South Porto Rico Sugar Company v. Munoz, No. 2271.

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: JOHNSON and ANDERSON, Circuit , and HALE
• Citation: 28 F.2d 820
• Parties: SOUTH PORTO RICO SUGAR COMPANY et al. v. MUNOZ et al.
• Docket Number: No. 2271.
• Decision Date: 26 October 1928

28 F.2d 820 (1928)

SOUTH PORTO RICO SUGAR COMPANY et al.
v.
MUNOZ et al.

No. 2271.

Circuit Court of Appeals, First Circuit.

October 26, 1928.

Francis E. Neagle, of New York City (Rounds, Dillingham, Mead & Neagle, of New York City, on the brief), for appellants.

William Cattron Rigby, of Washington, D. C. (John A. Hull, Judge Advocate General, of Washington, D. C., James R. Beverley, Atty. Gen., of Porto Rico, and J. A. Lopez Acosta, Asst. Atty. Gen., of counsel), for appellees.

Before JOHNSON and ANDERSON, Circuit Judges, and HALE, District Judge.

ANDERSON, Circuit Judge.

On May 28, 1928, the Public Service Commission of Porto Rico issued to appellants an order of notice to appear on June 4, 1928, and show cause why said commission should not cancel a franchise granted, on March 19, 1901, to appellants' predecessors in title, by the Executive Council of Porto Rico, to use daily

28 F.2d 821

20,000,000 gallons of the waters of Lake Guanica for irrigation, for the construction and operation of a private railroad to run in part over lands subject to public rights, and to construct and maintain a dock on the Bay of Guanica. Without appearing before the commission, the appellants filed on June 2, 1928, a bill in equity seeking an injunction to restrain the commission from interfering in any way with the enjoyment of their powers under this franchise, and from asserting any jurisdiction over the appellants in respect to said franchise. The court below sustained a motion to dismiss filed by the Attorney General of Porto Rico, holding, in a well-reasoned and cogent opinion, both that the suit was premature and that the Public Service Commission had jurisdiction. This decision was right on both points

Courts have no general supervisory power over such tribunals as public service commissions. Judicial interference, apart from express statutory delegation, must be grounded on illegal encroachment upon property rights. American Coal Mining Co. v. Special Coal & Food Commission (D. C.) 268 F. 563; Sayers v. Montpelier & Wells River R. R., 90 Vt. 201, 97 A. 660, Ann. Cas. 1918B, 1050.

If we assume for the moment that this Public Service Commission has no jurisdiction, the issuance of an order of notice was no such assertion of authority or threat of irreparable injury as to warrant injunctive interference by the court. It would not follow that, on appearance and argument, the commission would adhere to an erroneous view as to the nature and extent of its jurisdiction. The appellants' case in that regard is not supported by the cases relied upon by their learned counsel. Philadelphia Co. v. Stimson, 223 U. S. 605, 32 S. Ct. 340, 56 L. Ed. 570, and cases cited; Work v. Louisiana, 269 U. S. 250, 46 S. Ct. 92, 70 L. Ed. 259; Gallardo v. Porto Rico Light & Power Co. (C. C. A.) 18 F.(2d) 918; Benedicto v. West India & Panama Tel. Co. (C. C. A.) 256 F. 417.

Affirmation of the decree below (dismissing the bill) would doubtless be warranted on this ground alone. But it is plainly in the interest of the parties that we deal now, rather than possibly in a later suit, with the fundamental question of the jurisdiction of the commission to maintain proceedings looking to the repeal, alteration or modification of the appellants' franchise.

Under the first Organic Act of Porto Rico — the Foraker Act of April 12, 1900, 31 Stat. 77 (48 USCA § 731 et seq.) — Congress provided for this recently acquired possession a legislative assembly, consisting of an elective lower chamber, and, in lieu of a senate, an Executive Council, consisting of six heads of the executive departments,...