Socialist Party v. Towner

Mr. Justice Wolf delivered the opinion of the conrt. To obtain a writ of mandamus from this court the petitioner, the Socialist Party, has presented no facts that are essentially different from those that were placed before us in the petition of Bolívar Pagán whose application was denied [172] by our judgment and opinion of February 3, 1926. Under section 1 of tbe Elections Law of 1924, Laws of that year, page 1, the two persons representing the two principal political parties of the Island are to be appointed by the Governor on recommendation of the central organizations of the said parties, and Bolívar Pagan claimed the right to be named as representing the Socialist Party. Bolivar Pagán as the sole person proposed for the Board of Elections, had a sufficient interest to present the writ and our judgment in no wise was based on such lack of interest. We refused the writ on other grounds. We pointed out in Torres v. Municipal Council of Guánica, 33 P.R.R. 337, that while a political party might have a correlative right the person entitled to a seat in a municipal assembly could not be excluded. Coming to the merits, we are met with the suggestion that the instant case can not be distinguished from the Torres Case, Supra. Verbally there is not much, if any, difference in some of the words used by the Legislature. In the Municipal Case the Assembly should name “on recommendation of the local directing organization; ” for the Election Board the Governor should name “at the recommendation of the central governing board of the party.” The conditions, however, surrounding the two namings are totally distinct. Torres v. Guánica proceeded on the theory that the real entity with power to appoint was the interested political party and that the power in the municipal assembly was merely residuary or ultimate. Tracing a little the history of political appointments we said that the Legislature had the right to place the filling of a vacancy in a political party -and had done so. A moving idea also was that the will of .a sovereign people in electing representatives might otherwise be defeated. While an election board is highly important it has been [173] selected in innumerable ways. In Porto Rico it is a permanent board. It is not elected and responsibility for its selection bas been placed in tlie Governor directly by the Legislature and indirectly by the Organic Act. “That the supreme executive power shall be vested in an executive officer whose official title shall be ‘The Governor of Porto Rico.’ ” “He shall have general supervision and control of all departments and bureaus and of the Government of Porto Rico.” “He shall commission all officers that he may be authorized to appoint.” These are some of the provisions of section 12 of the Organic Act. As indicated in the case we have been analyzing, the power of appointment may be vested by the Legislature in the Governor or elsewhere; perhaps with certain limitations rot specifically mentioned in the Organic Act. The principal consideration of this opinion is that when the Legislature elects to put a power of appointment in the Governor the authority so conferred falls within the executive appointing power with the consequent privileges and responsibilities. While the political scientists doubt the complete accuracy of the tripartite division of the governmental powers in the Federal Government, the States and Territories, yet for most legal purposes there is a clear line of cleavage, as among the executive, legislative and judicial powers. In the Governor is vested the executive power. Appointments are historically and normally that part of the executive power wherein discretion may be used. 38 C. J. 700. While the Legislature may put limitations on both the executive and the judicial power, it can not annul or destroy either. Some of the original power must remain. The power of appointment is fundamentally one of selection and discretion; therefore, when the Legislature, to fill an election board, invokes the executive appointing power with' its corresponding discrimination and responsibility, it must intend the ordinary [174] consequences. If the appointment to be made in no -wise falls within the ordinary executive appointing* powers of the Governor we do not believe that the Legislature may compel the Governor to act at all. Under hi's draft of executive power the Governor cannot be called upon to make an appointment without exercising discretion. Reverting to the Torres Case, it is doubtful whether in selecting members for its ranks, when the choice falls upon the municipal assembly, it is exercising an executive power of appointment. The duty devolving upon the Governor, as we said in Pagán v. Towner, supra, is discretional up to a certain point. While the court may not control the particular selection to he made, it may limit the said selection to the ranks of the Socialist Party and the persons recommended by it, always supposing that the said party did obtain the second highest number of votes in the last election. Such a limitation the Legislature has a right to make. Other cases might arise where the writ would lie, but the petitioner has brought itself within no recognizable exception to the rule as laid down by us in the Pagán Case, supra, that the Governor is not bound to name the sole person whose name is submitted. Furthermore, despite the fact that three petitions in the two cases for the naming of Bolívar Pagán have been presented to us the petitioner has failed to set forth the reasons given by the Governor for refusing to name the said Bolívar Pagán, although the petition tends to show .that the reasons were known to petitioner. Non constat, independently of the foregoing considerations, that the reasons for not naming Bolívar Pagán would have justified the action of the Governor. The petitioner failed to put the whole facts before this court. The writ will not issue.