Méndez v. Administration of Porto Rico

Mr. Justice HebNÁNdez,

after stating the foregoing facts, delivered the opinion of the court.

The findings of fact of the judgment appealed from are in substance accepted.

The excise tariffs framed by the municipal council and municipal hoard of this city for the fiscal year 1899-1900 having been forwarded to the Governor, that official returned said tariffs with his approval toward the end of November of the said former year, and on the 27th of the same month the municipal council resolved to call upon the retailers for sworn statements of their stocks on hand, and to appoint the necessary commis*385sion to verify, if necessary, the' accuracy of said statements, the articles embraced therein to be appraised according to the new tariff. Against this resolution the “Retailers Association” presented a petition to the municipal council, praying it to decide that the articles in their establishments affected by the later excise tax which had paid the charge imposed by the former tariff should not be obliged to pay the new tax, and that it be considered, in the event such action should not be agreed to, that an appeal had been taken to the Civil Secretary. This petition was acted upon by the municipal council on the 28th of December, following, it having resolved to appoint a committee to make a careful study of the matter 'and make report thereon, provided that the delay consequent upon suph action should not prejudice the rights of the petitioner as to. the appeal taken in due time and form.

May 28, 1900, the municipal council, at the instance of the deputy of excise taxes, and without the committee appointed' having made Ithe report with which it was charged, ordered! steps to be taken with all due dispatch for the immediate collection of the sums due by the retailers for the difference in the excise taxes shown by the last tariff approved.

Attorney Herminio Díaz Navarro, as counsel for the “Retailers Association,” requested the suspension of the resolution of May 28,1900, on the ground that the proper course was to transmit the records to the superior authorities for the determination of the appeal taken in case the petition presented against the resolution of November 27, 1899, should be-rejected, which request was disposed of on the 3d of July of said year 1900 by the alcalde acting as president of the municipal council, holding that the petition should be denied, and by a subsequent decision of the 14th of said month the appeal taken was allowed. The case was decided on the 6th of Nov*387ember of tbe same year by tbe Treasurer of Porto Eico, who dismissed tbe appeal taken and declared tbe resolution appealed from final, and each and every part thereof, as tbe result whereof tbe suit was commenced in tbe District Court of San Juan to secure tbe nullification of tbe resolution of tbe municipal council of this city of May 28, 1900, and for a declaration, if meet in tbe premises, that tbe articles subject to tbe tariff of excise taxes prior to tbe one in force ought not to pay tbe difference in excess of that imposed upon the latter, and that tbe sum of $3,893.82, which bad been deposited in tbe municipal treasury to cover said difference, should be ordered by tbe municipal council to be -returned to tbe plaintiffs.

Tbe conclusions of law set forth in tbe dissenting opinion, with tbe exception of tbe last thereof, are likewise accepted.

Although article 20 of tbe statement of conditions pertaining to tbe award of tbe privilege of collecting excise taxes provides that in case of alteration in tbe rates established for tbe imposition of tbe tax, tbe amounts of tbe award must be altered in tbe same proportion, and article 71 of said statement prescribes that upon tbe surrender of tbe privilege by tbe contractor, or person charged with tbe collection of tbe tax, to the person obtaining tbe same in subsequent bidding, a new count shall be made of the stock on band in commercial bouses, and that tbe former shall pay over to tbe latter tbe amount of tbe charges received by him from said articles which have not been consumed at tbe time of the surrender of tbe privilege, it cannot be concluded from tbe text of tbe articles cited by tbe Administration in support of its position that tbe municipality has tbe right to collect a larger tax by reason of tbe increase made by tbe new tariffs, when, as in tbe present case, stocks of goods are involved which have already paid tbe proper charges.

A confirmation of tbe doctrine enunciated may be found in tbe Eoyal Order of March 24, 1887, prescribing that goods acquired by tbe owners of public establishments for tbe sale *389thereof should he considered as consumed for the purposes of the tax, provided that the charges thereon were paid upon their entrance into the town, and, therefore, that the stocks of goods remaining over in said establishments at the time of the change in the tariffs are exempt from the payment of the difference in the burdens imposed by the one or the other.

Overruling the dilatory exception of want of legal capacity in the plaintiff, we adjudge that we ought to revoke and do revoke the resolution of the municipal council of this city of November 27, 1899, and the related resolution of the 28th of May of the following year, as well as the decision of the Treasurer of Porto Bico of November 6,1900. We also declare that the stocks of goods on hand in the retailers’ establishments intended for sale on the date when the tariffs of excise taxes on drinks and cigarettes went into effect, after the approval thereof by Major-General Davis, are exempt from the payment of the difference in the tax prescribed by said tariffs with relation to former tariffs, and order the sum of $3,893.82, the amount of the difference in tariffs improperly collected, and the amount deposited by the appellant in the municipal treasury, to be returned by the municipal council of this city to the “Eetailers Association,” all without special imposition of costs. In so far as we concur in the judgment appealed from the same is affirmed and is in all other respects reversed. The record of the District Court of San Juan is ordered to be returned with the proper certificate.

Chief Justice Quiñones and Justices Figueras and Mac-Leary concurred. Mr. Justice Sulzbacher did not sit at the hearing of this case.