DISSENTING OPINION OP
MR. JUSTICE DEL TORO.This is an action for the recovery of taxes paid under protest. The complaint reads as follows:
“The plaintiff, by its attorney, Edward S. Paine, complains of the defendant and alleges the following on information and belief:
“1. That the plaintiff is a corporation duly organized and existing under the laws of the State of Connecticut and authorized to do business in Porto Pico.
“2. That the defendant, Allan IT. Richardson, is the duly appointed and qualified Treasurer of Porto Rico and is now holding that office..
“3. That Allan H. Richardson, as Treasurer of Porto Rico, is the official charged by law with the duty of assessing, fixing the amount and collecting all taxes to be paid by individuals and corporations in the Island of Porto Rico, including the assessment, levy and collection of all taxes on the plaintiff’s property in Porto Rico.
“4. That the plaintiff is and has been for some time past the owner of, and seized and possessed of, certain lands, and is and has been the owner of certain machinery, buildings and other property in the Island of Porto Rico upon which the Government of Porto Rico has levied certain taxes. That said property is located in the municipal district of Guánica, Porto Rico.
“5. That heretofore and between the months of January and August, 1913, both inclusive, in attempted compliance with the provisions of the statute in such case made and provided, the said defendant, as Treasurer of Porto Rico, assessed the property of the plaintiff for the fiscal year beginning the first day of July, 1913, and ending the thirtieth day of June, 1914. That for the purpose of such assessment said defendant, acting under the provisions of *494such statute, required and demanded that the plaintiff furnish him a verified statement covering all of the property owned by the plaintiff in the Island of Porto Rico, together with its true and actual value. That the plaintiff, in compliance with such requirement and demand, furnished to the Treasurer of Porto Rico verified statements of its real and personal property together with tile true and actual value thereof, which said statements were accepted and retained by the said defendant, as Treasurer of Porto Rico.
6. That a large part of the business of the plaintiff consists in grinding and extracting the juice from sugar cane grown in the Island of Porto Rico and converting the same into centrifugal or raw sugar. That for the said purposes it has erected upon its real property in the said municipal district of G-uánica a sugar mill fully equipped for grinding and extracting the juice of sugar cane and converting the same into sugar.
“7. That a complete list of all of the machinery and other apparatus, parts and accessories used in said mill and the true and actual value thereof ivas given to the said defendant, as Treasurer of Porto Rico, on his request and demand in a printed paper furnished to the plaintiff by the defendant and known and designated as 'Exhibit 5, Sugar Factory,’ to which reference is made for the contents thereof. That this said exhibit was a part of the verified statement heretofore referred to, and plaintiff alleges that it was and is a true, full, correct and complete inventory of the machinery, equipment, parts and accessories of said sugar mill and contains a true, correct and complete, actual and full valuation of each and. every part of said mill; and plaintiff alleges that the value of said mill as so given at the time of furnishing such verified statement, and more particularly said paper marked ‘Exhibit 5, Sugar Factory,’ was the true and actual present value at the time of the assessment of the property of the plaintiff hereinbefore .and hereinafter more particularly mentioned.
“8. That no other information was obtained, or other examination made, or other means of ascertaining the value of said sugar mill of the plaintiff pursued by the defendant, as Treasurer of Porto Rico, or by the assessors or sub-assessors appointed for the purpose of aiding the said defendant in such assessment other than the examination of the said ‘Exhibit 5, Sugar Factory,’ and other than the table of valuations hereinafter more particularly referred to.
“9. That thereafter during the month of August, 1913, the said *495defendant, as Treasurer of Porto Rico, alleging that he was acting under and pursuant to the statute in such case made and provided, assessed the plaintiff on account of its said sugar mill upon a valuation of $1,800,000, and that thereafter on or about the 29th day of August, 1913, the plaintiff received a notice purporting to be a notice of such assessment together with others, to which notice reference is made for the contents thereof.
“10. That upon receipt of such notice and within the proper time thereafter the plaintiff duly caused to be served upon the Board of Equalization and Review, as required by law, its protest against such assessment, to which said protest reference is made for the contents thereof. That in said notice of assessment and in said notice of protest the property of the plaintiff as mentioned therein included the said sugar mill.
“11. That the valuation fixed by the plaintiff upon the items mentioned in said ‘Exhibit 5, Sugar Factory,’ was $1,203,891, being approximately $600,000 less in amount than the valuation fixed by the said defendant, as Treasurer of Porto Rico, for purposes of assessment. That the plaintiff through its proper officer requested the said defendant to inform it what items had been increased in said ‘Exhibit 5, Sugar Factory,’ in order that it might ascertain the points of difference between said valuations and be prepared to take the matter up with the Board of Equalization and Review. That the said defendant, as Treasurer of Porto Rico, through the person then officiating as Acting Treasurer of Porto Rico in the absence of the defendant, refused to furnish said information, stating that the valuation of the mill was fixed as a whole.
“12. That the said Board of Equalization and Review heard the protest of the plaintiff, at which hearing the plaintiff was represented by its proper officer, and thereafter and on a date unknown to the plaintiff the said Board of Equalization and Review determined the protest of the plaintiff and continued the valuation and assessment of the plaintiff’s sugar mill at $1,800,000.
“13. That subsequently and on or about the 17th day of April, 1914, the plaintiff received a notice, to which reference is made for the contents thereof, which said notice, signed by the defendant as President of the Board of Equalization and Review, purported to give the true valuation of the plaintiff’s property as fixed by the said Board of Equalization and Review, and upon which valuation plaintiff was subsequently compelled to pay taxes.
“14. That subsequently thereto and on or before the 27th day *496of April, 1914, tbe plaintiff received a notice from the said defendant, as Treasurer of Porto Rico, sent by one M. J. Harrison, Collector of Taxes, purporting to give the amount of the tax levied as a result of such assessment for the fiscal year 1913-14, and the sum mentioned therein was $28,380.10, which said sum is the amount of said tax on plaintiff’s real and personal property in the Island of Porto Rico, which includes a tax at the rate of 1.2 per cent per annum on a valuation of the said sugar mill hereinbefore described of $1,800,000, to wit, the sum of $21,600.
“15. That the said taxes were due and payable immediately and that as to all amounts not paid before June 1, 1914, a penalty of 1 per cent of the amount thereof would be levied for each and every month of non-payment, and that the said defendant, as Treasurer of Porto Rico, acting pursuant to the statute in such cases made and provided, and through his proper assistants and agents, threatened to embargo the property of the plaintiff in case the taxes were not paid; whereupon the plaintiff on or about the 28th day of April, 1914, paid said taxes under protest, in accordance with the provisions of the Act of March 9, 1911, by means of a cheek to the order of the Treasurer of Porto Rico, upon which check was endorsed ‘Paid under protest and in .accordance with the Act of March 9, 1911/ and which said check was accompanied by a letter dated April 24, 1914, setting out the grounds of said protest, to which letter reference is made for the terms thereof.
“16. That the said valuation and assessment upon the plaintiff’s sugar mill of $1,800,000 is grossly excessive and does not represent the true value of the said property; that the true and correct value of the said sugar mill is the sum of $1,203,891. That said true and correct valuation is the valuation given in said ‘Exhibit 5, Sugar Factory,’ and that said exhibit was the only legal source of information as to the actual value in Porto Rico of said sugar mill, machinery, equipment and accessories at the time of making such assessment by the defendant and at the time of the revision of such assessment by the Board of Equalization and Review.
“17. That the said defendant, as Treasurer of Porto Rico, and the said Board of Equalization and Review adopted a method, illegal, void, unjust and discriminatory in fixing the valuation of the plaintiff’s sugar mill and in assessing the tax upon the basis of such valuation. That the method of such assessment and valuation is as follows:
“The said defendant, as Treasurer of Porto Rico, caused to be *497made a eertaii schedule or table of values upon which he placed certain figures representing the alleged value of the sugar mills of certain corporations owning and operating sugar factories in the Island of Porto Rico. That these were approximately twenty-three in number; that he caused to be set down figures showing the previous assessed valuation and an estimated value of the cost of the various parts of the machinery, including boilers, centrifugals, clari-fiers, vacuum pans and other equipment and accessories; that the total of said figures representing the alleged cost of said machinery in each mill was divided by the number of tons of cane capable of being ground in each mill per day; that the figures so obtained for each mill were added .and the result divided by the number of mills averaged, thus forming together with other elements of transportation, erecting and overhead expense an alleged average of the cost of sugar machinery per ton per day; that such so-called unit so found was approximately $500.
“18. That upon this alleged basic unit the said sugar mill of the plaintiff with a capacity of 3,700 tons per day would have a valuation of $1,850,000, but because of drought conditions and other elements, and to make a round figure the assessment of the plaintiff was fixed at $1,800,000.
“19. That this said alleged unit is by no means a true and correct criterion of the value of any of the sugar mills in Porto Rico, and much less so in the case of the said sugar mill of the plaintiff; that the capacity of the said sugar mill of the plaintiff is about double that of the next largest sugar mill on the island and is about five or six times as large as the average mill; that the cost of machinery for the mill owned by the plaintiff is very different from that of many other mills in the island-; and that the taking of such a large unit valuation results in an entirely erroneous and incorrect valuation ;. and that such assessment, is contrary to law and to the Constitution of the United States and the Fifth and Fourteenth Amendments thereto, and to the Act of Congress of the United States approved April 12, 1900, entitled ‘An Act temporarily to provide revenues and a civil government for Porto Rico, and for other purposes,’ which provides that taxes and assessments shall be made and levied on property, which said taxes and assessments must be based upon the valuation of said property.
“20. That the said valuation so made by the said defendant and by the Board of Equalization and Review is not only excessive as to the plaintiff’s present mill, but that it is possible to erect an *498.entirely new mill complete in every particular, similar in design but superior in operating efficiency to the sugar mill now in opera - -tion, including all costs of transportation, overhead and erection for .an amount very much less than $1,800,000.
i “21. That the difference between the value of the plaintiff’s mill as assessed, to wit, $1,800,000, and the true and actual value thereof, $1,203,891, is $596,109. That the tax on said sum at the rate of 1.2 per cent per annum .amounts to $7,153.31, which said tax has been paid under protest and for the reasons hereinbefore mentioned.
“22. That the Act of March 9, 1911, entitled ‘An Act providing for the payment of taxes under protest, establishing a procedure for the recovery thereof, and for other purposes,’ provides that taxes may be paid under protest and that the person paying taxes under protest may, at any time within thirty days thereafter, sue the Treasurer of Porto Rico for the said sum, and if it' be determined on the merits of the case that the same were wrongfully collected, the court trying the case may certify of record that the taxes were wrongfully paid and thereupon the Treasurer shall repay the same. The said Act further provides that there shall be no other remedy in any case of the illegal collection of taxes, or an attempt to collect the same illegally.
“Wi-iEREFORE, the plaintiff prays this court to certify, in accordance with the facts of the case, that the assessment exceeding the sum of $1,203,891 is excessive and illegal; that the sum of $7,153.91 was wrongfully paid and ought to be refunded; and that judgment be rendered ordering the Treasurer of Porto Rico to repay the said sum in preference to any other claims on the Treasury. (Signed) Edward S. Paine, attorney for the plaintiff.”
The defendant was summoned and demurred to the "complaint on the ground that it was ambiguous, unintelligible and uncertain and did not state facts sufficient to constitute a cause of action. lie also answered admitting some and denying other allegations of the complaint, and setting up hew matter in opposition thereto. A hearing was had on the demurrer and on March 26, 1915, the district court rendered judgment dismissing the complaint on the ground that the facts alleged did not constitute a cause of action. The plain*499tiff then appealed to this court, which heard the appeal on .November 23, 1915.
In its brief the appellant maintains that the trial court erred:
1. Because the decision of the Board of Review and Equalization as to the value of the property was not conclusive ;
2. Because the object of the Act of March 9, 1911, was to provide for a complete review by the courts of all the acts of the said board;
3. Because the case of Succession of Puente v. The People of Porto Rico, 19 P. R. R. 532, is not analogous to the case at bar; and
4. Because the adoption by the Board of Review and Equalization of an erroneous fundamental principle is sufficient ground for the rejection of the action of said board.
Therefore, the fundamental question involved in this action, reduced to its final analysis, is whether the decision of the Board of Review and Equalization in this case is conclusive or not. The plaintiff valued its property at $1,203,-891. The Treasurer of Porto Rico assessed it at $1,800,000; The plaintiff appealed to the Board of Review and Equalization, which considered the case and affirmed the assessment of the Treasurer. Thereupon the plaintiff paid the taxes under protest and brought the present suit to recover the difference between the taxes on $1,203,891 and on $1,800,000, which it calculates at $7,153.91. Did the plaintiff have a right of appeal to the courts, or should it be concluded on the facts alleged in its complaint that it had already had its day in court and that its case was conclusively decided by ■the administrative tribunal? This, I repeat, is the fundamental question involved in this appeal.
One of the first acts passed by the Legislative Assembly •of Porto Rico created by the Organic Act of April 12, 1900, was the revenue law which was incorporated in the Political Code .in 1902. The said act has been amended at various *500times, but for the most part its fundamental provisions still continue in full force.
The Board of Review and Equalization, to which I have already referred, was created by the said Act as an actual administrative tribunal whose decisions were to be final. Sections 308 to 313 of the Political Code.
In the cases of Caneja v. The People, 12 P. R. R. 237, and Guitián et al. v. The People of Porto Rico, 12 P. R. R. 242, this court expressed itself as follows with regard to' the said board:
‘ ‘ Considering the organization of the Board of Review and Equalization as by section 308, its decision in the matter of the valuation of property must offer more guarantees of correctness than those of a court of law, whether uni-personal or collegiate, whose members need not be versed in matters relating to the value of property in Porto Rico, as is the case with (two of) the persons who must compose said board.
“Furthermore, the Board of Review hears the aggrieved parties and admits evidene* for the proper discharge of their functions, and such evidence, with the assistance which can be given the board by its two members versed in matters relating to the value of property are unknown to the judge or court of law to which an appeal is taken from such decision of the board which might be reversed on evidence different and even contrary to that which served as a basis therefor; because it is not logical to .assume that the appellant would submit to the court of law evidence which had been adverse to him before the Board of Review especially when it is considered with what ease the evidence desired may be found in a matter which is subject to such diversity of opinion as the valuation of property.
“Without doubt, for the reasons set forth, and for other reasons which will not have escaped the wise penetration of the legislator, section 310 provides that the decision of the board in all matters presented- to it shall be final; and in view of such an absolute and specific provision any discussion is useless. Dura lex, sed lex. Caneja v. The People, 12 P. R. R. 237.
“But section 310 clearly says that the decision of the board in all matters coming before it shall be final. We think this cuts off any appeal or review, by way of certiorari or otherwise in the ordinary tribunals, of the decisions rendered by the Board of Review *501and Equalization. Such matters pertain to the executive branch of the Government and it has constituted a board1 which has, as is stated in the New York decisions, judicial powers, as far as the limited circle of its jurisdiction extends, and it was not intended to make the ordinary courts of the island, which are constituted for the trial of controversies between parties, the arbiter or the supervisor of the assessment rolls made up in the Treasurer’s office, and corrected by the board appointed for that purpose.” Guitián et al. v. The People of Porto Pico, 12 P. R. R. 242.
The law being thus, in 1911 the Legislative Assembly of Porto Eico passed Act No. 35, providing for the payment of taxes under protest, establishing a procedure for the recovery thereof, and for other purposes.
Did that Act change the system and the jurisprudence theretofore established1? Let us see.
It provided nothing regarding the assessment of taxes— nothing with regard to the organization of the Board of Eeview and Equalization. Its provisions refer exclusively to the method to he pursued for the recovery of certain taxes paid under protest. It does not contain the usual clause repealing other statutes.
Prior to the year 1911 the taxpayer’s recourse at law for opposing the collection of illegal taxes was prescribed in section 14 of the Act of 1902 authorizing injunctions (section 356 of the Revised Statutes and Codes of Porto Eico of 1902)., and was provided for later by section 12 of the Injunction Act of 1906, which, in so far as pertinent, reads literally as follows:
“An injunction may be issued to prevent the illegal levying of any tax, duty or toll, or for the illegal collection thereof, or against any proceeding to enforce such collection; and any number of persons whose property may be burdened by a tax so imposed may join themselves to obtain such injunction * * Laws of 1906, p. 89.
Section 12 of the Injunction Act of 1906 was amended and the part quoted eliminated by section 6 of said Act No. 35 of 1911, which Act prescribed a new method for the recov*502ery of unjust and illegal tases paid under protest, and provided that “no writ for the prevention of the collection of any revenue claimed, or to hinder and delay the collection of the same, shall in anywise issue, either supersedeas, prohibition, or any other writ or process whatever; but in all eases in which, for any reason, an3r person shall claim that the tax so collected was wrongfully or illegally collected, the remedy for said party shall be as above provided and none-other.” Section 5 of Act No. 35 of 1911.
1. Did said Act No. 35 tacitly repeal the provisions of the-Political Code relating to the Board of Review and Equalization? 2. If it did not repeal them but was enacted on the theory of the existence of such provisions, did it create a system by which all of its decisions might be reviewed by the courts, thus modifying section 310 of the Political Code which provides that all the decisions of the board shall be conclusive? 3. Did said Act No. 35 simply take the place of the former injunction, leaving in full force and effect the provisions of the Political Code relating to the Board of Review and Equalization and -limiting its sphere of action to cases of actual illegal taxes — that is, those not authorized by law, or involving fraud, or levied with the obvious intention of injuring the taxpayer, or based on such erroneous principles adopted by the board as to show that it acted without jurisdiction?
Act No. 35 was taken from the laws of the State of Tennessee. It was introduced into Porto Rico by Foster V. Brown, then Attorney General of the island, who previously thereto was, and is at present, an attorney of the said state. It must be construed, therefore, according to the jurisprudence of that state.
I have examined the cases of Tennessee v. Sneed, 96 U. S. 69; Briscoe v. McMillan, 117 Tenn. 115; Bank v. Memphis, 107 Tenn. 66; Ward v. Alsup, 100 Tenn. 619; and Tamble v. Pullman Co. 207 Fed. 30, which are cited by the appellant, and while the question at issue is not concretely disposed *503of in any of tlie said cases cited, their study suggests a certain safe mode of proceeding in order to determine the scope of said Act No. 35.
From the case of Tennessee v. Sneed, supra, it appears that a taxpayer offered to pay a certain sum partly in money and partly in notes of the Bank of Tennessee. The collector refused to accept such payment. Thereupon the taxpayer brought mandamus proceedings against the collector. Among the reasons advanced why the writ should not issue was that the only proceeding open to the taxpayer was that determined by the law of Tennessee from which our Act No. 35 of 1911 was taken. The court dismissed the petition. The taxpayer appealed to the Supreme Court of the state, which affirmed the judgment appealed from. Thereupon the taxpayer appealed to the Supreme Court of the United States, which, after analyzing the facts and the law applicable to the case, concluded its opinion as follows:
“If we assume that prior to 1873 the relator had authority to prosecute his claim against the State by mandamus, and. that by the statutes of that year the further use of that form was prohibited to him, the question remains, whether an effectual remedy was left to him or provided for him. We think the regulation of the statute gave him an abundant means of enforcing such right as he possessed. It provided that he might pay his claim to. the collector under protest, giving notice thereof to the comptroller of the treasury; that at any time within thirty days thereafter he might sue the officer making the collection; that the case should be tried by any court having jurisdiction, and, if found in favor of the plaintiff on the merits, the court should certify that the same was wrongfully paid and ought to be refunded, and the comptroller should thereupon issue his warrant therefor, which should be paid in preference to other claims on the treasury.
“This remedy is simple and effective. A suit at law to recover money unlawfully exacted is as speedy, as easily tried, and less complicated than a proceeding by mandamus. Every attorney knows how to carry on the former while many would be embarrassed by the forms of the latter. Provision is also made for prompt payment *504of the amount by the State, if judgment is rendered against the officer on the merits.
“We are not cited to any statutes authorizing suits to be brought against .a State directly, and we know of none. In a special and limited class of cases the United States permits itself to be sued in the Court of Claims; but such is not the general rule. In revenue cases, whether arising upon its internal revenue laws or those providing for the collection of duties upon foreign imports, it adopts the rule prescribed by the State of Tennessee. It requires the contestant to pay the amount as fixed by the Government and gives him power to sue the collector, and in such suit to test the legality of the tax. There is nothing illegal or even harsh in this. It is a wise and reasonable precaution for the security of the government. No government could exist that permitted the collection of its revenues to be delayed by every litigious man or every embarrassed man, to whom delay was more important than the payment of costs.
“We think there is no ground for the assertion that a speedy and effective remedy is not provided to enforce the claim set up by the plaintiff. This is the only question properly before us, and we are of the opinion that it presents no ground for reversing the judgment of the court below.
“The other important questions discussed in the opinion of the court below and argued by the counsel it is not necessary here to examine; they do not arise at this time. Judgment affirmed. ” Tennessee v. Sneed, 96 U. S. 69.
As a result of the said decision of the Supreme Court of the United States, the principle was established that a statute providing for a system like that created by Act No. 35 of 1911 is absolutely valid and effective.
In the case of Briscoe v. McMillan, supra, various citizens of Knox County applied for an injunction to enjoin the assessment and collection of taxes according to a certain decision of the State Board of Equalization, alleging that the said decision was illegal and absolutely void. The petition was • denied both in the court of original jurisdiction and on appeal.
After holding in its opinion that the case did not come within the purview of the Act providing for the refund of taxes paid under protest, inasmuch as no taxes had been *505collected, tlie Supreme Court of Tennessee expressed itself as follows:
“The next insistence is that complainant’s remedy, if any, is in the court of law by certiorari. The bill, however, proceeds upon the idea that the assessment made by the State Board of Equalizers is absolutely void and, if such a case is made by the bill, we think the jurisdiction of the chancery, court is well settled. National Bank of Chattanooga v. Mayor and Aldermen, 8 Heisk., 814; Alexander v. Henderson, 105 Tenn. 431, 58 S. W. 648.
“It is true Acts 1903, p. 674, c. 258, section 38, subsec. 10, expressly provides that the action of the State board ‘shall be final and conclusive as to all matters passed upon by the board and taxes shall be collected upon the valuation so fixed and found by the State Board.’ It will be observed no method is provided by this act by appeal or otherwise for reviewing the .action of the State Board; but, on the contrary, the act expressly provides that the action of the State board shall be-final. Ordinarily this condition would render the remedy by certiorari peculiarly appropriate; but if, as alleged in the bill, the action of the State Board of Equalization is void, then the jurisdiction of a court of equity to prevent the execution of a void judgment is universally recognized. In such a case, it is wholly immaterial that the .act provides that the action of the State Board shall be final, since such action only relates to the lawful exercise of. the jurisdiction of the board, and not to acts which are absolutely void.” Briscoe v. McMillan, 117 Tenn. 128.
The foregoing decision shows that in the State of Tennessee there is a law providing for the refund of revenue paid under protest and also a board of equalization whose decisions are conclusive. This being so, the Supreme Court of Porto Rico did not err when it held in the case of Succession of Puente v. The People, 19 P. R. R. 560, that the operation of Act No. 35 of 1911 was not intended to repeal the provisions of the Political Code relating to the Board of Review and Equalization.
The decision in the case of Ward v. Alsup, 100 Tenn. 746; which I shall discuss presently, was affirmed in the case of Bank v. Memphis, supra, but it is held that when the tax is void for want of authority to levy it, an appeal need not *506be first made to tlie Board of Equalization, but the person paying the same under protest may apply directly to a court of law for its refund.
The case of Ward v. Alsup covers one hundred and thirty-one pages of Volume 100 of the Decisions of Tennessee.. Docnments and briefs filed by the parties are transcribed therein, and the court finally dismissed the action simply because the plaintiff had not first appealed to the Board of Equalization in defense of his right. In the course of its. opinion the court expressed itself as follows:
“The general subject of correction of illegal, excessive, and improper assessments is considered by Mr. Desty in his work on Taxation, Vol. 2, pages 625-627, also pages 654, 661. It will be seen that much depends upon the statutes of the State, and the means, and modes of correction provided, "but the general principle is, that when a tribunal and mode are provided, that must be availed of before the taxpayer can have ordinary relief at law.
“In summing up, he says: ‘As a general rule, for a mere irregularity the statutory remedy is exclusive, and the party must avail himself of it or suffer the consequences of his neglect, and, if he does not have his assessment corrected and perfected when he has: power to do so, he is assumed to admit its correctness, and the court may, in its discretion, refuse to aid him, and, when the assessment is not fraudulent, he loses all remedy.’
“It is proper to remark again that in this case fraudulent conduct in the assessors is not only not charged, but expressly disclaimed-See, also, the cases cited by the author in support of his text.
“Again the same author says: ‘When a person claims that the assessment of taxes was excessive, but failed to apply to the Board of Appeals to have the error corrected, and no excuse is given for his failure to apply at the proper time, the courts cannot interfere to stay the collection of the tax.’ 2 Desty on Taxation, 654, and cases cited.
“And again, at page 662: ‘ If a taxpayer, by failing to pursue a remedy for the correction of irregularities in the assessment and levy of taxes, waives or loses his right to resist the collection of the taxes, the exaction of payment by the Treasurer is not illegal or erroneous. If that remedy is not pursued, the tax may be collected.. If he does not have his assessment corrected and reviewed when in *507bis power to do so, it is an admission of its correctness. He must proceed in the manner prescribed by statute.’
“It is true the Tennessee statute gives the taxpayer a remedy by paying under protest, if he conceives his taxation to be illegal,, unjust, or excessive, or against any statute or clause of the constitution, and then by suing the collector to recover back the amount thus unjustly exacted, but this clearly contemplates that the taxpayer must, in case of irregular, improper, or excessive assessments, made by the proper officials, have made complaint before the board appointed by the statute to hear such complaint and to inquire into the'1 assessment and the manner in which it is made, and whether it is or is not excessive. The County Trustee has no power to do-this but only to collect such taxes as come to him already assessed,, except in certain cases of omitted property, etc.
“If a party contemplates questioning the entire system of assessments or the special assessments of his own property, by the statutory action to recover the amount demanded from him, he must put himself in position so to do by lodging his complaint, first, with the-board appointed to hear such complaints under the law, and in the time provided by statute. The statute which provides that the taxpayer must pay his taxes under protest and then sue to recover them back, and that this remedy should be exclusive, was intended to prevent the tying up of taxes by injunction and other process, so that the State’s revenue might not be tied up with litigation, but the theory was that if the assessment had reached such a stage that the tax was levied and collectible, the taxpayer then should pay and take his remedy to recover back. But in order to have this remedy,, in the absence of fraud or other ground of equitable intervention, he must have availed himself of such provisions of the statute as would have corrected the injustice complained of before the tax was levied and made collectible.” Ward v. Alsup, 100 Tenn. 747, et seq.
In the case of Tamble v. Pullman Co., supra, the statute in force in Tennessee making the decisions of the hoard of' equalizers final and conclusive is again cited, hut as in the case of Briscoe v. McMillan, supra, it is held that notwithstanding this, the courts may interfere and set aside suck decisions when they are absolutely void.
Consequently the cases cited by the appellant do not support his contention. The doubt which may have been left *508in one’s mind by the language used by the Supreme Court of Tennessee in the case of Ward v. Alsup, supra, in regard to the interpretation of the statute providing for the refund of taxes paid under protest as a means by which all of the decisions of the board of equalizers may be appealed from for purposes of review, vanishes when the insistence with which the said court sustains the force of the statute relating to the conclusiveness of the decisions of the said board is observed, and especially if it be taken into account that in the case of Bank v. Memphis, 116 Tenn. 641, 657, where the proceeding prescribed by law for the refund of taxes paid under protest was followed, the said court said:
“It is insisted that the action of the Board of Equalization was void, because one of their number was a nonfreeholder; whereas the act requires that the board shall be composed of freeholders. Such a question cannot be made in a collateral attach, as the present is, upon the action of the board.”
In view of all the foregoing, it must be concluded that the Board of Review and Equalization still exists in Porto Rico with the same powers which it had prior to the passage of Act No. 35 of 1911, and that this Act did not provide for an ordinary appeal from the decisions of the said board. The remedy provided for by the said Act is independent, original and limited to cases of unjust and illegal taxes. "What are these?
. The meaning of the word “illegal,” employed in Act No. 35 of 1911, is quite plain. When a tax- not authorized by law is collected the statutory right may be exercised. The fact that the Treasurer has intervened, or the Board of Review and Equalization has passed upon the question, is immaterial. The illegality remains and may be inquired into by the courts of justice. To illustrate this, I will cite the case of Union Central Life Insurance Co. v. Treasurer of Porto Rico, 19 P. R. R. 856, in which notwithstanding the prior intervention of the Board of Review and Equalization, the Supreme Court ordered the refund of the tax collected *509under the decision of the board, because it found that the property assessed was exempt by law from taxation and therefore its collection was illegal.
The word “unjust,” which is also used in Act No. 35, is open to a more or less extensive construction. It means that which is not just; that which is contrary or opposed to justice. “Just” means that which conforms to justice, and “justice” is the virtue which seeks to give to each one what belongs to him.
If construed independently and in its broadest significance it must be admitted that Act No. 35 provides for an appeal in any case in which the slightest injustice has been committed. Viewed from a scrupulously honest standpoint, the collection of a single cent too much in an absolutely legal assessment would be an injustice and hence a sufficient ground for an appeal.
In my opinion such interpretation is not proper. In applying the provisions of Act No. 35 it should never be forgotten that other laws give to the taxpayer an ample opportunity for the defense of his rights; for determining, for example, as accurately as possible the amount of the taxes. I refer to the appeal to the Board of Review and Equalization. Nor should it be forgotten that by an express provision of an act of the Legislature the ■ decisions of the said board are conclusive. Hence, in accordance with the repeated jurisprudence of the courts in cases of this kind the word “unjust” should be applied only to such cases in which there has been fraud, a plain intention to injure the taxpayer, or the adoption by the board of erroneous prin.ciples in computing the amount of the tax. In this way the value and efficacy of the administrative proceeding are recognized and the action of the courts is reserved for cases in which it may be really necessary. When the board'acts within the scope of its authority, without wrongful intent and without committing fraud and, in accordance with the principles of natural justice, holds that a particular person *510should pay certain tases imposed by law, its decision is final. Its action in such a case is not rp viewable by the courts, but when any or all of the said elements are present, then there .should exist and does exist an open road'to the courts for a redress of the wrong. See Hilton v. Merritt, 110 U. S. 97.
The Supreme Court of the United States said:
“The board was created for the purpose of using its judgment and its knowledge. Slate Railroad Tax Cases, 92 U. S. 575; State v. Savage, 65 Neb. 714, 768, 769; In re Cruger, 84 N. Y. 619, 621; San José Gas Co. v. January, 57 Cal. 614, 616. Within its jurisdiction, except, as we have said, in the ease of fraud or a clearly-shown adoption of wrong principles, it is the ultimate guardian of •certain rights. The State has confided those rights to its protection and has trusted to its honor and capacity as it confides the protection •of other social relations to the courts of law. Somewhere there must be an end. We are of opinion that whatever grounds for uneasiness may be perceived nothing has been proved so clearly and palpably as it should be proved, on the principle laid down in San Díego Land & Town Co. v. National City, 174 U. S. 739, 754, in order to warrant these appeals to the extraordinary jurisdiction of the Circuit Court.” Chicago, B. & Q. Ry. Co. v. Babcock, 204 U. S. 585, 589.
And the same court, in the case of Maish v. Arizona, 164 U. S. 599, 611, expressed itself as follows:
“Something more than an error of judgment must be shown, something indicating fraud or misconduct. * * *. It is unnecessary to determine whether this board erred in its judgment as to the value of this property, whether it would not have been better to have made further examination and taken testimony as to the cost of construction, present condition, etc. Matters of this kind are left largely to the discretion and judgment of the assessing and equalizing board, and if it has acted in good faith its judgment can not be overthrown. Pittsburgh, Cincinnati, etc., Railway v. Backus, 154 U. S. 421-435.”
Having reached the foregoing conclusions, I shall proceed to consider whether the facts set up in the complaint show that an “unjust or illegal” tax is involved in this case, *511and consequently whether the appeal provided for by Act No. 35 of 1911 lies.
None of the allegations of the complaint show that the tax collected had been levied upon any property exempt by law from taxation, or that the said tax levied, in whole or in part, was not authorized by law. ■ Fraud or manifest intent of the board to injure the plaintiff was expressly disclaimed by the plaintiff in its brief. The claim is based solely on the adoption of erroneous principles for computing the taxes imposed upon the plaintiff corporation.
The said method has been explained at sufficient length in the complaint (see count No. 17 et seq.). I have studied it carefully and while I appreciate that it cannot be considered perfect as it is described, I am of the opinion that it cannot be said to be erroneous to such an extent as to convert the final assessment made by the board into an unjust or illegal assessment. The fact that the board took into account the output of the sugar factories in the island in relation to their cost in order to adopt a general standard applicable to all, does not mean that in assessing the plaintiff’s sugar factory it absolutely failed to consider the conditions peculiar thereto. It appears that the plaintiff fixed the valuation of the items composing its property. The Treasurer and board assessed the property as a whole, giving it the valuation at which they estimated it at the time of the assessment, and it is obvious, as contended by the appellee in his brief, that “A sugar mill, completed and in operation, with its clientele of growers who supply it with sugar cane and with an established position in the market for disposing of its manufactured product, has a much greater value than is represented by the detached pieces of wood and iron of which the mill is composed and the work of its erection. This value is legitimately considered in computing the value of the tangible property and is a component part of the tax on the property. That the said circumstance was given due weight is apparently shown by paragraph 11 of the com*512plaint, which recites that in the assessment made by the Treasurer of Porto Rico ‘the valuation of the mill was fixed as a whole.’ ”
I agree that the magnitude of the plaintiff’s machinery may be considered as a sufficient basis for the conclusion that its proportional cost was less than that of other smaller plants; but it may be maintained also that the magnitude of the business done by the plaintiff involves a proportionate economy in its operation, it producing, proportionally, a greater output at less cost and the real and present value of its machinery being thus increased by the results obtained. Value is not something which can be calculated with mathematical exactness at all times, and it really seems that the method employed by the Treasurer and sanctioned by the board is the one best adapted for securing an effective, and above all, an honest assessment of the sugar factories of Porto Rico for all alike and with privileges to none.
A similar question arose in regard to the right of a State to impose taxes upon a corporation within its limits. The Supreme Court of the United States held that in the case of a telegraph company the State could levy taxes in proportion to the value of its property, based upon the length of its line within the State as compared with the total length of its line. Western Union Tel. Co. v. Taggart, 163 U. S. 1. That rule was applied also to railroads. Pullman’s Palace Car Co. v. Pennslyvania, 141 U. S. 18, 26.
In view of all the foregoing, I am of the opinion that the-errors assigned by the appellant in its brief should be disposed of as follows:
1. It does not exist. The facts alleged in the complaint, do not show that the decision of the Board of Review and Equalization in this case is illegal or unjust within any of the meanings given to the latter word according to law and' jurisprudence, and therefore the said decision is conclusive and cannot be attacked collaterally in this proceeding brought, under Act No. 35, of 1911.
*5132. Neither does this exist. The purpose of Act No. 35, of 1911, was not to provide absolutely for a complete review the courts of all the acts of the Board of Review and Equalization. The appeal authorized by the said Act is original, independent, and limited to cases in which (a) a tax not authorized by law may ham been collected; (b) fraud may have been committed; (c) the manifest intention was to injure the taxpayer; and (d) wrong principles are adopted for computing the taxes. ¡
3. Neither does this exist. Although it is true that the case of Succession of Puente v. The People, 19 P. R. R. 532, is not analogous to the present case, the doctrine laid down therein is applicable. The said case as well as another case between the same parties, reported in 19 P. R. R. 560, and the cases already cited of Caneja v. The People, 12 P. R. R. 237, and Guitián v. The Government of Porto Rico, 12 P. R. R. 242, should be construed in harmony with the principles established in this case of Ensenada Estates, Inc., v. Richardson.
4. Neither does this exist. Upon examination it has been concluded that the method adopted by the Board of. Review and Equalization for computing the taxes imposed in this case is not illegal nor erroneous to such an extent that it may be held to constitute an injustice.
In view of the foregoing, the appeal should be dismissed and the judgment appealed from affirmed.