South Porto Rico Sugar Company v. Munoz, 2271.

• Decision Date: 26 October 1928
• Docket Number: No. 2271.,2271.
• Citation: 28 F.2d 820
• Parties: SOUTH PORTO RICO SUGAR COMPANY et al. v. MUNOZ et al.
• Court: U.S. Court of Appeals — First Circuit

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 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, appointed by the President. At the end of section 31 it was enacted:

"Provided, however, that all laws enacted by the legislative assembly shall be reported to the Congress of the United States, which hereby reserves the power and authority, if deemed advisable, to annul the same."

Section 32 reads:

"That the legislative authority herein provided shall extend to all matters of a legislative character not locally inapplicable, including power to * * * repeal any and all laws and ordinances of every character now in force in Porto Rico, or any municipality or district thereof, not inconsistent with the provisions hereof: Provided, however, that all grants of franchises, rights, and privileges or concessions of a public or quasi public nature shall be made by the executive council, with the approval of the Governor, and all franchises granted in Porto Rico shall be reported to Congress, which hereby reserves the power to annul or modify the same."

Franchises and laws were both thus required to be reported to Congress, which reserved power to annul either or both.

Under the joint resolution of May 1, 1900, 31 Stat. 715, amending the Foraker Act of April 12, 1900, it was provided:

"That all franchises, privileges or concessions granted under section 32 of said act shall provide that the same shall be subject to amendment, alteration or repeal."

This was the familiar provision intended to meet the doctrine of the Dartmouth College Case. Pursuant to these powers, the Executive Council the next year (1901) granted the franchise in question, providing in article XVIII "that the franchises, privileges and concessions hereby granted shall be subject to amendment, alteration or repeal."

The same general power to annul laws enacted by the Legislature of Porto Rico is retained in section 34 of the second Organic Act — the Jones Act of March 2, 1917, 39 Stat. 951. 48 USCA § 822 et seq. In thus reserving in both Organic Acts power to annul laws enacted and franchises granted by the Porto Rican government, Congress acted in close analogy to its long-continued practice with relation to territories within the boundaries of the present United States — prospectively states. Compare the Organic Act of Oregon, 9 Stat. 323, § 6; of Minnesota, 9 Stat. 403; of New Mexico, 9 Stat. 446; of Utah, 9 Stat. 453; of Washington, 10 Stat. 172. The purpose obviously, both in Porto Rico and with our own territories, was to provide a quasi guardianship during a probative period, over a developing political society, by requiring full reports (itself a sobering check) of all important performances of the...