dissenting as to the standing of the taxpayer to file the suit herein, and concurring as to the merits of the case.
I dissent from the majority opinion of the court in this case because I regard Massachusetts v. Mellon, 262 U. S. 447, as directly in point and decisive of this case. The Supreme Court of the United States held in that case that a taxpayer has no standing to sue for an injunction to restrain the alleged illegal or unconstitutional expenditure of public funds by government officials. The fact that Federal rather than insular funds and officiáls were involved therein in no way affects the principle enunciated in that case. The unanimous opinion of the Supreme Court, written by Mr. Justice Sutherland, says at pp. 488-9:
‘ ‘ The functions of government under our system are apportioned. To the legislative department has been committed the duty of making laws; to the executive the duty of executing them; and to the judiciary the -duty of interpreting and applying them in cases properly brought before the courts. The general rule is that neither department may invade the province of the other and neither may control, direct or restrain the action of the other." We are not now speaking of the merely ministerial duties of officials. Gaines v. Thompson, 7 Wall. 347. We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered • only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest' upon such an act. Then the power exercised is that of ■ascertaining and declaring the law applicable to the controversy. > . .' The party who invokes the power'must be'able to show not •only that the' statute is invalid but ¡that he has sustained or is immediately in danger of sustaining some direct injury as the result .of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. . . . Here the parties plaintiff have no such case. Looking through forms of words to the substance of their complaint, it is merely that officials of the execu*36tive department of the government are executing and will execute an act of Congress asserted to be unconstitutional; and this we are asked to prevent. To do so would be not to decide a judicial controversy, but to assume a position of authority over the governmental acts of another and co-equal department, an authority which plainly we do not possess.”
This court has cited with approval and has followed the doctrine laid down in Alabama Power Co. v. Ickes, 302 U. S. 464, and Perkins v. Lukens Steel Co., 310 U. S. 113, which go much further than Massachusetts v. Mellon1 in denying access to the courts to those not specially and directly injured by virtue of the provisions of- the statutes being assailed and the action being taken thereunder. College of Pharmacists v. Insular Board of Pharmacy, 60 P.R.R. 789; Government of the Capital v. Executive Council of Puerto Rico, etc., et al., 63 P.R.R. 417, decided April 20, 1944. The opinion of the majority of the court in this case seems to me to he squarely in conflict with the principle laid down in Massachusetts v. Mellon and in our own cases.
The principle for which these eases stand has never been better stated than in the language of Judge Cordova of the District Court of San Juan in a case similar to the instant case in which Judge Cordova held that a taxpayer has no standing to file a suit such as that involved herein. In that case, which was never appealed to this court, Judge Cordova used the following language:
"This is not a question of technicalities. It involves something fundamental in the system of tripartite division of powers. There has been considerable discussion and opposition in connection with the power that the American courts have assumed to determine the constitutionality of legislative and executive acts. The justification of the attitude assumed by the courts is found in the necessity to consider the validity of these acts incidental to a determination of the rights and obligations of the parties in a justiciable controversy. The courts have not attempted, nor could they attempt, *37to act as supervisors of the executive and of the Legislature. They have no authority to act in a vacuum. Th'e interest which the community or any citizen blight have in legislative or executive acts is hot sufficient basis on which to justify intervention of the judicial power. This does not mean that sanctions are lacking fbr thóse legislative or executive excesses which do not directly affect the rights of some citizen or group of citizens. Other sanctions, more effective than the judicial, exist in a democracy. And although we can not say that the Organic Act has provided Puerto Rico With a completely democratic government, it is obvious that there has been established here in principle the system of tripartite division of powers within which the judicial power lacks authority to interfere with the acts of the other branches of government unless the said acts directly injure the rights or interests of some litigant.”2 "
1 assume that the question of standing to sue herein is a local question, and that wfe are ftee to adopt oür 'owii rule, even to the extent of refusing to follow Massachusetts v. Mellon. But I agree with Massachusetts v. Mellon. And even if I did not, I should hesitate a long time before voting for a contrary rule, in view of the fact that the rule of Massachusetts v. Mellon is rooted in the basic constitutional concept of separation of powers. The Supreme Court of the United States has'wisely left to us the decision of local questions. In discharging that great responsibility, I am reluctant to vote for a result contrary to a decision of the Supreme Court of the United States itself, particularly in a case challenging our power to act, in the absence of a statute, by virtue of the doctrine of separation of powers. That *38theory of government, after all, came here from continental United States. The Supreme Court of the United States, although not bound to do so, defers to this court on questions of civil law in cases coming to it from this jurisdiction. Should we not in turn defer to the Supreme Court of the United States on a question as basic to the American form of government as the separation of powers?
In addition, I feel we should, as a civil-law jurisdiction, be slow to read into our general statutes the power of the courts to restrain action of government officials in the absence of a specific statute empowering us to grant such an extraordinary remedy under such circumstances (see People v. Escambrón Beach Club, 63 P.R.R. 731, decided June 5, 1944). Even in common-law jurisdictions some states have refused to grant relief such as that prayed for herein until a state statute specifically provided therefor. The Supreme Court of the United States has said: “It is by now clear that neither damage nor loss of income in consequence of the action of Government, which is not an invasion of recognized legal rights, is in itself a source of legal rights in the absence of constitutional legislation recognising it as such.” (Italics ours).3 Iiow can the opposite result be justified in a civil-law jurisdiction?
We must not loss sight of the fact that the jurisdiction of the courts of Puerto Eico depends upon enactments of the Insular Legislature (Title 48 U.S.C.A. § 861). It is our Legislature which grants — and withdraws — the jurisdiction of our courts to issue an injunction in this or any other type of case. And I can find no statute authorizing our courts to grant an injunction herein. That in itself should be sufficient for us to stay our hand.
I would therefore vacate the restraining order and remand the case to the district court with instructions to dismiss the suit for the above-stated reasons.
*39If I were expressing the views of the majority, this opin-. ion would end at this point. Bnt I stand alone on this phase of the ease. My colleagues have outvoted me and have ruled that it is the duty of the court to pass on the questions of substantive law involved herein. On the merits of the case, I find myself in complete agreement with the opinion of the court and join therein.
See Notes, 51 Harv. L. Rev. 897.
Puerto Rico Ilustrado, Inc., v. Buscaglia, Civil No. 41175, Injunction, District Court of San Juan, Nov. 5, 1942. The Supreme Court of the United States has recently reiterated the same idea. It has said that the view that the plaintiff “lack[s] standing to sue does not rest upon a mere fórmálity.. We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public. ’ ’ (Perkins v. Lukens Steel Co., 310 U.S. 113, at 132). As already noted, (p. 125) “Respondents, to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public’s interest in the administration of the law.’’
Perkins v. Lukens Steel, supra, at p. 125.