
    Torres v. The Secretary of Porto Rico.
    Application for a Writ of Mandamus.
    
    No. 9.
    Decided October 26, 1906.
    Mandamus — Authority of Respondent to Perform Act. — Where the respondent in a mandamus proceeding has not the authority to perform the act sought to be required under such proceeding, the application must be denied.
    The facts are stated in the opinion.
    
      Messrs. Acuña and Mendez for petitioner.
    
      Mr. Bossy, fiscal, for respondent.
   Mr. Justice Wole

delivered the opinion of the court.

This is a petition in mandamus directed against the Secretary of Porto Eico which would require him to erase from the list of candidates for municipal officers in the municipality of Eio G-rande certain names presented by the party “Unionista Puro,” namely, Don Geraldo Baldrich, Don Santiago Eexach Porrata, Don José Vivas Monge y Don Oscar Pascual Quid: gley y Alonso, because the said candidates for various reasons were not eligible. The Secretary of Porto Eico answered the writ to show cause, admitting some of the facts of the- petition and neither admitting nor denying some of the other facts and submitting the latter to the court. Some of the facts so requiring proof are the nonpayment of taxes, the lack of age of one of the .candidates and that none of the candidates had a right, to practice a profession according to the laws in force in Porto Eico. The respondent then, alleged, that before the service of the writ of mandamus was served on him the list of candidates, required by law, liad passed out of bis power as such Secretary and into the power of the Executive Council. The petitioner was not represented at the hearing, and presented no proof of the facts of the petition. If there were no other reason for the dismissal of the petition the failure to prove the allegations would be fatal to the writ, the burden of proof being on the petitioner.

However, the new matter set up in the answer of the respondent and not controverted by the petitioner must be accepted by this court. On the 12th day of October, 1906, when the writ of mandamus was served on him, the Secretary of Porto Eico no longer held the legal custody of the list of candidates of which complaint is made in the petition, all such candidates having been certified by him, as required by law, to the Executive Council. There is therefore nothing before the court on which to base the issuance of a peremptory writ, and the petition for such writ must be denied.

Denied.

Chief Justice Quiñones and Justices Hernández, Figueras and MaeLeary concurred.  