
    De Diego v. The House of Delegates.
    Application- for a Writ of Mandamus.
    No. 6.
    Decided February 4, 1904.
    House of Delegates — Powers.—Under section 10 of tie Organic Act the House of Delegates of Porto Eico has power to consider and determine whether the office of its own members shall be deemed vacant.
    Mandamus — Legislative Bodies. — The writ of mmdamus does not lie to compel a legislative body to exclude from its number one or more of its own members.
    Id. — House of Delegates. — Corporation.—The House of Delegates is not a corporation according to the Civil Code, nor is it included within the provisions of section 2 of the Law of Mandamus of 1903.
    Id. — The House of Delegates of the Legislative Assembly of Porto Eico is not subject to a writ of mandamus issued by the Supreme Court of Porto Eico.
    Id. — Acts of a Discretionary and Ministerial Character. — A writ of mandamus does not lie to compel the performance of acts entrusted to the discretion of a public officer, its scope being limited to the performance of acts of a ministerial or executive character.
    The facts are set out in the opinion.
    
      Messrs, de Biego and Bias. Navarro, for relators.
   Me. Justice MacLeaet

rendered the opinion of the court.

In this case Señor de Diego with nine other members of the Honse of Delegates made an application to this court for a mandamus to compel the House to declare the seats of five other members vacant, because they had not attended the first ten days of the present session.

Their petition is based on section 210 of the Political Code, which reads as follows:

“If while a session of the Legislative Assembly is pending, any member of the House of Delegates shall absent himself from his duties for more than five consecutive days without the consent of the House of Delegates, his office shall be deemed vacant, and the Governor may issue a writ of election to fill such vacancy, as prescribed by law.”

The applicants allege that certain delegates, naming them, have been absent for more than five consecutive days, and that a motion was made by Señor de Diego in the Honse to declare their seats vacant, which was discussed by himself on the one part, and by Señor Don Juan Hernández López on the other part, and put to a vote by the speaker, which resulted in the negative, the House thereby refusing to declare the seats of the members mentioned to he vacant.

Section 30 of the Foraker Act provides:

“That the House of Delegates shall be the sole judge of the elections, returns, and qualifications of its members, and shall have and exercise all the powers with respect to the conduct of its proceedings that usually appertain to parliamentary legislative bodies.”

Under the section of the law above quoted the House had the full power to consider and determine whether or not the, seats mentioned were vacant, and as stated herein it has de-j termined that fact in the negative, notwithstanding the language of section 210 of the Political Code above quoted.

Ah application made to a judicial court for a mandamus against a legislative body, compelling it virtually .to expel one or more of its own members, is an anomaly in American jurisprudence. No similar ease can be found, so far as my investigation extends, in tbe annals of American litigation. Certainly no sucb case exists in tbe reports of tbe decisions of tbe Supreme Court of tbe United States.

Mr. Wood, in his work on Mandamus, says:

“Tbe writ of mandamus, in proper cases, will lie against inferior courts, corporations and ministerial officers.”

Certainly tbe legislature does not fall within any of these three classes. Our own statute on mandamus reads as follows :

“Tbe writ of mandamus may be issued by tbe Supreme Court or tbe District Courts, or any justice or judge thereof, during tbe term or at chambers, to any inferior tribunal, corporation, board or person to compel tbe performance of any act which the law specifically enjoins as a duty resulting from an office, trust or station, but though it may require an inferior tribunal, or any judge thereof, to exercise this judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion.”

This is substantially an enlargement of tbe principle announced in tbe text-book above quoted, and certainly tbe . House of Delegates could not be considered as falling under any of tbe classes mentioned in this statute, unless it might be claimed that it is a corporation, but it cannot properly be classed as sucb. Chancellor Kent defines a corporation as:

“A franchise possessed by one or more individuals, who subsist as a body politic, imder a special denomination, and are vested by the policy of the law with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual.” (2 Kent’s Com. 276.)

A corporation is defined in Bouvier’s Law Dictionary as:

“A body consisting of one or more natural persons, established by law, usually for some specific purpose, and continued by a succession of members.” (1 Bouvier’s Law Dictionary, 443.)

The Supreme Court of Illinois defines a corporation in the following manner:

“An artificial being created by law, and composed of individuals; who subsist as a body politic, under a special denomination, with the capacity of perpetual succession, and acting within the scope of its charter as a natural person.” (122 Ill. 293.)

Judge Bronson defines the term as follows:

“A corporation aggregate is a collection of individuals united in one body by such a grant of privileges as secures a succession of members without changing the identity of the body, and constitutes the members for the time being capable of transacting the corporate business like a natural person.” 1 Hill (N. T.) 62.

Our law on corporations, which is found in titles I and II of the Civil Code of Porto Eico, would not permit either house of the Legislative Assembly or both together to be classified as' corporations, either public or private. Tried by these definitions, the House of Delegates cannot be considered in any respect as a corporation.

Then whether we refer to general principles or to the-statutes themselves, the House of Delegates of the Legislative Assembly of Porto Pico is not subject to the writ of mandamus issuing from this court.

The Constitution of the United States, in defining the power of Congress, in article I, section 5, reads as follows:

“Each house shall he the judge of the elections, returns, and qualifications of its own members, and a majoity of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each-house may provide.”

This language is very similar to that above quoted from the Foraker Act, defining tbe powers of our Legislative Assembly, and perhaps such a provision in the Constitution, as well as the well-known independence of the legislative department of the National Government, has heretofore prevented any such application as the one here presented from being made to any court of the United States. It is plain from the absence of authorities on this point, and from the reading of the statute itself, and from the nature of the American scheme of government, that a mandamus will not lie in such a •case as the one presented.

Even if it would lie from this court to the House of Delegates, it could not be issued in the present case, because in regard to declaring a seat of a member vacant the House | has a discretion • and .its action is not merely ministerial,] such as alone can be controlled by the courts through the writ of mandamus.. In other words if the speaker of the House had the authority to declare the seat of a member vacant under certain conditions, acting in his discretion, a mandamus would not lie from any court to him, compelling bim so to do; much less would a mandamus lie compelling the House to take such action. (State v. Elder, 10 L. R. A., p. 796.)

Therefore in no event conld the object of the relators in this case be accomplished through the writ of mandamus. This conrt wonld never assume a jurisdiction which is not conferred upon it by law, and has no disposition to interfere with the rights and duties of other departments, such as the Legislative Assembly, or the House of Delegates, constituting a part thereof.

The application for a writ of mandamus in this case must be denied.

Denied.

Chief Justice Quiñones and Justices Hernández and Figu-eras concurred.

Mr. Justice Snlzbacher did not take part in the decision of this case.

CONCURRING Opinion op

Mr. Justice Figueras.

An application is made for a writ of mmdamus to compel the House to comply with section 210 of the Political Code, by declaring vacant the seats of Carlos Cabrera, Luis Sán-chez Morales, Federico Torregrosa, Darío Eola and Geo. W. Fishback, who had been elected delegates to said House.

This is the only question to be considered, because judgments must be responsive to the pleadings and other allegations duly advanced in the action. An example of the deference to this principle has been furnished ns recently by the Supreme Court of the United States, upon deciding the case of Mrs. Gonzales, when it declared only that she was not a foreigner, and omitted all further arguments as to whether or not she was an American citizen, this point not having properly come up before said court. For this reason, in considering the present case, no generalization should he made.

The Supreme Conrt of the State of Nebraska, under date of January 14, 1891, issued a writ of mandamus applied for by Thomas H. Benton against Samuel M. Elder, speaker.of the House of Representatives (Lawyer’s Reports Annotated, vol. 10, p. 796), and perhaps, in a similar case, I might agree with Chief Justice Cobb, who delivered the opinion of the court, in the conclusions whereof, to my thinking, a just and reasonable doctrine is enunciated, he even declaring, with respect to the case under consideration, that “no legislative body has the power to interpose a parliamentary contrivance in contravention of the express provision of the Constitution of the State.”

Avoiding, therefore, all generalization, and confining myself to the question now at issue, I am of the opinion that this court cannot interfere with the legislative or discretionary acts of the House, thus respecting the independence of the legislative, executive and judicial powers.

The writ of mandamus is applied for against the House, the petition, moreover, being based upon the assumption that the House has refused to comply with section 210 of aforesaid Political Code; but inasmuch as the consideration of the vacancies referred to in said section is reserved, by this provision, to the House itself, the latter, after a discussion in which both the majority and minority took part, has by a majority voted finally decided that the seats should not be declared vacant; and this proceeding, after the motion presented by Delegate de Diego, is the proper one in all actions taken by the House, whence it follows that the decision overruling said motion was made on the strength of the discretionary powers implied in aforesaid section 210.

But let us assume .that this provision contains a peremptory command; in other words, that the House is obliged to declare the office vacant; still, the House, as an entity, cannot in any event give expression to its purpose and will, except by means of a decision, and the vote being free, it would always be found to act within its discretionary powers, whatever action it might take with regard to the vacancies.

For this reason alone, I am of the opinion that the writ of mandamus applied for by José de Diego and Herminio Díaz in their own behalf and as delegates should be denied.  