The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XXVIII (Issue No. 6) June 30, 1963
Year: 1963
Language: English
Rights
extracted text: JRL~WYERS JOURNAL VOLUME xxvm VIC!!:NTI!: J. FRANCISCO Rditor a.ml l'ublislier JUCAl!DO J. FRANCISCO Asaiatcmt Editor VICTO!l 0 .. F'ltANCISCO Uusi'neBll Mumigei· BENJAMIN M. TONGOL As.st. B11si11f'ss lltmiager l'H.1!; LAWYEH8 JOUHNAL 1s published 111011Lhly IJy Hon, Vi· cente J, l•'raucisco, former sell· ator Ulld delegate to the Coustitutiunul <.;ouvcutiou, prnctisi11i; attorney un<l 11resi<le11t o! the Franciscu College (fn1·1nerly Francisco Luw School.) SUBSCUIPTION ANO ADVEU'l'JSINU UA'l'ES: ::iubscl'iption. Jn the l'hilippiues-1'20.00 for oue Yl!lll'; 1'10.00 for ti 111011Lhs; Jl2.00 11ci· copy, In the Uuitetl States uwl fol'eigu couutl'ies$20.UO fur uuc year; $10.0U for 6 mouths; $2.00 11e1· copy. Advertisi11g: l•'ull )lllge-11105,00; lfolf Jlllgt!-l'li5.0U i 0111:.fou1·th page-1'45.0U; 011e-eigl1th 1mge:i6.00; One-sixteenth JlUgeP25.0U; Uacli Issues: In the Philip11i11es-1'~5.00 - 1.welve iS· sue'; ra.UO-per issue. In the MANILA, PHILIPPINES JUNE 30, 1963 NUMBER 6 LAW AND PSYCHIATRY MUST S"OIN IN PEPEN'DIN<l Ml'NTAU.'t Ill CRIMINALS - By Willl&m J. Brennan, Jr. ·····-······-·-·-•···-·-~.161 STATING THE ISSUE IN APPELLATE BRIEFS - By Frank E. Cooper ............................ ·············•············-· 16• ESCHEAT OF ALIEN PROPERTIES - By Grqorlo Bllog, Jr. IQ~ UNITED STAT,ES SUPREME COURT ADVANCE OPINION: Sih•erman et al., vs. United St~tcs - Justice Stewart .. --·---··--···-·- 1&9 SUPREME COURT DECISIONS: Visan·a \'S. Miraflor - Justice Bengzon . Prospero Ts. Robles, et al - Justice Dizon . Martelino vs. Estrella, et al - Justice Rep!~ . Ellis, el al vs. Republic - Justice Concepcion .. .................... 171 182 ............ I" .. IM Barranta vs, l.H. Co. of thC' Phil. - Justice Rqab -···-···-··· ..... ···- 185 f'cople vs. Plaza - Justice Dizon /Maguiat \'s. Arcilln, et al - Justice Rcaa.la --~·-··· .. - Andan, et al vs. The Secretary of Labor - Justice Labrador Tuason & Co., Inc., et al., vs. Baloy - Jus.ti(e lllzQn •... COURT OF APPEALS DECISION: Francisco Coilege, Inc. \~. Gonzales - .Justke Pkdo PROFILES OF MEMBERS OF THE BENCH AND BAii. - Iii 18.7 .. -·--··-- 188 .. 189 ...... .., l&O Justke Her.mogeaes Concepcion, Jr. ·---.. ·-··-·,·········-·--····-.··-· ··- 192 United States au() foreign countries- -$25.00-twelve IS· sues; $3.00-per issue. Entered as second class mail matter at the Post Office, 18 3BUSINESS OFFICE: R-508 S.1manillo Bldg. Escolta, Manila - T11l. No. •-11-11 f ,fA.1~NOUNCING . .. the puUlicat'ion of the p $ REVISED RULES OF COURT IN THE PHILIPPINES By VICENTE J. FRANCISCO This latest work of the distinguished author is indispensable to lawye.rs, fiscals and law students. Decisions of the Supreme Court and of the Court of Appeals includi ng those of Hl63 as well as citations from Corpus Juris Secundum and American Jurisprudence are reproduced vc1·batim for ready reference - a real timesaver and a big help in trial and in the preparation of briefs and memoranda in couit cases; it 1 contains commentaries to each rule of the Rules of Court based on the p1·ofound knowledge of the author on the subject as well as his wealth of experience as trial lawyer. It is also very useful to law students as the facts and issues of the cases cited in the work are digested and the ruling:-:. of the !Supreme Comt quoted .i verbaf.im. Available in September, 1963 - CRIMINAL PROCEDURE · - Rule 110 to Rule 127 Regu\a1: pr.ice: P50.00 Pre-1 publication price: P40.00 .if placed directly with the Comp{rny; P45.00 if thrn Agents. To be followed by CIVIL PROCEDURE in Novembei-, I963 and EVIDENCE in December, 1963 Place your pre-publication on CRIMINAL PROCEDURE directly with the: ·.: ~:-. • • . -: :. · .• ~ "'i : .<2 :'' ' . . EAST PUBLISHING COMPANY ·· · Rm. 508 Samanillo Bldg. .: . . ~ · .;.'·· ,;·.-: nmJ ·avoildble! BOUND COPIES of the Escolta, Manila Tel. 4-1 3-1 8 Special Offer to Subscribers of the La1cyers Jounml On Annual Subscri1 ptions to the • Journal of the Constitutional Convention Journal of the Constitutiornli Convention Former rate Reduced rate Bound set P30.00 20.00 25.00 ~ :·. Volurtre·iJ· " Cover Portrnit - LEGI.SLAJIVE ~LDG. from Nos I :..:....: ·,frj JuJy 30,-"":SCpt. .. 12·~ 193• 1 Volume II Cover Portriiits - MANUEL L. QUEZON . CLLAl:{.O M. RECTO from Nos. 41 - 74 Sept. 17 - Oct. 25, ·1'934 Volume III Cover Portraits - MANJJEL A. ROXAS . ELf•1Dit> QUIRINO JOSE P. LAUREL from Nos. 74 - 95 Oct. 26· ·:::·NoV: ·23, · 1934 limited copies availab1~ ... a1 .;..-."• ". ' P'25.00 per volume to subscriber of. the LAWYERS JOURNAL i-35.00 per volume to non-subscriber p'laec"your order directly to the EAST PUBLISHING COMPANY Rm. 508 Samanillo Bldg. Escolta, Manila Tel. 4-13-18 Send your subscription to the EAST PUBLISHING COMPANY 508 Samanillo Building Escolta, Manila Tel. 4-13-18 Special Notice to La1cyers, Professors of Law and Political Science, Legal Scholars, and Law Students! Read the informative, i.nstructive, and invaluable · reco1·ds of the debates and deliberations of the delegates to the Constitutional Convention on the BILL OF R1GHTS in the Journal of the Constitutional Convention startmg with its issues for August to December, 1963 Now A vailable at the East Publishing Company I ·1 LAW AND PSYCBIATRY MtJST'.JOIN IN DEFENDI.t:W MENTALLY ILL CRIMINALS Mr. Justice Bre1111an suggests that we inay be at the threshold of a 111ajol' ·rc-e:ramination of lhe premises 1tillicl1 underlie 01w system, j')1· the adm.inistration of crimiual lHw. In the area of criminal respowdbility and mental illness, whether the M'Nnghten test 01· another is turnd, the accus(,(l's 1·iyht to a defense may req11ire 71sychfot1·ist8 to extend their Hippocmtic oath to include foreusic services. Th-is article is adapted ;J'Om an address before the National Association of Defense La1cyers in Criminal Cases. By WILLJAM J. BRENNAN. JR. Associate Justice United States Supreme Court I SHARE WITH J\tANY thl! concern that so many o( our profession ~re rductant to represent people accmed of crime. There \\·~s ~ time in our history when lawyers generally could be counted upon to present a militant front. howe\•er · unpopular, agaiJJst <my irl\'asion or undermining of individual, human or constitutional right». A first office of a lawyer in oul' society is to protect ·indi'·idual rights, especially those secured to people accused of trespassing society's laws. American lawyers cannot be mere private practitioners of the Jaw. They have a public rcsponsibili ty to maintain a i;ystem of government by law. That phrasc-'·government by law"-is no empty platitude. It is the essence of a free society. No nation possesses a code better designed to a:Ssure the civilized and decent administration of justice which is a free society's hallmark. But that code will provide only paper protccliori of our people arc more concerned with prosecutions lhat arc overturned than with fundamental principles that arc upheld. Because it. is only in upholding fundamental principles, eve11. at the expense of freeing some not-very-nice people, that the protections for nice people arc maintained. Challenge to l\1.'Naghten Rules Arouses Fears Probably no more provocative subject exists in the criminal law lod:ly than that of criminal responsibility ;:ind mental illness. That is because the ~tir created by the widespread examination being made into the continuing validity of the M'Naghten Rules1 has seem to some to ha\·e challenged the very foundations of society's method of dealing with offenders against its laws. Despite a flood of literature from both legal and behavioral disciplines inveighing against the retention of the M'Naghten Rules as they have been traditionally interpreted, their discard is opposed from fear that any other test would produce a system '·soft on criminals" and destructive of principles of morality and good order. Now I am not going even to survey the different so-called "insanity tests" which have been the matter of such furor ancl debate, nor shall I by the slightest intimation suggest which I think may be preferable to the M'Naghten Rules, if indeed it has yet been pro\•ed that any one of them is better. I'm going to confine myself to some observations upon some arguments made for retention of the M'Naghten Rules, and then discuss some practical problems which must be work.eel out if those Rules are to be replaced by any of the alternative tests now being dis.cussed. M'Naghten, it is held, must be retained because public safety and morali1y require it. More Jiberal rules, it is said, might result in too many acquittals by reason of insanity and a relaxation of concepts of public responsibility and order. ·, Daniel M'Nagthen's Case, JO Cl. & Fin. 200, 8 Eng. Rep. 718 (1843). How valid is the assumption that morality and safety require punishment by imprisonment or execution of mentally ii! people? Of course, I don't know just how many mentally ill offenders arc convicted. But a glance at the transcripts in more than a h andful of cases is enough to convince me that though the accused may be "legally sane" - though he may "know right from wrong" - he was nevertheless seriously disordered at the time of the crime. When one has this experience, he can appreciate why those who would replace the M'Naghten Rules ask: Can a true moral judgment be made about responsibility for any act without delving deeply enough into lhc actor's background-his biological, psychological and social circumstances-to attempt to explain the whole man? These opponents of M'Naghten insist that without such an explanation, there can be only the illusion of a moral judgment. They go on to ask, if mental illness is indicated as a cause, should we not attempt to treat the disease, rather than wreak vengeance on its medium?. They summon to their support my colleague Justice Frankfurter who said (in an opinion urging a humane procedural approach to the insanity defense), Man "is not a deodond to be forfeited like ·a thing in inedieval Jaw•·. They insist it is hypocrisy tha't nowadays :most of us reject retrlbution as- an clement in punishment for, they argu~. retribution must be a factor in punishing these people, for the evidence suggests that the mentally ill are not reformed, rather they are made worse, by prison. Nor is 1heir punishment calculated to deter other mentaJ\y ill people from engaging in crime. Prisons Do Not Provide Adequate Psychiatric Service These proponents of a change press on us that perh aps imprisonment as a means of reforming the mentally il l would have a helter case if our prison systems provided the wherewithal to trcai thei1· condition. But speaking in June, 1960, James V. B(!nnett, Director of the Federal Bureau of Prisons, noted: "It has been my experience that the courts arc often overgenerous in chcir estimates of what cOrrcctional institutions can accomplis.h. The availability of psychiatric service, for example, has been exaggerated. To a very large extent it Is simply not availnble." The latest available figures indicate that there arc only fortynine full-time psychiatrists on the staffs of institutions for ndult offenders in this country. Even these are not evenly dispersed: thirty-six states h ad no full -time psychiatrists on their staffs. But perhaps a heller day is on the horizon. It must be reason for encouragement that the distinguished Drs. Karl Menninger and Joseph Sotten have caused the Menninger Foundation a t Topeka, Kansas, to undertake a program of research and training of psychiatrists, psychologists and psychia'tric social workers for work in penal institutions, A useful by-product of that kind of program should be some much needed il}formation bearing on the related problems of determining criminal responsibility. June 30, 1963 LAWYERS JOURNAL Prtge 161 1be dearth of treatment facilities is the more distressing to to these proponents of change since we in the United States apparently place greater reliance on imprisonment than does any other country in the world. Mr. Bennett is authority that we have ''178 persons behind bars tor every 100,000 of the civilian population. In contrast, England and Wales have only sixty-five persons under lock and key for every 100,000 citizens. Japan has eighty-nine." Ironically, Mr. Bennett pointed out, the only country whtch comes close to our rate is Guatemala-and, Mr. Bennett found, 60 per cent of these prisoners were unsentenced and were being detained only temporarily. Does lmprlaonment Solve the Crime Poblem? In short, ask these pleaders for change, must not our society face up to the question: Don't we place an undue amount of reliance on prisons to solve our crime problem? How is a solution achieved-or how are morality and public order preserved -by incarcenltlng people who need psychiatric treatment Jn institutions which do not provide it-perhaps because, as some of them insist, the prison millieu .is inherently opposed to the therapeutic process. And a hospital which is a hospital in name only, but for these people a prison in fact, is no better case. The Superintendent of Galesburg State Research Hospital in lllinoii wrote last year: It is important to recognize also that commitment can be a form of incarceration, and prosecutors, JudgeS anct hos- · pltal officials are not immune to this expectation of society. Such patients usually are segregated in maximum security units, and arbitraiily are denied all privileges. Often this ia quite anti-therapeutic, but prejudice prevails over reason, and individual "civil rights" are conveniently overlooked. I come now to the concern for public safety, also urged as a reason against insanity-defense reform. Many apparently assume that a verdict of not guilty by reason of insanity necessarily results in a mentally ill and dangerous person being turned ldose onto the streets. Here one is on perfectly aafe ground in saying that this just should not be so, for only one of the fifty states, Tennessee. makes no provision for possible confinement in such cases. The argument should really be, then, whether society Ls better protected by having its mentally ill offenders sent to a hospital for treatment, and kept there until the courts determine on the advice of the medical experts that the offenders are no longer dangerous; or whether we are better protected by imprisoning these people for a certain number of years. Even under the indeterminate sentence, the key to release is whether the offender has been a well-behaved prisoner. But the good behavior of a mentally 111 offender ln the highly structured prison society provides no assurance that he will so behave in the unstructured free soelety. We must acknowledge that in the case of the determinate and indeterminate sentences release is not predicated on any medical assessment of a change in mental condition. In sum, then, is there really competition between the principle that we should secure fair and decent processes to those accused of crime and the principle that morality and pub-lie order must be preserved? Psychiatrists Disagree on Their Role I tum then to some of the practical difficulties which will have to be overcome if the M'Naghten Rules are replaced with a test which would seek more accurately to separate mentally ill offenders for the purpose of hospital confinement treatment. We lawyers know that that is a process for experts, both legal and behavioral. And we cae.'t overlook the controversy among psychiatrists as to the proper role of the practitioners of that profession in the process. Some contend that the question of mental condition has no place In the determination of guilt or innocence but belongs only at the sentencing stages as bearing on the determination what dispQSition of the offender would offer the best protection for society and best possibilities for rebbili .. tation. Other psychiatsists agree that they have a proper role in the determination of the insanity defense itself but onb' ii the mental illness is one which psychiatrists are equipped to treat.2 But these are questions which we must lay aside now. When we talk of employing experts, we lawyers must look at our problem in context. Who are our criminal defendants? What is their background? Do they have relatives and resources capa~ ble of helping in their defense once they have landed in trouble? By and large, the so-caned "white-collar" criminals probably have the resources and friends to aid them in their defense. If mental condition is called into question, they basically have the wherewithal and the knowledge to get help. This is as it shOuld be. About a fear ago, I read an article in the Waahlogtoa Post reporting the testimony of a psychiatrist called by the defense. The article might not have been written but for the fact that the case had achieved some local notoriety because it involved a hold-up by a wealthy young man. However, the reporter made the point of his article the fact that the testimony was of a far higher callber than was usual in cases where the insanity defense was raised. In fact, the evidence proved to be so clear. comprehensive and persuasive that the trial Judge directed. a verdict of not guilty by reason of insanity. The psychiatrist testi'fied that he had had about twenty .. five lengthy interviews with the defendant and that he expected to charge about $2,000 for his services. (With some asperity, he also pointed out on cross-examination that he believed the prosecution had spent more than this in having the boy examined by government psychiatrists.) Justice ls well served when the resources of prosecution and defense are fairly evenly matched as they were in the case to which I have just referred. But is this the situation for the vast majority of our "blue-collar" criminals who commit crimes of violence-or who steal without the refinements of embezzlement? Judges seem to agree that about 90 per cent of these people are indigent. To put it another way, these offenders• come from that section of BOCiety whose conditions result in the largest crime rate and, if the study by Yale's Holllngshead and Red.lich is correct, in mental illness too. It is here, also, that the bulk of the mentalb' retarded are found. The experts make the provocative suggestion that deprived socio-economic upbringing causes considerably more retardation than springs from organic or hereditary factors. How many defendants from this sector of our society raise the insanity defense-and how many of them would raise it, or how much more adequately would it be raised, if the resources in the fonn of able defense attorneys and behavioral scientists were available? The problem of obtaining dedicated and capable defense attorneys, of course, extends beyond the p~rticular defense we are discussing. That probiem is tied up with the constitutional problem whether defense counsel must be provided every accused. It relates partly to the status of criminal lawyers in the Bar of this country. You do not need me to tell you that this is inadequate. Perhaps a glance at why it is so low will suggest lines for reform. In the first place, I suspect that the criminal law is not given as central a position as it should have in law school curricula. And I have the uneasy f~llng there is little serious effort to acquaint students with the role of the behavioral sciences in determining the issue of criminal responsibillty. Certainly the law schools do not tum out droves of bright young men anxious to carve out a carrer ln criminal law-at least, for the defense. Estates, corporate, tax, commercial Jaw-all of these arouse far more interest. Nor is this particularly surprising. It is not only that these are the fields which are likely to yield greater financial rewards; --;s;;-Forensic Paycbtatry: lJ&e1 and Llmltatiops .....,.... A Symposium, 67 Nw. U. L Rev. l (1962). Page 162 LAWYl!RS 'JOURNAL June 30, 1963 I have the uneasy feeling that there ls a tendency in ihe co.;,m.WlitJ and at the bar to disapprove of lawYers who undertake the defense of people charged with crime. If, however, the reason went no deeper than the uninformed prejudice which tars the dcfense . ..atmmey with ,1fte .\t&5taadant's ·cttme, we woutd not need to be unduly concerned. But 1f we are to be honest, we must recognize that other factors are involved. The practicing attorney too must live. If an impecunious accused and his family cannot compensate him, the lawYer may be forced to spend more time on the problems of the clients who can. I understand that the problem of compensation for. legal services Jn defense of the criminally accused is under consideration by one of the great foundations. I can think of no better subject for its prayerful consideration. 1..epl Aid and Defenders Have IHadequate Resouree& Is the problem rendered less serious by the existence of public- defendt"r and legal aid systems? To the extent that these have adequate resources, they do alleviate the problem. But I am afraid that a comparison of numbers of lawyers and investigators for these organizations, with their counterparts in district and United States attorneys' offices, would dash any hopes that the complete answer lies here. Without these organizations, I suspect that the adversary system in criminal law would tend to . break. down aJto,gether. With them, the more serious deficiencies are .to tome extent counteracted. la our practice of court appointment of private auomeys an adequate fillin? You know better than I about that. From my observation, the system seems on the whole to work pretty . well at the appellate level. But it la a poor stop.gap to appoint a good lawyer to raise on appeal the errors of a young, inexperi~ enced and hard-pressed defense trial lawyer. Nor is it to be expected that the Bar could fulfill, on a voluntary, unpaid b&sis, the need for a body ot experienced. criminal trial lawyers. Nobody blames the lawyer, who may well be a successful corporate practitioner, for a certain reluctance to make one of his rare court appearances as a. defense trial attorney for a man charged with a serious felony. His reluctance is justified. What is the sol~tion? All I can do is to feel some encouragement as I Jook at certain pointers in the wind: that the Congress is consideri.ng a solution for the federal courts, and some states have adopted or are thinking of adopting one in their courts· that the foundation mentioned has become involved with it; thai there are a few programs similar to that at Georgetown University where under the leadership of Dean Pye a handful or excellent law graduates come to take a further degree in criminal Jaw: they spend a considerable part of their time as defense attorneys in court, at the trial and even the Juvenile court level. The experiment at Georgetown seems to have worked admirably and is lo be continued. Its real success, however, will depend on whether the young men who have completed the program are able to undertake in the nCxt several years, the kind of work which they want and have proved to have an ability to do. Defense Lawyer Must Have Aid from Psychiatrists But expert legal help is only half a loaf. Assume that our indigent defendant has able counsel, anxious to raise the insanity issue at trial, How does he go about obtaining experts to examine the accused with a view to providing bim with information and eventually to testilying at trial? Maoy of you know the problems far belier than I do. I suppose that often the pr-.ctice is to request the court to commit the accused to a public mental hospital for observation. Where there is a question of competency to stand trial, this may well be granted. But I believe that other serious problems are encountered where the-more debatable issue is the accused's state of mind at the time of the offense. If this is the principal question, even the most knowledgeable and experienced defense counsel may face troublesome obstacles in the preparation of the defense. Judge B82elon dealt with tbiB practical diffieultJ in words wblch merit repetition here. He observed: The preparation of the psychiatric evidence which is re.. quired to prove an individual's mental condition at some past date is a very difficult task. It iB a task for which the accused generally lacks both financial and intellectual capacity. The facts required by way of psychiatric testimony are a "description and explanation of the origin, development and manifestations of the allege4 disease •.. how it occurred, developand affected the mental and emotional processes of the defendant ... " Corter v. U.S., 252 F. 2d 608 (1957). The examinations conducted by the psychiatrists must be of a char-acter they deem sufficient for the purpose of determining the facts required. If brief jall interviews with the defendant are inadequate for the purpose, the defendant should be committed to a mental hospital where he can be examined under clinical conditions and for a long enough time to satisfy the psychiatrists. If the psychiatrists require more Information about the defendant's background and history than they can obtain from him, an investigation should be conducted to obtain such information. If there is reason to doubt the accuracy of Information supplied by the defendant or his famiJ.y or friends, the Information should be checked by investigators. If physical tests can help to determine the existence or character of illness, such tests should be made. Indigent defendants of questionable mental capacity arc obviously 1n no position to conduct these inquiries and whatever others may prove necessary. Their court-appointed attorneys are given no funds for the purpose. If the relevant facts are to be presented to the court, therefore, it must ordinarily be as a result of inquiries instituted by the Government. If, because the Government fails to sustain its proper burden, a case is left to be decided on less than the best possible psy· chiatrlc evidence, the inadequacy of the evidence is not a point in favor of the prosecution. Shortage of Psychlatrlsta Cl'eales Problems Even if an adequate mental examination is available in a -publlc mental hospital, what if counsel should consider that the examination is perfunctory and unhelpful? What if the experts choose to testify on behalf of the prosecution? Must counsel throw up his hands in despair? In many, many counties throughout our country there will simply be no one else on whom he can call for help. With fewer than 12,000 psychiatrists in the United States, there is quite simply a manpower shortage. What of more populous centers, such as New York and Cali· fomia? Here there Is no dearth of psychiatrists. But are they willing to testify? A few months ago, Judge BazeJon, speaking to the New York branch of the American Psychiatric Association, suggested that Just as the legal profession recognizes a duty to defend indigents without charge, so might the psychiatric profession undertake an analogous obJigation. When counsel for an indigent believes that the accused's st~te of mind at the time of the offense is seriously in question, he should be able to seek the services of a psychiatrist who would undertake an examination free of charge. If, having weighed the psychiatrist's report, counsel wishes to call him as an expert witness for the defense, he might again serve without charge. The germ of this idea was seized upon with enthusiasm by the editor of the New York society's professional bulletin. He believed that many of the organization's younger members, at least, would welcome the opportunity to serve in this way. If a system could be worked _out on a roster or panel basis, it would require only an occasional donation of time and effort by each psychiatrist. The New York experiment is·still in preparation. But I believe that the idea behind it is most valuable-in a way it is Just an extension of the Hippocratic oath. (Continued next page) · Jwui 30, 1963 LA WYFJlS JOUllN.U. Page 163 STATING· ,THE ISSUE IJll'. APPELLATE BRIEFS MT.· Coope1"a ·Article. i.8· the result of cons4f,e1·able con:esPondence ·. with appell4te · oourt judges. He w1·ote. to them,· asldn·a 1vhat they conBidered to be the 'princiJHil weaknesses i.n briefs submitted. to their courts. Una,mmoualy. the jooges agreed that the statement of issues was highly important, and neatrlry·a,U· of them repo·rted that many of the statem·ents of issues thati they read were unsatisfact01"y. M1·. Cooper lays down six .irules for a good ·statement of the issues and then discusses each rule in detail. The article is ba,sed upon a chapter in a forthcoming book, Writing -in Law Practioe to be published this year by Bobbs-Merill. By FRANK E. COOPER' JUSTICE Ff.LIX FRANKFURTER, addressing The A5sociafion of the Bar of the City of New York a few years ago, described Chief Justice White as a lawyer who "was happily endowed with the gift of finding ·the answer to problems .by merely stating thein."1 · 'This trenchant phrase describes the epitome of the art involved in drafting the "statement of the issue involved" on the flyJeaf of an appellate brief. If it appears tO the Judge, ..;pon reading the flyleaf, that the mere statement of the question makes • the answer plain, then thappily assuming the answer is that for which the writer of the brief is contending) the brlef-wrtter has accompllshed the greater part of his task in a single paragraph. All that he need do in thC rest of his brief is to fOrtify the conclusion that is implicit in the statement of the question. It has often been said that the most important paragraph in a brief is the first one, in which appears counsel's formulation of the issues presented for decision. Much has been written of the vital role which this short statement has in influencing the ultimate _decislo'n ln the case. . It has been urged that many ~pellate cases might have been decided the other way had the losing party selected a different battleground, skiJlfully directing the court's attention t.o an issue which was overlooked in t~e *Professor of Law, University of Michigan Law School • Some Reflections on the Reading of Statutes (1947), page 8. LAW.. . (Continued from page 163) If psychiatrists really kDew what happens to mentally ill people who get Into trouble with the criminal law, I suspect that many of them could not help offering their services in a way whlch would make a significant difference to the operation of the in!!anity defense. In many parts of the country there may not be enough priVate psychiatrists to undertake this sort of work without-or even with-charge. But we shall never know just how serious the manpower problem is until we start making the best use of what is available. The seeds of the idea have already been sown in New York. What about the national level? What might come of an apprOach between the American Bar Association and the American Psychiatric Association, and perhaps the American Psychological Association-or between the Bar and these groups at the local level? I do not know what the outcome would be, but I suspect it is worth trying. Once an increasing number of· psychiatrists, and perhaps other behavioral scientists, such as clinical psychologists, become interested in adding the indigent accused, then other difficult problems-such as improving the quality and depth of their testimony-can be tackled. But that is ~~ther story. Re-eumlnlng AdmlnWnl.Uon or .Criminal, Justice Plainly enough I have asked many questions and answered acutaI presentation of the case. It is easy to find instances where a case that was lost belQW is won on appeal because counsel for appellant has argued his case on a different theory fr.om that which was urged at the trial. But what of the cases where the appellate court is being asked to review the same issue which the court below considered? Of what importance is the "statement of issue" in these case? To test the often-repeated assertion that Judges attach great significance to the statement of issue involved, the author (fol~ loWing the advice of John W. Davis that if a fisherman .re~lly wants ·to know what bait is best, he should ask t.he fish) addressed inquiries to a number of appellate Judges, asking them what they look for in a brief and what they consider the prln~ cipal weaknesses in the briefs submitted to their courts. Ma.ny of the Judges responded in considerable and specific detail. · They agreed unanimously that the statement of issues iDt•olved Is highly important. Nearly all of the judges spoke with regret of the unsatisfactory quallty of the statements of issues as presented in the briefs filed in their courls. · · One of the Judges wrote that the drafting of the statement of issues involved is the phase of appellate advocacy which calls for the greatest degree of skUI - and he added that this part of lhe job is the one most frequently botched by counsel. Another complained that in more than half of the cases assigned (Continued n~xt page) absolutely none. This is not Just the natural reluctance of an appellate judge to comment upon problems which one day may get to him for decision. It is rather that we may be at the threshold of a major re-examination of the premises which underlie our system for. the administration of criminal justice. If this is indeed so, I can only have added confirmation to a conclusion that there Js much more to be done-in today's popular vernacular, more dialogue, more exploration, more trial and error. There are on and off the bench and among lay.men closed minds to any reexamination of the long-standing basic fundamentals of criminal Justlce. But those minds may find that they must inevitably open. The march of events, the expanding scientific horizons promising greater knowledge of the reasons of human behavior, may prove irresistible. President Kennedy pinpointed its complexity in his recent call for a national plan to combat mental retardation. His obsen•ations tho.t "there are difficult issues involving not only our social responsibility for adequate care of the retarded, but the extent of the responsibility of the retarded individual himself, as, for example, when he gets int.o trouble with the law'', und that "for a long time we chose to tum away frOm these problems", were preceded by this: "In addition to research the CWTeD.t problems are those of diagnosis, evaluation, 4j!are . . . a laCk of '(1ublic understanding and·a iiearth'of ltrivate and'pU.blit? fticll.ities.I' P•ge, 164 :,lJl.WYERS 10URNAL · Jiine ·!O,' 1963 STATING... (Continued from page 164) t.o him, he has to read the whole of both briefs and then match one against the other in order to ascertain what the disputed question really ts. THE SIX TESTS How is one to avoid the defects of which the judges com~ plain - detects which are quite evident to any one who wishes to take the time and trouble to pick up a volume of any ap· pellate court's "Records and Briefs" and glance through the "statements of issue involved" in the briefs on flle? It is much easier, alas, to point out the defects in what someone else has written than to avoid llk.e faults in one's own submissions. The art.of. stating the issue involved, like that of writing sonnets (and indeed there are intriguing relationships between those two lite· rary disciplines), is one which the lawyer must teach himself. But it may be suggested - with some degree of confidence, .on the basis of the experience of legal writing workshop groups condu~ted during the last twel".e years at the University of' Michi· gan Law School - that progress can be made by checking w~at One~ written against the following six tests: 1. The issue must be stated in terms of the f~cts of the c .... 2. The statemei:i.t must eliminate all unnecessary detail. !. 'It musi be readily conlprehensible on first reading. 4. It must eschew self-evident propositions. 6 ... It must be so stated that the opponent has no choice but to accept it as an aCcurate statement of the question. 6. It should be subtly persuasive. I .. lbe. Issue Must be Stated In Terms of the Facts of the . ea.e. From the court's view point, the most important purpose of the statement of Issues is to acqu8int the court at the out· set with the general outlines of the case. It should, as Ralph M. Carson once said, be so devised. as to impart - on first reading - the "individual flavor" of the case. This is the first requisite. The statement of issue may be likened to a lens through ·which the court views the facts and the law. Particular aspects of the facts, and particular principles of law having BOml! rele· vance to the case, may loom large or fade into insignificance, d~pending upon the focus of the lens. If demonstration were needed of th.e importance which the courts attach to the requirement that the issue be stated in terms of the facts, such demonstration could be afforded by examination of those cases where the court is divided. Fre· quently, in such cases, the majority opinion emphasizes one aspect .of the facts, in its statement of the issue; and the minority opinion, emphasizing other aspects of the total factual complex, casts the issue in quite different form. So important do appellate courts consider it to have the issue stated in terms ·of the facts of the case, that this require· ment is frequently imposed by court rule. The Supreme Court of the United States. for example, provided (the quotation is from the 1954 rules) that the statement of the questions pre· . sented for review must be "expressed in the terms and circumstances of the case but without unnecessary detail". The re· quirement of the United States Court of Appeals for the Sixth Circ~t is that the statement of each question involved must be "complete in itSelf, and Intelligible without specific reference to the record". How much appe4'1 cm be added to the statement of the issue by effective reference to significant facts may be illustrated by the statement filed in a case involving the question (stated abstractly) whether the drafting of legal documents by r~al estate salesmen involves the practice of law. Counsel for the winning party no doubt made considerable headwar. with the court by its statement of thi:: issue, which was: H3.ve defendants practiced Jaw ... by reason of their having completed and filled but' printed forms of offers to purchase real estate, warranty deeds, quit claim deeds, land contracts, land contract assignments, leases. and notices to terminate tenancy incidental to thei'! handling and conswn· mation of reaJ.estate transactions in which defendants were acting as reat--estate brokers, no separate charge having been made therefor? 2. The Statement Must Ellmlnate All Unnecessary Detail. Jn their anxiety to satisfy the court's desire that the issue be stated in terms of the facts of llJe case, many lawyers (report the appellate judges) outdo themselves, and as a result undertake to state too many of the facts when they state the question involved. (One particular aspect of this difficulty was high· lighted by the penetrating suggestion of Justice Dethmers of the Michigan Supreme Court that lawyers too often clutter up the statement of issue with too much of what the brief.writer alleges to be the facts of the case.) A statement which takes the form of a long meandering interrogatory, rambling an the way down the first page of the brief, usually accomplishes no more than to leave the impres· sion that the case is so confusing that one will have to study the whole record to see what the issues are. Yet the records and briefs of every appellate court a~ infested with "statements of the issue~ that occup'y two;.thlrds or more of a printed page. There a~pears to be a persistent tendency to try to state the Whole case in the statement of the issues, and this has caused appellate Judges considerable distress. The Wisconsin Supreme Court has taken a rather drastic step to correct the practice. Its rules specifically provide that the statement of issue shall be made "briefly, without detail or discussion, without names, dates, amounts, or particulars of any kind". The rule contains the further admonition that the state • ment in its entirety should not ordinarily exceed t~enty. lines. One must, in short, eliminate all unnecessary detail. The essence of the case must be reduced to capsular form if the statement is to serve its purpose. A capsule, if it is to be, swallowed easily, must be small. 3. The Statement Must Be ReadJiy Comprehensible on First Reading. Surely it needs no argument to establish the propo· sition that the statement of issues involved canriot effectively accomplish its purposes unless it is readily comprehensible. Fur· ther, its meaning should be clear on first reading: if the judge's only reaction, after reading the statement, is one of bewilderment, there ls always the danger that instead of going back and trying to puule out the meaning, he will tum to your opponent's statement of the issue - and your opponent will likely not state the question exactly as you would have wished. One's own statements of the issue involved are always per· fectly lucid - to their author. But when someone else is asked to read them, it is almost unfailingly distressing to note that phrasea. which are perfectly clear to you, In view of your complete knowledge of all the facts of the case, are meaningless to the uninitiated reader. The acid test was suggested by the late Judge Herbert J1, Goodrich, who urged the brief.writer· to read the statement of issues to his wife - if he has one, and if she 'will listen. If the statement has been well written she will un· derstand it; for, as Judge Goodrich said, "There is no reason why legal propositions cannot be so stated that they can be understood by any intelligent listener." Judge Prettyman summed it all up by suggesting "the law· "yer's greatest weapon is clarity, and its whetstone is succinct· ness''. Or, 'as Judge Goodrich expressed the thought: "The more clearly the point Is made, and the more distinctly it stands out, the more easily the judge will understand it and, it may be hoped, in understanding it, appreciate its signiflcance.2 2 Herbert F. Goodrich, A Case on Appeal - A Judge"s View; Appeals (American Law Institute, 1952), .page, 6. LAWYERS' :1QIJRNAL Page 166 How Many Issues Should Be Raised? One aspe,ct of 0the problem of ?.~hteving clarity ,_ ~d itiereby forcefulness - in the st~temer,.t of the issues involved, is the necessity of determining how many issues sho..ild be raised when one is writing the brief for appellant. It is a brave lawyer who ls Willing' to submit his case on a single issue, waiving what appear to app;el~ant to be nunierous other flagrant errors. The appellate Judges tell us, however, that they appreciate such bravery. Judge Goodrich· suggested that a case with two or three pOints well· presented is better thari a brief covering a number of points. .Just~e Dc~mers also mentioned that in many cases two or three issues are adequate. Justice Rossman urges the brief writer to limit himself to one or two points. But lf (as many lawYers ~onclude in their more difficult cases) one feels that he must state at least four or five, or perhaps a half dozen issues· (a number, incidentally; which practicing attorneys have ofter:i suggested as the maxlmuin) the next question becomes: in what order" should they be stated? Put the strongest point first, th~ Judges tell us, and. hit. ~t u h!Ud as It can be hit. Strike fOr tl;le _Jugular vein. To quote again fx'qm Judge Goodrich: "There ·should ·not be" too _muµ' ~ points_ on appeal. A case Y(ith ·two or. ~hree points cl~arl7 stated and vigorously qued 1a milch better thari one filled wl.th a dozen bases of complaint. If a court £oes through a . half dozen points which it regards· too small to be material, It" is likely to become a little impatlent concerning the possibilities of the rest."l · ' ' · · 4. The Statement of l•uc Mua:t Elcbew Self.Evident Proposldom. Understandably, appellate judges view ·with consider .. abJe cynicism, it not outright distrust, assertions that the ques· tion involved, is one to which there could be but one possible answer. Where the brief undertakes to suggest that, beyond any shadow of doubt, the que.c;tion is $0 exceedingly s~ple tilat there is really no room for argument, the apellate Judge is apt to turn his attention fron1. your brirf to your opponent's to discover whether he has found any more difficult question. If opposing counsel's counter-statement o~ the . issue- involved makes it cle'a.; that the 3ctual questio_n · before the court is far mor.: complicated than would be suggested ·by the self-evident proposition first, suggested, the attorney who sought to suggest that the qucstiop was really no question at all may have lost the confidence ot the cou1t at the outset. Perusal of the "Records and Briefs" volume.s in a li;i.w library unearths many examples of cases wherein the statement of issue in the opinion of the court makes it clear that the court concluded the question involved was much more complicated than counsel was willing to admit.· Surely, the appellate Judges who read the "statements of issue" set forth below must have felt - and possibly wlth an appropriate degree of irritation - that by the time they completed their study of the record, they would discover the. case was much more difficult than was suggested by assertions, in the briefs, ttiat the questions Involved were: 1. Where, as a condition precedent to recovery, the assured is required to notify the Insurer of any fraudulent or dishonest act on the part of an employee, not later than fifteen days after discovery of such, is the assured entitled to recovery when his own proof established that this condition was not complied with? 2. Whether the Commissioner of Internal Revenue was entitled. under the Internal Revenue Code to charge this taxJ Herbert F. Goodrich, A Case mt Appeal - A Judge'• View; Appeals (American· Law Institute, 1952), page 6. payer for interests on anlounls of money which were -~ot ·part of the tax imposed on the taxpayer? 3. Can a" State Court assume jurisdiction iii a labor dispute in an industry affecting interstate commerce where·such assumption of Jurisdiction is in conflict with and intrudes upon the National Labor Relations Act and statutory scheme? In one case a clty elections official proposed to state the question to appear on a ballot in a municipal election by asking: "Are you in favor of creating more interest in the city ;library?" But the governor of the state (upon ascertaining that the substance of the proposal to be submitted to the electorate involved Increasing the library commission from three to nine members, entailing certain. additional expenditures) ruled that the question could not be submitted in the form proposed. Doubtless, appellate judges from time to Ume see equally atrocious examples. A,· variarit inctho_d of violating this Caveat is to sta·te th~ _que.~tion In such a way thit it appears to suggest a proposition which ·is obviously not the law - as when counsel advised the court that the issue was: · Whether, as a result of this court's decisions in the baseball cases, the doctrine of stare declsls requires a holding that the theatrical business is excluded fr0m the scope of the anti-trust laws? I. The Statement MU.t Be So Drafted that the oWosl1e Party Will Accept II u Aceurate. If appellant's statement of the issue fairly and accurately presents an i~sue which be is entttled to have the court consider, he has attained an initial and important objective - that of being able to fight the appellate bttttle on a terrain which is favorable to him. But if oPposing counsel can ppint out to the court. that appellant's statement of the "question involved" is unfair, or that it overlooks a .significant circwnstance which might be controlUng of the decision, this initial advantage is lost. What is worse, appellant is at .a disadvantage, for the court has been compelled to suspect his candor and fairness. How high one can be hoist with his own petard, if his statement of the issue ls inaccurate, can be illustrated by a case in the United States Supreme Court on review of a state court decree enjoining a unlon from picketing plaintiff's place of business for the purpose of inducing plaintiff to require his employees to join defendant union. As the case was initially presented to the Supreme Court, counsel for the union said · that four questions were involved: (1) May a stat~ bar peaceful picketing merely because the picketing ls carried out by work.men not employed by the picketed employer? (2) May a state declare peaceful picketing coen'.:ive merely because of the absence of a direct employer-employee relationship? (3) May a state court make "Insubstantial findings of fact screening reality" and use these findings to declare conduct unlawful which otherwise would be lawful and protected by the Federal Constitution? (4) May a state outlaw peaceful picketing because it ''has the potentiallty of inducing action in the interests" of the union rather than the employer? This statement of the issues not only violated the fourth commandment, supra (eschew sell-evident propositions); it was clearly inaccurate as well. Counsel for employer was quick to say that the issue actually was whether appellant union was deprived ot its coristltutionality guaranteed, rights by the decree of the state court which enjoined peaceful picketing, It its purpose was to compel an employer to coerce his employees into Joining - union. This statement of the ca&e waa uldpiatelJ ac(Contin\led on page 168) Page 186 ·.LAWYBRS .. JQURNAL ESCHEAT OF ALIEN PROPERTIES by GREGORIO BILOG, ·JR. Assistant Commissioner of Land Registration ~·Lands a.nd natwral resources are immovables and cts such can be compa:ed to the vita_l organs Of a pers~'B body, the lack· Of posse~sion of which mOJy cause i~tant. death or t~e shortenina. of life • ·• • If we ~o not completely nationalize these two of our most impo1·ta:lit belongings, I am afraid that the time will come when we shall be so1~ry for the tim.e we were born." - DeleJate MontilUt . . With the tide of nationalism now Inflaming aµd sweeping Afnca, the same way It did Asian countries the years immediately following the end of World War JI, which saw the birth, .among othen, of the Republic of the Philippines, it behooves us to refocus our attention to the chronic problem posed by the uncertain status of lands acquired by aliens in violation of the Constitution. Tbe- Need fo~ a Positive Leglslatlon. . ~ early as _November 15, 1947, the Supreme Court has declared that, under the Constitution, aliens cannot acguire lands in the Phllippines, except in cases of hereditary succession. (~venko vs. The Register of Deeds of• Manila, 79 . Phil. 461, pn:mulgated November 15, 1947): Since the fateful declaration, the need for an implementing law that -would give teeth to the constitutional mandate has been felt. For, indeed, there is a pressing need for the state to adopt a definite policy to settle once and for all the uncertain status of lands illegally acquired by allens, and to put a brake on the further mockery of the Constitution by aliens enjoying with impunity and trafficking illegally with the patrimollJ of the Fllipino nation. Unfprtuna~ly, nothing concrete has so far been ~one in this regard ! That the Filipinos are deprived of the enjoyment of these properties reserved for them by the fundamental law of the land is bad enough; but what is worse is that the uncertain status of alien landhol~gs, particularly of valuable residential and commercial lands, threatens the stability of real estate ownership, impedes economic activity and undermines the time-honored principle of the indefeaslbility of Torrens titles. TO the @;eneral public, a"ne effect of the ;Krlvenko ruling is to .taint with a certain degree of illegality or uncertainty all certificates of title thereafter issued in favor of aliens, which, therefore, impairs negotiability. Unless this uncertainty is cleared up, people would be· reluctant to accept Ulese titles on their face value. The filing of House Bill No. 1047 by former Rep. Joae J. Roy (now Senator), Senate Bill No. 103 by Senator Lorenzo Taii.ada, Senate Bill No. 51 by Senator Sumulong, and House Bill No. 384 by Rep. Jacobo Z. Gonzales in Congress providing for the disposition of alien landholdings acquired in violation of the Constitution, was precisely intended to define the policy of the state on the matter. lt is unfortunate that said bU1a were not passed during the last session of Congress. Determining Validity of Allen Acqulsltiom. An examination of the Consdtutlonal provisions and jurisprudence in the Philippines regarding alien disqua11flcation reveals the following: In general, aliens cannot acquire residential, commercial, lndustrial or Qther disposable agricultural lands in the Philippines (Section 1, Article XIII, Constitution of the Philippines: Krivenll:o vs. Register of Deeds of ManDa, 79 ~:~~. ~~l~it:To this rule may be mentioned several excep~ 1. Allen acquisitions of lands- before the adoption of the Philippine Constitution on November 15, 1936, which are considered vested rights (Phil. National' Bank v. Ah Sing, 69 Phil. 611). 2. Alien acquisitions by virtue of hereditary succession in ·accordance with section 5 of Article XIII of tbe Constition. 3. Alien acquisltionS during the' Japanese Occupation ···but which. must have been acquired within the period Jan .. unry 1, 1942 to· September a, 1948. When the Japanese forces occupied the Philippines, all laws political ·in nature, including the Constitution of the Philippines, were suspended; hence the disqualification of aliens to acquire lands in the Philippines contained in the Constitution -was suspended when the Japanese forces o~ cupied the Philippines beginning January 1, 1942. Ho1Vever, it wlll be recalled that on September 4, 1943, the puppet Philippine Republic was inaugurated and a Constitution con-, taining a provision similar to the former Constitution of the Philippines disqualifying aliens trom acquiring lands in the Phlllppines was adopted. (Trinidad Gonzaga de Cabauatan- v. Oy Hoo; G.R. No. L-2207, Jan., 1961). 4. Americans, by virtue of the Parity A!nl.endment to the Constitution of the Phillppines are also allowed to acquire lands in the Philippines; S. Acquisitions by disquaJifie.d aliens who have becomf' Filipino cit:zens by naturalization. (Vasquez vs. Li Seng Glap, et al., 61 O.G. No. 2 p. 717 Feb. 1955) Retneclles and Suggestlom. The question frequently asked is whether or not the vendor may maintain an action to recover the property from the alien in case the sale is In violation of the Constitution. In a long line of decisions, the Supreme Court held that even if the sale made to an alien is in violation of the Constitutioilal prohibition and ts therefore null and void, it does not necessarily follow that the vendor who has also nolated the Constitutional prohibition has the right to recover .the property. In such contingency another prinetple of Jaw sets in to bar the equally guilty vendor rrom recovering the title which he had voluntarily conveyed for a consideration, that of in pad deJicto. As was aptly stated by the Supreme Court: "A party to an illegal contract cannot come into a court of law and ask to have hls illegal objects carried out. The Jaw will .not a1d either party to an illegal agreement; it leaves the part!es where it finds them.'' (Dinglasan, et al. c. Lee Bun Ting, et al., 52 O.G. 7 July 16, 1966). Thus, let alone, and apparently with legal sanction, tbe alien co~ti nues in the full enjoyment of his illegally· acquired property. There are two ways whereby our government could implement the Krivenlr:o doctrine and thereby put into force the mandate of our· Coristitution regarding the eonservatioD of lands 'iuae ·30; 1963 LAWYERS JOURNAL Page 1&:7 ESCHEAT OF ALIEN ... (Continued from page 167) for the citizens, to wit: (1) action for revenion and (2) escheat to the State. An action for reversion is slightly different from escheat proceedings, but in effect they are the same. They only differ in procedure. Escheat proceedings may be resorted to in the case of violations of Article XIII section 5, of the Constitution which prohibits transfers of private agricultural lands to aliens; whereas an action for reversion is expressly authorized by sections 122, 123 and 124, otherwise known as the Publlc Land Act. By following either of these remedies, the fundamental poltcy of the Constitution may be enforced without doing violence to the principles of pari dellcto. (Relloza vs. Gaw Chee Hun, G.R. No. L-1411, September 29, 1953) But it will be noted that there ts no law in the Philippines providing for the escheat of illegally acquired alien landholdings. And the Supreme Court has held that in the absence of a law or policy on sales of lands in violation of the Constitutiqn, the void could not be filled by said court because the matter falls beyond the scope of its authority and properly belongs to a coordinate power - Congress. (Dinglasan, et al. vs. Lee Bun Tin, et al., supra). Consequently, courts of Justice cannot go beyond declaring the acquisitions to be null and void. (Soriano vs. Ong Hoo, et al., 64 O.G. 35, p. 8066, December 8, 1958 ). The courts are not empowered to escheat these acquisiUons without a law that: will express the policy of a state called upon to vindicate its territorial integrity. In the formulation of a law on the matter, the following suggestions are submitted: Disqualified allens who acquired before the Krivenko ruling was promulgated on November 15, 1947, may be deemed to have STATING .•. (Continued from page 166) c.epted (in effect). by counsel for the union, who finally conceded that the issue was "whether picketing tn an effort to persuade an emplOyer tQ unionize his employees ls unlawful", thus being fon:ed to the craven admission that the case did not really involve any of the four issues which he flrst irisisted were presented. Occasionally, judicial opinions reflect the Judges' reaction to counsel's statement of the issues. For example, in Mazer v. Stein, 347 U.S. 201, 74 S. ct. 460 (1954), counsel for one of the parties ftad advised the Court that the issue was "Can a lamp manufacturer copyright his lamp bases?" This statement of the question, the Court observed, contained "a quirk that unjustifiably broadens the co~troveny", Diligent search of the opinions discloses a surprising number of cases in which appellate Judges have commented in their opinions on the quality of the statement of issues which counsel had set forth in their briefs. Their off-the-record comments bespeaking a lack of confidence in counsel whose statements of the issue are inaccurate, would doubtless be even more impressive than the more restrained comments found in published opinions. One of the most precious gems which my search has disclosed was written by trial counsel for a large utility company who, in the heat of anger, declared in the initial draft of his appellate brief that the sole issue was "Did the Lower Court err in declining to follow and apply the rule established by the Supreme Court decisions?~' Fortunately, the restraining influence of his .co-co~sel resulted .m drastic revisions of this gem, before it .was.prlnte.d an~ subqiitted to the i?Ourt. acquired in good faith. The reason is that before the J{rlvcnko r.uling, the government authorities, including the Department of Justice itself, were of the opinion that the disqualification of aliens referred only to "public agricultural lands'' in the Philippines. Also, it was only after twelve ( 12) years from the time the Constitution was adopted when the Supreme Coun had the opportunity to declare that aliens are barred from acquiring lands in the Philippines. except by hereditary succession. So that during all this period at twelve years aliens bad been acquiring "private agricultural lands" throughout the country for residential, industrial, commercial or other purposes. These aliens may, therefore, be given a reasonable time within which to dispose of their illegally acquired landholdings; and in case of their failure to do so, the same may be sold at PlJblic auction or escheated to the state. On the other hand, acquisitions (other than by hereditary succession) made by disqualified aliens after the promulgaUon of the Krivenko ruling on November 15, 1947, may be deemed to have been made in bad faith. In such cases, the law may require escheat of the properties involved. However, in the cases where escheat is proper, judiclal proceedings are necessary to establish title in the stat~. The eleJD.ents of due process of law are to be obse"ed iri tl)e escheat proceed. ings. · · , Finally, in the fonnulation of a law on the matter, it is well to consider the position and the commitments of the .. Phtli_ppin~ in the United N~tions Organization.. . Let us hope there will be no further delay· in the enactment of such a law, so that we shall not be "sorry for the time :we were born." 6. _The Statement Should Be Subtly_ Penu.aslve. _It· ha!;. been suggested that the brief-writer should strive to state theissue imoh·ed in such a way that the mere statement of tht" question (while avoiding the error of pretending: that the· issuE: involved is no more than an obvious, self-evident proposition) subtly -suggests the desired answer. Many eminent counsel have asserted that this is the summit of successful statement of the issue - that in the pelfect brief, which someone will write some day, the mere statement of the issue will win the appeal. But from the Judges comes a word of warning. If the judgeS perceive an attempt to inject argument, they ·are beset with doub1s that perhaps the question has been twisted out of shape. They are Ukely to turn to the brief of the opposite party to see if he agrees that the question has been stated accurately. If the opponent has pointed out any inaccuracy or slanting in one's statement, the effect may be devastating. The counsel whose statement is challenged may have loS:t the confidence of the court with hls very fl~t sentence. One should, indeed, as Judge Rossman has said, attempt to phrase the issue "in appealing form" - for -the reason, as the 1udge put il, "ma_ny times an issue well phf'a;Sed lncllnes the mind to its acceptance". But one must be careful not to su~ mit a question which is perceptibly warped or slanted 9r pointed or twisted, or one whose accuracy can be challenged by the opponent, or one which suggests that the Only issue really in~ volved is a clearly self-evident proposition. The statement must be scrupulously accurate and fair: it should appear to be an impartial (but ~t disinterested) presentation of the question. It may, withal, effecUveJ.y be cast in language that is insidiously persuasive, su.btly . persuadiiig. with· out s_eeming to _do so. · Page 168 LAWYERS JOUlµIAL UNITED STATES SUPREME COURT Advance Opini.on JULIUS SILVERMAN et al., .Petitioners, v. UNITED STATES - US -, 5 Led 2d 734, 81 S Ct - (No. 66) Argued December 5, 1960, Decided March 6, 1961. At defendants' trial in the United States District Court for an unauLhorized physical penetration into private premises, is a the District of Columbia, on charges of violating the provisions violation of the Fourth Amendment whether or not the invasion of the District of Columbia Code relating to gambling, pollce of- is a technical trespass under real property law relating to party ficers were permitted to describe incriminating conversations en- walls. gaged in by the defendants at their alleged gambllng establish- Search and Seizure Sec. 5 _ measure of rights. 4. Inherent meot, which were overheard by police officers in adjoining pre- . Fourth Amendment rights are not inevitably measured in terms :eses C:si~:~sofofa af~i-:!~g~~~; :t~ac~:tr~:i~ 1!:~~:;~0~:~ of ancient niceties of tort or real property law. together with an amplifier, a power pack, and earphones. The Seareh and Seizure Sec. 4 - basis of Immunity. 5. At the offtcers inserted the spike into the party wall separating their ;:;: ~:tr: ~~s t~:,~o~~:e A:~n~:: !:e t~e rl~~:f u~:as~n:::~ observation post from the suspect premises until it contacted a heating duct serving the alleged gambling establishment, thus governmental intrusion .. converting the entire heating system into a conductor of sound. Search and Seizure Sec. 23 - eavesdropping. 6. A federal .Jb. .. defendants' motion to suppress the evidence was denied. offlc.er may not without warrant and without consent physically (166 F Supp 838) The defendants were found guilty in the. Dis- entrench into a man's office or home, there secretly observe or trict Court and their convictions were affirmed by the Court of ' listen, and relate at the man's subsequent criminal trial What Appeals for the District Of Columbia Circuit (107 App DC 144, was seen or beard. 215 F2d 173). On certiorari, the Supreme Court reversed. In an opinion by STEWART, J., expressing the views of eight members of the court. it was held that the use of the "spike mike" did not Constitute a violation of Sec. 606 of the Communications Act of 1934 ('7 USC Sec. 605) but that its use without a warrant violated the Fourth Amendment. OOUGUS J ., concurred on the ground that eavesdropping IDaJ' constitute a violaUon of lhe Fourth Amendment even if accompJished without physical penetration of private premlses by the U5e of a device such as a "spike mike." Communlcadou See .. 9-lntercepdon of cammunlc•tlon-me or "spike mike". I. The use by police officers of a "spike mllr:e," an clcct..-onic lislenlng device consisting of a microphone attached to a foot-long spike, with an amplifier, a power pack. and earphones, by inserting the spike through a wall separallng the police observation post from premises suspected of being Wied for gambling purposes, untll the spike contacts a heating duct serving: the suspect premises, so that conversations throughout the premises are audible to the officers through earphonea, is no\ a violation of Sec. 605 of the Communications Act of 1984 (47 USC Sec. 605), wt,ich proTides that no person not authorized b7 the sender shall "intercept" any communication and divulge the contents, although much of what the officers ~hear consists of the voices of persona in the premises as they talk on the teleybone. Search and Seizure Sec. 23 - eavesdroppln.1 - me of "spike mike... 2. Eavesdropping without warrant by means of a "spike mike", an electronic listening device consisting of a microphone attached to a foot-long spike, with an amplifier, a power pack, and earphones, by inserting the spike through a wall separating a police observation post from premises suspected of being used for gambling purposes, until the spike contacts a heating duct serving the suspect premises, so that conversations throughout the premisCs are audible to police officers through earphones, ls a violation of the rights secured by the Fourth Amendment, the eavesdropping being accomplished by means ot an unauthorlud ph7sical penetration into private premises. - - -... See. 2!. - •....iroppbqi - local law. l. Eavesdroppina: witbou\ warrant, accomplished by means of APPEARANCES OF COUNSEL EDWARD BENNETT WILLIAMS argued the case of petitioners. JOHN F. DAVIS argued the cause for respondent. OPINION OF THE COURT Mr. Juslice Stewart deltvercd the opinion of the Court. The petitioners were tried and found guilty in the District, Court for the District of Columbia upon three counts of an indictment charging gambJing offenses under the District of Columbia Code. At the trial police officers were permitted to describe incriminating conversations engaged In by the petitioners at their alleged gambling establishment, conversations which the officers had overheard by means of an electronic listening device. The convictions were affirmed by the Court of Appeals, 107 App DC 14•, 276 F2d 173, and we granted certiorari to consider the contention that the officers' testimony as to what they had heard through the electronic instrument should not have been admitted Into evidence. 363 US 801, L ed 2d 1146, 80 S Ct 1287. The record shows that in the spring of 1968 the District of Columbia police had reason to suspect that the p1·emises at 408 21st Street, N.W., ln Washington, were being used as the headquarters of a gambling operation. They gained pennission from the owner of the vacant adjoining row house to use it as an observation post. From this vantage point for a period of at least three consecutive days in April 1958, the officers employed a so called "spike mike" to listen to what was going on within the four walls of the house next door. The instrument in question was a microphone with a spike about a foot long attached to it, together with an amplifier, a power pack, and earphones. The officers inserted the spike under a baseboard in a second floor room of a vacant house and into a crevice extending several inches into the party wall, until the spike hit something solid "that acted as a very good sounding board." The record clearly indicates that the spike made contact with a heating duct serving the house occupied by the petitioners, thus converting their entire heating system into a conductor of sound. Conversations taking place on both noon of the house wen audible to the· officers through the LlWYDS JOIJIULU.. Pap 169 earphones, and their testimony regardirig· these conversitlons, admitted at the trial over timely objection, played a substantial part in the petitioner's com•lctions. · Affirming the convictions, the Court of Appeals held that the trial court had not en-ed In admitting the officers' testimony. The court was of the view that the officers' use of the spike mike had violated neither the Communications Act of 1934, 47 USC Sec. 61>5, cf. Nardone v. United States, 302 US 379, 82 L. ed 314, 58 S Ct 275, nor the petitioners' rights under the Fourth Amendment, cf. Weeks v. United States, 232 US 383, 58 L ed 652, 34 S Ct 341, LRA1915B 834, Ann Cas 1915C.1177. In reaching these conclusions the cour:t relied primarily upon our decisions in Goldina.n v UnLted States, 316 US 129, 86 ~ ed 1322, 62 S Ct 993, and On Lee v United States, 343 US 747, 9~ L ed 1270, 72 S Ct 967·. Judge Washington dissented believing that~ even if the petitioners' Fourth Amendment rights had not been abridged, ·the officers'· conduct had trilnsgressed the standards of due process guaranteed by the Fifth Amendment. Cf. Irvine v. California, 347 US 128, 98 L ed 561, 74. S Ct 381. As to the inapplic8bUity of Sec. 605 of the Communications Act of 1934, we agree with the Court of Appeals. That section provides that " ... no person not being authorized by the sender shall in~ept any communication and divulge ·or publish the existence, contents, substance, purport, ·effect, or meaning · of such Intercepted cmnmunication to any person; ... " While it is true that mtich of What the officers heard consisted of the petitioners' share of telephone conversations, we cannot say that the officers intercepted these conversations within the meaning of the statute. . ' Similar contentions have been rejected here at least twice before. In Irvine v Cilllfointa," 347 US 128, 13°1, 98 L ed 661, 568, 74 S ct 381, the ~.wt i;iaid: "~ere the apparatus of the Officers was not in any way Connected with the telephone facilities, there was no interferences with the communications system, there was no interception of. any message. All that was hep.rd through 1he microphone was what ·the eavesdropper,. hidden in the hall, the bedrQbm, or. the closet, might haTe heard. We do not suppose it is illegal to testify to what ;ptother . person is heard to say merely because-• he is saying 1t into a telephone." In Goldman·v.Unlted States,-316 US 129, 134, 86 Led 1322, 1327, 62 S Ct 99.l-it ·was said. that "The li$tening in the next room to the words of (the petitlener) as he talked into the telephone receiver was no more the interception. of .a wire communication, within the meaning of.the Act, .. than would ·have been the overhearing of --the covei:"Sation by one sitting· in the same room." In presenting hCn? the pClie:toner's Fourth Amendment claim, counsei has painted with a· broad Drusb. We are 3skcd to reconsider our decisions in Goldman v United States (US) supra, and On Lee v United States, 343 US 747, 96 L ed 1270, 72 S Ct 967, supra. We are told "18.t re-examination of the rationale of those cases, and· of Olmstead· v. United States 277 US 438, 72 L ed 944, 48 S Ct 564, 66 ALR 376, from which they stemmed, is now essential in the light of' recent and projected developments in the science of electronics: ·~ are favoured with .a description of "a deVice known as ·the parabolic microphone which can· pick up a conversation three hundred yards away." ·we are told of a "still experimental technique, whereby a room is flooded with a certain type of sonic wavf!.'! whlcl"J, .when perfected, '.'will make it possible to overhear everything said in a room without enteriug it or even going near it.'• . We are informed of an instrument "which can pick up a CQnversation through an open office window on the opposite side of a busy street." The facts of the present case, however, do not require us to consider the large ·questions which have been argued. We need not here- .contemplate the Fourth Amendment implications of ·these •.and other· .frightening. paraphernalia which .the· vawited n't&riels of mr.e1-ctrobic.a~ma, visit upon.; human society..:. Nor dtJ.. tm. eittrwnstauCes here _.Jnab::nece88al"lf a.· JJeOeX,aminatioo.:-Qf the .Court's previous· deCisions in this area. For a fair reading of the record in this case shows that the eavesdropping was accomplished by means of an unauthorized physical penetration into the premises occupied by the petitioners. As Judge Washington pointed out without contradiction in the Court of Appeals: "Every inference, and what little direct evidence there was, p9inted to the fact that the spike made contact with the hearing duct, as the police admittedly hoped it would. Once the spike touched the heating duct, the duct became in effect a giant microphone, rurining through the entire house occupied by appellants." 275 F2d, at 179. Eavesdropping accompljshed by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divl<!.ed Court has J:l,eld that eavesdropping accomplished by o.ther electronic ~eans did .not amount to an invasion of Fourth Amendment Rights. In Goldman v. United States, 316 US 1~9, 86 L ed 1322, 62 S Ct 993, supra, the Court held . that placing a detectaphone against an office wall in order to listen to conversations taking place in the office next door did not violate the Amendment. In On Lee v United States 343 US 747, 96 Led 1270, S Ct 967, supra, a·federaI agent, who was acquainted with the petitioner, entered the petitioner's laundry and engaged him in an incriminati11g conv:ersation. .The agent had a microphone concealed upon his perSon. Another agent, stationed ouJside with a radio receiving. set, was tuned In on the conversation, and at the petitioner's subsequent trial related what he ' had heard. These circumstances were held not to constitute a violation of the petitioner's Fourth Amendment rights. But in both Goldman and On Lee the Court took pains explicitly to point out that the eavesdropping had not been accomplished by means of an unauthorized physical encroachmeot within a constitutionally protected area. In Goldman there ·had in fact been a prior physical entry into the petitioner's office for the purpose of installing a different listening apparatus, which had turned out to be ineffective. The Court emphasized that this e.arlier physical trespass had been of no relevant as- . sistance in the later use Of the detectaphone 1n the adjoining offic.e. 316 US, at 134, 135. And in On Lee, as ihe Court s~d, " ... no trespass was co~mitted." The agent wen,t int.Q petitioner's place of bl¢ness "with the consent, if not by the implied invitation, of . the petitioner." 3~3 US, at 751, 752. T.he absence of a physical" invasion of the petitioner's premises was also. a vital factor. in the Court's decision in Olmstead v. United States,-227 US 438, 72"L ed 944, 48 S Ct 664, 66 ALR 376. In holding that the wiretapping there did not violate the Fourtll Amendment, the Court noted that "the insertions were made without trespass upon any property of the defendants. They were made in the baSement of the large office building. The taps from house lines were made in the streets near the houses.'' 277 .us,.: at 457. "There was no entry of the houses or offkes of the defendants." 277 US, at 464. Relying upon these circumstances, the Court reasoned that "the intervening wires are not part of [the .defendant's] house or office any more than are the highways along which they . are stretched." 277. US, at .465. Here, by contrast, the officers overheard ·the petitioners.• conversations only· by usurping part. of the petitioners' house or office-a heating. system which was an integral part of the premises occupied by the petitioners, a usurpation that was effected without their knowledge and without their consent. In these circumstances we need not pause to consider whether or not there was a technical trespass under the local property" law relating to party walls. Inherent Fourth Amendments rights dre not inevitably measurable in terms of ancient niceties of tort or real property law .. See Jones v United States, 362.US 257, 2661 4 Led 2d 697, 705,.80 S Ct::726, 78 ALR2d•~; ·On Lee v. United States•~supra <:ta US·a.t.:752); H~r v~Unikd.:States, 265'.V3S. 57, 1 .• :..:. ,.;.- : • . ::~· .(~.DtiDUfSd..JteJJit,paSf,~i.r; '!.: • .i:,;..r'"·,.,~ •• ·. SUPREME. COURT DECISIONS Genaro Visarra, Petitioner vs. Cesar Mlraflor, Respondent, G.R. No. L-20508, May 16, 1963, Bengzon, C.J. 1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; COMMISSIONERS, TENURE OF OFFICE.-In establishing the Commission on Elections, the Constitution prcivided that the Commissioners shall hold office for nine years and may not be reappointed. However, it also provided that of those first appointed, "one shall hold office for nine years, another for six years and the third for three years." 2. ID.; ID.; CHANGES OF MEMBERSHIP OF THE COMMJS. SION.-Since 1941, changes· occurred in the membership of the Commission. And in March· 1955, in a similar diSplite [Republic vs. Imperial, 61 O.G. 1886] we had occasion to discuss the terms of office and the tenure of said of~ ficers. We held that the term of the first chairman (Jose Lopez Vito, 9 years) began ori June 21, 1941, and. ended on ed June _20, 1950; that the tenn of the second member (Francisco Enage, 6 years) began on June 21. 1941, and ended- June 20, 1947; and that of the third member (3 years - left vacant) began on June 21, 1941 to terminate June 20, 1944. Proceeding further, we held that when in 1945 Vicente de Vera was appointed member, he must have been placed in the only 'vacant position at that time, namely, the position whose term expired in June 1944 (third member - and that he must be deemed to have been appointed t,.o a nine-year term (expiring June 1953), which is the term given by law to all commissioners(c) appointed after June 20, 1944. Then upon the first vacancy by expiration of the initial 6U.S. SUPREME... (Cont_inued from page 170) 68 I.. ed 898, 44 S Ct 445; United States v Jeffers, 342 US 48, 51, 96 L ed 59, 64,' 72 S Ct 9.3; McDonald v United States, 335 US 451, 454, 93 L ed 153, 157, 69 S Ct 191. . The Fourth Amendmept, and the personal rights which it secures, have a long history. At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion. Entick Carrington, 19 Howell's State Trials 1029, 1066: Boyd v United States, 116 US 616, 626-630, 29 ·L ed 746, 749-751, '6 S Ct 524. This Court has never held that a federal Officer may· without warrant and without consent physically entrench into a man's office or home, there· ·secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard. A distinction between the detectaphone employed ln Goldman and- the spike mike utilized here seemed to the Court of Appeals too fine a one to draw. The court was "unwilling to believe that the respective rights are to bf'. measured in fractions of inches." But decision here doe.s not tum upon the technicality of a trespass upon a party wall as a matter of local law. It is based upon the reality of an ·actual intrusion into a contitutionally protected area. What the Court said long ago ·bears repeating now: "It may be that it is the obnoxious thlng in its mildest and least repulsive form ; but megitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure." Boyd v United States, 116 US 616, 635, 29 L ed 746, 752 6 S Ct 524. We find no occasion to re-examine Gold· man here but we decline .to go beyond it, by even a fraction of an inch. Reversed. SEPARATE OPINIONS Mr. Justice Douglas, concurring. year term (second member) and the cessation of Commis· sioner Enage in November 1949, Rodrigo Perez was appointed (December 1949) to the nine-year term expiring in June 1956. Afterwards, in May 1947, chairman Jose Lopez Vito died before the expiration of his full tenn. To succeed him as chairman, Commissioner de Vera was appoint.. ed - which appointment, we held, could only be for the unexpired period of Lopez Vito's original term, i.e., up to June 20, 1950. To fill the vacancy of thiJ;'d member arising upon Vera's assumption of thci chairmanship, Leopoldo Rovira was appointed member on May 22, 1947, and his tenure of office could not legally extend beyond that of former Commissioner Vera, 'June 20, 1953. Upon expiration of Chairman Vera's tenn on· June 20, 1950, Domingo Imperial assumed the office with a term due to expire on June 20"; 1959. 3. ID.; ID.; ID.; APPOINTMENT OF DR. GAUDENCIO GARCIA AS CHAIRMAN "OF THE COMMISSION; TERM OF OFFICE EXPIRED ON JUNE 20, 1960.-ln May 1955, the President appointed Gaudencio Garcia a member for a term expiring June 20, 1962 to succeed Leopoldo Rovira, who died in office in September 1954 (Rovira was holding oVer as de facto, the term of his office having expired June, 1953); in December 1956, Slxto Brillantes was appointed member to succeed Rodrigo Perez; and bi May 1958, Jose P. Carag was appointed to succeed Domingo Imperial (resigned) as chairman; Carag's terms and tenure ended in June 1959; and on May 12, 1960, the President appointed Garcia· as Chairman (Continued next page) My trouble with stare declsls in this field is that it leads · us to a matching of cases on irrelevant- facts. An electronic device on the outside wall of a house is a permissible invasi~n of privacy according to Goldman -v United States, 316 US 129, 86 L ed 1322, 62 S Ct 993, while an electronic device. that penetrates the wall, as here is not. Yet the invasion of privacy is as great in one case as in the other. The concept of "an unauthorized physical penetl'ation into the premises," on which the present decision rests, seems to me to be beside the point. Was not the wrong in both cases done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device - even the degree of its remoteness from the inside of the house-ls not measure of the injury. There is in each such case a search that should be made, if at all, only on a warrant issued by a magistrate .. I stated my views In On Lee v United States, 34-3 US 747, 96 L ed 127&, 72 S Ct 967, and adhere to them. OuJ'.' concern should not be with the trivialities of the local law of trespass, as the opinion of the Court indJ<;ates. But Reither should the command of the Fourth Amendment be limited_ by nice distinctions turning on the kind of electronic equipment employed. Rather our sole ~oncem should be with whether the privacy of the home was invaded. Since it was invaded here, and since no search warrant was obtained as required by the Fourth Amendment and Rule 41 of the Federal Rules of Criminal Procedure, I agree ~th the Court that the the judgment of conviction must be set aside. Mr. Justice Clark ap.d Mr. Justice Whittaker, concurring. In view of the determination by the 11).ajority that the unauthorized physical penetration into petitioners' premises constituted sufficient trespass to remove this case from the coverage of earlier decisions, we feel obliged to Join in• the Court's opinion. Jwie 30, 1963 LA.WYERS JOURNAL Page 17~ to hold office up to June 1962, and the latter assumed the chairmanship accordingly. 4. ID.; ID.; ID.; APPOINTMENT OF GENARO VISARRA AS MEMBER OF THE COMMISSION; TERM OF OFFICE EXPIRED IN JUNE, 1962; CESAR MIRAFLOR APPOINTED TO SUCCEED VISARRA.-On May 12, 1960, Genaro Visarra, was also appointed member of the Commission. Then in August 1962, Juan V. Borra was named chainnan to succeed Garcia, whose tenure expired in June 1962. And in November 1962, the President appointed Mlraflor as member, on the assumption that Vlsarra's term of· office had expired in June 1962. 5. ID.; ID.; ID.: DR. GARCIA WAS IN THE THIRD LINE OF SUCCESSION IN MAY, 1960 AND WHEN APPOINTED AS CHAIRMAN, VISARRA OCCUPIED THE POSITION VACATED BY HIM AND TERM OF OFFICE EXPIRED ON JUNE 20, 1962.-Garcia in May 1960, was in the third line of succession, his tenn of office and tenure to expire in June 1962. Wl}en he was appointed chairman in May 1960, he left that Une and entered the line of succession of the chairman, with his tenure still to expire in June 1962 (Garcia's appointment apressly stated that it would expire June, 1962). Therefore, upor his appointment, Visarra merely occupied the position vacated by Garcia (In fact he took hts oath only on October 13, 1960, after Garcia had qualified as chairman,) whose fts:ed term of office (third member) apired on June 20, ~962 (Up to the end of the tenn only, See footnote (c). Visarra's later appointment (fixing a term up to June 1968) could neither effect nor axteod such fixed tenn of office (of Garcia in the third Une). 6. ID.; ID.: ID.; RULING IN REPUBLIC VS. IMPERIAL, 51 O.G. 1886, REITERATED.-Visarra claims, however, that when Garcia was appointed chairman, he did not leave his position in the third line of succession but continued therein; so that the vacant position which he (Viaarra) filled W!lS the one left by Carag, the fixed term of which is due to expire in 1968; and that, consequently, Borra should be deemed to occtipy the position left by Garcia tn the third line. The llaw in the argument is that It contradicts our ruling in Republic vs. Imperial, 61 O.G. 1886. There we held that when Commissioner Vera was appointed Chairman be left the third Une of succession to enter the first, viz, that of the Chair.man: and upon his assumption of the Chairmanship, his position as member became vacant. We now fail to percelve any valid reason to change our views on that point, according to which Garcla must be held to have left bb line to assume the position or Chairman. Stace declsls - not mere obiter dictum. 7. ID.; ID.; ID.; VISARRA'S TERM OF OFFICE EXPIRED 1111 JUNE 1962; REASON FOR THE RULE.-It is true that Visarra's appointmen't was extended expressly for a term of office ending June 20, 1968; but as explained in the decision of Republic vs. Imperial, 51 O.G. 1886, such appointment could only be for a position whose term would expire in June 1962, because that was the only vacant position, inasmuch as the tenn due to expire in June 1968 ( for the chairman) was then occupied by Chairman Garcia. (When Garcia assumed the chairmanship, he Ipso facto resigned his position as member; and the appointment of Visarra to membership could only be for the unexpired balance of the term of member (Republic vs. Imperial, supra) up to June 1962.) 8. ID.; ID.: ID.: TERM OF OFFICE OF CHAIRMAN BORRA: TENURE OF OFFICE OF COMMISSIONERS BRILLANTES AND MIRAFLOR.-Chainnan Borra occupies the position of Chairman, with a tenn expiring June 20, 1968, and his tenure beginning August 1962 ends on June 20, 1968 (notwithstanding his appointment fixed on June 20, 1971 as expiration thereof.); the position of Member Brillantes carries a term that expires June 20, 1965 and his tenure should end on the same elate; and the term for the position of Member Miraflor expires June 1971, his tenure expiring on the same date. 9. ID.; ID.; ID.; TENURE OF OFFICE OF THE CHAIRMAN OR MEMBER CANNOT EXTEND BEYOND THE FIXED TERM OF POSITION HE IS TO OCCUPY.-It may be necessary to add that although the appointment of the chairman or of the member (subsequent to those originally appointed in the nineteen forties) is generally for a term of Dine years, his tenure can not extend beyond the fised term for the position he is supposed to occupy (If the vacancy is due to death, resignation or disability, the appointment can only be for the unexpired balance of the term, Republic vs. Imperial, 51 0.G. 1886) in the fixed line of succession as heretofore indicated, in accordance with the evident intention of the pertinent Constitutional provisions. BAUTISTA ANGELO, J., Concurrlag Opinion: 10. ID.; ID.; TERM OF OFFICE OF NEW COMMISSIONER; TO SERVE ONLY UNEXPIRED PORTION OF TERM OF PREDECESSOR; REASON OF THE RULE.-The President appointed Cesar Miraflor in 1962 a member of the Commission on Elections to fill the position left vacant by Genaro Visarra whose term expired in June, 1962, in keeping with the rullng laid down 1n the case of Republic v. Imperial, SI O.G., 1886. This ruling is to the effect that subsequent appointments to be made after the first members. appointed in the Commission who were to hold office with a staggering difference of three years from each other as required by our Constitution can only be for the unexpired portion of the tenn of the predecessor of the appointee In order to prevent a President from making more than one appointment during his tienn of office to the end that the member may preserve and safeguard his freedom and impartiality in the performance of his duties. 11. ID.; ID.: APPOINTMENT OF COMh!ISSIONERS EXTENDED BY CHIEF EXECUTIVE IS FOR NINE YEARS; SUPREME COURT LIMITED THE TENURE TO UNEXPIRED TERM OF PREDECESSOR OF APPOINTEE. - The Cb;ef Executive, in filling the vacancies in the positions held after the members first appointed, has always extended appointments for a term of nine years, never for the unexpired period, and these appointments have always met the sanction of Congress. Only that their tenure was limited by Judicial fiat to the unexpired tenn to conform to the spirit of the rotation system. If the rotation system can not be maintained because of unavoidable human factors that mq supervene, such as death, resignation, ·or disability·· in any -larm, that system should not be allowed to stand against the clear purpose of the Constitution of giving to every subsequent appointee a term of office of nine years. But this opinion was ruled out. Hence, the President, following the ruling of the majority, extended an appointment to Mlraflor- as already adverted to. 12. ID.; ID.: PROHIBITION AGAINST REAPPOINTMENT OF COMMISSIONER.-It :must be noticed from the provisions of Section 1, Article X, of the Constitution that the prohibition against reappointment comes as a continuation of the requirement that the Commissioners shall hold office for a term of nine years. This imports that the Commissioners may' not be reappointed only after- they have held office for nine years. Reappointment Is not prohibited when a Commissioner has held office only for, say, three or six years, provided his term wtll not exceed nine· years in all. x x x It may then be said as a fair interpretation of the Constitution that reappointment may be made ip. favor of a Commissioner who has held office for less than nine yeara, proPage 172 LAWYERS JOURNAL June 30, 1963 vided 'it does not preclude the appointment of a new member every three years, and provided. further that the reappointee's tenn does not exceed nine years in all (Bold letters su·pplied.). (Nacionalista Party, et al. vs. De Vera, 47 O.G., 2375). 13. ID.; ID.; ID.; REASONS OF REAPPOINTING ASSOCIATE CO~ISSIONER TO CHAIRMAN.-To hold that the promotion of an Associate Commissioner to Chainnan ts banned by the Constitution merely by judicial fiat would be to relegate a member forever to his position as such without hope of enjoying the privileges incident to the chairmanship ~hile giving a premium to an outsider who may be less deserving except probably his political ascendency because of his lack of expelience on the mechanics of that delicate and Important position. Be that as it may, we now reaffirm that opinion which to us appears just, fS,ir and sound. Its- effect is to stimulate hard work, greater zeal and increased efficiency for a member in the hope that h1s efforts would someday be rewarded with a promotion. The contrary would relegate hlm to apa_thy, indifference, hopelessn~ss and inaction. It is never a good policy to stultify one's legitimate . ambition to betterment and progress. 14. ID.; ·ID.; APPOINTMENT OF ASSOCIATE COMMISSIONER TO CHAIRMAN DOES NOT VIOLATE CONSTITUTIONAL PRQYISION PROHIBITING INCREASE OF SALARY.-The ilppOintment of Associate Commissioner Gan;:ia to Chainnan . . o!. the Commission does not constitute an increase in salary which ls prohibited by the Constitution which decrees that tbe ~es of the members "shall be neither increased nor dim.lnished during · their ·term of offlce." This prohibitioO 16: ID.; ID.; APPOINTMENT OP ASSOCIATE COMMISSIONER GARCIA TO CHAIRMAN IS VALID; RULING IN IMPERIAL CASE FOLLOWED IN THE APPOINTMENT OF CESAR MIRAFLOR.-Since the appointment of AssoCiate Commissioner Garcia to Chairman of the Commission is valid, and the President on appointing Cesar Miraflor member of the Commission, vice member Genaro Visarra, merely followed the ruling of this Court in the Imperial case, it is now unfair to declare that he acted i.mprovldently in doing so. MAKALINTAL, J., Concurring Ophtlon: can not be stietched to mean that if an Associate Commis~onU is appolnted to Chairman of the Commission he can.Dot be given the salary prescribed for the latter. The 'prohibition merely me!lJUI that during their incumbency thdr .salaries can- neither be increased nor diminished by Congress 18_. le?' prevent a situation whereby thq may have to lobbJ' Jor 17. ID.; ID.; POSITION OF CHAIRMAN IS DISTINCT FROM THAT OF EACH OF TWO MEMBERS; COMMISSIONER PROMOTED TO CHAIRMANSHIP VACATED HIS OLD POSITION.-The cases of Repub!Jc vs. Imperial, 51 O.G., 1886, and Nacionalista Party vs. Vera, 85 Phil .. 126, established the theory that the position _of Chainnan of the Com.mission on Elections ls distinct from that of each of the two members: that the three positions carry their own respective terms of nine years, staggered in such a way that they begin and end at three-year intervals; and that if a Commissioner is promoted to the chalrmanship he vacates his old position and gives up ~he term pertaining to it, and assi.tmes the new position of Chairman, with its own term, subject to the Jlmitadon that his entire tenure in ·both capacities shall not exceed nine -years. Thus in -the Vera case it was held that when Commissioner Vicente de Vera was appointed Chairman to succeed the fonner·incumbent, ·Jose ·Lopez Vito, who had died in office in 1947, such appointment could legally be only· for the· unexpired portion of Lopez Vito's term, which was up to June 20,. 1960. This notwithstanding the fact that the term of the position of Commissioner to which Vera was originally appointed was from June 1944 to June 1963. JD.;· ID.; ID. :-When Commissioner Gaudencio Garcia was promoted · to the chairmanship of the .Commission in May • 1960 -to succeed Jose P. Carag, who bad retired in 1959 upon. the expiration of his tenn1 Gai:cla vacated hls old position llD.d assumed that of Chairman, as did Vera yeara before. ~~ increase _near Congress thereby impairing their frecdilm and. ind~dence. As aptly apressed by Mr. Juatice Reyes, "The plaiil PUl']>Oae of (this safeguard) is that the ... ~~oners. once. appolnted and confirmed, should be · free to act as their conBC.ience demands, without fear of retaliation or hope of reward; that they should never· feel - the inducement of either the stick or the carrot. For only the man who bas nothJng to fear and nothing to expect ca11· be con_sidered truly independent." If the appointment of an Associate Commissioner to Chairman of the Commission Is legally feasible as abovestated, no plausible reason is· seen why the reception by him of the salary prescribed for the latter position would be unconstitutional. 15; ID.; ID.; TENURE OF OFFICE OF SUBSEQUENT APPOINT. MENTS BE MAD)! FOR A FULL TERM OF NINE YEARS; TO STRENGTHEN SECURITY OF TENURE OF THE INCUMBENT .-Much stress Is latd by Mr. Justice Barrera that if the appointment of Miraflor is sanctioned the effect would be to give to the President the privilege of appointing two members, if not :more, during his term of office which ts contrary to the Intent of the Constitution. But who should be blamed if such predicament should happen? Can 1t be helped if such is the inexorable rule of nature? This is the danger I envi_sioned when In the Imperial case I advocated tlic disregard of the staggering term in the commission membership and the adoption of the rule as expressed In our Constitution that subsequent appointments be made always for a full term of nine years. If that rule is adopted there would be less occasion for the danger now dreaded by the minority to happen, whUe we would strengthen the security of tenure of the incumbent. But ·my opinion was overruled by the majority and the same i8 now the law of the Case. We have no other altemaUve than to abide by it. )illil: 30, 1!163 · That being so, the only position to which petitioner ·herein. •Genaro Vis8rra, could be appOinted was that formerly oc,.. · cupied by Garcia, the term of which would expire 1n June 1962, in accordance with the precedents laid down in the cases of Republic vs. Imperial, 51 O.G., 1886, and Naclonalista Party vs. Vera, 85 Phil., 126. 19. ID.; ID.; ID.; CONSTITUTIONALITY OF THE PROMOTION OF DR. GARCIA CANNOT BE INQUIRED INTO FOR HE WAS NOT PARTY TO THE PETITION.-The dissenting opinion contended. that, Garcia's· promotion was null· and void because it was violative of the constitutional prohibition against reappointment (Art. X, Section 1), and if It was null and void, then petitioner Vlsarra was validly appointed for the "nine-year term (until 1968) pertaining to the position left by Chairman Carag in June 1969. HELD: It is not in the present case, to inquire into· and decide the constitutionality of the a'ppointment of Garcia. It Is not one of the issues raised by the parties. Garcia is not a respondent, indeed, had already retired from the service when the petition here Was filed; and whatever might be said on ·the point could be nothing but obiter dictum, unduly relief upon to support an opinion in favor of a party who does not contest such appointment. By the same token, I do no find il necessary to concur, for purposes of the instant petition, in mJ categorical affirmation of the validity of the promotion of a Commissioner to Chairman although the question seems to have been set at rest by. the Vera case. 20. ID.; ID.; ID.; GARCIA'S APPOINTMENT AS CHAIRMAN PRESUMED V ALJD.-Since Garcia's appointment as Chairman has not been successfully challeni!;ed . in a proper quo Page J73 warranto case against him, it retains the. presumption of validity. The le~st that can be said is that he was a de facto Chairman during his incumbency, the tenn of which position could not have been conferred on herein petitioner by the very same appointing power. IL would be unreasonable to assume that the President, in promoting Garcia. thought in this wise; that his appointment being null and void anyway, he neither filled the vacancy left by ex-chairman Carag nor assumed the term thereof - from 1959 to 1968 - for which reason, therefore, they were given to Visarra instead albeit only as Commissioner. CONCEPCION, J., Dissenting Opinion: 1950, the end of Lopez Vito's original term," and that "a vacancy, therefore, occWTed on that; date that Vera could 21. ID.; ID.; TERMS OF OFFICE OF THE FIRST THREE COMMISSIONERS; OF THE OTHER COMMISSIONER.-Although 2:1. applying the "rulings" laid down in the first part of the decision - to the effect that the terms of the Clrst three Commissioners on Elections Should commence simultaneously · no longer flll, since his reappointment ·was expressly prohibited by the Constitution." Indeed, by June 20, 1950, De Vera had been in said Commission for a little less than five (5) years since his origlna.l appointment on July 12, 1945. Hence, he could still be reappointed for a tenure of over four (4) yea.rs more, under said opinion of Chief Justice Moran. Accordingly, such opinion was, In effect, repudiated bJ seven members of this· Court in the Imperial case, namely, Justice Reyes (J.B.L.), who penned the decision therein, and Justices Pablo, Bengzon, Monte·rnayor, Jugo, Labrador and the writer hereof, who concurred in that decision. ID.; ID.; PROHIBITION AGAINST REAPPOINTMENT IN THE COMMISSION; REASONS OF THE CONSTITUTIONAL PROHIBITION.-The provision of the Constitution prohibit· ing reappointment in the Commission on Elections has for its purpose to bolster up the Independence of said Commission, in the same manner as the constitutional prohibition of reappointment of the Auditor General seeks to promote the independence of the Ganeral Auditing Office. The wisdom of such prohibition or its efficacy to achieve said purpose is immaterial .to the interpretation or appJication of the law. The important thing is that the fran1ers of our Constitution con;;idcred the feasibility of reappointment as a factor that may adVersely affect the independence of the Commission on Elections or, at least, thC popular reliance or belief in its independence. with the organization of the Commission on Elections. under Commonwealth Act No. 65.7, it was, likewise, held that the terms of the other members thereof shall begin, not on the date of their appointment or asswnptton of office, but uPon the e.z:piration of tlte term of their. respective predecessors in office, consistently with the "deliberate plan to have a regular rotation or cycle in the membership of the Commission, by having subsequent members appolntable only once. every three. years. 22. ID.; ID.; IMPERIAL CASE CANNOT JUSTIFY THE APPLICATION OF THE PRINCIPLE OF STARE DECISIS ON THE · VALIDITY OF DE VERA'S APPOINTMENT.-The decision in the I:.mperial case cannot justify the application of· the principle of 1tare decisls on· the question of ·the validity of De Vera's aforemehiioned appointment ·and on the cohsequcnces thereof. Whatever had been said in connection therewith, in the Imperial ease, was - considering the explicitly hypothetical nature -of ts predicate ....,- merely an. aside, ~Qd, hence, an obiter dictum, or ~ utterani:e made only to .avoid giving the erroneous impression . that tbe Court had QverJooked De Vera's. appointment as ChaiJ;1Dan of the ComJlllssion and that of Rovira as member thereof i.n deter~ining the beginning and the end of the term of RSP9ndents Imperial and, Perez. 23. JD.; ID.; MAJORITY OF Mt<MBERS OF·SUPREME COURT PARTICIPATING IN THE IMPERIAL CASE NOT IN FAVOR OF OPINION OF CHIEF JUSTICE MORAN REGARDING REAPPOINTMENT PROVIDED l"ERM WILL EXCEED 9 YEARS.-What is more, our views in the lmperial case indicate that a majority of .the members of S~preme Court who . participated therein were no& in (avor or t~e opinion of Chief Justice Moran, to the effect that "reappointment is not prohibited wtien a Commissioner has held office for, say, three or six years, provided his term will not exceed nine years in all". Thus, it was declared, in said case, that Commissioner Rovira - appointed on May 22, 1947, to fill the vacancy created by De Vera's assumption of the Chairmanship, "if'' hls appointment thereto were "at all valid". - "could only fill out the balance of Vera's term, until June 20, 1953, and could not be reappointed thereafter!' Considering that Rovira had been served only a little over six years, this statement necessarily implied a rejection of said oplnion of Chief Justice Moran. And this is \\'bf Mr. Justice Padilla, who concurred ln that opinion, dissented from this phase of the majority decision in the Imperial case. 24. ID.; ID.; ID.;-The majority view therein, as regards de Vera's tenure as Chairman of the Commission on Elections - "if" his appointment as such were "at all valid" - is, likewise, inconsistent with said -opinion of Chief Justice Moran, for -we, similarly, -declared in .the Imperial case, that De . V-era's tenure as flUCh Chah:man, "expired .x.x x on June· 20, 26. ID.; ID.; VITAL ROLE OF THE COMMISSION ON ELECTIONS IN OUR ~OLITICAL SYSTEMS.-But neither. ·must we underestimate the vital role that the Commission on Electli:ms plays in our political system an~, hence,. its transcendental impact upon our life· as a republican State. Nor should we overlC!ok the passion; f_ire . i;and, sometime~, fury . with which our election campaigns are undertaken. "In the · cont.ext of this backgro~nd,_ and of the ~ndi~ions ptt\'ail~ng in· many parts of qur country, it is extremely e;sseDtial to the healthy growth of our _faith in ·and adherenCe ~ de. mocr'atic principles, practices and processes that all posSiblc d6ubta or causes for doubt on the independence· and hn_pai-ti~lity of the_ Commission on Elections ·be avoided: OT. ID.; ID.; CONSTITUTIONAL PROVISION PROHIBITING 11.EAPPOINTMENT; DRAFTED AND PROPOSED BY THE NATIONAL ASSEMBLY; COMPOSING MEMBERS OF GREAT WEALTH OF EXPERIENCE; INDEPENDENCE OF THE COMMISSION; PURPOSE OF PROHIBITION FOR REAPPOINTMENT.-Then, too, the constitutional provision prohibiting reappointment in said Commlssion is too plain and simple to admit of any qualification.' The- proviSion Wall drafted and proposed by the then National Assembly, ~t of whose members had a great wealth · of experience, not only in wordly matters, in general, but, also, in the field ot practical politics, in particular. What is more, the prohibiUon tended to limit their own authorlty in the exercise of their prerogatives, as members of the administration, in connection with the organization of the constitutional agency that would supervise their own election or hid for reelection or the election of their own followers or successors In the political arena. Their failure to qualify said prohibition must be construed, therefore, aa an expression of their deliberate intent to make no exceptions thereto. 28. ID.; ID.; VISARRA'S APPOINTMENT WILL EXPIRE ON JUNE 20, 1968.-In conclusion, when petitioner Visarra was appointed on May 12, 1960, there were two (2) members of lhe Commission on E.loctions, namely, ·Commissioner Garcia, whose term was nin~ (9) _years, from June ?.l, 1953 (upon the explcatlof\ ot De Vera's original term, partly served by ~ovi~a). to June ,)?_Q,, .. :J,.~;2:. --~d ·.C.onin;lj§sic;mer )Jril_l~tea, , whose term: is nine (9) years, 1'rom June 21, 195b (upon the ·.expiration of Perez's term) to June 20, 196i3. Theft was, ~rdlngly, only one ( 1) poeitlon vacant, at the time of Visarra's appointment that was vacated by Carag, on June ro, 1959, upon ·lhe expiration. of lmperial'S original term; part of which - from May 19, 1958 - was served by Carag. Hence, Vlsa.rra was appointed for that vacant position, whose subsequent term of nine (9) years began on June 21, 1959, to end on June 20, 1968. And thb was the Intent of the appointing power, and, hence, of the Commission on Appointments which confirmed his appointment, for the same specified that it was "for a term exr)iring June 20, 1968." 29. ID.; ID.; PROMOTIONAL APPOINTMENT OF COMMISSIONER GARCIA CANNOT AFFECT TERM OF VISARRA; REASONS.-The promotional appointment of Commissioner Garcia on May 12, 1960 as Chairman of the Commission can. not affect such term of Visarra because: I) that promotion violated the constitutional injunction against reappointment; 2) the terms of the Chairman and members of the Commission - after the first three (3) members (including the Chairman) thereof - are for nine (9) years each, and the Constitu&lon makes no distinction as to "llne of succession," pertaining to each office; and 3) in fact, sa.id. promotion wa.s "for a term expiring June 20, 1962," which was Garcia's teim when he was appointed member or. the Commission, 80 that he did not shift to the line vacated by Carag, the·next . term of which was from June 21, 1959 to June 20, 1968, which was the ter.m given to and is fllled by petitioner Visarrn. What is more; this view was confirmed by the appointment of Juan Borra on August 2, 1962, as Chairman of the Commission on Election, "£or a term expiring on June 20, 1971," which is the term followina; that of Garcia, as member of said Commission. 30. ID.; ID.; RESPONDENT MIRAFLOR'S APPOINTMENT IS NULL AND VOID FOR NO VACANCY WHERE HE CAN •BE APPOINTED.-On October 29, 1962. when respondent Miranor was appointed thereto, there was, therefore, no vacancy therein. The three (3) positions in the Commission were then held: (I) by Borra as Chairman, for a term of nine (9) years, from June 21, 1962 to June 20, 1971; (2) by Visarra, for a similar tenn, from June 21, 1959 to June 20, 1968; and (3) by Brillantes, for an analogous term, from June 21, 1956 to June 20, 1965. Hence the appointment of respon. dent Miraflor is null and void. REYES, J.B.L., Dissenting Opinion: 31. ID.; ID.; RESPONDENT VI SARRA NEVER SUCCEEDED ASSOCIATE COMMISSIONER GARCIA; APPOINTMENT OF DR. GARCIA AS CHAIRMAN NULL AND VOID.-Petitioner Vi&arra was, and could only have been, valldly appointed in '1960 for a nine (9) year term (until 1968) to f.ill the only -vacancy created by the expiration of the term of ex-chair· man Jose P. Carag on June 90'; l959. Visarra newr succeeded Garcia. The reason is that 'the 1960 appointment of then Associate ·Commissioner Gaudencio Garcia to the post of Chairman of the Commission was null and void for being in violation of .Article X, section I, of the Constitution. 32. ID.; ID.; CONSTITUTIONAL PROTECTION OF COMMISSIONERS FROM INFLUENCES wmCH AFFECT THEM IN DISCHARGE OF THEIR DUTIES.-It is clear from the provisions of Sec. 1, Art. X, af the Constitution, that being acutely conscious of the crucial importance of the 1'unctions of the Commission on Elections to candidates for elective positions, and aware of the consequent pressures and influences that would be brought to bear upon the -Commissi6nets, the framers of this part of the ·cdnstitution sought .. .,,as ·much as possible .to shield lhe Commission members from ally "fQrcC or ili'tluenc;e that migh.t .llffect them in the dis· charge df ;i:herr dotie-s. 'Fo ·this cind, ·tltie Constitution not onl)t · disqualifif:d . the . C0mm,1s.Sioners from holding outside interests that might be affected by their official functions (section 3); it expressly protected the .Commissioners against danger of possib'e retriliation by (a) giving them a fixed term of nine (9) years not tenninable. except by impeach· ment, and by (b) PI"Qhibiting any diminution of their sala· ries during their term of office. ~3. ID.; ID.; ID. ;-The C,onstitution went even further: cogni· zant lhat human conduct may be influenced not only by fear of vindictiveness but also, and even more subtly and powerfully, by prospects of advancement, our fundamental law has likewise provided that members of the Commission on Elections (c) may not be reappointed, and that (d) their salaries may Dot be tncftased during their tenns. The plain purpose of all these safeguards is that the Commis~ioners, once appointed and confirmed, should be tree to set as their conscience demands, without fear of re· taliation or hope of reward; that they should never feel the inducement of either the stick or' the carrot. For only the man who has nothing to fear, and nothing to expect, can be considered tmly independent. 34. ID.; ID.; APPOINTMENT OF COMMISSIONER. GARCIA TO CHAIRMAN VIOLA TED CONSTITUTIONAL PROHIBITION AGAINST REAPPOINTMENT AND SALARY INCREASE.The ·promo lion of Dr. Gaudencio Garcia from Associate Commissioner to Chairman of the Commission, with the attend. ant higher compensation and requisites, violated the Constitutional prohibition against both R&ppolntment and salary Inca-ease. . If, by express mandate of the fundamental charter a commissioner can not be validly rcappointe«i;l not even to the same position that he has occupied, then, there can be 110 excuse for holding that he may validly be a.p· pointed again to a higher position wilhln the Coonmission. It is undeniable that a promotion involves a second appointment, i.e., a reappointment that is expressly forbidden by the Conll!itutlon. ' 3;. ID.; ID.; ID.; APPOINTMENT OF COMMISSIONER GARCIA TO CHAIRMAN NEVER LEFT HIS "LINE" TO PASS TO COMMISSIONER CARAG; CARAG'S LINE WAS LAWFULLY FILLED BY COMMISSIONER VISARRA.-lf the appointment of Dr. Garcia to chairman was null and :void, he never left his "line" to pass to that of Carag; and the one who lawfully filled Car.:ig's line was V~Jarra. The Supreme Court's decision in the case of Nacionallsta Party vs. Vera, 47 O.G. ~371, appears to have sanctioned the promotion of Commissioner Vicente de Vera to the Chairmanship. U will be noted, howe\'er, that the legality of that pramotional appointment was supported only by the votes of four (4) Justices: Moran, Bengzon, Paditla, and Torres. Justices Montemayor and Reyes concurred only in the result. A majorit_Y of justices agreed only insofar as ·it was held that the validity o( the Vera promotion could ·not be tested by a petition for a writ of pryhtbition, <lS prayed for by the petitioner 'Nacionalista Party, but by proceedings in quo warranto; «nd of course, this ruling is not applicable to the t-:.ise at bar, because Commissioner Gaudencio Garcia is no longer in office. in the subsequent case of Republic vs. Imperia·1, L-8684,, promolgated -0n March 31, 1955, the Sup· rcmc Court did not declare ·that Associate ·CommisSioner Vern validly succeeded former Chairman Lopez Vito; on the contrary, the Court openly expressed daubts abeut the validity of Vera',,; promotion when it stated that Vera's appointment to the Chairmanship, "if at all valid", could only hold for the unexph"ed tCI:m of his predeces~r. The Court did not elaborate on this doubt because it was not necessary for the purpose· of the doc:trine .laid down In that decision. 36. ID.; ID.; tD.; RUl:I'N'G IN THE OISE" ·OF ·N!\CIONAL1STA . P'A"RTY ·\'S. VEAA, "NlJt il"i"IIDING 1'RECEDEN't. "ON VALiDITY OF COMMISSIONER GARCIA'S PROMOTIONAL AP· suit of enabling the appointing power to do exactly what POINTMENT TO CHAIRMAN.-The ruling in the case of the Constitution plainly purporta to prevent _ the situation Naclonalista Party vs. Vera, 47 O.G. 2371, is not binding pre- where a President during his own term of four (4) years, cedent on the vallditf of Gaudencio Garcia's promotion may appoint, not one, not two, but aU the three memben from Associate Commissioner to Chairman of the Commis- of the Commission on Elections and practically on the eve sion on Elections, and that such promotion was done in of a presidential election. violation of the Constitution, a,nd, therefore, was ab Jnltlo 4 2. ID.; ID.; PROMOTIONAL APPOINTMENT OF A COMMISvoid. The logical consequence of such invalidity is that the SIONER TO CHAIRMAN CONSTITUTES NEW APPOINTvacancy in the line of succession of ex-Chairman Carag was MENT TO A NEW POSITION; REAPPOINTMENT PROHIfilled not by Garcia's promotion but by the appointment of BITED IN THE CONSTITUTION INCLUDES PROMOTIONpetitioner Genaro Vlsarra for a full nine (9) Year term. AL APPOINTMENT.-The majority opinion is significantly 37. ID.; ID.; ID.; COMMISSIONER GARCIA'S PROMOTIONAL silent on the point raised during our deliberations tha,t the APPOINTMENT TO CHAIRMAN BEING UNCONSTITUTION- Constitution prohibits reappointment. Since it is the theory AL AND VOID, HE CAN ONLY BE REGARDED AS DE of the majority that such a promotion tO the Chairm,anship FACTO CHAJRMAN.-Gaudencio Garcia's promotion being produces the effect that the one appointed leaves his own unconstitutional and void, he can only be regarded as de line and term and assumes those of the Chairman which are facto chalrman from May 1960 to June 1962, but without entirely different and distinct from h1s own original posileaving the third line where he was. When his own tenn lion and term, such a promotion must constitute, in the expired in 1962, he was succeeded in the same third line by full legal sense, a new appointment to a new position in the the present Incumbent, Juan V. Borra, legally appointed for Commission. Reappointment prohibited In the Constitution a nine-year term, June 1962 to June 1971. ls not limited to reappoiniment to the same identical posi38. ID.; ID.; PRESENT CONSTITUTION OF THE COMMIS- lion in the Commission. It includes promotional appolntSION.-The present constitution of the CommissiOn is, there- ment, for the evil Sought to be avoided by outlawiilg ·reap. fore, as follows: pointment 1.s obviously even greater in the case of prcm.oFirst Line: Visarra (vice Carag), 1969 to 1968; tional appointment. · Second line: Brillantes, 1966 to 1965; · 43. ID.; ID.; MAJORITY DECISION SANCTIONS SEPARATION Third line: Borra (vice Garcia) Chairman, 1962 to 1971. OF TENURE FROM TERM OF OFFICE.-The majority deci·Hence, Miratlor's· appointment is void, since there Is no sion sanctions in effect the separation of tenure tram. the vacancy in the Commission, and there will be none until tenn of office. Indeed, it held that when Dr. Gaudencio 1965, when the term of Brillantes expires. Garcia was promoted to the Chairmanship, he left his term 39. ID.; ID.; t.WORITY DECISION PERMITS PRESENT CHIEF ~:~'!i:~~h~::ii:x!~n!W:~ ~:;, a~~S~k S~~e te;n~,~: EXECUTIVE TO APPOINT NOT ONLY TWO BUT THREE went on to say, was appointed vice Garcia, Visarra ~ COMMISSIONERS.-By sanctioning promotion of one M- to be member upon expiration of Garcia's original term in soclate Commissioner to the Chairmanship, the majority de- June. 1962. Likewise, Garcia, as Chairman, ceased as such cision enables a President to appoint two Commission'.ers in June, 1962, although the term he assumed. expires In (the one promoted and the replacement tor the latter) at June, 1968, since his tenure can not be more than 9 years. one time whenever a chairman· fails to complete his own term. Thus, according to the majority opinion, Visarra ceased be~ 111..ls despite the avowed intention of the constitutional plan Ing a member because of the expiration of his term and of staggered terms, so that no President should appoint more Garcia ceased to be a member because of the expiration of than one Commissioner, unless unavoidable. As circumstances his tenure. This, to me, is absurd. You can not separate would have it, the majority permitB the present Chief Ex- tenure from the term of office. The tenn determines the ecutive to appoint not only· two but three Commissioners; tenure. Without the term of office there is no right of Borra and Miraflor in 1962, and the successor to Commls- tenure. It is this absurdity that produces the simultaneous sioner Brillantes, whose tenn expires in June of 1965. ending of the incumbency of two members, thereby di~ B~ERA, J., Dissenting Opinion: 40. ID.; ID.; PRIMORDIAL CONCERN IN THE CREATION OF THE COMMISSION; IT MUST BE COMPLETELY INDE- 44. PENDENT AND FREE FROM ALL INFLUENCES AND INTERFERENCES . ....,.! take the view that we are all agreed, including the :majority, that the Constitution's primordial concern in the creation of the Commission on Elections, is to make and keep that body as completely independent and free, as Is humanly possible to provide, from all influence and Interference in the discharge of its delicate and important mission of insuring free, orderly and honest elections, As one of the m~s of insuring and preserving that independence, the Constitution has adopted the staggered manner of appointing the three members thereof at stated intervals of three years from each other in order that no one President (except w~en reelected) could appoint two members. 41. ID.; ID.; MAJORITY DECISION PERMITS A PRESIDENT DURING HIS TERM OF FOUR YEARS TO APPOINT, NOT ONE, NOT TWO, BUT ALL THE THREE MEMBERS OF THE COMMISSION.-! am compelled to disagree with my colleagues In ~he m.aJority in adopting, albeit unwittingly, an interp~tatlon that P~i:Se1Y pc~~ the miscb.ievo~ rerupting the three-year staggering procedure contemplated In the Constitution. ID.; ID.; MAJORITY OPINION IF FOLLOWED WILL SANCTION, THREE YEARS LATER TWO VACANCIES W0ULD OCCUR AT THE TIME.-For, under the sanction of the majority opinion, if this practice is followed (that is, the promotion of one of the members of the Chairmanship when this becomes vacant by expiration of its tenn, so that ~hree years later two vacanciCs would occur at the same time, that of the Chairman because of the ending of the tenure of the one promoted, and that of his successor as member, because of the expiration of the term he left) - which practice is surely to be followed because of its consequent political advantage - then inexorably every nine years the same anomally will occur and recur regularly, setting at naught the deliberate plan of staggered. appointments ordained by the Constitution and consistently recognized, reiterated and reinforced in all the decisions of this Court on the matter - a veritable stare declsls. lf there is one discernible in these cases, notably the Imperial c3se relied Upon by the majority, where the entire raUo decldendl repeats with emphasis "the clear intention of the Constitution to have memben of the. Commission appointed. at re~lar 3-y~ i.D:tervaJs.'• · l.AWYllRS .!PUjlNAL 46 .. ID.; ID.; COMMISSIONER PROMOTED S rAYS IN HIS QwN LINE RETAINING HIS OWN TERM AND TENURE 'fOGETHER.-The majority opinion appears to have adopted . 8 defeatist attitude. The minority are not that pessimistic. For one, there is nothing so absolutely and completely untenable in the proposition offered during the deliberations that promotion to the Chairmanship does not necessarily me8n a jumping from one line to another. The member promoted stays In his own line retaining bis own term andl tenure together, although in his changed capacity as Chairman. No vacancy is thereby artificially created requiring a new member to be appointed. It may thus be even said that there would then be no reappointment in the sense prohibited by the Constitution. As a result, there would be no disturbance in the lines of succession, each term terminating in .the staggered manner provided in the fundamental law. 46. ID.; ID.; MINORITY OPINION FULFILLS ALL CO~STITU· TIONAL PRECEPTS AGAINST REAPPOINMENT; AND IN· CREASE OF SALARY DURING TERM OF OFFICE.-The minority opinion frankly and fotthwithl;y meets and fulfills all the constitutional precepts against reappointment, increa.Se of salary during the term of office and disruption of the staggered system of appointments. It sustains the dissenting opinion of Mr. Justice Bautista in the Imperial case that all appointments to the Commission should be for the full 9-year term, unlike the majorit;y opinion which hC now supports which shortens the full term of 9 years of Visarra. Jn· fine, the view of the minority as expressed in the dissenting opinion of Mr. Justice Re;yes is the onl;y interpretation that gives meaning and eHect t.o the integral concept of a trulJ independent Commission on Elections. 41.' ID.; ID.; INTERPRETATION OF MAJORITY IS WRONG.; iT. SHORTENS TENURE OF BORRA, AND EXTENDS. TENURE OF MIRAFLOR. - The interpretation of , the ni8,1ority, in my optnion, iB not only wrong but inQ provoke other controversies, because although it upn0Ids the vaiiditJ of the appointments of Borra and Miraflor,· it shortens the tenure of Borra from 1968 to 1971 con· tiary to his appointment, and extends Mirallor's tenure be. yond the expiry date stated in his appointment from 1968 to "}971. There ls thus created another constitutional problem, can· Mlraflor continue holding office beyond 1968, expiry date stated in his appointment, without any further action on the part of the appointing power but on the strength merely of the declamation to that eHect in the majority op~on. 48. ID.; ID.; MAJORITY OPINION EXTENDS COMMISSIONER MIRAFLOR'S TENURE OF OFFICE TO 1971.---0n the other hand, can the President now amend Miraflor's ad-interim appointment by· inserting therein 1971 as the expiry date of his term and tenure, to conform with the majority opinion, in spite of the fact that Miraflor has already accepted-his appointment with an earlier date of expiration and after actually taking his oath, assuming the office, and diaCharging the functions thereof? If the answer to these ques-tions is 1n the negative, as I believe it must be, then another vacancy will be created in 1968, not because of the operation of the Constitution, but as consequence, although unintended of the majority opinion. PAREDES, J., Dissenting Opinion: 49. ID.; ID.; DECISION OF A HARD CASE UPON APPARENT EQUITABLE GROUNDS FREQUENTLY RESULTS IN A BAD LAW.-The decision of a hard case, upon apparent equitable grounds frequently results 1n a bad law. In my Judgment, this is such a case, and the result reached in the majority, opln1on is amiss. SO. ID.; ID.; DECISION ON A POINT NOT DIRECTLY RAISED WILL NOT PRECLUDE ITS CONSIDERATION IN A !ATER CASE.-A decision of the Supreme Court on a Point not directly raised is still open and will not preclude its coDSlderation in a later case in which lt is directly presented (Fajardo v. deJ Rosario, 36 Phil. 159). 51. ID.; ID.; STATUTE ACCEPTED AS VALID AND APPLIED IN MANY CASES WHERE ITS VALIDITY WAS NOT RAIS· ED; CONSIDERATION OF ITS VALIDITY IN A LATTER CASE WAS NOT RAISED.-"The fact that a statute has been accepted as valid, and invokCd and applied for many ·years in cases where its validity was not raised or passed on, does not prevent a court from later passing upon its validity where that question is properly raised and presented" (MeQirr v. Hamilton and Abreu, 30 PhU. 563). 52. ID.; ID.; RE·EXAMINATION OF THE DOCTRINE !AID DOWN IN IMPERJAL AND VERA CASES.-And even granting that we :may have had enunciated a doctrine in this case, that circumstance, a withal, does not preclude Us from re-examining the same and rule accordingly. · 53. ID.; ID.; OVERRULING DOCTRINE !AID DOWN IN AN EARLIER DECISION.-The doctrine of an earlier decision wlll be overruled ¥there it seems proper to do so (10 Phil. Digest p. 282, citing Jayme v. Gamboa, 75 Phil. 479). 54. ID.; ID.; MAJORITY DECISION; NOT DOING JUSTICE TO THE RULINGS !AID DOWN IN THE IMPERIAL AND VERA CASES; SUBVERSION OF THE INDEPENDENCE OF THE COMMISSION ON ELECTIONS.-TQ.e majority opinion, to my mind, far from doing Justice to the rulings laid down in the Imperial and Vera cases, does violence to them and seek to foster the circumstances which the constitutional provisions precisely wanted to avoid - the subversion. of the Independence of the Commission on Elections. DIZON. J., Dissenting Opinion: 55. ID.; ID.; RE-APPOINTMENT DEFINED.-The term reappointment generally means. a second appointment to one and the same office. The occupant of an office obviously needs no such second appointment unless, for some valid cause, such as the expiration of his term or resignation, he had cea.sed to be the legal occupant thereof . 56. ID.; ID.; ID.; CONSTITUTIONAL PROHIBITION AGAINST RE·APPOINTMENT OF A COMMSSIONER CONSRTUED AND APPLJED.-The constitutional prohibition against the reappointment of a Commissioner refers to his second appointment to the same office after he has held it for nine years. Consequently, if after holding office only for three years a Member of the Commission on Elections legally ceased to be such because of resignation, for instance, his re-appointment to the same office would not violate the Constitution, provided his term will not exceed nine years in all. This would naturally apply to the case of a Member who, under somewhat similar circumstances, is merely promoted to chairman. 57. ID.; ID.; ID.; - Let us now apply this principle to the case of former Member and later Chairman, Gaudencio Garcia. As stated hereofore, he was originally appointed as Member In May 1955 for a term e]f:pirlng on June 20, 1962 to succeed Leopoldo Rovira. who died in office in September, 1954. On May 12, 1960-, (One year and eleven months before the expiration of his term of office), he was appointed Chairman expressly to hold office only up to June 1962. Why was this so expressly provided? It could not have been for any reason other than that, whether as Chairman or as a Member, he shall not serve for more than nine years, as provided for in the Constitution. 58. ID.; ID.; ID.; WHEN COMMISSIONER GARCIA WAS APPOINTED CHAIRMAN, HE DID NOT .CEASE TO BE MEMBER OF THE CoMMISSION; APfOINTMENT. OF MIRA· IAWYJi!RS )O.U&NAL -Page .. 1V7 · FLOR WAS VOID.,--When Gatcia was appointed Chairman, did not cease to be a Member of the Com.TDisslon. The only effect of such appointment was to promote him to the Chairmanship; to add to his condition as Member, that of Chairman. In other words, his appointment as Chairman did not at all affect or disturb his membership in the Commission, albeit his rlght to act as Member and Chairman was limited up to June 1962 in obedience to the Constitution. It appears clear, therefore, that when petitioner Visarro was appointed Member on May 12, 1960, Garcia's original "position as Member was not vacant, the only existing vacant position at the time being that formerly occupied by Carag wttose term and tenure ended In June 1959. As a result, on '.May 1960, Visarra was and could have been legally appointed only to fill the position vacated by Carag, for a term beginning June 1959 and ending in June 1968. Theretorc respondent's appointment in his place in November, 1962 is void. ~- ID.; ID.; ID.; THEORY OF THE MAJORITY: WHEN A MEMBER IS PROMOTED TO CHAIRMAN, HE LEAVES HIS 'OWN LINE AND TERM; FLAW OF THE MAJORITY OPI· NroN.;. .... :111.e theory of the majority - that when a Member (1ike 'Garcia) is promoted to Chairman (as Garcia was), he leaV'es his own nne and term and assumes those of the Chairman he was replacing, entirely distinct and separate Mm his own original position and term, and that upon- assi:amption of the Chairmanship his position as Member becoint!S vacant - s11ffers fatally from this flaw: it assumes 'C~ly that th·e Chtlnnanship of the Commission is a&Wlething 'entirely distinct and separate from Membership lhereill) 'When It must be obvious to everyone that the ChtllrmanshiP is but incidental to Membership; that · the Chairman is as ·such a Member ·of the Commission as the other two; that, under the Constitution, he can not be chairman at all without being a Member. till. If>.; JD.; ID.; CHAIRMANSHIP IN THE COMMISSION IS ~ INCfDENT'OF MEMBERSHIP; ONE OF THE THREE MEMBERS SHOULD BE CHA:IRMAN.-In creating the Cominlssidtl al Elections, the Constitution provides thai it shall be composed "Of a Chairman and two other members'' (Bo1d supplied), and that '"Of the Members of the Com· mission first appointed, one shall hold office for nine years, Bother for six years. and the third for three years." (Bold -supplied). Clearly inferable from all these provisiolls is that the Chairmanship in the Commission is notlling more than an incident of° Membership therein, the Constitution providing in ·this connection that one of the three Members should be the Chairman. If It is so, I fail tb perceive any force at all in the majority's view that when an inclimbent Member is promoted to Chairman, he leaves his own original "line of succession" to enter "the Une of succession of the chairman". 61. ID.; ID.; ID.; STARE DECISIS SHOULD BE ADHERED TO 1'0R THE SAKE OF UIGN'IFl'ED AND STABLE JUDICIAL OPINION; WHEN IT SHOULD NOT BE FOLLOWED.-True, the doctrine of stare deelels should, as a rule, be adhered to for the s<fke of dignified and stable judicial opinion, but certanly this is no ·valid Justlfkation for stubbornly and desperately clinging to an opinion even after it has been found "to be wanting. Courts of Justice should be the last to consider themselves hopeless and irretrievably governed by the "dead hand of the Past". ostrichlike - bury their head In the sand to avoid · seeiiig the light, nor seek refuge behind the defensive ·shield of stare declsls to resist change, even when change a:p¢irs to be imperative. DECISION The parties hereto are liti~a.ting over the position of ·-third member of the Commission on Elections, which according t!J the Constitution, consists of one chairman and two members. Actual chairman is the incumbCnt Hon. Juan V. Borra; the· undisputed incumbent member is Hon. Sixto Brlllantes. . In establishing the Commission, the Constitution provided that the Commissioners shall hold office for nine year.s and may not be reappointed. However, it also provi.ded that ot .. those first appointed, "one shall hold office for nine years, another for six years and the third for three years." Since 1941, changes occurred In the membership ·of the Commission. And in March 1955, in a similar dispute [Republic vs. l:mperlal](a), we had occasion to discuss the terms of office and the tenure of said officers. We held that the term of the first chairman (Jose Lopez Vito, 9 years) began on June 21, 1941, and ended on June 20, 1950(b); that the term of the ~nd member (Francisco Enage, 6 yenrs) began on June 21, 1941. and ended June ?.O, 1947(b); and that of the third member (l years - left vacant) began on June 21,. 1941 to terminate June 20, 1944. Proceeding further we held that when in 19~5 Vicente de 'vera was appointed member, he must have been· placed. i~ theonly vacant position at that time, namely, the position whoae term expired In June 1944 (third member) - and ~t he must be deemed to have been appointed to a nine-:yea.r : tenn (expiring June 1953), whjch is ·the term given by law. to all cornmissloners(c) appointed after June 20, 1944. Then. upon the first vacancy by expiration of the initial 6-year term (second member) and the cessation of Commissioner Enagc tn November 1949(d), Rodrigo Perez was appointed (December 19"49) to the nine-year term expiring in June 1956. Afterwards, irt May , 1947, chairman Jose Lopez Vito died before the expirat"ion of his full term. To succeed him as chairman, Commissioner de Vera was appointed - which appointment, we held, could only be for the unexpired period of Lopez Vito's original term, i.e., up to June 20, 1950. To fill the vacancy of third ~ber arising upon Vera's assumption of the chairmanship, Leopoldo Rovira was appointed member on May 22, 1947, and his tenure of office could not legally extend beyond that of former· Commissioner Vera: June 2-0, 1953(e). Upon expiration of Chairman Vera's term on June 20, 1950, Domingo Imperial assumed the office wlth a term due to expire on June 20, 1959. Thus the line of succession, terms of office and tenure of the chairman and members of the Commission as of 'Man:h 196'5, may be outlined as follows: - · ··~;;c7:.i~t -- ~ Oli1~"'Term· ·~ Tmu~-.,... · ....., - -·-------Chairman (9-yr. original) Lopez Vit~ June 21, 1941 June 19+1 .to to May 1~4'1' v. Vera June 20, 19:.\0 May·1W4'7 to June 1.150 D. Imperial June 1950 June -1900 to to June 1959 June 1969 62. JD.; ID.; ID.; CHANGE MEANS PROGRESS; COURTS ~~~ ~~·~:~u?~zbe1~~~sidered to have began in the e;es of tb~_law.. MUST NOT FEAR CHANGE, NOR SEEK REFUGE BEHIND (c) Except when vacancy occurs by reason Of. death, res1gnaDEFENSIVE SHIELD OF ·s'rARE 'llE.ClSIS TO RESIST tion·or disability - In which cases the appomtee ma:y~serve Gl'ANGE . ....iehattge rtteans ftrog'~s. an:d •is 'the l'aw of life. ::a:)P to ·the end ·of the tortn. (·~epubll:~· vs. ·lnlperial to'U.tts, ·th~Ote, .omwt no't ·rear Chan~. tldr -ever ·consider (d) HGld over .-as -de facto (,1~47-1949) ~ decMOti ~lls \peiltect lbeydri(l "chang-e; ~Y must not - (e) NatldtnOls'fa "Party vs. ~Bll\.ft~tta. '47 Of. 'Gaz. '236'6. hge 'its · '1.11.'W\d!RS 'jleilit'N\u. 'i!'Une''~; ·t'63 8eairid Member (6-yr. original) June 21, 1941 JUne 1941 F. Enage to to June 20, 1947 June 1947 (x) June 1947 Dec. 1949 R. Perez to to June 1956 June 195G Third Meml;>er June 19.tl (S-yr. 9riginal)~ Vacant to June 1944 July 1945 Vera .Tune 194.4 to May 1947 to May 1947 Rovira (x) June 1953 to June 1953 (x) hdd office June 1947 to November, 1949 as de facto. (x) held office June 1953 to September, 1964 as de facto. To repea\, Lhis was lhe legal slate of affairs ln the Commission on Elections in March 1955 when our aforesaid decision w~ promulgated. (ee) ]llereafter, in May 1955, the President appointed Gaudencio G~ia: It member for a term expiring June 20, 1962 to succeed LcopoldO Rovira, who died in Qfftce in September 1954(0; in . DecemtJer 1956, Slxto 8rillantes wu appointed member to succeed Rodrigo Perez; and in May 1958, ·Jose P. Caras was· appoinled·,,o succeed Domingo lm.perl•l (resigned) aa chairman; Qmtil(s,term and ten.W"C ended in June 1959; and on May 12, 1960,. the President appointed G~rcla as Chairman t.o hold office up to June 1962 and the latter a&9Wl)ed · the ·chalnnanshltr ~~ conllllgly, On-.May 12, 1960, Genaro Visarra, was also appointed mem~ of the Commiasi1;m. Then Jo August 1962, Jua,. V. Borra W&$ ~ chairman to suec~ Garcia, whose tenurv expired iD J~.1962. And in November 1962, the President appoiQ.ted MirafkM= !1S member, on tbe assumption that Visarra's tel'.'Jl of office had expired in June 1902. Jn this suit, Vlsarra challenges the right of Miraftor to hold (as &gains' him) the office of member. It was· admitted at the oral argument that if we follow the holding and the impHcatlons of our decision in Republic vs. Imperial, · ~. the respondent Miraflor must be declared ·the Winner.· . ·Indeed, in said decision, we established three lines of succession, to wit: (1) that of the chairman; (2) that of the second member, Eoage; and (3) that 01' the third member (see outline ·above). · Gatda -in May 1960, was 1n the third line of succession, his term of office and tenure to expire in June 1962. When he was appointed chainnan in May 1960, he left that line and entered tile line of succession 01' the chairman, with his tenure still to expire on June 1962(g). Therefore, upon his appointment, Visarra lDCftly occupied the position vacaled by Garcla(h) whose ftud term of office (third member) expired in June 20, 1962. (hh) . Visana's lat.er appointment(!) could neither effect nor extend such fixed term of. office (of Garcia in the third line). Visarra claims, however, that when Garcia was appointed ch."lirman, he did not leave his position in the third line of succession but continued therein; so that the vacant position which (~) Omitting other unimportant circumtanees. (.f) Rovira was holding over as de facto, the term of his office having.expired June 1953. (g) Garcia's appointment expressly stated that it would expire June 1962. (b) In fact he took his oath only on October 13, 1960, after Garde had .qualified 45 chairman .. C)l-h) \Jp .to the ~~d of the terq:i only. See footnote (c). (i) Fixing a term up to June 1968. · he (Visarra) fill~d waS the one l~ft by C<;arag, the f~d ~ of which is d~e to e;icpire in 1968; and that, CQnS;CqµentlJ, ~orra should be deemed to occupy ~~ po,sitlon left by Garc:ia· in thf: third line. The flaw in the argument ~s that it contradicts nur ruling in Republic vs. Imperial. sqp0t .. There we held tb~t when Commissioner ,V~ra was appc;>int~d Chairm,an, h• ldt the ..... line of succession to en,ter tlle first, viz, th it of the Ch~rm~n; and upon his assumption of the Chairmanship, his pos~tion M member became vacant. We ~ow fail to perceive any y41-1ld reason to change our vieWs on that pOint, according to which Garcia must be held to have •ett his Une to assume the position of Chairman. Stare declsls - not mere obiter dictum . In other words, and graphically to demonstrate the three lines of succession continuing after March J955 - aa we them: lncumbtnt <lflloe TOl'J!I 'f~ure Chairm"n (9-yr. original) June 1950 May 1958 Ca~g to to June 1959 June 1959 Gardil. June 1959 May 1960 to to June 1962" Borra June 1968 Aug. 1962 to June 1968' 2nd Member (6th-yr. original) June 1941 Dec. 194~ Perez to to June 1966 June 1956 June 191§6 Dec. 1956 Brillantes •to to June 1965 June 1966· · :ird Member ca~-Yr. ~r1giri::11> Garia June 195~ ll!ay 1~;~ tg to M~y 1P~Q ·visarra June .196~ May 196P to JOJru: 1~2 MiranO~ June 196~ Oc\. IP6~ to to Jun~ 1971 June 1971 NOT~: For convenience, date. of appointment - not qualificatjon -. is noted here. It is true that Visarra's appointment was cxte~ded expressly for a term of office ending June 20, 1968; but as explained in our decision of Republic vs. I:mperial, such appointment c0utd only be for a position whose term would expire in June 1962, because that was the only vacant position, inasmuch as the term due to expire in June 1968 (for the chairman) was then occupied by Chairman Garcia.(J) As a result of the fore°golng, and to be specific, we declare: Chairman Borra occupies the position of Chairman with a tCrm expiring June 20, 1968, and his tenure beginning August i962 ends on June 20, 1968(k); the position of Member Brillantes carries a term that expires June 20, 1965 and his tenure should end on the same date; and the term for the position of Member Miraflor expires June 1971, his tenure expiring on the same date. It may be necessary to add that although the appointment (j) When Garcia assumed the chairmanship, he ipso facto resigned his position as member; and the appointment of Visarra to membership could only be for· the unexplr.ed balance of the tenn pf member (Repu,bli~ vs. Jmperial, supra) up to June 19.Q2. (k) ~~!~~~s1i~~~~ his. ~p_poin~e~t fur:ed. J~~ ~I), ~971 as exof the chairman or of the member (subsequent to those origlnallf appointed in the nineteen forties) is generally for a tenn of nine years, his tenure can not extend beyond the fixed term for the position he is supposed to occupy()) in the fixed line of succession we have heretofore Indicated, in accordance with the evident intention of the pertinent Constitutional provisions. Wherefore, in Jtne with the foregoing considerations this quo warranto proceeding should be and is hereby dismissed. No costs. Padilla, Labrador, and Regala, JJ., concurred. BAUTISTA ANGELO, J., concurring: The President appointed Cesar MJraflor in 1962 a member of the Commission on Elections to fill the position left vacant by Genaro Visarra whose term expired in June, 1962, in keeping with the ruling laid down by this Court in Republic v. Imperial.I 1bis ruling ls to the effect that subsequent appointments to be made aftet the· first members appointed in the Commission who were to hold office with a staggering difference of three. years from each other as required by. our Constitution can only be for the unexpired portion of the term of the predecessor of the appointee .in order to prevent a President from making more than one appointment during his term of office to the end that the member may preserve and safeguard his freedom and- impartiality in the performance of his duties. Thus, we declared therein that "any vacancy due to death, resignation or disability before the expiration of the term should be filled only for the unexpired. balance of the term" as otherwise "the regularity of the. intervals between appointments would be deatroJed, and the • evident purpose of th~ rotation (to prevent that four-year administration should appoint more than one permanent and regular Commissioner) would be frustrated.'' In the deliberation of said case, and in the written opinion I submitted In connection therewith, I czpreued the view 'Ulat, while this purpose is plausible if only h can be car~d out to the letter, because it would indeed free the members from CX· traneous influence and would give them an untrammelled triedom in the perfonnance of their duties, experience however. baa shown that it Is impracticable aa it has nenr been o~ec:l either by the Chief E.z:ecutive or by Congress. An analJsi• of the appointments heretofore made to fill vacancies in the memberehip of the Comm1ssion will bear this out. The Chief BxecuUve, in fil.liJig the vacancies in the positiona held after t.he members fint appointed, has always extended appointments for • term of nine years, never for the unexpired period, and these appointments have always met the sanction of Congress. Only that their tenure was limited by jud.Jcial fiat to the unapired term to conform to the spirit of the rotation system. I then concluded that If the rotation system ~ not be maintained ~use of unavoidable human factors that may supervene, such as death, resignation, or dis.i.bility ill any form, that system Bhould not be allowed- to stand against the clear purpose of the Constitution of giving to every subsequent appointee a tenn of office of nine years. But this opinion was ruled out. Hence, the President, following the rultng of the majority, extended an appointment to Miraflor as already adverted to. But Mr. Justice Reyes, (J.BL.) the writer of the majority opinion in the Imperial case, a dissenter in the present, advances now the theory that the appointment of the then member Gaudencio Garcia in 1960 to the post of Chairman of the Commission was null and vold for being in violation of our Constitution with the result that he never left his line to pass to that of Carag and that the one who lawfully filled Cara.g's line was Visarra. So, he concludes, Visarra who was appointed in 1960 continued the line of Carag whose te1m of orttce will expire only in 1968. (I) If the vacancy Is due to death, resignation or disability, the appointment can. only be for the unexpired balance of the term. (Republic vs. Imperial, aupra.) 1. 51 O.G., 1886. And when Borra was appointed, he filled the line .vacated. ·by Garcia in 1962, whose term will expire in 1971. Consequentl;y, he avers that there was no vacancy to which Mlraflor could have been appointed and, hence, his appointment is void. Mr. Justice Reyes predicates his opinion on the constitutional provision that a member "shall hold office for a term of nine years and may not reappointed." The issue raised by Mr. Justice Reyes has ~lready_ been squarely presented and discussed in Nacionalista Party. et"· a.J.. v. Vera,2 wherein the appointinent of Vicente de Vera, thCn Associate Commissioner, to Chairman of the Commission, was impugned as invalid on the ground that it was made in violation of our Constitution. This Court, under the pen of former Chlel Justice Moran, while it held it was not a proper subject for determination because it was raised not in a petition for quo warranto, but in one for prohibition, nevertheless, categorically stated that "the majorlty deems it advisable to also express its views" on the matter. And after analyzing the pertinent provisions of our Constitution) the Court said: "It must be noticed from th~s provision that the· prohibition against· reappointment comes as a continuation of th~ requtrement that the Commissioners shall hold office for a tenn of nine years. This imports that the Commissioners may not be reappointed only after "they have held office for niile years. Reappointment 18 not ')lroblblted when a Commluloner bu held office only for, say, ihne or 11K. years, provided hh term will not exceed nine 1ean hr aD. . x x x It may then be said as a fair Interpretation of the constitution that reappointment may be made in favor of a Contmi• sioner who has held office for leu than nine ·years, provided. 1t does not preclude the appointment of a new member· ·evetJ three years, and provided further that the reappointee's ' tenn does not ezceed nine years in all." (Bold supplied) Bliiborat· ing further on the matter, the Court continued: "It ts maintained that the prohibition against reap.. pointment appliea not only to the Commissioner· appointed for nine years, but also to "those appointed for a shorter p!rlod, because the reason underlying the prohibition is equatty a-p-· plicable to them; the prohibition being, according to thisatheory, intended to prevent the Commissioners from being expOsed. to Improper influences that are apt to be brought to bear upon those aspiring.for reappointment. It is, however,-deubtful whether this apparently persuasive reasoning is' :fullJ justified and supported by the wording of the ConstitQtion. As above stated, the language of the Constitution does ·not Wan'8Dt the interpretation that the prohibition against·reappointment applie• not only to Commissioners who have held office for nine years but also to those appointed for a lesser tenn. Upon the other hand, reappointment is not the .• only Interest that may affect a commissioner's independence, for he may also aspire to another position in the Govemm.ent that is higher and better paid, and that also may attCi;t his independence. And it is perhaps useless to prohibit . reap-pointment to the same office if appointment to higher. and better paid positions is not at the same Ume prohibited. This, apart from the consideration that reappointment is not altogether disastrous .. A Commissioner1 hopeful of reappointment may strive to do good. Whereas,. without that hope or other hope of material reward, his enthusiasm may decline as the end of his term approaches and he may even leap. to abuses tf there is no higher restrain in his moral character. f .~;h~;~\£:1;\e an independent Commission on Elections composed of a Chairman and two other Members t? .~e appointed by the President with the consent of the Com~1ss1on on Appointments, who shall hold office for a term of mne years ~d may not be reappointed. Of the Member;s of the Commission first appointed, one shall hold office for mne yea~s, another for six years, ·and the third for ~ years. Th~ Cha1nnan and the other Members of the CommISslon on Elecpons may be .remoyed from office onlJ by impeachment in the manner proVlded m this Constitution." p- 180' MWYBRS JOURNAL J-io. 19',3 Moral character is no doubt the moat effective safeguard of independence. With moral integrity, a commissioner will be independent with or without possibility of reappointment. Without moral integrity, he will not be independent no matter how emphatic the prohibition on reappointment might be. That prohibition is sound only as to a Commissioner who has held office tor nine years, because after such a Jong period Qf heavy and taxing work, it is but fair that the venerable Commissioner be given either a rest well etimed or another honorable position tor a change." I am not in accord with the view that the ruling in the Vera case, supra, is not a binding precedent on the valldity ot Gaudencio Garcia's promotion from Associate Commissioner to Chainnan ot the Commission for the reason that the same only finds !oupport in the votes of four justices because two others merely concurred in the result for, as already stated, on this issue, the Court clearly stated that ''the majority deems It advisable to also express Its views", tllld the Justices who concurred in Che result did not elaborate on how they arrived at that l :mclusion. Moreover, to l1old that the promotion of an Associate Commissioner to Chairman is banned by the Constitution men~ly by judicial fiat would be to relegate a member forever lo his position as such without hope of enjoying the privllegea incident to the chairmanship while giving a premium to an outsider who may be less deserving except probably his political ascendancy because of h1s lack of experience on the mech,.Wcs of that delicate and important position. Be that as it may, we now re-affirm that opinion which to us appears Just, fair and sound. Its effect is to stimulate hard work, greater zeal and increased efficiency for a member in. the hope that hla eftorl& would someday be rewarded with a promotion. The contrary would relegate him to apathy, indifference, hopelesmess and lnactioIL It is never a good policy to stultify one's legitimate ambition to bettennent and progress. I am also not in accord with the view that the appointment of Associate Commiasloner Garcla to Chairman of the Comriiis-sion constitute an increase in salary which is prohibited by the Constitution which decrees that the salaries of the members "shall be neither increased nor diminished during their term of office.'' This prohibition can not be stretched to mean that if an Associate Commissioner ls appointed to Chairman of the Commission he cannot be given the salary prescribed for the latter. 'ftle prohibition merely means that during their incumbency their salaries can neither be Increased nor diminished by Congress thereby impairing their freedom and independence. As aptly expressed by Mr. Justice Reyes, "The plain purpose ot (this safeguard) is that the Commissioners, once appointed and confirmed, should be tree to act as their conscience demands, without fear ot retaliation or hope of reward; that they should never feel the inducement of either the stick or the carrot. For only the man who has nothin'g to fear and nothing to expect can be considered truly independent." If the appointment of an Associate Commissioner to Chainnan of the Commission is legally feasible as abovestated. no plausible reason is seen why the reception by him of the salary prescribed for the latter position would be unconstitutional. Much stress ls blld by Mr. Justice Barrera that if the appointment of Miraflor is sanctioned the effect would be to give to the President the privilege of appointing two members, if not more, during his term of office which is contrary to the intent of the Constitution. But who should be blamed if such predicament 8hould happen? Can it be helped if such is the inexorable rule of nature? This is the danger I envisioned when in the Jmperial case I advocated the disregard of the staggering term in the commission membership and the adoption of the rule as expressed in our Constitution that subsequent appointments be made always for a full term of nine years. If that rule is adopted there would be less occasion tor the danger now dreaded by the minority to happen, while we would Strengthen the security of tenure of the incumbent. But my opinion was overruled by the majority and the same is now the law ot the case. We have no other alternative than to abide by it. Since the appoinLment of Associate Commissioner Garcia to Chairman of the Commission is valid, and the President in appointing Cesar Mlraflor member of the Commisson, vice member Genaro Visarra, merely followed the ruling of this Court in the Imperial case, it is now unfair to declare that he acted improvidently in doing so.· For these reasons, I vote with the majority. MAKALINTAL, J: concuning: J vote with the majority for the dismissal of the petition on the authority of Republic v. Imperial, 61 O.G. 1886, and Nacionalista Party et al v. Vera, 86 Phil. 126. It appears to me that those cases have quite clearly established the theory that the position ot Chainnan of the Commission on Elections is distinct from that of each of the two members; that the three positions carry their own respective terms of nine years, staggered Jn such a way that they begin and end at three-year intervals; and that if a Commissioner is promoted to the chairmanship he vacates his old poSition and gives up the term pertaining to it, and asswnes the new position ot Chairman, with its own tenn, subject to the limitation that his entire tenure in both capacities shall not exceed nine years. Thus in the Vera case 1t was held that when Commissioner Vicente de Vera . was appointed Chainnan to succeed the former incumbent, Jose Lopez Vito, who had died in office in 1947, such appointment could legally be only for the unexpired porlion of Lopez Vito's term, which was up to June 20, 1950. This notwithstanding the fact that the term of the position of Commissioner to which Vera was originally appointed was from June 1944 to June 1963. In the light of the foregoing precedents, I believe that when Commissioner Gaudencio Garcia was promoted to the chairmanship of the Commission in May 1960 to succeed Jose P. Carag, who had retired in 1969 upon the expiration of his term, Garcia vacated his old position and assumed that of Chair-' man, as did Vera years before. That being so, the only position to which petitioner herein, Genaro Visarra, could be appointed was that formerly occupied by Garcia, the term of which would expire in June 1962. I cannot subscribe to the proposition, advanced in the dissent, that when Garcia became Chairman the term pertaining to that position - which was from 1959 to 1968 - was left dangling, so to speak, to be enjoyed by Visarra in his capacity as mere member. But, the dissent continues, Garcia's promotion was null and ''oid because it was violative of the constitutional prohibition agWnst reappointment (Art. X, Section 1), and if it was null and void, then petitioner Viaarra was validly appointed for the nine-year term (untll 1968) pertaining to the position left by Chairman Carag in June 1959. I do not think it proper or timely, in the present case, to inquire into and decide the constitutionality of the appointment of Garcia. It is not one of the issues raised by the parties_. Garcia is not a respondent, indeed had already retired from the service when the petition here was filed; and whatever might be said on the point could be nothing but obller dictum, unduly relied upon to support an opinion in favor of a party who does not contest such appoint· ment. By the same token, I do not find it necessary to concur, for purposes of the instant petition, in any categorical affirma· tion ot the validity of the promotion of a Commissioner to Chairman although the question seems to have been set at rest by the Vera case. However, since Garcia\; appointment as Chairman has not been successfully challenged in a proper qllO warranto case against him, it retains the pi:esumption of validity. The least that can be said is that he was a de facto Chairman during his incumbency, the term of which positian could not have been conferred on herein petitioner by tbe very same appointing power. It would be unreasonable to assum~ that the Jtme 30, 1963 !AWYl!RS JOURNAL Page 181 President, in promoting Garcia, thought in this wise: that his appointment being null and void anyWay, he neither filled the vacancy left by ex-chairman Carag nor assumed the term thereof - from 1959 to 1968 - for which reason, therefore, they were given to Visarra instead albeit only as Commissioner. I The separate dissenting opinions of Justice Concepcion, J.B.L. I Reyes, Ba1Tera, Paredes and Dizon wlll be published in the forthcoming July issue of this Journal. II Elo;y Prospero, plalntfff-appellee vs. Alfredo Robles, et al, 6'.efendants-appellant.s, G.R. No. L-16870, May 31, 1963. Dizon, J. i. RELIEF FROM JUDGMENT; LACK OF ALLEGATIONS IN PETITION OF FACTS CONSTITUTING NEGLIGENCE!, MISTAKE OR ABANDONMENT.-The mere allegation made by appellants in the petition for relief from judgment that the default was due to the gross negligence or mistake and/or abandonment of their attorney, without stating the facts that constitute such negligence, mistake, or abandonment, is not legally sufficient to justify the granting of the relief provided for in Rule 38. 2. ID.; AFFIDAVIT OF MERIT; IT MUST CONTAiN FACTS, WHICH WOULD CONVINCE THE COURT THAT AGGRIEVED PARTY HAS MERITORIOUS CASE.-It has been repeatedly held that, to merit petition for relief from judgment, it is not sufficient to allege that the aggreived party has good and strong evidence to support his case, this being clearly a mere conClusion. The affidavit of merit required by the rules must contain and submit to the court such facts as would probably convince the latter that the aggrieved party has a meritorious case. ~ 3. JURISDICTION; INJUNCTION; ISSUANCE OF WRIT PROPER TO ENJOIN PICKETING WHERE EMPLOYER-EMPLOYEE RELATIONSHIP NO LONGER EXIST.-Appellants claim that the lower court erred In assuming jurisdiction over the case and issuing a writ of injunction against them, claimin_Jl: that picketing is a legitimate exercise of freedom of speech and can not be enjoined in labor disputes. HELD: The only trouble with this contention is that the lower court made an express finding - which can not now be reviewed - that, at the time of the picketing, there was totally no employer-employee relations between plaintiff and appeJlants and the action was merely an ordinary one for damages and and a restraining order. DECISION Eloy Prospero filed the present action on January 30, 1969, to recover damages and obtain a writ of injunction against appellants. The preliminary writ was issued upon his filing a bond in the sum of Pl,000 .. On February 18, 1959, appellants, represented by Attys. Beltran and Lacson, filed a motion to dismiss the complaint, but the same was denied for lack ot merit. The order of denial required them to file their answer - presumably within the usual reglementary period after service of summons - "the period to be computed from the notification of this court." On May 16, 1959, appcllee filed a motion for default, but the same was denied on the ground that, according to the record, appellants' period for the fUing of their answer had not yet expired. On May 20, 1959, appellants filed a motion for the reconsi· deration of the order denying their motion to dismiss, but the same was denied on May 23 of the same yea.r. Notice of this order was received by appellants on the 29th of the same month. On July 8, 1959, appellee flied a second motion for default alleging, among other things, that, up to that time, appellants had not filed their answer. As this allegation was found substantiated by the record, the court entered the corresponding or· der of default, proceeded to receive the evidence· of apptellee and subsequently rendered decision as follows: "WHEREFORE, this Court hereby renders judgment ordering the defendants to pay jointly and severally tO the plaintiff the sum of: .. '(1) Pl,0'00.00 for his pecuniary loss due to the Injury to his good will and patronage; '(2) Pl,000.00 as moral damages; '(3) Pl,000.0& as attOrney's fees; and '(4) Costs. · "Finally, the Court hereby orders the defendants, Alfredo Robles, Ignacio Loyola, Emilio Magcalos, Lucio Bersamin and Andoy "Doe," singly and en masse, Including their attorneys, representatives, agents and any other person or persons assisting them, to refrain permanently from establishing pkket lines in and around the premises and/or places where the plaintiff m?.y perform professional musical services." On ®ctober 26, 1959, appellants, this time through AttY. Edgardo Diaz de Rivera, filed a verified motion for new trial, alleging that their failure to answer the complaint was dtie to accident, mistake or the excusable negligence of their former counsel, Atty. Aurelio S. Arguelles, Jr., and alleging further that the decision and the writ of injunction were against the ,law. The court denied this motion on December 2, 1959 on the groUnd that it was not supported by any affidavit of merit nor did it 'allege facts sufficient to constitute a ground tor relief fn>m a final judgment. The order of denial further stated that appellants had no standing In court because the order of default eritered against them had not been set aside. On January 8, 1960, appellants filed a petition for relief from judgment, verified by appellant Robles who, In a sCparate affidavit, alleged that he was the president of the Philippine Musicians Guild, a registered labor union; that he was one of the clefend001ts in the case; that they were declared default because their former lawyer, Atty. Aurelio S. Arguelles, Jr., failed to file their answer to the complaint and that because Of his • •·mistake or excusable negligence", the substantial rights of· his clients had been prejudiced; that had they been able to preSent evidence, the decision rendered against appellants would have been different. Appellee naturally opposed the petition, and on February 8, 1960, the court denied the same firstly, because It was filed out of time, and secondly, because it did not rely on any 8:round sufficient to meet any of the reglamentary requirements. The present appeal from the order last mentioned is without merit. As the lower court held, the petition for relief was· filed out of time. Appellants admit that they had knowledge of the order and decision by default rendered against them since October 21, 1959. It ls clear, therefore, that the petition for relief filed on January 8, 1960, or seventy-nine (79) days after appellants knew of the order and decision by default, came· too late - beyond the period of sixty (60) days provided for in Rule 38, Rules of Court. · Moreover, neither their motion for new trial nor the pet~tion for relief was supported with any affidavit sufficient in form and sub.stance to prove even one of the grounds provided for in Rule 38 of the Rules of Court, nor to show that appellants have a good and meritorious defense. The mere allegation made by appellants in the petition foi relief that the default was due to the gross negligence or mistake and/or abandonment of their attorney, without stating the facts that constitute such negligence, mistake, or · abandon· ment, is not legally sufficient to justify the granting of the relief provided for in Rule 38. Likewise, It has been repeatedly held that, to merit the relief, it is not sufficient to allege that the aggrieved party has good and strong evidence to support his case, this being clearly a mere conclusion. The affidavit of merit required by the rules must contain and submit to the Page 182 IAWYE!RS JOURNAL Julie 30, 1963 court such facts as would probably convince the latter that the aggdcved. p~rty has a meritorious case. Lastly, appellants also claim that the lower court erred in rissiiming jurisdiction over the case and issuing a writ of injunction against them, claiming that picketing is a legitimate exercise of freedom of speech and can not be enjoined in labor disputes. The only trouble with this contention ts that the lower ·court made an express finding - which can not now be re\•iewed - that, at the time of the picketing, there was totally no employer-employee relations between plaintiff and appellants and the action was merely an ordinary one for· damages and a restraining order. WHEREFORE, the order appealed from is affirmed, wilh costs.· Bengzon, C.J .. Padilla, Bautista Angelo, Concepcion, J.B.L. Reyes; Regala, and Makalintal, JJ., concurred. Labrador and Barrera, JJ., took no part. III Vicente Martellno, petltioner-appellant, vs. Maximo Estrella, et al, responde'nts, G.R. No. L-1.5927, April 29. Regala, J. I. CABARET; LIMITATION OF ITS ESTABLISHMENT. - A cabaret cannot be established, maintained and operated at a distance of less than 200- :meters from public schools. (Sec. 1, Rep. Act 938 as amended by Rep. Acts 979 and 1224). 2. "CJ{APEL"; DEFINED. - A "chapel" is a small house or subordinate place of worship; A christian sanctuary ·other· ~~ a parish or catht:dral church. J. "CHURCHES"; WHAT DO THEY INCLUDE. - When the law . speaks of "churches" it includes all places suited to regular religious worship. In 7 words and Phrases 199, It ls described .as a "place where persons regularly assemble for worship." (citing Stubbs v. Texas Liquor Control Board, Tex. Cir. Appl. 166 s.w. 2d. 178, 180.) 4. CHAPEL; WHEN IT WOULD NOT FALL UNDER CATEGORY OF A CHURCH. - In a chapel where there is no regW~rity in the holdin~ of religious services, would not fall uiider the category of "churches" as contemplated in the Jaw. 5. ID.; CHURCHES; ESSENTIAL CHARACTERISTIC OF A CHURCH.-In fact, chajiels are churches: only that they may be smaller than, or subo'rdinate to; a principal church. The esSehtial characteristic of a church, is the devotion "of the place of ·rellgious services held with regurarity, and not the ·size· of the bullding or of· the· congregation that assembles · therein. The fact that these two buildings in question are called "chapel" 1n no way alters the case (See Delgado, et ·al. v. Roque, et al., G.R. No. L-8260, May 27, 1955,) 6. ill.; ID:; A CHAPEL IS CONSIDERED ACHURCH.-Irt the Delgado, et al., v. Roqu~. et al., G.R. No. L-8260, May 27, 1955, it was held tha~ the so-called chapel of the Seventh Day Adventist in Sta. Cruz, Laguria, Which is located near a pro·posed cockpit, is cons.idered a ''chun;h" within the meaning of the law involved in this case. DECISION This is an appeal from a decision of the Court of First Instance of Rizal dismissing 'the petition of Vicente Martelino for prohibition with pi"eliminary injunction in Civii Case No. 4502. The facts are undisputed. On April 1, 1956, the Municipal Council of Makati, Rizal, by Resolution No. 94, approved the application of Vicente Martelino to reOpen the Tropical Night Spot cabaret located in Constancia street of said municipality.1 Pursuant thereto, the Mayor of Makatl issued the corresponding !Reopening of the same Tropical Night Spot was also denied by the decisioµ of tµis Court in Provincial Governor of RiZfl,· et al. v. HQ!\- Demetria Encarnacion, et ah, G.R .. No. 1:--7282, Nov: 29~ 1.96~. for ~tru;; ~~on f:l)at it Siands less thaii Soo me~rs fro~ public schoOls. (The 'distance, as· fiow 'prd'Vided · in· the l~ aittendltd; 18:.~J.·metttiJ:~"'"'··~ .·!t .~t:-'Al· •· .:.·..: :~···'J·•· permit to said applicant. Under d~te of January 22, 1967, the Execu\ive Secretary, through the Provincial Govemor of .Rizal, sent a communication to the mayor, informing him that according to the records in his (Secretary's) office, there were two buildings within 200 meters from the cabaret, which were being rented for school purposes, and which made the operation of said amusement place violative of Republic Act No. 1224. The mayor was thus enjoined to revoke the permit he had issued. Replying to the co~ritunicatlon of the Executive Secretary, the mayor asked for reconsideration of the order, alleging that according to an investigation conducted by a committee created by the municipal council of Makati, the classroom annex which used to be near the site df the cabaret had already been transferred to a far away barrio. Subsequently, howev:er, the govemor of Rizal again addressed a letter to the mayor stating that according to a survey conducted by his office, the cabaret in question is located 191.50 meters from the F. Benitez Elementary School Annex, 37.30 from a Catholic chapel and 178 meters from a chapel of the Iglesia nl Kristo. Likewise, Qte mayor was enjoined to comply with the directive of the Executive Secretary. Accordingly, the mayor sent a letter to MarteJlno, ordering him to close the cabaret in question. But instead of complying, Martelino, on April 2, 1967 filed with the Court of First Instance of Rizal a petition for prohibition with preliminary injunction praying that the mayor's order of closure be declared null and void for having been issued without or in excess of authority or with grave abuse of discretion, and that the mayor be or;dered to refrain from enforcing said order. As prayed tor, a preliminary writ was issued before trial. The Court of First Instance found that, although there was no school within 200 :meters from the questioned cabaret, there were two chapels therein. Said court, therefore, dismissed the petition and dissolved the preliminary injunction, holding that the establishment of Petitioner's cabaret is in violation of Republlc Act No. 1224. .. · The petitioner appealed to the Court of Appeais, but that court certified the case to us, finding no faciual questlOn iD.volved. The certification, however, contains a very cleat recital of the faCts. The provision of Jaw that meets interpretation is SeCtioD. 1 of Repub11c Act 938, as· amended by Republic Acts 979 and 1224, which reads: · "Section 1. The Municipal or City board or council of each chartered city and the m_unicip8'l cOunc~l of ·.eac;h municipal district shall have the power to regulate or prohibit by ordinance the establishment, mainteriance and operation of nightclubs, cabarets, dancing schools, pavilions, cockpits, bars, saloons, bow11ng alleys, b11lard pools, and other simi! lar places of amusement within its territorial jurisdiction: Provided, however, That no such places of amusement meil.tloned therein shall be established, mabttalned 'and/or operated within a radius of two hundred lineal meters ill the case of night clubs, · cabarets. pavilions, or other similar places, and fifty lineal nieters in case of dancing schools, bars, saloons, billiard pools, except cockpit _the distance of which shall be left to the discretion of the municipal or city board or council fro~ any public building, schools, hospitals and chuf(:hes. x ~ x." (underscoring supplied.) The only issue in this appeal is. whether or· not the two chapels, which are located within a radius of 200 meters to the cabaret In question may be considered churches within the mean~ ing of the above quoted section of the law. Petitioner argues that R~public · Ac,:t 1224 speaks o~ "chur~~ and not "chapels," and following the principle of statutory construction expresslo unlus est exclusld alterlus, ·the word "chutches" should not be taken· tO·inclUde.di'apelS.:. Petition'er:furthU·-states that there is a sharp. :di:Uerenae. betw.eeit ·.Cbuldt.\ lim:lr cliapel, We do not agree with petitioner. A.s appearing in Webster's Third International Dictionary, "'chapel" is defined as foJiows: •i. (a) small house or subordinate place of worship; A Christian sanctuary other than a parish or cathedral church. (b) a church subordinate to and dependent on the principal parish church to which it is a supplement of some kind. ''2. A private place of worship. {a) a building or portion of a building or institution (as a place, hospital, prison, college) set apart for private devotions and often also for private religious services": (b) a room or recess in a church that often contains an altar and is separately dedicated and that is designed especially for meditation and prayer but is sometimes used for small religious services. x xx x" IV MARVIN G. Ell.IS, et al. petitioners, vs. REPUBLIC OF THE PHILIPPINES, opposltor-appelJant, G.R. No. L-16922, A.pril 30, J963, Concepcton. J. 1. ADOPTION; NON-RESIDENT ALIENS CANNOT· A!lOl!'r .A FILIPINO CITIZEN.-Petitioners who are Citizens of the United States cannot adopt a citizen of the Philippines. {Art. 315(4), Civil Code). 2. ID.; ID.; PROCEEDINGS IN REM; COURTS MUST HAVE JURISDICTION OVER THE PARTIES AND PERSONAL STATUS OF PARTIES.-Petition for adoption is a proceedings In rem, which no court ma7 entertain, unless it has jurisdiction, not only over the subject matter of the case and over the parties, but, alao, over the res, which is the personal status of the person to be adopted as well as that of the petitioners. 3. ID.; ID.; JURISDICTION OVER A NATURAL PERSON DETERMINED BY THE LATTER'S NATIONALITY.-Our Civil Code {Art. 16) adheres to the theory that jurisdiction over the status of a natural per.son is determined by the latter's We believe that when the law speaks of uchurches" it in- nationality. Pursuant to this theory we have jurisdiction eludes all places suited to regular religious worship. In 7 Words over the status of .Baby Rose, she being a citizen of the and Phrases 199, it ts described as a "place where persons reg- Philippines, but not over the status of the petitionen, who ularlJ' .l!Ssemble for worship. (citing Stubbs v. Texas Uquor are foreigners. Control Boa.d, Tex. Cir. Appl. 166 S.W. 2d. 178, 180.) . 4. ID.; ID.; PERSONAL STATUS IS SUBJECT TO THE ..JURISThere is no question that a chapel ts also a place of wor· DICTION OF DOMICILIARY LAW.-Under our polltical law, ship, but, of course, there are chapels where religious services which is patterned after the Anglo-American legal system, arc not held regularly, as in Webster's definition 2 (a) and we have, likewise, adopted the latter's view to the effect that (b) above stated. Undoubtedly, those kinds of chapel, where personal status, in general, is determined by and/or subJect there is no regularity in the holding of religious services, would to the jurlsdictlon of the domiciliary Jaw (Restatement of not fall under the category of "churches" as contemplated in the the Law of Conflict of Laws, p. 86; the Conflict of Laws of law. Beale, Vol. I, p. 305, VoJ. II, pp. 713-71(). Thi~. perhaps. The two chapels in question are, as found by both the Court is the reason why our Civil Code does not permit adoption of First Instance and the Court of AppeaJs, intended :ror .the by non-resident a11ens, and we have consistently refmed to holding regularly of rellgious services. It appears that the recognize the validity of foreign decrees of divorce: - ~, Iglesia ni Kristo ~hapel, although alleged to be located on 8 gardles.'i of the grounds upon which the same are based - borrowed lots, has its own pastor and services are held there involving citizens of the Philippines who are not bona Ode regularly until a permanent one ts built. The Catholic chapel, residence of the forum, even when our laws authorized on the other band, although formerJy only a sort of camaUa: iD absolute divorce: in the Pbilippinea. 1947, has been improved since then by the townspeople and has 5. ID.; ID.; PHILIPPINE COURTS HAVE NO JURISDICTION now a galvanized iron roofing, wood sidings and cement foun- OVER NON-RESIDENT ALIENS WHO ARE PETITIONERS elations. Before 1954, the people, every now and then, used to JN ADOPTION CASE.-lnaamucb as petitioners herein are invite the parlsh priest of the town to hold mass there. Begin- not domiciled in the Philippinca; - and, hence, non-resident Ding that year, however, thru the initiative of members of the aliens - we cannot assume and exercise Jurisdiction over Catholtc Action, mass has been Celebrated there every Sunday their status, under either the nationality theory or the doand on special occasions. micillary theory. In any event, whether the above--quoted The above descriptions reveal no serious difference between provision of sidd Article 335 of the Civil Code is predicated the chapels in question from a church. In fact, they are churches; upon lack of jurisdiction over the ra, or merely affects the only that they may be smaller than, or subordinate 10, a prin~=d 0:0:~!o~e;t~o::;:ie h~:Ci:~~rl~i h: =t ;.~e:li~! ::i, ~~:~ed, ~e t:C:!!~ti~~;t::e•t=.:: :0 -:~::~ "':e~: Caraballo v. Republic,. L-11>080 (April ~5. 1962) and Katancik lees held with regularity, and n6t the size of the building or of the v. Republic, L-16'72 (June 30, 1962). congregation that assembles therein. TI1e faet that these two D E· C I S I 0 N buildings in question are called "chapel" in no way alters the Appeal taken by the Government from a decision of the case (See Delgado, et al. v. Roque, et al., G.R. No. L-8260, May Court of First Instance of Pampanga granting the petition of 27, 1955.) Maivlu G. Ellis and Gloria C. Ellis for the adoption of a Fillpino In the Delgado, et al. v. Roque, et al. case, supra, this Court baby girl named Rose. has held that the se>ealled chapel of the Seventh Day Adven- Petitioner Marvin G. Ellis, a native of San Francisco, Calitist in Sta. Cruz, La&0na, which is located near a proposed cock- fomia, is 28 years of age. On September 3, 1949, he married pit, b considered a "church" within the meaning of the law Gloria C. Ellis in Banger, Maine, United States. Both are citiinvolved in this case. zens of the United States. Baby Rose was born on September In view of the foregoing, the decision appealed from is ~~'te~~S~h~t !1:th~~l°:a~=~~:tyhe~o~::1. t!ou~~~ f~e ~:!'.; hereby affirmed. Costs against the petitioner. V1lla _ an institution for unwed motheis and their babies - Benpoo, CJ., Bautista Angelo, Labrador, Concepcion, Bar- stating that she (the mother) could not take care of Rose re, Paredes, Diwn and Makalintal, JJ., concurred. without brin.g;tna: disgrace upon her (tbe iqother'1) fe.mi11. PodiUa 1111d llQ-.1.B.L, II., 1ao11: no part. Bein& wilhout ...... an NovOIRbCr Ill, 1959, Jllr; OQd Ml& .... , .. LAWYl!llS JOUllliAL lvlloJll,1~ EWs. fi~d a petition with the Court of First Instance of Pam- v panga,. for the adoption of the aforementioned baby, At the LUZ BARRANTA, plainUff-appellant, vs. JNTERNAnONAL time· of the hearing of the petition on January 14, 196&, peti· HARVESTER COMPANY OF DIE PHILIPPINES, defendant-apti.ooer Marvin G. Ellis and his wlte had been in the Philippines pellee, G.R. No. L-8198 Aprll 22, 1983, Regala, J. for t~ (3) years, he being assigned thereto as staff sergeant 1. in the United States Air Force Base, in Angeles, Pampanga, where both l~v~~ at that time. They had been in the Philippines before, COURT OF INDUSTRIAL RELATIONS; REQUISITES IN ORDER TO ACQUIRE JURISDICTION OVER CONTROVERSY UNDER REP. ACT 875.-ln orde[' that the Court of In· dustrial Relations may acquire jurisdiction ove[' a controversy in the light of Republic Act No. 876, the following circum· stances must be present: (a·) there must exist between the parties an employer-employee relationship, O[' claimant must seek his reinstatement; and (b) the controversy must relate to a case ·ce['tified by the President to the Court of Industrial Relations, as one involving national inte['est, or must have a bearing on an unfair labo[' practice cha['ge, or must arise elthe[' unde[' the Eight-Hou[' Labo[' Law, or under the Minimum Wage Law. In default of any of these dreunr stances, the clabn becomes a mere money claim that comes under the Jurtsdlcdon of the regular courts." (Bold letters ours.) o_r, to be exact, in 1963. The only issue in this appeal is whether, not being permanent residents in the Philippines, petitioners are qualified to adopt· Baby Rose. Article 335 of the Civil Code of the Philippines, ·provides that: !',The following cannot adopt: x x (4) Non-resident aliens;" x x ~s legal provision is too clear to require interpretation. No nlahe[' how much we may sympathize with the plight of 83.by ROse and with ' the good intentions of petitlone['S herein, the laW tCaves us no choice but to apply its expUcit terms, which wiqual.ifiedly deny to petitioners the power to adopt anybody in tlic Ph~ppines. . In· this connection, it should be noted that this is a proceedinga In rem, which no court may entertain, unless it baa Jurisdiction, ·not only over the subject matte[' of the case and over· the parties, but also, over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 16) adheJ"eS to the theory that Jurisdiction ove[' the $3.tus of a naturaJ person is determined by the latters nationality. ·Pursuant to this theory, we have jurisdiction over the status ·Of·Baby Rose, she being a citizen of the Phllipploes, but not over the status of the petitionen, who are foreigners. Under our political law, which ts patte['ned after the Anglo-American legal system, we have, likewise, adopted the latter's view to' the effect. that personal status in general, is determined by and/o[' subject to the Jurisdiction of the domiciliary law (Restatement <>f the. 4w of Conflict of Laws, p. 86; The Conflict of Laws by a.etile, Vol. ], p. 305, Vol. II, pp. 713-714.). This, perhaps, is the riason. why our Civil Code does not permit adoption by non-resident alleDs, and we have consistently refused to recogni7.e the l;aliditJ of foreign dec['ees of divorce - regardless of lhe grounds upon which the same are based - involving citizens of the Philippines who are not bona fide residents of the forum, even when OU[' Laws, authorized absolute dlvoree in the Philippines (Ramirez v. Gmur, 42 Phil. 855; Gonayeb v. Hashim, 50 Phil. 22; Cousine Nix v. Fleume[', 5S Phil. 85; BarTetto .Gonzalez vs. Gonzalez, 58 Phil. 67; Recto v. Buden, L-6897 ·(Nov. 29. 1956]). Inasmuch as pelitionen herein are not domiclled in the Philippines - and, hence, non-['esident aliens - we cannot assume 3iid exercise jurisdiction over their status, under eithe[' the nationality theory or the domiciliary theory. In any event, whetbe[' the above quoted provision of said Art. 335 ts predlcated upon Jack of Jurisdiction over the res, or merely affects the cause of action, we have no authorlty to gl"Bnt the relief prayed fo[' by petitlonen; he['ein, and 1t has been so held in Ca['aballo v. Repubiic, L-16080 (April 25, 1962) and Katancik v. Republic, L-16472 (June 30, 1952). WHEREFORE, the decision appealed from is hereby reversed, and another one shall be entered denying the petition in this case. Bengzon, C.J ., Bautista Angelo, Labrada[', Barrera, Paredes, Dizon. ~egala and Makalintal, JJ., concurred. Pad.ilia and Reyes, JJ. took , no part. 2. ID.; ID.;-A mere claim for reinstatement does not suffice to brlng a case within the Jurisdiction of the Court of Jn. dustrial Relations .. It is necessary also that the case be one of the four enumerated cases as amplified in the case of Campos vs. Manila Railroad Co., G.R. No. L-17906, May 26, l 962. Here, a reading of the allegations of the complalot shows that while plaintiff-appellant seeks her reinsta~ent in the company, nothing is alleged therein to indicate that plaintiff-appellant's dismissal from the service amounted to an unfair labo[' practice. Neithe[' is it claimed that this is a case certified by the President to the Court of Industrial Relations as involving national interest (Sec. 10, Republic Act No. 875), O[' a case arising uncle[' the Eight-Hour Labor Law (Commonwealth Act No. 444, as amended) or the Mini· mum Wage Law (Republic Act No. 602.) 3. ID.; ID.; LABOR CONTROVERSY; WHEN THE COURT OF FIRST INSTANCE HAS JURISDICTION.-Where plaintlHappellant merely seeks her reinstatement with back wages; the recovery of moral and exemplary damages sufferred as a result of allegedly malicious criminal actions filed against he[' at the instance of defendant-appellee; the recovery of her contributions to a pension and savings plan; and the recovery of the money value of he[' accrued sick leave, the Court of Fin;t Instance has Jurisdiction over the case. DECISION This is an appeal from the orde[' dated August 22, 1960 of the Court of First Instance of Rizal, dismissing plaintiff.appellant's complaint on the ground that it had no jurisdiction over the case. The on:le[' was issued during the progress of the trial in the wake of our ruling in Price StabiUzation Corporation v. Court of Industrial Relations, et al., G.R. No. L-13206, May 23, 1960, which clarified previous rultngs on the Jurisdiction of the Court of Industrial Relations. The complaint reads: "'COMES NOW the pl3.intlff, through counsel and for causes of action against the defendant, to this Honorable Court, respectfully alleges: Fil"St Cause of Action "'l. That plai"ntiff is of legal age and a resident of San Juan, Rizal, while the defendant is a domestic corporation, having its principal office at No. 744 Marques de Comillas, Manila, where 1t may be served with summons; "2. That since May 16, 1947, plaintiff was employed by the defendant company as Secietary· to the Treasure[' of the defendant company; "3. That· due to plaintiff's efficient and satisfactory SC['vice, her saJary bas. b~ perl~ically i~cr~d fro~ P275.00 ~WYERS .. JOUIµIAL in 1947, to 532.00 in July, 1956, the last mentioned amount .•being.her salary up to. December 12, 1966; "4. I'hat on December 12, 1966, without any lawful cause or justifiable ground whatsoever, the defendant, through its president, P~ul Wood, verbally informed the heNi~ plaintiff that she was suspended from employment, <ind oil the following day, she was informed by the dCfendant in writing through the same official, that: 'The effective d~;te ~f your suspension ls as of 6 P.M., December 12th, 1956, and. for such furtl~er perlpd as is required in completing an tnvCStigation x x x. Final decision as to your employment will ~e made after said investigation is completed;' ., "5. That since the date of her suspension, no investiga~ion, as apparently assured in writing by the defendant, was· ever made known to the plaintiff, nor was she informed i;>f. t~e company's final action on her case; it was Only after her attorneys inquired as to the status of her case was she inforined in writing on .Tune 3, 1957 that her employinent with the defendant company was terminated, 'effe.ctive as of tlie date of suspension,· 5 p:m., December 12, 1966; "6. That plaintiff's suspension and dismissal were both unlawful, and she is entitled to reinstatement with full paymc:nt ·Of her salary since December 12, 1956 up to the date of her actual reinstatement, or in the altemative; if reinstatement is not feasible, to all salaries due to her from Detember 12, 1956 up to the date of favorable final judgment in her favor, plus at least one month's severance pay, as ·actual damages; Second Cause of Action . ."i'. That plaintiff incorporates in this cause of action, by reference, the allegations contained in paragraph 1 to 6 of. the preceding cause of action; "8. That aware of its unla~l action in suspending and 4Jsmissing the plaintiff from her employment, the defendant company abetted and encouraged no Jes~ than i1 employees of the company into filing criminal charges of estafa against the- plaintiff, which criminal charges were nevertheless dropped by the -Fiscal's office (Manila) or dismissed by the courts of Justice after trial and hearing; · · "9. That for such encouragement and aid, impelled by unjuatlfi~ble motives, in the prosecution ot the herein plaintiff, the defendant company is liable to the herein plaintiff for moral and exemplary damages 1n the sum of PS0,000.00; Third Cause of Action "10. That plaintiff incorporates in this cause of action, by reference, the allegations contained in paragraphs 1, 2 and 3 of the First cause of action; · "11. That 1n July, 1962, a pension and savings fund plan was introduced by defendant company whereby employees were required to contribute a certain percentage of their salary to a saving and trust fund and plaintiff herein bee8me a member of said 'Pension and Savings Fund of the International Harvester Company of the Philippines;• "12. That as of December, 1956, plaintiff had a total savings benefit of not less than Pl,"40.00 which, under the terms of the plan, would be returned to her with interest plus a percentage of the Company's contribution amounting to not less than 25% upon termJnation of her services prior to retirement; "13. That the defendant company, in utter bad faith and ·1n gross violation of the terms ot the pension and savings funds, forwatded and forced upon the plaintiff the sum of only P20.46; "14. That plaintiff is entitled to her actual savings be. nefit which should not be Jess than Pl,440.00, plus a percentage of the company's contribution amounting to not less than 25%; "'16. That defendant's violation of the terms of the savings and trust fund and oppressive retention of plaint~f~'s .saving_S: _u~d~r the. pl~ ~ave ·caused plaintiff' gi'ave moral damages of not less than PSO,OOOJJO as : she·. netided the money very badly when demand therefor ·was miid.e as ~;r d:~t~; ~:. ~~e:i::: n~ei::a;:::~ mother subSeqtienF Fourth Cause of Action "16. That plaintiff's employment with the defChdant· company entitled her to regular sick leave with paj Which .can ~e accumulate~ ~Pt«:> a maximum period of.72 dqfi"; . 17. That plamhff has not. taken any sick le~v~ .si.n~e the time she was employed by the defendant and· ~h~ ·is entitled to at least 72 days sick leave with pay, or ~.~~ouni equivalent to Pl,262.80; · · · "1_8. _That de~e~dant. company has not only st.i.spended and d1sm1ssed plamhff without lawful and justifiable cause, but has also withheld plaintlf~'s accrued sick leave pay. ALLEGATIONS COMMON TO . ALL CAUSES OF ACTION . "19. That plaintiff has demanded from defend~Ot her. reinstatement and the paytnent to her of her ·claims ~·here inabove set forth, but the defendant has failed and refused fo comply with said derr1,'ands; · .. "20. That to enfQrce ·and protect hei- rights,· pi.\tiitiff was forced to litigate and retain the service of under'.SiKned coW1sel wilh an obligation ·to pay attorney's- fees:: iaJ the sum of P5,000.00." . The sole issue here is. whetherr on the basis of the aUega.. tions. of the complaint as set forth above, the Court of··First Instance of Rizal had Jurisdiction over the case. In dismissing the case, the trlal court, citing oUr deCisions held that "'In an action for the reestablishment of relationship ?f employer and employee because of a wrongful severance,, it 1s the Court of Industrial Relations and not the Court ef ·First Instance that has Jurisdiction." This is not accura~ In Price Stabilization Corp. v·. , court of Industrial Relations, supra, We held that - . "Analyzing these cases, the underlying principle, it Will ~ noted 1n all of them, though not stated in express· ~nns, 1s that where the employer-employee relationship is· ·:still existing Or is sought to be reestablished because of its wiongful severence (as where the employee seeks reinstatemeilt), the Court of Industrial Relations has Jurisdiction over all claims arising out of, or in connection with the emploim:ent, such as those related to Minimum Wage Law and the· EightHour Labor Law. After the termination of the relationship and no reinstatement is sought, such claims become mere money claims, and come within the Jurisdiction of the regular courts." A more recent definition of the jurisdiction of the Court of Industrial Relations is found In Campos, et al. v. Manila R.8.ilroad Co., et al., G.R. No. L-17905, May 26, 1962, in whi~h We held: "We may, therefore, restate, for the benefit of the bench and the bar, that in .order that the Court of Industrial Re~ Jations may acquire jurisdiction over a controvers1 hi the light. of Republic Act Nf?. 875, the followin~ circums1:3:11ces muat be present: (a) there must exist between the. parties an emplo7er-employee relationship, or claimant must seek his reinstatement; and (b) the controversy must relate to a case certified by the President to the C.I.R. as one involving national Interest, or must have a bearing on an unfair labor practice charge, or must arise either under the Eight-Hour Labor Law, or under the Minimum Wage Law. In default of any of these circumstances, the claim becomes a mere money claim that comes under the jurisdiction of the regular courts.'' (Bold letter ours.) A mere claim for reinstatement, therefore, does not suffiCe to bring a case within the jurisdicdon of the" Court of Industrial Page 116 IAWYERS JOURNA.L '.June 30, '1963 ~atiQPs .. It. is n~ssary also that the ,cue be one of the four enwi:.Crated cases as amplified in ~he Campos case. Here, a reading of the allegations of the complaint shows that while plaintiff-apJ>ellant seeks her reinstatement 1n the company, nothing is aneged therein to indicate that plaintiff-appellant's dismissal from the service amounted to an unfair labor practice. Neither is it 'claimed that this is a case certified by the President to the Court ef Industrial Relations as involving national interest (Sec. 10, Republic Act No. 8'15), or a case arising under the EightHour· Labor Law (Commonwealth Act No. '44, as amended) or the Minimum Wage Law (Republic Act No. 602.). For plaintiff-appellant merely seeks her reinstatement with back wages, the recovery ot moral and exemplary damages suffered ·as a result of allegedly malicious criminal actions filed aga2nst her at the instance of defendant-appellee; the recovery of hfir -contributions to a pension and savings plan; and the recovel'y of the money value of her accrued sick leave. 'I'he Court of First Instance of Rizal erred therefore in holding that the case is cognizable by ·the Court ot Industrial Relations and ln dismissing the case. WHEREFORE, the order of August 22, 1960 of the said CO\n1 ·of First Instance is hereby reversed and the trlal court ~s "directed to proceed with the trial Of this case. No costs. 8e0gzOn, C.1., Padilla, Bautista Angelo, Concepcion, J.B.L. Reyes, Paredes and Makalintal, JJ ., concurred. s.anera and ·DiZon, JJ., took no part. VI _,..~- Or the PbWPPlna, plalntlfl-appelanl vs. - J'!aza, def~t-appellee, G. R. No. L-U819, March 30, 1963, Dizon. J. CllJMINAL PROCEDURE; INFORMATION; AUTHORITY OF -THE TRIAL COURT TO ORDER THE FILING OF ANOTHER INFORMATION OR AMENDMENT OF ONE ALREADY .liJLF.D.--Assmning that the lower court was right in bold1ng that the facts. alleged in the information do not constitute a, ,plmisbable offense, as far aa defendant was concerned, tile ease should not have been dismissed with respect to !Um. JnStead, pursuant to the provisions of· Section 'l, Rule 113 of .. the Rules of Court, the lower court should have given :the prosecution an opportunity to amend the information. That. under the provisions of said rule the trial court may order the filing ot another information or simply the amend· P.'eJ?ot ot t.pe one already filed is clearly 1n accordance with .·~he. settled rule in this jurisdiction (U.S. vs. Muyo 2 Phil. Jii7; People vs. Tan, 48 Phil. 877, 880). DECISION . ,Appeal by the State from an order of the Municipal Court ot Butuan. City dismissing the information filed in Criminal Case No. 2721, as against Maximino Plaza, on the ground that the fads ·11.Ueged therein do not coristitute a criminal offense. when in fact and in truth the above-named accused· knew that the said land above. desc.ribed was already sold in a pacto de retro sale dated July 21, 1953, and lat.er on conv:erted the same sale into an absolute sale on September 3, 1953 in favor of Felipe F. Paular, did then and there wilHully, unlawfully and feloniously with intent to defraud said Felipe F. Paular knowing that said property has been previously sold to the said Felipe F. Paular in the amount of P400.00, both accused entered into agreement whereby the said property above-described was sold by the accused Esperanza· Ato de Lamboyog and her aforementioned husband, to his co-accused Maximino Plaza and falsely represented the same property to be free from encumbrance, to the damage and and prejudice of said Felipe F. Paular in the amount of P400,00 excluding the improvements thereon. CONTRARY TO LAW: (Art. 316 of the Revised Penal Code).'' Defendant Plaza filed a motion to quash the information on the grounds that (1) the facts charged do not constitute an offense insofar as he was concerned; (2) that the in:fonnation charged more than one offense; and (3) that the criminal liability had been extinguished by prescription of the crime. The court found the first ground to be well taken and dismissed the information as against him. Htnce ·this apj>eal. A perusal ot the information 4iscloses that it cha~ the three defendants with "conspiring, cooperating together and helping one another etc." to commit the offense charged, while at the aame time another portion thereof would seem to imply that the Lamboyog spouses falseb' represented to their co-defendant, Muimino Plaza, that the property they were selling to him was free from encumbrance - an allegation Justifying the inference that Plaza did not know that the property he was buying had been previously sold to the offended party, Felipe F. · Paular. ln view of this, we arc of the opinion that the real defect ot the information is not that the fact alleged therein do not constitute a punishable offeMe but that its allegations, as to Plaza's participation and possible guilt, are vague. But even assuming that the lower court was right in holding that the facts alleged in the information do not constitute a punishable offense, as tar as defendant Plaza was concerned, the case should not have been dismissed with respect to him. Instead, pursuant to the provisions of Section 7, Rule 113 of the Rules ot Court, the lower court should have given the prosecution an opportunity to amend the information. That under the p'rovisions of said rule the trial court may order the tlling of another infor.mation or simply the amendment of the one already filed is clearly 1n accordance with the settled rule in this jurisdiction (U.S. vs. Muyo 2 Phil. 177; People vs. Tan, 48 Phil. 87'1, 880) • WHEREFORE, the order of dismissal appealed from is hereby set aside and the case is ordered remanded to the court of origin tor further proceedings in accordance with this decision. The aforesaid information charge Esperanz.a Ato de Lam- Bengzon, C.J ., Padilla, Bautista Angelo, Labrador, Concepboyog, Capistrano Lamboyog and Maximino Plaza with estafa, cioo, J .B.L Reyes, Barrera, Paredes, Regal a and Malinta!, JJ.; alletiJlg: C0)1CUrred. , Wfhat on or about the 6th day of October, 1964, ln the / VII City of Butuan, Philippines, and within the jurisdictioo of I Sergio F. Magulat, petJtloner vs. Jacinto Arcilla, respondents et this Honorable Court, the said accused consplrlDg, · coopera· al., G.R. No. L-16602, Feb. 28, 1963, Regala, J. ting together and helping one another with accused Espe- 1. COURT OF INDUSTRIAL RELATIONS; JURISDICTION; NO ram.a Ato de Lamboyog and her husband Capistrano Lam- JURISDICTION FOR RECOVERY OF BASIC AND EXTRA boyog pretending and misrepresenting themselves to be the COMPENSATION ON SUNDAYS AND HOLIDAYS WHERE sole and absolute owners of a real estate situated at Barrio Ba- EMPLOYER-EMPLOYEE RELATIONSHIP HAS BEEN TERan, Butuan City, covered by Tax Declaration No. 3824 (9949 MINATED.-Since, at the thne ot the filing of the complaint located at Doot, Barrio Ba-an, Butuan City) more particular· for the recovery of basic and extra compensation tor work Jy described as follows, to wit: done on Sundays and holidays under Sectlon 4 the Eight' A parcel of agrlcultural land bounded on the North Hour Labor Law (Commonwealth Act No. 444, as amended), by Jose Ato, on the East by Ba.-an River, on the South the employer-employee relationship of the parties had been by Pedro Plaza, and on the West . by the Agusan River terminated and there being no petition for reinstp.tement, the containing' an area of 7413 square metCrS ~~~ or:.~, chums ot" reapondents did not come wJthin the jt¢sdiction ot the Court of Industrial Relations. 2. ID.; ID.; BROAD POWERS REFERS ONLY TO MATTERS, CONTROVERSIES OR DISPUTES AFFECTING EMPLOYERS AND EMPLOYEES.--Sectlon 1, Commonwealth Act No. 103 which respondent invoke, negates their stand for this section makes it plain that the broad grant of powers to the Court of Industrial Relations refers only to matters, controversies or disputes "arising between. and/or affecting employers and employees." 3. ID.; ID.; REQUISITES TO BE COMPLIED WITH IN ORDER TO GIVE THE INDUSTRIAL COURT JURISDICTION OVER A LABOR C.<SE.-In the case of C::impos et al. vs. Manila Railroad Co., ct al., G.R. No. L-17906, dated May 26, 1962, it was held that for the jurisdiction of the Court ot Industrial Relations to come into play, the following requisites must be complied with: (a) there must exist between the parties an employer-employee relationship or the cl~mant must seek his reinstatement; and (b) the controversy must relate to a case certified by the President to the Court of Industrial Relations as one involving national interest, or must have a bearing on an unfair labor practice charge, or must arise .either under the Eight-Hour Labor Law; or under . the Mlnimun Wage Law. In default of any of these circumstances, the claim becomes ~ mere- money claim that comes under. the jurisdiction of the regular courts. .. DECiSION Thia is a petition for certiorari to annul the order of the · Honon.ble Baltazar M. VUlanueva of the CoW1 of Industrial Relations ~d the resolution ot that Court la bane denying a motion .to dismjss tiled by petitioner as respondent in Case No. 18-V.Pang., entitled "Jacinto ArcUla" et al., Petitioners v. Sergio F. Naguiat, respondent." It appears that respondents were former employees of petitioner in his construction business in Angeles, Pampanga. On January 8, 1959. they sued petltioner in the Court of Industrial Relations for the recovery of basic and extra compensation for work done on swidays and holidays under Section 4 of the Eight-Hour Labor Law (Commonwelath Act No. 444, as amended) during the period 1966-1957. In his answer, petitioner, among other things, questioned the jwisdiction of the Court of Industrial Relations and raised the issue anew in a motion to dismiss which he subsequently filed, but the Honorable Baltazar M. Villanueva upheld his Jurisdiction over the case In an order dated September 19, 1969, reIying on our ruling 1n Monares v. CNS Enterprises, et al., G.R. No. 1...11749. May 29, 1959. Petitioner moved for reconsideration of the order but the Court, sitting la bane, affirmed the disputed order 1n a resolution dated December 1, 1959. Hence, this peti. tion, petitioner contending, among other things, that the Court of Industrial Relations had no jurisdiction over the case. While this case was pending, this Court clarified i~ previous rulings on the Jurisdiction of the Court of Industrial Relations and held in Price Stabilization Corp. v. Court of Industrial Relations, et al., G.R No. L-13206, May 23, 1960- that - "Analyzing these cases the underlying prlnciple, it will be noted in all of them, though not stated in express terms, ls that where the employer-employee relationship is still existing or ls sought to be reestablished because of its wrongful severance (as where the employee seeks reinstatement), the Court ot Industrial Relations has jurisdiction over all claims adsing out of, or in connection with the employment, such as those related to the Minimum Wage Law and the EightHour Labor Law. After the termination of their relationship and no reinstatement is sought, such claims become mere money claims, and come within the Jurisclictton of the regular courL<>.· · "We are aware that in 2 cases, some statements imply. ing a different view have· beeD. made, but We now hold and declare the principle set forth in the nex-t preceeding panigraph as the one governing all cases of this natui-e.~· Since, at the time of the filing of the complaint, the employu·-employee relationship of the parties had been tenninated. and there being no ·petition for reinstatement, the tjaims'...fOf respondents Jacinto Arcilla, et al. did not come wltl\4t the Jurisdiction of the Court of Industrial Relations. · · In their memorandum in lieu of oral argument, however, respondent ask that we re-examine· the doctrine 'of the Prisco case. They contend that the Court of Industrial Relations was created to afford protection to labor and that Section. 1 of Commonwealth Act No. 103 confers broad powers on th~, Court of Industrial Relations "to consider, investigate, deci.de, and settle all questions, matters, controversies, or disputes arising between and/or affecting employers and employees or, J._borers x x x and regulate the relations between them" rewdteas of the existence of employer-empJoyee relationship betw~n the parties. There is no merit in the contention. Even Section . 1 of the law, which respondents invoke, negates their stand. ~ section makes it plain that the broad grant of powers to tb~ .Court of Industrial Relations ttfers only to matters, controv~Jl;ies «?r disputes "arising between, and/or affecting employers and. employees." .,, ,.: We find no reason to depart from the ruling in .~e 'risco case. The doctrine of the Prisco case has been reiterated in a long line of decisions.• It is now the rule on the matter. A restatement of this doctrine is found in Campos, et al.· V. Manil8 Railroad Co., et al., G.R. No. L-17906, May 25, 1962, in which We held that for the JurisdicUon ot the Court of Industrial Relations to come into pJay, the following requisites. lllll8t be complied with: (a) there must exist between the parties.0.11 employer-employee relationship or the claimant must seek· .his: reinstatement; and ·(b) the controverSy must relate to a casencertified by the President to the Court of Industrial Relations as one involving national interest, or must have a bearing::on an unfair labor practice charge, or must arise either undet" the Eight-Hour Labor Law or under the Minimum · Wage Law. In default of any of these circumstances, the claim becomc:s a" :mere money claim that comes under tbe Jurisdiction of the regular courts. WHEREFORE, the Order of September 19, 1959 and the resolution of December 1, 1969 of the CoW1 of Industrial Reiations are hereby set aside, without pronouncement as to costs. Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, Barrera, Paredes, Dizon and Makalintal, JJ., concurred. Vlll Juan Andan, et al., petitioners-appellants vs. Tbe Secretarr ol Labor, et al., respondents-appellees G.R. No. L-1~56r., March 29, 1963, Labrador, J. DEPARTMENT OF LABOR; REGIONAL OFFICES; Ii!O JUlUSDICTION TO CONSIDER MONEY CLAIMS INCLUDING OVERTIME PAY FILED BY LABORERS.-In the cases of Corominas, Jr., et al. vs. Labor Standards Commission, et at._,. G.R. No. L-14837, Manila Central University vs. Caluptta:n, .. ,e~ a1., ~al Development Co. v. Court of Industrial Rel~tions, ct al., G.R. No. L-15422, Nov. 30, 1962; Board of Liquidators, et al. v. Court of Industrial Relations, et al., G.R. No, L-14366~· Oct. 31, 1962; Cagalawan v. Customs Canteen, .et al., G.R. No. L16031, Oct. 31, 1961; Sy Huan v. Bautista, et al., G.R. No. L16ll5, Aug. 29, 1961; Cu1son v. Gaite, G.R. No. L-16611, _March 25, 1961; Elizalde Paint & Oil Factory, Inc: v. Bautista, G.R. No. L-16904, Nov. 23, 1960; Sampaguita Pictures Inc., et al. v. Court of Industrial Relations, et al., G.R. No. L-16404, Oct. 25, 1960; Ajax International Corp. ,v. Saguritan, et al., G.R. No, L-16038, Oct. 25, 1960; New Angat-Manila Trans. Co., et al v. C~R, et al., G.R. No. l.'16289, Dec. 27, 1960. Paee 188 l:AWYERS. ·JOURNAL June•!](),· 1963 G.R. No. L-15483; Wong Chun vs. Carlim, et al., G:R. No. L13940 and Balrodgan Co., Ltd. vs. Fuentes, et al., G.R. No. L16015, jointly decided by the Supreme Cour:t· on June 80, 1961, it was held that the provision of Reorganization Plan No 20~A. particularly Sec. 26 thereof, granting regional offices of the Oe.P,anmeQ~ .?f _Labor Qriglnal and e~luslve Jurisdiction to consider money claims including overtime pay, is not authorized by the provisions of Republic Act 997 which creates and grants power to the Reorganization Commission. For this reason regioii81'1offices ·ha:\.·e been decl?refl in a long line of decisions with'o\lt ji.irisdiction to consider inQp.ey · claims .filed by laborers. . . ,.,., . D !;; C I ~.{ 0 N . 'f.J)ls. is an ·appeal .from a_ju.dgment of the Court of First Inst~m;;e of Bulacan, the Hon. Ambrosio T. Dollete, presiding, 9-ismiSiSjng ij, p~tition for- prohibition and certiorari filed by pe-titione~· .against tlle respondents--appellees. OD September 18, 1954, respondents-appellees Eugenio Aguir· re, Fer.nando Navarro, Eufemia lturalde, Aurelio de la ·Cruz·, Eladia Fortez, Menandro de Guzman and Ismael Cruz filed thru the p~jncial fiscal two (2) separate informations against Asuncion Cruz· and Juan Andan, the herein. petitioners--appeUants, docketed &S! C.rimlnal Cases Nos. 2099 and 2100 of the Court of First Instance·· of Bulacan, for violation of the Minimum Wage Law and et the Eight-Hour Labor Law. Mter a joint trial the court on September 12, l 958 rendered judgment finding Asuncion Cruz guilty in both cases and <Bentendng. her to pay a fine of P250.00 in ea.ch case, Juan Andan • was:aeQi.litted in both cases. · ·0n·· November 16, '1958, respondents-appellees filed a complaihf'·fur unpaid wages against petitioners-appellants with Regional Office No. 3 of the Department of Labor. A motion to disIDiss was filed on the ground of reS judlcata and for lack of jurisdiction to try or hear the complaint. Thts motion was dented· by the Hearing Officer. On January 12, 1959, petitionersappelliliits filed a motion for reconsideration of the order denying their motion to dismiss. The Hearing Officer denied the niotion for reconsideration. After trlal a decision dated Februilry 17, 1959 was rendered sentencing the petitioners herein to pay the respondents the sum of PlS',904.00 for overtime and ''unpaid wages and the sum of Pl,890.00 as attorney's fees. On April 6, 1959, petitioners-appellants filed a petition for exteirsion of time to appeal with the office of the Labor Standards, Bureau of Labor, which petition was dented in an order issued by the respondent Hearing Officer, dated April 6, 1959, and who at the same time issued an order directing the issuance of Writ of execution. On April 24, 1959, petitioners filed the petition for Certioi'ari 8.rid Prohibition with Prellminary Injunction in the Court of F1rst 'Instance of Bulacan. In an order dated June 5, 1959, the said court directed the isSuance of a writ of prellminary injunction enjoining the respondents from carrying out the decision Of Regional Office No. 3 of the Department of Labor. 'The writ was issued on August 8, 1950. On January 16, 1961, the lower court rendered the decision dismissing the action. So it also dissolved the writ of preliminary injunction. In this appeal '.lppellants contend that the lower court erred in: 1. Holding that the defense of res judicata cannot be availed of in the proceedings had before Regional Office No. 3 of the Department of Labor; and 2. Holding that said Regional Office No. 3 had jurisdiction to hear and try the complaints filed by the respondents-appellees before it. On the question of jurisdiction of the Regional Office No. 3 of the Department of Labor, the Court finds ~d declares that said Regional Office has no jurisdiction to hear and try the complaint ·filed· before it by the appellees. In the cases of Corominu~ Jr.;. et: aL .ya;. Labor Standa:rda-·Commisaion, ·et al;, G.R. No. L-14837, Manila Central University vs. Calupitan, et al., G.R. No. L-15483; Wong Chun vs. Carlim, et al., G.R. No. L-13940 an9, ·Bal~dg•ri:- Co., Ltd. vs. Fuentes, et al., G.R. No. L-15015 jointly decided by the Supreme Court on June 30, 1961, it was held that the provision of Reorganization Plan No. 20-A, particu.larly. Se~ .. 25 thereof, granting regional offices. of the Dep~ mcnt of Labor original and exclusive jurisdiction to consider money elaim,S including overtme pay, is not authorized by the provisions of Republic Act !i97 which creates and grants power to the Reorganization Commission. · for this reason regional of. fices have been declared in a long· line of decisions without :luriscliction to consider money claims fUed by laborers. The se.. cond assignment of error is therefore sustained . As regional offices of the Department of Labor' have no jurisdiction to Clinsider claims of the respondents-appellees· it is unnecessary for us to pass upon the first ground of appeal. Wherefore the decision appealed from is hereby revc;:rsed, .the decisions rendered by Regional Office No. 3 are herebY set aside and all proceedings therein in relation to the claims aga~nst petition~rs as well as the o~ers issued by s~d R,~gional Office No. 3 are hereby declated null and void. With i::osti: against respondents-appellees. · Bengion, C.J ., Padma; . Bautista Angelo, Concepcion, J .B.L. Reyes, Barrera, P~redes, l>izOn, and Makalintal, )J., concu,rred. Regal a, J .,. took no pp.rt. · IX J.M.. Tuason ilJ Co., Inc., et al., PlaintHfs-appellees, vs. Ricardo Baloy, defe.,.dant-appellant, G.R. No. L-1627, M•y 30, 1963, Dizon, J. RELIEF FROM JUDGMENT; LACK OF ALLEGATIONS OF FACTS IN AFFIDAVIT TO PROVE EITHER FRAUD, ACCIDENT, MIST AKE OR EXCUSABLE NEGLIGENCE. --' Appellant's Motion for Rellef from Judgment is not supported by the corresponding affidavit of merit and does not allege any showing of fraud, accident, mistake or excusable neg- , ligence to serve as a Valid basis of the petition. While the petition for relief was verified, it sets forth no fact or set of facts, sufficient to constitute one of the gr9unds for relief under Rule 38 of the Rules of Court. And as the lower court stated in the appealed order, the petition was not accompanied with an affidavit of merit. On pages 12 to 15 of the Record on Appeal, there appears an affidavit of merit subscrlbed by counsel of appellant. HELD: As it appears printed in the Record on Appeal after the opposition filed by appellee in which the irisufficlency of the petition for relief was raised because of the ·absence of an affidavit of merit to support the same, It may be presumed that this affidavit was prepared to meet and solve the situation. It is, however, clearly insufficient to cure the defect of the petition, because the allegations of fact made therein do not prove either fraud, accident, mistake or excusable negligence, nor do they show a valid defense in favor of the party seek,ing relief. DECISION This ts an appeal from the order of the Court of First Instance. of Rizal (Branch of Quezon City) denying appellant's petition fo~ relief from a fin~l and executory judgment rendered on December 16, 1959 in Civil Case No. Q-4290. It appears that on June 7, 1959, appellee flied the above· mentioned case against appellant to recover possession of a parcel of land containing an area of approximately 550 sq. meters, to have him remove his house and other constructions therefrom, and to recover the monthly sum of P165.00 as rental from the date he unlawfully occupied the propertY in April 1949, until possession thereof has been restored to appellee. Appellant filed his anawer and,. atter trial on ·the 111£r1ts,. the Court reil.dered (C..ntjnµe<i on pase 191) COURT OF APPEALS DECISION Fl"Udeco College, hua., petitioner .... Gom.alo w. Gonzales, Commlaloner of the Social Security Coamdsalon and Social Seeu· rltJ System, respondents, CA-G.R. No. 31020-R, May 24, 1963, Plcdo, J. 1. SOCIAL SECURITY ACT; OBJECTIVES OF THE LAW~The Social Security Act has for Us fundamental objective, the protection not only of its employees but also the employers as well. The law has intended to devise a system which would enhance and promote free enterprise by providing for the means, the requirements and the .needs of both capital and labor. We preceive from lts provisions such unwritten law and policy as would deny the com•ersion of the Act to squeeze contributions from organizations and. institutions at any cost irrespective of their abillty or inability to effect such contribution. 2. SOCIAL SECURITY COMMISSION; HEARING CONDUCTED BY A COMMISSIONER; FINDINGS TO BE REPORTED TO THE COMMISSION IN BANC; PROCEEDINGS· NOT ADEQUATE WHERE EVIDENCE ARE NOT COMPLETE.-Petltioner cont.ended that, as far as procedural requirements are concerned, the Initial hearing in question had not ~ by the Commission la bane but b7 one of its members who had to report h1s findings eventuallJ to the Commission bl bme for correaponding decision on the case. Verily, the proceedings in such a hearing could not be considered adequate for the Commission In bane to act upon if the records - consequently the evidence - are not complete. 3. ID.; ID.; BARRING INTRODUCTION OF EVIDENCE AMOUNTED TO DENIAL TO BE HEARD AND TO DEFEND.It is vigorously contended by petitioner that Exhibits D, D-1 to D-11 are of vital Importance to its evidence and barring their introduction, moreover, the1r consideration, would be tantamount to· a denial to petidoner of its inherent rights to be heard and defend itself fully. This condition is more evidently· projected in situations such as this obtaining in the instant case, considering that the sanctiona imposed by the Security Act - which might possibly be Imposed upon petitioner - are punitive in nature. The law itself, being ap· parently in its swaddling clothes, is but an experiment, so much so that the vast, noble crusade of our government to improve the conditions of labor should proceed not altogether oblivious of the, at times, precarious position of capital. The groundwork for such an experiment must have to stand finnly on reasons and equity. 4. ID.; ID.; ID.; PETITIONER BE ALLOWED TO PRESENT ITS EVIDENCE IN ORDER TO ATTAIN PROPER ADMINISTRATION OF JUSTICE, EVEN A LITTLE DELAY MAY BE CAUSED THEREBY.-The granting of the lnatant petition, although implying another extension of time, appears necessary - for a complete submission of facts as alleged b:y petitioner - to enable the Commission In bane to pass upon the lasue or issues properly, adequately and thoroughly in the interest of Justice. While controversies of this nature should be promptly passed upon and decided, yet when the element of time needs a little stretching in order to properly attain the objectives in the administration of Justice, a little more delay caused thereby may be suHered. Fann must be subordinated to substance, and speed, not being in itself definite, must be reconciled to the inclemencies of attendant circumstances. Thus, in the instant controversy, th9 requirements of substantial Justice would inquisitively prompt us to consider the introduction and eventual consideration ot the import of Exhibits D, D-1 to D-11 and accord them the importance that they mar possibly deserve. To deny this would appCar· to be a grave abuse of discretion on t'e$pondcnt's part. DECISION The instant petition is ·for the. issuance of a writ of preliminary injunction to restrain respondent Hon. Gonzalo W. Goomles, then Commissioner of the Social Security Commission and the Social Security System frttm taking further action In Case No. 163, then pending under it - until proper final detennina-tion of said case on the merits, thus annulling the order com-plained of, and eventually requiring respondent commissioner to either give petitioner a chance to submit and identify Ezhibits D, D-1 to D-11, Inclusive, in connection with the trial on the merits of the case or requiring respondent to examine and consider the import of those books of accounts of petitioner. The facts have disclosed that petitioner, having been required by respondent to submit itself under the purview of the Social Security Act, particularly Sections 22 and 24 thereof, a corresponding hearing was· had. After both parties have been heard, in a motion dated June S, 1962, petitioner prayed. for the re-opening of the case so as to allow petitioner to submit and . identify certain documents marked Exhlbiti D, 'D-1 to !D-ft, inclusive, appearing to be records, documents and books pertaiulng to its operation and with which to establish that the petiUoner-College has been losing heavily and was not, therefore, in a position to contribute to the funds of the Social Security System. This motion was subsequently denied by respondent Commissioner on the ground that the move has been allegedly c;levl&ed to unnecessarily delay the proceedings, and this because of previous repeated petitions to transfer the hearing dated October 11 and 23, 1961, December 4, 1961 and February 8, 1962 - thus. implying that respondent Commissioner, in denying the instant petition for the re-opening of the case, has not abused his discretion, much less violated the law. We have thoroughly examlned the voluminous record of the case - which revealed that such repeated petitions tor post.ponement had really been prayed for by petitioner and that the proceedings had been pending for sometime to date. Be this as it may, the interests of substantial justice would require that parties-litigants be accorded the furtbeat measure of opportunities with which to defend themselves. Petitioner insists that the documents (Exhibits D, D-1 to D-11) are vital to lhe maintenance of its position, above all, necessary in the final solution of the issue lnvolvcd. Although not introduced on time, perhaps through inadvertence by previous counsel, they, however, constitute evidence allunde. Petitioner aontends that the aforementioned documents (Exhibits D, D-1 to D-11) when properly considered will establish that petitioner has for years since Its foundation, notwithstanding the competency of its ·management and conduct of its affairs, been losing heavily to such extent as to leave the same unable and incapable of meeting the demands ot the Social Security Act. The Social Securlty Act, we glean from its provisions, hsa for its fundamental objective, the protection not only of Its employees but also the employers as well. The law has intended to devise a system which would enhance and promote free enterprise by providing for the means, the requirements and the needs of both capital and labor. We perceive from its provisions such unwritten law and policy as would deny the conversion of the Act to squeeze contributions from organizations and institutions at any cost irrespective of their ability or inability · to effect such contribution. Petitioner adds that, as far as procedural 'requirements are concerned, the initial bee.ring iD question had not been by the LAWYl!RS JOURNAL June JO, -l!Ml COURTS OF APPEALS • . . (Continued from page 190) Commission In bane but by one of its members who had to report his findings eventually to the Commission In bane for corresponding declsion on the case. Verily, the proceedings in such a hearing could not be considered adequate for the Commission In bane to act upon if the records - consequently the evidence - are not complete. And it is vigorously contended by petitioner that Exhibits D, D-I to D-11 are of vital importance to its evidence and barring their introduction, moreover, their consideration would be tantamount to a denial to petitioner of its inherent rights to be heard and defend Itself fully. This condition is more evidently projected In situations such as this obtaining in the instant case, considering that the sanctions Imposed by the Security Act - which might possibly be imposed upon petitioner - are punitive in nature. The law itself, being apparently 1n its swaddling clothes, is but an experiment, so much so that the vast, noble crusade of our govenunent to .improve the conditions of ·labor should proceed not altogether oblivious of the, at Umes, precarious position of capital. The groundwork for such an experiment must have to stand fhmly on reasons and equity. 1be granting of the lnataot petition, although implying anolher ex.tension of time, appears necessary - for a complete submission of facts as alleged by petitioner - to enable tho Commimon ID bane to pass upon the issue or issues properly, adequately and thoroughly in the interest of Justice. While tontrovenies of this nature should be promptly passed upon and decided, yet when the ,element of Ume needs a little stretching iD order to properly attain the objectives in the administration of justice, a little more delay caused thereby may be suffered. Form must be subordinated to substance, and speed, not being in itself definite must be reconciled lo the inclemencies of attendant circumstances. Thus, in the instant controversy, the requirements of substantial justice would inquisitively prompt us to consider the introduction and eventual consideration of the import of Exhibits D, D-1 to D-11 and accord them the importance that they SUPREME . . • (Continued from page 189) decision in favor of appellee on October 21 of the same rear. Said decision became final and executory and the correspond~ ing writ of execution was issued on December 5, 1969. On the 16th of the same month and year, appellant filed the petition for relief mentioned heretofore, to which appellee interposed. a written opposition. After a hearing on the petition, the Court denied the same because it c;Ud "not comply with the provisions of the Rules of Court with respect thereto. Besides, the said Motion for Relief from Judgment is not supported by the corresponding affidavit of merit and does not allege any showinc of fraud, accident, mistake or excusable negligence to serve as a valid basis of the petition." The order appealed from must be affinned. While the petition for relief was verified., it sets forth no fact or set of facts sufficient to constitute one of the grounds for relief under Rule 38 of the Rules of Court. And as the lower court stated in the appealed order, the petition was not accompanied with an affidavit of merit. We notice, however, .that on pages 12 to 15 of the Record. on Appeal, there appears an affidavit of merit subscribed bJ' Cornelio Ruperto, counsel for appellant in th1s case, as well as . in Civil Case No. Q-4290:. As it appears printed. after the opposition filed by appellee in which the insufficiency of the petltion for relief was raised because of the absence of an affidavit of merit to support the same, it may be preswned that this affidavit was prepared to meet and solve the situation. It is, however, clearly insufficient to cure the defect of the petition, because the allegations of fact made therein do not prove either fraud, accident, mistake or excusable negligence, nor do they show a valid defense in favor of the party seeking relief. WHEREFORE, the order appealed from 1s affirmed, with costs. · mQ possibly desene. To deny this would appear to be a grave Bengzon, C.J., Padilla, Bautista Angelo, Concepcion, J.B.L abuse of discretion on respondent's part. Reyes, Barrera, Paredes, Regala. and Makalintal, JJ. concurred. Petition is hereby granted, reiterating the writ of preliminary injunction already issued, thus restraining respondent Honorable Commissioner or the Commission itself, from taking further action in Case No. 163 aforementioned. until the final determination of the same on its merits, the corresponding hearing to be conducted by respondents accordingly. Without costs. Picclo, Narvasa Rodriguez, JJ ., concurred. TIIE VALUE OF PRECEDENT• "Aa a general rule, a court follows the old beaten track of precedents, without stopping to inquire in the reasons upon which .,they, rest; until it discovers that to follow it in some particular case will result in great hardship or manifest injustice, when, for the first time, it feels itself bound to reconsider the reasons upon which thC precedents it has hitherto followed rest, and upon such reconsideration it may find that the grounds upon which the original case was decided are not sound, and that all the subsequent cases have simply followed it without examining the reasons upon which it rests, or it may tum out that the ~ns upon which the original case was decided have ceased to exist. In either of the cases supposed, where the case has not become a rule of property, the court should disregard the precedents, and announce such a rule as is consonant with reason and justice. The value of every case as a precedent, which is not founded upon some statutory provision and has not become a rule of property, depends entirely upon the reasons which supported it. If it is founded upon a misapprehension of facts, or is supported by false logic, or the reasons upon which it rests hav~ ceased to exist, and the case has not become a rule of property, 1~ sh~uld be disapproved, and no longer be recognized as authoritative. ~y, J., in Dodge v. Cole, 97 III 338, 37 Rep. 111. Labrador, J., Took no part. E R R A T A TO APRIL, 1963 ISSUE Insert the phrase "provision prohibiting'' after the word ''constitutional" on p. 98 left side 9th line from the top. Insert the phrase "and to remain in power'' after the word "power" on p. 98, right side last line. On p. 100, omit the last two llnes on the right side of the page except the word ''equal,". Insert the sentence "counsel for plaintiff sent to the GSIS through the manager'' after the word "property" on p. 103 in the case of Francisco vs. GSIS, left side 8th line from the bottom. · Omit in the same case, same page, the phrase "to the GSIS through the manager plaintiff sent" in the last two lines on the left side of the page. In the same case on p. 104, left side, omit the phrase "and the actual price" on the 13th line from the bottom of the page. In the same case on p. 104, left side, omit the phrase "in Art. 2203 of the Civil Code, such absence is" after the word "enumerated" in the 11th line from the top of the left side of the page. Insert the word "no" after "that" onp. 108, left side, on the 19th line from the bottom. · On p. 122 after the word "motion'' on the left side of the page, 5th line from the top, insert· the phrase "is necessary and without proof of service thereof, a motion''· · .June '.30, 1963 .LAWYERS JOURNAL Page 191 PROFILES OF THE MEMBERS OF THE BENCH AND BAR Justice Hermogenes Concepcion, Jr. On June Isl, 1963. Hcrmogenes Concepcion, Jr., the young man aspiring to reach the top of his governmental career, suddenly found himself just one step short of the ve1-y top when he took his oath of office as as:i;.ociatc justice of the Court of Appeals. Having just turned 43 years old last April 7, he ranks among the youngest in the present roster of justices in the Court of Appeals. To be more precise, he is the youngest of them. H is talent and grit not yet fully exploi ted, coupled with h is pleasing personality, Justice Concepcion is undoubtedly destined for still higher positions in the state legal hcirarchy. To have been catapulted from City Fiscal of Manila to the cherished distinction of appellate court justice in so short a time is certainly a recognition of his marked ability as a public prosecutor. His designation as such rests on a solid foundation of his brilliant performance and record as a public prosecutor. Justice Concepcion truly deserves this appointment. Ha\1 ing hurdled the difficult bar examinations in 1941, he embarked In the active practice of law in 1042 when he opened his own law office. After his brief stint of three years as a private practitioner came his appointmen t as Assistant City Fiscal of Manila. This post h e held from 1945 to 1958, after which he was promoted City Fiscal of Manila in 1958. All in a ll, Justice Concepcion served the government as a public prosecutor for eighteen years. Now, he will serve the government as a jurist whose .sacred role is to explain and interpret the law to a ttain the ends of justice, and preserve its majesty as well as to maintain the dignity of the court. From his long and wide range of experience as public prosecutor, Justice Concepcion believes that, for an efficient administration of justice in crim inal cases, the establishment of municipal courts and courts of first instance whch would have sole and exclusive jurisdiction to try them would be most suitable. He highly recommends this to expedite the speedy disposi tion of criminals cases and, hence, prevent clogged court dockets. He opines that, instead of separate annual conventions of j udges, lawyers, and fiscals they should have a joint convention headed by one judge of the Court of Flrst Instance, two active members of the bar, the Secre tary of Justice and the SolicitorGener<il. In this way, their common problems can be' beuer discussed and resolved, resulting in a more efficient admiitistra!ion of justice. He further suggests that in order th<it ~' fiscal may be able to carry out of his jop more efficiently, h e ~houlc\ enjoy the s<ime degree of independence as judges do. Of the countless cases which he h as prosecuted, Justice Concepcion considers as the most memorable and worthy of mention, th~ first Politburo case in 1950, which he successfully prosecu,ted in the Court of First Intance of Manila. Our na.tion was then in gra\•e danger of Communist subversion because of the menacing strength of the Huks. It was his impressive performance and unparalleled feat as prosecutor of that case that aurncted the attention of the late President Ramon Magsaysay, who lost no time In conferring upon him the distingulshed award o[. the Legion of Honor. To add to his string of honors and distinctions, Justicc'Concepcion was chosen president of the Government Prosecutors Le<igue or the Philippines for two consecutive terms from 1960 to 1!.162. Lik!! Other great men of knowledge and experience, he ' had the desire to Impart what he knew to others. And so, he ·joined the law faculty of the Philippine Law School, the Far Eastern University, and the University of Manila. He taught in these schools for no less than nine years from 1949 to 1958. For J ustice Concepcion, however, it is not all books and serious work. He also believes in that saying in Latin, "mens sana in corpore sano", that is, a sound mind in a healthy body. He indulges in occnsiona! golf to keep himself fit and· ·conditioned to meet the continuous challenge and the rigors ·iri ' th!! exercise of the legal profession. Serious work tempered· with moderate recreation is what he considers the ideal Jlfe for a ' lawyer. Justice Concepcion first learned the primary and ili.termc· diate subjects at the Cabanatuan Elementary School after wl1ich, he pursued his secondary education at the Nue\·a Ecij8. · High School where he graduated after only three years. A se lf~made man from the very start, he journeyed to Mani la and enrolled ror his pre-law studies at the University of the Philippines; then situated at Padre Faura. At the state university, he was not to be easily outdohC bolh in curricular and extracurricular activities. Aside from consls~ tcntly maintaining his position among the top in his cl...iSS, he won that coveted award, the OL1ezo11 Medal for Excellcftce in Oratory. His fellow students acknowledged his sterling qualities as a leader when they elected him in 1940 to the highest position of president of the state university student counci l. J ustice Hermogenes Concepcion, Jr. first saw the light of day on April 7, 1920 in Cabanatuan City, Nue,•a Ecija." His father, Hcrmogenes Concepcion, Sr., still living, as well as his mother, the former Rosario Diaz, now deceased, both hail from Cabanatuan City. His father who was himself a judge of the .Court of First Instance, is now retired. In 1944, Justice ConcepcioO. marl"ied the former J osefina C. Reyes, a lass from Candaba, Pampanga, in whom h e has continually found that inspiration and guiding light through all the trying years of his life as a lawyer and public prosecutor. Justice Concepcion and his wife, Josefina, arc blessed wi1h two children of whom they are very proud. Both arc now studying. To the query on whether he would. prefer them to be lawyers like himself, he quipped, "No", very significant 9r a father's natural concern for his children and his apparent awareness of the sacrifices that a lawyer's life calls which he considers ·•too much for so little.'' · Page 192 LAWYERS JOURNAL June JO, · 1963 MISSING PAGE/PAGES