
    PORTO RICAN AMERICAN TOBACCO COMPANY OF PORTO RICO, Complainant, v. JUAN G. GALLARDO, TREASURER OF PORTO RICO, Dft.
    San Juan,
    Equity,
    No. 1254.
    Opinion filed June 26, 1924.
    
      Mr. J. Henri Brown for complainant.
    
      Honorable H. P. Goats, Attorney General of Porto Eico, Mr. Miguel A. Muñoz and Mr. J. A. Fernandez Diez, Assistant Attorneys General of Porto Eico, for defendant.
   OdliN, Judge,

delivered tbe following opinion':'

On May 13, 1921, there was approved an act which had been passed by tbe legislature of Porto Pico known as Act No. 14, which created a system of inspection for the alleged purpose of protecting Porto Rican tobacco against fraud, and deposit of the fees arising from such inspection of Porto Rican tobacco, as well as the inspection of tobaccos grown outside the Island of Porto Rico, to be for two distinct purposes which were, first, the payment of the cost of inspection, and second, the maintenance of an advertising agency in New York city for the benefit of Porto Rican tobaccos alone. Shortly thereafter, a suit was brought in this court by the Porto Rican American Tobacco Company of Porto Rico against Jose E. Benedicto, who was then treasurer of Porto Rico; the object of such suit being to obtain an injunction against the said Jose E. Benedicto for forcing the complainant corporation to comply with that statute. This court granted a final injunction as prayed for by the Porto Rican American Tobacco Company, whereupon Mr. Benedicto carried the case by appeal to the Supreme Court of the United States. After the appeal became effective, but before the case was heard, Mr. Benedicto had ceased to be treasurer of Porto Rico, and as a result thereof the cause abated, and the case was remanded to this court with instructions to dismiss. Another reason for this failure of the Supreme Court of the United States to decide the question upon its merits may have been that the statute of 1921 was repealed and a later statute enacted in its place, this later statute being known as Act No. 19 of the legislature of Porto Rico, sitting in the fall of 1923, and approved on September 17 of that year.

The present bill is brought against Mr. Juan G. Gallardo, who is now treasurer of Porto Rico, having taken charge of that office soon after tbe death of the Honorable J. W. Bonner on J anuary 12 of the present year. The ease has been thoroughly argued by counsel, and I am satisfied that it is my duty to grant a permanent injunction in this case, as prayed for, because the present law violates the Organic Act enacted by the Congress of the United States in the year 1917, familiarly known as the Jones Bill, because this new law enacted in 1923 assumes to tax foreign-grown tobaccos, although they are not mentioned in the title; another reason why I deem it my duty to decide this case in favor of the complainant is that it seems to me that this act of September 17, 1923, operates to impose an unlawful burden on interstate and foreign commerce; and a third reason is that because it seems to me that this act is in excess of the power which was conferred by Congress upon the legislature of Porto Rico; and the fourth reason is that it seems to me that the enforcement of this act operates to deprive the complainant of its property without due process of law, and virtually denies the complainant the equal protection of the law.

The reason for the last ground upon which this opinion is based, that is to say, the denial to the complainant corporation of the equal protection of the law is that this act of the Porto Rico legislature prevents the complainant from entering the competitive markets of the states of the Union.

Beaching the conclusion which I have, and which is based largely upon the principles enumerated by the Supreme Court of the United States in the case of Minnesota v. Barber, 136 U. S. 313, 34 L. ed. 455, 3 Inters. Com. Rep. 185, 10 Sup. Ct. Rep. 862, and the later case of Brimmer v. Rebman, 138 U. S. 78, 34 L. ed. 862, 3 Inters. Com. Rep. 485, 11 Sup. Ct. Rep. 213, tbe motion for temporary injunction is hereby granted; complainant to give bond in the sum of $15,000.00. To this order and opinion counsel for the treasurer of Porto Pico except.

Done and Ordered in open court at San Juan, Porto Rico, this 26th day of June, 1924.  