The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXVIII (Issue No.1) January 31, 1963
Year: 1963
Language: English
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extracted text: JlrL tA WYERS JOURNAL VOLUME XXVIII VICENTE J. FHANCJSCO F.dilor a11d Publ-ial1er HJCARDO J. FRANCISCO A11sislat1t Edit01· VIC'l'Olt 0. l'ltAN<.:ISCO Business Manager B.E~~JA~"lN M. TONGOL Asst. Bu.lli11e1Js Manager TH.I!: LAWi'~H~ JOU!tNAL hi publishet.I monthly by Hou. Vicente J_ Fnrnciscu, Iunuer senator aut.1 tlelegutc to the Constituliu11ul Cu11ventio11, pn.1.ctisi11K attorney untl president of the Francisco College (formerly Francisco Luw School.) SUBSGlUl'TlON AND ADV.l!:ll'l'ISING HATES: Subscription. In till! l'hilippines-r:m.oo for one year; 1'10.00 for G monlhs; l'~.00 JlCr copy. In the United States and foreign countdes$20.00 for one year; $IU.OO for 6 mouths; $2.00 per copy. Adve1·tisi11g: l"ull page-1'105.00; Half })agc-l'G5.00; One.fourth i>age-1'45.00; One-eighth page:15.UO; One-sixteenth iiageP25.00; llack Issues: In the Philippi11es-r25.00 - twelve js. sues: P:J.00-per issue. In the MANILA, PHILIPPINES JANUARY 31, 1963 EDITORIAL: THE LIWAG SPEECH THE SUPREME COURT: GUARDIKN OF THE CONSTITUTION - By Atly. Abraham Vera SUPREME COURT AND THE RULE OF LAW - By Sec. Juan R. Liwag .. THE SECRETARY OF JUSTICE VS. THE SUPREME COURT - By Atty. Leonardo P. Valmonte UNITED STATES COURT OF APPEALS DECISION (District of Columbia Circuit): Koninklijkc Luchtva<irt Maatschappli N. V. KLM Royal Dutch Airlines Holland \'. Gertrude Owen Tuller et al. SUPREME COURT DECISIONS: Republic of the Phil. v. Rel - Justice Paredes Dasalla el al v. City Attorney of Quezon Cily and Koh - Justice Padilla ... Cabal v. Hon. Kapunan et al - Justice Concepcion People v. Ching Lak - Justice Endencia People v. Manantan - Justice Regala De Leon et al v. Molo-Peckson et al - Justice Bautista Angelo In the Matter of the Petition of WanJ, I Fu to be admitted as Filipino citizen; Fu v. Republic - Justice Regala United States and foreign CQUntr1es- -$25.00-twelve Issues; $3.00-per issue. Entered as second class mail matter at the Post Office. BUSINESS OFFICE: R-508 Samanillo Bidg. Escolta, Manila - Tel. No. 4-13-18 13 17 .. .. . 18 21 23 28 30 Special Offer To New Lawyers 25% DISCOUNT on RULES OF COURT (9 VOLUMES) ac:tual price 1'266.60 - less 25% - Pl99.95 This offei· is _qood only for pnrchases iMde. by the set and made dfrectly to the E_ast Publishin_q Co. Ex-Senator Vicente J. Francisco's Law Books· "··.Rellisecl Cash Price List as of January 1, 1962 'i'rial Techn~que & Practice Courts (5 Vo!s.) 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Legal Research . . . . . . . . . . . . . . . 6.20 ;Legal Thesi~ Writing . . . . . . . . . 10.30 PRICES are subject to change without notice. EAST PUBLISHING CO. Rm. 508 Samanillo Buflding Escolta, Manila Tel. No. 4-13-18 THE LIW AG SPEECH The Ma.nil.a Lions speech of Secretary Liwag, assailing' the Supreme Court, after President Macapagal had e~sed his disagreement with the decisions of the Supreme Court in the Ga.rcia and Fa:ypon cases, and rebuked one of its justices wlto rendered a concurring opinion in the Garcia ca.se, continues to be the subject of popular comment, and while the speec1' has had its share 1>f partisan support, including that of a law school deam who was subsequently designated assistant · legal adviser to Malacanang, there appemrs w question but that the weight of P'ltblic opinion has reacted adversely to it. This editorial has no quarrel with the proposition · that free speech encompasses the right to disagree with and publicly criticize th.e actions and decisions of men in government service', and these include BUpreme court ju.stices, and the Supreme Court itself. Where the learned Se'cretary appears .to have tra.Mgressed. the bounds of propriety, however, was in confusing action with moti-ve. Some sectors of pubiic opinion, for instance, have criticized Presidential action and ~aion in authorizing the ~ deyortation of Harry Skmehill, but even Se•retary Liwag, who cannot poBBibly question tht right of public opinion t.6 criticize actions of the President, will surely consider it beyond the rule of fair play if criticism of Presidential decision were to include imputation 6f malevolent motive to it. Evtm the severest critics of the President in the Stonehil! deportati,on case did not dare publicly impute to the President improper motives behind· his decisimL. In brief, Secretary Liwag, himself a highty competent member of the Bar, would have done weu to . distinguish between an action and an actuation. principles which underlie our system of checks a.nd balances. If the Supreme Court, according to SecretMy Li?J!ag, has no right to pass upon the reasonableness or. unreas~ ableness of Presidential action, then, who has? Secretary Liwag maintains that only the electorate does. If the President, therefore, chooses to persecute a private individual without cause, the Supreme ·Court, bY the Liwag prop08itWn, has no right to pass upon the "reasonablQness ar unrea.sonableness'' of the action of the President, and a.ny attempt to do so will constitute "judicial ea:huberance". What then is the recourse of the in... dividual? By the Li wag thesis, that individual must go to the electorate and present his cause. This is novel political theory and one finds it rather difficult to. comprehend how the learned Secretary contrived the Ba.me .. We have al.ways understood it that ~nder our system of check'3 and balances, designed precisely to avoid a regime of dictatorship, the Supreme Court has been vested not ooly with the co"8titutional functwn, but with the. constitutional duty, to pass upon the reasonableness or unreasonableness of PreBidential action, particular tnsofM a8 the same affects 8tatutory 'rights whether of private in;. dividuals or public officials. "fo advance the proposition that under our scheme of government, onlv the electorate is vested with the right to pass upon the reaso-nableness or unreasonableness of Presidential. action i.s to suggest a shocking naivete, not only of the law, but of the faets of public life. Under Liwag's theory, Dr. Paulino Garcia should have taken hi.a ca.use, not before the supreme Court, but before the people, barrio-to-bOJrrio ·style. Suppose the President, serl..3ing a hostile Cr.mgf'Ms,, were to i.ssue an ea:ecutive order BUBPendina thi.s co-equal branch of government and, assisted .by the Armed Forqes, of which he is the ·commander in Chief, were to arrest every Congressmam, and Senator who attempts his way. tq, the session hall? U.W..r the Liwag tlieorv, the recourse of each senator "z x z we must adva.nce tke propoBitiott that if and congreaaman is, not the Supreme Court, but the sottethe President ever abuaea his prerogatives, let reign people. '. him be censured and crucifi.ed by the people who hai•e elected him to P'ltblic office. . Let not the We find it difficult to interpre~ . the Liw":ll. proposimembers of the Supreme Court, take unto them~ tion in any other w~y. As_ a trained practitumer and selves the right and the power to judge the reason- member of the Bar, not to mentloon as Secretary of /"8ableness or 1Ulreasonableness of the acts of thei,r tice, Secretary Liwag must be preaumed to ~e a ~n "'!ho President - beca.use in a democracy this right measures not only his statements but the 'logic and implica. and power belong exclusively to the. soverei.gn tion of the same. This Editorial has measured t~ speech people." of Secretary Li.wag, and measurement ha.s defied legal But this particular aspect of the Liwag speech has been thoroughly ezplored by public comment and thi• Editorial, h,o.s nc desire to further· add to the discussion. We are, however, concerned with a. di.sturbing proposition advanced by the Secretarv in the course of his speech, a proposition which Of[Ype<M'S to have been overlooked by its critics.. We refer to that portion 6f Secretary Li wag's ad,. dreita which reads as follows: comprehension. We repeat that the foregoing is a disturbing propo. Bitlon made more disturbing by the fact that it came no We can onliy hope that the Secretary's novel stat.less from the Secretary of Justice. The proposition is ment does not C0"'8titute the measure.<>/ his legal advice fraught with implications subversive of the fundamental to the President. ' Janoaey ll, 1963 LAWYERS JOURNAL Paget. THE SUPREME COURT: GUARDIAN OF THE CONSTITUTION By Atty, ABRAHAM VERA The Constitution is the fundamental law of the land and the Supreme Court is the vlgllant and zealous guardian of this priceless document. This herculean task the highest court has to attack frontally to keep a close watch over the ramparts of individual freedoms and libertlea and to &ive life and vigor to a truly democratic government. This inescapable role of the tribunal as a citadel and bulwark· of liberty and democracy is proJected to its zenith 1n tlmea of stress - in times like the present when the sacred rights of Individuals are likely to grapple with the encroaching arms of government Interests. Now seems the time when the ' 1eleven wise men" of Ute tribnnal have only one altemath•e - to enforce the mandate and command of the sovereign as embodied in the Constitution. A sean:hmg IOot at c;ontemporary events reveals t;he delicate job t.he Justices have been shouldering In their efforts to Inject more and more blood to the Uvlng and dynamic instrument - the Constitution. T:vPJcal of this delicate Job is t.he decisloo the trtbunal · had to Juuu:l down recently In a bold move by the government to take over a sizeable ,POrtloD of the sprawling tract of land owned b7 former Speaker Jose Yulo and his family in CanlubanJ, Laguna. Under the Constitution, the Yulo property may be expro-priated fQr public use after pQment of just compensation. Thus the govemment move could appear laudable if one considers that the fundamental charter ordains that "the promotion of social Justice to Insure the well being and economic security of the people should be the concern of the state", The declsioD. dD the question of whether the Yulos should remain undisturbed in their Canluban1 propertJ or whether the government should be permitted to intervene for the tenants lllllODll whom the proporty tnaJ be apportioned binge& oo the UdnklDg of the higb courL Meanwhile, in implementing its role as a .s&abillzinl govemmeotal institution, the Supreme Court bas restalned the Laguna court of first instanco from taking 8D7 steps towards CODdemniDI the Yulo property 1n favor of the ~tate. The Supreme Court has also notably extended its shield of Justice tQ two cases involving no less than Senator Fernando Lopez and his brother, industrialist Eugenio, who are considered lo be the "pet bates" of Presldc:Dt MacaPasal· One of the Lopezes' suits involves their properties - radio stations from as far north as Laoag. llocos Norte, to. as down south as ~ llOanp City. The other litigation refen lo the Lopezes alleged tu: liability in connection with their ownership of vast diversified bwdnesses. Acting wWi dispatch to aid the accused Lopezes before the Mllllila fiscal'• office, the high court blocked the filing of aDY taX evasion charge8 against the. wealthy end affluent brothers. The high court will yet clCcide if It case brought by the Lopezes before the court of tax appeals contesting the revenue assessment of P7-m1llion should take priority over the government's tax evasion raps. In the first case, the high coU.rt has stopped the Radio Control Board frQm supposedly harassing the Lopez· owned radio stations. Haidly had President Macapaa;al assumed office when his conduct was question before the tribunal. TJie core of the contrb\fersJ' was· the Presklent'a administrative · o~r no. 2 recalllng all ad IQterlm appaln~nta extended by ex-President a..... cla after the latter bad lost the elections. The ~gal question cropped up when Dominador Aytona, whose appointment as Central Bank governor was cancelled, decided to fight the dcsignaUon of Andres Castillo by · President Macapagal to the same post. iDvoldD8 the principle of separatlon of powers, which Is deepl7 lmbeded In the Constitution, the tribunal politely declined to set aside administrative order no. 2. Though taking this somewhat passive act1on, the tribunal made the cynical obaervation that Mr. Garcia should not have wielded his powers as President "to continue political warfare that had ended or to ava1J himself of presidential prerogatives to serve partisan purposes" after "the electorate had spoken.'' Exercising its Judgment and c11sc .. tion, the ··tribunal• Junked· ""'°""''·claim. In Ute process of mluutel) tntierpreting the provisiODI of. the Constitution Jnvol'led in the Aytona case, Justices Sabino Padilla, Arsenio Dizon, and Feliz Bautista Angelo wrote concnrring opinions, Justice Roberto Concepcion a concurring and dt. senting opnion 8lld. Justice .Jesus G. Barrera a d11sen.ting opin. ion, all in addition to the majority opinion penned by Chief Justice Cesar Bengzon. Then there was the declsion on the case of Dr. Paulino J". Garcia. Upholding the security of tenure of government of· ficials and maintaining a robust and efficlent civil aervlce, the high court directed. the reinstatement of Dr. Garcia to his post as chainnan of the Nadonal Science and Development Board. The tribunal reaffirmed this lofty stand when it also directed. the reinstatement of former llocoa Sur Gov. Perfecto Faypon as member of the board of the Philippine Virginia Tobacco Ad· ministration. Undoubtedly, President Macapagal was Irritated, by these verdicts but in line with his oath to "preserve and defend its ConstituUon° he, neverthelell, abided with them, There are at least sb: cases pending with the tribunal where it has to pass upon the legality Of the Presiderit's appointmmt One case centers on the President's aplJ(>intment of· Cesar Miraflor as a member of the commission on elections, a constitutional body, in place of Genaro Visarra, an appointee of President Garcia. The other notable case involves the President's appointment of Carlos Quirino as director of public librarles, an appointment which has been contested by Ernesto R. R.odriguez. Jr., a Garcia appointee. ' Admit.tedly, the President has the constitutional power lo appoint men to top pubJlc positions But, definitely, a decision <m the legality of the Pn:sident's action lies withlD the ezclusive domain of the Supreme Court. BJ way of drawing parallels, the name of the late P!elldent Quirino bad aloo been ..._tedly haled to the t.emples of j,... tice. • Oq. October 22, 1950, President Quirino issued a. proclamation suspending the wrtt of · habeas corpus. The presidential edict was decreed four days after the army's military intelif. gence service rounded up 106 alleged ·Communists, including nine memben of the national' secretariat of the local Communist Party. Three months later, MIS agents continued with the roundup of a Manila councilor ai1d five newspapermen. Even against a backdrop of communist aggression in <;outheast As111- and an i.mnicd01ite peril to notional sQ«.·urity then pol.c,ed by \he communist plot to take over the government, the proclamation drew a volley of protest from dvil libertarians. But there were those who bravely stood by the procl&mation and saw in it the need of curtailing. 1n effect, . the -indivJdual · ris:hts for'. lhe ~of ~tiaQI. sUf'livaL (Contlaued-tpqe) J'anliary ll, 1963 SUPREME COURT AND THE RULE OF LAW• By Sec. JUAN R. LIWAG We are pleased to think that the Philippines behrg a ltepu1J.. lican State, ours is indeed "a government of laws and not o1' men." But we like to think further that this government of laws must forever recognize the supremacy of the Rule of Law. The Supreme Court, by common consent, is recognizE:d as the last bulwark of democracy, the guardian of our civil liberties, the arbiter of constitutional controversies. As the Highest Tribunal of the land it ls ordained by the constitution to interpret the 'Jaw. It is the indestructible bastion of the rule of law in our country. But let us not look at the Supreme Court as if it were a paragon of perfection, or that- it is a body composed of supermen Incapable of cmrimitting errors. Let us not worship the members of our Supreme Court as gods with supernatural pe> wen or, better st111, as sacred cows who are beyond the reach of human touch and beyond reproach. Rather let \Js look at our Supreme Court as a body of men with feelings, affected by prejudices, possessed of caPrices and susceptible to other frailties ot human nature, whose imperfections are often reflected,. wittingly or unwittingly, in their Judiclal pronouncements. Guided by this realization and at the rlsk. ot being misunderstood by some sectors•of our society, I have ta.Jcen it upan JDJ· self as a public duty to expose what I comlder the abuses of the Supreme Court committed. 1n the name of Jpdicial supremacy. Let me give the assurance, however, that I am not motivated by any personal or ulterior design as I have, in fact, the hi&hest respect tor the individual members of the Court as men of intecri17, ·Jll'Obtt)' and competence. What motivates me, here ~ * Speech delivered before the Manila Lions Club on Jau .. -uary 9, 1968. . THE SllPRBlllE ••• (Con- flom - Z) ID cases which cropped up because of the proclamation. the Supreme Court JustiCes, for lack of the requisite votes, were not allle to rule squarely on the effect of the suapenaion of the privilege of - - on the riJbt to bail accused perscms. ID a long line of cases, the tribunal has likewise imprinted in bold letters the spirit and intent of the orpn1c law. The 1ri~ has set the pace in the nationalistic mOJement by upboldins the government'& move to natlonalize not onlJ' tbe rot.all bade but alao the labor in n:tat.1 establishments. It has :r.ealoua17 protected tbe right of Filipinos in the acquisition of pulllic agricultural lauds and baa closed the - · to aliens deslruua of securing the PWplnos' privile&e under the Conatitution. Further blarinc out t.be nationalistic tone, the tribunal baa parried attempts by alien-opportunists for naturalization. During the past - the tribunal has underscored its Judlc1al" power u it dedared as UDCODBtltutlonal the redistrict.iDg law, a congreu1onal brainwork, which reapport1oned thr variouscongressklllaldistricts. Chief Justice Bengzon· and' ids ten· learned· ··associates have to slosh throush legal perplexltlea and dilemma JDaD7 times in lrBllSfonnlua into realities the noble and loft7 exhortations woven in the Constitution's priceless fabric. No matter how alert and vigilant Js the Supreme Court 1n safekeeping the Constitution, the noble ideals and revered tr• ditions and institutions enmeshed. in this living instrument wUI be meaningless if the people themselves will not be as active and ever watchful. The late U.S. .Justlc:e Robert H. Jackson fon:efully lectured on the role of both the people and the aourts in guan:Ung: 1ndinow, is a genuine desire to awaken our people from the pas. slve thinking verging on blind submission which has tallen the better hold of them and make them adopt a more aggressive trend of thinking conducive to active sovereign participation ·in public affairs and the molding of a mllitant and vigllant public opinion. Neither ls it my intention to undermine the people's faith in the Supreme Court; rather, I should like to arouse our. people, in the name of tree speech, to break away from the kind of sub-conscious indoctrination which aeeb to perpetuate a seemingly popisb image of infallibility in the Supreme Court in matters of law and Justice - a myth of invincibility and un-· toucbabllity certainl1 obnoxious to the letter and spirit of the Constitution. Judicial supremacy does not imply and much less mean the subordination of the executive and the legislative to the Judiciary. It does not envision a judiciary higher than, and superior to, the other two co-ordinate and co-equal branches of the government in the manner of a hierarchical system. It does not import aristocracy. But rather, it means the power of Judicial 'review, or the authority to declare statutes and other gdvemmental acts inValid when these are repugnant to the Constitution. It ts the power to interpret the law and not to reform the law through judiclal amendment. Much has been said of the excesses of the exee!Jtlve and the legislative branches of our government, but stranse as it· maJ' = :~ i: :c::. h:u:::no:~ o~.e ~c:n~ !i!: =· indicate that the Supreme Court has, tbne and again, perpetrated a veUed assault on purely execuuve functions, thereby abusing: its p(,wer of judlclal review. It is Strange that while in IDBD7 (Con-nest pop) . vidual liberties: 4'1f an organized socletf wants the kiD4 of justice that an Independent, prcilesaional Jndlclal establishmoat ' is qualified to admlnistet, our j~dtclarr ls certain~y a niost:etfeetive inatrument for applying law and Justice to !ndlvidual cases and for cultivating public attttu4es which rely Upon Jaw and seek justice. But I know of no modem .Instance In wbicb any judiciary has saved a whole people from the carrenta of intolerance, passion, usurpation and "tJnmDJ' 'which have threatened liberty and free institutions." Continuing with this thesis, Justice Jac:kson said: "It is not idle specula.tlon to Inquire which comes ftrst either in time of importance. an independent and CDllghtened. JudlciarJ or a free and tolerant society. .Must we first mainta1n a system of free political government to assure a tree judicial)', or can we rely on an aggressive, actl'!!st Judlelar7 to guaranteo free _. emment? While each undoubtedlJ ls a IUppOl't tar the oaie:r, and the two are frequently found lojjether, It Is my belief that the attitude of a society and of Its orpnl20CI palltlc"1 - rather than its lepl machlnerJ, is the controJDns force In the character of free institutions." Justice Jackson, summing up, emphasized: ''However well the court and its bar may discharge their tasks, the destinJ' of this court is inseparablJ' linked to the fate of our democratic system of representative government. Judicial functions, as we evolved them, can be discharged only in that kind of SOciet1 which is willing to submit its conflict to . adludlcatlon and to subordinate power to reason. The future of the court Dl3J' demand more upon the competence of the executive and legislative branches of govenlm>nt fo solve tlieit problems adequatdy · and in time than upon the merit whlCh is Its own.'" JanuBf7 ll, 1%3 LAWYERS 10URNM. Pase :i SUPREME .•• (Conlinued. from paae 3) the absence of a clear legislative standard borders indeed, on previous cues, the Supreme Court has consiltently assumed a proprietJ'. While the Supreme Court had to recognize the authohands-off policy when called upon to declde questions· involving rity of the President to ~d a presldentlal appointee, signtlegislative acts 1n deference to the theory of Separation of Po- flcantly, nowhere in its lengthy decision did lt rule that the perwers, the anxiety to poke "its finger on the ple" ~hen it came 1od. of suspension had became tllepl. Ot course, the Supreme to executive acts has apparently developed into a "magnificent Court could not have called the period of suspension illegal beobsession." The most recent examples of what may be called, cause there was nothing in the law which ezpressly or impliedfor lack of a better term, as Judicial exuberance are the cases of IJ' limited the period of suspension of a presidential appointee. Dr Paulino Garcia and Mr. Perfecto Faypon. In making a finding of ~bleness of the period of smWe will recall that Dr. Garcia was appointed chairman of pension without any legal Justification whatsoever to support the Natlonal Science Development Board during the admlnistra- its conclusion, the Court had manifestly gone out of legal tlon of President Garcia and was suspended by President Maca- bounds. pagal In Pebruar:v pending bis investigation on charges of dis- In the case of Dr. Garcla, the Supreme Court found the pebonesty and electioneering. On May 5, 1962, the 76th day of his riod of seven months of suspension as unreasonableness. In the SUlpelllion, Dr Garcia brought suit with the Supreme Court for case of Mr. Faypon, the Supreme Court declared a suspension of his ·immediate reinstatement invoking Section 35 of the Civil 3-1/2 months as unreasonable and ordered reinstatement In a Service Act which provides for the lifting of preventlve auspen- writ of mandatory injunction which, as previously poin~ out, sion 60 days after date of suspension pending admlnistradve in- could have likewise been done in the case of Dr. Garcla, But vestigation by the Commissioper of the Clvil Service. · Under by what yardstick d1d the Supreme Court arrive at its varied con. Section 33, those removable by order of the Commiss1oner of c;luslon? By what buic. \J8luo. WQUld..aw::Jt. fluetaattng and' equally Ci"Vil Service are officials and emplO)'es of subordinate rank and indefinite pronouncements become justified? Even the driver of not presidential appointees. Dr. Garcia, a presidential appointee, a car would know when he is overspeediDg because he sees a Was "then beiDi inveaUgated not by the Commissioner of Civil 60.mile limit on the r<>8$1. By such variable, 1s not the Supreme Service but by a committee created by the Prealdent for that Court attempting to impose under the guise of Jud1clal review purpose, Preceding Section 35 which was invoked by Dr. the 60-day limit of suspension on presidential appointees? And Garcia Is the provision of Section 34 which empowers the Presi· by what "rule of law," may I ask, can the Supreme Court do dent to suspend any officer appointed by him pending adriJinis. · this? trative in\'eStigatlon but which does not provide for any time According to the decislon, there was unanimity of opinion . limit of suspension. ,The only Issue then before the Supreme among the members of the Court that the period of suspension Court was very simple, namely, whether or not the 80-day llmlt of public officers, be they presidential appointees or not, cannqt of supell8lon wu appUcab19 to preddeatllll appointees. be indefinite. And yet. while they cannot agree on whether or Unfortunately, the Supreme Court d1d not decide this sole not the 60-day limit of suspension for subordinate officials Issue. According to the decislon, some members of the Court should apply to presidential appointees as well, the Court has were of the opinion that the 60-day period was applicable to "a found the period of suspension to be UDreaionable. It seems p"residential appointee" as accordingly, Section 35 "evinces a le- that the only basis for the findina of unreasonableness is pregislative poJky." "Other justices," however, were of the oplnlon dica'ted on lndeftnl.teneaa or .U.pmdon. The declsion Itself that "while said period may not apply strictly to cases of presl- i:eftect~ a. secret longing for the filling up of an omisalon ' dential appointees· facing adminlstrative charges to be decided lett VOid by the legislature. If the Supreme Court believes tlult • b)' the President, the preventive suspension shall nevertheless the l~gisla~ure should have made the period of suspension of be limited to a reasonable period." Evidently, it is the view presidential appohrtees definite, wby point it• acausiag finger at. of such other "Justices" which prevailed, Here is a poaitive dlc- the executive. Why blame the President for the failure of the tum by "other justices" that the 60-da;v period of preventive legisl8ture to fix In the law the period of suspension of presldensuspension did not apply to presldential appointees and yet, in tial appainteea:? The "rule of law" directs the President to e:a:the same breath, the Supreme Court found the period to be ecute the law only as his conscience and sound judgment dictate umeasonabla at the time that It promulgated it.a decision on and the same "rule of Jaw'' will not countenance any attempt of Sept, 13, 1962. I wonder if the Supreme Court would have the Supreme Court to censure in the guise of judiclal supremacy, found the p;riod of suspension unreasonable ii it had promptly an act of the President done faithfully and pursuant to that law. prmiiulgated. its decision in the month of .May when the case The act of the Supreme Court 1n its unprecedented action in wp. submitted to. it for decision. By its inaction in deciding the Garcia and Faypon cases constitutes an encroachment on tbe .. case after the lapse of four months from submission for legisladve and executive prerogatives. When the Court Imposes ~on, the Supreme Court had in effect created a factual a time-limit on the suspension of presidendal appointees through sltpation by which a ruling of unrea~nableness of the presi- a resort to soealled legislative pollcy where the legislature had ci.Witial suspension has become possible. The four months' de- provided for nQ period at all,. it clearly transgresses on a purely IQ WJ»ch the Supreme court had allowe~ ~ lapse ~thout legislative function. And when the legislature has deemed 1t prot!¥: ·~~'!I- ~ .. YIP,ti_ 9, _maxi~toey. lnjuncti~n for ~ta~ per, _by a conspicuous omis"slon of any such time-lhnit .on pres~i":~.,.:w~)t ~'lui:Ve'lssued"in'May'if It deemed then that ldential appoiJltees, to leave the matter tp the sound dlscretion the ~ of suspension was unreasonable -:- must have lu~ of the President, who under. the Constitution has plenary control tbe executive into a· sense of belief and confidence in the val1d.1ty and supervisioiia over all executive otficlals, the Supreme Court of the s\.spension. The delay in deciding had slowly formed the in effect trenches .upon a purely aecutive funcition when it tries trap for ~ President. People in a democracy are generally a to ~g the President to a time-limit of suspension by substituting patkini: people - but they often wonder why it takes the High Its own opinion in place of executive discretion. It goes without Court such a long time to decide. saying that when the Supreme Court encroaches on executive . But apart from tb1s consideration, the more fundamental or legislative power, it does violence to the system of checks factor is the abuse by the Supreme Court of its power of Judicial and balances and offends the Rule of Law which it is supposed review. In the Garcia case, the Supreme Court found it conve- to QPhold by deed, by precept and example ·as the highest trinlent to skirt the sole issue; whether or not the 60-day period bunaI of the land. · piovlded for in Section 35 of the Civil Service Act applies to It is our good fortune that we .have a P.n:sident .who has ex.preaidential appaintees. Instead, It delved Into the vague realm pressly and publicly declared that he would comply with the of proprletJ', - because what is reasonable or unreasonable in declsions of the Supreme Court, whatever inay be hi4 personal Page • LAWYERS JOUR!'!AL January 31, 1963 convictions to the contrary. And yet, it has been written that the origin of govcrmnent may be traced to a monarch in the forest who, weary of his responsibilities "delegated some of them to followers who eventually became 'courts,' and shared others with a more numerous body of subjects who in due tlme organized themselves into a 'legislature.' And the indefinite residium, called 'executive power,' he kept for himself" (Corwin, The President). From then on, the· prestige and dignity of the Office of the Presidency developed through the ages into a traditional concept. The President is said to be "the representative of no constituency, but of the whole people." As the "people's choice," he embodies the sovereign authority and symbolizes the nation. In the words of Woodrow Wilson, "His ls the only national voice in affairs." It is on this concept of the dignity, prestige, and responsibility of the Office of the PresJ.dency that we must advance the proposition that if the President ever abuses his prerogatives, let him be censured and cruci,fi.ed by the people who have elected him to public office. Let not the members of the Supreme Court, take unto themselves the right and the power to Judge the reasonableness or unreasonableness of the acts of their Pres1dent-because in a democracy thl5 right and power belong ·exclusively to the sovereign pcoplo. It may be argued that without the Court's interference, the President is liable to abuse his powers. But what power of government is not susceptible to abuse? As the Supreme Court has significantly declared in Angara vs. Electoral Commission, · "the possibility of abuse is not an argument against the concession of the power as there is no power that is not susceptible of abuse." The ODIJ' basic and, mind J'OU, vital difference, besides the system of checks and balances as provided for in the Constitution, is that the abuses committed by the palltlcal agencies of the government, President and members of Congress, are passed upon by the .sovmeign. authority, the electorate, while those committed by the Supreme Court are not. The members· of the court can go on a spree of abuse in wielding their Judicial power and yet Continue to remain secure with Olympian equanimity atop their ivory towers until theJ' reach the constitutional :retirement age of '10. ls it therefore fair for the Suppreme Court to arrogate unto itself an excess of Judicial power over the two other branches of government simply because such political agencles do not posseu an effective check against the Tribunal's declaions alid have no recourse but to enforce them, notwithstanding penonal or offlc1al belief to the contrary? ls not the better part of Judicial prudence and statemansJrlp that in c8se of doubt, a controversial issue be resolved In favdr of the exercise ot the power belonging to the other branches of government? In the language of the late Justice Malcolm, "To doubt II to ... tala.." What I cannot uiiderstand ls why the Supreme Court can easily find the faults and mistakes of the other branches of government but does not seem to see its own. How many more questions Involving life, liberty and property of citizens are awaiting ~ns by the Supreme Court? Has anyone ever condemned as unreasonable the long J'ears of delay in deciding Case!i bJ' the Supreme Court involving as they do more basic private rights than the alleged right to a pubJlc office? If the Supreme Court has felt-kee-to condemn.,as-41BHBSOD8ble-the period of 1 months or 3:14 months' suspension for presidential appointees through a declaration of legisladve policy in the Cl.vii Service Law which llmlts to 60-day the period of suspension for subordinate offlcialB and employes who are not presidential appointees, may we not likewise feel free to condemn as unreasonable the long years, not merely months, of delay in the decision of cases long pending before the Supreme Court through a similar appeal to legislative policy as embodied in the Jucilcial'J' Act of 1948, which limits to 90 days the period for promulgating decisions bJ' the Courts of . First Instance and other inferior courtsJ If the Supreme Court could make the sweeping conclusion that the unreasonable suspension of Paulino Garcia and Faypon was tantamount to a virtual removal ftom office without cause, may we not likewise conclude that the unreasonable delaJ' in the decision of cases by the Supreme Court, especially those of detained prisoners who may yet be acquitted amounts to a deprivation of life, liberty and property without due process of Jaw? And yet, paradoxically. in our scheme of government, the very Court which is called upon to check the so-called executive. and legislative abuses, cannot ln tum be checked in the comJl1is.. sion of its own. Except tor the pardoning power of the President which is available only after f"mal conviction and In criminal cases, there appears to be no effective power that can stop judicial abuses. If, out of sheer respeCt and recognition of a purely Judicial prerogative the execudve or the legislative has politely refrained from denouncing as unreasonable the long delay in the decision of cases bJ' the Supreme Court may we not expect from the Court the same token of statesmanship. propriety and courtesy for the co-equal branches of the government borne out of a similar respect and recognition of constitutional prerogadves? At this juncture, may I be allowed to recall the biblical account of how an unruly multitude had chased Mary. Magdalene to the wall and when they were about to· stone her, Christ intervened and cried, "Let him who is without sin cast the. first stone."' No one dared to do so. I dread to see the day when the Supreme Court would virtuallJ" run the affairs of government under the guise of Judiciial review for then the Coiirt will cease to be the ulttmate ~ ot law and become a third "'political agency," and tberebJ' "break away from these checks and balances of government Which were meant, under our system of govemment, to be checks of cooperation and not of antagonism or maate17." ·(Abueva et al. V& Wood et al. 46 Phil. 612). To be sure, the CODstitution nev!r contemplated nor intended a Supreme Court that woul~ virtually lord it over all. The penumbra of the Supreme Court wbfel:!- • Justice Holmes speaks of in describln&: the powers of govern-, ment should not cast a sh:adow whtcb engulfs if not completely obllterates the constitutional aphere assigned to the other brapches of the lovemment. In the ultimate analysis, therefore, the only limit to the Sup. reme Court's inordinate use of its power may be found in the· Court itself. An enlightened sense of self~restraint can alODe provide a check on the exerc1se of the very delicate power of Judicial review and enjoin the Court from extending the borders of its competence. It is in this light that I -envision, along with that great American Jurist, Justice Frankfurter. a Supreme Court whose :members are endowed with breadth of vision, with imqtnation, with capacity for disinterested· judgment with power to discover and to suppress their own prejudices. I like to believe that the Supreme Court Justices have the capacltY to transcend· the boundaries of their own individual feelinga and to ~· the hannful consequences that the immoderate flow of Judicial power may bring. · And so it Ls that, in the words of the eminent Fr.,nkfurter,, "the men who are given this ultimate authority over the leglsI_:.· ture and the executive, whose vote may determine the well-being of millions and affect the countey's future, should be subjected, to the mOBt vigorous scrutiny before being given that power. In theory, judges w1e1d the people's power. Through the effective .. exertion of public opinion, the people should determine to whom that power is entrusted. The countey's well-being depends upon· a farsighted and statesmanship Court. And the Court's ultimate dependence is upon the confidence of the ~le."lndeed, if ours is "a government of laws and not: Of-~ and "the law ls what the Judps say it ls," then it ls not perhaps too much to ask that they interpret and apply the law as mm· In the aovernment but under the Rule of Law. Januar;y · 31; .196~ · LAWYERS JotJRNAL THE SECRETARY OF JUSTICE VS. THE SUPREME COURT By LEONARDO P. VALMONTE Member, Philippine Bar Still puzzllna and In a sense intriguing the publlc are several umnawered questions raised In the wake of what has been :iDcorrect)y called the .. blast" of the Secretary of Justice against the Supreme Court. Incorrectly we say advisedly because a blast is all wind or hot air and his unprovoked attack was not ontlref7. This severe censure and lecture, it will be remembered, he launched last January 9 before the Manila Lions Club. The members were reportedly so stunned that they could roar neither their approval nor disapproval.. Maybe they were too polite to show their reaction. Some of the questions penistently asked are: Did the Liwag cddcism constitute contempt of court? Was it libeloua? Was It proper, cons1derlng the peculiar position of . Secretal'J' Uwag in the Judiciary? Did President Macapagal give It his sanct1on. tacit or otherwise, before its delivery? Tbc defense that the Supremt- Court is open and s11bJrct to criticism. is hardly relevant or pertinent. Never claiming· infallibilitJ, the Court Itself baa invariably sustained the citizen'• • right to criticize its decisions. Too well lt knows that U ia composed of human beings. and to erT Is human. But how can the SecretarJ of Justice dissociate himself from his high offtce when he takes It upon himself to criticize the Court and attributes to U dubious motives? Let us cona1der some of the things he said, not, surely, a5 a private citizen, but as a h1sh government official and mrmber of the party in power, patentl'y with an u: to grind. After admitting that the Supreme Court Is "the last bulwark of democracy, the guardian of our ci\111 liberties, the arbiter of constltutional controversies, the indestructible bastion of the rule of law," and other high-sounding cliches, Secretary Uwar, ln\lites us to "'look at our Supreme Court as a bod.J' or men" hardlJ wortb7 of respect or praise. They are, he affirms, '"affocted by preJud1ca, po15eaoecl ot caprices and owceptlble tn other frailties of human (beings) whose imperfecdons are often reflected. wittingly or unwittingly, in their judidal pronounct'mcmts." Malting his preliminarJ' encomium sound hollow, if not insincere, be tries ID disarm suspicion b,. assuring his audience that he bas "the hlahest respect for the Individual memben of die Court." EvidentlJ and quite strangely, that high respect does no\ apply to thl;m aS a body. Why not? Because the Court, · accontins to him, has "committed abuael in the name of Judicial supremacy'' whatever he meant by the term. He dilelaims 8n7 intention of "undermining the people's faith In the .SUpreme Court," and yet what Is he dolDg when he Uleits that its memben, for whom he has "the highest respect," are "affected bJ prejudices_" that they are caprlclous and frail, and plagued with such imperfections that their decisions often reflect them? Coming to the poiltt after beating so much about the bush, the President'• chief legal adviser and eztension of his perIOll&llty charge8 the Supreme Coun with having "time and ap1n. perpetrated'", presumably as part of Its so-called exceaes, •a velled assault on purely executive functions, thereby abusing Its power or Judicial review." Worse, he charges the Su~ Court with partiality. It is partial, he claims, to the Jeaillative body 8lnce it has adopted the "hands-off policy Wben. called upon to decide questions involving legislaUYe acts." AILd. yet, he says, the CoUrt displays ••ammty to poke 'i&s fin. pr on the pie" when · It ·comes to "executive acta.'" As a remit, it betrays "mqDilieen.t obaession" and ·'Judicial ezuberance," when the party involved is ·the executive branch. To prove bis point, Secretary Liwag cites two cases. The first was that of Dr. Paulino Garcia, chairman of the National Science Development Board, who after the 76th day of his suspension by the President, brought an action before the Supreme Court for his immediate reinatatement. Secretary Uwag contends that for allowing to elapse four months before promulgating Its decision, the Supreme Court ''had in effect created a factual situation by which a ruling of unreasonableness of the presidential suspension has become possible." So. he concludes, "The delay In deciding had slowly fonned the trap for the President.'' · . Stripped. .of its. legaL verbiqe, ·the Secretar:v's affirmation means that the Supreme Court bas dellberatety set the "trap for the Presi-t." Not content with so serious an accusation, he charges the Supreme Court ·in the "abuse of its power of Judicial review'' with finding it "convenient to skirt the sole issue: whether or not the 60-day period provided for 'in Section as or the CiYil Service Act applies to preaideotlal appointee." He araues that it does not . Secretary Liwag went further. "In making a finding of unreasonableness of the period of suspension," he said, "without any lepl Juat1fication whatsoever to suPPort its conclusion. the Court had manifestly gone out of lepl. bounds. In short, IP SecretaJ'Y Liwag's opinion, the Supreme Court was so prejudiced. that it set a trap for the President in violation of the law. Similar in nature Is the other case the Secretary cites. It involved Perfecto FQpOD, another presidential appointee, whose suspension of more that three months the Supreme Court also ruled as unreasonable. Through the use of an abstruse logic difficult to understand, the cablnet member i"IJlPUIDS the Court'a decision in the Faypon case, cont.ending that presidential appoin~ do. not fall within the pu~ew of -the Civil Service Aci But if the '16-day suspension is ·unreasonble as the Court dcicided, why should it be less rea1JODable when the suspension lasted three months and half? UnderstandablJ' enough. the Secretary of Justice accuse& the Supreme Court of bad faith by alleging that its decision in the Faypan case "Rfleclo a secret IODging fi>r the flllina up of an omission leR void by the legislature.'' So flerc"el.y doei he castigate the Court that one is tempted to ask who actuaUr Is abusing: its power and for whom? Secretaey Uwag, if we understand him, seems to sustain the thesis that since the President is the supreme authority, Only the people cm "censure and crucifJ him" at the polls, and ·that the Supreme Court, acting under the democnltic doctrine of checks and balanc;es, has no right or power to pass· judgment on '1the reasonableness or unreasonableness or his. acts." Does not this theory, if accepted," lead to dictatorship? It may be argued, he admits. "that without the Court'• interference, the President iB liable to abuse his powers." But that ought not matter at all, because after all, "what power of government," be asks, "Is not susceptible to abuse?" EvidentlJ', its susceptibility to abuse is sufficient eXCuse for him to aanction it. One could cite as a t:vpical and unfortunate instance, the Secretary'• right and power to excoriate the Court In the guise of cridcism and in the name of polltics. The idea that the abuses committed by the Presldent and memben of Congreas "are passed upon by· the sovereign. author· ity, the etectorate, while those committed hr the Supreme Court are not," 'Hell1.S to haVe a ·pecWiar'·ap~it1',to· the Secretar7 of JUstice. ·Does he imply· that the alleged abuses by the highest .. (Can- _t.pqe) . . .. IA~JOURNAL Jommry 31, 1!163 UNITED STATES COURT OF APPEALS DECISION District of Columbia Cirouit KONINKLIJKE LUCHTVAART MAATSCHAP11LI N.V. KLM ROYAL ouri:H AIRLINES HOil.AND, et al, Appellants, v. Gertrude Owen TULLER, individually as Executrix under the will of William Gordon Tuller, deceased, et al., Appelleea. No. 15716 (292 F. 2d 7'15, (1961) Argued Oct. 21, 1960 Decided June 23, 1961 An action was brought against an airlJnc: company and its ground aaent for the wroD&ful death of an ahplane · - . who drowned alte"r the airplane crashed in the tidewaters of a river about 7,000 feet from the end of the airport runaway at Shannon, Ireland .. The United States Distrlct Court for the .m .. irict of Columbia. MacGuire, J., rendered a judgment for $360,000, and the airline and its ground agent appealed. The Court of · Appeala. Burger, Circuit Judge, held that the evi!leDce authorized a finding by the Jury that the airline com- and Its around agent were guiltJ of willful miaconduct, so that the $8,300 liabi· litJ limitation of the Warsaw ConvenUon was not applicable. Judgment affirmed. I. c-.. 406.5(61 ··eourt··oi Appeals,· on appeal_by.defendants, was requh;ed to take that view of evidence most favorable to plaintiffs and give them benefit of all inferences which might reasonably be drawn from evideni:e, 1n considering whether defendants' mot1on to dismiss complalD.t for all amounts 1n excess of certain sum should have been granted.. 2. Federal a.a l'nlcedare 21Z7 On motion for directed verdict, evidence must be construed moot favarabiJ' to plalntlff, and to such end he Is entitled to fUll effect of every leptlmate inference therefrom. 3. Fedmal CM1 Procedme Zl27 On motion for dh:ect.ed ......ire~ cue should ao to JUJ7, If, on et1deace. construed moat favorabl)' to plaintiff, rcuonab1e JDeD miaht differ, but motion should be panted if DO reasoaablc man could reach verdict for plainiiff. 4. ea-.. 316 (131 Evidence - fllldiq ID action tor wrongful death of aiJtine - · who drowllod after airplane crashed in tidewaters. ol river. that failure of airline to establish and e.ucute procedures to Jmtruct paS11DgerS aa to location and. use of life vests wu conscious and willful omlsaion to perform positive dutJ" THE SECRETARY ....•. (Continued from - I) tribunal of the land should also be passed upon b7 the electorare at the polll.·every rour---or·siz J'eats··u··t1te case :may be?. Woul4 not that mean ult1matel7. that the country would not Deed Jurists for its Supreme CQW1 but pollticlans? Of course, "tbe ~ of law ls Ulllafe handa when the courts cease to functicm. as courts and become organs for control of poUqt as ODetime Justice Robert H, Jacbon says, but whJ' should that matter? ID his highly instructi.. bOOll, - Struale tor Judlclol - · the same former Supreme Court Justice relatos that wHoward H. Taft was P1Uident. Hanlson's Solicitor General, .he san:asticaUy ,.,,.- to· the membiors ·of the Federal JanuaJ:7. 31, ltU and consUtuted reckless disregard of conaequences, !iO that liab,ility of airline could not "be llmited to ,8,300 under Warsaw .Q?Dvention. Warsaw Convention, art. 2&, 49 Stat. 3020. · · 6. ea-.. 3Al7 (6) Jn determining whether failure of airline to establish and execute procedures to instruct passengers .s· io ·1ocati0n and uae of life vests was conscious and willful omission to perform pclS!i· tive duty and constituted reckless disreprd of consequences, So that ,8,300 limit under Warsaw Convention was not applicable In action for death of Pusenaer who drQwned after airpl~ ccaahed in tidewaters of river, court was not bound b7 ·limit· of Irish Government's regulations relating to llfe vest instructions on airplanes. 8. ea-.. 316 (13) Evidence warranted conclusion by Jury tu action for wronsful death of airline passenger, who drowned aft.er airplane crash· ed in tidewaters of river, that airline's aaents were guilty of willful misconduct in falling _to send. distress radio - · '!"cl that therefore the N.300 liability Omit under the Warsaw Convention was not applicable. War8aw Conventron, art. 25. 49 Stat. 3020. 7. ea-.. 311 (13) Evidence authorized finding by· JW7 in action fo< wroD1fu1 death of airline passenger who drowned after airplane crashed ln tidewaten of river, that failure of crew. 01: ~lane tO iab available steps to provide for paasenger's safety after airplane crashed was conscious omission made wltb reckless disrep.rd of consequences,, SO that '8,300 liabUitJ' limit under Warsaw Convention was not appllcable. Wanaw Coo:YentioD. art. 25, 49 Stat. 3020. . •• Conlen, 316 (13) Evidence authorized finding by Jury, In acijon tar ~ death of airline passenaer, who drowned after a1rpz.me crasl1" (Continued next-) . Supreme Court U a "lot of mummies.0 He was then ~ ing his "great. irritation and conte,mpt .for. the1r att,itude" towards bis · President's administration. Years later, Taft !tad reasOD to eat hll words. , Tltat was ·when ironical)J lie beca,me the leadiDg DlUIDID,J' or Chief Justice of the sa,me Court. It is possible that Secretary Uwaa may eYeDtaUJ]y have the same experlence, conaidering the strange -rlc:lssitudf:ll of politics. In fact, he mQ' feel the same reaction as 1hiit ·Of ·a senator who used to attack with acerbitJ" a eertaill. · agencF ·of the government until he became a loading member of· it. Alked wby he ceased to be critlcal of it, he frankly ·answered, _"Because now I ·know better." Page /f in tidewaters of river, that failure of airline's ground. agent to be aware of loss of radio communication with airplane and to initiate prompt search and rescue operations was conscious omisalon of performance of positive duties, so that $8,300 liability limit under Warsaw Convention was not applicable. Warsaw Convention, art. 26, 49, Stat. 3020. 9. Fedelal Civil Procedure Im Application of Irish Government's order relating to life vests in airplanes as falr subject of comment in argument to Jury 1n action for wrongful death of airline passenger, who drowned after airplane cruhed in tidewaters of river about 7.000 feet from end of Irish airport runway. 10. Canters 317 (II) Pages of airline manual relating to duties of radlo operator when there is ditching of airplane were properly admitted in action for wrongful death of passenger, who drowned when airplane crashed in tidewaters of river. 11. Anesi ond En'Or 316 (I) 218 (1) . Appellants were precluded. from raising obJectlon on appeal that contract was not construed by trial court and was subject of argument in appellee's summation, where appellants did not request specific instructions on meaning of contract and made no objection after charge. Fed. Rules Civ. Proc. rule 51, 28 U.S.C.A. 12. Evldace 123 (llj Statement made by radio operator of airplane to inspector of accidents at airport eight or ten hours ·after airplane cnlshed was not admissible as part of res gestae in action for wrongful death of passenger. 13. -243(2) Statement made by ndio operator of airplane to inspector of accidents at airport. as s-rt of authorized. Inquiry into causes of crash of airplane and relating to ·radio operator's duties and acts within scope of his employment, was properly admitted in evidence in action for wron&ful death of airplane pasaenger. 14. Appal ond En'Or 215 (I) 216 (I) • Alleged error because of failure of federal district court to give certain instruction could not be considered by Court of Appeals on appeal, where no such instruction was requested, and no objection was taken to charge because there was no such instroctlon, and appellants had full uninhibited opportunity to object to charge. 15. Death 67 Evidence that income of deceased would have increased over full span of life expectancy should have been received on issue of damages in action for wrongful death. 16. Courts 488.1 (21) Reviewing court may reverse, if at all, for excessiveness of verdict only if verdict is so grossly excessive or monstrous as to demonstrate clearly that federal trial court abused discretion to pefmitting it to stand. 17. Courta " (I) Award of $360,000 for wrongful death of one who had life eopectancy of 36 1/2 years, and who earned salary of about We 000 to 20,000 a year after taxes, was not so excessive that it should have been set aside by federal Distdc~. ~rt. ·----o00---:.: Mr. William l. Junkennan, New York Cit.Y, for appellants. Mr. Murdaugh Stuart Madden, Washington, D.C. for appelleel. Mesmo. Theodore E. Wolcott ond John S. Chapman, Jr., New York City, both of the Bar of the Supreme Court of the State of New York, were allowed to Ugue pro hac vlCe for appellees, but dld not argue. Before Mr. Justice REED,* and WILBUR K. MILLER, Chief Judgo, ond BURGER, Circuit Judgo. BURGER, Circuit Judge. This is an appeal from $350,000 jud&111ent foi" the appel.lees· · • Sitting by designation pursuant to 28 U.S.C. 294 (a). ih an action for wrongful death. The decedent, William Gordon Tuller, was a passenger on a fllght of Konlnk1Jke Luchtvaart MaatschappiJ N.V. KLM Royal Dutch Airline Holland, (ICLM), from Amsterdam to New York which crashed approximately one mf.. nute after take-off from its intermediate stop at Shannon, Ireland. The plane crashed in the tidewaters of the Shannon River some 7,000 feet from the end of the airport runway. As the wheels of the plane left the ground, the control tower radioed its precise take-off time but the acknowledgement required to complete the take-off procedure was not forthcoming from the plane. Receiving no response, the tower made repeated attempts to make radio contact, without success. SABENA. (Societe Anonyme Beige d'Exploitation De La Navigation Aerienne) KLM's agent and flight representative at Shannon, had a radio capable of monitoring such messages. On this occasion the monitor was turned off immediately after the tower sent its part of the take-off message without awaiting the plane's response. As a consequence SABENA officials were not aware for some time of the failure o1' the KLM flight to answer. When the tower eventually noUfied SABENA. ef the 1068 of Fadio. .contact, SABENA did not advise Aer Ungus, KLM's operational representative, although it was SABENA's duty under its contract to inform A.er Lingus of probable interruptions of service or retarded progress of the flight "as soon as possible". In the KLM plane three radio microphones were available to the flight crew, the pilot, co-pilot and . radio officer, and each microphone was tuned· to the tower frequency. Notwithstanding this, no distress message was transmitted either when the plane began to descend or after the crash. When the plane "shuddered "in a stall the radio officer primarily charged with radio communications was thrown from his seat because he had failed to fasten his seat belt as required by operating regulations. After the crash in shallow water, the crew evacuated. most of the passengera to two rubber dinghies, which were moved along the side of the plane b7 means of rope fastened to the • fuselage. Tuller and another passenger made their escape through a rear window and stood on the tall of the airplane without life preservers. When their shouts were ·heard: by. the~ membeI:s of the crew In the second dinghy, the crew attempted to maneuver the dinghy around the wing. Findinl the tow line too short, they cast off the line and attemptea to paddle the dinghy to the tail, but their efforts were unsuccessful due to the tide and wind and the Inadequate size of the paddles. Additional ropes were available In the cockpit but ~ not used. The ship's officers made no effort to determine the condition of the passengers on the tail of the plane or to ascertain whether they had life vests. For over four hours Tuller and his companion remained on the tail In a rising tlde. Near dawn, information. of the crash and Its location finally reached ~ tower, and a launch was dispatched to the crash scene. Just as the launch approacMd, with the water by then chest high, Tuller lost his footiDi and slipped into the water; his body Was later· reciwered. Hia com-· panlon was rescued. · A booklet inserted in the back of each seat of ihe plane stated that W'e vests could be found in one of three locations In KLM planes, but at no time was the matter of life vests btoulht to the attention of the passengers nor had they been told the specific location of the vests in this airplane or how they should be fastened or inflated. The jUrJ' was Instructed. that under iru; Warsaw Convention, which· th . .- court ·TUled govemecMlte"'lla1'ilitJ"of· th>o· alrllnes, the damages were. to be llmite4 to 18,800 unless. the defendants were guilty of "willful misconduct", in which case the $8300 -limit did Page 8 LAWYERS JOURNAi.· January 31, 19113 not COJ'.ltrol. 1 The JW'J returned a 'lel'dlct for the plaintiff in """ oariotini of '368,ooO. ni~· ~p~al presents these issues: · (1) Was there sufficient evidence pf "wilftul misconduct" to go to the JUQ"? (2) ·.Was there error in the reception in evidence of (a)._, Irish order per4Uning to Jnstruel:lon on use and location ol. life vea:ts, .(b) pages of a KLM. manual relatina: to ditching procedures, (c). the coatract between KLM and SABBNA, (d), ~ statement made by the radio operator at a hearing bet~re Irish authorities some twelve hours after the crash? (3) Was ~ reversible error in the failure Qr the trial Jqdge, absen~ request or obJectlon, to clarifJ. the Impact of KLM's Jiegligen~ on SABENA's liabilit:J? a~ Was there sufficient evidence to support the damage Evidence of Wilful Misconduct [1~]. A:t the close of the case appellants moved to dismissthe CO;lnPlaint. for all amounts in excess . of •8300 and for •· ~~ yerdict in favor of appellees for '83p0 for want ,of evidence of lNilful mlscollduct under the terms of the Warsaw Conve~tlOii. . In considerina; whether the appellants were, as they clau:n,. endtled to the rellef thq IOUgbt by their motion we are of ~ •. obllied to take' th&t view of the. evidence mosi {fvo..,: able 19 appellees and give them the benefit of all inferences which a:ii&ht reasonably be drawn from the evidence, Gunning • v. eoo1ey;.19Jo, 21!'U.!;. 90, 94, sos. et. :z.i1. 74 i.. Ed. 1io. · ·On a ritotioil. for a dlrectf:d verdlct, "x x :a: it is well settled that the evidence must be construed most favorably to the 'plaintiff; ·to t1d8 end he Is entitled. to the full effect of every_ legitimate inference therefrom. If upan the evidence, so considel"ed.- reasoaable· man could· ·reach a verdict in faVoJr of the plaintift, the motion should' be granted." Jack.sell v. Capital Transit Co., 1938, 69 App. D.C. 147, 148, 99; F. 380. 381, c(\t'tiorari denled. 1939, 306 U.S. 630, 59 S. Ct. 464, ·83 L. Ed. 1082, quoted in Kendall v. Gore Properties, Inc., .1956, 98 U.S. A.pp. D. C. 3'J8, note 3, 236 F. 2d 673, 679 note 3. nie jury was iastructed that "wilful misconduct is the lntentiQD81 Performance of an act with knowledge that the • • • act Will _probably res,ult in injury or damage, or • * * In some ~;:- 1ts to imply reek.less disregard of the consequences of its ~ance; and likeWise, it also means • • • failure to act" in sw;h:· circumstances. This was substantially the charge apProvet:l by. this court in Ainerlcan Airlines, "Inc. v. Ulen, 1949·, 87 U.S. A.pp, D. C. 307, 186 F. Zd 529, where we also suggested. that· wilful misconduct means "'.'8: ~liberate purpoai: not to discharge some d1,1ty necessary to safety.n Id., 87 U.S. App. D.C. at page 311, 186 F: 2d"at page 533. · · The;. _phrase "wilful misconduct" pccasionc:d considerable discll.$Slon iq., the drafting of the W~w Convention in 1929. Uabillty was limited to 125;000 French Francs .(then approzimate.ly $12,~ '-:l-:- and now approximately $8,300) for a single p~ unless Ar-dcle 2S .of. the Convention applied. See note 1, supr~ The U.Qitcd States was not a participant but in . the discussio.ns relallllig. to the meaning of the French word "dol" used·· in the teJlt of Ai'tlcle· 26· as the Eogllsh del~~ ,said "I wish, it. to. be noted on the record that -~ .a result. ~ the explanatiou. we. 1. 'f.he. Wanaw. (9nvent19n, ,p~ides: :. . "0) The- carrier shall not be entitJed to avail himself ~~~Dt~~e0fd~ai~~~':d w.!;chhi:: ~~ .. .duct. or by such defauJ\ o~ his par!= as, in. accordan~ with ,. ~~f tt-~ court to which the case ·is submitted, is •• Cc!DveiJUoil;to~~~~~~9~oDdutL" ~ars•w t1$1slate these words as 'wilful misconduct,' a, well-understood exJ)nosslon in our law.'~ · ' •· The alleged wilful m!scOncluct ol the appellants In this case resolves itaelf into four elements: (1) failure to properly ·instruct passengers of the location ot life vests and in their use;· (2) failure to broadcast an emergency messaae; (3) failure to' take steps to provide fOr the ~ety of Tuller after his peril wa5 known; (4) failure of SABENA to be aware of the toss of radiO communication wlth the Pll!:ne and to initiate prompt search and rescue operations. (I) The evidence showed that Tuller w~ &live within seconds before the rescue launch reached the aiipl8ne, but that he lost his tooting, fell into the water, and was lost. Since the parties stipulated that Tuller was not injured iJ1. '1e . crash, the .Jt.iry could reasonably have i~ferred that If TuUei- bad been wearlnJ a life vest his ltfe could have been saved. Significantly, the creW. members, who knew the location of life vests, realized the need and ,promptly put them on. There was testimony that no an"nounc:ements ~ Inst.ruction& concerning life vests were made to passengers befOre take-offs or during the ffishl, and the passeqer who. atood with Tuller on the WI '"8Wied that he did not know ~ the life veots. were 1.oi::ated. The descriptive -... inserted in the back of ea?t s.=at :slateLI that the life vests c:ouid be found tii ·* qi three p~es, but at no Ume were the pusenpra int~d w~ they could be found in this particular aircraft. Re~. fJf. · the IrUh Govermnent do - require life vest ~- unless a flight Is more thlm 30 minutes travel from land.. ~ .m,ht was alwQ'B within 30 minutes flight from land, provided ·it· maintained normal flYinil speed-ud iemalned airborne, wltid>. of cowse it d1cl not. [ 4-5] In view of the sravlty of the hann which ,;.,.r4. follow. an emergency landiDJi on water GD a nisltt flight wbich conten> plated landings and take-offs at ~ast itwo airports .near the sea,. the lllll' could reasonably find that the failure of KLM to atal>llab and execu~ procedures to instruct passengers as ~ .the location ~ use of life vests was a consclous and wilful omission ' to perfmm. a posi~'t'e duty and constituted reck1esa d1sreprd .of .. the 99D1equences. W:e are not bound by the lil¢ts .of the. I~. Government,'s regulations as to when life veat instr.qctionB sbouid be given to fulfill the duty of ·care owed le pasaengon. Cf ~· bin v. British Airways Corp. (1952) 2 A. B. R. 1016, .io1g. (Q.11.). (2) A distress message could have been sent merely by uttering the universal signal. in the. words "King Yoke Mayda:y" or' ·even •'Mayday..'' ImmediatelJ ·befQre taJre.off. the i:adiG!' officer was at his desk in the plane with· a mlc:raphone before. him tuned to the tower frequency~ But dutins ~ descent he' was thrown .to the floor because he ·had failed to take his seatand fasten his seat belt. The 1'LM operations. maru.W requid all personnel to have a "conscious anticipation PJ'ior to· .tak&e& of possible failure", and to send a ·distress message as-.. soon llS· an emergenr~y arose.a Regulations of the Irish Govemment· alsel requ1R:d· public transport . aircraft .. to , hotlfy . aPPJOPl'iate. author2. •1we ·have 1n ·ouf country the eli.presston 'wilhtl mis-fcOnduct' * *' •. it ·covets not o.ilIJ · acts accomplished wit}J deliberation, but also acts of thlreleasness without regard of ·the consequences;" ProcesVerbaux -II Conference Internationale de DrOlt Aerien, 111-12 Octobre -1-929, Varsovie, p. 40-42, published by the Ministry ·of "Foreig'n ··AH.airs of. Poland, 1930. The declaration of adherence to the Convention ::~.~hi~ ~8:da'Ui:'~~='m1SC:~!tfli: translate "do!". 49 Stat. 3020 (1934). This ·was the English translation ·before the Senate for consideration. 78 Cong. Rec. 11680 (1934) . 3:. Tiie. ·KLM operating numua1, page as. states:· · ••Surface stations and ships should· be lnformed. of' the existence of an emergency ·as soon as it arises. :nus should ~ ~=·if1!t: 1!:1~shth'~ ~:irp1d::~? :r~ lhe eii;eqeDey Is owr." · · · · · ': , ,., .. ides "b7 the quickest means available" of any accident involving the aircraft. The plane was equipped wlth radio microphonea at three J)OSidons; the pilot's, the co-pilot's and the radio operator's. Here there was a brief period, even if only seconda, as to which a jury could reasonably find that the behavior of the plane gave notice of' a possible crash and time sufficient to utter the distress signal. Furthermore, there was no attempt to send a message after the crash: there was evidence that the electrical 57stem was so organized that the plane's radio would operate from independent power after the main ignition switch was thrown to avoid explosion and fire. In addition there was a portable emergenc1 radio operable by hand crank in the rear of the plane. [6] Had a message been sent the control tower by any of' the avattable means, the authorities would have been Immediately aware of the crash and rescue equipment could have been dispatched promptly rather than some four hours later. Ac· cordingly, the jury was warranted in ooncluding that ·KL.M's agents, in failing to send a distress message, committed wilful misconduct. (3) After the fim dinghy was filled with passengen, the captain and radio officer made a final check for passengers in the cabin and then boarded the second dinghy. Sliouts were heard from the passengers on the tail, and the crewmen attempted. to maneuver the dinghJ around the wing with the ropes at· tachect to the fuselage. Finding the rope too short, and fearing to take tbe dinlbY over the sharp edge Of the wing. they releued. the rope and tried to paddle the dinghy. But the round ' rubber vessel would ndt respond to their small paddles and in· stead drifted with the tide toward the shore. The crewmen had no ezpertence in the use of the dinghies except in a large swimming pool. (7] The crew was aware that 1t was possible to rrianuever the dinghy by ropes attached to the fuselage because they had previously maneuvered it to the main door in that fashion. Moreover, additional lengths of' rope ·sufficient to reach the tail were available in the cockpit. Various altemaUves were plalnly available: one of the c"rew could have swum to the tail of' the plane with the rope and pulled the dinahY to the men or vice versa, 8s had bien done with respect to moving the d1nghJ in earlier maneuvertng. No effort was made to put a crew member on top of the cabin by use of ropes thrown, or carried by a swimmer, to the opposite wlng engines. Had this been done the tail passengers might well have been guided over the top of the cabin to the dinghy. The Jury could reasonably find that under theae c1rcwnstances, the failure to take available steps to provide for Tuller's safety was a conscious omlsslon made with reckless disregard of the consequences when it was known he was in a poaltion of peril. There is no suggestion that the departure of the second dinghy without making some effl>rt to provide for Tuller's safetJ was neceasarJ ·to protect the lives of the occupants of that dinghy. (4) As agent for KLM, SABENA was charged by contract' ~A contracted to "render * * * services to the Cartier's (Kl...M.'s) fllght operating within the area of responsibility (at Shannon) as described. In Paragraph 3 of this Annex· thereby maintaining close liason with the operaUonal representative (Aer Lingua) designated by the Carrier so as to coordinate his req~ts. "Maintain contact with all flights within hil area of responsibilitJ noting advanced or retarded progress as compared with mght plan and infonn the operational repre-sentative (Aer Ungus) ~led* b;v the Carrier. tor ~ ~ ev:ft t:1 rll:titem.,::;n;KI:~ ii!<»;ns-:=:! in the relevant Opera.~ons ~an~ * * *. ~'tf:: n!~ CO:te c= '1t:;Y c!~;~i! fljJ1! fllabt to the operations department of the Carrier, with checking the progress of the flight and notit)ing Aer Ungus, the operational repreaentative ot KLM, in the case of retarded Ptogress of' the fltght. However, as a result of the switching off of' the SABENA monitor radio without waiting for the completion of the take-off message and before It was known whether the airplane had failed to respond together with the absence of SABENA employees from the office at subsequent perlods, Aer Lingus was not notified of the loas of communication, for several hours, nor was the KLM statiqn manager so notified.& While the control tower personnel had broad duties with. respect to contact with the plane and did in fact remain aware of the plane's failure to respond, SABENA as KL.M's agent had con1ract duties as noted in the margin. But SABENA was seemingly satisfied with the loss of contact with the lCLM plane at the critical moments of take-off, landings and take-offs being the most hazardous of their operations. In view of thl8 it is leas surprising that the tower personnel did not pursue the matter agressivel;v. The vital importance of communication between pilot and control tower ii sugsested by the severe govenunental sanctions for'· filil(ire to· perfonn required acts of communk:atlon. The search and rescue organization of the Shannon airport did not have its own planes. As KL.M's operational representative, A.er Ungus was the locai facility capable of Instituting a search. In recognition of this, the contract between ICLM and SABENA. as we have noted, required. SABBNA to advise Aer Lingus Im. mediately of' 8llJ' facts related to an interruption of se"lce, and to keep Aer Ungus informed of the movements of the aircraft. Some forty-eight minutes after take-off, a SABENA agent learned from the control tower that radio contact with the plane ~ ceased shortly after tate.off. Nevertheless, A.er Lingus was not notlf'ed of this fact for another hour and thirtJ' minutes. Finally aware ot Joss of contact and the plane's failure to report a safe and completed take-oft SABENA as KLM's representative had a duty to "take action necessaey for the sat'etJ of the flight" and press every avallable inquiry and initiate through A.er Ungus emerpncy swface craft investigation in the area of the known take-off pattern. (iii] Here no real effort w;i.s made to check on the "missing" plane; Wltil nearly two hours after take-off when the tower sighted flares in the take-off pattern of the KLM plane:· ·iWen then no surface craft were dispatched. Later another plane In routine flight sighted the crashed ship in the growing light of dawn and finally surface craft were dispatched. SABENA's failure to infonn Aer Ungus of the loss ot communication with the plane 1t was responsible for, plainly delayed emergency" search and rescue action which, had it been initiated. in these circumstances even as much as f'lve minutes earlier, could have prevented Tuller's death. The defaults of SABENA as KLM's ground agent were conscious omissions of performance of positive duties relating directly to the safetJ of passengers. We bold that as to each of the categories of alleged wilful misconduct of KLM there was sufficient evidence from which a jury could reasonably :rind that KLM was guilty of wilful misconduct as that term has Seen interpreted by this court under the Warsaw Convention; we hold also that there was sufficient evidence from which a Jul'J' could reasonably find that SABENA was guilty of' wllf'ul misconduct as that term has been interpreted by this Court under the Warsaw Convention. There is also evidence from which a jury could reasonably find that as to each category of wilful misconduct the negligence in Cl\IC9tion contributed proximately to Tuller'• death, - - - .. -Ensure that probable or known interruptions to scfle. ::';sos~lenfo1tth°r1"~n~:C:e:;ti;: J::,:W br the Carrier." s. There was evidence that;if·waa; .the established vract:Jce that a radio mess~ was not ~ as ,complete until ack=~t 0~~of'f ~continued to request Pase 10 LAWYERS JOUllNAL January 31, 1963 Alleged Errors in the Reception of Evldence [9] ( 1 l lrfsh order u to Ufe vals. Appellants' objections go "solely to the interpretation put upon tbls order by appellees' counsel in arsument to the Jury. The applicabilitJ of the order was a fair subject of coinment in argument and there ls no substantial basis for disturbing the verdict on this around. [10] (2) KLM llUID.ual. Pages of a KLM manual relating to the dUtlea: of the radio operator were admitted over objection. The grOund of the objection was that the manual applied only to planned and controlled. emergency landing on water and not to an "Involuntary crash landing. As a result of questions by the appellees' counsel, and questions by the trial Judge after impeachment of the witness by a prior deposition, a sufficient foundation was laid for the admission of this manual in evidence. The radio operator finally admitted that if a crash occurred it was the duQ o"f the crew to cany out as many as possible of the planned ditchlng procedures. [11) (3) KIM-SABEN.\ contract. It is urged as error that the Con_tract between kLM and SABENA was not const~d by the ·trial cour. and was the sµbject of argument in appellees' 8111DD18tion. AppeUants did not request specific instructions on the mtanlns of the cOntract and made no objection after the charge;· they are precluded from raisins this objection now. Fed. R. Clv. P. 51, 28, U.S.C. · (4) Radio operator's statement. Appellees took the deposition of the kLM radio operator, Oudshom, after his employmeD.t .with KLM was tennlnated. In the deposition, which was received. as part of the appellees' case in chief, the radio o.Pera· tor stated that he did not send a distress passage before the • plane· crashed because there was no sufficient time to do so. He was then asked if he had made • statement to the Inspector of Accidents at the Shannon Airport some hours after the crash. The witneia admitted mak1n1 statements at the hearlna, in question, which he said was attended. by "one of our chief flighi eng1Deers of KJ,.M *** one of the. people of 1he Dutch Datdt ·CAA" and others. At this point appellees offered and the court received over objection a transcript of the radio opera· tcrs statement at the hearing before the In.spector of Accidents. Appellants objected to the proffered transcrl.pt of Oudsbom's statement on the ground that "It is not part of the res gestae", thus indicating that the statement was challenged 'as hearsay. After argument the District Court after first indicating that he regarded it as part of the res gestate, then reconsidered and ruled ·that "'The statement refers to the accident, otherwise there would be no purpose 1n balling the statement made. It was made* * • at ShannOn on the same (488) day of the accident ~d in response to the pardcular question ·as to wh)' he didn't send the message. "I think it is admissible and I will let it in''. The pertinent part of the statement made by Oudshom at that time was . · "We were tuned at frequency of 118. 7, the tower frequency, and I honestly must S8J' that I d1d n°' think when tt happened, to blre the microphone and tell people there was something wrong on ·the plane. I could tell you that would Dever happen. You first think of your llkln, and then of tbe mlenJplume. That was my feeling, because it happened. so r .. t.· (Emphasis added.) The trial judge did not try to limit the effect of this state ment in any way. Realistlcally it could Dot have been admitted mei-ely for purposes of impeachment tn the circwnstances shown here.' The challenged statement must be viewed as an import6. Appellants' contention that the appellees lmproperJ.y impeached their own witness, Oudshom, is contracllcted ln appellants' own brief by the argument that: ·· "The foregoing statement was actually not a contradiction of Oudshorn's testemony that the accident happened. so .fast that there was not time to switch the frequencies in order to send out a message 1md that be d1cl not tbiDt: of ant piece of substantive evidence on the issue of wilfful misconduct. As such It disclOled an awareness of the existing ~s and had a direct bearing ori whether there was reckless disregard. of the dangers to which the plane and its passengers were exposed. ([12) Appellants argue that the challenged statement does; not fall within any of the exceptions to the he&rSBJ' rule pointing out particularly that the hearing at which it wal made oc-. cured 8 .to 10 hours after the crash. We agree that the utter-'. ance was too remote after ihe crash. We agree that the utterits admis.sion as part of the res gestae. However spontaneous bl the contest of the hearing, it does not meet the standards of res gestae. in relation of the accident. Appellees contend that Oudshom's post-accident statement is admissible because it was made while he was an employee of KLM and was his explanation of hla performance of duties within the scope of his emploYltJ.ent. From this they" urge that the utterance ls imputable to KLM. Jn answer to this appellants contend that the radio operator was •ot a XLM employee when the deposition was taken or when the testl1110DJ' was read into evidence at trial, and that the radio operator had no duty or authoritJ tQ. make declarations binding OD kLM at the hearing of ~ IDJpecJ.or Qf Accidents. · The radio operator waa & KLM. ·empfoyee when he uttered the challenged statement. It ls· true that members of the fllsh.t 'crew of an airline are hired primarily to work for the airline, not to speak for iL But in this context, having in mind . ~ public nature of the duties of crew members toward com"QlOJI carder passenprs. it was as much a part of the crew's duties to account to public authority for the manner iii which ~ duties were discharged as it would be to account or i;eport to the employer. Whether KLM acquiesced in the tnq~ey, or whether it had no choice in the matter is Dot 'entirely clear frcm. the record; however the record discloses that a KLM representative was present at. the hearing· and that Oudlhorn's. statements were recorded without objection. Many writers on 'evldence1 have urged that rejecting earl1 post-accident statements of an employee wbUe receiving the employee's considered statements in the courtroom perhaps several years after the event ls to give preference to the weaker over the stronger evidence. Had Oudshom made substantiall7 the same utterance within the hearing of passenger. as he emerged from the cabin of the plane We would Permit the passenger to testify to what was said as part of the res gestae; Jet the, passenger's testim0D1 might well come three 'or four years after the event and be dependent upon his recollection. of the words uttered. That, surely, 1s not more reliable th~ Oudshom•s state; ment against his interest, uttered and recorded some eight hours after the rescue, in a formal process of reporting to the Irish Government concem2D.g the occurence. Apparently with this in mind the proposed Mo4el Code of Evidence rule 508 (a) admiis the employee's statement 1f ,.the declaration concerned matter within the scope" of the .declararit's employment. See also Slifka v. Johnson, 2 ·ar.; 161 F. 2d 467, cerUorari denied, 1947, 332 U.S. 758, 68 S. CL 67, 92 L. Ed., 344; Martin v. Savage Truck Line, D.C.D.C. 1954, 121 F. Supp. 417. Oudshom's statement clearly concemed a matter ~n the scope of the radio operator's employment; slnce his ~so. The statement made some 12 hours after the ~ cident that at the time of an airplane crash one thinks of one's skin before thinking of a microphone, was no more than a mental reaction at the time it was given - it had no probative value other than to stir up -passion, bias and prejudice on the part of the Juey that is exactly the way 1 plalntiffs'. ·counseJ uaed it." · 7. _See ~~ick, Evidence, Sec. 244, at"519; (19~4-). lanuail' 31, 1963 LA\VYBRS JOURNAi. c;ompliance with undisputed safety reaWations was in question.• Had he been at bis assigned post with his microphone at hand Uld his lnstniments toned to the tower frequency, as they were, he could have uttered the "Mayday" distress signal in a fraction of a second. His explanation of his failure to do this was with· in the scope of his duties. Since reUabllity ls the basic test for the admission of any hearsay statement, the interest of tbe one who utters it and one to be charged is always important. That this statanent is adverse to the interest of KLM is pla1n. The statement was also adverse to Oudshom's peraonal interest in that it entalled the possible loss of his employment, lmpalnnent of his future employment opportunities, possible civil liability for Tuller's death, aod even the possibility ot criminal sanctions. We think t.hat sucli. a recorded statement meets any reasonable test of reli&bilitJ. The official nature of the Inquiry which elicited the statement, the Independent recording of the statement, the source of the utt.erances, and the interest of the utterer all oomblne to give the statement the earmarks of reliability absent in Pamer v. Hoffman, 1943, 818 U.S. 109, 63 S. Ct. 477, L. Bd. 646. Sureb' it cannot be said, as to the employee who uttered It or the employer who is charged with It, that its "prim&l'J' utlllty is litigatlbg • * *.n Id., 318 U.S. at page 114, 63 S. ct. at pap 481. See Pekelis v. T.W.A., 2 Ch·., 187 P. 2nd 122, 180, 23 A.LR. 2d 1:149. Certiorari denied 1961. 341 U.S. 951, 71 S.Ct. 1020, 95 L. Ed. 1374. The Second Circuit considered. the application of the federal shop - rule, 211 U.S.C. Sec: 1732 (1968)to a similar situa• tion in Petelis v. T. W~ A., supra. There reports of an alrllne accident investigation conducted by the airllne for Its own pur· poses were held admissible. Noting that the challenged materlal was not favorable to the airline's interests, that court ga'Ve the interest factor stgniftcant weight in determining 4'their eennarb of reliability" and in diltlnpishlng Palmer v. Hoff. man, supra. We need not reach the question whether the cl)alIenpd statement here Is admissible under the federal shop book rule In Ught . of our holding tbat 1t is admissible on other grounds. We emphasize that we are not here confronted with the problem of the admissibility of opinion evidence. See New TOl'k Ufe Ina: Co. v. Taylor, 1944, 79 US. App. D.C. 66. 147 F. u· 297; w'aSbinaton Coca-Cola Bottling Worts, Inc. v. Tawney, 1956, 98 U.S. App. D.C. 161, 233 F. 2d 363. An added dlatinguishlng factor is that KLM had full opportunity to cross-ezamine Outtlhom when the deposition was taken for the purpolle& ot this case. We are not unaware of the traditional arguments which can be advanced that exclusion of post·MCident statements of this 8. Ouclshorn tesllfie<I: "Q. Did every member of the flight crew have a seat with a aeat belt? A. That's right. "Q. What is the purpose of eeat belts? A. Well ID case of an accident, or in sudden stop or acceleration, that you are not thrown out of 1our chair. "Q. And you can continue rour duties? A. That's rlah~Q. If Jou.are not thrown out of your chair? A. That's righ~ "Q. ls there aDJ' reaulation requiring that these seat belts be fastened at aDJ' particular time? A. Yes, during take off and landlng they are supposed to be faatened. "Q. When Jou say during take off,' how much tlme does that encompass during the take off? A. Well, that means from when J'OU start off blocks until the Captain glvea: the command to switch off. the •sign ;Paaten seat belts.' "Q. Did you feel at the time you felt this shudder, and when )'OU were thrown out of your seat, (466) that tne plane was gob:lg to crash? Did you ban that sensatton, that JOU = rfeft 18.:::i~-sh~c.=~:~~. ~ was· a cruh. My personal opinion was that it was th&t." type may have value in that it tends to encourage free and full disclosure of information. See McCormick, Evidence Sec. 78, at 16o-61 (1964). But the problem is one of balancing competing considerations and on balance we think the ends of jus. tice are better served by receiving such statements when found to be reliable. (13] We hold that the statement made by Oudshorn,. the KLM radio operator, as part of the authorized inquiry into the causes of the crash and relaUna to his duties and acts within the scope of his employment w8s properly admitted in evl· dence. Alle,ed Errol'8 1n Instructions Appellants' brief does not assert any errors in the trial court!'>' instn1ct1ons to the jury. However, it is contended that the trial Judge precluded exceptions to the charge; and that error occurred in the charge with respect to the liability of SABBNA. Appellants' supplemental memorandum suggests that the tr1aJ court failed to instruct cqrrectly on the liabiJlty of SABBNA in that the lUIJ' was .told tbat o ~ .of wilful ~ by ellher or both defendants would bring them to the laslle of proximate cause. At no poJnt did the court instruct the jury that i~ the wilful muscanduct were committed soJeb' by ICLM, the pnnclpal, SABENA, the "11"11~ could not be held liable. No such inatniction was requested and no noted objection was taken to the charge in this respect. It should be noted that · KLM and SABBNA were represented by the same cow:aseJ. although obviousl1 at this point their 1Qterests inevitabl1 diverged. Rule 61 of the Fed. R. Clv. P. requires that objecUon be taken to errors in the charge in order to claim error on appeal. Some courts have taken the view that "the plain error rule may not be utilized in civil appeals to obtain a review of instnictions given or refused, where the ground was not raised 1n the trial court.'' Bertrand v. Southern Pac. Co., 9 Cir .. 1960, 2U P. 2d 569, 572, certiorari denied 1961, 365 U.S. 816, 81 S.Ct. 697 5 L.Ed. 2d 694, I (14] or course, if the trial court in fact prevented the objection from beina: made. an inviting case tor the application of the "plain error"' rule would be presented. We have examined the pmtions of the record relied. ·On by. appellen~ jO show that the District Judse in some way impeded or prevent. e~ the recQfding of a timely obJection. We are satisfied. that appellants had full and uninhibited opportunity to object to the charae ooneen>lng the liabiliq of SABENA If they desired but failed to do . so. ne trial of this cause was long and expensive and the contentions uochu"score ~ need for strict. compliance with the J11le which treats as. waived· that 'to which no timely obJectiOn Is made. · · The claimed error in the scope of appellees' arguments to tbe jury does not merit comment. ~· [16] The )uiy retu""'d a verdict of '860,000 for the appellees. The evldmce on the damage isaue showed a life expectancJ' of 36\fi years. Tuller eanted a salary of approximately P'D,000 or $20,000 a year after taxes as vice-president lncbarJle of engineering at Melpar, a cllvillon of Westinghouse Alrbrake.• Besides his widow, Tuller was survived by two children then aged four and eight reopectively. [16, 17] The award of $360,000. ls attacked as so exces~ve that it should have been set aaide by the District Court. We pointed out In Hulett v. Brinson, 1965, 97 U.S. App. D.C. 139, 141, 229 F. 2d 22, 25, certiorari dented 1966, 350 U .. S. 101~ (Contlnlledaextpap) ~ppelleea tendered but the District" Court rejected prof. r=.=ce ~ar::n toof ~ :Xti;!c='s ::.me m:: was relevant and should have been m!eived. O'Connor "· United States, 2 Cir., 1959; 269 P.2d 578. ,_ .2 LAWYERS JOURNAL January 3t, 1963· SUPREME COURT DECISIONS ·Rep, of the Pblllpplnes, Plaintiff-appellant,'. n. Damtan P. Ret, 'Defendent..appellee, G.R. No. L-13714, March 31, 1962, Paredes. J. 1. INCOME TAX; LIMITATION OF ACTION TO COLLECT; THREE YEAR PRESCRIPTIVE PERIOD IN SECTION 61 i~fo:A~~N~E1~~~~M~E~U~o~~ ~xi1:~~ SUMMARY PROCEEDINGS~The three-year prescriptive . Period provided for ln section 61 (d) of the Nationa\ Inter. ~L Revenue Code was meant to serve as a limitation on the right of the government to cO.llect income ~axes by the summai-y methods of distraint and levy, said period to be computed from the· time the return ts filed, or if there has 'been a neglect or refusal to fJ.1e one fl'OIJI. the date the retiirn is due, which ts March 1st of the succeeding year. (Col1etfor vs. Zulueta, 63 O.G., 6682, Oct. 15, 1957). 2. Ii>.;° ID.; ID.; CASES WHERE PRESCRIPTIVE PERIOD ' W.ER.E'. MADE APPLJCABLE.-The prescriptive period of three years was intended to~ be a general limitation on ihe Jisht. of the government to collect income taxes by 111mmary , Proceedings, Irrespective of whether· the tax-payer filed a return or not, or whether his return was true and correct or erToneous or frautlulent." 3. ID.i ID.; SEC. U (d), NATIONAL INTERNAL REVENUE .. CODE DOES NOT PROVIDE PRESCRIPTIVE PBRIOD FOR COILECTION OF INCOME TAX BY JUDICIAL ACTION; SEC. 331 OF SAID CODE IS THE APPLICABLE PROVISION. -Section 51 (d) of the National Internal Revenue Code, · ' which refers to the collec:tion of Income tax. does not provtde fOr 81Q' prescriptive period insofar as the co~tion. of income ta::r: bJ judic1al act~ is concemed, the prescriptive period therein mentioned being mere}y applicable to collection" by summary methods, as interpreted by Supreme Court. Considering tbil void in the law applicable to income tu. abd bearing In mind that Section 331 of the Code which Pre> vides for the limitation upon assessment and collection by judicial action """'°"' under TIUe IX Chapter II, which refera to "CIVIL REMEDIES FOR COLLECTION OF TAXBS," It may be concluded that the provisions of said. Section 331 are pnenl ta cbaracter which may be considered auppletory with regard to matters not covered by the title covering :income tax. In other words, Title II of the Code is a special provision wblch governs exclusively all matterB pertaining to income tu, whereas Title IX, Chapter 11, is a general provision which goVerns all internal revenue taxes in pneral, which cannot applJ' Insofar as it may conflict with the provisions of Title II as to which the latt.er shall prevail, but that in the absence of any provision in said Title II relative to the period and method of collectlen of the tax, the provisions of Title IX, Chapter II, may be deemed tp be suppletory 1n character. Hence, the Court of Tu: Appeals did not err in holding that the right of tile Government to collect the deficiency Income taxes for the years 1945, 1948, and 1947 has alreadY prescribed under section 331 of the National lntemal Revenue Code. (Coll. of Int. Rev. v. Bohol Land Trans. Co. G.Jl. Nos. L-13099 & 13453, Apr. 2, 1960). U.S. COllRT .•• (Continued from - Jo) 76 &ct. 659, 100 L.Ed. 874, ·"that the rule in the Federal courts is that an appellate court may revenJC, if at all,, for excessiveness of vm-d1ct only where the verdict Is so grossly .excessive or monstrous as to demontrate clearly that the trial court has abused its di#le.fe1;ion In ~ttiog ii t9 SU!.Jld." See Affolder ·v. New 4; ID.; ID.; SEC. 332, NATIONAL IJ\ITERNAi JU!VEIWE CODB NOT APPLICABLE TO CO!LECTION 01' INCOME TAXES BY SUMMARY PROCEEDINGS;' Al'PµCAJ¥.,1!" TO COILECTION OP SAil> TAXES BY COURT ACTIO!l,-Sectlon 332 of the Internal R.e¥eliue Code does not apply'· to income taxes if the collection of said tQ · w.ill be made by· "1111lmary proceedings, bec.U.. this Is prov.ldOd fot by Sectlon 51 (d) of said Code; but if the collection of il1eome taxes is to be effected by court ilction; then· section 332 will be the controlling provision. · 5. ID.; ID.; ALTBRNATIVJ!S GIVE'I TO CoLIJ;:l;rog QI' IN· TERNAL REVENUE UNDER SECTION 3.3~, R,i!VF,JllUF. CODE, TO COLLECT INCOM!l TAXES~lllier S~on 332, Nationlll lnten>al Revenue Co~. Ill• Collec.lor of lntpmal Revenµe is _given two al.t,ernatives; ~ 1) t9 &$~!¥ 1jhc; tax: withi,n 10 ~. froqt ·the discov,ery .of the ~W., fr~ or emission, pr (2) to file an.~~ in ~ fpr ,t.Qe .cpll.;¢on of suc;h tax withoilt ~ a,lso wi.thin .10 -~ Acom lhe discovery of the falsity, fraud, or Qpijssic>n •. IP ·!!>• ~ase at b~ an a~JI1411t had beei;a ma® and ~is ~.t m. ~ • 1 out ·the case frolJ,l. the realms _of. thp pl'QV1sloD.s pt ·~~on 382 (a) and placed it under the manda~ (jf fM¥:tw.n . .332. (c), ~ational Internal Revenue Code. wJi.ich ,is tl}e .• aw -~iPPUJ:,able. ~t~O:.~se at bar and ,general '®Ugh to .~ ~ ~ent 6. It>.; PRESCRIPTION Of ACTION TO l;OILECT lli<;QME TAX; CASE AT BAR.-lbe Collector of lnten)al ~ I> sued income tu: notices to appellee on lBU.UIQ'1 10;· J-961, Ulllinl to pq the sums menti-4 ~ l>\I! Mi~ •pp§ilee refuled to pay the said -t. UP<>ll ~tit>t> of the collector, appellee was prosecuted for :a 'Viola~ ot sections of 46 (a), 51 (d), and 12 of the N~ li,1.lema1 Revenue Code, penalized under $~tion 73 of :t\1e. !liBIDe (Criminal Cases Nos. 19037 and l!IC)38). Re p~ .guil(;J: to the 2 <iWjnal cases and W>f ~ to be. 6!l¢il for each.. After his conviction, on .September. 21, .1951; the Republic Of the Philippines filed CQQrt action for the rocom.,. of appellee's deficieney taxes ,plus 6% ~ and 1 % monthly Interest. ·1nst.ead of fD8Wetjng ~ ~ plaint, he presente4 a motion .t9 d~l_S, ~~ ,t,!J.!t.~1 the cause of action have already prescribea · Tlie Jowel Court aranted the mOtion to dismiss. The government med 4 motion for ~nsld!i!ratlon o.f the or.der wh,i,cb was denie.4 on Marc)l .10, 1958. The Republic appealed. HELD: Under ~tion 332 (c) of the Nadon!ll Internal Reveliue Co4e, court pction fQr the collection ,of the J,ncoD)~· tax m~ be br9u1b:t , poly within 5 yeara from ~ date of the assessm,ent of the tax. It· was only on September 5, 1957, th~t the ~tion was flied iii Court for the. collection of ~ defie~ Income tax· - far beyond the 5 ~ period 7. ID,; ID.; ~ENDENCY OP CRIMINAL CASE FILED AGAINST TAXPAYER FOR VIOLATION OP PROVISIOl\IS OP INT.ERll!AL REVENUE CODB DOBS NOT PROHIBIT FILING OP CIVIL ACTION FOR COILECTION OF TAXES~lbe de!endant-appellee was prosecuted for two crlminal .cases for 11vlolation of sections 46 (a), 61 (d), and 72 Gt 1lht; ljiJWmal York, C. & St. L. B.. Co.; 1950, 389 U.S. 96, 101, 70 C. Cl!. ~09, 94 L. Ed. 683. On the whole record we c1m10.t M¥ ,thaJ: the action of the Di8lrict Judge who tried tlio .... and heW the post-trial motions constitu~s ltn .abuse of diacretion Qr j:hat appellate action with ... poet to daDloges iJ U!lui<e!L Affirmed. Page IS Internal Revenue Code, penalized under Section 73, thereof. Phil. 216). More recent decisions, however, rccognJzed the He pleaded guilty to the two cases and was sentenced to pay prescriptlbility of such actions. · a fine of '300.00 in each. Pla1ntiff-appellant argues that 12. ID.; ID.; ID.; ID.;-''The 'Judicial action' mentioned in the during the pendency of the criminal cases, it was prohibited Tax Code mQ be resorted to within five (5) years from the from instituting the civil action for the collection of the date the return has been filed, if there has been no assessdeftclencJ' taxes. HELD: This contention is untenable. The ment, or within five (5) years from the date of the assesspresent complaint aplnst the defendant-appellee is not for ment made within the statutory period. or within the period the recovery of civil liability arising from the offense of agreed upon, in writing, by the Collector of Internal Revenue falsification; it is for the collection of deficiency income and the taxpayer, before the expiration of said five-year tax. period, or within such ·extension of said stipulated period as 8. ID.; ID,; PRESCRIPTION; FILING OF CIVIL ACTION may have been agreed upon, in writing, made before the ex· FOR COLLECTION OF CIVIL LIABILITY ARISING FROM piration of the period previously stipulated, except "that in CRIMINAL OFFENSE DOES NOT SUSPEND RUNNING OF the case of a false or fraudulent return with intent to evade PRESCRimVE PBRJOD TO FILE CIVIL SUIT TO COLLECT tax or for failure to file a return the Judicial action may be TAXES.-The provisions of Section 1, Rule 107, Rules of begun at any time within ten (10) years after the discovery ·Court that .. after criDPDal action has been commenced, no of the falsity, fraud or omiss1on (Sections 331 and 332 of the civil actioli arising from Use same offense can be prosecuted" Tax Code)" Gancayco v. Coll. of Int. Rev. G.R. No. L-13323, is not ~able. The crimlDal cues filed oplnst the op- April 10, 1961). pellee would not affect, one WllJ' or another, the runtling of D E C I S I 0 N the prescriptive period tor the commencement of the civtl On Februa~ 28,. 1919.- Damian ·i:.tet tiled . with the Bureau of suit to collect taxes. Tbe criminal actions are entirely sepa- Internal Revenue his Income T'\X Return tor the year 1948, where rate and distinct from the said civil suit. There is nothing he made it appear that his net income was only P2,252.t3 wtth la the law which would have stopped the Collector of In- no income tu: liabillty at all. The BIR found out later that the temal Revenue from filinc the civil suit slmultaneou&ty wlth return was fraudulent since Ret's income, derived from his sales or during the pendency of the criminal cases. Assuming the of office supplies to different proviDc1al government officel, toapplicability of the rule, at most, the prosecution of the taled '94,198.76. The BIR assessed him P34,907.88 as deficiency civil action would be suspended but n4?t Us filing within the . income tax for 1948, Inclusive of the 50% surcharge for renderprescribed period. Ing a false and/or fraudulent retum. 9. ID.; ID.; ID.; SUS.J'ENSION OF THE RUNNING OF STATU- Defendant Ret failed to file bis Income Tax retum for 1949, TORY LIMITATION FOR THB COLLECTION OF TAXBS.- notwithstanding the fact that he earned a net income of Pl~. Sectlon 332 of the Tax Code provides "the running of the 447.32, also from sale of office supplies. His income, as assessed statutory limitation :r. x z shall be suspended for the period tor tax purposes, showed a deficiency tu. of P68.338AO for 1949, du.ring which the Collector of Internal Revenue ls prohibited Inclusive of the 50% surcharge. from making the assessment, or beginning dlstraint or levy On January 13, 1951, the Collector Qf Internal Revenue deor a proceeding in court, and tor sl:r.ty days thereafter''. manded from Ret the payment of the above sums, but he failed In tbe case at bar, the Collector of Internal Revenue was and/or refused to pay said amounts. On JanulU'J' 20, 1911, the not prohibited by any order of the court or by 8llJ' law Collector Issued income tax assessment notices to Ret, urging • from commencing or filing a proceeding in court to collect him to pay the sums mentioned, but with the same result. the taes in question. Upon recommendation of the Collector; ~t was prosecuted· 10. ID.; ID.; ID.; AGREEMENT THAT MAY SUSPEND THE 101· a violation of Sections 45 [a], 51 [d] and 12, of tbe. N.l.jt.C. RUNNING OF PRESCRIPTIVE PERIOD TO COLLECT JN- penalized under Sec. 78, thereof (Crim. Cases Nos. 19037, and COMB TAXES.-ln the case of Collector vs. Solano, G.R. 19038. He pleaded guilty to the two (2~ cases and was sentenced No. ~11475. JulJ 31, 1958, it was held that the only agree- to pay a fine ot P300.00 In each. ment that could have suspended the running of the pres- After his conviction, on September 21, 1957, the Republic criptive period to collect Income taxes was a written agree- filed the present complaint for the recovery of Ret's deficiency :mea.t between Solano and the Collector, entered before the taxes 1n the total s1un of Pl03,245.73, plus 5% surcharge and l'lo ezpiratlon of the five (5) year prescritive period, extending monthly interest. Instead of answering. he presented a motion to the period of limitations prescribed by law sec. 322[c] N. I. dismiss on February 8, 1958, claiming that the "cause of action R. C.) which "Rule is In accord with the general Jaw on pres- had already prescribed." The CFI headed down an Order, the cription that requires a written acknowledgment of the debt- pertinent portions of which are reproduced below: or to renew the cause of action or interrupt the runn1ng of "There is no question that the assessment of the Income the llmitation period (Act 190, sec. 50, new Civil Code, Art. tax of the defendant for 1948 ·and 1949 was made within the 1155''. In the instant case. there ii no such written agree- period of limitation, that Is; on or before January 20, 1951, ment, and there was nothing to agree about. The letteJ' of but the present suit to the collect the same was brought outdemand by the Collector on January 18, 1951, was made side the five-year period, to wit, on September 5, 1957, countprior to the issuanc.e of the assessment notice to the defend- ed from the date of the assessment of said tu:. ant appellee, made on January 20, 1951. from which date, There can be no question that the above-quoted provithe S year period was to be counted. The letteJ' of demand sions of Section 332, letter (c) of the National Internal Re-could not suspend something that started to run only on venue Code, apply to all internal revenue tazes Including inJanuary 20, 1951. come tax. The language therein used is all-embracing, and 11. ·10.; ID.; ID.; PRESCRIPTIBILITY OF JUDICIAL ACTION nowhere in said code Is found any other provsion governing TO COLLECT INCOME TAX.-The very provisions of sections collection of income tax by judlcial action. 331, 332 and 338 of the National Internal Revenue Code spe- WHBREFORB, the ftve-year period fixed by law for the cially the last, support the theory of prescriptibllity of a ju- filing of suit for the collection of income tax having already dlcial action to collect income tax. To hold otherwise, would expired, the plaintiff bas no cause of action against the de'render said provisions idle and useless. It is true that in fendant and the motion to dismiss sbauld be" and is hereby earller- decisions, there was a declaration to the effect that granted, and the case 18 dismissed. without pronouncement as the action to collect income tax is imprescriptible (Vina v. to costs." Government, 63 Phil. 262; Phil. Sugar Dev. v .. Posadas, 68 Plaintiff's motion for i'econsideration of 0 the above 6rder, was LAWYERS 10URNAL January 31. 1963· denied on March 10, 1968. It appealed. The dominant issue raised in this appeal ls whether or not appellant's right to collect the income taxes due from appellee through Judicial action has already prescribed. The basis of the motion to dismiss ls section 332 of the Revenue Code, which provides - "(a) In the case of a false or fraudulent return with in· tent to evade tax or of a failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun wihout UlellllleD&, at any time wtlhin ten years after the dlscovel"J' of the falsity, fraud, or omission. x x x x (c) Where the assessment of any internal revenue tax has been made within the period of limitation above preseribed such tax may be collected by distra.int or levy or by a proceeding In court, but onl7 If began (I) wllbln five years after the assessment, of the tax, or ( 2) prior io the expiration of any period for collection agreed upon in writing by the Collector of Internal Revenue and the tax· payer before the expiration of such five-year period. The period so agreed upon may be extended. by subsequent agreements in writing made before the expiration of the period previously agreed upon." The position of the Government m8J' be stated as fol~:1. The provisions of section 332 (c) of the N.I.R.C. do not apply to income taxes. It premised its argument on the rulins in the case of Collector vs. Avellno and CTA (G.R. No. L-9202, Nov. 19, 1956), wherein it was held that sections 331 and 332 of the Tax Code "z x x merely apply to internal revenue tazes in general and not to income taxes, the collection of whlch Is specifically provided. for under a different title of the same law x x x"; that the special provision alluded to is section 61 (d), Title II, Qf ·tlte Gede,.:whieh:.refer& Ollly to the collection of fn. come t-ax thru the summary remcdles of distralnt and levy within three years after the return was flied or should have been filed (Collector v. VillegU, 66 Phil. 554; Collector v. Haygood, 65 Phil. 520; De la Viia v. Government, 66 Phil. 266; Phil. Sugar Estate, Inc. v Posadas, 68 Phil. 216; Collector v. A. P. Reyes, L-8886, Jan. 81, 1967; Collector v. Zulueta, No. L-8840, Feb. 8, 1957). and after the lapse of the three year period, collection of income taxes muat be had thru Judicial action (Sec. 316 (b] N.l.R.C.): but in all these decisions, it is alleged, no mention of 8D1' period of limitation for the collection of Income ta. thru Judicial action has been made. 2. Even granting that section 832 (N.I.R.C.) ls appllcable, the Government is not barred from Instituting the present action, as shown by the wiry wordings of said section. It is claimed that as appellee Ret had admitted that he filed a false and fnrudulent income tax retum for 1948 and unlawfully falled to file his income tax return tor 1949, for which he pleaded guilty In the two criminal cases heretofore mentioned, the collection of the tax may be enforced by a proceeding in court within 10 years after the discovery of the falaity, fraud, or omission (see also Avelino case, IUpl'll). And the present action was filed within 10 years from the discoveey of the falsity, fraud or omission (sec. 332 [a] j N.I.R.C. 3. Fwtlier granq that·· oeetion 332. afarocited "is OPPli· able, the Government claims that It is not barred from iDBti~ tuting the present action because the period within which to -callect the taxes due was suspended upon the fillng of the two informations against the defendant-appellee on MQ 29. 1952, and began to accrue again from the receipt of the decision on April 20, 1965. In support of this contention, plaintiff...a,ppellant dtes section 1, of Rule 107, Rules of Court and sec. 838 of N.I.R..C. These provisions state - "SEC. I. Ru1a _......,. cM1 - arlslq flpm of. teues-Except as otherwise provided by law, the fo11oMDa rules should be observed . " . (b) Criminal and civil actions arlsillg from the same offense may be instituted separately, but after the cr1minaJ action has been commenced, the civil action carmot be insd· tuted until final judgment has been rendered in the crlmhlal action; (c) After a criminal action has been commenced, no civil action arising from· the same offense can be prosecuted; and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered"'; "SEC. 333. Suspension of rwmlDg of statute.-The running of the statute of limitations provided in section three hundred thirty-one or three hundred thirty-two on the making of assessments artd the beginning of dlstraint or levy or a proceeding in court for collection. in respect of any deficiency, shall be suspended for the perloq during wb!ch the Collector of Internal Revenue is prohibited from making the assessment or beginning distralnt or levy or a ProceediD.a: in court, and for sixty days thereafter.'' Under the above-quoted ·provisions, it ta alleged that from January 20, 1951 (date of as~sment) to May 29, 1952 (date of filing of the infonnations), there is an interval of 1 year, 4 months , and 9 days, and from April 20, 1956 (date of dec1sion in the criminal cases which plaintiH··&ppellant assume to be the date of receipt. as thlB does not appear) to September 4, 1957 (date of filing of the complaint at bar), there is an intervening period of 2 years, 4 months and 15 days; and in all, the Government has only consumed a total of 3 years, 8 months and 24 clan from the date the income tax assessment notice was issued to the date of filing of the complaint, of the 6 years prescribed bJ law. The government further alleged that the Collector was pro. hibited from going to court for the collection of the tazes ·due from the defendant-appellee, In view of the filing of the two criminal cases, the nature of which covered the subject·m&ttei of the civil complalnt; and there was need for the criminal charges to be determined first by the lower court. before a civil action for the collection of the tax could be i-esorted to. ID other words, it Is contended, that the filing of the crim1na1 actions constituted a prejudicial question which should be resolved. before the Civil Action for collection could be filed. And th1a was the very thing the Government did in the instant case. Moreover, the period of prescription was suspended because of the written extra·Judicial demand made by the Collector. citing ArL 1165 of the N.C.C. in support thereof. ' 4. The Govemment submits also that the collection of In· come tax thru. judicial action is Jmprescriptible, relying upon certain rules of statutory construction and the decision of tlm Court in the case of Estate of De la Viiia. v. Govemment of the Philippine Islands. 65 Phil. 263, holding that "x x x the statutes of limitations do not run against the State; and this principle Is applicable to action brought for the collection of taxes (26 R.C.L, 338; 37 C.J., 711.)" The doctrlne was reltezated in the case of Philippine Sugar Estate Development Co. v. J. Poudas. et al., 68 Phil. 222, declaring that "x :z. :z. when the tazp&ye:r paid the add!Uooal ta under protest and brought the corresponding action to recover the protested adc:Udonal .P8l'IDG1t. · the collection bee.... Judicial and the right of the Collect.or of Internal Revenue to effect the collection through that means has not prescribed.'' 5. Assuming aquendo. that the action is prescrtptlble, then the provisions of Art. 1144 of the N.C.C. on prescription of ac>. lions is applicable, inasmuch as aside from· sections 331, 332 and· 61 (d), there is no proTision in the Revenue Code which deab on the limitation of action for the collection of income tax th1u judicial action. The plaindff-appellant arg\Jea that tile . income tax Uabilities of the defendant-appellee be1Ds an obligation created. Janua,ry 31, 1963 IAWYERS JOURNAL Page II by law and that the right of action having accrued on January 20, 1961, the date of assessment, and. the complaint at bar having been filed .on September 6, 1957, within the ten year period, the cause of action ·has not prescribed. After ·going over the law and jurisprudence pertinent to the issues raised., we have come to the conclusion that the cause of action has already prescribed. . lt is true that this Court has declared tn the Avelino case (1956, 111pra), that sections 331 and 332 of the Revenue Code do not apply "to income taxes, the collection of which is speciftcally provided for under a different title to the same law". But pl.mtiff-appellant overlooked. the fact that tbts Court wall! onlJ" referring to the collection of income tax by SUIDID8l7 pro~ Ed not bJ" court action. Clarifying this matter, in thE more recent case of Collector v. Solano &: Court of Tax Appeals, O.R. No. L-11476, July 31, 1968, this Court held.. :it :s. x.. The decision In the Avelino case was ~losely followed by eur holding in. the case of Collector v. Zulueta, 53 O.G. No. 19, 8632, that the three-year prescriptive period provided for in section 51 (d) of the Code was meant to serve Bi a lirilitatlon on the rilJlit of the government to collect income tazes by the SUllllDUY methods of dlstralnt and levy, satd peiiod to be computed from the time the return is filed oi' if there has been a naglect or refuBa1 to file one from the date the tetum is due, which is March 1st of the succeediq 751". Thus our dedllon makel It alear that prescrlptlft period of - years - IDtmded to be • ......,.i Umlla... u. ...... ., ... _.to collect - taxeo 111 ..........,. proceedlnp, irrespective of whether the taltP81e1 filed a return or not, or whether his return was true and ciorreCt er erroneous or fraudulent". .\laln we declared - . "W6 notice, however, that Section 51 (d) of the Na. tioilal Internal Revenue Code, which refers to the collection of income tu, does not provide for any p1escriptlve period insofar as tile collectlon of income tax by judlclal action if concaned, the0 prescripti'9e period therein mentioned being iDetelJ Qtplicable to collection by l1lllllllUJ' methods, as in. \eiprel<!d bJ this Court. Conslcleril!I this void in the law aptJliCl.ble to Income tax, and bearing in mind that Section 331 or .the Code which provides for the limitation upgn as~· attd ci!lleclion by Judicial action comes under Title IX, Chapter 11, Which refers to "CIVIL RBMEDil!S POR ·COl.i.£tTION OF TAXE.5°1, 'We !hay conclude that the provlllloni of said Section 331 are paen1 In . - . . whlcll nlay be Cofisidf:red. suppletotJ with regard to matters not covered by the title covering income· tax. In other words, Title II, of the Codt is a speeJal .provision which govern• excluilftly. al.I matters perta1ning to Income tu, whereas Title· "IX, Chapter• 11, is a general provision which gO\lel'IUi . all internal reven~ tues in general, which cannot applJ ii11ifofar aa it 111'1 "dmfltct with the. pJbvisions of Title II m tlO Which the latter ·shall prevail,, but that in the al>lencr of aay -provi&lcm 1n said Title II reladve to the period and - of ""ll•ction of Ille tu', tb pii>vililmS of Title IJC.. CllaPtet II,. mat be deemed te be suppletory Iii character. Hence, in our iiptnion, the Court of Tu. Appeals did not en tn holdiq ·that the right of the Govermmcnt to collet'.t the ··~ - ..... for the years 1946; 1946 and 1947 · .. i has., alrelidY ptdscnbeil under seetlon 331 of the National ;.: .~Jnflemal .lbhrenue Cbde. x li: x (ColL. of Int. Rev. v. Bohol Land Trans. Co. G.R. Nos. L-13099 A 13463, APril 2, 1960). Pr.om .all .Gt which, it· 1!18)' be reuonab.W .iDf.-red that section m 111· the Re.vmue Code - . D<lt -b' to. incoine.18""8 it 1he dollli:<ti8n. Of said ""'°5 will be made by oum"'aey proceediJl&s, la!eabsei .tlils la provided fur by Section 51 (d) aforementioned; but If ... - - of - ..... la 1o,,!Je ,effeclecl Ill' - action, ·.!hell sec1iioa 3JZ will be iM: ..,,,.,.ilhlg pnwillion. It is ~,: ~~·tbaJ . • ~lit did·not·lll$.tidn. llDJ' plttiod -of. limitation for the collection of income tax thru judicial- action. To this, it may be observed that it was unnecessary to dp m because the said section (332) has already so provided. In the Solano case, it was declared, "Even so, section 332 (el of .. the National Internal Revenue Code provides that such action, : may be brought only within five years from the time of the a!fseSSment of the tax.''. Plaintiff-appellant main~ins that granting the applicability of section 332, still, according to paragraph (e) thereto (supra). it has 10 years from the discovery of the falsity, fia~d or omission within which to file the present action. Un.det ·said section, the Collector is given two alternatives: (1) to assess the tax within 10 yean from the discovery of the falsity, fraud, or omission, or (2) to file an action in court for the collection of such tax without useumen.t also within 10 years from the. c:Uscovery of the falsity, fraud, or omission. ln the case at""bar, an assessment had been made and this fact has taken oiit" the case from the realms of the provisions of section 332 (e) ·and placed it under the mandates of section 332 (c), (supr8), Which is the law applicable hereon B~d general enouah to cover· the present situation. · As heretofore stated, the plaintiff-appellant made the assessment on January 20, 1951 and had up to January 20, 1956 to file the necessary action. It was !Jn1y on Sertember 5, (967. that the action was filed in Court for the collection of alleged . deficiency income tax - far bejond the 6 year period. This notwithstanding, plaintiff-appellant arauea that during the penclenCJ of. the criminal cases, it wu prohibited from instituting the civll action for the collection of the deflcleney taxes. This contention is untenable. The present complaint aga1ns1i the defendant-appellee is not for the recovery of .ci\111 liability ari91na: from the offense of fals1ftcation; it ls for the collection of· deficiency income tax. The provisions of Section 1, Rule 107 (supra) that "after a criminal action has been commenced, no clvil action arillna from the same offense can be prosecuted", is not applicable. The said crtminal cases would not affect,. ·one , WQ' or another, the running of the prescriptive period for the ~rnmencement of the clvtl suit. There Is nothing in the ·law · which would have stopped the plaintiff-appellant .from filing this civil nit simul~aneously with or during the ·pendency of the criminal . cases. Assuming the applicability of the rule;· at most, the prosecui'°n of the ciftl action wouid be suspended but not its filtna within ~ prescribed period. Section 332 of the Tu Code provides "the running of the statutory limitation x x x shall .be susp~ded. for the period dutlna: which the Collector· of Internal Revenue Is prohibited from making the 8lleSSIDellt, .or ~ginning dis,traint or levy or a p~ding' lo_ court, ~-=for slzty days thereafter". As heretofore ~tated, the plaintiff-appellant was not prohibited by any order of the court or by any l~~ frQm commencing or filing a proceeding in court. It ta also aven'Cd that the period of prescription for the collection of tax was suspended because of the written extraJudicial demand made by the Collector 8aainst th,e detendant-appellee, c:t~ Art. 1165 N.C.C. Again. in the Solana case, (supra), We lie.Id that the oniy ~t th&t could have Sl:ISpended the ~ of the presc.riptivC period was a wrltt• agreement between Solano mld Ute Collector, entered before the expiration of the five (6) year prOscripttve periOd, extending the period of lliDi.iation pre:scri~d by law (sec. 332 .[c] N.I.R.C.) which "Rule is tn accord with the general law on prescription that requires a written acltnoviledgment ·of the debtOi" to ren~ the cause of aCtion or liltenilpt the running of the limitation period (Act. 190. sec.· !io; Jie..;. Civil C~ ArL 1165". In the instant case, there ls rio i~t:li. Written agre:eme~t, arid there was nothing to !llgfCe about •. The letter of demand by the CoJlect9r on January 15, 1951, was DJ~~~ Prior to the issuanc~ .. ~f the_ ~essnient nQtice to the ~- mid.'ailt-aJ'Peltee, i'tdide On JaitU&iY zo; 1951, from which date, the 5 year period was to be counted. ·T\Je· Jetter of demand could not suspend somethlna that .started 10 run. only on Januar)'.,20., 1951. . . 1. ?age. 16 IIAWYl!RS :JOUllNAi: Januaty 31, 1963. ·:lhe"Very provisions of sections 331, 332 and :i~8 of the N.I:R.C. specially the last, heretofore quoted, support the 'theory ot preacript1b1lity of a Judicial action to collect income tax. To hold otherwise~ would render said provisions idle and useless. It js ttue that in earlier decisions, there was a decJoration to the effect that the action to collect income tax 1s imprescriptible (Viii.a v. Govem'qlent, 66 Phil. 262; Phil. Sugar Dev. v. Posadas, '8 Phil. 216). More recent decisions, however, recognized the prescripUbility of such actlons. Thus, it has been held: - ''The 'judicial action' mentioned in the Tax Code may be . resorted to within five (5) years from the date the return ·has been filed, if there has been no aasessment, or within five (5) years from the date of the assessment made within . the statutory period, or within the period agreed upon, in writing, by the Collector of Internal Revenue and the taxpayer, before the expiration of said five-year period, or within such extension of i!iald stipulated ~. as may have been agreed upon, in writing, made before the expiration· of the period previously stipulated, except that in the case of ir f.tllse or fraudulent return with intent to ~ade tax or for failure to file a return the Judicial action may be begun at any time withim ten (10) years after the discovery of the falsit7, fraud or omission (Sections 331 and 332 "of the Tox Code)". (Gancayco v. Coll. of Int. Rev. G.R. No. L-18323, Apri~ 20 1961). In. view of the conclusions reached, it is deemed unneces- . Mr7 .to pass upon the other issues ralsecJ. The decision appealed from is affinned., without special proDOUDCement as to coatS. •. • Benazon. C.1., Bautista Angelo, Labrador, Concepcion, J.B.L. R.eJes. Barrera, Dizon and. De Leon, concurred. Padilla, 1., took no part. II ~. et al., Pedtloners.\ppelloats w. Clly A-. of Quezon CllJ' ... d Koh, ll8polldeau.Appe0.s, G. R. No. L-173311, llla>'·,JO, 1962, l'lll!lll&· J. !-. CRIMINAL PROCEDURE; PREJUDICIAL QUESTION; CR!· MINAL PROCEEDINGS CANNOT BE SUSPENDED DURING PERIOD OF PRELIMINARY INVEsa'!GATION ON GROUND OF PREJUDICIAL QUESTION: CASE AT BAR. - In an amended co..'!lplaint dated June 9, 1959, filed in the Court of First Instance of Rlzal. Quezon City branch. the petitioners allepd that on September 28, 1968 they were induced to sign an instrument mortpging their two par-eels of land situated In Quezon CitJ; that under the terms Bnd · conditions thereof the Philippine Bank of Commerce wai to cra.nt them a loan of PS,SOO, and,· t"or and in consideration of P850, the Republic Surety a: Insurance Co., Inc. was to guarantee the payment of the loan; that ·in default ot such payment,' the surety company bound itielf to paJ it and was ,?anted the right to fMeclose the mortgase on the two pa.reels of land; that on April 9, 1959 they follnd out that the Philippine Sank of Commerce had not granted 'any loan to them and the Republic Surety 4 Insurance Co.. Inc. had' not assumed 8llJ' guaranty ob~tion; and· that on MBJ 9,· 1959, the defendants twice atterl:ipted to enter fordbly -upon their properl:J" but failed because of police Inter. · velltlon; and ·prayed that· a writ of preliminary injunction · IBsUe to restrain ·the defendants · fI'om. entering upon their property~'· that· the instrument purporting to constitute a mottpge oli their two parcels of land be declared null ·and void.; 'that transfer certiflcates of -title Nos. 23596 and 28696 in -Che-·llame C1l the Republic Surety 6 lnsutanCe ·Co., Inc., Issued fu Ueu Of their certuica.tes ot title, be cancelled; .!=~ 00:,~~'!::1-~·~~~an:~r:t:·: · defendants Ftancisee · Koh and the Republic Surety 6: Inauram:e Oe .. Inc. 'be otderec:i. to pay them the SUli'I. of Pl0,000 as moral damages and also the costs arid for ·just and eqlli't-: able relief (Annex B, Civil Case No. Q-4328). ' On May 15, 1959, the respondent Francisco T. Koh, U president of the Republic Surety A Insurance Co., Inc., filed against the petitioners three complaints before the City. Attorney of Quezon City for usurpation (l.S. No. 1893, ~ nex A), grave coercion (l.S. No. 1894, Annex A-1) and estafa (l.S. No. 1895, Annex A-2. On August 18, 1959, the petitioners asked the Quezon City Attorney to suspend the preliminary investigation of the criminal complaints on ~e ground that there was a prejudicial question raised in a civil action that had been tiled by them and was pending: trial in the Court of First Instance of Rizal, Quezon City branch (Annex C). On. September 1, 1969, the Quezon Asaistant City Attorney set the resumption ot the investigation for the 16th day of the same month and notified thr; parties thereof "in view of certain points which need clari~ fication" and the petition to suspend the investigation would be acted upon ofter the parties against whom the complaints had been filed shall have been heard (Annex D). On September 14, 1969, the petitioners filed in the Court of Appeal&. a petition for a writ of prohibition against the respondent-$, the Quezon City AHorney and Franciaco T. Koh, docketed as CA-G.R. No. 26313-R (Annex E). On October 26, 1959, the Court of Appeals denied the peUtion (~ F). On November, 1959, the Quezon Assistant City AttOme,. Rt anew the resumption of the Pi-eliminary investigation 9f the criminal complaints for November 27, 19&7 at 8:00 p.m. To prevent him from p~ilg with the preliminary investigation, on November 16, 1959 in the Court of First Instance of Rizal, Quezon CitY branch, the peUtioners commenced a. special civil action for prohibition aPiilst the· CitJ Attorney ot Quezon City and Franciaco T. Koh (No. 4800). On January 18, 1960, the Quezon Assistant. City At· tomey filed an answer to the petition for prohibition, and on the so.me day respondent .Francisco T. Koh, a. mot1o.n tO. dismiss. On 1anuary 19, 1960, the petitioners objected to the. motion to dismiss. On May 20, 1960, the lc;nver Court d.i&-missed the petition for lack of merit and from that order, the .petitioners hove appealed. Held: G.1'.&ntiilg that the pre. judicial question ralaed by the appellants be legally cpr-rect still the time or moment tc1 ask for tl'!e suspensiQJ1 of the criminal proceedings is not dudng the period c;iif pre-· llmlnary investigatidn by the. city prosecutlna; of fleer but llf7. ter such investigation and after he s'ha.11 have filed the information against the respondeiits-appellants. 2. ID.; ID.; ID.; REASON OF NOT SUSPENDING PREUM" !NARY INVESTIGATION ON GROUND· OF PREJUDICIAL QUESTION~lf the prosecuting ofli~r should find tbat the mortgage on -the parcels of I&nd In question was not ;really. executed, or, if executed, .it was through ~t and misre-o. presentation, he certainly. would. not . file the ~aUon. DJ!CISlON A~ from an order on- on lO May. 1960 by.the Court;·. of First Instance of Rtzal, Quezon CitJ ·branch, dismissing for lack of merit a petition whicl) sougbt to ptohlblt the. City ·A-· o( Quezon City or bis assistants from proceeding with .the prO.' bminary fn•tlga.tion of thre:e crlmiilal complaints· for l1Surpa· ·. tion, a:rave coerclon· and ·eatafa filed ·against the ·petitioa"rs'.: · •.;_ In an amended complaint dated 9 June 1969: filed · in · the Coutt of First 11'1.stance of Rizal; Ollezon CU:7 "brimch, th., pett:tloners alleged ·that· bn·· 28 SePteinber 1966 the,. Were 1nduCed ·to: sign· an'. instrument mortgaging their two paicels of Jand !tit-·' uated' in Quezon City; that under ·'the tennS· ·and. conditions; thereof the PhlllPpine ·Bank of Commerce ·was 'io $fa"nt diem ·~: loan of PS,500, and, for and In consideration of P850, ·the R.epub:: lie Surety & Insurance Co., Inc: was to guarantee ·the ·payment of ·the IQl.n; that tn.. 'defe.ult• of such payment, :the surety com· puny bound. itself •to pay· it and :was granted the right ·to forC- · close the mortgage on the two parcels of land; that on April 9, 1959 they found out that the Philippine Bank of Commerce haJ. not granted any loan to them and that Republic Surety &: Insurance Co., Inc. had not assumed any obligation; and that on 9 May 1959 the defendants twice attempted to enter forcibly upon their property but failed because of police intervention, and prayed that a wrlt of preliminary injunction issue to restrain the defendants from entering upon their property; that the instrument purporting to constitute a mortgage on their two parcels of land be declared null and void; that transfer certificates ot titles Nos. 23595 and 23596 In the name of the Republic Surety &: Insurance Co., Inc., issued in lieu of their certificates of title, be cancelled; that the extra-Judicial foreclosure of the mortgage by the surety company also be declared null and void; that the defendants Francisco T. Koh and the Republic Surety & Insurance Co., Inc. be ordered to pay them the sum of Pl0,000 as moral damages and also the costs, and for just and equitable relief (Annex B, civil case No. Q-4328). On 15 May 1959 the respondent Francisco T. Koh, as' pre& ident of the Republic Surety &: Insurance Co., Inc., flied against the petitioners three complaints for usurpation (l.S. No. 1893, Annex A), grave coercion (l.S. No. 1894, Annex A-1) and estafa (l.S. No. No. 1895, Annex, A-2). On 18 August 1959- the petitioner asked the Quezon City Attorney to suspend the preliminary investigation of the criminal complaints on the ground that there was a prejudicial question raised In a civil action that had been filed by them and was pending -trial in the Couri of First Instance of Rizal, Quezon Cit:v branch (Annex C). On 1 • September 1959 the Qqezon Assistant City Attorney set the resumption of the investigation for the 16th day of the same month and notified parties thereof "In view of certain points which need clarification" and the petition to suspend the investigation would be acted upon after the parties against whom the complaints bad been filed shall have been heard (Annex D). On 14 September 1959 the petitioners filed in the Court of Ap. peals a petition for a writ of prohibition against the responderrts, the Quezon City Attorney and Francisco T. Koh, docketed as CA-G.R. No. 2513-R (Annex E). On 26 October 1969 the Court of Appeals dented the petition (Annex F). On 4 November 1959 the Quezon Assistant Cil:y Attbrney set anew the resumption of the -preliminary investigation of the criminal complaints tor 27 November 1959 at 2:00 p.m. To prevent him from proceeding with the preliminary iDVestlgation, on 16 NovembCr 1959 in the Cow1 ot First Instance of Rizal, Quezon City branch the petitioners commenced. tbis special civil action for prohibition against the same parties (No. 4800). On 13 fanuary 1960 the Quezon Assistant City Attorney flied an answer to the petition for prohibition; and on the same day respondent Francisco T. Koh, a motion to dismlss. On 19 January 1960 the petitioners objected. to the motion to dismiss. As already stated, on 20 May 1960 the Court dlsm~ the petition for lack of merit and from that order tbe petitioners have appealed. ne petitioners in11ist that there is a preJudlcial question brought about bJ the lllstitution of the civil case that puts in issue the validity of the mortgaae and foreclosure of the two parcels of land that precisely are involved in or connected with the criminal complaints for usurpation, grave coerclon and estafa. filed against tbem. They contend that the investigation by the Quezon AsslBtant City Attorney should be stopped or suspended until after the preJudicla1 question shall have· been e. tennlned or decided In the aforementioned civil case, for, they aque, if the mortgage on the two· parcels of land referred. to and their . extr•Judicial foreclosure be annulled, the criminal complaint for usurpation, grave coercion and estafa,, all In connection with the mart.gap of the aforesald two parcels 9f land, their extr•Judic1al foreclosure and the attempts by the complainants to take po8SC85ion of the parcels of land, would no longer have any ground on which to stand. Instead of filil>g a brief, ... ..;..i.Dw-1lee Franctsc:o T. Koh, moved _for the ~ of the appeaJ. OD t.be around that there is no specific assignment of errors 1n the petitioners-appellants' brief and that the appeal 111 frivolous. Granting that the prejudicial question raised by the appellants be legally correct still the time or moment to ask for the suspension of the criminal proceedlng.s is not during the period of preliminary investigation bJ the city prosecuting officer but after such investigation and after he shall have filed the informations: against the appellants. Should the prosecuting officer find that the mortgage on · the parcels of land was not really executed, or, if executed, it was through deceit and misrepresentation, the certainly would not file tM informations. Tho order appealed from is affirmed, without pronouncement as to costs in both instances. Bautista Angelo, Concepcion, llan'fon and Dizon, JJ., concurred. Labrador, J., took DO part. J.B.L. Reyes, J., concurred In the re1ult. III Manuel F. Cabal, Petitioner, vs. Hon. Ruperto Kapunan, Jr. :.t ol. Respondents, G.R. No. Ll9012, Dee. 29, 1962. Concepdan, I. ANTl·GRAFT LAW;" FORFEITURE OF PROPERTY TO THE STATE IS PENAL IN NATURE. - Where the llW'~se of the charge apimt a public officer or employee is to apply the provisions of Republlc Act No. 1379, as amended, otherwise known as the Antl-~ft Law, which authorizes the forfeiture to the State of property of a pub· lie otftcer or employee which is manifestly out of pro. portion to hls salary as such public officer or employee and his other lawful income and the income from legitimately acquired propert:v, such forfeiture hu been held to partake of the nature of a penalty, 2. ID.; CONSTITUTIONAL LAW; PROCEEDINGS FOR FORFEITURE OF PROPERTY ARE Dl!l!MW CRIMINAL · OR PENAL; EXEMPTION OF DEFENDANTS IN CRIMINAL• CASE TO BE WITNESSES AGAINST THEMSELVES ARE APPLICABLE THERETO. - ProceediD11s for forfeiture of properqr are deemed criminal or penal, and. hence, the ezemption of defendants in crlminal case from the obligation to be witnesses against themBe~ves are applicable thereto. In Bo1d vs. U.S. (116, 29 I .. ed. 746), it was that the information, in a proceeding to declare a forfeiture of certain property because of the evasion of a certain revenue law, "though teebnlcallJ a clvll proceeding, Is In substance and effect a criminal one", and that , suits for penalties and forfeitures are within the reason of criminal proceedings for the purposes of that portion of the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal case to be a witness against himself. JD.; JD.; JD.; RIGHT AGAINST SELF-INCRIMINATION; APPLICABLE TO CASES TO TRY AND PUNISH PERSONS CHARGED WITH COMMISSION OF PUBLIC OFFENSES.A proceeding for the rem.oval of an officer was held, in Thurston vs. Clerk (107 Cal 265, 40 p. 435, 437), to be ID ouhstance crlmlaal, for said pmion of the Fifth Ameadment providing the right agaimt sclf-.lncrlminatlon applies "to all cases in which'·tbe action prosecuted•U ·not to stablish, recover or redress prlnte and civil rights, but to try and punish persona charged with the commlssloa of public offenses" and "a criminal case is an action, suit 0:r cause instituted to punish an infraction ot the cdminal laws, and, with this object in view, it maUen not ID what fonD a 11atute IDB1 c1otbe II; it 18 .ldll a crlmiDal case x x z". This view WIB, in effect coof1nnecl in Less vs. U.S. (37 L Ed. 1150-1161). Hence the LaW7ers Reports ~ notated (Vol. 29~ p. 8). after an ext.enSiive ezaminadon of PO<liDmt cases, OOllOlucles tliat .. id c:onstltut.kmal proviPage 18 LAWYERS JOUBNAl. January 31, 1'63 sion applies whenever the proceeding is not "purely remedial", or Intended "as a redress for a private plevancen, but primarily to punish "a violation of dulJ' or a pubJlc: wrong to deter othen: from offendlna tn a like manner x x z". nesses and take their testimoDJ' under oath respondent who was personallJ present at the time before the Committee 1n compliance with a subpoena duly issued to him, did then and there willfully, unlawfully, and contumaciously without any justifiable cause or reason, re4. ID.; ID.; ID.; ID.; DOCTRINE IN ALMEDA VS. PEREZ fuse and, fall and still refuses and fails to obey the INAPPLICABLE TO THE CASE AT BAR. - In the case lawful order ot the Committee to take the witness stand of Almeda vs. Perez, G.R. No. L-18428, Aug. 30, 1962", it be sworn and testify as witness in said Investigation, was held that after tiling of an answer to a petition for in utter disregard . of the lawful authority of the Comforfeiture under Republlc Act 1379, the petition may be mlttee and thereby obstnicting a.nd degrading the proamended for said proteedlng for forfeiture is a civil pro- ccedings before said body. ceedlng. This doctrine refers, however, to the purely pro- "WHEREFORE, it is respectfully prayed that responcedural aspect of said proceeding and has no bearing on dent be summarily adjudged guilty of contempt of the the substantial rights of the respondents therein, par'tlcu- J'.'residential Committee and accordingly disciplined as in larlJ' their constitutional rilJltt against self-incrimination. contempt of court by imprfaonment until such Ume as he D E C I S I O N shall obey the subject order of said Committee." This is an original petition for certiorari and prohibition This charge docketed as Crimlnal Case No. 60111 of said with preliminary injunction, to restrain the Hon. Rupei:to Ka- court, was assigned to Branch XVIII thereof, presided. over puDaD,, Jr. as Judge of the .Court of First Instance of Manila, by respondent Judge. On October 2, 1961~ the latter issued an from" fUrther proceediilg In Criminal Caae No. 60111 of said order requiring petitioner to show cause and/or answer the court and to set ai1de an order of said respondent, as well charee flied against him within ten (10) days. Soon the.reas the whole proceedings in sald criminal case. after on October 4, 1961, petitioner tiled with respondent Judge On or about August 2, 1961, Col. Jose C. Maristela ol the 8 motion to quash the charge and/or order to show cause. Pbllipplne Anny tiled with the SecretarJ of NaUonal Defen~ upon the ground: (1) that the City Fiscal has neither author• letter-complaint chargtn1 petitioner Manuel F. Cabal, then ity nor personality to file said charge and the same is null Chief of Staff of the Armed Forces of the Philippines, .with and void for, if criminal, the charge has been filed without "graft, cornipt practices. unexplained. wealth, conduct unbecom· ' a preliminary investigation, and, if civil, the City Fiscal lll8J' ma an officer and pntleman, dictatorial tendencies gl:ring not file it, his authority in respect of civil cases being limited. false statements of his assets and Habilitles in 1958 and other to representing the City of Manila; (2) that the tacts charged equally reprehensible acts". On September 6, 1961, the Pres- constitute no offense, for section 680 of the Revised Admlnisldent of the Philippines created a committee of five (5) mem- trative Code, upon which the charge is based, violates due bers, consisting of Fonner Justice Marcellno B. Montemayor, process in that It is vague and uncertain as regards the ofas Chairman, former Justices Buenaventura Ocampo and So- tense therein defined and the fine impOISlble therefore and that tero Cabahug. and Generals Basilio J. Valdez and Guillermo it fails to specify whether said offense shall be treated as E. -Francisco, to investigate the charge of unexplained wealth contempt of an inferior court or of a superior court; (3) that contained. in said letter-complalnt and submit its report 8nd more than one offense is charged tor the contempt imputed recommendations as soon as poa:sible. At the beginning of to petitioner is sought to be punished as contempt of an in- ' the investigation, bn September 16, 1961, the Committee, upon ferior court, as contempt of a superior court and as contempt request of the complainant, Col. Maristela, ordered. petitioner under section 7 of Rule 64 of the Rules ot Court; (4) that the herein· to take the witness· stand and be swor:n ta as witness Committee had no power to order and require p.rtitioner to take for Maristela, in support of his aforementioned. charge of un- the witness stand and be sworn to upon the request of Col. explained wealth. Thereupon, petitioner objected, penonally and Maristela, as witness for. the latter, inasmuch as said order through counsel to said request of Col. Maristela and to the violates petitioner's constitutional right against self-incrimlnaaforementtoned order of the Committee, invoking his constj.. tion. tutlonal right against self-incrimination. The Committee insist· By resolution dated October 14, 1961, respondent Judge ed that petitioner take the witness stand and be sworn to. denied said motion to quash. Thereupon, or on October 20, 1961, subJ=t to his right to refuse to answer such questions as may petitioner began the present action for the purpose adverted be incriminatory. This notwithstanding, petitioner respectfully to above alleging that, unless restra1ned by this Court, responrefused to be sworn LO as a witness or take the witness stand. dent Judge may summarily punish him for contempt, and that Hence, in a communication dated September 18, 1961, the Com- such action would not be appealable. mittee referred the n:ialter to respondent City Fiscal of Manila, In their answer, respondents herein allege, Inter alia, that for such action as he may deem proper. On September 28, the investigation being conducted by the Committee above re1961, the City Fiscal filed with the Court of First Instance of terred to Is administrative, not crimlnal, in nature; that the lcManila a "charge" reading as follows: gal provision relied upon by petitioner in relation to preliminary "The undersigned hereby charges Manuel F. Cabal with investigation (Section 38-C, 'Republic Act No. 409, as amended by contempt under section 580 of the Revised Administrative Republic Act No. 1201) is inappllcable to con~pt proceedings; Code in relation to section 1 and 7, Rule 64 ot the Rules that, under section 680 of the Revised Administrative Code, of Court, cominltted as follows: contempt against an administrative officer is to be dealt with as That 00 or about September 15, 1961, in the in- contempt of a superior court; that petitioner herein is charged vestigation conducted at the U.P. Little Theater, Padre with only one offense; and that, under the constitutional guarFaura, Manila, by the Presidential Committee, which antee against self-incrimination, petitioner herein may refuse, not was created by the President of the Republic of the to take the witness stand, but to answer incriminatory questions. Pbillppines in accordance with law to investigate the At the outset, it is not disputed. that the accused in a criml· charges of alleged acquisition by respondent of unex- nal case may refuse, not only to answer incriminatory questions, plained wealtli and composed ot Justice Marceliano but, also, to take the witness stand (3 Wharton's Criminal EviMonter.nayor, as Cila1nnan, and Justices Buenaventura dence, pp. 1955-1960; 98 C.J.S., p. 264). Hence, the issue before Ocampo. and Sotero Cabahug and Genei-als Basilio Val- us boils down to whether or not the proceedings before the atoredez and Guillermo Francisoo, as members,· with the mentioned· Committee is civil or criminal in .character. power, among others to c9~pel the attendance of wit- In this connection, it should be noted that, althOugh said Ja.nu.ary 31, 1963 LAWYERS JOURN~ Page If Committee was created to investigate the administrative charge Of unexplained wealth. there seems to be l\9 question that Col. Maristela does nqt seek the redloval of petitioner herein as chief of Staff of the Armed Forces of the Phlllppines. As a matter· of fact he no l~r holds such office. It seems, likewise, conceded that the purPose of the charge against petitioner ls to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which authorizes lhe forfeiture to the State of property of a public officer or employee which Is manifestly out pf proportion to his salary as such public officer or employee and his other lawful income and the income from legitimatelY acq~d property. Such forfeiture has been held, however, to partake of the nature of a penalty. "In a strict sigDiflcation, a for!'eiture is a divesUture of properly without compensaUon, in consequence of a default dr an offer\se, and the term is used in such a sense In this article. A forfeiture, as thus defined, is imposed by way of punlslqnent, not by the mere convention of the parUes, but by the lawmaking po~. to Insure a presci'ibed Course of conduct. It is a method deemed necessary by the legislature to restrain ·the coinmlsdon of an offeoae and to aid In the prnentlon of such an offense. The effect of such a forfeiture Is to transfer the title to the specific thiiig from the owner to the sovereign power (23 A,m. Jur. 598) Bold types ours.) "In Black.'s Law Dictionary a 'Forfeiture' is defined to be "the mcwTing of a liability to pay a definite auni of money as the consequence of violating the provisions of some statute or refusal to comply with some requirement of law.' It may be said to be penalty imposed for misconduct 01· breach of duty." (Com. vs. French, 114 S. W. 255.) As a consequence, proceedings for forfeiture of property are c:IDemed criminal or penal, and, hence; the eemptlon of defend· ants in criminal Case from the obligation to be witnesses ap.inst themselves are applicable thereto. "Generally speaking, infonnaUons for the forfeiture 'of goods that see~ no Judgment of fine or imprisonment against any person are deemed to be civil proceedlnp. ID rem. Suell proceedings are crlndna1 In nature to the n:tent that where ilie penon lislllll the res llloplJ Is the owner or rl&htful possessor of It, the forfeiture· proceedings Is In the •ture of a punlsbment. They have been held to be so far :In the nature of criminal proceedings that a general Yel\f:lct on several counts in an information is upheld if one count is good. Aoconllng to the aulborltles such pnceedlnp. where tile owner of the propertJ' appears, are so tar considered as quasi criminal proceedings u to relieve the owner from being a witness against blmHU 1111d to prevent the COIDpusol'J" production of his books and papers. X X X (23 Am. Jur. 612; bold types ours.) "Although lbe contrary view fonaerlJ' obtained, the later decisions are to the effect that suits for forfeiture incurred by the commission ot offense& against the law are so far of a quasi-criminal nature as to be within the reuon of criminal proceedlnp tor all purposes ol x :s :s that portion of the :Ftfth Amendment whicb decisions that no perIOD slaall be CIJID,pelled. In my crlmlnal cue to be a witagainst blmselt. x x x It bu fl'equently been held upon CODStitutional grounds under the various State Constitution that a witness ex party called as a witness cannot be made to testify against himself as to matters which would subject his property to forfeiture. At early common law no person could be compelled to testlfJ aplmt blmself or to answer ·any question which would have had a purpose, as well as to incrlminate him. Under this common-law doctrine of pn>tection qainst compulSOQ" disclosurel which would tend to subject ·the witness to a forfeltme, .aucb. protection was claimed and availed of in a some early American ·cases without Plac1ns the basis of the protection upon consUtu~ t1onal 1 grpunds.'' (:23 Arp.. Jur., 616; bold types ours,). .: J'Proceedings ·for forfeitures are generally considered to be civil .and In the· nature: of proceedings bi rem. The sta· tute providing that no judgment or other pl'QCCedings in ·civil cases shall be arrested or reversed for any defect or want of form is applicable to them. In SQlllC aspects, ~ suits for penalties and forfeitures ..-e Of quasi Criminal nature and within .the .reason of crlmlnal Procieedbaas fOi- all the purposes of x x x that portion of Fifth Amendment wldcb declares that no per;.m shali. be compelled In 8'17 cdiDlnaJ. case to be a witness aplnst blmseif. 'the proceedings ·b ·one against the owner, as well as against the goods; for it· is his breach. of the laws whlch has to be proved to establish the forfL-iture and his property is sought to be forfeited.:" (16 Am. J1;1i:-., Sec. 104, p. 368; bold types ours.) . . "The rule protecting a person from being compelled to furnish evidence which would incriminate him exists not only when he is liable criminally" to prosecution: and pWushment, but also when bis ~wer would tend to apose .ti1m to a x x x forleiture: x x x."" ( 50 Am. jur., Sec. 43, p; 48-:' bold types ours.) · · · "As already observed, the v~rious c0J1Stitutions P~. that no person sha!l be compelled in any criminal case to be a witness alainst himself. This prOhlbition al;ainsi COJXt· pclling a person 'to take the stand as a witness agaiDSt liuiiself applies only. to criminal, quasi-c_riminal, and peUI pro_ceedings, lneludhg a proceeding dvll I'! fonn !Or forfeltUre ·:Of property by reason of ihe ecJDUl!(ulon of an offenH' 1l'i~ not a proceeding in which the penalty recoverable is civil or remedial in nature~ x x x.'" (58 Am. Jur., Sec. 44; p. 49; bold types ours). "The privilege of a witneaa: not to incriminate himself is not infrin&ed by merely asking the witness a question whlch he refuses to answer. The privilece is simply an option of refusal and not a prohibition of inqui:ry. A question ~ not improper merely because the answer may tend to criminate, but, "'here a witneBB exerclses his c.onstltutional right npt ' to answer, a question by counsel as to whether the reason. for refusing to ans~ !s becauae the answer may tend to incrlminate tbe witness is improp.fl'· "'The possibility that the examination of the wllnelB will be pursued to the extent of requiriitg self-incrimination wilJ. not Justify the refusal to 8'iwer questions, However, .wbere the polltlon of the wltnese Is virtually that of an aneo1 OD -· It would •P- that he - Invoked the pdvllqe In auppori of a blanket refusal to amwer ADJ' and all questions." (91 C.J.S., p. 252; bold 11Pes ours.) "A person may not be compelled to testify in an action against him for a penalty or to answer any question as a witness which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a v.inc:lication Of the public Justice "of the state. "In general, both at common law and under a ~ti~ tlonal provision against compulsory self-incrimination, a person may not be compeled to answer any question as a witness which would subJect him to a penalty or forfeiture, or testlf7 in an action against him for a penalty. "1'1.e privilege applies wtrere the penalty or forfeiture is recoverable, or is Imposed in vindication of the public justice of the state, as a statutory fine or penaltJ', or a fine or penalty for violation of a municipal ordinance, even though the action or p'roceeding for its enforcement is not brought ln a criminal court but is prosecuted through the modes of procedure applicable to an ordinary civil remedy." (98 C.J.S.. pp. 276-6) Tilus, In Boyd vs. U.S. (116, 29 L ed. 746), it was .that the information, in a proceeding to declare a forfeiture ot cerialn property because of the evasion of a certahi revenue law, "though p __ 20 LAWYERS JO~ 11111\WY JJ..J~ teelmk.u; a cl.U ~Ina, is In substance and effect a crlmlal one", and that suits for penalties and forfeitures ~ withbut not the prescriptive period of ' crimii;a~l ~t;.otL for violati,Qn of law. in the reasou of criminal proceedings for the purposes of that 5. partlon of the Fifth Amendment of the Constitution of the U.S. wblch dec1are.s that no penon shall be compelled ln a criminal ID.; NATURE Of. - Clearly, under s.ction 6 of Republic Act No. 55, the ipoment a person fails to pay his war profits ta~ within the period sp.ecifled therein, ho should be. considered as having violated the law and no other action would be necessary for his prosecution. Th:e offense is not a continuing one. case to be a witness against himself. Similarly, a proceeding for the removal of an off"icer was held, in Thurston vs. Clerk (10'1 Cal. 286, 40 P. 435, 43'7), to be In. su.bstance criminal for said PQrtion of the Fifth Amendment applies "to all cases In which the action prosecuted is not to esta\tllsh, recover or redress private and ciTil rights, but to try and punish persons charged with the commission of public offenses" and a criminal case Is an action, suit or ca111e instituted to punish an infraction of tlae criminal laws, and, with this object in view, It 11111tters not In what form a statute ma:r clothe Is; it Is still a crililinal case x Jr. x". This view was in effect confirmed 1n Less ft. U.S. (37 Le Ed. 1150-1151), Hence, the Lawyers Reports An· notated (Vol. 29, p.8) after an extensive examination of pertltinent cases, concludes that said constltulloul provlBlon ilpplles ........_ .the .--'1og I& nOt "i>mel¥ maedlal", or intended "as a redress for a private grievance", but primarily to punish °a 'dolatlon of duty or a public wrona: and to deter othen from olfendlag In a Uke manner x x x". . We are not unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that, after the filing of reapondentl' answer to a petition for forfeiture under Republic Act No. 1379, said. petition may not be a:mended as to substance pursuant to our rules of crimlnal p~ i;eciure, was rej~ted by this Court upon the ground that said forfeiture proceeding fs clvil In nature. This doctrine refers, howeYer, to the purely procedural aspect of said proceeding, and has no bearing on the subatanUal rights of the responden!.111 ihereLn, particularly their constitutional right against self-incrimlnation. WHEREFORE, the writ prayed for is granted and respond~t Judge hereby enjoined. permanently from proceeding further 1n Criminal Case No. 60111 of the Court of First Instance of Manila. IT IS SO ORDERED. Padilla, Bautista Angelo, LabradGr, l.B.L .Reyes, Barrera, Paredes, Dizon, Regala and Makallntal, JJ., concurred. Benpon, C.J., Is on leave. IV PeoPle of the Pblllpplneo, Plaintiff-Appellant Vs. thins Lak - Ang You Cbu, Detmdant-AppeDee, G.R. No. L-IDA9, Ma7 za, ''"'· Endencla. J. · t. CRIMINAL ACTION FOR VIOLATION OF INTERNAL RE. VENUE LAWS; PRESCRIPTION; LAW APPLICABLE. - Acts 3326 and 3585 were not repealed by A.ct 3815 otherwise knawn as the Revised Penal Code. It follows that A.rtiele 90 of the Revised· Penal Code would not apply to prescription of violations of special laws or part of laws administered by the Bureau of Internal Revenue for Article 10 of said law provides that offenses which are or In the future may be punishable under speclal laws -.re not subject to the provisions of the Revised Penal Code. 2. JD.; ID.; PERIOD. - In accordance with Sec. 1 of Act 3585 which amended Act 3326, all offenses against any law or PiU"t of law administered by the Collector of Internal Revenue shall prescribe after five years. 3. ID.; JD.; CASE AT BAR.-Anent the theory that in the present case the period of prescription should commence from the tbne the case was referred to the Fiscal's Office, suffice it to state that such theory Is not supported by any provision of law. 4 .• ID.; ID.; Rl!CONSIDERATION, PETITION FoR. - A peJltion for reconsideration of assessment may affect the SUBpcnslon of the prescriptive period for the collectlbn of taxes, DE·CISION On March 31, 1954, the defen~H.ppellee was charged with having violated Section 5(b) in -amnection with Section 8 of Republlc. Act No. Si in an information which reads as follows: "~hat on or about the 17th day of Feb,Uary, 1948, in the City of Manlla; Philippines, the said accused did then and there willfully and. unlawfully fall and refuse to pay, and continue to do so, the war profits taxes due from him in favm of the Republic of the PhllipPines in the total amount of PSS,643.65, Philippine currency." After his arrest, he was arraigned, duly assisted by his at· tomey, and entered the plea. of not guilty. Thereafter he fil~d a motion to quash the information on the ground that the crlmi~al action or liability charged therein had been extinguished by prescription, and the court, after proper hearing, sustained the motion. · . The provisions of Sections 5(b) and 8 of Republic Act No. 55, are as follows: "SEC. 5(b) Time of Payment. - The total amount of the tax imposed by this Act Sha.II be paid on Ol' before the last day of the sixth month foUowilJI the approval ~f. The deficiency tax due on the &filended ret:J.Jrn ~qµirecJ to be flied under section 4(b) of this Ac~ on account of the receipt of payment for war damqe or other ·claims .itall be paid within thirty dflYS from the receipts 9f the as,sessment of the Collector of Internal Reyenpe. To any sum or sums due 11.nd unpaid -1ler the 4ate pre:fedbed for the payment of the same there shall be added tl;le su~ of fifteen per centum. on the amount of the tu: unpaid and interest at the rate of one per c:,Dtum. per month upon said tu. from the time the same becomes d~." SEC. 8. Penalty. - Any . indiy1du$.I or responsible officer of a partnership, compa01 pr corporation violating any provision of this Act or of the regµlations promulp:t:ed hcreun~r. or any persQD connivirig with sQch indiyidual or responsible officer for the purpose o.f evading the t~ lufrein imposed, shall, upon conviction, ·be puni~ by imprisonment from five years to twenty years or a fine of not Jess than five thousand pesos but not more than thirty thousand pesos, or both, in the discretion of the court." Evldentl7, in the information quoted above, the accused herein was charged with an offense against "- law administered by the Collector of Internal Revenue, for it clel!-rll' appea~ from the proviaions of Republic A.ct. No. 55 especially from Sec. 9 thereof, that the exeeution of all its provisions was entrusted to the Collector of Internal Revenue; and in accordance with Sec. l of Act 3585 which amended Act 3326, all off~ ap.inst any law or part of law administered by the Collector of Int~mal Revenue shall prescribe after five years. Act 3326, ~ted on December 4, J926, is "An Act to estaJ>. lish periods of prescription for violJ'.t~ons penlillized by special acts and muni~ipal qrdlnances aJld to provide when prescription shall begin to. run." It reads as follows: "SECTION 1. Violatlons penal17.ed by special" ~t~, unless otherwise provided in such actis, p~rlbe 1n accordance with. the fpllQWing rules: (a) after a year for offenses pu~ only by • flIJ,e or by imprisonment for not more than one month, or both; Cb) after four years for those punished by imprisonment for more than one mOilth, but January 31, 1963 LAWYERS JOURNAi- Page 21 less than two years; (c) after eight years for those punished by imprisonment for two yeara or more, but less than six years; and (d) after twelve years for any other offense punished by imprisonment for six years or more, except the crime of t~, which shall prescribe after twenty yea.rs. Violations penalized by municipal ordinances shall prescribe after two months. SEC. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if the the same be not known at the time, from the discovery thereof and the institution of Judicial proceedtngs for jts investigation and punishment. "The prescription shall be interrupted when prqccedtnga are instituted. against the guilty person and shaJl begin to run again 1f the proceedings are dismissed for reasons not cOnstituting Jeopardy. "SEC. 3. For the purposes of this Act, special acts shall be acts defining and penalizing violations of the Jaw not included in the Penal Code .. "SEC. 4. This Act ahall take effect on its approval." Act No. 3326 was amended bJ Act No. 3686 whlch reads as follows: "SECTION J. Violations penalized by special Bets shall, unless otherwise provided in such acts, prescribed in accorddance with the following rules: (a) after a year for offemres punished onl7 by a fine or bJ imprisonment tor not more thali. one month, or both; (b) after iour yean for those punished bJ imprisonment for more than one month, · but less than two' years; (c) after eight years for those punished by imprisonment for two years or inure; but Iesa than siz years; and (d) after twelve years for any other offense punished by imprisonment for slz years or more, except the crime of treason, which shall prescribed after twentJ' 7e81'S: Provided, however, That all offenses against &DJ' law or part ot' law administered by the Bureau of l,ntemal Revenue Shall prescribed after five years, Violations penalized. by 111.1.miclpal ordinances shall prescribe after two months.'' Acts 3326 and 3586 were not repealed by Act 3815 otherwise known as the R.eTised Penal Code: their prov:islona ~ ed intact and In full .force. It followa tha,t Article 90 of the Revised Penal Code providlllg for the preacripUon of crlmes would llOt applJ' to p...cription of violaUons of special Jaws or part of laws aclminiatered bJ' the Bureau of Internal Revenue. for Article ID of said law (Act 3815) clearly provides u follows: .. Offenses not subject to the provisions of th1a Code. - Offenses which are or in tbe future mQ be punlsbabl~ under sJ)eda1 laws are not subject to the provisions of this Code. This Code shall be supplementary to such Jaws, unless the latter should speciall7 provide the contrary." In view of the foregoing provisions, defendant herein flled his motion to quash on the &ro1J:Dd that since February 7, 1948 up to the filing of the Information on March 31, 1954, mme than five :rears have elapsed, contending that if be had ever violated Republlc Act. No. 55,. that >lolation must have 1akm place either on February 7, 1948, as alleged :In the information, or on April 30, 1947, whicli was the last da:r of the sistb month following the approval of said Act within which the tax in question should h!f.CV been paid, otherwise the defendant would incur the penaltJ' prescribed by Section 8 of said Act. This contention was upheld bJ' the lower court, presided b)" Hon. Antonio G. Lucero, In tbe decisi~ appealed from, as follows: "From the certifiCd copies of the documents presented b:r the defense, it appears that OD May 22, 1947, Collector Bibiano L Meer, of the Bureau of Internal Revenue, sent to the accused an assessment for war profits tu: amounting to P219,842.00 and required him .to par 1n on or ~·June 15, 1947. On June 4, 1947. Atty.· Modesto FormUlez91 as counsel for said accused, contested the assessment in a letter he sent to the Collector of lnlemaJ Revenue in which he expressed his reasons wby b1s client could not see hls way to paying said assessment. In a well-reasoned motion to quash, Atty. Cesar Miraflor argued that from whatever angle the case is viewed, it is apparent that the criminal action or labilitJ' OD the part of the accused, if any, has already been extinguilhed. Before connecting premise and conclusion, it is essential to discuss the law applicable. Defense counael contended that the preScriptive period applicable in this case is that fouhd in Act 3585, approved by the Philippine Legislature on November 27, 1929, which provides in Its per~ tinent portion that all offenses against any law or part of law: administered by the Bureau of lntemal Revenue shall prescribed after five years. lt Is worthy to note in this connection that Act 3585 establishes period of prescription for vi~ lations penalized by Special Acts, as Its caption so states, and there can be no question that Republic Act No. 6~ is a special Act. There can be also no question that Republlc Act No. 55 Is being administered by the Bureau of Internal Revenue, as shown not only by the notice of asseism.ent sent to the accu~ on ~ 22, 1947, but also by the provi~ sions of Section 9 of said Rep. Act No. 55 which states that "all administrative, Special and general prov1slons of law; includiJq: the laws 1n relation to the assessment, remission, ·collection and refund of National Internal Revenue taxes, are hereby ext.ended and made applicable to all the provi...: sions of th18 law (Rep. Act No. 55) and to the tJZ bereln imposed." This Provision is quite clear as to require tnterPretation. On the other hand, Asst. Fiscal Reyes 8fgued that the provisions of the Revised Penal Code on ~p tion should govem this ease. However, whatever strength this argument might carry Ls totally destroyed by Article 10 of the Revised Penal Code which provides that offenses which are, or in the future may .be punishable under special laws are not subject to the provision of this. Code. It is, therefore clear that the provisions of the Revised Penal Code do not govern offenses punishable under special laws. Besides, Article 367 of the Revised Penal Code, whicb enumeratea the spec1al acts repealed by said code, does nQt mention Act 3585, and so the prescriptlve periods of Act 3585 still stand. As a desperate move to be able to wiggle out of the JepJ predicament, the presecutlon contended that the crime charged· in the information is continuing offense but, as tbe defense ·"COUDSeJ. ~ correctly stated, for a continuing crime to ezist, there should be pluniJit)" of acts performed, and OD this· criterion, it is evident that thls argumenJ. iB withoUt found-' ation. Even if this Court should hold that the prescrlpdve· period provided for in Section 354 of the National Internal· RevenUe Code. could be applied on tbe ease, the period prescribed thereunder is five yean, which is the same period prescribed in Act 3586. Whether this Court takes as basis, for prescription May 22. 1&47, which Is the date when Collector Meer sent the assessment to the herein accused. or June 4, 1947, the date when !he accused wrote the letter to the Collector of Internal Revenue wherein he stated bis reuons for refusing to pa:r tbe assessment, or FebruarJ' 17, 1948, the date alleged in the information as the time when the. accused refused unlawfully to pa:r his war profit tax. the .conclualon will not alter, namel)", that the five-year period from the date of the discovery of the offense has alread:y prescribed when the information was filed on· March 31, 1954. This concluslon would not also aJ.ter whether thiB Court applies Act 3585 or the National Internal Revenue Code." The Solicitor General claims that the IOwer court med (I) in holding that the crimlDal liabWIJ' of the defendant had - eztinguJshed bJ' pnscriptlcm; (2) that cleD1Jiis _. ..... motion for l"OCOllBid&ration dated 1anuarJ" 25, 191;6; and (~) i1I dismissPage 22 lAWYBRS JOURNAi. January 31, .1963 ing the criminal case against the defendant. Mainly, the con· tention of the Solicitor General ls to the effect (a) that the Jaws of presciption applicable to the present case are Articles 90 of the Re\'ised Penal Code; (b) that the violation of law is a continuing offense and, therefore, does not prescribe notwithstanding the lapse of five years from February 17, 1948 up to the filing of the information; and (3) that the period of prescription In the case at bar should commence from the time the tax violation was referred to the fiscal's office for investigation. claiming that "Under Section 2, Act No. 3326. when the date of the \•iolation needs to be discovered, as in the case here, the prescription begins 'from the disco\'cry thereof and the institution or Judicial proceedings for its Investigation and punishment." Upon careful perusal of these contentions, we find them completely untenable, under the facts of the case because it cannot be disputed that Articles 90 and 91 of the Revised Penal Code do not govern offenses punishable under special laws that Republic Act No. 55 is a special law and therefore, the prcscrip· tive law applicable to the instant case should be Act 3326 as amended by Act 3585, it being a well-known prlnclple in statutory construction that In case of conflict between a special law and general law, the former should govern. As to appellant's contention that the offense charged in the information is a continuing one, we cannot subscribe to th<1t theory for the simple reason that, under the provisions or Republic Act No. 65, upon failure of the herein de£endant-appellce 10 pay the taxes in question on February 17, 1948, or on April 30, 1947, there has been a complete violation of Jaw for which he should have been immediately prosecu1ed. Clearly, under Section 5, paragraph (b) of Republic Act No. 56, the moment a person tails to pay his war profits taxes within the period specified therin, he should be considered as having \'iolated the law and no other action would be necessary for his prosecution. Anen1 the theory that in the present case the period ·or prescription should commence from the time the case was referred to the Flscal's Office, suffice, it to stale 1hat such theory i<> not supported by any provision of law and we need not elucidate thereon. Moreo\'er, the record of the case shows that on May 22, 1947, Collector Bibiano L Meer of the Bureau of Internal Revenue assessed the war profits tax in question agains1 the accused and fixed June 15, 1947 as the date of lls payment without the herein accused paying it, and, according to the information, the accused, on February 17, 1948, willfully, tl}:l~ utilawfully failed to pay said tax. Therefore, the violation of law in question was known to the presecution, it was not concealed, and consequently lt cannot now be pre1ended that same has not yet pres· crlbed because it was not discovered until the papers of the case were sent 10 the Fiscal's Orfice of the City of Manila. Certainly appellant had knowledge of the illegal ac1s of the accused even before February 17, 1948, and that knowledge precludes the appellant from evading the operation or the Statute of Limitations. The Solidtor General contends, however, that at the be· best of appellee, 1he Internal Revenue examiners aslgned to the case submitted an amended assessment of February 25, 1960 withhold collection pending the adjustment of the controversy between him and the Commissioner and where the Commissioner yielded to the request and postponed collec· lion until after the statute had run on collection was not timely." (Mertens Law of Federal Income Taxation, Vol. 10, Sec. 57, 41 p. 195, 1953 ed.) We have carefully examined this Lattimore case and we find it completely inapplicable to the case at bar, for it refers to civil action for collection of taxes and not to criminal prosc:>cution for violation of law for non-payment or truces. We hold that a petition for rcconsideratlon of assessment may affect the suspension of the prescriptive period for the collection of taxes, but not the prescriptive period of a criminal action for violation of law. Wherefore, finding no error in the order appealed from, the same is hereby affirmed. Paras, C.J., Bcngzon Montemayor, Reyes, Bautista Angelo, Labrador, Concepcion, J.B.L. Reyes and Felix, J.J .. concurre~. V II People or the Philippines, Plaintiff-appellant, vs. Gl,tl~lpnno Manantan, Defendant-appellee, G.R. No. L-14129, July %~1·1962, Regala, J. u~irno I. ELECTIONS; ELECTIONEERING; PERSON PR0tt;IBllfED FROM INFLUENCING ELECTIONS; JUSTICESO·filmll'HE PEACE INCLUDED IN SECTION 54, REVISEp ; .fi\,~CffilO~ CODE.- 11 is to be noted that under Section 41!,of rih~~f:vis· cd Administrative Code, the word "judge" 'Wflo~ J.Q..04,ifjJ,?,1;1 or quallfled by the ph~ase ''of First Insiance,': ,.w)ljl7 .cUPd~[nSe".=1: tl~n 54 of the Revised Election Code, no.:.}.JlcJldl1i'odJ~~qtion ~x1sts. I? other.words, Justices of .the _l(~'l.CC.J8ffCJ:exp_y,~ssly mcluded in Section 449 of the Revised t1'4P.31fJ#ti;a~ve ~ode because the kinds of judges therein wert\f pcqlfied j.i'.. ~udg<; of the First Instance and justice of ' tp9 8~c~. ;~ ?f4tion ~· however, there .was no necessit~. flrYo;iP!f ·. \p ~~c~u~i; 'just,. ices of the peace m 1he enumerat16p b~Causc fhe . ~eg1sl~ture ' had availed itself of the more 'g~nerlt' 5hd''rbroaHer lerm, "judge." It was a term not modffi1;~ 1bl1 a~ .vJor~ : b1 r, phra<;e and was lntendcd to comprehend alt' kifidS bf ]tid'gb, 1like judges of the courls of First 1 thst!n~e. Ju*Ms' df1 tb'e cburts of Agrarian Relations, judges' of Wd codd~' dt lndustria1 Re· Iations and justices of the peace. '1' ,'.;J 1. ID.; ID.; JUSTICE OF THE 'PEACE 'CONSTRUED AS A JUDGE.-lt is a well known fact that d justice of 'the peace is sometimes addressed as ''}udgel• in lhis jurl'sdidion. It is because a justlce of the peace Is ihdeed a j'Odge. 3 PUBLIC OFFICER; JUDGE; DEFI1'/ED. - ,AS JNCLUD)NG JUSTICE OF THE PEACE.-A '1judge" is a public officer, who, by virtue of hlS office, is clothed with judtc'iai authority (U.S. v. Clark 25 Fed. Cas. 441, 442). According to Bouvier Law Dictlonary, "a judge iS a public officer lawfuly app6inted to decide litigated q'ueStlons according to Jaw. Jn its most extensive sense the term lncludes all ~Hicers appoihted to decide litigated questioris while l a'Cting in that d.pacity, including justices or the peac'e, arid even jurors, it is ~ said, and, therefore, the prescriptive perlod for violation of the war 4 profits tax law should be considered as having been suspended · up to the aforementioned date, because up to that time it was legally impossible for appellant to charge appellee criminally who are judges of facitS:" ' I , l 0 ELECTI0N 'LAW OF THE ' 'PJ-iILTPPINES; HlSTORY.-The firs~ eleCfi6ri 'l:l.W°'in r'he Philippiries Was Act N0.11582- eiiabed by the Philippine Commission In 1907, and whldll 'was· 'futer amended by Act Nos-. 1669.. > 17119, 1-726'1and 176K (Of tlieSe ~ ameodmcnts, however, only .Act rNo.'1 1709 ha& a relation to the discussion of, the Instant case as shaU be shown later.) A~t1 No~ 1&82.1 with its subsequent 4 amendments were later in view of the fact that the war profits tax was as yet undetermined and, in support of that contention, in the case of Lattimore vs. U.S., 12 F. Supp. 895, was invoked, wherein it was held: "It is important to recognlze that the ordinary period of limitation may be extended or suspended not only by what has come to be recognized as a 'waiver' but also by the acts of the taxpayer ill.\tOlved. It ts also been held,,, for example, that where the taxpayer has strenuously objec;:ted to collection of the tax and has urged the Commissioner to January 31, 1%3 r!. 0)). Lnoorperated io.. ,Chap.tt!r 1 18 of ith~ AUm;inis,irrotiW, .. €ode. q Under th~ Phtlippinc Legislature . . SeveraJ ' .8.mendinent'i'1were made through the passage of Act Nos. 2310, 3336 and 3.187. .\ 1 \Ag1linu 9f tff.se < /.asJJ!"~ ~e-IJd~rntJ! '._,qnl.Y. , • .Ac~ / ~o. ' 33~1 I hasi ou P.1lr.IJ~cn,<;'CjtO ,file c.ql'b'\"1\>,ar 1\l)all ~: ~ 1 I'lJ,q) 11Dµ'19"1thc time of the Commonwealth, the National Assembly passed E ·J,gn•I Page 23 Commonwealth Act No. 233 and later on enacted Common\'iealtll Act No. 357, which was the law enforCed until )une 21, 1~7. 'When 'the Revised Blecllon Colle (Republic Act 180) 'Was apptoved. included as its lftlsic provisions are the provistons 'Of Com!nO'tl'\\'ealMl Acts Nos. 283, 357, 6«15, 657. The present Code was further amended by Republic Acts Nos. 599, 867, 2242 and again. during the session of Con'gress in 1960, amended by Rep. kts Nos. 3036 and· :3038. 5. ID •. ; ID.; OMISSION OF "JUSTICE OF THE PEACE" IN SECTION 54 OF THE REVISED ELECTION CODE.-The firsl 'Ollfiss:ion. ·of the word .. Justice of the peace" in the election law was effected in Section 49 of Commonwealth Act No. 357 and not in the l)resent Election Cod.e. Note carefully, however, that .in the. two. tnstances when the words "Justice of the peace" were omitted. In Com. Act No. 357 and Rep. Act Noo :a,.ao, the wprd "Judge" which preceded in th~ enumeration did not carry the qualification "of the First Instance.'' In otl;ler words, whenever the word "JudF" was qualified py the -phtase "of lhe Flrst Instance," the words "justice of the ·peace" would folloW; however, if the law simply said "Judge," the words "justice of the peace" were omitted. 6. STATUTORY CONSTRUCTION; 'RULE OF "C.lSUS OMISUS 1•RO OMISSO· Hl\BENDUS EST."-Under the role of "casus onllsus pro amisso habendus est" that a person, object or Oibg omitted from. an eaumeratioo must be held to have been· .OillilMd int.ent;kmally. . 7. lD.; ·ID.: APPUC\TION OF MAXIM "C.lSUS OMISUS".-The . maKbb. "'casus amisu&" can operate and apply only If and whe!a. the ontiasloii' has ·been clearly established. 8. U>.; 'ID.; JUSTICES ·OF THE PEACE WERE CAU.ED JUDGES tlNDER SECTION 54, REVISED ELECTiON CODE~Un· der Section 54 of the R.eV1s:ed Election Code, jus~ices of the peace were called '11ldges." 9. ID.; ID.; llPPUC.lTION OF THE RULE "C.lSUS OMISUS" NOT PROCEED FROM THE FACT THAT A CASE IS CRIMINAL IN' NATURE.-The application Of the rule of "casus omisus" does not proci:ed from the mere fact that a case is criminal in nature, but rather from a reasonable certainty that a pa"rticuJar person, object or thing has been omitted from a legislative enumeratlon. In the present case. there has. been no such omission. There has only been a substitutloJ'!, or temls. .· , 10. ID.; PENAL STATUTES; RULE THAT PENAL STATIJTES BE STRICTLY CONSTRUED NOT ONLY THE FAClrOR CONTROLLING THE INTERPRETATION OF SUCH LAWS, -The rule that pen_al statutes are given a strict construction is not the only factor controlling the interp~Uon of such laws; iµstead, the rule merely serves as an additlonal, single factor to be considered as an aid in determining the meaning of 'penal la~s. Thls has bee,n recognized time and again by decisions of \'arious courts .(3 Sutherland, Statutory Construction, p. 56.) Thus, cases ~Ii" 1,requently be found enuncia~ing ~e principle that the int~t of the legisla~u1·.! Will govern (U.S. vs. Co~~et, 215, U.S. 233). 11. ID.; . STRICT CONSTRUCTION NOT PERMITTED TO DEFEAT THE POLICY AND PURPOSE ·OF STATUTB.-A strict construction should not be permitted to defeat th.e pOiicy 8nd purposes of ·the statute (Ash Shrop Co. v. U.S.. 252 U.S. 196).- . , 12. ID,; SPIRIT AND REASON OF A S"l:ATUTE CONSIDERED IN INTERPRETATION THEREOF~The court may eon.sider the spirit and reliaon of a.: statute in the ·interpTetatlon of a S:tatute where a ;Jiteral meanjng would lead to absurdity, contradiction., Joju.stic:e. or would defeat the clear pmipose of the ·law makers (.Crawferd, lntupretatlon of ·Laws, Sec. 78' ~ p. 294). 13. 1D:·:·· PENAL Sl:ATIJTES: CONSTRUED TO HARMONIZE WITH THEIR IN'l'l!NT AND PURPOSK~Tiie •tritt cOlilltl'uc~· ... • .. ~ Page 24 tlon of a criminal statute doe8 not mean such construction of It as to dOprlve lt of 'the lneaning intended. Penal stiitutes must be constn:red in the sense 'whicb · beSt hllrmbnizes with their intent and purpose. (U, S. v. Batter!dge, 43 F. Supp. 63, 56, cited _in S SU:thertanc:i Statutory''Canstruction 56.) 14, ELECTIONS; ELECTION!iERING; JUDICIAl. OFFK:ERS PROHIBITED FROM AIDING CANDIDATE IN ELECTION UNDER. SECTION 54, REVISED ELECTION CODE.-lustlces of the Supreme 'Court,. the Court of Appeals, and various Ju~!JCS, such the judges of the· Court of l~dustri&:l RelatiWW: Judles of the Court of Agrarian Relations, etc .• who· were not lnCluded in the prolll.1>.tion under the old Statute. arC now within the encompass of SectiOn 54, Revised mection Code. · 15, ID,; ID,; REASON WHY JUSTICES OF THE PEACE ARE PROHIBITED FROM ELECTIONEERIN"G~The weakest link in our Judicial system ls the justice of the peace court, and to so construe tJ:ie law as to allow a judge thereof to engage in partisan political actiVities would 'Wdili:en rather than' strengthen the judiclary. On the other hand, there are cogent reasons found in the Revised Blectlon Code· itself-Why Justices of the peace should be prohibited from electioneerinl. ·Along with .JUstices of the appel.late courts and Judges of tlie CourU of First Instance, theY are given authority and· jurisdiBition· over certain election cases (See Sec&. 108, 117-123 .Revised .. Election Code). Justices of the peace are authorized. to hear and decide Inclusion .. and exclusion cases Bod .if they are . ·permitted to campaian for candidates for an elective office . the impartiality 'of ·their decis1ons in· e1eetion cases woul4 be open .. to serious doubt. . We do not believe thatcthe 1"81B·lature had, in Section 64 of the Revised Election :Code, .intended to create such an unfortwaate situation. 16. ID.; ID.; EXECUTl\'11. DEPARTMENT HAS REGARDED JUSTICES OF THE PEACE WITHIN PURVIEW OF SBCTION 64, REVISED ELECTION ·CODl!•-'l'he, .admlnlst;\<ati ... ·Or' executive department has reprded Justices of the peac;e within the _purview of Sectlen 64 Qf t1'e Revised Election Code. ' 17. STATUTES; PROPOSElil AMENDMENT; UNTIL IT BECOMES' A LAW, CANNOT BE .CONSIDERED TO CONTAD! ANY • LEGISLATIVE INTENT.~Proposed amendment, until :It ·has become a la:w, cannot be considered to contain or manif~, any legislative Intent. I• .. ID.; MOTIVES, OPINIONS, AND REASON EXPRESSED B11. 01NDIVIDUA<L LEGISLATIVE MEMBER CANNOT BE TAKEN· IN ASCERTAINING MEANING OF STATUTE,-il"he motives,: . opiQiODS, · u.d the reason expressed 'by the individual members of the legislature, even in debates, ··cannot be .proper!J': taken into consideration in ascertaining.· the meaning .of ·a• statute (Crawford, ·statutory Construction,. Se.c, 213,. pp, 3'7.S. 376). 19. ELECTION; ELECTIONEERING; •LEGISLATURE CONSISTENTLY PROHIBITED JUSTICES OF THE ,PEACE, FROM PARTICIPATING IN PARTISAN POLITICS.-Our law-makin& body has.consistently J;?rQbibited jus~ces.of µie.peace ,~rom . participating in partisan poli~s. They wei:e prohibited under .Ahe old Election ,Law since 1907 (Act No. 1582 ~ Act No.. , 1709). Ukewise, they were so enjoined by ·the R~~ Admtnlatratlve Code. Anot)J.el' law which expressed the prohibition .. to ;them was. Act No. 3387, and later ,Com. Act No. 357, 20dQ.; ID.; SlATUTORY CONSTRllC.TION;.SECT.ION.54, R& VISED ELECTIPN CODE.: RULi! OF EXPRESIO JIN~US, EST , EXCLUSIO ALTBRIUS: E\UtONl;OUSL,Y .APPLIED .BY THE. . Tll-1.U. COURT ,lNn COURT Of APP8ALS~If ·the le~ature had intended to exclude a justice of the peace from the pur'View "·of Section 1 54, "neither the "trial coiirt :noi- the -Court of · AJ)r.ieals has" giveil tbe reasOn for lhe""eXclilsiOD:. Ind.eed, l:&ere apl>ears no · reaion for· the· ·&Uegetl" 'chUi~ · · Hence, tfit fule 'of ~· u111 .... t - - - .... h• bee,. ~ ·.·;apprted. ; ii.. · · · · ·:. -~::·:: •.• · 21. STATUTORY CONSTRUCTION; RULE OF 1'EXPRESIO UN- tention of· the Leglslature'to ~lude juStlces of the peace fi-om !US EST EXCLUSIO ALTERIUS"; WHEN SHOULD NOT Its operation. . . . BE INVOKBD.-Where a statute appears on its face to limit The above argument overlooks one furidainental fact. It is the operation of Its provisions to particular persons or things to be noted that under Section 449 of the Revised Administrative by enumerating them, but no reason exists why other per- Code, the word "Judge" was modified Or qualified . by the phrase sons or things not so enu~erated should not have been "of First Instance," while under Section 64 of the R.evlsed. Elecincluded, and manifest injustice will follow by not so in· tion Code, no such modification exists. Iri other words, Justices eluding them, the maxim exprea:io unius est exclusio al- of the peace were expressly included. in Section 449 of. the terius, should not be invoked. (Blevins v. Mullally, 135 P. Revised Administrative Co"e because the kinds of Judges there1n 307, 22 Cal. App. 619) were specified, i.e., Judge of the· First Instance and justice of D E C I S I O N the peace. In Section 64, however, there was ·no necessity anyTbis is an appeal of the Solicitor General from the order more to include justices of the peace 1n the enumration bec&use of the Court of First Instance of Pangaslnan dismissing the the legislature had availed itself of the more generic and broader infonnation against the defendant. · er term, "Judge.'' It was a term not modified by any wbrd · 'oI The records show that the statement of the case and of phrase and was Intended to comprehend all kinds of Judges. the· facts, as recited tn the brief of plaintiff-appellant, is com- like judges of the of the courts of First Instance, Judges of· the plete and accurate. The same is. consequently, here adopted, courts of Agrarian Relations, judges of the courts of Indu&&rial to wit: Relations, and Justices of the peace.· "Jn an.information- filed by the Provincial ·Fiscal of It is a well known fact that a Justice of the peace is somePangasinan tn the' Court of First Instance of that Province, time addressed as "judge" in th1s Jurladiction. It is bec'allae a defendant Guillermo Manantan was charged with a viola- justlcc of the peace is indeed- a Judge. A "judge''·· is· a public don of Section 54 of the Revised Election Code. A preli- officer, who, by virtue of his ·office, is clothed. with Judicial au· mlnarJ' investigation conducted by said court resulted in the thority (U.S. v. Clark 2S Fed. Cas. 441, 442). According to ~ findina of a probable cause that the crime charged was vier Law Dictionaey, "a Judge is a publlc- t;>fflcer lawfully ap.. · committed by the defendant. Thereafter, the trial started pointed to decide litigated quest!Ons according to law. In its upon defendant's plea of not guilty. the defense moved to most extenalve sense the term includes all officers appo1nte4 to dismiss the lnfonnaUon on the ground that as Justice of the · decide litigated questions while acting In that capacity, lncludlng peace, the defendant is not one of the officers enumerated JU9tlees of the peace, and even Jurors, it ls said, who are judges in Section 64 of, the Revised Election Code. The lower of facts.'' court denied the motion to dismiss, holding that a justice A review of the history of the Revised Election Code will of the peace is within the purview of Section 54. A second help to justify and clarifJ the above conclusion. motion was filed by defense counsel who cited In support The first election law in the Philippines was Act No. 1682 thereof the declsion of the Court of Appeals in People vs. enacted by the Philippine Commission in 1907, and which was Macaraeg, C.A-G.R. No. 15613-R, 64 Of!. Gaz. pp. 1873-76) later amended by Act Nos. 1669, 1709, 1726 and 1768- {Of these where it was held that a Justice of the peace is excluded 4 amendments, however, only Act No. 1709 has a relation to the from the prohibition of Section &4 of the R.ev1sed Election discussion of the instant case as shall be shown later.) Act No. Code. Acting on this second motion to dismiss, the answer 1582, with its subsequent 4 amendments were later on incor-' of the prosecution, the reply of the defense, and the opposi· porated in Chapter 18 of the Administrative Code. Under ·the tion of the prosecution, the lower court dismissed the in- Philippine Legislature, several amendments were . mack; through formation against the accmed upon the· 'BU&hority of the- the passage of Acts Nos. 2310, 3336 and 3387. (Again of these last nJ.ling in the case cited by the defense.'' 3 amendments, only Act No, 3387 has pertinence to the case at Both parties are submitting this case upon the detennina~I:, ':1 N~ti=.;- =bl;>1';~bec!°:O:~~ ~:~~ tion of this single question of law: 11 a Justice of the peace In- 233 .and later on enacted Commonwealth Act No. 367, which was = in the prohibition of Section 54 of the Revised Election the law enforced until June 21, 1947, when th'e Revised Election Code was approved. Included as its balic prOvisions are :thb Section 54 of the said Code reads: provisions of Commonwealth Acts Nos .. 233, 367, 605, 666, 657 .. The "No Justice, Judge, fiscal, treasurer, or assessor of any present Code was further amended by·· Republic Acts Nos. 599, province, no officer or employee of the Anny, no member of 867, 2242 and again, during the session of Congress·ln 1960, amendthe·national, Pl'OVincial, city, municipal or rural police force, ed. by Rep. Acta Nos. 3036 and 3038. Jn the histoey of our elecand no classlfted civil service offlcer or employee shall aid tion law, the follcnrin&: should be noted: .. any candidate; or· ezert any influence In any manner in anr Under Act 1682, Section 29 1 it . was provided: election or take part therein, except to TOte, if entitled there- "No publlc officer ahall offer himself as a ·candidate 'for to, or to preserve public peace, if he is a peace officer.'' elections, nor shall he be eligible during the Ume that. he · Defendant-a.ppellee araues that a Justice of the peace is not holds said public offlce- to election ·at any municipal, provin-. comprehended. alnong the officers enumerated. 1n Section 64 ol cial or AssemblJ' election, except·for reelection to the positioD:· the Revised Election Code. He submits that the atorecited sec- wblch he may be hold.Int. and no ju• of the FJrst Instance, lion was taken f~ Section ~ of the Revised Administrative Justice of the peace, provincial fiscal,· or ~officer or empl~ : Code, which provided. the following: of the Philippine Constabulary or of the Bureau of Ed.ucation.J "Sec. 449.-PERSONS PROHIBITED FR.O.M INFLUEN- shall aid any candidate or influence in any manner or take'. CING ELECTIONS.-No .Judie of the First Instance, jusUce part In any municipal, provincial, or Assembly elediOll: under· of the peace, or ~urer, fiscal or assessor of any province the penalty of being deprived. of his office and being cllsqua-. and no officer or employee Of the Phllippine Constabulary, lified to hold any public office whatsoever. for a tenn of 6 · or any Bureau or employee of the classified. civil service, years: Provided, however, that the forqoinc provislons shall aid any candidate or exert influence in any manner shall not be CQDStrued tp deprtve any p~rson ·otherwise qua· · ln any election or take part therein otherwise than exercising .lifted of the right to vote at any electipn. · (Enacted January the right to. vote." 9, )907; Toolt effect on Janullrf 15, .i!i07.) When, therefore, Section 54 of the. Revised Electioii Code omitted 'Iben, in Act 1709, .Sec. 6, it was· likewise· provided: the wardl "Justice of the. peace," the omission -revealed the in- ~·x x x No ·.Judge of ·the First :rnsianee,· Justfce of the Jan!""l' 31, 196.1. LAWYERS JOURNAL: peace, provincial fiscal or officer or employee of the Bureau of Constabulary or of the Bureau of Education shall aid any candidate or influence in any manner or take part in any municipal, provincial or Assembly election. Any person violating the provisions, of this section shall be deprived of his office or employment and shall be disqualified to hold any public office or employment whatever for a term of 5 years. Provided, however, that the foregoing provisions shall not be construed to deprive any person otherwise qualified or the right to vote at any election. (Enacted on August 31, 1907; Took effect on September 15, 1907.) Again, when the exisUng election Jaws were incorporated in the Administrative Code on March 10, 1917, the provisions in question read: "Sec. 449-PERSONS PROHIBITED FROM INFLUEN· CING ELECTIONS.-No judge of the First Instance, Jusdce of the peace, or treasurer, fiscal or assessor of any province and no officer or employee of the Philippine Constabu· Jary, or any Bureau or employee ot the classified civil ser· vice, shall aid any candidate or exert influence in any man· ner in any election or take part therein otherwise than ez:erci.sing the right to vote." (Bold types supplled.) After the Administrative Code, the next pertlneiit lcgisla· tion was Act No. 3387. This Act reads: "'Sec. 2635-0FFICERS AND EMPLOYEES MEDDLING Wini' THE ELECTION.-Any Judge of the First Instance, Justlee of the peace, treasurer, fiscal or assessor of any prov· ince, any officer or employee of the Philippine Constabulary or of the police of any municipality, or any of fleer or em· ployee of any Bureau or the classified civil service, who aids any candidate or violated in any manner the provisions of this section or takes part in any election otherwise by exercising the right to rote, shall be punished by a fine of not less than Pl00.00 nor more than P2,000.00, or by imprisonment for not less than 2 months nor -more than 2 years, and in all cases by disqualification from public office and deprivation of the right of suffrage for a period of 6 years." (Approved December 3, 1927.) (Bold types supplled.) Subsequently, however, Commonwealth Act No. 357 was enacted OD August 22, 1938. This law provided 1n Section 48: "Sec. 2635--0FFICBRS AND EMPLOYEES MEDDLING FICERS AND EMPLOYEES.-No justice, Judge, flscal, trea· surer or assessor of any province, no officer or employee of the Army, the Constabulary of the National, provincial, municipal or rural pollce, and no classified civil service of· fleer or employee shall aid any candidate, nor exert influence Jn any manner 1n any election nor take part therein, euept to vote. if entitled. thereto, or to preserve public peace. if he is a peace officer." Ibis last law was· the leglsla~on from whlcb Sectioo 54 of the Revised Election Codo we.s taken. It will thus be observed from the foregoing narration of the leglalative develop1D£D.t .or history of Section 54 of the Revised. Election Code that the fiI8t omission of the word "justice ot the peace" was effected in Section 48 of Commonweal~ Act No. 357 and not in the present Code as averred by defendantappellee. Note carcful.Iy, however, that in the two instances when the words "justlcc o1 the peace" were omitted .1n C.Qln •. Act No. 857 and Rep. Act No. 180, the word "judge" which preceded in tbe enumeration did not carry the qualification "of the First Instance! ID. othec words, whenever the word "judge" was qualified by tb.e phrase "of the First Instance," the words "justice ot. the peace" would follow; however, if the law simply said "Judge,'' the words "Justice of the peace" were omitted. The above-mentioned. pattern of congressional phraseology would seem to justify the conclusion that when the legislature omitted the WGrds "Justice of the peace" in Rep. Act No. 180, it did not Intend to esempt the said _of6'er tram its operation. Page _26 Rather, it had coDS.idered. the said officer as already comprehended 1n the broader term "judge". It is unfortunate and regrettable that the last World War had destroyed congressional records which might have offered some explanation of the dJBcussion of Com. Act No. 357, which legislation, as indicated above, had eliminated for the first time the words "Justice of the peace." Having been completely destroyed, all efforts to seek deeper and additional clarification from these records proved .futile. Nevertheless, the conclusions drawn from the historical background of Rep. Act No. 180 is sufficiently borne out by reason and equity, Defendant further argues that he cannot possibly be among the officers enumerated in Section 64 inasmuch as under that said section, the word "judge" is modified or qualified by the phrase "of any province." The last mentioned. phrase, defendant submits, cannot then refer to a Justice of the peace since the latter is not an officer of a province but of a municipality. Defendant's argument in that respect ts too strained. If it is true that the ghrase "of any province" necessarily removes Justices of the peace from the enumeration for the reason that they are municipal and not provincial officials, then the same thing may be said of the Justices of the Supreme Court and of the Court of Appeals. ·They are national officials. Yet, can there be any doubt that Justices of the Supreme Court and of the Court of Appeals are not included in the prohibition? The more sensible and logical interpretation of the said phrase is that it qualifies fiscals, treasurers and assessors who are generally known as provincial officers. The rule of "casus omisus pro omisus habendus est" ls likewise invoked by the defendant.-appellee. Under the said ·rule, a person, object or thing omitted from an enumeration must be held to have been omitted intentionally. If that rule is applicable to the present, then indeed, justices of the peace must be held to have been intentionally and deliberately exempted from the operation. of Section 64 .-.af .the. Rev::ism .. -,.Ele.atian Code. The rule has no appltcabUlty to the case at bar. The maxim , "casus ornisus" can operate and apply only if and when the omission has been clearly established. In the case under constderation, it has already been shown that the legislature did not exclude or omit Justices of the peace from the enumeration of officers precluded from engaging ln partisan political activities. Rather, they were merely called by another term. In the new law, or Section 54 of the Ievised Election Code, justices of the peac'e were just called "Judges." . In insisting on the application of the rule of "casus omlsus" to this case, defendant-appellee cites authorities to the effect that the said rule, being restrictive in nature, has more particular application to statutes that should be strictly construed. It is pointed out that Section 64 must be strictly construed. agalnlt the government alnce proceedings under it are criminal io nature and the jurisprudence is settled that peual statutes 8hou.ld be strictly interpreted against the state. Amplifying on the above argument rega,ding strict interpretation of penal statutes, defendant asserts that the spirit of fair play and due process 0 dt!mand suCb. strict construction in order to give "fair warnD::l.g of what the law Intends to do, if a certain line is passed, · in language · that the common worJd will understand.'' (Justice Holmes, ln McBoyle v. U.S. 283 U.S. 25, L Ed. 816). The application of the rule of "casus om.isus" does not pn> ceed from the mere fact that a case ls criminal lD nature, but rather from a reasonable certainty that a particular person, object or thing has been omitted from a legislative enum.eratinn. In the present case, and for reasons already mentloned, there has been no such omission. There has only been a substitution of terma. · The rule that penal statutes are given a strict construction is not the onfy factor c:o.ntrolli:Dg the interpretation ·of ·such' laws; lastead, the rule merely serves as an aid in determinjng January 31, 1963 the lllOIUWlg of pa,.i laws. Tbla has been rocopizocl time and March 31, 1967, of the President of the Philippines, dismissing apin by decisions of various courts. (3 Sutherland, StatutoQ the petitioner as Justice of the peace of Agusan. It is worthy Construction, p. 56) Thus, eases wW freqdently be found enun- or note that one of the causes of the separation of the petlciating the prtnciple that the intent of the legislature will go- tioner was the fact that he was found auiltY in engagina: in. vem (U.S. vs. Corbet, 216, U.S. 233). It ls to be noted that a electioneering, CODtraJ'J to the provisions of the Election Codt'. strict construction should aot be pennltted. to defeat the policy Defendant-appellee caUs the attention of this Court to HOWie and purposes of the statute (Ash Sheep Co. vs. U.S. 252, U.S. Bill No. 2676, which was flied on Januarr 26, 1955. Jn that pro. 169). The court mQ' consider the sphit and reasons of a sta· posed leaislatlon, under Section 66, justices of the peace are altute, as in this particular instance, where a literal meaning readJ ezpressly included aniong ~ officers enjoined. from active would lead to absurdit1', contradiction. inJusUce, or would de- political participation. The arpment 1s that with the filinc of feat the clear purpoae of the law makers (Crawford, Interpre. the said House Bill, Congress implledly acknowledged that extation of Laws, Sec. 78, p. 294). A Federal District court in the isting laws do not prohibit justices of the peace from partisan U.S. has well said: political activities. "Tile strict construction of a criminal statute does not The argument is unacceptable. To begin with, House Bill mean such construction of it as to deprive it of ~e meaning No. 2676 was a proposed amendment to Republic Act No. 180 intended. Penal statutes must be construed in the sense as a whole and not .merely to section 54 of said Rep, Act No. wblc:h best hannooirea with their Intent and purpose." (U.S. 180. Jn other words, House Bill No. 2876 was a propo."led rev. Betteridp, 43 F. Supp. 53, 66, cited. In 3 Sutherland Sta- codification of the existing election laws at the time that it was tutory Construction 68.) · filed. Besides, the proposed amendment, until it has become As-well- sta.tEd bJ the Supreme Court of the United States, a law, cannot be considered to contain or manifest IDJ' leglslathe language of criminal statutes, frequently, has been narrowed tive Intent. lf the motives, opinions, and the reasons expressed where the letter Includes situations inconsistent wi~ the leg- by the individual members of the Jea:ialature, even in debates, lslatift plan (U.S. v. Katz. 271 U.S. 354; See also Ernest Bnm- cannot be properly taken into consideration in ascertaining the cben,. Interpretation. of the Written Law (1916) 26 Yale L. J. meaning of a statute (Crawford, Statutory Construction, Sec. 129.) 218, pp. 3'1&.3'16), a fortiori what weight can we give to a mere Another reason In support of the conclusion reached berclD , draft of a bill. is the fact that the purpose of the statute is to enlarge the of. On law, reason and public poliq, defendant-a.ppellee's con· ftcen within its purv.\eW. Justices of the Supreme Court, the tention that jUltices of the peace are not covered by the injuncCourt ot Appeals,, and various Judpa, such as the Judges of the tion of Section 64 must be rejected. To accept it ls to render Court of Induatrtal Relations. etc., who were not included In ineffective a policy so clearly and enlphatically laid down by the prohibition under the old statute, are now within its en- the legislature. compass. If such were the evident purpose, can the Leaislature Our law-making body has conalstently prohibited justices intend to eliminate the Justicea of the peace within its 'X'bit? of the peace from participatlq 1n partisan politics. They were Certainly not. This point is fully explained in the brief of the prohibited under the old Election Law since 1907 (Act No. 1682 Solicitor General, to wit: and Act No. 1709). Ukewise, they were so enjoined by the Re"On the other hand, when the legislature eliminated viaed Administrative Code. Another law which expressed the' the phrases '"Judge of First Instance'' and "Justice of the prohibition to them was Act No. 3387, and later, Com. Act No. peace", found in Section 449 of the Revised Administrative 367. Code, and used "judge" In lieu thereof, the obvious inten- Lastly, it is observed that both the Court ot· Appeals and· the tion was to include in· the- 1mpe 'Of ihe tenn · not just one- trial coun applied the rule of "expressio unlus, est excluaio c1aas of judge but all Judges, whether ol first Instance, alterius" Jn arrivlna at the conclusion that Justices of the peace justices of the peace or special courts, such as Judges ol are not covered b1 Section 54. Said the Court of Appeals: "Anythe Court of Industrial Relations." :x z x way, guided by the rule of exclusion, otherwise known as expre"11le weakest link in our Judicial system la: the justice lllo unlus est ezcludo alterlus, it would not be beyond reason of the . peace court, and to so construe the law as to allow to Infer that there was an intc:ntion of omitting the tenn "Justa Judge thereof to engage in partisan political activities lee of the peace from Section 54 of the Revl$ed Blection Cede. would weaken rather tban strengthen the Judleiary. On the x x :x'' other hand, there are cogent reasons found In the Revised The rule has no application. If the legislature had intended Election Code itself why Justices of the peace should be t0 e:xcJ.ude a Justice of the peace from the purview of Section 'prohibited from .electioneering. Along with Justices of the 64, neither the trial court nor the Court of Appeals has given appellate courts and Judges of the Courts of First Instance, the reason for the exclusion. Indeed, there appears no reason they are given authority and Jurisdiction over certain eleo- for the alleged change. Hence, 'the rule of expreu1o un1us est tlon cases (See SecL 103, 106, 117-123). Justlcea of the peace escludo altedus has been erroneouslJ' applied. (Appellant's Brief, are authorlmd to hear and decide Inclusion and exclusion p. 6.) · · cases, and if they are permitted to campaign for candidates "Where a statute appears on its face to li~it ~ op!'l"a-' tor an elective office the impartlalitJ" of their decis1ons 1n tion of its provisions tO particular persons or things by election cases would be open to serious doubt. We do not enumeraUni them, but no reason exists why other j)enons be11e't'e that the legialature had, 1n Section 54 of the Revised or things not so enumerated should not have been included, Election Code, intended to creat.e such an unfortunate sit· and manifest injustice will follow by not so including them, uatlon." (pp. 7-8. Appellant's Brief.) the maxim e:xpressio unius est exclusio alterius, should not be Another factor which fortlfles the conclusion reached here- invoked." (Blevinll v. Mullally, 135 P. 307, 22 Cal. App. 519.) in is the fact that even the administrative or executive depart- For the above reasons, the order of diSinissal entered by the ment has regarded Justices of the peace within the purview of trial court should be set aside and this case is remanded for,. Section 54 of the Revised Election Code. trial on the merits. ~n:'fu.U:ce?·etc~.~· ~;,, ~26!»,c~~~: ~ : Benpon, C.J., BauUsta Angelo, Labrador, Concepcion, Barslve due course to the- petttien for certiorari and prohJ.bltion rera, and Maltalintal,. JJ., coacurred. with preliminary iaJunctlon agalmt the resixmdents, for not Padilla and Dizon, Ji, took no part. 1etttns aside, among others, Administrative Order No. 237, dat'Jd J.B.L Reyes, J., On leave. Janua'7 31, 1963 UWYl!RS JOURNAL Page r1 ·VI · Resurrecclon de Leon~ 'et .ill, PlalntHhpp~leel, vs. EmilUana 1'folo Pec:ksOn. et al., ResponcientH,ppellants, C.R. No. L1~, Decelilber zs:· .1912, Bautista Angeio, J •.. 1 ... TRUS't; DECLARATION OF TRUS't; DEFINED. - A· decla.. ration of trust has been defined as an act by which a Person acknowledges that the property, title ·to which he holds, is held by him for· the use of another (Griffith v. Mufield, 61 S.W. 832, 66 Ark. 513, 521). 2. ID.; EVIDENCE' PROOF NECESSARY ro ESTABLISH A TRUST.-True. it is that to establish a trust the proof must be clear, satisfactory and convincing. It cannot rest on vague, uncertain evidence, or on loose, equivocal or indefinite declaration (In: re Tuttle's Estate, 200 A. 921, 132 Pa. Super 356); 3 · ID.; RIGH't CREA't!NG A TRUST: NEED NOT BE· CONTEMPORANEOUS OR INTER-PARTIES~It has been held that the right creating or declaring a trust need not be contemporaneous or inter-parties (Stephenson v. Stephen· son, 171 S.W. 2d 265, 361 Mo. 8; In re Corbin's Trust Orph. ·57 Work Leg. Rec. 201). · 4. ID.; EXPRESS TRUST; WRITTEN DECLARATION MADE AFTER LEGAL ESTATE HAS BEEN VESTED IN THE TRUSTEE.-Jt was even held that an express trust "may be declared by a writing made after the legal estate has been vested 1n t!:\e trustee (Kurtz v. Robinson, Tex. Civ. App. 256 S.W. 2d .1003). 5. ID.; ID.; CREATED BY A DEED: IT MAY BE SHOWN BY A SEPARATE WRITING.-The fact that an express trust waa created by a d~d which was absolute on Its face may be shown by a ·writing separate from the deed itself (Mugan v. Wheeler, 145 S.W'. 462, 241 Mo. 378). • 6. ID.; BENEFICIARIES; ABSENCE OF NOTIFICATION OF EXISTENCE OF TRUST; EFEFCT OF.-The fact that the beneficiaries were not notified of the existence of the trust or that the latter have not been given an opportunity to ac-. cept it, is of no importance, for it Is not essential to the ezisteD.ce of a valid trust and to the right of the beneficiaries to enforce the same that they had knowledge thereof at the time of ita creaUon. (Stoehr v. Miller, .296 F. 414). 7. ID.; ID.: CONSENT TO THE CREATION OF TRUST, NOT. NECESSARY. - It is not necessary that the beneficiary should consent to the creation of the trust (WickwireSpencer Steel Corporation v. United Spring Mgf. Co.; 142 N.E. 758, 247 Mass. 666) In fact it bas been held that in cue ·of a volun'-ey trust the assent of the beneficiary is not necessary to render. It valid because as a general rule ac:eeptance bJ the beneficiary is presumed (Article 1446, new Civil Code; Cristobal v. Gomez, SO Pbil., 810). S. ID.; VOLUNTARY TRUST; REVOCATION~The rule is thet In tile absence .of 807 reservation of the power to revoke a voluntary truat ls irrevocable without the consent of the benefidary (Allen v. Safe Deposit and Trust Co. of Baltimore, 'IA. 2d 180, 17'1 Md. 26). It cannot be revoked by the creator alone, nor by the trustee (Fricks v. Weber, C.C..A. Ohio, 145 F, 2d 737). Hughes v. CJ.R. C.c.A. 9, 104 F. 2d 144; Ewmg v. Shannahan, 20 S-1!. 1065, 113 Mo. 188). 9, ·ID.; EXPRESS TRUST CONSTITUTED BEPORE EFFECT· IVITY OF NEW CIVIL CODE; LAWS GOVERNING THE SAME.--The express trust was constituted dt.uht&: the life. time of the predecessor-in-interest of apPeJ.lants. that is, before the effecUvity of the new Civil Code, although the Instrument recognizing 8nd. decla~. ~uch trust waa executed Page 28. . on December S, 1960, after the effectiV:it.y of said Code.- The Civil Code of 1889 and pretrious laws and authorities on the matter, therefore, should ·govern· the herein trust wider the provisions of Article 2253 of tbe new Civil Code. · 10. ID.;· LAWS ON TRUSTS IN THIS JURISDICTION BEFORE THE EFFECTIVITY OF THE NEW CIVIL CODE.-The Civil Code of 1889 contains no specific provisions on trUst 8s does the new Civil Code. Neither does the Code of Civil Procedure of 1901 for the same merely provides for the proceeding t~ be followed relative to trusts 'and trustees (Chapter XVIII). This silence, however, does not mean that the Juridical institution of trusts was then unknown in this jurisdiction, for the principles relied upon by the Supreme Court before the effectivity of the new Civil Code were these embodied in Anlo-American jurisprudence as derived from Roman and Clvil Law prlnclples (Government v. Abadilla, 46 Phil., 42)., DECISION Resurrecclon de Leon, et al, filed on November 13, 1958 before the Court of First Instance of Rizal a complaint seeking to compel Emiliana Molo-Peckson, ·et al to convey to the former ten parcels of land located in Pasay City with an area of 1,749 sq. m. upon payment of PUXI per parcel upon the plea that said lots were willed or donated in 1948 to the latter by their foster pa-· rents Mariano Molo y Legaspi and Juana Juan wlth the under. standing that they should sell them to the plaintiffs under the tenns above-stated. Defendants, in their answer, disclaimed any legal obligatlon on their part to sell the above properties to the pla.lntiffs for the nominal consideration of Pl.00 per lot alleging that if they executed the document on which the complaint Is predicated. it was on the mistaken assumption that their foster parents had requested them that they donate the properties to plaintiffs for which reason they executed on August 9, 1966 a document revoking said donation which was· &ckn01Wledpd before Notary Public Leoncio C. Jimenez. No testimonial evidence was presented by either party.·. Instead, both agreed to submit the cue upon the presentatloil. oi· their respective exhibits which were all admitted by the trial court. After trial on the merits the court ·• quo rendered ®. September 21, 1960 a decision wherein it held that, under the facts established by the evidence, trust bas been constituted by the late spouses Mariano Molo and J'ua.na Juan over the ten parcels of land in question in favor of plaintiffs as benenclaries ·and as a consequence, concluded: · "Conslderina: all the foreaoin& the Court orders: "1. The defendants, Jointly and severallJ to free the said ten (10) parcels of land from the mortgage lien lo faTOr of the Rehabllitation Finance Corporation (now Development Bank of the Philippines) and Claro Cortez, and thereafter to sign and execute in favor of the plaintiffs a deed of absolute sale of the said properties for and lo consideration of TEN (PlO.OOJ· PESOS alread;v depoaited In Court after all conditions imposed in Exhibit A have been complied with; "2. That in the event the defendants aball refuse to execute and perform the. above, they are ordered. jointlJ' and severally, to pay the plalntlffs the value of said ten (10) parcels of land in quesUOD, the amount to be ·assessed. bJ' the City of Pasay City as the fair market value of the same, upon orders of the Court to assess said value; "3. The defendants Jointly and soverally pay tile plaintiffs' Atwmey's fees in the amount of P3,000.00, as defendants acted In gross and evident bad· faith in refusing to oatlsb' the plalnilffa' plainly valid, just and demandable claim, UDder ArtiCJe 2208 sub-paragraph. 5 of the New Civil·. Code; . . J11111,1ary 31, .1!163 "4. The defendants to render an accounting of the· fruits of said ten (10) parcels of land from the time plaintiffs demanded the conveyance of said parcels of land on August 11, 1966 as per Exhibits B and C, in accordance with the provisions of Article 1164, New Civil Code whiCh provides that the creditor has a right to the frult of the thing from the time the obligation to deliver it arises; and "5. The defendants to pay the costs." Defendants took the preaent appeal. On January 24, 1941, ~ Malo y Legaspi dled leaving a wUI wherein he bequeathed. his entire estate to his wife, Juana Juan. This will was probated in the Court of First Instance of Pasay City, Rizal, which was affirmed by the Supreme Court on November 26, 1956 (G. R. No. L-8174). On May 11, 1948, Juana Juan in tum executed a will naming therein many deTi.ses and legatees one of whom is Gulllerma San Rafael, mother of the plaintlffa and defendant Pilar Perez Na~le. O,n June 7, 1948, however, Juana Juan executed a donation Inter YI.VOS in favor of Em1liaDa ~--anc1 Pilar l'enl Mable of almost all o1' her entire property leaving only about P16,000.00 worth of property for the devises mentioned in the will. Among the properties convqed to the donees are the ten· parcels of land subject to the present action. Juana Juan died on May 28, 1960. On December &, 1950, Emiliana Molo-Peckson and Piiar Pe- . rez Hable executed a docmnent which they called "MUTUAL AGREEMENT' the pertinent provisions of which are: "That the ab6ve named panies hereby mutually agree bJ these presents :ir. x :ir. that the following lots should be sold at ONE (1) PESO each to the followin1 persons and organization: lt x lt x "TO - JUSTA DE LEON and RESURRECCION DE LEON, several parcels o1' land located at Calle Toleniino (South of Ten.orlo and Kapitan Mqtib2';y), Pasay City, share and share alike or half and half of TEN (10) LOTS described in: "Transfer Certificate ot 'lttle No. 28157 - and allocated as follows: "(a) To JUSTA DE LEON, Five (5) Lots. "(b) To RESURRECCION DE LEON, the remaining Five (5) Lots. "That this agreement is made in conformity wlth the verbal wish of the late Don .Marlano Molo y Lepspi and the late Qona Juan Francisco Juan y Molo. These obliga· t1ons were repeatedly told to Emiliana Molo Peckson, before their death and that same should be fulfilled after their death." · · On Auguit. 9, 1956, ·.~· the same.· defenQnts, &ssiste4 by the1r husbands, executed ·another document in whiCh they ri:voked the .so-ca11ec:1·. mutual agreement .uentioned above; and another relating to the same subject matter, stating therein. that the parties, "after matured an4 thorough. study, realized that the above-mentioned public instruments x x x do not represent their true and correct interpretations of the verbal wishes ot the late spou~ Don Mariano y Lep.spi and Dona Juana Pn.ncisco Juab y "Mola.:"· But after the execution of this doc· ument that ls, on· August 11, 1966, the ~claries Resurreccfon de Leon and JUsta de Leon, thru their counsel, demanded the conveyance to them of the ten parcels of land for the consideration of Pl.OD per parcel as ~tated. in the document of December 6, 1950. And having the defendants refused to do. so, saUd beneficiaries consiined on July 8, 11957 the amount of Pl0.00 ·as the conslderati~ ot the ten pa.reds !'JI land. In ·this a~, appellants aasl.gll the following errors: I THE LOWER COURT ERRED IN HOLDING THAT THE SPOUSES, MARIANO MOLO AND JUANA JUAN, CONSTITUTED A TRUST OVER THE PROPERTIES IN QUES· TION WITH PLAINTIFFS-APPELLEES AS BENEFICIARIES. II THE LOWER COURT ERRED IN APPLYING ARTICLES 1440, 1441, 1449, 1468, and 1457 OF THE NEW CIVIL CODE TO THE CASE AT BAR. Ill THE LOWER COURT ERRED IN HOLDING PLAIN· TIFFS-APPELLEES' EXHIBIT 'A' TO BE A. DECLARATION AGAINST INTEREST AND AN. ADMISSION BY DEFENDANTS.APPELLANTS. IV THE LOWER COURT ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS HAD NO RIGHT TO REVOKE EXHIBIT 'A'. v THE LOWER COURT ERRED IN ORDERING APPELLANTS TO RENDER AN ACCOUNTING OF THE FRUITS OF THE PROPERTIES IN QUESTION. VI THE LOWER COURT ERRED IN ·1:1RDERING APPELLANTS TO FREE THE PROPERTIES FROM THE MORT· GAGE LIENS IN FAVOR OF THE DEVELOPMENT BANK OF THE PHILIPPINES AND CLARO CORTEZ. . VII THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES TO THE APPELLEES. VIII THE LOWER COURT ERRED IN NOT DISMISSING' THE COMPLAINT." There ls no merit in the claim that the document executed On December &, 1950 does noi represent the true· and correci in:terpretatton-"by appellants of the verbal wish of their foster parents rellldve to ·the conveyance for a nominal consideration to appellees of the ten parcels of land iri. queSt1on considering the cirCumstances obtaining in the present case; To begin with. this document was executed by appellants on December 6, 1950, or about two years and six months from the time they acquired tltle to the lands by virtue o1' the·donaiion :Inter mo. executed 1n their favor by their fast.er mother Juana Juan and six. months after the death of the donor. There is nobody· who could cajole them to execute it, · nor is there anY · force that could coerce them to make the decJaration thereln. expressed, except the constraining mandate of their CODSclence to comply with "the obligations repeatedly told to Emiliana · Molo Peckson," one of appellants,· before their death, epl'toinized. 1n the 1'verbal wish ef the- late Don· Mariano Molo y ·i..e-. gasp! and the late Dona Juana Francisco· y Molo" to convey: after .their death said ten parcels of·· land at Pl.00 a parcel· to appellees. Jn fact, the aelmowledgmeJit appended to thi: document they subscribed states that it was -''their own ~ act and voluntaey deed." Indeed,. it ls to be supposed that appellants undeistood aild comprehended the legal import of said document when they executed lt more so when , both of them bad studied in reput-· able ceilters of learning, one being a pharmacist and the other a member of the bar. Moreover, they have more than ample time - the slx months intervening between the death of the donor and the execution of the document - to ponder not only on the importance of the wish of dlelr predecessors-in-interest but allo. on the proprietary" of putting ·in· writing the mandate they have received, It is, ~fore, reasonable· to: presutne· that Janu.aey 31, 1963· LAWYEM JOtJl;tlloU;; Page a that document represents the real wish Of appellants' predec~ son-ill-Interest and that the only thing to be · determined is its real import and. legal implications. That the document represents •· recognition of pre-existing trust or a declaration of an express trust impressed on the ten parcels of land 1n question is evidenL A declaration of trust has been defined as an act by which a person acknowledges that the property, title to which he hold, is held by him for the use of another (Griffith v. Maxfield, 51 S.W. 832, 66 Ark. 513, 521.) This is precisely tbe nature of the will of the don· or: to convey the tides of the land to appellants with the duty to hold them in trust for the appelleea. Appellants obligingly complied with this duty by executing the document under cimsideration. True it is that to .establiSb a trust the proof must be clear, satisfactory and convincing. It cannot rest on vague uncer.. tain evidence, or on a loose, equivocal or indefinite declaration (In re Tuttle's Estate, 200 A. 921 132 Pa. Super 356); but· there the' dbcument in question clearly and Wlequivocally declares the exiatence of the trust even if the same was executed. subsequent to the death of the trustor, Juana Juan, for it has been held that the right creating or declariq a trust need not be contemporaneous or inter-parties (Stephenson v. Steplienson, 171 S.W. 2d 265, 351 Mo. 8; In re Corbin's Trust Orph., 57 York Leg. Rec. 201 ). It was even held that an express trust may be declared by a writing made after the legal estate has been vested in the trustee (Kurtz '" Roblnson; Tex. Civ. App. 256 S.W. 2d 100~). The contention, therefore, of appellants that • the will and the donttion executed by their predecesson-inintetest were absolute for it d1d not contalh a hint that the lots in question will be held in trust by them does not merit weight because the fact that an express trust was created by a deed which was absolute on its face may be shown by a writing separate from the deed itself (Mugan v. Wheeler, 145 s.w. 462, 241 Mo. 376). The fact that the benefriciarles were not notified of the existence of the trusi or that the latter have not been given an opportunity to accept ~t is of no importance, for it is not essential to the existence of a valid trust and to the rlsht of the beneficiaries to enforce the same that they had knowledge thereof at the time of its creation (Stoeht v. Miller, 298 F. 4.4 ). Neither is it neceauy that the beneficiary should consent to the creation of the trust (Wickwire Spencer Steel Cmporation v. United Spring Mfg, Co., 142 N.E. 758, 247 Mass. 565). In fact, it has been held that in case of a voluntary trust the assent of the beneficiary ii not necessary to render it valid because as a pneral rule acceptance by the beneficWy is presumed (Article 1446, new Civil Code; Cristobal •• Gomez, 50 Pbil., 819). It is true. as apPellallts contend that the alleged declaration of trust was ruoked, and having been revoked it cannot . be accepted, but the attempted revocation did nol have - legal effect. The rule is that tn the ablence of - » .servation of the power to revoke a volun_., trust is imwocable without Ille CODSeDt of the lleneficiarJ' (Allen •• Safe Depaoli and Trwlt Co. of Baltimole 7 A. 2d 180, 177 Md. 28). It caD110t be revoked bJ' the creator alone, nor by the trustee (Fricke •• Weber, c.c.A. Ohio, 146 F. 2d 737; Hughes •. CJ.R. C.C.A. 9, 104 F. 2d 144; Ewing v. Shannabaa, 20 S.W. 1065, 113 Mo. 188). Here there is no such reservation. Appellants contend that the lower court erred In -lying the provisions of the new CIVIi Code on itust. Thia is correcL The express trust was conatituted during the lifetime fort, should govern the herein trust under the provisions of Article 2253 of the new Civil Code. But the Civil Code of 1889 contains no speclflc provisions on trust as does the new Civil Code. Neither does the Code of. Civil Procedure of 1901 for the same merely provides for the proceeding to be followed relative to trusts and trustees (Chapter XVJII). This silence, however, does not mean that the Jurldical institution of trust was then unknown in this Jurisdiction, for the principles ~lied upon by the Supreme Court before the effectivity of the new Civil Code were those embodied in Anglo-American Jurisprudence as derived from Roman and Civil Law principles (GovernrD.ent v. Abadilla, 46 PhU., 42). And these are the same principles on which we predicate our ruling heretofore stated and on which we now rely for the validity of the trust in question. The trial court ordered appellants to render an ac:ceuntlng of the fruits of the properties in question even if appellees did not expressly ask for it in their prayer for relief. We, however, believe that this is covered by the general praJ'er "for such other relief just and. equitable under the premises.'' What Is important is to know from what date the accounting should be made. The trial court ordered that the accounting be made from the thM: appellant demanded the conveyance of the ten parcels of land on August 11, 1956 in accordance with Article 1164 of the new Civil Code. which provides .that ·the creditor has a rlaht to the fruit of the thing from the time the obligation to deliver it arises. But this cannot _be done without first s~bmitting proof that the cop.ditl0l1$ stated 1n the mutual agreement had been complied with. And this only happened when the decislon of the Supreme Court in G. R. No. L-8774 became final and executory. The ruling of the trial court in this respect should tlierefore be modified in the sense that the accounting should be made from the date of the finality of said decision. We find no ·error in the directive of the trial court that appellants should free the lands in qaestion in favor of the encumbran~ that was cceated thereon by them in favoi' of the Development Bank of the Philippines and one Claro Cortez. for as trustees 1t is their duty to deliver the properties to the cestul que trut free from all liens and encumbrances.. To recapitulate, we hold: (1) that the document executed on December 5, 1950 creates an express trust in favor of appellees; (2) that appellants bad. DO right to revoke h without the consent of the cestul que trait; (3) that appellants must render an accountiq ef the fruits of the landa from the dale the Judgment i=dered ill G. R. 0No. 1'8'174 loecame final and executoIJ'; and (4) that appellants ahould free said lands from au liens and enewnbrances. Wherefore, with the modiftcatiou as above iudieatecl with regard to accounting, we hereby affirm, the decision appealed from, witllO'u'.t pronouncement as to costs. Labrador, J.BL - . .Barrera, Paredes, DlsoD, RepJa lllld Makallntal, JJ., -......i. Coocepeo1on and Padilla, JJ., tool: .. part. VII Iii. tbe Matter of tbe Pefltloa of W- I Fu to be admitted a citizen of tbe PhUlpplnea, woina I Fu, Pefllloller-Ajlpellmd .., Rep. of the PblL, Oppoollor.,\ppellee, GJl. No. L-11312, Sept. 29, 1962, Rogala, 1. of the predecessor-in-interest of appellants that is, before the t · effec.tivity of the new Civil Code, although the: instrument recognlzillg and declariDg sueh lrust wu executed on December NATURALIZATION; USE OF DIFFERENT AUlUIES BY PBTITIONER IS GROUND FOR DENYfNG APPLICATION FOR NATURALIZATlON~The evidence really shows that petitioner has been aalng some - In bis lading cer~cate, immipa.Dt certificate of residence and allen certificate of regls&, 1950, after the elfecllVllF of said Code. The Civil Code of 11119 and previous laws lllld - . . .... .... Jll!ltler, theieJanuary 31, 19d3 tration, petitioner's name appears as Wang I 'Fu. However, ID. his marriage contract, he pve hi& name as George Wang I Pu, while in the birth certiflcatea of bis children he used d>e eUu George On1- Aside from George Wang and George Ong, petitioner also uses the .UU Ong Hay Kuan. The use Df said &llases is not explained and there is no showina: that acts on the part of "the applicant for naturalization to miriale and associate with Fillpinos. The purpose of thls policy is to permit gradual assimilation of natural1zation clt:IJenS. It would be violative of this pollcy to admit aliens who evince a desire to preserve their identity as aliem. (Ong Ching v. Republic, G.R. No. L-15691, March 27, 1961.) lt bu been authorized as required by the Alias Law (Com· 8. monwealtb Act No. 142). Being violative of the law, we think ID.; PETITIONER'S WITNESSES CAME TO KNOW APPLICANT ONLY IN 1943 ·AND 1945 RESPECTIVELY AND ARE INCAPABLE TO TESTIFY IRREPROACHABLI! CONDUCT OF APPLICANT. - The Jaw requires proper ~d irreproachable conduct during the applicant's entire period of ~ in the Philippines. Since the only witnesses presented by petitioner - Alfredo Penalosa and Jose Bemabe - came to know the petitioner only in 1943 and 1945, respectively, they are not in a pOSition to testify as to applicants' conduct from the time he arrived in the PhWpptnes in May 1934. It should take more than uncorroborated assertions of petitioner him· self to establish thia vital fact. this act of petitioner is not beyond reproach and is, therefoie, a ground for de111in1 his applicatfon for naturalization. 2. ID.; PETITIONER"S CHILDREN USING DIFFERENT SURNAMES IS CONTRARY TO CUSTOMS AND TRADITIONS OF THE. FILIPINOS. - It also appears from petitioner's evidence that in the birth certificates and certificates of re· glatration of his daughters Maria Teresita .and Marla Nancy, their surname is Ong, but In petitioner's toestimony he men· d~= ·Wang" u ·the surname of these two children. As COf" rectlJ" observed by the trial court, this using of different names is not in accordance with customs and traditiOllS of the Filipino r"'l'le. 3. ID.; PETITIONER DID NOT MAKE ANY EFFORT TO SEE lfiS MOTHER IN CHINA SINCE 1934 AND THIS AfTlTUDE IS NOT EMBRACING THE CUSTOMS, TRAD!·" TIONS, AND IDEALS OF THE FILIPINOS. - Apparentiy, petitioner had noJ seen his mother since 1934 when he came to live In this country, yet he made no efforts to inquire about her. If he should have the concern that a Filipino has for his mother, he should have, at least, corTeSponded with his brother& in China about their mother's well-being. Again petitioner's attitude 1n thls regard does not speak well of his claim to have embraced the customs, traditions, and ideals of the Filipino people. 4. ID.; PETITIQNER IS AGAINST THE FILIPINO FIRST POLICY AND PREFERS TO ASSOCIATE WITH HIS CO.CHI· NESE. - Petitioner's membership 1n the Philippine Chinese Glassware Merchants Aasociation, and his . acq,uiescence to the resolution against the Filipino First Policy, indicate that he prefers to associate with his co-Chinese and his sympathy is with them and not with the Filipinos. 5. PETITIONER FAVORS CHINESE CITlzBNS 'fO BE EMPLOYED IN HIS BUSINBSS.-Even in the selection of his emplayees, pedtloner has shown himself to be partial in fa,.. vor of Chinese citizens, because, as pointed out ab9ve, QUt of the seven emplO)'ees in his bualnesa:, only the driver and cargador are Filipinos, and the responsible positions are held by Chinese." 6. ID.; CHILDREN OF PETITIONER ARE STUDYING IN CHlNJ;!SE SCHOOLS WHICH AFFECTS HIS SINCERITY TO BECOME A FILIPINO CITIZEN. - Another observation that bespeaks of petitioner's Indifference to the Filipinos is that all of bis children are studying in Chinese schools gamely, the Immaculate Conception Anglo-Chinese Academy and the Huang Chi School. The names of these s~ools convey the impression that, they are not for Filipinos and where there is no mingllng among Chinese with Filipino children. We have ali-eady observed. in previous cases (Garchltorena v. Republic, G.R. No. L-15102, April 20, 1961; Hao Su Siong alias Ram~n Cuenco v. Republic, G.R. No. L-13045, July 80, 1962)" that this circumstance aftects the sincerity of petl· tioner's intention to become a Filipino . citlzen. DE C0 ! SI 0 N This b an appeal ~ l>y a Chinese · - Wang I Fu from the decision of the Court of First lnatance -Of Manila, in Civil Case No. 32003, denying his petition for naturalization. It appears tbat p:titioner WilS born on February 15 1918 in Chingkang, China. On May 14, 1934, he aqne to the ~ pines where he has contin~ resided since then. He is married to Marla Sun aJso a Chinese, and oul of said marriage were born five children, namely: Maria Teresita. Georae, .Ed .. uardo, Glayda and Maria N&Jlcy. PeUtlQner is engaged in the ~l~are business from whk:h he derives an average annual mcome of PB,000.00. He speaks and writes English and Tqa. log. He has enrolled his minor ch11dren of school age in private &chools in Manila - his two sons at the Huang Chi School and his three daughters at the Immaculate Conception Anglo-Chinese Academy. ' ' The lower court has found that petitioner is not oppoSed to organized government, and that there Is no evidence that he associated with any group of penons who Uphold the doctrine opposed 1o organized government; neither is he In favor of ualng violence for the success of one's" ideall; he is not a polygamist nor a believer in the practice thereof; he has not been convic_ted of any crime involving moral turpitude; neither iS he suffenna from any mental alienation or incurable contagious disease. . Despite petitioner's p01Session of the . a~ qualifications, the court, however, dented his petitk>n on the following grounds;. (1) Petitioner has been using aliases and two of his cbildreD have different" surnames from those ot thf: other three; (2) He was eduCated in the Anglo-Chiiiese School where he had no Filipino classmates and he has alwaYJ been residinl i,n ndihbo..,. hood's inhabited by Chinese; (3) He haS n0: love for his motl;ler In China as shown by the fact that he never seilt her mone:y and that he d1d _not know whether Qr not she ill still a,live; (4) "Fu is' a member of the Philipp~ne-Chlnese Glassware .Mer-charits· Association. which 1s Composed er1tirelj of ChineSe. : Said association has passed ·a resolutjOri against the Ftlipino Ptrsi Policy to which resolution he did not object; (5) Among :the seven employees of petitioner only two are Filip1n~; and (6) It has not been suffteiently shown that his witnesses 'have 8UCh a close contact with petitioner as to be able to testify on his character and morality, as well as his qualifications to become· a citizen. The petitioner has appealed .. 7. ID.; APPLICANT MUST SHOW OVERT ACTS TO MINGLE >'\ review of the record Convinces· Us that petitioner does AND ASSOCIATE WITH FILIPINOS. - One of the essenT not deserve to be admitted to. Philippine pt~p. ili!l requisiti!:I for naturallzatt~ is the ·actual .desire and overt The evidence reall.7 1shows that petitioner has been using Page 31' some allasa. In his landing oert!ficate, immigrant certificate Qf lesidence and 8.iien eertiflcate of registration, petitioner's name 8.ppears as Wang I Fu. However, in his marriage contrBct', he gave his name as George Wang I Fu, while in the bitth certUlcates of his children he used the alias George Ong. Asld& from George Wang and· George Ong, petitioner also uses the i.Iias Ong Hay Kuan. The use of said aUases is not explained ~ there 11 no sbowiµg that it has been authorized as required by the Alias Law (Commonwealth Act No. 142). Belng violative of the law, We think this act of petitioner ts not beyond reprdach and is, therefore, a ground for denying his application for naturalization. (See Koa Gut v. Republic, G.R. No. L-17317, July 31, 1962; Um Bun v. Republic, G.R. No. L-12122, April 26, 1961; and Ng Uam Keng v. Republic, G.R. No. L-14146, April 29, 1961J ··it also appean · from peUtioner's evidence that in the birth certificates and certificates of registration of his daughten Ma· rta Teresita and Maria Nancy their suriaame ts 0r..,, but in petitioner's testimony he mentions· Wang as the surname of these two children. As correcUy observed by the trial court, this using of different names is not in accordance with customs and traditions of the Filipino people. As to petitioner's not having serious concern ~ his m~ tiler. whereabouts or existence, the lower court made the following: observation: · '"Petitioner also testified that he went to Hor11koni in 1964, but he did not see his mother because she was residing In Chingkang, China which was under the Communist reaime then and up to the present; but admitted that there was a regular pOstal system between the Philippines and Red China and he was writing to his mother since 1947 and and 1948. He further claimed that although he went to Hongkong in 1964 he did not send his mother any money in spite of his claim that be owns a business in the Philippines worth Pl50,000.00. When pressed for an explanation for his mother, petitioner esplained that he did not send money to hls .mother because he belleves that his brother wUl take care of his mother. "During the latter part of his testimony petitioner souaht to give an additio.nal explanation for his failure to send money to his mother by atadng that he did not know whether she is sdll alive or not. This statement was contradicted by hls earlier testimony when he testified that one week before he went to HongkoDa be wrote a letter to his mother notifying her that he wu going to Honskong. The foregoing, In the mind of the Court shows that petitioner h8s DO Jove for bis mother." Apparently, petitioner had not seen his mother since 1934 when he came to live in this counf.r1, yet he made no efforts to inquire ber. If he sbpuld have the coocem that a Filipino has for his mother, he should have. at least, correapond wlth bis brothers In Cbina about their molher'a well-being. Acaln peti· ticmer's attitode In this regarcl does not speak well of bis claim to have embraced the customs, t~tions, and Ideals of Ille Filipino people. _ Petitioner's membership ID tbe Phllippine Chlnele Glassware Men:hanta AsaocJatioJI. and bis acquiescence to the IOSO(Utlon against the Filipino First 1'olic7, lnclic.ate that be .prefers to ... IOCiate with bis co-Chinese and h1s Qmp'°thy is with them and not ·w11h the Fillpinos. Even in the selection of his employees, petitioner has shown himself to be part1al in favor of Chinese citizens, because, as Pointed out above, out of the seven employeea ID his buslnesa, onlJ' the driver and cargador are Piliplnos, and the n:aponslble positions are held by Chinese. Another observation that bespeaks of petitioner's 1mUffer.. ence to the Filipinos ii that all of bis children are studying in Analo-Chinese schools, namel7, the Immaculate Collception Ang1e>Cblnese Academ)" and the HWUll Chi Scbool. The namea of .. these schOols ·convey ·the imPressfon that they are ftot for for ·Filipinos and where ·there is· no minfllng among C~ese with Filipino children. We have already observed in previous. cases (Garchitorena v. Republic, G.R. No: L-15102, April 20, 1961; Hao Su Siong alias Ramon Cuenco v. Republic, G.R. No. L-13045, July 30, 1962) that this circumstance affects the sincerity of petttioner's intention to become a Filt:Pino citizen. As properlJ' stated 1n a previous case: "X x x. One of the essential requisites for naturalization is the actual desire anci.' overt acts on the part of the applicant for natui-al!mtion to mingle and associate with PilipinOI. The purpose of this policy is to permit gradual assimilation of naturalized citizens. It would be violative of this policy to admit aliens who evince a desire to preserve their identity as aliens. ''Ong Ching Guan v. Republlc G.R.. No. IA6691, March 27, 1961.) Lastly, We feel that the evidencea adduced is not lllfficlent to show that petitioner fs morally irreproachable. The Jaw requires proper and irreproachable conduct during the applicant's entire period of residence in the Philippines. Since the only witnesses presented by petitioner - Alfredo Peiialoaa and lose Bernabe - came to know the petitioner only in 1943 and 1946, respectively, they are not in a position to testify as to applicant's conduct from the time he arrived in the Philippines in May 1934. It should take more than corroborated assertions of petitioner 'himself to establish this vital fact. (Chua Pun v. Republlc, G.R. No. L-11825, December 22, 1961.) In view of the foregoing, the decision dismissing WaDg I Fu's petition for naturalization ls hereby affirmed. Costs against the petitioner-appellant. 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LlWA.G LAW OFFICE La.- Ottlff Ad~; :IOI Frei Preu B11lldln11 Riaal A'l'L, "llaolla Tel.·1~0-21 B11itlnen Adllr9s: U&O Sta. ·llela BIYd. llaolla. · Tel. 1-H-"44 MENDIOLA. 11AHCIAL C:. S.203 ~uiiopn llulldlna: 'i"SI Hldalso. Plnaa Klra1ulA II • n i J a Te.,. :1.41..se - 44.10.2G Re..: 1;..A Pl,. Mnnral Quezo11 City Toi. 1·~111-1:!1 OLIVEROS LAW OPFICK Teotlmo T. OU~ Hi G•nnilmo SI. l:iiAmpaloo";- M•nll• •rid. 1.41-11 RIEL. TEODORO T, Rel. lZ YNU1au..!er Strut Clibao.. Qumn CIQ Tel•T-41-D Office Tel. OT·&0-80 ARTURO A. BOIAS Ofllee A ~lllence: ne· Wqblnirtcna Si. Sampalvc, ll•lltk ROXAS,: RUDEN . L. 2111-201 CaiYG BJiic. K.Jeohn, Nanik Tel •.• ,-61-N 'f!~ JJ':P~C11:~FRICA A aBffsp1~.fo 430 Padre Fo.ur11, Ermita. Manti• 'l"alii:·li·T0.72 A C.·Tll-TI SANTOS. ,1001!: TA DE LOS SAN'l"OS, CIRIACO T. DE LOS SANTOl:I. JOlH.iE T. I.IE LOS li:nd Floor EMA Bldll". :Jifo.· 111 Q11l11po,. 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I hereby place the Order for: [ ] Copy(s) of THE LEGAL CALENDAR - (P3.50 Per Book Postpaid) [ ] Dczen of CA.SE HISTORY ENVELOPE - (P3.00 Per IDozen Postpaid) He1·ewith is the sum of P ...... in Postal Money Order No . ................... in payment for the Total Cost of my 01·der. DELIVER TO ADDRESS fly:. HELP WANTED: Exclusive Dealers for Cities' and Capitals. Write today. I i I I ; I I I . I I I I I I I : I . I I 1... ............. _ .. _______________________ ,,