*858DISSENTING OPINION OF
MU. JUSTICE PRANCO SOTO.Laws of the nature of those construed in this ease have been the object of heated debate and litigation in the majority of the States, and generally the Supreme Court of the United States has had to decide the matter, even its decisions not being unanimous. Our discrepancy, therefore, is not strange. It is our belief that we are upholding the true interpretation of our statute, which is of American origin, according to the intent and purpose of the Legislature in enacting it for Porto Eico.
The fundamental issue in this case rests on the provisions of sections 317 and 322 of the Political Code, approved March 1, 1902, and comprised in Title IX under the heading “Revenues”. Comp. of 1911, p. 547. The act was known as the “Hollander Bill”. It has been applied ever since, and with the exception of the more recent case of The France and New York Medicine Co. v. Reily et al., 31 P.R.R. 617, nothing had been brought up directly involving the application of the aforesaid sections in connection with domestic corporations.
The appellant, as a domestic corporation, filed with the Treasurer of Porto Rico, for purposes of taxation during the fiscal year 1922-23, a return of its property. The number of shares of stock was declared therein, the appellant valuing them at a par value of #100 each, amounting in all to $60,000. Also undivided profits amounting to $6,190, and the following additional property:
Cash on hand_ $ 6, 488. 66
Liberty Bonds_ 90, 537. 26
Stock of corporations_ 11, 850. 00
Mortgage credits_ 16, 000. 00
Promissory notes and other credits_ 14, 409. 65
Total_$139, 245. 57
There being no real property to deduct, the Treasurer simply assessed the aggregate stock and the undivided profits *859of t’iie corporation, amounting to $66,190, and levied a tax thereon of $1,323.80. This sum was paid under protest and its refund demanded by the present action.
The lower court overruled the complaint and based its judgment on the case of The France and New York Medicine Co. v. Reily et al., 31 P.R.R. 617. In said case the Treasurer had levied on the plaintiff, as a domestic corporation, a certain tax on its paid in capital and undivided profits; but the plaintiff alleg’ed that the Treasurer should have levied the tax on its tangible property in Porto Rico, and in that sense only was the value of an automobile owned by the corporation in Porto Rico taxable. Plaintiff further alleged that its main place of business was not in the island and that its real and personal property was located outside of Porto Rico.
Although in the case at bar the issue is entirely- different, section 317 of the Political Code, by virtue of which the Treasurer acted when he levied the tax in each case, was the object of some consideration. As general principles we laid down the following:
"By reason of their peculiar organization corporations are subject to an additional burden because of the fact that in the taxation of their property there are elements which do not exist in the case of individuals and which can be reached for purposes of taxation without giving rise to any discrimination in the legal sense.
" ‘The power of the State to tax the elements of taxable value set forth in the preceding paragraphs is not confined to a choice of a single element to the exclusion of the others. Undoubtedly the elements themselves represent to a greater or less degree the same basic constituents of the corporate assets. Bach of these elements is, however, under some circumstances, an appropriate subject of taxation, and it is, no doubt, within the power of a state, when not restrained by constitutional limitations, to assess taxes upon them in a way to subject the corporation or the stockholders to what in effect amounts to double taxation. The elements themselves, being distinct, may be severally taxed, although the burden falls upon the same property in each case.’ 26 R.C.L. 157 and 158.
"We admit that section 317 of the Political Code nominally re*860fers to taxes on tbe property of corporations, or tbe third of tbe elements referred to above, that is, corporate property, but considering the manner contemplated by section 317 of our Political Code, for taxing personal property, referring’ to intangible property, indirectly although expressly, the taxation reaches the capital stock of the corporation.
“ ‘There are many different methods of taxing the property of corporations. In general, real estate and tangible personal property ■of such a character that it has a fixity of situs in a particular place is subject to local taxation where it is situated, and the remainder of the property of the corporation is reached indirectly by a tax on the capital stock or on the “franchise”. The intangible assets of a corporation may, however, be subjected to a property tax, and be valued by deducting the as'sessed value of the tangible property of the- corporation from the aggregate value of its stock and bonds.’ 26 R.C.L. 178.
“Thus it may be easily understood that the method employed by our system of taxation for the assessment of the property of domestic corporations includes real property and tangible personal property and the difference between the value of these properties and the value of the capital stock and bonds, plus the surplus and undivided profits, represents the intangible personal property subject to taxation, and it is, therefore, readily seen that the tax reaches expressly and indirectly the capital stock of a corporation.
“ ‘In some-jurisdictions the value of the personal property, tangible and intangible, of a corporation is determined by deducting the cost of the real estate belonging to the corporation from the aggregate paid in capital stock.’ 26 R.C.L. 179.
“The appellant insists, however, that the tax in question being ’exclusively a tax on the property of a domestic corporation, it is very clear that when the property of a corporation is permanently situated in a different state and there invested in connection with its business, it is unlawful to tax such property or anything that may seem to substitute or represent it.. But these conclusions of the appellant are so absolute that they do not respond to the provisions of the Political Code which we have considered, nor are they in harmony with the jurisprudence applicable to such cases.
“It would seem at first sight that the system of assessment of domestic corporations in the manner prescribed by section 317 of the Political Code imposes a property tax, but it is really directed to the stock of the association and is a tax on the intangible per-*861«cual property after deducting' the real property and the tangible personal property. In that ease it seems that the tax is not a tax on the property of the corporation, but is rather an excise tax. In this sense it is important to know under certain systems of taxation whether it is one or the other, because if the tax is simply an excise tax the capital stock of the corporation is merely the measure of the tax and then the manner in which the capital is invested and the situs of the property are immaterial; but if on the contrary the tax is a property tax, the stock of the corporation can not be taxed-without deducting the value of the property situated in another state. See 26 B.C.L. 171.”
In this case, however, the appellant maintains, and so does the majority of this Supreme Court, that section 317 of the Political Code levies a tax on the property of the corporation, when a deduction should have been made of all property exempt from taxation by virtue of law.
The appellant furthers as an irrefutable argument, and the majority adopts it, that section 317 is comprised in chapter 1 of the Eevenue Law under the heading “Assessment of Property” (Comp, of 1911, p. 549), and that the word “capital” as used in the law does not mean the “shares of stock” into which the paid in capital of the corporation is divided, but refers to all of the corporation’s property.
We can dispose of the first part of the argument by saying that if the mere inclusion of section 317 in the chapter dealing with the “Assessment of Property” were sufficient to define its nature and to hold that because of such mere fact said section levies a tax on the property of the corporation, though not as an excise, how, then, could the inclusion of section 320 in the same chapter, levying a tax on the capital stock of banks held by the stockholders, be explained? The appellant seems to admit that the last named section establishes an excise tax; but it fails to explain how, and is not surprised at, the fact that in this particular the legislator included such provision in chapter I on the “Assessment of Property” when it levies a tax of the nature of a franchise. Neither can there be any explanation of the in-*862elusion in the same chapter (chapter I) on the “Assessment of Property”, of section 355 which provides for a tax on certain corporations, to he levied as a franchise tax.
In our opinion the legislator has done nothing abnormal in including section 317 in Title IX, Chapter I of the Political Code. Whatever the name given to the tax, there is always a method of assessment. “In considering the valuation of 'capital stock’, it is first necessary to inquire whether that term, as used in a tax statute refers merely to the outstanding capital stock already issued or to the aggregate of the property of the corporation, i. <?., its capital. * * * Another method of valuation under some statutes is to assess according to the actual or market value of the aggregate number of shares constituting the nominal capital stock.” Cooley, Vol. 2, p. 1760-61. Beyond this we fail to find the special meaning sought to be given the words “value” and “taxation” for the purpose of determining the nature of the tax.
Therefore, the second part of the argument, where the appellant in, referring to the sense to be given to the word “capital” expresses itself as follows in the brief, is of no greater importance: “Because Chapter I, Title IX, of the Political Code levies a property tax, we infer that the word "capital’ is used in this case as including all the property of the corporation.” The name does not make the thing. Everything depends on the terms in which section 317 is drafted. “A tax on capital stock or capital may obviously be either a property tax or an excise tax, and the phraseology of the statute under which it is laid may determine which it is in the particular case. A tax on capital or capital stock is generally considered to be an excise rather than a property tax, although the contrary is held in some states.” Cooley, Vol. 2, p. 1707-8.
Massachusetts offers a clear example of the determination and levying of a tax in the manner clearly established by section 317. The same author says: ""In Massachusetts *863a tax measured by the excess of the market value of all the corporate stock and over and above the property otherwise taxable, and one measured by the whole value of the corporate shares, have been held to be excises rather than taxes • on property.” Cooley, Yol. 2, 1708-9. And as illustrative matter in regard to the two methods under which the tax may be levied on corporations, Cooley makes the following citation in note 99, p. 1708:
“If a tax on capital stock eo nornine makes the stock the direct subject of the tax and the term ‘capital stock’ is used as meaning the aggregate of the property and assets of the corporation, both tangible and intangible, it is sometimes held that the tax imposed is a property tax and not an excise, but if the capital stock is not per the subject of the tax but instead is the standard taken for the purpose of fixing the amount of a tax imposed on the corporation, the tax is an excise and not a property tax. This is the conclusion arrived at by at least one investigator. See note in 58 L.R.A., p. 618, stating this as the conclusion of the author. As to the first of these two propositions, however,, there is some dissent, it would seem. So where the tax upon capital stock is measured by the. aggregate value of the shares, rather than by the value of the property of the corporation, it is generally held to be an excise rather than a property tax. Hamilton Mfg. Co. v. Massachusetts, 6 Wall. (U.S.) 632, 18 L. Ed. 904.”
In the State of New York we find the difference between such taxes as should be considered as property taxes and as excise taxes. In 1857 there was discussed a law on taxes demandable by local authorities—
“providing that the capital stock of every company liable to taxation should be assessed at its actual value, and taxed in the same manner as other personal and real estate in the county. This law was held to impose a tax upon the securities in which the capital was invested, and a tax assessed pursuant thereto upon the capital stock of a bank was held to be void to .the extent in which the capital stood invested in non-taxable government obligations. New York ex rel. Bank of Commerce v. New York City & County, 2 Black, 620, 17 L. Ed. 451.”
“But the New York state tax upon corporations according to their capital stock is a tax upon their franchise or business, not a *864property tax at all. It is unnecessary again to cite tbe authorities that establish, this proposition beyond all controversy. And it must still be insisted, despite some decisions about to be noted, that in assessing this tax it is wholly unaffected by the circumstance that a part or all of the capital stock of the corporation subjected to it is invested in copyrights, patents, or patent rights, provided such corporation is otherwise within the statute.
“The case of People vs. Home Ins. Co., 92 N. Y. 328, Affirmed on error in 119 U.S. 129, 30 L. Ed. 350, 8 Sup. Ct. Rep. 1385, and on roargument in 134 U.S. 594, 33 L. Ed. 1025, 10 Sup. Ct. Rep. 593, holding that the investment of the capital stock in United States bonds entitled the corporation to no abatement of the tax, because it was wholly immaterial what the nature of the property represented by the capital stock was, since it was a standard to measure, and not the ,subject of the tax, — is altogether conclusive on that proposition. That case is in harmony with all the authorities, and beyond all criticism once it is admitted that the statute it passed upon imposed a franchise instead of a property tax.”
“On the other hand, the Connecticut statute, which laid a tax of a specific per cent upon the cash capital on a given date of domestic corporations, was held to impose a franchise, and not a property tax, and therefore to be subject to no abatement for so much of the capital as was invested in United States bonds. Coite v. Connecticut Mut. L. Ins. Co., 36 Conn. 513.”
“The court of appeals of Kentucky, in construing a statute of that state which required a board of valuation and assessment from a sworn statement to be furnished by every corporation and from such other evidence as it might procure to fix the value of the capital stock of each domestic corporation, and from the amount so fixed to deduct the assessed value of all tangible property assessed to it in the state or in the counties where it was situated, declaring the remainder thus found to be the value of the corporate franchise subject to taxation, 'said that, by the term ‘capital stock’ therein, the legislature meant to include the entire property, real and personal, tangible and intangible, all the assets and the franchise, embracing all these as an entirety, and, deducting the tangible property already taxed, treat the net balance as the value for the purposes of taxation of the franchise. Henderson Bridge Co. v. Com., 99 Ky. 623, 29 L.R.A. 73, 31 S.W. 486, Affirmed in 166 U.S. 150, 41 L. Ed. 953, 17 Sup. Ct Rep. 532.” 58 L.R.A. pages 520-529-565-568.
■ “In the case of the capital stock of corporations the matter is more complicated and decisions vary more. No one will deny that *865in one sense tbe capital stock of corporations is property, but whether or not a tax on the capital stock of corporations is equivalent to a general property tax is an entirely different question. In various jurisdictions it has been decided that the capital stock of corporations practically represent their property and that both things are for all purposes terms indiscriminately used. As regards the tax on the capital stock of corporations in general, other jurisdictions, however, have decided and the federal courts have confirmed such decisions, that such tax is not a property tax.” Seligman, Essays on Taxation (8th Edition), p. 233.
Section 317 of the Political Code reads as follows:
“Section 317. — The personal property of institutions, corporations and companies incorporated under the laws of Porto Pico other than banking institutions having a share capital shall be assessed to such institutions, corporations and companies by the Treasurer of Porto Rico in the manner provided by this section. The actual present value of the capital of such corporations shall be ascertained by the Treasurer of Porto Rico from the sworn declarations of the presidents, directors or other chief officers of such corporations as required by section 319, and from such other reliable information as the Treasurer may have or secure, and the present actual value shall in no case be less than the value of the capital stock and bonds plus the surplus and undivided earnings of said institutions, corporations and companies, nor less than the market value of the real and personal property of said institutions, corporations and companies, including in personal property rights, franchises and concessions. From the valuation thus obtained shall be deducted the total valuation of real property of said corporations, as ascertained in accordance with the provisions of section 316, and the remainder shall be deemed to represent the personal property of said corporations for purposes of taxation.” Comp, of 1911, page 558.
The statute prescribes the form of assessing the real property of domestic corporations. The capital stock is determined rather by the total value of the shares than by the value of the property of the corporation. The capital stock of the corporation, therefore, is not the matter per se subject to taxation, but is the standard used for the purpose of determining the amount of a tax levied on the corporation, and finally is an excise. Evident proof on which to *866infer from the terms of the statute that such was the intent of the Legislature is the fact that the value of the cajfital stock in its strict meaning of shares is taken as a basis to distinguish such capital stock from the amount or value of the property of the corporation. 5 Fletcher, Corporations, p. 3413.
The reason for such distinction may be more clearly seen when another limitation is presented in the last part of section 317 in the sense that the measure of capital in shares shall not be less than the market value of the real and personal property. It would be difficult to understand this point in section 317, supra, unless we presuppose a term of comparison for the establishment of said limitation which is no other than the value of the shares, bonds and undivided profits as said section previously provides. Otherwise it would have been quite easy for the legislator, if his intention was to levy a tax on the property of corporations, to refer simply to their corporate property or assets.
It seems clear also that if in the method of valuation followed by section 317 as regards personal property, the only deduction allowed is that of real property, which is undoubtedly done to prevent double taxation, such property not existing in the assets of a corporation, there remains for taxation but the real value of shares and bonds plus the undivided profits. Such is the position of the appellant. The Treasurer, not optionally, but necessarily, followed the method prescribed by section 317 when he levied the tax in the form' in which he did. On this point we must not lose sight of section 322 of the Political Code which makes clearer the intent of the Legislature, and which reads:
“Section 322. — Insular, municipal and local taxes upon capital, shares and property of the institutions, corporations, and companies, included within the meaning of this Title and upon 'shares in banks, engaged in business in. Porto Rico, shall be payable at the office of the Treasurer, who shall pay, pursuant to law, the proportion of such municipal and local taxes due, to the proper officers of the re-*867speetive mxmicipal districts or local divisions; and said institutions, corporations and companies are hereby authorized to retain the proportionate taxes upon capital shares from the earnings or dividends accruing to the owners thereof, or to cancel a proportion of said shares sufficient to pay said taxes. Insular, municipal and local taxes upon such institutions, corporations and companies shall be due in semiannual installment, and all penalties for delinquency and the liability to attachment, seizure and sale o.f property hereinafter provided shall apply to such institutions, corporations and companies in the same manner as to private individuals.” Oomp. of 1911, p. 560.
The little or no influence of this provision in connection with section 317 is mentioned. It has been sought to limit its effect to the tax levied on banks, but a superficial reading of section 322 reveals to any one that the provision also refers to corporations. As' we have seen, the section commences thus: “Insular, municipal and local taxes upon capital, shares and property of the institutions, corporations, and companies included within the meaning of this Title and upon shares in banks * * (Italics are ours.) If this is the law in Porto Rico we fail to see how the case of Home Savings Bank vs. Des Moines, 205 U. S. 503, m applicable, since it interprets a very different statute of the State of Iowa providing (section 1322 Iowa Code) that shares of stock shall be assessed on banks and not on stockholders. It seemed logical that following the tenor of said law literally the Federal Supreme Court should reach the conclusion, as it did, that the tax was levied on the shares as property of the banking corporation and not on the stockholders; that the bank should pay the tax as a debt of its own without the right to reimbursement by the stockholders and as a property tax, deduction to be made of bonds declared exempt from taxation by the federal statutes. The contrary is provided in the same section of the Iowa Code in the case of the national banks. The tax is levied on the shares in the hands of stockholders. The tax is an excise and there is nothing to deduct on account of such invest*868ment as said bank may make in United States bonds. This is so declared in the case of Des Moines National Bank vs. Thomas Fairweather, 263 U. S. 103. Although this ease is cited by the appellant, we do not see how it can help it for it rather fully favors the position of the appellee.
Importance has also been given to the word “personal” used in section 317, in order to provide another element for the theory that said section levies a tax on all the tangible property of corporations. It seems that to this last word the meaning has been given which it has of its own nature, that is, of tangible property. However, personal property is tangible property by virtue of law and among others there are included as such the shares on banks or commercial associations, industry, etc. Sections 338 and 339 of the Civil Code.
In this connection no ground can be found to maintain that the mere use of the word “personal” is reason to say the tax dealt with in section 317 is a property tax. Moreover, if we can not deny that said section establishes the measure of the capital stock in shares, bonds and undivided profits for the purpose of regulating the tax, shall “not be less than the market value of the real and personal property,” there can be no doubt, by reason of this last distinction of the law itself, that the personal property referred to by the statute is the tangible property represented by the aggregate of the shares of stock. If there is any real property that is the only deduction allowed by the statute, like in Massachusetts as we have seen, and in the remainder the lax includes the capital in shares. Otherwise the tax is levied entirely on the shares and undivided profits of the corporation as was done in this cas.e, it not being the duty of the Treasurer to deduct other property stated in the return, since the money invested in such property is immaterial because, as regards effect, the case was one of collection of a franchise tax.
It has likewise been suggested that chapter II of the *869.Political Code deals exclusively with, taxes of the nature of excises, and that if section 317, supra, establishes an excise, the legislator should have included it in said chapter II. The argument is so trivial that it does not require serious consideration. It is sufficient to say that chapter II refers exclusively to certain excises on liquors, tobacco and other articles properly chosen because they are not an essential part of the daily consumption of the island, but are included as articles of luxury and comfort; but the word “excise” has a more general meaning and it would seem quite strange, not do say ridiculous, for the legislator to have placed a franchise tax on corporations beside, for example, a tax on perfumery. The inheritance tax is also an excise. Cooley, vol. 1, p. 133, and notwithstanding, it is not classified by the Political Code among the excises enumerated in the aforesaid chapter II.
It does not seem to have happened in this case, but undoubtedly under the system of considering the tax on domestic corporations or on their franchises as an excise, the legislator avoids the peril of acquisition of tax-free bonds shortly before mating the return and their redemption shortly afterwards, thus to avoid aiding in the support of the government. Of course, even in the case of a tax on the property óf a corporation, such a thing can not be done — 58 L.E.A. 569 — but if the law prescribes a clear and simple method, why not follow it?
For all of the foregoing reasons the judgment of the lower court should have been affirmed.