
    RAMOS, Plff., v. PEOPLE OF PORTO RICO, Dft.
    San Juan,
    Law,
    No. 682.
    Stay op Execution Directed by Mandate.
    Supreme Court Mandate — Lower Court.
    1. Where the direction of the Supreme Court is clear, the lower court can do nothing except execute the order; hut a certain amount of discretion is allowed the lower court as to the method of such execution.
    Supreme Court — Federal Court in Porto Rico.
    2. The Federal court of Porto Rico may, in its discretion, control the time and mode of enforcing the mandate of the Supreme Court so as to avoid injustice or undue hardship.
    
      Government — Individual.
    3. An individual may realize upon his property at will, but a government can only pay out of current revenues after appropriation. Execution against the property of a state means a different thing from execution against the property of a citizen, and the lower court may take this into account in enforcing the execution directed by the Supreme Court.
    Stay of Execution — Equalizing Conditions.
    4. While the government will be protected in such manner as to equalize it with an individual debtor, the interest of the judgment creditor will be protected by allowing stay of execution only upon payment by the government of interest and expenses.
    Opinion filed July 10, 1914.
    
      Mr. Frank Antonsanti, for plaintiff.
    
      Mr. W. H. Pitkin, Attorney General, and Mr. H. L. Kern, Assistant Attorney General, for defendant.
   HamiltoN, Judge,

delivered the following opinion:

This court heretofore directed the stay of execution in this case for thirty days, now soon to expire, and the defendant makes application that the stay be extended until the adjournment of the next session of the legislature of Porto Rico, filing therewith certain affidavits and other proof. The facts have been sufficiently stated in the previous opinion of this court June 3, 1914.

The action of'this court was taken from the necessity of the case, in order to allow the parties time to see what could be done, whether by application to the Supreme Court or to branches of tbe local government. Since that time tbe Supreme Court adjourned, and tbe local government makes tbe offer to pay $750 cash on tbe judgment, and to pay over tbe income of tbe property.

Tbe first thing to be done is to see whether this court has any power to proceed further in tbe matter.

1. Tbe general rule unquestionably is that where tbe mandate or other direction of tbe Supreme Court is clear, tbe lower court has no authority to do anything except to execute tbe order. It cannot vary tbe direction or do anything except settle what has been remanded. Sibbald v. United States, 12 Pet. 488, 9 L. ed. 1167; West v. Brashear, 14 Pet. 51, 10 L. ed. 350;. The Santa Maria, 10 Wheat. 439, 6 L. ed. 360; Re Washington & G. R. Co. 140 U. S. 91, 35 L. ed. 339, 11 Sup. Ct. Rep. 673.

On tbe other band, a certain amount of discretion must be allowed to the lower court as to the method of executing tbe decree of tbe Supreme Court. While tbe general direction • is. that of tbe Supreme Court, it is, like all other executions, subject to tbe proper control of tbe lower court. Tbe mandate is; to be interpreted according to the subject-matter to which it has been applied, and not in a manner to cause injustice. Story v. Livingston, 13 Pet. 359, 10 L. ed. 200. While tbe lower court must yield obedience to tbe mandate, yet it is to be am intelligent, and not a blind, obedience. People ex rel. Warren v. Carpenter, 29 Colo. 365, 68 Pac. 221; Brown v. Walker, 84 Fed. 532; Ex parte Burrill, 24 Cal. 350.

. 2. It would seem, therefore, that this-court has power'to control tbe time and mode of enforcing tbe mandate 'of tbe Supreme Court so as to avoid injustice or undue hardship. The situation of Porto Pico, makes this peculiarly important. It is a possession or territory of the United States 1,500 miles from the United States, with many institutions different from those of the mainland. This court must exercise its judicial discretion so as to give effect to the law, and not to the will of the judge. Tripp v. Cook, 26 Wend. 143. The court thinks that it should exercise that discretion in this case. If it is wrong, the wrong can be remedied upon the reassembling of the Supreme Court in October next, while if this court should fail to act and injustice resulted, there would be no remedy in any form.

The facts of this case seem to be that the legislature in making appropriations for the University of Porto Kico took into account the supposed ownership by the university of the es-cheated property of Eliza Kortright, and overlooked entirely the fact that this was not only in litigation, but pending before the Supreme Court. The judgment in the case amounts to about $7,600 and it has been levied upon this Kortright property. The evidence varies as to the value of the property. The plaintiff shows that it is assessed for taxes at $9,200, while the defendant introduces affidavits of several competent witnesses that it is worth from $15,000 to $17,000. If sold under execution, there is, under the local law, no power in the defendant to purchase and no right of redemption. While these serious consequences will result to the defendant, the worst that can happen to the plaintiff is that he will be kept out of his money for such time as the execution may be stayed. The law has fixed a rule governing the case of forbearance of the collection of a debt. It has deemed that interest is in general a sufficient compensation.

3. Tbe court cannot ignore tbe fact that there is a difference between a government and an individual so far as relates to tbe handling of property and tbe power to realize upon it. An in dividual can sell or mortgage at will; tbe government can only pay out of tbe current revenues and after specific appropriation by tbe legislative department. In Porto Rico tbe legislature bad adjourned before this mandate was issued by tbe Supreme Court, and will not reassemble until January, 1915. Provision is, of course, made for extra sessions, but this is an expensive remedy. A session of tbe legislature would cost more than tbe debt itself. Execution means a different thing, therefore, when ordered against tbe property of tbe state from execution issued against tbe property of a citizen. This is a part of public administration which tbe court judicially knows. If, therefore, tbe court is to put tbe defendant, tbe People of Porto Rico, upon equality with an individual citizen in tbe matter of execution, it must delay tbe enforcement of tbe execution until such time as an appropriation can be bad. We have tbe assurance of tbe governor that be will recommend such an appropriation, and tbe court will not lightly assume that tbe legislature will not conform to tbe recommendation.

4. .On tbe other band, tbe interest of tbe plaintiff must be conserved. He is not to blame for tbe condition of tbe defendant. If plaintiff is to wait on the execution, enough money to pay interest and expenses of tbe delay must be provided by tbe defendant. No question of tbe ultimate enforcement of tbe execution is raised. There can be no further appeal or variation of tbe rights of tbe plaintiff.

An order, therefore, will be entered providing that, upon tbe payment by tbe defendant into court or to tbe plaintiff of tbe sum of $700 oh account of tbe judgment, and payment also of costs of these proceedings, execution for the balance is stayed until the adjournment of the next session of the legislature, not later than March 1, 1915, and that in the meantime the defendant shall pay over to the plaintiff from time to time the net income of the property levied on, to be also credited on the judgment.  