
    López et al., Petitioners and Appellants, v. Benítez, Defendant and Appellee.
    Appeal from the First District Court of San Juan in Certiorari Proceedings.
    No. 3254.
    Decided June 25, 1924.
    Certiorari — Municipal Ordinance — Municipal Assembly — Parties.—The nullity of an ordinance passed "by .the municipal assembly imposing an excise tax on public shows can not be properly considered in certiorari proceedings brought against the municipal commissioner of finance praying that the tax and the ordinance and regulation issued by the said commissioner for its enforcement be declared null and void. -In such proceedings the municipal assembly was a necessary party.
    The facts are stated in the opinion.
    
      Messrs. Giberra ■& iSoldevila for the appellants'.
    
      Mr. J. de Gusman Benitez for the appellee.
   Me. Justice Aldhey

delivered the opinion of the court.

The appellants are the owners of public moving-picture theatres in the municipality of San Juan and petitioned the district court for a writ of certiorari, alleging that the Municipal Assembly of San Jnan had adopted certain ordinances imposing an excise tax on the valne of each ticket sold for admittance into theatres, moving-picture places, circuses, hippodromes or any other public shows; that these ordinances were unlawful for the reasons stated in the petition, and that the Municipal Commissioner of Finance had issued orders for collecting the said excise tax from the petitioners and had promulgated regulations providing for the manner of payment of such excise tax and assigning obligations to the petitioners, for all of which they prayed the court to adjudge that the said excise tax is unlawful; that the ordinances imposing it are null and void, and that the regulations for the collection of the tax are also void.

The petition for a writ of certiorari was directed against the incumbent of the office of Municipal Commissioner of Finance, who in answer alleged, among other things, that there was no authority of law for making him the respondent. The lower court denied the writ for the reason, among others, that it had no jurisdiction to consider the constitutionality of these municipal ordinances in a proceeding in which the municipal body that adopted them had not been made a party defendant, it being a necessary party.

We accept that conclusion of the trial court. The purpose of this certiorari proceeding being to annul certain ordinances adopted by the municipal assembly imposing the tax of which the petitioners complain, the municipal assembly that adopted them should have been made a party defendant, it being the party really interested in maintaining the validity of its own acts before the courts. The Municipal Commissioner of Finance is not the lawful representative of the municipal assembly, but only an official who complies with its resolutions. If the petitioners had not prayed for an annulment of the ordinances and only of the regulations promulgated by the municipal commissioner of finance for their enforcement, the petition would have been well directed against him; but'when it is sought to'annul tibe ordinances of the municipal assembly, that body must be made a party defendant.

The citation made by the appellants from 11 C. J. 167, is adverse to them, for it says that when the writ of certio-rari is intended to review the action of a municipal body or of municipal officers, it should be directed to the body or •officers and not to a mere subordinate officer. And inasmuch as this certiorari proceeding was brought to review the ordinances adopted by the municipal assembly, that body was a necessary party and should have been made a defendant.

For this reason the judgment appealed from must be

Affirmed.

Chief Justice Del Toro and Justices Hutchison and Franco Soto concurred.

Mr. Justice Wolf took no part in the decision of this case.  