GELPI v. TUGWELL, Governor, 123 F.2d 377

WOODBURY, Circuit Judge. This appeal is from a judgment of the Supreme Court of Puerto Rico affirming- a judgment of the Chief Justice of that court sitting in vacation denying the plaintiff’s petition for a writ of mandamus. The jurisdiction of this court is predicated upon certain federal questions raised and considered in the court below. The Governor of Puerto Rico on April 17, 1936, appointed the plaintiff for a term of four years to the office of secretary of the District Court of Mayaguez. By executive order on August 12, 1938, he removed her from that office as of April 25 of that year.

The plaintiff thereupon petitioned, as above described, for a writ of mandamus alleging therein that she had been illegally removed from office and praying that: “a peremptory writ of mandamus be issued against the Governor of Puerto Rico ordering him to reinstate the petitioner as secretary of the Mayaguez District Court.” The plaintiff’s appeal must be dismissed. She makes no claim for damages either as measured by the salary withheld from her during the remainder of her term of office or as measured in any other way, nor can she do so in this proceeding under the rule of Belaval v. Todd, 24 P.R. 24, 765.

Her only prayer is for reinstatement in office. But, since her term of office expired over eighteen months ago and we cannot assume that she is still entitled to it as a holdover (Tennessee v. Condon, 189 U.S. 64, 70, 23 S.Ct. 579, 47 L.Ed. 709), it is now impossible, even if we should be of opinion that her claim was meritorious, to grant her this relief. Our duty in the premises was pointed out by the Supreme Court of the United States in the case of Mills v.

Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293, in the following language: “The duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.

It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.” The above case has been quoted from and cited with approval by the court which rendered it many times since. Tennessee v. Condon, 189 U.S. 64, 23 S.Ct. 579, 47 L.Ed. 709; Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 48 L.Ed. 913; Security Life Ins.

Co. v. Prewitt, 200 U.S. 446, 26 S.Ct. 314, 50 L.Ed. 545; Blackman v. Stone, 300 U.S. 641, 57 S.Ct. 514, 81 L.Ed. 856. The situation of the plaintiff is not altered by her prayer for costs, Tennessee v. Condon, supra, and we fail to see how the civil disabilities, if any, which may be imposed upon her because of her removal from office (Laws, P.R. (1931), pp. 600, 608), can render it possible for us to grant the impossible relief for which she asks.

Since appellant, without fault on her part, is prevented from obtaining a review of the judgment below merely because, from intervening events, the appeal has become moot, that judgment will not become res judicata on the issues involved, in any subsequent litigation based upon a different cause of action. Appellant will be free to attack collaterally the executive order of removal, either in a suit for salary, or in an appropriate proceeding to test her eligibility to hold certain civil offices should she later aspire thereto. The appeal is dismissed.