Jurisdictional Statement — Sociedad De Mario Mercado E Hijos v. Puerto Rico

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JOHN: F. DAVIS, CLERK -

IN THE

Supreme Court of the Vuited States

OcTOBER TERM, 1965

No. . 7 86 fe

‘Sociedad de Mario Mercado e Hijos, Appellants na

Vv.

Commonwealth of Puerto Rico, etc., Appellee

a

Appeal. From the Supreme Court of Puerto Rico

JURISDICTIONAL STATEMENT: _

—_—_——

Prepro M. Porrata and

ss CuarLes R. CupPBILL,

Attorneys for Appellant

P. O. Box 1124, Ponee, P. R.

*

-

- Press or Byron S. ADAMS, WASHINGTON, D. Cc:

EE a

* SUBJECT INDEX |

. . Page

JURISDICTIONAL NG ii kc vicaveacccdccs ae |

APPENDIX a ee van<tas sehens Sten eee Gacuae la

Bxhibit 1 .....:....... pete Aka te ceccueaee ae

I a esis incase hase asuceence Ome =

MET Si iccak SN scinceiais sivetsteaanaes Sa

Fe ere beh cannkuees pakantech oa ae

(ETRE LEAR, SBE REE ES Raia ARES 14a

BSE RR ata eo rre eal Onn pee Siren RS 16a

ESSN AP ern ceny ea ee » 19a

Exhibit F .........0.....5. akev sce paaasekiee elk 2la

| 8 ERD ESSRE renee inet Wee ORC HHT EIC .. 26a

WS occ Seca aie tee . Sle

IA aoe ss crecuag do eee 38a

NE a cin icteep ieee ani 39a

I oie ice te cri ee te 41a

WN Dy cnccsvkaescs iaeierah cal 42a

I oe oe oe acco ecky ee

Exhibit N ........... ORG Mie Told Mea or

Exhibit O ............. pin eeaeteeeanets aan 66a

Exhibit P ...... iccews geil cinkcaceniee oe

Exhibit Q ....... ineacudetys pikustineer cee 718

‘ii Subject Index Continued

| TABLE OF CASES, STATUTES AND: OTHER

“AUTHORITIES ts |

| Srarures: coat Page

* Laws of Puerto Rico Arinotated, Vol.-23, See. 278(e)

*ORR (BR) *. nx 0060 Spe heetths snes eSaeeSas eA058 2,4, la

Cases: ees ahha :

~;, Bermap v; Parker, 368-U.S. 26... 2... 0. ccccccecess 6, 39a.

Braniff Airways v. Nebraska State Board of ‘Equali-

zation and’ Assessment, 347 U.S. 590 wv. oc... ee! 9

Brown Shoe Co. v. United’ States, $70 U.S. 204 ......; 9

Commonwealth v. Fajardo Sugar Co., 79 P.R. R: 303... 5,6

Hickman v. Taylor, 329 U.S. 495 ..............0.008 29a

People v. ‘Eastern Sugar Associates, 156 F..2d 316

tit Cir. 1946), cert. denied 329 US. SES 6

Phillips :Chemical Co. v. Dumas .Independent School

eh UR Se eae Pee ee rete 9

Shell Co. v. District Court, 73 P. RR. — rer 28a, 29a

Sierra, See. of Labor v. Superior Court, 81 P.R.

‘rs BOD Aa swApnrcarsdn etn uh se s0escen en cOeas wes a, 28a |

S./ Tiedman v. American Pigment Corporation, 253: F. od

. SETS: Se eer ee owhecusdes 28a

United States v. Carmack, 399 eee . 6, 39a

‘United States v. Certain Real Estate, 217 F. 2d 920. 6, 40a

United States v, Procter and Gamble, 356 U.S. 677..... 28a

“United States v. Reynolds, 345 U.Sr1 .2........0005. 28a

' United States v. — oh} Soe eetuacekaat 6, 39a

MISCELLANEOUS: 3 , ze

17 Federal Rules. Service § 30b.352, case no. 1 mye “e

70 Harvard Law ee Se kadueasns ikedbaceuan 28a *

. i“

> tee , oe

os INTHE |

| Supreme Court of the United States.”

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(ee

CommonwEaLTH or Pusrto Rico, erc., Plaintiff-Appellee

| Ia |

_Socrepap Marto Mercavo E H1sos, Defendants-Appellants

’ ConpeMNaTion PRocEEDINGS

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_ Appeal From the Supreme Court of Puerto Rico

JURISDICTIONAL STATEMENT

pe ee

\

To THE HonoraBie Court:

This case involves an appeal from the decision and opin-

ion of the Supreme Court of the Commonwealth of Puerto .

Riecc.in the case of Commonwealth of Puerto Rico,. et als.

v. Sociedad Mario Mercado e Hijos, case-number. 64-24 not

yet reported in the official reports of the said court.

The jurisdiction of this Honorable Court i is invoked under >

the provisions of section 1258, paragraph 2, Title 28

U.S.C.A. This is an appeal from a judgment entered in con-

Octoser TERM, 1965 ¢

tx :

2

demnation. proceedings in which the- constitutionality of

Law No. 99. of April 18, 1952 (Laws of Puerto Rico An-

notated, Vol. 23, sec. 278 (g) and (n); Appendix hereto,

Exhibit 1, p.,1a) which authorizes the condemnation of .

private property by the governor of Puerto Rico on behalf

of the Puerto Rico Industrial Development Company to be

sold or leased to private individuals for the purpose of __

establishing factories (tax exempted) on such properties,

is ‘assailed as repugnant té the Constitution of the United

* States of America, and the proceedings conducted in the

case.. . ae

_In this. case, the. ennhinnbicaiti of ‘Puerto Rico. con-

ie demned 70.8397 cuerdas of land on behalf of the Puerto

Rico Industrial Development Company in 1959 of which,

68.3353 cuerdas were the property of defendant-appellant

herein. The Commonwealth government deposited with

the Clerk of the Court. the sum of $121,827.40. This land

was to be used by the Puerto Rico Industrial Development

Company as an industrial site for tax exempted plants.

‘The government filed a motion for inimediate reer

f

and acquisition which was granted by the Court o

Domain by order dated September 11, 1959.

Appellant - herein raised several constitutional issues

minent

under the Federal constitution in the trial court (‘Type-

written record on Appeal, pages 15-18; Appendix, Exhibit

A, p. 5a) alleging that the propesed use was not a public

one, as it is contemplated i in the Constitution of the United

States of America, and that the selection of the land .con-

demned was done arbitrarily. It was also alleged that the

amount deposited did not constitute the fair and just com-

pensation contemplated in the Constitutions of the. United

States and the Commonwealth of Puerto Rico.

Appellant operates a sugar. factory in the town of Guaya-

nilla, Puerto Rico under the name of Central Rufina .and

is. the owner and cultivates land in the southern part of»

—Puerto Rico on which it raises-its raw material (sugar

i

3 ° . e? e

cane). The land condemned was dedicated totally to the

production of this raw material. The appellant claimed

before the trial equrt and states before this Honorable.

Court, that to deprive it of land where it raises its raw

material for its factory and to give this land to private in-

dividuals for their own private use, is not constitutionally

valid and is a clear abuse of the be an to epndemn private

property.

The: Constitutional issues were disposed of by the Court .

6f Eminent Domain (Superior Court. of Puerto Rico) by

order of March 23, 1960 signed by P. Santos Borges, Judge.

(Typewritten Record on Seeand page <2; Appendix, Ex-*

hibit B, p. 8a).

Defendant-appellant filed an answer ,to the coniplaint

dated April 16, 1960 in which, among other defenses, it

_stated that the compensation deposited did not constitute —

fair and reasonable compensation. under the law. As spe- -.

cial defenses it. raised the following:

_ (1) The use was not a public use as ‘conbeeaiain’ in

the Fifth Amendment to the United _— Constite-

tion.

(2) Thé use of the power to condemn to: deprive an

established industry of land where it raised its raw

material for the purpose of delivering the said land

to private enterprises is an illegal and unconstitutional

exercise of that power.

st (3) The determination and selection of the land to

be condemned was arbitrary and prejudicial.

_ (4) The order of. the court depriving defendant of

_ its property prior.ta the determination of the fair and

. reasonable compensation was void as it violated the :

‘provisions of.the U. S. Constitution and the Constitu- . -

tion of the Commonwealth of Puerto Rice. ¢Appen-

dix, Exhibit C, P. lla).

On March 17, 1961 defendant filed. an vemeaas answer to

the complaint i in which it raised the following defenses:

| (1) Neither the statutory provisions cited in para-

graph 1 of the complaint nor any other statutes of the

Commonwealth of Puerto Rico authorize this expro-

priation..

(2) The satis sited in shania 1 of. the com-

3 plaint as applied to this land and this defendant in this

proceedings deprive defendant of property without due

process of law in violation of: Article II, Section 7 of

the Constitution of Puerto Rico and in violation of the

Fifth and Fourteenth Amendments to the Constitution

of the United States ip that this expropriation is not

for a public. purpose. ‘

(3) The expropriation in this case of this particular

tract of land is arbitrary, capricious, unreasonable and

irrational and thus deprives defendant of its property |

-without.due process of law in violation of article II, -.

section 7 of the Constitution of Puerto Rico and in

violation of the Fifth and Fourteenth Amendments to

the Constitution. of the United States.

_ (4) The expropriation in this~ case eonstituies a

taking of private property for a non-public use in

violation of article II, section 9 of the Constitution of

Puerto Rico and in violation of the-Fifth and Four-

teenth Amendments to ne Constitition of the United

_ States.

(5) Lew number 99 of April 18, 1952, éintaine in-

sufficient standards to guide the administrative exer-

cise of the power to acquire land by expropriation and

thus constitutes an unlawful delegation of legislative

power in violation of article III, section 1 of the Con-

stitution of Puerto Rico.

(6) So much of Law Number 99 of: April 18, 1952,

_ as authorizes expropriations of property by or on be-

/

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Pe ANIM LEER SS ORD IPD ILL ODER LEN RANA ACR ALU ENN, Set ges DHE Seton han taeaeaen a i ca th a css

Bie ca say

bx owe aeind

° 5 ‘

half-of.the Puerto Rico Industrial Development Com-

pany is unconstitutionally vague, and thus its applica- °.

tion to this land and this defendant deprives defend-

ant of property without due process of law in violation

of article II, section 7 of the Constitution of Puerto.

Rico and in violation of the Fifth and Fourteenth

amendments to the Constitution of the United States.

(7).The land expropriated in this case is an integral

part of a larger tract of land owned by the defendant

devoted to agriculture and industréal use. This expro-

priation has.caused damage to defendants remaining

land and to the agricultural, ‘commercial and industrial

enterprise ‘connected therewith.

Copy of said amended. answer is attached to this State-.

ment in the Appendix as Exhibit DD (p. 16a):

Prior to the hearing of the case on the merits, defendant-

appellant submitted an interrogatory upon plaintiff under

the Rules of Civil Procedure of Puerto Rico (Appendix,

Exhibit E, p. 19a), to which. plaintiff raised several. ob-

jections (Appendix, Exhibit F, p.“2la) that were sus-

tained by tlie Court of Eminent Domain. The questions

were directed to discover evidence as to the alleged arbi-

trary selection of the land. Upon Writ of Certiorari to the

Supreme Court of Puerto Rico (Appendix, Exhibit G, p.

26a), that court by order issued July 14, 1961 (Appendix,

_ Exhibit H, p. 31a), ordered Plaintiff to answer certain

questions but sustained the objections related to the arbi-

trary selection of the land, holding that it is not for the

courts ... to sort and choose among the various parcels

selected for condemnation and that the. rights of property

- owners are satisfied when they receive that just compensa-

tion which the Fifth Amendment exacts as the price ‘of

taking. The court held that this case concerned ‘‘a con-

demnation undertaken by a public agency for obvious public

purposes, that is, for industrial development.’’? It based

this affirmation on‘a previous case decided by it, Common-

an ss

.wealth v. Fajardo Sugar Co., 79 P.R.R. 303 (1956), and

People v. Eastern Sugar Associates, 156 F. 2d 316. (C.C.A.

1, 1946), cert. denied in 329 U.S. 772.

_The court further stated that defendant-appellant was

- in estoppel to raise the said defense, since it had with- .

drawn the amount deposited by the State, and that the

acceptance of the said sum precluded defendant from argu-

ing any other issue which does not relate exclusively to

the amount of the compensation. The court: in so ruling,

accepted as. established, facts not present in the case, be-

cause the ‘‘motion for withdrawal of funds’’ (Appendix, |

Exhibit D, p. 14a) very clearly states in its paragraph 2,

‘‘that defendant wishes to withdraw the aforesaid sum

without. prejudice to its allegations in this case.’’ The .

_ Court overlooked the contents of the motion and the fact

that defendant had been already deprived ofthe use and

benefit of the property by the order of the Court of Emi-

nent Domain transfering immediate’ title and possession to

plaintiff.

Defendant moved for reconsideration of the said order « on

May 11, 1962 (Appendix, Exhibit J, p. 39a), stating that

the situation in this case.was not sjmilar to the facts of

Berman v. Parker, 348 U.S. 26. and thatthe court had

power to set aside the selection when the officials had acted

in a capricious manner as had been proved in this.case.

United States v. Carmack, 329 U.S. 230, 67 S. Ct. 252;

Umited States v. Willis, 211 F. 2d 1, and United States v.

Certain Real Estate, etc., 217 F. 2d 920. The motion was

denied by Order dated May 29, 1962. (Appendix, Exhibit

- K, p. 41a).

The case came up for Suiits on Jantiary 31, 1963 and

the case extended throughout February 1, 26, 27 and 28

and March 1, May 13, 14, 15 and 16. The Court of Eminent

Domain entered judgment on September’ 11, 1963 and in a

__ long opinion determined that the best use of the condemned

_ land at the time of the condemnation ‘‘was agricultural, but

7

with an increased value for these purposes in view of the

possibility that within & reasonable period of time it could

be dedicated to industrial or residential development pur-

poses.’? The Court then proceeded to dismiss the allega-

tions of. value made by defendant-appellant $409,250.00 as

against the $121,827.40 deposited by the. Plaintiff. The

Court did not determine the value of the condemned prop-

erty at all. It is presumed in‘ the judgment that the amount

deposited could be the amount adjudged. Copy of the Find-

ings of Facts, Conclusions of Law and Judgment of the

Superior Court. of Puerto Rico, Eminent Domain Section, -

is attached herewith in the Appendix as Exhibit L, pp.

42a-60a), and is also found in the Typewritten Record on

Appeal at pages 86-109.

Defendant appealed to the Supreme Court of Puerto ©

Rico on October 3, 1963 by filing its Notice of Appeal

(Appendix, Exhibit M, p. 61a) and in the said Notice of |

_ Appeal raised the following question of law:

(1): The judgment deprived appellant of its prop-

erty without due process of law.

(2) The court in determining that the best use was —

‘‘agricultural’’ did so against the evidence introduced,

without any basis therefore in the record, in an arbi-

trary and capricious manner thus depriving appellant

_ of a fair and impartial trial under both the Constitution

of ‘the United States and the Constitution of the Com-

monwealth of Puerto Rico.

(3) The court in disbelieving appellant’s evidence

without justification denied it the due process of law

and deprived it of its property in violation of the Fed-

eral Constitution and the Constitution of the Common-

wealth of Puerto Rico. | : *

(4) The condemnation in this ease does not consti- ©

_ tute a public use as contemplated in the Fifth Amend-

ment to the Constitution of the United States of

S.

America incorporated in the Fourteenth Amendment

of that same Constitution.

(5) Tlie use of the power of condemnation to deprive

an established industry of its source of raw material

in order to later deliver the lands in question to private

enterprises for the operation of industrial establish-

ments, is an unlawful exercise of the power of .con-

demnation and the action-of the Industrial Develop-:

ment Company constitutes a violation of the restric-

tion included i in the Act authorizing it to expropriate.

The Supreme Court of Puerto. Rico, on May 13, 1965

entered judgment affirming the judgment of the Court of

Eminent Domain (Typewritten Record on Appeal, pages -

112-113; Appendix, Exhibit-N, p. 63a). "The court de-

cided that the first three errors had been adversely de-

cided against defendant-appellant in the Certiorari filed

previously (Appendix, Exhibit G, p. 26a), and the court

again made reference to the fact that the funds deposited |

+ had been withdrawn by appellant, and that therefore, appel-

lant could not raise the issue of thé illegality of the taking.

As to the other two errors assigned to the Court of Emi-

nent Domain, the Supreme Court of Puerto Rico affirmed

the determination of ‘‘agricultural’’ use made by that court,

but made no ruling as to the fourth and fifth assignments

of errors pointed out in the Notice of Appeal, that is, the

use of the power to condemn in this case for a use not

public and the use of that power to deprive an established

industry of its source of raw material and give that land..

to another private enterprise for its own private use.

The judgment entered by the Supreme Court failed to

decide the issues in the order and manner presented to

that court. In so doing, the Supreme Court deprived

appellant of its right to a fair and impartial appraisal -

its case.

a |

9

A motion for reconsideration filed on May 24, 1965 was

denied by the Supreme Court of Puerto Rico on May 27; 2

1965. :

Appellant filed its Notice of’ Agee ra this Supreme

Court of the United States with the Clerk of the Supreme

Court of Puerto Rico on June 4, 1965 stating in the said

. Notice of Appeal the a for the same, (Appendix, .

Exhibit O, p. 66a). :,

The Supreme — of Puerto Rico by wile of J une 1l,. -

‘1965: (Appendix, Exhibit P, p. 7la) considering the Notice

of Appeal filed, recalled trom the trial court the original

~~ yeeord for the preparation of the record on | appeal and-———_——

granted appellant by. order-dated ‘September 30, 1965, till

~-November 1, 1965 to file the record on appeal before this

Honorable Court (Appendix, Exhibit Q, p. 71a).

In this case sufficient constitutional issues under the Con-

‘stitution of the United States and the Constitution of the

Commonwealth of the Puerto Rico were raised at the trial

_ court and before the Supreme Court of Puerto Rico and

are raised in this Statement to give jurisdiction to this

. Honorable Court. Phillips Chemical Co. v. Dumas Inde-

pendent School District (Tex. 1960), 80 S. Ct: 474; 361

US. 376, 4. L. Ed. 383; Brown Shoe Co. v. U. 8S. (Mo. 1962),

82 S. Ct. 1502; 370 U.S..294, 8 L: Ed. 2d°510; Brantff Air-

ways v. Nebraska State Bd. of Equalization and Assess-

ment, 74S. Ct. 757; 347 U.S. 590, 98 L. Ed. 970.

WHEREFORE, it is prayed from this Honorable Court to

review the judgment - the Supreme Court of Puerto Rico

in this case. —

Ponee, Puerto Rico, this 80th day of November, 1965.

. Respectfully submitted,

‘Pzpro M. Pokiura and

Cuartes R. Cupriit,

Attorneys for Appellant: ;

me oA 0. Box 1124, Ponce, P. R. =

By: Cranes R. Currii OpENHEIMER