Messrs. Samuel T. Ansell, Howard L. Kern, and Lewis W. Call for plaintiff in error.
[241 U.S. 44, 46] Messrs. Lorenzo D. Armstrong and Joseph W. Murphy for defendant in error.
Mr. Justice McReynolds delivered the opinion of the court:
Taxes for the fiscal year 1911-1912, amounting to $7,038, were assessed against defendant in error on account of certain personal property, and were paid under protest. Purporting to proceed under act No. 35, Laws of Porto Rico, 1911 (copied in margin), and claiming the assess- [241 U.S. 44, 47] ment was wholly illegal, the Sugar Company brought this suit to recover the sum so paid. In due season the treasurer of Porto Rico, appearing by its attorney general, made full answer to the original complaint; a day for trial was fixed by stipulation; an amended and also a supplemental complaint were filed and appropriately answered. Eight months after institution of the action the court's jurisdiction was first challenged by motion to dismiss, and thereafter the point was persistently urged. The company recovered judgment for amount claimed (6 Porto Rico Fed. Rep. 224); and the cause has been argued here by counsel.
It is not now seriously maintained that the tax was lawfully demanded- in effect, the contrary is conceded.
A reversal of the district court's action is asked upon the theory that the proceeding is against Porto Rico, a government of sovereign attributes, which has only consented to be sued in its own courts. Porto Rico v. Rosaly y Castillo, 227 U.S. 270 , 57 L. ed. 507, 33 Sup. Ct. Rep. 352. Whatever might have been the merit of this position if promptly asserted and adhered to, we hold, following the principles announced in Porto Rico v. Ramos, 232 U.S. 627 , 58 L. ed. 763, 34 Sup. Ct. Rep. 461, that having solemnly appeared and taken the other steps above narrated, plaintiff in error could not thereafter deny the court's jurisdiction. Gunter v. Atlantic Coast Line R. Co. 200 U.S. 273, 284 , 50 S. L. ed. 477, 483, 26 Sup. Ct. Rep. 252. The judgment is affirmed.
Section 1. That in all cases in which an officer charged by law with the collection of revenue due the government of Porto Rico, shall institute any proceeding or take any steps for the collection of the same, alleged or claimed by such officer to be due from any person, the party against whom the proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute, pay the same under protest.
Sec. 2. Be it further enacted, that upon his making such payment, the officer or collector shall pay such revenue into the treasury of Porto Rico, giving notice at the time of the payment to the treasurer, that the same was paid under protest.
Sec. 3. Be it further enacted, that the party paying said revenue under protest, may, at any time within thirty days after making said payment, and not longer thereafter, sue the said treasurer for said sum, for the recovery thereof in the court having competent jurisdiction thereto; and if it be determined that the same was wrongfully collected as not being due from said party to the government for any reason going to the merits of the same, the court trying the case may certify of record that the same was wrongfully paid and ought to be refunded, and thereupon the treasurer shall repay the sum, which payment shall be made in preference to other claims on the treasury. Either party to said suit shall have the right of [47-Continued.]
appeal to the supreme court.
Sec. 4. Be it further enacted that there shall be no other remedy in any case of the collection of revenue or attempt to collect revenue illegally.
Sec. 5. Be it further enacted that no writ for the prevention of the collection of any revenue claimed, or to hinder and delay the collection of the same shall in any wise issue, either supersedeas, prohibition, or any other writ or process whatever; but in all cases in which for any reason any person shall claim that the tax so collected was wrongfully or illegally collected, the remedy for said party shall be as above provided, and none other.
Sec. 6. . . .
Sec. 7. . . . [Rev. Stat. & Codes 1911, p. 564, note.]