasons of policy which led the Supreme Court, in De Castro v. Board of Commissioners, supra, to adhere to the self-denying ruling under which appellate federal courts were told that they ought not to reverse a judgment of the Supreme Court of Puerto Rico on a question of local law unless that judgment was deemed to be "inescapably wrong" or "patently erroneous".

It is difficult to imagine a matter of more exclusively local concern than the question of the right of illegitimate children to inherit property of a deceased resident of Puerto Rico. This has been a matter of constant insular preoccupation, tracing back to Spanish sources. It is a subject which has been full of perplexities and technicalities, as a casual reading of the...