
    Municipal Council of Caguas v. The People of Porto Rico.
    Appeal from the District Court of San Juan.
    No. 5.
    Decided April 17, 1903.
    Liability of Councils. — Mayors.—And Councilmen. — Councils, mayors and councilmen incur liability through, negligence or omission that may result to 'the prejudice of the interests and services entrusted to their care, and proceedings can only be instituted against them when that liability is clearly established.
    Id. — Each municipal council, as a body politic, is responsible for its quota of jail expenses to the municipal council constituting the capital of the district, the latter having power, under the municipal law in force, to compel payment thereof through summary proceedings against the former, but not against councilmen individually whose responsibility, in a proper case, lies with the council of their respective municipality.
    STATEMENT OP THE CASE.
    In the matter of the litigative-administrative appeal pending before us, between the Municipal Council of Ca-guas, represented by attorney Jacinto Texidor, and The People of Porto Rico, represented by the Fiscal, for a reversal of the judgment rendered by the District Court of San Juan, which literally reads:
    “In the city of San Juan, Porto Rico, this 29th day of August, 1902. In v view of this iirigative-administrative complaint filed by attorney Her-minio Díaz Navarro, on behalf of the Municipal Council of Caguas against a decision rendered h}' the Treasurer of Porto Rico, to the effect that in order to recover the debt due to the Municipal Council of Caguas by the Municipal Council of Comerlo, for jail expenses, the former should institute proceedings against the Gouncilmen constituting the latter at the time the debt was incurred, and not against the Municipal Corporation, the Administration being represented by the Fiscal.
    The Municipal Corporation of Caguas instituted compulsory proceedings (ex2?ediente de apremio) for the collection of the assessment for jail expenses due to the former by the Municipal Corporation of Comerlo, appertaining to the fiscal years 1897-8 and 1898-9, which, together with two per cent, additional assessment, amounted to one thousand forty-six pesos and eighty-one centavos. The agent commissioned by the Municipal Council -of Caguas to enforce the collection of the debt appeared at the town-hall of Comerlo and having served the warrant upon the Municipal Council there assembled, the latter stated that the Capital of the district had never produced the liquidation prescribed by Art. 7 of the Royal Decree of March 11, 1880, and said Capital having been abolished, the municipalities which formerly constituted the district had a perfect right to know the financial condition of the principal town, its receipts, disbursements, movable property, or in fact, the inventory. It accepted service of the warrant under protest for the foregoing reasons, and again demanded a liquidation.
    According to a resolution of the Municipal Council of Caguas subsequently passed on the occasion of a report of the compulsory proceedings instituted against the towns for the collection of the assessment for jail expenses, that of Comerlo was mentioned as pending a liquidation called for by the latter but which could not be submitted because the late depo: sitary had not produced the accounts for jail expenses appertaining to the previous year, and it was resolved that the matter of the liquidation of the jail expenses was independent of the claim presented by Caguas, and all the proceedings allowed by the law should be availed of to prosecute the latter. The municipality of Comerlo was again requested to pay, and it replied by ratifying its previous statement, but at the same time offering to pay the four annual assessments, conditioned on the liquidation requested. This proposition was rejected by Caguas which referred the matter to the Treasurer of Porto Rico who, after hearing the opinion of the j udicial Board, decided that according to Royal Order of April 17, 1877, the proceedings should not be instituted against the town, but against the Couneilmen in office at the time the debt was incurred and who had intervened in its creation, and that the compulsory proceedings (expediente de apremio') had against the town of Comerlo should be declared null and void.
    Thereupon the Municipal Corporation of Caguas filed a “litigative-administrative ” complaint, praying that the decision of the Treasurer of Porto Rico be set aside and the right of the Municipality of Caguas to prosecute aforesaid compulsory proceedings against the Municipality of Comerlo, be allowed. The following facts were alleged: That Caguas had paid all its jail assessments, while Comerlo was in its debt on account of' said expenses, for the amount of its claim, for which reason it had commenced the compulsory proceedings. That the Municipality of Comerlo having applied to the Civil Governor, the matter was referred to the Insular Treasurer who decided as set forth in the preceding statement. That said decision having been communicated to the Municipal Corporation of Caguas, the latter, after consulting two attorneys-at-law, resolved to avail itself of this remedy, the complaint herein having been admitted and published in the Gazette. The following legal authorities were cited: Royal Decree of April 17, 1877, in so far as it refers to the-matter, because in applying the law it is necessary to ascertain whether the case provided for by the law is the same as the one under consideration, and the aforesaid Royal Order is not applicable to the case at bar. It is stated in said provision that according to Royal Order of April 15, 1874, personal liabilities are incurred when it is shown that a shortage occurred through the carelessness or neglect of those in charge of the municipal administration. Had this been proven in the case under consideration, the decision rendered would have been proper. But it was not shown or even supposed that the circumstances mentioned in the said provision existed, the matter being decided arbitrarily, and the very .provisions cited by the Treasurer are against him, for even had the Royal Order of 1877 been applicable, it was repealed by article 5 of the Royal Decree of March 11, 1886. This complaint properly comes under the jurisdiction of this court, according to article 15 of the Royal Decree of November 23, 1888, the contested decision being in accordance with articles 1 and 2 of said Royal Decree and articles 1 and 3 of the Regulation thereof.
    Notice of the complaint having been served upon the Fiscal, he answered praying that the same be dismissed, and alleging the facts as set forth in the first and second findings of fact, and that from the decision of the Treasurer a “ litigative-administrative ” appeal had been taken, the law being that the Treasurer had decided as to who should be called upon to pay, without denying the right, citing article 5 of the Royal Decree of May 11, 1886, and Royal Order of April 17, 1877.
    At the proceeding for the taking of evidence a literal attested copy of the record of the administrative .proceedings referred to in the first and second findings of fact was introduced by the plaintiff, no evidence having been offered by the Fiscal. A day was set for the hearing and the parties being duly cited, their attorneys failed to appear, Mr. Justice Hord rendered the opinion of the court.
    According to the Municipal Law in every district constituting a Municipality there shall be a council upon which devolves the government and administration of the municipal district, whose resolutions on matters coming within its province are executory, except where remedies are provided by the laws, such council being empowered to frame, approve and apportion its budget, to collect and administer the same, and to examine, discuss and publish its accounts, but having no power to apply money to any payment in excess of the real resources of the Municipality, and preference to be given over all other demands, to the settlement of liabilities or arrears from former budgets, or obligations arising from executory judgments of competent courts.
    The-Council of Comerio framed its budget, including in the appropriations all the items authorized by law, and it having been provided during the period to which this matter refers, that the maintenance of all the jails of the district should be borne proportionately by all the municipalities included therein, said council complied therewith by making the proper appropriation in its budget, but failed to pay the amount to Caguas, the Capital of the District.
    Councils, alcaldes and councilmen incur liability through negligence or omission that may result to the prejudice of the interests and services entrust- . ed to their care, but this liability must be clearly established, and only on the strength thereof and of such attending criminal liability as may be involved, could proceedings be instituted against the property of the councilmen through whose omission the injury was caused. Neither such declaration nor the claim for such subsidiary liability are or could be made by the Municipal Council of Caguas, because its right of action is against the legal entity of Comerio, which included in its budget the items claimed, and if it afterwards failed to apportion and apply them it should be held responsible for the omission, for since it was its duty to publish at the beginning of each quarter a statement of all the receipts and expenses of the preceding ODe, it must have known, as well as the public at large, about this and other outstanding items which were not paid by it, or by the succeeding councils, and which should have been included in the subsequent budgets.
    It would be an injustice to the Municipal Council of Caguas were it compelled to sue the councilmen. who were in office when the appropriation was included in their budget, because should they prove to be insolvent, said Corporation would have to make good the outstanding indebtedness to the prejudice of the interests of said Municipality, thereby benefiting that of Comerio, and because it lacks the data, means and powers necessary for the purpose, which particulars are to be found in the records of Comerlo, and because in matters defined as originally appertaining to the jurisdiction of municipalities, each council shall enjoy all such freedom of action as may be consistent with obedience to law and the respect due to individuals.'
    The Royal Order of March 8, 1877, published in the Gaceta de Madrid, of April 17th, of the same year, is to the effect that councilmen who by their votes authorize any resolution, are responsible to the municipality, and in the event of any irregularity should they fail to make reimbursement within the brief term fixed by the council, the latter may institute compulsory proceedings against them to make good the amount of their liability, which supports the doctrine announced in the foregoing conclusions of law, wherefore article 5 of the Royal Decree of March 1886 sets forth : “that Alcaldes of district capitals shall be charged with the duty of demanding, at the expiration of every quarter, the payment of the sums apportioned to the other municipal councils, for the maintenence of jails, resorting for the purpose, when necessary, to compulsory proceedings, said district capitals being obliged to pay punctually in the quota apportioned among the municipalities of the district.”
    We adjudge that we should declare, and do declare, that this complaint does lie, and accordingly reverse the decision rendered by the Treasurer of Porto Rico, June 28, 1900, and declare that the Municipal Council of Caguas may and should prosecute the executory proceedings instituted by it against the Municipal Corporation of Comerlo, to recover the debt due it by the latter for jail expenses, without special imposition of costs. Thus by our judgment do we pronounce, order and sign. — Juan Morera Martinez, Henry P. Hord, Juan J. Perea.
    Notice of the judgment having been served September 13th last, upon the representative of the Municipal Council of Caguas, and upon the Hon. Attorney General on the 15th of the same month, the latter took an appeal therefrom,' which was allowed, and the parties were cited to appear before the Supreme Court on the 6th of October following.
    Upon receipt of the record in the this court, the Hon. Attorney General, on behalf of the People of Porto Rico, and Jacinto Texidor Esq., on behalf of the Municipal Council of Caguas, entered an appearance. The proper memorandum beiiig prepared and the papers submitted to the parties, a day was set for the hearing at which both parties were present.
    
      Mr. del Toro, (Fiscal), for appellant.
    
      Mr. Texidor, for respondent.
   Mb. Justice Hernández,

after making the above statement of the case, delivered the following opinion of the court:

The foregoing facts and legal propositions are accepted. It being the duty of the Municipal Corporation of Comerlo to pay to the Municipal Corporation of Caguas the amount of its liability for the maintenance of the jails of the district, as claimed, said payment should be made in the manner prescribed by the municipal law in force.

We adjudge that we should affirm, and do affirm, the judgment appealed from, rendered by the District Court of San Juan on August 29, 1902, with a modification to the effect that for the payment of the debt claimed, as the quota due for the maintenance of jails, the procedure established by aforesaid municipal law shall be followed.

Messrs. Chief Justice Quiñones, and Associate Justices Figueras, Sulzbacher and MacLeary, concurring.  