Arpin v. Porto Rico Power & L. Co.

we are in this case driven to the necessity of making this holding in order to hold the franchise in question good, because, even though the franchise itself purports to be a grant in the nature of a legislative act (see the copy of it at the end of this opinion), still, both houses of the legislature enacted a general law for the condemnation of private property for public use, on March 12, 1903, Session Laws P. R., p. 50, and we think a reasonable construction of its terms embraces the power of eminent domain required for the utilization of this particular franchise. Section 3 of the act in question, which provides for the taking, damaging, or destroying of private property for a public use, states that it may be done: "C. For the construction of irrigating canals, flumes, aqueducts for the water supply of cities and towns, sewers, drains, bridges, viaducts, dams, and weirs." We think, from an examination of the entire act, that these three latter words, "viaducts, dams, and weirs," are not limited by the previous words, "aqueducts for the water supply of cities and towns," in the light of the whole act, and therefore embrace the taking of whatever private property it may be necessary to take under this particular franchise. This act is a lengthy and most elaborate piece of legislation, and fully protects the rights of all owners of property, and provides for just compensation for the taking, and for a jury trial and all proper right of appeal to even the Supreme Court.

In addition, the legislature of Porto Rico, both houses also acting, passed an act on March 9, 1905, previous to the date of this franchise, providing that if, in the judgment of the executive council, it should appear that possession of property on either or both banks of this particular river at the falls is necessary for the granting of a proper franchise for the development of the water power for any public use beneficial to the people of

Arpin v. Porto Rico Power & L. Co.

Porto Rico, the executive council could, upon resolution, authorize condemnation proceedings to be brought by the attorney general of the island to condemn what land might be necessary for power houses, dams, and other improvements necessary to develop said power, and providing that the holder of the franchise should indemnify the people for the cost of such condemnation. Section 2 of the act declares the dispossession thus provided for to be of public utility, and the money is appropriated to pay for the expense of the condemnation.

There is also a statute in the Civil Code of the island, § 418, declaring that all insular public works mentioned in the act are declared to be of public utility, and that such declaration shall carry with it (§2) the application of the law of eminent domain to private property in accordance with the provisions of such law and the rules and regulations for the execution of it. And it is provided in § 430 of the same Code that "the ownership and use of waters belonging to corporations or private persons are subject to the law of eminent domain for reasons of public utility." It would seem, therefore, that there is ample law on the statute books of Porto Rico, even without conceding this much contested legislative power to the executive council alone, to render it possible for this concessionee to avail itself of the grant of the franchise which it possesses.

The court is unable to devest itself of the idea that the real meaning of the proviso in § 32 of the organic act, providing that all grants of franchises, rights, and privileges or concessions of a public or quasi-public nature shall be made by the executive council with the approval of the governor; and further providing that even when thus granted the franchise must be reported to Congress; and further providing by § 2 of the resolution of May 1, 1900, supra, that all railroad, street railway,

Arpin v. Porto Rico Power & L. Co.

telegraph, and telephone franchises, privileges, or concessions granted under § 32 aforesaid, must be approved by the President of the United States, and shall not be operative until so approved, is that the executive council and the governor were given power absolute to grant franchises without reference to the house of delegates, and that this grant of power includes the right to legislate, if necessary, for the exercise of eminent domain. What is the use of reading doubts into a series of statutes that are so plain? Where legislative or executive bodies exercise a discretion within their powers, courts have no power to interfere with them in the exercise of it. Gaines v. Thompson, 7 Wall. 347,.19 L. ed. 62; The Secretary v. McGarrahan (Cox v. United States) 9 Wall. 312, 19 L. ed. 583; Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; Marquez v. Frisbie, 101 U. S. 475, 25 L. ed. 801.

In fact, Congress, at another place in the organic act, conferred exclusive power on the executive council, as can be seen by § 36, where it is stated: "That the salaries of all officials of Porto Rico not appointed by the President, including deputies, assistants, and other help, shall be such, and be so paid out of the revenues of Porto Rico, as the executive council shall from time to time determine: Provided however, that the salary of no officer shall be either increased or diminished during his term of office." This, as can be seen, is a pretty important power, that in all the states of the Union is left to both houses of the legislature, yet, in this instance, it is conferred upon the executive council alone.

We have examined with care the ruling of the Supreme Court of the United States in the case of Perez v. Fernandez, 202 U. S. 90, 50 L. ed. 945, 26 Sup. Ct. Rep. 561, where it is held that it is the policy of the United States, evidenced in its legislation,

Arpin v. Porto Rico Power & L. Co.

to continue to the people of this island the laws and methods of practice they are familiar with. But we do not think the holding in that case militates against the position taken by the court here, because that decision refers more particularly to laws and methods of practice and administration, and not to kingly prerogatives. Nor do we think that the views here expressed conflict with anything in Ortega v. Lara, 202 U. S. 339, 50 L. ed. 1055, 26 Sup. Ct. Rep. 707, wherein it is held that when political and legislative powers over territory are transferred from another nation to the United States, the laws of the country transferring, unless inconsistent with the provisions of the Constitution and laws of the United States, applicable thereto, continue in force until abrogated or changed by or under the authority of the United States, and that this general rule is applied to Porto Rico under the organic act, because we consider the points involved here as clearly showing such inconsistency.

The only other question requiring attention is as to whether or not the use to which this waterfall is to be put under the franchise, that is, to generate electricity to be sold to the people of San Juan and other places in the island at rates not to exceed the maximum rates fixed in the franchise, is in fact such a public use as that private property can be taken under the law of eminent domain, when due compensation is made therefor, to make it available to the concessionees. In so far as the local statutes can make it so, the taking has been declared to be for a public use, p. 56, act of Porto Rico, 1905, supra, and provisions of Code, supra. Of course, no one will question the fact that the Constitution of the United States, by inference, and perhaps directly, prevents private property from being taken for a private use without the consent of the owner, with or without compensation, because it has been held it would be a violation

II. PORTO RICO.-22.

Arpin v. Porto Rico Power & L. Co.

of the 14th Amendment. Citizens' Sav. & L. Asso. v. Topeka, 20 Wall. 655, 20 L. ed. 455; Fallbrook Irrig. District v. Bradley, 164 U. S. 112, 41 L. ed. 369, 17 Sup. Ct. Rep. 56. And, while the Constitution of the United States has not been in terms extended to Porto Rico by Congress, still all courts and officials of the government, as well as Congress itself, when construing laws or fixing the rights of individuals in territories, are bound by its fundamental principles. People v. Daniels, 6 Utah, 288, 5 L.R.A. 444, 22 Pac. 159; Lewis, Em. Dom. § 12; Downes v. Bidwell, 182 U. S. 263, 45 L. ed. 1097, 21 Sup. Ct. Rep. 770; Church of Jesus Christ of L. D. S. v. United States, 136 U. S. 1, 34 L. ed. 481, 10 Sup. Ct. Rep. 792. But it must not be forgotten that there is no such thing as unlimited power in any branch of the government of the United States. Citizens' Sav. & L. Asso. v. Topeka, supra.

In Porto Rico, as elsewhere, private property cannot be taken for a private use, because the Code provides: "Sec. 355. No person shall be deprived of his ownership except by a competent authority, and for a justified purpose of public utility, and after having been properly indemnified." And, in this regard, riparian rights are as sacred as any other sort of property. They cannot be taken save for a public use and after just compensation. Clark v. Cambridge & A. Irrig. & Improv. Co. 45 Neb. 799, 64 N. W. 239; Lux v. Haggin, 69 Cal. 255, 10 Pac. 674. But the power to take private property for a public use is never questioned.

"The power to take private property for public uses in the exercise of the right of eminent domain is an incident of sovereignty, belonging to every independent government, and requiring no constitutional recognition, and it exists in the government of the United States." United States v. Jones, 109 U. S. 513,