González Vélez v. Superior Court of Puerto Rico

75 P.R. 550

• Court: Supreme Court of Puerto Rico
• Decided: December 30, 1953
• Docket: No. 1998
• Status: Published

Opinions

Mr. Chief Justice Snyder

delivered the opinion of the Court.

On a date subsequent to October 15, 1952, Juan Celso González was convicted of aggravated assault and battery in the District Court. Thereafter he appealed to the Superior Court, where the record was duly filed. On December 17, 1952, the defendant filed a motion praying for a trial de novo in the Superior Court.

Section 19 of Act No. 11, Laws of Puerto Rico, 1952, Special Session, known as the Judiciary Act of the Commonwealth of Puerto Rico, abolished the right of a trial de novo on appeal from the District Court to the Superior Court which formerly existed under the Act of March 11, 1908, Laws of Puerto Rico, 1908, p. 168.¹ In its place, § 19 provided for appellate review by the Superior Court of judgments of the District Court based on the record made in the latter court. And § 37 of Act No. 11 provided that § 19, creating this new type of review, shall take effect on October 15, 1952. Despite the terms of § § 19 and 37, the defendant contended in his motion that he was entitled to a trial de novo. He pointed to the provision in § 19 that the procedure on appeal in such cases shall be in accordance with the rules established by the Supreme Court, and he argued that the new type of review cannot go into effect until we promulgate such rules.

The defendant recognized that on October 7, 1952 this Court issued the Rules for Appeals from the District Court to the Superior Court, effective October 15, 1952. However, the defendant contended that these Rules have not yet taken effect because they have not been submitted to the Legislative Assembly pursuant to § 6 of Article V of the Constitution of the Commonwealth of Puerto Rico.² He therefore argued that the former provisions of the Act of 1908 as amended for a trial de novo are still controlling. For the same reasons, the defendant also took the position that he was not required to file in the Superior Court a brief containing an assignment of errors, as provided in Rule 7 of the Rules for Appeals from the District Court to the Superior Court.³

The Superior Court denied the motion of the defendant for a trial de novo in the Superior Court. It held that the Rules for Appeals from the District Court to the Superior Court had gone into effect on October 15, 1952, despite the fact that they had not been previously submitted to the Legislative Assembly. Because the question ■ of his right to a trial de novo was a new one, the Superior Court gave the defendant ten additional days to file his brief under Rule 7. Instead of filing his brief, the defendant filed a petition for certiorari in this Court to review the order of the Superior Court denying his motion for a trial de novo. In view of the importance of the matter, we heard the parties, both orally and by brief, before undertaking to pass on the petition for certiorari.

Rule-Making Power of the Courts in General

The power of the courts to regulate their own procedure has had a somewhat checkered career. Roscoe Pound has shown that in England regulation of procedure has gone through four stages; First, procedure was governed by custom. Second, changes were made by rules of court. Third, Parliament entered the picture and made sweeping changes. Fourth, since 1873 the English have returned to regulation of procedure by rules of court. Pound, The Rule-Making Power of the Courts, 12 A.B.A. J. 599; Winberry v. Salisbury, 74 A.2d 406, 412 (N.J., 1950).

Accordingly, Pound, supra, concluded that (p. 601) “ ... if anything was received from England, as a part of our institutions, it was that the making of these general rules of practice was a judicial function. Indeed, this was well understood in the beginning of American law. At the very outset, the Supreme Court of the United States, in answer to an inquiry by the Attorney General, said that the practice of the court of King’s Bench would obtain for the time being, but that presently the court would promulgate some rules of practice.” ⁴

However, it cannot be gainsaid that, as in England, about the middle of the nineteenth century the state legislatures in the United States encroached upon the field of procedure which had previously been the province of the judiciary. Pound, supra, attributes this temporary result to four factors: (1) the legislative hegemony, based on the attitude of legislative omnicompetence, which existed in that era; (2) the over-conservatism of the legal profession at that time; (3) the unavailability of models, such as existed in the field of substantive law in England and continental Europe, for the development of adequate procedure by the courts; (4) the apprentice training of the lawyers of that day inevitably tended to emphasize training in details of procedure; this in turn led the lawyers to regard procedure as akin to substantive law; and thé latter field must of course be left to the legislature under separation of powers.

Fortunately, there has been a revival of the concept of procedural rule-making by the judicial branch. The courts, the legislatures and constitutional conventions gradually came to realize that the power to make their own procedure must rest in the courts if they are to administer justice effectively.⁵ As a result, we have witnessed in the twentieth century a tremendous resurgence of the power of the courts to regulate their own procedure.⁶

While the return to the fundamental principle of procedural rule-making by the courts was occurring, some scholars and a number of courts were asserting that the courts have the absolute power to regulate their own procedure. By “absolute power” these authorities mean that the legislature may never enact a statute in this field. Their thesis is that the absolute rule-making power is inherent in the courts and interference therewith by the legislature violates the doctrine of separation of powers.⁷ But the cases are divided on the subject. Annotations, 110 A.L.R. 22; 158 A.L.R. 705. And however sound this view may be analytically, it is difficult in view of nineteenth-century history to assert that, solely on the basis of the general doctrine of separation of powers, the courts today have an inherent rule-making power which is so sweeping that the legislature is powerless to enact statutes regulating the procedure of the courts. In this connection, it is worthy of note that the absolute rule-making power which now exists in New Jersey is not based on inherent power and the separation of powers. Rather the recent New Jersey constitution contains a clause specifically conferring this unfettered power on the Supreme Court.⁸

On the other hand, to say that the courts do nor nave inherent absolute rule-making power does not mean that the courts have no inherent power at all in this field.⁹ On the contrary, it is well-established that if no procedure, or an inadequate procedure, is provided by the legislature in a particular situation, the courts have the inherent power — and duty — to establish or supplement it by rules, provided the latter are not inconsistent with the statute. Glenn v. McCarty, 110 S.W. 2d 1148, 1150 (Tex., 1937); Byers v. Smith, 47 P.2d 705 (Calif., 1935); People v. Jordan, 65 Calif. 644 (1884); State v. Roy, supra; Annotations, 110 A.L.R. 22, 27-8, 158 A.L.R. 705, 706; 3 Cal. Jur. 2d pp. 384-5.¹⁰ This Court has held that an analogous power exists to fill in procedural gaps by judicial decisions under § § 7 of the Civil Code and 36 of the Code of Civil Procedure. See text of opinion preceding footnote 14, infra.

It remains only to note that in many instances the power to adopt rules of procedure for all the courts of a state has been conferred on the court of last resort by statutory rather than by constitutional provisions. Such statutes have been attacked as improper delegations of legislative power. In the field of substantive law, the courts have sustained statutes authorizing executive and administrative agencies to adopt regulations having the force of law, provided the statutes laid down a standard or policy, for which the regulations filled in the details. Hilton Hotels International Inc. v. Minimum Wage Board, 74 P.R.R. 628, 649, and cases cited; Godreau & Co. v. Public Service Comm’n, 71 P.R.R. 608, 611; People v. Rivera, 67 P.R.R. 175, 177; Luce & Co. v. Minimum Wage Board, 62 P.R.R. 431; Irizarry v. District Court, 64 P.R.R. 90; Secretary of Agriculture v. Central Roig Co., 338 U.S. 604; Schwartz, A Decade of Administrative Law: 191-2-1951, 51 Mich.L.Rev. 775, 776-84. But in the field of procedure, the statutes vesting the courts with procedural rule-making power have been upheld by the overwhelming weight of authority despite the fact that they lay down no such standards and give the courts broad and unfettered power to adopt rules. The reasoning most frequently used for not requiring statutes conferring rule-making power on the courts to establish standards therefor may be summarized as follows: The power to provide procedure for the courts is neither exclusively legislative nor exclusively judicial, but may be exercised by either department. Consequently, withdrawal of the legislative from the field of procedure does not require it to lay down standards for the courts to exercise a power which the latter already possess concurrently with the legislature. Stated somewhat differently, such a statute is not an invalid delegation of legislative power because it is not a grant of power as such. Kolkman v. People, supra; In re Constitutionality of Section 251.18, Wis. Statutes, 236 N.W. 717 (Wis., 1951); State v. Roy, supra; Petition of Florida State Bar Ass’n, Etc., 21 (Fla., 1945); State v. Superior Court, 267 P. 770 (Wash., 1928); Burney v. Lee, 129 P.2d 308 (Ariz., 1942); Wayman v. Southard, 10 Wheat. 1, 6 L.ed. 253; Pound, supra, 66 Harv.L.Rev. 28, 33-4; Pound, Regulation of Judicial Procedure by Rules of Court, 10 Ill.L.Rev. 163, 170 et seq.; Rottschaefer on Constitutional Laiv 52; Morgan, Judicial Regulation of Court Procedure, 2 Minn.L.Rev. 81, 91-6; Annotations, 110 A.L.R. 22, 38; 158 A.L.R. 705, 710.¹¹ As we shall see, the theory on which these cases were decided plays a role in the present case.¹²

II

Ride-Making Poioer of Supreme Court of Puerto Rico

From 1900 to 1952, the power to regulate the procedure of our courts was specifically vested in the Legislature as a matter of constitutional law. Both § 33 of the Foraker Act and § 40 of the Jones Act provided that “the form of procedure” in the courts shall continue as then provided “until otherwise provided by law ...” 31 Stat. 77, 84; 39 Stat. 951, 965. Nevertheless, the Legislature from the beginning relaxed to a slight extent this complete control over procedure vested in it by the Organic Act. It provided that this Court could adopt rules not inconsistent with statutes “for its own government ...” And it empowered the then district courts to make rules of procedure for themselves provided they were approved by the Attorney General. Section 8, Code of Civil Procedure, 1933 ed.; see also § 4 of Act No. 105, Laws of Puerto Rico, 1925, and § 34 of Act No. 432 of 1950, pp. 1126, 1142. In addition, the Attorney General was authorized to adopt rules of procedure for jury trials in criminal cases not inconsistent with law. Section 206, Code of Criminal Procedure, 1935 ed.¹³

Despite the specific constitutional requirement that the procedure of the courts shall be determined by the Legislature, the rules which have been adopted pursuant to § 8 of the Code of Civil Procedure have been applied for many years and, so far as we are aware, have never been challenged as an invalid delegation of legislative power. Cuevas v. Hernández, 53 P.R.R. 878; Rodríguez v. Morales, 72 P.R.R. 34. On the contrary, our cases have asserted even greater power in the courts. Cases have arisen in this jurisdiction where appellants have failed to comply with rules or statutes requiring that a record on appeal be filed within a certain period in the appellate court. We have held that the latter is empowered to dismiss the appeal under such circumstances in spite of the lack of a provision in the rules or statutes given it such power. In so holding we have relied on § 7 of the Civil Code, 1930 ed., and § 36 of the Code of Civil Procedure, 1933 ed.¹⁴ Batista v. Rivera et al., 25 P.R.R. ; Cividanes v. López Acosta, 22 P.R.R. 74; López Zarate v. Villabaso, 12 P.R.R. 52; Dainow, The Method of Legal Development through Judicial Interpretation in Louisiana and Puerto Rico, XXII Revista Jurídica de la Universidad de Puerto Rico 108, 141.

In the same way, in Bermúdez v. Registrar, 70 P.R.R. 795, we held that, in view of the failure of the Code of Civil Procedure and the Rules of Civil Procedure to provide a procedure for summons by publication of unknown defendants, the courts may adopt an adequate procedure therefor by virtue of § 36 of the Code of Civil Procedure. The Court of Appeals for the First Circuit expressed a similar view. It indicated that, despite the complete control over procedure vested in the Legislature by § 40 of the Organic Act, Congress in the latter Section “intended merely to provide a basic procedure which, within constitutional and statutory limits, the insular courts, like courts administering the Common Law, could develop as they saw fit.” Mercado Riera v. Mercado Riera, 152 F.2d 86, 98 (C.A. 1, 1945). We thus see that in Puerto Rico the courts were not only given a somewhat limited form of rule-making power by statute, but they were also authorized by § 7 of the Civil Code and § 36 of the Code of Civil Procedure to fill in gaps in such rules and procedural statutes by judicial decisions. Gen. Motors Acceptance v. District Court, 70 P.R.R. 898, 902 (on motion for reconsideration).¹⁵

Following the trend which we have described in Part I in the Federal system and in a number of states, Act No. 9, Laws of Puerto Rico, 1941, empowered this Court to make rules of procedure for all the courts of Puerto Rico. Section 1 provided that the rules “shall be sent to the Legislature at its next regular session and they shall not begin to be in force until the closing of said session.” Section 3 provides that all previous procedural statutes shall be considered as rules of the Supreme Court and shall continue in effect unless modified or repealed by rules promulgated under Act No. 9.

We exercised the authority conferred on us in Act No. 9 by adopting 86 rules substantially copied from the Federal Rules and known as “Rules of Civil Procedure.” The Rules, found at the end of 60 P.R.R., were submitted to the Legislature which took no action thereon. As a result, they went into effect on September 1, 1943. A number of the provisions of the Code of Civil Procedure and other statutes were superseded by the Rules. Water Resources Authority v. District Court, 65 P.R.R. 451. On the other hand, the Code of Civil Procedure has remained in effect for certain types of proceedings and for those questions not covered by the Rules. Puerto Rico Real Estate Corporation v. Puerto Rico Planning Board, 74 P.R.R. 439; Martínez Fernández & Cía., S. en C. v. Garcia, 68 P.R.R. 363; García v. Central Alianza, 65 P.R.R. 124.¹⁶

Act No. 25, Laws of Puerto Rico, 1948, withdrew the rule-making power from this Court. Instead under § 1 we were “empowered to draft and propose” rules of procedure to the Legislature which were to take effect only if they were affirmatively approved by the Legislature. The Rules of Civil Procedure, which had gone into effect in .1943, were continued by § 2 “until modified, amended, or repealed by the Legislature.” For obvious reasons, no additional rules were proposed by us in this new role of a drafting agency for the Legislature.

The rule-making power of this Court was rescued from the unfortunate level to which it had sunk in Act No. 25 of 1948 by § 6 of Article V of the Constitution.¹⁷ In its report to the Constitutional Convention, the Judiciary Committee commented on § 8 of the Judiciary Article which it recommended to the Convention. Section 8 thereafter became § 6 in the final form of the Judiciary Article as adopted by the Convention. Section 6 was adopted by the Convention except for a minor amendment not relevant here. The comment of the Committee was as follows:

“The Committee recommends that the power of the Supreme Court to adopt rules of procedure be raised to the constitutional level. This power has already been conferred on the Supreme Court, in different ways, since 1941. Fifteen States of the American Union grant to the Supreme Court this power, which is considered an appropriate function of the Judicial Branch.

“As to the power of the Legislative Branch to amend, supplement or repeal at any time, any of the said rules by a law specifically limited to that purpose, this Section follows the provisions in the Constitution of Missouri, South Dakota, Wisconsin and the Philippines. The model Constitution proposed by the National Municipal League also contains a provision similar to the recommended provision.

“The Committee wishes to make clear that the power granted to the Supreme Court to adopt rules of procedure does not include in any way the power, by virtue of these rules, to modify or alter substantive rights.

“See: Vanderbilt, Minimum Standards of Judicial Administration, 1949, pp. 91, 142; Jirsig Cases and Materials on Judicial Administration, p. 968.” (Italics ours.)

It is significant that Vanderbilt, supra, p. 91, on which the Committee relies in its report, points out that “regulation of procedure by court rule is not an innovation, but a return to fundamental principles.” This was also undoubtedly what the Committee had in mind when it called the rule-making power “an appropriate function of the Judicial Branch.” The Chairman of the Judiciary Committee, the Honorable Ernesto Ramos Antonini, expressed the same thought in his lucid explanation of this Section to the Convention. He said at p. 172 of the Diario de Sesiones, Con-vención Constituyente de Puerto Rico:

“At present, there is an indication of this proposition on the statute books, but that might well be changed at any time to deprive the Supreme Court of all power to adopt such rules. What we are doing is to elevate to constitutional rank the system, which in some other form has appeared during the last few years in our legislation, so that it will be the Judicial Power itself which adopts the rules of procedure.

“It should be noted that the power was preserved in the Legislative Branch to amend, repeal or supplement the rules adopted by the Supreme Court; in addition, the Supreme Court is also required to submit, at the beginning of each regular session, the rules it has adopted, which will not go into effect until the close of the session. This tends to create, promptly and in a healthy manner, what might be called a system of checks and balances by the Legislative and Judicial Powers as well as the Executive; but certainly in giving the initiative and the power to the Supreme Court in connection with the body of rules, in general, we are convinced that there will develop, in the course of time, a climax [climate?] in connection with the approval of rules, whereby the Legislature will very seldom find it necessary, in any way, by amendment, repeal or supplement, to perform the function of approval of rules of procedure, which since time immemorial has been an inherent power of the Judicial Poioer, throughout the history of the world.” (Italics ours.)

The statement of the distinguished Chairman of the Judiciary Committee that the courts have inherent power to adopt their own rules of procedure must be read in its context and in the light of the terms of § 6 of Article V. We agree that he did not mean to say that this power was inherent to the extent that the Legislature was completely excluded from the field of procedure. He was apparently thinking of this inherent power in a more limited sense precisely because § 6, which he was recommending, does give the Legislature a role, with some limitations, iii this field: Once this Court has taken the initiative and submitted rules to the Legislature, the latter may amend, repeal or supplement the rules, provided it passes a special law to that effect.¹⁸ But it is important for our purposes to bear in mind that the Chairman did recognize that .procedural rule-making was basically inherent in the courts.

During the debate on the floor of the Convention no one objected to this concept.¹⁹ And the authorities on which the Committee relied in its Report and the history of procedure we have set forth in Part I support it. The terms of § 8, the description of its modus operandi, and the characterization of rule-making as inherent in the courts all demonstrate that it was established in the Constitution as primarily a judicial rather than a legislative power.

It is true, as the Chairman pointed out, that § 8 contains a clause which operates as a potential brake on the courts by the Legislature. But, as he indicates, that provision should be rarely invoked by the Legislature and only for strong motives. The initiative must come from this Court; the primary duty and responsibility rest upon us; and if some label must be affixed to this power, it is judicial rather than legislative.²⁰

III

The Legislature in % 19 of the Judiciary Act authorized this Court to adopt Rules of Procedure on Appeal from the District Court to the Superior Court without submitting them to the Legislature.

Congress approved the Constitution of the Commonwealth of Puerto Rico on July 3, 1952. 66 Stat. 327. The Constitution went into effect in accordance with the proclamation of the Governor on July 25, 1952. During this three-week period, Puerto Rico was on the threshold of a new era in its constitutional history. This is not the place to assess the broader legal and constitutional implications of the Constitution. Cf. Mora v. Torres, 113 F.Supp. 309 (Dist Ct., Puerto Rico, 1953), affirmed in Mora v. Mejías, 206 F.2d 377 (C.A. 1, 1953); Magruder, The Commonwealth Status of Puerto Rico, 15 U. of Pittsburgh L. Rev. 1; Gutiérrez Franqui and Wells, The Commonwealth Constitution, 285 The Annals, American Academy of Political Science 33, 34, 40; Comment, Self-Determination: The New Puerto Rico Formula, 2 American Journal of Comparative Law 54. But we cannot blink the fact that it was necessary for the Legislature, during the short period of time between July 3 and July 25, 1952, to accomplish the urgent and difficult task of adjusting the operations of our government to the new Constitution. Not the least of these problems was the need for a Judiciary Act to fill in the details of the framework established in the Judiciary Article of the Constitution.

The Constitution instituted a number of sweeping changes in our judicial system. At the very outset, in § 2 of Article I of the Constitution, the judiciary was made a coequal branch of government together with the executive and legislative branches.²¹ The provisions of the Judiciary Article were designed to assure the community of an independent judiciary operating a modern and efficient judicial system and deciding cases promptly on the merits rather than on technical questions of procedure and jurisdiction. Notes and Comments on the Constitution of the Commonwealth of Puerto Rico, 86-98.

The tenure of judges was made secure under § § 8, 13 and 3 of Article V. A pension system for judges was contemplated by § 10 of Article V. The salaries of judges could not be reduced during their terms of office by virtue of § 11 of Article VI. Judges were prohibited from engaging in political activity by § 12. Judges of trial courts could be removed only by the Supreme Court under § 11 instead of, as in the past, by the Governor. Administration of the courts, which had previously been the province of the Attorney General under the Organic Act, 39 Stat. 951, 956, was transferred by § 7 to the Chief Justice; the rules of administration were to be adopted by the Supreme Court without-submission to the legislative or executive branches of the government.²² A unified judicial system for purposes of jurisdiction and administration was created by § 2. And this Court was given the power to adopt rules of procedure and evidence in § 6.

Obviously, it was imperative for the Legislature to enact, in the brief period of three weeks, a new Judiciary Act, to take effect immediately, implementing these changes. This was done by Act No. 11 of 1952. For example, the concept of a unified judicial system for purposes of jurisdiction found in § 2 of Article V was embodied in detail in § 10 of Act No. 11, which went into effect immediately. The result — the elimination of the fatal consequences arising out of the problems of jurisdiction over the subject matter in our trial courts — is one of the notable achievements of our new judicial system. Rodríguez v. Registrar, post, p. 669.

In transferring the administration of the courts from the Attorney General to the Chief Justice and the Supreme Court, § 7 of the Judiciary Article took a long step toward the goal of an independent judiciary. Detailed provisions were needed to carry out this new principle of administration of the courts. These are found in the Judiciary Act and also went into effect forthwith. They include provisions for assignment of judges within the Court of First Instance, increase in the number of judges, procedure for removal of judges, selection of subordinate personnel, preservation of records and the functions of the Office of Court Administration. Sections 3, 4, 8, 15, 24-29, of Act No. 11 of 1952.²³

Another great reform was established in § 19 of the Judiciary Act. Clark and Rogers, supra, 61 Yale L.J. 1147, 1161, regard it as “ [q] uite probably the change of most importance” in our new judicial system. By § 19 the trial de novo on appeal from the District Court to the Superior Court was specifically discarded. It was replaced by a review solely on the record in the District Court.²⁴ The theory of the Legislature was.that replacing the indefensible and wasteful trial de novo with an appeal on the record would be fairer and more efficient, would be more in accord with the unification of the judicial system under which the Court of First Instance under § 9 of the Judiciary Act consists of two divisions rather than rigidly separate courts, and would enhance the prestige and dignity of the former municipal court judges. Clark and Rogers, supra, 61 Yale L.J. 1147, 1161-5.²⁵

Unlike all the other provisions of the Judiciary Act, the Legislature found it would not be feasible to make effective immediately the change in the method of review of appeals from the District Court to the Superior Court. Section 37 postponed the effective date therefor until October 15, 1952.²⁶ Perhaps the principal reason for providing in § 37 for postponement, for this single purpose, of the effective date of the Judiciary Act until October 15, 1952 was to give the Administrative Director of the .Courts sufficient time to purchase the mechanical recorders to be used in the District Court, which for the first time became a true court of record. Actas de la Camara de Representantes de Puerto Rico, 1952, p. 476; Clark and Rogers, supra, 61 Yale L.J. 1147, 1164, footnote 61.²⁷

However, the problem of obtaining mechanical recorders was not the only reason for postponement until October 15, 1952 of the effective date of the new method of review on appeal of the judgments of the District Court. A second reason, more important for our purposes, was that the Legislature established in § 19 some but not all of the procedure which was obviously necessary for the new method of review, which had replaced a trial de novo with a true appellate review. We were given the power in § 19 to adopt the remaining rules of procedure necessary for such appeals. But the Legislature realized that we could not adopt such procedure overnight. Consequently, in § 37 it postponed the effective date of the new method of appeal until October 15, a period of approximately three months. During this period the Legislature expected both problems — acquisition of mechanical recorders and adoption of rules of procedure by us — to be solved.

The Legislature said unmistakably and without qualification in § 37 that appeals shall be solely on the record beginning October 15, 1952,28 But the Legislature was aware of two facts: (1) the new method of review could not function without a number of changes in the procedure on appeal; (2) the rules embodying these changes could not be submitted by us at the beginning of the next regular session of the Legislative Assembly on January 12, 1953 if they were to go into effect on the earlier date of October 15, 1952. Obviously, in providing that the new method of review shall begin on Otocber 15, 1952, the Legislature intended for the Rules adopted by us to become effective on October 15, 1952 without submission thereof to the Legislature at the beginning of its next regular session.²⁹

The defendant argues that § 2 of the Judiciary Act made it mandatory on us to submit the Rules for Appeals from the District Court to the Superior Court to the Legislature before they could go into effect.³⁰ We cannot agree. Section 2 is a mere reiteration in general terms of the constitutional grant of the rule-making power. In his article on our Act, Judge Clark so characterizes it. Clark and Rogers, supra, 61 Yale L.J. 1147, 1167. Such reiteration is a frequent and familiar device. It serves the useful purpose of bringing together in one document the important provisions of constitution and law relating to the judiciary. There are a number of other examples of such repetitive provisions in the Judiciary Act which we note in the margin.³¹ Section 2 and these other provisions add nothing to their counterparts in the Constitution. As already noted, they were inserted for the sole purpose of bringing together in one place the salient features of our judicial system. Section 2 therefore plays no role in this case.

It is true that the third sentence of § 2 provides that all existing procedural statutes and rules shall remain in effect until modified by us in accordance with the Constitution. But it was superfluous to provide that existing laws and rules shall remain in effect until modified. This was already true not only by implication but also under the specific terms of § 1 of Article IX of the Constitution.³² Moreover, in providing that such laws and rules shall remain in effect until modified as provided in the Constitution, the third sentence for § 2 was only restating once more the standard laid down in the first sentence of § 2, which itself, as we have seen, was a mere reiteration of § 6 of Article V of the Constitution. The short of it is that the Legislature, in these two general reiterations of our rule-making power found in § 2, was not focusing attention on the narrow question before us. It left that problem to § 19, which deals specifically with the •present case. And § 19, for the reasons already given, provides, that the rules adopted thereunder shall not follow the «course established by § 6 of Article V of the Constitution.

In the light of the foregoing, we conclude that § 19 of the Judiciary Act authorized this Court to adopt rules of procedure on appeal from the District Court to the Superior Court without submitting them to the Legislature.

IV

Section 19 of the Judiciary Act validly provided some of the procedure and validly authorized us to adopt the remaining necessary rules for procedure on appeal from the District Court to the Superior Court without submission thereof to the Legislative Assembly, despite the provisions of § 6 of Article V of the Constitution.

The Superior Court held that § 6 of Article V of the Constitution is applicable only to rules relating to the trial of a case; that appeal is not part of a trial; and that therefore the requirement or limitation found in § 6 of Article V for prior submission to the Legislature does not apply to rules of procedure on appeal. The trial court added that appeal is a statutory, not a constitutional, right; that it exists only in the form ordained by the Legislature; and that the Legislature having provided in § 19 that we shall adopt the procedure on appeal from the District Court to the Superior Court without prior submission thereof to the Legislature, such appeals may be exercised only pursuant to the rules we have adopted.

We cannot agree with the premise of the Superior Court that § 6 of Article V does not apply to appeals. This question has arisen in the Federal system precisely because the Enabling Act of Congress empowered the Supreme Court to adopt rules of procedure “of the district courts of the United States . ” 28 U.S.C. § 2072. In adopting the Federal rules, this problem was solved by relying on the Enabling Act only for those parts of the procedure on appeal which involved steps to be taken in the district court. Certain other rules concerning appellate practice as such were included; but the authority to adopt them was attributed tó other general enabling statutes. Clark, Power of the Supreme Court to Make Rules of Appellate Procedure, 49 Harv. L. Rev. 1303; Clark, Experience under the Amendments to the Rules 1, 30-35, 1953 Federal Rules of Civil Procedure; Lopinsky v. Hertz, 194 F. 2d 422, 424 (C.A. 2, 1951), concurring opinion of Judge Clark.

The diiference between our constitutional provision and the Federal statute is that there is no such restrictive phrase as procedure “of the district courts” in § 6 of Article V. On the contrary, § 6 states seepingly that this Court shall adopt “for the courts” rules of evidence and of civil and criminal procedure. This was in accord with the concept of “a unified judicial system” and the adoption by us of rules of administration for all the courts. Sections 2 and 7 of Article V. We therefore cannot agree that our rule-making power for procedure on appeal from the District Court to the Superior Court rests solely on the statutory basis of § 19 of Act No. 11 and could be withdrawn at will by the Legislature. Rather the history of <§, 6 of Article V, its terms, and the other sections of Article V clearly indicate that our constitutional rule-making power covers all phases of' procedure, including appellate procedure.³³ But once we conclude that § 6 is a source of appellate rule-making power, we are faced in the instant case with the problem of determining if the limitation contained in § 6 — the requirement of prior submission to the Legislature — applies here. ,

It would perhaps constitute what Mr. Justice Frankfurter has called “pernicious oversimplification” in the interpretation of statutes to rely in this case on the bare syllogism: (1) the Constitution requires submission of rules of procedure to the Legislature before they can become effective; (2) the rules herein were not submitted to the Legislature; (3) consequently, (a) the rules are not yet in effect, and (b) without such rules, review must be by trial de novo and not on the record, despite the clear legislative mandate that review solely on the record shall go into effect without fail on October 15, 1952. We reject the solution of this case by recital of this bare syllogism because the question before us cannot be decided in isolation. On the contrary, in order to reaeh á proper conclusion, this problem must be examined against the background of the rule-making powér of the courts, both in general and in Puerto Rico, and of the circumstances under which § 19 was enacted.³⁴

We have seen in Part I that procedural rule-making was originally the province of the courts and that in the twentieth century there has been a return to this fundamental principle. . While, this was taking place, some of the courts asserted that the rule-making power of the courts was inherent in the. sense that .the legislature was absolutely excluded from this field by the doctrine of separation of powers. This theory.is difficult to support historically;, and however sound analytically, it has not been true in Puerto Rico, either prior, or subsequent to the Constitution. Yet from necessity the. courts do have some..inherent power in the field of procedure; namely, the power to supply such procedure where it is either completely missing or is inadequately established by statute, provided it is not. inconsistent with statutory provisions. And this Court has held that in Puerto Rico procedural gaps may be filled, in by judicial decisions by virtue of §. 7 of the Civil Code and § 36 of the Code of Civil Procedure. In addition, it is important to note that statutes conferring such rulermaking power and containing no standards do not invalidly delegate legislative power. This is because the power to provide procedure for the courts is one which is possessed concurrently by the courts and the legislature; consequently, such a statute is a withdrawal from the field of.procedure rather than a grant of power. •

In Part.II we saw that, after a vacillating history, in Puerto Rico, rule-making by the courts has come. into its own. Apajrt .from the power of the judiciary to supply missing procedure under § 7 of the Civil Code and § 36.of the Code of Civil Procedure, here, as elsewhere, the judicial rule-making power, has.beep recognized as a return to fundamental principles and. as “an appropriate function of the Judicial Branch.” • Even more important, this- power .is established in our- Constitution as basically inherent in. the courts and primarily a judicial rather than a legislative power. -

In Part III we described in detail the practical.situation faced by the Legislature in July, 1-952. A - constitution providing, for--drastic -judicial reforms-.was -about .to go into effect. In order to. implement these reforms, it was imperative that legislation be enacted in a few days, to take effect immediately. A new method for review on appeal of district court judgments was included in this legislation. However, the Legislature was aware that replacing trial de novo on appeal with review on the record required the procedure on appeal to be recast. Although it provided in § 19 for some of the procedure for these appeals, the Legislative Assembly did not incorporate the complete procedure therefor in the Judiciary Act; If we were compelled to follow § 6 of Article V of the Constitution in adopting the remaining rules of procedure, they could not go into effect until sixty days after the close of the regular session of the Legislative Assembly to which such rules were submitted. Consequently, along with the other reforms in the Constitution and the Judiciary Act which were going into effect immediately, the Legislature provided: (1) the review by record rather'than by trial de novo shall take effect on October 15, 1952; (2) as new rules of procedure were imperative for this new method of review, this- Court shall adopt these rules, presumably by October 15, 1952, to take effect without submission to the Legislature.

We think that under the foregoing circumstances § 19 was valid in authorizing us to adopt rules for appeals from the District Court to the Superior Court without submitting them to the Legislative Assembly. When the Constitution went into effect on July 25, 1952, § 2 of Article V, creating a new judicial system, became effective immediately. It was not subject to any future event; it went into effect at once, together with the other provisions of the Constitution.

The Legislative Assembly therefore had only the short period of three weeks within which to enact á Judiciary Act which would implement the provisions of the Judiciary Article. It is true- that under § 1 of Article IX, see footnote 32, previous procedural statutes and rules not inconsistent with the Constitution remained in effect. But, for the reasons we have indicated in Part III, a number .of readjustments were necessary. In Act No. 11 the Legislative Assembly provided for some of these procedural readjustments; it delegated the promulgation of others to this Court.

Section 19 was enacted to take effect October 15, 1952. The argument is made that it is invalid to the extent that it contained procedural provisions which took effect after the effective date of the Constitution without waiting for us to initiate rules of procedure pursuant to § 6 of Article V of the Constitution. It is also contended that in adopting rules as authorized by §■ 19 we are required first to submit such rules to the Legislative Assembly as provided in § 6 of Article V. • But both of these arguments overlook the situation which confronted the Legislative Assembly on July 25, 1952.

No rules came into effect on July 25, 1952 by virtue of § 6 of Article V. On the contrary, § 6 in terms contemplated considerable delay: the rules were to be adopted by us in the future, were then to be submitted to the Legislature at the beginning of a regular session, and were not to go into effect until sixty days after the close thereof. Yet the Constitution provided that the new judicial system shall begin to operate immediately, together with the power of the Legislature to organize the courts in accordance with the Constitution. And the Legislative Assembly exercised the latter power by passing Act No. 11, which went into effect simultaneously with the Constitution.

The problem was that the new judicial system, in order to operate effectively, required some new procedural provisions. The Constitutional Convention and the Legislative Assembly were both aware that the method established by § 6 of Article V could not be utilized for that immediate purpose. • Indeed, despite a considerable amount of work and study, this Court is not yet in a position to adopt rules of procedure. ' Consequently, three years will have elapsed before the first-body of rules of procedure will become effective pursuant to § 6 of Article V. Obviously, the.Constitutional Convention did not intend to create a vacuum; it intended for some one to have the power to make those procedural changes which became necessary overnight, pending adoption of the long-range provisions contemplated by § 6 of Article V. To hold otherwise would be to impute to the Convention the. intention to. establish a period of frozen procedure and stagnation of the judicial system of Puerto Rico during its most dynamic stage.

Section 6 of Article V did .not prevent the Legislative Assembly from approving transitory legislation — pending approval of rules by us under § 6 — which was imperative for operation of the new judicial system created by the Judiciary Article of the Constitution and the Judiciary Act implementing it. On the contrary, the Constitutional Convention foresaw the'problems which would inevitably arise during the transitory period between the effeetivé date of the Constitution and the adoption of rules under § 6 of Article V. To take care of this and other contingencies, Article IX, Transitory Provisions, provided in § 7 that “The Legislative Assembly may enact the laws necessary to supplement and make effective these transitory provisions in order to assure the functioning of the government until the officers provided for by this Constitution are elected or appointed and qualify, and until this Constitution takes effect in all respects.” (Italics ours.) Logic and necessity dictate the conclusion that § 7 made it possible for the Legislature to enact the procedure contained in'§ 19 of Act No. 11, to take effect October 15, 1952,- until this Court should have the opportunity to comply with the mandate of the Constitution by adopting rules of procedure pursuant to § 6 of Article V of the Constitution. And we think it is obvious that the Legislative Assembly, the membership of which was unchanged until' January 1953, could anticipate' the problem and so provide on July 24, 1952 instead of waiting until after the Constitution went into effect on July 25, 1952 and created the difficulties of adjustment we have described.

The debates in the Constitutional Convention are in accord with the interpretation we have given § 7 of Article IX. It must be remembered that the question before us does not involve the question of transitory provisions in connection with the election or appointment of officials, a question which some of the Delegates discussed in the debate on § 7. Here the problem is transitory legislation, which § 7 authorizes, “until this Constitution takes effect in all respects.”

We .think the comments of Delegate Trias Monge on § 7 support our position if they are read as a whole and if we bear in mind that the problem before us.is the meaning of “until this Constitution takes effect in all respects,” and not a question of election or appointment of officers. Delegate Trias Monge said at p. 819 of the Diario -de Sesiones, Con-vención Constituyente de Puerto Rico, the following:

“We consider that.§ 7 of this Transitory Provision-is absolutely indispensable. It is a usual section in transitory provisions in State Constitutions. It is specifically drawn from the model of the Constitution of New Jersey and its only purpose is simply to make clear that sufficient power is- déposited in the Legislative Assembly, solely for the purpose of providing for an adequate transition between the date on which the Constitution goes into effect and the time at which officials provided for in it are elected or appointed and qualify.

“The contention of my colleague, to. the effect that it is impossible for this Constitution to go into effect by stages, seems to us not to be correct, insofar as it is clear that if, for example, this Constitution goes into effect in 'October, or any date prior to the general elections, or as provided under the Organic Act or as provided under § 10 of these same Transitory Provisions, some of its provisions, by necessity, will not go into effect in all respects in the sense of becoming totally applicable, that is, for example, if as provided for the election of a Governor, within X months of the Constitution’s going into effect, and of the members of the Legislative Assembly, then, naturally, that goes into effect; bht this aspect is not complied with. It is the basic purpose of the transitory disposition. The filling" of a gap between the moment in which a Constitution goes into effect and the moment in which the officers who are appointed or elected under it qualify.

“And sufficient power is granted to the Legislative Assembly so that if these Transitory Provisions do not cover all the eventualities ivhich must be covered, the Legislative Assembly shall have sufficient power to do-it. It is clear that we do not have the time here to make a detailed revision of all the statutes of the Legislative Assembly of the People of Puerto Rico. We could simply cover these general aspects of the transition and the implementation of the details of this transition remain, for a limited period, in the hands of the Legislative' Assembly." (Italics ours.)

The remarks of others who were responsible for § 7 in the committee also justify the position we have taken. Delegate Polanco Abreu said at pp. 819-20 of the Diario ele Sesiones that “The Committee understands that [Section 7] not only is necessary, but is indispensable, not only that it is not dangerous, but that it is useful for the best development of the mechanism, which will result in the effective application of all the postulates that we are consecrating in the Constitution. . . . This disposition covers any involuntary omission in which we may have incurred in establishing the mechanism for the execution of the provisions of the Constitution. . . . Mr. President, we repeat that the only thing that this disposition intends to - guarantee is that we may have incurred in some involuntary omission. In view of the limitations of human knowledge, in view of the fact that we are human beings, that we cannot guarantee that in some transitory, provisions we have provided for everything, absolutely everything, not forgetting anything, which is necessary for the execution of the provisions of this Constitution, this is a wise provision. This provision has no scope other than to cover any omission in which we may have incurred.”

Delegate Sold Morales confirmed these views. He said at pp. 821-2: “To 'supplement the Constitution, as neither an individual ■ nor a Parliament nor a Constitutional Convention, in my judgment, can rely so much on its wisdom, that it is sure that in the limited space of some expressions of a Constitution it is going to cover all the eventualities that may occur and which disrupt the order in any aspect of the Government or of the march of a people in a transition which takes place when a Constitution goes into effect. Clearly the word ‘supplement’ here implies, before this possible variability of the human being and of men who compose any organism like this, that anything which remains without a provision therefor in these transitory provisions resulting in a problem arising in' the life of the people, that an organism like a Legislative Assembly, elected by that same people with' sufficient authority, may cover this gap and not permit the people to suffer prejudices in the transition from one government to another.”

For the reasons we have stated, we hold 'that the Legislative Assembly was empowered under the circumstances to establish as a transitory measure the limited amount of procedure for appeals from the District Court to the Superior Court found in § 19 of Act No. 11, despite the fact that § 19 went into effect subsequent to the proclamation of the Constitution, which gave this Court in § 6 of Article V the role of initiating rules of procedure. Once we have reached this conclusion, it follows that the Legislative Assembly, having the power to enact such a transitory procedural measure without reference to § 6 of Article V, could validly delegate to us the transitory power to complete the procedure in § 19 by rules which likewise need not be adopted pursuant to 6 of Article V. ' That is to say, once it is conceded that under all the circumstances § 7 of Article IX permitted transitory procedural measures to be adopted by the Legislative Assembly, the latter could delegate unconditionally to us the transitory power to write rules as to the remaining portions of the necessary procedure, for all the reasons stated in Parts I and II, particularly in that part of the text of this opinion preceding footnote 12. This specific delegation of transitory power has no relation to and should not be confused with the permanent rule-making power of this Court granted by § 6 of Article V of the Constitution. When the Legislative Assembly desired to refer to the latter, it did so — as we have seen in Part III — in § 2 of Act No. 11. The specific delegation of rule-making power to us in § 19 is confined to the special, transitory period through which our judicial system is presently passing...

Our view that § 19 was valid in establishing some procedure for appeals from the District Court to the Superior Court and in delegating fo us the power to adopt the remaining.procedure by rules without prior submission to the Legislative Assembly, was. apparently shared by at least 39 of the members of the Constitutional Convention. These 39 members of the Convention were also members .of the Legislative Assembly which enacted § 19. The then Attorney General of Puerto Rico, who was a Delegate to the Convention, made a vigorous plea for approval of the Judiciary Act, ■containing § 19, at. the hearing thereon. Transcripción del Récord Taquigráfico, Vista Pública, P. de la C. 14, p. 10 el seq. The Chairman of the Judiciary Committee of the Constitutional Convention, who was also Speaker of the House of Representatives of the Legislative Assembly, introduced the Judiciary Act, including § 19, in the House. The then members of this Court participated in the drafting of the Judiciary Act. Clark and Rogers,'supra, 61 Yale L.J. 1147, 1148-9; Clark, Report to the Attorney General, Acts, supra, p. 378. After its enactment, we proceeded to adopt the Rules under § 19 without prior submission thereof to the Legislature.³⁵ Although these rules were not formally submitted to the.1953 regular session of the Legislature, the latter was of course aware of their existence. Yet no suggestion was made by the Legislative Assembly or any of its Committees that our action was improper and should be overridden.³⁶ While it is not conclusive, we think the contemporaneous views we have just recited should be given weight in passing on the validity of § 19. Cherey v. City of Long Beach, 26 N.E. 2d 945, 949 (C.A., N.Y., 1940); Platte Valley Pub. Pow. and Irr. Dist. v. Lincoln County, 14 N.W. 2d 202, 205 (S.Ct., Neb., 1944); Mayor and City Council of Baltimore v, Hofrichter, 11 A.2d 375, 378 (C.A., Md., 1940); Sanger v. City of Bridgeport, 198 Atl. 746, 749 (S.Ct., Conn., 1938); see Ex parte Ming, 181 Pac. 319 (S.Ct., Nev., 1919).

The petition of the defendant for a writ of certiorari will be denied.

1 The Act of 1908 has been amended by Act No. 13, Laws of Puerto Rico, 1917, Yol. II; Act No. 2, Laws of Puerto Rico, 1929; and Act No. 31, Laws of Puerto Rico, 1934.

2 Section 6 of Article V reads as follows: “The Supreme Court shall adopt for the courts rules of evidence and of civil and criminal procedure which shall not abridge, enlarge or modify the substantive rights of the parties. The rules thus adopted shall be submitted to the Legislative Assembly at the beginning of its next regular session and shall not go into effect until sixty days after the close of said session, unless disapproved by the Legislative Assembly, which shall have the power both at said session and subsequently to amend, repeal or supplement any of said rules by a specific law to that effect.”

3 Rule 7 reads in part as follows: “Within fifteen (15) days after the parties are notified of the filing' of the record on appeal, or within whatever extension of time is granted, the attorney for the appellant shall file in the Superior Court his brief which shall contain a concise statement of the facts of the case, as well as an assignment of errors alleged to have been committed by the District Court. Each error shall be assigned and discussed separately in the brief. If appellant fails to file his brief within the term provided herein or within the extension granted him, the court motu proprio or on motion of appellee shall dismiss the appeal.”

4 This statement of the Supreme Court of the United States is found in 2 Dall. 411, 413-14 (1792), 1 L.ed. 437. To the same effect, Pound, Rules of Court in New Jersey, 66 Harv.L.Rev. 28, 35-36, footnote 18; Winberry v. Salisbury, supra, p. 413.

5 Pound, supra, pp. 601-2, stated the case in favor of the rule-making power by the courts as follows:

“In truth procedure of courts is something that belongs to the courts rather than to the legislature, whether we look at the subject analytically or historically. It is a misfortune that the courts ever gave it up. Analytically there is no more warrant for the legislature’s imposing a straitjacket of statutory procedure upon the courts than for its doing the like with the executive. No one supposes that the courts can impose their general ideas of executive procedure. Nor would the idea that the minutiae of judicial procedure can be laid down by legislators have taken root had it not been for the rule-of-thumb apprentice training of the bulk of the profession, which led them to feel that the whole of the law was bound up in procedure and hence that the legislature must prescribe judicial procedure or abdicate control over the law. . . .

“It is a misfortune that American courts ever gave up their control of procedure. It may be that today, after seventy-five years of codes and practice acts and prolific procedural legislation, we can’t go so far as to pronounce such legislative interference with the operations of a coordinate department to be unconstitutional. Perhaps the ground is so far debatable that the courts could not have resisted legislative annexation of that domain. Today, possibly, we must concede that the legislature may enact codes of procedure and detailed practice acts. Equally, however, we should insist that the legislature ought not to do such things, not merely on grounds of expediency and for the sake of a better and more effective administration of justice, but as a matter of due regard for the constitutional system of separation of powers. None of the coordinate and coequal departments of our polity can do its work effectively if the minute details of its procedural operations, as distinct from the substantive law it applies or administers, are dictated by some other department. That the legislature should claim such a power is something that comes down to us from the extravagant claims of the legislatures in the period of legislative hegemony. The legislature ought to leave judicial procedure to the judiciary as the judiciary must leave legislative procedure (except as prescribed sometimes by state constitutional provisions) to the legislature. Certainly, if legislatures choose to abdicate their acquired power and to leave judicial procedure to the courts where it belongs, there can be no constitutional objection.”

These views were reiterated recently in Pound, supra, 66 Harv.L.Rev. 28, 32, 40, where he pointed out that “Today a legislature must deal in a limited time with a large volume of proposals for legislation. Also popularly elected lawmakers . . . have more interest in measures attracting public notice than in dry minutiae of legal procedure. Political questions, appropriations, economic questions, the machinery of government, provision for administration and police, social security and welfare, and humanitarian projects must have the right of way.” Pound then goes on to quote from Cardozo, A Ministry of Justice, 35 Harv.L.Rev. 113, 113-14, that “The legislature, informed only casually and intermittently of the needs and problems of the courts, without expert or responsible or disinterested or systematic advice as to the workings of one rule or another, patches the fabric here and there, and mars often when it would mend.”

Pound is not alone in those views. Practically all the scholars and courts who have written in this field share them. Clark and Rogers, The New Judiciary Act of Puerto Rico: A Definite Court Reorganization, 61 Yale L.J. 1147, 1149, footnote 9, and authorities cited therein; Clark and Wright, The Judicial Council and the Ride-Making Poiver: A Dissent and a Protest, 1 Syracuse L.Rev. 346, 363; Gertner, The Inherent Power of Courts to Make Rules, 106 U. Cine.L.Rev. 32; The Improvement of the Administration of Justice, A Handbook Prepared by the Section of Judicial Administration, A.B.A., pp. 11-12 (3d ed. 1952); Winberry v. Salisbury, supra, pp. 413-4; Annotations, 110 A.L.R. 22; 158 A.L.R. 705.

6 The Improvement of the Administration of Justice, supra, states at p. 11: “The movement for return of rule-making authority to the courts began many years ago, with the enactment of the English Supreme Court of Judicature Act of 1873. Few states joined the trend before 1930, but since then a growing number of jurisdictions have enacted statutes or constitutional provisions empowering the highest court of the state to regulate practice and procedure in all, or practically all, of the courts of the state, until now the 48 states are equally divided between those in which the court has such power and those in which it does not. In a number of the latter states active efforts are being made to obtain passage of a rule-making act.”

See Vanderbilt, Minimum Standards of Judicial Administration, p. 97 et seq.; Pound, Appellate Procedure in Civil Cases, p. 323; Clark and Wright, supra, p. 351; Clark, The Federal Buies in State Practice, 23 Rocky Mountain L. Rev. 520; Clark, The Influence of Federal Procedural Reform, 13 Law and Contemporary Problems, 144, 160 et seq; Clark on Code Pleading, 2d ed., p. 50 et seq.; 1912 Annual Survey of American Law, pp. 791-3; 1948, id., pp. 945-6; 1951, id., pp. 799-800; Peterfreund, The Essentials of Modern Reform in the Litigative Process, 287 The Annals, American Academy of Political Science 154, 161.

As Chief Justice Vanderbilt has put it in Winberry v. Salisbury, su<pra, p. 413: “The trend throughout the country has been to give the courts the power to regulate their own procedure and administration and then to hold them responsible for results.”

7 Pound, supra, 66 Harv.L.Rev. 28, 37, states that “It must be remembered that without the constitutional provision the courts had an inherent power of making rules of procedure.” Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 Ul.L.Rev. 276, agrees with this thesis. See also, Clark on Code Pleading, 2d ed., pp. 61-2, footnote 166; Gertner, supra, pp. 44-45; Keeffe, Brooks and Greer, 86 or 1100, 32 Cornell L.Q. 253, 263; Trumbull, Judicial Responsibility for Regulating Practice and Procedure in Illinois, 47 N.W. U.L.Rev. 443, 444-49; Notes, 29 Ill.L.Rev. 911; Annotations, 110 A.L.R. 22, 23, 158 A.L.R. 705, 706.

The Executive Committee of The National Conference of Commissioners on Uniform State Laws stated, with regard to a proposal that the Conference draft a Uniform Act Establishing Rule-Making Power in The Courts, the following: “The Committee feels that there is no necessity for such an act, as the inherent power of the courts to adopt rules has been questioned in only a few states, and such legislation would be necessary only in those states where that inherent power has been questioned.” Handbook of the National Conference of Commissioners on Uniform State Laws, 1952, p. 93.

In some states, where enabling statutes conferring the rule-making power on the courts have been enacted, the courts have taken the position that such statutes add nothing to the inherent power already possessed by the courts. Even where such a statutory basis exists, these courts have sustained the validity of rules on the basis of their inherent power without relying on the legislative authority. Epstein v. State, 128 N.E. 353 (Ind., 1920) is such a case. And see Gortner, supra, p. 46.

A leading case dealing with this subject is Hanna v. Mitchell, 196 N.Y.S. 43 (App. Div., First Dept., 1922). In that case the court upheld a rule permitting summary judgments and held that a statute delegating to a convention of justices of the supreme court the power to make rules of procedure was not invalid as a delegation of legislative power because the power to adopt rules of procedure is a judicial power inherent in the courts. The court said at pp. 51-52:

“The power to make rules was inherent in the Courts of King’s Bench, Common Pleas and Exchequer of England, and would have been conferred on the' Supreme Court without the express grant of such power contained in the act. As we have shown, the common law of England and the acts of the Colonial Legislature became the law of this state by virtue of the provisions of the Constitution above quoted. This power was exercised by the Supreme Court for 86 years before there was a legislature in the state of New York, and for 137 years prior to the adoption of title 3 of chapter 1 of part 3 of the Revised Statutes, which contains the section referred to as the source of the power. That section was but a legislative recognition of a power that had long existed, which was embodied with other preexisting laws in the Revised Statutes. . . . The power to make rules governing the practice and procedure in the courts is a judicial and not a legislative power. . . .

“We conclude that the power to make rules of practice is a judicial power inherent in, and expressly conferred upon, the Supreme Court, and that the act creating the convention to adopt rules of civil practice merely provided a method and means whereby the court could conveniently and expeditiously exercise its judicial duty, and it was in no sense a delegation of legislative power by the Legislature.”

To the same effect, General Inv. Co. v. Interborough Rapid Transit Co., 139 N.E. 216, 220 (N.Y., 1923).

Another leading case espousing the view that the power to adopt rules of procedure is inherent in the judicial department is Kolkman v. People, 300 Pac. 575, 584 (Colo., 1931). See also State v. Roy, 60 F.2d 646 (N.M., 1936); De Camp v. Central Arizona Light & Power Co., 57 P.2d 311 (Ariz., 1936). Cf. Rottschaefer on Constitutional Law, pp. 52-3; Clark and Wright, supra, p. 366, footnote 96.

Some cases have held procedural statutes unconstitutional as infringements upon the inherent rule-making power of the judiciary. Agran v. Checker Taxi Co., 105 N.E.2d 713 (Ill., 1952); Atchison, T. & S. F. Ry. Co. v. Long, 251 Pac. 486 (Okla., 1926); Schario v. State, 138 N.E. 63 (Ohio, 1922); Solimito v. State, 122 N.E. 578 (Ind., 1919); Trumbull, supra, p. 448, footnote 42. In similar situations in this jurisdiction we have avoided declaring statutes which require the courts to decide cases within a specific period null by interpreting them as merely directory and not mandatory. Bages & Co., Inc. v. District Court, 65 P.R.R. 204, and cases cited.

8 In New Jersey the Constitution provides that “The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts.” In Winberry v. Salisbury, supra, the Supreme Court of New Jersey held that “subject to law” did not mean subject to legislation in the field of procedure. Rather it meant that the rules of procedure were subject to —could not encroach on — substantive law as distinguished from procedure. The court therefore concluded that its rule-making power was not subject to overriding legislation on procedure; its only limitation is that it is confined to procedure and administration. There is a brief reference at p. 412 to the “inherent” power of courts in rule-making as an exception to “an oversimplified statement of the doctrine of separation of powers ... ” (This contrasts with the theory of those who predicate the inherent rule-making power precisely on the separation of powers, see footnote 7.) But Chief Justice Vanderbilt in his opinion relies almost exclusively on the history and specific language of the quoted provision of the New Jersey constitution. For opposing views of the Winberry case, compare Kaplan and Greene, The Legislature’s Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury, 65 Harv.L.Rev. 234 with Pound, supra, 66 Harv.L.Rev. 28.

9 We are aware of the dangers involved in attributing “inherent” power to a branch of government. “The accumulated weight of repetition behind such a phrase as ‘inherent powers’ of the lower Federal courts' is a constant invitation to think words instead of things.” Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts In “Inferior” Federal Courts — A Study in Separation of Powers, 37 Harv.L.Rev. 1010, 1022-23. However, this does not mean that we can discard altogether the concept of “inherent” power. The courts have inherent power by way of civil contempt to enforce their judgments under certain circumstances through the coercive means of indefinite incarceration. Espinosa v. Ramírez, Warden, 72 P.R.R. 842, and cases cited; Espinosa v. Ramírez, 71 P.R.R. 10; Dubón v. Casanova, 65 P.R.R. 786; United States v. Mine Workers, 330 U.S. 258. We also have inherent power to admit and to discipline members of the bar; legislation thereon is only advisory, not binding on us. In re Abella, 67 P.R.R. 211, 219; Ex parte Jiménez, 55 P.R.R. 51. The then Chief Justice Todd, testifying before the Judiciary Committee of the Constitutional Convention in the name of this Court, recommended that nothing be inserted in the Judiciary Article of the Constitution with reference to civil contempt and disbarment as these were inherent powers of the judiciary. Transcript of Public Hearings before the Judiciary Committee of the Constitutional Convention, p. 165. The Convention accepted this recommendation.

In discussing this question, Rottsehaefer on Constitutional Law states at p. 52, footnote 31, that “The term ‘inherently’ should mean only that the power in question was impliedly included in the grant made by the constitution in distributing governmental powers, although it is sometimes used to indicate that the power in question necessarily belongs to a department without reference to the constitutional grant.”

10 In Glenn v. McCarthy, supra, the court said at p. 1150: “It is settled that, where a statute prescribes a rule of procedure, such rule so prescribed in the statute will control. . . . This court has repeatedly recognized that the Legislature has the power, under the Constitution, to enact rules relating to the right of appeal, and modify them at will. But if the Legislature has provided no mode of procedure for appealing eases, the Supreme Court has authority to adopt such rules for that purpose.”

Pound, supra, 66 Harv.L.Rev. 28, 31, points out that in New Jersey “Under the pre-existing system the court had an inherent power to make rules of practice and procedure subject to legislative action on details.” And Peterfreund, supra, p. 155, states that “The power of courts to make and alter rules of procedure has actually existed for centuries, but, until our century, has seldom been exercised in the United States, except as supplementary to a set of statutory rules.” (Italics ours.) To the same effect, Vanderbilt points out in Minimum Standards of Judicial Administration at pp. 98-9, that “Under any phase of development the courts always retained a measure of authority to prescribe necessary supplementary rules of procedure ... ” See also Pound, Appellate Procedure in Civil Cases, p. 374.

11 In Burney v. Lee, supra, involving a statute conferring the rule-making power on the Supreme Court, the court said at p. 311 that it “was not unconstitutional as an unauthorized delegation of legislative power, but was merely a withdrawal by the legislature from the field in which it had at most merely concurrent power with the courts.”

In State v. Roy, supra, the court said at p. 660 that “When the legislature enacted chapter 84 [granting the Supreme Court the power to adopt rules of procedure for- the courts] it merely withdrew from a field wherein it had theretofore functioned as a co-ordinate branch of our government with the court in the promulgation of rules of pleading, practice, and procedure. Whether the legislative branch of the government was ever rightfully in the rule-making field, or was a mere trespasser or usurper, need not now be determined. Chapter 84 is not a delegation of power. It is a mere abdication or withdrawal from the rule-making field. It is in effect a relinquishment of the rule-making field to the court.” [Matter in brackets ours.]

12 In upholding legislation of both types — statutes authorizing regulations by the executive in substantive law and statutes granting the courts procedural rule-making power — the courts have almost universally rejected doctrinaire absolutism in applying the theory of separation of powers to the trichotomy of legislature, executive and judiciary. They have recognized that the powers of the three branches of government sometimes overlap and that separation of powers is not a formula which can be applied with “mathematical precision” to “divide the branches into watertight compartments” (Holmes, J., dissenting, in Springer v. Philippine Islands, 277 U.S. 189, 209, 211). On the contrary, “The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers.” (Judge Cardozo in In re Richardson, 160 N.E. 655, 657 (N.Y., 1928).) As we have pointed out, “it cannot be stated too emphatically that the departments of government are as much interconnected in their operations as they are independent. In Madison’s phrase, the powers of government have been blended rather than separated.” Banco Popular de Puerto Rico v. District Court, 63 P.R.R. 63, 69. In short, “separation of powers does not belie joint action by the three coordinate and coequal branches of government, which are as “interdependent as they are independent”. Banco Popular de Puerto Rico v. District Court, supra, pp. 74-5. In the instant case we have “still another example of joint governmental action which lays bare the fabric of government as a seamless web.” Banco Popular de Puerto Rico v. District Court, supra, p. 82. To the same effect, Yakus v. United States, 321 U.S. 414; Youngstown Co. v. Sawyer, 343 U.S. 579, concurring opinion of Mr. Justice Jackson, p. 634; Winberry v. Salisbury, supra, p. 412; cases cited in text of this opinion preceding-footnote 11; Annotation, 79 L.ed. 475, 501; Mars, The Constitutional Power of Congress Over the Administration of Federal Taxation, 31 Taxes 503. Compare Ginnane, The Control of Federal Administration by Congressional Resolutions and Committees, 66 Harv.L.Rev.-569; Jackson, Presidential Legal Opinion, 66 Harv.L.Rev. 1353; Note, “Laying on the Table” — A Device for Legislative Control Over Delegated Powers, 65 Harv.L.Rev. 637, 640.

Under the Foraker Act there was much more of an intermingling of executive and legislative power- in the government of Puerto Rico than under the Jones Act. For present purposes, it can be said that the latter embodied substantially the same concept of separation of powers which we have just described and which is found today in the Constitution of the Commonwealth of Puerto Rico. Buscaglia v. District Court of San Juan, 145 F.2d 274 (C.A. 1, 1944); González v. District Court, 62 P.R.R. 152, 167; Banco Popular de Puerto Rico v. District Court, supra; Cordero, Auditor v. District Court, 72 P.R.R. 354, 356.

13 The intervention of the Attorney General was in accordance with § 14 of the Jones Act which put him in charge of the administration of justice in Puerto Rico. 39 Stat. 951, 956.

14 Section 7 of the Civil Code reads as follows: “Any court which shall refuse to render a decision on the pretext of silence, obscurity or unintelligibility of the laws, or for any other reason, shall be held liable therefor.

“When there is no statute applicable to the case at issue, the court shall decide in accordance with equity, which means that natural justice, as embodied in the general principles of jurisprudence and in accepted and established usages and customs, shall be taken into consideration.”

Section 36 of the Code of Civil Procedure reads as follows: “When jurisdiction is, by this Code, or by another statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceedings be not specially pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”

15 Cf. Rodríguez v. Morales, supra, 37, where we said that Rule 3 of the Rules for the District Courts “is nothing more than a regulation of the exercise of the inherent power of the courts to order the dismissal of an action for want of prosecution ... (Italics ours.)

16 Section 33 of the Foraker Act and § 40 of the Jones Act, as we have seen, specifically provided as a matter of constitutional law that the procedure of our courts shall be regulated by the Legislature. And Act No. 9 of 1941 laid down no standards in delegating to us the power to adopt rules of procedure. Yet our Rules of Civil Procedure have never been challenged as an invalid delegation of legislative power. Nor has the contention been made that the Rules, being in substance legislation, should have been submitted to Congress under § 23 of the Organic Act. Cf. Sibbach v. Wilson & Co., 312 U.S. 1, 15, footnote 17.

17 Section 6 is quoted in footnote 2.

18 Delegate Gutiérrez Franqui, an able lawyer who was Vice-President of the Convention and was also Attorney General at the time, stated during the debate that provisions with reference to procedure under § 6 “will have to originate in the Supreme Court.” Diario de Sesiones, supra, p. 629.

19 Delegate Reyes Delgado, also an experienced and learned attorney, advocated elimination of the power to adopt rules of evidence from § 6. He preferred to vest that particular function exclusively in the Legislature. But as to procedure even he pointed out that “The power to make rules of procedure has been inherent in the courts . . .”. Diario de Sesiones, supra, p. 629.

20 We have already pointed out the futility of the attempt to establish rigid classifications under the doctrine of separation of powers. See footnote 12. But that does not detract from the importance in this particular case of the concept that the procedural rule-making power is basically judicial rather than legislative.

21 Section 2 of Article I reads as follows: “The government of the Commonwealth of Puerto Rico shall be republican in form and its legislative, judicial and executive branches as. established by this Constitution shall be equally subordinate to the sovereignty of the people of Puerto Rico.” (Italics ours.)

22 Section 7 provides that the rules of administration “shall be subject to the laws concerning procurement, personnel, audit and appropriation of funds, and other laws which apply generally to all branches of the government.”

23 Shelden Elliott, Director of the Institute of Judicial Administration, has this to say of our Judiciary Act: “In terms of reorganizations effected, and effected in this case in a remarkably short span of time, the Puerto Rican Judiciary Act of 1952 is a notable accomplishment. Implementing the Judiciary Article of the island’s new Constitution, it provides a unified and integrated court system, vests plenary power in the Chief Justice to supervise court operations and assign judges, and provides for an administrative director and an office of court administration. The Constitution authorizes the Supreme Court to adopt rules of evidence and procedure as well as rules for court administration.” 1952 Annual Survey of American Law 780.

24 Section 19 reads as follows:

“Appeals. — The right of appeal from any final judgment of the District Court to the Superior Court is hereby established. The procedure on appeal shall be in accordance with the rules established by the Supreme Court. Hearing and decision of such appeals shall be by either three Superior Judges or a single Superior Judge, as the Supreme Court may by rule establish according to the nature of the case or the amount involved or other reasonable standard in its discretion; and the Chief Justice may assign the hearing of the cases under such rule if there is doubt or the parties do not agree. Further review thereafter shall be only by certiorari by the Supreme Court grantable by that Court in its discretion.

“Appeal shall be by way of review of the judgment or action of the court from which the appeal is taken and shall not be by way of trial de novo.

“In every case the Judge shall provide a record of everything which transpired in the case, which record shall be included in the proceedings, unless the party or parties can prepare a transcript of the evidence. The parties shall, within the time provided by rule of the Supreme Court, notify the Judge of any objection they may have to either the record of the case as prepared by the Judge or the transcript of the evidence. The Judge shall hear and pass on such objections. The Supreme Court shall also provide by rule for granting of new hearings by the District Court upon prompt request in cases where the parties or their counsel have not adequately protected their rights during the original trial of a cause, or where an adequate record has not been provided by the Judge.

“The Office of Court Administration shall provide each part of the District Court with adequate equipment for recording mechanically the incidents of each case. The Judge may use this recording in preparing his statement of what transpired during the trial, and the same shall be sent to the Superior Court together with the judgment roll, whenever any of the parties so requests. The Superior Court shall, whenever it is alleged that the statement prepared by the district judge is incorrect, use the recording to decide the appeal or to order a new trial in the District Court.”

25 Under the old system of appeal from the Municipal Court the term “appeal” was a misnomer; the “appellate” court, the former district court, conducted an entirely new trial on the facts and entered a new judgment of its own. Pagán v. Quiñones et al., 13 P.R.R. 307; Gelabert Hermanos v. Córdova, Dist. Judge, 17 P.R.R. 1153; Fradera v. Morales et al., 19 P.R.R. 1064; Cividanes v. López Acosta, supra; People v. Romero et al., 39 P.R.R. 504; Fernández v. Orcasitas, 51 P.R.R. 295. Cf. § 39 of Act No. 432, Laws of Puerto Rico, 1950.

26 Section 37 reads as follows: “This Act, being of an urgent and necessary character, shall take effect as soon as the Constitution of the Commonwealth of Puerto Rico shall become operative, with the exception of Section 19, which shall take effect on October 15, 1952. In the meantime, appeals from the District Court to the Superior Court shall follow the procedure existing on the date of the approval of this Act for appeals taken from the former Municipal Court to the former District Court.”

27 Footnote 61 reads as follows: “In order to provide time for the supplying of some fifty-five machines to the various courtrooms, the Legislature postponed the effective date of this Section to Oct. 15, 1952; meanwhile appeals from the lower court were to follow the former procedure. The rest of the Act took, effect with the Constitution, i. e., on July 25, 1952.”

28 The right of appeals is statutory. The conditions thereof, including the scope of review by the appellate court, are for the Legislature to determine. And the appellant must comply strictly therewith in pursuing his appeal. Ponce v. F. Badrena e Hijos, Inc., 74 P.R.R. 210, 231, footnote 6.

29 Section 32 of Act No. 11 provides that all cases pending in the former district court on appeal from the former municipal court “shall be allowed an appeal to the Superior Court with a trial de novo in accordance with the former law.” This confirms our view that under § § 19 and 37 a new method of review on the record shall obtain as of October 15, 1952 for all eases not then pending on appeal from the former municipal court.

30 Section 2 reads in part as follows: “Rule-Making Power. — The Supreme Court shall adopt for the General Court of Justice rules of evidence and of civil and criminal procedure, as well as rules of court administration, as provided in the Constitution of the Commonwealth. The rules of administration shall- be subject to the laws concerning procurement, personnel, audit and appropriation of funds, and other laws which apply generally to all branches of the government. All existing provisions by statute or rules governing civil and criminal procedure and of evidence shall remain in effect until modified, supplemented, or amended by the Supreme Court in accordance with the Constitution of the Commonwealth of Puerto Rico.”

31 Section 1 of the Judiciary Act restates the provision in $ 2 of Article V of the Constitution establishing a unified judicial system for purposes of jurisdiction, operation and administration. Section 3 makes the Chief Justice the administrator of the courts, as does § 7 of Article V. Section 5, providing for the number of Justices of this Court and how we shall sit and decide cases, is identical with § § 3 'and 4 of Article V. Section 7 reiterates our original jurisdiction, as found in § 5 of Article V. This is also true in part of § 24, providing for impeachment of judges, as compared with § 11 of Article V. Section 25 provides for the office and manner of appointment of the Administrative Director of the Courts in the same language as found in § 7 of Article V.

32 Section 1 of Article IX provides in part that “When this Constitution goes into effect all laws not inconsistent therewith shall continue in full force until amended or repealed, or .until they expire by their own terms.”

33 We have seen that as early as 1941 we had statutory authority to adopt rules of procedure for all the courts of Puerto’ Rico. Act No. 9, Laws of Puerto Rico, 1941; Part II. It is true we did not adopt any rules for procedure on, appeal under Act No. 9 of 1941. Collazo, v. Puig & Abraham, 70 P.R.R. 780; Rodríguez v. Fonalledas, 71 P.R.R. 783. But this was by choice and not because of lack of power.

34 “Knowledge is essential to.- understanding; and understanding should precede judging.” Burns Baking Co. v. Ryan, 264 U.S. 504, 520, dissenting opinion of Mr. Justice Brandéis.

35 ³⁵ Adoption of the rules by us of course does not foreclose a challenge ■of their validity by a litigant. Sibbaeh v. Wilson & Co., supra.

In our order of October 7, 1952 adopting the Rules involved herein we were careful to give § 19 of Act No. 11 as the source of our authority to adopt the said rules. We deliberately omitted any mention of § 6 of Article V of the Constitution.

36 In an analogous situation, the Supreme Court of the United States found- that the failure of Congress to interfere with a rule reinforced the validity of the rule. Sibbach v. Wilson & Co., supra, p. 15.