DISSENTING 'OPINION OP
MR. JUSTICE DEL TORO.After a careful consideration of all the questions involved in this case, I have' concluded that I should dissent from the majority opinion' which serves as a basis for the judgment of this court affirming the judgment appealed from and state my reasons therefor in a separate opinion.
Both parties agree on the statement of the facts' of the case. The manner of weighing said facts and of applying the law and jurisprudence thereto gave rise to the controversy which the courts are called upon to decide.
Instead of stating the said facts myself I will transcribe them as they appear in the statement of the case which was drafted under an agreement between the interested parties.
“1. That on or about April 12, 1905, the "above-mentioned plaintiff, the Fajardo Sugar Company, a corporation organized and existing under'the laws of the State of New York, filed in the office of the Secretary of Porto Rico a duly certified copy of its articles of incorporation, including its consent to sue and be sued, and was duly registered in the office of the Secretary of Porto Rico as a foreign corporation authorized to do business in this Island.
“2. That since the said date the plaintiff has ben permitted and authorized from year to year.by the Treasurer of Porto Rico to engage in the cultivation of sugar cane and the manufacture of sugar, molasses and rum in Porto Rico, in which business it actually has been engaged, its principal office or place of business being in the town of Fajardo of this Island.
“3. On April 1, 1912, the Fajardo Sugar Company filed a verified corporation schedule for the fiscal year 1912-13 in the Treasury Department of Porto Rico, in which it undertook to give a true and complete statement of all the property belonging to said company in the Island of Porto Rico as of January 15, 1912, and to give full and true answers to all the questions relating to said property. Hereto attached and marked ‘Exhibit A,’ is a copy of the said corporation schedule with the six accompanying exhibits marked 1, 2, 3, 4, 5 and 9 referred to therein.
*303“This schedule contains first a report showing the capital of the corporation, as follows-.
Capital stock paid up_ $3, 000, 000. 00
Bonds, par value_ 400, 000. 00
Surplus and sinking fund 50, 000. 00
Undivided profits_ 587,101. 24
“This part of the schedule contains a note stating that the market value of the stock and bonds could not be determined.
“The schedule then went on to state the amount of capital of the corporation employed in business as follows:
Total capital invested in Porto Rico_$2, 413, 360. 33
. Total capital invested elsewhere_ 606, 919.10
Total (not footed in the schedule)_$3,020,279.43
“The schedule also contained a statement of the property of the corporation in Porto Rico as follows:
Real property consisting of lands (Exhibit No. 1)-1_ $24, 300.- 00
Railroad (Exhibit No. 2)_ 61,100.00
Sugar factory machinery (Exhibit No. 5) _ 474, 400. 00
Other machinery buildings (Exhibit No. —)_ 168,400.00
Total (not footed in schedule)_ $728, 200. 00
Mortgages (Exhibit No. 9)__
Cash on hand or on deposit- .$25,133. 30
Bills receivable and other credits (Exhibit No. 9)_ 1,077,777.30
Bonds and securities of other eompa- ' nies(Exhibit No. 9)_ 2,500.00
Personal property (Exhibit No. 3)_ 80,530.00
Rolling stock (Exhibit No. 4)_ 100.00
Total value of personal property_ 1,186, 040. 60
Grand total. (sic)— $2,413,360.33
“The item of capital outside of Porto Rico is made up of stock of the Fajardo Development Company owned in New York, to the amount of $586,500, and cash to the amount of $20,419 on deposit in New York.
*304“4. Later tbe Treasurer of,Porto Rico assessed the Fajardo Sugar Company for the purposes of taxation for the fiscal year 1912-13 and on July 13, 1912, sent to said corporation a notice of such assessment, a copy of which, marked ‘Exhibit B,’ is.made a part hereof. The said assessment, as appears from said notice, is as follows:
Land, 122 acres_$11, 800. 00
Sugar factory building and machinery_ 982, 427. 00
Buildings_ 88, 000. 00
Other improvements_ 12, 500. 00
Total value of land and im-provements_$1, 094, 727. 00
Mortgages, leases and stock -_- 2, 093, 894. 00
Total value of land and improvements, mortgages, leases and stock_•— $3,188, 621. 00
Railroad, bridges, tunnels, etc- $62, 710. 00
Rolling stock_ 200. 00
Total railroad (not footed in schedule) 62, 910: 00
Cash_ $25,133. 00
Other personal property_ 80, 530. 00
Total-105, 663. 00
Grand total-$3, 357,194. 00
“The item under ‘Mortgages, leases and stock, $2,093,894,’ was made up as follows:
Mortgages_$499,119. 00
Stock in Porto Rico Progress, a corporation organized under the laws of Porto Rico_ 2, 500. 00
Stock in Ea jardo Development Company, a corporation organized under the. laws of the State of New York__ 586, 500. 00
Bills receivable and other credits:
Advances on crops- 449, 506. 55
Loans — Fajardo Sugar Growers’ Association- 168,723.00
Current accounts- 197,155. 00
Current account with the Fajardo Development Company_ 200,146. 00
“5. Later the said Fajardo Sugar Company appealed to the Board of Review and Equalization, a copy of which appeal is attached *305hereto and marked ‘Exhibit C.’ (Upon receipt of the said appeal by the Treasurer it-was filed as ‘Appeal No. 821, Case No. 322.’)
The grounds of the said appeal were as follows:
“1. ‘That the valuation of “Machinery and factory buildings’’ was arbitrarily increased to $427,627 without considering their real value.
“2. ‘That the valuation of “Mortgages, leases apd stock” includes'the following items which, as credits, are expressly exempt by law. They are:
Advances on crops_$439, 751. 00
Loans to the Fajardo Sugar Growers’ Association_ 168,723. 00
Current accounts_ 197,155. 00
Account with the Fajardo Development Company-_ 200, 346. 00
Stock not owned in Porto Rico amounting to_ 586, 500. 00
“The said appeal was duly filed with the Board of Review and Equalization together with the tax and assessment schedules, as shown by the Treasurer’s certificate attached hereto and marked ‘Exhibit D. ’
“6. The Fajardo Sugar Company afterwards appeared by its attorney and argued its case before the Board of Review and Equalization, which thereupon reduced the total valuation of the real and personal property assessed against the Fajardo Sugar. Company for the fiscal year 1912-13 from $3,357,194 to $3,000,000. Notice of this decision of the Board-of Review and Equalization was duly sent by the Treasurer of Porto Rico to said corporation on August 30, 1912. A copy of said notice is attached hereto and marked ‘Exhibit E.’
“7. In deciding the case the Board of Review and Equalization considered that the total assessment against the Fajardo Sugar Company by the Treasurer for the purposes ,of taxation for the year 1912-13 was too high and concluded to reduce the amount as formerly stated. In the argument before the Board it was suggested that the corporation was justly subject to taxation on the total amount of its capital employed in business in Porto Rico, and that the amount of its capital so employed in Porto Rico might be arrived at fairly by computing, at a reasonable value, its capital stock, bonds, surplus and undivided profits (sinking fund) and deducting from the total the sum of $606,919, which is the amount alleged by the company to be employed in business outside of • Porto Rico. For this purpose the capital stock of the corporation was calculated at $2,569,818.
“That the Board finally decided the case by simply reducing the *306assessment of $3,357,194 to $3,000,000, and that it was decided to fix the said assessment on the value of the bonds, surplus and undivided profits of the Fajardo Sugar Company, deducting the amount ■of the capital employed in business outside of Porto Rico. To this end the bonds .were taken at a par value of $400,000; the undivided profits at $587,101; the surplus and sinking fund at $50,000, and the capital of the said corporation at $2,569,818, deducting from the total the sum of $606,919, which is the amount claimed by the corporation to be invested outside of Porto Rico, leaving in round numbers the sum of $3,000,000.
“8. On September 2, 1912, said Fajardo Sugar Company paid the sum of $18,000 as taxes on the assessment of $3,000,000, that being the first instalment of the taxes for the fiscal year 1912-13, of which sum the company paid $6,093.19 under protest. On February 28, 1913, the said Fajardo Sugar Company paid an equal sum under a similar protest, this payment being for the second instalment of the taxes for the fiscal year 1912-13. Both protests were based on the fact that the assessed property consisted of accounts current, promissory notes and other personal credits exempt by law from taxation, as follows .-
“‘(1) Advances, loans and account current with the Fajardo Sugar Growers’ Association amounting to $743,838.79.’
“ ‘(2) Account current with the Fajardo Development Company amounting to $200,146.76.’
“'(3) Promissory notes and bills receivable amounting to ■$72,000.’
“Copies of the two protests referred to are attached hereto and marked ‘Exhibit G’ and ‘Exhibit H’ respectively.
“9. On January 15, 1912, the Fajardo Sugar Company owned the following property:
“‘(1) Advances, loans and account current with the Fajardo Sugar Growers’ Association amounting to $743,838.79.’
“This sum was made up of money for financing crops previously advanced to the Fajardo Sugar Growers’ Association, an unincorporated joint-stock company organized under the laws of the State of New York and engaged in the cultivation of sugar cane in Porto Rico.
“ ‘ (2) Account current with the Fajardo Development Company amounting to $200,146.76.’ i
“This sum consisted of money previously advanced to the Fa-jardo Development Company, a corporation organized under the laws of the State of Connecticut and engaged in the operation of *307a railroad in Porto Rico as a common carrier of freight and passengers, the said railroad running from the municipality of Naguabo to the ward of Mameyes via Fajardo. The said advances consisted of unpaid balances on loans made from time to time since the organization of the Fajardo Development Company up to January 15, 1912, for the construction and maintenance of the railroad.
I£i(3) Promissory notes and bills receivable amounting to $72,000.’
“These notes represent various amounts owing by residents of Porto Rico and were acquired by the Fajardo Sugar Company in the course of its business. On January 15, 1912, the Fajardo Sugar Company held no security whatever for the credits mentioned in this item.”
With, the facts before us, let us see whether according to law and jurisprudence the sum of $12,136.37 has been unlawfully collected from the plaintiff for taxes.
A. The first question to be considered is whether “credits” in g’eneral are exempt from the payment of taxes in Porto Rico. In the case of the Union Central Life Ins. Co. v. Gromer, 19 P. R. R., 856, this court held that they were. I took part in the decision of that case and dissented from the majority opinion, but did not state my reasons therefor. I will do so now.
Prom the year 1900, in which our Revenue Law (commonly known as the Hollander Bill) was enacted, until 1904 there was no question with respect to whether personal and mortgage credits were exempt from taxation. Said credits were assessed and the owners paid the taxes thereon. The difficulty arose on account of certain amendments made to that law in 1904. Said amendments excluded accounts current, promissory notes and other personal credits from the classification of ‘‘personal property” contained in section 290 of the Political Code and in other sections closely connected, therewith.
I recognize the strength and the logic of the reasonings of Mr. Justice MacLeary in delivering the opinion of the court in the case of the Union Central Life Ins. Co. v. Gro-*308mer, supra. If it were possible to determine by inference whether credits are exempt from taxation by virtue of the amendments of 1904, I should answer that they are, but in my opinion such a conclusion cannot be reached by inference, an express declaration of such exemption by the Legislature 'being necessary. Nowhere does the revenue law expressly provide that credits are exempt from the payment of taxes, but in 1900, in 1904 and now the said revenue law contained and does contain the following provision: “That all property not expressly exempted from taxation shall be assessed and taxed.” See section 290 of the Political Code. If the Legislature of Porto Bico desired to exempt from taxation credits which it had previously regarded as taxable, it should have exempted them expressly in accordance with the rule laid down and followed by it.
In the case of Vicksburg & Pacific Railroad Co. v. Dennis, 116 U. S., 665, 668, the Supreme Court of the United States expressed itself as follows:
“In the leading case of Providence Bank v. Billings, 4 Pet. 514, Chief Justice Marshall, speaking of a partial release of the power of taxation by a State in a charter to a corporation, said: ‘That the taxing power is of vital importance; that it is essential to the existence of government; are truths which it cannot be necessary to reaffirm.’ ‘As the whole community is interested in retaining it undiminished ; that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear.’ ‘We must look for the exemption in the language of the instrument; and if we. dq not find it there, -it would be going very far to insert it by construction. ’ 4 Pet., 561-563.
“In Philadelphia & Wilmington Railroad v. Maryland, 10 How., 376, Chief Justice Taney said: ‘This court on several occasions has held, that the taxing power of a State is never presumed to be relinquished, unless the intention to relinquish is declared in clear and unambiguous terms.’ 10 How., 393.
“In the subsequent decisions, the sanie rule has been strictly upheld and constantly reaffirmed, in every variety of expression. It has been said that neither the right of taxation, nor any other power *309of sovereignty, will be held by tbis court to have been surrendered, unless such surrender is expressed in terms too plain to be mistaken; ’ that ‘nothing can be taken against the State by presumption or inference; the surrender, when claimed, must be shown by clear, unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power; if a doubt arises as to the intent of the Legislature, that doubt must be solved in favor of the State;’ that a State ‘cannot by ambiguous, language be deprived of this highest attribute of sovereignty;’ that any contract of exemption ‘is to be rigidly scrutinized, and never permitted to extend, either in scope or duration, beyond what the terms of the concession clearly require;’ and that such exemptions are regarded ‘as in derogation of the sovereign authority and of common right, and therefore not to be extended beyond the exact and express requirement of the grants, construed strictissimi juris.’ ”
And in the case of Davenport Nat. Bank v. Mittelbuscher, 15 Fed., 225, 228, the Circuit Court of the Southern District of Iowa said:
“It is now well settled that the shares of stock of corporations generally, in Iowa, are subject to taxation. Cook v. Burlington, supra. If the stock of savings banks is exempted, at all, it must be by the provisions of the section above quoted. As we have seen, it is not clear that such is the effect of 'that section. It is a sound and well-settled rule for the construction of revenue laws that ‘if property, which by a- previous general statute is declared liable to taxation, is to be exempted under a later act from bearing its proportion of the public burden, the exemption must rest upon some clear and unequivocal provision of the statute.’ ”
But even accepting as entirely correct the construction placed upon the revenue law by the majority of this court for the purpose of concluding that since the year 1904 credits are exempt from taxation in Porto Eico, still, in my opinion, the judgment appealed from should be reversed or at least modified.
B. This case is not entirely on all fours with that of the Union Central Life Ins. Co. v. Gromer, supra. Admitting that we may proceed to classify the items composing the sum of $3,000,000 on which the tax was finally levied and *310collected, we find among them, for example, the item of “Advances on crops,” which, as shown by the plaintiff itself, amounts, to $439,751, and which, according to the rule laid down by the majority of this court, should be regarded as exempt from taxation.
' If the theory of inquiring into the intention of the legislature is adopted for the purpose of concluding that by virtue of its amendments of 1904 it exempted credits from taxation, the same rule should be followed in order to determine the nature of the credits exempted.
In order to demonstrate the intention of the legislators, it has been maintained that they did not wish to assess the same property twice; that they did not desire to impose a double, tax. So, in assessing a mortgaged property prior to 1904, the amount of the mortgage was deducted. The owner of the property paid taxes on the • difference between the real value of the property and the amount of the mortgage and the mortgagee paid on the amount of his credit. By virtue of the amendments to the revenue law, since 1904 when a mortgaged property is assessed for the purpose of levying and collecting taxes the amount of the mortgage is not deducted and the owner is obliged to pay taxes on the total value of the property without any deduction. Hence the truly logical conclusion that in order to avoid what would practically result in a double assessment taxes should not continue to be collected from the mortgagee since the year 1904.
,But the matter of advances on crops is entirely different. Both before and after 1904 “The growing crops and products of the land actually owned by and still in the hands of the producer * '* * shall be exempted from taxation. ’ ’ Section 291 of the Political Code as amended in' 1904. So that, according to the foregoing provision and the construction which the majority of the justices of this court placed upon the revenue law as amended in 1904, the sum of $439,751 lent by the Fajardo Sugar Company to the Fajardo Sugar *311Growers’ Association as “Advances on crops” neither pays taxes as inverted into the crop of sugar cane of the debtor corporation, nor can it he considered as capital of the creditor corporation. Hence the said sum absolutely escapes the payment of taxes, and I am of the opinion that this could not have been the intention of the Legislature.
C. But this is not all. Although it is true that the assessment made by the Treasurer was based on the figures given in clause 4, it is also a fact that an appeal was taken from that assessment to the Board of Review and Equalization, that the Board heard the appeal and that during’ the argument “it was suggested that the corporation was justly subject, to taxation on the total amount of its capital employed in business in Porto Rico, and that the amount of its capital so employed in Porto Rico might he arrived at fairly by .computing, at a reasonable value, the capital stock, bonds, surplus and undivided profits (sinking fund) and deducting from the total the sum of $606,919, which is the amount alleged by the company to he employed in business outside of Porto Rico. For this purpose the capital stock of the corporation was estimated at $2,569,818.”
The proceeding followed by the Board was different from that adopted by the Treasurer; nevertheless the Treasurer’s, plan is that which really has served as a basis for the conclusions reached in discussing- and deciding the appeal.
It cannot be denied that by virtue of Act No. 35 of March. 9, 1911, providing for the payment of taxes under protest,, since that date suit may be brought in the courts for the recovery of taxes wrongfully collected even though said taxes, may have been approved by the Board of Review and Equalization, but for that purpose the nature of the tax unlawfully collected must be plainly shown and the exact amount of the same clearly distinguished and determined. And this, in my opinion, has not been done in the present case.
D. Finally, although it should be concluded that all the amounts specified in the complaint, amounting to over a mil*312lion dollars, were exempt from taxation, both justice and equity would require that there should be deducted from this amount the sum of $357,194 which the Board of Review and Equalization deducted in the appeal taken by the plaintiff corporation; for, in view of all the attendant circumstances, I find npne to justify the theory that the intention of the Board was to deduct the said sum from the assessment made by the Treasurer upon the “Machinery and factory buildings” of the Fajardo Sugar Company.
Such, briefly, are the grounds upon which I base my dissent.