West India Oil Co. (P.R.) v. Benítez Castaño

ON MOTION POE REHEARING

June 15, 1937.

Mr. Justice Oórdova Davila

delivered the opinion of the court.

In an extensive brief requesting a reconsideration of the judgment rendered by us in the present case, the petitioner contends that it does not feel bound to pay or to tender payment of the excise taxes levied upon the pumps which it admits to own, in order to place itself in a position to demand relief by injunction, as it challenges the validity of all the license or excise taxes imposed.

The petitioner admits to be the owner of a certain number of pumps installed by it within the limits of the Capital of Puerto Rico for selling gasoline.

By the petition for injunction filed, it is sought to restrain the defendants and appellants from collecting from the petitioner a lump sum amounting to $9,800 as excise taxes imposed upon the service stations installed by it on public or private land within the limits of the Capital. The main ground alleged for the issuance of the writ of injunction is that the defendants are attempting to levy and collect excise taxes upon a larger number of pumps than petitioner actually owns, works, or controls; that the remedy by payment under protest is inadequate; that the ordinances whereby such excise taxes are imposed are unconstitutional; and that the Government of the Capital is insolvent.

We reversed the order for a preliminary injunction issued by the lower court because, to our mind, it did not clearly appear from the allegations of the complaint that the ordinances ehahenged were illegal and void, and because, although it is true that it is sought to collect excise taxes on pumps which, according to the allegations of the petitioner, the latter does not own, collection is also sought of similar excise taxes on *283instated pumps which, the petitioner admits to own. In our opinion, whether the imposition of excessive taxes or the imposition of taxes on property not owned by the petitioner was involved, it was incumbent upon the petitioner to pay or to tender payment of the excise taxes corresponding- to the pumps which it admitted to own, unless the nullity of the ordinances challenged were clearly shown. If such ordinances are valid, the court can not restrain the collection of excise taxes imposed on the pumps which the taxpayer admits belong to it.

We have said that in order to restrain by injunction the collection of a tax, where it is alleged that the legislation imposing the same or the procedure for its collection is unconstitutional, the taxpayer must clearly show such uncon-stitutionahty.

This rule appears enunciated by Lewis & Spelling in their treatise “The Law of Injunctions,” as follows:

“To warrant injunctive relief against a tax, there must exist not only all the other elements and prerequisites of a case within the jurisdiction, but the ease as presented must, in most of the jurisdictions, leave no doubt in the judicial mind that the tax, or the method adopted for its enforcement is unconstitutional, or illegal for other reasons. It is but another form of stating the rule, that courts of equity will not interfere except where the illegality of the tax is clear, to say that where serious doubts exist as to the proper construction of a statute, upon the construction of which the validity of a tax depends, injunction will be refused. But a temporary injunction will sometimes be granted in such case conditionally, and in view of special circumstances, to restrain collection of the taxes until the validity of the tax can be determined.” Lewis & Spelling, sec. 200, pp. 421, 422.

However, the appellant, disregarding the principles above laid down, asks: “Why should the petitioner pay excise taxes on pumps owned by it, if precisely its claim is that the same are illegal and it lacks an adequate remedy at law within which to argue and establish their invalidity? How is it logical or equitable that this taxpayer should be compelled *284to pay the excise taxes in question, when this court has not passed npon the proposition advanced by it, that the remedy of payment under protest is not adequate, especially if it be considered that this court seems deeply impressed by the authorities which hold that the remedy suggested is inadequate?”

And wo ask, what has the existence or nonexistence of a law providing for an adequate remedy to do with the question decided? Granting that the law approved by the Legislature allowed the payment of interest, the petitioner would always be entitled to the issuance of a writ of injunction to restrain the collection of such excise taxes as were imposed on pumps not owned by it, notwithstanding the existence of the remedy provided by law. As regards the pumps belonging to it, the alleged invalidity of the ordinance must be clearly shown so that a decree may be issued staying the collection of the excise taxes, whether or not such remedy over existed in our statute books. To hold otherwise would be to ignore the' principles recognized by the jurisprudence, leaving the party against whom the injunction was sought at the mercy of any allegation that might be made by the petitioner. It is not sufficient to claim in the petition that a law or ordinance is invalid. It is also necessary that such invalidity be clearly shown in order to warrant a court of equity in issuing a writ of injunction to restrain the collection of a tax.

In every complaint it is necessary to allege a cause of action. In an injunction petition such cause of action should clearly appear, without leaving any room for doubt in the mind of the judge, where the unconstitutionality of an act is alleged and it is sought to restrain the collection of an ■excise or tax. No such clearness appears in the instant case. It is far from our minds to prejudge an issue not passed upon by the lower court. As stated in our opinion, the preliminary writ of injunction issued was based solely on the ground that it was sought to collect from the petitioner a tax imposed *285■upon a certain number of pumps not owned by it. We wish to say further that no special circumstances exist in the instant case to prevent the payment of the tax, and for this reason we think that we should confirm our previous decision revising the order appealed from.

The petitioner alleges that its cause of action entirely rests on the fact that “as the pumps are an indispensable part of its business, they can not be taxed, as its business has already been taxed both by the Insular and the Municipal Governments.” It says that in its sworn petition it is alleged that “the aforesaid gasoline pumps are necessary elements in the business of selling and distributing gasoline,” and that the defendants admitted such allegation on demurrer. That is, that because the defendants have demurred to the petition, we are expected necessarily to admit the conclusions of fact set up by the petitioner and to declare invalid the objected act. The conclusion of the petitioner is not binding upon us, especially since serious doubts arise from its own allegations as to the correctness of such assertion upon which so much stress has been laid by the appellee. The petitioner itself does not seem to agree with its assertion as to the pumps being an indispensable part of its business, since it alleges in its complaint that “by the imposition of such taxes the petitioner is deprived of the equal protection of the laws and is discriminated against owing to the fact that it uses pumps in its business, while those who sell gasoline without using pumps are exempt from paying such taxes.” According to said allegations the pumps are an indispensable element for selling gasoline where the gasoline is soM by the petitioner; but the same are not so as regards other persons and entities who, according to the complaint, sell gasoline without the use of pumps.

We are also told by the petitioner that if a double taxation were finally held to exist, petitioner would be injured, because the municipality is insolvent and it could not recover the sum disbursed. Assuming the correctness of such a con-*286elusion, we might also say that the Municipality of San Juan would be prevented from collecting the excise taxes in time, should the ordinance be decreed valid. This is why the petitioner is not entitled to stay the collection of a tax or1 excise, without clearly showing the unconstitutionality of the ordinance. The courts are unanimous in holding that the staying of the collection of a tax is a serious matter that must be carefully considered by the courts before decreeing the same, especially where, apart from any inadequacy of the remedy provided, it can not be controverted that the Legislature has expressly and definitely declared that the collection of a tax should not be restrained by injunction.

The motion for rehearing must be denied.