Montes v. Sancho , 82 F.2d 25 ( 1936 )

BINGHAM, Circuit Judge

(after stating the facts as above).

The main question to be determined is whether the Supreme Court of Puerto Rico erred in refusing to issue a writ of mandamus requiring the Treasurer of Puerto Rico to restore the plaintiff to the office of clerk in the Treasury Department of Puerto Rico, for the collection of the gasoline tax, and dismissing the complaint. In that court the following ‘facts were found to be undisputed:

“On November 1, 1930, the Treasurer of Puerto Rico appointed the petitioner to the position of clerk in the internal revenue office of Ponce, P. R.; at a salary of $1,000 per annum; that the petitioner accepted the position, moved from San Juan to Ponce and worked in the position for four days; that he then applied for a thirty-day sick leave, which was granted, and at its expiration applied for a further sick leave, which was refused, and he was discharged on November 10 [December 10] 1930.”

It is apparent that the office of clerk of the gasoline tax in the treasurer’s office at San Juan, P. R., is incompatible with the office of clerk in the internal revenue office at Ponce — that the same person cannot perform the duties of the two offices in widely separated places at the same time — and the question arises whether the plaintiff, by accepting the office at Ponce, vacated the office at San Juan. In Lopez v. Martorell, 59 F.(2d) 176, 178, this court pointed out that “both under the common law and the civil law, and without regard to statute, an office holder was not ineligible to appointment or election to another incompatible office, but acceptance of the latter vacated the former”; and that this rule is of “great antiquity in the common law and it probably is in the civil law,” citing Howard v. Harrington, 114 Mc. 443, 96 A. 769, L.R.A.1917A, 211; Aneses v. Executive Council, 38 P.R.R. 240, at page 248. The result is that, although the two offices were incompatible, the plaintiff was nevertheless eligible for appointment to the Ponce office, and by accepting the Ponce office he vacated the one at San Juan; and that this is so whether he intended to abandon the San Juan office or not. The plaintiff, having vacated the office in the Treasury Department at San Juan, is not entitled to be restored to it, and the Supreme Court did not err in refusing to issue the writ and in dismissing the petition.

If the plaintiff is entitled to any portion of the salary pertaining to the office at San Juan for the period from August 22, 1930, to November 1, 1930, when he accepted the office at Ponce, his remedy at law is adequate. The mandamus statute expressly provides that the writ may not issue in any case where there is a plain and adequate remedy in the ordinary course of the law.

The appeal' to this court was allowed April 27, 1934. At that time three years and some months had elapsed since the plaintiff had ceased to occupy the office in question. Consequently the amount in controversy on April 27, 1934, his salary being $2,000 a year, exceeded $6,-000. It is the amount in controversy at the time the appeal to this court is taken that determines our jurisdiction. Municipality of Rio Piedras v. Serra, Garabis & Co. (C.C.A.) 65 F.(2d) 691, 697, 698.

For the reasons above given, the judgment of the Supreme Court of Puerto Rico is affirmed.