The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXVII (Issue No.9) September 30, 1962
Year: 1962
Language: English
Rights
extracted text: JM..~WYERS Jou RN A~w XX VII SEPTEMBER 30, 1962 · 1 - VICENTE J. F1tANCJSCO l....... J.:dito1· c.11d Pub/iRl1e1· EDITORIAL: JUSTICE WITHOUT FEAR OR FAVOR PRESIDENT MACAPAGAL REBUKES \JUSTICE REYES ON ATTACK IN GARCIA DECISION ~UCMWO J. FltANCISCO CIVIL LIBERTIES UNION ANSWERS PRES. MACAPAGAL Assietattt Editor WHEN AN ALIEN MAY BE DEPORTED UNITED STATES SUPREME COURT ADVANCE OPJNION; VJCTOJt 0. F1tA NC l8CO Ht!ck v. Pate SUPREME COURT DECt SJONS : I BENJAMIN M. TONGOL Asst. Business Manage1· Carela vs. Hon. t:xecutivc ::.ccretary, et al. - Jmit.i.ct Bnr·rera Diaz, ct al. vs. Amante - Jm1tice llrmtista A119.eto In re: Disbarment Procec<lings against Atty. Diosdado Q. Gut1el'rcz - Justice Mak(!/intal Canitc, ct al. vs. Madrigal & Co., Inc., I THE J.AWYEH~ ,JUUHNAL i" pulllislu;<l mouthly by Hou. Vicente J. l"raucisco, former senator un<l <lelegate to the Constitutio11al Convention, practisini: attorney a11J presitl1::ut of the Fruneisco College (formerly Frauciscu Law School.) SUllSCHIPTION AND ADV EH'l'ISINU HATE8: l::luUscription. Ju the l 'liili1'{Jit1es- 1'20.0U fol' one yeur; 1'10.UO fo1· G 111011ths; l':.!.OU JJCI' copy. 111 tJ1c Unitetl Stutes :rnd fu1·eig11 couulries$20.00 for UllC year; $LO.UO fo1· 6 lllOlllhs; $i.OU IJCl' copy. Atlvertising: l~ull puge-1'105.00; llalf 1mge-l'(i5.UO; 011e-fou1·th page-1 '45.00; One-eighth page35.00; One-sixteenth page1'25.UU; l.lack Issues : I n tht l'hilip11i11es--Jl25.00 - twelve js. sue>i: r3.00- per i!Osue. In th~ ct al. - Justice BaHtista A ngelo Luneta Motor Co. vs. A. D. Santos, et al. - J ustice Dizon Gutlcrrcz vs. Barretto-Datu - J11st1ce Makolrntul Teresa Realty, Inc., vs. P reysler Vda. de Ganiz - Jnstict' Podilla Navcra vs. Hon. Quicho, etc., ct al. - Justice llat1t1st11 Angelo People vs. Villanueva, et al. - Chief Justice B·g'llgzou Del Rosario vs. People - Justice C'011ce1>cio11 COURT OF FIRST INSTANCE DECISION: l\lol"fe vs. Hon. Executive Secretary, et al. - Judge Bello 1962 BAR EXAMINATION QUESTIONS (Continuation): Political Law Criminal Law Remedial Law Legal Ethics and Practical Exercises PROFILES OF MEMBERS OF THE BENCH AND BAR: Presiding Justice J ose P. Bengzon United States a nd foreign countr.es- -$25. 00-twetve 19· suer.; $3.00-per issue. Entered as second class mail matter at the Post Office. F.scolta, Manila - Tel. No. 4-13-!8 BUSINESS OFFICE : R-508 S.:i.mam!lo Bldg. NUMBER 9 267 258 258 269 260 266 269 270 272 273 274 275 27tl 277 27SI 280 283 284 285 286 288 I ' I JOURNAL OF THE CONSTITUTIONAL CONVENTION The JANUARY, FEBRUARY and . MARCH 1963 issues are NOW AVAILABLE: The Jmi11ary 15, 1963 issue contains Nos. 75. 76 and 77: In Journal No. 75, the cover bears the portraits of Delegates Florentino Saguin and Alauya Alonto. Main Features: Speech of Del. Saguin in favor of Woman Suffrage; speech of Del. Locsin, in favor; speech of Del. Abordo, against. In Journal No. 76, the portraits of Delegates Manuel Albero and Felipe Abrigo "Ppear on the cover. Main Features: Speech of Del. Osias in favor of Woman Suffrage; speech of Del. Albero, against. In Journal No. 77, the portraits on the cover are those of Delegates Frnncisco Arellano and Exequiel Santos. Main Feat.mes : Speech of Del. Palma in favor of Woman Suf· frage; speech of Del. At·ellano, against; speech of Del. Gumban, in favor; speech of Del. Santos on the Labor Problem. Th e Febrnary 15, 1963 issue contains Nos. 78, 79 and 80: In Journal No. 78, the portraits of Delegates Manuel Sevilla and Pascual Beltran np· pear on the cover. Main Features: Speech of Del. Perfecto in favor of Woman Suffrage; speech of Del. Carin, against; spe•ch of Del. Sevilla, in favor; speech of Del. Sotto (V.) , against. In Journal No. 79, the cover bears the portraits of Delegates Evaristo Sandoval and Jose Aldeguer. Main Features : Speech· of Del. Sandoval in favor of Woman Suffrage; speech. of Del. Francisco, against; speech of Del. Delgado, in favor; speech of Del. Escareal, against. In Journal No. 80, the portraits on the cover are those of Delegates Nicolas Buendia and Delfin Joven. Main Feat.ures : Speech of Del. Buendia in favor of Woman Suffrage; manifestation of Del. Altavas, in favor; speech of Del. Caram, against; speech of Del. Joven, in favor; speech of Del. Conejero, against; speech of Del. Cuaderno, in favor; speech of Del. Inting, against. The March 15, 1963 issue contains Nos. 81 and 8Z: In Journal No. 81, the cover bears the portraits of Delegates Gabriel Prieto and Alejandro de Guzman. Main Features: Speech of Del. Claribel in favor of Woman Suffrage; s1ieech of Del. Prieto, in favor. In Journal No. 82, the portraits of Delegates Artemio Abaya and Apolonia Curato appear on the cover. Main Features : Speech of Del. Abaya in .favor of Woman Suf· frage; speech of Del. Binag, in favor; speech of Del. Cabarroguis, against; speech of Del. Calleja, against; speech of Del. Cea, in favor; speech of Del. Curato, against; speech of Del. Lim, in favor; speech of Del. Muiioz, against; speech of Del. Salumbides, in favor; speech of Del. Santos, in favor; speech of Del. Surban, in favor. EAST PUBLISHING COMP ANY R-508 Samanillo Building Escolta, Manila Tel. 4-13-18 JUSTICE WITHOUT FEAR OR FAVOR The Supreme Court decision on the suspension case of Dr. Paulino J. Garcia should be a sobering remiuder to the counl1'y of the indispensable role played by an independent Judiciary in Olli° system of representative democracy, and breathes meaning to the vrinciple of sepm·atio11 of powers. Indeed the case of Dr. Garcia has focused and dramatized the continuing and imperative necessity /01· the country to . maintain a judiciary that is ,free and independent. Nothing less can insure vrotection of the citizem'1J agaiust the excesses which may be comniitted, delibemtely 01· not, by the most powerbtl brnnch of the govermnent. The unpleasant afte1·malh between the President fllUl one of the concurring justices should not deflect our appreciation away from .. the fact that, following vrom:ulgation of the decision, which must have been unpleasant to the President, the President nonetheless openly pledged fealty to the decision of the Suvreme Court. The decision in the case of Dr. Paulino Garcia came opportunely. Before that decision was handed, responsible qu1.u·ters were already expressing apprehension over the way investiga.tions were being conducted by the zealous prosecutors of the administration. Trial by vublfoity, fueled by the frothhig accusations sensationally aired by supposedly rnsponsible officials, was frightfully becornhlg the oi·der of the day and the p1·omise of the new era. These officW.ls conseque1itly gave the impression that theirs - and the administration's - was a righteous zeal which would tolerate 110 sober-ing caution, not even tlw caution dictated by the supreme law of the land. In their drive to ferret out graft, administration official.s apparently became oblivious of the fact that there is such a thing as procedural due process and the constit?lUonal mandate to hem· before one condem:ns. Righteousness 1 ·s not valid exc1lse to trample upon 1·ights guaranteed by the Const1tution. It vrecisely becomes the duty of those who would vroclaim a "new era" of morality to scnipulously obse1'Ve and enforce the Constitution and ow· laws. Public officials who cannot observe the law can never really be expected to be genuine servants of the moral order, 11cw aud othawise. T hei1's he-· come a, self-1·ighleous11ess which conceals an evil motive. It i.s unfortunate that for every case filed, for every i11vestir;ation instituted, fo1· ever.11 accusation 11wde, the 1·ep1£tation and honor of persons are involved. and this stir;ma of notoriety brought about by irndue publicity cannot be completely eradicated even 1f the·fr i.nnocence is el:entually vindicated. But tw·ni.ng back to the S11,preme Co11rt, it is heart· eni11g and refreshing to realize that it dispensed jusMce as it deemed fit, without fear or favor, and without regard to the known desires of the most vowerful elect·ive official of the land. This indeed is the true functi.on of those who sit in the Judiciary. This 1·s the spit·it that should penneate the crctuations of even the most obscure justice of the peace, not to mention the entire gc11nut of membership in this most venerable of our govennnent institutions - the Bench. There 1s no question but that the Suprenie Court will continue to resolve cases 1:n the spirit of courage and independence. I t did not hesitate to it7Jholcl the President in the A ytona-Castillo Central Bank cont1'0versy. Now it has not hesitated to uphold the cause of suspended Dr. Patdino Garcia. No one can accuse the Supreme Court of either bt·.as or fear. It Continues to proclaim. the glory of courageous thought and independent action. One vrays thnt this glory rnmuins ct 1Jennanent heritage. It i.~ a heritage which officials of the other branches of the govermnent would do well to respect. It is the l.ast bulwark of the 1-i.ghts enshrined in the Constit1ltion and so long as we pay honwge to the Constitution so long m.ust we vay homage to the independence that has made our Judiciary wlutt it 1·s. Justice, dispensed without fear or favor, is the only fustice to which a people, livin.a u11de1· a regime of law and not of m.en, 1·s entitled. A11d nothing should be tolerated by the l!ttblic co11scie11ce whi.ch would in any way weaken or lend to- weaken a systeni which dispenses that kind of justice. · September 30, 1962 LA WYERS JOURNAL P.agc 257 PRES. MACAPAGAL REBUKES .JUSTICE REYES ON ATTACK IN GARCIA DECISION "The Sup1·cme Court decision has not resolved the charges against Dr. Paulino Garcia but the period of his suspension. In accordance with my general attitude of giving faith, credit, and respect to the Supreme Court, I shall comply with its decision. ';I am constrained, however, to except to statements made in the concurring opinion, penned by l\lr. (Justice J. H. L. Heyes, that the President of the Philip1>ines 'had already pi·ejudged thccase and made up his mind that the petitioner (Dr. Garcia) had been guilty of electioneering' and that 'the Chief Executives words and conduct have evidenced an attitude that is difficult to reconcile with the open mind, soberness and H$trai11t to be expected of an impartial judge.' This uncnlled-for attack on the President is :i.ggravuted by the fact that it is based on a statement ~ttributed to the President from a newspaper re1 >ort su.bmitted not in the course <.if ihe reception of evidence in a formal trial. "'There was no justification to make the gi atuitous and lrrelenrnt allusions attacking the President's good faith because the case was not yet being decided on its merits. As the President was not a party to the case, it was inexcusable to make a finding of fact about his conduct, at least without giving him a chance to have his say. By prejudging the presidential mind even before the President has decided the case, the justice is the one who· appears to ha\'e prejudged the Garcia case. '"The justice has ignol'ed that being a !awyC'r oui·selves whose sense of t"esponsibility has been recognized by no less than our people, we know the difference between pci·sonal knowledge and judicially established evidence in reiidering judgment on a case. '"Not only that-the justice has apparently fo1·gotten that the right of free speech is one of the most cherished of freedoms; that the PJ"esident should be entitled to that; that the statement alluded to was made on J ;ui. 29, 1962, when there was as yet no case peuding before a tribunal of justice, here the investigating committee; and there was, therefore, as yet no case to prejudge. Who can deny therefore the right of the citizen, here the P resident? And when, with such an erroneous basis and logic that he had to support his stand, he went to the extent of censuring my own conduct, I must submit to the j udgment of t he people that he has gone too far. "I have consistently shown respect fot· the Supreme Court and its members, and have always heeded its decisions. But to be entitled to respect, one must accord respect in return. "Any justice who unduly attacks the President of the Republic detrncts from the prestige of the Supreme Court which should be held hig·h at all times. A becoming sense of merit and l1umility should make one consider that he is not infallible; that it is not only he who knows the law; and that while the President of the country receives his position from the sovereign people, an appointive official receives his appointment from one man. "If a justice grntuitously prejudges the mind and good faith of others, he is opening the dOOl' to a suspicion of his own impartiality and good faith. In this c:ise, for instance, it is plausible that thel'e is Jess reason" to prejudge the mind and good faith of the P resident than the mind and partiality of the justice who is a long-standing and ideological colleague of the respondent, Dr. Gar, eia, in the Civil Liberties Union and who, despite such exti·aordinary a ssociation, has not seen fit to inhibit him:e\f from a ease affecting the juridical, as distinguished from the ideological and emotional standards, of civil liberties. "'Pursuant to the pooplc's mandate, this country is now going through a period of reform. 1t is desi1·able that the Supreme Court be kept above the resultant politicnl and emotional stresses, for which purpose, the virtue of the ('Ourt and its members should be assumed. It would be unfortunate if through an inordinate sense of superior righteousness that is made to replace judiciul sobriety, a justice would open that assumption to dispute." - - - - CIVIL LIBERTIES UNION ANSWERS PRES. MACAPAGAL Th~ President has seen fit to draw the Civil Liberties Union of the Phili11pines into the case of Dr. Paulino J. Garcia. Thl" Civil Liberties Union believes that he has 110 val:d reason to c.omplain against J ustice J. B. L. Reyes' concurring opinion in the Dr. Garcia case. \Justice Reyes voted with a unanimous Supreme Court in ordering the immediate reinstatement of Dr. Garcia to the NSDB and clearly expressed his opinion that there had been a denial of procedural due process, bec,ause the President had from the beginning prejudged the case and condemned Dr. Garcia of clectioneerinJ?", even before any charges were filed and heard. The President has in effect admitted that he made the co11c\emnato1~ statements, claiming "'that the statement alluded to was made on 29 January 1962 when there was as yet no case before a tribunal of justice or the investigating committee; and there was thcrefo1·e as yet no case to prejudge." If even before there was a case, the President ],ad a\J·eady openly and publicly condemned Dr. Garcia a11d adjudg<!d him guilty, what chance would Di·. Garcia have when his case came up before the President for ultimate judgment? The President who condemned Dr. Garcia is still the same P1·esidc-nt who wilt decide his case." Dr. Garcia's case was the first case of the President's "resign or face charges and be found guilty" technique. But Dr. Garcia refused to be intimidated and was immediately suspende<l by the President since last Feb. 18. T he indefinite suspension has now been deela1"ed by the Supreme Court to be in violation of the Constitution. J ustice Reyes further opined that the suspension was void at the outset for denial of due process. In either case, the Supreme Court was unanimous that there has been denial of due p rocess. No one takes away from the President his right as a citizen to free speech, but he should realize a ll his public statements are always of an official character by virtue of his position. 111 an obvious attempt to becloud the issues, the President charged Justice Reyes with partiality, claiming "the ju-;;tice is a long-standing and ideological colleague" of Dr. Garcia in the CLU. The decision of the Supreme Court was unanimous. The P resident has not challenged or denied the facts and the law of the case, as stated both in the Court's opfoion and in tho concurring opinion of Justice Reyes. Common membership with a party in a case in a civic, professional or social association has never been co11sidered a ground for a jud~ to inhibit himself. As to the CLU, its objectives si11ce its founding in 1937 have always remained the same: m i!ila1 1t Filipinism, devotion to democrncy anci opposition to diclutorship in whatever guise >Jr form, social justice and respect for all constitutional r ights. It would do the President well to pond~r whether his casting such an unjustified aspersion on a member of the Supreme Courtwhich has been the bulwark of the people's rights--cannot but lead to undermining the people's confidence 1n C•ur Courts. The CLU stands behind the impol"t of Justice Reyes' opinion; No 0:1e, be he P resident, can condemn without a hearing. No onc is above the Constitution and the law, 11or. immune to criticism. Th" I'resi<lcnt is NOT Ure State. Page 258 LAWYE RS J OURNAL Septemb~r 30, 1962 WHEN A N ALIEN MAY BE DEPORTED Since the deportation of 1 -l:nry Stonehill and Robert B ~·(oks und the 1·ec:?nt filing of <lepol"tation procce<lings aguinst Bob Stewart, owner of the Republic Bl'oadcasting Station, 1 mhlic ..:uricsity has been arouse<! regarding the meaning, irnturc and i111plicati-ms or deportation. . The JJOJlUl:ir concept is that dcpo1·btio11 merely involvi!<: the sending back of a11 undesirable alien to the country of his 0t·igin or to the country where he was boru or of which he is a citizen or subject. This is not necessarily so for there are other alternatives. A deportee may also be sent to the foreign po1t at which he resided prior t o his residence in the Philippi1ws. Another populrtr concept is that all < leportation proceeding-<; partake of the same nature. Deporlat.ion procccdi1~gs, how~\1er, arc of two types. The first type of deportation proceeding is governed by the P hilippine Imrtiigration Act of 194-0 as a mended, the second type, by the Revised Administrativt' Code. Authority to deport unde1· the first type is vested in the Bureau of Immigl'ation and the proceedings are undertaken by the Bureau's Board of Special Inquiry. On the other hand, authority to deport under the second type lies in the President, the proceedings being undertaken by the Deportation Board of the Department of Justice . . (The deportation of Stonehill and Brooks and the c!eportation procee(li'lgs against Stewart fall under the second ty1 )e,} The grounds for deportation under the first ty1 )e of which there are thirteen, arc found in Section 37 d the Immigration Act. On the other hand, there arc ''no hard and fast rules in detcrmin· ing who are undcsirnble aliens" under the second typ1• of deportation. The following arc the grounds for dcportalior, under the first t~'pe: I. Ent•y to the country "by means of false and mislea-1ing statements or without inspection and admission by the immig ration authorities.'' 2. Entry although not lawfully admissible. 3. Conviction for a violation of the law governing prohibited drugs. 4. Conviction for a crime involving moral turpitude. 5. Practice of prostitution, connection with the management of a house of prostitution, or being a procu\'er. 6. Becoming a public charge. 7. Violation of any condition of admission as a non-immigrant. 8. Belief in or advocacy of the overthrow of the government by force; disbelief in or opposition to organized government; advocacy of assault or assassination of public officials; unlawful destruction of property; aff1liation with any organization teaching such doctrines. 9. (a} Personatlon of another individual while applying for an immgrntion document or assuming a fictitious name to evade the immigration Jaws. (b) Issuing or disposing of an immigration document to an unauthorized person. (c) Knowingly obtaining, accepting or using a false immigration document. (d} Entry to the country without inspection and admission by immigration officials, or by fraudulent representation or wilful concealment of a material fact. (e) Posing as a P hilippine citizen in order to evade immigration laws and requirements. (f} Making false statements undei' oath. (g} Departure from the country without an immigration clearance certificate. (h} Attempt or conspiracy wilh another to commit any of the foregoing acts. (i) Bringing in, concealing, or harbori11rr ineligible aliens. 10. Conviction of having violaled the P hilippine Registration Act of 1941. 11. Engaging in profiteerin~, hoarding 01· bbckmarketing. 12. Conviction of any offense penalized under the Revised Natu1·alization Laws 01· any law relati ng to the acquisition of Philippine citizenship. 13. Defrauding his creditor by absconding or alienation of properties to prevent them from being attached or executed. What arc t he grounds for deportation umler the second type? As we have already mentioned, thei·e arc ';no hard and fast rules in determining who arc undesirable aliens" under the second type of deportation. Howeve1·, the case of a German pa!'ish priest by the na me of George Koschinski who is fac-ing deportation a fter having allegedly torn the F ilipino flag may be cited. A Swiss was charged with deportation for uttering words ag:tinst an Indian minister to the PhilippinC's. T his Swiss utte1·etl something which is likely to disturb the good relations between Indian and Philippine g-overnments. Othe1 grounds for deportation arc the following: 1. Ta:-.: evasion under the special Jaw called Republic Act 10!)3. 2. Violation of the gambling law. 3. Violation of the OJ>ium law. 4. Violation of the usury law. 5. Smuggling. G. Prostitution. 7. Conviction of crimes involving moral turpitude. Ii will be noted that the last two mentioned grounds for deportation are the same as those found in Section 37 of the Immigiation Act. Although a deportation case has already been filed in the Bureau of lmmii:ration, the same may be filed with the Deportation Board. Ilow docs the Bo:ird conduct deportation proceedings? An alien may be charged before the Deportation B0ard on complaint of anybody or by the board itself, .motn proprio. Upon receipt of the complaint, the Office of ihe Special Prosecutor of the board conducts an investigation of the case. If satisfied that there is a Prima faci.~ case against the respondent, the Special P rosecutor files charges which corresponds to the information filed by the fiscal in criminal cases. A warrant of a!'l'<'st signed by the Chail'man of the board is then issued for the arl'est of respondent. As soon as the respondent is a1TCsted, he may file n petition for bail. Thereafter the case may be set for trial, 011 its merits, before thP boa rd. Trial proceeds as in the ordina1·y court of justice where the prosecuting officer of the government first intro<luces his evidence to be followed by the respondent. As soon as the hearing of the case is terminated, the case is considered submitted to the board, which will then prepare its report and recommendations to the President of the Philippines. The Deportation Board is the aud1orized agent of th~ President to conduct investigations and make recommendations for deportation to the P resident. T he board was created by E xecutive Order No. 33 of !\lay 20, 193G. This has been amended by various E xecutive Orders, the latest amendment being Executive Order No. 455, which determines the pr,esent composition of the board. Three members compose the present board, namely, Undersecretary of lJuslice 1\Iagno S. Gatmaitan, Solicitor Genernl Arturo Alafriz, aml Col. Manuel Reyes, the authorized representative of t he Secretary of National Defense. Aside from its prima •·y function of hearing deportation cases, the Deportation Board can also inquire into and decide questions of citizenship. In such cases, if the respondent does not agree with the findings of the board, he can always bring the matter to t he court in order that the question of his citizenship may be determined. Whenever doubt exists, the doubt is always resolved in favor of the government and against the alien. When can an undesirable alien not be deported? Alt.hough a deporbtion order has been issued against an un(Continued 1iext page) , September 30, 19G2 LAWYERS JOURNAL Page 250 UNITED STATES SUPREME COURT Advance Opinion EMI L HECK, Petitioner, FRANK J. PAT E, Warden - US -, 6 L ed 2d 948, 81 S Ct - [No. 181) Argued April 19, 1961. Decided May 12, 19Ul. SUi\li\IA R Y Under circumstances detailed in headnote 4, infra, an accuscc! confessed to and was convicted of murder in a state court, and w11s sentenced to a UJ9-ycar prison term. Severn! years later, lhe accused filed a petition for habeas corpus in the United States District. Court for the Northern District. of Illinois, asserting that he was denied due process of law under the Fourteenth Amendment by the admission into evidence at the tr ial of his allcgN!ly coerced confession. The writ issued, but after reviewing the circumstances su!'l'ounding the confession, the District Colirt ordered the writ quashed. (172 F Supp 734.) The Cou1·t of Appeals fer the Seventh Circuit affirmed. (274 F2nd 250.) On certiornri, the Supremc Court vacated the ju<lgment~ "'r the District Coul't and the Court or A1>1>eals and remanded the case to the District Cou1-t. In an 01>inion by S'r EWART, J ., ex• pressing the view of six members or the Court, it was hel<I that under the circumstances the confession was coe1·ced und that its admission into evidence at the state trial violated the due JH'OC<.'SS clause of the Fourteenth Amendment. DOUGLAS, J .. joined by WHITTAKER, J ., dissented on the ground that the confession was not coerced. Constitutio11al Low Sec. 840..1 - <fuc J>roccs,q - i11vofo11tary confes:;ion. 1. The quest.ion whether there has been :; violation of the due process clause <if th<' Fourteenth Amendment by the intl'oduction of an involuntary confession into evidence is one which it i!l the ultimate responsibility of the United States Suprrme Court to determine. Evidence Sec. 682 - confc:s~ion - cocYcion. 2. The question whether a confession wns coerced depends upon whether the defendant's will was overborne at the time he confessed, for if such was the case, his confession cannot be del'med the Jlroduct of a rational intellect and a free will. Evidc,1ce Sec. 682 - confession - coercion. 3. In resolving the question whether a confession was coe1·ced, physical mistreatment is but one circumstance, albeit a circumstance which by itself weighs heavily; other circumstances may WHEN AN ALIEN . .'. (Co11tin11ed frm1i 1,age 259) desirable alien, it may be difficult or impossible to execute the order. For instance, if the said alien is "stateless," meaning he is "a man without a country," he cannot be depo1·ted. In such a case, he should be released from imprisonment, provided, however, that he posts the necessary bond and submits himself to reas011abl<' surveilance of the immigration authorities. Such a pei·son is entitled to release from imprisonment because of the theory that "after a reasonable length of time and in default of specific charges placed against him other than that. he is undesirable alien, a vagrant, or the like, the deportation order becomes fimct11s officio (cannot be executed or made effective) fo1· lack of ability to execute it and there is no authority for ful'ther ir,ca1·ee?·ation." In almost all cases, the cost of deportation is shouldered by the government. However, when deportation pi ocecdings are instituted within five years after the alien's entry, except when the reason for depoi·tation arises subsequent to his c.>ntr~·. Section 39 combine to 1 n·oduce an effect just as impellingly coercive as the delibernte use of the third degree. Evidence Sec. 685 - confessio11 - coercion - inlcrroyatiun. 4. The due process clause of the Fourteenth Amendment. is violated by the admission into evidence in a state murder J>rosccution of confessions obtained from the accused, a J9-ye::n-old youth of subnormal Intelligence and without previous experienre with the police, who was, for all practical purposes, held incommunicado for the four days preceding his first confession, during which time he was subjected daily to G- or 7-hom· stretches of relentless and incessant inter rogation, and was intennittently placed 011 1mblic exhibition in police "show-ups," where during the entire period he was physically weakened and in intense pain, and without adequate food, without counsel, and without t he assistance of family or friends . Co11J1titntio11al L.aw Sec. 840.S; Courts Sec. 766 - d11.~ vroce-ss - confes.<Jion - vrece<lents. 5. The determination of whether !lie confession of an accusetl was coerced, so as to render ils admission into evidence in a state criminal trial a violation of the due process clause of the F ourteenth Amendment, requires more than a mere color-matching of Appeul mu/ £y1·or Sec. 16b'9 - 1·cmt111d - for 1·e-trial - lwbells coi·pus - coerced confc;;sion. G. When vacating judgments of a Court of AJJpeals and a District Comt denying a state prisoner's application for habeas co1pus in a coel'ced confession case, the United States Supreme Court will remand the case lo the District Court with ~irections to the Distl"ict Court to enter such orders as a rc appropriate and consistent with the Su1 >reme Court's opinion, al!owing the state a reasonable time in which to re-try the prisoner. A P PEARANCES OF COUNSEL Do1111/d Pn9e Mot>r-~ argued the cause for pctiti011c1". IVillfom C. Wi11es argued the cause for respondent. (Co11ti1111ecl next page) of the PhilipJline lmmgrntion Act of 1940 as amended provides that the cost of deportation from the port of dcpotiation shall be at the expense of the owner or owners of the vessel by which the alien came. In case that is •not practicable, the J."'OVel"llment foots the bill. A procedure similar to deportation is exclusion. Should an alien brought to the P hilippines be excluded, be would be sent back immediately to the country from where he came, on the same vessel that fias brought him, and in accommodations of the same class by which he arrived. The owner or owners of such vessel is 1·equired to shoulder the expense of his l'eturn. In the event that the said vessel has left and if it should not be possible to return the alien within a reasonable t ime by means of another vessel owned by t he same interests, the government may pay the cost of 1·cturn and later charge it against 11'e owner, agent, or consignee of the vessel. Contrnry to popular belief, Jeportation proceedings are not criminal in nature and t herefore deportation 'is not a J>unishment. Page 260 LAWYERS JOURNAL September 30. 1962 OPINION OF T H E COU RT l\l r. (Justice Stewart delivered the opinion of t he Coud. On the night of Janu:.iry 2, 1936, D:·. Silbei· C. Pcncock. n Chicago physician, left his Edgewater Beach a partment in res1 >0nse to an emergency telephone call to attend a sirk child. He never returned. The next day his ~ifeless body was found in h i<; automobile on a Chicago street. Jt was appa rent that he had been brutally murdered. On Wednesday, !\larch 25, 1936, the pet itioner, Emit Reck, aml thi·ee others were arrested by the Chicago police on suspicion of stealing bicycles. Late the following Saturday a fternoon Reck co1 1fesscd to participa tion in the murder of Dr . Peacock. The next day he signed another written confession. At Reck's subsequent trial in the Criminal Court of Cook County, JI. \inois, t he two confessions were, over timely objectio11, received in evidence aga inst him. The jul'y found Reck guilty of murder, and he was sentenced to prison fo1· a term of 199 years. " The conviction was affirmed by the Illinois Supreme Court. People v. Rock, 392 Ill. 311, 64 NE2d 526. Several years later Reck filed a petition under tlle Illinois Post-Convict io1 1 Hearing A ct, alleging that his confessions had been procui·ed by coercion and that t heir use as evidence at his trial had, therefore, violated the Due Process Clause of the Fourteenth Amendment. A fter :i. hearing, the Criminal Court of Cook County denied i·elief. The Supreme Coul't of 11\linois affirmed the Criminal Court's finding that due process had not been violated a t Reck's tl'ial. Reck \·. People, 7 11! 2d 261, 130, NE2d ZOO. Th:s Court denied certiorari "without prejudice to an application for a writ of habeas corpuq in an ap1n-opriate United States District Court." Heck v. llli· nois, 351 US !:142, J(}O L ed 146!:1, 76 S Ct 838. • Reck then filed a petition for habeas corpus in the United States District for the Northern District of Illinois. The writ issued, and at the hearing the District Cou1t received in evidence the transcript of all relevant proceedings in the Illinois courts. ln an opinion reviewing in detail the circ~1mstances surrounding Heck's confession, the District Court held "the Duo P rncess Clause not violated in the instant case." 172 F Supp 734. T he Court of Appeals for the Sevenfo Circuit affirmed, one judge dissenting, 274 F2d 250, and we granted certiorari, 363, US 838, 4 L ed 2d 1725, 80 S Ct 1629. The only question presented is whether the State of Illinois violated the Due P rocess Clause of the Fourteenth Amendment by using an evidence at Reck's trial confessions which lie had been coerced into making. The question whether there has been a violation of the Due Process Clause of the Fourteenth Amendment by the introduction of an involuntary confession is one which it is the ultimate responsibility of this Court to determine. See Malinski v. New York, 324 US 40 1, 404, 89 L ed 1029, 1032, 65 S Ct 781; Thomas v. Ar· zona, 356 US 390, 393, 2 Led 2d 863, 866, 78 S Ct 885; Watts v. Indiana, 338 US 49, 51 52, 93 L cd 1801, 1804, 1805, 60 S Ct 1347, 1357. After thoroughly reviewing the record in this case, we are satisfied that t he district judge's summary of the undisputed facts is accurate and complete. Neither in bi·ief nor oral argument did the respondent take issue with these findings. No useful purpose would be served by attempting to paraphrnsc the district judge's words: .. Emil Reck was at the time of this horrible crime but nineteen years old. Throughout his life he had been i-epeatedly classified as mentally retarded and deficient by psychologists :_:.11(\ psychiatrists of the Institute for Juvenile Research in Chicago. At one time he had been committed to an institution for the feebleminded, where he had spent a year. He dl"Opped out of school at t he age of 16, never having completed the 7th grade, a nd was found to have the intelligence of a child between 10 and 11 years of age at the time of his trial. Aside from his rdardation, he was never a behavior problem and bore no crimin3\ record. "Reck was arrested in Chica~o without a warrant nt 11:00 a.m. Wednesday, l\fa!'Ch 25, 1936, on suspicion of stealing bicycles. He was then shuttled between the North Avenue Police Station and the Shakespeare Avenue Police Station until l :15 p.m., at which time he was 1·etumcd to the Noi·th Avenue Police Station and there intenogated mainly about bicycle thefts until 6:30 or ,7:00 p.m. He was then taken to the \Vanen Aven ue Police Station where the niAht. The records shows that Reek was fed an egg sandwich a11d coffee at the Noi-th Avenue Station and a bologna sausage sandwich at the Wanen Avenue Station. "On Thui·sday, at 10:00 a .m., Reck wall brought back to the No1th Aveuue Stat ion where he was intenogaied some six or seven hours about various cl"imes in the Dist1·ic1. Aftenvards, he was sent to the Shakespea re Station and later that evi;.ning he was taken downtown to the Detect ive Bureau where hr was exhibited r,t a socatled 'show~up'. The record does not indkate where Reck spent the night. T he records shows tha: Reck was fed an cgt, sandwich a 1 HI a glass of milk on Thu1·sday but apparently nothing <'lsc. "The record is silent as to where Reck spent F rida y morning but it is clear I.hat interrogation was 1·esumed sometime in the earl~' afternoon. F riday evening over one hundJ"Cd people congre· gated in the Not·th Avenue Police Station where Reck was exhibited on the second floor. Shortly a fter 7:00 1>.m. Reck fainted and was bl"Ought to the Cook Count~, Hospital where he was examin<>d Uy an intern who found no ma1 ks or bruises upon his body and rejected him for treat ment. Reck was then taken directly back to the North A venue Station where he was immediately again placed on exhibition. He again· became sick and was taken to a n unfurnished handball room, where a Sergent Aitken, a ssigned to the Peacock murder investigation, c1uestioned him ubout the Peacock murder for a short period of time. Reck again became sick :rnd a Dr. Abraham was ca lled who later tP~ti ficd tkit Reck was extrem·~ly nervous, that he was exposed and that his shirt was unbuttoned and hanging outside of his pants. H e was rubbing his abdo~en and complaining of pain in that region. After an examination of GO to 90 seconds, Dr. Abraham left and Reck was <1uestioned intermittently and exhibited to civilians trntil approximately 9:30 p.m. when he became ill and vomited a considerable amount of blood on the floor. " Reck was again brought tot.he Cook County H ospital at 10:15 p.m. on Friday where he was placed in a ward and given injections, of morphine, atropine, and ipecac twice during the evening. At about 2:00 a.m. two physicians, Doctor Scatliff which has been assistinA" the poliC<i in the Peacock murdct came at the request of Prosecutor Kearney to see if there were any ma rks of brutality on Reck. They found the doo1· of Heck's room bnncd by a police officer. After securing permission from one, P olice Captain O'Connell, the~· went in and fount! Reck asleep and therefore made c.nly a cursoi·y examination in the da1·k which revealed nothing conclusive. At 9 :00 a.m. on Saturday, Reck told Dr. Zachary Felsher of the Cook County Hospital that the police had been beating him in the stomach. He also told Dr. Weissman of the same hospital that he had been beaten in the abdomen a nd chest over a three-ciay period. This was the fi rst time since his a l'l'est som(' 70 hours before that Reck had conversed with any civilian outside the presence of police officers. His father had attempted to see Reck on Thursday and Friday at the North Aver:ue Police Station and on Saturday a t the Cook County Hospital. Each time he was refused. "At 9 :30 a.m. on Satui·day. n eck was removed from the i1ospital in a wheelchair and was questioned about the Peacock murder as soon as he was transferred into Captain O'Connell's car to b<? transported to the North A\'cnue Police Station, where the questioning continued until the after noon, when he was taken to the State's Attorney's office at approximately 2 :00 p.m. "Previously to this, on F riday evening, two of the boys, Nash and Goeth, who had been arrested witll Reck, had confessed to t.hc murder of Dr. Peacock, implicating Reck and one other boy, Livingston. At about 3 :00 a .m. on Saturday, Livingston also agreed to sign a confession. (U1 wn arraignment, Livingston Jllcaded not guilty and alleged that he was subjected to physical a buse by the 1>olice.) "On Saturday afternoon, Reck was questioned about t he where· abouts of the gu0n which Goeth had told police that Reck possessSeptember 30, 1962 LAWYERS JOURNAL Page 261 ed. Afler intensive interrogation, Reck admitted that Coeth had told him of the Peacock murder. About 4:30 p.m. in front of a group of officers and 1irosecutors, Reck was confro11ted with Nash ~md Coeth. Nash told the story which became his signed confes· sion. Reck denied participation in the crime. Goeth then made the statement that Nash was f:etling the truth and implicated Reck. At this point Reck stnted tha t he was present at the crime but that Livingston and not he struck Dr. Peacock. "At 5 :55 1>.m. of the sume Saturday, l\Iarch 28, 1936, a joint confession was taken, at which time Reck was ve1·y weak and sic!: looking. Al this point. Reck liad been in custody almost 8-0 hours without counsel, without contact with his family, without a court appearance and without charge or bail. The text. of this joint confession reveals mostly yes and no answers in 1hc case of Reck. The interrogation did not deal with the gun or the automobile usrd in the crime and was signed by all that. Snt.urday nig·ht. "On Sunday, Heck was again inlenogated in the State's Attorney's office and at 4 :30 p.m. hi'S individual statement was taken which was more or less a reiteration of the> joint confession. The boys then washed up and were g iven clean clothes. Thereaft!'I', in a formal ceremony in front of numerous officers and p1·osecutors as well twelve invited civilians, the statements wei·e read to the boys, they were duly caution·~-:! and tho.: confassions W"re then signed. The boys did 11ot know there were civilians p resent and were not permitted counsel. At this time Reck had been with_out solid food since F l'iday when he had an egg sandwich. He was .Placed on a milk diet by the doctor Friday night at the hospital. ;,Reck was held in custody Monday, Tuesday and Wednesday, l\farch 30 th rough April !. Why, is not revealed i11 the recol'cl. On Thursday, A pril 2, 1936, Reck was 1·ea1·raigned in open court. and pleaded not g1dlly. He had not seen his fathel' or other relatives or a ny lawyer during this entire period." As the district judge further noted, the ncord "carries ~n unexpressed im1iort of police b1 ·utality, . " Reck testified at length to beatings inflicted upon him on each of the four days he was in police custody before he confessed. His testimony was corroborated. The police, however, denied beating Reck, and, in view of this conflict in the evidence, we proceed upon the premise, as did the Dist rict Court, that the officers did not inflict deliberate 1 ihysical abuse or injui·y upon Reck dul'in~ the period they held hi•r. in their custody. Sec Thomas v. Arizona, 356 US 390, 402, 403, 2 L ed 2d 863, 871, 872, 78 S Ct 885; Stein v New York, 346 US 156, 183, 184, 97 L ed 1522, 1541, 1542, 73 S Ct 1077; Ashcraft v Tennessee, 322 US 143, 152, 88 L ed 1192, 1198, 1199, 64 S Ct 921; Ward v Texas, 316 US 547, 552. 86 L ed 1663, 1665, 1666, 62 S Ct 1139. But it is hardly necessary to state that the question whethe1 a confession was extracted by coercion does 11ol depend simply upon whether the. police !'esorted to the crude tactic of deliberate physical abuse. " The blood of the accused is 1 :ot the only hallma1·k of an unconstitutional inquisition" Blackburn v Alabama, 361 US 199, 206, 4 L ed 2d 242, 247, 80 S Ct 274. The question in each case is whether a defendant'!' will was overbol'Jle ~1t the time he confessed. Chambei·s v F lorid:l, 309 US 227, 84 L ed 716, GO 8 Ct 472 ; Watts v Indiana, 338 US 49, 52, 53, 03 L eel 1801, 1805, 1800, 69 S Ct 1347, 1357; Leyra v Denno, 347 US r;;:.G, 558, 98 L ed 948, 950, 74 S Ct 716. If so, the confession cannot be deem· ed "the product of a rational intellect and a free will,' Blackburn, supra (361 US al 208) . In resolving t.he issue all the cil'cumstances attendant upon the confC'ssion must" be taken into account. Sec F ikes v. Alabama, 352 US 191, 198, 1 L cd 2d 246, 251, 77 S Ct 281; Payne v Arkansad, 356 US 560, 567, 2 L ed 2d 975, 9W, 78 S Ct 844. Physical maltreatment. is but one such circumstance, r:!beit a circumstance which by itself weighs heavily. But other circumstances may combine to produce an effect just as impeltingJy coercive as the deliberate use of the tl1il'{I degrc~. Such, we think, were the undisputed circumstances of this case, as set out in detail by the District Court. At the time of his arl'est Reck was a nineteen·y<>ar old youth of subnormal intelligence, He had no prior criminal record or experience with the police. He was held nearly eight days without n judicial hearing. Four of those days pn:ceded his first confessio11. During that period Reck was subjected each day to six or seven hour stl'etches of relentless and incessant i1•terrogation. T he 11uestioning was conducted by groups of officers. For the first three days the interrogation ranged over a wide \•ariely of crimes. On the night of third day of his tletention the interrog3tion turned to the crime fo1· which petitioner stands convicted. During this same fou1·-day period he was shuttled back am\ forth between police stations and interrogation rooms. In addition, Reck was inmitt.ently placed on public exhibition in "show-ups." On the night bcfot c his confession, petitioner became ill while on display in such a "show.up." He was taken to the hospital, 1·eturned to the police stution and put back on public display. When he again became ill he was t'emoved from the "show-up," but interrogation in the windowless "handball court" continued relentlessly until he grew faint nnd vomited blood on the floor. Once more he was taken lo the hospital, where he spent the night under the influence of drugs. The next morning he was removed from the l1ospita\ in a wheel chai1", and intensive inteJ"rogation was immediately resumed. Some eight houJ's later Reck signed his first confession. The 11cxt afternoon he signed a second. During the cntii·e period p1·eceding his confcssit>ns Reck was n.:ithout adequate food, without. counsel, and without i:he assistance of family or friends. He was, for all prnctical purposes, held incommunicado. He was physica lly weakened aud in 1ntcnse pain. We conclude that this total combination of cil·cumstances " is i;o inhel'ently coercive that its very existence is irreconcilable with the possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.'' Ashcraft v Tennessee, 322 US 143. 154, 88 L ed 1192, 1199, 64 S Ct 921. It is true that this case lacks tl1e physical brutality present in B1-0w11 v l\Iississip1li, 297 US 278, 80 L ed 682, 56 S Ct. 461 , the t hreat of mob violence apparent in Payne v Arkansas, 356 US 560, 2 L ed 2d 975, 98 S Ct 844, the thirty-six hours of consecu· tive questioning found in Ashcraft v Tennessee, 32"2 US 143, 88 L eel 1192, 64 S Ct 021, the threats against defendant's family used in Harris v South Carolina, 338 lJS 68, 93 -c eel 1815, 69 S Ct 1354, 1357, or the deception emplo~1ed in Spano\' New Y·J1·k, 360 tJS 315, 3 L ed 2d 1265, 79 S Ct 1202, and Leyrn v Denno, 347 US 556, 98 L ed 048, 74 S Ct 716. Nor wc.s Reck's mentality apparently so irrational as that of the petitioner in Blackburn v Alabama, 361 US HW, 4 L ed 2d 242, 80 S Ct 274. However, it is equally true that Reck's youth, his subnorma l intelligence, and his lack of previous experience with the police make it i1'npossible to equate his powers of resistance of overbearing police tactics with those of the defendants in Stein v New York, 346 US 156, 97 cd 1522, 73 S Ct 1077, 01· Lisenha v California, 314 US 219, 86 L eel 1U6, 62 S Ct 280. Although the pi·ocess of decision in this area, i1s in most, requires more than a mere color-matching of cases, it is not inat>· 1n·opriate to com1 iare this case with Turner v Pennsylvania, 338 US 62, 03 L ed 1810, 69 S Ct. 1352, 1357, where we held a confession inadmissible on a record disclosing circumstances less compelling. Decision in Turner rested basically on three factors : the length of detention, the amount and manner of interrogation, and the fact that Turner had been held incommunicado by the police. 'furued had been in custody for four nights and five days before he confessed. He had been quest ioned intel'lnittently, as much as six hours in a day, sometimes by one, sometimes by several officCl's. He had been interrogated a total of some t wenty·three hours. !?eek was held the same length of time, under basically the same circumstances, before his second confession. He was held some twenty. four hour less than Turner before his first con· Page 262 LAWYERS J O URNAL Se1 itembe/' 30, 1962 fession, but during that period he was subjected to more eoncenlrntedly intensive interrogation, m longel' stretches. He also spent considerable period!' of time on public display in "show-ups," a factor not present in Turner. In addition, Reck wns weakene1! by illness, pain, and lack of food. Finally, unlike Tui·ncr, Rc.'rk must be regarded as a case of a least bonle!'linc mental retardation. The record hei·e thus presents a totality of cocl'cive circumstances far more aggravated than those which dictated our Cecision in Turner. See also J ohnson v Pennsylvania, 340 US 881, 95 L ed 640, 71 S Ct 191; Fikes v Alabama, 352 US Hll, 1 L ed 2d 246, 77 S Ct 281. It cannot fairlv be said on this record that "the inward consciousness of havi~g committed a murder and a robbery and of being confronted with evidence of guilt which petitioner could neither deny nor explain seems enough to account for th~ con~essions here." Stein v New York, 346 US 156, 185, 97 L ed 1522, 1542, 73 S Ct 1077. It is true that, as in Stein, Reck did not confess until confronted with the incriminating statements of his companions. But beyond this the circumstances in Stein bear little resemblance to those involved in this case. The defendants in Stein were questioned a total of twelve hours during a thirtytwo hour detention. Part of that time was spent working out a "bargain" with police officers. Neithel' defendant was "young, soft, ignorant or timid." Stein, supra (346 US at 185). Nor were they "inexperienced in lhc ways of crime oi· its detection" or "dumb as to their rights." Id. 346 US at 186. Br contrast, Reck was in fact young and ignorant. He . was in fact inexperienced in the ways c;f crime and its detCf'tion. Moreover, he was subjected to pressures much greater than were the defendants in Stein. He was held incommunic.'\do and questioned over a much longe1· period. He was physically ill during much of that time, in pain, and weakened by lack of food. Confrontation with the confessions of his COlllJ)anions in these circumstances could well have been the event which made further resistance seem useless to Reck, whether he was guilty or not. On this record, therefore, the fact that his confession came hatd upon the confessions of others who implicated him has little· independent significance. The State has made no effort to distinguish between the Saturday and Sunday confessions. Nor could it properly do so. The coercive circumstances preceding the first confcssi0n existed through Sunday. Reck remained in police custody, without a judicial hearing. He was subjected to furthei· intci·rog~1tion. He did not see counsel, family or friends between Saturday afternoon and Sunday afternoon. There arc no other facts in the record suggesting that the Sunday confession was an act independent of the confession extracted on Saturday. Both confessions are subject to the same infirmities. Under the Due Process Clause of the Fourteenth Amendment neither was admissible at Reck's trial. The petitioner's detention is in violation of the Constitution of the United States, and he is therefore entitled to be freed therefrom. The judgments of the Court of Appeals and the District Court are vacated and the case remanded to the latter. On remand, the District Court should enter such orders as are appropriate and consistent with the opinion allowing the State a reasonable t ime in which to retry the petitioner, Cf Rogers v Richmond, 365 US 534, 549, 5 L eel 2d 760, 771, 81 S Ct 735; Irvin v Dowd, - US -, 6 L ed 2d 751, 759, 81 S Ct - . Vacated and remanded. SEPARATE OPINIONS Mr. I.Justice Douglas, concurring. Emil Reck at the age of twelve was classified as a "high grade mental defective" and placed in an institution for mental defectives. He dropped out of school when he was sixteen. Though he was retarded he had no criminal record, 110 r<>Cord of delinquency. At the time of his arrest, confession, and conviction he was nineteen years old. He was ancstcd Wednesday morning, ~larch 25, 1!136. The next day, l\farch 26, his father went to the police asking where his son was nnd asking to see him. The J>olice would give him no information. On March 27 his fathei· came to the police station aj!ain but was not allowed to see his son. Later the father went to sec his son at the hospiial but was denied admission. The father was denied the right to see his ~on over and again. The son was held for at least eight full days incommunicado. He was arraigned before a magistrate on Apt'il 12, 1936, only after he had confessed. The late professor Alexander Kennedy of the University of Edinburgh has put into illuminating WO!'ds the mannel' in which long continued intenogation undc!' conditions of stress can give the intcnogatoi· effective command over the p risoner. The techniques - now explained in a vast literature - include (1) disorientation and dissolution; (2) synthetic conflict and tension; (3) crisis and conversion; (4) rationalization and indoctrination; (5) apolegetics and exploitation. " P roduction by conditioning methods of a state of psychological tension with its concomitant physical changes in heart, rcspirntion, skin and other organs, the feeling being unattached to any pal'ticular set of ideas. This is later caused to transfer itself to synthetic mental <:onflicts created out of circumstances chosen from ihe subject's life-history, but entirdy irrelevant to the reasons for his detention. The object is to build up anxiety to the limits of tolerance so a:; to invvke patholog·ical mental mechanisms of escape comparnble to those of Convc1·sion Hysteria." Whether the police used this technique on F,mil Reck no one knows. We do know from this record that Emil Reck was quile ill during his detention. He was so ill that he was taken to a hospital incommunicado. He was so ill he passed blood. What actually transpired no one will know. The records coming befol'c us that involve the relations between the police and a prisoner during periods of confinem<>nt arc extremely unl'eliablc. The word of the police is on the 1'idc of orderly pl'Oce<lure, ncn-opprcs-, sive conduct, meticulous regard for the sensibilities of thi; prisor.~r. There is the word of the accused against tlw police. Bvt his voic~ has little persuasion. We do know that long detention, while the prisoner is shut off from lhe outside world, is a recunin~ practice in this country - for those of lowly birth, for those without friends or status. We also know that detention incommunicado was the secret of the inquisition and is the secret of successful interrogation in Communist countries. Pl'Ofcssor Kennedy summarized the matter: "From the history of the Inquisition we learn that certain empirical discoveries were made and recognized as important by a thoughtful and objective minority of those concerned. The first was that if a 1 1risoncr were once induced to give a detailed history of his past and to discuss it with his interrogators in the absence of threat or persuasion or even of ev:dcnce of interest, he might after an <'motional crisis recant and confess his heresies. The second discovery was that true and lasting conversion could never be produced by the threat of physical torture. Torture not infrequently had the opposite effect and induced a negative mental state in which the prisoner could no longer feel pain but could achieve an attitude of mental detachment from his circumstances and with it an immt:nity to inqaisition. The most surprising feature was the genuine enthusiasm of those who did recant. While these results were neccssariiy ascribed at the time to the powers of persuasion of the lnquistadorcs, it is evident in retrospect that something was happening which was often beyond their control. 'fhe same facts come to li.ght in the Jong histor3 uf Ru.>sian political interrogation. In the Leninist period, the success of the immensely tedious method of didactic interrogation then in use was simi!al'ly ascribed to the appeal of l\larxist doctrine to The fact is that in conditions of confinement, detailed September 30, 1962 LAWYERS JOURNAL Page 263 history-taking without reference to incriminating topics and the forming of :l personal relationship with an intc1Togato1· who s11bscribes to a system of political or religious explanation, there may occur an endogenous and not always predictable process or conversion to the ideas and beliefs of the interrogator." Television teaches that confessions are the toucl1slonc of law enforcement. E xperience however teaches tlmt confessions born of long detention under conditions of stress, -.:onfusion, and anxiety arc extremely unreliable. People arrested by the police may produce confessions that come rushing foith and carry all the earmarks of reliability. But detention incommunicado for days on end is so fraught with evil thnt we should hold ii to bf' :nconsistcnt with the 1·cquirements of that free society which is reflectcll i11 the Bill of Rights. It is the means whereby the commands of the F ifth Amendment (which I deem to be applicable to the St:.1tcs) are circumvented. It is true that the police have to interrogate to anest; it is true that they may ancst to interrogate. I would hold that :wy confession obtai11ed by the police while the defendant is under <lctention is inadmissible, unless there is prompt. ~11Talg11ment and unless the accused is informed of his right to silence and accorded an opp-0rtunity to consult coun;:.el. This judgment. of conviction ;:.hould thcrcfo1·e be reversed. l\lr. J ustice Clrul:, whom l\lr. Justice W ltittak<>r joins, dissen ting. Twenty.five years ago a jury found Reck guilty of the sav3ge murder of Dr. Silber C. Peacock. His first attempt. t(! upset that 'co1wict.ion came nine years later when he sought. a writ. of e1TOI' to the Supreme Court of 111inois. It was de1!ied by opinion, People v. Reck, 392 Ill 311, G4 NE 2d 52G (1945) . This Court denied certiorari. Reck v Jllinois, 331 US 855, !)! L eel 1862, G7 S Ct 1742 (19<17) . I n the same year the Illinois Supreme Coul't again denied Rcck's application for discharge. The next year the United States District Court for the Northern District of lllinois did likewise. Then, in 1952, an i:.pplication undct· the lllinois Post Conviction Hearing 'Act was filed to test the validity of Rock's 199·year sentence imposed by a ju1·y 16 years previously. His application was denied after a full hearing by the tri:d cou1·t. nnd the Illinois Supreme Court affo·med by a \lnanimous opinion. Heck v People, 7 Ill 2d 261, 13-0 NE 2d 200 ( 1955) . Petition fol' certiorari was again denied, without p!'ejudice to the filing of a1 > - 11ropriate proceedings in Federal District Cout'l. 351 US 942, 100 L ed 1469, 76 S Ct 838 (!95G). T his case was then filed in the United States Distl'ict Coui·t where no witnesses wcr<> heard, the court being satisfied with reviewing the record. Once again relief was denied, 172 F Supp 734. and the Court of Appeals a ffirmed. 274 F2d 250. Today - 25 ycai·s b.fter his conviction - t his Court overturns the decision of the original trial judge, the judgment a nd findings of a state trial judge on post-conviction hent'il\g, the unanimous opinion of the Supreme Court of Illinois on that a1)peal, decisions or both the Supi·eme Court of Illinois and a federal distt"ict judge on :;eparate applications for habeas corpus and, finally, those of a federal district judge and Comt of Appeals in this case. All of these courts am overruled on the ground that "a totality of coercive circumstances" sul'l'ounded Reck's confession. The Court :;econd-guesses the findings of the trial judge and those of the only other trial court that heard and saw any of the witnesses, both of which courts impartially declared the confession to be entirely voluntary. The Court has quoted at length and with approval the summary of the evidence by t he United States district. judge. I <1uote in the margin the findings of the two state judges who saw· the witnesses and heard t-he evidence, one 11 few weeks nftel' t he events, and the other sixteen yca!'S thei·cnfter. A casual compal'ison of the three findings shows that the foderal judge - to say the least - has imported conclusions and added embellishments not present in the cold 1·ecord of the t rial. T need onlv cite one example, where he finds that his "cold summary . ries an unexp1·essccl import of police brutality . " While the Court of Appeals at least sub sile11tio, overturned some of these findings, the State docs 1 1ot take issue with the basic facts in the summary but docs strenuously object to its concluso1y findings. Pcl'iiaps the explanation for these differences is best explained by the federal judge himself, when he finds that he has r ead "[t}he 1·ecol'(I in the light most favornble" to Reck; and further that "Rcck's confession was tested before a judge and jury who had the op1>01-tunity to observe witnesses and weigh other fresh evidence at fi rst hand while I must make my decision on the basis of a cold and ancient record, whic/i can tt[Jpear mi11leadi11g." (Em1>hasis added.) Although the Court says that it proceeds "upon t he premise, as did the District Court, that the officers did not inflict deliberate physical abuse or injury upon Reck," it nonetheless finds the confession to have been coerced. I assume, therefore, that the Comt bases its reversal on psychological or mental coercion. Jn so doing it goes far beyond the holding of any of the prior cases of this Court. I shall not repeat the facts exce1Jt tu note that Heck was arrested on 'Vedncsday; he was 1 10\. interrog·atcd conc!!rning Dr. Peacock's mul'(ler until F riday, when he immediately became ill, and was hospitalized; later that night all three of his confederates confessed ; confronted with them on Saturday - each accusing him of participation in the murder - he confessed. There was no evidence or physical brutality, 110 1·equest for counsel, 1101·, unlike Turner v Pennsylvania, 338 US 62, fl3 L <:!d 1810, S Ct J3;)2, 1357 (1!149), for relatives and friends. Nor did he ask for food or make any indication of any desire or need therefor, showing. in the light. of the 1·ecoi·d, nothing more than t he lack of interest in food or one who had suffered from stomach ulcers for years. How the Court can now - 25 years later - f:.nd on this "co!d" record that these circumstances amounted to mental or psychological coercion is beyond my comprehension. I agree with the sco1·e of judges who have decided to the contrary. Since mental coercion is the keystone of its rationale, t he Coul't properly sets lo one side the cases invoh·ing physical bru· tality, e. g., Brown v l\lississi1 ipi. 29i US 278, 80 L ed 682, 56 S Ct 4Gl (rn:::G) . While they rlcnlt with factoi·s bearing upon the mental state of the defendants, the Court p roperly distinguishes cases involving threats of mob violence, the wearing down of the accused by protracted questioning, threats against members of the defendant's family, and t hose in which cleception was practiced. Nor can Reck be classified as mental defective, as was the case in Blackburn v Alabama, 361 US 199, 4 L cd 2d 242, 80 S Ct 2i4 (1960) . The Court relics heavily on Turner v Pennsylvania (US) suprn, 1 do not agree that it. presented this Court with ":i. totality of coercive cireumstnnces" <Significantly !css "aggl'avnted" than the sit.ualion presented here. In Turner the Court reviewed the Pennsylva nia Supreme Court's affirn1ance of p('titioner's conviction by a jury. In the present case 110 claim is made that the codcfendants' confessions, with which Reck was confronted, were in fact not made and did not in fact implicate Reck in the murder of which he was convicted. In Turner, however, the peti~ tioner" was falsely told that othe1 Suspects had •opcn<"!d up' on him." 338 US, at G4. Such a falsification, in my judgment, presents a much stronger case for relief because at the outset P enn· sylvania's officers J"esorted to triekery. Moreover, such a psyC'ho!ogical artifice tends to prey upon the mind, leading its vie~ tim to cit.her resort to counter charges or make " further resistance useless," and a bandonment of claimed innocence the only course to follow. Page 264 LAWYERS J OURNA L September 30, 1962 SUPREME COURT DECISIONS Paulino Garcia, petitimr,<>.ft' vs. the H onomble E xecutive Secretary, a11d J?1an, Salcedo, Jr., fo his cap<J.city as A cting Chairman of the National Science Dcvelopme11t Board, 1·cspondents, G. R. No. L-19748, Septe;1nb-sr 13, 1962, Bltrrera, J. I. CIVIL SERVlCE; ADMINISTRATIVE INVESTlGATION; PREVENTIVE SUSPENSION; AS PROVIDED JN THE NEW CIVIL SERVICE LAW AND REVISED ADl\IINISTRATIVE CODE; LIFTING OF PREVENTIVE SUSPENSION PENDING ADI\IINISTRATIVE I NVESTIGATION NOT FOUND IN ADMINISTRATIVE CODE. - Section 35, Hcpublic Act 2260 (Civil Act of 195(1) is a new provision in our Civil Service lnw. In the RcvisC?d Administrative Code, in its A rticl<! VI on " Discipline of Person~ in Civil Service", is found the same power of JirCventive suspension exercisable by the P residf:;lt and the chi,>f of a bureau or oHicc. with the approval of the proper head of department, as is now provided in Section 34 of Republic Act 2260, but there is no counterpart in thr:. Administrative Code, of Section 35 pending administrative investigation. 2. ID.; ID.; EVILS OF INDEFINITE SUSPENSION DUR.ING ADMINISTRATIVE INVESTIGATION. - The insertion for the first time in our Civil Service law of an express provision limiting the duration of preventive suspension is i:ignificant and timely. It indicates realization by Congress of the evils of indefinite suspension during investigation, where the re:;pondent employee is deprived in the meantime of his menns of livelihood, without an opportunity to find work elsewhP.re, lest he be considered to have abandoned his office. It is for this reason that it has been truly said that prolonged suspension is worse than removal. And this is equally true whether i!'!e UNITED STATES . . (Continued from page 264) Further, the issue of voluntariness of the confession in Turner was submitted to the jury, but the trial judge refused to charge "that in considering the voluntariness of the c<>nfession the prolonged interrogation should be considered." At p. 65. And the appellate court considered it an indifferent circumstance that "convicted murderer" was held five days in jail. 358 Pa 350, 357, 58 A2d Gl. Finally, in Turner the Supre:ne Court of Pennsylvania affirmed the conviction in an opinion stressing the probable ·guilt of the petitioner and assuming that the alternatives before it were either to approve thC! conduct of the police or to turn the petitioner " 'lOOSC! upon [society] after he has confessed his guilt.' " 338 US,° at 65. This Court might well have disagreed in that case with findings so made, and, with less hesitation than is appropriate here, where the determinations of voluntariness have been so constant and so numerous, have reached an opposite conclusion. In this case we are not consider· ing the validity of a conviction by ce1·tiorari kl the court afCirm· ing that judgment. Voluntariness has not been here inadequately tested by a standard which refuses to take account of relevant factors. Cf. Rogers v Richmond, 365 US 634, 5 L ed 2d 760, 81 S Ct 735 ( 1961). To the eonhary, a proper standard has been successively applied by at least two trial courts and several appellate courts, no one of which felt itself forc.ed to choose between what it considered equally undesirable results, and with whose conclusions this Comt may not so lightly disagree. Similarly, in Fikes v Alabama, 352 US 191, 196, 197. l L ed 2d 246, 250, 251, 77 S Ct 281 (1957), also relied on by the Court, the confession was wrung from an "uneducated Negro, c.ertainly of low mentality, if not mentally ill." Fikes "was a weaker and more susceptible subject than the record in that case reveals Turner to have been." Unlike Reck, Fikes was removed from the local jail to a state prison far from his home and the Court recognized ·suspended officer or employee is in the classified or unclassi· tied service, or whether he is a presidential appointee or not. 3. ID.; 10.; NO DISTINCTION BETWEEN PREVENTIVE SUSPENSION OF OFFICER APPOI NTED BY THE PRESIDENT AND SUSPENSION OF SUBORDiNATE OFFICERS OR El\IPLOYEES.- There is nothing in Section 35, Civil Service Act, which distinguishes between the preventive suspension of an officer appointed by the President and the susp.:nsion of subordinate officers or employee undergoing administrative investigation. •I. ID.; ID.; LIFTING OI<~ PREVENTIVE SUSPENSION PENDING ADMINISTRATIVE INVESTIGATION APPLICABLE TO OFFICERS AND EMPLOYEES SUSPEN· OED BY THE PRESIDENT.- The phrase "officer or employee" used in Section 35, Civil Service Act, is not modified by the word "subordinate" as employed in Section 34 when speaking of the preYentive suspension ordered by the chief of a bmean or office. In fact, the last scnte11ce <•f Section 35 which ptovides that, "if the respondent officer or employee is t:xonerated, he shall be restol'ed to his position with full pay from tht:' pedocl of suspension", is undeniably applicable to all officers and employees whether suspended by the President or by the Chief of office or bureau, or investigated by the Commissioner of Civil Service, or by a presidential investigating committee. 5. ID.; ID.; DISCIPLINARY ADMINISTRATIVE CASES SHOULD PASS THROUGH SCRUTINY OF COMMISSIONER OF CIVIL SERVICE; APPEAL OF DECISION TO CIVIL SERVICE BOARD OF APPEALS.-The first sentt>nce of Section 35, Civil Service Act, stating that "when the adminis· trative case against the officer or employee under preventive (C~ntinued next page) that petitioner's location was a fact "to be weighed." So, too, in Fikes the petitioner's lawyer was barred from seeing him, unlike the situation here, where no request for counsel was made. Of cours", I agree with the Court that confession eases are not to be resolved by color·matehing. Comparisons are perhaps upon occasion unavoidable, and, may even be proper, as in a case "on all foms" whose facts approach identity with those of one claimed opposite. I do not find that to be the situation here, however. Jn my view, the Court today moves onto new ground, and does not merely retread the steps it took in Turner. In my judgment, neither the elusive, measureless standard of psychological coercion heretofore developed in this Court by accretion on almost an ad hoc, case-by-case basis, nor the disposition made in Turner requires us to disagree with more than a score of impartial judges who have previously considered these same facts. Perhaps, as these cases indicate, reasonable minds may differ in the gauging of the cumulative psychological factors upon which the Court bases its reversal, but in what case, r ask, llBs a court dealing with the same extrinsic facts, a quarter of a century after conviction, overturned so many decisions by so many judges, both state and federal, entire. ly upon psychological grounds? When have the conclusions of so many legal minds been found to be so unreasonable by so few? Certainly, I walk across this shadowy field no more surefootedly than do my brothers, but after reading the whole record and the opinions of all of the courts that have heard the case I am unpersuaded that the combined psychological effect of the cir· cumstances somehow, in some way made Reck speak. The fact is, as the Court of Appeals said, when oonfronted with and accused by all three of his confederates, Reek kne\~ the "dance was over and the time had come to pay the fiddler,'' quoting from Mr. Justice Jackso11's opinion for the Court in Stein v N;ew York, 346 US 156, 186, 97 Led 1522, 1543, 73 S Ct 1077 (1953). September 30, 1962 LA WYERS JOURNAL Page 265 suspension is not finally decided by the Commissioner of Civil Service within the period of 60 clays after the date of suspension of the rt>spundent, the 1·es1iomlcnt shall be reinstated in the service", merely demonstrates the feeling of Congress that, in llne with its policy of strengthening the Civil Service of the nation and protecting it from the inroads of partisan Jiolitical considerations, pursuant to the spirit of the Consti· tution, all disciplinary administrative cases pass through the impaitittl scrutiny of the Commissioner of Civil Service, even though th~ final decision on 11H. matter may not b~ his, as an appeal from such decision of the Commisi;ioner to the Civil Servi~c Board of Appeal is expressly authorized hy Section 36 of the same law. G. ID.; ID.; SPONSOR OF REP. ACT NO. 2260 STATED THAT PREVENTIVE SUSPENSION CANNOT BE MORE THAN GO DA YS.-As explained by Senator Francisco A. Rodrigo, sponsor of the bill which later became the Civil Service Act of 1959 (Rep. Act 2260), "suspension cannot be moN than 60 days - preventive suspension. Even if the case dn1gs on for six months or a year, after 60 days of preventive !'Uspension, the suspended employee is reinstated." (Senate Congressional Record, Vol. JI, 69, p. 2001). 7. ID.; ID.; NO DISTI NCTION BETWEEN PRE_YENTlVE SUSPENSION OF OFFICERS BY THE PRESIDENT AND THAT BY CHIEF OF OFFICE OR BUREAU.-It may be noted that Senator Rodrigo did not moke any distinction between t.he preventive suspension of officers by the President and that by th'? chief of office or bureau, and Sect ion 35, Republic Act 2260 as passed did not contain any such distinct ion. Neither is such distinction justifiable, for there is nr> cogent rea son - a nd none has been suggested - why t he protection grnnti:<l to subordinate em)>loyees is not to be ap· plied to more important public officers. S. ID. ; ID.; PERSONS IN THE UNCLASSIFIED SERVICE NOT EXCLUDED FROM BENEFITS EXTENDED TO THOSE I N THE CLASSIFIED SERVICE.-There is no re.-,. son for excluding persons in the unclassifird service from thr benefits extendG <l to those belonging to the classifit'd servic!.'. Both are expressly declared to belong to the Civil Service, hence, the £ame rights and privileg.:s should be accorded to both. Persons in the unclassified Stlr\'ice are so designated because the nature o( their work and classification, which is not tr ue of those appointed to the classified service. This can not be a valid reaw n for denying privileges to the former that a re granted to the latter. (Unabia vs. Hon. City Mayor, 53 O.G. No. 1, p. 133-134) 9. CONSTITUTIONAL LAW; CIVIL SERVICE LAW; INDEFINITE PREVENTIVE SUSPENSION NOT ALLOWED; CONTRARY TO ROBUST, EFFECTIVE, AND EFFICIENT CIVIL SERVICE.- To adopt the theory of respondents that an officer appointed by t he President, facing administrative charges, can be p~eventively suspended indefinitely, would be to countenance a situation where the preventive suspension can, in effect, be the penalty itself without a finding of guilt after due hearing, contrary to the express mandate of the Constitution and the Civil Service Law. This, it is believed, is not conducive to the maintenance of a robust, effective and efficient civil service, the integrity of which has, in this ju· risdiction, received constitutional guarantee, as it places in the hands of the Chief Executive a weapon that could be wielded to undermine the security of tenure of public officers. Of course, this is not so in the case of those officers holding office at the pleasure of the President. 10. CIVIL SERVICE; ADMINISTRATIVE INVESTIGATION; PREVENTIVE SUSPENSION; PUBLIC OFFICERS WITH FIXED TERM CANNOT BE PREVENTIVELY SUSPENDED I NDEFINITELY.-But where the tenure of Office is fixed, as in the case of herein petitioner, which according to the law he could hold "for G years and shall not be re· moved therefrom except for cause", to sanction the stand of respondents that an officer appointed by the President, facing administrative charges, can be preventively suspe'lded indefinitely, would be to nullif y and render useless such speci· fie condition imposed by the law itself, 11. I D. ; ID.; ID.: JNDEFTNITE PREVENTIVE SUSPENSION WOULD RENDER MEANINGLESS FIXED TENURE OF OFFICE AND REMOVAL FOR CAUSE.-IC petifaner could be preventively suspended indefinitely, until the fir.al deter· mination of the administrative char ges against him (and Un· der the circumstances, ii would be the President hunself who would decide the same at a time only he can determine) then the provisions of the law both as to the fixity of his tenure and the limitation of his removal to only for cause would be meaningless. In the guise of a pr eventive suspension, his term of office could be shortened and he could, in effect, be remov· ed without a finding of a cause duly established after due hearing, in violation of the Constitution. This would set at naught the !audible purpose of Congress to surround the tenur e of office of the Chairman of the National Science Development Board, which is longer than that of the President himself, with all the safeguards compatible with the purpose of maintaining the office of such officer, considering its h;ghly scientific and technolo~ical nature, beyond extraneous influ· ences, and of insurin'g continuity of research and <levelopment activities in an atmosphere of stability and detachment so ne· cessary for the fulfillment of its mission, uninterrupted by factors other than removal for cause. 12. ID.: ID.: TD.; PREVENTIVE SUSPENSION OF OFFTCERS APPOTNTED BY THE PRE!=;TDENT WJTH A FTXED TF\RJ\.f AND REl\lOVABL'F. ONLY FOR CAU~E CANNOT BE JNDF:FTNTTE: REASONS OF THE RULE. - There is unanimity of O J>inion amonir the mi>mbers of the S1 1'lremtl Cnurt that the preventive suspension in the case uf officers, althou""h anoointi>d bv the Presidrnt but w;th a fixerl term anrl J'Pmov:ibl0 onlv for cl'lnse, cannot be inrt~fin;tc. To some of thn rr>PmbPrs. th<> provision<: of Ser,tion 35 nf R.Pnublic Act ?.24'0 l;mitinit the rl11rat;on to f O davs is anoli,.able to here;n pet itir>n<'r, as, in thoir view, it t>vinc"s a legislative nolicy that prcvent:ve susoension of a publ;c officer is not lightly to bP. resorted to, but only after a nrevious serious and thn.-rme:h scr11tinv of the charges and that the promot and continued hearinv.: thereof should not be hampered. both in just ice to the susnen<lf'rl officer who is without salary <luring f'uspi>nsion, and in the interest of public service to avoid :is much as ))(l~s;ble the interruDtion of the efficient functioning of the office that the suspended official hold<>. Other justices. however, are of the opinion that while sa;d period may not anoly strictlv to cases of pres;dP.,t;al aonointees facing administra. t ive charges to be de,.;de<I bv the President, the preventive suspension shall nevertheless be limited to a responsihle period, and in the circumstances of the present rase, they too believe that the further suspension of herein petititmer. who has been under preventive suspension since February 18, 1962. would no lon1rer be reasonable. CONCURRING OPINION OF J USTICE J.B.L. REYES: CONSTITUTIONAL LAW; DUE PROCESS; REQUISITES.One of the elementa ry requisites of due process is that a case should be declded by a n impartial tribunal or authority. The requisites of due process are: (1) that he shall have due no· lice, which may be actual or constrnctive, of the institution of the proceedings by which his legal rights may be affected; (2) that he shall be given a reasonable opportunity to appear and defend his rights, including the right himself k testify, to produce witnesses, and to int roduce relevant documents and other evidence; (3) that the triburwl i11 or before which his rights are adjudicaterl is so constitutetl as to give t·easm1a/1fo assurance of his honesty and impartiality; and (4) that it is a court of competent jurisdiction. (3 Wiltoughby - Const it ution of the United States, 1709) Page 266 LA WYERS JOURNAL September 30, 1962 2. ID.; ID.; LAW OF THE LAND; REQUISITES.-The law of the land is one that "hears before it condemns; which proceeds upon inquiry and renders judgment only after trial". (Dartmouth College vs. Woodward, 4 Wheaton, 518). DEC I S I ON This is a pdition filed by petitioner, Dr. Paulino J. Garcia, Chairman of the National Science Development Board created by Republic Act 2067 otherwise known as the "Science Act of 1958" against the respondents Executive Secretary and Juan Salcedo, \Jr., the latter in his capacity as Acting Chairman of the f'ame National Science Development Board, in the form of quo warranto and prohibition with preliminary injunction, with prayer that the further preventive suspension of petitioner beyond the maximum period of 60 days, provided in Section 35 of the Civil S<'rvice Act of 1959 (Rep. Act 2260), be declared illegal and void, and that respondent Juan Salcedo, Jr., be likewise declared guilty of unlawfully holding and exercising the functions of the office of Chairman of the National Science Development Board since April 10, 1962, date of the expiration of the said 60-day period. Succinctly stated, the pertinent facts of this case are RR follows: Upon the enactment on June 13, 1958 of Republic Act 2067, creating the National Science Development Board for ihe avowed purpose of implementing the declared policy of the State to integrate, coordinate, promote and intensify scientific and technological research and development and to foster invention und utilize scientific knowledge as an effective instrument for the promotion of national progress, petitioner herein, Dr. Paulino J. Garcia, was appointed by the President of the Philippines, whh:h appointment was duly confirmed by the Commission on Appointments, as the first Chairman of the National Science Development Board for a fixed term of six years, pursuant to Section 6 of the Science Act. Acceptine- such appointment, petitioner duly qualified. assumed the performance of the functions of the office <>n \July 15, 19!l8, and organized and since then built up the Board into a ~al P.ffective instrument for scientific advancement that it is today. As a result of the last national elections held in November, 1961, a change of administrat ion took place. Shortly thereafter, or on February 9, 1962, after petitioner declined to heed what respondents admit as the new Assistant Executive Secretary Rodrigo Perez's "friendly gesture of advising petitioner to resign from his position in order to avoid the unpleasant consequences of having to face an administrative action for violation of the Revised Administrative Code on the basis of evidence then on hand'', respondent Executive Secretary required petitioner in writing to explain charges for alleged electioneering based on the affidavits of four individuals. On February 15, petitioner submitted his written explanation denying under oath the said charges claiming them to be false, malicious and unsubstantial. On the following day, February 16, respondent Executive Secretary advised petitioner, by authority of the President, that his explanation was found unsatisfactory, and immediately ordered his preventive suspension from office effective upon receipt of the communication. Thus, the preventive suspension took effect on Monday, February 18. 1962. On the day previous, or on Sunday, February 17, 1962, the re~pondent Juan Salcedo, Jr. was designated by the President as Acting Chairman of the National Science Development Board. By Administrative Order No. 5 dated February 17. 1962, an investigating committee was created. On February 2:l, another charge of dishonesty in office was filed with the investigating committee against petitioner. On February 27, the investigating committee commenced the investigation of the administrative charges and, after some delays caused by the unpreparedness of the prosecution, the hearing was indefinitely postponed because of the departure for abroad, on March 19, 1962, on an extended vacation, of one of the members of the committee (former Justice Ramon San ·Jose) who, before his appointment, apprised the President t hereof but was advised he could go as the investigation could be postponed during his absence. · In view of his indefinite suspension, petitioner, on May 5, 1962, filed the present petition praying in effect that the 60-day period prescribed in the Civil Service law for preventive suspen· sion having already expired on April 19, 1962, he be reinstated in the service pursuant to Section 35 of the said Act. Tl1e clear-cut issue, therefore, before us is the effect and scope of the aforementioned Section 35 of the Civil Service Act, which reads: SEC. 35. Lifting of Preventive Suspension Pending Administrative Investigation. When the administrative case against the officer or empolyee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of sixty (60) days after the date of suspension of the respondent, the respondent shall be r~instated in ·the service. Ii the respondent officer or employee is exonerated, he shall be restored to his position with full pay for the period of suspension." Contrary to the contention of petitioner that the provisions of the above-quoted section are mandatory and applicable to him, respondents sustain that the compulsory lifting of the preventive suspension pending administrative investigation provided in thfs action, applies only to officers or employees whose administrative cases are to be decided by the Commissioner of Civil Service, and that with respect to any. officer appointed by the President, there is no provision of law regulating the duration of the preventive suspension pending investigation of charges against such officer, as is the case of petitioner. In other words, it is respondents' contention that Section 35 of the Civil Service Act does not apPly to officers appointed by the President answering administrative charges against them. At the outset, let it be said that S(,>etion 35 is a new provision in our Civil Service law. I n the Revised Administrative Code, in its Article VI on "Discipline of Person in Civil Service", we find the same power of preventive suspension exercisable by the President and the chief of a bureau or office with the approval of the proper head of department, as is now provided in Section 34 of Republic Act 2260, but there is no counterpart in the Ad- · ministrative Code, of Section 35 of Act 2260 regarding the lifting of preventive su>u>ension pending admir.istra.t.ive investigation. This insertion for the first t ime in our Civil Service law of an express provision limiting the duration of prev~ntive suspension is significant and timely. It indicates realization by C~ngress of the evils of indefinite suspension during investigation, where the respondent employee is deprived in the meantime of his means of livelihood, without an opportunity to find work elsewher~. lest he be considered to have abandoned his office. It is for this reason that it has been truly said that prolonged suspension is worse than removal. And this is equally true whether t he ~uspendcd officer or employee is in the classified or unclassified service, or whether he is a presidential appointeee or not. Having in mind the remedial purpose of the law, is respondents' contention justifiable that Section 35 of the Civil Service Act is applicable only lo employees whose administrative cases are submitted to the Commissioner of Civil Service? Except for the insertion of the clause "is not finally decid~cl by the Commissioner of Civil Service" (which would presently be discussed), there is nothing in Section 35 which distinguishes between the preventive suspension of an officer appointed by the President and the suspension of subordinate officers or employee undergoing administrative investigation. Note that the phrase "officer or employee" used in Section 35, is not modified by the word "subordinate" as employed in Section 34 when speaking of the preventive suspension ordered by the chief of a bureau or office. In fact, the last sentence of Section 35 which provides that, "if the respondent officer or employee is exon~rated, he shall be restored to his position with full pay from the period of suspension", is undeniably applicable to all officers and employees whether suspended by the President or by the chief of office or bureau, or investigated by the Commissioner of Civil Service, or by a presidential investigating committee. ' September 30, 1962 LAWYERS JOURNAL Page 267 The first sentence of Section 35 stating that "when the administrative case against the officer or employee under preventive suspension is not finally decided by the Commissioner of Civil Service within the period of GO days after the date of suspension of the respondent, the respondent shall be reinstated in the service," merely demonstrntes, we believe, the feeling of Congress that, in line with its policy of strengthening the Civil Service of the nation and protecting it from the inroads of partisan political considerations, pursuant to the spirit of the Constitution, all disciplinary administrative cases should pass through the impartial scrutiny of the Commissioner of Civil Service, even though the final decision on the matter may not be his, as an appeal from such decision of the Commissioner to the Civil Service Board of Appeals is expressly authorized by Section 36 of the same law. So also, it may be conceded without deciding, may the President, in the exercise of his power of control and supervision over all c.ffices and departments of the executive branch of the government, 1·.:!visc, review, or revoke the decisions of the Commissioner of Civil Service and of the Civil Service Board of Appeals. But this power has nothing to do with the preventive suspension, because this is not intended to be a pe1ialty. As explained by Senator F rancisco A. Rodrigo, sponsor of the bill which later became the Civil Service Act of 1959 (Rep. Act 2260), "suspension cannot be inore than 60 days - preventive suspension. Even if the case drags on for six months or a year, after GO days of preventive suspension, the suspended employee is reinstated." (Senate Congressional Record, Vol. II, No. 69, p. 2001). It may be noted that Senator Rodrigo did not make any distinction between the preventive suspension · of officers by the President and that by the chief of office or bureau, and Section 35 as passed did not contain any such distinction. Neither is such distinction justifiable, for there is no cogent reason - and none has been suggested - why the protecton granted to subordinate employee is not to be applied to more important public officers. As this Court has ruled in th{' case of Severino Unabia v. The Hon. City Mayor, et al. (53 O.G., No. 1, pp. 133-134) - "x x x There is no reason for excluding persons in the unclassified se~ice from the benefits extended to those be· longing to t he classified service. Both are expressly declared to belong the Civil Service; hence, the same r ights and privileges should be accorded to both. Persons in the unclassified service arc so designated because the nature of their work and qualifications are not subject to classification, which is not true of those appointed t-0 the classified service. This can not be a valid reason for denying privileges to the former that are granted to the latter." To ndopt the theory of respondents that an officer '.!prointcd by the President, facing administrative charges, can be prf'V<'ntivcly suspended indefinitely, would be to countenance a -;ituation where the preventive suspension can, in effect, be the penalty itself without a finding Of guilt after due hearing, contr:uy to the express mandate of the Constitution! and the Civil Service law.2 This, it is believed, is not conducive to the maintenanc<' of a robust, effective and efficient civil service, the integrity of which has, in this jursdiction, received constitutional guarantee, !IS it places in the hands of the Chief Executive a weapon that could be wielded to undermine the security of tenure of public officers. Of couue, this is not so in the case of these officers holding office at the pleasure of the President. But where the tenure of office is fixed, as in the case of herein petitioner, which accorcling to the law he could hold "for G years and shall not be removed therefrom except for cause," to sanction the stand of respondents would be to nullify and render useless such specific condition imposed by the law itself. If he could be preventively 1. No officer or employee in the Civil Service shall be removed or suspended exec-pt for cause as provided by 'iaw. (Art. XII, Sec. 4, Constitution of the Philippines). 2. No officer or employee in .the Civil Service shall be removed or suspended except for cause as provided by law and after due 1n-ocess. (Sec. 32, Rep. Act 2260). suspended indefinitely, until the final determination of the admin· istrntive charges against him (and under the circumstances, it would be the President himself who would decide the same nt a a time only he can determine) then the provisions of the law both as to the fixity of his tenure and the limitation of his removal to only for cause would be meaningless. In the guise of a prevellt ive suspension, his term of office couJd be shortened and he could, in effect, be removed without a finding of a cause duly established after due hearing, in violation of the Constitution. This would set at naught the !audible purpose of Congress to surround the tenure of office of the Chairman of the National Science Development Board, which is longer than that of the President himself, with all the safeguards compatibh: with the purpose of maintaining the office of such officer, considering its highly scien· tific and technological nature, beyond extraneous influences, and of insuring continuity of research and development activities in an atmosphere of stability and detachment so necessary for the fulfillment of its mission, uninterrupted by factors other than removal for cause. Upon these considerations, there is unanimity of opinion among the members of this Court that the preventive suspension in the case of officers, a lthough appointed by the Prei;irlent but with a fixed term aiid removable only for cause, cannot be indefinite. To some of the members, the provisions of Section 35 limiting the duration to 60 days is applicable to herein petitioner, as, in their view, it evinces a legislative policy that preventive suspension of a public officer is not lightly to be resorted to, but only after a previous serious and thorough scrutiny of the charges and that the prompt and continued hearing thereof should not be hampered, both in justice to the suspended officer who is without salary during suspension, and in the interest of public service to avoid as much as possible the interruption of the efficient functioning of the office that the suspended official holds. Other justices, however, are of the opinion that while said period may not apply strictly to cases of presidential appointee facing adminisfrative cha rges to be decided by the President, the preventive suspension shall nevertheless be limited to a reasonable period, and in the circumstances of the present case, they too believe that the further suspension of herein petitioner, who has been under preventive suspension since February 18, 19G2, would no longer be reasonable. WHEREFORE, decision is hereby rendered holding p<.'ti· tioner Dr. Paulino J. Garcia entitled to immediate r einstatement to his position as Chairman of the National Science DPvelopment Board, without JJrejudice to the final outcome of the investigation of the cha rges against htm on which no opinion is here exprcseed. Respondent \Juan Salcedo, J r. is hereby orederd to immediate· Jy vacate and cease to exercise the functions of the said offic<' and to deliver the same to herein petitioner Paulino J. Garcia, No costs. SO ORDERED. Bengzon, C.J., Padilla, Baitti.sta A ngcfo, Labrador, Concepcion, Dizon and Macalinta1, JJ., concurred. Parede11 and !Ugala, JJ.,. took no part. REYES, J.B.L., J ., c<mcurring. I concur in t he opinion penned by Mr. Justice Barren., but for the main reason that in this case there has been a denial of procedural due process in SI) far as petitioner Gal'cia is concer ned. One of the elementary requisites of due process is that a case ehou!d be decided by a n impartial tribunal or authority. Willoughby, in his classic on the Constitution of the United States, Vol. 3, p. 17{l!l, enumerates the requisites •)f due process to be - " (1) that he shall have had due notice, which mar be actual or constructive, of the instituticn of th·~ proceedings by wh'ich his legal rights may be affected; (2) that he shall be given a reasonable opportunity to ap· pear and defend his rights, including the right himself to testify, to produce witnesses, and to introduce relevant docume:nts and other evidence; Page 268 LAWYERS JOURNAL September 30, 196"2 (3) that the fl'ib10wl iu fir befo1·c which his ri{!ht.~ w·e wljudicatccl i.'I so co11slitutcd a~ to give ri>a.<lonable «S1>'1u1111te of lt i.Q honesty crnd impcn·liality; and ( 4) that it is a court of Nm1>elent jul'isdiction." Indeed, a ll the other requisites vf notice and hearing would he meaningless if the ultimate dedsion is to e<•me from a partial and biased judge. Now, the evidence submitted to 1his Court, particularly the photostatic copies of press reports, marke•I as Annexes G to K , to the reply, and which ha\'e been neither denied or contradicted, show that from the very beginning the President ha<: insisted in Dr. Garcia's vacating his office as Chainnan of the National Science Development Board, alleging at first that th" position was a confidential nature, and later, when confronted with the fact that the tenure of the office w:u; fixed by stnt\1tc, by charging openly and publicly that - "The trouble with this c:fficial is that he is an activ<' politici~n who 01 >enly campaigned in his province fo1· the NP candidates." (Annex J. Heply to Answer, Philippines Herald January 20, 1%2; quotes in th~ original) These statements, which were made without qualification, sr, far as the record goes, reveal that even bi/ore the formnl char!}"-'{ were made in the letter of E xecutive Secretary Amelito R. l\lctnc to he1·cin petitioner under date of F'cbruuy 17, l!JG2, the President. who is to be the ultimate arbiter io cieei<le the administrative c:t<iC' aga inst the petitio11er, had aheady prejudged the case and •uac!C" up his mind that the JJf:titioner had been guilty of electionecl'il!f.:'· which is the pri11cipnl charge against Garcia. While ~ he evidence was heard and ihe chat·ges tried by a commit.tee of former ma:;isirates whosC> impartiality and sense of justice are beyollCI cha!· lcnge, the fact is that the committee's powers arc pul'ely 1·eCflmmenciatory, The last and final word, under the Jaw, pertains tr. the President, who may set aside the recommendations of the investigating committe,e and unfortunately, the Chief E xecutive's words and conduct have evidenced an attitude that is difficult to reconcile with the open mind, soberness, and restl'aint to be expected of an impartial judge. The law of the bnd, as observed by Webster in Dartmouth College vs. Woodwa rd (4 Wheaton 518), is one that "he:irs before it condemns; which proceeds upon inquiry and renders judgment only after trial." II Leonardo Dfoz, <.t al., Petitioners-appellants vs. Felix Amant ... , t·e;;J)(IJ1(/e11t.cfp]>C/lee, G. R .• Vo, L-92!!8, De~mber 20, 1958, Banti"to A ngelo, J. 1. PUBLIC OFFICERS; POLICEMEN; DISMISSAL CONTHARY TO REPUBLIC NO. 557 IS ILLEGAL. - The dismissal of a civil service eligible policeman who was extemkd a p<>rmanent appointment as member of the police force was iilegal when it had been made in a maimer contrary to the procedure prescribed in Republic Act No. 557. (Mission vs. Del R0sario, 50, O.G., No. 4, p. 1571). - · ID.; ID.; EXECUTI VE ORDER NO, 264 IMPLIEDLY REP E ALED BY REP. ACT 557. - Executive Order No. 2G4 is no longer in force for the same had been impliedly repPaled by Republic Act No. 557. 3. JD.; ID.; TEMPORARY APfOIN'l'MENT; DURATION. - T he appointment of a person who is not a civil service eligiblr at the time of his appointment, and it does not appea1· that he have since then qualified for the position he is holding, his appointment was only for a period of three months and not more." (Pana, et al v. City Mayor, et al., G.R. No. L-2700, December 18, 1953) . Under the new Civil Service Act (Rep. Act 2260), temporary appointment is limited to six months.I 4. ID. ; ID.; DAMAGES; BACOLOD CITY; CITY NOT LIABLE 1• A person may receive a temporary appointment in a posit ion needed only for a limited period not exceeding six months, provided that preference in filling such position be given to persons on appropriate eligible lists. Sec, 24 (d ) Rep. Act 2260 (Civil Service A ct of Ul59). FOR DAMAGES DUE TO FAILURE OF l\IAYOR TO E NFORCE PROVISIONS OF LAW. - Th<> respondent city mayor should be made to pay the back sala ries of petitioners for the l'C'a son that under the Cha rter of the City of Bacolod (Section ::., Commonwealth Act No. 326), the city cannot be made liable fol' d;unages arising from the failure of the mayor to enforce any provisions of the law or from his negligence in the enforcement of any of its provisions. 5. ID.; ID.; MORAL DA!\lf\GES ABSORBED BY BACK SALARIES. - The respondent City Mayor in separating the petitioners from the sei·vice acted with gross negligence, if not in bad faith, conside1 ·ing the events of contemporary history that had happened in his province and his official acts amounting to abuse .of authority of which the trial court took j udicia! notice in lts decision. The sum of P5,000.00 it slapped upon respondent as moral damages is not justified, for the same i'> already included in, if not absorbed by, the back salaries the City Mayor was onlered to pay to petitioners. G. ID.; ID.; EXEMPLARY DAMAGES; IT IS I MPOSED TO CURTAIL ABUSES Oli' SOJ\IE PUBLIC OFFICIALS. - With regard to the sum of 1'2,000.00 which respondent City !\layor was ordered to pay as exemplary damages, t he same is somewhat excessive, considering that respondent acted in the belief that he had tl;e requisite authority under Executive Order No. 264 of I.he President which at t hat time as not yet been declared rcp<'l-lled by the Supreme Court, but these dama~es should be imposed if only to curtail the abuses that some public officials are prone lo commit u11on coming to power in utter disrci;ard of the civil service rules which constitute the only safeguard of the tenure of office guaranteed by <•;.11• Constitution. These damages should therefore be reduced to Pl,000.00. DE C I SIOK Leonardo Diaz and Alberto Aguibr filed a petition for mandamus in the Court of F irst Instance of Negros Occidental against F elix P. Amante in his capacity as Mayor of Bacolod City to compel the latter to reinstate them to theit· positions as members of the police force of said city. The t rial court, after hearing, rendered judgment onlcring the respondent to reinstate petitioners as prayed for and to pay them (a) their unpaid salaries from Aui;rust 16, 1951 up to -::he date of their reinstatement ; (b) the sum oi 1'5,000.00 as moral damages. : (c) the sum of P2,000.00 as exemplary damages; and (d) to pay the costs of the preceedings. Respondent look the case 0n n9pr.al to this Court on the ground that the only issue involved is one of law. Leonardo Diaz was given a temporary appointment as third cla ss patrolman on July 23, 1946 with an annual salary ,){ P-180.00. On October 1, 1!>46, he was given a pi·omotion in salary in tl~e amount of P600.00 per annum, On November 18, 1946. he w:is appointed also in a temporary capacity as second clas.:; officer with a salary of P6GO.OO per annum. On llanuary 16, 1947, he w:H< promoted to fi rst class t raffic officer with a salary of P69U.OO per annum. On April 1, 1947, he was promoted in salary to P720.00 per annum. On J uly 1, 1947 he was given for the first time a permanent appointment as sceond class detective with a salary of P900.00 per annum. On July 1, 1948 a nd July 1, 1!>49, he was given a salary increase as permanent second class detcct:ve with a salary of 1~60.00 a nd Pl,020.00 per annum respectively. On J une 1, 1950, he was again prnmoted to first class detective with a salary of l'l,080.00 per annum. And on J uly 1, 1951, l1is salary as permanent first class detective wa.~ increased to 1'1,320.00 ing examination for patrolman with a rating of 83%. Alberto Aguilar is not a civil service eligible but on September 8, 1!)4 !) he was appointed as patrolman effective lluly 1, 1949. On February 8, 1050, he was promoted to second class detectiv<', and when he was dismissed on August 15, 1951, he was a first class detective. He is an old veteran, haVing been a guerrilla under LL Col. Salvador Abccde. On August 15, 1951, both Diaz and Agu,ilar were notified by respondent of their sep<iration from the service effective at the September 30, 1!>62 LAWYERS JOURNAL Page 260 close of business hours of said day for lack of lntst nnd conficlence upon the recommendation of t-he chief of lJOlice. With regard to Aguilar, he was f::eparatcd on the aclditionnl gi·ound of immornlity and of maintaining a house of prostitution. His position was filled by a civil service eligible on August 16, 1951. As n justification for the action he has taken against petitioners, respondent invoked the provisions of Executive Order No. 26-l prnmulgated by President Quezon on April 1, 1940 believing that petitioners as detectives who occupy confidential positions could be separated UJlOn a moment's notice for lack of trust and confidence, and his authority to dismiss them was sustained by the Executive Sccrcta1-y who in an indorsement intimatl"!d that the n·moval o{ a <ktcctive from the service fo1 · lack of confidence was lawful. His action was also sustained by a provincial circula r issued on April 3, 1954 by the Executive Secretary confirming the propriety of his action. With regard to petitioner Diaz, who :'idmittedly w~1l' n civ1: service eligible nnd was extendetl on moro! than one C'!'Casion a permanent appointment as member of tho! police force C ·f B:tcolod City, there is no question that his dismissal was illegal fo1· huving been made in a manner co11trnry to the proccdui·e pl'e~cl'il•ed i1! Republic Act No. 557.t Executive Order No. 2G4 is no longer in force, t.he same hanng been impliedly repealed by said A<:t. Thus, i1: ~li;;sbn v. Del Rosa1io, ;JO 0. G., No . .i, 1571, this Cou1·t said: " It appearing that petitioners, as detectives, 0 1· members of thC' JJOlice force of Cebu City, were separ~l<:?d from the se1 vice not for ar.~ of the grounds enumer2tc<l in Hepublic. Act No. 557 nnd w.ithout the benefit of investigation or trial therein prescl'ibcd, the condus1on is mescupable that then 1emovnl 1s 11legnl and of no valid effect In this sense, the p1ov1s1ons of Executive Oide. No 2G4 of the President of the Philippines should be deemed as having been impliedly repealed in so far as thC'y may be inconsis1·en!. with the p1'Qvisions of said A~t." A different con:iiderntion should be made with regard to 1wtitioner Aguilar for it appears that he was not a civil service eligible even if he was C'Xtende<l several appointmenb as detective or 1 m.tn?lman by the City 1\Iayol" of Bacolod, for not being a civil ~;crvice eligible, he is not qulllified for a permanent uppointmC'lll. Thus, in one case, this Court said; " In accordance with Section t;82 of the Rev. Adm. Code, when a position in the classified service is fille<~ by one who is not a qualified civil service digible, his appointme11t is limited to the pel'iod neces~ary to enable the uppoi11t111g officer to secure a civil service eligible, qualified for the positio11, and in no case is such temporary appointment fol' a long 1>ariod than three months. As petitioners herein were not civil se1 vie·~ eligibles at the time of their appointment, and it docs not a ppear that they have since then qualified for the positions they arc holding, their respective appointments were only for a per iod of thrcf' months and not more." (Pana, et al. v. City Mayor, et al., G. R. No. L2700, Derember 18, 1953) ,2 The case of Aguila1· comes squarely within the purview of this ruling. T he lower court oi·dcred respondent 1wt only to n•instatt! petitioners but also to pay them their back salaries and moral and exemplary damages in the aggt·egatc amount of P7,000.00. We agree with the trial court that respondent should bo made to pay the back sala1·ies of petitioners for the reason that under the Chartei- of the City of Bacolod (Section 5, Commonwealth Act No. 326), the city cannot be made liable for damages arising from the failure of the mayor to enforce any provisions of the law or from his negligence in the enforcement of any of its provisions. We may also ag1ee with the trial court in holding that respondent in separating the petitioners from the service act~d with gross negligence, if not in bad faith, considering the events of contemporary history that had happened in his province and his official arts amounting to abuse I. Uy v. Rodriguez, July 30, 1954, 50 0.G., No. 8, pp. 3G74-·76 : Abella v. Rodriguez, June 29, 1954, 50 0 G., No. 7, pn. 3039-41; !\'lission v. Del Rosario, Feb. 26, 1954, 50 O.G., No. 4, pp. 1571, 1573-74; Palamine v. Zagado, !\larch G, 1!104, 50 O.G., No. 4, pp. 1566-67. 2. See also Reyes, et al. v. Dones, et al., G.R. No. L-11427, May 28, 1958. of authority of which the trial court took judicial notice in its decision, but we believe that t he sum of 1 '5,000.00 it slapped upo!l 1 ·espondent as morn! damages is not j ustified, for the s:ime is already included in, if not absorbed by, the back salaries he was ordel'e<l to pay to pet itioners. And with regard to the sum of 1'2,000.00 which respondent was ordered to pay as exemplary damages, the same is somewhat excessive, considering that 1 ·espondent acted in the belief that he had the requisite authority u nder E xecutive Order No. 264 of the President which at that time has not yet been declared repealed by tl1e Supl'eme Court. But ti1ese damages should be imposed if only to cm'.tail the abuses that. £ome public officials are prone to commit upon coming to power in utter disregard of the civil service l'Ulcs which constitute the only safegua!'d of the tenure of office guaranteed by our Constitution. These damages should therefore be reduced to 1'1,000.00. Wherefore, the decision appealed from is hereby modific-d :ui follows: respondent, or the incumbent Mayol' of Bacolod City, is onlercd to reinstate J)etitioner Leonardo Dinz as prayed for; respondent Amante is ;:irdered lo pay petitioner Diaz his unpaid salaries from August 16, 1951 up to the date of his reinstatemf'nt and the sum of l'l,000.00 as exemplary damages. I n all othe1· 1·espects, the de<:ision appealed from is hereby J"eversed. With costs ag:iinst respondent. Para.s, C.J., Padilla., . L(lbra<lor, Co11ccvcion, J.B.L. Reyes <i>i.-l Emlcncin, JJ., concurred. Bc11azo11, J., toqk no part. III In re ; Dfabci1·ntent p,.oceeding11 A gai11st Atty. Dio11tlado Q. G11tiCl'l'ez, l?e.~pomlcttl, A dm. Casi· No. 363, J nly ::11, J96Z, .lfokaliut<d, J. l. ATTORN EYS-AT-LAW ; R EMOVA L AND SUSPENSION BY HEASON OF CONVICTION OF CRIME INVOLVI:-lG MORAL T U RPIT U DE SUCH AS MURDER.- Under Section 5 of Rule 127 a member of the bar may be removed or susJJended from his office as attorney hy the Supreme Cou1·t by reason of his conviction of a crime involving moral turpiturie. · MuJ"der is, without doubt, such a crime. 2. ID.; MORAL TURPITUDE ; WHAT J\I AY IT INCLUDES.The term "moral turpitude" includes everything which is done contrary to justice, honest, modesty or good morals. (In re Carlos S. Basa, 41 Phil. 275.) 3. ID.; ID·; I N DISBA RMENT STATUTES; MEAN ING OF.As used in disbarment statutes it means an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrnry to the acce1 Jtcd rule of right and duty between man and man. (State ex 1 ·el. Conklin v. Buckingham, 84 P. 2nd 4~ ; 5 Am. Jur. Sec. 279, pp. 428-429.) 4. 10.; ID.; PARDON; WHEN IT : MAY BE A BAR TO 'DISBARMENT PROCEEDING.-When proceedings to st rike on attorney"s name from the rolls are founded on, and depend alone, on a statute making the fact of a conviction for a felony ground for disbarment, it has been held that a par•lon operates to wipe out the conviction and is ~l bar to any proceeding for the disbarment of the attorney after the pardon has been granted. 5 . JD. ; IO.; ID.; EFFECTS OF ABSOLU TE PARDON·-A person reaches both the punishment prescribed for t he offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offendel' is as innocent as if he had never committed the offense. If granted before ccnviction, it prevents any of the penalties and disabilities, consequent upon conviction, from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as. it were, a new man, and gives him a new credit and capacity. Page 270 LAWYERS JOURNAL September 30, 1962 6. ID.; ID.; ID.; PARDON GRANTED TO RESPONDENT JS NOT ABSOLUTE BUT CONDITIONAL.- The pardon grantc<! to respondent here is not absolute but.. conditional, and mCl'cly remitted the unexeeuted portion of his tenn. I t does not reach the offense itself, unlike that in Ex parte Gal'iund, which was ·•a full pardon and amnesty for all offenses by him committed in connection with the J"ebellion (ctvil war) agai:ist the government of the United Stales." 7. ID·; ID. ; ID.; I N RE LONTOK CASE INAPPLICABLE '1'0 TO THE CASE AT BA R.-Rcspondent Gutierrez must be judged upon the fact of his conviction for murder without regard to the pardon he invokes in defense. The cdme was qualified by treachery and aggravated by its having b('en C<'Jllmittcd in band, by taking advantage of his official position (espondent being municipal mayor at the time) and with the use of a motor vehicle. The degree of moml turpitude involved is such as to justify his being purged from the profession. 8. I D.; PRACTICE OF LAW; RIGID STANDARD REQUIRE1\lENTS.- The prnctice of law is privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to thf' bar the Rules of Coui·t not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission; the lawyer must CC'ntinue to adhere to them or else incur the risk of suspension or removal. 9. ID.; DUTI ES TO U PHOLD THE LAWS.-"Of all cl~sscs and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all mC'n in the world, to repudiate nnd override the laws, to trample them under foot and to ignore the very bands of socil'~y, ari;ues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic. (Ex parte Wall, 107 U.S. 263, 37 Law ed., 552, 556.) DEC I S I ON Respondent Diosdado Q. Gutierrez is a memLer of the Philippine Bar, admitted .to it on October 5, 1945. In criminal case No. R-793 of the Court of First Instance of Oriental Mindoro he was convicted of the murder of F ilemon Samaco. former municiJi:ll ma:10r of Calapan, :rnJ together with his co-conspirators was sentenced to the penalty of death. Upon review by this Com't the judgment of conviction was affirmed on June 30, 1956 (G.R. No. L-7107). but the penalty was changed to reclusi<m pcrpetua. After serving a po11ion of the sentence respondent was granted a conditional pardon by the President on August 19, 1958. The unexecuted p!)l'· tion of the prison term was remitted "on condition that he shall not again violate any of the penal laws of t he Philippines." On October £1, 1958 the widow of the deceased Filemon Sam:ico, ''ictim in the murder case, filed a verified complaint before this Court praying that respondent be removed from the roll of hw~·e!'s pursuant to Rule 127, 'section 5. Respondent presented his answc!' in due time, admitting the facts alleged by comr1lainant regarding his previous conviction but pleading the ccnditional pard0n in defense, on the authority of the decision of this Court in the .::ase of In re Lontok, 43 Phil· 293. Under section 5 of Huie 127 a member of ~hc- bar may be r"· moved or suspended from his office as attorney by the $u1>re>ne Court by reason of his conviction of a crime i1wolving moral t111·pitude. Murder is, without doubt, such a cr ime. The term "moral turpitude" includes everything which is done contrary to justice, honesty, modesty or good morals. In re Carlos S. Basa, 41 Phil. 275. As used in disbarment statutes, it means an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellowmen or to society in general, contrary to the :\Ccepted rule of right ai1d duty between man and man. State ex l'el. Conklin v. Buckingham, 84 P. 2nd 49; 5 Am. Jur. Sec. 27!J, pp· 428-429. The only question to be resolved is whether or not the conclitional pardon extended to respondent places him beyond the scope of the rule on disbarment aforecited. Reliance is placed by him squarely on the Lontok case. The respondent therein was convic!c-d of bigamy and thereafter pa1·do11ed by t.he Govcrnor-Genernl. In a subsequent proceeding for his disbarment on the gi·ound of such conviction, this Court decided in his favOI' and held: "When 1>roceedings to strike on attorney's name from the rolls are founded on, and depend alone, on a statute makng the fact of a conviction for a felony ground for disbarment, it has been held that a parCon operates to wipe out. the conviction ai1d is a bar to any p1·ocecdi11g for the disbarment of the attorney after the pardon has been grnllt· ed." It is our view that the ruling does not govern the question n.ow befol'e us. In making it the Court proceeded on the assumption that the pardon granted lo respondent Lo11tok was absolute. This is implicit in the ratio (/C<"idc11cli of the case, particulal'ly in the citations to support it, namely, In re Emmons, 29 Cal· App. 121; Scott vs. State 6 Tex. Civ. App. 343; and Ex pade Garland, 4 Wall. 380. Thus in Scott vs. State the court said : " We al'c of opinion that after he i·eceived an unconditional pardon the l'Ccord of the felony conviction could no longer be used as a basis for the proceeding provided for in article 226. This record, wl1en offered in evidence, was met with an unconditional pardon, and cou\rl not, therefol'e, prop~rly be s.:\id to afford "proof of ; conviction of ai1y felony." Having be-en thus cancelled, all its force as a felony conviction was taken nway. A pardon falling short of this would not be a pardon, according to the judicial construction which that act of cxccu· tive grace was received. Ex parte Gal'land, 4 Wall, 344; Knote v. U.S., 95 U.S. 14!J, and cases there cited; Young '" Young, 61 Tex. 191." And the portion of the decision in Ex part.:i Garland quoted with ap1J1·oval in the Lontok case is as follows : ·•'A pardon reaches both the punishment prescribed for the offense and the guilt of thC' offender; and when the pardon is full, it releases the punist.ment and blats out of existence the guilt, so that in the eye of the law the offender is as innoceut as if he had never committed the offense. If granted · before conviction, it prevents any of the penalties and disabilities, consequent upon convictio11, from attaching; if grnnted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity.'" The pardon granted to respondent here is not absolute but conditional, and merely remitted the unc.xecuted po1'tion of his term. It does not J'euch the offense it.self, unlike that in Ex parte Garland, which was "a full pardon and amnesty for all offenses hy him committed in connection with the rebellion (civil war) agair.st the government of the United States.'' The foregoing considerations render In re Lontok inapplicable here. Respondent Gutierrez must be judged upon the fact of his conviction for murder without l'egard to the pnrdon he invokes in defc11sc. The crime was qualified by t reachery and aggravated by its having been committed in band, by taking advantage of his official position (respondent being municipal mayor at the time) and with the use of a motOr vehicle· People vs. Diosdado Gutierrez, supra. The degree of moral turpitude inv.1lvcd is such as to justify his being purged fr(IJll the profession. The practice of law is a privilege accorded only to t-hose who measure up to certain r igid standards of mental and moral fitness. For the admission of a candidate to the bar the Rules of Coul't not only prescribe a test of academic preparation but 1·equire satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission; the lawyer must continue to adhere to them or else incur the r :sk of suspe11sio11 or removal. As stated in Ex. parte Wall, 107 U.S. 2G3, 27 Law ed., 5G2, 556: "Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in t)le world, to re1mdiate ::ind override the laws, to trample them under foot and to ignore September 30, 1962 LA WYERS JOURNAL Page 271 the very bands of society, argues recreancy to l1is position and ::>fficc and sets a pernicious example to the insubordinate and dangrrous clements of the body politic." Wherefore, pursuant to Rule 127, Section 5, and considering the nature of lhe crime for which respondent D iosdado Q. Gutierrez has been convicted, he is ordered disbal'l'ed and his 11amc stricken from the roll of lawyers. Bengzo11, C.J., Labrador, Concepcion, flor l'Crn, Parnle.~ , Di':'MI am/ Regala. JJ., concurred. Padilla, J., took no part. IV Matro Ca11it.?, et c!l., plui111iffs-appcllm1ts vs. Macfrigul & Co., Inc., et c1/, dcfendants-appcllees, G. fl. i\"o. l-1 78Jo;, All!//!:;/ 80, 19U.:, Dcwtista Angelo, J. I. PLEADING AND PRACTICE; MOTION TO D!Si\IISS COMPLAINT; GROUNDS l\IA Y BE BASED ON FACTS NOT ALLEGED IN THE COl\IPLAINT.-Undcr Ruic 3 of our Hules of Coui·t, a motion to dismiss is nol like a dcmutTCI' pr-.::vidCd for in the old Code of Civil Proc~dui·c that must be b~scd only 011 facts alleged in the com1>laint. Except where 1.h(' gl'ound is that the complaint does state no cause of action which must be based only on the allegations of the co111plaint, a mot\on to dismiss may be based on facts not alieged and may even deny those alleged in the complaint (Ruperto vs. Fernando, 83 Phil., 943}. - · ID.; JD.; DISMISSAL OF COMPLAINT WITHOUT RES E RVATION IS AN Al)JUDICATION UPON THE l\IERITS."Section 4, Rule 30, of the Rules of Coul't provides that "Unlf>SS otherwise ordered by the court, any d ismissal not provid('d for in this rule, other than a dismissal fo1· lack of jurisdiction, operates as ai1 adjudication upon thC' merilll". Where a com1 >laint had b('Cn dismissed without reservation, the dismiss~1l opcrnted as an adjudication upon the merits. 3. RES JUDICATA; AS GROUND TO D!Sl\IISS A COl\IPLA lr\T. - Where all the e.ssential requisites fo1 the existence of ffll' jmlical(t ar(' 1iresent, name\~·. final judgment, jurisdiction of the court, judgment on the merits, and identity of parties, cause of action and subjC'ct matter, the motion to dismiss the complaint on the gl'Ou11d of res judicattt must be grnnted. 4. STATUTE OF LJl\llTATIONS; WHEN ACT ION IS BAHRED BY STATUTE OF LlMITATIONS.-Whcl'<! the facts disclose that more than ten years had already elapsed since the cauf;e of action accrued on September 30, 1948, the action of pluintiffs is baned by the statute of limitations. DECIS I ON Plaintiffs impl('aded defendants before the Court of First Instance of Manila to rC<!over certain sums of money representing the salaries and allowances due them from March 17, 1948 to Sep· tember 30, 1948 as members of the crew (::mployed Ly defendants to fetch the ship S.S. BRIDGE from Sasebu, Japan to Manila by virtue of a certain shipping contract entered into between them. Within the reglcment:ny period, defendants filed a motion to dismiss on the gl'Ounds (a) that plaintiffs' cause of action is already barred by a prior judgment rendel'ed by the Coul't of First Instance of Manila in Civil Case No. 29663 and (h) that plaintiffs' cause of action is also barred by prescription. Counsel for plaintiffs filed his opposition to this motion, and after both the motion and the opposition were Sf:t for hearing, the court issued an order dismissing the complaint C'll the grounds set forth in the motion h; dismiss. Plaintiffs mterposed the present appeal before this Court on purely questions of law. It appears that 1 irior to the filing of the i:1stant ease, :i complaint was filed before the Court of First Instance of l\lanila by the same plaintiffs herein and other co-members of the same crew to which they belonged seeking to recover from the same defendants the total amount of 1'14,254.12 representing their unpaid salaries as crew members of the vessel S.S. BRIDGE concsponding to the period from March 17, 1948 to September 30, 1948, whid1 amount includes the same sums now sought to be recovered in the insta11t case. Plaintiffs' cause of action is predicated upon alleged violation of the same shipping contract entered into between hC'rein plaintiffs a nd defendants. After trial on the mer its, the court rende1·c<l decision ordering defendants to pay to one· J\ligucl Olirnpo th(' amounts of Pl,OHi.13 as wages and 1'300.00 as atlot'ney's fees and costs, but dismissing the comt>!aint with regard lo the other plaintiffs among them the ckims of l\Iatco Canite, Abdon Jamaquin and Filomena Sampinit, who are the plaintiffs in lhc instimt ease. The dispositivc part of the decision states that "the case of the other plaintiffs is dismissed as well as defendant's counterclaim for iiisufficiency of evidence." ( Underlining supplied} The 1 ilaintiffs, whose complaint was dhm1issed, gave notice of their intention to appeal, but the same was denied because it was filed out of time. They f il0<l a petition for mandamus with the Cou1·t of Appeals m an altc.-mpt to havf' the low0r coui·t approve and give course to their appeal, but their petition was dismissed, and so the decision became final and execulory. It is because of these facts which appear to be undisputed that the court a quo found no other alternative than to dismiss the JJl'CScnt action on the ground of 1"C'8 ;11dicala. I n this we find no ('J'l'Or for evident!}· all the essential requisites for the existence of lhc principle of 1·es judicatti a re here present. These requisiteii " In order that a Judgment rendered in a case may be con· elusive and bar a subsequent action, the following requisites must be present: (a) it must he a final judgment ; (b) the court rendering it must have jurisdiclion of the subject mattc1· and of the parties; (c) it must be a judgment on the merits; and (d) there must be between lhe two cases identity of pa1'lies, identity of subject matter, and identity of cause of action." (Lapid v. Lawan, ct al., C.R. No. L-10686, May 31, ]!)57) It is, however, contended that the court a quo erred in dismissing the complaint on the gl'Ound of res ;iulic!tla there bciug no allegation m the complaint t hat the present action has heen the subj('ct of a decision in a previous case. This contention is clearly unmeritorious, for under Rule 8 of our Hules of Court, a motion to dismiss is not like a demurrer pt·ovhled for in the Old Code of Civil Procedure that must be based 011/y on facts alleged in the complaint. "Except where the ground is that the complaint does state no cause of act.ion which must be based only on the allegations of the complaint, a motion to d ismiss may be based on facts not alleged and may even deny those alleged in the com· plaint x x x."l The court « quo, therefore, acted properly in susta ining the motion to dismiss. The contention that only the claim of Miguel Olimpo was adjudicated on the merits while the claims of the other plaintiffs, including the plaintiffs in the instant case, were dismissed merely for failure of the parties to testify in the hearing of the case .and so not on the merits, cannot also he sustained in view of what is pl'Ovided for in Section 4, Rule 30, of our Rules of Court. Thus, under said Section 4, '•Unless otherwise ordNed by t he court, any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, opel'atcs as an adjudication upon the merits", and in the aforesaid case there is nothi11g in the decision that would take the case out of the operation of the general rule. T he compla int having been dismissed without rescr\'ation, the dismissal operated as an adjudication UJ)()n the merits. It appcai·ing that all the essential 1 ·equisites for the existence of res j1uliC(ila are here present, namely, final judgment, jurisdiction of the cou1·t, judgn1ent on the merits, and identity of parties, cause of action and subject matter, as laid down in t he case above-mentioned, the court a quo l1ad no other alter native than to dismiss the pl'escnt action on lhe ground of res judicata. Aside from the foregoing, the facts also discloses that more than ten years lrn<l already elapsed since the cause of action herein accrued on September 30, 1948, which justifies the contention that the action of plaintiffs is also barred by the statute of limit· ations. 1 Ruperto v. Fernando, 83 Phil., !J43. Page 272 LAWYE RS J OURNAL September 30, 1962 Wherefore, the order appealed from is a ffirmed, without pronounccment as to costs. Beny;:on, C.J., Padilla, [,rtbntdor, Co11cepcio11, J.B.L. Reyes, D1o·rern, Pal'e<les, Di;:on, Rega/a and McU:alinWI, JJ., concurred. v Lwieta Motor Com1xrny, Petitioner, 1•s. A .D. Santos, Inc. ct ul .. R"spoudenls, C.R. No. L-17716, J uly 31, 1!)62, Diwn, J. 1. CORPORATION; AUT HORITY TO P URCH ASE , HOLD OR DEAL I N REAL AND P E RSONAL PROPE RTY.-Under Section 13 (5) of the Corporation Law, a corporation created thereunder may purchase, hold, etc., and otherwise deal in such real and personal IH'Operty as the purpose for which 1he co1porat.ion was formed may permit, and the transaction oJ its lawful business may reasonably and necessarily require. ci CERTIFICATE OF PUBLIC CONVENIENCE ; IT IS LIA BLE TO EXECUTION.- A certificate of public convenience grnnted to a public operator is liable lo cxceution ( Huymundo vs. Lunct::i Motor Co., 58 Phil. 889) and may be acquired by purchase. :3. CORPORATION; COHPORATE P URPOSE S; CE RTIFICATE OF PUBLIC CONVENI E NCE TO OPERATE WAT ER TRANSPORTATION IS NOT AN AUl HORITY TC ENGAGE IN LAND TRANSPORT ATION BUSINESS.-Petitioncr daimed that its corporate purposes arc to carry on a ieneral mercantile and commercial business, etc., and that it is authorized in its articles of incorporation to operate and otherwise deal in and concerning automobiles !!nd automobile accessories' business in all its multifarious ramification and to operate, etc. and otherwise dispose of vessels and boat.s, etc., and to own and operate steamship anc! mailing ships and othCL· floating craft and deal in the same and engage in the Philippine Islands and elsewhere in the transportation of persons, merehandize and chattels by water; all this incidental to the transportation of automobiles. Held : There is nothing in the legal provision and the provisions of petitioner's articles of incorporation relied upon that could j ustify petitioner's contPntion to engage in land trnnsportation business and operate a taxicab servi~. To the contrary, they arc precisely the best evidence that it has no authority at all to engage in such transportation business. T hat it may ope1·atc and otherwise deal in automobiles and automobile :1cccssorics; that it may engage in the trnnspoJ"tation of persons by water does not mea n that it may engage in the business of land transportation - an entirely different line of business. If it could not thus engage in this line of business, it follows that it may not acquire a11y certificate of nublic convenience to opcratr a taxicab sei·vice, such acquisition would be without purpose .and would have no necessary connection with 1 >etitioner's legitimate business. D EC I S I ON Appeal from the dceision of the Public Service Commission in case No. 123401 dismissing petitioner's application for the approval of the sale in its favor, made by the Sheriff of the City of Manila, of the certificate of public co:wcnience granted bCfo!·e the war lo Nicolas Concepcion (Commission Cases Nos. 60GO<:t and 60605, reconstituted after the war in Commission Cas~ N<}. 1470) to operate a taxicab scn•ice of 27 units in lhc City of Manila and therefrom to any point in L-uzon. It appears that on December 31, 1941, to secure payment of loan evidenced by a promissory r.ote E:xeculcd by Nicolas ConcC>pcion and guaranteed by one Placido E steban in favor of retitioner , Concepcion executed a chattel mortgage covering the above mentioned certificate in favor of petitioner. To sccul'c payment of a subsequent loa n obtained by Concepcion from the Rehabilitation F inance Corporation (now Development Bank of the Philippines) he constituted a !:.ccond mortga\.":e on t he si>-:ne certificate. This second mnrtgage was approved by the res1 fondcnt Commission, subject tc. the mortgagl: lien in favoi· of pet_itioper_ The certificate was later sold to F rnncisco Benitez, J r., who l'Csold it to Rcdi Taxicab Company. Both sales wc1·~ m ade with assumption of the mortgage in favor of the RFC, a nd were also approved provisionally by the Commission, subject tu petitioner's lien. On October 1'0, 1953 petitioner filed an action to foi·eclose the chattel mortgage executed in its favor by Co1 1cepcio11 (Civil Case No. 20853 of the Court of First Instance of Mani\a) in view of thi> failure of the latter and his guarantor, Placido Esteban, to pay their overdue account. While the above case was pe~ding, the RFC also instituted foreclosure proceedings on its second chattel mortgage and, as a result of the decision in its favor therein- l'cndercd, the certificate of public convenience was sold at p ublic auct ion in favor of Amador D. Santos for P24,010.00 on August 31, Hl56. Sant-Os immediately ap1ilicd with the Commission for the a pproval of the sale, and the same was approved on January 26, 1957, subject to the mortgage lien in favor of petitioner. On I.Tune 9, 1958 the Court of First Instance of l\Ianila rendered judgment in Civil Case No. ~0853, amended on August 1, 1958, adjudging Concepcion indebted to petitioner In the sum of 1'15,197.84, with 12'1{ interest thereon from December 2, 1941 until full payment, plus other assessments, and ordered that the certificate of public convenience subject matter of the chattel mortqage be m id at public aucti<Jn in accordance with law. Accordingly, on March 3, 1959 said certificate was sold at public auciion to petitioner, and six days thereafter t-he Sheriff of the City of Manila issued in its favor the correspondng certificate of sale. Thereupon petitioner filed the application mentioned heretofore for the approval of the sale. In the mc.'.lntime and before his death, Amador D. Santos sold and transferred (Commission Case No. 1272231) all his !'ighls and interests in the certificate of public convenience in question in favor of the now respondent A. D. Santos, Inc. who opposed petitioner's a pplication. The iecord discloses that in the course of th~ hearing on :mitl application and after petitioner had rested its ease, the respondent A.D. Santos, Inc., with leave of Court, filed a motion to dismiss based on the following grounds; ' "a) u nder the petitioner's Articles of Incorporat ion, it was not authorized to engage in lhc taxicab business or operate as a common carrier; "b) the decision in Civil Case No. 20853 of the Court of First Instance of Manila did not affect the op1 >0sitor nor its predecessor Amador D. Santos inasmuch as neither ('f them had been implcaded into the case; ·;c) that what was sold to the petition~!' wcrP. only t he 'right<;, interests and participation' of Nicolas Concepcion in the certificate that had been granted to h im which were no longer existing at the time of the sale." On October 18, 1960 the respondent Commission, a fter considering the memoranda submitted bs the parties, rendered the appealed decision sustaining the first g round relied UJlOn in support thereof, namely, that under petitioner's articles of incorporation it had no authority to engage in the taxicab business or operate as a common carrier, and that, as a result, it coulJ not acquire by Jlurchasc the certificate 0 of public convenience refcned to above. Hence the present appeal interposed by petitioner who claims that, in accordance with the Corporation Law ~nd its articles of incorporation, it can acquire by purchase the certificate of public convenience in question, maintaini11g ii1fcrcntially t hat, after acquring said ce1 t ificate, it could make use of it by operating a taxicab business or operate as a common carrier by land. There is no question that a certificate of public convenience granted to a public operator is liable to execution (Raymundo vs. Luneta Motm· Co., 58 Phil. 889) and may be acquired by purchase. The question involved in the present appeal, however, is not only whether, under t he Corporation Law and petitioner's articles of incorporation', it may acquire by purchase a cel'tificatc of public convenience, such as the one in question, but also whether, after !ts acquisition, petitioner may hold the ccrt'.ificate a11d thereunder September 20, 1962 LA WYERS JO URNAL Page 273 operate as a common carrier by land. It is not denied that under Section 13 (5) of the Corporation Law, a corporation created thereunder may purchase, hold, etc., and otherwise deal in such real and personal property as the purpose for which the corporation was formed may permit, and the transaction of its lawful business may reasonably and necessarily 1·equire. The issue here is precisely whether the purpose for which petitioner was organized and the trnnsaction of its lawful business reasonably and necessarily require the purchase and. holding by it of a certificate of public convenience like the on•: in question and thus give it additional authority to opernte thereunder as a common carrier by land. Petitioner claims in this regard that its corporate pmposer are to cany on a general mercantile and ccmmercial busin(!SS, ck., and that it is authorized in its a1·ticles of incorporati0n to 01>ernte und otherwise deal in and concerning automobiles and automobile accessories' business in all its multifarious ramification (petition· er's brief. p. 7\ and to operate, etc. and otherwise dispose of vessels and boal!'l, etc., and lo own and operate steamship and· mailing ships and other floating critft and deal in the same and engage in the Philippine Islands and elsewhere in the transportation of persons, merchandise and chattels by water; all this incidental to the transportation of automobiles (id. pp. 7-S a nd Exhibit B). We find nothing in the legal provision and the prOvisions of petitioner's articles of incorporation relied upon that could justify petitioner's contention in this case. To the contrary, the).· an• precisely the best evidence that it has no authority at all to engage in the business of land transportation and open\te a taxicab service. That it may operate and otherwise deal in automobiles and automobile accessories; thut it may engage i11 the transportation of persons by water does not mean that it may engage in the in the business of land transportation - an entirely different line of business. If it could not thus engage in this line of business, it follows that it may not acquire any cer tificate of public convenience to operate a taxicab service, such as the one in question, because such acquisition would be without purpose nn<l. would have no necessary connection with petitioner';; legitim~tc business. In view of the conclusion we have arrived at on the decisive issue involved in this appeal, we deem it unnecessary to resolve the other incidental questions raised by petitioner. WHEREFORE, the appealed decision in affirmed, with costs. Beng:zon, C.J., Padilla, Concepcion, Barrera, Paredes, and Makalintal, JJ., concun·ed. R-:gala, J., did not take part. VI Ricardo M. Gutiene::, Plaintiff-Avpellant, 1'8. l..ucia Milagros Barretto-Datu, E xecutrix of the Testate Estate of lhe deceased Maria Gerardo Vda. de Ba'r'retto, Defendant-Apvellee, G.R .. Vo. L17175, July 31, 1962, Maka/intal, J. 1. ESTATE OF A DECEASED PERSON; CLAIMS; AS USED I N STATUTE REQUIRING PRESENTATION OF CLAIMS AGAINST A DECEDENT'S ESTATE : CONSTRUED.-The word "claims" as used in statutes requiring the presentation of claims against a decedent's estate is generally constl'ucd to mean debts or demands of a pecuniary nature which have been enforced against the deeeased in his lifetime znd could have been reduced to simple money judgnrnnts; and among these are those founded upon contract. 21 Am. Jur. 579. 2. ID.; CLAIM BASED ON BREACH OF CONTRACT.- The claim in the case at bar is based on contract - specifically, on a breach thereof. It falls squarely under Section 5 of Ruic 87, Rules of Court. 3. ID.; ID.; CONTRACTS BY DECEDENT BROKEN DURING HIS LIFETIME; PERSONAL REPRESENTATIVE LIABILITY FOR BREACH OUT OF THE ASSETS.- Upon all contracts by the d(!ccdent broken during his lifetime, even though they were personal to the decedent in liability. the representative is answerable for the breach out of the assets. 3 Schouler on Wills, Exeeutors and Administrntors, 6th Ed., 2395. 4. ID.; ID.; PRESENTATION OF CLAIM FOR BREACH OF A COVENANT I N A DEED or~ DECEDENT.- A claim for breach of a covenant in a deed of the decedent must be presented under a statute requiring such presentment of all claims grounded on contract. 5. EXECUTOR OR ADMINISTRATOR; ACTIONS T HAT MAY BE I NSTITUTED AGAINST E ITHER.- The only actions that may be instituted against the executor or administrator are t hose to recover real or personal prope1·ty from the estate, or to enforce a lien thereon, and actions to recover damages for an injury lo person or property, real or personal. Rule 88, section I. The instant suit is not one of them. DE CISION Ricardo !\"I. Gutierrez appeals from the orders of the Court of First Instance of Rizal (l) dismissing his complaint against Lucia i\Iilagrns Barretto-Datu, as executrix of the estate of the deceased Maria Gerardo Vda. de Barretto, and (2) denying his motion for reconsideration of the dismissal. The l'elcvant facts alleged by appellant are as follows: In 1940 Maria Gerardo vda. de Barretto, owner of 371 hectares of fishpond lamls in Pampanga, lease(\ the same to appellant Gutierrez for a term to expi1·e· on May 1, Hl47. On Novcmbc?· l , 1941, pursuant to a decision of the Department of Public Works rendered after investigation, the dikes of the fishfonds were opened at several poin~s. resulting in their destruction and in the loss o( great quantities of fish inside, to the damage and prejudice of the lessee. In 195G, the lessot· having died in 1948 and the corresponding testate prnceeding to settle her estate havi11g been opened (Sp. Proc. No. 5002, C.F. I., Manila), Gutierrez filed a claim for two items: first, for the sum of 1'32,000.00 representing adva?1ce i en ta ls he had paid to the decedent (the possession of the leased JlrOpc1ty, it is alleged, having been returned to her after the opening of the dikes ordered by the government); and second, for the sum of PG0,000.00 as damages in the concept of unearned profits, that is, profits which the claima11t failed to realize bec::rnse of the breach of the lease contract allegedly committed by the lessor. On J une 7, 1957 appellant commenced the instant ordin~l'y civil action in the Court of F irst Instance Rizal (Quezon C!t:1 branch) against the executrix of the testate estate for th€: recovery of thr same amount of PG0,000.00 referred to as tl1e second item claimed in the administration preceding. The complaint specifically charges the decedent Maria Gerardo Vda. de Barretto, as lessor, with having violated a warranty in the lease contract against any damages the lessee might suffer by reason of the government that several rivers and creeks of t he public domain were included in the fishponds. In \July 1957 appellant amended his claim in the testate proceeding by withdrawing therefrom the item of PG0,000.00, lcavini;· only the one for refund of advam:e rentals in the sum of P32,000.00. After the issues were joined in the present case with the filing of the defendant's answer, together with a counterclaim, and after two postponements of the tiial were granted, the second of which was in January 1958, the court dismissed the action for aban· donmcnt by both parties in an order dated July 31, 1959. Appellant moved to reconsider; a ppellee opposed the motion ; and after considerable written argument the court , on March 7, 1960, denied the motion for reconsideration on the ground that the claim should have been prosecuted in the testate proceeding and not by ordinary civil action. Appellant submits his case on this Jone legal question: whether or not his claim for damages based on Un!·ealized profits is a money claim against the cstste of the deceased Maria Gerardo vda. de Barretto within the purview of Rule 87, Section 5. This section states: "SEC. 5. Claims which must be fi)ed under the 11otice~ If not filed, barred; cxccption.-All claims for money ag.'.linst Page 274 LA WYERS JOURNAL Scptembel' 30, HlG2 the decedent, arising from contrnct, express or implied, whc· ther the same be due, not due, or cortingent, all claims for funeral expenses and expenses of the last sickness of the decedent, and judgment for money agai11st th!! decedent, must hr! filed within the t ime limited in the notice; otherwise they are baned foi·ever, except that they may be set forth as counterclaims in any action lhat the executor or udministrntor may br ing against the claimants. W here an executor or ad. ministrator commences an action, or prosecutes an action aJ. ready commenced by the deceased in his lifetime, the debtor may set forth by answer the claims he has against the de· cedem, instead of pl'esenting them indPpendently to the court as herein provided, and mutual claims may be set off aga inst each other in such action; and if final judgment is rendered in favor of the defendant, the amount so tletermined shall be considci·ed tl1e true balance against the estate, as though the claim had been presented directly before the court in the ad· ministration proceedings. Claims not yet due, or contingcmt, may be approved at their present v·alue." T he word ''cla ims" as used in stat utes requi ring the present.a· tion of elaims against a decedent's estate is generally construed lo mea n debts or demands of a pecuniary nature which could have been enforced against the deceased in his lifetime and could have been reduced to simple money j udgments; a11d arilong these are those founded upon contract. 21 Am. Jur. 579. The claim in this case is based on contract - specifically, on a breach there· of. It falls squarely under section 5 of Ruic 87. "Upon all .con· tracts by the decedent broken during his lifetime, even though they were pei·sonat to the dcceclent in liability, the personal 1·e· 1 >resentative is answerable for the breach out of the assets." 3 Schouler on Wills, Executors a nd Administrators, 6t-h Ed., 2395. A cl:tim for breach of a covena nt in a deed of the dl'cedent must be Jlresented under a statute requiring such presentment of all claims grounded on contract. Id. 2461; Clayton v. Dinwoody, 93 P. 7::::3; IJames v. Corvin, 51 P. 2nd 689.(') The only actions t hat may be instill1ted against the executor or adminisfrator are those to recover rea l or personal prnpei·ty from the estate, or to enforce a lien thereon, and aetions to re· cover damages for 'an injury to person or property, real or per· sonal. Rule 88, section 1. The instant suit is not one of them. Appellant invokes Gavin v. l\lelliza, 84 Phil. 794, in support of his contention that this action is proper against the executrix. T he citation is not in point. T he claim thcrei!l, which was filed in the testate proceeding, was based upon a breach of contract committed by the executrix herself, in dismissing the claimant as administrator of the hacienda of the deceased. While the contract was with the decedent, its violation was by the executrix and hence personal to her. Besidf::s, the claim was for indemnity in the form of a certain quantity of palay every yea1 · for the unexpired po1 ·tion of the term of the contract. The denial of the claim was affirmed by this Court on the grounds that it was not a money (!) Plaintiff's claim arose from a breach of a covenant in the deed. It is very clearly expressed by the statute that all claims arising on contracts whether due, not due, or contingent, must be presented. The only exception made by the statute is t hat a mortgage 01· lien "against the property of t he estate subject thereto" may be enforced without first presenting a claim to the executor or administrator "wtiere all recourse against any other property of the estate is expressly waived in the complaint." But this was not an action to enforce a lien. It was not one seeking to have the claim satisfied out of specific property of t he cst~tc, or to subject any particular property of the estate to the satisfaction thereof. Clayton v. Dinwoody, 93 p. 723. The claim for damages for the unexpired portion of t he lea se is not an obligation incurred by the administratrix in the course of her admnistration of the estate. It arises out of a contractual obligation incurred by Louis llohnson and is governed by the statute of nonclaim. By the terms of the lease, he obligat· ed himsc!lf, his heirs, executors, administrators and assigns to pay $,4,860. for the premises for a term of five years, covering t he time involved in this action. A claim for damages for a breach of cont1:act arises out of that obligation requiring as prerequisite to a smt thereon, that the claim be served on the adtni11ist ratrix and filed with the clerk of court. James v. Corvin, 51 P (2d) 689. claim and that it arose after · the decedent's demise, placing it outside the scope of Rule 87, Sedion 5. The orders appealed from are affirmed, with costs against appellant. Bcngzon, C.J., Labrador, Conce1Jcion, Bart'':l'IJ, Paree/cs, Dizon mul Reyola, JJ., concuncd. Padilla, J., took no part. Vil Ter.esa Realty, Inc., Plai11tiffs-Appellee vs. Ca .. onen. Preysler l'ti<t. de Garl'iz, Defendant·A ppellant, G.H. No. f_.-14717, July 31, 1962, Padilla, J. LANDED ESTATES; CITY OF MANILA; SUSPENSION OF DETAINER. PROCEEDINGS UNDER REPUBLIC ACT 1162 AS AMENDED BY REPUBLIC ACT NO. 1599 ; REQUISITE.The authority grnnted by section 1 o( Republic Act No. 1599, ap· proved on 17 J une 1956, amending Republic Act No. 1162, which took effect on 18 J une 1954, to expropriate " landed estates or haciendas, or lands which formerly formed part thereof, in the City of Manila, which arc and have been leased to tenants for at least ten years," "Provided, T hat such lahds shall have at lea st fifty houses of tenants erected thereon," does not mean that once these conditions or requisites are present, Republic Act No. 1599 or Re· public Act No. 1162 wou!d readily be applied. Before either Act together with the remedies therein provided, such as suspension of detainer proceedings, installment payment of rentals, or maximization of rentals, could be availed of, it is necessary that proceedings for the expropriation of the parcel of land must have been instituted. Othen.vise, the law could not be availed of. Jn the case at bar, the parcel of land subject of the lit:gation is not being expropriated. DEC I S IO N On 19 May 1948 Carmen P reysler vda. Ganiz ac<i:iired 1 iy purchaso from the successors·in·interest of D. M. Fleming a resi· dential house and a leasehold right on a parcel of land (Lot ll·K) where the house stands (Exhibit A·2) . Situalc:d on 2:-: Manga Avenue, Santa :Mesa, Manila, the parcel of land contains an area of 1,492.59 square meters described in transfer certificate of title No. 30061 issued in the name of Tere~a Realty, Inc. by t he Regis· ter of Deeds in and for the City of J\fanila, and assessed at P22,. 540. On 21 March 1918 D. M. Fleming acquired by purchase the leasehold right from J ohn W. H aussermann (Exhibit A·l) who 011 3 June 1910 bad entered into a contract of lease with Demetrio Tuason y de la P az, the manager (administrador) of the E state of Santa Mesa y Diliman (Exhibit A). Under the 01 ·iginal lease agreement (Exhibit A) , the term thereof was to expire on 31, December 1953. Effective 1954 the parcel of land above referred to was H!ii· scssed at P22,540 by the City Assessor of Manila in the name of Teresa Realty, hie. (Exhibit B) . On 22 December 1953, or before the expiration of the lease on 31 Decembel' 1959, the Teresa Really, Inc. notified in writing Car· men Presyler vda. de Carriz that it would agree to a new lease for five years at an increased rental from Pl35 a year 1 ilus tax on the land to P225.40 a month, which is 12'/o of the assessed value of the parcel of land. Despite such offer to enter into a new lease contract the lessee refUsed to have it renewed for five yc::irs al ;.in increased rental as offererl by the lessor. For thm reason, : he Teresa Realty, I nc. brought a detainer action against Carme11 Preysler vela. de Garriz in the Municipal Court of Manila. A fte1· trial, the court 1·endered judgment 01·dering Carmen Preysler vrla. de Garriz or any person claiming under her to vacate the parcel of land subject of the lease and to pay PZ"25.40 as reasonable monthly rental for the use of the parcel of land from 1 January 1954 until possession of the same shall have been restored to the plaintiff, and costs. She appt'aled to the Court of F irst Instance of Manila. Whereupon, t he complaint filed i11 the Municipal Court was reproduced. On 17 Januai·y 1955 the defendant lessee a11swered anew the reproduced complaint and a lleged fnr· thcr by way of special defenses that she 'yas holding possession of the parcel of land waiting for the Court to decide the action September 30, 1962 LA WYERS JOURNAL Page 275 she had brought for the purpose of asking the Court to fix the reasonable rental and the period of extension of the lease contract, the rental demanded by the plaintiff being speculative and excessive (civil case No. 21897); that the parcel of land the possession of which the plaintiff seeks to recover is pv.rt of the Hacienda of Santa Mesa and Diliman; and that pui·suant to Republic Act No. 1162 all detainer cases had to be suspended until expropriation proceedings a1·e terminated, provided the current rentals are paid by the tenant. Upon these premises she prayed for the dismiss:\! of the complaint or suspension of the proceedings in the detai1:er case and for nny other just and equitable relief. After trial, on 1 October 1955 the Court of First Instance of J\lanila rendered judgment which, aside from reiterating what the Municipal Court had adjudged, ordered the defendant Carmen Preyslcr vda. de Garrb: to remove from the parcel of land her improvement or construction thereon. Her motion for reconsiderntion and/ or new trial having been denied on 27 October 1955, she appealed to the Court o{ Appeals. The appeal was certified to this Court, Oecause the appellec Teresa Realty, Inc., in objecting to the appellant's motion to suspend the detainer proceedings under the provisions of Republic Act No. 1599, had raised the question of constitufrmality and applicability of the statute. On 7 November 1956 this Court returned the case to the Cou1·t of Appeals for the latter to ascertain the number of hou..,es built on the leased 11arcel of land which was necessary for the determination as to whether the case would come under Republic Act No. 1599. Pursuant to this directive, the Court of Appeals -designated its Deputy Clerk Esper idion M. Venturn as commissioner to recei\1C evidence on such number of h·ouses built thereon. On 5 August 1958 the commissioner rendered a 1·cport that more than 50 houses were on the tract of la1?d bc\ong:ng propriation of the parcel of land must ilave been instituted.( 1) Otherwise, the law could not be availed of. Jn the case at bar, the parcel of land subject of the litigation is not being cxpropriatt>d. The r ental of P225.40 a month, which is 12'k per unnum of the a ssessed value of the parcel of land involved herein, is reasonable.(Z) The judgment appealed from is affirmed, with costs against lh appellant. Bengzon, C.J., Bautista A11gelo, Labrador, Concepeio11, Barrera~ Pa redes, Dizon, Rega.la and Makalint<tl, JJ., concurred. J.B.L. R'!yes, J., took no part.' Vlll Godofredo 1\/avera., v etitio11e1· 1!S, Hon. Perf1.;cto Quicho, etc.,. et al., roop<nu1ents G. R. No. L-18339, June 29, 1062, Buutista .'~ ll !JClo, J. l. REGlSTRATION OF LANDS; PUBLIC lllGHWA Y IS EXCLUDED FROJ\I THE TITLE.- Under Section 39, Act No, 49G, Land Registration Law, any public highway, even if not noted on a title, is deemed excluded as a legal lien or encum~ brance in the l'egistered lan<l. •. ID.; INCLUSION BY MISTAKE OF A LAND WHICH CANNOT LEGALLY BE REGISTERED DOES NOT :\1AKE APto the plaintiff, or, as admitted by the assistant manager of the Teresa Realty, Inc., there were about 460 tenants, and that 53 ten- 3. ants, he had interviewed, had, in their own right or together with PLICANT OWNER; THEREOF.- A person who obtains a title which includes by mistake a land which cannot legally be registered does i1ot by virtue of such inclusion bl'come the owner of the land erroneously included therein. But this thC!ory only holds true if there is no dispute that the poi'lion to be excluded is really part of a Jlubtic highway. This principle only applies if there is unanimity r..s to the issue of fact involved. ID.; CORRECTION OF CERTIF'lCATE OF TITLE UNDER SECTION 112 OF ACT 496 (Lane\ R~gistration Act); WHEN PETITION CANNOT BE GRANTED.- The claim of the municipality that an error has been committed in the survey of the lot recorded in respondent's name by including a portion of tho Natera Street is not agreed to by petitioner. In fact, he claims that that is a question of fact that needs to· be proven because it is controversial. There being dissension as to 1111 important question of faci;, the petition cannot be granted under Section 112 of Act No. 406. their predecessors-in-interest, occupied their respective parts of the tract of land for more than ten years bc·fore Re1iublic Act No. 1599 was approved. On November 1958 the Court of Appeals agt>.in certified the case to this Court. The appellant contends that the t1·ial court erred in not suspending the detainer proceedings against her and in ordering her to vacate the lot leased by her and predecessors-in-interest since 3 lfune 1910 and to pay a monthly rental equivalent to 12'/o of assessed value of the parcel of land. According to hC!r, the requisitC!s of section 1 of Republic At No. 1599, namely, that the parcel of land in litigation (1) be part of a landed estate or haciendnthe former Hacienda de Santa Mesa y Diliman in Manila; <2) had been leased for at least ten years; and (3) that the landed estate had more than fifty houses of tenants, are present; hence the law invoked by her applies and the detainer proceedini,.-s against her should have been suspended as provided for in section 5 of Republic Act No. 1599. Said section partly provides: From the approval of this Act, and even before the commencement of the expropriation herein provided, ejectment proceedings against any tenant or occupant of any landed estates or haciendas or lamls herein authorized to be expropriated, shall be suspended for a period of two years, upon motion of the defendant, if he pays his current rentals, :x x x. The appellant"s eontention cannot be sustained. The authority granted by section 1 of Republic Act No. 159!), approved on J7 June 1956, amending Republic Act No. 1162, which took effeet on 18 June 1954, to expropriate "landed estates or haciendas, or lands which formerly fo1med part thereof, in the City of Manila, which are and have been leased to tenants for at least ten years," "Provided, That such lands shall have at least fifty houses of tenants erected thereon," docs not mean that once these conditicns or requisites are present, Republic Act No. 1599 or Republic Act No. 1162 would !'eadily be applied. Before either Act together with the remedies therein provided, such as suspension of detainer proceedings, installment payment of rentals, or maximization of rentals, could be availed of, it is necessary that proceedings for the ex4' ID.; ID.; JURISDICTION OF LAND REGISTRATION COURT TO MAKE CORRECTION IN CERTIFICATE OF TITLE~ ORDlNARY COURT.-Whih.! Section 112 of Act No. 496, among other things, authorizes a person in interest t() ask for any erasure, alteration, or amendment of a certificate of title "upon the ground that rcgiste!'ed interests 'lf any description, whether vested, contingent, .expectant, or inchoate, have terminated and ceased', and apparently the petition comes under its scope, such relief can only be granted if there is unanimity among the pa11.ies, or there is no adverse claim or serious objection on the part of any party in interest; otherwise the case becomes controversial and should be threshed out in an ordinary case or in the case where the incident properly belongs. DEC I S IO N On January 24, 1D61, the municipality of Ligao f:Jed with the Court of First Instance of Albny a petition under Section 112 of Act No. 496, as amended, for the correction of Transfer Certificate of Title No. T-9304 issued in the name of Godvfredo Navera, covering Lot No. 2793-A, on the ground that a portion of 123 sq. m. was erroneously included in said title during the cn.dastral survey of Ligao. Navera filed a motion to dismiss based on the ground that the relief which petitioner seeks to obtain cannot be granted under Section 112 of Act 496 because the same would involve the opening of the original decree of registration. H~ contends that, under (1) Tel'esa RC!aity, Inc. vs. l\Iaxima Blouse de Po.tcnciano, G.R. No. L-17588, 30 J\lay 1962. (2)I<l. Page 276 LA WYERS JOUHNAL Septembc:- 30, 1002' said section, the court can only author ize an alteration which may not impair the rights rec.orded in the decree, or one which will not prejudice such r ights, or one which is consented to by all pnrties concerned, or can authorize the correction of any error or mistakes which would not involve the reopening of the original decree of registration. Herc the petition will have such effect, for it will involve the correction of the technical cfcscription of the land covered by the certificate of title in question, segregating therefrom the portion alleged to have been erroneously included, which eventually will cause the amendment of the original decree of registrntion. This cannot be done at this stage after the kpse of 23 years from the issuance of the certificate of title. After hearing both parties, the court a quo issued an order denying the mction to dismiss and requiring Navcra to answer the petition wit.bin the reglc•nentary period. After this motion for reconsideration was denied, Navel"a filed the present petition for certiorari disputing the jurisdiction of the court a. quo. It is alleged by the municipality of Ligao that in the course of the construction or repair of Natera street of said municipality it wa~ ascertained by a duly licc:-i~e<I surveyor that Lot No. 2793-A of the cad3stral survey of Ligao has encroached upon said street by depriving the street of an area a.no~mting to 123 sq. m. which w.is erroneously included in Lot No. 2793-A now covcrcci by Transfer Certificnte of Title No. T-9304 issued in the name of Godofredo Navera. Hence, the municipality prays for the corredion of such error in the techr1ical description of the lot. as well as in the certificate of title, with a view to excluding thf.'rcfrom the portion of 123 sq. m. erroneously included therein. The court a. qiw, over the objection of Navcra, granted the petition even if the same was fil,..d under Section 112 of Act No. 496. The court predicates its ruling upon the followin~ 7'aeionalc; "It is a rule of law that lands brought under the operntiun of the Torrens System are deemed relieved from 3\1 clairr.<i and encu'Y!brances not :Of·pearing on the title. However, the law excepts certain rights and liabilities from the rule, and tl:ere are certain burdens on the !ands registered which continue· to exist and remain in force, although not noted on the title, by express provisions of Section S9 of Act No. 496, as amended. Among the burdens on the land registered which continue to exist, pursuant to said Section 39. is 'any public highway, way, private way established by law, or any Government irrigation ca.nal or lateral thereof. where the certificate of title does not state that tl:e boundaries ot such hichway, way, or irri~tion canal or lateral thereof, have been determined.' The principle invohe<l here is that, if a person obtains a title under the Torrens System which includes by mistake or oversight a land which car.not be registered, he does not by virtue of such certificate alone bec?me the owner of the land illegally included therein. In the case of Ledesma vs. Municipality of Iloilo, 49 Phil., 679, the Supreme Court laid down the doctrine that t'hc inclu1>ion of public highways in the certificate of title under the Torrens Systen: docs not thereby give to the holder of ~uch cerUf;catc sai<l public highways.' " Petitioner Navera docs not agree with this ruling, invoking in his favor what we stated in a recent case to the effect that, "lhe lnw authorizes only alterations which do not Impair rights recorded in the decree, or alterntio:-is which, if they <lo not prcjudie<: such rights, are consented to by all parties concerned, or alterations to correct obvious mistakes, without opening the origina~ decree of registration" (Director of Lands v. Register of Deeds, G. R. No. L-4463, promulgated March 31, 1953). Navera contends that the purpose of the instant petition is not merely to correct a clerical error but to reopen the original decrC<e of registration which was issued in 1937, and this is so because the petition seeks to direct tbe registe: of deeds to make the necessary correction in the teehnical description in order that the portion erroneously included may be returned to the municipality of Ligao. In effect, therefore, the petition docs not seek merCly the correction of a mistake but the return or reconveyance of a portion of a registered property to respondent. This c.annot be done without opening the original decree of registration. The theory entertained by the court a q· uo that if the portion to be segregated was really erroneously included in the t itle issued to petitioner because it is part of the Nadera street which belongs to the municipality of Ligao that portion may be excluded under Section 112 of Act 496 because under the law! ;my public highway, even if not noted ·on a title, is deemed excluded therefrom as a legal lien or encumbrarice, is in our opinion correct. This is upon th'.! principle that a person who obtains a title which includes by mistake a land which cannot legally be registered does not by virtue of such inclusion become the owner of the land erroneously included ~hcrein.2 But this theory only holds tl"ue if there is no dispute that the portion to be excluded is r eally part of a public highway. This principle only applies if there is unanimity 3s to the issue of fact involved. Here said unanimity is Jacking. The claim of the mu:-iicipality that an error has been committed in the survey of the lot reeorded in respondent's name by including a portion of the Natera street is not agreed to by petitioner. In fact, he claims that that is a question of fact that needs to be proven because it is controversial. There being dissension as to an important question of fact, the petition cannot be granted under Section 112 of Act No. 496. "'Ve are of the opinion that the lower court did not err in finding that it lacks jurisdiction to entertain the present petition for the simple reason that it involves a controversial issue which takes this case out of the scope of Section 112 of Act No. 496. While t his section, among other things, authorizes a person in interest to ask the court for any erasure, alteration, or amendment of a certificate of title 'upon the ground that registered interests of any description, whether vested, contingent, expectant, or inchoate, have terminn.ted and ceased, and apparently the petition comes under its scope, such relief can only be granted if there is unanimity a.mong the parties, or there is no adverse claim or serious objection on , the part of any party in interest; otherwise the case becomes controversial and should be threshed out in an ordinary ca.se or in the case where the incident properly belongs. x x x" (Tangunan, et al. v. Republic of the Philippines, G. R. No. L-5545, DCC')mber 29, 1953: See also Jimenez v. De Castro, 40 O.G. No. 3, 1st Supp. p. 80; GoTernmcnt of the Philippines v. Jalandoni, 44 0. G., 1837) Wherefore, petition is granted. The order of respondent ceurt dated March 8, 1961, as well as its order dated March 25, 1961, are hereby set aside. No costs. Bengzon, C.J., Pa<lilla, Labrador, Concepcion, Ban·.~i·a, Paredes, Dizon, Regala and iltakalintal, JJ., concurred. IX People of the Philippines, Plaintiff-appcllee vs. Emitedo Villanueva, Pedro Percal and Felix Jasmilona, Dgfenda.nts-a.ppellants, C.R. No. L-12687, July 31, ~962, Bengzon, C.J. I. CRIMINAL LAW; CONSPIRACY; WHEN MAY EXTRAJUDICIAL CONFESSION OF ONE CONSPIRATOR BE CONSIDERED AS PART OF THE EVIDENCE AGAINST PARTIES CONCERNED.- The rule is that where the recitAls in the extrn-judicial confession of one of the conspirators a!·e corroborated in its important details by other proofs in the record, it. may considered as part of the evidence against the parties concerned. 2. IO.; CONFESSION; AS EVIDENCE AGAINST THE ACCUSED MAKING THE CONFESSION; HEARSAY EVIDENCE AGAINST HIS CO-DEJ<~ENDANTS; EXCEPTIONS.While a confession is against him but not against his co-defend· t Section 39, Act 496. 2 Ledesma v. Municipality of l loilo, 49 Phil. 709. September 30, 1962 LAWYERS JOURNAL Page 277 ants to whom said confession is hearsay evidence, the rule, however, admits of certain exceptions. One of them is when a defendant, who made the confession, is called to testify ai;: a witness for his co-defendants, his confession then becomes competent evidence for the purpose of contradicting his testimony in behalf of his co-defendants (People vs. Manalo, 46 Phil. 573). This was what happened in this case because Emiterio Villanueva and Pedro Perea} adopted as part of their defense not only the testimony of Felix Jasmilona but also the statement given by him before the J ustice of t he Peace of Calamba on March 10, 1956. DE CISION This case began with the filing of an information chnriing the above defendants with the murder of Loreto Estacio, committed in tt.e municipality of Calamba, province of Laguna. After trial, the court of first instance held that their guilt had been proven beyond reasonable doubt; and there bei11g no circumstances modifying the conunlssion of the crime, each of the sa id accused was sentenced to "cadena perpetua", to indemnify jointly and severally the heirs of the victim in the sum of P6,000 without subsidiary imprisonment in case of insolvency, and to pay a proportionate part of the costs. · From such convictions the three defendants appealed to this Supreme Court, raising the usually basic question whether or not th(' evidence for the prosecution shows b!'yond reasonable d0ubt that all of them are guilty as charged. Appellants were convictea partly on the strength Qf the extrajudicial confession of the accused Felix Jasmilona which a ppears to be corroborated by circumstanlial evidence. Such extra-judicial confession written down by Corporal Villegas on February 6, 1956 in the presence of Lt. Carungcong, was signed and sworn to the next day before llustice of the Peace FC'Jix Angeles, and contains statements to the effect that Loreto Estacio was killed in the "taklab" (camarin) of Emiterio Villanueva, who had resented the filing of a criminal charge against him by Loreto Estacio; that Loreto was mauled and badly beaten on different parts of the body and when he was already unconsr.ious, he was stabbed in the abdomen; that the body of Loreto was then carried and later thrown into a marshy place in barrio Linga commonly called "tikiwan"; that the persons who took part in the killing were Emiterio Villanueva, one of his sons, Pedro Fer· cal, Elpidio Habacon and Felix Jasmilona; that it was the son of Emiterio who beat and mauled Loreto while Pedro Percal was the one who stabbed him; that Elpidio Ha bacon and Pedro Perea! were paid by Emiterio Villanueva the sum of P400 for their cooperation. x x x According to the lower court, the chain of circumstances which in connection with Jasmilona's confession, tended to establish the guiJt of the prisoners were the following: "1. In the afternoon of December 21, 1955, Emiterio Villanueva asasulted Loreto Estacio with fist blows on the face; "2. Loreto Estacio immediately filed a criminal complaint for slight physical injuries against Emiterio Villanu~va; "3. On December 22, 1955, Emiterio Villanueva asked Benito Mendoza to persuade Loreto Estacio to drop his complaint. Benito Mendoza, who was mar ried to a niece of Loreto Estacio, declined to intervene in the case, and so Emite1·io Villanueva left disgusted a nd stated that he would not stop until something untoward would happen to Loreto Estacio; "4. On December 23, 1955, the Justice of the Peace Court set the preliminary investi,;ation of the Criminal Case against Emiterio Vllanueva for January 3, 1956; "5. Patrolman Balder rama notified the accused the next day; "6. Late in th(' evening of December 26, 1955, Pedro Perea! asked Loreto to withdraw his complaint against Emitcrio Villanueva. When Loreto r efused, Pedro Pe!"Cal threatened him, saying 'something bad would happen'; "7. At about 5 a.m. on December 27, 1955, LoreOO Es· tacio left his house to check the water irrigating his Tice field. About this t ime, Benito Mendoza saw him between Emiterio Villanueva and Pedro Percal, the three walking single-file, passing in front of his store, coming from the direction of Loreto Estacio's house. "8. Between 5:30 arid 6 p.m., Enrique Fatiga saw Pedro Percal and Felix Jasmilona pa~sing his rice field, thE' two proceeding in the direction of the 'taklab' of Emiterio Villanueva about 200 meters away; "9. At about half past 7 in the evening of the same day, while Enrique Fatiga was pToceeding home he heard sounds coming from inside which seemed to be the gtoans of a person. He slowed down to find out what it was, but then he h!'ard the voice of a person inside the 'takleb' prodding another and saying - 'sulong Felix', 'sulong Pedro', followed by laughter. Enrique Fatiga then thought that those persons inside the 'taklab' were having some fun and so he did not give much thought to what he heard and hurried on his way home; "10. Loret.o Estacio did not return home on December 27, 1956 and so on tli.e following morning, his wife, Cresencia Pacana, began to look for him. Four days later on December 31, 1955 his cadaver was found floating on a marshy place called 'tikiv;an' in barrio Linga, Calamba, Laguna; "1 1. The dark stains on different parts of the 'tak!a'h' of Emiterio Villanueva proved to be of human blood; "12. When Dr. Sunico and his part:v ldt the 'taklab' nf Emiter io Villanueva to boar(l the \•(!hicle whnein they had traveled from Manila, the wifo of Emiterio Vilhmueva, who was with the group, suddenly grabbed a wooden pestle from her son. tht'n threw it into an irrigat;on canal and thereafter she tr ied to wash off the dark stain (b1ood) at one enC. thereof with the use of her hat\ds. Unon bein1t asked by Sergeant Vejosano for her susp:cious behaviour, Villanueva'!!' wife refused to answer and merely kept silent ; "13. Eight hematoma wounds (contusions) were found on the corpse, in addition to the stab wound on t he abdomen." (See pp. 16-19 of the decision of the lower court) Appellant lJasmilona assails the admissibility and credibility of his extra-Judicial confession on the ground that it was not made volunt::i.rily. He claims that he was punrhed in the belly, and on the neck by one Set. Ve;osano; that he was tak('n tn a swimmin1t pool in Los Baii.os. La(!Una where hP. waii .l!iVPn the "water trPatment"; that he was aga;n strnck on the stomach b} hi!: investi1tators and then when he still refused to Si2"n the Pxtrajudicial confession, he was threatened with bodily harm. Amado Camillas, a witness for the defense, stated in com-t that when l1e saw J asmilona alight from the jeep that carried him to the municipal jail, the latter was limping a little; that upon i11quiry he was told by Jasmilona that he was maltri:.:ated by his investigators. Dr. Fiorentino Elasique, also a witness for the defense, issued a medical certificate (Exh. "3") iohowing that there were contusions on both shoulders just below the neck of said accused. However, a prosecution witness, Dr. J uan 1\1. Cardena~, who conducted an examination on the body of appellant llasmilona on February 6, 1956 (i.e. one day after the dE-fense doctor performed his examination) said that he did not see any sign of external injuries or contusions on any pa,rt of Jasm1·loM'8 body; th~t he could not determine the cause of pain complain~d of by said accused in the lower auxiliary region, right side of the body. (t.s.n. pp. 4-5, Mar. 12, 1957.) A significant fact pointed out by the Government is that if appellant J asmilona had really been maltreated by the said inves· tigators, he would have complained to \Judge Angeles before whom Page 278 LA WYERS JOURNAL September 30, 1962 the extra-judicial confession was signed and sworn to. But h~ did not. Judge Angeles stated in cou1t that he himself read to Jasmilona the contents of the affidavit (extra-judicial confession) and has asked the latter whether or not, he was willing to sign the same and to swear to the truth of its contents. J nsmilona said yes, and willingly. Moreover, he also stated that when such extra-judicial confession was about to be read to the accused, for signature and oath, he (J udge Angeles) ordered the soldiers accompanying the prisoner to leave the room. Considering therefore the circumstances under which this extra-judicial confession was executed, we arc not inclined to dis· a~ree with the lower court on its finding that it was voluntarily made. The next question is whether or not said extra-judicial conf ession may serve as the basis for the conviction of appl!llant• Jasmilona, Villanueva and Perea!. It is urged that granting the confcssicn was admissil,>lc, appellant IJasmilona must be absolved because said affidavit contains exculpatory statements exonerating him from guilt. On this point, we say that courts need not believe the confession in its entirety. As to t-he other accused, it was alleg-:-dly error for 1he low<'r court to use the extra-judicial confession of Jasmilona against them. On this issue, the rule is that where the recitals in the cxtrajudicial confession of one of the conspirators are corroborated in its important details by other prooofs in the record, it m.'.ly be considered as part of the evidence against the parties concerned. In the case of U. S. vs. Reyes, et al. (I) we opined: "The truth of the incriminating statements of Miguela Sibug, Damaso Valencia's widow, in connection with each of the said three defendant, is proved by those made by the other witnesses for the prosecution, Lorenzo R0 yes, and by the confession, although extra--judicW.l, made by Faustino Mafiago himself in the municipality of Hagonoy to the lieutenant of the Constabulary, Cristobal Cerquella, and to the municipal president and a policeman of the said pueblo; and this confession is worthy of credence and is admissible against him, as it is likewise credible and admissible against his codefendants, Abdon de Leon and Severino Perez, his accu;:ation of their participation in the crime, ina!:'much as th(' confession is corroborated both by the testimony of Miguela Sibug herself and by that of Lorenzo Reyes and confirmed by other evidence related thereto and found in the record." This brings us to the query: Are the recitals in the extrajudicial confession and the other proofs sufficient to support cenviction? We arc satisfied that the trial judge made painstaking efforts to evaluate the, evidence of record. The circumstances it found to have indicated the guilt of the accused, are indeed substantiated. We do not need to recount them now. At this juncture, it may be added that we think the trial judge exercised sound judgment when it considered Jasmilona's confession against the other two defendants as an exception to the general rul" against its admission, for the following rc.'.lsons: "While a confession is against him but not against his codefendants to whom said confession is hearsay cvidenc(', t he rule, however, admits of certain exceptions. One of them is when a defendant, who made the confession, is called to testify as a witness for his co-defendants, his confession then becomes competent evidence for the purpose of contradicting his testimony in behalf of his co-defendants (People vs. Manalo, 46 Phil. 573). This was what happened in this case because Emiterio Villanueva and Pedro Perea! adopted as part of their defense not only the testimony of Felix Jasmilona (t) 32 Phil. 163, 173. but also the statement given by him before the Justice of the Peace of Calamba on March 10, 1956." 1t is urged that some of the prosecution witnesses were biased, because Enrique Fatiga was a dismissed it'nant of Emitel"io Villanueva, and Benito Mendoza was related by marriage to the deceased, (Mendoza's wife being his niece). Howevel", upon examining the testimony of such witnesses, this Court finds no compelling reason for disbelief. There is no tinge at all of exaggeration or improbability in their testimonies. Besides, th~ defen~e itself has shown that the differences between Fatiga and Villanueva had been settled amicably sometime in Or.tober, 1950, many years before this fatal incident, On the other hand, the defendants' alibi carrie3 no weight. Aside from the fact that it is not corroborated by others, it is definitely without sufficient strength in the fact of the assertit'm of witnesses who saw them at or nea:t· the scen1: of the crime en Dec. 27, 1955, Appellants ascribe error to the lower court in concluding that there was conspiracy among them. In support of their ussertion, they claim that accused Percal and J asmilona had no motive in kilting the deceased, Loreto Estacio; that it was only Emiterio Villanueva, who had been charged by the deceased in the J ustice of the Peace Court of · Calamba in the criminal complaint. who could have reason to kill. Although it is true that there is no direet proof of conspiracy among the accused, their acts, in the light of the recitals in the extra-judicial confession show that the killing of Loreto was planned among them and carr ied out accordingly. This confession, as stated, is supported and corroborated by competent evidence, The chain of circumstances, fitting well into the statements in the extra-judicial confession, is more than sufficient to establish conspiracy, as found by the trial court. Wherefore, the judgment of conviction must be upheld, and the sentence affirmed. The imprisonment however should be 1·eclusion perpetua, instead of caden.a perpetua. Costs against appellants, who shall be credited with one-half of the period of ' their preventive imprisonment, in accordance with Art. 29 of the Revised Penal Code. So ordered. Padilla, Baut'i.eta Angelo, Concepcion, Bwn·era, Paredes, Dizon, Regala. and Makalintal, JJ., concurred. x Sergio del Rosario, Petitioner, vs. People of the Phil., Respondent, C.R. No. L-16806, December 22, 1961, Concepcion, J. CRIMINAL LAW; USING FORGED PHILIPPINE TREASURY NOTES.-The possession of genuine treasury notes of the Philippines wherein any of "the figures, letters, word3 or signs contained" in which had been erased and/ or altered, with knowledge of such erasure and alteration, and with the intent to use such notes, as they were used by the accused and his codefendants, is punishable under Article 168, in relation to Article 169, subdivision (1), of {he Revised Penal Code (U.S. vs Gardner, 3 Phil., 398; U.S. Solito, 36 Phil., 785). P. lit. Stnart del Rosario, for petit:oncr. The Solicitor General, for respondent. D EC I S IO N Accused of counterfeiting Philippine treasury notes, Sergio de! Rosario, Alfonso Araneta and Benedicto Ci.el Pilar were convicted by the Court of First Instance of Davao of illegal posses· sion of said forged treasury notes and sentenced to an indeterminate penalty ranging from 8 years and 1 day to 10 yr:ars and 1 day of prision :mayor, and to pay a fine of P5,000, without subsidiary imprisonment in case of insolvency, as well as a proportionate part of the costs. On appeal, the judgment was affirmed (Continued on page 287') September 30, 1962 LAWYERS JOURNAL Page 279 COURT OF FIRST INSTANCE DECISION REPUBLIC OF THE PHILIPPINES COURT OF FIRST I NSTANCE OF PANGASINAN T hird J udicial District JESUS P. MORFE Plaintiff CIVIL C.o\.SE NO. 14166 A.MELITO R. MUTUC, as Executive Secretary and JOSE W, DIOKNO, as Secretary of J ustice, Defend.an.ts, x - x - - - - - - x DEC I S I ON Plaintiff, attacking the const itutionality of Sec. 7 of Republic Act No. 3019, filed a complant for decla ratory relief where the defendants are the Executive Secretory and the Secretary 'of J ustice, Honorable Amelitu R. Mutuc and Honorable J ose W. Diokno, resJlCctively. In support of his contention that said sect ion of said Act is unconstitutional, plaintiff enumerates the fol\ow;ng as basis for its unconst itutionality: "(a) Said provision of law is an insult to the personal integrity and official dignity of the plaintiff in particular, and of officers of t his Republic similarly situated, for it is premised on the unwarranted and derogatory assumption th:-.t officers and employees of this Republic arc corrupt at heart and, unless restrained by the necessity of J'eriodically baringtheir financial condition, incomes, expenses, etc., they cannot be trusted to desist from committing t he corrupt practi~es defined and punished in Rep. Act No. 3019 and in 8ther law:;; of this Republic;. "(b) It requires sworn information on the pure[~, personal and/ or private interests or concerns of the plaintiff, such as the amount of his personal and family expenses, cash on hand, and bank balances, and thereby impairs plaintiff's normal and legitimate enjoyment of life and liberty without due process of law. " (c) It amounts to a fishing expedition for non-cxist!ng incriminat ing evidence; serves no useful purpose; and wittingly or unwittingly attempts to violate the constitutional prohibition against making the citizens of this Republic testify against themselves. "(d) It is an indirect way of making an unreasonable search of the money, properties, effects, books, and J'ecords of the plaintiff be.fore the latter forfeits his right to complete privacy by actual commission of a public offense or the means used in its commission, thereby infringing the existing constitutional guaranty against unreasonable searches and sci"(e) It offends t he aforementioned constitutional guarantees which have been held to serve a dual purpose : ( 1) Proteetion of the privacy of the individual, i.e., his right to be let alone; and (2) Protectiun of the individual against compulsory production of evidence to be used against himself (Davis v. United States, 238 U.S. 582, 90 L. ed. 1453, 68 S. Ct. 1256). "(f) In relation to the last paragraph of Sec. 9 of Rep. Act No. 3019, it impairs the security of tenure of office of members of our judiciary by adding as a ground for dismissal from office the failure to file said oppressive and unnecessary statement of financial condition, assets, income and liabilities. "(g) There is no need for the said required sworn statement as the income tax law and the tax census law alsa require statements which c.an serve to determine whether an officer or employee in this Republic has enriched himself out of proportion to his reported incomes." The defendants, answering thru the Solicitor General, assistant Solicitor General and Solicitor, sustain the constitutionality cf said Sec. 7 of Republic Act No. 3019 by setting UJ> special and nffirmative defenses a s follows: " 1. That when n gover nment .,fJicial. like pla intiff, arccpts a pubPc position, he is deemed to have voluntarily assumed the obligation to give informat ion about his personal affairs, not only at the t ime of his assumption of office but during the time he continues to discharge public trust. The private life of an emnloyee cannot be segregated from his nublie life (Nera vs. Garcia, G.R. No. L-13169, Jan. 30, 1960). "A government official undertakes obli.1?ations of frankness, candor and cooperation in answering inquiries made of him regarding his fitness to remain in the public service. He cannot. for example, hide behind the "no self-incrimination" clause in refusing to answer t.he question whether he had been a communist partr member (Bailan vs. Board of Educat ;on of Philadelphia, 367 US 1414). " The State can inquire of its emplovees matters that may prove relevant to their fitness and suitnbility for the public service <Gardner vs. Board of Publ!c Works, 341 US 716, 95 L. ed. 1317; 71 Set. 909). "The matters sought to be elicited in the sworn statements in qurstion are relevant to one's integrity and, hence, to his continued fitness to remain in office. "2. That the constitutionality of a law cannot be attacked on the bare claim that it is an insult to the personal integrity and official dignity of plaintiff and other pub!ic officers and that it casts a doubt on their integrity. An Act, lawful in all other respects, cannot be nullified just because it touches the tender feelings or sensibilities of the citizens. "Courts cannot invalidate statutes just because they arc harsh (State vs. Swagerty, 203 M. 617, 102 S. W. 483, 10 L.R.A. (N.S.) 601; Shevlin-Carpenter Co. US Minnesota 218 U.S. 57, 54 L. ed. 930; 305 Set. 663; Hunter v. Pittsburgh, 207 US 161, 52 L.ed. 151, 28 Set. 40) , or may be mischievous in their effects and burdensome on the people (U.S. ex rel. Atty. Gen. vs. Delaware & H. Co .. 213 US 366, 53 L.ed. 836, 27 Set 527) as with respect to such defects the remedy of petitioner is a n appeal to Congress, not to the courts. "3. That the law is not based on nor does it create the presumption that public servants arc lacking in integrity but lmt assuming arguentlo that there is in reality such presumption, the same can be upheld. Prc11umptions shifting to :\ party the burden of persuasion or the burden of going forward are valid (Hawes vs. Georgia, 258 US 1 (1922) ; Casey vs. United States, 276 US 413 (1928). Thus in Shore vs. United States (56 F (2d) 490; App. D. C. 1932) the Court of Appeals of the District of Columbia upheld a section of the Tariff Act which made the possession of foreign whiskey presumptive of unlawful importation (See also People vs. Bullock, 123 Cal. pp. 299, 11 Pac (2d) 44.1 (1932). " 4. That the privilege against self-incriminat ion covers only statements made in courts under process as a witness (3 Wigmore, Evidence, ser. 2266; Ex ·Partc Kneedler, 147 S. W. 983) . Assuming that the privilege can be extended to Page 280 LAWYERS JOURNAL September 30, 1962 proceedings out of court, still it cannot cover the pcrf,..1·m· ancc of acts which, by mf'r(' possibility, no matter how remote, may incriminate him. Otherwise, the Jaw requiring display of . licO?nsc plat.cs in plain sight a nd under illumination at night, would be invalid because the license plate would be a means in the identification of the owner !n case of accident. But this bw has been upheld in the case of People vs. Sl"hneider, 13!) l\Iich. G73. Statutes 1·equiri11g druggists to make weekly sworn st~1iements of thE:ir sales of liquor has ~en upheld even if these records can be used in their pro· sccutions for illegal sales (State vs. Henwood, 123 Mich. 317; State vs. Davis, 69 S. E. 639 (\V. Va.); State ex ·1·el. M>:· C'lo\·ey vs. Donovan, 10 N. D. 203; State vs. Davies, 108 No. CGG) . .. 5. That questi01H; whether the law will serve nny "use· ful 1 1urposc" or not (par. 5 (c ) comprnint ); whether there is no necessity of periodl<:ally baring financial condition, in· comes and expenses of public officials to eradicate corrnption in the government (par. 5(a) complamt) ; and wh~lher then' is no need for the sworrt statemE:nt in question because the income tax law and tax census law require the same informa· tion (par. 5(g) complaint) - a re matters within the exdusi,•e prerogative of the legislature. The court~ cannt)t inquire into the wisdom, or lack of it, of a piece of legrslation. Le· gislative acts may be judicially assailed only from the standpoint of power granted by the Constitution. "6. That the law docs not violate the constitutional' right against unreasonable searches and seizure (par. 5(d), (e ) complaint) . ··The constitutional gua rantees against unreasonable searches and seizures do not intel'fere with investiga tion into matters of a public or quasi.public nature or which the public has an interest (Sec discussion in 29 LRA 81!)). It ha:< also been held that orders requi:-ing common caniers lo furnish information as to their operations do not amount to ~mr<'a.sn•1· able search and seiz1 1re (Jsbrandlsen.l\liller Co. vs. U.S., 300 US 139, 81 ~ ed. 562, 57 Set ·10). .. 7. That petitioner is estopped from questioning the validny of section 7 of Rep. Act No. :;019 after his udmiss•on that he believes the same to be a '"reasonable requirem~nt for em1 >loyment in a public office" upon assumption of office ~u~d after he had filed the sworn stat~ment 1·cquircd by said section in compliance with the law t_par. 3, "Ca11.~e ."lf Ac· lion'', p. 3, complaint). .. 8. That the sworn statement required under Sec. i , Rep. Act 3019 is also required under the Income 'fax Law and Tax Census Law and yet plaintiff, instead of questioning the validity of the aforementioned laws, apparently ac· ccpts their validity (par. 5(g) complaint). "9. T hat the provision of law in question cannot he at· tacked on the ground that it impail':i plaintiff's normal and legitimate enjoyment of his life and liberty because said provision merely seeks to adopt a reasonable measure of in. suring the interest of genera l welfare in honest and clean public service and is therefore a legitimate exercise of police f'OWC'r." After the defendants have filed their answer durlng the re· glementary period, plaintiff filed a motion for judgment on the 1 >leadings on February 27, 1962, and to said motion for judgment on t.he pleadings, the defendants did not file any opposition. F or which reason, this Court, upon motion of the plaintiff, gave to each of the parties in this case a period of thirty (30) days from March 10, 1062, within which to file their respective memoran· dum. Plaintiff, in compliance with the aforementioned order of the Court, filed his memorandum, but the defendants' counsel submitted the case without memorandum as, according to them, their answer already contains a full discussion of the authority in sup· po1-t of their side. It must be stated at the beginning that the plaintiff does not seek to declare the nullity of the whole of Sec. 7 of Republic Act No. 3019, but only that portion thereof which r equires periodical submittal of sworn statements of financial conditio;1s, assets and liabilities of an official or employee of this Republic after such official or employee had once submitted such a sworn statement upon assuming the duties of his office. F or clarity's sake, Sec. 7 of Republic Act No. 3019. provides as follows : "Statement of assets anti liabilit1~s. Every public officer, within thirty days aftC'r the approval of this Act or after assuming office, and within the month of J anuary of every othe!· year thereafter, as well as upon the expirntion of his term of office, or upon his resignatiun or separation from office, shall prepare and file with the office of the corres· ponding Dcp:ntnH:nt Head, or in the case of a Head of De-·· partment or chief of an independent office, with the Office of the President, 01· in the case of members of the Congress and the officials and employees thCl'eof, with the Office of the Seci·etary of the conesponding House, a trU{! deta iled and SW Ol'n statement of assets and liabilities, including a statement of the amounts and sources of his income, the amount of his personal Hild family expenses and the amount of_ in· come taxes paid for the next prC'ccdillg calendar year: P 1·011 ided, That public officers assuming office less t han twP. months before the end of I.he calen<lar ycat", may filC' their first stutcments in the following months of J a1rnary." As already mentioned above, plaintiff questions the consti· tutionality of said Sec. 7 of Republic Act No. 3019 vn several grounds. The defendants sustain the constitutionality of said portion of the above·mcntioned section on the principal ground of general welfare. In other words, the said section was enacted under the police power of the State. Vei·ily, police power is one of the three fundamental preroga. tives of the State and any private right must be sac1·ificed in th~ exercise of the same. But, it must also be admitted that the exercise of said power must be reasonable and, if possible, should not infringe upon the constitutional and inalienable rights of a citizen of a free and democratic country. T his Couit considers the filing of a sworn statement of assets and liabilities after an official or cmi>loyec had already filed statement of assets and liabilities after assumption of office to be a violation of the constitutional r ights of a citizen not to testify against himself. While the def('n<lunts maintain that the immunity from self-incrimination only extends to a citizen testifying in an investigation or t rial, yet, this Court believes th!lt the purpose of sccu1·1ng the sworn staten1ent of asset;; and lia· bilities. is to prove lnte1· on in a jurlicial proceeding th.at the offi· cial or employee has been guilty of graft and corruption, or has amassed a fortune very much in e:xecss of his assets or of his salary during the time he had been in office. The required statement of assets and liabilities constitutes advanced testimony extracted from the accused to be used against him late1 · on. Fo1", it cannot be denied that the cnly purpose iu requiring a sworn statement of assets and llabilitles after one has already been filed after assumpt ion in office by an official 01· employee is to determine whether he can be prosecuted under the graft a nd corruption act. The section in question renders an official or employee defenseless when confronted wlth such sworn statement of assets and liabilities ; it facilitate~ the conviction of a n accused, and is just a sword of Damocles hanging over h is hea<I. The officials and employees of our government suffer by said section a continuous nightmare, for although they h:-.ve br~n l1onest in their statc:nent of a ssets and liabilities, yet, th.;oy might have committed an enor of computation, or might ha\>e failC'd to ui1intentionally mention an asset. · September 30, 1962 LAWYERS JOURNAL Page 281 That freedom {rom se\C-incrimination does not only extend lo oral testimony in Couit O!' in an investigation has been sustained in various cases. Thus, in State of Michigan ex rel. S. J\foll v. Jacob C. Densign, et al., 238 J\fich. 39; 213 NW ·'48 ; 1 ~2 A.L.R. 136, 141. ·'The authorities are quite uniform i11 holding that where a bill is filed solely for a discovery, and the facts upon which the discovery is sought arc such as would tend to incriminatr the de(endant, the bill cannot be maintained at all, and should be dismissed on demurrer. As equity follows the common law in respect to the privilege of a witness to reCuse to testify (see 28 R.C.L.. 426), it would certainly seem that considering that the nature of a pure bill of discovery is to obtain evidence to be used in some other suit, the defendant should, at least, be permitted to asse1t a privilege against being 1 ·equircd to answer. "This privilege against self-incrimination would pe reduced to a hoJ\ow mockery, if its exNcise could b1~ taken as equivalent to either a confession of guilt 01· a conclusive presumption fo perjury. The privilege serves to protect the 1111wce11f who otherwise would be ensnared by ambiguous circumstances." (Slochower v. Board of H igher E ducati011, 350 U .. S. 551, 557, 558, 100 L. ed. 700, 76 S. Ct. G37, emphasis supplied). That the police power of the St!lte cannot be invoked to violate a fundamental, constitutional and pe1·sonal right of a citizen, more espe-cially so when there is no purpose in the enactment of a Jaw by virtue of said pe>lice powe1· has also been Sl1Stainl'd in this jurisdiction as well as in the States. " In accord with the rule laid <low" in the case of Lawton v. Steele (152 U .. S. 132-134), quoted at some length in fhe in the opinion in the case of U. S. v. Toribio, to justify the State in the e'xercist: of the police puwers on behalf of the public, it must appear: "lo~irsl, that the interests of the public irenet'ally, a-: distinguished from those of a particuln class, 1·equire such interference; and, second, that the means are reasonably necessary fol' the nccomplishment of the purpose, and not unduly oppressive upon individuals. The legislators may not, under the guise of pl'otecting the public interests, arbitrarily interfere with private business, or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a prope1· exercise of its police powers is not final or conclusive, but is imbject to the supervision of th.e courts." (Fahie v. City of Manila, 21 Phi!. 48G, 490). '"T he Legislature's determination that its acts are a proper t:xercise of its police power is always subject to the scrutiny of the courts and legislation will not be sustained if its sole excuse is the exercise of the police power when such power is abused or where there is no relation between the purported basis for the legislation and the enactment. Stated differently, the Legislature cannot use the police power as a subterfuge to do something that it otherwise could not do in the infringement •Of private interests or the restraint of private rights." (Midwest Beverage Co. v. Gates, 61 Fed. Suppl. G88, page 691). "The r.xe1 ·cise of the police powei· is under the control of the principles of constitutional law, and the police power must at al! times be exercised with scrupulou3 regard for constitutional guaranteed rights. It ha!:> been stated that con· slitutional guarantees stand in equal strength and force with the police power, and are not suoordinate to it," (State v. Gleason, 227 P.2nd 530; Hertz Drivurself Stations v. Siggins, 58 A.2d 4G4, 359 P a. 25, 7 A.L.R. 2d 438; State v. Paille.' D A.2<l 663, 90 N. H. 347). "Notwithstanding pe1·sonal rights al'C subject to the police power, these rights arc not to be totally annihilated by the police power, or interfered with to a great~r extent than reasonably necessary, taking intC1 account the re:d object to be accomplished. The police power must at all times be exercised with scrupulous regard for private r ights guarnnteed by t he constitution, and even then only in tht> public interest, and not for the benefit of a private company of individual. Thus, the police power may not be resor ted to as a cloak for the invasion of personal rights guarantl'ed b~· the various constitutions, a nd may not be exercised capri· ciously or unrea~onably; and a statute or ordinar.cc which deprives one of his individual rights cannot be sustained under the police power when the regulation does not reaw nab!y come within the ~cope of th'! police p<>wcr. " It ii:; apparent from the o.bovc that eac .. h case must br. determined on i!s individual facts, and t hat prec:rntionary measures must be used to guard agninst two <lang-ers, first, lest the civil libHties guaranteed under out· Bill cf R ightf; be unnecessarily invaded, and second, lest, using the Bill of Rights as a cloak, an individual is allowed to commit a nui;;. ancc or wo1·se against the public." (16 C.J.S., pp. 083-984). Aµparently, ther~ is a conflict bBtween the purported exercise of the police power of the State and the constitutional r :ght to privacy, the right to be let nlone (Davis v. United States, 32& U .. S. 582), the "clear and present dangcl' rule" should be applied. In other words, the test should be whether or not the p1·0vision of our Anti-Graft and Corrupt Practices Ai:t, requiring perioclical baring of assets and liabilities of government officials and employees, is so necessary to the ge:ieral welfare that to do away with said requirement would "likely produce a clear and present danger" to the peace and liberties of the people composing the community. To the m ind of the Court, it is ubvious that the answer must be in the negative. With the above discussion of the issues involved in this case, the Court finds it unnecessary to go to the other reasons and legal points advanced by the contending parties in supJ)ort of their stand. IN VIEW OF THE FOREGOING, decision is hereby rendered, declaring unconstitut ional, null and void Section 7, Republic Act No. 3019, in so far as it requires periodical submittal of sworn statements of financial conditions, assets and liabilities_ of an official or employee of the government after he had once submitted such a sworn statement upon assuming office; without co.!:ts. SO ORDERED. Done at Lingayen, Pangasinan, this 19tH day of July, 1962. ELOY B. BELLO Judge Page 282 LA WYERS JOURNAL September 30, 1962 1962 BAR EXAMINATION QUESTIONS (Contim1atio11) POLITICAL LAW I. (a) What ai·c the salient features and characterist ics of our Constitution that give us a government republican in form? (h) What do you understand by lh<' principle of "limited government" as one of the basic principles of constitutional law in the Philippines? (c) Describe briefly the procedun> of :imcnding the Philippine Constitution. 11. (a) Discuss bi·iefly the limitations on the power~ of Congress. (b) Under the Constitution as amended, what am the bills which must originate exclusively in tlie House of Representatives? (c) In the Appropriation Act, Congress provides that no government official or employee shall be permitted to teach more than six hours a week. Is this constitutional? Reasons. (d) Name the instances when a bill or measure duly passed by Congress and submitted to the President for his ap1>roval may become a law without his signature (the President's). III. (a) Pedro Santos who had previously served twelve year.'i in Muntinglupa Prison for swindling is elected unopposed in a congressional district. Under the Constitution, not being a qualified elector, he cannot be a legislator. When informed of this fact, may the House to which he is chosen 11wtu propio postJJOne his induCtion? May it suspend, investigate and thereafter exclude him? Reasons. (b) In case the proper Electoral Tribunal decidi::s that a protested legislator has the necessary qualifications altho in fact he does not have them, may the courts review t he said finding on appeal the1·eto? Reason. (e) On the basis of the repo1t of the Commission on Elections that by reason of certain specified acts of terrorism and violence in certain province;; the voting thercdn did not reflect the true and free expression of the popular will, the Senate, in the course of its session, approved a resolution ordering that pending the termination of the protest lodged against their election with the Electoral Tl'ibunal of the Senate based on said terrorism, the administration of oaths seating thre<! senators be deferred. The senators concerned filed in the Supreme Court a petition for a writ of preliminary injunction against their colleagues, praying for an orde1· annulling the resolution and compelling them to pern1it them to occupy their seats. and to exercise ther senatorial prerogatives. In their pleadings, the respondents alleged that the Court had no jurisdiction over the case and asserted the validity of the resolution. Decide giving JV. (a) The Government grants to a company an exclusive franchise to operate a toll b1·idgc across a rive!'. Subsequently, it institutes condem11ation pl'oceedings for the acquisition of the toll bridge in question for the purpose of converting it into a free bridge. The cor.1pany claims that the obligation of its franchise contract would be impaired in violation of the Constitution. Decide giving reasons. (b) State the meaning of foe constitutional provision "No person shall be denied the equal protection of the laws." (c) P ursuant to Republic A ct No. 37, which grants 1we· ference to Filipino citizens in the lease of public market stalls, the Secretary of Finance issued an order declaring all stalls or booths in all public markets as vacated by their occupants a nd their leases terminated on J anuary 1, 19.i?, and that thenceforth al! leases of muket stalls shall be awarded to Filipino citizens. The constitutionality of t he Act in question is attacked as a denial of equa l p rotection to the ChiDecide giving your reasons. V. (a) In what cases, if any, may the courts review or control the cxerci.se of authority of making a1>Pointments vested in the exPcutive dcpal'tmcnt? (b) What a re the limitations on the. power <lf the Pr'!sident to remove public officer,;'! (c) X was the City Engineer of Baguio in 1951. On J u11P 20, l 9GI, the P1·esident appointed Y ad i11terim City Engineer :->f Baguio to take the place of X. X re· fused to vacate his post claiming that he was being removed without cause, and filed a petition for a w?·it of quo wcwmnlo against Y. Decide the case giving your reasons. VI. (a) You arc the representative from the Jone Congressional district of Bataan and you are interested in the conversion of a barrio of the town of Salanga into an independent municipality. Under existing laws, what are the courses of actio11 open to you to accomplish your desire? (b) Explain briefly the meaning of; "municipal corporntions present a dual aspect and perform powers and functions in a dual capacity." (c) Before the cession of the Philippine Islands to the United States, Juan Santos was a ci-cditor of the City of Manila. After said City was incorporated under a new charter, Santos brought a n action against the City of Manila to recover the sum due him. As a matt.er of defense it was claimed that the old City of Manila, which incurred the debt, had been dissolved by the change of sovereignty and that by the new in· col'porntion of the City of Manila the liability of the old city had already been extinguished. Decide givrng your i·easons. VII. (a) Unde1· what condjtions may the Pl'csident of the Philippines deport aliens and what is the basis of his authority to do so? (b) What is the composition of the Deportation Board as at present organized and what a re its functions? (c) An alien has been ordered deported by the President, having found, after due investigation by the Depo11ation Board, an undesirable alien. Not being satisfied with the decision of the P resident, he institutes an action petitioning the Supreme Court to review his case, alleging that the evidence adduced at the investigation and upon which the President based his decision was irisufficient to warrant his depoltation. Decide giving VIII. (a) Under the Constitution, who is n1.1thol'ized to judge all contests relating to the election, returns und qualificaSeptem~r 30, 1962 LAWYERS JOURNAL Page 283 tions or l1\embers of Congress? What is its composition? (b) What is the limitation, if any, on the power of Congress to punish private individuals for contempt? Explain briefly you1· answer. (c) One A assaulted Representative B on January 30, 1960. The House of Representatives of which Representative B was a member adopted a resolution on February 10, 1960, requiring the Speaker to ord1:r the arrest of A to be confined in Muntinglupa Prison for twenty-four hours. The House adjourned that 10ession on the 19th of May, 196-0, without the order of arrest having be('n sened on A. A confirmatory resolution was approved by the House on J anuary 31: 1961, <lui·ing the regular session of the Legislature. Shor1ly thereafter, a new wanant of arrest was issued by the Speaker of the House of Repri!Sentatives, and A was taken into custody by a Constabulary officer. A petitioned for a writ of Habea:.; Corp1u;. Deci.de giving reasons. IX. (a) The Constitution provides that the Congress may authorize upon payment of just compensation, the "expropl'iation of lands to be sub-divided mto small lots and conveyed at cost to individuals". ls this not a violation of one of the constitutional limitations on the exercise of the power of eminent domain, namely, that private property taken shall be for public use? Reasons. . (b) In ihe exercise of the !)OW!!!' of eminent domain, may the state appropriate contrncts in spite of the provison of the Constitution that "no luw impairing the obligation of contracts shall be enacted"? Reasons. (c) For the extension of the Dewey Boulevard it was neccs· sary to take over 1/ 5 of the land belonging to B. Before the extension thereof, the market value vf the entir(' land was Pl000.00. As a result of the improvem~nt, the remaining 4/ 5 has now a market value of 1110,000.00. Jn view hereof the government contends that there 1s no more obligation to pay for the land appropriated. Decide giving reasons. X. (a) Differentiate between the power exercised by the President over the executive departments and the bureaus or offices of the National Government from that exercised by him over the local governments. In your opinion, which is more effective - that exercised by him over the departments and bureaus or offices of the National Government or that over the local governments? Why? (b) The Municipal Council of Villasis enters into a contract with Juan Sison whereby the latter is g ranted the lease of a fishpond for a period of two years in consideration of the sum of five thousand pesos. After one year, the Municipal Council rescinds the contract without any sufficient justification and awards the fishpond to Pedro Santos for a similar period and for the same amount. Sison now hires you to handle the case for him. As counsel, do you think he has a cause of action for damages? If so, against whom and why? Reasons. CRIMINAL LAW I. (a) What are the PENAL CODES enacted for operation in the Philippines? Give the respective YEARS in which they were made effective. (b) Before or after the promulgation of Act 3815 (Revised Penal Code), were any project or projects ever prepared and submitted to Congress or governmental authorities amending the SYSTEM of penology of the Philippines? If so, enumerate them chronologically, giving the names of their respective authors. IL "A", a Consul of the Philippines stationed in X-place, in the exercise of his official functions as such, while in his place of assignment and for the consideration cf P10,000 prepared va1·ious documents in favor of "B" wherein he knowingly made untruthful statements in the nanation of facts and in connection therewith he issued "B" the COITesponding VISA authol'izing "B'' to enter Philippine soi! to which "B.' was not entitled : (a) Has "A" committed any crime defined and punished in the Revised Penal Code? If so, lmme it; If not, explain your answer. (b) Can "A" be prosecuted in the Philippines fo1· said crime? Why? l!I. (a) Explain the aggravating circumstance that the crime was committed by a band. (b) W.hat shall be the nature or extent of the disguise necessary to consider its attendance as an aggmvating ('i1·· cumstance? (c) Article 14, paragraph 6, of the Revised Penal Code men~ tions 3 aggravating circumstances, i.(·., night time. ~n inhabited place and that the crime be committed bv a band. Are ALL these 3 circumstances when atten<iing the commission of a crime to be considered as only one or as 3 different and separate from one anothc!'? Why? IV. (a) Can the crime of rebellion be com11lexed with other common crimes? Why? (b) In ~960, Juliet committed 6 ('l'imes of es~afa to the damage of the respective offended patties in the sum of Pl,000 in each case. She was in the same year proseeuted for all the G cases: 2 in the Couit of First In stance of l\tanila, 2 in Quezon City, 1 in Pasar City and the last one in Caloocan City. She was convicted afte1· hearing in all the 6 cases. I n the imposition of th(' corresponding penalties: (a) would she be entilled to the benefits of lhe thl'eefold-lcngth-of-timc rule provided in Rule 70, last paragraph, of the Revised Penal Code as amended by Comnlt)nwealth Act No. 217, Section 2? Jn the affii·mative case, how could that rule be applied to her? V. One morning, Hilarion went to the house of Dionisio. and nnd there had an altercation with him over ce1·t:1in deliveries of tobacco leaves which the latter did not want to yield. E11raged, Hilarion left saying that he was to come back at noon, which he did, armed with a paltik and a bolo, and at a distance of 30 feet from the house, called Dionisio to 'come down'. As the latter l'efused, Hilarion to compet Dionisio to come down, set fire to Dionisio's hou~e- Naturally, Dionisio fled before the house was cl('stroyed. Is Hilarion liable for the crime of arson provided in Art. 221, No. 1, of the Revised Penal Code for having set fil'c to a dwelling house knowing it to he occupied by c'lle or more persons at the time of the fire? Explain yout· answ'.!r. VI. A, B, C, D, E and F conspired to commit the crime of r r11'be1·y with homicide in the house of the ~pouses Y and 'l.. residing in San J uan,· Rizal. F, a ~ervant o( said spousez became nfraid upon learning that the conspirators inte!1Ced also to kill his master and informed them of lhe proposed crime. Said spouses sought then the protection of the NBI and the Constabulary, so that when on August 1, 1962, the malefactors went to the house of said spouses to con~ summate their intended felony and were in the act of oarrying the spouses' automobile away from the garage, they were halted by the government forces whereupon a gun hattlc ensued with the 1·esult that F, the spouse-;;' servant. and C, one of the malefactors, we1·~ killed. Did the surviving malefac«irs commit the composite or SJl('Cial crim0 of robbery with homicide notwithstanding the foct thal one of the pC!rsons killed had participated in the conspiracy and the other was one of t.hc malefacto1·s killed by the government forces ? Explain your Page 284 LAWYERS JOURNAL September 30, 1962 VII. (a} What do you know about the so-called impossible crimt's? Do the pe1 ·petrators thereof incur uny criminal li:ibility under the pl'ovisions of the Revised Penal Cor!e? Why? (b) I n the affirmati\·e case, give an cxnmple of a fclC111ious act punished by the Penal Code that turns out to be an impossible crime. In the negative case, explain briefly why the perpetrator vf a so-called impossible crime does not incur any criminal liability. \'III. Jn January, 1959, Romeo was prosecuted and convicted in the Court of First Instance of Manila of 3 crimes of th~ft fol' which he was sentenced by reason of the value of the properties stolen to the following penalties of prision correccioual: l'G,200 fine to 3 years, G months and 20 days; l'l,000 and P500 fine to 1 year, 8 months and 21 days in each case. Romeo immediately commenced to serve these )lenahies in i\luntinglupa. Jn 1960, while serving s~ntenec, he escaped therefrom and went to Lingaye11, Pangasin:rn, where he also committed IO crimes of ('Stafa, each in the sum of J>I,0-00, for all whi~h crimes, he again was prosecuted and convicted after hearing in May, 1961. Under these eircumstanC'es, can the penalties imposed 1o Rome-o, for the crimes committed before his escape from l\tuntinglupa, affect the imposition and service cf the penalties for which hC' was sentenced for the second group of crimes undf'r the threefold-length-of-time rule prescribed in Article 70, last para~raph, of the Revised Penal Code, as amended by Commonwealth Act 217, section 2? · I X. X-newspaper of general circulation in the Philippines, published in its issue of August I , 1962, a libelous a1·ticle accusing A, B and C of having acted in confederation to smuggle as they did smuggle into the Philippines, several items of merchandise worth PI,000,000. A resides in Manila; B in Quezon City : and C in Polo, Bulacan. Under these facts, may the criminal liability of the author of that libel be divided into 3 distinct and separate offenses so that said author might be prosecuted and convicted of 3 crimes O r libel? Expla~n your answer. :X. (a) A, B, C and D, without any right whatsoever squatted on a piece of land in the Cit y of Manila, the property of z. Inasmuch as ejectment prnceedings would take quite a very long time to produce results, if evt>r successful, can the Viscal of Manila, upon complaint of Z, charge A, B, C and D with the crime of coercion or unjust vexation which, though light felcnies, covered by Article 287, last paragraph, of the Revised Penal Code, would, upon conviction of the culprits, bring about their immediate ejection from the premises? Express your opinion giving your reasons therefor. (b) Hogelio was prosecuted for murder. After hearing, he was found guilty of the crime charged attended by the mitigating Circumstance of the offender having voluntarily surrendered himself to a person in authority or his agents. He was, t herefore, sentenced, among oth('rs, to the principal penalty provided for murder in its minimum· degree, that is, to 17 years, 4 months and 1 day of rechtsio1t temporal. May the provisions of Acts 4103 and 4225, known as the indeterminate sentence law be applied in this case? Explain your anREMEDIAL LAW TO T HE EXAM IN EE: Whl'l'e you are given a problem, first give your answer and then your reasoning. I. A11tonio was run over by a jeepney driven by Cirilo but owned by Baldomero and he suffered serious physical in· juries as a result; in due t ime, A11tonio filed a civil action fo1· damages against Bu.ldotlb'11'o in the Justice of the Peace Court and immediately secured a writ of attachment upon Bal<lomero'B properties which was levied upon a parcel of unregistered land owned by Baldomero; trial was held and Antonio won in the Justice of the Peace but Baldomero appea led. (a) If pending t rial in the Cou1-t of Flrst Instance, A nto11io died whe1 ·eupon, Baldomero moved to dismiss but Antonio~s heirs oppose the motion, how wonld you rule on the motion? (b) If pending trial in the Court of First Instance, it was flaldcmiuo who died ana his heirs therefore move to dismiss but A ntonio opposes the motion, how would you mle on said motion? I I. Dionisio filed an action against Eriberto but when the Sheriff came to Eriberto's house, to serve summons, it happened that E riberto was away having gone to Mindauao on business and the Sheriff only 1·eached Eriberto's wife who received the summons for him; now Eriberto did not return any more because he died in Mindanao, 1 day before service of summons upon his wife here in Luzon but news of his death came to his wife much later and Dionisio was able to secure a default jmigment i11 the action and after that a writ of execution, but when this was about to be levied upon Eribe;-to's properties, his wife liaving a lready learned of Eriberto's death, consulted an attorney who filed a motion to annul the execution and the default judgment, but beca:ise one year had already passed since the entry of the judgment when the wife came to know of E riberto's cleath so that the motion was filed more than one yea1· after the entry of said judgment , therefore, Dionisio opposed t he motion alleging it was too la te, because according to him, lack of jurisdiction over the person of Eriberto should have been availed of under Ru!~ 8 and the period fot' this had already passed; in any case, the pcriod prescribed in Rule 38 on relief from judgment had also already passed. How do you decide? I ll. Felix leased l1is house to G:·eg0rio ; Gregorio failed to pay the 1·entals due; Felix sent him a letter of demand and a threat to sue him on unlawful detainer should he not make 1>ayment within IO days from notice; Gi·egorio received the letter but did not pay nor vacate; instead, Gregorio filed an action against Felix in the Court of F irst InstanCC' for specific performance, alleging that t he rental agreed lJpon was much lower than that demanded and that he, Gregorio, wa s willing to pay the correct amount and therefore, he cleposited the amount in the Court of First Instance a nd asked that Felix be ordered to receive them and to permit him, Gregorio, to continue in possession as lessee. Felix having received summons, he filed an answer alleging that the rental he had demanded was the conect one. The case was tried in the Court of First Instance and decision was rendered for Felix, dismissing the case. After judgment had become final, Felix presented his own action, for unlawful detainer, against G1·egorio, but Gregorio, upon receipt of the summons in this case, n(Jw filed a motion to dismiss on the ground that this was a suit on exactly the same cause of action betw~n them and that since Felix foJ'got to secure the correct remedy in the first case by filing his necessary counterclaim for unlawful detainer, the judgment in t he first case already ba rred him from instituting the second action. Decide the motion. JV. Juan sues Leon on a sum of money for b1·each of contract; but before trial, ~uan goes to Tokyo on business; he is there when his attorney receives notice of t l'ial; therefore the attorney at once serves notice upon Leon's attorney in Manila for t he taking of Juan's deposition before the Philippine consul in Tokyo upon oral examination, on a definite time and place, before the scheduled trial in Manila; Leon's September 30, 1962 LAWYERS JOURNAL Page 285 attorney consulted with Leon but as they did not have any money to make the journey to Tokyo, they did not go there besides the fact which they noted that the taking of the rleposition was not at all authorized by the trial Court in 1\laniln for Juan's attorney also forgot to secure that authority thru a motion; therefore, after the deposition had been taken in Tokyo and trial came to be he!d in Manila, Leon's attorney objected to its admission for said lack of previous authorization from the trial court. How do you decide the question? V. (a) What difference is there between manner of service of summons and that of subpo.ena and what is the reason fo1· the difference? (b) What do you mea n by an ordet' 1umc pro time? What rule, if any, authorizes its issuance? (c) Distinguish, if there is any distinction, between a restraint order and a pi·eiiminary injunction. VI. An American sailor having arrived at the port of Manila, goes on shore leave; he is seen by a taxi dancer at a night club and she entices him to go with her to a pleasure house and while there, the taxi dances robs him of his money; the sailor complains to the police who arrest the dancer and F'iscal charges her i11 the Municipal Couit and sha is there convicted hut she appeals to the Court of First ln!>tance ::.nt pending appeal, the American £ailor leaves for Americ3 F-O that when trial was called in the Court of First Instance, he was no longer available; therefore, the Fiscal soug1lt the presentation of the notes taken by the Municipal Judge during the trial of the case as secondary proof of the testimony of the sailor; these notes were attached to the record and the Municipal Judge could be called to identify them; the Fiscal contended that they could be admitted because there were no stenographic notes since the Municipal Conrt is not a Court of record. Defense however contends that the procedure was wrong and the evidence incompetent. How would you decide the question of the admissibility of said notes of the Muncip!!.l Lludge? VII. Conrado loaned money to Dionisio who executed a deed of real estate mortgage unto Conrado and the mortgage was duly registered, but when the loan fell due, an<l notwithstanding the demands of Conrado, the Joan was not paid; t-herefore, Conrado sent a final letter of demand unto Dionisio informing him that should he not still pay, Conrado would file action to collect ; upon receipt of that letter, Dionisio in turn filed an action to annul the mortgage on the ground of lack of consideration. (a) If, in such a situation, Conrado filed an answer to the complaint for annulment, setting forth his defenses and then pending the case, he institute<! an independent action for foreclosure of the mortgage, but Dioni£io moved to dsmiss it on the ground of pending act-ion, how would you rule in the motion to dismiss? (b) If Comado did not file the independent action for foreclosure but just presented his answe1· with defenses in the complaint for annulment and the case was decided in his favor, declaring the mortgage valid, and after the judgment had become final, it was then when Conrado filed his complaint for foreclosure but Dionisio met it with a motion to dismiss on the ground of ba.r by former judgment contending thP.t Conrado had in his favor an altern3tive cause and failed to avail of the right to foreclose by filing it as a counterclaim in the action to annul, how would you decide Dionisio's motion to dismiss? VIII. Nestor brought an action to foreclose a mortgage on a par· eel of land against Olimpia; the latter upon receipt of the summons realized that the document was a forgery; there· fore, he went to the Fiscal and complaineci to him, and the F'iscal instituted after investigation, a. criminal charge for falsificat ion against Nestor but the crntention of Nestor was that the civil case was a prejudicial question and should first be tried and the Court sustained him; and the finat judgment in the foreclosure suit was that the documenL was forged as contended by Olimpio; whereupon, the Fiscal moved to hear the crimjnal case, but unfortunately, Olimpia died in the meantime, and so the Fiscal sou;:tht to pr('· sent his testimony in the civil case in which he testified that the signature in the deed was a fo1·gery, and alw the decision in the civil ca$e upholding the contention of Olimpio that it was indeed a forgery, but the defense of Nestor objects to the competency of both proofs contending that they were incompetent, besides being irrelevant in the crimina.l case. How do you <lecide? IX. In a criminal action for serious physical inJui·ies thru reek• less imprudence, t he defendtmt chauffeur was convicted and sentenced to pay damages to the injured party; the latter secured execution against the chauffeur but he turned out to be insolvent according to the sheriff's return; whereupon, the offended party filed a civil action for subsidiary civil liability against the employer of the chnuffeu t· which wcs a. public service transportation company and in tlH! trial of the civil case, attorney of pla.intiff presented the same sheriff's i·eturn to pro".e the insolvency of the chauffrur without calting the sheriff himself to testify on how he came to find out that the cha.uffeur was insolvent; therefore, attorney for defendant transportation company objected to the admission of the return calling the attention of the Court tha!. the sheriff was present and could be called and cross-examined and the return was therefore clearly hea.rsay anti deprived him of the chance to cross examine. How do you decide on the admissibility of the return? X. (a) Is there any difference or there is none between "public document" and "official entry?" Expbin you1· answer. (b) When do the Rules permit and when do they not permit, proof of bad character by !)articular wrongful acts? Give t.he reason for the Rules. LEGAL ETHICS '"d PRACTICAL EXERCISES I. (a) What are the duties of an attorney? (b) According to the Supteme Court, what ari, the circumstances to be considered in determining the compensation of a.n attorney? IL According to the Canons of Legal Elhics: (a) H ow far may a lawyer go in supporting a client's cause? (b) What is the lawyer's duty in its last analysis? lll. Acting upon a complaint filed by three leading bar associations to the effect that evil practices, more specifically, "ambulance chasing" or pen;onal injuries or damage suits, seemed to be spreading to demoralizing extent, with the consequence that the poor were 01ipressed and the ignornnt taken advantage of, retainers often on extra.vagant terms solicited and paid for, a practice not limited to lawyers for claimants but likewise 'availed of by lawyers for defendant!i and with the added result that the calendars became congestecl and clogged, the Supreme Court designated the Solicito1 General to conduct an investigation of such practices described in the petition and :my other practice obstructive or hannful to the administration of justice, wit.h instruction to ma.kc a report and recommendation within ninety day::, One of the witnesses cited wa.s a lawyer, X, a member of the Bar for more than twenty years, who was asked amon ~ others, who were his law office associates and' employees, whether he had been paying police officials and hospital personnel for referring cases to him. · He was also asked to produce all his records of litigations for damage suits and and to explain if some of those records were missing. Law(Con tinued next page) Page 286 LAWYERS JOURNAL September 30, 1962 Hl62 BA R (Continued front w1ge 286) yer X objected, first, to the validity of the inquiry as a whole, there being no specific complaint against him and, scc011d, to the above ques~ions on the gt·ound of his r ight not to incriminate himself. Ruic on his objections with reaTV. (a) According to Rule 127, what conduct on the part of an attorney may be punished as contempt? (b) In the long, protracted hearing of the majO:' Communi:'.;t lea<lers before J udge Medina, counsel for t he accused persisted in making Ieng, repetitious, and unsubstantial arguments, objections, and protests; repeatedly make charges of bias and prejudice; a nd persisted in asking quei;tions on matters already ruled c.s exduded. \Vould such conduct constitute contempt'? Reason out your answer. V. (a) What is the extC!nt of an attonrny's aut.hority to bind his clients according to the Rules )f Court? (b) It appears that having been adjudicated n 1i2 m1dividcd share in a farm land, plaintiffs were able to ootail1 a writ of execution on a specific portion of the lot which they themselves had selected. The execution admittedly departed materially and radically from the te11or of the judgment, but the plaintiffs asserted that the counsel for defendants gave his assent . \Vas such an assent binding on his clients? Reason out your anVI. (a) On what grnunds may a member of the Bat· be remO\'C d or suspended by the Supreme Court? (b) It was shown that Attorney X was prosecuted and convicted in three criminal cases for having solicited, charged and received as fees, amounts in excess of the limit fixed by Republic Act No. 145 for the preparation, presentation and prosecution 'Jf benefit claims by thref' war veterans. Thereafter, disbarmer:t proceedings were SUPRE.l!E COURT (Conti1111ecl from page 279) by the Court of Appeals, except insofar as the maximum of said indeterminate penalty which was increased to 10 years, 8 month::i and I clay of prision mayo1·. The case is before us on appeal by certiorari taken by Sergio del Rosario, It appears that, after showing to complainant Apolinado del Rosario the Philippine one-peso bills Exhibits C, E and G and the P hilippine two-peso bill Exhibit H, and inducing him to believe that the same were counterfeit paper money m:mufactured by them, although in fact they were genuine treasury notes of the Philippine Government one of the digits of each of which had been al!f"red and changed, the aforementioned defendants had succeeded in obtaining Pl,700.00 from said complainant, in the City of Davao, on June 23, 1955 for the avowed purpose of financing the manufacture of more counterfeit treasury notes of the Philip pine!!. The only question raiSed in this appeal is whether the possession of said Exhibits C, E, and H constitutes a violation of Article 168 of the Revised Pena! Code. Appellant maintains that, being genuine tl'easury notes of our g-0vernment, the possession thereof cannot be illegal. We find no merit in this pretense, 1t is not disputed that a pvrtion of the last digit 9 of Serial No. F -796926Hl of Exhibit C, had been ernsed and o :hanged so as to read 0 and that similar erasures an<l changes h11d been made fo the penultimate digit 9 in Serial No. F-79692691 of Exhibit G, .and in the last digit !) of Serial No. D-716329 of Exhibit H. A rt ides 168 and 169 of the Revised Penal Code read: ART. 168. Illegal possession a1ul use of false trea81try brmk 1 wtes and other i1i.stl"u.msnts of cl'edit. - Unl1~ss the a<'t be one of those coming under the provisions of any of the precei]ing a1·ticles, any person who shall knowing-ly use or have in possession, with intent to use any of the false or falsific<l inst-ruments referred to in this section, shall suffer the penalty next lower in degree than that prescribed in said articles. instituted against him. Should he be disbarred? Why? VIL (a ) Jn a disbarment proceeding, it was shown that respondent, a member of the Bar, was pi·eviously convicted of murder and with his co-de:fendants was sentenced to life imprisonment, which decision was t hereafter affi!'mcd on review by the Supreme Court. After serving part of the sentence, respondent was granted a conditional pardon, the unexecuted portion t hereof being remitted. At about the same time, the widow of the deceased filed a · verified complaint before the Supreme Court praying that he be disbarred. Respondent pleaded the conditional pardon and sought the dismissal of the disbarment Pl'Oceeding. How would you rule? Explain. (b) Prepare a chattel mortgage, VIII. In outline form, prepare a complaint or petition: (a) Contesting the validity of a legislative Act. (b) Contesting the validity of an executive orcler. (c) Contesting the validity of a municipal ordinance. IX. Prepare habeas corp11s petitions : (a) Seeking the custody of a minor. (b) Seeking the release of a person detained without formal charges having been filed against him. (c) Seeking reli~f from a judgment or order of a cou1t of record. X. (a) Prepare a petition fol' certiornri as a special civil action. (b) In outline forn1, prepare a petition for ccrtiontri to the Sup!'eme Court appealing from a judgment of the Court of Appeals. (c) You represent a F ilipino industrialist desirous or establishing a factory near Manila. He was able to loc3te such a site with the owner willing to part with such property at practically give away prices as long as he is paid in cash. Draw up a contract Ol' deed, as tht- case may be, to enable your client to obtain t he site. " ART. 169. How forgery is committed.- The forgery Tc- , fered to in this section may be committed by any of the following means : 1. By giving to a treasury or bank note or nry instrument payable to bearer or to order mentioned therein, the appearance of a true and genuine document. 2. By erasing, substituting, counterfeiting or altering J;y any means the figures, letters, words or signs contai1•ed therein." It is clear from this provision that the possession r.f genuine treasury notes of the Philippines wherein any of ''the figures, letters, words or signs contained" in which had been erased and/or altered, with knowledge of such erasure and alteration, and with '!"he intent t-0 use such notes, as they were used by petitioner hert>in and his codefendants in the manner adverted to above, is puni!>hable under said Article 168, in relation to Article 160, subdivision ( 1) , of the Revised Penal Code (U.S. vs. Gardner, 3 Phil., 398: U.S. vs, Solito, 36 Phil., 785). Being in accordance with the facts and the !aw, the decision appealed from is, accordingly, affirmed, with costs against petitioner Sergio <lei Rosario. IT IS SO ORDERED. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, J.B.L. Reyes, Barrera and De Leon, JJ., concurred . Pa1·edes, J. took no part. OMISSION In the case of Caraballo vs. Republic, G. R. No. L-15080, April 25, 1962 published on. page 213 of t hf: July 31, Hl62 issue of the Lawyers Journal, on line 28 between the words ''and" an<l "his" th& following words were inad\·ertently omitted: "b.i;; wife ~raciela G. C:ir~ b~Uo live, al le~s that he and''. September 30, 1962 LA WYERS JOURNAL Page 287 PROFILES OF MEMBERS OF THE BENCH A~AR JOSE P. BENGZON Presiding Justice, Court of A7Jpcafs On June 18, 1962, the Hon. IJose P. Bengzon took his oath of ' office as Presiding J ustice of the Court of Appeals. At the bnre of the appointment is a solid foundation of distinguished public service and a brilliant record in the private practic<' of Jaw. Both records compass a long period of rapidly changing g'l)Vernrnents, changes in constitutional and statutory laws, new and <:!Xpandcd theories and practice in ~conomics and business, new concepts of education, and developi1 1g awareness of hum:m values and the economic and social relations of man with man. In tile era of rapid change, only men of fresh outlook, inquiring intelligence, and sensitive' understanding of human values can remain in leadership. Such a man and leader is Presiding .lustiec Jose P. Bcngzon of the Court of Appeals. The reeord of public and private service of Justice Bengzon is impressive by any standard of measurement, namely; practising attorney in Lingayen, Pangasinan ; Municipal Councilor of Lingayen; Corporate Lawyer, Pangasinan Transportation Co.; Assistant Fiscal of Pangasinan; Corporate legal cou11scl of several corporations in l\f'anila; Elected Congressman, First District of Pangasinan; City Fiscal of Manila; Under.secretary of Justice and concurrently Chief of the I mmig:ration Bureau, Chairman of the Board of Pardons and Parole, 1\lcmber of the Integrity Board, Chairman of the Deportation Board, President and Chairman of the Board of the Manila Gas Corporation; Secretary of J ustice; resumed practice of law in Manila; professor of law in the Fran· cisco College, becoming Dean of the College of Law and acting vice-president of the Francisco College; and Chief of Mission with rank of Minister, Philippine Reparations Mission, Tokyo. Japan, from which last position he was appointed Presiding J ustice of the Court of Appeals by President Diosdado Macapagal. Part of his carreer is in the past, but Just!.:<: Bengzon does not belong to nor is he tied to the past; he does not even remember nor care for the inclusive dates of his career. The country gains to have leaders like him who look forward. Like the champion athlete that he was in college day'l, Justice Bengzon bubbles with energy, his inquiring mind dissatisfied and always looking for ways of improving the administration of justice, - by increased dficiency of the staff, punctuality, devotion to duty, faster movement of judicial recor ds, and adoptic·n M proven business methods. "Our people;" Justice Bcngzon sui<l, ·'J1ave: always been d<'manding fast administration of justice. I have devoted time studying the causes of such <lelays. One of th1; causes is the seemin~ lack of earnestness on the part of court stenographers to trnnscribe as soon as possible the notes taken by them during the tl"ial below. We have cases in the Court of Appeals 110w which have been pending fo1· about five years due to the tardiness of trial court stenographers in transcribing their stenographic notes. .\s of late, Justices of this Court have ordered the impasilion of severe rC'medial measures other than fine, in order to oblige the stenographers to transcribe their notes, and a great deal of action on the part of stenographers has been whipped up by reason t hereof. Some of the stenographers are trnnsaibing their notes right in the Court of Appeals, others right in the Dcpartmen~ of Ju.<:t ice. The number of decisions promulgated by the Court ha<; increased appreciably." The Presiding Justice has brought in business methods into the Court of Appeals. He requests but expects comp\ia11ce by the staff to observe efficiency, punctuality, devotion to duty and :ibcvc all honesty and integrity. Quietly, a circular has beer. 1mssrd around that the Presiding ,Justice will e<•nsider punctu11ity :rnd devotion to duty in the assessment of mel"its of all employee5 fol" promotion in rank or salary in next year's budget. The tardiness report given by the Clerk of Court upon his assumption of office showed nn average of 2.2 hours a month for each employee. St1ccecding reports showed the record to have been eonsideralJly :owered to LG hours average, or an improvement on the maltl'r Qf punctuality by about 28'/o. The circular :s sui·e to be copied by other offices. The Presiding Justice has also brought in another innovalio11, which he began in the Reparations Mission in Tokyo, that at the beginning of the week on Monday and a t the end of the weC'k on Saturday, the staff of the Court of Appeals are r equested to attend Philippine Flag ceremonies and the singing of the National Anthem. A jurist is called upon to explain and interpret the law, and to maintain the majesty of the Jaw and th(· dignity of th<' cou\·t. The Presiding Justice has delved deep into the J udiciary Ad, whieh gave the Court of Appeals a seemingly less jurisdiction in ca1>it:\/ crimes t han the courts of first instance. "In the course of the performance of my office,'' Ju.c:liec Bengzon said, "I have been impressed uwrc vividly of the fact that, whereas the Court of F irst Insta11ce can impose death penalty and reclw~ion perpetua in appropriate cases, the Court of Appeals, according to the law creating the same can merely sort of recommend to the Supreme Court the imposition of su~h penalt.y, and certify the case to the Supreme Court for final determination, as if the case had been brought before it on ap1 >eal. So that, although a Court of F irst Instance judgment impo5ing dcMth penalty is automatically elevilted to the Supreme Court, its judgment imposing reclusio1t perpetua cnn become final and cxecutory; whereas, this Court has no power to impose even the penalty of reclusion perp.t1w. To some this would appear incongnwus considering that the Court of Appeals is of higher category than Courts of F irst Instance. However, one lrns to consider that the latter takes cognizance of the cas~ in the ~xercisc of it;; original jurisdiction while the latter, in the performance of its aJ)l)eJlale jurisdiction; and by Constitutional mandate, the Su1>rcme Court cannot be deprived of its jurisdiction to n::view all criminal cases in which the penalty imposed is death or life imprisonm1.:nt. Anyway, this could b(} a good food for thought for students of law, spc.cially for the authorities concerned, as lo '.vhethet there is wisdom in making any change." Page 288 LA WYERS JOURNAL September 30, 19GZ [:-' ._:====================:================================== In view <>l the l"·esent difficulty of locating the Qffice of Lawyers Directory p1 ·n!'lidn1e attorney~. the J ourunl publi~hes this direciory to llcquaint not only thefr dlcnt~ but ,.Jw the )Jublit of thefr add1·~. Lawyel'l! rm 1y "''"ii them~el\"es .,r thi~ ~e1·v1cc upon !l!l.y>nent of Two Pesos for ALMACEN. 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