
    WEST INDIA OIL COMPANY, Complainant. v. JUAN G. GALLARDO, AS TREASURER OF PORTO RICO, Dft.
    San Juan,
    Equity,
    No. 1251.
    Opinion filed June 25, 1924.
    
      Mr. O. B. Frazer and Mr. Nelson Gammans for the complainant.
    
      Honorable H. P. Goals, Attorney General of Porto Rico, and Mr. J. A. Lopez Acosia and Mr. B. H. Todd, Jr., Assistant Attorneys General of Porto Rico, for defendant.
   OdliN, Judge,

delivered tbe following opinion:

It would be pleasing to tbe writer of this opinion if be could feel bimself justified in deciding this controversy .in favor of tbe complainant. It is admitted, that, since tbe passage of tbe law under date of August, 1923, being known as Act No. 1 of the Special Session, page 6, the complainant corporation'' purchased in the United States and shipped to this Island, live automobile tank trucks at a cost of something like $5,300 each, and that these trucks were for use in Porto Pico in connection with the distribution of gasolene; and it is also admitted that the complainant corporation has made its plans to purchase in the United States and ship to Porto Pico three more tank trucks to be used in the same business.

In accordance with the Excise Tax Law, enacted in the year 1923 in the regular session of the legislature of Porto Pico, known as Act No. 68, the treasurer of Porto Pico, who is the defendant in the present proceeding, called upon the West India Oil Company to pay a tax of 10 per cent ad valorem upon these tank trucks; the West India Oil Company refused to pay said tax and brought the present suit in this court, asking for an injunction to prevent the enforcement of the collection of said tax.

It is of course a great hardship upon the defendant corporation, ready and willing to pay the usual tax upon this property in Porto Pico, that they should also be required to pay an extra tax of 10 per cent upon the purchase price of these tank trucks. This law, if valid, naturally operates to require the West India Oil Company to charge more for its gasolene than it otherwise would, which means that the use of gasolene by the customers of the West India Oil Company will cost them much more money than they otherwise would have to pay. But it is a well-recognized principle, controlling Federal courts, that no act of a state legislature should be held unconstitutional unless the showing made is very clear. Of course, counsel for the West India Oil Company have argued with great ingenuity and force that the Organic Law of Porto Pico, enacted by the Congress of the United States in the year 1917, did not empower tbe legislature of Porto Rico to enact tbe law now under consideration, wbicb is known as tbe Excise Tax Law.

After careful study of tbe questions involved in tbis litigation, I find myself unable to declare that tbis act of 1923 is in violation of tbe act of Congress. It seems to me that tbe title of tbe law specifies tbe provisions thereof in a way that is unmistakable and clear. It is apparent that tbe tax complained of by tbe West India Oil Company is levied and collected after tbe taxpayer takes possession of tbe merchandise and when be actually uses tbe same, and not before. It is equally apparent that tbe tax wbicb has been attacked attaches to tbe article after it has become part of tbe mass of tbe property in tbe possession of tbe taxpayer, and therefore ceases to be subject to tbe protection of tbe importation laws.

In other words, I would be glad if I were able to find that 1'his law was a burden upon interstate commerce, because I state frankly that it seems to me that tbe law is a harsh one and an unwise one, but it is of more importance that tbe distinction between judicial powers and legislative powers should be kept clear and distinct and that no Eederal court should disturb or upset an act of a state legislature unless satisfied beyond question that such legislature in enacting such statute has exceeded its powers.

After careful consideration of tbis case, it seems to me that tbe remedy of tbe West India Oil Company is first to appeal to the legislature of Porto Rico to have tbe Law of 1923 repealed. Railing to accomplish tbis, then tbe West India Oil Company and other corporations similarly situated and burdened by this statute should carry tbe matter to tbe Congress of tbe United States. Tbe fact that tbe courts deem a statute barsb and unwise is not sufficient to justify the court in upsetting such statute.

Entertaining these views, and after careful consideration of tbe arguments which have been submitted by counsel in this case,the only decree which I feel justified in making is that of dismissing the bill with costs. The conclusion reached by me is based very largely upon the language of Mr. Justice Pitney, who delivered the opinion of the United States Supreme Court in the Ohio tax Cases, decided in 1914, reported in 232 U. S. 576, 58 L. ed. 738, 34 Sup. Ct. Rep. 372.

To this order and opinion counsel for the West India Oil Company except.

Done and Ordered in open court at San Juan, Porto Pico this 25th day of June, 1924.  