
    People, Plaintiff and Appellee, v. Grau, Defendant and Appellant.
    Appeal from the District Court of Arecibo in a Prosecution for Violation of Section 93 of the Penal Code.
    No. 1647.
    Decided June 21, 1921.
    Public Employees. — The act of a sanitation inspector in ordering the closing of an establishment without having authority to do so does not constitute the crime defined and penalized by section 93 of the Penal Code.
    The facts are stated in the opinion.
    
      Mr. José B. Aponte for the appellant.
    
      Mr. José E. Figueras, Fiscal, for the appellee.
   Mb. Justice del Tobo

delivered the opinion of the court.

Eafael Grau was charged with and convicted of a violation of section 93 of the Penal Code. The pertinent part of the information is as follows:

"That in Morovis, which forms part of the municipal judicial district of Ciales, of the Judicial District of Arecibo, P. R., on May 10, 1920, between 10 and 11 a. m., then and there the said Rafael G-rau wilfully and criminally, taking advantage of being a Sanitation Inspector of the Municipality of Morovis and without complying with the requirements of the Sanitation Law in that connection and without having orders from the Insular Department of Sanitation, closed a tobacco-stripping establishment belonging to Angel M. Quintero, thus knowingly violating the provisions of the Sanitation Law and the Regulations regarding the closing of establishment.”

Section 93 of the Penal Code is as follows:

“Every person holding a public office, who wilfully refuses or neglects to perform the duties thereof, -or who violates any provision of law relating to his duties or the duties of his office, for which some other punishment is not prescribed, is punishable by fine not exceeding five thousand (5,000) dollars, or imprisonment in jail not exceeding one year or both.”

The judgment appealed from is as follows:

“And the court on this day, the defendant being present, and considering the evidence examined, finds the said Rafael Grau guilty of a violation of the second portion of section 93 of tbe Penal Code in that he violated a provision of law regarding his duties, that is, sections 1 and 28 of Sanitary Regulations No. 14 of January 28, 1913, and consequently sentences the said defendant Rafael Grau to pay a fine of thirty dollars or to imprisonment for one day in the district jail for each dollar not paid and to pay the costs of this prosecution; and in accordance with the provisions of section 24 of the Penal Code it is also ordered that the said Rafael Grau be removed from the office of Sanitation Inspector of the Municipality of Morovis which he has been occupying, and this judgment when final shall be communicated to the Municipal Commissioner of Sanitation of Mo-rovis for his information.”

A statement of the case is included in the record. According to it Angel Maria Quintero testified that he was the owner of a tobacco-stripping* establishment; that the defendant went there and observing some sanitary defects ordered him to close the establishment, putting outside a sign to that effect, but that as the witness had moist tobacco in the place he so informed the defendant and the police and did not close the establishment.

Dr. Ruiz Soler, Insular Commissioner of Health, said that a local sanitation inspector can not, without a written order from the Department, close any building, and that in this case he gave no such order.

Doctor Graulau, Sanitation Commissioner of Morovis, said that Quintero had the tobacco-stripping establishment open by virtue of a provisional permit which the witness gave him.

Insular policeman G-allardo said, among other things:

“I was there at the stripping establishment because of a strike of the strippers and while there in the factory Sanitation Inspector Grau came and said that he was going to inspect the shop and he was there observing its defects and informed Quintero of those he found, telling him that the shop was closed, whereupon Quintero asked him to give him the order in writing and he said that he would do so in the town because at that moment he lacked something or other. Then Quintero said that he would not close, but would continue working, and so he continued working and we came hack to town.”

It appears, then, that the act committed by the defendant in his capacity as local sanitation inspector consists in his having ordered the closing of a certain establishment without authority to do so, his order not having been obeyed.

Does this action constitute an offense as defined and penalized by section 93 of the Penal Code?

The inspector did not obstinately refuse or neglect to perform the duties of his office; but it is alleged by the Fiscal of this court that he violated certain provisions of - law in connection with his office and therefore committed the offense of which he was convicted. The Fiscal argues as follows:

“It is clear that section 93 must be construed in connection with the authority which the local sanitation inspector had at that moment in order to ascertain whether he violated any provision of law in relation to his office, as provided by the statute.”

The Fiscal quotes section 30 of the Act of March 14, 1912, to reorganize the sanitation service, and sections 1 and 21 of Sanitary Regulations No. 14, and then goes on to say:

‘ ‘ Therefore, in accordance with 'the law as well as with the regulations cited, the sole authority or obligation of the local sanitation inspector was to enter Quintero’s establishment for the purpose of determining the sanitary defects existing therein, but it appears nowhere in the law or in the regulations that he had any authority to order the closing of the establishment, as he did on the date to which the complaint refers, which fact, we think, was well known to the inspector inasmuch as it is to be presumed that he knew the duties of his office.
“The only question that might be raised in this ease is that section 93 of the Penal Code refers to the violation of any provision of law relative to his duties or the duties of his office, and inasmuch as what the sanitation inspector did in this case was to exceed his authority, taking upon himself the authority of another officer, it 'ip clear that at first sight it would seem that he did not violate any law in connection with his office, but rather that he assumed other duties which did not belong' to him and therefore did not violate section 93 as charged. But against this it may be also argued that inasmuch as the said officer had his duties defined in the case in question, if he went beyond them and overstepped his authority in order to assume the authority of another officer, it is clear that he violated the provisions of law relating to his office, for such assumption of authority can be considered nothing but a violation of the authority conferred upon him by law by reason of his office.”

The Fiscal’s argument is not without reason, but in our opinion it can not be admitted as decisive. To bring the act charged and proved within the meaning of section 93 of the code would require forced construction. The law would have to be applied by expansion and this course should not be followed in criminal cases, particularly under statutes which, like section 93 of the Code, are so broad that perhaps some literal violations of them could not be penalized, as said in the case of People v. Rivera, 25 P. R. R. 569.

The parties have not cited, nor have we been able to find, any precedents for said section 93, or jurisprudence applicable.

By virtue of the foregoing we are of the opinion that the judgment appealed from must be

Reversed.

Chief Justice Hernández and Justices Wolf, Aldrey and Hutchison concurred.  