The Lawyers Journal

Media

Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No. 2) February 28 1954
Year: 1954
Language: English
Rights
extracted text: " APR I ·, i376, ·wJJ& I.A WYERS J OURNAL I 1 , 1 MANILA, PHILIPPINES )\'; LUME XIX FEBRUARY 28, 1954 NUMBER 2 VICENTE J. FRANCISCO 1-.ditor and Publisht•r LOPE E. ADRIANO RODOLFO J. " FRANCISCO Assist:wt Editors ADELA OCAMPO Business Manager RICARDO J. FRANCISCO Assistanl Rusiness i\!ana(!'er THE LAWYEHS JOURNAL ls published monthly by Sen. Vicente J . Francisco, former delega.te to the Constitutional Convention, practisinj.?' attorney and President of the Prancisco Colleges (fr.nncrly Francisco Law School). SUBSCRIP TION AND AD VERTISING RATES: 8ubscription: Pl8:00 for one year; PlO.UO for 6 months. Advertising·: Full paq-e - 1'!05.00 ; Half page - P65.00 ; 11 1 i I Iii, 11[ OCJ{ SECRETARY OF JUSTICE PEDRO T UASON l\TOOERN T,RE N.D, OF CR'll\fJ NAL JUSTICE AS I NCO RPORATED I N THE PROPOSEJ.D CODE . OF' CHll\TES - Ry Guillem10 B. Guen11·a AN APPRA ISAL OF THE PRO POSEL> CODE OF CRI MES - By Aml)l'Osio Padilla DOUBLE JEOPARDY UNDER TH E ART ICLES OF WAR - By Major Claro C. Gloria, JAGS T HE NAT URAL LAW T HEO RY AND THE P HI LI PP INE SUPHEJ\I E COURT - Ry Crisolito Pascual - Continuation SUPREME COURT DECIS IONS: Valenzuela vs. Bakani - Justice Paras Bohol vs. Rosario - Justice Tuu.son Busacay vs. Buenaventura - J ustice Tuason Javier vs. Arnneta, et al - Justice Bautista Angcln Orias, et al. vs. Ribo, et al. - J ustice Padi!la · The Leyte Sama1· Sales Co. and Tomassi vs. Cea Bulos Vda. de Tccso1, \"S. Bensamin et al. - .Justice Rautista An,!!elo PabiJ..:rnia and Pabilonia \"S. Ilon. V. Santiago - Justice Reyes Lopez vs. Matias Vda. De Tinio - J ustice Padilla. Vogel and Vogel vs. l\loldero - Justice Mo11 temayor Benluy vs. Republic of the Philippines - .Justice l\lontcmayo1· Capio vs. Capio 1 Acuiia and Diaz vs. l<'ul'Ukawa Plantat;on Company - Justice Heyes . Cebu Portland Cement Company vs. Varela. et al. - Justice Heyes . Santos vs. Ac1uino et al. - J ustice Padilla . ' l1JGEST OF UNPUBLISH ED DECISIONS OF T HE SUPREME IO URT _ 4ND COURT OF AP P E:ALS HECISIONS OF T HE COUHT OF IN DUSTRIAL RELAT IONS UPINlON OF T HE SECRETARY 0 1- JUSTICE, KO. 217, l~J53 J:.EPUBLIC ACTS f'AY YOUR INCOME TAX MEMORANDUM OF T HE CO DE COMM ISSIO N - Continuation PUBLIC CORPORA TI ONS - " Contin11atio11 J..AUG HT ER IS LEGAL ll =Onc-fou rth pai,:-c - 1'45.0U; One-eight. paKc - 1 '35.00; Ont:!<ixtcenth page r 2:,.l)(l ~ntcred as second cla::s mail maUc1· at the Post Office. RU S INES.~ OFFI CE: 1192 Ta..ft Avenue, Man ila. Tel. 5-43-55 58 (j4 G4 67 , GS G9 70 71 73 75 7r. 77 7'.79 79 80 82 83 8.5 87 !lfl 92 '3 94 n 10, 11 11 EAST PUBLISHING lU12 Taft Avenue Manila Tel. G -43-5G FRANCISCO LAW BOOKS IN SERIES llEVJSED LJST OF PRICES AS OF .JANUARY G, 195'1 1'123.60 lf.)4.50' 30.90 61.3.0 51.50 35.45 l0.30 .10.30 6.25 G.20 6.20 10.30 15.45 8.25 51.50 10.3l! 8.25 b.20 10.30 15.4!'i 10.30 10.30 8.25 12.40 8.25 12.35 S.75 8.25 5.00 12.ar, 25.75 30.90 12.60 Laws on Natural Resources 9.30 Pre-Bar J0.30 Pre-Bar G.45 5.Mi Pre-Har Review on M<'rcantilc Law 8.25 Pre-BP ~:· Review on Political La\\" 6.45 Pre- Rat· Review on Civil Pi·ocedurc C Pleadin,c.;;). fi.M Pre-B:1r Rtvi~w on Cri minal Proc<.dure 6.45 Pre-Bar He,•itw on Land Registration & l\1ert 6.45 Pi·e- Bar Rc·viC'w en Adm. Law, & Pub. Officci·s 5.4!i Administrntiv•· Public Officen, STILi. IN THE PJ:ESS ,. 30.90 25.75 25.75 iil.50 51.50 25.75 41.20 NOTb.' : /'i·icc., herci1i nbn1·c 'flWfe1/ wrc ·'"bi•'''' Iv d1•t11!/,. 11•ilf1011/ /1<J1i, .. ·• Srrfr.~ lrr.r i1,,·/1,,/1•d. Fvr 111·11vi1H·i11l <Jn/cf vf ..,,1e bnak, n1i nd<Etion1tl rv.JJ ii; ,./l(lrged /111· mailing wnd lwndlilig e.rp.;nsei;. Reduced subscription rate to th ~ , LAWYERS JOURNAL ~ R Effective January 1, 1954 the Journal can b had at - - - f'18.00 for I year, im;tcad of P:M.UO; Pl0.00 for 6 months. instead of Pl 2.00. The subsniption rate for 3 months and the rnst per cop.v remaim; Ht PG.Ofl and P2.00, rP~pet' iively. Subscribers who made ad vance remittances under the old rat~s will have their subscriptions extended in accordance with th is new scheclu~ S u b~c ri be now to U1e - - LA WYERS JOURNAL 11 \1~ Taft Avenue, 1\rlanila Tel. No. 5-t13-55 B 0 0 KS MAGAZINES ANNUALS BROCHURES ~ CATALOGS IJ L A B ELS S 0 U V E N I R • . PROGRAMS AND ANYTHING THAT IS PRINTED ~ap} to_ l __ PUBLISHING HOUSE, INC. " ll <>H«' ,.f Fiu~ Off s~I l'l'i ulin~·· ,\ flAmou l(u<r• 1' 11 hli<~li"" " Su h.•idiA •Y l>ii.l60i.•kfor lJ6.J or 6U uk for 26~.J OUR SECRETARY OF )USTlCE PEDRO TUASON Notorious in the pre-constitution days was the politics inspired "rigodon de jueccs" or shuffling .:if judg'('S. The public denounced it, the press ridiculed it, and the Supreme Court condemned it time and a.gain. Nobody like it except the politicians and the politicians liKed it because it served their sinister purpose well. Fer tbei1 part, many district judges accepteci it as a necessary evil. For one t.hing it enabled them to fatten on per diems; for another, it offered them a chance to prove their loyalty and servility to the powers-that-be and hasten their promotion. So vocal had public criticism become that when the Constituent Assembly begnn to draft the Constitution in 1934, the delegate<> d£cided to do away with the "rigodon." It was, they argued, a flagrant violatior. of the democratic doctrine of separation of powers. The Secretary of Justice, an extension of the Chief Executive, has no business encroaching on the judici? .. ry. An attempt was made to let the President himself do the shuffling, but it was frustrated. Thus the Constitution now 1irovides: "No judge appajnted for a particular district shall be designated or transferred to anothe1· district without the approval of the Supreme Court." Strangely enough, when some jurists who have frowned upon the "rigodon" find themselves occupying the post of secretary o{ justice, they change their attitude. They begin to wonder whether it is not better, after all, that they should be permitted to wieid the power they u'sed to depri;!Cate, not for the sake of politfrs. but, so they say, in the interest of the public and for the benefit of justice itself. Because he had been reported as saying that "with or without. the consent of the Supreme Court, the power of the Secretary of lh1stice to assign a judge from one district to another should be enlarged and made more adequate; otherwise the Depai·tment of Ju~tice would be crippled," it would seem that the former Supreme Court Justice Pedro Tuason, concurrently Secretary of Ji;istice, is no exception. Actually, however, this is not so. Whe11 queried further on this point., the present Secretary of Justice said: "I have not changed my attitude lowards the so-called 'rigodon de jueces' and I should wish this made clear. I said that I would be inclined to favor modified or slightly modified 'rigodon', with or without the consent of the Supreme Court, only if the positions of judges-at-large and cadastral judges are abolished, and all judges are made district judges - a change which is being advocated in Congress and to which I concur." Sl~C. OF JUSTICE PEDRO TUASON disgrace to the judiciary." He believes, however, that it will be well-nigh impossible to weed out undesirable judges for the simple ' n~ason that it is not so easy as the public thinks to prove charges. One thing is to allege; another, to prove the allegation by competent evidence. It is not enough, as many laymen think, to say that a person is bad; one must prove it to the satisfaction of the court. The trouble today, Justico Tuason 110tices with regret, is that people who allege t.hat a certain judge or official is venal or rotten to the core do not even bother to testify on oath that he is really that bad. And yet, -they are so quick to suspect or impu_te evil motives. To make matters worse, the laws, Justice Tuason finds, confer many privileges on judges, privileges which constitute, according to him, "one of the prices we have to pay for our con- · stitutional form Clf government and for the advantages with which the independence of the judiciary was conceived." The remedy, 11~ thinks, is in the final analysis "to get good me11!' But how long will a good man last when ho is tempted or when he stands under a terrific political pressure? A province-mate of the late eminent jurist, Cayetano Arellano, onetime Chief Justice of the Supreme Court, Pedro Tuason was In other words, Secretary Tuason bclie,•es that when a judi- born in Ba!anga, Bataan, on September 15, 1884. He first studied c1aJ district has its dockets clogged the Secretary of Justice shoul<l in e public schoo!; but whe11 the American Army opened a. school be able to assign another district judge to assist in clearing them in his town, he immediately enrolled. He wanted to master the in the interest of justice itself. But, it may be asked: Can't the llf-W languag<:! a.nd learn the tenets of democracy and freedom. judge-at-large or a cadastral judge do the work? Such apt itude he displayed that i1t no time }1e was appointed teachThere 'vould be no such judge if the current move in Con- er. His salai·y was eight pesos a month, barely enough for his gress for the abolitiOJl of the present classification of judges is immediate need:;. For five years he taught, then took an examadopted. Under this Congr'essional plan, to which .Justice Tuason• ina.tion for government scholarship. He passed it and was sen~ has expressed his conformity, the position of judge-at-lal·ge and to the United States. cadastral judge would be abolished, every judge being classified as a district judge, earning the same proposed salary of e.t least Pl2,000.00 a year. Under such a setup, surely the powers of the Secretary of Justice should be enlarged so that he can assign a judge from one district to another m cases of emergency. The Secretary of Justice, Justice Tua.son insists, must naturally be "one who will not prostitute justice for the benefit of a man or a group of men." So upright and so honorable must he be that whenever he feels that he is being used as a to.al for this or that party in power, he should immediately resign. But would a man less rigid and resolute than Justice Tuason be able to emulate so noble an example? Would he be able to resist the temptation of compromising, confronted as he would be with the exigencies of politics? Secretary Tuason admits th&t the preo;ent Department of Justice needs revamping and tha.t the provinces should be regrouped into judici_al districts. The judiciary, too, sllould be reorganized because, in 11is opinion, "at present there are judges who are a To New Jersey he went and attended the State Normal School at Trenton. From there he proceeded to the Georgetown Univer..:sity Law School. By 1908. he had his LL. B. He rushed to Yale for a \Jost-graduate course. A year later, he retu1·ned to the Philippines. To his disappointment, he was given an assignment in the Bureau of Education: a classroom teacher. Probably to console him, the bureau promoted him to supervising teacher in his: own home-town. There he fell in love with a charming townmatc, Crmcepcio11 de Leon, for whom he gladly gave up his freedom. Ce1·tain that he was a 0 better lawyer than teacher, he transf<:rred to tl1e then Executive Bureau where he knew he could appl} his knowledge of law. Not fully safo;fied, he moved to the Bureau · of Justice where in time he becarii.e private secretary fu the Attorney General. There he remembered that a rolling stone gathers no moss. So in 1912, he took the bar examination. · For his pains, he was na.med provincial fiscat' of Misamis, Surigao, (Co1btinued on page 107) February 28, 1954 THE LAWYERS JOURNAL ., MODERN TREND OF CRIMINAL JUSTICE As incorporated in the proposed CODE OF CRIMES By GUILLERMO B. GUEVARA* As we all know, crimes afld criminals have pre-eminently engaged the attention of rulers and jurists since the early dawn of histc1·y. Some 4,000 years a.go, King Hammurabi through his "lex taliones" tried to solve the \'Cxing problem of crimes and criminals with the application of the famous formula of "an eye for an eye and a tooth for a tooth." I believe that all of us agree that the formula did not work, for we know that crimes and criminals have increased in geometrical progression with the population of the world. Since the "lex taliones" of Hammurabi up to the present, plenty of water passed under the bridge. Scores of theories regarding the Justification and purpose of penal laws have been expounded aud put i.nto practice; but so far, society a:;: a whole, feels that it is not sufficiently protected against the peJ'ennial onslaught of criminals. It would be too presumptuous nf me to engage your attention on the discussion of the merits or demerits of absolute, relative and mixed theories. I shall confine myself to expound, as briefly as poi;.. sible, the characteristics of the Jee.ding schools \\•l1ich now prevail in the juridical world, namely, the Classical School, the Positivist School and the Cl'iminal Politic. Briefly speaking, the first school or the Classical School, is eminently philosophical, juristic and dogmatic. It. attaches more importance to the crime, or to lhe act, than to the criminal or tu the actor itself. For this reason penalty under this theory, should be inflicted in proportion to the magnitude of the damage caused by the criminal. On the other hand, the Positivist School is eminently realistic and experimental. It considers the crime, not as a mere juridical entity or creation of the law, but rather a social or natural phenomenon. This being the case, the man-criminal, or the delinquent, and not the crime or the act, should be the main concern of the criminal law, under the tenets of this school. 'l'he classicist has chiefly in mind the attainment of retributive justice, through the infliction of punishment or penalty, which they consider as a payment due to society by whomsoever violates the penal law. The positivist vn the other hand, has as principal aim, the social defense, or the defense of society. It is not concerned whether the offense is avenged, or whether the offender i·eceives its due punishment. For the positivists the whole question boils down to whether or not the offender is dangerous or, very likely, will be a menace to society. That is why, instead of the classical penalty or retribution, the positivists have the security 11ieasure, The third school or the Criminal Politic, is a happy medium between the above two opposing camps. It believes in short detentiv(' 11enalty, without prejudi1=e to imposing- security measures upon dreadful criminals or socially dangerous riersons. As we all know, the present Revi8ed Penal Code of l!l30 i<;i patterned after the classical Spanish Code of 1870, a school of thought conceived originally by Cesare Boncsa, better known as Marquis cic Bacarria in 1764, and elevated to the highest degree of scientific perfection by that genial professor of Pissa, the eminent Dr. Francisco Carrara. The essence of this school, as we know, is that crime is a pure and simple fiction of law. In other words, there is no crime unless there is some Jaw defining and punishing it; that criminal responsibility can only be demanded or exacted, so long as the element of imputability exists; and finally, that penalty which is inflicted upon the perpetrators of a crime by way of retribution and moral coercion, must be provm·tionate to tlie harm or crime committed, nol only qua.ntitatively, but also q11,11litatively. When Professor Carrara bewildered the juridical world in 1850 with his scientific classification of penalties into graduated scales, and into different grades and periods, so that one particular kind of crime may only be punished with one specific set of penalties, mathematically measured in terms of years, months and days, very few thought then, perhaps, not even the most stubborn iconoclast, •Former Mem~r o( the Code CommiHion. AN APPRAISAL OF THE PROPOSED CODE OF CRIMES By AMBROSIO PADILLA* Fellow members of the Bar, Ry Executive Order No . .fS, the Code Commissivn was created for the purpose of "revising all. 'O!Xisting substantive laws or the Philippines and of codifying them in conformity with the customs, traditions and idiosyncracies of the Pi!ipino people and with modern trends in legif:la.tion and the progressiv1; principles of law.'' The Code Commission submitted a Civil Code project, which, with slight modifications, was approYed by Congress as Republic Act No. 386 known as the Civil Code of the Philippines. The same Code Commission sub. mitted its second project - the proposed Code of Crimes, which 1s i1itcnded to substitute for the Revised Penal Code. It is not my purpose today to discuss out· Civil Code, whose provisions I have attempted to expound and clarify in my work on Civil Law. But I intend, with your indulgence, to discuss with you the merits or demerits of the proposed criminal code. The members of the Code Com~ission, particularly its Chairman, have earnestly advocated for the prompt passage of this new Code, but no legislative action has been taken thereon Up ·to the present. It is, therefore, proper, that the members of the Bar should interest. themselves in appraising this new codification, because its enactment into law will vitally ;;i.ffect, favorably or ad\•ersely, the peace and order conditions in ou~· country and the apprehension, prosecution and punishment of violator!> of our penal laws. Our Revised Penal Code, Act. ~o. 38Hi as amended, was revised in 1930 based on the Spanish Penal Code of 1870 and took effect on January 1st, 1932. Our jurisprudence is rich in court decisions applying the provisions of our Revised Penal Code, which seem fully adequate to cope with the various forms of crime and all types of criminals. Dean Roscoe Pound once said: "Law must be stable, but .it cannot stand still." \Ve should, t.hercfore, welcome every improvement or advance towards more effective legislation. But any change should be for the better, for the Code Commission itself admits that the proposed changes should not be "merely for the sake of innovation." (p .. 43 of report). We do not have to stress originality, for the concept of crime, which arises from the evil nature of man, is as old as humanity itself. We need not adopt new "trends and objectives" merely for the sake of being modt!rn, unless they are sound and are in conformity with our own customs and traditions a.s a people. The Code Commission was entrusted with the duty to revise existing laws and codify them, not necessarily create new crimes. At the same time, we should not remain stagnant, for adherence to the static may mean not only a refusal to1 advance but an actual step backwards, I invite you, therefore, fellow members of the Bar, to discuss with me the vros and cons of the propod~d Code of Crimes to help crystalize legal opinion as to the wisdom of its adoption into, or rejection from, our penal system. The shift fro1n the da.ssical to the positivist - The first basic departure from the Revised Penal Code is the shift from the classical or juristic theory of penology to the positivist or realistic theory. Following the classical principle in our present Code, criminal responsibility i(I! founded on the actor's knowledge and free will. The positivist school, however, denies or minimizes the exercise of free volition alld considers the criminal as a victim of circumstances wl1ich predispose him to crime, for the Code Commission states that "criminality depends mostly on social factors, environment, education, economic conditions, and the inborn or hereditary character of the criminal himself." (p. 22 of report) The classical theory stresses the objective standard of crime and imposes a proportionate punishment therefor, but the positivist school considers the deed as secondary and the offender as primary, and provides for means of repression to protect society from the actor - to "forestall the social danger and to achieve social defense" (p. 3 of report), because it takes the view that "crime is essentialiy a social and natural phenomenon" (p. 3 of report). In other words, the classical view imposes responsibility for an act maliciously perpetrated or negligently performed ,while positivists view the criminal iiot so much an object * A.U •. Ll. B .. D.C.L. Profe.!<!or of Criminal Law 58 THE LAWYERS JOURNAL February 28, 1954 MODERN TREND ... that there could be any better system than the classical school. Amon~ the ccnfirmed bclicYcrs in the virtue of the Classical School, were Spanish and Filipino jurists, who, for the last 70 years_ , have been laboring undPr the impression that penalty, being retributive in nature, must bf' exflctly proportionate to the harm done, and for that reason, must be prefixed, determined and specif:c. But the scientific reputation .which the classical school gained was ::;oon shahn in the early 1800 with the publication of a b:i0k entitled "Crimes, its Causes and Remedies," written by an Italian physician, Dr. Ceasare Lambrose, wherein, for t he first time, the attention of the juridical world was arrested to the existence of 2. criminal type or delinquent man. It is not my purpose here t<J nrnke a lenghty exposition and anl\lysis of Dr. Lambrose's book. Suffice it t.o ~ay, that l1is ideas kindled the fertile minds of two other Italian masters, ProfessorSI Hafael Garofalo and Enrico Ferri, and eventually g<>.ve rise to the birth of a new, vigorous and realistic school of thought in criminal science, what is knowr. as the Positivist or experimental school. T hanks to the books of Lambrose on criminal type; to "Criminology" of Professor Garofalo, and to "Criminal Sociology" of Pi·ofessor Ferri, the juridical WC"rld has fallen heir to a precious legacy in the matter of treatment and approach to th0 eternal problem of crime and criminals. Thanks to these three evangelists of the gospel of Positivism, the juridical world has finally realized that society cannot be defended against the continuous onslaught of crimim1ls by the machine-like applications of pre-fixed penalties, and the ·excessive ui;e of abstract ·legal principles. What matters, in our fight aga.irist crime and criminals, is the study of the man-criminal himself, the selection of ways and mealls whereby a criminal would be deprived of an opportimity to commit crime, or if he has already committed any, that he may not be given a chance to repeat his anti-social activities. Since the gospel of Positivism is now widely spread over Eurupe and South American countries, and its tenets found expression ill the Pella! Codes of the majority of tl1e countries in both Continents, the Corle Commi3~ion felt that it would be recreant of its du\ies, sh0uld it fail to open its eyes to rc ... Jity, and accept obliging!:; the benefit of the experience of Europe and America. It 1s in this tho'ught and spirit that our proposed Code of Crimes has been conceived. The proposed Code of Crimes r\oes llot belong exclusively t(l any 'lf the two opposing schools. If at a\l, it belollgs to the third school, or to Criminal Politic, being the result of a compromise between the two fulldmnenta! and conflicting criteria. The Code Commission still believes that free will should be the basis of criminal responsibility, instead of the dreadfulness of the offender, as vigorously maintained by the Positivists. For this ret:son, the proposed Code, like the present Classical Code, declares in Articles 22 and 23, exempt from criminal liability those persons who are deprived of freedom, intelligence or intention. As a necessary consequence of the declaration, the prorosed Code had to H:cognizc in Article 24, as sufficient cause for diminishing or mitigating criminal responsibility, any circumstances which can or may hmder the exercise of the free will of the doe-r. With regard to the concept of penalty, the Commission ha s adopted a happy medium between the criterion that penalty is a 7J<mishmcnt or rctrilmtion for the wrollg d0ne, and the idea that it is n rncial defense. The proposed Code, for this reason, represses, with either fine or deprivation of liberty in the form of confinement or imprisonment, the commission of crimes. De:ith :orntence may also be inflicted in extreme cases, as a means of eliminating hopeless!y dangerous Jiersons. To Nase as much as possible all traces of punishmellt, the period of repression, which, will take the place of the penalties of the present Code, has k~en greatly shortened. The longest period of imprisonmer.t, wf.ich is heavy imprisonment, is from f) to 15 years, while the shortes~ (the confinement) is from 1 to 14 days. But, as I have stated, the repressions, l>c they confinement or imprisonment, are imposed for the sole purpose of satisfying the <·nds of justice, that is, for ethical reasons. Such repressions surely AN APPRAISAL ... of punishment or retribution but as a patient deserving of social consideratioll for reformation, to the end that society may be protected. The Code Commission has practically abandoned tl1e clas.!.;cal concept of retributive justice providing for punishmellt for crime freely executed, and has adopted instea.d the llew theory that repression of crime is "applied for social defense, to forsta\l social danger, to rehabilitate, cure or educate" the transgressors of criminal law cArt. 34). Should such a shift from the classical to the positivist theoi·y of criminal law be adopted aS a sound step forward and as being more in harmony with Filipino customs and traditions? It would be a dangerous theory - to minimize, if not negate, the exercise of free will based on knowledge of the actor that the act committed is a transgression of our penal law. In fact, such a theory would conflict with the stubborn fact of our own experience that a. criminal is not a desperate instrument of evil compelled by forces or circumstances beyond his control, but rather that he strays beyond the stdct and nanow path of good conduct kllowingly and voluntarily. For without knowledge or without free will an actor must be exempt from criminal liability <A1:t. 12, Revised Penal Code). 111ola in sc or 1nala prohibita - The proposed Code of Crimes colltains !)51 articles, as compa1·ed with the 367 articles of tire Revised Penal Code. The increase in size i3 due? to the considerable number of additional offenses. It has included offenses now pullishable under special laws. For example. Title VII dealing with "Crimes Against The P eople's Will" is co\·en:d ' by our Hevised Election Code. The new Code has penalized unfair lnhor practices (Arts. 506-507) which are covered under Republic Act No. 875, otherwise referred to as the Magna Carta of Labor. It has mcluded "Motor Vehicle Crimes" (Arts. 712-718) which fall under the Heviscd 11.fotor Vehicle Law tAct No. 3992 as amended) . The inquiry arises: Should the pellal code include in its provisions all reprehen!>ible acts that should be punishe<l or repressPd, or rather should they be limited to inherently wrongful acts which are commonly known as ma/a per sr:, a<; distinguished from mala prohibita? The penal code is the basic and fundamental law on crimes. It , must, therefore, be st<:ible alld should not vary with every .:hanging circumstances, bec<iuse the acts penafo;cd therein should be limite<l to evil acts which are such by the very nature of man as decreed by Divine Law and reflected to human reason as the Natural Law. Thus, to kill or to steal are mala per se - expressly prohibited by th(' Ten Commandments. They are illhcrently wrong at all times, in any place, and under eYery circumstance. No advance of civilization, no vestige of modernity, can ever justify such inherently evil <:icts. The proposed Code of C1·imes, however, co!1sidcrs that an act, criminal when committed, may subsequently lose "its dangerous or criminal character by reason of a change in the criminal law, or the alteration of the so<-ial or political situation" (Art Hi). The reason is that the proposed Code ~seeks to include offensr.s subject to special penal laws, for some acts, in themselves colorless, become transgressions of the law because of the peculiar purpose to be attained, dependent on certain prevailing circumstances. Thus, the possession of firearms is regulated by special laws (Sec. 2692, Amd. Code; Com. Act No. 56; Hep. Act No. 4l, and pcllalizes as a crime the illegal possession there0f, to control Joos~ firea1·ms a.nd discourage irresponsible gun-wielders. Similarly, our elcci:ion law forbids any pen:on to ellter a polling precinct with arms, regardless of the intention of the actor - whcthe:r or not the arm is intended to be used to coerce or intimidate voters. Likewise, the Motnr Vehicle Law penalizes a person who drives without a license. Obvimisly, however, the act of possessing a firearm, of entering a pr('cinct with arms, or dt'iving a car without a license, as the case may be, do not render saici acts intrinsically or inherently wrong. They are only prohibited acts, mid such prohibitions will contil:ue as long dS the law has an objective to achieve, but such pur - pose or objective may be lost by a change of circumstances. Jn such case, the p:·ohibited act would cease to be crimillal. The Cc;de CCJmmission should not have included in the proposed Code of Crimt,., - the basic or funcinm ental Jaw on crimes - violations of special laws, which arc not mala in se but only 11wla prohi~ita. The proposed Code ')f Crimes ha& included many misdemeanors which should be the proper subjects of municipal ordlnances. Tims, F ebruary 28, l!J54 THE LAWYERS JOURNAL 59 MODERN TREND . will not protect the community from the nefarious and anti-social activities of certain types of criminals whom the! Code classifies as ·•socially dangerous person." For this type of offenders, the pr~~ posed Code reserves, in addition to the conventional repression, t lle security measures, which consist in the inlernment of the offender for an indefinite period, in some agricultural colony or labor esta. blishmcnt. • Under the provisions of Article 109 of the proposed Code of Crimes, the above-described security measure may be imposed in two instances: firstly, upon any person who hu.s been sentenced to medium imprisonment or longer (from 3 years up); and secondly, upon any offender, even though sentenced to a shorter term, provided the Court finds in the offender, a "certain morbid disposition, congenital or acquired by habit, which by destroying or enervating the inhibitory r:cmtrol, favors the inclination to commit a crime." <Art. 107). Under the provisions of the proposed Code, the internmen,t of socially de.ngervus pe1·sons shall nol t~rminat~ until the courts, upon report of a competent board of psychiatrists and technicians in penology shall be fully convinced that the internee is no longer socially dangerous. It is believed that an indett!rminate security imposed upon hardened or professional criminals \Viii be a far better safeguard to society than the present pre-fixed penalties of our present classical code. With an indefinite internment in a labor establishment or agricultural colony, c1 iminals of the> type of Parulan, Dick-a-do, and others, could not have caused havoc to society. It is the considered cpinion of the Commission that the security measures of the proposed Code of Crimes, if rightly enforced, will reduce to the m inimum the risk of the community from anti-social activities of 11rofessional and dan~erous crimin'lls. Another innovation of decidedly Positivistic tendency is the pro\'ision of Article 17, in connection with Article 62 oi the proposed Code, which confers upon the Court the power to repress, either with the repression one degree lcwer, or the same repression intended for rite cons11ni.mated oj {01.;:;e, m1y fru£trated, or attempted crime, prOposal to commit an offense, bearing in mind the nature of the crime, the means and ways of the perpetration thereof, the intensity of tpe cl"imina.l intent, the extent of the resulting injury, and the personal antecedents of the actor. The. p1·esent critel"ion of the c.lassical school of lowering always bv one 1)1' two Ucgrees the pen.'l.lty for the frustrated or attempted c;·;mc, ,\ ithLJut any regard to th6 persongl antecedents of the doer, the nature of the offense, the intensity of criminal intent, de .. does not seem to be som1d. Few, if ever, will be convinced, that a hardened and professional criminal who has put into execution all mecns within his command to rob and murder his Yictim, but only out of sheer luck of the victim, the bullet missed him, should deserve less condemnatio11 or less repressive measure, than an occasional cJ"iminal who hapnen s to consummate the same offense. T he right and sensible criterion, therefore, is not to base. neccssa.rily upon the degree of the consumm~.tion c.f the offeuse or the harm done, the repression to Oe impo!<.ecl tipon a doer, hut rather upon the drcumstances already mentioned. Another sti·iking innovatil)n in your proposed Code is the cc.nversion of acccssoryship afler the fact (enc1onliri1niento in Spanish), into the category of an inde11endent and .sep::irate crime. Under our present classical code, as we all know, an accessory after the fact is one who helps in the flight of a murderer, or conceals the body or instrument of a crime, or knowingly hides or receives stolen property. Under th1'): present set-up, the respo11s!bility of an accessory after the fact is subordinated to that of the principal; so that, if the principal is acquitted or not prosecuted, the accessory after tlie fact, no matter how conclusive is the evidence against him, cannot be punished. The flaw of our present system is self-evident. If the proposed Code of Crimes is· finally approved by Congress, the hiding, concealing or receiving of st(')en prope1·ty shall be one kind of crime against property :i.nd the abdting in the escape of a crimilial, destroying the body or the instl'uments of the crime. or the wiping out of traces of the same, shall be another kind of crime against the administration of justice. These crimes can be pro;:;ecuted independently, and without 1·egard to the prosecution or conviction of the thief, in the ca~e of !:'tolen prop_eriy, nor of the criminal to wh9m help was given, in the latter cases. AN APPRAISAL . social gatherings between 2:00 and 5:00 in the morning (Art. 75G), dancing or music <Art. 757), or sale of liquor <Art. 900J between said hours, should be covered by municipal ordinances. Even smoking i11 a first~class theatre <Art. 921.) sho11ld not be declared a misdemeanor under the penal code. The proposed Code of C1·imes :'llso penalizes violations of Civil L<.w provisions which should remain within the realm of Civil Law. In seeking greatei· protection for fami ly solidarity, it would p(malizc alienation of affection between the husband and the wife (Art. Gl6), the disturbance of family relations by any intrigue (Art. 617), collusion for legal s1<pe.ration or annulment of marriage ' Art. 619). dcpr:vl.!.tion of the legitime of compulsory heirs lArt. G26), or i·efusa! to discuss compromise of a civil litigation among membe>rs of a family <Art. G35). nut not every act which involves a ''iolation or infringement of a civil 1·ight should give l'ise to criminal prosecution, since liability for civil damages would be ::dequatc relief. Art. 624 penalizes & lessor who fails to cancel a lease of his house or building after know. ing that the building is being used hr prostitution. Art. 852 punishes a les;;or who wilfully violates the terms of a lease by refusing or failing to furnish a service 01· facility 3gt·eed upon. Likewise, a lessee who wilfully abandons the premises without first havi11g· settled his rental indebtedness to the !Csso1· commits a misdemeanor under Art. 853 which would .:.mount to sanctioning imprisonment for (lebt. These are pui·ely civil matters which affect the private r ights of the COJltl'a.cting parties. Neither the ''iolation by the lessor nor by the lessee should give rise to a c\"iminnl offense, unless such violation would constitute a specific crime by itself. 8itnifai· 7Jrovisions ·T here are some pJ"Ovisions which are pl"esented as 11ew, but are essentially a reiteration of the prevailing rule. Thus, when a criminal :Jct is pei·petrnted by a legal entity which, as a jul"idical lJerson, can not commit_a c1·ime, the persons responsi ble therefor are the pi·esiJent, manager or director, either as principals or for criminal negligence (Art. 30). A rticle 178 imposes special subsidiary liability upon employers engaged in nny kind of business or industry for the payment of the iine imposed on their employres. This is similar to the subsidiary liability now p1ovided in Art. 103 of the Revised Penal Co(k. Article 180 imposes solidary liabi lity on principal and accompli"Ces. The same rule is prescribed in Article 110 of the Revised Code. The proposed Code considers accessot"yship as a separate crime (p. 1 .~ of report), but the legal effect is the same bcc:lUse the accessory receives a penalty two degrees lower than the principal in a consummated offensr. The proposed Code has abolished the concept of quasi-offer.se, or a crime committed thru negligence. T he 2.bolition, hnwever, is more n1 1parent than real, because the same concept remains and is called culpable or without criminal intent, when the injurious or dangerous result takes place in consequence of neglipence, recklf'ssncss or Jack of skill <Art. 14). Moreover, crime thrn negligence is repressed Jowci· by one or two categories prescribed fo r the intentional crime (n. 28 of report). · G1J()d im1oi;ations - 1'he1·e are, howevl'r, some new provision£ in the proposed Code which deserve favorable study and adoption. Art. i.145 is a provision against Jishoncst zccumulation of wealth, so that property grossly in excCss .:if the normal and probable earnings of a public official will be: foJ"fcitcd to, and declared propei·ty of. the 8tatc. This will be ai1 effective deterrent against so much graft and corrupt.io1.1 in government 2.ml its subsidiary corporations, where public service and the general welfare have been sacrificed for personal material advantages. A i·t. 82~ penalizes nepotism anrf Art. 824 thf' evasion of the law against nepvtism, wl1ich arc good provisions in view of the prevalent custom of 0 11t· officialdom. Art. 44G limits the provision against self-incrimination and ·demands the testimony or productio11 of books and papers in an investigation and trial. The same rule is provided in Art. 342 where a J>erson, duly ~ummoned to testify before any court 01· congressional committee, slwll not be excused from testifying or producing docu;ments, although he shall 11ot be prosecuted for 1!.ny statement or admission he might make or because of such document. Art. 194 suLjects a person who attempts to commit suicide to curative security measures, includir.g detention in 1. hospital fo r lrt!atmrnt. This is a reform to Art. 253 of the Revised Penal Code, GO TH E LAWYERS JOUHNAL February 28, l!J5; MODERN TREND ... The mechanit>m of application of penalty or reprc-ssion has been greatly simplified. The principal :repressions consist, as I Jiave already stated, of deprivation of liberty and fine. Death penalty has been preserved, but it can only be impos<!d in extreme cases. 'Vith the limitations imposed by the proposed Code, it can be sa.fely stated that death penalty has been pradically aboiished. The deprivation of liberty is classified into: life imprisonment which at most lasts 25 years; heavy imprisonment, from 9 to 15 years; medium imprisonment from 3 to 8 years; light imprisonment from 6 months to 3 years; confinement from 15 days to 6 months; and rest1·aint. from 1 to 14 days. Accordin,1t to the pr'Jvisions flf Article 57, the repression prescribed by the -Code shall be imposed upon the principal of the crime. The presence of modifying circumstances in the commission of the crime will have the effect of imposing the repression either in the lower half, or in the upper half, depending upon whether circumstances arc mitigating or aggravating. Thus, if the penalty . prescribed for the Cl'ime is heavy impriso?unent, (from~ to 15 yean:), n.nd there is or there are one or two m!tigating circumstances, the jnrlge will have full power to impose any penalty ranging from 9 years and one day to 12 years; and conversely, if there is or there are only one or two aggravating ci!·cumstances, the judge can impose. anywhere between 12 years and one day to 15 years. If there are no modifying circumstances, or the existing one Jffsets each other, the court would be justified in impasing the penalty in the neighborhood of 12 years. 1obreover, under Article 73 "every di\'iSible repression shall be divided into the upper half and the lower half. Within either half, the Court shall impose that repression which in its sound discrdion shall best accomplish the purpo:;;es of rcpres:;ion as enunciated in Article 34 of this Code, after considering the nature and number, if any, of the mitigating or a~·gravating circum~tances, !!.nd the actor's social and family environment, educ2.tion, previous conduct, habits, economic condition and other personal factors." It is thus seen that rather than mathematic:il sub-division and fractions which characteriie thi;: mechanism of the classical schooi, wh11t the judge will need in the application of the proposed Code,· if finally approved, would be profound knowledge of human nature and psychology. · The condititmal sentence is another step forward in the proposed Code. Under it, a judge has ample discretion to suspend a senten<'e of conviction when the accused is a first ofiender, and the term of tl~e sentence does not exceed one )"ear, provided the accused fully indemnifies the ·famage, if any, inflicted upon the victim. Should the convict ubserve good conduct <luring· 5 months, if he does not commit any offeJLse during said period, the sentence shall totslly prescribe; otherwise it will be enforced. If the proposf!d Code is approved, fines shall have the same effect upon the rich and the poor. It will be truly democratic; unlike what happens under the present set-u11, when fine is painless, nay, insensibie, as far as the moneyed class is Mncerned. Fine shall be imposer!, not in terms of pesos, but in terms of days of earning. An executive, for in£tance, with an i~come of l"300 a day, who is sentenced, siJ.e by side wi1h a laborer earning P5 a day, to suffer 5 days of earning each, will suffer exa.ctly the same pinch or burden as the latter; for this Pl,500 which is the equivalent ·of his 5 days, has the same weight or value of the t"25 to the laborer. Jn line with the criterion that repression is more of a sanction and sC1cial defense than a punishment, the proposed Code has provided for pre-delictual security measure. Under the provision of Article 108, a person ma.y be judicially declared dangerous, and then be subjected to security measures described even if he has r.ot been prosecuted for any specific crime when he shows any symptoms, evidences 01• manifestationi; of habitual rowdism and ruffianism. With this provision it is expected that mauy holdups, kidnappings, and murders can be prevented. The police records and investigations of holdups, kidneppings, and murders invariably show that they have been committed by profcssio11al ruffians, police characters or "butaiigeros" in loral parlance. Bec.'.1use ~f the absence of a provision regarding predelictual Sf!curity measures in the present Code, our law enforcement ugencies have been absolutely helpless to neutrelize the anti-social activities of professional !'owdies or "butaiignos," unless they are surprised "infragranti," AN APPRAISAL ... which penalizes a person who assists another to commit suicide- but does not prescribe a penalty for the person so attempting. In view of the difficulty in prosecuting arson suspects, Art. G89 raises a JJrim,1t fncie presumption of guilt in some prosecutions for arson. This good provision is not in violation of the presumption of innocence becaufle the Revised Penal Code itself contains prima facie presumptions of guilt. Art. 6G7 provides for specfo.l or additional aggravating circumstances in theft. This is much more · satisfactory than the pre6ent provision on qualified theft, which limits the enumeration of property to "motor vehicle, mail matter, large cattle, coconuts taken from a plantation OF fish taken from a fishpond" (Art. 310, Revised Penal Code). Innovations subject to criticisms - There are, however, many new provisions in the proposed Code of Crimes, or changes advocated, which deserve careful study and scrutiny. (a) Attempted vs. FrustratedThe new Code proposes to abolish the distinction between attempteci and frustrated crimes (Art. 6, Revised Per.al Code). On the other hand, it imposes repression upon the principal of an attempted crime, or upon the conspirators, or upon the proponent of a crime <Art. 62). Under the Revised Penal Code conspiracy and proposal to commit I\ felony are not punishable, except in specific cases where the law specially provides a penalty lArt. 8, R.P.C.). There seems to be no 'valid reason for the elimination of the different stages of execution, for the differe!lces between consummated, frustrated and attempted lArt. 6, R.P.C.l are clear and real. It is true that in crimes like bribery, which is consummated by mere agreement, there is no frustrnted stage; and in crimes like abduction, adultery or arson, the distinction between frustrated and attempted is rather difficult. But such difficulty which obtains only in few particular felonies would not justify total abolition, for, certainly, an offender who merely commences the c0mmission of a felony directly by overt acts, and does not perform all the acts of execution should not be held to the same degree or responsibility as the offender who performs all the acts of exE"cution which should proJuce the felony as a consequl'nce Lo\.rt. 6, R.P.C.l. Moreover, why should conspiracy and proposal be m&de punishable when the offenders or offender have not translated their intention into positive acts falling within the purview of tl'.e penal law? While th£' moral law does 'not wait for external acti; and seeks to control m:tn's innermost thoughts as violative of the moral code, the same standard can not be applied to felonies falling under our pen:o-.l laws. Again, we can not rely on the subjective standard hut must apply the objective test. Even the present law on impossible crime (Art. 4, par. 2, R.P.C.l is limited to the performance of an act which would be an offense against persons or property. (J:.) Socially drmgcrous without ctnnmitting spec,ific crime - Article 5G1 of t.he proposed Cod£' is a strange provision. For d - though a person may not have committed any specific crime, he could be declared socially d?.ngerous and be subject to curative security measures and may therefore be confined or hospitalized until such time as he is 110 longer dangerous to society (Art. 562). Article 108 likewise provides that a person, e\'Cll if he has not teen prosecuted for a specific crime, may be subjected to detentive security measures lArt. 114), when he shows anY symptoms, evidences 01· manifestations of habitual rowdyism or ruffianism (Art. 209). If the Code Commission recognizes the basic prir.ciple of nulla poena sine lege, why should a person be deprived of his libe1ty and subjected to curative or detentive security measures on vague and uncertain manifestations that he may be socially dangerous, if he has not in fact performed an overt act constituting a specific crime? The proposed Code, following it;; purpose of repression, which is for sociai defense, to forestall social danger against possible transgressors of criminal law <Art. 34), considers the "actor's social and family environment, education, previous conduct, habits, economic condition and other perS-Onal factors" (Art. 73l, and would impose detentive security measures which "shall last until the court has pronounced that the subject is no longer S-Ocially dangerous" <Art. 114). Hence, the Codf! authorizes indflfinite detention.even for gun-wielders or rowJles (Arts. 108 and 209J. And even if a convict has already served the maximum of his term of imprisonment, he may not be February 28, 1954 THE LAWYERS JOURNAL 61 AN APPRAISAL ... released if the court should declare that he is still socially dangerous. Too much discretion is given the trial comt. In fact, in the imposition of the terms of repression, which should really be terms of imprisonment, the proposed Code does not follow the objective, though mathema.tical, proportian between the felony and its penalty as aggravated or mitigated by circumstances in the Revised Penal Code, but leaves a greater degree of latitude to judicial discretion. If we must curb or Jessen judicial abuse of discretion, we should limit the extent of such discretion. If the standards are not objective but more subjective, there can always be an apparent justification for unequal, if not arbitrary, discrimination among accused pel'Sons simib!'ly situated. If an accused, aftel' a first offense, is declared no longer socially dangerous, we find difficulty in explaining the provision on habitual criminal <Art. 67>; and more so, a professional criminal (Art. 68) . for, if after his first conviction he is not capable of reformation but continues to be a threat to the State and the public, he should ,then suffer indefinite confinement. But how can judicial discretion determine whether a person has been reformed and is no longer a danger to society, or that he still constitutes a menace to the public, if he remains under confinement? (c) Neither hero nor criminal - Art. 804 penalizes as a misdemeanor against the public administration the refusal of any person to aid an officer of the law in the arrest of any lawbreaker, or in the maintenance of peace and order. To the same effect is Art. 810, No. 1, which punishes a person \\'ho fails to render assistance in case of a calamity or misfortune, like e<.wthquake, fir<' or inundation. It is praiseworthy to inculcate in our 1 ieople higher concepts of civic-mindedness. We extol to the heights of heroism a person who, in disregard of his own self, serves the community specially in times of :>tress. But tl1e \•ast majority of the people ca.n not be expected to be heroes. And if an ordinary mortal, with feet of clay, can not rise to the extraordinary demands of community service, such as in the arrest of a lawbreaker or in putting out a fire, why shr.uld his failure to act, his indifference, or if you wish, his cowardice, be branded as a criminal offense? That ~va's the same enor ec.mmi.ttcd by some Filipinos in the United States who were beyo~d the clutches of the Japanese oppressor, when, after liberation, as self-proclaimed heroes, they accused their brothers in occupied P hilippines, particularly the occupation leaders, of treason just because the lattet· did not defy the J apa.nese invaders by sacrificing their lives, but rather pretended to cooperate for national survival. One per cent of the population may have been heroic; another per cent may have been inclined to treason by bal'tei'ing their birth~ rights for selfish advantages; but ninety-eight per cent were neither heroes nor traitors. They were just plain mol'tals subject to human weaknesses and frailties. Ce!'tainly, a man who can not i·ise as a hero should not be condemned as a Cl'iminal. td) Criticisut of the State or eivit institution - Art. 324 penalizes under sedition any priest or minister who shall utter or write words derogatory lo the authority of the State, or shall attack civil maniage, the public school, or any similar civil institution established by the State. Art. 423 penalizes any priest or minister who, in any manner, violates the principles .of separation between Church and State. Any school professor or teacher who shall refuse to use textbooks or ether books prescribed by the Government <Art. 933> commits a misdemeanor against good customs. 'l'hese provisions would make of the State and its officials infallibk, beyond the scope of free speech and constructive criticism. This would be a step backwards glorifying the errcneous assumption that the " king can do no wrong'' and reviving the obnoxious crime then known as "les mtJ,jeste". It would be contra!"y to the accepted principle that the State must promotl" th-:i general welfare, and if it should fail or falter in that sacred trust, it becomes not only the right but the duty of a citizen to protect his inalienable rights, which anted.'.lt~ the State. Likewise, the Church is dedicated to the salvation of human souls and, within the exercise of religious freedom, it can ad\'OCate its religious doctrines and principles, even if they contravr.ne some policies of the State. Thus, if the public schools become godless instituti011s, as, when contrary to the constitutional prnvision guaranteeing optional religious instruction, the holding of religiouss classes is prevented or discournged, the priest and ministers would be perfectly justified in their sermons and writings to advocate a ch:mge in tJ1e conduct of such civil institutions. There must be liberty under the law, and the scope of the exercise of such liberties or speech or of the press ca.n not exclude the State and its political institutions. And such free exercise of the rights of free men should not fall under the penal sanction. (e) Misfeasance by judicial officer;; - appeal by State in criminal Similar to the provisions on malfeasance and misfeasanc~ in office by judge$ and prosecutcirs (Arts. 204-208, R.P.C.), the proposed Code penalizes a. judgt'.! who fails, within the time prescribed by law or regulations, to try, hear, or dispose of a case or proceeding (Art. :::74); or who slrnll require a manifestly excessive bail for the temporary release of the accused (Art. 402); a judicial officer who, with abuse of discretion, impairs or denies the rights of the accused (Art. 413) ; any judge who shall maliciously render a.n unjust judgment, ordel' or resolution <Art. 4f14). These provisions arc praiseworthy, because the°Y arc designed to Jll'ntect an accused from the arbitrary exercise of judicial power, but like the provisions of the present Penal Cod<' (Arts. 204-208), they arc dorm~mt an<l inert provisions, be. cause it is very hard to prove malice on the part of the judge who renders a.n unjust judgment or interlocutory C'rder. While members of the Bar should not countenance the continuance in office of a judicial officer who, contrary to hi!'; oath, does not render decisions in <:ccordance with the law and the evidence, without fear or favor, still thut sad situation exists. And it is more so in criminal cases, where no appeal lies against a judgment of acquittal or dismissal, even on the ground that the prosecution has failed to prove the guilt of the ;:ccused beyond reasonable doubt. Once the prosecuting fiscal moves for dismissal after the accused has pleaded, and without the latter's consent, or a judgment of acquittal is rendered by lhe court after judicial proceedings, the State, including the offended party, is rendered powerless to have a review of such judgment, because the judicial interpretation to the double jeopardy clause in the Constitution has rendered such a review by way of appeal impossible. That ruling was based on the majority decision in the case of Kepner vs. U.S., 195 U.S. 100; 11 Phil. 669. Decisions previous to that 5 to 4 decision in the Kepner case had unanimously adhered to the sound view 'that the provision against double jeopardy (sec Art. 414) does not preclude an appeal by the Government from a judgment of acquittal, for while jeopardy may have attached, it has not tcm1inated - the appeal is not e. new or separate proceeding. The greatest restraint against arbitrary power by inferior courts is the exposure of their erro!'S on &!Jpeal. To give finality to an order of dismissal or acquittal hy a trial court is to stamp it with some semblance of infallibility. If' the trial had been infected with error adverse to the accused, he has a right to purge the vicious taint. Why should not a reciprocal privikge be granted the State so that the discretion of the trial judge may neither be arbitrary nor oppressive? (f) St1"icter rules of morality - The new Code "advocates more strict rules of morality" and proposes "more severe and more rigid standards of morality and good conduct" (p. 44 of report). It seeks to establish "the single standard of morality" (p.46) among spouses. Thus, Art. 568 provides for adultery not only by a manied woman havi11g intercoul'se with a man not her husband, but also by a married man who has one sexual intercourse with a woman not his wife. Likewise, the three modes of committing cOncubinagc (Art. 334, R.P.C.l arc made applicable to a wife <Art. 56!), No. 2). A single standard of morality between hus~ band and wife may be desirable in the moral order, but these new provisions are hardly in accord \vith humai1 experience or human nature. One act of infidelity on the pa1·t of the husband can 11ot cause as much havoc as an act of infid'!lity on tlle part of the wife. Art. 572 of the proposed Code considers as a crime the act of any unmanied man and woman of living together under the s::une roof, regardless of scandal. The birth, therefore, of a natural child would be conclusive proof of the commission of this offense. A fortiori, the birth of an illegitimate child would be convincing evidenc(' that his father, as a married man, committed several acts of adultery. And yet, the same Code Commission inserted in the new Civil Code the substantial change of granting illegitimate children successional rights as compulsory heirs. Art. 871 penalizes a person who marries without obtaining a THE LA WYERS JOURNAL February 28, 195.1 MODERN TREND ... The above provisions a~e the hcst answer to the persistent cla- civilized world has been trying to produce for the last four thom:anrl mor of the community for pre\•entive measures against the inuninent years some penal code which would deal a death blow to crime and and probable onslaught of professional gangsters. After all an ounce criminals. But little or uo progl'eSs at all has been achieved to of prevention is worth more than a pound of cure. obtain the desired goal. Another striking innovation of the proposed Code is the extra- I do not, I cannot claim, tha.t the proposed Code would serve the territorial effect given to its provisions. Our present concept of cri- purpose of a miraculous panacea to all of our social and moral ills. minal Jaw is exceedingly provincial. With the exception of crimes Hut-I venture to say in all modesty that it tries to embody the most com,mitted on board our ships and men of war, while navigating on progressive principles of the 1ienal science. high seas or on foreign territory, and crimes committed by public The bill of rights in our Constitutfon as well as in the Federal officials a.broad in connection with the performance of their official Constitution of the United States; and even the Magna Carta of the dutiPs, or falsification and forgery of our securities and coJns, the human rights, the famous Declaration of the Rights of Men proprovisions of our present Code are effective only within the Philip- claimed by the French Revolution, are all wonderful, but onesided, pine Republic: Under the proposed Code, any serious crime committed documents. The authors and framers of these immortal documents abroad by ·nationals or even by foreigners when the victim is a na- huve only specialized and endeavored to undeJ"take the defense of the tional or the State, may be prosecuted hel"e under certain conditions. rights of men, the rights of individual persons; but none of them has Th'ese are the salient features of the ground work of the new given serious thought to the defense of the rights of society. The Code. The catalog of specific crimes has been greatly enriched S'l proposed Code of Crimes, submitted to your consideration, is an en.. as to cover all conceivable forms of criminality and inunorality. Suf- cleavor to fill the gap. fice it to say that the proposed Code is 3 times longer than the pre- The Committee, I am sure, will find, after a mature consideration sent one. · of the Book I of the proposed Code, that, if the same is approved, It would be too presumptuous of anybody to claim that an ideal society will in the future find itself on an equal footing with the or perfect code ce.n be drafted. As I said from the beginning, the individual person, as far as_ protection of the rights arc concerned. AN APPRAISAL ... certificate from the health authorities that he is not suffering from treason difficult. any of the -diseases therein mentioned, such as tuberculosis, cholera Art. 435, which prohibits any public officer from accepting the or dysentery. This article makes marriage not only difficult but also construction of any monument in his honor or the naming of any 2.s constituting an offense. The previous ·article <Art. 572) makes co- public sh"eet or building, would 1·ender many of our political leaders habitatio!l without marriage likewise an offense. Although eugenics subject to confinement. may justify the postponement of ma.rriage when one of the parties ll e s 1t tn e - is not physically fit, a marriage ceremony should never be made a I have attempted to bring to your attention some meritorious propenal offense, because marriage is not only a social institution but a visions of the proposed Code of Crimes which could be adopted under divine sacrament, which the St.ate may pe1·haps regulate but can not special laws or by way of amendatvry acts to the present Revised Nntrol, much less penalize. Penal Code. J have likewise invited attention to ma.ny provisions (g) Death. by spo11se under exceptWnnl circ1lmst1i,11ces - which may be unsatisfactory, if not totally objectionable. The good Art. 247 of the Revised Penal Code is practically an excmptirrg features may be adopted without enacting the proposed Code into circumsta.nce for any spouse who surprises the other in the act statute, but its deleterious provisions can hardly be avoided without of committing sexua!'intercourse with another. Art. 185 of the 1n·o- positive action to reject its enactment into law. posed Code would change the principle and provide for a repression The enactment of Republic Act No. 386 as the New Civil Code of with imprisonment, on the ground that "only God, and in extr~me the Philippines has not met with th~ universal approbation of the cases the State, may dispose of human life" (p. 59 of report). Verily, Bench and the Bu. In fact, it has met with some serious criticisms. no man but only God has the right over life and death, but when an If the proposed Code of Crimes be recommended for enactment into offender commits a grievous act of aggression, such as an attack law greater criticism will ensue, for it constitutes a drastic departure on one's life or against family honor, the killing of the aggt"essor i<- from the basic philosophy of our penal law a.nd its new trends and justified, because the offender has thus fodeited his right to his own objectives are hardly in consonance with the customs and traditions life. Otherwise, we would have no basis for the justifying cil'cums- of the Filipino {Jeoplc. tanceR of self-defense, defense of relative und of stranger <Art. 11, Recommendations - pars. 1, 2 and 3, R.P.C.). The new Code wants to give greater pro- This app1·aisal of the proposed Code of Crimes would remain tection to family solidarity and yet it would deprive the spouse of academic if no suggestions or recommendations arc advanced. Hence, his or her right, under exceptional circumstances, to kill the very I ta.kc the liberty of submitting the following: intruder who ha.s assaulted and m1dermi11ed the sacred foundation 1. The Code Commission should iiow be abolished, for 110 person of family solidarity. or group ~f persons can claim such mastery of aU branches of subs1'he sacred rCSfiect for human life which the proposed Code pro- tantive law as to constitute a vermanent body to codify various laws, fesses is not found in Art. 193 on mei·cy killing, which practically such as civil, penal, commercial, labor, taxation, a.nd other branches allows a person to cause the death of another at the latter's request of the Jaw., Congress may always a\·a.il itself of the help and services through mercy or pity. Neither is human life or personality upheld of tried men in their respective fields. Thus, if a tax code be recomunder Art. 203, which allows alx>rtion of the foetus to save t'he life mended, experts on taxation should form the commission to draft of the mother. such legislation. If a. labor code is ;:;.dvisable, another group of labor The proposed Code has ma.de the penal law so strict that it has experts coming from management and labor, and other economic facrisen to the level of a moral code. And yet, some of its provisions have tors, shC'uld be considered in the composition of such committee. relaxed the present rules. Thus, malversation (Art. 217, R.P.C.) in.. 2. Remedial measures should be studied tu allow the State, includes under the concept of public funds Red Cross, Anti-Tubercu- eluding the offenJed party, to appeal from a judgment of acquittal Josis and Boy Scout funds, and such funds arc extended to property or dismissal in a criminal case, for such appellate review in meritoattachcd, Seized or deposited by public authority even if such pro- ricus cases would constitute the ruost effective restraint against erperty belongs to a private individual (Art. 222, R.P.C.). Art. 444 of roneous or arbitrary actuations of inferior courts, and such appeal the propof;ed Code, however. provides that money or property col- would not strictly violate the constitutional provision against double lected or raised by public volunta.ry contl"ibution for any civic, charita- jeopardy. ble, religious, educational, political, or recreational purp0se is not. 3. Some good provisions in the proposed Code of Crimes should deemed or included as public funds or pro;ierty. Why the change? be adopted under special law!' or as amendments to the Revised Likewise, the law on treason CA1·t. 114, R.P.C.) requires evidence Penal Code. based on the testimony of at least two witnesses to the same overt 4. The new codification would not be a decisive step forward act. The new Code proposes to relax the rule by inserting the phrase towards a mon· Mable and satisfactory Pcnol Code, and accordingjy "or different overt acts", a.11d the reason given is that the present Congress should not be persuaded to enact into law this project of the rule makes_it difficult for the pro:oecution to secure a conviction for Code of Crimes as our new Penal Code. February 28, 1954 THE LAWYEH$ JOURNAL 63 UUUJ.lJ,,,E JEUPAKUY UNDER THE ARTICLES OF WAR By MAJOR CLARO C. GLORIA, * JAGS Stoff Judye Advocnlc Philippine Army Training Command One of the most conboversial matters in the administr(l,tion of military justice today is the plea of doubk jeopal'dy under Article 44 (a) of the Uniform Cod£:: of Military Justice (U.S.A.) and AW 39, PA, viz: - "No 1)erson shall, without his crmsent, be tried a second time fo1· the same offense."1 As a general rule, in the criminal procedure the accused invokes the principle of jeopard~ by means of one of the two pleas of former acquitt?.l (m1 . trefois acquit), or former conviction (nntrefois cmwict). according as he has been acquitted THE AUTHOR or convicted at the former trial. These two pleas arr governed b:,i the same rules and each is but the declaration of the same fact - that a trial has been h:td. The rulings thereupon by the civil courts. art! ar•plicable to similar cases under the military law.2 Jt is an anci!'nt maxim of the common k.w a1:d of the civil law that no man :;hail be "put twice in jeo1rnrdy" for the same offense. The significance of this clause is so important that it hns been since incorporatd not only in the constitution of the United States but also in the Constitution of the Philippines. 3 The prohibition (ln double jc(lpardy contained in the Fifth Amendment to the Constitution of the Uniled States has, however, provoked conflicting issues brought about by unusual cil'cumstance; arising mostly from the exig~ncies of Wo1·\d \Var II. The lcac!.ini; cr.se on the mallC'l' ii; the recent case of 1Vmlc v. lfo nter,4 whicl: has elicited considerable attention .'.l.mon~ jurists and legal writers. In the Jluntcl" case, petitim1er, an American soldier, was char2'.cr! with rape alleged to have been committed in Germ~rny. He waf.: placed on trial by a general court-martial. After hearing evidence .i.nd arguments of counsel, the court-marti;i.\ closed to consider th<' case. Later that day, however, the court retJpcned and granted a continuance to enable the prosccutic,n to prcsc1·,1. additional '.vitnesscs, then absent rlue to ilhwss. Before the tri:il could he resume<l, the ?6th Infantry Division to which petitioner was attached moved !o a distant town. The c~c was then wilbdrawn from the oric:;nal court-martial and referred for trial to a court-martial conven<)~] by the Commanding General of the Third Army. The frial was not, however, concluded due t0 the tactical situation of the Third A~·my and the distance to tile assistance of witnesses, in which c?..sc the trial could not be completed within a reasonz.b!e lime. Accordingly, the Com111anding Genernl of the Third Army transmitted the chal'ge-; to the Fifteenth Army stating that the action was necc:ssary to c~1· ry out the policy of the United States Army in Europe to accelcra.t<? prompt trials "in the immediate vicinity of the alleged offenses." Pursuant to this transmittal, a court-.maitiai was convc11cd. P<'titioner represented by counsel, fih.d a pica in bar alleging that he had been put in jeopardy by the first coui·t-mu.rtial 1)1'ocee<lings and could not be tried again. His pica was ovcnuicd, the case was tried, and a conviction followed. On petition for writ of habeas cor;rn~, the Federal District Court ordered l1is release, holding that his plt>'l of former jeopardy shculd have been sustained. The court further held tha.t the proceedings of the seconJ court-martial were void as THE NATURAL LAW THEORY AND THE PHILIPPI.NE ~UPREME COURT By CRISOLITO PASCUAL• (Continued from the last issue) 2. Appliwtion of Nrtlnral, Law in the Lc!)'il Order. I;i applying the continuing protcetive postula.tcs ;:,f natural law tv the Rutter Case, the Supreme Court expressed its position in this way: "Laws altel'ing existing contracts will constitute an impairment of the contract clause of the Constitution only if they arc unreasonable und unjustified in the light of the circumstances occasioning their enactment." After examining the satisfactory i;ituation and condition prevailing in th<? country from Hl48 to 1952,lB the Supreme Court JJl'Occedcd without hesitation to dcclure the 1>eriod provided in Republic Act No. 342 as contrary to the continuing pl'otectivc postulates of justice fairness, righteousness, and equity. Said the Court: "This period seems to us unreasonable . . the relief accorded works injustice to creditors who arc practically left at the mercy of the debt01·s. Their hope to effect collection become extremely remote, more so if the credits are unsecul'ed. And the injustice is more patent when, under the law, the debtor i.i not even required to pay intNcst <luring the operation of the relief . . " "In the fac(' of the foregoing observations, and consistent with what WC! believe to be ai; the only course dictated by justice, fair'rn.•ss and righteousness, we feel that the only way open to us under the present circumstances is to declare that the continued opcn1Jio11 and enforcement of Republic Act No. 342 a.t the present time is unrl"asonable rind oppressive, and should not be prolonged a minute longer, and, therefore, the samE: should be daclared null and void and without effect. And what we say hc:rc with respect to said Act also holds true as rega rds Executive Ordl"r Nos. 2fi and 32, pel'ha.ps with greater force and reason as to the latter, considering that said Orders contain no limitation whatsoever in point of time as rcgaJ"ds the suspension of the enforcement and effectivity of monetary obligations.'' 3. U11e/ul Huie a11d F1t11rliu1t u/ N(ltu.ru/ Ltw; ill the Lcr1«l Orclcr. The protective postulates of naturnl law are ever present in all men everywhere. While it may b~ said different peoples may not liavc the same ideas about the continuing protective JJOstulates of natural law on the ground that different peoples do not have the same level of intelligence and ethical concepts and hence the same comprehension of thci1· contents and dcgl'CC of award, the postulates of natural law are nonetheless present in all peoples at all t imes as the dictates of their moral naturl". As such, they a.re authoritat~ve and paramount to aU.39 Consequently, right reason dictates their recoguition and validation in the lag'a\ order bccctuse obedic!lcc to llatural law and its continuing protective p<•stula.tcs brings advantage wl1ile disregard brings disadvantage. Natural law, therefore, holds an exalted position in the heirnl'chy of norms. Failure then to heed the 38- Said the Supi·cmc Cou1·t on thia llOint: "Wo rlo not need LO i:o far to appreciate this i ituatlon. We can :$1!e it and !eel lt ns "'e gaze 11.round lo obsen"e the wavco( rcconstt·uetionandrehabilitation thF1thuawcptthecountryaineclibcration thanks to the aid of America ·and the innate progressh·e SIJil'it of our people. This uid and this spirit hn\'c worked wondHs in so •hort a time that it can now be snfely •lated that;., the main the financial condition of our country und our 1 1eoplc, indlvidually a nd rnllccti.-cly, hns prncticnlly returned to normal. notwithstanding occusioroalrcvcrscscauscdby localdissidcnccandthca1>0radicdisturbunceofpeace nnd order in our mi•bl. Jluslncss, industry and ugriculture hiwc pic k<0d U\> and de•·eloped at such stride that we can say that we arc now well on the road to recovery and IH'ogress. This is so not only as tar a s out• observation nnd knowledge ""c ea11 .. blc to tako note aml comprehend but also liecause of the official pronouncements made by ou!' Chid l;xecutive in 1>uLlic 11ddrcsscs ~nd in &cnrnl mc ss.~ges he sulimittcd to Congress on the general state of the nation." To bcM this out, the Court tlUolcd at length from the uublie statements ol the President which the Court dL...,med to he most c,1'1>rcnivo <1nd representative o{ the Kcncral situation. The Court <1.,otcd from the .. Stale of the Nation" message to the J oint Session of Congress of J anuary U. 1949 (46 O.G. Jan. '~!II and from the addo·css i:iven on the occa.ion of the cclcbrnlion of the shth anni•·crsary of the lndo11endencc of the Philil)J>incs. July t Hl!i2 (48 O.G. 3287-3289). 39- l>cclaralion of Human Right Rl>llTO\'al on Dece mber 10, ID48 by the United lization illuslrates this point rather well. 64 THE LAWYEHS JOURNAL February 28, 1954 DOUBLE JEOPARDY ... constituting double jeopardy since no "urgent necessity'' existed for the removal of the case from t he first court-martiaJ.S In interpreting the Fifth Amendment, federal courts have held that jeop~n<ly attaches when any evidence has been heard in either a jury6 01~ non-jury7 trial. Despite this attachment of jeopardy, however, a se<'Ond trial is not baned if an urgrmt necessity caused the stop11ing of the first trial before conviction or acquittal.8 f<'or that t·~ason, a court considering a plea of double jeopardy must weigh the alleged necessity against the dangers tha.t apprnval of s..ich un exception to the general 1·ulc may result in loss of the fresh evidence available in a prompt prosecution, or in repeated harassment of the accused in the endeavor to assure conviction.9 The ne<'essity has been found to override these considerations in the followi11R" situations: (1) when the tc1·111 of coul't. ends befoi·e a decision is reached; Cll wh( t? the jm·y is unable to :1g1·ee within a reasonable ti111e; (3) when a biased judgment ls feared; and (4) when persons essential to the proper completion of the trial are excusably absent.10 In the 1-lmiter case, the question that arises is whether the Constitution of the U11ited States protects a n;ember of the armed forces ag-ainst double jeopard~·- It has been argued that only such statute:ry safeguards as CongTcss enacts ;1rny control the conduct o( military t ribunals, and that the gon~ rning prnvision is AW 40, USA (now Article 44-a) which makes a plea of double jeopm·dy available only whe1·c a finding was previously i·eached.11 However, the fact that militai·y per:;onnel arc e:.:pt·essly excepted from the a1mlication of a separate :!ll'OVision of the Fifth Amendment, implying their inclusion under its other protection, rrnd the fact that there is no- equivalent of A \V 40 in legislation for the naval foi·ccs indicate the applicability of the double jeopardy clause upon courts-martial.Ill And yd the Supreme Court of the United States in the final detel'lninatioi1 of the Hm1lc1· cuse said that "the interpre1ation and application of the Fifth Amendment's double jeopardy provision have been C"nsi<lcrcd chiefly in ch·il J"athcr than !nilitai·y court procccdings."IJ The U.S. Supr1;-mc Court is further of the opinion that justice r('(juires ~hat a particular trial may be discontinued when particular circu111stances manifest a necessity for so doing, and when failu1:e to discontinue would defeat tl1e Cll(],;: of justicc.14 Frnm this opinion J\fr. Just.ice Murphy, with whom J\fl'. Justice Douglas and Mr. Justice Rutledge joii1cd. di":-:sented. Said J\h. Justice Murpl1y: "'I agree with the court below tl:at in the military courts, as in the civil, jeo1>ardy \\ ithin the meaning of the Fifth Amendment attaches when the court begins the i1earing of evidence. xx x "Then• is no doubt that Wade was placed in jeopardy J,y his first t1·ial. The Court now h"olds that tl1c decision of his commanding officer, u.ssessing the tactical military situation, is sufficient to deprive him of his right under the Constitution to be free from being twice subjected to trial fo1· the Sf:lll(.l offense.:.: x:.: "The harassment to the defendant from being rcpcal4'dly tried is not less because the Army is advancing. T!1c guan111tce of the ~onstitution .'.l~ai11st double jeopat'dy is nut t~ be 1•1·odr.d away Oy a tide of plausible-appearing ~xceiJ tion!'. The command of the Fifth Amendment does not allow tcmj}orizing with the basic rights it declares. Adaptions of military justice to the cxigeneie3 of tactical situations is the prerogative of the comm:mck·r !II the field, but the price or such ex1 Jediency is compli~cce with the Constitution:''IS lJoubt!ess, 1liffe r~11t holdings c:.:ist 'lue to different phrasing of the constitutional prohibition against placing a 11crson twice in jeopardy for the same offense. Ignoring these holdings, however, tre.at u_ ncertainty e:.:ists as to ( 1) the stage of the proceedings at which Jeopardy attaches; (2) the rules to determine the idenMty of the offenses; (3) the grnde of offense for which a defendant may be tl"ied when a new ti·ial has bcc11 granted at his n .. -quest.16 ~ Id •• 72 t'. Su 1•11 ;,-;5 fll. Kan.•a>. 19 17 ). ~ g~~:~n~r,~uti,2es~- 1~'.:~1'•·.1 62d1 \.:~-~A';;:,. (~t32/~:;91. : : :. (.;olum b1a L•w lie•. 299 09411). 10 l d.a1300 II Id. H ~~~ec~~·~~~~l.~~'.i•J~ a;;_d t~~ s~::·~i;~u~i~~~9)3.l ~hr.,uettc L. lie\'. 1:; mm. 15 ld.at 840 16 3 The Am-Law Institute l'rocetdin2'.s HO (192~) THE NATURAL LAW ... sumnl(lns anrl constrain of the continuing protective postulates of natural le.w is a dcrngation or perversion of natural law and the legal order. Accordin~ly, positive law should conform to the postulates of natural law in order to be valid and binding. The great authority of Cicern is focused on this point. For him, natural law has definitely this useful functi011. "It is not allowable," posited Cicero; "to alter thir. law nur df'viatc from it, no1· can it be abrogated. Nor can we be released from this law ~ithc 1' by the Senate or by the people."40 Thus, any provision of positive law that is at variance with or in derogation of the postulates of natural law is not a iaw but an invalidatior: 01· conuption of the law. In othe1· words, natural law can be employed as a juristic basis or ci·iterion for testing the validity of positive law. An enactment 'lf the legislature of a State is not thercfoi·c valicl if and when it rJdlccts from the continuing protective postulates of natul'al law. The view ad\·anced by some writers th2.t a law passed with constitutional authority or a law pass.id in accordance with thc Jll'OVisions of the Constitution remains valid even tl1ough it violates the continuing protective postulates of natural law is !'ather incorrect and fraught with danger. T h('t·c are at letist twu ieasons why this is r.o. Jn the first place, nu nositi\·e or hum1111 bw cuuld flagrantly violate the sununoni:-: and con~train of naturnl and its continuing protective postulates with(lut Jil"')ducin_; or uroi.:sing a Uecidedly adverse reaction from the members of the community themselves. It is 'Jnthi11kable that the people would l1~ve ''yielded 1:1owcr" to the legislators to make or pass such kind of laws. Thcl"c are mc.ny provisions of Philippi1 1e positive law itself, some of which are given here, that support this ground. Article 10 of the Civil Code of the Philip\Jill<·S provides for the presumption that the lawmaking body itself intended right and justice to prevail whenever it acts. Article HI of the same code provides that in the Hercise of one's l'ights or in t he performance of one's obligation every 1)crson .must act with justice, honesty, and good faith and give cvcryo11e hi8 ju~t, due. Article 1379 of the sa.me code appeals to the pt"inci1)lcs co11tahwd in sections 58 lo G7 of Rule 123 of the Rules of Court in the l'hilippines in the construction and interpretation of contracts, where it is provided that construction and interpretation in favor of natural rights is to be adopted. Thus, pui·suing this point· further with a concrete illustration, in a sale of real property to two different vendccs, although a preference is expressed or created by la\v foi· the title of ownership first recorded, this positive rule must be understood to be based on 11atmal good faith as it is inconceivable that the people would have yielded authority to their lawmakers to do away with good faith and sanction bad faith by requiring comJ~hance only with the formality of registration.41 The seconrl reason ii; as significant and imperative as the first one. if not more so. Thf· members of a community may have, in a solemn compact, secured foi· themsdves a.nd their posterity a regime of justice, liberty, equality, and de1wJcracy. In such a situation therri is no question that there is a d1~ar anrl present, not a doubted and remote, a1111cal to natural law itsdf.~~ Jt is a solemn pronouncement or declara.tion of the volksgeist ot· diwa. Indeed, it is an articulation of the soul a nd spirit of the people making a direct appeal to natural law fol' :;uch c.:incf'pts as justice, liberty, equality, and democrncy or 40- RcJ)ublica, llook Ill , chap. xxii. Keyes t ranslation. G. P. l'ulman"$ Sona New York. 4t-See Section 50, Act No. ' 496. n~ amended. Sec also Government of the Phili1>pines vs. Abuel ct a!.. ~5 O.G. ~405. ~'l-The Pre:imhte of the Gon~titution <if the Philippines 1>rovides : Fili1•lno pco1Jle. implorin~ the aid .,r Uivin" l'ro\'idcncc, iu order to c~t.ahlish ,. ..;o,·ernmcnt that shall embody their ideals. conserve and dernlo1J the patrimony of \he nation. 111·omote the i,:cncrnl welfare. and secu1·e to thcm:scl\•es and thdr 1){1stcriw the blessings of independence undel" a regime o{ justice, liberty and democracy. do ordain and promulgate this coMtitution."" lt may be said that tho Preamble. strictly speaking. is not 1iart of the Constitution. But it serves. nevertheless. three vei·y imVort.ant end. Professor. 1'anada and l'crmrndo in their Constitution of the Phili1>1•incs. 4th 1':11 .• Vol. I, 11. 33. give the first two: l) it iudicatc• that the \>eovle is the source of the 1.;onstitution and form which it derives it~ claim to 01".'<lience, and 2) it scl$ forth the e11<ls t~at th<i Constitution and the Government established by it are intended to vromot.<:. 'l'he third is that it states unequivocally that the le11al 01·dcring to effect the 1>romolion of the '"'owed ends should always be undc1• a r<igi me of justice, liberty. equality. and democracy. 'l'hus, the Preamble has value for pu;IJ<IS<lS of construction and intcr1>rdation and kgul ordering. At the ley t. it is c .... euual with the iirincipl...s enumerated in the Declaration or Principles. Article II of the Constitution. February 28, 1954 THE LA WYERS JOURNAL 65 DOUBLE JEOPARDY ,, . Some states hold that the accused is twic€ put in jeopardy when th.i jury was impaneled and sworn, a.nd, consequently, if the jury fails ·to agree, even if it appears that there is no reasonable expectation that they ever can agree, the accused cannot, on the discharge of the jury be again placed on trial. However, othc:: courts allow a second trial in 1mch cases.17 011 the constitutional prohih;tion against double jeopardy for the same offense, much diversity of decision exists in regard to the identity of offenses. "Different legal tests arc employed in different stBtcs to <letHmine whether the 'offense' for which the accused is being- tried is the 'same offense' a.s that for which he has already been tried. In some '?ases t.wo different tests, bringing the same results, arc applied in the same stat·e in different cases. There are all sorts of variants of the question. A simph1 illustration is the case where one by the same act injures or kills two or more 1iersons. Having been acquitted or convicted of assault or murder of one of these persons, can he be tried fo1; assault or. murder of the other? This question is answered in the negative in some states and in the affirinati\'e in others."18 As to the grade of offense, in some states, if a new trial is granted an accused, he cannot, on the second tl'ial, be- prosecuted for higher degree or grade of the offense than that of which he was convicted on the first trial. Thus, if an accused has been indicted for murder, convicted of manslaughter and appeals, he can1iot, if a new ll'ial is granted, be tried again for murder, but· only for manslaughter. Iii the Federal Courts and in other states, the contrary rule prevails.19 Persuasive arguments abound - that the ]lrotection afforded b~ the Fede!'al Constitution and many of the constitutions of the states 1·eaffirms the old common law pleas of former acquittal and former conviction. But it is now the great weight of authority in the United States that "jeo1iardy attaches if it attacl1es at all in a given case, when a trial jury has been impaneled and sworn, although not before. x x x. "lO Sound opinion dictates that in a. plea of double jeopardy,. no judgment or sentence is requisite to complete the trial.21 This was the view of Justice Story,22 from which the decided weight of modern authority emanated. The traditional military pica of former acquittal (autrefois acquit) is completely inadequate to safeguard the constitutional rights of <!. soldier or a sailor who has bee11 exposed to successive tl'ials, none of which resulted in judgments. In 11assing, it is a matter of common knowledge that due to military necessity, the greatly increased possibility of witnesses becoming unavailable, the probability of defense counsel being assigned e!sewhere, and the absence of the right to bail operate against the accused in a court-martial concept of jeopardy.23 In an inconvenient situation such a.; that. the dignity of the individual and his right to due process should not be subordinated to mere legal technicalities. The much broader meaning of the phrase ·•twice in jeopardy," gi\'en by the courts today is a product of the practical administration of the law. The modern trend on the subject seems to in1ply that the doctrine of double jeopardy is "not a rule of law at all, nor can it be enforced by hard and fast rules without, in many cases, working injustices a.lmost as great as that which the doctrine itself was designed to prevcnt."24 As can be seen the doctrine is nothing more than a "declaration of an ancient and well-established policy, and that when some O\'erruling consideration of policy intei;venes the doctrine is frequently disregarded." Thus, there arc cases in which a new trial is allowed although there has already been a justified discharge of the jury; cases permitting a sec:ond prosecution after there has already been a conviction or acquittal obtained through fraud; and cases al\owi11g <!. trial for murder where t!1e injured person dies after his assailant has been prosecuted for assault. These arc instances where, notwithstanding the • .Cu1ttiniu,d 1•1~ lJayc 108J H !~: 20 2 ~ Minnuota L. lle 1. 522 \1940). 21 Winthrop, 11. 260 22 U.S. v. Gihu t, 2 Summer I~ 083') . 2l 33 Mar<iuette L. !lev. 25 ~19-19). 24 H Minn. L. flu. 522. (;6 1 OHO). z.; Id.a1a211 THE NATURAL LAW,,, public weal, are but other terms for the continuing protective postulates of natural law. Natural law is thus not lllt!rc]y an ideal to which positive Jaw ought to conform without otherwise affecting its legal validity. The everlasting and prntcctive postulatt::; of natural law are genuine and real basis for testing the validit'y of positive law. This means that it is down. This is the well-known tool of unconstitutionality. A statute ca.n likewise be struck down as null and void when and if it is not only when positive law is unconstitutional that it can be struck against the continuing protective postulates of natural Jaw though there be no constitutional prohibition which it transgresses or to which it is contrary. This is the tool of natural Jaw. 4. Conclusion. It is fortunate that at a time when legal positivism for all its strength is foiling man the Philippine Supreme Court has, with confidence and belief and reason, utilized the iiatural law in the manner it did in the Rutter Case. It has demonstrated quite well that 11.gecld concept of the natural law is C'apable indeed of a modern content or application. Even the cynical legal realist would find he1·c the realization and validation of the natural Jaw in the legal ot·deriilg. As for the Rutter Case itself, the writer takes it as indicative of the renaissance of the natural law in Philippine jurisprudence. The case of De la Cruz vs. Sosing et aJ,43 promulgated by th(; Supreme Com·t of the Philippines on November 27, mu:::, came to the writer's attention too late for inclusion in the main text. But the Scsing Case is yet another indicium of the present detectable t.rend in the Court's thinking un natural law. In this case, the Court, with coherence, logic <ond reason, sacrificed legal positivism to the continuing rnotective postulates of natural law. Perhaps the "pure tl1co1·y of Jaw" attack of Hans Kelscn on the natural lawdoctrine is unwarranted after all. E\•cn in Germany today, German scholars headed by the late great leg:i.l philosopher Gustav Hadbruch, ha~e J'ecognized the utter helplessness of German jurisprudence in resisting Hitler's demand for the unqualified abandonment of the individual to the German Heich. All because , of lega.l positivism. P.adbl'Uch stressed the necessity of recognizing the continuing prntcct.ive postulates of 11&.tural law "in the light of which the arbitrary and inhuman features of Nazi legislation would retro- ' actively be l'egarded as never JlOSsessing the force of law."44 Professor Heinz Gurarize, in his cited wol'k, stated that Radbruch's proposition is by no means of mere theoretical significance. Quoting Radbruch, Guradze said that "Jurisprudence ought to remember the age-old wisdom . . that there is a natural law under \vhich wrong 1·emains c~·en though it assumci; the form of a law."U At present, i.e., from l!J47, at least one law school, the College of Law of the Uni\'ersily of Notre Dame, has conducted a series of Annual Na.turn! Law Institutes designed to provide a center where the best minds of the world - 1 > hilosophers, lawyers, judges, jurists, and laymen - can re-examine the history and <levclo1nnent of the naturnl law and its practical application to modern legal orders.46 Raymond J\foley, Professor of Public La.w at Columbia University and widely known as one of the Editors 0f Newsweek .Magazine, stated in a book review of the 1950 proceedings of the Natural Law Institute: "I am bold to say that we are witnessing another renaissance in thought, based, as was the former one, on a rediscovery of the past. A nation almost blinded and partially, drngged by false philosophy and treacherous politics may yet find its W3Y through the inspiration of Natural Law." How true this is in every politically organized society especially in the intellection of the great social interests, particulal'ly the social intel'cst with reference to the maintenance of human life, personality and dignity.41 Only through the natural law can the uniqueness of the infinite worth of human life, personality and dignity be asserted. It needs no dialectics to show how legal positivism has 43- G. IL N<.> . .lr4Sj5. 44- Radbruch, Vor•cbule rfor Vechtsphiloso1>hle. !US !1947), •1uoted in Heini Curath'e's The E1>iatcmologic11 I Backgrnuml of Natural Law, 27 Notre Dame, Law· ycr, No. 3, 360 )l!l!iZ). 45- l!adbnich, Die 1':rneurung des ltecht•, S ( 194') 1....,. cit. 46- 0LJr own Carlus P. Romulu read " p;11>cr culillcd The Natural Law and International Law during the 1!)49 procccdiui.;s of that ln•titutc. H - 1'his s<1Cial interest is uow expressly rccog'nfa~d in Cha1•tcr ~ <.>f the l' •~· Jimiuary Title of the Civil Code of the Philip11 incs. (Conti11wd on page 106) 66 THE LAWYEHS JOUHNAL r~ebruary 28, 19fi4 SUPREME COURT DECISIONS Jose 1'. Valenzitela, etc., Plai11f·if!.Apµcl/m1.t, v,.,-. Jose 1. Bakani, Defendant·Appellee G. R. No. 'L·4689, A1lg11st 31, 1953. CIVIL CODE; CONSIGNATION BY THE OBLIGOR OF THI:: THING DUE.- J sold to B eight parcels of land for the sum of f13,490 but reserving to himself (J) the right to rcpurch~sc. them within seven years for the same consideration and to remain in the land as Ieasec. Later on J and B executed another agreement extending the period of repurchase to ten years and reducing the annual rental. J then transferred his rights over the land to A binding himself at the same time to obtain the cancellation of the sale in favor of B. J through his altornc~' Wl'Otc a letter to B offering the sum of !'l~,490 as payment of repurchase price and warned that if no answer was received in ten days B would be considered as having refused to receive said payment and to reeonvey the property in which case J would institute the prnper action. This was followed by another letter stating that if there is no answer, B rejected the payment offered and refused to rcconvcy the pro)Jerty to J. Whereupon J instituted an action ~01111)e\\ini; B to execute the proper deed of resale. In the complamt 'it is alleged that J was depositing with the Clerk of Coul't the sum of 1'15,372.50 to cover the amount of the repurchase price and the un1Jaid rentals. The lower .court ruled that there was no valid consigration on the ground that B did not give previous notice of the judicial consignation in conformity with Article 1177 of the old Code. It was argued by the appellant on the other hand, that the service of the summons and a copy of the complaint UJJO!l the creditor constitute a sufficient notice. HELD: The latter's contention is correct. In the case of Alejandro Andres, ct al. vs. Court of Appeals, ct al., December 29, 1949, 47 O.G. 2876, tl1is Court made t-he following applicable pronom1ccment: "The petitionel'S also question the validity and regularity of the consignation in court made by respondents of the sum of r5,500.00. Suffice it to say on this point that <lfter the i·ejection by the )letitioner of the valid tender made by the respondents, the latter filed the corresponding complaint in court accompanying the filing of the suit with the consignation of the money in court and alleging and mentioning said consignation in the complaint. This was sufficient notice to the petitioners of the consignation so that if they wanted to receive that money from the Pourt in return for a reconveyance of the property in question, they could have done so." Again, in Duftgao, et al. v. Roque, ct al., G. H. Nos. L-4140 and L-4141, decided on December 29, 1951, this Court held: "How the second notice is to be effected is not specified. The usual method is, when the consignation is followed by the filing of a suit, thmugh service to the defendant of the summons accompanied by a copy of the complaint." The consignation being thus valid, Valenzuela was released from any further obligation i·cgarding the re)lurchase price, and it consequently became the duty of the appellee to eXecutc the necessary deed of reconveyancc in favor of Valenzuela, now subrogated by Florencio H. Araullo. Francisco M. Ramos fo1· intervenor-appellant Valeriano Silva for plaintiff-appellant Ed. Gutierrez David for defendant-appellee DECISION PAHAS, C. J.: On May G, Hl38, Jose T. Valenzuela sold to Jose I. Bakani, for the sum of Pl3,490.00 eight parcels of land situated in the nrnnicipalities of Guagua and Lubao, province of Pampanga, and cove1·ed by original certificates of title Nos. 21839, 21840, 21848 and 21850 of the Registry of Deeds of Pampanga, Valenzuela res11rving to himself the i·ight to repurchase within seven years for the same consideration, and to remain on the land as lessee at an annual rental of Pl,100.00 beginning May 1939. On May 22, 1943, Valenzuela and Bakani executed anothc1· agreement extending the period of l'CJJU1·chase to ten years from May 16, 1943, and reducing the annual rental to P867.00. On l''ebruary 16, 1944, Valenzuela transferred his rights to the land to Florencio H. Arnullo, binding Jiimself at the same time to obtain the cancellation of the sale in favor of Bakani. On Mat'ch 3, 1944, Valenzuela, thru Atty. Valeriano Silva, addressed a letter to Bakani, offering the sum of Pl3,490.00 as payment of the repurchase price, and warning that if no answer was received in ten days, Bakani would be considered as having refused to receive said payment and to reconvey the property, in which case Valenzuela would institute the proper action. This was followed by another letter, . dated March 21, 1944, sent to Bakani by Valenzuela through Atty. Silva, calling attention to the pre· vious letter and admonishing that if no answer was received from Bakani in five days, the corresponding action would be filed. In hi:o answer <lated March 24, 1944, Ba.kani rejected the payment offered and refused to reconvey the property to Valenzuela. Whereupon, on March 31, 1944, Valenzuela instituted the present action in the Coul't of First Instance of Pampanga, to compel Bakani to execute the proper deed of resale. In paragraph 7 of the complaint, it is alleged that the plaintiff was depositing with the clerk of court the sum of r15,372.50 to cover the amount of the repurchase price (rl3,490.00), the unpaid rentals up to March, 1944. (fl,882.50), and tl1c expenses in connection with the contract (f200.00 l, and that the said amount was at the disposal of Bakani. Subsequently Florencio H. Araullo, who had already acquired the rights of Valenzuela, wa:s allowed to intervene in the case. In his decision dated May 10, 1950, the trial judge held that there was no valid consignation on the part of Valenzuela, and accordingly gave the following judgment: "WHEREOF, as prayed for by the intervenor, t he defendant is hereby ordered to execute a deed of resale in favor of the intervenor FLORENCIO H. ARA ULLO over the eight parcels of land in question and now described in, and recorded unde1· Transfer Certificates of Title Nos. 74, 75, 76 and 77 of the Registry of Deeds of Pampanga, upon 1myment by said intervenor to the defendant of the sum of THIRTEEN THOUSAND FOUH HUNDRED NINETY (1'13,490.00) PESOS, in actual currency; and the intervenor is ordered to pay the defendant the sum of 1"960.00 as part of the rentals due on May 16, 1943; plus the yearly rentals of r867.00 from May 15, 1944' until the repurchase of the properties be accomplished, with legal interests thereon from their respective dates of mtaurlty (May 15 of every year) until fully paid, without pronouncement as to costs." The plaintiff Jose T. Valenzuela and the intervenor Florencio H. Araullo have appealed. After the death of Valenzuela he was in due time substituted by the administratrix of his estate, Feliza Malicsi Vda. de Valenzuela. As pointed out in thC' appealed decision, the dcfendant-·appellee, Jose I. Bakani, contended that the amount offered and consigned in court by the plaintiff-appellant was not the price of the sale with pacto de retffo, that the consignation was not in accordance with law, a11d that by virtue of the second agreement of May 22, 1943, the origi1ial contract of sale with right of 1·epurclmse was converted into an absolute deed. The first and second points were overruled by the trial judge. As to the first, it was correctly ruled that the Japanese military notes were legal tender in the Philippines during the Japanese occupati~n. As to the third, the agreement of May 22, 1943, expressly stipulated that "se extienda el plaza de! rcferido retracto a diez (10) aiios contados desde el May 16, 1943." The important issue that arises, as the appellants so emphasize, is whether or not the trial court erred in holding that there was no valid consignation. Its ruling was based on the JH'emise that Valenzuela did not give previous notice of the judicial consignation in conformity with article 1177 of the old Civil Code prnviding that, "In order that thC'. consignation of the thing due may release the oblig-d.tor, previous notice thereof must be given to the 11ersons interested in the performa11cc of the obligation." Upon the other hand, it is argued for the appellants that the service of the summon!< and copy of the complaint upon the iippellee constituted sufficient notice. The latter's contention is correct. In the ease of ;;~~~i~dJoo~~<~r~~7~,t t~:is "~·ot~~u:~~a~~ ~::cf:11~~\~~n~1·~,~~~ce~i~i:\1;~~ nouncemcnt: "The 1ictitioners also question the validity and regularity of the consignation i11 court made by respondents of the sum Feb1uary 28, 1954 THE LAWYEHS JOURNAL 67 of P5,500.00. Suffice il lo say on lhis point that afteF the rejec- !I JACINTO R. BOHOL, PETITIONER VS. MAURO ROSARIO, AS PROVINCIAL AUDITOR 01'' S1lMAR, AND JOSE C. ORTEZA, 1lS PROVINCIAL TREASURER OF SAMAR, RESPONV£'NTS, G, R. NO. L-5057, JULY 31, 1953. tion by the petitioners of the valid tender made by the respondents, the latter filed the concsponding complaint in court accompanyini' the filing of the suit with the consignation of the money in court and alleging and mentioning said consignation in the complaint. Tl1is was sufficient notice to the petitioners of the consignation so that if they wanted to receive that money from the court 1 . SALARY LAW; OPINION OF THE SECRETARY OF FINANCE AS TO ITS APPLICATION AND ENFORCEMENT.The claim that the position of secretary to the provincial governor of a first class A 11rovince comes within Grades 1-8, inclusiw, ii; at best highly controversi&\. But 'gra.nting again, for \he purpose of this case, that by a very liberal interpretation petitfoner could qualify under any of these grades as well as Grades 12 to 15, the opinion of the Secretary of Finance, nevertheless, should be entitled to respect and preference in case of overlapping of grades and their defii1itions and of divergence of views, this official being the instrumentality charged with supervising thl'! allocation of salaries in local governments. He is to judge the kind and degree of ability, experience. training and other circumstances needed to discharge the duties of each position. in return for a reconvcyance of the property in question, they could have done so." Again, in Duiigao ,et al. v. Hoque, et. al., G. R. Nos. L-4140 and L-4141, decided on December 29, Ul51, this Court held: "How the second 11otice is to be effected is 11ot specified. The usual method is, when the consignation is followed by the filing of a suit, through service to the defendant of the summons accompanied by a copy of the complaint." The consignation being thus valid, Valenz.uela was released from any futther obligation regarding the repurchase price, and it consequently became the duty of the appellee to execute the necessary deed of reconveyance in favor of Valenzuela, now subrogatcd by Florencio H. Araullo. It is noteworthy that the amount deposited in court covered not only the repurchase price but also the rentals due up to the date of the consignation, plus the necessary expenses. Wherefore, the appealed judgment. is reversed and the appellee, J ose I. Bakani, is hereby ordered to execute, within ilinety days from the finality of this decision, the proper deed of reconveyance covering the properties herein im'oived, in favor of Florencio H. Araullo. So ordered without prnnouncement as to costs. Bengzo1i, 1'ua~wn, Montemayor, R eyes, J1tyo, Baitti:;ia. Anyclo, and Labrador, JJ, concur. PABLO, M., disidente: 2. ID: UNIF'OHMITY IN TH E EMOLUMENTS OF OFFICEHS.-It is a manifest policy of Congress that there be a central authority to establish uniformity in tl1e emoluments of office rs anll employees of equal ranks in the numerous provinces and other lo('a] entities. Determinatfon of the rates of compensation of ::;:ich officers and employees cannot be left to the will and discretion of each p1·ovincial board or city _or mur.icipal council if there is to be "standardization of salaries," "equal distribution uf funds for salary expenses among the different provinci9l offices," or security of "the financial solvency and stability of the pl'ovinYo opi110 que la decision <lei Juzga<lo de Primera Instancia 3. <lebe confirmarse, y no ordenar al demandado Bakani a oturgar la escritura de reventa sin rccibir 1iada, considerando buena y legitices,'' as provided by Executive Order No. 167, series of 1938. CONSTITUTION; LEGITIMATE EXERCISE OF THE POWER OF SUPERVISION VES'rED IN THE PRESIDENT.Classification through the President of government positions is a legislative prerogative, and the Prcsidl'!nt's designation b~· l'xecHtive order of his chief financial officer to see that the classification and the Sabixy Law are observed by local governments, is a legitimate exercii;e of the power of supervision vested in thP Chief Executive by Section 10(1), Art icle VII, of the Co11stitutim1. ' ma la consignacion verificada por Valenzuela en 31 de marzo de 1944 al presentar la demanda, L~ escriturn otorgada por las partes en G de mayo de 1938, decia que la recompra seria en la suma de P13,490.00 pesos filipinos, y no en papel moneda japonesa; al tiempo de otorgarse la escritura, a nadie se 0 le ocurria que vendrian los japoneses a ocupar las Islas; por lo tanto, cl demandado Bakani tiene derecho a exigi 1· que la recompra se haga con moneda filipina, y no con otra, de acuerdo con el articulo 1090 de\ Godigo Civil. En la escritura otorgada en 22 de mayo de 1!143 (Exh. R) no se est.ipulo sobre el precio de la l'ecompra, ni en su cantidad, ni en su calidad. El parrafo que enmendo la primera cscritu ra dice asi : "Que yo el VENDEDOR Y COMPHADOR A RETRO convenimos por el presente en que: C l.o) SE EXTIENDA EL PLAZO DEL REFERIDO RETRACTO A DIEZ (10) Ai\l"OS CONT ADOS DESDE EL MA YO 16, 1943; <2.o) SE HEDUZCA EL PAGO DEL CANON A P867.00 ANUAL J::N VEZ DE Pl,100.00; <3.o) P.ARA EL CASO DE QUE DENTRO DEL REFERIDO PLAZO DICHO VENDEDOR A RETRO NO P UDIERA RETRAER AUN LAS REFERIDAS FINCAS LA EXPRESA DA VE NTA A RETRO ADQUIRIRA BL CARACTER DE ABSOLUTA E JRREVOCA BLEMENTE CONSUMADA." No hubo novacion en cuan a la calidad <lei precio de recompra; solamente bubo novacion en cuanto al plazo de! rctracto. Puesto que la cantidad consignada no era la moneda con\'enida -pesos filipinos, sino papel moneda japonesa, - la consignacion entonces no es buena, no sc ha hecho de acuer<lo con la ley. PADILLA, J., dissenting: 1 dissent from the pronouncement that the Japanese military or war notes were legal tender and that tlie consignation of the repurchase price and stipulated annual rentals was valid, for the same reasons stated in my dissent in La Orden de P. Bencdictinos vs. Philippine Trust Company, 47 Off. Gaz. 28~4, 2897. That part of the judgment appealed from requiring the vendor's assignee to pay in the present currency the redemption price of the parcels of land sold under a pacto de ?"etro, together with the annual rentals due and unpaid, should be affirmed. Jrtcinto Bohol /o-r UJ!l1ell1rnt Snl. Grn. Pl'mp~yo Dia; and Solicitor Emiliu LU'11wntad for rc:;pundentu. DE C ISIO N TllA,ilON J., This was a proceeding for mandamus instituted iu the Court of First Instance of Samar against Mauro Rosario, as provinciul auditor, and Jose C. Orteza, a.s provincial treaSul'er, both of that JH"O\·ince. By order of the court the petition was amended by including the Secretary of Finance as pa.rty respondent. Upon tria! of th<' case, the application was denied, and the petitioner appealed. Petitioner Jacinto R. Rohol is Secretary tu the Provinci ~J Governor of S&mar. On July 1!J, 1!150, his sulary was raised from P3,120 to P3,600 a year "as an except ion al case under Section 256 of the Revised Administrative Code," and on July 20, the raise was approved by the provincial board by appropriate resolution. But the Secretary of Finance, acting on the annua.l budget of the province, disapproved the petitioner's promotion with this comment: "The standard rate of salary fixed by this Department for same position in a first class A province like Sanmr is P2,760 per annum. Howcn:r, n!! it appea.rs that the incumbent of t-his position is ali·eady receiving P3,120 per annum, this rate may be reduced to P2,7GU per annum, ouly upon vacancy of the position." On account of this disapproval, the provincial auditor refused to pass in audit, and the provincial treasurer to pay, the petitioner's voucher on the differential between the old and the new rates of compensation corresponding to the second half of July. Commonwealth Act No. 78, approved October 26, l!l3G, transfrrred to the Secretary of Finance the power and administrative supervision theretofore exercised by the Secretary of Intuior over the assessment of real property, appropriatiOn, and other financial affairs of provincial, municipal and city governments, and ovc1 · the offices of provincial, municipal and city treasurers and pro\•incial and city assessors. In pursuance of this Act'., Executive Order No. 167, series of 1938, wa.s promulgated designating "the Secretary of Finance as the agency of the National Govt:rnment for the supervi66 THE LAWYERS JOUHNAL February 28, 1954 ~ion and control of the financial Affairs of the provincial, city and municipal governments," and providing, among other matters, fo1; lhe submissirm to the said Secretary, through the Secretary of the Interior, of the local budgets which are "to contain the planti11a of fJersonncl.'' Petitioner contends that Hcpublic Act No. 528, approved on June 16, 1950, abrogated Executive Order No. 167 and that, moreover, that C'Xecutive order is unconstitutional in that. thereby the Chief Exccutivcf assumes cor.trol as well as supcn:ision of local gov('rr.ments, whereas by Section 10(1 J of Article VII of the Constitution tht::. President only has "gcncrnl supervision" over such governments. Republic Act No. 528 amended Section 2081 of the Revised Administrative Code so as to read as follows: "Section. 2081. Ei1111loym. "Jnl of subordinates.- The Provincial Board shall rix the number of assistants, deputies, clerks, and other enoployees for the va.rious branches of the provincial government and in accordance with the Salary Law to fix the rates of salary or wage they shall receive. "After their number and compensation shall have been thus determined, the Pl'Ovincial Governor shall, any provision of exist.. i11g law tu the contrar~· notwilhstaudi11g, appoint, upon recommendation of the chief provincial official concerned, all the sub0rdinate officers and cmployccs in the \'arious branches of the provi!1cial goYernment whose salaries, compensation or wages arc paid, wholly from Jll'Ovincial funds, in conformity \Vith the provisions of the Civil Service La\\·, except those whose appointments are now or may hereafter be vested in the Presidellt or 11ropcr Depa.t tment Head, teachers and other school employees and transient officials or employees who shall, as heretofore, be appointed by the proper chief uf provincial office with the appl'Oval of the Department Head concerned x x x" Assuming, without deciding, that this Act has superseded previous enactments and executive orders inconsistent therewith, yet, it will be 11oticed, the powers conferred ou local entities by the statute arc subject to the condition that they be exercised in accordance with the Salary Law and the Civil Service Law. Upon this assumption the question then arises, is pelitioner'3 new salary of f3,600 yearly in conformity to the Salary Law? No question is raised as to the i'"-titioner's civil service eligibility. Executive Order No. !.14, seric;; of 1947, •·reorganizing the different departme;its, bureaus, offices, and agencies of the liovernment oi the Republic of the Philippines, etc." and issued by virtue of Hqh.1blic Act No. 51, entitled "An act authorizing the President of the Philippines to reorganize within one year the different executive departments, bureaus, offices, agencies and other instrumentalities oi the Government, including the corporations owned or controlled by it," amended Commonwealth Act No. 402, The Salary Law, and classifies into 15 gra.dcs, with salaries ranging from f2,400 to 1'6,000 per an num, chiefs oi divisions, chiefs of sections, supervisory positions ancl positions of equal ranks, the rates of compensation being based un the natui·e of work performed, "latitude for the exercise of independent judgment," the importance and size of divisions or sections, ou the technical, professional and experience of the incumbents, and the like. Petitioner alleges in his petition that his position as secretary b the provincial governor "requires and imposes on him the exercise and performance of judgme~t and functions falling under Grade l wh ich p1·cscribes a salary of ro,ooo per annum." He stated in his memorandum in the court below that he is " the administrative head or chief of the Office of the Governor," "required to perform the administrative direction and with a very wide latitude for the exe1·cise of independent judgment." And in his brief filed in this instance the claim is made that he "supervises the 11ersonnel of such <Gov. ernor's) cffice an<l the 1n·ovinclal jail," "is also the head of the local and municipal divisions in Samar," and "ca.JTies out confidential measures required of him by the Governor." He says in addition that "he is a lawyer of Jong experience in practice.'' On the other side, it is asserted that the JH!lili':mer's position comes under Grade 13 for which the compensation authorized is P"J,760 per annum. The classification of positions by Executive Order No. !.14, series of 1947, Is loose and the demarcation lines between the grades quite indefinite. But it is fairly certain that, giving petitioner the full extent and benefit of his description of his job, the Secretary of Finance has not departed from the standard set by the schedules of salaries laid down in the executive order just mentioned, in placing petitioner's position within Grade 12-15. Actually, it has been seen, he is allowed the salary provided for Grade 11, which we believe calls for a latitude or independent judgment, technical training and experience, anti supervisory work and ability well above those demonstrated by tiw allegations. The claim that the position of secretary to the provincial governor of a first class A province comes within 1-8, inclusive, is at best highly controversial. But granting again, for the purpose of this case, that by a very liberal interpretation petitioner could qualify under any of these grades as well as Grades 12 to 15, the opinion of the Secretary of Finance, nevertheless, should be entitled to respect and preference in case of overlapping of grades and their definitions and of divergence of views, this official being the instrumentlity charged with supervising the allocation of salaries in local governments. He is to judge the kind and degree of ability, experience, training and other circumstances needed to discharge the duties of each position. It is a. manifest 1iolicy of Congress that there be a central authority lo establish uniformity in the emoluments of officers aud employees of equal ranks in the numerous provinces and other local entities. Determination of the rates of compensation of such officers and employees cannot be left to the will and discretion of each provincial boatd or city or municipal c:ouneil, if there is to be "standardization of salaries," "equal distribution of funds for salary expenses among the different provincial offices," 01· security of "the financial solvency and stability of the provinces," as pl'Ovided by Executive Order Nn. 167, series of 1938. F1'om the stu.ndpoint of the Constitution to which the petitioner would cast this case, we perceive no valid objection to the intervention by the Secretary of 1-~inance in the application and enforcement of the SaJary Law. Classification throug;1 the President of government 1•ositions is a legislative prel'Ogative, and the President's designation by executive m·de1· of his chief financia l officer to see that the classification and the Salary Law are observed by local governments, is a legitimate exercise of the power of supervision vested in the Chief Executive by Section 10 (IJ, Article VII, of the Constitution. Finding no reversible el'for in the dismissal of the proceeding by the court below, the appealed decision is hereby affirmed, with costs against appellant. Purus, Pablu, Po.dilla, Jllu1di:11w/f"'" Heyes, J11yo, Bautista Aityelo, and Lab'l" . .l(lor, J. J., concur. Ill M ~1HCNUNO BUSAC.'1.Y, 1-'LAJN1'Il'F AJ\!0 Al'JJJ::LLANT VS. A NTONIU f'. JJUt:NAVENTUJ:A. AS PHOVJNCIAL TREASUHl'R OF' PANGASINA."' & ALF'HE'1JU lltURAO, DEFENDANTS AND APJ'EJ,LEES, G. R. No. L-bS56, SEPTb'MBER 23, 1%3. PURLIC OFFICEHS; ' WHI..;N A POSITION MAY BE DEEMED ABOLISHED. - A was tl1e toll collector of a bridge which was destroyed by flood; hence he and two other toll collectors were laid off. When the bl'idge was 1·econstructed and reopened to triffic A notified the provincial treasurer of his intention and readiness to resume his duties as toll collector but the treasurer refused to reinstate or reappoint him. Held: ( J) The collapse of said bridge did not destroy but only suspended A's position; therefore, upon the bridge's 1·ehabilitation and rcoperation as a toll bridge A's right to the position was similarly and automatically restored. (2) To conside1· an office abolish~d there must have been an intentfon to do away with it wholly and permanently, as the word ''abolish" denotes. (3) The pusition of toll collector is temporary, tr2nsito1·y, or precarious univ in the sense that its life is co-extensive with that of the bri~lgc <IS a toll bridge. For that matter, all offices created by statutes arc more or less temporary, transitory or precarious in February 28, 1954 THE LAWYERS JOURNAL G9 that they are subject to the power of the legisla.tul'e to abolish them. Primicias, Abad, Mencias & Cnstillv for nppellani. Ffrsl Asst. Sol. Gen. Ruperto f(Uput<an J1·. & Sol. Jcs11s A. A1:ance1ia for appellee. DECISION TUAZON, J.: This is an appeal from a decision of the Court of First Instance of Pangasinan dismissing, for bck of merit, an application for mandamus and quo warranto with a demand for back pay and/or damages. The cause wa.s submitted upon the pleadings and an agreed statement of facts, the relative portions of which are condensed below. The plaintiff was a duly appointed and qualified pre-war toll collector in the office of the provincial treasurer of Pangasinan with station at the Bued toll bridge in Sison, Pangasinan. His appointment was classified by the Commissioner of Civil Service as permanent. On October 18, 1945, after liberation, he was reappointed to that position with compensation at the rate of f'720.00 per annum. On Ma.rch 21, lp46, he resigned bU.t on April 16 he was reappointed, and had continuously served up to November of 1947, when the bridge was destroyed by flood, by reason of which, he and two other toll collectors were laici off. Previously, from July to September 10, 1946, the bridge had been temporarily closed to traffic due to minor repairs and during that period he and his fellow toll collectors had not been paid salaries because they had not. rendered any service, but upon the reopening of the bridge to traffic after the repairs1 hti and his companions resumed work without new appointments and continued working until the bridge was washed away by flood in 1947, \Vhen the bridge was reconstructed and reopened t.o traffic a.bout the end of November, 1950, the plaintiff notified the respondent Provincial Treasurer of his intention and readiness to resume his duties as toll collector but said respondent refused to reinstate or reappoint him. Respondent Alfredo Murao, also a civil service eligible, was appointed instead of him in February, l!J51, and has been discharging the duties of the position ever since. The positi'on now carries a salary of Pl,440.00 a year. · The Hued toll b1'idge is a portion of a national road and is a nat.iona.l toll bridge under Act No. 3932. The salaries of toll collectors thereon are paid from toll collections. In 1948, 1949 and 1950, no appropriation was set aside for these salaries, when the bridge was being rehabilitated. On September 15, 1950, the board on toll bridges approved the Bued river bridge as a toll bridge, authorized the collection of fees thereon, and prescribed corresponding rnles and regula.tions. Main ground for denial of the petition by the lower court is that. thr position in dispute is temporary and its functions transitory and precarious. The Solicitor General in this instance simplifies the issue by confining the point of discussion to whether 01· not by the total destruction of the bridge in Hl47 the position of toll collectors provided therefor were abolished. He opines that they were. We agree with the Solicitor General's approach of the case but are constrained to disagree with his conclusions. To consider an office abolished there must have been an intention to do away with it wholly and permanently, as the word ''abolish" denotes. Here there was never any thought, avowed or apparent, of not rebuilding the aforementioned bridge. Rather t.he contrary was taken for grant. ed, so indispensable was that bridge to span vital highways in northern Luzon and to Baguio. This being so, the collapse of said bridge did not, in our opinion, work to destroy but only to suspend the plaintiff's position, and that upon the bridge's rehabilitation and its reoperation as a toll bridge, his right to the position was similarly and automatically restored. This position is temporary, transit.ory or precarious only in the sense that its life is co-extensive with that. of the b1·idge as a toll bridge. For that matter, all offices created by stat.ute are more or less temporary, transitory or precarious in that. they are subject to the power Or the legislature to abolish them. But this is not saying that the rights of the incumbents of such positions may be impaired while the oJfices exist, except for cause. The fact that the destruction of the bridge In question was ~ote.l and not partial as in 1945, the length of time it took to reconstruct it, and the hypothetical supposition that the new structure could have been built across another part of the river, are mere matters of detail and do not alter the proposition that the positions of toll collector were not eliminated. We believe that the cases of pre-war officers and employees whose employments wl:re not considered forfeited not.withstanding the Japanese invasion and occupation of the Philippines and who were allowed to reoccupy them after liberation without the formality of new appointments are pertinent authority for the views here expressed. Some of 'such cases came up before this Court and we specially refer to Abaya v. Alvear, G. R. No. L-1793, Garces v. Bello, G. R. No. L-1363, and Tavora v. Gavifia et al., G. R. No. L-1257. Our judgment then is that the appellant should be reinstated to lhl: position he held before the destruction of the Bued river bridge. The cla.im for back salary and/ or damages may not be granted, hcwever. .Without deciding the merit of this claim, it is our opinion that the respondent Provincial Treasurer is not personally liable therefor nor is he authorized to pay it out of public funds without proper authorization by the Provincial Board, which is not a party to the suit: The decision of the t.ria! court is reversed in so far as it. denies the petitioner's reinstatement, which is hereby decreed, and affirmed with t·espect to the suit for back salary and damages, without special finding as to. costs. Pam,;, Pablo, Be11::011, Patliflu, llfoulem{t.yor, Rey<,s, .fuqo, and Bautistn ~111velo, J, J., concur. IV l~ucia Javier, Petitioner ·us. J. Antunio Amneta et al., Respondents, G. R. No. L-4369, August 31, 1953. CIVIL PROCEDURE; CLAIM FOR DAMAGES AFTER CASE HAD BEEN DECIDED BY SUPREME COURT; DEATH OF' DEFENDANT. -While the trial court was in the process of re· ceiving evidence on damages incident to the issuance of the writ of preliminary injunct.ion, J the defendant., died and because of this event the trial court entertained the view that the claim for damages should be denied because the claim should be filed against the estate. of the deceased. HELD: The finding of the trial court that the claim for damages of respondents should be denied because of t he death of the deceased and that the claim should be filed against the estate of the latter is not well takeu. This result only obtains if the claim is for recovery of money, debt or interest thereon, and the defendant. dies before final judgment in the Court of First Instance, <Rule 3, Section 21, Rules of Court), but not when the claim is for damages for an injury lo person or property, (Rule 88, Section 1 idem). In the present Jll'OCecding, the claim for damages had arisen, not while the action was pending in the Court of First Instance, but after the case had been decided by the Supreme Coul't. Moreover, the claim of respondent is not merely for money or debt but for d~mages to said i·espondent. A/h,wtu de Joyn for vcti!ioncr, Ara.nela and Arunetlt fur re;;. pondent. RESOLUTION BAUT1STA ANGELO, J.: Ott Oct-Ober 30, 1951, this Court dismissed the petition for Cl'f· tiorari interposed by Lucia Javier and dissolved the preliminary injunction issued as prayed for in said petition. Before this decision has become final, a petition was filed in this Court 111·aying that the damages suffered by respondent resulting from the issuance of the writ be assessed either by the Supreme Court ot· by the court of origin. On November 21, 1951, acting favorably 011 said petition, this Court directed the trial court to make a finding of the damages allegedly suffered by respondent., and on August HI, 1953, this Court was furnished with a copy · of the order entered by t.he trial court on August 12, 1953, wherein it denied the motion of respondent to assess the damages 'as directed by this Court 70 THE LA WYERS JOURNAL February 28, 19G1 and oidered that the record 'be forWarded to the 1atler Court for v whatever action it may deem proper to take in the premises. TEODULO T. ORIAS, ET AL., VS. MAMERTO S. RIBO ET. AL., It appears that while the trial court was in the process of re- G.R. No. L-4945, October 28, 1953. ceiving evidence on the dama&"eS incident . to the issuance of ~he writ of preliminary injunction, Lucia Javier, the defendant, died and because of this supervening event, the trial court ent~rtainti'd the view that the claim for damages should be denied because that claim should be filed against the estate o( the deceased; It also / appears that, when respondent pressed for action on his motion for assessment of damages, counsel for the bonding party, Alto Surety Company, opposed said move on the ground that the action contemplated is too late because the order of the trial court denying respondent's motion for reconsideration and cancelling the bond filed by the surety has already become final and unappealable; and considering that a petition for damages holding the surety liable should be filed bdoi·e judgment becomes final, the court sustained ADMINISTRATIVE CODE; TEMPORARY APPOINTMENT WITHOUT EXAMINATION AND· CERTIFICATION BY THE CIVIL SERVICE.-Appointments under Sec. 682 of the Hcviscd Administrative Code, as amended by Com. Acts Nos. 177 and 281 are temporary, when the public interests so require and only upon the prior authbrization of t he Commissioner of Civil the opposition and denied the motion to assess damages. The incident is now before this Court for the corres1ionding appropriate action. The finding of the trial coul't that the claim for damages of respondent should be denied because of the death of the debtor, Lucia Javier, and the claim should be. filed against the estate of the latter, is not well taken. This result 011ly obtains if the claim is for recovery of money, debt or interest thereon, and tl1e defendant dies before final judgment in the Court of First Instance, (Rule 3, Section 21, Rules of Court), but not when the claim is for damages for an injui'Y to person or property, (Ruic 68, S.ection 1, I dem). In the present proceeding, the claim for damages had arisen, not while the action was pending in the Court of First Instance, but after the case had been decided by the Supreme Court. Moreover, the claim of respondent is not merely for money or debt but for damages to said respondent. Thus, Chief Justice Moran, commenting on .Soction 1, Ruic 3, says : "The above section has now removed all doubts by expressly 1iroviding that the action should be discontinued upon defendant's death if it is for the recovery of moneY, debt, or interest thereon, while, on the other hand, in Rwle 88, Section 1, it is provided that nctivns to recover damages for injitry tv person or .property, real or personal, many be maintained against t he executor or daministrator of the deceased." <Moran, Comments on the Ru'Jes of Court., Vol. 1, 1952 ed., p. 109.) On the otheJ" han<l, under Ru!e 3, Section 17, Rules of Court, when a party dies and the claim is not thereby extinguished, the court shall order the legal representative of the deceased, or the heirs to be substituted for him within a period of 30 days, or with· in such time as may be granted. Here, it appears that no step has so far been taken relative to the settlement of the estate, nor an executor or administrator of the estate has been appointed. This deficiency may be obviated by ni;?.king the heirs take the place of the deceased. The claim that t he move of respondent to have the damages assessed against Lucia Javier has come late because the order of the couit denying the motion for reconsideration of respondent and cancelling the bond filed by the surety has already become fina.l and unappealable, is not also well taken, it appearing that the motmn of respondent pressing for action on the motion to assess damages was filed only five days after said order has been entered. It should be noted that the original order entered by the court on April 7, 1953, was not a denial of the claim but merely a statement of its view that no action thereon can be taken in view of the death of Lucia Javier because in its opinion the claim should be filed against her estate, and the order which ordered the cancellation of the bond was entered only on May 27, 1953. It appearing that the trial court has refrained from assessing the damages which it was directed to assess in the resolution of thi_s _Court issued on November 21, 1951, for reasons which, in the opm1on of the couit, are not well founded, it is the sense of this Court that the record should be remanded to the trial court for it to act as directed in said resolution. Parus, Br.ny;o11, 1'uozo11, Heyt>s, FadiU,1, iUonfemayor, Juyo, and LuliMdor, concur. Pablo, J. took no pa1-t. Service, not to exceed three mont.hs and in no ca.se shall extend beyond thirty days from receipt by the chief of the bureau or office of the Commissioner's certification of eligibles. Id., Id. - The fact that the peitioners who were appointed under Sec. 682 of the Revised Administrative Code as amended by Com. Acls Nos. 177 and 281 held the positions for more than thre<" months does not make them civil service eligibles. IJ., Id. - The fact that the acting Commissioner of Civil Service authorized their appointments "u:1der section 682 of the Revised Administ!'ative Code W continue only until replaced by an eligible" docs not make them eligibles. ' hi., Id. - The hol<liug of a JJOsition by a temporary appointee until replaced by an eligible in disl'egard of the lime limitation of three month3 is unauthorizeP. and illegal. Id., Id. - The temporary appointment of other non-eligibles to replace those whose term have expired is not prohibited. Pri:scv ill. Bitos for res1wnde1ds-appellant1J and Gow::ales and Acasio 'fo1· reispondeufs-a.ppellees, Pruvi11cial Guards. Filcmon Saavedra for /l(fitioners-appellanfis. DECISION PADILLA, J.: This is a petition for a writ of (/IW warm11fo to test the legality of the a1ipointmcnts of Isidro Magallanes as deputy provincial warJen, Pedro Floi·ca as cor1Joral of the 11rovincial guards, and Crisanto Cab, Da.lmacio CoJ"lel, Rafael Galleon, Bienvenido Gonzales, Filomeno Adobas, Franciscv Tavera, Jacinto Barro, Constancio Acasio, Teresa Caindoy, Narciso Ravago and Arcadia Maglines, as provincial guards of Lcytc, with Station at Maasin; and of 111-andanms to compel the respondent Mamerto S. Ribo in his capacity as provincial governor to reinstate the petitioners in the positions held by his co-respondents named above, and him <Ribo) and Melecio Palma, the latter in his capacity as provincial treasurer of Leytc, to pay the unpaid sale.ries allegedly due the petitioners from 1 November 1950 up to the final disposition of this case, and Francisco P. Lopez, in his capacity as clerk of the Court oi First lllstancc of Lcytc, to turn over to the JJctitioncrs all the prisoners in the pro_vincia.l jail. Simultaneously on 12 April 1951 the parties entered into the following stipulations of facts, the fil·st reading as followsThe petitioners and the respondents Provincial Goveri1or Mamerto S. Ribo and Provincial Treasm·er Melecio Palma assisted by their respective counsels l1ave come to the following: AGREED STATEMENTS OF FACTS J . Tlw.t residences of 11eti~ionera and 1·es110ndents are admitte<l to be that of Leyte as well as of iheir respective capacities; 2. That the respondents admit the appointment and commissions of the petitioners per Exhibits A, A-1 to A-14. In each and every appointment Qf said petitions appear the following authorization by the Acting Commissioner of Civil Service: "AUTHORIZED under Sec. 682 ot the Revised Adminislra.tive Code to continue only until replaced by an eligible, but not beyond thil·ty <30) days from the date of receipt of the certification of eligibles, provided, there is no qualified employee from the ranks who may be promotl'd to the positions involved. <Sgd.> Acting Commissioner of Civil Service" 3. That the respondent Govt:mor Ribo addressed a communicatio11 to petitioners infol'lning the latter t-hat their servi<:es were onlered tCl'minatcd as of the lasl worki11g hours of October 31, l!J50; 4. That the 1istitionet·s arc a.11 marricd and have their children except Felipe Enelo, Vedasto CabaleS and Teotimo Mullet who arc still single; G. That the petitioners have not received their salaries corFcoruary 28, 1954 THE LAWYERS JOURNAL 71 72 responding to the period from. OctobeF 16 to October 31, 1950 I. ~::t'ui:' T~'"'i'::"!:f~u exce:~ ;nh;t::~i~yn!~ 81:i~1~~!~7:::;s have not been given their ~: g~~l~0~~0~:f;~~~•·cs Date of Appolntmtnt ::ie1>l. l.1949 &pt. I. 1\149 Sept. I, 1949 ::iept. 1.1949 Sept. I, 1949 Sept. I, 1949 Date Aut1111.e.l Sevt. Z.1949 Sept.Z.1949 S..pt.Z.1949 Sept. Z.1949 Sept. 2. 1949 Sept.Z. 1949 P<ulllou Sirt .• P. G. P. G. P. G. P. i.;. :l:~~e~rc:s:~:;ponding to the ]Jeriod from November 1, 1950 up ~-: ~=~3~:~d~~~ro h · · d · d 8 Nicom<:!des Conejo.; S.,pt. 1949 r. G. P. G. Scpt.2.1949 P. G. by t~~ :~~~:~:1 P~~~~°::i::s r~:!!~:; i~ ~~e~;n;ot~~; :~·d e;c~:~~:(\ :,i_.~ : _ : r:r~~~it~~aJ!=~~~a l~f:t l:H still the Provincial Jail proper in the court house of the Court Fc li11e Enelo Sept. 1949 ~f:t: t I::·'::·':~·::,' ~~~~: i: P. G. P. G. P. G. f'. G. of Firs~ Instance, Maasin, Leytc, until Janua!'y 8, lfl51, pursuant lt }:fJ:.,d~tar~cin ~::t: m; !: t::;r t:~:;:::o~a~~~t ~:~:~::; ~~ clo9v5e;eiy b~:~~;· a~~~e~:~d5~~ ~'~"~~o!~ng~;"Exhibits ,t'~-'i /~4~-14; Scpt.2, Sept. 2. P. G. Ache. Cpl. P. G. Governor Ribo as Exhibit H. That respondents Isidro Magalla- 4. That petitioners Manuel Kangleo11, Alfredo Lucin, Felipe nes, Narciso Ravago, Bienvenido Gonzales, Constancio Acasio, Enelo and Luis Marte a.re veterans pursuant to Republic Act ~:~~E£:£:.:~~~~:'.:::~fa:::~:~~::~::~~~:~:~;~:; ~~~~: 2·~~~:::~~::~E;~::~El;3~if:Ji:~0;,~ ~, §;i'. story of the said court house, Court of First Instance, Maasin, ;~;,k:~dE~:!~i;t a~da~e :~~~ti~;1~~:~~~:io~:r::~.:i!:tB;~;e!-:~ Leyt:~ f~:~ ~:~~:~=~t:· a~i; ~~eJ;:1~:;rn!' dl:c~~ents: a.nd have not qualified in any civil service examination for the (a) Telegram by the Hon .. Secretary of Justice to Provih- classified civil service. cial Fiscal Lardizabal dated November 14, 1950, Ex- 5. That from the respective dates of petitioners' assumption hibit C; ~~d~~:~~. ~:dwi~:e termination of their services, as hereinbelow lb) The communication addressed by Governor Mamerto Name of Petitioner A8sumi•tion rumination S. Ribo to the Provincial Fiscal of Leyte, dated Nov- t. ·reodulo T. Ora; s S..vt. 2, 1949 Oct. 31. 1950 ember 2, 1950, Exhibit D; · -· Eula.Ho Berna.des Sept. z, 1949 Oct.. 31. 1960 le) Respondents also admit the communication addressed ~!. ·_•. ~fE1R~~o~~~:OVH ~f,t t m: Z~t g:: Iii~ by the Provincial Fiscal Jose 0. Lardizabal to the Ramon Kadavc ro Sept. Z, 1949 Oct. 31. 1950 Provincial Governor dated November 13, 1950, marked. ~ . g~cv~~eJ:.i~m Condos ~::L i; m; g~~: ~:: m~ (c.l)E;~~~\~~nsels in this stipulation of facts agreed ::,: ,t::_ ~!i:1~~it!~a:~~~~i: ~~!: ~: mi 8~t ~t mg that Teodulo Orais was appointed on September 1, . : [~1i:"'M~~~lo ~~~i: i: m; S~t ~~·. m3 1949 instead of September 1, 1950 in paragraph 1 of ~~~~~I ir.::~~ieon tg~: ~: m: 8~~: ~:: i:~g Exhibit E; the said petitioners have continuously performed the duties of (d) Communication addressed by Provincial Fiscal Lardi- their office regularly and without interruption; zabal fo petitioners Teodulo Orais dated November 3, 6. That the respondent Provincial Governor, Hon. Mamerto 1950, as Exhibit I; S. Ribo, ordered the services of each and everyone of the peti(el The communication addressed by Acting Provincial tioners terminated effective as of October 31, 1950; a.nd appoint. Warden Isidro P. Magallanes to petitioners herein ed in their stead the ~·espondent provincial guards who qualified dated December 7, 1950, Exhibit J; and assumed their 1·espective positions and discharged the duties (f) The telegram addressed by Fiscal Veloso to petition- as such provincial guards on the dates opposite their names up er Teodulo Orais dated November 29, 1950 as to present time as indicated below, to wit: Exhibit K; (2') The telegram addressed by the Auditor General to the Provincial Auditor, Tacloban, Leyte, dated November 1, 1950, Exhibit F. 9. That said respondents admit the genuine~ess and due execution but not the legality and conclusion of the following: Letter by the Commissioner of Civil Service Jose Gil addressed to Speaker Domingo Veloso dated February 15, 1951, Exhibit B, and the additional papers: Honorable Discharge of Alfredo Lucin, Exhibit B-1; Honorable Discharge of Felipe Enelo, Exhibit B-2; Honorable Discharge of Manuel Kangleon, Exhibit B-3; and Honorable Discharge of Luis Marte, Exhibit B-4. WHBREFORE, the parties to this Honurn.blc Court, most respectfully submit the foregoing stipulation of facts with the reservation to submit such additional evidencl' as each party deems necessary. Maasin, Leyte, April 12, 1951. The second reads thus - COME now the parties hereto duly assisted by their respective counsels and to this Honorable Court respectfully submit stipulation of facts, a.s follows: 1. That the parties, petitioners and respondents, arc residents of the Province of Leyte within the jurisdiction of this Court; 2. That the positions of provincial guard stationed in Maasin Provincial Jail, subject matter of this petition, were duly created by law; 3. That the petitioners were duly appointed members of th(' Provincial Guard Corps stationed at Maasin, Leyte, on the dates indicated after their respective names, and they duly qualified and assumed office, discharged their duties as such provincial guards on the dates hereinbelow indicated, to wit: D&lt of Au 1 iointmrnb Ass11mcd Uff kt 1. Oct. at. 1960 Nov. I, 1%0 2. Oct. 31 , 1950 Nm. l. 1950 3. Oct. 31. 1950 No\'. l. 19&0 4. Oct. 31. 1950 Nov. 1, 1\100 5 Crisanto Cab Oct. 31. 1950 Nov. I. l\IG'J 6. Dalm11cio Corte[ Od. 31. 1960 Nov. l, 1950 7. Rafael Galleon Od. 31. 1950 Nov. I, 111~(1 8 . Bienvenido Gonzales Oct. 31. 1960 Nm·. I. 1900 9 . Ji'ilomeno Adob11s Oct. 31, l!J60 Nov. I. 1%') :,~:. ~~:1~0nc~a~~i~:i0 8~t ~1: mz EE t mg ~ Arcadio Maglincs Oet. 31. 1950 Nov. I. 19~0 as shown by Exhibits 1, 2, 2(a), 3, 4, 4(a.), 5, 6, 6(a), 7, 7(a), 8, 8(a), 9, !Ha), 10, lO(a), 11, ll(a), 12, 12<a), 13, and 13(a); 7. That the petitioners declined or refused to vacate theit· respective positions as provincial guards at Maasin, Leyte, in favor of respondent provincial guards, notwithstanding the order of respondent Provincial Governor, Hon. Mamerto S. Ribo, terminating their services effe~tive as of October 31, 1950, and continued to hold their 1 ·espcctive positions until January 8, 1951, when they turned over their quarters and jail facilities io the respondent provincial guards; 8. That respondent Isidro Magallanes, a. civil service eligible, replaced petitioner Teodulo T. Orais, a non-eligible; respondent Pedro Flores, a civil service eligible, replaced petitioner David Lim, a non-eligible; respondent Francisco Tavera, a civil service eligible, replaced p~titioner Domingo Saligo, a non-eligible; respondent Narciso Ra.vago, a civil service eligible, replaced petitioner Eulalia Bernades, a non-eligible; respondent Crisanto Cab, a non-eligible, replaced petitioner Nicomedes Conej(IS, a non-eligile; i·espondent Dalmacio Corte!, a non-eligible, i·eplaced petitioner Ramon Kadavero, a non-eligible; respondent Rafael Ga.Heon, a non-eligible, replaced petitioner Vedasto Cabales, a non-eligible; respondent Bienvenido Gonzales, a non-eligible, replaced petitioner Felipe Enelo, a non-eligible; respondent Filomeno Adobas, a THE LAWYERS JOURNAL Fchrnary 28, Hl54 no11-digibl"'!, replaced petitione\· Meliton de Gracia., a non-eligible: pet.itioners Teo<lu1o T. Orais, David Lim, Domingo Sa.Ugo and Eulalio respondent J acinto Barro, a non-eiigible, replaced vetitioner Mar- - Bernades, respectively, who are not civil service eligibles. The rest garito Basuga, a non-eligible; 1·espondcnt Constancio Acasio, 11. of the resp~~dents, all not civil service eligibles, replaced the rest non-eligible, replaced petitioner Luis Marte, ~ non-eligible; res- of the petitioners, except Manuel Kangleon and Alfredo Lucin, po~dent Tereso Kaindoy, a non-eligible, replaced petitioner Do- who are also not civil service eligibles. Respondents Bienvenido minador Cordoves, a non-eligible; and respondent Al'cadio Magli- Gonzales and Constancio Acasio, not civil service eligibles, i·eplaced nes, a non-eligible, l'eplaced petitioner Teotimo Mullet, a non- Fdipe Enelo and Luis Marte who though not civil service eligibles eligible, as shown by Exhibits 1 to 13; are vetei-a.ns. 9. That since the aforesaid petitioners have been duly ap- Petitioners invoke in support of their clcim section 682 of the pointed and qualified and assumed the perfol'mance of their res- Rf:vised Adm'.nistra~ive Cod~, as amended by Com. Acts Nos. 177 pective offices up to the tim.? their services were ordered ter- ar.d 281. Said section P_rov1des: . . . . . minated effective as of October 31, 1950, they did not resign nor . Temporary a~po.1ntment w~t~out e~ammatl?n and cert1f1cah th b d "th f · d t · t d·s t1on by the Commissioner of Civil Service or his local represenave ey een re~o.ve . ei er or miscon ~c • mcompe ~cy, 1 - tative shall not be made to a competitive position in any case, loyalt! to the :hihppm~ G~vernment, neither have t. ey e~er except when the public interests so require, and then only upon comnutted any l~Tegular1ty m the performance o~ their duties the prior authoi·iza.tion of the Commissfoner of Civil Service; not· have they violated any law or duty or committed any act and any temporary appointment so authorized shall continue that may ca.use abandonment of their duties nor have they been only for such period not exceeding three months as may be investigated for cause. necessary to make appointment through certification of eligibies, 10. That until the present, the respondents, Governol', Trea- and in no case shall extend beyond thirty days from receipt surer and Guards, have refused and continue to refuse the peti- by the chief of the bureau or office of the Commissioner's certioners their 1·espective positions above mentioned and they have tification of eligibles; x x x. not been paid their salaries from the time of the termination of Appointments made under the section are tempo1·;u·y, when the their services or removal from theii· offices until the present; public interes.ts . so require. ~nd ou~y upon the prior authorization 11. That the respondent provincia.1 guards were paid their of t~e Comm1ss1:mcr of C1v1l Service,_ not to exceed thr~e months ~alaries as such provincial guards, the first sala~-y payme~t hav~~l~fmo;otl~:s~u~~::l~ e;~c~~fi:y~;d t~~ir~o~:~sf~·~~~ .• ~·e~~11~~f:t~~~ rn~ been made on December 26, 19~0, after their res~ec.tive ap- of eligibles. The fact that the petitioners held the positions for P~l~tment~ have been duly authorized by the Commiss~oner of more than thre(' months does not make them civil service eligible!!. Civil Service and apprOved by the Secretary of the Interior;_ Also the fact that the acting Commissioner of Civil Service authorized 12. Respondents and petitioners admit the authenticity and 'their ap11ointmcnts "under section 682 of the Revised Administrative due execution of Exhibits A, A-1 to A-14, R, B-1 to B-4, C, D, B, Code to continue only until replaced by an eligible" does not make F, G, H, T, J, K, L, L-1, L-2, L-3 of petit.ioners and of Exhibits them eligibles. 'l'he holding ot: .a position by a temporary appointee 1, l(a), l(b), 2, 2(a), 3, 4, 4ca), 4(b) , 4(c) , 4(d), 4(e), until replaced by an eligible in disregard of the time limitation of 4(f), 4{g), 5, 6, G<al, 7, 7(a), 8. 8(a), 9, 9(a). 10, lO C a), (1, three months is unauthol'ized and illegal. The temporary appointll(a), 12, 12(a), 13, 13(a), 14, 16, 16 (2 pages), 17 (2 pages), ment of ut~e~· non-eligibles to replace those whose term have expired 17(a), 17(b>, 17(c), 17 (d), 17(e), and 17(() for respondents. is. not pro~1b1ted~ ~ence the repl~cement of 'feodulo T. Orais,. I?avid respectively, without necessarily admitting their validity, legality Lm1, _Domingo Sahgo <llld Eulaho Bernade~, who a.re non-ehg1bl~s, nor the conclusions therein contained. by Js1d1"0 Magallan:s,. Pedr.o ~lores, F1~anc1sc? Tavera and Narciso WHEREFO~E, the part.ies to. this .Honorable Court most !:~~~f ;0hno-e~i1;ib~~:1:~es~o~-~::g~~~~r~:n1c:w;~~hu~~:~ a~~ep~~~a:~;; resp~ctfully submit .the forego1~g stipulati?~ of fac~ for approv- to section 682 of thf: Revised Administrative Code. The replacement al with the reservat10n to sumb1t such additional evidence as eacl1 of Felipe Enelo and Luis Marte, non-eligibles but veteran&, by party may deem necessa.17. Bienvenido Gonzales and Constancio Acasio, who are non-eligibles, M.i.asin, Leyte, April 12, 1951. is unlawful The former are preferred under Rep. Act No. 65, as Upon the above quoted stipulations of facts, the Court of First amended by Rep. Act No. 154, they have. been appointed within the Instance of Leyte rendered judgment, the dispositive part of Wrm provided for in said Republic Acts. If the preference of a which is, v«teran is to be confined to appointment and promotion only ':lnd ta) Declara<lo a los recurrentes Teodulo Orais, Eulalio Bernades, Dominador Cadavero, David Lim, Nicomedes Conejos, Vedast:i Cabales, Meliton de Gracia, y Margarito Basuga sin dereclio <1. los cargos de sargento de la guardia provincial y guardias provinciales ocupados pol' los recurridos Isidro Magallanes, Pedt·o Flo1·es, Francisco Tavera, Narciso Ravago, Crisanto Cab, Dalmacio Corte!, Rafael Galleon, Filomeno Adobas, Jacinto Barro. Tereso Caindoy y Arcadio Maglines, y sobreseyendo su accion. Cb) DeclarandO a los recurrentes Felipe Enelo y Luis Marte con derecho de continuar en sus cargos como guardias provinciales y que los nombramientos extendidos a favor de los i·ecurridos Bienvenido Gonzales y Constancio Acasio son contrnrios a la lay, y ordenando a estos dos ultimas que entreguen sus puestos a los refcridos recurrentes Felipe Enelo y Luis Ma.rte. (c) Ordenando al tesorero provincial Sr. Melecio Palma, o a su sucesol· que pague los sueldos de los recurrentes Felipe Enelo y Luis Marte desde el primero de Noviembre de 1950 y mientras dichos recurrentes continuen desempciiando sus cargos legalmentc. <dl Sobreseyendo la accion de los recunrntes Manuel Kangleon y Alfredo Lucin. Ce) Absolviendo libremente de la demanda a los l'ecurridos Mamerto S. Ribo y Francisco P. Lopez; y (f) Condenando a los recurrentes, excepcion de Felipe Enelo y Luis Marte, a. pagar las costas de! juicio. From this judgment the 1 ietitioners, with the exception of Fe.lipc Enelo and Luis Marte, appealed. Re~pondents Bienvenido Gonzales and Conotancio Acasion appe?.led fr.::>m the decision in so far as the trial court found them not entitled to the positions claimed by them. The respondents Isidro Magallanes, Pedro Flores, Fnmcisco 'favera and Narciso Ravago, all civil sen·icc eligibles, replaced the does not include the right to continue to hold the position to which he was appointed until an eligible is certified by the Commissioner of Civil Service, then he would be in no better situation than a noneligible who is not a veteran. The appointment of a veteran, however, is subject to cancellation or his removal from office or employment must be made by competent authority when the Commissioner of Civil certifies that there is an eligible. There is no a.verment in the petition that the positions held by Manuel Kangleon and Alfredo Lucin were usurped or that they were replaced.by others in their positions as provincial guards. Hence the petition in so far as it concerns them must be dismissed. Republic Act Ko. 5!i7 is also invoked by the appellants Bienvenido Gonw.les and Constancio Acasio. The net guarantees the tenure of office of provincial guards and members of cit~· and municipal police who are eligibles. Non-eligibles like the two appellants do not come under the protection of the act invoked by them. The judgment appealed from is affirmed, without cosl;;;. Paras, Benyzon, Montemayor, Jugo, Pablo, Tuazou, Reyes, Bau. tisto., Angelo and L<ibrador, J. J., concur. VI The Leyte-Samar Sales Co. and Uaymond Tomas;;i, versus Sulp1'cio V. Cea, in his capacity as Judge of the Coit·rt of Pirst Instance of Leyl.;,; and Atty. Olegario Lastrilla, G. R. Nu. 1 .--5063, May 20, 1953. CIVIL PlWCEDURi'J; EXECUTlON; WHERE PROPBH'TY SOLD AT PUBLIC AUCTION IS CLAIMED BY '!'HIRD .PERSON.Jn a suit for damages by S Co. and RT a.'!'ainst L Co., AH FB and JR, judgment against defendants, jointly and s1:verally, for the amount of !'31,589.14 ,,·as rendered. On June 9, 1951 the February 28, 19!J4 THE LAWYEHS JOUHNAL sheriff sold at auction to RD and PA "All the rights, interests, titles and participations" of the defendant in certain properties. But on June 4, 1951 OL filed in the case a motion in which he claimed to be the owner by purchase on September 29, 1949, of all the "shares and interests" of FB in L Co., and requested "under the law of preference of credits" that tl1e .sheriff be required to retain in his possession so much of t he proceeds of the auction sale as may be necessary "to pay his right." The court granted OL's motion, which was later modified to the effect that it merely declared that OL was entitled to 17% o( the properties sold. HELD: The judge's action on OL's motion should be declared as in excess C'f jnrii;c!lrtion, considering spt!ci!llly that HD and PA, and the defendants themselves, had undoubtedly the right to be heard - but were not not-i/ied, and it was necessary to hear them on the merits of OL's motion because RD and PA might be unwilling to recognize the validity of OL's purchase, or, if valid, they may want him not to forsake the partnership that might have some obligations in connection with the partnership properties. And what is more important, if the motion is granted, when the time for redemption comes, RD and PA 'viii receive .from retlemptioners seventeen per cent (17 % ) less limn the amaimt they had paid for the same properties. AH and JR, eyeing OL's financial assets, might also oppose the substitution by OL of FB, the judgment against them being joint and :;eueral. They might entertain misgivings about FB's slipping out of their common predicament thru the disposal of his shares. Lastly, all the defendants would have reasonable moth,es to object to the delivery of 17 % of the proceeds to OL, because it is so much money deducted, and for which the plaintiffs 1night ask another le vy on their other holdings or resources on the assumption that there was TIO fraudulent collusion among them. Assuming that OL's sha1·es ha\re been actually - but unlawfully - sold by the sheriff to RD and PA the remedy can be found in Sec. 15, Rule 39. /i'ilenw11 illo11tejfl 1J-11d Rumon T. J imcnc: for petitioners. Olegario Ln~trillu i11 !ii;-; uwn behalf. DECISION Bengzon, J. Labeled "Certiorari and Prohibition with Prelimina1·y lnju~c tion" this petition actually prays for the additional writ of man~ damus to compel the respondent judge to give due course to petitioners' appeal from his order taxing costs. However, inasmuch as according to the answer, petitioners thru their attorney withdrew their cash appeal bond of P-60.00 after the record on appeal had been rejected, the matter of mandamus may summarily be dropped without further comment. From the Jlleadings it appears that, In Civil Case No. 198 of the Court of First Instance of Leyte. which is a suit for damages by the Leyte Samar Sales Co. (hereinafter called LESSCO) and Raymond Tomassi against the Far Eastern Lumber & Commercial Co. (unregisterf'd commercial partnership hereinafter called FELCO>, Arnold Hall. Fred Brown and Jean Roxas, judgment against defendants jointly and severally for the amount of P-31,589.14 plus costs was rendered on October 29, 1948. The Court of Appeals confirmed the award in Novembe1·, 1950, minus P2,000.00 representing attorneys' fees mistakenly included. The decision having become final, the sheriff sold at auction on June [J, 1961 to Robert Dorfe and Pepito Asturias "all the rights, interests, titles and participation'' of the defendants in certain buildings and properties described in the certificate, for a total price of eight thousand and one hundred pesos. But on June 4, 1951 Olegario Lastrilla filed in the case a motion, wherein he claimed to be the owner by purchase on September 29, 1949, of all the "shares and interests" of defendant Fred Brown in the FELCO, and requested "under the law of vreference of credits" that the sheriff be required to retain in his possession so much of the proceeds of the auction sale as may be necessary "'to pay his right". Ov~r the plaintiffs' objection the judge in his order of June 13, EHil, granted Lastrilla'ii motion by requiring the sheriff to retain 17% of the money ''for delivery to the assignee, administrator or receiver'' of the FELCO. And on motion of Lastrilla, the court on August 14, 1951, modified its orders of delivery and merely declared that Lastrilla was entitled to 17% of the properties sold, saying in part "x x x el Juzgado ha encontrado quc no sc ha respetado los derechos del Sr. Lastrilla en lo que Se refiere a Sll adquisicion de las acciones de C. Arnold Hall (Fred Brown) en la Far Eastern Lumber & Commercial Co. porque las mismas han sido' incluidas en la subasta. "Es verdad que las acciones adquiri<las por el Sr. Lastrilla representan el 17% de! capital de la sociedad 'Far Eastern Lumber & Commercial Co., Inc., et al' pero esto no quiere decir que su valor TIO esta sujeto a las fluctuaciones del negocio <londe las invertio. "Se vendieron prnpieda<les de la C-Orporacion 'Far Eastern Lumber & Commercial Co. Inc.,'' y de la venta· solamente se obtm•o la cantidad de PS,100.00. "EN SU VIRTUD, se declara que el 17 % de las propiedades vendidas en publica subasta pertenece al Sr. 0. Lastrilla y este tiene derecho a dicha porcion pero con la obligacion de pagar el 17% de los gastos por la conservacion de dichas propied:idt:s poi· parte del Sheriff; xx x." <Annex K) It is from this declaration and the subsequent orders to enforce it ( ll that the petitioners seek relief by certiorari, their position being that such orders were null and void for lack of jurisdiction. At their request a writ of preliminary injunction was issued here. The record is not very clear, but there are indications and we shall assume for the moment, that F red Brnwn (like Arnold Hall and J ean Roxas) was a partner of t he FELCO, was defendant in CiYil Case No. 193 as sucli partnc1-, and that the properties sold at auction actually belonging to the FELCO pa1·tnership and the partners. We shall also assume t.hat the sale made to Lastrilla on September 29, 1949, of all the shares of Fred Brown in the FELCO l\'as valid. (Remember that judgment in this case was entered iii the court of first instance a year before.) The result then, is that on June 9, 1951 when the sale was effected of the properties of FELCO to Roberto Dorfe and Pepito Asturias, Lastrilla was already a partner of FELCO. Now, does Lastrilla have any proper claim to the proceeds of the sale? If he was a creditor of the FELCO, perhaps or maybe. Rut he was not. The partner of a partnership is not a creditor of such partnership for the amount of his shares. That is too elementary to need elaboration. Lastrilla's theory, and the lower court's, seems to be: inasmuch as Lastrilla had aClJUired the shares of Brown in September 1949, i.e., befoi·e the auction sale, and he was not a party to the litigation, such shares could not have been trausfencd to Dorfe and Asturias. Granting, <try1umdo that the auction sale did not i.nclude the inteJ"est or 1>ortion of the F9LCO properties corresponding to the shares of Lastrilla in the same partnership <17%), the resulting situation would be - at most - that the purchasers Dorfe and Asturias will have to recognize dominion of Lastrilla over 17% of the prof>el'ties awarded to them.2 So Lastrilla. acquired no right to demand any part of the money paid by Dorfe and Asturias to the sheriff for the benefit of LESSCO and Tomassi, the plaintiffs in that case, for the reason that, as he says, his shares (acquired from Brown) could not have been and were not auctioned off to Dorfe and Asturias. Supposing however that Lastrilla's shares have been actually (but unlawfully) sold by the sheriff (at the instance of plaintiffs) to Dorfe and Asturias, what· is his remedy? Section 15, Rule 39 furnishes the answer. Precisely, respondents argue, Lastrilla vindicated his claim by proper action, i.e., motion in the case. We ruled once that "action" in this section means action as defined in section 1, Rule 2.3 Anyway his remedy is to claim "the property", not the proceeds of the sale, which the sheriff is directed by section 14, Rule 39 to deliver unto the judgment creditors. In other words, the owner of property wrongfully s" old may not voluntarily come to court, and insist, "I approve the sale, therefore give me the proceeds because I am the owner". The reason is that the sale was made for the judgment ei.:e.ditor (who paid for the fees and notices), and not for anybody else. (1) Requiring she riff to turn O\"t'r 17% of the IH'OC"c<fa t.o Lastrilla. (2) Thia is a feature to be dii;cussed betw«>u the 1111·..., of them at Lhc 1.ru1"'r time - and this &t.a.temcut does not attempt to settle their rc s p~-ctive ri1;:hts. (31 CL Maoila Herald Publishing Co. \". Judge Ramos, L-4268. January 18, 1%1, Moran. Comment•. 19S2 Od. Vol. 2. p. 46. 74 THE LAWYERS JOURNAL February 28, 1954 On this score the respondent judge's action on Lastrl\la'P acquired a definitiv-e charaeteP", And still in another ease, an motion should be declared as in excess of jurisdiction, which even order granting a review of a decree of registration issued more amounted to want of jurisdiction, considering specially that Durfe than a year ago had been declared null and void. In all these _ and Asturias, and the defendants themselves, had undoubtedly the cases the existence of the right to appeal has been disregarded. r;glit to be heard - biit the11 1t·ere not not1fied.4 In a probate case, a judgment according to ~ts own recitals was Why was it necessary t(l hea o· them on the merits of Lastrilla's rendered without any trial or hearing, and the Supreme motion? Court, in granting certiorari, said that the judgment was by Because Dorfe and Asturias might be unwilling to recognize its own recitals a patent nullity, which should be set aside the validity of Lasttilla's purchase, or, if valid, they may want though an appeal was available but was not availed of. x x x" him not to forsake the partnership that might have some obligations Invoking .:>ur ruling in Melocotones v. Court of First Instance, in connection with the pai-tnership properties. And what is more 57 Phil, 144, wherein we applied the theory of !aches to petitioners' important, if the motion is granted, when the time for redemption 3-year delay in requesting certiorari, the respondents point out comes, Dorfe and Asturias will receive from redemptioners seven- that whereas the orders complained of herein were issued in June teen per cent (17%) less than the amount they had paid for the 13, 1951 and August 14, 1951 this special civil action was not filed same properties. until August 1952. It should be observed that the order of June The defendants Arnold Hall and Jean Roxas, eyeing Lastrilla's 13 was superseded by that of August 14, 1951. The last order financial assets, might also oppose the substitution by Lastrilla of me:rely declared "que el 17% de las propiedades vendidas en publiFred Brown, the judgment against them being jrtint a.ml several. ca subasta pertenece al Sr. Lastrilla y este titme derecho a dicha They might entertain misgivings about Brown's slipping out of their porcion." This does not necessarily mean that 17% of the nwney common predicament thru the disposal of his shat·es. had to be delivered to him. It could mean, as hereinbcfore indiLastly, all the defendant& would have reasonable motives to cated, that the purchasers of the property ( Dorfe and Asturias) object to the delivery of 17% of the proceeds to Lastrilla, because ~;:1 ~Ai~e=n~~ ~:sttr~~:·:0~:vt~:::~~· a!t 0 ;;esr ~~:ec~~g A~:u s~!: ~~8 a:t~e~c~e:0:e: t~~~~c~~~ra';!1!~:g;~~chre~::1~:i.~ti~f:P;~;~ riff "to tum over" to Lastrilla "17% of the total prnceeds of the of course, there was no fraudulent collusion among them. ~i~~~~~ ~:!:·;~, ;:~r~h:y t~:u;~1~e:t t~~~i~c;:eal:~sr:;~:;c~~ ~:Jyp~t~: Now, these varied interests of necessity make Dorfe, Asturias 1952 (Annex Q>. Surely a month's delay may not be regarded and the defendants indispensable. pa-rties to the motion of Lastrilla , as !aches. ___..granting it was a step allowable under our regulations on exe- In view of the foregoing, it is ou1· opinion, and we so hold that cution. Yet these parties were not notified, and obviously took all orders of the respondent judge requiring delivery of 17% of the no part in the proceedings on the motion. proceeds of the auction sale to respondent Olegario Lastrilla are "A valid judgment cannot be rendered whei·e there is a null and void; and the costs of this suit shall be taxed against the want of necessary parties, and a court cannot properly adju- latter. The preliminary injunction heretofore issued is made perdicate matiers involved in a suit when necessary and indis- manent. So ordered. pensable parties to the proceedings are not before it." {49 C. Pa11•as, Feria, Pablo, Tuazon, Mo1itemayor, Reyes, Jugo, Baidista J. S. 67.) Angelo and Labrador, J. J., concur. "Indispensable parties are those without whom the ac!ion cannot be finally determined. In a case for recovery of ret1l property, the Qefendant alleged in his answer that he was occupying the property as a tenant of a third person. This third person is an indispensable party, for, without him, any judgment which the plaintiff might obtain against the tenant would have no effectiveness, for it would not be binding upon, and cannot be executed against, the defendant's landlnrd, against whom the plaintiff has to file another action if he desires to recover the property effectively. In an action for partition of property, each co-owner is an indispensable party, for without him no valid judgment for pa-rtition may be rendered." (~loran, Comments, 1952 9d. Vol. I, p. 56.) <Underscoring si.ipplied.) Wherefore, the orders of the court i·ecognizing Lastrilla's right and ordering payment to him of a part of the proceeds were patently cn-oneous, because they were promulgated in excess or outside of its jurisdiction. For this rea.son the respondents' argument resting on plaintiffs' failure to appeal from the orders on time, although ordinarily decisive, i:arries no persuasive force in this instance. , For as the former Chief Justice Moran has summarized in his Comments, 1952 9d. Vol. II, p. 168 - "x x x And in those instances wherein the lower cou1"t has acted without jurisdiction over the subject-matter, or where the order or judgment complained of is a patent nullity, courts have gone even as far as to disregard completely the question of petitioner's fa.ult, the reason being, undoubtedly, that acts performed with absolute want of jul°isdiction over the subjectmatter are void ab initio and cannot be validated by consent, express or implied, of the parties. Thus, the Supreme Court granted a petition for certio1·ari and set aside an order reopening a cadastral case five years after the judgment rendered therein had become final. In another case, the Court set aside .an order amending a judgment six years after such judgment (•) TrQe, Lairtrilla wa. attorney for defendanh. but he was careful in all his moUon1 on the matter lo ~ign "Jn hla own representation" ~r "for himself and in hlsbeba\f." VII Tomasci V. Bulos Vda.. de 1'1icso11, as administra.tri:t of the testttfr n~tate of the deceased Pablo Tecson Ocampo, versus Benjamin, et ul., all surnamed Tecson, G. R. No. L-5233, September 30, 1953. CIVIL PROCBDUHE; PETITION FOR RELIEF FROM JUDliMENTS. - While a petition for relief as a rule is add1·e!lsecl to the sound discretion of the court, however, when it appears th" ai. a party has a good and meritorious defense and it would be unjust and unfair to deny him his day in court, equity demand!' that the exercise of judicial discretion be reconsidered if there are good reasons that warrant it. Castillo anrl Gnevam a·ltd Lc-0, Feria and Manglapus for appellants. CCaro J U. Recto for a.ppellce. · - DECISION BAUTISTA ANGELO, J .: The incident involved in this appeal stems from an action for forcible entry originally commenced on June 12, 1941 in the Justice of the Peace Court of San Antonio, Nueva Ecija, by Tomasa V. Bulos Vda. de Tecson in her capacity as administratrix of the estate of the tleceaiwd Pablo Tecson Ocampo against defendants-appellants. In that case, defendants filed a written answer. After trial, the court dismissed thr, case. From the decision plaintiff appealed to the Court of First Instance of Nueva Ecija, and the case was docketed as Civil Case No. 8889. Having failed to answer the complaint within the time prescribed in Section 1, Ruic 15, of the Rules of Court, defendants, on motion of plai11tiff, were declared in defa· lt and thereafter plaintiff present('d her evi<Jcnce. On OctobeJ' 9, 1!)41, a judgment by default \ras rcndet"ed against defendants, and on October 10,' 1941, copy of the decii:ion was served on defendant.e' couruiel. Three days after receipt of copy of the decision, or on October 13, 1941, counsel for defendants filed a writte'11 manifestation stati11g that he would file u petition to set aside the decision by default but that he needed more time to do so lo enable him to gather eviaence February 28, 1954 THE LAWYERS JOURNA~ 75 and prepare the neCttHary affidavits of merit in support of the petition. This was done on October 16, 1941. Plaintiff filed an opposition to the petition for relief. Then war broke out and no action was taken on the petition. · After liberation, counsol for defendants took steps to have the petition for relief acted l,!pon by the court. The petition was set for hearing several times, but before action tl1ereon could be taken, both parties agxced in a joint action to ha~e the hearing cancelled as they would merely file a memoranda in_ support of .their contentions. These memoranda having been submitted, the court issued an order d<"nying the petition. From this order defendants took the case directly to this Court stating that their appeal "is based merely on questions of law." The preliminary question which should be threshed out before we come to the main issue is whether this appeal should be determined considering merely the findings o(. fact of the lower court in. tho c.rder subject of appeal. Counsel for appellee sustains the affirmatlve "View because, he contends, a.ppellants have stated in their notice of appeal that their "appeal is based merely on questions of law" which means that they cannot discuss any fact or circumstance other than those found by the lowe1· court. · Counsel for appellants sustain the contrary view contending that the facts brought out in their pleadings and affidavits of merit ~tand undisputed a,~d so they can now be considered. It appears that on October 13, 1941, or three days !~om receipt of copy of the decision by default, counsel for defendants filed an urgent manifestation stating that ht: would presently file a petition for 1'€1ief but tha.t he wanted more time to gather data and prepare the requisite affidavits of merit in support of the petition, and in effect he filed the petition three days thereafter attaching the!·eto four affidavits of merit-. Said petition shows the following facts: The notice intended for defendants requiring them to answer was received by one Mariano Linao, an employee of a business firm namt:d Lawyers' Printers. The office of defendants' counsel was locutt!d in the same room occupied in part by said firm, whose manager was one Marcos Suiiiga. The personnel of the law office of counsel for defendants merely consisted of three, namely, Atty. Gaudencio B. Talahib, one typist and a messenger. When the notice of the conrt reached the office of counsel, only Mariano Linao was present, who signed the return card and placed the letter on a table. The messenger of defendants' counsel was out to attend to some errand but when he returned Linao left without calling his attention to the letter. Both Atty. Castillo, defendants' counsel, as well as his a.ssistant, Atty. Talahib, were also out attending to some professional engligement. The notice never came to the knowledge of defendants' counsel until he received, to his surprise, copy of the decision by default. Immediately he took steps to file a petition for relief. This petition was set for hearing several times, but the hearing was never held, as the parties agreed to submit memoranda in support of their contentions. And one of the points ~ti·essed in the petition was that defendants had a good and meritorious defense. Considering that the petition for relief did not go thru the process of a hearing, because both parties agreed to submit memoranda in support of their contentions, which implies that they waived their privilege to submit evidence, the logical consequeJJce is that plaintiff, or her counsel, is deemed to have admitted the truth of ail material and relevant allegations appearing in the petition, as well as in the affidavits of merit, and to have submitted the case upon those allegations. As this court aptly said, "One who prays for judgment on the pleadings without offering proof as io the truth of his own allegations, and without giving the opposing party an opportunity to introduce evidence, must be understood to admit the truth of all the material and relevant allegations of the opposing party, and rest his motion for judgment on those a.llcgations taken together with such of his own as are admitted in the pleadings." (Evangelista v. De la Rosa, 42 0. G. 2100; Aquino v. Blanco, 45 0. G. 2080.' The facts concerning the petition for relief not being disputed, we are inclined to sustain the Yiew of appellants' counsel that fo1 purposes of this appeal we may take into account not only the findings of fact made by the lower court but all other relevant and material facts appearing in the pleadings to determine if said findings are proper, just and warranted. The lower court found, among other things, that the facts contained in the petition give a picture of a law office poorly organized and directed; a law office with one a.ssistant, one messenger and one typist, still court 1toticcs are 1·eceived by a stranger who signs {or them; the allegation of counsel for the defendants that during or around the period he was very busy at the trial of many cases, as correctly answered by the plaintiff, is no excuse for the default entered in this ca.se,'' and after stating that "plaintiff is as entitled as the defendants for the speedy termination of the case," the court, based on said findings, denied the petition for relief. While a petition for relief as a rule is addressed to the sound discretion of the court, however, when it appears that a party has a good and meritorious defense and it would be unjust and unfair to deny him his day in court, equity demands that the exercise of judicial discretion be reconsidered if there are good reasons that warrant it. Here these i·easons exist if only all the facts are considered. Note that counsel did not lose time in putting things aright when he came to note that something wa.s wrong. Upon receipt of copy of the decision of the court, which came to him as a surprise, he immediately gave notice of his desire to file a petition for relief, which he did in no time, attaching to his petition four affidavits of merit. These documents show that defendants had a good and meritorious defense and outline the circumstances which resulted in the failure of their counsel to 1:1.nswer within the reglamentary period. They show th<!.t counsel was sharing office with a business firm and th8t because of an unfortunal:e coincidence the notice to answer Was served on an employee of the firm. That such coincidence can happen -cannof be denied. It is one of these things that can happen in the ordinary course of business. It mu.y be an act of negligence for Mariano Linao not to give the nr.tice to the messenger of defendants' counsel, or an act of negligencf' for the messenger to leave the office without ]eav. ing a substitute, buhit cannot be denied that that negligence is excusable because there was no deliberate intent on their part to cause inconvenience to the court, or delay the administration of justice. On the other hand, there is no ehowing that counsel is guilty o{ any attempt to delay the proceedings, or of any act of bad faith or inexcusable ne~ligence which may warrant disciplinary action; on the contrary, it is the first time that he has been placed in a predicament where his client ha.s been declared in default. These consideratio:ns warrant that the ease be reopened &nd defendants be given one more opportunity to answer and present their evidence. Wherefore, the order appealed from is hereby set aside. The pe. titian for relief of defendants is granted and defendants are given ten UOJ days from notice to answer the complaint, without pronouncement as to costs. Paras, C.J., Bcnuznn, Padilla., Tuason, ftlonten;ayor, Reyes, Jugo and Labrndnr, J.J., concur. Pablo, J., took no pwrt. VIII Hernando Pabilonia a,nd Romen Pabilonia, Petitioners, vs. llon. Vi. cente Santiago, Judge Court of First /II.stance of Quezon Province, Hranch II; Antonia Aba..s and Panfilo Nauar, Respondents; G. R. No. L-5110; July 29, 1953; Court of Industrial Rdations; it has nc power W nwdify cm award confirmed by S11pn:me Court.-While Sec. 17 of Commonwealth Act No. 103 as amended appa.rently authorizes the Court of Industrial Relations to modify an award at any time during its effectiveness, there is nothing in the wording to suggest that the Court of Industrial Relations may modify ·an award that has been affirmed by th<" Supreme Court after an order for tl:te execution of that award has .already become final. Potenciano A. Magtibay for petitioners. G. N. Trinidad for respondents. DECISION REYES, J.: The petitioners in these two cases challenge the validity :..nd seek the annulment of &n order of the Court of Industrial Relations by which that court gave to a motion for modification of a judgment that had already become -final. Though .differing in form - one CG. R. No. L-6265) an appeal by certiorari --.- the two cases are but Ont! in substance u.nd purpose, and should be adjudicated togeth~l'. This decision is, therefore, rendered for the adjudication of both. It appears that, on November 23, 1946, the Court of Industrial Relations awarded wage increases to the laborers of Dee C. Chual". & Sons, Inc., a Philippine corporation in the iumbcr businets, the laborers being then represented by the Kaisa.han ng Manggagawa sa 76 TH~ LAWYERS JOURNAL February 28, 19f~ Kahoy sa. ll'ilipinas and tht! CLO. On July 23, 194S, following a strike sfaged by the laborers, that coqrt again awarded them wage increases coupled with vacation and sick leave with pa.y. Taken to the Supreme Court by a writ of certiorari, this latter award was affirmed in toto on January 28, 1950. The conipany, hoirever, filed a motion for reconsideration, and pending determination of this motion in the Supreme Court, the company filed another motion, dated March 31, 1950, in the Court of Industrial Relations asking for a modification of both the award of November 23, 1946 and that of July 23, 1948, on the grounds that conditions had changed since those awards were amde' due to losses suffe1·ed by the company in 1948 and 1949, the down trend in the cost of living, and _ the reduction of wages in other lumber companies. This motion for modification wa&i docketed as case No. 71-Vl6>, but consideration thereof was suspended pending the i·esolution of the motion fo1· reconsideration in the Supreme Court. On July 3, 1950, the Supreme Court denied the motion for reconsideration, and its decision having been declared final and execu. tory on July 6, the pre.sent petitioners filed a motion in the Court of Jndush-ial Relations asking for the execution of the judgment: The company agretd to the execution with respect to the wage increases fOr .194'1 but objected with re_ spect to the wage increases for 1948, 1949 · alid-1950 for reasons already alleged in its motion for :i:nodification:· The motion for ~xecution an<l the motion for ruodifiCation were hEard together - each being considered a reply to the other - and thereafter the Court of Jndustrial Relations, under date of Nov. 24, 1950, .rendered an order declaring itself without authority to modify an award for an increase of wages .. fo1· the period of the pendency of the, appeal in the Supreme Court" and 01·dering the corresponding writ of execution to be issued "in accordance with the decision of July 2:;, 1948 x x x." Reconsideration of this 01·der having been denied, the company petitioned the Supreme Court for a w1·it of certiorari <G.R. No, L-4680J to have the order annulled. But the petition was dismissed for lack of merit, and the dismissal beca.me final on May 25, 1951. That was the status of the case when the Court of Industrial Relations, at the instance of the Company, issued the order of 1\Iay 2~, 1952, by which that coul't gave course to the motion for modification of th~ award that ha.d already become final by ordering an examination of the t:ompany's books of account and otheL· pertinent reco1·d to ascertain "its financial condition for the years Hl48, 1949 and 1950" so as "to enable the Court to determine the justice, equity and subst1mtial merits of the case coucerning the modification of the award of July 23, 1948 x x x." It is this order that the laborers brought to this Court fo1· review after the <:ou1·t below, with two of its judges dissenting, had i·efused to reconside1· it. At the time the orde1· was issued, the award was already 011 its way to being executed as1 the amounts due the laborers thereunder had a.lready been computed by the court examiner and were then being discussed in court. The laborers, therefore, maintain that the award could no longer be modified so that the order giving course to the motion for modific~tion was a nullity. Brushing aside all technicalities, the broad question presented for determination is whether the Court of Jndustrial Relations may modify an a.ward that has been affirmed by the Supreme Court after a order for the execution of that award has already become final. Section 17 of Commonwealth Act No. 103, as amended i·eads: "Sec. 17. Li?Jlit of effectiveness of award. - An award, order or decision of the Court shall be valid and effective during the time therein specified. Jn the absence of such specification, any party or both parties to a controversy may terminate the effectiveness of an award, order or decision after three years have elapsed from the date of said award, order or decision by giving ·notice to that effect to the Court: Provided, however, that any time during the eHectiveness of an a.ward, order or decision, the Court may, on application of an interested party, and after due hearing, alter, modify in whole or in part, or set aside any such award, order or decision, or i·copcn any question involved therein." While the above .:;ection apparently authorizes the modifica.tion of an award at any time. during its effectiveness, there is nothing jn its wording to suggest that such modification may be authorized even after the order for the execution or the award has already becom1:: fmal - with respect, of course, to the period tha.t had already elapsed at the time_ the order was issued. To read such authority into the law would make of litigations between capital and labor an endless affair, with the Industrial Court acting like a modern Penelope, who puts off her suitors by unraveling every night what she has woven by day. Such a result could not have been contemplated by the Act creating said court. Conformably to the above, the order complained of is annulled and set aside insofar as it aifrds or retards the execution of the award of July 23, 1948 for the yea.rs 1948, 1949 and 1950, So orde1·ed. Ricardo Paras, Guillermo F. Pablo, Cesar Bengzon, Sabino Padilla, Pedro Tuason, Marceliano R. Montemayor, Fernaudo Jugo, Fe. fix Bautista Angelo, Alejo Labrador, concur. IX Ne1· J. Lope;:, versus J,ucia Y. Matias Vda. de Tinio and the Hfln. Judge Gwillen1~-!I R. Cabrera, of the .ll1wnicip11l Court of Manila, B• ranch Ill, G. R. No. I L-6005, promulgated on De1:eml;er 29, 19f.3. APPE_ AL; DENIAL OF MOTION TO DJSMISS NOT APPEALARLE. ~ A denial of a motion to dismiss a complaint is an interlocutory prder and e.s such not appealable nor can be the. subject of certiorari. After an adverse judgment of a municipal court, the defendant may appeal. This is his remedy. ·Jovc1-. Led•1sma rnid J>nno for petitioner:.appellant. Reyes and Nuiiez for respondents. DECJSION PADILLA, J.: In a detainer action Lucia Y. Matias Vda de Tinio sought to dispossess Ner J. Lopez of a lot located on Evangelista street, Manila. foe failure to pay the stipulated rentals. A motion to dismiss the complaint on t-he ground that it states no cause of action was denied. Whereupon, the defenllant in the detainer ca.se filed in the Court of First Instance a petition for a writ of certiora1·i with preliminary injunction. Th~ Court denied the petition and from the order deny- • ing it he has appooled. That the municipal court of Manila has jurisdiction to try and decide the action for detainer brought by the appellee Lucia Y. Matih~ Vda. de Tinio again'st the appellant cannot be disputed. It does not appear that the appellee attached to her complaint the conract of lease, upon which the appellant i·elies to ask fo1· the dismissal of the complaint. Jurisdiction is conferred by law and whethe1· a court has jurisdiction over an action brought to it is ascertained from and determined upon the ultimate material facts pleaded in the complaint. Matters of defense such as the one raised by the appellant may be pleaded in his answer. After issues have been joined the court must proceed to hear the evidence of both parties and render judgment. ]t is well-settled in this jurisdiction that a denial of a motion to dismiss a complaint is an interlocutory order and not appealable. As heretofore stated, there is no question that the municipal court of Manila has jurisdiction over an action for detainer, and if the denial of a motion to dismiss cannot be appealed because it is interlocutory, much less would a petition fer a writ of certiorari lie. After an adverse judgment by the .municipal court the defendant may appeal. That is his i·emedy and not the extraordinary one for a writ oi' certiora.ri. The judgment appealed from is affirmed, with costs against the appellant. Paras, C./., Beng:zo11, J11go, Pablo, Tunson, Bauista. Angclu, a1lci Labrador, concur. Montemayor, J., tool• no pa1·t. x Lennor ltogel, alias Sister Angelica of the S. Hen,rt, and Angela. Vogel, alias Sister Marie Du Rosaire, versus Sattirnino i1ioldero, <:, N. No. L-4972, September 25, 1953. LAND REGISTRATION; REGISTER OF DEEDS; RECOURSE WHEN DEED 01'' SALE IS RE1'~USED INSCRIPTION AND February 28, 1954 THE LAWYERS JOURNAL 77 ISSUANCE OF 'NEW TRANSFER CERTIFICATE OF TITLE. - When the register of deeds refused the inscription of a deed of sale and the issuance of a. new transfer certificate of title, the petition of the inti::rested party for an order of the court to reverse the decision of the register of deeds must be filed in the original case in which the decree of registration of the land sold was entered and it shOuld bear the same title. This is necessary to make it clear that the petition invoking the provisions of the Land Registration Act, particularly Section 112 thereof, is not an ordinary civil action. Josefino de Alban for appellants. Mauro V erzosa for appellee. DEC I S ION M.ONTEJ\fA Yon, J .: Pursuant to a decree of August 24, 1917, FRANZ VOGEL was declared the owner of about 865 hectares of land called "HACIENDA SAN FERN ANDO" in the municipality of Tumauini, lsabela, and Original Certificate of Title CO.C.T.- No. A-84 was issued in his name. After his death, ELIAS OCAMPO NAVARRO was appointed Special Administrntor of his estate in Special Proceedings No. 87. Pursuant to a court order dated ·J une 13, 1925, authorizing him to sell at public auction the properties of the estate, Navarro on January 4, 1926, sold the Hacienda Sa.n Fernando to JOH LOHMAN, as the highest bidder, for the sum of P25,000.00. On March 9, 1926, Navarro issued the corresponding certificate of sale <Exh. e>, and by virtue thereof, Transfer Certificate of Title <T.C.T.) No. 127 was issued to J oh. Lohman on the san1e date. On June 18, 1948 Joh. Lohman thru a Deet.I of Absolute Sale <Exhibit DJ sold the same hacienda or estate to petitioner-appellee SATURNINO MOLDERO for · the sum of P85,000.00. When appellee Moldero presented his deed of sale at thP Office of the Register of Deeds of Isabela, the Register apparently entertained doubts about the property of accepting the deed for record and issuing a new Transfer Certificate of Title, because of the fact that despite the sale of the hacienda in 1926 in favor of Lohman by the Special Administrator of the estate of Vogel, O.C.T. No. A-84 remained uncancelled; neither was the sale in favor of Lohman noted at the back of said original certificate of title. Furthermore, T.C.T. No. 127 in favor of Lohman was not entered in the Book of Certificates of Title in the Office of the Register of Deeds. So, the Register of Deeds elevated the case to the VUth Branch of the Court of First Instance of Ma.nila in consulta. After a study of the case the Judge of said branch rendered an opinion informing the Register of Deeds of Isabela that the dee.cl of sale in favor of Moldero cannot be accepted for record without an order of the Isabela court. Mr. Moldero then filed a petition in said court, entitled: "Peticion sobre la cancelacion de un certifica.do de titulo y de la expedicion de un nuevo certificado de transferencia de un titulo de un terreno. SATURNINO MOLDERO, Solicitante." In said petition he asked the court to order the cancellation of O.C.T. No. A-84, the entry l'f T.C.T. No. 127 in the Book of Transfer Certificat~s of Title, its cancellation and the issuance of a new Transfer Certificate of Title in his favor. After trial during which Moldero presented evidence in support of his petition, the Court of Isabela found that the failure to cancel Original Certificate of Title No. A-84 was a mere overSight on the part of the Register of Deeds, and that as a matter of fact, the corresponding annotation - "Cancelado: Vease Certificado No. 127 del Torno 5 del Libro de Certificados de Transferencia." in long hand appeared on the left margin of said O.C.T. No. A-84, already initialed by the Clerk, only that the Register of Deeds failed to sign said annotation. The court further found that t he failure to annotate the deed of sale \Exhibit C> at the back of O.C.T. No. A-84 was also an oversight on the part of the Register of Deeds, and finding that Joh. Lohman was the registered owner of the land covered by T.C.T. No. 127, and that he had sold the property to Saturnino Moldero on J une 18, 1948 by virtue ,pf a deed of sale (Exhibit D> which in the opinion of· the court was registerable, said cciurt ordered the Register of Deeds to cancel O.C.T. No. A-84; to annota.te the deed of sale at the back of T.C.T. No. 127, cancel said Transfer Certificate and issue in lieu thereof another Transfer Certificate of Title in the name of Moldero. This order was dated March 30, 1950. On Septembel' 30, 1950, LeonOI' Vogel alitUJ Sister Angelica of the S. Heart, and Angela Vogel, alias Sister Marie du Rosa.ire, filed a petition for relief from the said order of the court, alleging that tl•ey were two of the four children of Franz Vogel, the other two being Florencio Vogel and Luisa Vogel; that because of the failure of petitioner Moldero to notify them personally, or to publish notice of his petition and of the hearing thereof in t he Official Gazette or in some newspaper of general circulation, they had no knowledge of said petition and of the hearing, until after March 30, 1950; that they had a substantial cause f?f action aga.inst the petition of Moldero because O.C.T. No. A-84 in favor of their father Franz Vogel was never cancelled, and that since its1 issuance their father had had ... no legal transaction with Joh. Lohman warranting the issuance of T.C.T. No. 127, and so they prayed that the order of the Court of March 30, 1950, be set aside. Acting upon said petition, the Isabela court in its order of November 11, 1950, denied it. We are reproducing the pertinent portion of the order which sets forth the views of the lower court. "It was fully proven during the hearing of Moldero's petition that Elias Ocampo Navarro as administrator of the esta.te of the deceased Franz Vogel, in Special Prnceeding No. 87, on January 4, 1926, sold the land covered by Original Certificate of Title No. A-84, in favor of Joh. Lohman, who secured Transfer Certificate of Title No. T-127. The Register of Deeds of Ilia.beta, through inadvertance, ·issued Certificate of Title No. T-127 in the name of Joh. Lohman. Parenthetically, herein movants Leonor Vogel and Angela Vogel did not object to the sale executed by the Judicial Administrator of the estate of f.heir deceased father. On June 18, 1948, Joh. Lohman sold the land to Saturnino Moldero, but when the corresponding papers were presented to the Register of Deeds of Isabela for registration and corresponding cancellation of Original Certificate of Title No. A-84 and Transfer Certificate of Title No. T-127 in the name of Joh. Lohmen, said official refused to act on the matter because th£: original certificate was still unca.ncelled and the original of the transfer certificate was missing. ''The petition of Saturnino Moldero was filed pursuant to an opinion of the Executive Judge of the Court of First Instance of Manila with whom the Register of Deeds of Isabela made pro. per consultation. The outcome thereof is stated in the order .,f this Court of March 30, 1950. "It will be observed, therefore, that the herein petitioners Leonor Vogel and Angela Vogel have never been parties to the present proceeding. They cannot assert their right to notice when they were not parties to the case. As to the lack of publication of the petition of Saturnino Moldero or of the notice of hearing thereof, the contention merits no serious consideration. The order sought to be reconsidered or set aside was issued merely to correct an omission of the office of the Register of Deeds. The publication contemplated is not necessary nor reqiured. "It may be stated that the claim asserted by Leon" or Vogel a.nd Angela Vogel cannot be well substantiated in this case but in a separate action wherein all rights of parties may be fully determined." From that order of denial of their petition for relief, Leonor Vogel and Angela Vogel appealed to this Tribunal. From all that llas been stated, based on the record of the case, there is ground to believe a.nd to find that by virtue of an order of the probate court authorizing the sale of the properties of the estate of Franz Vogel way back in 1925, the following year the Special Administrator sold the Hacienda San Ft>rnando, the land now involved in this case. to Joh. Lohman as the highest bidder; that T.C.T. No. 127 was issued in the name of Lohma.n but through oversight on the part of the .J<,egister of Deeds, O.C.T. No. A-84 was not cancelled; neither was the certificate of sale by the special administrator entered at the b<.ick thereof; neither was Transfer CertifiCate of Title No. 127 entered in the Book of Transfer Certificates of Title in the Office of the Register of Deeds. We agree with the Isabela court t hat these we>re involuntary omissions of the Tiegistcr of Deeds which can be ccrrected by court order without notifying the heirs of Franz Vogel, two of whom are the herein appellants. The order denying the peti78 THE LA WYEHS JOURNAL February 28, 1954 tion for relief of the appellants was therefol'e warranted. As far as the record of this case is concerned, there seems to be no ground for doubting the regularity of the sale of the estate in favor of UJhman in 1!:126. The appellants do not question ahd they even indirectly a.dmit that since 1926 when the estate was sold to Lohman, the latter had taken po1session and had held it until 1948 when he sold it to petitioner-appellee Moldero. It was not shown that the heirs of Franz Vogel ever opposed or objected to the sale of t,b.e estate of their father by the special administrator to Lohman. It is not explained why since 1926 up to the present time, a period of about twenty-seven years, appellants had allowed the said hacienda to be occupied and enjoyed by Lohman and later by Moldero. However, the two other children of Franz Vogel named Florencio and Luisa were not included in the petition for relief or in this appeal. On the contrary, Luisa made an affiaavit CExhibit 2) saying that as daughter and heir of Franz Vogel she acknowledges the sale of the h~cienda to Lohman whom she recognizes as the registered owner, and that she renounces all claim over the estate. These facts 2.lld ci.rcumstances do not favor the contention of the appellants. However, should they believe that they have a good cause of actioli and feel that they can prove that the sales made to Lohman and to Moldero were .illegal and void, they could file a separate and i'1de.. pendent actii:m as suggested by the trial court. But there is one point raised by appellants, which tho not decisive, merits consideration, were it only for the correction of the record and for the guidance of petitioners under Sec. 112 and other sections of the Land Registration Act. Appellants contend that tho trial court had no jurisdiction over the petition of appellee Moldero because said petition was not filed and entitled in the original case in which the decree of registration was entered. The contention is correct. The petition should have been filed in the original case in w!J.ich the decree of registration of August 24, 1917 was entered, and it shol!I<~ ~{lr the s_aroe; title. The appellee, however, answers that the reason for not filing the petition in the original i·cgistration case was that the records of said case have been lost, presumably during the last Pacific War. The explanation is satisfactory, but at least th~ petition could and should have been entitled in said original case, this to make it clear that the present petition invoking the provisio.ns of the Land Registration Act, particularly Sec. 112 thereof, is not an ordinary civil action. CCavan vs. Mislizenus, 48 Phil. 632), In view of the foregoing, and with the understanding that pcti. tioner-appellce Moldero will be directed to entitle his original petition and his motions, in the original registration case where the decree of registration of Hacienda San Fernando was entered, the order appealed from is hereby affirmed. No costs. Paras, Pablo, Bengzon, Padilla, Tu<Uon, Reyes, Jugo, Angelo; Labrador_ concur. XI In th matter of the petition for naturalization of Lconcio Ho Benluy, petitivner-appellant, w. Republic of the PhilipZ1ines, oppositor. a']>l)ellec, G. R. No. L.5522, Dec. 21, 1953. 1. NATURALIZATION: APPLICANT GUILTY OF VIOLATION OF THE REVISED ELECTION CODE. - A foreigner who violates Sec. 56 of the Revised Election Code which prohibits foreigners from actively participating in any election is forever barred from becoming a Filipino citizen. DECISION Rulace.n, not only persu~dlng some voters connected with his buslne8s but also contributing to the campaign fund of the Liberal Party. Said the trial court on this point: , "To prove_ that the applicant is a strong believer in our constitution'" and in what is called 'free enterprise·,' this witness emphasized this affirmation by stating that the applicant even went to the extent of taking active part during the election, so much so that he <applicant) gave financial contribution to be spent in the election campaign to this witness who, during the • el~ctions of 19~7 and 194?•. w~s t~e Campaign Mans~r of the, Liberal Party m the mumc1pahty of Obando, Bulacan; that the applicant, aside from giving financial help during the said elections of 1947 and 1!:149 which amounted to P200.00 1 and !"500.00 on two occassions, went with the witness to Obontlo to talk personally with his sub-agents in said- municipality, and due to this intervention of the applicant said sub. agents supported the party of Mr. Anastacio." This evidence about the part played by the applicant in the past elections alerted the representative of the Solicitor General and after th(. trial he filed a strong written opposition to the granting of the application, resulting W'l the trial court denying the application for naturalization. Benluy is now appealing from that decision. Considering the circumstances · under which the evidence of applicant's political activities was presented, namely, that it did not come from the opposition or any other party but himself and through his own witness, we were at the beginning inclined not to attach much importance to that phase of his 1·esidence in the Philippines and jlSSociation with the Filipinos. ,He was never prosecuted for that violation of the Election Code and even if the Government were now inclined to prosecute him, the offense has already prescribed. Furthermore, as already stated, in all other respects the applicant has established h!S qualifications and the absence of any disqualifications. However, the law is clear. Section 56 of the Revised Election Code reads - "Section 56. Active intervention of foreigners. - No lo~ reigner shall aid any candidate, directly or indirectly, or take part in or to influence in any manner any election." Under section 183 of the same Code, the violation ic; considered a serious election offense and under section 185 it is penalized with imprisonment of not less than one year and one day but not more than five years and in case cif a foreigner, shall in ilddition be sen-4 tenced to deportation for not less than five years but not more than ten years, to be enforced after the prison term has been served. These provisions of the Revised Election Code may not be taken lightl)', much less igr.orcd. They were intended to discourage foreigners from taking active part in or othe1·wise interfering with our, elections, under penalty not only of imprisonment but also deportation. ~ It might well be that as already stated, the evidence about this violation of the election law was given by hia own witness who in all likelihood gave it in good faith and in all friendship to the applicant to bolster Ute latter's application for naturaJization, without realizing that fly said declaration he was forever closing · the door to Benluy's ever becoming a Filipino citizen. But the law must be applied and enforced. It is merely a piece of bad luck for him. From the standpoint of the Government however, it was fortunate that said evidence was brought up, thereby preventing the granting of Philippine citizenship to a foreigner who tho even in his ignorance of the law and at the instance of his Filipino friend, violated one of the important provisions of our election law. The decision appealed from is hereby affirmed, with costs. MONTEMAYOR, J.: , PUJras, C.J., Pablo, Bengson, Padilla, Tuason, Reye:J, Jugo, Th; appellant LEONCIO HO BENLUY, a Chinese citizen, filed Bautista. Angelo, and Labrador, concur. an application for naturalization in )~51. There.was no opposition, to tht:. application on the part ·of the Government. At the hearing the applicant presented evidence in support of his application, including XII !:~d~~~r:;t~~a:~t:,e~s~~~c:~~ 0\~i~~e:n::~:;i~~ci;~n~~y Ap::::a:i~ha~ Victoriano Capio, petitioner.appellee, vs. Fernando Capio, op. he possessed all the qualifications for Philippine citizenship and none µasitor.uppdiont, G. R. No. L-S76l, Dec. 21, .195;3. of the disqualifications, and the trial court •so found. The exception 1 . LAND REGISTRATION; WHEN JUDGMENT THEREOP BEis that Atty. Anastacio, one of his witnesses, in his endea.vor, even COMES FINAL AND INCONTROVERTIBLE. - In numf!rous enthusiasm to prove that the applicant had identified himself with the Filipinos, helped them when asked and was very congenial and friendly, said that Benlu_y even took part in two electoral campaigns in decisions, some of the latest being Afallo a11d Pinaroc v. Rosaura, 60 Phil. 622 and Valmonte v. Na.hie, G. R. No. L-2842, December 29, 1949, 47 0. G. 2917, we have hclrl that the ajudication .:iCland THE L.A.WYEHS JOURNAL 79 In a registration or eadastral case does rtot become fina l and Incontrovertible until the expiration of one yep.r after the entry of the final decree; that a.s long as the final decree is not issued and th~ period of one year within which it may be reviewed has not elapsed, the decision remains under the control and sound discretion of the court rendering the decree, which court after hearing, may set aside the decision or decree and adjudicate the land to another party. Jose C. Culayco for oppositor-appellant.. Jesus V. Ar:bo!eda a.nd Ildefonso M. Bleza for petitioner-appellee. DECISION MONTEl\IA YOR, J. The Court of First Instance of Mindoro acting as cadastral court and after hearing Cadastral Case No. 2 G.L.R.O. Cad. Record No. 216, rendered a decisior. dated April 2!), 1921, adjudicating cadastral lots to those entitled thereto. Lot No. 768 with its improvements was adju.dlcated to the brothers, Victoriano, Felix e.nd Agustin, all surnamed CAPIO, in equal parts. On January 7, 1947, about twenty-six years later, Victoriano Capio, one of the three brothers filed in the Mindoro court a petition asking for the reopening of the cadastral case and the setting a.side of that part of the decision adjucating Lot No. 768 to him and to this two brothers Felix and Agustin for the reason that according to him, said lot was, during the caclastral hearing, claimed only by himself and by no others, not even by his two brothers; that the lot really belonged to him and his wife exclusively and that the adjudication made by the cadastral court w::is through an error. After considering 5aid petition a.s well as the opposition thereto filed by Fe1·nando Capio, the only helr of petitioner's brother, Felix and inasmuch the trial court found that the decree for said lot 768 was not issuerl until November 1, 1949, anrl also bceause the oppositor did nr,t deny the allegations of the petition for the reopening of the case, the lower court, according to it, to avoid the miscarriage of justice, ordered the reopening of the case at the same time declaring null and void the decision of April 29, 1921, with respect to lot No. 768. It set the hearing on said lot during the May calendar. All this was contained in .the court artier dated February 28, 1950. Oppositor Fernando Capio filed a motion for recqnsideration of the order. Acting upon said motion and the answer thereto filed .by Victoriano, the Mindoro court set the said motion for reconsideration for hea.ring stating 'that at the hearing evidence may be presented in order to properly establish the issues and also for the parties to support their allegations. On Septembf!r 2, 1950, the lower court issued an order which we reproduce below. "0 R DE R "This is a motion for the rec:onsider'ltion of the order of this Court dated February 28, 1950. "This motion was set for hearing in order to receive any evidence which the parties might present in support of their contentions. The movant did not appear while the oppositor was a.llowed to present his evidence. "Considering the motion for reconsideration :md the opposition thereto together with the evidence presented by the oppositors, the court finds no justification in reconsidering its order of February 28, 1950 and therefore denies the same for lack of sufficient merits. "IT IS ORDERED." The order of February 28, 1950, above referred to is the order declaring null and void the decision of the cadastral court dated April '29, 1921, as regards lot No. 768 and setting said lot for hearing. Later, on October 20, 1950, the trial court finally issued the following order. "0 R DE R "Petition for postponement of the hearing of thi6 case set for the 28th instant is hereby granted. The court, however, believes that there is n<> necessity of having this case set for hearing anew beca:ise the records of this case clearly show that on September 2, 1950, when the motion for reconsideration was calleC. for hearing in order to receive any evidence which the parties might present in support of their contentions, the petitioner did not appear while the oppositor was allowed to present his evidence. "The Court after considering the motion for reconsideration and the opposition' thel'eto together with the evidence presented by the oppositor, finds no justification in reconsidering its order of Febrnary 28, 1950 and therefore denied the same for 'Jack of sufficient merits. "WHEREFORE, the order of this Court dated September 2, 1!)50, denying the motion for reconsideration of the order of this court dated February 28, 1950, is hereby affirmed and maintained. "IT IS SO ORDERED.'' Appellant Fernando Capio is now appealing from this last order of October 20, 1950. In numerous decisions, some of the latest being Afallo and Pinaroc v, Rosaura, 60 Phil. 622 and Valmonte v. Nable, G. R. No. L-2842, December Z!l, 1949, 47 0. G. 291'?, we have held that the adjudication of land in a registration or cada.stral case does not become final :md incontrovertible until the expiration of one year after the entry of the final decree; that as long as the final decree is not issued and the period of one year within which it may be reviewed has not elapsed, the decision remains under the control and sound discretion of the court rendering the decree, which court after hearing, may set aside the decision or decree and adjudicate the land to another party. In the present case, a~ the time the petition for review was filed, the decree had not yet been issued. It is, therefore, clear that the petition was filed well within the period prescribed by law <Section 38, Land Registration Act). As to the merits of the petition, it · would appear that during the hearing of the motion for reconsideration at which the oppositor did not appear and where petitioner Victoria.no presented evidence, Victoz"iano testified and presented d .. cuments to show that this lot No. 768 was previously bought by Pedro Capio, father of the three brothers Victoriano, Felix and Agustin from one Mamerta Atienza who, before the sale had held it for about thirty years; that on April 26, 1920, his fa their Pedro sold the same land to one Alejandro Dris for f800.00; that on May 5, 1920, Victorie.n.o Capio purchased from the vendee Dris 3/4 of the land for f'600.00; and on October 29 of the same year Vietoriano again bought the remainder from Dris for P350.00; that Victoria no was the only cne who filed his claim in the cadastral proceedings for lot No. 768, and that at the hearing he was the only one who appeared and claimed the land. Furthermore, the petition for reopening of the case filed by Victoriano on January 7, 1947, bears the written conformity of his brother Agustin Capio, so that the only one opposing this petition is Fernando Capio, the only heir of his brother Felix Capio. Finding the order appealed from to be in conformity with Jaw, the sa.rne is hereby affirmed with costs against the appellant. We notice however from the order of the trial court of October 20, 1950, which we have reproduced above that it entertained the belief that there was no further need for a hearing as to the ownership of the lot No. 768, because said hearing had already been held and presumably the court was convinced that the lot properly belonged to petitioner Victoria.no Capio. The record, however, shows that this hearing was held in connection with the motion for reconsideration. Moreover, said hearing was held in the absence of oppositor Fernando Capio, he perhaps believing that it was not a trial on the merits of the case. The trial court is therefore directed to hold a regular and formal he:uing of the case with notice to both parties where evidence as to the ownership, possession, etc. of the lot and its improvements may be presented and thereafter a decision shall be rendered. Paras, C.J., Pablo, Brng:;;on, Pudilla, Tuason, Rey.:s, Jugo, Baut·ista Angeki a11d Labrador, J.J., concur. XIII F'la1. •1'ana Acuiia and Eusebia Diaz, plaintiffs.(llppellants, u.s. Furukff.wa Pla11tation Company, dependant.appellee, G. R. No. L..5833, Octobe1 22, Ulfl3 v{, CIVIL PROCEDURE; DECLARATORY R.ELIEF; IMPROPER ACTION. - F company is the registered owner o( a large tract of land in the province of Davao. This tract of land was turned <>Ver to the NA FCO for administration a.nd disposition. Among those favored with an allocation were A und her daughter, two hr,me~teadcrs within tht: area co,·ercd by F company's 80 THE LAWYERS JOURNAL February 28, 1954 j;lanlatio1: title. T·h~y howcw1· tut'l\t:d down their allocatlon, claiming that they w~re entitled to the whole area occupied by them -- ~cme 31 hectares. When this claim was denied they Lrought act1011 against the company in the Court of First Instance of Davao. What A _ ansf her daughter appear to claim is that whfle _the land occupied by them as homestead is embraced ·in l."' conlpany's tpl'J'~ns title the improvements thereon are ex-JifeSslY excluded therefrom,-beit1g -among those noted down in the Torrcris . ~e rtifkate as 1n·op-erties belonging to other persons. HELD: A and d"aughter are not merely asking for a determination of defendant's certificate of titles. What they want is to have that certificate amended by having their names insdibed thet·eon as owners of the improvements existing on the homestead occupied by them but registered in defendant's name. This iS a remedy that can be granted only under the Land Registration Act and is, therefore, not within the scope and purpo$e of an action for declaratory relief as contemplated in Rule 66. If plaintiffs' first cause of action is to succeed, it must be formulated by proper.petition in the original case where the decree of registration was entered, and with notice to all persons who!:le rights might be affected by the proposed amendment to · the· certificate of title. If may be stated that au amcndriient of that kind is not barred by the incontestability of defendant's Torren's title, since this contains a special reservation with respect to inlprovemente tv the persons. IJ. CIVIL CODE; RIGHT OF OWNER OF l!UPROVEME:t-..TS MADE IN OTHER'S LAND. - Since A and daughter are a~king ., the defendants be compelled to cede to them the land covered by their hom,•stead it should be noted that Article 361 of the Civil Code (i\rt. 448 l of the new Civil Code gives ''the owner of land on which anything has bt>f'll buili., .~own, or planted, in g;_1od faith," the right "to appropriate 1hr thing so built, sown, or planted; upon p:_i.yii1g the compf'nsativ11 mentioned in Articles 453 an~i 454, or to compel the 1ierson who has built or planted to pay him the proper rent therefor.·• But the article invoked does not givl' plaintiffs, as owners of the improvements, the right to compel . defendant, as registered owner of the land, to cede to them, · by. sale or otherwise, the land in question. Under the article, it is the owner of the land that has the right to choose between acquiring the imprc.vemcnts and selling the land. An action predicated. on the assumption that the option may be exercised by the owner of the improvements is clearly without legal basis. Q11impa & Kimpo and Remedios A. Ponferrada for appelants Antonio HaJJnna, Jr. for appellee. DECISION REYES, J. : The Furukawa J>lantation Company, a Philippine corporation, is the registered owner of large tract of land in the province of Davao, as eYidenced by Original Certificate of Title No. 2768 fnow Transfer Certificate of Title No. 276) of th(:: land records of that province, issu(::d more than 30 years ago. As a result of the last war, this tract of land was turned over to the NAFCO <National Abaca and Other Fibet:s Corporation) for administration and disposition and, together with other Japanese-owned properties in the province, distributed among war veterans and dese1'Ving civilians, each of whom was al.. located five hectares pursuant t<i the directives of the P1·esident of the Philippines and the agreement entered into between the Philippine Veterans Lcgior. and the NAFCO. , A.mong those favored with an allocation were Flaviana Acuila ind" her daughter EusCbia Diaz, two homesteaders within the aren coVered by the Furukawa' Plantation Company's title, who, however, turned down their allocation, claiming that they were entitled to the whole area occu;>ied by them - some 31 hectares - and, on this claim being denied, brought the present action against the company in the Court of F'irst Iiistance of Davao. The complaint sets up t!1rec causes of action· a.nd alleges that plaintiffs are the widow and daughter, respectively of Roman Diaz, deceased, who, as a homestead applicant, was, on August 18, 1914, granted by the Director of Lands a provisional permit to occupy and clear 31.79 hectares of public land in sitio Calanitoi, municipality of Santa C1·uz, Davao province; that since then, Roman Diaz and (after his death> plaintiffs themselves have been cultivating and improving the said land, planting it to coconut and other fruit trees and food crops, and building thereon two residential hou:~es; that, through fraud and stra.tegy, defendant was able to include the said land and the improvements thereon in its certificate of title, though acknowledging plaintiffs' right thereto under a general annotation on the certificate which ~Ns : "ExCept tE_ose herein expressly noted as belonging to other 1icrso~~;" that as defendant's certificate of title does not give tht> name.s ~f _ those . "other persons," it is necessary that plaintiffs "be ~p~~.s.sly declared and. {their names) annotated" as among the persons referred to; aJ;d that defenda.nt and its agents have been abetting its overseer and other persons in occupying plaintiffs' coconut planta- # lion and committing depred~.tions thereon to the damage and prejudice of said plaintiffs. Plaintiffs, therefore, pray that they be declared to be "among those perMns noted d"I owners of the improvements included in <defemlar1t'sJ Trausfcr Certificate of Title No. 276;" that defendant be made to cede to them the 31.79 hectares of land on which the improvements owned hy them stand; and that defendant be made lo pay damages and, together with those acting under its authority, enjoined frl'm "committing furtlwr acts of disiiossession and despvliatl')n" on the homestead. Before answel"ing the complaint, defendant moved that it be disuiissed, and the eomt granted the nwtion on the grounds that the complai~t did not state a cause of actiou, that plaintiffs' action had aln :ad:Y -Prescribed, and that the court had no jurisdiction over the subject matter thereof. From the ord~r of dibmii>sal plaintiffs appealed to the Co1ut of Appeals, but that court lias certified the case here because of the nature of the questions invoked. .For a lll"Oper resolution of thl'se questions, it .should be statfd . ai. the outset tha.t despite the allegation of "fraud and strategy" in the procurement of defendant's title, the validity 01· incontestability of that title does not appear to be in issue, and in any event the title lias already become indefeasible be;:ause of the more than 30 years that have elapse<i since the decree of registration was {;ntered. What plaintiffs appear tv claim is that, while the land occupied by them as homestead is embraced in defendant's Torrens title, the impl'ovemeuts thereon ~re expressly excluded therefrom, being among those 11oted down in the Torrens certificate as properties b€Jonging to other persons. On this hypothesis, plaintiffs are asking for th1·ee specific remedies, namely: (1) to have their names inscribed in defendant's certificate of title as owners of said improvements; (2) to hu.ve de- ' : Cendant cede to them the land on which the improvements stand; and (3 ) to have defendant pay damages for depredations comnutted on plaintiffs' coconut plantation by persons acting under defendant's authority and to have a w1·it issue to enjoin "further acts of dispossession and despoliation." With respect to the first remedy, which is the subject of the f11"st cause of sction and which plaintiffs seek to obtain through an action for declaratory relief under Rule 66 of the Rule of Court, we npte that plaintiffs are not merely asking for a determination of theil' rights through a judicial interpretation of defendant's certificate of title. What they want is to have ha.t certificate amended by having iheir names inscribed thereon as owners of the improvements existing on the homestead occupied by them but registered in defendant's !lame. U> This is a remedy that can be granted only under the Land H.cgistration Act and is, therefore, not within the scope and purpose of an action for declaratory relief as contemplated in Rule 66. If plaintiffs' first cause of action is to succeed, it must be formulated by proper petition in the original case where the decree of registration was entered, and with notice io all persons whose rights might be af·fected by the proposed amendment to the certificate of title. <2> It may be stated that an amendment of that kind is not barred by the incontestability of defendant's Tonen's t itle, since this contains a special i·eservativn with respect to improvements belonging to other pH·sons. The second remedy - which is the objective of plaintiffs' second cause of action ~ is sought to he attainer\ through an ·action for "spcci fie performance." But it is obvious that an action of that kind will not lie, since plaintifis arc Hot seeking the fu lfillment of <ill)' contrnct. What they ask for is that dcfe11dant be made to ct:de to them the land i:uvered by their homestead and for that they invoke Article 361 of the old Civil Code lArticlc 'l48 0£ the ut:w) which gives "the ownei' of land on which :-iny\'hing has been built. sown. or planted, iii good faith,'' the right "to a.p1n·opri'ate the thing so built, sown, or planted, upofi paying the compensation mentioned in Articles February 28, 1954 THE LAWYERS JOµRNAL 81 i453 t.nd 454, 011 t.o com1•el the person who ha.s built Ol· planted to pay him the value of the lan<l, ~nd the person who sowed thereon to pa)' the proper rent therefor.'' But the article invoked does not give plaintiffs, as owners of the improvements, the right to compel defendant, as registered owner of the land, to cede to them, by sale or otherwise, the land in question. Under, the article, it is the owner of the land that has the right to choose between acquiring the improvements and selling the land. An action predicated on the assumption that the option may be e.."Xercised by the o~ner of the improvements is clearly without legal basis. On the assumption that plaintiffs are the owners of the improvements on the land occupied by them and that defendant's men or those acting under its authoritY. arc committing depredations thereon, there can be no qut>.stion that pl:iintiffs should be entitled to the remedy sought in th'!ir third cause of action, that is, to have the depredations stopped and indemnity paid for damc.ges suffered. \Ve note, howeve!', that the cumplaint does not identify and delimit the land on which plai11tiffs' improvements stand, the complaint. being for that i·eason defective. To summarize, it is ou1· conrlu~ion that Cl) plaintiffs may not in the present case ask for the remedy sought in their first caus~ of action, for the reason that an amendment to a Torrens certificate of title may be had only in t.he origiual case where the decree of regis~ tration was entered; (2) plaintiffs' second cause of action is untenable; and (3) plaintiffs' complaint is defective with respect to the property sought to be pl'Otected hy a writ of injunction. Wherefore, the order of dismissal is affinned with respect to the first and second causes of action, and modified as to the third in the st:nse that this ca1,1se of action shall be deemed definitely dismissed if the complaint is not properly amended within ten days from the time this decision becomes final. Without costs. Pa·rns, Bengzo•t, Tuazon, Ji.go, Pablo, Padilla; Montenw1 1or; Lab. rador and Bautista Angelo, concur. XIV Cebu Portland Ce-m.mt Company, petitwner, vs. Hor.. Vicente Varela et al., TCSJ~ondents, G. R. No. L.5438, September 29, 1953. CIVIL PROCEDURE; UNLAWFUL DETAINER; EXECUTION OF JUDGMENT PENDING APPEAL FOR FAILURE TO DEPOSIT THE MONTHLY RENTS DUE TO FRAUD, ERROR OR EXCUSABLE NEGLIGENCE. - On November lG, 1950, V, General superintendent of C Co., was dismissed and retired with gratuity by the company's board of directors. The labor union to which he belonged took the case to the CIR which rendered a resolution finding his dismissal unjustifiable and ordering his reinstatement in office with full back p&y. The resolution was brought before the Supreme Court for review. Be~ cause V refused to leave the company house which as the general superintendent he was entitled to occupy free of charge, the company brought a sui"t against him for illegal detainer in the JP court which rendered judgment ordering him to vacate the premises and pay a monthly rental of Pto0.00 from November 16 <Jf that year. B appealed !:o the rFI. In the CFI the company had an order issued for a writ of execution but the order was lifted on October 8, 1951 following the filing of the supersedeas bond for Pl,500.00 which answered not only the rents already due (fl.000.00J but also those th&t were still to become due <fos alquilercs d1>vengados y los por devcngar"> On December 7, 1951, the company was again able to securt" a writ of execution because of V's failure to make a cash deposit for the rents corresponding to September and October of that year. V moved for a reconsideration, deposited P400 to cover four months rental and called attention to the fact that the question of his separation from the company was still pending with the CIR on llecf:mhcr 29, l!J51. 1'he court issued an 01·der suspending the writ of execution on the grounds that V's right lo continue occupying the premises depended upon the result of the case in the CIR which had not yet been decided, that his bond for rl,500 was answerable for the rents up to the final determination of the .:use, and that 1 he deposit of P400 to cover rents up to and including December J951 negati\•ed ;~ny intention on his part to enjoy the occupancy of that house without any rent. A motion to lift the order of suspension having been denied, the company petitioned for certiorari and mandamus asking that the said order be annulled as having been issued without jurisdiction and that a writ issue commanding the judge below to lift the stay of excc\1.tion. HELD: Courts of the first instance in detainer cases are authorized to grant execution upon appellant's failure to deposit the monthly rents on time during the pendency of the appeal. But this Court has already ruled .that execution may be denied where the delay in making the deposit was due to fr&ud, error or excusable negligence, (Bantug vs. Roxas, 73 Phil, 13; Gun:1.an vs. Rodas, 44 Off, Gaz., 4927; Yu Phi Khim vs. Amparo, 47 Off. Gaz., Supp. 12, 98L In the present case, the deposit was late, but the lower court has excused the delay as being due to an honest belief that the supersedeas bond covered both past and futu1·c rents - as t herein expressly stipulated - and that, after all, appellant's right to remain in office and enjoy its emoluments, including free quarters, was still pending determination in the Court of Industrial Relation11. The lower court, in our opinion, acted with justice and equity and only followed the preeede0 nt established in the cases above-cited when it rendered the resolution herein complained of. Fortunato V. 1Jorro11~e9 and Jesu;; N. Bo·rrum,eo for petitioner. Alonso & Alon;;o and Emilio Lumontad for respondents. DE CJS IO N REYES, J.: On November 16, 195U, Felix V. Valencia, general supt:rintendent 1f the Cebu .Portland Cement Company, was dismissed and retired :with gratuity by the company's boai-d of directors. Contesting his dismissal, the labor union to which he belonged took the case to the .l:ourt of Industrial }{elations, and that court, under date of July 8, tl.1152, rendered its resolution, finding Valencia's dismissal unjustified <and ordering his reinstatement in office with full backpay and "witil all the privileges and emoluments thereunto attached x x x." That ;resolution is now before this Court for i·eview, but it is not the subject of the present petition for cel'tiorori and mandamus, and is here mentioned only because of its bearing on the case. The present casf:l arose as a con.:;equenee of the company's attempt to oust Va!t:ncia from the company house which as gener.:i.I superintendent he was entitled to occupy frel. of charge. Because Valencia refused to leave the house desritt: his removal from office, the comrany brou;;ht suit against him for illegal detainer in the Ju~tice of the .Peace Court of Naga, Cebu, and that court., on August 20, Hlf.il, rendered judgment ordering him t.o vacate the premises and pay a mcmthly rental of PHJ(J,00 from November 16 of that year. VeleJicin. app<"aled to the Court of .First Instance, the appeal being perfected on September 12, 1951 with the filing of the appeal bond on that d'lte. Once the case was in the CouJ"t of First Instance, the company had an order issued for a writ of execution, but the order wa.s lifted 0.1 October 8, l!f51, following the filini;- of a supcrsedeas bond for Pl,500.00. Ordinb.rily such bond answers only for rents due at the time of the perfection of the appeal. But in the present case the bond, in express terms, guarantees not only the rents already due (f'l,000.00), but also tho'Se that wer<.? still to become due C"loi; alqui. ieTes deve't.gados y los por del(engar''), On .December 7, 1951, the company was again able to SPcure u writ of execution because of Valencia's failure to make a cash deposit for th0e rents corresponding to September and October of that year. Valencia moved for a reconsideration, deposited P400.00 to cover fout· months' rent and called attention to the fact that the (!Uestion of his !'eparation from the conlji~ny was still pE:nding in the Court of I ndustrial Relations. Acting· 011 this mction, the cou1t issued iU:: order of December 29, 1951, suspending the writ of execution on the grounds that Valencia's right to continue occupying the premises d~pcnded upon the result of the ca~e in the Industrial Court, which had not yet been decided, that his supersedeas bond for Fl,500.0(J was answerable for the rents up to the final" determination of the case, and that the cleposit of P400.00 to cover rents up to and including Dcct>.mber, 1951, negatived any intention on his part to enjoy the occupancy of the house without Jla~•ing r n"y rent. A motio11 to lift this order of suspc..nsiun having been denied, tin• company brought 82 THE LAWY ERS JOURNAL February 28. 1954. the 1ires1:nt petition for cel"tforari and mundamus, asking th.rt the said or1for be annulled as having been issued without jurisdiction, and that a writ issue commanding the judge below to lift the stay of tl>.eeution. Courts of first instance in detainer cases are authorized to grant execution upon appellant's failure to deposit the monthly rents on time during the pendency of the appeal. But this CourL has already ruled that execution may be denied where the delay in making the deposit was due to fraud, error or excusable negligence. (Bantug vs. Roxas, 73 Plul. 13; Gunaan vs. Rodas, 44 Off. Gaz., 4927; Yu Phi Khim vs. Amparo, 47 Off. Gaz., Supp. 12, 98>. Jn the present case, the deposit was late, but the lower court hac excused the de!Ry as being due to an honest belief that the supersedeas bond cove1·i!d both past and Iut.ure rents - as therein expressly stipulated - and that, after all, appellant's right to remain in office and enjoy its emoluments, including free quarters, was still pending determination in the Court of Industrial Relations. The lower court, in our opinion, acted with justice and equity and only followed the precedent established in the cases above cited when it rendered the resolution herein complained of. Pending decision on this petition for certiorari and mandamus, counsel for the company, on March 18, 1952, filed a supplemental pleading, compl'aining that on the 3rd of that month the lower court had denied another motion for tixecution based on Valencia's failure to deposit the rental for January l)f that year. It appeal's from the order of denial that the lower court considered the new motion for execution as involving the same question as those which gave rise to the present case and which were denied because of "unique or ex. ceptional circumstances" that, in its opinion, made suspensiori of execution "more in consonance with justice and equity," for which reason the court again had to deny immediate execution" at least, until Supreme Court has passed upon the questioned orders." Now that a decision has come down from the Court of Industrial Relations ordedng Valencia's reinstatement, and with the certiorari case CG. R. No. L-6158) for the review of that decision already heard, we ar:! not disposed to interfere with the exercise of discretion which the lower court has made in the last order complained of for the maintenance of a status quo. Wherefore, the petition for certiorari and mandamus is deni~, with costs against t~e petitioner. Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor; Jugo; Bautista Angelo and Labrador, J.J., concur. xv Angeles S. Santos, petitioner-appellrmt vs. Paterio Aquir.o et ril., respundertts.1rppcllet s, G. R. No. L-C>lOl, November 28, 1953. 1. CJVIL PROCEDURE; DECLARATORY RELIEF; ORDINANCE NOT AMBIGUOUS OR DOUBTFUL.-Therc can be no action for declaratory relief, where the terms of the ordinances assailed arc not ambiguous or of doubtful meaning which require a construction thereof by the Court. 2. IDEM; JDEM; RELIEF MUST BE "iSKED BEFORE VIOLATION OF THE ORDINANCE.-Granting that the validity or legality of the ordinance may be drawn in question in action for declaratory relief, such relief must be asked before a violation of the ordinance be committed (Section 2, Rule 66, Rues of Court). When this action was brought on 12 May 1949, payment of the municipal license taxes imposed by both ordin!rnces, the tax rate of the last having been reduced by the Department of Finance, was already due, and the prayer of the petition shows that the petitioner had not paid them. In those circumstances the petitioner cannot bring an action for declaratory relief. 3. lDEM; IDEM; REAL PARTY IN INTEREST.-The petitioner, does not aver nor does he testify that he is the owner or part owner of "Cine Concepcion." He alleges that he is only the manager thereof. For that reason he is not an interested party. He has no interest in the theater known as "Cine Concepcion" which may be affected by the municipal ordinances in question and for that reason he is not entitled to bring this action either for deeh1.ratory relief or for prohibition, which apparently is the purpose of the action as may be gleaned from the prayer of the petition. The rule that actions must be brought in the name of the real party in interest (Section 2, Rule 3, Rules of Court) applies to actions brought under Rule 66 for declaratory relief. (1 C.J.S. 1074-1049.) The fact that he is the manager of the theater does not make him a real party in interest, 4. PUBLIC CORPORATIONS; MUNICIPAL COUNCJL EMPOWERED TO ADOPT ORDINANCES IMPOSING TAXES WHICH ARE NOT EXCESSIVE, UNJUST, OPPRESSIVE OR CONFISCATORY.-Under Com. Act No. 472 the Municipal Council of Malabon is authorized and empowered to adopt the ordinances in question, and there being no showing, as the evidence does not show, that the rate of the municipal taxes therein provided is excessive, unjust, oppressive and confiscat.-Ory, their validity and legality must be upheld. The rate of the taxes in both ordinances, to wit: Pl,000 a year for "Class A cinematogi·aphs having orchestra, balcony and lodge seats" in Ordinance No. 61, series, of 1946, (Approved by the Department of Finance on 11 June 1947. So the tax for 1947 to be collected was Pl80 plus 50% of the original tax, or P90, or a total of P270), and P2,000 for each theater or cinematograph with gross annual receipts amounting to P130,000 or more in Ordinance 10, series Of 1947, (Approved by the Department of Finance at a reduced rate on 3 November 1948. So the tax for 1948 was that imposed by Ordinance No. 61, series of 1946, approved on 11 June 1947, as reduced and approved by the Department of Finance on 3 November 1948.) under which the "Cine Concepcion" falls, is not excessive but fair and just. 5. IDEM; IDEM; .MUNICIPAL COUNCILS NOT CONSTITUTIONAL BODIES.-Municipal councils are not constitutional bot.lies but creatures of the Congress. The latter may even abolish or replace them with other government instrumentalities. Arse1~io Paez for appellant. AcHng P·rovincial Fiscal of Pasig, Rizal Irineo V. Berrn.vrdo for appellees. I DECISION PADILLA, J.: This action purports to obtain a declaratory relief but the prayer of the petition seeks to have Ordinance No. 61, sr.ries ot 1946, and Ordinance No. 10, series of 1947, of the Municipality of Malabon, Province of Rizal, declared null and void; to prevent the collection of surcharges and penalties for failure to pay the taxes imposed by the ordinances referred to, except for such failure from and after the taxpayer shall have been served with the notice of the effcctivity of the ordinances; and to enjoin th<o respondents, their agents and all other persons acting for and in their behalf from enforcing the ordinances referred to and from making any collection thereunder. Further, petitione1· prays for such other remedy and relief as may be deemed just and equitable and asks that costs be taxed against the respondents. The petitioner is the manager of a theater known ai:i "Cine Concepcion," located and operated in the Municipality of Malabon, Province of Rizal, and the respondents are the Municipal Mayor, the Municipal Council and ~he Municipal Treasurer, of Malahan. The petitioner avers that Ordinance No. 61, series of 1946, adopted by the Municipal Council of Malabon on 8 December 1946, im· poses a license tax of Pl,000 per annum on the said theater in addition to a license tax on all tickets sold in theaters and cinemas in Malabon, pursuant to Ordinance No. 61, the same series; that prior to 8 December 1946 the municipal license tax paid by the petitioner on "Cine Concepcion" was r1so, pursuant to Ordinance No. 9, series of 1945; that on 6 December 1947, the Municipal Council of Malabon adopted Ordinance No. 10, series of 1947, imposing a graduated municipal license tax on th('aters and cincmatographs from P200 to P9,000 per annum; that the ordinance was submitted 'for approval to · the Department of Finance, which reduced the rate of taxes provided therein. and th•· ordinance with the reduced rate of taxes was approved on 3 November 1948; that notice of reduction of the tii.x rate and :.1pproval by the Department of Finance of said graduated municipal license :February 28, 1954 THE LAWYERS JOURNAL ·~ ·tax provided tor in .Said Ordinu.nce No. 10, as reduced, was served on the ·petitioner on 12 Febrµary 1949 when the respondent Municipal Treasurer present.ed a bill for collection thereof; that Ordinance No. s1: series of 1!'146, i8 ultra vires and repugnant to the pi-ovisions of the Constitution on taxation; that its approval was nof in accordance with law; that Ordinance No. 10, series of 1947, is also null -and void, because the Department of Finance that· approved it act.ed in excess and against the powers· granted it by .Jaw, and is- WljJtst, o!l~res~ive and confiscatory; _ and that_ the adoption of both ordinances was the result of persecution of the petitioner by the respondents beeause from 20 July 1946 to 8 December 1947, or '~itbin a period of less than one and a half years, the Municipal Council of l\:lalabon adopted four ordinances increasing the taxes on cinematographs and theaters and imposing a penalty of- 20% sUJcharge 'for late payment. "~ - --i ·motion ;'to-,:_disrOiss was filed by the ASsistant Provincial FisCaF of: Rizal, but upon suggestion of the Court at the hearing thereof, the respondents were prevailed upon to file their answer. ., , In their answer the i·espondents allege that both 01·dinances adopted by the ;i,:lunicipal Council of Malabon are not ultra· virei;, the same. not being ~ndei; .. .any- of the exceptions provided fo.i· in section ,.3 of Com. Act No. 472; that the ordinances were adopted pursuant to the policy enunciated by the Secretary of the Interior in a circular issued on 20 June 1946 which in substance suggested and urged the municipal councils to increase their revenues and not to rely on the ·National Government which was not in a pm>i· tion to render any help and to make such increase depen,dent upon the .taxpayer's ability to pay; that .both ::n·dinances assailed by th(: petitioner had been submitt.ed to, and approved by, the Department of Finance, as required by section 4 of Com. Act No. 472, and took effect on 1 January 1947 and 1 January 19481 respectively; that the petitioner had filed a protest with the Secretary of Finance against such increase of taxes, as-fixed by the municipal ordinances in question but the Depa1·tn1ent of Finance although reducing the amount of taxes imposed in Ordinance No. 10, series of 1947; and changing- the date of effectivity of both ordinances, upheld ~he legality thereof; and that the petitioner brought .this action for declaratory relief wjth the evident purpose of evading payment of the unpaid balance of taxes due from the "Cine Concepcion." By Way of sjiecial defense the respondents allege that the petition does not state facts sufficient to constitute a cause of action; that the Court has · no jurisdiction over the subject matter of the petition for declaratory relief; that the petitioner should have paid under protest the taxes imposed by the ordinances in question on "Cine Concepcion" and after payment thereof should bring an action under se.ction ·1579 of' the Revised Administrative Code; that this being an action for declaratory relief, the Provincial Fiscal of Rizal should have been notified thereof but the petitioner failed to do- so; that the petition does not join all the necessary parties and; therefore, a judgment rendered in the case will not terminate the uncertainty or the controversy that is--sought to be settled and det.erm.ined. After hearing the Court rendered judgment holding that the ordinances in question are valid and constitutional and dismissing the petition with costs against the petitioner. The latter has appealed. This is not an action for declaratory relief, because the terms of the ordinances assailed are not ambiguous or of doubtful meaning which require a construction thereof by the Court. And granting that the validity or legality of an ordinance may be drawn in question in an action for declaratory relief, such relief must be a.sked before a violation of the ordinance be conunitted. (1) When thii;: action was brought ou 12 May 1949, payment of the municipal license taxes imposed by both ordinances, the tax rat.e of the last having been reduced by the Department of Finance, was already due, and the prayer of the petition shows that the petitioner had not paid them. In those circumstances the petitioner cannot bring an action for declaratory relief. Angeles S. Santos, the petitioner, does not aver nor does he t.estify that he is the owner or part owner of "Cine Concepcion." He alleges that he is only th(: manager thereof. For that reason he is not an interested party. He has no interest in the theater known as "Cine Concepcion" which may be affected by the nmnicipal ordinances in question and for that reason he is not entitled to bring this action either for declaratory relief or for prohibition, which apparently is the purpose of the action as may be gleaned from the prayer ·of the petition. The rule that ·actioits must be brought in the name of the real pa1·ty in inter~st~ (2> applies to actions brought unde1· Rule 66 for declaratory relief, c:n The fact that he is the managet· t>f the theatre docs not '·make him a real party in interest. (4) Nevertheless, laying aside these procedural defects, w~ arc o1 f the opinion and so hold that under Com. Act No. 472 the Municipal Council of Malabon is authorized and empowered to adopt the ordinances in question, and there being no showing, as ·the eVidcaCe does not show, that the rate of the municipal taxes lheiei,i" pr~~ vided is excessive, unjust, oppressive and confiscatory, thiiir Validity and legality must be upheld. The rate of the taxes in both ordinances, to wit: Pl,000 a year for "Class A Cinematographs having orc·hestra, balcony and lodge seats" in Ordinance No. 61, series of 1946, (5) and f'2,000 for each theate1· or cinematograp~ with gross annual receipts amounting to f'l3o-;ooo or nloie iii.- n~ dinance No. 10, series of 1947, (6) under -Which "thti '"Cine COD.cep·cion" falls, is not excessive but fair and just. It is far from being oppressive and confisCatory. Pursuant to said Commonwealth Act if the increase of the municipal tax is more than 50% O\"ef the previous ones already in existence, the Municipal Council adopt·ing such increase must submit it for approval to the Department of Finance which, although it cannot increase it, may reduce it and may approve it as reduced, or may disapprove it. It is cont.ended that as only municipal councils are authorized by law to adopt ordinances, after the i·eduction by the Department of Finance of the tax rate imposed in Ordinance No. 10, series of 1947, duly adopt.ed by the Municipal Council of Malabon, tlie latter should adopt another ordinance accepting 01· fixing the rate tax as reduced by ~e Department of Finance. The contention is without merit because the rnte of taxes imposed on theaters or cinematographs in Ordinance No. 10, series of 1947, was the only one reduced by the Department of Finance and the i·eduction was for the benefit of the taxpayer as it was very much lower than the rat.e fixed by the Municipal Council, The authority and discretion to fix the amount of the tax was exercised by the Municipal Council of Malabon when it fixed the same at !"9,000 a year. Certainly, the Municipal Council of Malahan that fixed the tax at !"9,000 a year also approved the tax at P2,600 a year, this being very much less than that fixed in the ordinance, The .power and discretion exercised by the Municipal Council of Malabon when it fixed t.hc tax at P9,000 a year must be deemed t-0 have been exercised also by it when the Department of Finance reduced it to !"'2,000 a year, for the greater includes the lesl1er. The adoption of another ordiJ)ance fixing the tax at f'2,000 a year would be an idle ceremolly and waste of time. Moreover, it must be borne in mind that municipal councils are not constitutional bodies but creatures of the · Congress. The latt.er may even abolish or replace them with-- other government instrumentalities. Commonwealth Act No. 472 grants to the Department of Finance the authority to disapprove, implied in the power W approve, an ordinance imposing a tax which is more than 50% of the existing tax, or to reduce it, also implied in the same power. This, of course, is to forestall abuse of power· by the municipal councils. If the Congress has granted t6 thC Department of Finance the power to reduce such tax, implied' in the power to approve or disapprove, there seems to be no cogent reason for requiring the municipal council concerned to adopt another ordinance fixing the tax as reduced by the Department of Finance. Therefore; the action of the Department of Finance in approving Ordinance No. 10, series of 1947, ·it a reduCEid1·3iP, is not in excess of the powers granted it by law. The evidence -does not show that the adoption of the ordinances in· question by the Municipal Council of Malabon was the result of persecution of the petitioner. The judgment appealed from is affirmed, with costs :oigainst the appelant. · <Continued on pv.ge 85l 84 THE LA WYERS JOURNAL l"ebruary :?8, 1954 DIGEST OF UNPUBLISHED DECISIONS OF THE SUPREME COURT AND COURT OF APPEALS ClUMINAL LAW; WHERE CRlltE IS NOT GRAVE THREAT BUT ATTEMPTED HOMICIDE OR DISCHARGED OF FIREARMS. - Where, while pointiilir a carbine at B, A said: "confess now your sin because this will be your last,'' and then the gun exploded, the words spoken cannot be considered as a threat, grave or otherwise, "but as a statement of his intention of carrying out, then and there, his purpose of injuring the offended party; so the crime committed by A "might be either attempted homicide, if coupled with the intention to kill tArts. 51, 249 or 250, sPccnd paragraph, RPC>, or mere discharge of firearms (Art, 254), or the light felony of drawing a weapon in a quarrel not in lawful self-defense \Art. 285, No. 1), but never the ~rime of gr!lve threats charged in the information and defined in sai<l ../ Article 282 of the Revised Penal Code." People of th6 Philippines vs. Flt>ro Ca.strode;;;, CA.G.R. No, 93838, F ebruary 11, 1953, Felix.J. II CRIMINAL LAW; THEFT; ACCUSED EXEMPT FROM CRIMINAL LIABILITY BECAUSE OF HIS RELATIONSHIP WITH THE OFFENDED PARTY. - Where one is found guilty off.he crime of theft committed against his own grandfather he i:; exempt from criminal liability under the provisions of Article 332, No. 1 of the Revised Pella] Code. People of the Philippines vs. Cesar Patubo, CA.G.R. No. 10616-R, August 15, 1953, Felix, J, Ill EVIDENCE; EXTRA-JUDICIAL CONFESSION NOT CORROBORATED BY EVIDENCE OF 1'HE CORPUS DELICTI INSUFFICIENT FOR CONVICTION. - · Where the accused, in .i.n extra-judicial co.nfession, confess that they used dynamite for fishing, they can not be convic!:ed of the crime of fishing with dynamite if the said extra-judicial confession is not corroboraterl by a.ny evidence of the corpus delicti. People of the Philippines, Plaintiff-Appellee t:s. J'J.an Pambu}an, et al., Defendants.Appellants, CA.G.R. No. 10599-R. July 28, 1953, C(lncepcion, J. IV CRIMINAL LAW; RECKLESS NEGLIGENCE. - A jeep was parked at right side of a street facing north. On the same side of the street about 6 meters behind the jeepney, likewise facing north a weapon carrier was parked. A truck driven by G came from the south of the street going northward. Al! it <Co'ntinued from page 84) Pablo, Montemayor, Bautist4 Angelo, Tuazon, Jugo and Labrador, JJ. concur. Bengzcm J., took no part. REYES, J., dissenting: I dissent insofar as the majority opinion holds that Ordinance No. 10, series of 1947, of the municipality of Malahan, Rizal, as modified by the Secretary of Finance, is valid and enforceable. Under the Revised Administrative Code, the legislative power of a municipality is lodged in the municipal council. It is true that the exercise of that power by the council is subject to a certain degree of supervisory control on the part of ·certain officers of the National Government. And as an instance of this supervisory control, it is provided in section 4 of Commonwealth Act No. 472 that if a municipal ordinance increases the rate of a license tax on business, occupation or privilege in certain cases by more than 50 per cent, "the approval of the Secretary of Finance . shall be secured." But having in mind the principle of separation of powers which pervades the system of government ordained by our Constitution, I take it that the veto power thus conferred upon the Secretary of Fina.nee only authorizes that offic~r to approve or disapprove an ordinance that is submitted to was about to pass the parked weapons carrier, another truck driven by C suddenly appeared from behind, and in trying to overtake G's vehicle either bumped into the latter or caused it to veer into the right and collide with the weapons carrier parked on the side of the. street. Because of the force of the impact, the right front tire of G's truck bumped over the left front tire of the weapons carrier and both cars were dragged towards and rammed against the parked jeepney. Held: C i,s criminally liabl'e because his own reckless negligence was the immediate cause of the accident. (1) While the operator of a motor vehicle is not compelled to trail behind another and may overtake and pass to the front of the one that precedes him, he may do so only if the road is clear and when the conditions are such that his attempt to pass would be reasonably safe and prude11t (U.S. vs. Knight, 26 Phil. 216; Peo. vs. Pa~ cual, G. R. ~o. 25677, March 7, 1932 (56 Php. 842, Unpub.) Peo. vs. Ennquez (CA), 40 0. G. No, 51 984. l2> C can not · shift the blame for the accident on G, for G was suddenly placed in an emergency and compelled to act instantly; and he "is not guilty of negligence if he makes such a choice and that would have been required in the exercise of ordinary care, but for the emergency" (5 Am. Jur. 600-601>. (3) Even were G guilty of contributory negligence, such negligence on G's part still would not absolve C from criminal responsibility, since D's own reckless negligence was the immediate cau~ of the accident. <Pea. vs. Nidoy, 60 Phil. 1023; Pea. vs. Enriquez CCA), supra. PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE VS. CRESCENCIO DE FIESTA, DEFENDANTAPPELLANT, C. A. R. NO. 8769, OCT. 5, 1953, R. Reyes, J. v CRIMINAL LAW; MALVERSATION OF PUBLIC FUNDS; CASE AT BAR.-The accused, a duly appointed clerk of the civil registrar in the Office of the Municipal Treasurer of Ubay, Bohol, and temporarily designated as assistant postmaster of the same municipality, had among other duties, to help in postal transactions, such as to sell postage stamps, to issue or cash postal money orders and to receive deposits or pay withdrawals in the Postal Savings Bank. In the morning of June 14, 1948, Dionisio Borlongan presented himself to the , accused for the purpose of making a deposit of P700.00 in the name of his wife, Estrella Agrosino de Borlongan, a depositor in the Postal Savings Bank. To this end he delivered the amount of P700,00 and his wife's deposit book to the accused him in accordance with the above-quoted provision of the Conunonwealth Act, and that it does not empower him to change, alter or modify the terms of the ordinance, for that would be investing an executive officer with legislative functions. Where a municipal ordinance, therefore, increases or decreases in certain cases the rate of a license tax on buiiness, occupation or privilege by more than 50 per centum and the Secretary of Finance increases or decreases the new rate prescribed in the ordinance, the action of the Secretary of Finance can only be taken as a recommendation, so that the modified ordinance will have no effect until it is repassed by the municipal council, in the same way that a tax bill already approved by the Legisl<iture but returned to that hotly by the President with a recommendation for an increase or decrea11e in the rate of tax does not become a law unless repassed by the Legislature with the changes proposed by the ~hief Executive. It is, therefore, my opinion that Ordinfknce No. 10, series of 1947, of the municipality of Malahan which has been modified by the Secretary of Finance, cannot be enforced unless repassed by the municipal council as so modified. The j.udgment below should accordingly be modified. " I concur (Sgd.) RICARDO PARAS February 28, 1954 THE LAWYJ:RS JOURNAL 85 who theu l'econlcd the fact of the dcpJslt"" tn the deposit book. Afterwards the accused returned the deposit book to Borlongan and also delivered to him an official receipt the corresponding num~r of which, as it appears in the deposit book, is No. A-201901. Sometime in July, 1950, when Borlongan and his wife went to the central office of the Postal Savings Bank in Manila to make withdrawal from her deposit, it was discovered that the amount of f700.00 which they deposited on June 14, 1948, was not taken up in the postal account because the accused never reported said deposit in his record of collections, nor did he deli\"er sidd amount to the postmaster of Ubay, Bohol. It was also discovered that Official receipt No. A-209101 had previously been issued for a deposit of P2.00 in the Postal Savings1 Bank made by the accused himself in his own name on April 3, 1948, according to his pass book, which is the only entry appearing therein. Held: "The accused is guilty of the complex crime of rualversation through falsification of public or official document committed by a public officer or employee. "The accused's contention that he cannot be held guilty of malversation because his appointment is merely that of clerk and hence not an accountable officer, and also that the postal savings deposits are not goverrunent funds, is· entirely without merit. The name of the office occupied by the appellant is of little consequence; the nature of the duties which he performed is the factor which determines whether or not the case falls within the purview of Article 217 of the Revised, Penal Code (U.S. vs. Velasquez, 32 Phil. 157), and the fact that as part of his duties, he received public money for which he was bound and failed to account is decisively against him. Article 222 of the Revised Penal Code cited by the defense is of no avail because the purpose of this article is to extend the provisions of the Code on malversation to private individuals without excluding public officers. Moreover, this article expressly includes properties belonging to private individuals that are deposited with the goverm.nent by public authority. (People vs. Velasquez, 72 Phil. 98; People vs. Castro, 61 Phil. 861; and People vs. Sibulo, G.R. No. 40714). "The crime of falsification was likewise conunitted by appellant because he made it appear in the deposit book that Official Receipt No. A-209101 was issued for the deposit of f700.00, when tl"!at was not and could not be so, because said Official Receipt No. A-209101 had been previously issued to him for his deposit of P2.00 in the Postal Savings Bank. "The crime committed in the case at bar is the complex crime of malversat.ion through falsification of public or 01f1c1al document committed by a public officer or employee, defined and punished in Article 217 of the !~vised Penal Code in connection w1tn Artie.le. i ·fl, par. 4, of tne same legal body. Accoramg to Art1c1e 48 01 tne Hevised .t'enaJ Code, as amended by Act No. 4VVU of the i'hu.ippme Leg1slatu1·e, the penalty imposau1e upon appellant in trus case is the one at.acned by law to the most serwus crime, tne same to be appne<1 m its maximum period. 'J'he more ser10us crime is that of falsificat1oi:i. covered by Article 171, par. 4, of the Kev1sed t'enal Code, that is, pr1-3Wn mayor and a fme not to exceed five thousand pesos, the maximum period of which, in so far as the penalty of incorporation is concerned, being· from 10 years and 1 day to 12 years. The next lower degree of the penalty prescribed in this Article 171, which is also to be imposed in virtue of the lnterminate Sentence Act, is prision correccional in its full extent, or from 6 months and 1 day to 6 years. Although the trial judge has not divided the maximun1 period of prision mayor into three periods in imposing themaximum of the indeterminate sentence, as he could have done, we are not inclined to increase the maximum of the penalty actually imposed upon the defendant." Peopl8 vs. Escalante, CA-G.R. No~ 10141-R, promulgated July 22, 1953. VI CIVIL PROCEDURE; REDEMPTION OF REAL PROPERTY SOLD TO SATISFY JUDGMENT; CASE AT BAR. - On March 22, 1941, the sheriff of Bulacan, at public auction, sold ~f p;~~~'.o~f t~anJ!e 1:!:~~e:g J i~;dr.e~~i~e:~:~r~ih~o~· :::v:~: their right and interest in the said land to M. On Oct. 7~ 1943, A wrote a letter to the sheriff offering to redeem the property, but this offer was not heeded, upon the ground that the p~ riod of redemption had expired on March 22, 1942. A brought action against the sheriff, including J, R and M. After due trial, the Court of First Jnstancc rendered a. decision dismissing the case. A appealed, maintaining that the period of redemption, scheduled to expire on March 22, 1942, was suspended by the ho.stile military occupation of the Philippines; that the courts in Bu. lacan were not reestablished until after said date, or on May 2, 1942; and that, in view of the conditions prevailing in the Philippines during the occupation, A should have been allowed to redeem the property .in question in October, 1943, when he offered to do so, Moreover, according to the stipulation submitted in the lower court, M, who acquired the rights of J and R, as purchasers at the auction sale of the property in dispute, received as products thereof, during the period of redemption, at least, one hundred twenty (120) cavanes of palay per year, at the conservative price of PS.00 per cavan, or an aggregate of !'960.00; hence A maintains that, pursuant to Sec. 30, Rule 39, of the Rules of Court, such sum of 1"960.00 "shall be a credit upon the redemption money to .be paid", and that, inasmuch as said amount of f'960.00 exceeds the sale price of P'529.00, the land in question should be considered as duly redeemed and A entitled tQ its possession and enjoyment, as owner thereof. HELD: The legal provision granting the judgment debtor a period of one year within which to redeem his property sold at an execution sale, is not in the natu!'e of a statute of limitations of action. It merely gives hinl an option - which he is free to exercise or not - to redeem said property within the aforementioned period. Alberto ·vi;. De los Santos et a. l., CA-G.R. No. 5741·R, promul!Jated July 28, 1953. ID.; NOTICE OF JNTENTION TO REDEEM UNNECESSARY.Section 30, Rule 39 of the Rules of Court - which should be construed liberally in faVor of the right of redemption C31 Am. Jur. 521; 35 C.J, 68) - does not specifically require, however, a previous notice of intention to redeem or a previous demand for accounting, as a condition precedent to the creditr ing of the rents and profits upon the redemption to be paid. ID.; RENTS AND PROFITS PENDING REDEMPTION. -The right, granted the judgment debtor, to demand, prior to the expiration of the period of redemption, a statement of the rents and profits received by the purchaser of the property, and extending said period for five days, after receipt of said statement, has for its sole purpose to relieve the judgment debtor of the obligation - which, otherwise, he would have - to tender payment of the full amount of the sale price. Should the aforementioned demand be made, he would have to tender payment only of the balance of the price, after deducting the value of the rents and profits received by the purchaser of the property or his successor in interest. Alberto vs. De los Santos et al., CA-G.R. No. 5741-R, promulgated July 28, 1953. ID.; ID. - Such tender of payment could be made after the expiration of the period of redemption provided it is not mote than five days from receipt of the statement of accounts asked by the judgment debtor from the 'purchaser. Although not bound to demand this statement before the expiration of said period, it would, however, be unwi;;e for the judgment debtor not to do so, unless he offers to pay the full price of_ the sale within said period, for the rents and profits rcceiveci THE LAWYERS JOURNAL February ?.8, Ul,;4 might not suf'Cicc to satisfy this price. When tl1e price is more than covered by the rents and profits, there would appear to be no legal justification to hold that the redemption has not taken place ipso facto, the purchaser being already in possession of more than what he is entitled to receive. Alberto vs. De los Sant~s et al., CA-G.R. No. 5741-R, promulgated July 28, 1953. , DECISION OF THE COURT OF INDUSTRIAL RELATIONS Pepsi.Cola Bottling Co., versus Almeda et al., Cases Nos. 679-Cl) & 679-V (2), Judge Yanson. JD.; LAW GOVERNING EXECUTION SALES. - Execution sales 1. are governed, primarily, not by the law on sales incorporated JLLEGAL STRIKE; ITS EFFECTS ON THE EMPLOYMENT STRIKERS. - As of the .time the order declaring the strike illegal, has become final, the relationship between management and the strikers, ipso facto, is terminated. Since the workers were not dismissed, but, by operation of Ja.w, they lost their right to return to work by reason of their own acts, the relationship of into the Civil Code, but by the Rules of Court, which are based upon the principles, not of the Roman Law (after which the Civil Code is mainly patterned), but of the Common Law. Alberto vs. De los Santos et al., CA-G.R. No. 5741-R, promulgated J1tly 28, 1953. SESSION. -· The buyer in an ordinary execution sale, unlike a pacto de retro purchaser, docs not acquire title to the property subject to a resolutory condition - the redemption: Neither does he acquire the right to its possession. The title remains in the judgment debtor, who, likewise, retains the right to continue in possession of the property, if he holds the same, and to receive the rents and/or profits th~reof, without any obligation to turn them over, or to account therefor, to the buyer, irrespective of whether the right of rede"mption is exercised or not. Alberto vs. De los Sant-Os et al., CA-G.R. No. 5741-R, promulgated July 28, 1953. lD.; RENTS AND PROFITS PENDING REDEMPTION. - The buyer at the auction sale is not entitled to receive the rents bought, except where the property is held by the tenant. But even then said purchaser is bound to credit sueh rents and profits "upon the redemption money to be paid." Thus, he becomes a debtor for those rents and profits, in relation to the owner of the property, who, in turn, is his debtor for the amount, either of the judgment (if the buyer is the judgment creditor), or of the price paid at the execution sale, with interest. thereon at the rate of 1 % per month, which, by the way, clearly indicates that buyer does not own the property and has no right to appropriate the fruits thereof, prior to the expiration of the period of redemption. Alberto vs. De los Sant-Os et al., CA-G.R. No. 5741-R, promulgated July 28, 1953. JD.; EXECUTION SALE; COMPENSATJON lN CASE OF REDEMPTION. - The conditions essential to compensation 00. ing, accordingly, present (see Articles 1278, 1279 and 1290, Civil Code of the Philippines), the same takes place and the obligations involved are extinguished to the extent of the concurrence thereof. Alberto vs, De los Santos et al., CA-G.R. No. 5741-R, promidgated July 28, 1953. ID.; DEMAND FOR ACCOUNTING OR AN OFFER TO REDEEM UNNECESSARY. - The theory of the lower court, to the effect that· a demand for accounting or an offer to redeem must be made before the expiration of the period of redemption, as a prerequisite to the compensation, is borne out, neither by the provisions of the Civil Code concerning compensation nor by those of the Rules of Court. What is more, said theory has been impliedly, but, clearly, rejected by the Supreme Court in the case of Syquia vs. Jacinto (60 Phil. 861). Alberto vs. De los Santo.set al., CA-G.R. No. 5741R, p-romulgated July 28, 1953. I CORPORATION LAW; WHEN THE JURIDICAL PERSONALITY OF A CORPORATION MAY BE DISREGARDED. - While, normally, courts regard that entity, they disregard it "to prevent injustice, or the distortion or hiding of the truth, or to let in a just defense" <Fletcher, Cyclopedia of Corporations, Perma{lent Edition, pages 139-140), and also when "the corporation is the mere alter ego or business conduit of a person (Idem, page 136). It is also well-settled that, although a corporation does not lose its entity or sepa<Continued on page 88) the parties may be again renewed if and when a new contract of employment is entered into. IBID; WHO ARE RESPONSIBLE THEREOF. - When a strike is declared illegal because of violence committed by some of the strikers, all the st1;kers, not only those who committed the illegal acts in furtherance of the strike, must be held responsible thereof. Alty. Vicente J. Frnncisco for petitioner. Attys. Cid, Rafael, Villa: hiz fQr 1·cspondents. RESOL'UTION Both parties filed a motion each for the reconsideration of the order of the trial court, dated June 12, 1953, the dispositive portion of which reads as follows, to wit: "WHEREFORE, in ord'3r to restore and maintain the status quo provided by Section 19, the Company is hereby ordered to reinstate ir.. the meanwhile the said thirty-two C32) laborers, without back pay, considering tha.t the employer of~red re-employment, although temporary in nature: and to submit to this Court the names of the strikers who committed the illegal acts in furtherance of the strike, for proper action." 'l'he facts upon which this order was based are: On March 12, Hl53, respondents presented to the company president, J. P. Clarkin, certain labor demands <Exhibit "A"). They were, thereafter, invited to a conference by Management (Exhibit "B"> but the parties, however, did not meet until Mr. Clarkin left the Philippines on April 12, 1952. On April 23, 1952, new demands were presented by respondents to .M:r. J. Pascual, Treasurer of the Company, giving the Managcn\ent two <2) days within which to answer them. The workers, assisted by the Union President and counsel, had, however, agreed to wait, until April 28, 1952, when they were made to understand that the. President was out for the reply of Mr. Pascual. The matter of collective bargaining and the grant of the demands of the labo1·ers had to be delayed. In the meanwhile, the company, on April 30, 1952, filed in the Court a petition, requesting the issuance of an order to enjoin the union from declaring a strike. Jn the conference before the Court the labor leaders made assurance, after they had manifested that the union did not have any intention of declaring a strike, tha.t they will not declare one. The injunction prayed for was not issued in view of this assurance. On May 3, Hl52, new demands consisting of five f 5) items, which demands are similar to that presented by the union to the company on April 23, 1952, were presented to the company. These demands were transmitted to the compa.ny's President by means of a telegranm. In a general meeting held for the purpoSe of hearing the report of .Mr. Laguian, the members of the union unanimously voted and decided to stage a strike, which, in fact, they declared on May 8, 1952. As a consequence of this strike, the syrup which was alre2.Cly prepared and placed in the tanks of the plant costing P2,000.00, among others, was spoiled; and,· on the following day, a picket line was maintained and the employees, brokers, distributors and drivers ~ere, by means of threat, prevented from getting into the premises of the Ccmpany. Under these facts, the Court after one hearing, in an order issued, decl3.red the strike not only unjustified, but also illegal. The Court says: ''x x x unjustified because all the strikers know beforehand that Treasurer Pascual had no authority to a.ct on their demands and consequently they should have waited' for Clnrkin's answer before staging the strike; unjustified, because it was declared after Respondents, through their legitimate representatives, ·had February 28, 1954 THE LAWYErtS JOURNAL 87 promiSed 'a.nd assured the Coult .that they - ~Oul4 n!)t go on strike before May 15. The picketing which is the means employed ii} carrying it on is illegal, because the strikers resorted to threat _ and intimidation." · This case was brought to the Supreme Court on appeal but same was not given due course. On May 16, 1952, the officer in charge of the company, knowing as he did the Court's order d_ eclaring the strike illegaJ, invited the -~vO~kCrs to · work by telling them that ~hey could work if they desi1·e -to work, but on a temporary basis. Notice for the laborers to return to work within 48 hours was served them, and a copy thereof, on May 5, 1952, .vas posted at the company's premises. This notice ~n formed those who dcsiI·e to go back or to be reinstated to work with the company to see the Officer-in-Charge not later than 4 :00 o'clock in 1.he afternoon of May 26, 1952. And 50 workers, out of 82 who staged the strike, returned to work by signing a con~ract embod!ing a11 the-terms " and conditions of previous work agreement, the difference however of the new contract of employment from the contract previ~us to th~ strike was that the status under the forme1· is temporary for the reason that the Company Pl'csident, the only person with authority to hire, was out of the ,country. Becaus. of the temof thlil strike of May 8, 1952, was c::oinplete seve1•ance from work of di those responsible arc concerned, then the ''status quo" which the Trial Judge wa.nted to preserve does not exist. The declaration of the unjustifi~bleness and illegality of the strike of May 8, 1952, has to retroact, insofar as its adverse consequences are concerned, from the date of the strike. From that date, there is nothing more to maintain in "status quo" because the relationship of petitioner with tho thirty-two <32J workers has already been severed by the illegal strike itself. To hold otherwise would, to our mind, run counter to what the Constitution snd the Jaw · seek to. avoid and give protection to those who, by their voiled conduct, have forfeited their rights thereto <National Labor Union vs. PhilippiM Match Company 70 Phil. 303l. In view of the foregoing considera.tions, the order of the Trial Court of June 12, 1953, should be, ::is it is hereby, reconsidered. IT IS SO ORDERED. Manila, Philippines, January 4, 1954. <SGD.) ARSENIO C. ROLDAN Presiding Judge (SGD.l MODESTO CASTILLO Associate Judge CSGD.> JUAN L. LANTING Associate.Judge porary nature of employment ~f the n.ew contract si~ed by t~e workers returning after the- stnke; 82 workers, the subJect of this BAUTISTA, J., dissentingfoCidental Case, did not return to work. This case came to Court as The ~·o incidental cases before this Court pertain to the reinan incider,t. to the main case. In the hea~ing of this Incidenta.l Case, sta.tement of certain unionists (32 workers in Incidental Case No: 1 these workers informed the Cou1t that, so that their status prior to and 19 workers in Incidental Case No. 2> who were dismissed by rest.he strike may be maintained, they were willing to resume work u~der pondent company. conditions existing prior to May 8, 1952. The trial Court found no- ' The facts in these incidental cases substantially differ from those thing wrong with the temporary nature of the contract signed by the already adjudicated in the main Case No. 697-V on May 16, 1952, .workers after the strike, as in fact it found the execution thereof involving the ·same parties, which declared the strike led by the justified. It will be noted that, after the expiration of the time given Pepsi-Cola Labor Organization (respondents> as illegal. in the notice for the striking workers to return and after the workers, In the first inCidental case, the respondents <unionists> filed on the subject of this Incidental Case, had l'.efused to sign the contract May 19, 1952 with both this Court and the company, a notification b.e.caus_e of the conditions therein provided, the company, in view of expressing willingness to resume work immediately pending their the refusal of these workers and the present volume of business at appeal of this Court.'s Order of Ma.y 16th. The respondents reiterat.. tl.le. time, hired new workers to replace these subject workers. ed their complianct\ with the status quo imposed upon the parties by Under these facts, it is believed that the position taken by the Commonwealth Act 103, as amended. They notified the Court <Exh. trial Court in its order of June 12, 1953, particularly IncidentaJ Case "1", Case No. 697-V) that they have obeyed the order and have dis- , No. 697-.V<2J is without basis in fact and in law. After the Court solved their strike and picket. This order was duly ::.ppealed to the had declared the strike staged by the union on May 8, Hl52, not only Court en bane and became final only three months later in August, unjustified but also illegal, and since the strike was unanimously 1952, when the Supreme Court declined to review the questions of vcted upon by the workers, the employer-employee relat.ionship of facts. tht- parties was, as of May 3, 1952, doubtless, severed. In fact, it Meanwhile, betv.:een May 19 and May 26, 1952, despite the pendis said in one Supreme Court case that the consequence of an illegal ing appeal on the strike's legality, the respondent company's acting strike is the dismissal of the labol'ers responsible in the illegal strike. manager, Mr. Jose Pascual, required all strikers to interview him A& of the time the order declaring the strike illegal, has become prior to their reinstatement, Evidence concurrently shows that the final, ' the relationship between management and the strikers, ipso company admitted strikers who were non-unionist and independent, facto, i's terminated. Since the workel's were not dismissed, but, by but required those with union loyalty to sign certain papers as pre-- operation of law, they lost their right to return to work by reason requisite to resumption of work. o! their very own acts, the relationship of the parties may be again Thus, on May 20, 1952, the respondents petitioned this Court renew~d if and when a new contract of employment is entered into. for a restraining order against alleged unfair labor practices and We hold that; not orily the strikers who conunitted the illegal urged their return to their permanent jobs. But the company contiacts in the furtherance, of the strike but also - and a.ll of them are nued hiring newcomers. The company admitted, later, ha.ving hired included because they unanimously voted for the declaration of the a total of 68 newcomers. strike of May 8, 1952 - the workers are to be held responsible there.. And on May 26, 1952, the unionists filed another petition for for. Since all of them, including the thirty-two (32), the subject of contempt against the company for hiring outsiders and for dismissing this incidental case, should be made to suffer the adverse consequences oldtimers, both without court knowledge and authority. The 32 of their illegal acts, the beneficent mantle of Section 19 of Common- unionists unaccepted by the company thence entrusted their fate wealth Act No. 103, a.s 8.mended, could not extend to them. Since, as with this court. of May 8, 1952, when the strike was declared, there was nothing more On the other hand, the con1pany answered on June 10, 1952 and to maintain, insofar as the employment-relationship between petition- June 20, 1952, and alleged that this Court's order of Ma.y 16, 1952, · er and the thirty-two <32) employees is concerned because the effect which declared unjustified the strike (Jed by these unionists on May ~~~~~~~~~~~ ~ ~~~~~~~ ~~~ ~ ~~ ~~ COURT OF APPEALS... CContinn<d from P"Y' 87) rate iuridical personality b€CttUse the bulk or even the whole of its stock is owned by another corporation (Monongahela CO. vs. Pittsburg Co., 196 Pa., 26; 46 At!., 99; 79 Am. St. Rep., 685), courts will look beyond the mere artificial persi:mality which incorporation confers, and if necessary to work out_ equitable ends, will ignore corJ>orate forms (Colonial Trust Co. vs. Mcintello Brick Works, 172 Fed. 310). In the case of Koppel <Phil.), Inc. vs. Yatco et al., our Supreme Court, applying the principles just stated, i·uled that there is every reason ·to ignore and disregal'd the corporate entity where the corp.oration is so organized and controlled and its affairs are so conducted, as to make it merely an -instrumentality of another, and the legal fiction will also· be com· pletely disregarded when it is invoked or used to defeat public convenience, justify wrong, protect .fraud, or defend crime (43 Off. Gaz. No. 11, p. 4604). In the earlier case of Cagayan Fishing Development ct al, vs. Sandico, 36 Off. Gaz., p. 1118 the same principles were sustained and applied. People vs. Dollentc, CA·G.R. Nos. 7723-R, 7724-R, 7725-R, 7726·R, 7727-R, 7728·R & 7729-R, promulgated February 26, 1953. 88 THE LA \VYERS JOURNAL February 28, 111LJ4 8, 1952) automatically gave the company authority to dismiss the strikers and to hire replacements, without any knowledge or application to this Court. We differ with these uncalled for and dangerous assumptions especially on such sacred and fundamental questions as job security and wholesale punjshment without specific individual just causes. This tribunal, indeed, is under obligation to give protection to labor. (Art: XIV, Philo Constitution>. For the ruling of May 16, 1952, merely declared the strike as illega.I based on circumstances then exposed by the company. The order could not, and did not, authorize therein that the several hundred strikers would be dismissed at the whim of, the company; it did iiot authorize discrimination against leaders of the Pepsi-Cola Labor Organization. The order was clea.rwhat is not written, is not authorized. Significantly, the company on May 9, 1952, petitioned this court fo·t au.thority not to admit (or to dismiss) the strikers; it lik~wise s~1ught authority to hire new outside laborers as replace1nents. This Court refused to grant the requests and found 110 justification to dislodge these permanent workers most of whom served over five years in their jobs. This Court would not abet with whatever errors indiYidual strikers may have committed nor utilize alleged ·individual mischiefs as capricious weapons to punish union membership, and indiscriminately against all strikers. But the company went ahead with the firing and hiring without any knowledge or permission fr.om this Court, and despite unfavoruble action on its i·equests of May 9, 1952. On August 15, Hl5~, October 20, 1952, and November 7, 1952, the i·espondents gave supporting evidence in the persons of Edu"B.rdo Laguian, Onofre Rivera and Lamberto Ramos. Laquian, as union secretary acting for the uniOn, first applied to Mr. Pascual immediately on May 16, 1952 for reinstatement under status quo and i·eiterated formal application on May 19, 1952 <Exhibit "l" of Case No. 697-V>. Rivera testified on the "conditional contracts" impos~d upon unionists who presented themselves for reinstatement. Ramos likewise applied to sign any agreement under any condition, but Mr. Pascual refused to accept him beca.use he was one of those black-listed by the company. Ramos asked Pascual the reasons for the black.list but the latter gave none. (p. 45, t.s.n., Nov. 7, 1952). No witnesses testified for the company nor evidence submitted to repudiate these testimonies. The principal question raised in this case is whether this Court's order of May 16, 1952, automatically authorized the diSmissal of striking unionists and likewise authorized the employment of new laborers during the pendency of the Orde1·, and without priol' application to and permission from this Court. We maintain that the order did not authorize the outright dismissal of all the strikers; neither did it authorize any prejudicial move in violation of the due process clause of the Constitution. No law exists that authorizes the automatic dismissal of strikers while the order or illegality is pending appeal. Neither does any statute permit ipso facto dismissal of all the strikers irrespective of their individual participation or non-participation in the unwarranted acts during the strike. Of the several hundred strikers, no showing was exposed to this Court why 32 petitioners were picked out for "automatic discharge" despite their notice and application of May 19, 1952 to resume work. No evidence is on record that each of the 32 petitioners committed individual misconduct to justify their sudden dismissal. The causes of action in the petition 1.-0 decla.re the strike illegal is different from the petition for reinstatement due to unjust cause. 1 This Court on June 12, 1953, finally decided to reinstate the 32 workers concerned, upon evaluation of the facts adduced. Section 19, Commonwealth Act 103, as amended, says pertinently "that the employer shall refrain from accepting other employees, under the last terms and conditions existing before the dispute a.rose." Likewise, "during the pendency of an industrial dispute before the Court of Industrial Relations, the employer cannot lay off and much lus dismiss the employee without the permission of the Court." (Luzon Marine Department Union vs. Arsenio Roldan, GR L-2660, May 30, Ul50). "Permission must have been obtained first before an employer can discharge an empk,yee during the existence of a.n industrial dispute before the Court of Industrial Relations." <Ma.. nila Trading vs. PLU, 40 Off. Gaz. 9th Suppl. p. 57>. It is therefore the duty of this Court to be vigilant when one of the parties is at a disadvantage due to indigence or other handicap. <Art. 24, Civil Code of the Philippines). Moreover, such dismissal of laborers is subject to the supervision of the Government. (Art. 1710, Civil Code of the Philippines). This means that the emploYer is not vested absolute power as sole arbiter on dismissal of strikers, taking into account that the company through its counsel, Atty. Vicente J. Francisco, brought this question to this Court on May 9, 1952. The Supreme Court pointed out in the case of National La.bar Union versus Philippine Match (70 Phil. 303) that not all the strikers could be p~mished but only those who commit specific unwarranted acts. The ruling C'f this Couh on June 12, 1953, considering the facts established, justly orde1·ed the l'einstatflment of the 32 petitioners who were refused reinstatement by the company since May 19, 1962. We vote to affil'm their reinstatement. Manila, Ja.nuary 14, 1954. JIMENEZ YANSON, J., dissenting: I dissent from the majority opinion of the Court in bane, recon~ sidering the order of the trial court, dated June 12, 1953, issued in Cases Nos. 697-V(l > and 697-VC2). I agree entirely with the view of Judge Bautista as stated in the order jssued on June 12, 1953 in said two cases, but as there seems to be, among the other Judges of this Court, divergence of opinion, with respect to the resolution of Case No. 697-VCD, I undel'stand I should .express my points of view therefor. I agree that the mere declaration by the Court of Industrial Relations that the strike declared by the employees on May 8, 1952 was illegal does not necessarily carry with it the dismissal of all the striking employees. There must be a showing, after proper hearing, who are the ones responsible for such illegal strike before the Court could authorize the dismissal of the employees responsible of such illegal stri~e. The real purpose of the la.w <Section 19 of Commonwealth Act 103, as amended) is "to maintain the parties in status qUI) during the pendency of the dispute in order to safeguard the public interest and to enable the Court to settle such dispute effectively <Manila Trading & Supply Co. vs. Philippine Labor Union, G.R. No. 47233). And the above view has be'en reaffirmed in the case of the Luzon Marine Department Union vs. Arsenio C. Roldan, et al., G. R. No. L-2660, when the Supreme Court stated: "Under the law, during the pendency of an industrial dispute before the Court of Industrial Relations, the employer cannot lay off, much less dismiss, the employ. ees without the permission of the Court." The evident purpose of the law, as above stated, is to place in the hands of the Court of Industrial Relations, and not on the employer, th.:: power to dismiss the employees, who participated in a.n illegal strike (Republic Steel Corporntion vs. National Labor Relations Board, 107 F2d 472._ No. 8, 1939) and also Resolution of the Court of Industrial Relations iii bane, dated January 5, 1952, in Case No. 448.V(2); Filipino Labor Union vs. Na.tional City Bank Employ. ces' Union, Case No. 500-V; Manila Oriental S3.w, Mill Co., National Labor Union; and Case No. 788-V Talisay-Silay Mil!ing Co., Inc., vs. Talisay Employees and Laborers Association, August 12, 1953. February 28, 1954 THE LAWYERS JOURNAL 89 PINION OF THE SECRETARY OF JUSTICE NO. 217, 1953 -The Di}c.ctor Bureau of Posts Mani 1 a Sir: , This is with reference t.J your Jetter of September 16, 1953, requesting my opinion as to whether or not a fraud orde.r may J;>e issued under the provisions of Sections 1982 and 1963 of the Revised Administrative Code age.inst the San Miguel Brewery for conducting it.:1 scheme in which miniature Coca-Cola bottles are distributed in t:hl! · m3.nner and under the conditio"ns described in your letter as follows: ·'Under the cork disc inside some <not a\l) of the CocaCola crown caps is a special marking consisting of the silhouette of a Coca-Cola bottle in a red circle. Five of these specially marked crowns are exchanged with one miniature Coca-Coln bottlc which is an exact replica of the regular Coca-Cola soft drink but is only 2 1/2 inches high. The miniature bottle does not contain Coca-Cola but a harmless colored liquid. Marked crowns can be redeemed with any of the familiar Coca-COia trucks or at the local Coca-Cola bottling plant." Sections 1982 and 1988 of the Revised Administrative Code Provide in part as follows: "SEC. 1982. Fra.ud orders.- Upon satisfactory evidence that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any real or personaf property by lot, chance, or drawing of any kind, xx x, the Director of Posts may instruct any postmaster or other officer or employee of the Bureau to return to the person depositing same in the mails, with the word 'fraudulent' plainly written or stamped upon the outside cover thereof, a.ny mail matter :;f whatever class mailed by or addressed to any. such person or company or the representative or agent of such person or company. xx x." .. SEC. 1983. Depriv_ ation of use of money order system and telegraphic transfer service.- The Director of Posts may, upon evidence satisfactory to him that any person or company is engaged in conducting any lottery, gift enterprise, or scheme for the distribution of money, or of any i·eal or personal property by lot, cha.nee, 9r drawing of any kind, x xx forbid the issue or payment by .any postmaste1: of any postal money order or telegraphic transfer to said person or company or to the agent of any such person or company, xxx." The purpose of mail fraud orders issued under the above provisions is to prevent the use of the mails as medium fo1· disseminating printed matter which on, grounds of public. policy has been declared to be non-mailable (F<1,rley v. Heininger, 1999, 105 F. 2d. 79, 808 U.S. 587, 84 L. ed. 491). The object is not to interfere with any rights of the people, but to refuse the facilities of the post office establishment to mail matters defined as objectionable by Congress or found to be so by the postmaster general after hearing <Acret v. Harwood, D.C. Cal. 1941, 41 F. Supp. 492>. And lotteries, gift enterprises and other similar schemes are condemned by the statute because of their tendency to inflame the gambling spirit and to corrupt public morals <Com. v. Lund, 15 A. 2d. 839, 143 Pa. Super. 208>. As above provided, a fraud order may be issued against any person or company engaged in conducting a lottery, gift enterprises. or scheme for the distribution of money, or of any real or persona.I property by lot, chance, or drawing of any kind. The question, therefore, may first be asked, what is a lottery? The following definition is found in the decisions of the Supreme Court in the case of El Debate vs. Topacio (44 Phil. 278), thus: "The term 'lottery' extends t-0 all schemes for the distribution of prizes by chance, such as policy playing, gift exhibitions, prize concerts, raffles at fair, €tc., and various forms 0£ gambling. The three essential elements of lottery are: First, consideration; second, prize; and third, chance.'' (U.S. vs. Filart and Singson, 30 Phil. SO; U.S. vs. Olsen and Marker, 26 Phil. 395; U.S. vs. Baguio, 89 Phil. 962; Valhalla Hotel Construction Company vs. Carmona., 44 Phil. 288). I believe it the proper aPproach to the resolution of this case to address myself first to what you consider as the controversial point - whether the miniature Coc&-.Cola bottle may be deemed a priz.e in the lottery sense in this particular scheme where the same is being offered. If in the affirmative, then the inquiry can -go deeper to determine whether the elements of chance and consideration are present. As used in connection with anti-lottery laws, the word "prize" compn:hends anything of value ~ained (or, correspondingly, lost) by the operation of chance, or any inequality in nmount or value in a ,;chemc of payment of money 01· other thing of value as a resultcf the use of chance. · The gain need not be large to constitute a priz.e. The inequality may not be great, nor in favor of the- person selected by chance. It ma.y be against him. He need not lose all or gain all. Partial gain (oi: lose in the hope of gain) is sufficient to constitutti a prize (Equitable Loan & Security Co. v. Waring, 4•1 SE 320, 326, 117 Ga. 599, 62 L.R.A. 93>. It is not essential that the prize, if a money one, be a l!pecific amount <Commonwealth V: Wright, 137 Mass. 250, 50 Am. Dec. 306), or that the prize be money <Ste.te v. Hahn, - 72 P. 2d. 459, 105 Mont. 270), or have a fixed market value \New York City Alms House v. American Art Union, 7 NY 228), or that the value be previously fixed (Public Clearing House v. Coyne, 121 F. 927, 48 L. ed. 1092). The element of priz~ may exist in a scheme so arranged as to return to e.i.ch participant something of v:due, or even an tquivalent for all that he pays in <Fitzimmons v. United States, 156 F. 477, 13 L.R.A. [NS] 1095), so that, the fact that · there can be no loss to the participants iu a scheme does not prevent it from being a lottery when' there may be contingent gains rnalfock v. State, 20 A. 184>. It cannot be gainsa.id that the miniaturt: Coca-Cola botties al'c things of valtie. They are not things that come from nowhere but are manufactured at the expense of thousands and thousands of pesos tn the Coca ... Cola Company. Of course you are right in your observation that the value of these bottles should be considered from tho point of view of the general public to whom they are offered as an inducement, and not from the standpoint of the manufacturer. But there cannot be any doubt that those miniatures attract the public and are valued by them, especially the children. The fact that nc fixed monetary value can be attributed to them, since they -arc not regularly sold over the counter, is of no moment for it is not essential that prize in lottery, if other than money, should h&.ve a fixed market value CNew York City Alms House v. American Art Union, supra.). I am thus led to conclude that the miniature Coca-Cola bottles di.stl"ibuted in the manner and under the conditions described in the quoted port-ion of your letter are pri1.es in the statutory sense, which, if coupled with the other elements of chance and consideration, as hereinafter to be discussed, would constitute as a lottery the schemt: in which they are being offered. Let us now turn to the other two elements of a lottery - the element~ of chance and consideration. The inquiry would be much more difficult were I to attempt a reconciliation of t.wo apparently c•mflictiug decisions of the Supreme Court relied upon by you1· Office and the proponents of the Coca-Cola scheme. In the case -of U.S. vs. Oli-en and !Harker (3G Phil. :)95), the facts of which arf· too well-known to require their repetition here in detail, the Supreme Co111·t held that the scheme therein im·olved was not a lottery for the reason tha.t the purchaser of cigarettes obtains full value for his money, and that there was no consideration for the chance to win the prize which was merely incidental: In the later case of El Debate vs. ToJJacio 144 Phil. 278), one of the main issues before the Court was the question uf consideration. To the plaintiff's contention that there was no consideration aS the ps.rticipant received the full value of his money, the Court emphatically said that while t'his is true as rega~·ds persons who subscribe to the El Debate 90 THE LAWYERS JOURNAL b'ebruary ZS, 1954 regardless of the inducement to win a prize, it .. is faUadous as to other persons who subscribe merely to win a prize (and it is to such persons that the scheme is directed>, for a.s to them it means the payment of a sum of money for the consideration of participating a lottery." Rut µrescind ing from the apparent repugnancy between those two decisions, I have decided to pass upon this case in the light of the pronouncements of the Supreme Court in the "El Debate'' case, 11.ot only because it is the later decision, but more so for the reasons that, as in the instant. case, it construes the provisions of our Postal Law, while the "Olsen" case involves the application of the Gambling Law. Besides. this Offic!! has, in previous opinions, already stated that the "El Debate" decision is the controlling case in this jurisdiction on whether or not a given scheme constitutes a lottery, gift enterprise, or similar schem~ under the Postal Law (Sec Ops. Sec. of Justice, Nos. 87 & 184, series of 1950>. The a pplicable decision having been fixed and ascertained, I would tic stressing the obvious were I to discuss and belabor he1~in the fact that the element of chance enters into this scheme of the San Miguel Rrewery in the distribution of its miniature Coca-Cola bottles. It has been maintained in some quarters that chance is absolutely wanting as regards those who purchase Coca-Cola. by the case, on lhe assertion an<l upon the assumption that five bottles with marked crowns are invariably among the the twenty:four bottles contained in a case. nut aside from the obvious answer tha.t could be given - that the purchase of Coca-Cola by the case is merely an exception, purchase hr the bottle being the genernl r ule . - suffice it to cite t.he pertinent portion of the decision of the SuprE:me Court that in lottery under lhe Postal Law, •'the element of chance is present even though it may be accompanied by a.n element oi calculation or even of certaint)··" (El Debate vs. Topacio, supr.) Applying, too, the principle enunciated in the " El Debate" decision, I am also of the opinion that the basis of the Supreme Court in concluding that the element of consideration is Jll'esent in the scheme examined and considered in the said ca.se, may also be applied with equal force in the instant cas<'. Persons who buy Coca-Cola merely fo~ the chance to win a miniature C~ca-Cola bottle, not be'4:ausc of their desire for the drink, in effect pay a sum of money for the chance to patticipa.te in the scheme. <See also Ops., SN'. of Justice, Nos. 87 & 184, series of 1950>. Thus, the practice vf a bottler in stamping numbers under some of bottle Ci'OW!l!> and redeeming such crowns in cash in amount of numbers, in order tu advertise its beverages, constitutes lottery within constitutional and statutvry inhibitions. <Try-Me Bottling Co. v. State, 178 So. 231, 235 Ala. ?.07.> It is emphatically argued that to con3titute a. prize within the meaning of the anti-lottery statute, the value of the thing offered as prize must be greater than thr. value of the consideration paid fer the chance of winning the same. And upon this JJl'O position, it is v;g<:irously stressed that a miniature C<iea-Cola. bottle cannot be deemed a pri1.e on the alleged gioun<l that the value of said bottle is such less than the amount th(' public has to pay for the chance of obtaining it. The general premise may be right - that prizt: in lottery must be somethirig of greater value than the amount ventured therefore - but I am unable to subscribe to the conclusion deduced therefrom. Such conclusion ap11ears, to my mind, as basically fallacious and thi: fallcy stems from t he misconception that the public actually risks no Jess than fifty lF50> centavos - the cost of five (5> bottles of Coca-Cola soft drink - as consideration for the chance of ~btaini11g a miniature Coca-Cola bottle. The Coca-Cola soft drink, it should be remembered, has always been sold, both befcre and after the scheme in question was undertaken, at ten <r.10) centavos per bottle. Hence, it is evident that the fifty <P.50) centa.vos refened to by counsel for t he San 1\Jiguel Brewery represents chiefly the cost of five C5 l bottles of the Coca-Cola drink, and only a small 1 1 ortion thereof, uncertain ,:;.nd negligible though it may be, constitutes the consideration haz:lrded for the chance of winning the prized miniature Coca-Cola bottle. But ass11ming1 mllr('o\·er, for the sake of a rgument, that the scheme in questi.'m is not a lottery in the strict lega.I sense, it is at least a "gift enterprise" a.s the term is used in the aforecited provisions of thr Revised Administrative Code. Aga in, I find myself in this connection unable to agree with the theory advanced by the proponents of the scheme that a gift enterprise, to fall within the purview of the statute, must tic iu the form or llaturc of a lotlery with all its essential elements and mhercnt attributes. It. is universally recOgnizcd that for a lottery to exist, all three elcment3 of prize, conside1 ·ation and chance must concur. The statute could have simply mentioned "Lottel'y" as ground for the issuance of a mail fraud order a.nd that alone would be sufficient to embrace within its scope any and all schemes that involve the generally accepted elements of a lottery. But the law docs not confine itself to mere Jottery; it gnes further and mentions "gift enterprise" and "scheme flr the distribution of mo11ey, or of any real or personal property by lot, chance or drawing of :my kind" as among ~hose that may be administratively dealt with thru the issuance of a mail fraud c:rder. Consequently, to adopt the theory of the counsei for the San Miguel Brewery would be to reduce the above.quoted wor<ls to mere superfluities, and would premise the construction of the statute on the unreasonable presumption th:it thf! legisla.tmc has used thos<.: words in vain or left part of its enactment without E ense or mc.>aning. It is <in elementary rule of construction that effect must be given, if possible to every word, clause and sentence of a statute. A i:tatute should be construed 30 that effect is given to all its provisions, so that no part will be inC'pcrativc or superfluous, void or insignificant (Sutherland, Stat, Const., 3rd Ed, Sec. 4705, p. 339'. A "gift enterprise" in a bn1:i.d se11se is defined as a scheme under which presents a rl' given to purchasers of goods as a n inducement to buy <Retail Section. of Chamber of Commerce, etc. v. Ki('ck, 257 NW 493, 128 Neb. 13). In its widest concept. u "gift en:.Crp:·ioo" may or may nc.t involve the clement of chance. Statutes directed against a ll gHt enterprises whether or not the chance element enters into the scl.cme, have been held uncoustitutiona.l as invading property rights anrl the freedom to contract (24 Am. J ur., 474). The term, howl'ver, is used in om· statute in association with t he words "lottery" and ''scheme fo1 · the distribution of xx x by lot, cJiance, or drawing of miy kin<l'', . :m<l in tonsonance with the doctrine of ?10scif1u· a l:lO cifa, that tile 1m•a ning of particular terms in a statute i:;hould be asce1 te.ined by reference to words associatc•rl therewith <Virginia v. Tenn., 148 U.S. 503. 37 L. ed. 537) , the law evidently concerus itself with those species of gift. enterprises that. involve the lottery element of chance. In this restrictetl sense, therefore, a "gift enterprise" may be aptly defined as a schcm1' under which goods ar e sold for f.1 .eil' 11w.rkel value but by way of inducement each purchaser is given n cl>mice to win a. present or wize (Barke1· v. State, 1!)3 SE 605, 56 G. App. 7051. While it may be conceded that prize in stl'ict lottery must be something of greatt r value than the considcrntion risked t hercfol', the rule will not necessarily be true with res11ect to n gift enterprise where. as :nay be reasonably inferred from the definition oi the term, the t hing given as present or prize would ordinarily be of less value than the article bought. The prize may be of insignificant value as compared with the cost .:if the arti~le purchased, but so long as the distributi'l•~ of the pri~.e is dctcl'mined by lot or chance and the pri,w is offered as an inducement to buy, the scheme is a gift entel'prise within the purvitw of t he statute. Jt has also been held on good authority that, while it is impo~sible to lay down <Ill absolute rule as to what constitutes the distinction betwecll lotteries and gift enterprises, a plan will be considered within a statute against gift enterprises if it involves an award by chance without the consideration necessary to constitute the scheme a lottery <Crimes v. State, 235 Ala. I OZ, 178 So 73; Russell V. Equita.Ole Loan & Sec. Co., 129 Ga. 154, 58 SE 88, .:ited in State v. Fox-Great Falls Theater Corpora. tion, 132 P. 2d. 689, 694>. Thus, the operation of a so-called "bank night" by which a theater awal'dcd money, after the showing of a moving picture, by lot and i11 which the public could participate wit hout pe.ying admission 01' without entering the theater is, if not a lottery, at least a gift enterprise involving lottery principle within the meaning of constitutional provisions condemning lotteries and gift enterprises <City of Wink v. Griffith Amuseme11t Co., 100 SW 2d. 695; Sec also Barker "· State, l!J3 SE 605, 5G Ga. App. 706). AlJ things con~idered, it is my opinion that the scheme m question is a l.:ittery, or at least a gift •mtcrprise within the meaning of Sections 1982 :ind 1983 of the Revised Admiuistrative Code. Your query is thcrdore answered in the u.ffinnati\'e. Respectfully,· ROBERTO A. GIANZON Acti1ig Sec1·ctat;1 February 28, 1954 THE LAWYEHS JOURNAL 91 REPUBLIC ACTS <REPUBLIC ACT NO. 900) AN ACT TO AMEND SECTION TWENTY-EIGHT OF REPUBLIC ACT NUMBERED FOUR HUNDRED NINE, KNOWN AS THE REVISED CHARTER OF THE CITY OF MANILA. Be it enacted by the s~nate and House of Representatives of the Philippines in Congress assembled: $1'CTION 1. Section twenty-eight of Republic Act Numbered Four hundred nine, known as the Revised Charter of the City of Manila, is hereby amended to read as follows: SECTION 28. The Bureau of Public Schools.-The Director of Public Schools shall exercise the same jurisdiction and powers in the city as elsewhere in the Philippines, and the city superintendent of schools shall have all the powers and duties in respect to the schools of the city as are vested in division superintendents in respt;Ct to the schools of their divisions. "The Municipal Board shall have the same powers in respect to the establishment of schools in Manila as are conferred by law on municipal councils. "The clerical force and assistants and laborers in the Office of the Superintendent of City Schools !!hall be paid by the city, as well a.s the office expenses for supplies and materials incident ~ cnrrying on said office. The Municipal Board may provide for additional compensations for the Superintendent of City Schools and for other national school officials, teachers and employees in the Division of City SChools so that the Superintendent of City Schools may have a total salary equal to that of a city Department Head of the same importance and the salaries of all other officials and employees in the Division of City Schools performing similar duties and rendering the same kind and amount of work in the city may be equa.lized. For purposes of Republic Act Numbered Six lnmdred sixty, the combined salaries received from the National Government and from the city by the Superintendent of City Schools and other national officiala, teachers and employees in his office shall be considered as their base pay." SECTION 2. This Act shall take effect upon its approval. .Approved, June 20, 1953 <REPUBLIC ACT NO. 770) AN ACT TO CREATE A PURLIC CORPORATION TO BE KNOWN AS THE SCIENCE FOUNDATION OF THE PHILIPPINES, AND TO DEFINE ITS POWERS AND PURPOSES. Be it enacted by the Senate and House of Revl'esentatives of the Philippines in Congress Assembled: Si:CTJON 1. This Act shall be known and cited as ''The Science Foundation Act of the Philippinas". SEC. 2. The Vice President of the Philippines, the President of the Senate, the Speaker of the House of Representatives, the l't'lajority Floor Leader of the Senate, the Majority Floor Leader of the House of Representatives, the Minority Floor Leader of the Senate, the Minority Floor Leader of the House of Representatives, thE! Secretary of Health, the Secretary of Education, the President of the Manila Rotary Club, the President of the Manila Lions' Club, the President of the National Federation of Women's Clubs, th..? President of the Philippine Chamber of Commerce, the President of the Philippine Junior Chamber of Commerce, the President of the American Chamber of Commerce, the President of the Chinese Chamber of CommercP, Manuel V. Arguelles, Conrado Benitez, Agerico B. Sison, Antonio Nubia, Albino Sycip, Jose P. Marcelo, Gwnersir:.do Garcia and Manuel J. Felizardo, all of Manila, Philippines, their associates and successors, are hereby created a body corporate and politic in deed and in Jaw, by the name, style, and title of "The Science Foundation of the Philippines" <hereinafter called the Corporation). Vacancies among the above charter members shall bP. filled, and their associates and successors, shall be elected upon the sponsorship of any two of the charter members and the twothirds secret vote of the others thereof. The principal office of the Corporation shall be in the City of Manila, Philippines. SEC, 3. The said Corporation shall have perpetual succP-ss-ion, with the power to sue and be sued; to hold such 1·eal and personal estate as shall be necessary for corporate purposes, and to receive real and personal property by gift, devise, or bequest; to adopt ;i S('al, and to alter or destroy the same at pleasure; to make a.nd adopt the by-laws, rules and regulations not inconsistent with the laws of the Philippines, and genarally to do all such acts and things (including the establishment of regulations for the election of associates and successors) as may be necessary to carry into effect the provisions of this Act and promote the purposes of said Corporation. SEC. 4. The purposes of this Corporation shall be: (a) To initiate, promote, stimulate, solicit, encourage and support basic and applied scientific research in the mathematical, physical, medical, biological, engineering and other sciences, by means of grants, loans, and other forms of assistance to qualified persons and institutions applying for same; (bl To a.ward scholarships and graduate fellowship in the mathematical, physical, medical, biological, engineering and other sci<=nces; (c) To foster interchange of scientific information among scientists here and abroad; (d) To aid in the establishment. of adequate scientific labor:iio. ries; and (e) To encourage, protect and aid in the organization of science dubs and societies in the schools and colleges of the Philippines. SEC. 5. The governing body of Eaid Corporation shall consist of a Board of Trustees composed of residents of the Philippines. J uan Salcedo, Jr., Camilo Osias, Raul T. Leutel'io, Vidal A. Ta11, M. V. A1·guelles, Miguel Cuaderno, Sr., Agcrir.o B. Sison, Antonio Nubl:i, and Jose P. l\Iarcelo, shall consttitute the first Boa.rd of Truste<..s: Provided, That at all Limes the majority of the succeeding members of the Board of Trustees shaJI be persons holding positions in the Governmc11t. The members of th!" Board of Trustees und('r this charter shall be divided into tw.-, g·roups by lot. The trustees of the first group shall serve for a term of three years, and those of the second group, fo1· six years. Vacancies tha.t may occur in the Board shall be filled, and successo1·s to the first membe1·s of the Board of 'J'rustees, i.hall be elected, by the sponsorship of two charter members and the two-thirds S('Cret vote of t.he remaining charter members thereof. The Board of Trustees shall ha,,e power to make aud to amend the by-laws, and, by o. two-thirds vote of the whole Board at a meeting called for thif: purpose, may authorize and cam:ie to be executed mortgages and liens upon the property of the Corporation. The Board of Trustees may, by resolution passed by a majority .of the whole Board, designate five or more of their number to constitute an executive committee of which a majority shall constitute a qnonon, which committee, to the extent provided in said resolution or in the by-laws of the Corporation, shall have a..'l.d exercise the powers of the Board of Trustees in the managemerA pI the business affairs of the Corporation, and may ha.ve power to authorize the seal of the Corporation to be affixed to all papers which may require it. The Board of Trnstees, by the affirmative rnte of majority of the whole Roard, may appoint any othel' stand. ing committees, and such standing committees shall have and may exercise such powers as shall be conferred or authorized by the by-laws. With the consent in writing and pursuant to an affirmative vote of a majority of the charter members of said Corporation, the Board of Trustees shall have authority to dispose in any manner of the whole property of 'the Corporation. SEC, 6. An annual meeting of the charter members, their associates and successors shall be held once in every year after the year of incorporation, at such time a.nd place as shall be prescribed In the by-laws. Special meetings of the Corporation may be called upon such notice as may be prescribed in the by-laws. The number which shall constitute a quorimi at any annual or special meeting shall be prescribed in the by-la.ws. The Board of Trustees shall have power to hold their meetings and keep the seal, books, documents, and papers of the Corporation withiii. or without the City of Manila. SEC. 7. Any donation or contribution which from time to time may be made to the Science Foundation of the Philippines by the Government or any of its subdivisions, branches, offices, agencit>s, or instrumentalities or from any person or entity, sha.11 be expended by the Board of Trustees in pursuance of this Act. SE:c 8. Any donatioll or contribution which from time to time may be made to the Science Foundation of the Philippine!> shall 92 THE LAWYERS JOURNAL Feb!'uary 28, 1954 be considered allowable deductions on the Income of the donor or giver for income ta.x purposes; and other transactions undertaken !Jy it in p11rsuance of its purposes as provided in section 4 hereof shall be free from any and all taxes. SEC. 9. From and after the passage of this Act, it shall be unlawful for any person within .the jurisdiction of the Philippines to falsely and fraudulently call himself out as, or represent himself to be, a member of or a.n agent for the Science Foundation of the Philippines; and any person who violates any of the provisions of this Act shall Ce punished by imprisonment of not to exceed six months or a fine not exceeding five thouffi!nd pesos, or both, in the discretion of the court. S53. 10. This Act shall take effect upon its approval. Approved, June 20, 1952. <REPUBLIC ACT NO. 896> AN ACT TO DECLARE THE POLICY ON ELEMENTARY EDUCATION IN THE PHILIPPINES e,, it enacted by the Senate a·ud House of Representatives of the Philippines in Congress assemQ/ed: SECTION 1. This Act shall be known as the "Elemenhwy Education Act of 1953." SEC. 2. In pursuance of the aim of all schools expressed in section five, Article XIV of the Constitution, and as anlplified by subsequent legislation, it shall be the main function of the elementary school to develop healthy citizens ;:if good moral character, equipped with the knowledge, ha.bits, and ideals needed for a happy and useful home and conmmnity life. . SEC. 3. To put into effect t.he educational policy established by this Act, the Department of Education is hereby authorized to revise the elementary-school system on the following basis: The primary course shall be composed of four grades <Grndes I to lVl and the intermediate course of three· grades (Grades V to VJI). Pupils who are in the sixth grade of the time this Act goes i11to effect will not be required to complete the seventh grade before being eligible to enroll in the first year of the secondary school: P1·ovidcd, That they shall be allowed to elect to enrol m Grade Vll it they so desire. SEC. 4. The Seoretary of Education may, with the approval of the President, authorize, in the primary grades, the holding of one clmos, moming and afternoon. under one teacher. In the intermediate grades, classes may be authorized 011 the basis of two classes under three teachers or of three classes under five teachers. Where there is not enough number of children to meet the minimum requirements for organizing one-grade or two-grade combined classes, the Secretary of Education ma.y authorize the organization of classes with more than two grades each. ·SEC . 5. It shall be compulsory for every parent or guardian or other person having custody of any child to enroll such child " in a public school, the next school year following the seventh birthday of such child, and such child shall remain in school until the completion of an elementary education: Provided, however, That this compusory attenda.nce shall not b<J required in any of the follou•ino cases: First, when the child enrolls in Ol" transfers to a private school; Second, when the distance from the home of the child to the nearest public school offering the grade to which he belongs 1£::xceeds three kilometers or the :i;aid public school is not safely or cc.nveniently aceP..ssible to the child: Third, when such child is mentally or physically defective in which case a certificate of a Culy licensed 1ihysician or competent health worket· shall be required; Fourth, when, on account of indigence, the child cannot a.Hord to be in school; Fifth, when the child cannot be accommodated because of excess enrolment; and Sixth, when such child is being rei;ulal"ly instructed by its parent or guardian or private tutcn·, if qualified to teach the several branches of study required to be taught iu the public schools, under conditions that will be prescribOO by the Secretary o{ Education, Sfi3. 6. There is hereby authorized to be appropriated out of any funds in the National Treasury not otherwise appropriated, such sums as niay be necessary to carry out the purposes of this Act.. S53 .7. All acts or parts of nets inconsistent with the provi.sions of this Ael are hereby repealed. S53. 8. This Act shall take effect upon its approval. Approved, June 20, 1953. PAY YOUR INCOME TAX It's high time you think of your income tax. Lest, you forget. there arc new regulations governing this tax and for your benefit this paper is printing here the latest dope there is to it from the bureau of iuternal revenue. Here goes: "In connection with the filing of the 1953 income tax returns of both individuals and co1·porations, the following are being released for the information aJHI. guidance of the taxpayers concerned: 1. Rates of individual income tax- The rates on individual in· come tax for the ye&r Hl53 have reverted to the HJ49 rate as provided for under Republic Act No. 82 which took effect on January 1, 1946, because the effectivity of the rates provided under Republic Act No. 590, which were enforced from January 1, 1950 to December 31, 1952, has not bec11 extended by Congress. The rates applicable to income of individuals during the year lV53 are as follows: "For the ht 1'200 3% "f"2,000 lo P4,000 6% "'4,000 to f6,000 9% "P6,000 to PlO,OOU 13% "Pl0,000 to r20,ouo 17% "P20,000 to P30,000 22% "PS0,000 to N0,000 26% "'f40,000 to P50,000 28% "P50,000 to PG0,000 30% "f60,000 to P70,000 :32% "P'70,000 to P'80,000 34% "P80,000 to f90,000 36% ··f"9o,ooo to P100,000 38% "Pl00,000 lo P150,000 40% "Pl50,000 to r200,ooo 42% "f200,000 to P300,000 44'/v ··r:mo,ooo to NOO,UOU 46% "P400,000 to r500,ooo 48';0 "1'500,000 lo f"700,000 50'/c "!'700,000 to Pl,000,000 52% ··r1,ooo,ooo to r2,ooo,uoo 55'1& "P'2,000,000 op 6U'!o "2. Personal exemption- The personal exemption for single individual is Pl,800 and for a married person or head of a fa. mily, P3,000. The additional exemption for each child below 21 years of age is P600. No proportional exemption is allowed except when the ;,iatus of the taxpayer chaugcs during the taxable year by reason of of his death, "3. Requirement for filing - All citizens and resident aliens llaving a gross income of 1'1,800 or more for the year 1953 are required to file income tax returns on or before March 1, 1954. "4. Corporations-Corporations are required to pay for the year 1953 the rate of 20% on the first Pl00,000 net income and 28% on the excess over Pl00,000 of their net income. These rates have been extended UJJ to December 31, 1954 by Republic Act No. 868. "5. Withholding taxes on non-resident aliens and non-resident foreign corporations-The rates of withholding taxes are 24% for non-resident foreign corporations and 12 % for non-resident alien individuals, unless the income of the latter from Philippine sources exceeds Pl6,500 in which case the graduated rates under Section 21 of the National Internal Revenue Code will be applied. "6. Claiming the 10% optional standard deduction-ln lieu of all deductions allowed by law, an individual other than a nonl esidcnt alien may claim an optional standard deduction of 10% of the gros.s income of Pl,000-whichever is the lesser. The standard optional deduction cannot exceed Pl,000. Only one kind of deduction ean be claimed, either the itemized deduction or the optional. Both cannot be claimed. If both are claimed, whichever is greater will be allowed. "Taxpayers are requested to file their income tax returns as early as possible and not to wait for the last da.y for filing the same in order to avoid the rush and crowd· and in order to help the Bureau in processing their returns earlier. Likewise, it is CCu1tli11ued 011 page 94) ,)' February 28, 1954 THE LAWYERS JOUH.NAL MEMORANDUM OF THE CODE COMMISSION <Continued from tlte JIM1w1·y Jssu.e ) ARTICLE 522-Justice Reyes proposes that the words "after judicial summons" should be eliminated, because ra possessor, originally in good fa.ith, may become aware of the unlawfulness of his possession even before judicial summons, and if he persists in holding out against the person legally entitled to the possession, he should be liable for t he deterioration or loss. of .the thing. The reason for adding the words "after judicial summons" is hased on the following opinions of Manrcsa: "x x x. El art:'457 solo ticne en esta parte una cxplicacion posible, El Codigo llama poseedor de buena fe al que la ha tenido hasta el momenta ciel litigio, aun suponiendo que por la citacion picrda ese caracter, cosa discustible: sigue llamandole poseedor de buena fe para distinguirle de que siempre la tuvo mala o laperdio anteriormente. El art. 457 se refiere a ese poseedor de buena fe, que, ante el despecho o la con conviccion de 'pedder lo que se habia acostumbrado a mirar como suyo, intencionalment.e destruye la cosa, la oculta, deteriora, etcetera, en el periodo que media desdc la citacion ~asta la entrega, .cuando ya puede sostener~c que se poseedor de mala fe. Al~una. razon hay, porfue esta mala fe dudosa es obra de una ficcion, pues, en rca.lidad, hasta que la senteneia se hace firme, cl poseedor pued~ sequir creyendo que la cosa es suya; ta.I vez por eso solo pena el art. 457 en, ese caso, al dolo, la intencion injusta, el proposito de perjudicar." ARTICLE 562---Justice Reyes states that the description of "usufruct11 misses two fundamental characteristics, namely; that it is a real right, and that it is of temporary duration. These qualities are perfectly well-knowil and understood. At any rate, they are more properly to be dealt with in a treatise and not in a civil code. The emphasizing of the form and substance, which is also done in Art. 467 of the old Civil Code, is necessary because the usufructua.ry in the enjoyment of the property right go so far as to impair the form and substance of the thing. This abuse is all too frequent. TherefoL·e, rt is necessary to make an express limitation to that effect. Of course, title or the law may dispense with this condition, and so a statement to that effect " is made in this article. ARTICLE 587-Justice Reyes states that by translating "caucion juratoria" as me?·ely a promise under oath, .the idea of the Code of 1889 is left truncat~ and unintelligible. It beina- eYident that this Art. 587 h~s been taken from Art. 495 of the old Civil Code, and inasmuch as the "caucion juratoria" has a historic and established meaning in .. connection with said S:)UrcP <Art. 495 of the old Code) , then~· is no need of stating in detail the meaniD.g the promise under oath. ARTICLE 611-Justice Reyes suggests that this article be a_ mended to provide expressly that "successit·e usufructs shall not exceed the limits fixed by Art. 863." · Although the amendment is not absolutely nccesSary because, as Manresa says, a. successive usufruct "casi exclusivamente se constituye por ultima voluntad" and therefore the limitations fixed by Art. 863 in almost all cases of successive lisufruct applies, and although the principle of Art. 863 is applicable by analogy in cases of successive usufructs ~reated inter vivos, nevertheless for purposes of clarification in the rnre cases of successive usufruct created inter vivos, th<' proposal of Justice Reyes is accepted by the Code Commission. ARTICLE 613---Justice Reyes proposes that in lieu of "immoYable," th~ term should be "immovable estate." The proposed amendment would not improve the wording, if such improvement is necesPAY YOUR INCOME. . . <Continued froin J)(iye !:13> informed that the inventory list as required be filed within t hirty (30) days ·after the close of the taxable period of the taxpayer. With reference to the granting of extensions of time within which to file income tax returns, the general public is also informed that t he Bureau is· adopting a strict policy on such extensions· and only in meritorious case will such extensions be granted. The reques~ for extensions shall be filed directly with the Chief of the Income Tax . Division in duplicate and the approval sary, but no improvement or change is necessary because it is selfevident that an .. immovable" by destination, such as ma.chinery or, by a nalogy. like real rights over immovable property, can not bP. dominant or servient estates. 1 ARTICLE 621---Justice Reyes thinks that the words "forbade, hy an instrument a~knowledged befo1;e a notary public" ir& unpleasa.ntly vague. He says that, in the first place, it gives no clear idea of the content of the instrument to be notarized. Our comment is that the rest of the sentence under discussion clearly shows the content of the instrument. The whole sentence says, "x x x from the day on which the owner of the domiuant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing au act which would be lawful witlwut easement." Furthermore, J us ti cc Reyes asks, "How is the servient to know <lf the prohibition?" He, therefore, suggests that document must be served upon the owner of the servient estate. Our observation is that there ·is no necessity for any exprrss provisi6n that the instrument should be served because the words .. the owner of the dominan" t estate forbade" perforce. require that the instrument be served. How can it be .reasonably conceived that there could be a prohibition unless it is conveyed to the owner of the . .servient estate? ARTICLE 624---Justice Reyes i:ecommends that the word "continued" on line 4 should read .. be exercised." His J"eason is that while both estates belong to the same owner, there can be no easement. It is true, strictly speaking, that there is no easement under Art. 613, which requires that there be two owners. However, this is a special kind of an easement which is created by a special situ&tion. ]t will be noted, in this connection, that the first two lines of Art. 624 refer to "the existence of an apparent sign of easement between twu c11tates established or maintained by the owneL: of both." There is no intention in. t he Article to imply that an ordinary easement exists, because it is expressly stated that the easement is bet1veen the two !:!Slate; cstablishd or maintained by the owner of both . . Therefore, the Code Commission tfocs not agree with the proposed amendment. ARTICLE.G26--Justice Reyes makes these observetions: "Why limit the easement to the tenement (not immovable, see comment ~ GlS) originally contemplated? So fong as the burden is not increased <as it is pro'hib1ted by Art. 627) what does it matter that the domina~t estate is enlarged·?" As already stated, the article under consideration is not taken from any provision of the old Civil Code. It does not apply to a case where, for example, in an easement of right of way, the doniinan estates is enlarged. It is an embodiment of the following observations by Manresa: "Solo pucdc usarse la servidumbrc pa.ra utilidad del predio o de la parte de predio en cuyo favot· fue establi:cida, y en el mod<1 Y forma que resulte del tit.ulo, de la costumbre en el caso de poSC'Sivn y .prescripcion, cua:1do esta sea admisiable, o de fa lcy quP. limita la servidumbre a lo estrictamente necesario para el destino y el conveniente uso .de! predio dominante con el menor dafio posible para el sirviente. Asi, en terminos generales, el qlle tiene de-r·echv a tomar ngiw. 7mra el riego <le to<la :m fincn o una partc ([c elfo, no piude ~le6tinorl<i ul rie110 de otra fincn o de ot1'<~ parcion." <Vol. 4, p. [J73J. ARTICLE 657- Justice Reyes :;uggests a n'<irafting of this article as follows: '" Exii;tin~ easements of right of way for the passage of an<l dii:;aJJIH·oval will be stamped on sud1 rL><1ucsts upon 1nes~11 ta tion to this Office. "The filii1i; of the IU53 4th quarterly return 011 withholding tax, f•'orm. W-1, together with the filing of the alphabetical list of t,mployees, and of Form W-3 will be on or before January 31, 1954. "The last day for fi ling of income tax returns covering all incomes earned in Hl53 is March 1, 1954. <Sgd.) SILVERIO BLAQUERA Deputy Collector of Internal Revenue" 94 THE LAWYERS JOURNAL February 28, 1!:154 livestock shall be go,·erned by the ordinances and 1·egulations relating thereto, and in the absC'nce thereof, by the usages and cust~ms of the place. ' "Whenever it is necessary to establish hereafter a compulsory easement of right of way or for a watering place for anin\3.ls, the pr<::>visions of this Section and those of Articles 640 and 641 shall be ob$ervcd. In this c<1sc the width 6hall not exceed JO meters." The Code C:.:mmission disagrc<!s with the proposal, Oecause it i.s 11eccssa1·y lo retain paragraph 2 of the at·ticlc in question, which fixes the width of animal paths and animal trails. This should be done, regardless of any historical b2ckground in Spain, because it is desirable to fix a maximum width for animal paths and animal trails, otherwise the casement, if it is loo wide, may be preju&icial to landowners. ARTICLE 668(2)-Justice Heyes states that express referen~c to Art. 621 is necessary to clarify the meaning of the phrase "formal prohibition." However, such express reference is not necessary because Justice Reyes himself says, "Obviously this means the notarial instrument provided for in Art. 621.'' ARTICLE 669-Justice Reyes states that. to impose a 30 cm. sq. limit on wi11du.vs is ••to undermine the well being of household uwners.'' Iu the first plact!, thest! al'e not. wi1 1d1Jws but mere upen?ugi; to admit light at the height of thi.l ceiling joil>tf> or immediately under the ceiling. It is very evident t hat openings at such a height, that is, immediately under the ceiling, a1·e no~ intended as windows for people to look through or get fresh air, but they are merely, as-the article itself says, "openings to admit light." In the second place, to increase the size to "not less than one meter square" would be dangeJ'ClUS because the wall where· the opening is may be just a iew inches from, (lr iu fact, it may be on the boundary line, as At t. 66:> applies only when the distances in Art. 670 are not obterved. ·<That is to say two meters for direct. views 01· 60 cm. for mdirect views.) This being the case, even if there is an iron grating ~s wtll as a wi!"e screen, it would be easy for thie\1 es and other persons criminally inclined to dcsfroy the grilles and the wire screen in order to go th!·ough the opening. which would be large enough 0 to allow a person to go through. ARTICLES 6•i9-672;· 674; 677-681·-Justice Reyes says that these articles do not rcfe1· to easements b11t to restrictio11s of the right of ownershi p and should be 11laced elsewhere. He refers to his notes to A1·t. 431. . \Ve alSQ l'efe1· to our observations under Art. 431. And also ·to our comment on Art. 1)82 and 683 immediately following. ARTICLES 682 and 683-Justice Reyes hclie"es that these articles on easement against nuisance arc improperly placed in the chapter on "Easements." However, we l>clicve that this i.<; the most logical place for these articles, for t.lu!Se reasons: I According to our comment on lhe 11roJJ01>ed amendment to Arl. 431, no sc11a1·ate chaph!•' on the limitations of ow11crship shuuld be incorporated in the Code. In addition to the reasons already set forth under Art. 431, 'we submit th!lt in such proposed sei)arate chapter on limite.tions to ownership, in ordc1· that it may fully serve its purpose ull the li1nitations of ownershi11 1nust be stated a11d explahied. Now, according to Sanchez Roman, there are many such limitations, and he outlines them as follows: LIMITACIONF.:S DEL DOMINIO. Cuntenido de la relacion juridica, DOMINIO POR HAZON: "I. Del dominio eminente del Estado: a. lmperio general de las !eyes. b. Mes especial y concreto de los reglamentos y ordenanzas. c. Servicios fiscales. d. Expropiacion forzosa y otras formas de utilidad pubtica. c. Scrvidumbres legales. f. Explot.acion del subsuelo. "II. De la volunt.id del transmitente: a. Por contrato. b. Por ultima voluntad. "Ill. De la propia voluntad de! dueiio. (c1·eaci011 de los rlcrechoe realcs llmitativoti de\ dominio.): a. Scrvidumbrcs: Reales. Pc1·sonales. b. Censos: .Enfilca tico. Consignativo. Reserva.t ivo. c. Hipotcca. d. Prenda. e. Superficic. f. Refracto. g . lnscl'ipcion crrendaticia. .. IV. De un conflicto de derechcs pat'ticulares: a. Los nacidos de la posesion civil. <Vol. a, p. 93) In order to make the proposed chapter .S{!l"ve a useful purpose, it would have to he drafted and developed in accordance with the foregoing outline. The result would be that p!'sctically the rest of the Code concerning casements, usufruct, mortgage, pledge, redemption iretracto) and lease recol'd, as well <is 1 msscssion, would have to come under the char)tc-r. In addition all the subjects· coming under Numbers I and II of Sanchez Roman's outline refel'ring· to the "Dominio emi11cnte de! Estado" and "la yoluntad de! transmitente" including contracts and wills would also logical!ly come within the chapter. The result would be fantastk! 2. There is nothing absolute and definitive about the propriety or impropriety of using the term .. easement." or "servitude." For example, J.fanresa clnssifies usufruct as a "servidurnbre personal"; tllen Art. S::H of the old Civil Code provides: "T&.rnbien pueden estabkcerse scrvidumbres en prnvecho de una c mas personas, o de una comunidad, a quiene;; no pel'tePCzca la finca grava'da." - 3. In English and American law, casement and nuisance a.re dealt with together. Tiedeman on Real Prnpcrly says, under the h<·ading of "Easements," <Sec. 622. p. 596): "Le9alized nuie«nces.Where on~ acquires from the owners of the land in the neighbOrhood by grant or prescription the right to do things which without such license would be a nuisance. and for which an action would lie, he is said to have acquired an <:111seme11t fo the lands lo commit the 1mi~ance, fret: frNn liability for t.l1e consequences.'' Jn the "Engliah and Empire Digest," vol. 1(), lljl. 178-179, under the subject of .. Miscellaneous Easements," we read: "By lapse _ of time, if the owner of the a.djoining tenement, which, in the case of light or wnter, is usually called the sel'vient tenement, has not resisted for twenty years, then the owner of t he dominant tenrmcnt has acquir<.!<l the right of discharging the gases or fluid, or sending smoke or noise from his tenement ove1· the tenement of his neighbor.'' ART/ CLf..S 684-687 Justice Reyes says t hese articles do .not create an casement. The 1·cmarks just submitted ure also applica.ble to these articles ott "Lateral and Subjacent Support". Jn the Ame1 ·ica11 and English law .. lateral a nd subj&eent support" is considered an easement. TiedPman on Real Pl'operty, sec. 618, pp. GVU-G!H, under the t<'pic of "Easements," says: "Right of lalerul and subj«cent supiiort. - As an incident to the right of property in lands, the proprietor cannot make excavations upon his land, which will deprive the a.djoining land of that lateral support which is necessar)' to keep it from falling in. In ihe same mannel', where there is a separate ownership in the surface, and the mines beneath, the owner 0£ the mines cannot, by working them, so weaken the subjacent suppol't to the surface as to cause it to cave in. The cases are numerous i11 which the right to lateral and subjacent support is claimed and conceded, and the general principles determine the character and limitations of both kinds of support. These arc naf'itral rights of t:asements, which arc independent of any covenant or grant." Likewise, the "English and Empire Digest," vol. 19, pp. 172-174 deals with "Easement of Support". And the same volume, r 8, quotes Lord Shclborn in one case Ums: "From the view which I take of the nature of the right to support, that it is an eas1mumt, not purely negative, capable of being granted, and also capable of being interrupted, it seems to me to follow that it must be within Prescription Act, 1832 (c, 71), S. 2, unless that section is confined to rights of way and rights of water. February 28, 1954 THE LAWYERS JOURNAL 95 l'x xx l think it Is clea.r that any such right of support to a building, or a part of a building is an easement xx x." Lastly, Sec. 801 of the California Civil Code provides: "Servi. t.udes a-ttached to land. The following land burdens, or servitudes upo11 land, may be attached to other land as incidents or a.1>purLenances, and are then called easement&: "la. xx xx the right of receiving more than natural support from adjacent. land or things affixed thereto." ARTICLE r.92 .Justice Reyes says: "An easement acquired by prescription c&n not be called voluntary, because precisely it is acquired against the will of the owner. This Article logically belongs to section 3 of Chapte~ 1 entitled 'Rights and Obligations of Owners of the Dominant And Servant Estates." This article is an exact re1iroduction of Art. 598, old Code. Attention is invited to the words "in a proper case" under Art 692. vn the first line. Suppose ''A" and "B" enter into a contract whereby "A", the owner of the dominant estate, acquires a right of way through the laiid of "B" for purposes of merely hauling crops and transporting agricultur~l implement.s, such as plows, hai·rows, etc. Later on, "A" establishes a large factory, and he uses the right of way without any authority from "B", for large trucks everyday for hauling the goods manufactured. If this unauthorized use of the. right of way continues for ten years, this ne.w method of using the right of way is acquired by prescription, under Art. C:32, although the original easement has been Cl'eated by contract and is a voluntary easement. This is the interpretation of Sanchez Roman (Vol. 3, p. 648) who, not finding Article 598 misplaced, says: "El regimen juridico por el que se gobierna el contenido de la relacion juridica de servidumbrc, cuando son de la clase de las vobmtu.rias, es el asunto de! art. 598, segun el cual ha de atenderse: primero, al titulo de su constitucion; segu11do, en su caso, a la posesion de la servidumbre adquirida por prescripcion, toda vez que, segun el art. 547, por este medio se adquiere, no solo la scrvidumbrn misma, sino la form.a de prestarla; y tercero, en .defecto de los anteriores ol'igenes, ha de atenderse a las disposiciones de! Codigo que le sean aplicables. En todos estos casos, bajo el influjo de la limitacion general de no contrariar a las leyes ni al orden publico." ARTICLE 694 (5) Justice Reyes states the hindrance or impairment of the use of the property should be qualified by expressly providing that such hindrance or impairment is not authorized, or is excessive or unreasonable or unnecessary. Such an addition would indeed be "excessive", or "unnecessary" because the word "nuisance" implies ex vi termini that it is not authorized, or is excessive, unreasonable or unnecessary. Besides, attention is invited to the following words in Art. G95: "a.lthough the extent of the annoyance, danger 01· damage upon individuals may be unequal.'' Lastly, the very words "hinders or impairs" imply that the act of the defendant is unauthorized, or is excessive, unreasonable or unnecessary, otherwise it would neither be a hindrance to, or an impairment of, the use of property. Title ix. Registry of Property Justice Reyes suggests that an article be inserted requiring the registers of deeds to keep a special book for recording of contracts of marriage settlements. Although this should be the subject of an amendment to the special laws concerning registration of property, however, for purposes of clarification, the proposed amendment is accepted. CONCLUSION The foregoing obser~ations .on the proposed amendments to Book II of the new Civil Code are respectfully submitted to the code committees of both Houses of Congress. The Code Commission earnestly hopes that said observations will be given due anr\ careful consideration not only by the committee members but also ' by th(; Congress as a whole. If t his is done, we are confolent that only those amendments will be made which have been accepted or initiated by the Code Commission. We respectfully urge that with the exceptions just mentioned, the new Civil Code be left intact for the next two years, for these reasons: 1. The legal profession needs at least two more years to meditate upon the philosophy of the reforms, most of which are very ne'v to the majority of lawyers, judges and law professors. Very few _ of the legal profession have read the new Code entirely. 2. Many of the proposed amendments stem from the natural reaction to an innovation, especially because the legal profession ail over the world is conservative. But most of these "innovations" in the new Civil Code have been derived frQm the laws of other countries which they },ave by experience understood the justice and wisdom of the provisions. 3. Other suggested changes on the new Civil Code are due to a mistaken interpretation of the article in question, as already shown in this memorandum and in the previous memoranda as well as in public hearings heretofore held before the code committees. 4. Still other recommended amendments seek to fill gaps. The existence of many gaps in a civil code is inevitable. No civil code in the world can cover all possible situations. Even the longest civil code - which is that of Argentina - ha.s not been able to forsee the numerous doubts that have arisen since its enactment in 1869. The same thing can be said of the Spanish Civil Code of 1889. It is of the nature of a civil code that is only the ha.sic private law. Details are furnished by special laws and court decisions. A legal system gradually built up by the courts upon the foundation of codes and statutes is the best and soundest type. 5. The new Civil Code of the Philippines shOuld be improved and developed as the other civil codes in the world have been improved and developed: by interpretation through judicial decisions. Such an interpretation is the wisest and most advisable because the solution comes, not from mere abstraction or theory but from reality. 6. Only a very small portion of the legal profession has coml' f.orward with proposed amendm~nts. Only two jurists have sug. gested changes. But by waiting fol' two more years, the code committees of Congress would hear from other jurists, and from the legal profession as a whole. Thus, the code committees would ha.ve bdore them at least four or five t.imes more than the number of amendments now suggested. In this way, the code committees would have a more comprehensive view of the orientation of how and on what bases the new Civil Code should be amended. 7. If Congress should effect a gener:d overhauling of t he Hew Civil Code during this session, there would be a. tendency not to undertake the study and consideration of other amendments submitted by the legal profession during the next two Qr three years. Many of the future proposed amendments will likely be better than those already submitted to the code committees of Congress because the .Jcgal profession will have had more time to reflect on the new Code. But such coming proposed amendments will probably not be taken up. So it would be advisable to wait at least two more years, so that when the Congress is 1:eady to undertake a broad revision of the new Civil Code, the better future recommendations will be studied. 8. The Code Commission has accepted or ii;iitiated many amendments. It is earnestly submitted that considering the seven f'lregoing reasons, such accepted or initiated amendments should be the vnly ones to be approved during the current session. Manila, February 17, 1951. Respectfully submitted, JORGE BOCOBO Chail'man, Code Commission "The trouble is that lawyers necessarily acquire the habit of assuming the Jaw to bf, right.. It is their business to advise p<'oplc what the law is and to endeavor hi defend people in the exercis<; of their legal 1·ights. As a rnle, the pure lawyer seldom concern! himself about the broad aspects of public policy which may show a law to be all wrong, and such a lawyer may be obvious to the fact that in helping to enforce the Jaw he is helping to injure the public Then, too, lawyers are almost always conservative. 'fhr(lu.l{h insisting upon the maintenance of legal rules, they become instinctivdy opposed to changed, and thus al'C fre<1l!.ently found aiding in the a>isertion of legal rigl1ts under [(.!.IVS which have once been reasonablf' and fair, but which, through the process of social and business development, have become unjust and unfair without the lawyers seeing it. I am c'lnscious that I have myself al'gued cases and drawn papel's anrl given advice in striot accordance with laws whose wisdom it had nevea· occurred to me to question, but which T should now, after many y13ars of thinkini what the law ought to De, condemn." - Letter, November 16, 1906 to Gen. John C. Black of the U.S. Civil Sen ·ice O:imrn.: 111 <111oted in I JesBlllJ, ELiho; Root, png8 208. 96 THE LAWYJ!:RS JOURNAL Februe.ry 28, Hl!:i4 PUBLIC CORPORATIONS (Conti11w .. d f1·om th.; JuJuwry l ssw;) (§214) 2. Stottttory provisions a.s lo "fiesta" in Philippine sary or indispensable to the exercise of those expressly given, it 11 mnit:ivalil.ics in rcyula'r provincea. has been held that a municipal corporation has no power to en"Celebr«tio11 of fie8t.<1s. A fiesta may be held in ea.ch municipality gage in a11y priYate business, however desirable or convenient it not oftener than once a year upon a date fixed by the municipal may seem to be, or to manufacture articles necessary for its lawcouncil. A (i('sta shall not be held upon any other date than that iul enterp1·ises when they are in conlmon use and are to be had 11',wfully fixed therefor, except when, for weighty reasons, such in open market. The prineiple of striet eonstruetion of grants as typhoons, inundations, earthquakes, epidemics, or other publie of municipal power is sometimes said to apply with special force calamities, the fiesta cannot be held in the date fixed, in which to statutes enabling municipal eorporations to enter into commercasc it may be hclii at a later date in the same year, by resolution · cial activity. Under this view, it has been held that a municipal o( the eouncil."41 corporation ·cannot own or operate a st.one quaHy to furnish pa"Clianyi11g date of fiesta. A municpal eouncil may, by resolution passed by two.thi1·ds of all thfl members of the council, change the fixed date for the celebration of the fiesta; but when the date ha!'! been once fixed by the municipal council, it. shall not be ehangcd '"ith greater frequency than one in rive ycars."42 ''Fixrn.<1 rltHC of fi1'stu .. In fixing or changing the date o! the fiesta. the munieipal council shall give prefucnc~ to a date which, by reason of an important event in the municipality, the province, the Philippines, and in gencrnl, in the history of the Philippines, may be considered memorable and worthy of being commemorated by a }{!Cal !icsta."43 (§215) G. E'11yogi119 i1t bu.~i1tess enttrvriscs. _ 1. l 1l ye11enil. "Some authorities have slated broadly that the .stnte ha.s no power to authorize a munieipal co1·poration to engage in a business of a private nature. It is generally considered that in the absence of special circumsta11ces it is not within the constitutional 1 >ewcr of the legislature le authorize a municipal eorporntion to engage in a business which ca.n be and ordinarily is carried on by private enterprise, without the aid of any francb.ise from the g•wernment, merely for the purpose of obtaining an income or derivJ;1g a 11rofit therefrom. Although it might be designed and cx1iected that the rcturns from the business would cover the expense, and perhaps produee a profit and thus reduce the burden of taxation, it. would be im1iossiblc to foresee the actual result, and since, if the business should 1irO\'C unsuccessful, the deficit would have to be made up by taxation, il statute authorizing a nwnicipe.1ity to go into a pri\'atc business io objectionable as bringing about the possibility of taxa tion for a 1mqiose not public. Thus, it has ht.en denied that a state legislature has powc1· to authorize a municipality to maintain an clc\·ator or warehouse for the public storage of grain; to conduct a mu!:!cipal motion-picture theater; to engage in the plumbing busincs~ and the sale of plumbing supplies; or to establish manufactories on its own aecount and operate them by 1mblic offieers. A nnmieipal corporation is allowed to go into business only on the theory that. thereby the public welfare will be obscncd. So far aS gain is an object, it is a gain to a public body and must be used for publie ends. More recent cases, although reasserting the rule, indieatc a tendency to broaden the scope of th"se activities whieh may be classed as involving a public purpose in which a municipal corporation may lawfully engage. A municipe.lity exercising a part of the sovereign power of the state which the Constitution has not curtailed may, if the public interest se> requires, constitution:illy engage in a business commonly carried on by )Jrivatc cntt:•·prisc, levy a tax: to support it, and COlllJh~tc with private interest +..ngaged in a like activity. The state may le.wfully authorize munieipal eorporations to own and lease manufacturing enterprises for the purposes of relieving unemployment and utili;r,ing t..hc raw materials of the state, although under ordinary circumstances t.his power has been denied. Such a stat..utc has been held not, to violate due process under state and Federal Conslit..utions or to violate a constitutional provision that private pru11e1·ty shall not be taken or damaged for public use except where compensation is first m~dc to the owner. "Under the view that a municipal corporation has only the )Jowers expressly given or thos<' implied powers which arc neces. ~I Sec. 2282. Rev. Adm. Code. •2 Sec. 2283. fte,·, Adm. Code. o S.c. 228~. Rev. Adm. Code. ving material fo1· its sti-eets, nol· maintain a plant for the manufacture or brick to be used for paving its .streets, nor operate or condu<:t a private garage businesa: in the basement of one of its public buildings. A municipal corporation cannot engage in the business :>f buying and selling real estate, or in erecting buildings to gain an income by renting them. 1f a projeet of a municipal c~rporation is merely colorable under the pretense of actual authority, but is intencli?d to promote some private 01· unauthorited purpose, it, will be declare·d illegal. There is a recent authority, however, holding that a municipal <'Orporation may erect property for rental purposes where t..he legislature has declared such activ. ity to \Jc a public purpose. On t..hc other hand, under the viPw that implied powers need not necessarily be indispensable to the 1.;xercise of th()SC expressly given, it has been held that the powt<r t-.• own and operate a stone quaiTy may be implied from the ex • JH'ess 1iowe1· to grade and pave streets and to own and hold real estate. Likewise, the power of a municipal corporation to operate a nursery to provide trees and shrubs for its parks and public grounds may be implied from express power to acquire, improve, and maintain nmnieipal JJarks and play-grounds, and to acquire )and which is ust'ful, or advantageous, or desirable for municipal purposes. Municipal power to engage in certain other enterprises is discussed under ot..her titles and in other divisions of the present adiele. "Aceording to !'Ollie authorities. where as a 11cccssary res~lt (,f earryin~ on a legitimate public cntet·p1:isc iu a reasonably prudent manner, a surplus of the material used ol· dist..ributed is acquired or a bY-JH'oduct created, a municipal co1poration may lawfully engi:g:c in the business '.lf di~posing of sueh surplus or byJ•l'Uduct for profit, without spceial legislative authorit..y. '"When e. municipal COl'J)Orntion eug:iges in an activity of a business natur<', sueh as is generally engaged in by individuals c'r private co11iorations, rather than one of a gove1 nmental nature, it acts as a corporation, and not in its sovereign capacity."44 I~ :!IG,l 2. Sulc of co11w~odilies to 1mblic. "It was, until very reecntly at l"ast, looked upon <IS a well-est.ablished priuciple of Jaw t,hat. a 111u11icipal corporation could not constitutiom:.lly be au. thorir.ed b;v the legislature to engage in the business of selling and 1 1isfrihuting to its inhabitants, at reasonable rates an:l without dis<:rimination, th<' conveniences or eYen the necessities of life, if the business was of such a n~ttfrc that it could be and ordinarily was carried 011 by private individuals witliout the aid of any franchise from the :il:m :. It w11s for this rc;ison that. it. has been held t hat it. is not. within the power of the legislature to authorize municipal corporntions to este.blish fucl .iaids and to purchase eoal and wood to resell to their inhabitants, even at a time when fuel is scaree and the price are high, so that. the cost to consumers might b"! expected to be reduced by such an undertaking on the part of the municipality ; the manufact..urc of ica by a town and it.s distribution among the inhabitants 11as been held to be equally objectionable. "There were, from the beginning, some. exeeptions recognized to the rule which made it unlawful for municipalities to engage in a business which could be and ordinarily was carried on by pt·ivale citizens without any franchise from .the state, Thus, the t<stablishment of markets by municipalities, and th<: building of markets houses with a view to leasing the stalls therein to indiviH 3? Am. Jur. 746·?48. February 28, 1954 THE LAWYERS JOURNAL 97 dual de:ilers ln meat and provislou!:I, has the sanction of almost Immemorial usage, and it is now tc-:l late to contend that it is unconstitutional. Even the comts which deny the power of the legisl:\ture to cstc.blish municipal fuel yards concede that if a condition arose in which the supply of fuel would be so small, and the difficulty of obtaining so great, that persons desiring to purch?,SC it would be unable to supply themselv:es through private enterprise, since it is conceivable that agencies of government might be able to obtain fuel when citizens generally cvuld not, the government might constitute itself an agent for the relief of the community; con!.equently, the money expended for the purpose would be exjlended for public use. Some judges have taken an even rnorf'.' advanced \'iew, and have insisted that when money is taken to enable a municipal body to offer to the public, without discrimination, an article of general necessity, the purpose is no less publfc when that article is wood or coal than wh• m it is water, gas, ekctricity, or education, to say nothing of cases like the support of paupers and the taking of land fox rnilrClads or public markf.'is. Other courts, while perhaps nol going so far, nor conceding that a. ;nunicipality mig·ht be authori1ed to engage in every form of commercial enterprise which invobes the fale and distribution of a public Hecessity, ha''£ considered that such c-::immodities as ice and coal, in the sale of which com!)etition is 11ecessarily not as free and untrammeled as in ordinary articles of commerce, ori account of private contnll 'Jf the limited sources of supply, fall within the cl.;ss of the proper subjects of municipal dealing and traffic. A municipal 'charter :rnthorizing the city to engage in the busi!1<;.ss of selling gasoline and oil to its inhabitants has been held not to '·iolate the Fourteenth Amendment to the Federal Constitution or the state constitutional provisions relating to the control of busine:os affecting public welfare."45 <§217) 3. Tourist or trailer crnnps . .. The operation of a tourist r.amp, whet.her the municipal corpcration receives any compensation therefrom ur not, especially where the inhabitants of the corporation are excluded, is not a public busiuess, and the municipality cannot exuend money in the purchase of land for such a camp. However, it has been held that maintenance of a tourist camp i~ a municipal p<!.rk is .not a diversion of property devoted to park purposes, and statutes authorizing the establishment and maintenance of tourist or trailer camps are becoming more frequent, a11d their validit~'. in som<' instances has been assumed.''46 <§ 218) H. Fire reg1tlalion11. - Jn general. - a. Generally in the exercise of their police powers municipal corporatio~is may enact such 1·egulations as are necessary for the preventiun of, and protection from fires. 47 "A quaint s!atemenl of the r11!e is that found in Bacon's Abridgment; it reads thus: 'so if a !:>y-!aw be made in London, that none shall make a hot-press, nor use it within the city, under the penalty of 10, for the making thereof, and 5 for the use thereof, this is a good by-law; because the use of those presses is dangel"Ous with regard to fire, and also deceitful, inasmuch as they ma.kc dothes and stuff look better to 'the eye thun in truth they arc.'' 2 _ 1 bl'idy. 147."48 And it is the duty of municip:tl corporation to enact :,uch r(,gulations. " The corporate authoriti~s may fix what is known as a fire district and forbid the erection of wooden buildings therein. 1\o town or city, compa.ctly btiilt, can be said to be well-ordered or well-regulated which neglects JH'ec<rntions of this so:t. It is its duty to the public to take such measures as may be practicable to lessen the hazard and danger of fire. The public good and safoty arc superior to the individual rights of the inhabita,1ts, and u11der this principle such i·egulations are not the divestiture of the individual right of ownership and use, but is only c.::.nforming the use of individual property to the necessities, safety, and interests of the publir. It is a regulation of its cnjoyment."40 While some decisions consider or refer to this power as inherent in municijJal corporatiuni;, it, nevertheless, usually exists by rcas'Jn of an express grant ur a neccssal'ily implied statutory or constituticnal delegation. The reasonable view is that., like ~·111·.;4h-0Ml. 16 37 Am. Jur. 7&2. ·10 F11bic \'. Manila, 21 Phil. 486. 1<! Cl11 1·k v. South Bc11d, l:iG lnll. 2i6. Am . 1.1. 19 Monro.: ,., Hoffnrn.,, ~9 LH: Aun. 6&1. 29 Am. other municipal powers, lt may be impli_ ed. But the corpcration cannot exceed the authority given or gr.!l.nted by statute or chartc1·. Fire municipal regulationi: must be reasonable and not arbitrary; but the courts will not declare such regulations unrca.sonab!e, unless in clea!· cases of abuse. The t,ower to prevent fire carries with it the right to employ the . most effective means to that e'ld. In the exercise ,1f the power the er~ction or use of buildings for th~ purpose of a more or less dangerous character may be prohibited. Where the statute or charter 1·1rnmcrates the means by which the municipal authorities may provide :for t he prEventio11 of, and protection from, fires, and also authorizes for the regulation by other means of preventing and cxtingui.,hing fires as the municipal authorities may direct, it is held th::it the means particularly specified are not exclusive, and that thC' residuary clause is not to be co11strued according to tl1c l'lll<' t}nsdcm y.;m eriH as limited to .things of the same kind as those specified. The specific right conferred by statute to regulate and restrain the crectio!l of wooden buildings is not a limitation upon the municipal power to take reasonable means for the pre\'cntion of fire by exercising supervision ove1 the erection of other buildings. Statutes empowering municipalities for the prevention of fires to regulate buildings and to pr~scrib,: penalties for viGlation of such regulations, arc consitlered -.s penal and in derogation of the common law, and, :is a general rule, arc strictly construed.50 Under charter giving power tc insure safety of the public from conflagrations, a municipal council may require by ordinance that buildings for theatrical and cine;nat.:igraph performances . !\ml exhibitions to be built Or concrete, reinforced with steel and to be equipped with not less th?~n six exits.51 [§ 219] b. Statut<Jry stflf.cment as tu Philippine mwucipal curporations. - (1) Munidpalit.ies i"t 1·t9u.lar pro·vi11ces. "The munipal council shall have authority to exercise the following discre. tionary powers: "(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be con1:1tructed er repaired within them.,. r§ 220] l2) Municipalities .;,~ speci:llly (Jryani;;ed provinces. '"The municipal council shall have p11wer by ordinance or ·r~solution: "(iJ Building rc91dations. - To establish fire limits, and p!'es. cribe the kind of buildings and structures that may be erected within said limits, and the manner of constructing and repairing the "(k) I.ights, fires, l tlld finu:orks. - To regulate the use of lights in stables, shops, and oth~r buildings and places, and to regulate or restrain the building of bonfires and the use of firecrakers, fireworks, torpedoes, and pyrotechnic displays. . [§ 221] (;j) City of Munilri.. " The Munici1ial Board shall have the following legislative powers: "(h) To establish fire Jii;1its, determine the kinds of buildings O!" structures that may be erected within said limits, J"Cgulatc the m"nncr of constructing and repairing tl1e same, and fix the fees for permits for the construction, repair, or demolition of buildings and structures. "(j) To regulate the use of lights in stables, shops, and other buildings and places, and to regulate and restrict the issuance of permits fo~ th.:: building of bonfires and the use of firC'crakers, fire,Vorks, torpcdoe.:;, candles, skyrockets, and other 11yrotechnic dis1 1lays, and to fix the fees for such permits. l26 18 C.J. 09G . . 50 43 C.J. 368-369. 51 Bastida ''· City ll~guio. ''"'' 132. ~ \l)>C<l. 5 ~ Sec. 2t4J, Rev. Adni. t..:od<» t,3 S~c. 2625, Re,·. Adm. Cod~ . ;;4 Sec. 18. Hep. Act No. 40~. Gb3. For fach and ruli111:. 98 T H E LAWYEHS JOUHNAL February 28, 1954 [§ 222] 2. Flre limits. "One of the usual methods by which the power may be, and is, exercised is by the enactment of ordinances or regulations establishing fire limits, a.nd forbidding the use of inflammable materials in buildings or other structures, or in the erection thereof, within such limits. The limits of a fire district largely rest within the sound discretion of the administrative or legioilative body which is authorized to create it. Ordinances establishing fire limits and regulating the construction of buildings therein should be strictly enforced. That a wooden structure ceases to be such when encased with iron has been held by some courts, but tl1is view has not been generally accepted." f>5 "Method of enforcing reyulntions. Although the ordinance may provide a penalty for the violation cf a fi re limit !'egulatio11, such remedy is not t>xclusive; and the municipal corporation may in civil BCtion enjoi n the f'rection of a propol'led buildi ng in violation of the !'egulalion, and ask for the removal of a building or struchlre in violation of the regulation. Such fine or penalty is not considered as a full, complete, and arlcquatc !'emedy so as to prevent a court of equity from exercising its jurisdiction." 56 [§ 223] 3. Firf! hazards; storage or occ1wm/rttion of inflam. mable 11tatm·ials. "When the province or municipality is infested with Qutlaws, tlw municipal council, with the apprnval f)f the provincial ~overn'lr, may authorize tlw mayor to require able-bodied mvle residents of the municipality, between the a.ges of eighteen and fifty yeat·s, to 11ssist, for a period nc•t c.xceeding fire days in any one nivnth in appr~hending outlaws er other lawbreaker;; and suspicions charaders, and to act '.lS patl"lls for the protection of the municipa.lity, not exceeding one day in each week. · "Nothing J1erein contained slrn.11 authorize the mayor to require such service of officers or empJl)yet:s of the National Government, or the .,Uicers or servants of companies or individuals engaged in the business of comnmn carriers on sea or la!1d, or priests, ministc1·s uf the ~s1wl , physicians, pmcticantcs, druggists or 7Jracticmites de f(t.rmaci1i actually engaged in business, or lawyers when actually engai;ed in court proceedings." 57 f§ 224) 1. F'iscu.l ll!ftl•U!Jt.llH:nt, df'/Jts um/ scrnrilics. The 110wer of munici1ml corporntions to incur debts and expenditures I~ treated in a subseqn:nt chapter. [§ 225] J. ll11sinesscs and vcc1t1iativ11s.S8 - 1. In 9e1tcral.\a) Gcu~rrilly. '"While an individual has an inherent or natural right to engage in any lawful bu<;:iness, occupation, OL' trade, and may use his property fol" that purj}ose, yet the nature of the business, occupation, or trade sought to be carried on may be such as to render it subject to regulatory ccnti-ol by municipal corporations, in the exercise of their police powers, or authority delegated to them by the legislature 01· constitution, as under authority granted to restrict or prohibit nuisances. Such regulation is permitted in the interest of the public peace, health, morals, and general welfare of the municipality. The authority of the corporation in the premises must he granted by the state either expressly 01· by obvious implication; it is not inherent. Ordinances regulating business or occupations are ·strictly construed. A regulation providing that in any building 01· premises any lawful use existing therein at the t ime of the passage of the regulation may be continued, although not conforming to the regulations, does not authorize the conducting of another business which might prior to the enactment of t-he regulation have been lawfully conducted in such building, although it could not, subs(!(luent to the enactment, be originally established there." 59 [§ 226] b. Stnt1ttury pruvi;;Ums as to Philip1>i1w mimici1ml corporations. -- (1) Municipalities in re91tlar ptovinccs. ''The municipal council shall have authority to exercise the following discretionary power3: "ld) To provide for the numbering of houses and lots; the naming of streets, avenues, and other public places and, subject to the approval of the Secretary of the Interior, the changing of the names thcr'E!of; and fur the lighting of streets, and the spri11kU5 43 C.J. :\60-370. ~6 Id. :170. ~~ t7~r~7.'~ JP':.";u~~f~~43i.usiness am\ uccupatio11 di~cu~S<:tl in other ticctions of thischiwtcr. r,9 u c.J. au7-3~~Ung of the eame, •• (n l To regulate the establisim1ent and provide for the insrwclicn f'f steam boilers within the municipality, " (q) Tu regulate any business or occupation subject to a municipal license tax .. l § 22i] mi /llirnicipulities in speci<Uly or9a11i·.-::ed provinces. '"The municipal council shall have r,ow~1· by ordinance or i·esolution: "(e! Rey11latio11s for co1HiY.ctin9 /Jrtsincss. - To make regulations for the conducting of the business of the persons and places nnmcd in subsection (d) of this section (namely, Hawkers, peddlers, hucksters, not including hucksters or peddlers who sell only native vcg·ctables, fruits or foods, ]lersonally carried by the hucksters or pC'ddlcr, auctioneers, plumbct"s, barbers, tailor shops bakeries manicul"ing establishments massage parlors, embalmers, collecting agencies, mercantile agencies, transportation companies and agencies, sdvertising a.gents, tattoers, hotels, clubs, restaurants, lodginghouses, livery stables, boarding stables, laundries, cleaning and dyeing establishments, c<;t:lbl ishments for th:! storage of highly combustible 01 explosive matet'ials, Jiublic warehouses, bicycles, dealers in secumlhand merchandise, junk dealer"-]. To regulate the business and fix the loca.tion of blacksmith shops, foundries, steam boilers, steam engines, lumber yards, sawmills, and othel' establishments likely to cnda11ger the public safety by giving rise to conflagrations or explosions; to regulate t he storage and sale of gunpowder, tar, 11itch, resin, coal, oil, gasoline, benzine, turpentine, nitroglycel"in, 1 ict rolcum, 01 any of the products thereof and of all other highly combustible or explosive materials. [§ 228) (3) City vf Manila. "The Municipal Board shall have the following legislative powers: '"\l) To l"ct;ulate.. the foll<.1wing: hawkers, peddlers, hucksters, not includi11g hucksters or !Jeddlers who sell only native vegetables, fruits, or foods, personally carried by t he hucksters or JJcddlcrs ; barbers, collecting agencies, manicurists, hairdressers, latt.ocrs .. "(m) To.. regulate the bu:;iness of hotels, restaurants, ref l·eshment places, cafes, ludgi nghouses, boardinghouses, brewers, distillers, rectifiert, laundries, dyeing and cleaning cstabli shmen~, beuty parlor;;, physical or beauty culture and schools, clubs, livery gar<.ges, 1rnbiic wa.1·cl1ouscs, pawushops ... and the letting or subletting of lands and buildings, whether used for commercial, industrial or residential JlU l"!JOSes; and further to fix the location of.. and regulate the business of, livery stables, boarding stables, embalmers.,. dealers in secondhand merchandise, junk dealers,.,. the sale of intoxicati111; liquoi s, whether impul'led 01· locally manufactured. "(q) To l"cgulate the method of using steam engines and boilers, other than marin(' OI" beloni;ing to the National GovcrnmPnt; to pmvide for I.he inspection thercof, and for a reasonable fee for such inspection, and to regul~te and fix the fees for the licenses of the . . engineers engaged in operating the same. •·(ii) 'fu.. regulate any business, tl"ade, or occupation being conducted withb1 the City of Manila not otherwise enumerated in the preceding f:lubscctions .. [§ 22U] (2.) E-;rtc1 it u.11tl limits. - a. fo !JCIWl"«l. "The powcl" must he ex<:-ercised reasonably, within constitutional limitations, not arbitrarily or in restraint of trade, without discrimination, fair to P~ll alike, aud with some reasonable reference to tl1e public peace, health, morals, safety, or general welfare of the municipality. The question whctlwr a limitation upon the conduct of business or trade has a reaSonablc relaticn to the accomplishment of a legitimate 1mblic puiyose is one that must be decided "upon a view of the 60 S..,c. 224;1. llcv. Arlm. Code. 61 Sec . 262(;. n~,· . A<lm. Code. 6i S<·e. 19, Hcv. Adm. Code. February 28, 1954. THE LAWYEHS JOUTINAL 99 particular legislation and the circumstances to :which it is applied; the question is largely one of fact. The regulations of' the kind under consideration cannot be applied to an occupation, employment, or business not ca'rriecl on within the municipal boundaries." 11'.1 [§ 230] b. Place or location. "In the exercise of municipal pe>wer to regulate business, trades, or callings, particular occup'"ations may be excluded from certain parts of a municipal corporation, or ;nay be required to be conducted within designated limits within the corporation. The power to regulate the carrying on of certain lawful occupations in a municipa.lity includes the power to confine the carrying on of the same to reasonable limits, wherever such restrictions may reasonably be found necessary to subservc the ends fol' which the police power exists, namely, to pro~ect the 1mblic health, morals, safety, and comfort. For example, under its police power a municipality may validly prohibit the maintenance of a particular enterprise within a specified distance of certain types of buildings, such as schools, churches, hospitals, etc. A municipality may also validly prohibit the carrying on of business activities in or on certain portions of the municipality directly under municipal control or supervision a.nd involving specifically the public safety, as, for example, on municipal streets, highways, and sidewalks. 1n determining the validity of municipal police regulations which forbid engaging in specified forms of activity thenceforth in particular areas of a municipality, it can make no difference th&t a trade was lawfully established prior to the prohibitory ordinance anri that it has become offensive solely on account of the growing up of the municipality about it. A business which is lawful today may, in the future, - because of a changed situation, the growth of population, and other causes, - bec')me a menace to the public health and welfare, and be required to yield to the public good. It cannot be argued as a contention against such an exercise of the police power that a municipality cannot be fanned er enlarged against the resistance of an occupant of property, or that if it grows at all it can grow only as the environment of the occupations which are usually banished to the purlieus. "There is not necessarily any valid distinction, in consideJ'ing municipal ~·egulations forbidding a business to be ~xercised in a particular part of a municipality, between businesses which arP r.ot affixed or dependent upon a pa1·ticular municipal locality for their operation, which class it is admitted can be regulated, a11d business which it is claimed can be conducted from a financiall:.t advantageous position in only one particular place in a municipality because of the location in that place of the raw material from which a finished product is made. Regulation may also b<: had in the latter type of cases in spite of the fact that there has been an investment in property, whel'e manufacture of the finished product will be injurious to the health and comfort of t he community. So long as the prohibition of the business goes merely to the operations and manufacture of the raw materials in the particular place designated a.s forbidden, and there is no prohibition of the removal of the Yaluablc material from such spot, so that it can be manufactured elsewhere, constitutional rights are not violated "While police regulations of the. character here considered arc subject to judicial scrutiny upon fundamental grounds, yet a considerable latitude of discretion must be accorded to the lawmaking power; so long as the regulation in question is not shown to be clearly unreasonable and arbitrnry, and opcrntes uniformly upon all persons similal'iy situated in the pa1ticula.r dist.rid, the rlistrict itself not appearing to ha\'c been selected arbitrarily, it cannot be judicially declared that there is a deprivation of property without due process of law, or a denial nf the equal prntection of the laws within the meaning of the F ourteenth Amendment. On the other hand, municipal regulations as to the location of particular businesses within the municipality are invalid wherf', under the circumstances, they constitute an Ulll'('asonablc regulatio1 1 or interference not warranted in the public interest, where they unnecessarily or arbitrarily interfere with the property l'ights, and where they are indefinite and uncertain. It has also been stated that a r;rant of nnwPl' to reg-ulate lawful occupations and business place is certainly 11ot. an express grant of power to locate or prescribe 6:1 C.J. 359-360. 61 3j Am, Jui·. 957-960. thl' limits Or ·the carrying on of lawful occupations upon private premises.tM [§ ::!31) c. Time. "'No generalization can safely be staled as to the validity and reasonableness of municipal regulations of the time during which busilwsses may be conducteci. The result dPpends largely on the nature of the business sought to be regulated. "Regulations by municipalities of the hours during which specified businesses may be conducted have been dedared reasonable and constitutional where there ;s a patent relationship brtwccn the 1·egulations and the protection of the public health, safC'ty, morals, or general welfare, as where the business is of such a chal'acter that the public health or morals are likely to be endangereC. if it is carried on during the late hours of the night. It ha;: been held that under 2. general gl'ant of power in a municipal chartc1 to regulate business houses, the municipality has the power t<• close such places at midnig ht, 01· earlier. "A municipality has no authority, •rnder its police power, . to regulate arbitrarily and umeasonably the hours of private businP-ss, conducted in a reasonable mannel', under the guise of promoting the public health or ge11eral w.:!lfare of the community. Laws which regulate closing hours and do not in any manne1· directly or remotely tend to promote public health, good order and peace of the community cannot be justified as an exercise of mun ici1Jal police power. Thus, ·a regulation of the hours of a particular business which is not explainable by :i. relation between the regulation and the protection of objects within the police power, but solely on the ground that there is u desire to discriminate unconstitionally in favor of local dealers in the business, is unconstitutional. Ordinances attempting to regulate closing hours are also sometime,; invalidated on the grnund that they violate the principles that cn!inances must be reasonable, consistent with general law, and not Cestructive of lawful business, or because they are found not to be within the authority granted to the particular municipality seeking to enact and enf!)rce them." 65 [§ 232] d. Prnhibitio10. "There arc some businesses or commmercial activities which are, or may be, so offensive, dangerous, and detrimental to the public health. safety, comfort, peace, mol'a]s. am! welfare th<'.l municipal corporl>.tions, in the exercise of their granted police power, may prohibit. them altogethH within thP municipality or its police jm·isdiction. This pl'inciplc, however, is subject to definite limitations. Municipal authorities cannot, under the claim of exercising th-:! police power, substantially prvhibit a lawful trade, un'less it is rn conducted as to be injurious or dang-erous to the public health. Furthermore, a municipality ca1mot, under the general welfat·e clause of its charter, make it unlawful to cany on a lawful trade in a lawfui manner. It has also been held tha.t authority to 'license and regulate' a business dc<:s not confer power to prohibit. it absolutely." 66 "The 14th Amendment [of the American Constitution] p~:r.tects the citizen in his right to engage in any lawful busint:ss, but it does not prevent legislation intended to regulate useful occupations which, bC'cause of their nature or location, may prove injurious or offensive to the public. Neither does it prevent a municipality from prohibiting any business which is inherently vicious and harmful. But, between the useful business which may be regulated and the vicious bpsiness which can be prohibited lie many nonuseful occupations which !l1ay or may not he harn1ful to the public, according to local conditions, or the manner in which they are conducted." 67 "Thl:re is quite a difference betwee11 prohibition of a trade and the regulation of it.. lndeed, ·a power to 1egulatc seems to imply the continued existence of that which is to be regulated.' An orciinance which prescribes that certain persons shall not carry on their business, which would othcnvisc be legitimate, in a particular place, or on ce1·tnin p1·emises, is, as to such place, clearly prohibitive; and to authorize the passage of such an ordinance, where the power is undoubted, the injury to the public, which furnishes the justification for the ordinance, should proceed from the inherent. character of the business when conducted at such place or upon such pl'cmises. \Vhere, however, the business can be 65 37 Am. Jue. 960-962. 66 n Am. J UI'. 962. 67 ~:uruhy v, Californi"· 2~;; U.S. 623, 32 Suo. Ct. 697, 698, ~6 L. cJ. 1339, H J,RANS 163. JOO THE LA WYERS JOURNAL February 28, 19{;4 conducted then~ ty proper person_ e without harm . or inconvenience to the public, the prosecution of it should not be entirely prohibited, but such necessary police rules and regulations should be prescribed for carrying on such business in that particular locality as may be necessary for the public good." 68 "The test in C;VCry case is: Is the prohibition of a particular business or the sale of & particular article necessary to prevent !he infliction of a public injury? It is not sufficient that the public sustains harm from a certain trade or employment as it is conducted by some engaged in it. Because many men engaged in the ct:lling persist in so conducting the business that the public suffers and their acts can not otherwise be effectually controlled, is no justification for a law which prohibits an honest man from conciucting the business in such a manner as not to inflict in}ury upon the public." ~9 [§ 23a] a. Copra warehouse. Under the charter provision of a city authorizing it to regulate the business and fix the location of match factories, the storage and sale of gunpowder, oil1 ar.d other establishments likely to endanger the public safely or give rise to conflagrations or explosions, such city may regulate and fix the location of a warehouse for storing CO()ra, because the same is an establishment likely to endanger the public safety or likely to give rise to conflagrations or explosions.70 [§ 234] 4. Gasoline filling trnd service staJions. "Gasoline filling stations located within the municipal boundal'ies may be l}t·oper subjects for regulation by the municipality." 71 An ordinance prohibiting the installation of gasoline stations within the distance> of ~00 meters from each othel', not ?nly to prevent ruinous competition among" merchants engagecl. in this kinJ of business but also to protect the public from u1y harm or danger tha.t may be occasioned by said inflammable substance is valid.7~ • llfostru.tirm. - The plainli£fs Francisco Javicl' and Roman Ozaeta commenced this action in lhe -Court or·- First Instance of Manila to restrain the defendant Tomas Earnshaw, l\Iayor of the City of Manil;, from cancelling tht! 1iermit or license issued by him for the installation and o,peralion cf a gasoline pump and undNgrnund tank at the corner of Kansas Avenue and Tennessee Street. They appealed from the judgment dismissing their complaint. It appears tlm.t the plaintiffs, being the owners of a parcel of land situated at the corner of Kansas Avenue and Tennessee Street, Manila, entered into a contract with the Asiatic Petroleum Co. <P.U Ltd., whereby the ]attn would provide them with a pump, unde1·grourd tank and gcsoline on the land in question, for the exclusive use of the motor vehicles flf the Makabayan Taxicab Co., Inc., operated by the plaintiffs and would obtain the necessary liCt'nse from the defendant mayor of l\lanila. The plaintiffs .a.nd the Asiatic .Petroleum Co. (P.U, Ltd., obtained the necessary permit to install a gasoline pump and an underground tank in the pre. mises of the pb1intiffs, for the exclusive use of the motor vchiclf!s .or the ~fakabayan T~jcab Co., Inc. One of the conditions imposed in the contract is that the permit was nontransferable and that it was revocable at the expiration of 30 days from notice of the concessionaire. The pump and the tank were installed and the plaintiffs used them for some time to provide gasoline exclusively for the motor vehicles of the Makabayan Co., Inc. Sometimes later, huwcver, as the plaintiffs had succeeded in having the office of the city treasurer in.:>ert the word "s~lls" (which should read "sales') in the ~·cceipt issued by it for payment of the lic~nse tax, they began to sell gasoline to the public, thereby giving rise to prntests from opcrntors of the Socony Gasoline Station situated at the :::orner of Taft Avenue and Herran Street. The complaint was investigated and 11'.lt only was it proven but the plaintiffs themselves also admitted that they were really selling gasoline to the puhlic. The mayor, on June 9, 1934, sent a letter to the Asiatic Petroleum Co., <P.U, Ltd., 1·cquiring it to show cause within five days why the license issued to it should uot be cancelled for violation of the> 68 Cosi;rove v. Augusta. 103 Ga. S 3~. ll37, ~2 LRA 711. 69 Tolliver v. Blizu.rd, H3 Ky. 773, 35 LRANS S90. 70 Uy Matiao & Co., Inc .• v. City o( Cebu. etal.. XVll/L.J. 71 43 C.J. 380. 72 Javier ""d O~ a.eta v. Eunsha.w. infra. condition not lo sell ~asoline fo th!! public. The requirement wa!: endorsed to the plaintiffs who gave their explanation in their letter of June 11, 1934. The explanatioris given by the plaintiff<; not h<~ving been satisfactory, a.nd they having admitted i:he violation 0£ the condition by acknowledging that they have been sdling gasoline to the public, the mayor, on July 16, Hl34, sent a letter to the plaintiffs advising ' tl1cm that after 15 days from the receipt of 'Said letter by them, he would order the cancellation of the permil, which he in fa.ct deciJed to do, and the permit was cancelled. The court, U(lOI\ the bond filed by the plaintiffs, issued the writ of the preliminary injunction a1iplied for. The ordinance in question which wai;; violated by the platntiffE was Ordinance No. 1985 of the City of Manila, and the pertinent provision pertaining to this case provides: Sec. 1, (3) "That no gasoline station will be permitted to be ir.stalled withiu a di.<1tance of fiVP Jmndred meters fr.:1111 any existing gasoline station:'' The plaintiffs as~ailrd the validity of the said provision uf the ordinance iu:; arbitrary, um·casonable and discriminatory. The Supreme Court held that the municipal board of the City of Manila, in !he exercise of the police power, may rcas1Jnobly r~ gulatc profe!lsions and business enterprises within its territorial limits when the public hea'ith, safety and wc:Hare so demand. Ordinance No. 1985 in quc!ltion is of this nature and, therefore, is not illegal. The Municipal Board of the city of Manila, by virtue of the police power, may reasonably regulnte the use of private property whemn-er ~uch measul'e is requirrd by the public health und safety, end the welfare of its inhabitants. The ordinance under consideration prohibits tl1c installation of g·asoline stations within the distance of 500 meters from each other uot only to prevent ruinous compctiticn among merchants engaged in this kind of business but also to protect the public from any harm or dangt:r that may be occasioned by said inflammable substance. The ordinance is not arbitrary, unreasonable or discriminatory because, it was e11actcd by the Cily of Manila in the exercise of the police p:iwer delegated to it by the Legislature, it tends to protect the inhabitants thereof from the dangers &nd injuries tllat may arise from the inflammable :mb.:>tancc, and the measure is gl'ncral l•llCI applicable to all persons in the 5ame situation as the plaintiffs. The appcu.led judgment is affirmed, and ihc writ of prelimina!·y injunction issued by the trial court is sci; aside.'3 [§ 235] 5. Lmuulries. "J\fonicipal COl'JJorations may regulate the establishment «lld operation of laundries, and may provide for a license fee to care for the additional expense in<;urrcd by the corporntil•ll for prupcrly enforcing such 1·cgulation. The power to regulate laundries must be exercised within its scope, and the i·egulations must be reasonable. Municipalities may n;quire as police regulations that laundries sh:lll be confined to certain p'.lrts of the city, prohibit them from bei-i1g carric,d on withi!l a designated distance from a church, school, or l1ospital, and that they shall b<: carried on only in buildings of brick or stone. But it seems that <m ordinance is invalid which requires the consent of a certain number of taxpayers and citizens of the vicinity for the establishment of the business." ·,·4 "D1scrin.inatfon. Municipal regulations dealing with ianncirie<> must not be discriminatory; for instance, the corpo1ation cannot deny privilege:; to laundrymen allowed to similar operators of machinery. But the corporntion may classify laundries on a 1iatural and reasonable basis. A laundry regulation exempting domestic laundl'ics from its operation is not discriminatory."75 Under the .r,reneral welfare clause, as well as under the power to "regulate" laundries, a municipal corpcration ma.y require hundl'ics, dyeing a!lf! cleaning esbbli~luncnts to issue receipts for articles l'eceived in E11glish and Spanish. Such ordinance is a reasonable exercise of the police power.is · ;3 J ;wier and Ozaeta ' '"· Ei<rnshaw. 6-1 Phil. 626·62!, 631, 640. 14 13 C.J. 390. 15 43 c.J. :mo. 76 ~';;~~~ Sing v. Cily of t.t..nila. H Phil. 103. For !ac\11 and rulini:. February 28, 1954 THE LAWYERS JOUHNAL 101 [§ 236] 5. Lumb6rya.rds. "The location of lumLcryards within the municipal limits may be a Ruhject of municipal regulati'or... The consent of the municipal council may be required as a condition precedent to their operation." 7'I Under statutory authority to f'nact such ordinance and make such regulations as shall seem nece~sary and proper . to provide for the health and sa.fety, promote the prosperity, improYe the morals, peace, good order, comfort, and convenience of the municipality and the inhabitants thereof, and for the protection of propl!rty therein, and to declare and abate nuisances, a municipality may prohibit the maintenance and operation of a sawmill and lumberyard within specified areas of the municipality, where such maintenance and operation would necessarily disturb residents and passers-by.1s [§ 237] k. Fraud in sale of ccnwmodities of prime necessity. 1. Jn general. Municipal Corporations, ur.der their properly delegated police powers, may enact regulations for the detection and prcventicns of imposition and fraud on the public in the sale and purchase of food and drink offered for sale to the public. It may regulate so as to secure honest weights and· measures; it may enforce the keeping of proper legal weights and measures by all vendors; and provide for the inspection of such weight.s and mea:mres. It may require tha.t the true weight or measure be stated on the package or other container in which articles of food or drink are sold. Such regulations must be reasonable, a.nd not arbitrary or discriminatory." 10 Public sccles. "Under the usual municipal power, it is competent to provide that the standard weights and measures for coal, hay, cotton, corn and the like shall be observed in all sales within the corporate limits, by test upon the pubfic scales provided by the municipality, a.nd prescribe what fee shall be paid for weighing, and that the same shall be paid in halves by seller and buyer.'' 80 Opinion of Secretwry of Justice. "I have the honor to comply with your request for opinion of July 22, 1940, as to the legality of Ordinance No. 9, series of 1939, of the Municipal Council of General Luna, Tayabas, requiring all merchants and dealers in articles and comwodities of prime necessity, such as food stuffs, building construction materials, hardware and clothing, to lai)(>l t.he i;ame, stating therein the grade, kincl, quality or cla~a a.nd t.he corresponding prices th.ereof. "ObviC1usly, the ordinance in question was enacted under and by virtue of the provision of general welfare clause of the Municipal Law (Sec. 2238, Rev. Adm. Code) "The purpose of the ordinance is fairly evident to prevt:nt deception and to promote fair dealing in the sale of commodities of prime necessity. "A requirement that the contents of all packages containing aticles of food must be shown by labels, brands or tags is obviously a most efficient method of int1uring protection to the public from the sale of inferior and injurious ;;.rticles of commerce. It is set. tled beyond question that statutes requi1·i?ig the seller to disclose, by label or otherwise, the nature and quality of the wrticles offere1, are valid as a legitinw..te exercise f'Jj' the police power (11 R.C.L. p. 1106, par. 12 citing 'the cases of Savage v. Jones, 225 U.S. 501, 32 S. Ct. 715, 56 U.S. (L. ed.) 1182; Standard Stock Food Co. v. Wright, 225 U.S. 540, 32 S. Ct. 784, 56 U.S. <L. ed.) 1197; State v 81 Ia. 642, 47 N.W. 777, 11 L.R.A. 355; State v. Asleen, J)O Minn. 5, 52 N.W. 220, 36 A.S.R. 628; 50 L.R.A. Sherod, 80 Minn. 446, 86 N.W. 417, 18 A.S.R. 268; 50 L.R.A. 660; Alcron Cotton Oil C. vs. State, 100 Miss. 29[), 56 Ohio St. 236, 48 Am. Rep. 42!); Dorsey v. State, 38 Tex. Crim. 527, 44 S.W. 514, 70 A.S.R. 762, 40 L.R.A. 201). "It is well recognized, that the legislative body in the exercise of its police power ma.y regulate or restrict the sale of personal property within the state. It may impose reasonable requiremt:nts as to labelling commodities to prevent frauds and imposition on the public (23 R.C.L. p. 1190, par. 3 1. The authority to legislate on this matter has been invariably upheld by the courts. <See National Fertilizer Association v. W.W. Bradley, 301 U.S. 178, 81 L. ed. 990; State v. Buck Mercantile Co. 57 A.L.R. 675; 38 Wyo. 47, 264 Pac. 1023; U.S. v. Ehreveport Frain & Elavator Co., 286 U.S. 77, 77 L. ed. 175; Evparte Beau, 15 Pac. (2d) 489; 216 Cal. 536; 77 43 C.J. 391 . 78 'fan Ch"t v. lloilo IMun o{' 60 Phil. ·16ii. 79 43 c .. 1. 374. 80 43 C.J. ~ 71. People v. l:<' ranch Bottling Works Inc., 180 N.E. 537, · 529 N.Y·. 4; Statt: v. Reininger, 239 N.W. 849; and McDcrmoth v. ' State, 126 N.W. 888> . "In view 'lf t.he foregoing, I am therefore of the opini'ln that there is very good authority for thf' conclusion that the ordinance in question which requires all merchants apd deaJers to label thir commodities, is legal, it being a Jegil iw,ate exercise of the police power conferred upon the Municipal - Councils by the general wel.., fare ciause provision of the Revistd Administrative Cod,e. . "In this connection, your 'attcntio1\ is called to a)l objectiu~abl~ provision in section 4 of the ordinance that the Justice of the Peace of the municipality shall be a member of the Anti-Profiteering La ~~ Enforcement Board. It seems that as a matter of good policy, the justice of the peace should not be made a member of said board." 81 [§ 230] 2. St'ntutory provision as to City of Manila. - "The Municipal Boat·d shall have the following legislative powers: "* * "' "(w) To regulate the inspection, weighing, and measuring of brick, lumber, coal and ot-her articles of me1·chandise. "* * * [§ 239] L. Gaming or gambling. - 1. In [Jenn·al. The passage of gambling laws is included within tlie 'police power ;:>f municipalities and although ;;ome games are not strictly games of chance or hazard and prohibited ,by the general gambling law, still' in ·a general sense some games arc a species. of gambling, .and the lJlunicipa!ity can suppress or control them, in the exercise of its police power.BJ illustration: "At common law a common gaming house was a ·common nuisance and was indictable as such. Gambling and the keeping of gammg houses are usually punishable by statute, but several court haV-e ·held {the decisions, however, are not uniform) , that the fact that the offense is punishable by statute does not' prevent the enactment, under due legislative authorization, qf municipal ordinances upon the sa.rn.e subject and providing a penalty for the violation thereof. The power to suppress gambling is frequentlr conferred upon 'municipalities by express statutory provision, and it has been held that when the crime of gaming is defined by law statutory authority to a municipality to suppress is confined to the offense defined by statute. But express authf'.Jrity is not required to confer authority upon the municipality to suppress gaming and the keeping of gambling houses. Such authority has been implied from the general welfare clause, from gene1·al power to pass police ordimrnces, from power to regulate and preserve the good order and peace of the city, and from pqwer to provide for the punishment of disorderly conduct and all practicer.; ciangerous to public order. Under the power .to regulate establish .. ments, they may be confined to prescribed limits. The act of setting up, keeping, and maintaining a gambling house is continuous in its nature in the absence of evidence of an interruption in the conduct of the house. Hence, for the maintenance of such a house only one panE-lty can be imposed, and separate penalties cannot be executed for each day. The prohibition of the ordinance may be directed not only against the keeping of gaming houses, but also against inmates and visitors to them."34 The power given fo regul~tc does not neCessarily carry the power to Sllflprcss.85 Power to licenM. "A muilicipal corporation which by its charter is authorized to prevent and suvpress gamiug and gambli;-ig ,houses is not authorized to make such places lawful by licensing them, The power to suppress is not authority to permit and 1·egulate. A license fee on a tenpin alley or the like cannot be imposed by or,. dinance without legislative authority. It has been held that, under the power to restrain gaming, municipal corporations have the power to license, and that such vower repeals general statutes inconsistent therewith when such is .ti1e intention of the legislature." s.6 P1tnishment. "While under express or implied power municipal corporations may make gambling a punishable offense,87 it has been held that, under the mere power to suppress .gambling, a municipal St Letter dated O~mber 6, 1940, of Secretary of Justice, 1<>ll A. $11,nt05 to the Unde1·secrelary of Interior; Opinion No. 340, series 1940. 82 Sec. 18, {kp. Act No. 409. . • 83 U.S. v. Salvareria. 39 Phil. 192. For factm and rulings, 5ee ss 133. 142. ~~ i,, o;.:,io~ic~'~;i~s~;r··N:~~·. "~02.111°0961\Jt 465; State c. r.lcMoniu, 75 Nci>r. 443, 106 NW 464. S6 43 C.J. 376. l:l7 U.S. v. Jwon, 26 Phil. I; U.S. v. Espiritusanto ,23 Phil. 610. 102 'l'HE LAWYEHS JOUHNAL February 28, 1954 corporation has nn power to provide for its pm1ishment as a misdemeanor; nor has it power to impose fines or penalties for gambling or keeping gambling houses." 88 lnmat,1s of f]tl.trtbliny llou:;cs; /rrqucnting gambling houses." "Within its express or implied powHs a municipal corporation may punish inmates of gambling houses, suppress visiting at gambling houses, and may make it punishable to be found in gambling houf;es. On the other hand, it has been held that it is without the power of a municipal corporation to make it an offense to be found in a gambling house without regard to the purpose for which one was present." 89 Illustration. The seven defendants in this case were convict~d in the justice of the peace of Davao, Davao, of violation of ordi1mnce No. 394 of said municipality. On appeal, the Court of First Instance of Davao ordered the dismissal of th(, case on the ground that the ordinance aforementioned is null and void. The prosecution appeals from and challenges this order of dismissal of The court below. Ordina11cc No. 394 of the municipality of Davao prohibit~d the playil1g of .. juctcng-", :mcl pl'ovided various penalties for the violation of said ordinance. The question tn be decided is whether the ordinance in question is valid or not. The municipal council of Davao is empowered by law to enact ordinance No. 394 of said municipality prohibiting the playing of jueteng. The supprcss1011 of gambling is within the police power of a municipal c,.,rporation and "Ordinances aimed in a reasonabl~ way at the acconiplishment of this purpose arc undoubtedly ·valid.'' (U.S. vs. Salaveria, 39 Phil., 102, 108.) The various penaltie!' imposed for the violation of the ordina11cc in question come within the limits of paragraph {ii) of the same section of the RcYised Administrative Code. It is admitted that juetcng is already prohibited and penalized in article 195 of the Revised :Penal Code. But the fact that an act is already prohibited and penalized by a general law docs not preclude the enactment of a municipal ordinance covering the same matter. The rule is well-settled that the same act m;i,y constitute an offense against both the state and a political subdivision thereof and both jurisdi.::tions may punish the act, without infringing any constitutional principle. <See U.S. vs. P acis, 31 Phil., G24.) Indeed, this princi]ile !s impliedly accepted in our Constitution by the limitation provided that "If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." (Arts. III, sec. 1, par. 2Q.J90 [§ 240] 2. S/aiutory proiiisiom; as to Philippine mnnicipal corpo1-ations. - a. Municipalities in rcr1ular provinces. "It shall be the duty of the municipal council, confommbly with law: . . "(j) To prohibit a~d penalize . . . g:mbling ... The section in which this prM·i.sfon 1s to be found is entitled "Certain legislative powc'!'s of 1nunclatory dwracter." "The municipal council skLll have authority t" exercise the fol:owing discretionary powers: * * * *" "( i ) To regulate cockpits, cockfighting, and keeping or training of fightin~ cocks, 01· prohibit either. ' [§ 241] b.lllin.ici!>alities in specially organized ])rovinees. "The mullicipal council shall have power by ordinance or resolution: * * * •• (bb) Cockfiyhli'nq. - To t'eguhte and license or prohibit cockf,ghting and the keeping or trairiing of fighting cocks, and to close cock~i!s subject to the ~rovisions and rest;·ictions of gene!'al* law. "<jj) Gll1nblil',fJ, riots, and breaches of the peace. - To prevent and suppres3 . gambling "* * * [§ 242) c. City of i\fonila. ''The Mu11icipal Iloard shall have S8 43 C.J. 376. 89 43 C.J. 376. 90 P~'<>J>fo vs. Chong Hon11C, 65 Phil. 91 Sec. 2242. Rev. Adm. Code 92 Sec. 2H3 Id. ')3 Sec. 2625 Rev. Adm. Cod~. the :.o;lciwing legislative towers: "(r) To provide for the Jlrqhibition and suppression of ... gamblmg hou~c, gnmbling and all fraudulent devices for purposes of obtaini:1g money 01· pi·operty . "(s) To . . . regulate the keeping or training of fighting cocks. ... * * "(j) To .. pei·mit and regulate wagers or betting by the r:ublic on boxing, 'si!)ra', howling, billiards, pools, horse or <log races, cockpits, jai alai, roller or icesb.tini; or any sporting or athletic contests, as well as grant Pxcl'usivc rights to establi<ihments for this purpose, notwithstanding :my existing law to the contrary. "* * * *"£ 9t rn 243] M. Health nnd sanitation. - 1. ltt general - a. General. ly "Our municipal corporations are usually invested with express power to preseri-e the health and t>ufcty of the inhabilunts. This is, indeed, one of the chief purpo-scs of local government, and l'eascnablc by-la\'.'S in relation thereto have always been sustained in England as within the incidental authority of -::01·porations to ordain. I n <letern1ining the validity of ordinances adopted to promvlc the health and comfort of the inhabitants it may be taken as firrnly established tliat the State possesses, and therefore nrnnici1ml corporations under le~·islative sanction may exercise, the power \-o prescribe such regulations as may be reasonably necessary and ~·PJll'OJJt'iate for the protection of public health and comfort, and that no person has an absoh1le rigi1t to be at all times and in all circumstances wl1olly freed from Yestraint; but person and property are subject to all reasonable kinds of restraints and burdens in order to secui·e the general comfol't, hcdth, and prosperity of the State, the public as represented by its constituted authorities taki11g care always that no regulation, although adopted for th('se ends, shall violate rights secured by the fundamental law nor interfere with the enjoyment of individual rights beyond the necessities of the case. It is equally well settled that if a 1·cgulatio11, enacted by competent public authority avvwedly for the protection of the public health, has a real, substantial l'elation to that object, the courts will not strike it down upo_n grounds merely of public policy or expediency." 2 Dillon, Mun. Corp. Gth ed., 1022-1023. [§ 244) b. Stitl1ltory J>rovisio•ts as to Philippine m1micival corvorations. - (1) Municipalities in regular provinces. " It shall be: the duty of the municipal council, conformably with law : "* * * "(m) To prohibit the throwing or depositing of filth, garbage, or other offensive matter in any street, alley, park, or public square; provide for tl1e suitable collection and disposition of such matter and for other public places of th·~ municipality. "* * * "Co) To require any land oi· huilding which is in an insanitary condition to be cleansed at the expense of the owner or tenant, and, upon failure to comply with such an order, have the work done and assess the expense upon the land or building. "'(p) To construct and keep in repair public drains, sewers and cesspools, and regulate the construction and use of private water-closets, privies, sewers, drains, and cesspools. "* * * •• (r) To pl'ovi<le for and regulate the inspection of meat, fruits, voultry, milk, fi>0h, vegetable, and a!l other articles of food. " (s) To adopt such oth~r m~asures, including internai quarantine regulations, as may from time to time be deemed dcsirnble or nr:ccssary to prev1~nt the introduction and SJH'ead of discase."95 The f;Cction in which these provisions a\'e to be found is entitled "Certain teuislutivc pf/wers of mandatory cliaructer''.96 "RestrZction uvon mensnres relo.tive to sanitation. Ordinances, regulations, and ::JJ·de1·s enacted or promulgated by a municipal council in the exercise of authol'ity over matters of sanitation shall not be inconsistent with the regulations of the Bureau of He:i.lth."97 [§ 245] (2) Municipalities in specially or,qrtnfrcd provinces. "The municipal council shall have power by ordinance or i·esolution: ':* * * . * "(o) Streets : lightin9, cleaning, care, and eont1·ol. - ... to 94 Sec. 18. Rep. Act No. 409. 95 OlhH stntutory provision~ in Curthernnce or the prdtection or the J>ublic healt nre 111't forth in connection with pa1·ti~ular subjects. 96 .Sec. 2i42, R,.,v. Adm. Code. 97 Sec. 2247. 97 Se~. 2Z47 Rev. Adm. Code. February 28, 1954 THE LAWYERS JOURNAL 103 prohibit the throwing or depositing of offa.1, garbage, refuse, or other offensive matter [in streets and public places, and to provide for its collection and disposition ... "(u) Jnsanita1·y property. - To requirP. any land or buikling· which is 'in an insanitary condition to be cleansed at the expimse of the owner or tenant, and, upon failure to comply with such order, have the work done, and assess the expense upon the land or buildings. · "(v) Property below grade. - To fill up or require to be fillea up to a grade necessary for proper sanitation any and all lands r.nci premises which may be declared and du!y reported by health officer of the municipality as being insanitary by reason of being below such grad:! (II' which, in the opinion of the council, the public health or welfare may require. "(w) Drains, sewers, and so .forth. - To construct and keep in repair public drains, sewers, and cesspoob, and regulate the construction and use of private waterclosets, privies, sewers, drains, &nd cesspools. "(x> Burial of dead. - To . prohibit the burial of the dead within the centers of population of the municipality and provide for their burial in such proper place . and in such manner as the council may d-'!termine, subject to the provisions of the general law rC'gulating buri:tl grounds and cemeteries and governing funerals and the dispos:i.l of the dead. "(y) •.. to provide for and regulate th1:: keeping, preparation, and salC! of meat, fruits, poultry, milk, fish, vegehtbles, and all other provisioni; or articles of food offered for sale. "(z) Enforcement of health law,: anrl regulations. - To enforct: health laws and regulations, and by ordinance to provide fine;; :rnd penaltie!§ for violation~ of sue}, regulations; to adopt such other measure!§ to prevent the introctuction and spread or di.:;ease as may, from time to time, be deemed dcsirabl1:: and necessary."98 [§ 24G] (3) City of Manila. "The l\lunicipal Board shall have .. ;he following legis~ative powers: "(!) To regulate ... the keeping, preparation, and sale of meat, poultry, fish, game, butter, cheese, lard, vegetable, brea·d, and other provisions . "* . "(x) Subject to the provisions of existing law, ... to prohibit the placing, throwing, or leaving of obstacles of itny kind, F.":lrbage, refuse, or other offensivt. matter ot matter liable tt. cause damage, in the street and other public places and to provide for the collection and disposition thereof .. "* * "(y) ... to provide for or regulate the drainage and filling of privaU: premises when necess:;.ry in the enforcement of sanitary ordinances issued in accordance with law. * *""' 99 (§ 247] 2. Food. "Municipal corporations may enact such regulations as may be required to insure the sanitary production, sale, and disposition ot all articles of food offered for sale to the public. The corporaticin may requii·e that food offered for sale should be protected from dust, dirt, etc.; for instance, that all fruits l:xposed for sale outside of a building, or in any wagon <ir cart, shall be protected from flies ancl dust."! 100 . " iltedical examination. Mtmicipal corporations may require that person!> engagea in handling food productb offered for sale subject themselves to medical examin8tions, and may prohibit the employment of persons suffering with infectious or contagicus diseases."£ lOl "Retaili119 meat.!I from vehicles. Under the power to regulate thf' sale of foodstuffs the corporation may prohibit the retailin~ of meats from vehicles. Such prohibition is not um·easonable, although no public market places have been provided for; also, such prohibition is not discriminatory, although it does not apply to wholesale sales."11>1 [§ 248] 3. Garbage, offal, and other refww ~1wtter. "The rtmoval a11.d disposal of garbage, offal, and other refuse matter is i·ecognized as a proper subject for the exercise of the power of a municipality to pass oJ"dinances to promote the public health, com98 Sec. 2625, Rev . Adm. Code . 99 Sec. 18, Rep. Act N<>. 409. 100 43 C.J. 371-~72. lOI l02 Id. 37t-n~. fort, and safety. The natural scope of an ordinance on this subject is confined to discarded and rejected matter, i.e., to such as is no longer of value to the '.lwner for ordinary purposes of domestic consumpfrm. If the matter in question has not been rejected or abandoned as worthless and is not offensive in any war to t.he public health, it does not come within the natural scope of ~uch al! ordinance. Garba9e maltn· and refuse are regarded by tile decisions as inherently of such a nature as to be either actual or potential nuisances. By reaSOJJ of the inherent nature of the substance, it is therefore not a valid objection to an ordinance re. quiring disposal in a specified manner that garbage has some value for purposes of disposal, and that the effect of the ordinance is t(l deprive the owner of householder of such value. That the owner suffers some Joss by destruction or removal without compensation i:; justified by the fact that the loss is occasioned through the exf'rcisc of the police power of the State, and thC' loss sustained by the individual is presumed to be compensated in the common benefit secured to the public "Founded upon the foregoing considerations, it is therefore within the power of the city not only to impose reasonable restrictions and regulations upon the manner of removing garbage, but also, if it sees fit, to a<1sume the exclm:1ive control of the subject, and to provide that garbage and refuse matter shall only be removed by fhe officers of the city, or .by a contractor hired by the city, or by some single individual to whom an exclusive hcense 1s granted for the purpose. An exclusive right su created is not open to the objection that it is a mllnopoly. · "An ordinance of a city prolubiting, under a pennlty ,any person, not d11ly liunsed therefor by the city authorities, from 'removing or carrying through any of the streets of the city and housedirt, refuse, offal, or filth,' is not improperly m restraint of trade, and is reasonable and valid. Such a by-law is not in the nature of a monopoly, but is founded upon & wise regard for the public health. It was contended that the city could regulate the number and kind of horses and cart1'\ to be employed by stmngers or unlicensed per~ons, as well as they could tho;;e of licen&ed persons; but p-ractieally it was considered that the mam object of the city could be better accomplished oy employing men over whom they have entire crmtrol, night and day, who are at hand, and able from. habit to do t.:tifo- worK: in the best way and at the proper time."103 [§ 219) 4. Quaro,ntine. "WhHe a municipal corporation ha<> been held to have no ])Ower to establish quarantine unles.<; such power is c.<pressly granted O!' is implied as an incident to a power gl"anted o:· is essentiai to the declared objects and purposes of the corporation, as a gene!'al rule it is competent for a municipal corporation to ei;tablish quarantine regulations, and to exclude, removt:, or detain persons i..ffected with, or who have been exposed to, contagious or infectious diseases, it being considered a proper exercise of the police power."104 Harbors. "Authority by charter to pass ordinailces respecting the harbors and wharves, and "every other by-law necessary for the sccui·ity, welfare, and convenience of the city,'' gh·es to the city council power to pass a health ordinance requiring boats coming from infected 11Iaces to anchor before landing and to submit to an examination, provided such ordinance be not repugnant to the general law of the state. And it was further held tha.t a general law of the Stat1::, 1irohibiting "any ptrson coming into the State f10m an infected place, and in violation of quarantims regulations," W&.S not repugnant to, and did not render the ordinance invalid."10~ [§ 250] N. Jntoxie•teiny liquors. - 1. In geuerril. "There is no natural or inherent right to manufacture or sell intoxicants, in any such sense as to remove it from the legitimate sphere of legish•.tive control. Nor is there any Yesttd right acquirtJ by tho,<;e al!'eady engaged in the liquor tra.ific when preYents it's being aftt:1ward forbidden by statute."10~ "Under their inherent police 11ower, the several states (of the Union) had, prior to the Eighteenth Amendment, the right to prohibit, regulate, or restn:in the manufacture and :;ale of intoxicants. and, in tl1e exercise of this powH, subject to th!'.: limitations and restrictions imposed by the constitution of the United States or of th" state, had power to enact any and all lav.:s for tne su1ipression 1 (1 ~ 2 Dill<>n, Mun. Corp., Sth. Ed .• Hl4 H C.J. 429. 105 2 Dill<>n Mun. C<>rJ> •• lith Ed., 10.'lO, 106 S3 C.J. 449. 104 THE LAWYERS JOUH:'.\IAL February 28, 1954 of intemperance and the minimizing of the evils resulting from the traffic in intoxicatini; liquors by t".'tally prohibiting or by restricting and licensing the manufacture and sulc thereof, and to make such provisions tu enforce and prcYent evasion of such laws as o:eemed expedient to the several legislatures. To this end they may r<:gulatC; vr prohiLit the:. transportation 01· shipment of intoxicants. 01 prohibit their 1mportatiun, the1::- manufacture, even for the llSe of the manufact'..lrer, their g·ift, c:-:cr:pt for certain specified purposes, and their possession, when unlawfully acquired, or possession in excess of a. specified quantity. But it has been held that the legislr.tme may not prohibit n citi~cn from having in his posse::;sion intoxicants for his own use, oi· for keeping in l1is possession for another, intoxicants."107 "In the exercise rt{ its police pou·e1· to n:"cgulate the trnffic in intoxicating liquors, it was held that the legislature of a state might lawfully 11rovide 1 system for thE:: granting of licenses to sell such liquors, imposing proper conditions and restrictions upon th!! granting of such licenses, prescribing the qualifications necc:s. sary to s2curc them, making it a punishable offense to sell without a license, and providing for the forfeiture or revocat1nn of licensf's for due caus2. Such statutes, it ,~·as held, did not violate the r.on. slilution:il guaranties securinR the just rights of the individual. Bm there must be nv unjust or .-.l'bitrary d1scrimin~tlon as to the privileges grunted by th-e license or the amount of the fCc payallf' the1·efor be1wec1; indiv-iduab of the same class or doing business in the same locality. Since the licensing of persons to sell liquor is not an exercise of the taxing powC'r of the state to raise revenue, but of the police ,,ower, it follows that the fixing of the fees ·for licenses is 11ot go\·erned by the co~stitutional provisions regulating taxation, such as those requiring equality and uniformity."108 The le~i slative authority to license or regulate t he sa\!, of ii~ loxicating liquor>: does not ~rnthorize a municipality to prohibit it, i,ither in exp!'ess terms or by imposing prnhibitivc license fees. The general powe~- granteCI in the general welfare clausz does not .'lu~ thorize u l\fonicipal Council to prohibit the sale of intoxicants, because us a general rule when a municipnl corporation is specifically g1\·e11 authority or po\\·er to re.i:>;ulate 01· to license and l'egulatc the liquor traffic, power, to prohibit is impliedly withheld.Im lllu..stration. The l\Iunicipal Council of Tacloban, Leyte, enacted Ordinance No. 4, series Hl44, providing among other thing,, that it shall be unlawful for any person, association, or firm, to manufacture, distill, riro<luce, cure, sell, b~rter, offer or give oi· dispose of in favor of another, possess or to have under control any intoxicating liquor, drink or br.verage, locally manfaclured, distilled, produced 01· cured wine, whiskey, gin, brandy and other drink containing liquor including tuba. The defendants Timoteo Esquerra, Simplicio Sabandal, Teofila Dacatoria, Vicente Uy, Uy Lawsing, Francisco Tan, Jose Chan, Victoriano Macariola, Miguel Galit, Eufracio Ga.spay, Rosalia Estolano, Felix Labordo, Pilar E. Pascual, Melr::cio Aguillos, and Victoriano Teriapel, were ,accused in the Court of .First Instance of LC;yte for th(; violation of the above mentioned ordinance. The t1·ial ccurt, after hw ring the arguments of the prosecution and the defense, declared the ordinance in question null and void, and dis. missed the cases against the defe11dants. The prosecuting attorney, in behalf of the plaintiff The People of the P hilippinC's, appealed from the decision of the lower ce:mt The . appellant contends that the ordinance at bar was enacted by virtue of the police power of the Municipality of Tncloban confened by the general welfare clause, section 2238 of the Revised Administrative Code, and is therefore valid. Held: The lowcl' court has not erred in declaring the Ol'dinanc(· No. 44, series 1944, ultravircs and therefore null and void. Under the gencr.el welfare clause, Sec. 2238 of the Revised Administrative Code, a municipal council may enact such ordinances, not repuznant to law, as shall seem necessary and proper to ]'rovide for the health and safety, t: tc., of the il1h;..bitants 'lf the municipality. Eut !Lid . 501>- ~0 ~. !OS. !bid. 512'-513. 109 Pe<>plc nf th~ Phili1>piu,, ,.. . E,,i,:u~1'l''1 <·! al., G.R. No•. L.:;ol, L- r,u~ L-503. L-504 . L-~05 . L-5or,, L- ~0 7 . J •• c.o.~. L-;,o~•. L-Gl U, L-5 11. L-012, ~ln y 21. 1 94~. XIII , L.J . 1H. as the ordinance in quC!stion prohibiting the selling, giving away and dis11ensing ot hquor is repugnant to the pro·.rision of Sec. 2242 \g) of the same Revised Administrativt Code, the Mumcir.al Council of Tacloban had no power under Sec. 2238 to !:nad th2 mdinance uncle;· consideration. The pr0hibition is Cl>ntrary to the power granted by Sec. 2242 (g) ·'to regulate the seliing, giving away and dispensing of intoxicating malt, vinous, mixed or fermented liquors al 1·etail;" because the word "regulate' means and includes the power to Clmlrol, to govern and to restrnin; and can n0t be const rued as <;ynonumous with "suppress" or "prohibit.'' IKO\\'llg Sing vs. City of Manila, 41 ' Phil. Rep., 103). Since the municip.'.llity nf Tacloban is empowered only to regulate, it cannot p!·ohibit the sellin!f, giving away ~nd dispensing <:>f intoxicating liquors, for that whicl1 is pr0hibited or does not legally exist can not be regulated.HO [§ 251] 2. Statntoru state1ittmt as to Philippine 11umicipal corpnraiions. ~- :i, ilfoniciprditics in 1·cgular provinces. " It sh<'.li O e the duty of the municipal council, conformably with Jaw: "(gl To i·egulate the selling, g iving away, or dispensing of in1oxica1ing, ninlt, vi11ous, mixed, 01· fermented liquors at retail. *"Ill The section in which the above-quoted prnvision is to be found is entitled "Certain lc!lislativc powers of mandatory character" [§ 252] b. Munici1wJitie.~ ii, .~peeially organized 1n·ovinces. '' The' municipal council shall have power by ordinan~e or resolution: "(d i "To ?·egulate, or pl'Ohibit the selling, giving away, or disposing, in any manner of any intoxicating, spiritous, vinous, or fennented liquo!'s. "But nothing in tl1is section shall be held to repeal or modify the pro,·isions oi law prohibiting the sale, gift, or disposal of int0xicating liquo1·s, other than wines and liquors, to nonchristian inhabitants. [§ 25<1] c. Citu •){ Manila. "The Municipal Board shall have the fol!owing legislative powers: " ( p) 'T'o ... reg·ulate t!H: sak 0f intoxicating liquors, whether importC<l or locally manufactured. [§ 254] 0 . 1lforketi; and mlkrkel plucei;. - 1. Jn geneml.a . G en<'rol/1 1. "The public sale of articles of food has been subject of police ree;ulatim1 and control from the early de.ys :if the common Jaw. The l'ight to con(iuet such sales, or to open a place where sales niigl1t be conducted b~, othet·s, was treated in England as a franchise held under the kind to be supported by express grant or by prescriptio11. In the United States the right to establish and regulate market<> is an e~crcise of the police power of thf' states. AP-ci the right to open and conduct a market is usually derived from th~ municipal corporation within whose limits the market is kem. The police power of t he states to establish and regulate markets. may be delegated to municipal corporation,; an<l is a pa.rticularly appropriate subject for municipal rcgulution. This powm· may be exercised either under statutory oi- charte1· provisions relating expressly to the estai>Jishment and regulation of markets, or the vending of meat and other commodities usually sold a.t such places, or under the gene1·al police powers ordinarily possessed by municipal corporations. The powe_1· may be exercised whether the market is carried on by a corporation, an unincorporated association, 01· even a private individual. While in judgi1ig- the reasonableness of such regulations the court will llOt look closely into mere matters of judgment whCl'e there may be a reaso;iable difference of opinion, and \~ill not interfere with the exercise of the discretion granted to the municipal corporation upon the ground o~ unreasonableness ex11 0 P •'Op]e ,... 13 L.J. J 11 Sec. ~ 2 4 2 , Code. 1 l ~ Se<·. ~6 2 ~. Code. F ebJ' ua ry 28, rn;:;.1 THE LAWYEHS JOURNAL 105 cept in a clea r cao;e, 1·egu\ations relating to markets must. be reasonable and not arbitral'y or discriminatory. The 1·cgulat10n must have it~ foundation on public necessity; it must have some rational toondency to promote the public health, safety, and welf~re of the municipality. The right to establish and regulate public markets cnnnot be used to create a monopoly of the right to sell, or so as to deny the right of consumers and producers of market supplies to deal with each other directly. The power granted by statute must be exercised in the manner pl·escribed therein. An}" ordinance rdating to the regulation of markets is invalid if in c~nf.li~t with a valid statutory provision, and e statute expressly hm1ting the powers of municipal authorities in regard to markets is ~ot repealed by a general statute authorizing them to ena~t. all. o~~i\~ances necessary for the general welfare of the mumc1pahty. "PrOhi.hition: The power to regulate markets does not include the power to prohibit."115 .. ''Const1·uctio11 of power. The power conferred upon a murncipal c0rporation to establish and control markets is, as a rule, to , be liberally construed, unless such a construction will tend to produce a monopoly in favor of private individuals." 116 "Surrender of power. The municipal police power over markets c&nnot be surrendered."117 [§ 255] b. Statl!tory statement as to Phili.ppine m;micipal t·"r]Jorations. - (!) Municipalities in regular provinces. "'It sh::.il be the duty of the municipal Cl)uncil, conformably with law: "(q) To est~blish or authoriz~ the establishment of . kets, and inspect. and regulate the use of the same:'118 The section in which the above-uotcd provision is to be found is entitled "Certain legislative powers of mandatory chararter." [§ 256) (2) Municipalit ies in specially orgamized provinces. "The munit·ipal council ;;"'hall have power by ordinance or re:.~~~1tion: ·'(y) Shm.r;hlerhouscs a11d markets. - To establish or authorize the establishmPnt of markets, and inspect and reguk.te the use of the same . . [§ 257] <3l City' of Jlfanilll. "The Municipal Board shell have the following legislative powers: * "(cc) Subject to the provisions of Ol'dinances issued by the Depcrtment of Health in accordance with law, to provide for the est.i.blishment and maintenance and fix the use of, and regulate . markets . . and prohibit or permit the establishment or operation within the city limits of public markets . . by any person, entity association, or corporation other than the city." . [ § 258) 2. Delegation of power. "In the absence or express authorization from the stale 0r power necessarily implied from that granted, the discretionary power to control and regulate markets must be exercised by the municipcl governing body and cannot be delegated to any board or official; it must be exercised by the board er official on whom the power has been conferred. Under delegated .authority municipal corporations may provide that certain murkets shall be established and operated subject to the regulu.tions adopted by designated boards or officials. The fixing of rent of market stores has been held to be an administrative function ~91 -392, 115 Id.392. 116 ld.393. !~~ ~~~.3~~42, Re,·. Adm. Code. 119 Sec. 2625, Rev. Adm. Code. 120 Sec. 18, Rep. Act No. 409. THE NATURAL LAW < Continued from page 65) failed here dism?,!ly - there al'e miliions still languishing in sbve and labor c::i.mp~, there arc still people shipped in cattle cars and there will still be million:. who will be cannon fodder at the whim of so-call~d Jei::ders. On this level, the Declaro.tion of Human Rights, approved by the United Nations Organization on December 10, 1948 is a rr.oder!l which may be delegated to designated officials or boards.''121 [§ 259] 3. J,ocatfon; abandonment ttnd removal. "In the absence of any restriction as to place, the right to establish a market includes the right to fix its location; to shift that location from place to place wl1en convenience or the necessity of the people requires it; and tc abolish a. previously existing market and establish another in a different locality within the municipal boundaries. The fact that the site was acquired for market pur poses is in1material. But a municipal corporation should not abolish a duly authorized and rxisting public market which is the only one withm the municipal boundaries.''122 [§ 260] 4. Leases and sales; stalls and privileges. "The right to sell in public market stands or stalls is acquired by contract \''ith the municipal 01· other auth'Jrities controlling the market. Municipal corporation.;:. have power to lease or sell stalls in public markets. or to prohibit the occupancy of a stell without procuring a lease. The precise rights of the occupant of a sta11 in thr: market will de:pcnd as a general rule upon the terms of the contract under which the stall is held.''123 "The purchase of these stalls in a public market, like the purchase of a pew in a church, does not confer on the purchaser an absv!ute prcperty, but a qualified right only. The !·ight acuired is in the nature of arl casement in, not a title to, a freehold in the !and; and snch right or easement is limited in duration to the existence of the market, and is to be understood as &cquiretl subject to such changes and modifications in the market, during its exi:.tence, as the public needs may require. The purchase confers an exclusive right to occupy the particular stails with thei 1 · appendages, for the purposes of the market and none other. If the owner be disturbed in the possession of the stalls, he may maintain case or trespass ll.ccording to the nature ~ml circumstances of the injury, against the wrongdoer. But he cannot convert them to aiiy other use than that for which they wel'e s0ld, and in this use of them he is required to conform to the regulations of the mai·ket as prescribed by tl1e ordinances of the city."12i The right to sell at a stall or stand in a public market is to he e)(ercised by the lessee thereof subject to all qualifications nnd restrictions that the municipal corporation may impose; and this is so whether they are made part of the lease or contract or not. Such re(:uiremcnts or restrictions must be reasonable. His l'ight is limited in duration to the existence of the market. The lessee of a market or its revenues also takes subject to the provisions d existing ordinances, a.nd the rights of the municipality to make r.ccessary public improvements. The lease of <.I- market sla!l does not imply a car.tract on the part of the municipality to protect the lessee against competition by unlicensed vendors, nor docs a lease of the r~venues of an established mal'ket prevent the munidpality from establishing another market and leasing it tc a diffe:·ent person, or require it to prntect the lessee against competition by unauthorized private markets, unless the' contract so provides, or gives such lessee any right of acti'>n against a person maintaining a competing :md unauthorized private market. A person in pos-~e!"sion of the stall under a vcrhal lease from the market master, nllhough the l:.i.t.tcr bad no authority to make it, is not a trespassn so as to authorize a forcible sf!izurc and removal of his property, nor caP. the lessee and colltictor of marktt revenues summarily eject the occupant of a stall admitted by his predecessor in office who has tenderer! thu re:quircd dues and conformed to the market 121 43 C.J, 393. l~! i~oJt ~Jitimor<:. 51 Md. 256, 270, 31 AmR 307 [quot Fonte v. Fisher. 138 Md. 6ij3, 114 A 703, 704. applicat10n uf the natural law. Tt contains the harmony of ideas and agreement or views of sa many l' nited Nations representatives of widely different ob!utiacs 0r culture;;, philosophies and religions. That is not an accident of p0litical agitatirm or propaganda and oratory or 1hetoric. It is the conspicuous result of the presence in all men of thC' continuing protective 'postulates of natural law. Le\ us hope that policy makers f:!•d responsible governmcnt fuctionar!es rcalizr> fae usCful l'Olc and function of the natural law in the legal order. 106 THE LAWYERS JOURNAL F ebruary 28, 1954 1·egulatlons. 1'he occupant of a mttrkct. stall who sells his rights to another is not bound in warranty to his vendee in case of an evi..:tion or disturbancE. of the latter by the municipalit.y itself, but would be lia.blc only for his own 8.cts which interfere with the enjoyment of what he sells."1~5 A charter provision requiring that when any market belonging to a municipality is to be let to :'.l. private party the same shall, unless otherwise directed by a stale official therein referred to, be Jet to the· highest and best bidder l'efers to the leasing of a ma.rket in its entirety, and docs not apply to distributioil and award cf spaces therein."126 , Illustration. This case is here on appeal by the plaintiffs Julia Lorenzo and her Jiusband Ma1·iar10 Estrell<>. from a decision of the Court of First Instanc(· of Cavite, di!>=missing their corr.plaint against the Municipal Council of Naic, Cavite and Pilar Dinio. l<~or purposes of the present decision, the folowing facts gathered from the record may be briefly stated. Prior to February 15, 1948, it seems that the municipal market of Naic, Ca\'itc was conducted and maintained without much attention as to the order and classification of the business done in it by the vendors and stallholders, and that furthermore, there was lack of light and ventilation in saiJ market. To remedy this situation the municipal counci of that town passed Resolution No. 20 lon Ft:biuary 15, 1948, rearranging, zoning and oth.::nyise putting in proper order t he mercantile transactions and the market sp:icc i'.ccording: io a schC'me or pla.n. This is partly stated and described in paragrapJ1 I of said Resolution No. 20 which reads as follows: "7 That for purposes of unity, better zoning system and for ' aesthetic reasons, all market stores and stalls a1·c hereunder clas~ fied as regards the kind of goods they arc to sell or dispose to the public, and that, no store or stall should be allowed to sell products or goods other than specifica.lly provided." All he stores and stalls previously maintained in front of the market building up to the fence were ordered removed and the i.pace declared "off limits," the owners of said stores and stalls to be given spaces within the market proper. The scheme was graphically embodied in a pla.n pr~parcd by the District Engineer and amended by the municipal council, and is now marked as Exhibit D. Prior to the rCa1Tangement and re-pl:mning of the Naic market, Julia Lorenzo, the appelant herein, wa.s occupying a stall or market space, which is the very same space appearing as lot No. 4 (with a circle in red pencil>, east block, center column A, in plan Exhibit D, and now occupied by her. R. Manalaysay who previously occupied ~ space or stall in the portion declared "off limits," and because of the strategic position of said stall, was awardPd a ccrn..:r lot. Lot No. 2 (with a circle in red pencil), 126 Lorenzo et al. v. Mun. Council of Naic. C11vitc. 47 Off. OUR SECRETARY ... (CrJ'lli111wd from 71tt9tJ 57) and Agusan. In a year, he was transferred to llocos Sur. Promotion came i.n HHS. That was when he was designated assistant attorney in the Bureau of Justice. His merit was bein(:" recognized. ln th1·ec years, he was acting Attorney General. It '~as while' holding that position that he was nominated Undersecretary of Justice. Instead of getting his new promotion, h<' was kicked out - the Senate did HOt act on his appointment. His Hext job was that of general attorney for the Manila Railroad. The salary was much higher, but it lacked glamour alld prestige. Before long, he was designated judge of First Instance. For 12 years he was successively judge of Albay, Ambos Camarines;.. Tayabas, Riwl, and finally Manila, Rranch I. In 1936, he was named Solicitor General. Two Years later, he was elevated to the Court of Appeals where he sa.t quietly threughout the enemy occupation. President Sergio Osmeila returned with the forces of liberation, swept the entire Court of Appeals out, then abolished it. Collaboration became a burning issue, a battle-cry. The appellate justices accepted their fate with becoming dignity. They rallied under the banner of Senate President Ma.nucl Roxas who, they knew, would show them sympathy and understanding. He did. Elected President, he promptly named Justice Tuason chairman of a committee to investigate the Philippine Relief and Rehabilitacaat blor.k, center colmnn A, In the samt> E.<hibit D. Pilar Dinlo who was formerly occupying a space outside of the market. was given lot No. 1 (with ~ circle in red pt'nciD, east block, center column B, in the same exhibit For reasons not known and not material to this case, and thr<Jugh a private agreement Manalaysay excllangcd his lot No. 2 for lot No. 1 of Pilar Dinio. The award of lot No. 2 to R. Manalaysay, and his exchange of said lot for lot No." I of Pilar was protested by Julia, but the municipal council in its Resolut.ion No. 28 overruled the protest. As a result, Pilar Dinio is now occupying -lot No. 2 while R. Manalaysay occupies Jot No. 1. It should be stated in this connection so as to fully understand the reason why Julia brought this action, that before the :ioning and rearrangement of the Naic market as per Resolution No. 20, the space occupied by Julia which is 11ow lot No. 4 in Exhibit. D was a corner lot or stall, lot No. 2 then being used a:; an alley. As a result of the rearrangement, Julia's lot No. 4 is no longer a r.omer lot, and according to her testimony, her dail~· sales had diminished by one-half, thereby materially reducing her gross iucome and her profits. Naturally, Julia is interested in lot No. 2 and she wants to have it or at le<ist i-1 ave a chance to get it. Julia contends that tl1e action e>f the Mm1icipal Council of Naic in awarding lot No. 2 to R. Manalaysay was illegal and unconstitutional because it was not done thru public bidding as should have been done, and that furthermore, Resolution No. 28 of the same council a.1)proving the barter or exchange of lots 1 and 2 between Manaluysay and Pilar wa:. equally illegal. , The trial cou1t invoking section 2242 (q) of the Revised Administrative Cude which imposes upon a municipal council the duty to establish 01· authorize the establishment of markets a.nd inspect and regulate the use of the same, held that the municipal councll of Naic was authorized to make thC'. award of lot No. 2 to R. Manalayst>.y, which award the plaintiff could not very well question in the in·cscnt case inasmuch as she did not include Manalaysay as party-defendant; and that furthermore, the allege illegal e.xchange of lots 1 adl(I 2 was cleady a private arrangement er agreement which concerns only the parties thereto. So, the I.rial court dismissed the complaint. In her appeal Julia maintains that the trial court erred in • not holding Resolution No. 20 illeg-al in so far as it approved the awarding of lot No. 2 to R. Manalaysay without any public bidciing and without giving any chance to her to lease said lot, and that the lower occupying lot No. 2 for the reason that the exchange made between her and Manalaysay was illegal. HELD: "The :ippellant does not question the right of the municipal council to dispose of. a market space under the provisions of section 2242 (q) of the Revised Administrati've Code. She insists, however, that under section 2319 of the same Code, a space in a municipal market should be let or awarded to the highest bidder. lion Administration, some of whose officials seemed to have adopted the theory that to relieve and rehabiHtate the country they must first relieve and rehabilitate themselves. Also due for investigation was the Emergency Control Administration, a number of whose officials were charged with having taken advantage of the emergency to place themselves, their relatives, and close friends, beyond control. Before he. could finish . investigating the two a.dministrations, he was elevated to t.\1e Supreme Court from which another President has recently taken him to head the- Department of Justice. Asked which u! the two positions he would prefer, he answered that the work of an associate justice was more suitable to his tcmpernment, but that the secretaryship of justice was more interesting. In fact, he added, it is more important because it invests the occupant with tremendous powers for good or, or if hi' be so inclined, for evil. Speaking of evil, Secretary Tuason thinks that the present l:igh rate of criminality in the Philippines is due largely to the general disintegration of morals. Heligious instrut'tion, he feels, might help - remedy the situa.tion. It is fot .. this reason that he is in favor of strict adherence to the constitutional provisions on religious teaching in the public schools. Unwiiling to rush in "where angels fear to tread", he nevertheless believes that "any religion is better than no religion at all and that a man who be. lievcs in God becomes a better citizen." February 28, 1954 THE LA WYERS JOU RN AL 107 LAUGHTER IS LEGAL A LETTER TO THE TAX COLLECTOR ANONYMOUS YOU HAVE BEEN TH.YING to collect an income tax balance. from one R ..... R .... ., late of Winchendon, Massachusetts. This, despite the far,t that you have been informed, several times, that the man in question departed fr::im this wicked world on May 11, 1943, leaving no estate to be administered but many sorrowing creditors who wished that he had. Now you send a final notice to this deliquent that you hoid a warrar:t of distraint for the ~aid taxpayer. In these circumstances, the family and friends of the deceased have given this problem a thorough intellectual mastication, after which, they retained me in the name of their departed relative and friend to convey to you the sum total of their collective wisdom and co-operative spirit. If you should decide to send a U.S. Marshal or other off;cer t<i serve the warrant, you will find the taxpayer, his kith an<l kin avow, comfortably ensconced in a cubicle 7 x 3 x 6 in St. Mal'v'1> Cemetery on Glenallen Street in .said Winchendon. Your M:l ~·i,al might first try whistling. If that brings no response, p:a.ce ;, pint of Johnny Walker <Black label> within arm's reach of the to11bFtone. If that doesn't bring him up, then you will surely know tr.at he is deader than a doornail. If your Marshal kno~s how fo, commune with the dead, he might be ~hie to coax " the fellow to explain his apparent delinquency. However, if your Marshal is in no hu1Ty - and I nf:ver saw one that was - let him bring some sandwichl's and a comfot·tahfo chair with him and sit himself down with a COJJY of "Forevf:r Amber" and wait amund until Ressurrection Day. On that Day of Days, the man you are looking for will undoubtedly stand up for a ghost. ly seventh-inning stretch, at which time the warrant can be Ferved. Ano"~her happy thought might be of added cons0lation to ~'OU. If the taxpayer refuses to budge until he hears Gabriel blow his horn, don't let it bother you. For on that day, when th(' dead I shall live again, you will be able to demand, not on\; the tax due but also you clo'n ask for interest to the Day of Judgment. What you get from this guy alone will be enough to pay f.lff all t.hc, ira. ~ tional debt :iccumul.ated during the past golden decade. If you a!·e a good Democrat - as you should be - thRt feat alone should entitle you to a gi·eat reward in th!:' gre11t Hereafter. There is one possible hitch to this happy thought. You sec, my dear Colleetor, it all depends on whether the m~n you want is in Heaven or in Hell. If he's in Heavf'n, you have nothing to worry about - your money is as good "lS a Victcry Ilond. But, if by chance he should be in the other place, I'm afraid you're going te have a hell of a time. becE.use some damn-fool lawyer is sure to get hoid of him and put him through banhuptc~'· Then, you'll be out of luck for fair. But meantime, do as I suggest. Go down to see him and have a little chat with him. He may t.ell you where his permanent domicile is, in which case you'll know where you can go if you w;i.nt y.:mr money. If y:>u should decide to ta.lk to him, will you be good enough to tell him that my charge for writing this letter is $5.00 and that I don't want to go chasing all over Hell for it. Sa.id section reads as follows: "'SEC. 2319. l,etting of t1mnieipal ft rry, market, or salughterhouse to highest bidder.- When any ferry, market, or slaughterhouse belonging to a municipalit.y is to be let to a private party, the same shall, unless otherwise directed by the Department Head, be let to the highest and best bidder for the period of one year or, upon the previous approval of the provincial board, for a longer period not exceeding five years, urder such conditions as shall be prescribed by the Department Head.' "We cannot agree with appellant in her interpr;;itations of the above-quoted section. Said section clearly refers to the letting or leasing of a ferry, mark~t or slaughterhouse in its entirety, to a private party to be operated by the lattc1·. For instance, when a municipality does not wish to operate a slaughterhouse by administration but prefors to have a private party or {:ntity operate 1·he same for, 1' fixed sum, for a pel'iod of say one year, unrler certaiJJ conditions, the Council calls for bidders and then makes the. ward to the best and most responsible bidder. The same Client (just acquitted on bm.·glary charge) - "Well, goodbye. I'll drop in on you some time." Counsel - "All right, but make it in the daytime, please." "I shall have to give you ten days or $20," said the judge. I'll take the $20, Judge," - said t.he prisoner. '•Repeat the words the defendant used," s:.iid the lawyer. "I dici mther not. The.y were not fit word.!> to tell a gentleman." "Then," said the a.ttorney, "whispher them to the judge." - (2,500 Jokes For All Occrulion.sl Perfume salesgirl: "You've gottii. keep changing. They build you an immumty to them." - Charles Skiles - King Features The mini;;tur to drive home a point about the punishment due to wicked people in hell ended his sermon with the following: "And there will be quasliing of teeth in hell" . . but an old man stood up, "how about me, I ain't got no teeth." The minister answered, "Don't you won·y, you will be provided with." 1 DOUBLE JEOPARDY lContini1ed from }J(tge 6!D fundamental constitutional guaranty to the contra.ry, the accused is placed twice in jeopardy for the same offense. It is, therefore, 11.:ell reco9nized that /he doctrine of donble jeopardy is predicated 11pon considerntWn of public policy which volicy has become its ult.fouite and fundamental ba.11i11. (underscot'ing ours.) For that rea.son no legal impediment exists to apply to the military establishment the prevailing view that "if the jury, after it has been duly sworn, is discharged before it has rendered a verdict, a second prosecution for the same offense is thtreby barred, since to permit it to proceed would be to place the d~fendant twice in jeopardy.''2& The rulings dis~ussed above violate the democratic ideals of equal justice under the Constitution, which is the embodiment oi all high hope:; and aspirations of free men. That Constitution is applicable to all regardless of race, creed, or .color, whatever their station in life may be. By that token, there are no such things as one plea of douhle jeopardy for civilians and another for military personnel. The fact that the military personnel are often exposed to inconvenience insofar as the administration of justice is concerned, means that the broadCI' meaning of double jeopardy should apply to their case. After all, it i.s the prevailing view in the American courts vf justice which the Philippine " courts have traditionally followed As it applies to the civilians, there is no reason to deny it to the military personnel. thing is done as regards a nrnnicip&I market or ferry. But what is meant is the whole ferry, the whole market or the entire slaughterhouse and not any portion or any fractional part of the space therein. When a municipality itself administers a market, then under ihl authQrity regulate the use thereof, it may distribute and award spac<>s therein to be occupied by stores and stall~ ~nder conditions and regulation!> it may impoi:;e, but not by public bidding. Otherwise, the with the great number 'lf stalls, numbering hundreds or even thousands, depending upon the size of the market, some stalls or spaces measuring only by a few square feet or square meters, public bidding would entail too much unnecessary proceedings and would result in unnecessary rivalry and competition betw~en numerous parties and also differences in rate and amount of rent paid for the stalls instead of a i:;imple uniform rate based only on the space occupied. It is therefore, clear that on legal grounds the stand taken by the appellant is "untenable.''127 127 Lorenw et al va. Mun. Council o( Naie. Cavitc 0. G., 2360·23G3. THE LAWYERS JOURNAL Febl'Uary 28, .1954 J Lawyer's ' ~,,,. ·"'"'-'"" t'"'.f:, ,_,,., ! j t ANTONIO. II.OMAN B. I 302 Snm11nillo llldl(. 'rd. 2-92-09 ANZUIU:S. Hi·. f'ABLU LllW}'•'I' Med ico-l.<:1111 1 E xtl<'rt Tel. 3.79.49 Rm. ~04 f-lur kc Bid!'-· E scolt" ;;Hnt;!. JI.le"" R\\·d .. corn-'t' Socicl(o, rei. 6-t.3-76 HANICO. JIERMINIO B. R-2(.ll Snmanillo l:Ud.: .. L"••I. 3.:13-64 CA !tDENAS . Ju.,,_ l' EHEZ 405 Avile& . Man i. ~ Td. ~-71-:16 L !JALUPAN .,,,--~ N"ll lo:Z R-314 Re11;inn , _ .., l!:•c<>lh. Tel. 3-27-57 FERNANDE~. JR .. •;STANl1'LAO A · ~o~ SHmanillo Hid., .. M;rn;i,, n!Al. Td. '1-!~-1:1 Gnll : ~~2~ rHANl'I St:O, AL!Jt:lcru J. R-201 lfa n•11nill" AT<li.: .. T~L :1-:l;l-64 FltAN GISCU. VH.: ~;N n; J R-~01 Shm,,nillt> l:ll<li; .• Tt·I. 3-33-64 t;UERH•;l{U. UERNARDINO R-311-C R..,IC;,,., llldg. Office T~I. :!-22-31 Lo<n l 4~ n~s . Tel. 6-n-L!i !lnvic ... · ofthc1•r~"""tdifficultyof ~t~off1cc•uf prncticini:- attoru~ys. th~ Jo.,rnal_ 11uLli~hc~ thi11 directory to acquai11t not only their cli~nls !mt :dso the J>uhlic of their addre~•. L11w)·ers may,..,.,.;] them,..,Lve~ of this •<: rvic<! UPon JH<Yment of 'I~ e><ch inuc of this publ ication.) MA'l'IAS, ANlJlcE;; ll-20! SHmanillo Hid)(., Tt•L 3-3~-M QUISUMlll Nt;, S Y(;IP , QUISUMmNt; IV SALAZAH LAW OH'ICES <"olh Flooo·. Tr1td.., and Cotnm..,rce llldg. 11J J uan Luna. M1tnil1< T<·l ~1•hone~ = 2-73-~ll & 2-93-26 SA N JUAN . AFIUCA. YNIGUES & H•:NEl,I GTO Suite 226 Hcginn llldw: .. 21ld t'l<>0r ~;scolt:I. /ll;rnila. Te!. 3-2~-60 :-!ANTOS. JOSE T. VE LOS. :-!ANTOS Gl!t l ACO 1". DE LOS l'nih:H t\11-206 P~dro Cruz 111<1" ~-~t ~:·;4n_~~li•ta. Manila S UH IANO-. MANUEL A. Q. ;';uri,tno Law Office~ :0:11ilP 40:1 S1tm~nillo Hldg. E,rolt>1, ~fonilrt /11 ,\ CAl'AGAL. PUNZAL,\N & YAllUT ·n;NZ A, t:LI SEO M. .Sui!o 218-120 Con•olid,.h•d ln\'estment Hldi< .. Mnniht T··L a-2;,.os Suit., No. 408. SHnrnnillu IJldlC. ~~~-01:1~ii:;~1r~~ " i tn BONDS INSURANCE ALL KINDS FIRE & MARINE Manila Surety & Fidelity Co., Inc. Rm. 301 MONTE DE PIEDAD I LOI LO Atty. SERAFIN LACSON . Brr111c/1 Jllnmigcr SAN FDO .• PAMPANGA Mr. GREGORIO T. CASTRO Branch Mrtnage1· Dr. PRECIOSO S. PENA GENEHAL l\1ANAGEH Plaza 'Sta. Crnz, Corner Ongpin, Manila TEL. 3-98-80 * BRANCHES: BACOLOD ~I t. i\IAHIO S. VlLLAKUEVA Rrandi Jl/(•llhgcr CEBU CITY, CEBU !\Ir. ANTOLIN ,\. JARIOL Bron.ch 1 \fanoyer LAOAG, !LOCOS NORTE [Jl". PABLO J. RAVAL Jh·o11eh Ma11ager NAGA il11·. FRANCISCO IMPERIAL Brrmch Al rnwger LUCENA, QUEZON Atty. F~LIPE T. LOPEZ Bnrnch Jllrrn11grr ~I ~ - -Lawyers, For Your Successful Law Pructice! I SECURE: For Particulars On FIRE ' MARINE • SURETY ' MOTOR CAR • LOANS & MORTGAGES • PERSONAL ACCIDENT PLEASE CALL UP TEL. Nos. 3-33-H-1 & 6-84-58 FOR OUR R E"''PRESENTA'l'JVE ; SUITES 318·2(o !'LAZA ~~ii · · MAN ILA CONSO i./ TED I NVF.S T M ~~N TS Hl .n f;. 1\fo1wger: Atty. Nicanor Jacinto, J r. FRANCISCO'S TRIAL TECH NIQU~~ AND PRACTICE COll~~ yvu 1111 ri smn ll foW•I 01 a ci/11 ·•r 11 who, /01 lww 1~ />al plrwn1n<1 lo ente1 1w011t1r r1t twc 111 act11 e v/ luw, you 1rned fin:; lwo~ 1i·orf;in,q rules of trial proced11re at11l exmninatfon of witnr~ses. Th e followi~iy vol1w1e:1 of 7'RfAL Tf.'Ch'NIQUE' ANU PRACTICE COURT Mc now rwailablc: VOL. I -P25.75; VOL. 11-PJ0.90;_ VOL. 111-PJ0.90; VOL. IV- e,·;:o YOL. V - Plb.05 ?154.50 - A SET (For pi·ovincial onlei·s an add itional Pl.OU pel' v0lurw· is charged fo1· mailing and handling expe11ses.) F l'ee literature on l'equest. Place YOUR order now at - EAST PUBLISHING I 192 Taft Avenue, Manila· Tel. 5-43-55