The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No. 4) April 30, 1954
Year: 1954
Language: English
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extracted text: i AP~ I 4 1 978 Jk~AWYERS JOURNAL VOLUME XIX VICENTE J. FRANCISCO Editor and Publisher LOPE E. ADRIANO RODOLFO J. FRANCISCO Assistant Editors ADELA OCAMPO Business Manager RICARDO J. FRANCISCO Assistant Business Manager ~ I . :!'-E-B-' L AWYERS JOURNAL is publiahed monthly by Sen. Vicente J . Franciil >, former delegate to the C<;nstitutional Convention, practising attorney and Pruidmt of the a.. Francisco College <formerly • Francisco Law School>. SUBSCRIPTION AND AD. VERTISING RATES: Sub.. scription: P18:00 for one year; PI0.00 for 6 months. Advertising: Full page - . P105.00; Half page - P65.00; MANILA, PHILIPPINES APRIL 30(1954 NUMBER 4 JUSTICE RAMON DIOKNO - Dean Vicente J . Francisco . . . 161 THE PHILOSOPHY OF SOME REFORMS INTRODUCED BY THE NEW CIVIL CODE - Dr. Jorge Bocobo . · ·• . 162 THERE MUST BE REESTABLISHED THE GOLDEN BALANCE BETWEEN IDEALISM AND MATERIALISM - Vice President Garcia . . . . ..•... . · ·.. 162 THE PKESEN1' LABOR UNREST - Atty . Geminiano F. Yabut . 168 BACK TO LAW SCHOOL - Atty. Frank W. Brady . . ... • . ... ... , . 168 RAMON DIOKNO Y EL EJEMPLO DE SU VIDA - Scnato1· Claro M. Recto . 170 SUPREME COURT DECISIONS: In the Matter of the Petitirms for Admission to the Bar of Unsuccessful Candidates. of 1946 to 1953 - Justice Diokno . • . . . • . 171 The People of the Philippines vs. Dasig - Justice Labrador . i83 Gonzales vs. Secretary of Labor et al -- Justice Rey~s . 186 Embate vs. Penolio - Justice Labrador • . . 187 Aligarbes vs. Aguilar - Justice Bengzon . . ..... . . , . . , .. ... . , , , . 188 M1 1rvel Building Corporation et al.s, vs. David - Justice L~bradvr . 189 Aquino vs . Judge de Guzman, et als., - .Justicf:: Labra.dor 192 Ty Kong Tin vs. Republic of the Philippines - Justice Bautista Angelo . . . . . . . . . . . • , • . • • . . . • . . . . . 192 Secretary of Public Works and Communications ct :;;.Is . - Justice Jugo . 193 De 1os Santos vs. Roman Catholic Church et als. - Justice Bautista Angelo ... . ..•... •• , . • , , .•. , . 1!14. OPINIONS OF THE SECRETARY OF JUSTICE: Opinion No. 11 . . . . . · · . . . .. ... . . .. ..... 196 Opinion No. 13 . . . . •• .... •. , . , . • • . . 196 Opinion No. 14 ... ... •. , . , ...... •. , • .. , .•.....• , ..... 197 Opinion No . 16 •. · ••• • •• •• .•••..... •• , .. , •• , . •• • . . . • • • • . • . • . • • • . • 197 Opinion No. 37 ... . .••. , •• ...•.. •. , . , •... •. • . , · · . . ,., .... • . ,.... . 198 REPUBLIC ACTS: No. 928 . ••.....•......•.•.•.•..•.•. . .. • • · • . , .•• • ••••..... •.. · .• 199 No. 815 .. . . • ... • ..•... •. . .•• • •. •. •... .. · • ...••. •. • .....• ..••. .• ·• 201 No. 892 ••• •.. . •.•....• • •••. •• •.. •••.. .••. . . , .. ••.. • .•..• . •.•.•. ·• 201 No. 899 •. . ... . .•......... . .•... . .. .. ... . . ·• . •••• . ...•.• • . .. .. . . . 201 No . 833 . . . • • .. • . . . . .. · · ... ..... ..... ... ... 202 No . 783 .. · · ..... . ..... . ...... . .• .. .•.• ..•...• ••••••. .• •• . •. •• ·, • 202 MEMORANDUM OF THE CODE COMMISSION - Continuation 203 PUBLIC....CORPORATIONS - Continuation 208 SWORN STATEMENT . . . 211 LAUGHTER "JS LEGAL 212 One-fourth page - P45.00; One-eight page - 1"35.00; One.. sixteenth page P25.00 Entered as second class mail matter at the Post Office. BUSINESS OFFl~E: 1192 Ta.ft Avenue, Manila. Tel. 5-43-55 EAST PUBLISHING 1192 Taft Avenue Manila Tel. 5-43-55 FRANCISCO LAW BOOKS IN SERIES REVISED LIST OF PRICES AS OF JANUARY 6, 1954 Civil Law in 4 Vols. f'30.90 per volume . . .. Trial Technique and Practice Court in 5 Vols .• Criminal Procedure & Forms in 2 Vols. , , Criminal Evidence in 3 Vols. Revised Penal Code in 2 Vols. (1954 Edition) Labor Laws (1594 Edition) Legal Ethics Legal Thesis-Writing ... Legal History . . .. Legal Bibliography Legal Research ... . . Negotiable Instruments Law .. Insurance Law . . • . . . ... . Revised Election Code <1953 Edition> Rules of Court Vols. I & II . Philippine Mining Law Vol. I Philippine Petroleum Act Vol. II . . •..•. Philippine Law of Waters & Water Rights Code of Conunerce (With Anootations) Land Registration Act . . .......... , . . Statutory Construction Ta"<ation. Roman Law. Law on Transportation in 2 Vols. Introduction to Law .. 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Subscribers who made advance remittances under the old rates will have their subscriptions extended in accordance with this new schedule. Subscribe now to the - - LA WYERS JO URN AL 1192 Taft Avenue, Manila Tel. No. 5-43-55 B 0 0 KS ---MAGAZINES •' ANNUALS BROCHURES CATALOGS L~ ( SOUVENIR PROGRAMS AND ANYTHING THAT IS PRINTED Capitol PUBLISHING HOUSE, INC. "Home of Fine Octset PrintinlE'' A Ramon Rotu Pu.blkatiorui Su.b~dia..,. Tell: Dial &ti ask for 116-.J orH ukfor 2'S-.J ~ JUSTICE RAMON DIOKNO To die in harness is the dream of many a successful man, as he looks back on a life devoterl to useful activity, checkered with fortunes and misfortunes, enriched by adversity as well as prosperity. The harder a man has worked, the more diffi1.:ult it is for him to stop working, as long as his physical and mental faculties will permit him. To such men, life is synonymous with activity; to be alive is to struggle; to stop working, to rest or retire, is to die a slow death. Such a man was Ramon Diokno, lawyer, jurist, legislator, political leader. Born. in an age that produced Quezon, Osmefi.a and Palma, coming from the province that gave us Laurel and Recto, Justice Diokno wa::i indeed a product of his times. He came upon a troubled world, for ihe Spanish regime had just ended and the American experiment was begin~ ning. There were innumerable opportunities for bright young men who rould quickly bridge the gap between the Spanish and English language, between colonialism and democracy, between old world courtliness ~md r.ew world initiative and brashness. Ramon Diokno was such a young man. It was the era of nationalism. The talk of independence for the nation just liberated from Spanish rule filled the air. The martyrdom of Rizal, the exile of Mabini', the ·sacrifice of Bonifacio and Luna were newspaper headlines rather than pages of history, and the immediacy of their impact on the national character was visible and audible. The smoke of battle was still in the horizon, and the sound of marching feet were often heard in the night. Ramon Diokno was swept into this current. First he was the young lawyer, then the youne- politician, then the young leader. He became secretary of the Philippine Assembly, a strategic position from which to keer. in touch with the leaders of the nation, as wen as with the Americans who were still layi!1g out the nation's course. He saw Osmeiia rise to power. then Quezon. II~ noted the defeat and oblivion of a g'roup of Filipinos who wanted permanent political ties with the United States, and he saw the mounting crescendo of his countrymen's . demand for coriiplete, absolute and immediate independence. He observed how political patronage was dispensed, and how political dog fi~hts were conducted. \Vhen he could no longer resist the can, he entered the fray and was elected member of the Lower House. But his fame and prestige as a corporation lawyer overshadowed for a time his political activities and he was appointed government corporate counsel. Here he was in his element, the fringe areas where government and business met, the enterprises and projects where ?.overnment became big business and big business often determined political doctrines. He amassed such a wealth of information ~md experience about the operation and inner machinery of government corporations that his advice was often sought by both administration and opposition alike. The call of politics became irresistible again, and in 1946 he ran for, and was elected, Senator. But he felt that his health was waning, and after his term ended he did did not seek reelection. Nevertheless, his country called him again, to another field, the Supreme Court. At ::m :ige, therefore, when other men would think of a life of retirement, of writing memoirs or of supervising a farm, Ramon Diokno accepted an appointment to the Supreme Court. He lived out the long twilight of his life. as he had lived the dawn, fighting for his principles, stubborn as only one can be whose cOnscience has been his guide, unafraid of unpopularity or political pleasure. In a precedent-setting decision, he voted against a group of vocal, well-organized young men and women who saw in him the chief obstacle to their admission to the Philippine Bar. It was his valedictory, and it is fitting that the younger generation should now o.ddress Justice Diokno: April 30, ltl54. Soldier, rest! thy warfare o'er, Dream of fighting fields no more; Sleep the sleep that knows not breaking, Morn of toil, nor night of waking. LAWYERS JOl:RNAL THE PHILOSOPHY OF SOME REFORMS INTRODUCED BY THE NEW CIVIL CODE ' BY JORGE BOCOBO I fee! highly honored by this opportunity to speak on "The Philosophy of some Reforms introduced by the new Civil Code." I can discuss only a few of tht. innovations, for lack of time. Far be it from me to claim that the new Code is flawless. I wish merely to explain the reasons which mo\•ed the Code Commission in effecting thE: changes. Such reasons may or may not be cogent, in the opinion of some who study this new body of laws, but I am desirous thut you should know wliat was in the mind of the Commission in proposing these r\!forms. THERE MUST BE REESTABLISHED THE GOLDEN BALANCE BETWEEN IDEALISM AND MATERIALISM' RY VTCE-PHESIDENT CARLOS P. GARCIA It is with a feeling of pride and cheerfulness t.hat upon invitation of my admired friend and comrade in the Senntc, Sen. Vicente J . Fl'anciseo. T have come to join you in the rejoicing of your graduation While it is true that every legislation should conform to the social conditions of the country imd the character and cultui·e of ~ the people, it is no less true that l1ew laws which may seem toe, advanced or may seem ina.daptable to t11e present-day situations have an educational value. For example, when the Roman legion!!' 1:xtended the sway of the Roman Empire all over Europe, and as tlie tlien unprogressh·e peoples of Europe accepted Roman euiture, they e.t the same time received Roman lew as part of that culture, and thereby after the lapse of centuries, enhanced and improved their way of life. It was in this way that Roman law influenced .tl1r· civil law countries, such as France, Portugal, Spain, Italy, Belgium :md Holland . Even the so-called common law of England is of Roman law origin, with the exception of the feudal tenure of lnnd, accordinJ" to Bryce in his "Lectures cm Jurisprudence." Therefore, some of the innovations in the Philippine Ch·il Code, if they seem strange to many members of the legal profession, should not be judged severely. Those adopted from abroad are a part of the legacy of civilization, :md although they may be apparently too advanced, they are intrnded to influence the t hinkin!" of our people, with a view to social betterment and reform. Wheth<-1· one foli(IW.!l the jui:istic school of natural law, led by Grotius, which has done so much for freedom, or is inclined tow0-rd th(! historic school which under Sevigny and Puchta has strengthened the i11fluence of the Roman law on modern legislation, it would be unwise to disregard the educational and regenerative function of lnw. A~ Pl'Of. Ludwig Ennecerus of the University of Ma.rbut·g has said: the supreme goal of law "is the unfolding of our entire cultu1·e, the perfection of the life of men in society nnd mankind. For such purpose, there is need of a fixed arrangement which would make it · possible and would set in motion a useful, moral and economic d£>ve. loprnent of all the people which would educate them to fulfill their duties." CEnnecerus, Ch;\ Law, vol. I, p. 85) Let me assure you that the Code Commission ha..s intended to tffect reforms moderately and gradually, avoiding as much ns possible At?ain: as to property relntions durint? marriage, two opposite radical changes. For instance, on the subject of abatement of public or Private nuisance: in th1? United States and England, extrafudicia.l abatement of nuisancP can be carried out without intervention of the authorities, but in the Philippine Civil Code there must be previous apprC'val bv the district health officer and the abatem<mt must be executed with the assistance of the locnl police. <Arts. 704 ancJ 706) radical changes offered themselves as standard systems: the absolute separation of property as in the United States, and the absolute community, as in Portugal and Holland. The first reform seemed to have been urged by the modern education of the Filipino woman and lwr ancient significant role in the family, while the SPcond change appeared to have been called for by the esbblishPd rustom among most Filipino families that the properties brought into or acquired during marriage are in actual practice merged. But the Commission chose the mi<ldle ground by continuing t.he old conjugal partnership tut !{I modified as to protect the rights of the wife. Thus: the husband can no longer alienati? or encumber the real profJerty of the conjugal partnership without the wife's ~the &cornJ National Conv.,ntion of Lawyer1, Dccc1nber 28. rn53) VICF: PRESIDENT CAR LOS P GARCIA and congratulate you for work well done and to wish you success in the praCtical life. These congratulations and best wishes, I want to extend to your beloved Alma hfater, the Francisco College, which in a brief span of a few years has risen to be one of the outstanding law colleges of the nation. No doubt, the quality of the instructior.., the prestige of its founder as one of the legal luminaries of the Philippines, and the accomplishments of the products of this school in the field of practice, constit.ute the vital factors of the speetacuJar growth of your Alma Mater. And now, my friends, as I sec before me a handsome group or young men and young women trained and· primed for the legal Thia a~ch will! delive~ bf Honorable Carlo~ P. Garcia, Vice President or t he Philippines and Concurl"f!ntl)t Secn>tarJ ot Foreign Affalt1 on the occasion of Tilt> Comment.:Cment exe,.,,isH ot The Fr1u1clacG Colleiro ou March 30, rnM. 162 LA WYERS JOURNAL April BO, 1964 THE PHILOSOPHY . • • consent (art. 166), and in case of o.buse of powers of administration c,f the conjugal partnel'ship by ' the husband, the courts, on p('tition of the wife, may provide for a receivership, or administration by the wife, or separatiun of property Cart. 16':'>. M:orl!over, the wife may, during the marriage, and within 10 yt:ars from the transaction, csk the courts for tho annulment of any conh·a.!t of the husband entered into without her consent, when such conser.t is necessary, or any act or contract of the husband which tends to defraud her or impair her interest in the conjugal pa.rtnership. <nrt. 173) . With these safeguards, the Commission believed that the C(lnjugal partnership system was the best, for the present at least. Of course, by agreement in the marriage settlements, the future spouses may adopt either the absolute separation or th~ absolute community of property. A third exrunple of the policy of moderate reforms refers to the sale with pacto de retro. In view of the grave abuse of thi~ ccntract, which had become an instrument of greed, oppression an1~ exploitation, our first impulse was to abolish pacto de retro eii.tirely. However, we feared that the lender would demand an absolute c:mveyance of the land by the borrower, who would, out of compelling fimmcial necessi~liave to yield . Therefore, the Code Commiss·on also adopte.d a ~ ile gr.mnd, by the repeal of th~ automatic consolidation of ownership 1n the vendee and by giving the vendor ample opportunity to repurchase the property Carts. 1606 and 1607) II However, whenever the Commission saw the wisdom of introducing a radic&l change, this was done. In such cases, we felt no qualms because our nation, which is civilized and progressive, shoul:l share the precious hP.ritage o! culture o! the world, Besides, evfn when there were no precedents elsewhere, but the Commi<;sion orilrinall~ aaw the rightfulness of a reform, that body did not hesitate to introduce the changes.· As the Commission in its report said: 11Law should not be static but vita.I and ever-growing. While there ought to be stability of ihe laws, they ought not to be so inflexible as to destroy th€ir very essence, which is the supremacy of right. When there is delay of justice, it is truly said that ju~tice is denie~. a grave situaticin indeed, but graver still is the pt.-rpetu!ltion of injustice by the law itself, for then the courts can do nothing- but apply the 18.w. How often the courts have deplored their melancholy ta.sk of applying a legal provision which they knew ran counter to reason and equity! The commission does not, of course, presumf! to claim that every reform suggested is unerringly the just rule or norm, but each proposed change is an expression of the Commission'• best judgment as to what is right and fair." III Permit me new to set forth the reasons for some of the awef'Ping and radical changes. The provisions fall under five ca'el?<des: CU damages in case of intentional injury when the act, though not against positive law, is contrary to morals, good customs or public policy; (2) independent civil actions: (3) strengthenine: of democracy; (4) implementation of social justke: end <5> surn·emacy of equity and justice as against technicality and legalism. On the first subject, art. 21 of the new Civ:J Code provides: "Art. 21. Any person who wilfully causes loss or injun· to another in a manner th~t is contrary to morals, good customs or public policy shall compensa!e the latter for the damage." It will be noted tha.t no positive Jaw has been violated. But there are three requisites: <U damage; C2> the act must have been wilfull; and l3) that it must be contrary to good morals, good customs or public policy." This reform has been adopted, with certain modifications, from art. 826 of the German Civil Code. lf no law of the State has bc>en hroken, why should the defendant be liable for damages? This innovation is justified by the Code Commission thus: "In the last analysis, every good law draws its breath of life from morals, from those principles which are written wt th words o! fire in the conscience of man. If this premie:e is admitted, then the proposed rule is a prudent earnest o! justice in the face of the impossibility of enumerating, one by THERE MUST BE ••. and business professions, as I see so many pairs of bright eyes s1iarkling with hope, and burning with enthusiasm, and I see by the mental ,eye so many thousands of the youth and flower o! the land graduated in hundreds of schools and colleges throughout the country, I cannot help but be uplifted by the feeling that with such a great army of intellectuals, trained and · specialized in different activities of human life, the march of the Philippines to new heights of achievements, to vaster fields of development, and to new depths of strength and Power must be irresistible and irrepressible. That is why hope has again flowered in my heart and in the midst of youth, its strange and magical alchemy restored to me at least momentarily the dreams, the visions, the idyllic hours or my youth. Thru contact with you, I hear the returning vagrant faith in youth knock at my heart. With you I seem to imbibe a new Elixir. of life abounding in faith and hope ani vision of a greater Philippines. With so many college graduates, with so many educated hands and hearts, we should be able to makfl the Philippine Republic the most enlightened, the most prosperous, the most prog1·essive and the happiest democracy in the Far East. Indeed, we have a right. to cla.im the honor to be the cultural metropolis or Southeast Asia. My young friends, before you start in the thrilling adventurP , of life, as you sail farther and farther from the shores of theory into the oceanic vastness of practical life, as you more and morA have to depend upon yourselves and draw from your own menta.l antl spiritual 1·eservoir to wre~tle with the problems and difficulties cf life, a few words of reminder may not be amiss. While your hopefor success may be rosy, while your determination is aflame with the will to succeed and your enthusiasm ebullient with vitality and you feel invincible, yet you cannot indulge in the illusion that your diplomas will open to you with the least effort all the gateways leading to success. I would r.ather advise y~u to look at life realistical:y without in any way betraying your ideals. While you should hitch your wagon to the stars, never forget that you are walking on solid earth. While you should polarize your thoughts, your dreams, yot1r emotions and your efforts to your idealism, you shoulJ never forget that you are dealing with hard earth-bound realities. You should be realistic enough to recognize that in the sea o! life, there Rre cur1·ents and cross-currents. You should philosophically accept tb? fact that in this grand adventure of life you sometimes have to pass through the Sargasso Sea of doubt and hesitation. You have to navigate ·over malestroms of adversity. You have to face storms and tempests, and now and then you will sojourn on Calipso ishnd where life is easy and soft to make you forget and to lull ycu int" vicious ina~tivity or inertia. But t'Jese warnings are •not intended to pa.int a somber picture of the life ahead to discourage the young travelers of life. Rather, they are intended to spur you to action because these things, t!iese hat.ards and these proble-;:i.s, are simply the tests and trials dt.-signed by Divine Providence to be overcome and to be surmounted before the reward of success is attained. It is one wa.y of telling you that nobody can win success as a gift handed to him on n silver platter. You have to work for real success; you have to sow in energy and effort in thought and vision if you want to reap success in life. You should by now realize that you shall not win where you did not sow. Those of you who indulge in the illusion tha.t you can win your battle in Jife by relying on your wealth, inherited or nc. quired, those of you who indulg~ in the illusion that such qualities as honor, integrity, courage, honesty, intellectual brilliance or moral strength can be purchased with money should start reexamining such ideas in the light o! the rediscovery by science of the eternal, lnalterable, inescapable a.nd exact cosmic law of Cause and Effect. This law, i! I may superficially state it, commands that nothing exists in life, nothing happens in li!e without a cause. Nothing can intervene to prevent cause to produce its effect. There is nothing that man can make to avoid the conseque11ces of his a.ct. That is what Jesus Christ meant when he said in the parable of the Sower: "Thou shalt reap that which thou soweth." Thus, under this infallible and inexorable Jaw of Cause and EfApril ao, 1954 LA WYERS JOURNA1' 163 THE PHILOSOPHY one, all wrongs which cause clamn.ge . When it is reflecte;t that while codes of law and statut('s have changed Crom age to nge, the conscience of man has remained fixed to its a ncient moorings, one Can not but feel that it is safe and salutary to trr..nsmute, as for as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality wllich ought to be one of its superlative at.tributes." The origin of t.his principle is the doctrine advocated by some German jurists, such as Adickes, Bullow, Menger, Erlich, Wurzel, ar.tl Kantsrowicz. These legal philosophers give t11e judge the widest freedom to follow his reason and conscience, so long as he does not set contrary to positive law. According to Adickes, the value ot positive law is only as a limit beyond which the judge can not go in arriving at his deci.\'.ion, which is the fruit of his own renson applied to the relations of life, provided it is not opposed to po~ sitive law. The reform effected in said art. 21 of the new CiyiJ Code is not at nll sti·angc if we bear in' mi rid these words of Prof. Clemente De Diego : "La idea de la justicia cs cl brote de ~odas lus manlfeste.ciones de! Derecho, como la belleza lo es de todas las artisticas, la verdad de todas las cientificas y el hien de todas las rticas." <Fuentes d~l Derecho Civil Espafiol, p . 155> Art. 21 may also be justified by these words of Eugen Huber, author of the Swiss Civil Code of 1907: "Moral law bas in law such a penetrating and ,-alue.ble significance that we can not speak of positive law without referring to moral law. The moral law and thC" law of the State have the same object and purpose, and toitether thP.y govern human aims and conduct., which constitute human society itself. x x x Human community is the field in which morality and law act as_imminent ideas in our rational conscience x x x. It Is equally possible to consider morality as included in kt.w and to consider law as included in morality.." <Law and Its Realization, Vol . I, pp. 41-42). Lat.er on he i::ayg thet the essC"nce of n1odem cultutf' "is the coincidence of the law with the moral law." (p . 79). The ~ffect of the innovation in nrt. 21 is to give relief fo:r every intentional wrong which causes damage, even if no statute has been \·iolated. The Codt> Commission in its Report gives this example to illustrate art. 21: "A" seduces a 19-year old daughter ot "X". A promise of marriage either has not been made or can not be proved . The girl becomes p1·egnant. But there is no crime, as the girl is above 18 years of age. Neither can any civil action for breach of promise of marriage be filed. However, under the nt>w Civil Code, she and her parents may briug n civil action for damai;tes. As for public policy, this is not found in the source, o.rt. 826 of the German Civil Code. But public 11olicy was added in Art. 21 of the Philippine Civil Code bec:mse it is of supreme concern in &nv country. .If a man in defiance of a declare<! policy of the State cause~ loss or damage to another, he <the fcrmer) should pay in . demruty, though his act is not contrary to a statute. Let us take the public policy of social justice, which is consecrated in tl1~ Constitution. If s. l'ich n!an, by means of a legal technicality discovered by his lawyer, exploits a poor man without violating the law, the vie. tim, according to art. 21, may demand damages . IV. The second reform, which creates independent civil actioM, departs from well-established ideas in the Philippines . Some of these civil actions ere similar to the Anglo-American institution called "tort." Others are of a different character, which will hi:! explained later. This civil action is separate and independent frofl'1 any criminal action. Here are somfl cases similar to "tort ." (U Art. 33, authorizing an independent civil action for defl'L mat.ion, fraud or physical injuries. These actions t'orrespond, res.. pectively, to the Anglo-American torts called libel or slander, deceit and assault and battery. CZ> Art. 32, which creates a civil action, separate and distinct from the criminal action, in case of violation of individual liberties, guaranteed by the Constitution, such as freedom of religion, speech, and of the press, freedom from illegal detention, freedom from unreasonable searches, freedom of suffrage, etc. CS> Art. 26, which establishes a separate civil action to protect one's privacy and private life, etc. (4) Art. 27, which gives a right of il1dep..;ndent civil action THERE MUST BE . feet, nobody can do wrong without getting ultimately the retribution for his wrong act. Nobody who does what is right, whl\t is just and what is kind will ever fail to receive the reward for such good a.cts. In the light of this law, he who in his laziness, weakness, frivolity, or thoughtlessness doet nothing will receive nothing. Each will harvest the kind, the quality and the quantity of that which he sows. Seen with the eye of the t;pirit, you will find that this · law is, a complete manifestation of the Infinite Justice and love and wisdom of DiYine Providence . Obedience to this law is the secret of all successful and truly great men in all times a.nd clime11, and disobedience thereto l9 the explanation of all failures . So, the key to your success lies in yourself because deep in every man's conscience, whether he is educated or not, God placed the knowledge and the conscienciousness of that which is good and that which is bad, of that which is right and that which is wrong. He placed in every man's conscience; in other words tht" consciousness of the law of Ca.use and Effect. Divine. Providence has also endowed every man with freedom of will. This fre~ dom man can exercise to do either that which his conscience tells him is good or to do that which his conscience tells him is bad . Man being a free agent in tJ:ie exercise of his freedom of will must therefore, be held responsible for his choice. So, man is the mastt"r of his own destiny under this Divine. Lnw of Cause and Effect, and this is the wonderful thing that you have. You n.re ma.:iters of your own destiny. Some people try to blame others for any misfortune, bad luck 01 failure that befall upon them. Some men who lack faith in the infinite justice of God come to the hasty decision that if hf' can make a million by committing one or two acts of dishonesty or injustice, it is worth it. Some men become cynical and say "what is the use of honor and integrity and honesty and for that matter all the virtues exalted by the moral code if after &JI you starve and languish in misery and penury. Make me a millionaire and I do not care what the world thinks of me.'' This is an evidence of man's blindness and ignorance of the Ja.w. This kind of thinking has made the world grossly materialis.. tic. This kind of thinking made the world forget tae idealism in whose infinite womb were created the wondrous things of beauty, the worthy dwelling of truth. This materialistic philosophy of life of putting money above everything perhaps has multiplif'd the material riches of the world. It may have built great and massive buildings a nd palaces, great industrial plants, irrigation systems, gigantic transportation companies. etc., but it has not, in my humble view, increased the happiness of humanity. This sordid materialism has produced more greed and concupiscence. It has corrupted governments and administrations, prostituted the administration of justice, and swelled criminality. It has caused moral disintegration in almost all countries. It resulted in devastating wars among rich and powerful nations; it has destroyed great and magnificent monuments of art and cu'.tu1·e for the mad desire for wealth and power. It has thrown the world into chaos, conflicts, and turmoils for the mad desire of the rich and powerful men and nations to monopolize the trade, the natural rtPourees and the markets and the power potentials of the earth . In short, this materialistic philosophy fo its mad desire to amas11 the happiness of the world haa only succeeded to create and multiply the mhappiness of humanity. My message to the graduates of the Francisco College, therefore, is that the time ha.s come for a change. The time has come to restore idealism to ita proper place in the scheme of life. I call upon all graduates, nay, upon ~ ll institutions of learninq to spearhead our fight back to idealism. There must be reestablished the golden balance between idealism and materialism. The ha.ppine.ss oi humanity Hes in the golden mean between materialism o.nd idealism. You cannot overemphasize the one at the expense of t he other without upsetting the natural order of things . The reality of life, in my humble opinion, is an algebraic equation, in which consist the materialistic and the idealistic i::ides must be balanced. Yes, money can buy you bread and meat for the body, but it cannot buy the spiritual stream of thoughts and emotions that flow in the human soul. Money may build gTCa.t and proud buildings and 164 LA \\'YERS JOURNAL A}Jril 30, 1954 THE PHILOSOPHY . . . THERE MUST BE . . . age.inst a public servant or employee who refuses or neglect!'o wit!'- magnificent palaces, but it cannot furnish the genius of the out just cause, to perform his official duty, architects nor supply the rhythm and the symmetry of beauty, <fi> Lastly, art. 34 which creates a civil suit age.inst a po- These are things of the soul. Money can build the Vaticr.n, the !iceman who refuses or fails to render aid to any person in case cf White House or the palace of Versailles, but it cannot furnis~ danger to life or property. the brains, the talent and the vision of the great popes e.nd In all the five forc1?oing cases, the act is intentional and therefore presidents that guided the destiny of nations. Th1::se agi..in aro a crin1inal prosecution might be instituted under certnin circumstan- things of the spirit. Money can buy the machinery, the equipments ces. But a civil action may be brought independently, even after llnd the gadgets for gigant.ic industrial or commercial organizath6 accused has in the criminal case been acquitted. The new tions but it cannot give the executive ability, the leadership and Civil Code thus upsets the doctrine of our SupremC' Court in the the dynamism of the men that run them. These :ire things of IPading case of AlmE-ida v. Ab:ira.,, s Phil. 178 decided in 1907, the soul. Money, considered by the materialists as omnipotent, which held that acquittal in a niminal case bars every civil action has not the power tn produce ~ single petal of the lily that. (or dama..,.<>es. blooms in · your garden; it cannot create a single streak of the There arc powerful reasons why an independent civil action symphony of colors of e. magnificent sunsPt or a gorgE!(JUS sunrisP. should be allowed in the five instancP.s mentioned. Here are some· It cannot create the inspiration of a Shakespeare, the supreme First, conviction in a criminal case requires proof beyond rea::~ri~~~~ 0!a~n~~~:~t 0~:1~:ri~·e:~dth;~::tts mo:se:m~a:~~i ·it ~o~;~ :~~:~~ ::u~~ic~h~: ~:s: j~~~~~e,f:rret~:n~~:~;;i~f~f ;~~~:n~a~: potent to produce the "touch of Eternity" of DaVinci, M'.c;-.ael been countless cases where the accused in a criminal case has bce11 ~r"~eil~~:i::~ ~~~:~r:°~~· M~;;0e:n;~ im/:et:;ta~: ~~~~~~e 0~h~h~e~p~~ acquitted, because of reasonable doubt, although a prepondcrancfl rit, consigned by the nll-wise Creator to the sacred vaults of the of evirlence showed that the act had been committed " !-.y the n.ccusecf idea.l realm. Jn such cases. there has been a gross miscarriage of ·Justice, because under the old law the aggrieved party was precluded from sub. Thus, such ideal things as honor, truths, justice, nonesty, sequently suing for damages in a civil case. integrity, lovf', faith and hope are the stuff of which idealism Seconclly, not infrequently, the Fiscal under political prei; • . ~he~a::~ th=h~~rali~:a~;s~h::aci~~n~~ic~h:~ou~~ta~~Y0~; :~~:~:~t sure or other undue influence, would not start criminal proceedings. Or he might have been too busy with other cases. So tho endeavor to acquire as part of ourselves. These are the things new Code nssurei; the injured person an opportunity to prove his that reaJ!y contribute to man's happiness even greatness. The;:e ;:7: ::iie~. preponderance of evidence in a civil case, and thus ob. :;:mth;0:.ndu;~:~ t~~:g:h!h:~inn;9 ~~i:: ,:~u r~:~te~o~~n a~!::l ;i~li~~~ Thirdly, our people have been habituated to rely on the pub. ::~~s c~;i1;e~a=~a~ee~;;r~~~~~j~~n~t:ft.~~-h!n~;,~~::c:sndsi~::;~e;; ~:u~:e~~:~!o:n~oino;i~~nua~ui~;~~tiv;hi~n:3:f ~~eo~~~rr::a c!;i~tr::'~~~ the dreamless dust," long after mighty men shall ha.ve returned of democracy in England and America is that the citizen!! h:ivo to common clay· been accustomed to resort to ch·il actions for tort, such as nss.'1.:.ilt As a parting thought, young friends of the graduating clasRes, and battery, false imprisonment, slander, deceit, and othc1· inten. Jet me return to our country. l havt! exr>re.'Jsed a fervent hope in · tir:nat wrongs. Similarly we should educate our people t.:i v:n:li- the beginning of my remarks that by the power of your education, cate their rights in a civil rather than in a criminal e.ction, and you can make the Philippines the most enlightened, the mo~t prosthus assert their individual rights, so they do not have to depend perous and the happiest democracy in the Far East. Your success o:i the Fiscal. is the success of our na.tion; your happiness is the happinesg vf Thus far we have discussed civil actions where the defendant our native land. You have, therefore, a stake in our Republic acted intentionally. But there is another independent civil action, in the same way that our country has a stake in you. The prescslled quasi4deliet in the new Civil Code, based on defendant's neg- tige of your Alma Mater, the pride of your school, is involved in ligencc. It is the Anglo.American tort for negligence. ll is alsf"I every act of yours as professionals. You would want, therefore, the old civil action for fault or negligence under arts. 1902 and 1903 to build a character where idealism a.nd mr.terialism are established of the fonner Civil Code, The new Code in a.rt. 2177 incorp:>ratPs in a golden balance upon which you will build your mansion of sucthe doctrine laid down by the Philippine Supreme Court in Barredo cess. You will not forget that talent without character is likE'! v. Garcia and Almario, 73 Phil. 607, decided in 1942. Said art. 2177 the beauty of a woman without virtue, one element more f-.•r pros.. pi-ovides: titution. You will not forget that the most precious gift that "Art. 2177 . Responsibility for fault or negligence under you cau p:!ve to your country and the best legacy that you can the preceding article is entirely separate and distinct from the l ~ave to the generations and generations of Filipino3 yet sieeping civil liability arising from negligence under the Penal CodP. in the womb of Time is a good charaetP.l'. Th.:? strr.nf{est ramp:\l't But the plaintiff cannot recovt:!r damages twice !or th:• sam& of fr€'edom, the impregnable bulwark of justice and the founVlinh~d act or omission of the defendant." of invincible nationalism is the strong noble character of the people. This Philippine decision cited Maura and other jurists, as 1 thank you· well as the Sentence of the Supreme Tribunal of Spa.in of October 21, 1910, where the Ct'urt held the defendant liable for damages under arts. 1902 and 1903 of the Spanish Civil Code, for the death or Izquierdo, due to defendant's negligenc.e, although there had been a previous acquittal in a <'riminal prosecution. lt will be seen that on this Question the Spanish Supreme Tribuna.1 was ahead of our highest court by at least 32 years. Other Spanish decisions that might be added are the Sentences of Nov. 13, 1934, and Feb . .£. 1!l43. The Code Commission, in embodying in the new Civil Code the principle enunciated in Barredo v. Garcia. and Almario, was moved by the same reasons already set forth concerning intcnt.ional wrongs . Next, I wish to discuss two civil actions created by the new Civil Code. They are found in arts. 29 and 35. Art. 29 provide~ : "Art. 29. When the accused in a criminal prosecution is NOTICE Notice is hereby given to subscribers and the public that effective May 1st, 1954, ANTONIO VILLERO is no longer connected with the Lawyers Journal in any capacity whatsoever and the Lawyers Journal will not be responsible for any transaction made with him. April 80, 1954 LAWYERS JOURNAL 165 'l'HE PHILOSOPHY • . , acquitted on the ground that his guilt has not been proved be. yond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be ma.licious. "[f in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. [n the absence of any declaration to that effeet, it may be inferred from the text of the decision whether or not the acquittal is due to that ground." This article does not refer to cases of independent civil actions already considel'ed, such as arts. 33, 27, etc. 1'his provision Cart. 29) covers most crimes, such as roberry, theft, arson, murder, rape, seduction, etc. There have been innumerable trials for these crimes, wherein the government failed to prove the crime beyond reasonl'.lbfo dc-ubt, so the accused was acquitted . Before the new Civil Code, this acquittal closed the case definitely, but since the new Code went into effect, the aggrieved party may bring a civil action for damages, in which he may prove the act by a preponderance of evidence. This art. 29 prevents injustice brought about by the rule that a crime must be proved beyond reasonable doubt. The new provision is fair, because proof beyond reasonable doubt should be only for the purpose of sending the accused to prison, but why should the plaintiff be deprived of indemnity when he can show the act by a prepondera.nce of evidence? But I am afraid the legal profession has not yet 1earned to make use of this artic1e. Another innovation that should be resorted to by the legal profession is found in art. 85, which provides: "Art. 35. When a person, claiming to be Injured by a criminal offense, charges anOther with the same, for which no independent civil action is granted in this Code or any special law, but the justice of th& peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the ·Complainant may bring a civil action for damages against the alleged offender. Such civil action may be supported by a prepondera.nce of pvidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious." Very often the justice of the peace find!! no reasonable grounds to believe that a crime has been committed, or the Fiscal refuses or fails to institute criminal proceedings. But the justice of the peace or Fiscal may be mistaken in weii:t"hing the evidence, or he may be under political pressure, or he may be actin~ under improper motives. Why should the a~ieved party be denied justice throui:t"h the fault of the justice of the peace or the prosecuting attorney? All that the injured party wants is indemnity, so he should be allowed to brin~ a civil action and prove his case by a preponderance of evidence. Art. 35 authorizeR him to bring such civil action . Th~ bond refer red to forestalls groundlesa civil auits. v I come now to two ot the new provision!'! designed to 11trengthen ttemocracy. First, there is art. 858 which provides: "Art. 358. Every parent and every person holding substitute parental authority shall see to it that the right!! of the child are respected and his duties complied with, and shall particularly, by precept and example, imbue the child with high mindedness, love of country, veneration for the national heroes, fideUty to democracy as a way of life, and attachment to thP ideal of permanent world peace." All parents, teachers and professors of minors in public and private schools, colleges and universities are thus obliged t'> teach their pupils and students "love of country, veneration for the national heroes, fidelity to democracy a.s a wav of life, and attachment to the ideal of permanent world peace." I am afraid this legislative mandate ia not being adequately Implemented. There should be in all public and private schools, colleges and universities a. special and separate course on democracy that must be taken by every student under 21 years. In such a course, great stress should be laid on the advantages of democracy as against Communism, Fascism, and every form of totalitarian regime. In the fight against Communism, our complacency is fatal, because we have o face the impassioned and vehement zeal of Communist adherents. There is need of kindling in th.e hearts of our people, especially or the youth, the fire ot devotion to democracy. This can not be .one by generalities. We must thoroughly teach the virtues of reedom and democracy. In the same course on democracy, our struggles for freedom specially since the time of Padre Burgos, should also be presented, ogether with the lives and teachings of our national heroes. rt s shocking that only very few university graduates are thoroughly cquainted with the writings or Rizal, though they constitute an ssential part of our patriotic gospel. Neither are the writings -Of Burg<>s, Marcelo H. de\ Pilar, Lopez Jaena, Antonio Luna, l\labini, and other patriots known to many. It was realization of these sad facts that art. 858 of the new Civil Code has been drawn up. It is intended thereby that parents, teachers and professors hould feel the solemn responsibility of transmitting to the youth our sacred heritnge of freedOm and love of conn try. lt is alarming io contemplate the sad a.nd tragic spectacle of indifference toward he history of our people's fight for freedom. This apathy threatens o extinguish the torch of liberty, instead of our handing it with Teater glow and radiance, to the new generation. Another provision intended to fortify democracy is a rt. 32 which rdains: "Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or In any ma.nner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: ( 1) Freedom or religion; C 2) Freedom of speech; (3) Freedom to write for the press or to maintain a periortical publicatirm; ( 4) Freedom from a rbitrary or illegal detention; C5) Freedom of suffrage; (6) The right against ;ieprivation of property without due process of law; (7) The right to a. just compensation when private property is taken for public use; CS> The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; <IOl The liberty of abode and of changing the same; C lll The privacy of communication and correspondence; (12) The right to become a member of 11.ssociations societies for purposes not contrary to law; Cl3l The right to take part in a peaceable assembly to petition the Government for redress of grievances; C 14) The right to be . free from involuntary servitude in any form ; C15~ The right of the accused against excessive bail; 06> The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his b<:half; (17) Freedom from being compelled to be a witness against one's self, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; 08) Freedom from excessive fint>s, cir cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and · (19) Freedom of access to the courts. "In any of the cases referred to in this artic1e, whether 166 LAWYERS JOURNAL April SO, 1954 THE PHILOSOPHY . . . or not the defendant's act or omission constitutes a crimind offense, the a~gl'ieved party has a right to commence an entirely aepara.te and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any crin1inal prosecution (if the latter be instituted>, and may be prov~d by a preponderance of evidence. "The indemnity shall include moral damages. Exemplary dama.J?es may also be adjudicated. "The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of tho Penal Code or other penal statute." The purpose of this article is to cultivate in our cit'zens an m;daunted determination to guard their liberties guaranteed by the Constitution, without depending on the Fiscal. I have already &'.lid i;omething on this point. But allow me to elnborat~. In th heat of a.n election r.nmp&ign, there art> illegnl detentions, unreaso:ioble searches, prohibitionR of political rallies, terroristic acts tt1 prevent \"otinq, 11nd rither abuses by order of public officials. Tna often the Fiscal is under pressure, so he <':'.lnnot file the complaint. It is thus necessary to give the aggrieved party the l'ight ~o bring • civil action for damages. Our citizens should learn to make use of this right of acticm, not only ~o obtain indemnity, b·ut also tc help build up general respect for individual liberties. VI I come now to the provisions implementing social justice, which IS a fundamental policy under the Constitution. One of the pill are of our Republic is equality before the Jaw. Accordingly, the new Civil Code tries to lessen the danger of a situation in which, 11ccord~ ing to Lord Bacon, Jaws are like cobwebs," where the small flies are cau2ht, and the grea.t break through. Art. 24 provides: "Art. 24. In ali contractual, property or other relations. when one of the parties is at e disadvantage on accnunt of his moral dependence, ignorance, indigence, mental we:'.lkness, tendPr age or other handicap, the courts must be vigilant for lib protection." Examples where this article should be applied are: question~ arising from contracts of rice tenancy, where many landlords try to exploit the tt>nant, and cases of usury. Then we have arts. 1700 to 1703 which are self-explanatory. "Art. 1700. The relations between capital and lahor P.re not. merely contractual. They ai·e so impressed with public interest contracts must yield to the common good, Tht:refore, such contracts are subject to the special laws on labor uni.:ma, collective bargaining, strikes snd lockouts, closed a:hop, wages working conditions, hours of labor and sin1ilar sulijects." "Art. 1701. Neither capital nor labor shall act oppressively against the other, or impair the interest or convenience of the public, "Art. 1702. In case of doubt, all Jab:'.lr legislation and all labor contracts shall be construed in favor of the safety and decent living for the laborer, "Art. 1703. No contract which praticaliy amount to involuntary servitude, under any guise whatsoe"Ver, shall be valid." Then, let me refer to arts. 1689-1699, intendr.d to protect hciusehelpers. The new Code requires the family head to furnish the househelper, free of charge, ·'suitable and sanitary quarters as well as adequate food and medical attendance" <art. 1690); if the househelper is under 18, he must be given an opportunity for at hast elementary education <art. 1691>; he shall not be rPquired to work more than 10 hours a day, and he must be allowed 4 days' vecation a month with pay Cart. 1695); there are other pruvisions in favor of househelpers. But this entire set of rules have not been enforced by the government. I respectfully invite the attention o( the new administration to this grave situation. I say it is grave ~ause every country is judged by the way it treats the poorest class. The legal profession, which stands for the supremacy and cnforcem~nt of the law, should also earnestly attend to this matter, The main spring of the principle of social justice' is to remove mnn's inhumanity to man. All sound and just legislation must be bnscd on love of mankind. Often we lament with the poet Thernbury, "In a thousand pounds of law [ find not a sin&"le oi<nce of love," VII Finally, permit me to discuss one of the most far.rP.nching reforms introduced by the new Civil Code. lt is the adoption of previsions tc-r.di'ng to uphold the supremaCy of equity and justice against technicality and legalism. The new Code does its utmost to solve the age.old vroblem of justice and right as against injustic~ and wrong shielded by teehnicality and the letter of the law, The legal profession has been largely to blame for the perpetuation of technicality. It is strange nnd lamentable fact that equity as a system, as a separate body of rules, hn:s not developed in Spain, as it has grown in Eng. and and the t!nited States. This is indeed strange ~ause Spaniah law is a. direct descendant of Roman law, where equity originated, while Engliah law, which, though essentially based upon the Roman system - is further removed from it thun Spanish law. The pronouncement~ by the praetO'I', who drew principles from the ;us gentium and other sources, took away the injustices and softened the rigors of the Roman civil law. It was thus that the pretorian edicts became a hody of equitable rules, . A similar historr took place later iii England. Whenever the English common Jaw resulted in an injustice, the English subjects complained to the King, who entrusted his Chancellor with the task of findi!\g a rightful and just solution, Clisrcgarding the old English common law. This was why the Chancellor became known as the "keeper of the king's conscienc:e." English eauity jurisprudence was then transplanted to the United States. But unfortunately, no such course of events took place in Spain, Hence, technicality and legalism have bet:n more frequent In Spanish law than in Anglo-American law. This is ma.nifei;t in the Spanish Civil Code. Spanish courts nnd writers haw>: been helpless before the hard-and-fast and inflexible rules of the Spanish Jaws. s,, the Code .Commission introduced many principles of equity juris.. prudence found in the English and American system, Let me namo scime of them: 1. Reformation of instruments. Arts. 1359-1369. 2 . Quieting of title. Arts. 476-481. 8. Implied trust. Arts. 1447-14.57. 4. Recovery upon substantial performance "of a contract. Art. 1234.. 6. Recovery in case of unjust enrichment. Art. 22. 6. Reduction of contractual penalty if it is iniquitious unconscionable. Art. 1229. By the elimination of technicality, the new Code intends to a,·oid injustice which is brought about by what Shakespeare called "'the nice sharp quillets of the law." In conclusion, the Civil Code is the first endeavor, under the Philippine Republic, to codify private substantive law, With all It& defects, as every human effort, it may in aJl mode3ty be claimed tn be an improvement on the Spanish Civil Code. Perhaps it could have been prepared much better, but this has been said of the French, Italian, Argentinian and other civil codes; the same ciin be said even of the comparativ('Jy recent German and Swiss Civil Codes, though these two are thought by many to be among the very best in the world. I hope that in the fl>urse of the years, through the noble open-mindedness of the legal profess:on, the philosophy of the reforms introduced by the new Civil Code will be better understood. Then, I make bold to say perhaps its role as a tra.nsmitter and transmuter of the heritage of Roman civil Jaw antl E nglish common law, and as an Interpreter of our nation's aspirations for freedom and justice, will I><' more <'learly discerned. Thank you. The objective of a legal educa~ion is primarily to train the student to meet and solve the problems which constantly confront the lawyer and the judge. This requires of him a capacity to think hard and straight, a settled determination to accept the ipso dixit of no man or group of men, the abiHty to mak'e a searching analysis of a complicated .sta.te of facts which will disclose the legal problem involv<?d therein, a resourceful imaginatio11 to discover possible solutions, the patience to investigate their validity and practicability, and the courage to form and act upon his own considered judgment. ~pril .30, 1954. LAWYERS JOURNAL 167 THE PRESENT LABOR UNREST BY ATTY. GEMINIANO F. YAPU1' There are two conflicts raging over the nation today. The first of these conflicts is n political struggle between the two major political parties in the Philippines lor control o\·er our reins of government, Altho politics is a very interesting topic and has the nation 'wholly engrossed in its many intricacies at the present moment, I have chosen not to comment on it today. In the first ple..c2, I confess to my non-psrtisan ~tatus in this quarrel. As you can readily see our buses carry passengers impartially. regardles~ of party affiliation . In the second place, it will answer no valuable purpose for me to comment ono way or the other. The entire nation will speak on this subject at the polls twelve days from now and resolve th:a issue more decisively than I ce.n ever attempt to do .so. Suffice it for me to say here that I am confident that the final outcome of this struggle will be the ultimate triumph of the Filipino nation. I have great faith in the wisdom of our people. Th.1 second conflict which rages today and ahout which I wish to speak a. little more at length, is an economic struggle -. Pitted against each other are labor and ce.pitnl - the two Strongest mu.in~ stays of any progressive eccnomic structure. It is a strugg!e which has of late successfully vied for prominence with politics in our national news. I am confident too, about the final outcome of this conflict and the.t it will be resolved with as much satisfaction as the political struggle I have just mentioned. The danger, however, lies in the fact that too much damage may be inflicted upo:-t our econorr.ic and mdustrial growth. which arc the only bright hopes of our future survival as e nation, before: we realize the folly of this senseless conflict. I consider it indeed the greatest folly we can indulge in for labor and ca.pita! to be bickering at this stage of our independent national life . It may stunt our economic and industrial growth which we all so urgently need to accelerate. Frankly, I do not see what there is to bicker about. Two dogs will quarrel over a bone. In this industrial dispute which we are slowly precipitating i11to a full scale industrial war, what is the bone of contention? Is it wealth? We do not have that in the Philippines today. We have not produced enough wealth over which we !!hould fight! Is it a case of justice where the oppressed and exploited rise up to vindicate their wrongs? I do not believe so. At le:i.st, not i:l industry or business. The Filipino workingman, compareri to the rest of his Oriental brothers, receive higher wages and are much better protected in their rights by Jegisla.tion even before the p.'.l.ssage of our more recent labor laws. Is it perhaps a striving for the ideal - the ideal in working conditions, in wages, in standards of living? If it is, then it is fooli!h to fight each other. Not only labor but c.'.l.pital, too, have still a long way to go to attain the ideal. C.'.lpital in the Philippines still has to find solid footing, to grow and become strong. Capital in our country is weak and timid and is still in its first stuges of grOwth. That is why we have tax exemptions for new industries. That is why we he.ve governmental agencies to help what little capital venture we have circulating around. That is why we are sending out frantic invitations to foreign capital to please come in and start the ball rolling. Then, too, this economic struggle may be just an experiment in democracy. If it is, I will agree that is worth while going through. My only admonition is that we go slow about it so as not to cause an explosion in the laboratory. I am certain we do not wish t.'tat to happen. There is danger for me to be misunderstood as I am too well identified with one of the contending parties in this conflict. Permit me to make clear my sta.nd. I am for unionism. I wish to see free unionism grow and attain full stature in the Philippines so it can contribute its indispensnble share in the work of building a free society where economic dcmocrRcy prevails. I pledge to do my utmost to help any true exponent of free • ~o!~e:~ ;:u.~ei~~'a~ed at Vla"an, Jloco• Sur, ~fore the Rotarian• of the province BACK TO LAW-SCHOOL _ _ , \ey ATTY. FRANK W. 1JRADY There comes a time in the life of ~Very lawyer when he should return to law school to refresh his mind, to catch up with new le .. gislation and to familiarize himself with the new decisions of our appellate courts. In my case, I returned to law school twenty years after graduation. No lawyer, nci reputable lawyer who is conscious of his oath of office has the right to hold himself out to the general public with a decadent knowledge of the law , And lawyers, like all aging mortals, forget. Last November, I enrolled in the Frnncisco Law School as a '"rl'gular" student in \he second semester of the senior class. Dean Vicente J. Francisco, bewildered and nonpulsed, accepted my application with hesitation, wondering why a practising attorney in good and regular etandin.ir with twenty years' active practice, should ev(lr wish to go back to law school. "Wouldn't you prefer to teach law, Mr. Brady?", he eagerly inquired, as he stiil hesitated to approve my application. "No!", was my answer, "I want to review- I have o. great urge to go back to formal classes and review. It cannot do me uny harm." So the next day I was back in school attending regular classes as a senior in a class of about thirty students . It was to bf! one of the greatest experiences of my life as a lawyer. My gr;;y hair attracting the attention of one of my "classmates" caused him to ask another, ''Hoy, sino ba yong matandang americano?" Hushi1:g him, the second answered, "Sh-h-h, si Atornee Braadee yan, at pilipino citizen." "Ano ang ginagawa niya dito?", the first student coritinut:d the inquiry. "Hoy, huag kang maingay, nagrerebieu siya dito." And the inquirer ga.srJed, "Siya nga ha?" I found the classes most interesting. My classmates though youngish were solemnly steeped in their studies and their future, a congenial relationship existing between professors and studen~s that was lacking in the classroom of twenty years ago. The anticipated, nerve-racking system of teaching law by cla.ss recitation ha::: given way almost entirely to a frank discussion of the law and the leadini:t cases in a paternalistic way. All students rise when the professor enters and leaves the classroom, the same respect accorder! to a judge in a. court of justice. Though it is true that the type of Engli11h spoken in class today has retrogressed somewhat, this circumstance, in my opinion, fo; more than offset by the self-assertiveness of the modern student. He takes no nonsense from anybody. For instance, upon being asked for his authority on a point of law, one of my classmates shot ·right back to the professor, "Common sense!" What prompted me to return to law school? What ma.de me go back to daily classes tor an entire semester from 5:30 to 8:30 every evening? The answer, the truth is: an unquenchable thirst to return to the source, the fountainhead. of the little law that l know. While self-study is most commendable, it is as rare a'J hen's teeth. There are not too many Lincolns. Review, and by this I mean formal review, keeps fl. lawyer young in the profession. For one thing, it enables him to view the whole field of the law in retrospect1 to concentrate and specialize in hi3 own chosen branch of the law ; and, above all, it teaches him thP. most important thing a lawyer can ever learn - humility! For rc·gardless of any measure of success that he ma.y have attained in his professional career, a return to school is an expression of humbleness - that he does not know all the law and, what is equally important, that he wants to know mo:re than what. he p1·esently know::;. Review brings us in contact again with the fundamentals of the law and,.as Judge Harold R. Medina has aptly stated, "Fundamentals are truly wonderful things, for they always turn the scales." A refresher student also learns another lesson of far-reaching effect, i.e., that the law is a living institution with growth. By returning to classes, he can actually measure such growth in his own case with fair accuracy. He learns, too, that he who does not grow with the law will soon be outgrown by the law and left helplessly behind in the relentless growth of the Jaw, How many lawyers can truthfully say that they have studied tho new Civil Code? How ma.ny have actually read that codification once <Continued on page 211> 168 LAWYEns JOURNAL AJ>rll 80, 195• \. TilE PRESENT ... l::ibor unionism who pos.!':esscs demenstrated qualities of s:lf:es.me:s, dl·pendability &nd honesty of purpose. But it must be uuioni~m that sees and recognizes more than just its own needs. It must be ltadership tha.t is responsible and willing to work for · the interests of more than just its own people. The late President Manuel Quezon who ~aw far ahead of hi3 time had occasion to warn against the brand of le1~dersl1 ip \Vhich we have !Jrevalent in labor unionisn1 tod1y. H ~ said, "Let us beware of men who deliberately, for political or selfish e.ims, sEr up discontent among the masses. They preach subersive doctrin<'s, sreak of evils and abuses that jo not exist. or magnify those whic'.1 ar,~ often inevitable in democr:::.cies. These men are the worst enemies of society, more dangerous to the comnmnity than :>rdinary criminals. They have no sym1>2.thy for the people but are mere self-seekers, intent only in securing either pecuniary or political &dvantages for themselves. , If as a rc!lult of their preachings disorders occur, they cowardly disclaim nil responsi!Jility for that which none other than themselves had brought ab:>ut. He who tries to cur"ry favor with the masses by appeoJing to the passions of the people, stirring up their prejudices, or capitalizing discontent or la1man suffering is unworthy of public trust." The words of President Quezon never rang truer than they do now. Men who would exploit the opportunities for self aggrand!zcment which this present confEct has provided will advance as argument tc the principle also laid down by President Quezon in the same speech I have just quoted. It is couched in the following words: "I am e. firm believer in the institution of private property. I c'Jntend, however, that \Vhenever property rights come in conflict with human rights, the former should yield to the latter. It is thus that we may draw the line between labor and capital and erect an ~conomi" structure based on the principle th•1t human life is the measure of all other values, that con'siderations of possession e.nd profit must give way to the supremacy of human existence." The question now is this: In this present economic conflict which w~ are witnessing, have we run counter to this principle that "c°nns:derations of possession and profit must give way to the supremac; of human existence1' thus bringing Uown upon our heads the present houble we are in? I can say in all en.rnestness that we have nnt. We have not at any time, in our industries and busines!I ent."!~prises, sacrificed the supremacy of human existence to considerations of possession and profit . I believe that with the present pli~ht our econom7 in it is quite difficult to find instances where profit wa::i se1ved at the expense of human dignity. On the contrary, we hl:lve ma.ny instances where considerations of profit and possession were sacrificed in the interest of the preservation of the human p-:rsonality. Many of our new industries and business had to fold up because the supremacy of human existence had to be upheld. What capital has been doing is to stretch its ca1iacity to sustain as much a!: it c2.n the bul'den of human existence, Witness to this is the overstaffing preval~nt in many of Qur industrial firms and commercial establishments. Industries arc O\'ermanned to absorb a little the burden of unempl1>yment. Our greatest problem is still unemployment and not enything else. But this does not go to the core of the present conflict. Hew serious is it really? According to ::iress reports there have been to <lete six major strikes called. From official records no less than one hundred eleven (111} un:ons have filetl strike :10tices agabst their firms with the Department of LaJ;or. All of these within the short space of three months since the advent of Act 875, the Industrial Peace Act. What is bu.ck of all thi::; app.:irent labor unrest? I have followed closely the unfolding drama of labor-management relations in our -::ountry and 11ave tried to sb!dy its various aspects. There is nothing basically wrong in our economic structur.e, nothi113 sorely &miss anywhere in the entire framework of lo.bor-capital relations that I have found which should serve as a fuse to start off a really serious industrial war. I huvc found nothing basically wrong which would require extreme economic mct' . .sures to correct. On th::i premise that labor is resp<_ msible ruid cognizant of its dutie~, I say that oul' fears of a disruptive gcnerar unrest arc groundles!I. The labor trouble which seems to have gripped the country today is nothing, more nor less, than what I would call an experit!lent in economic democracy. Labor wanted to try its new found wings. The experiment, I will admit, poses a danger to our Pconomi-: stability and may hamper our industrial growth. But that is .:i necessary risk that all experiments entail. I have, however, an abiding faith iri the innate goodness and justness of our people ~nd I am not alarmed by the danger that this particular economic experiment poses. My view of the situation is one of gl'eat oplimism, If the present labor unrest we Sec fermenting looks ominous it is only because of the following circumstances: First, the experiment was launched at a wrong time, and second, the experiment w:::s badly conducted. Let us ex:1mine them for a while. There exists between labor and capital an attitude of mutual suspicion and antagonism which wiil do us more harm not to recognize. l\'lanagcment has always been paternalistic in mentality . This is not through ar:y fault of a.ny particular individual but is a deeply meted char:::ctcristic in our past and our culture. Because of this paternalism management cannot help but view with suspicion and hostility any one who would brc.:ik away from the pa~ernal fold aJl<l assert aggressive independence. Labor on the other hand, ha<i f~nned the flames of suspicion already engendered with its impatience, lack of sober judgment and over-aggressiveness. Coupled with unscrupulous l~u.dership which we have seen manifested often enough, suspicion has grown into fear, and fear into hate. And it was under this unhealthy atmosphere that the experiment was la11Tiched. Confoundin!! this already taut situation the experiment waq most bao..lly conducted. There was a sa.d lack of maturity in the decisions, a need for sobriety in the thinking, This served to further frighten already apprehensive capital and to build a wall between them. Mr. Spencer Miller, Jr., United States Assistant Secretary of Labor lmd occasion to comment on the actuations of some sections of the Philippine labor movement. In a statement before Philippin" Jnbor 'Jfficials and representatives of. labor he counselled against unreasonable demands. Refrain from making demands that would J,iok like a "laundry list," he declared. And so it is these circumstances, ladies and gentlemen, th&.t brought about the second conflict raging over our nation today. I ..,..ill reiterate here my belief that this conflict at the present stage is not of so serious proportions a3 to cause grave, apprehension among our people. It should 'be arrested in time, however. And labor has the responsibility to take the initiativc in this direction. The job of labor at present, as I see it, is to strengthen trade unionism in the Philippines by gaining the confidence of the public and of mo.:iagement. It would be to the best interest 'lf trade unionism if labor concentrated all its efforts for the present in breaking down the existing atmosr>here of suspicior. and hostility against i~. Thi!l. labul' can do, very easily and simply. Prove that labo1· is responsible . Demonstrate its capacity for mature judgment. ~ta.:iifo~t a little willingness to make sacrifices and not be too imj1aticnt. Most importo.11t '>f ull, labor has to forget for a slnrt w!ti!P, at, least, the Ion;- list uf demands - the lam~dry list, according to Mr. Miller. Time enough for that when through labor's own effol'ts a healthy attitude of trust a11d confidence not of suspicion ;md antu.;onism prevails. Collective bargaining recently introduced in the Philippines by the Industrial Peace Act is our hope of building a secure and prosperous free society under l:oth polit:c::il and eccnomic democra.cy. Collective bargaining, h<>wevcr, is unworkable without a sound labor leadership and enlightened m:in~g~meut. These are the two indi~ pens~ble factors that will insure suc:ess in collective bargaining. One without the other and collective ho.rgaining fails. It will become a farce \;·here Hie stronger imposes upon the weaker. The way seems clear before us. Build up ·a sound bhor leade!'ship that m~nag-cment can trust, and I mn c~rtain everything else will fall into linC', I am firm in my belief that this is all that we need to accomplish, to aEsure for us and the nation, the industrial peace we wish, that will sene as the corMrstone of the great industrial economy we will build. Then perl1aps prosperity will not be just a hope but a living reality fo1· all onr people. April 30, 1954 LAWYERS JOURNAL lti9 RAMON DIOKNO Y EL EJEMPLO DE SU VIDA Wiscwrso pronunciado po-r cl SenadOf' ClMll M. R•cto 871 ra sesi611. necrol6nicrs cdelwcula en la aala d• suiones del Tribmial Si.premo en la mntiana del 25 de abril de 19&4.> En l')casi6n dolorosa como la que ahora nos congrt'ga et panegf. rico de las virtudes del ser que ha dejado esta vida, por otra, quc es mejor, segUn el poeta, no tic hace pe.ra inclinar a su favor la bala.11%8. de la justicia divina que i·echaza en su pronunciamicnto sin apelaci6n la calidad tan delP.zn&ble de estos testimonios humanns, ni para ha.lagar la vanidad de los allegados que le sobreviven 'pues no hay halago que sirva tie b:l.ll'!amo a las heridas que abre en el elma la orfandad, sino para que el ejcmplo de su vida, en fo que rue rE:alizaci6n drl bien, suministTe, c. quicnes lo!I han mcncster, prin. clpios que profesar y practicar, para la ordenaci6n de la · conducta "i la conquista de anhelados horizontes. Decir de Ram6n Diokno que tue gran abogado y notablA jurisC('lnsulto es dccir lo quc ya sa.ben de sabra dos generaciones de fillpinos. Las tempranas luces de su talento alumbraron las incipientes aul:ls para la enscii.an:r.a del Derecho en nuestro pals, apen3s entrado el presente siglo. Su mentor, Don F'elipe Buencamino, padre, gran figura de los dl"as revolucionarios, que hab[a conocido a Rizal, crey6 hallar en Ram6n Diokno una capacidad intelectual que pod[a parangonarse con la de! gran Mroe de nuestra raza. Y ciertamente, a poco de recibirse de abogado, Ra.m6n Diokno ya se puso a librar denodadas batallas en el Coro, y en ellas fue como lumbrer~. que, avivada por una: laboriosidad pocas vP.ces igualada, fue 11-sp:n. clendo, en el espacio de casi media centuria, claridades de mediodfa sabre Joa vaatos dominios del pensamiento jurfdico, sin su!rir men&'Ua alguna. hasta el trAgico instante en que se apag6 de s6.bito, porque Dios lo quiso, en un esfuerzo 61timo de compartir los afaues de este Tribunal de dar termino a las dilaclones en la dlspenaaei6n de la justicia. Lo que llevo dicho se ha dicho de paso, pol'flue Jo que en vPrdad me cumple destacar en este momenta 80fl las cualida.des q1Jf' a mi juicio perfilaron firmeruente la (lf'rsonalidad del esclarecido compatriota a quien consagra.mos estas honras pG;;tumas. Ram6n Diokno hizo elecci6n de una norma de vida, de una profesi6n y de una fe politica, y las abraz6 todas con cntera e inque. brantable lealtad. Se encerr6 en la vida de familio. como en un monastel'io y tan que no busc6 fuera de ella. aun los m!s inocentes esparcimientos que se pod.la calificarle de a.ntisocial y culparle, como r~ora en la vida de relaci6n, de no conocer mas mundo que el fntimo en que vivia. Sin ser polftico, en efecto, pues no podfa scrlo y prometerse bito con aquel modo de vivir que practicaba. se aventur6, sin emb&rgo, en el campo de la poUtica, y si lleg6 mb de 1JTia vez al parlamento lo debi6 al prestigio nacionnl de que gozaba y no al conocimiento del trato de las gentes ni a la posesi6n y ejercicio de est? arte peculiar dtl proselitismo electorero. Fue tal su fidelidad a la voce.ci6n de toda au vida que desde que ingresb en su gremio profesional no dej6 que su curiosidad intelec.. tual le llevara a otras aventuras que no fuesen las que directamente darfan por l'e'IUltado acrecentar au conocimiento del derecho r de los procedimientos judiciales. Era empfrico y met6dico y as! fue que en los numerosos y variadoa litigios en que intervino, desde la protesta electoral y los casos de reivindicaci6n de propiedad he.sta los m6.s intrincados de derecho constitucional y los muy enojoS('lS de materia administra.tiva, el minucioso examen de los hechos, la accrt.t... da formulaci6n de la teorfa, la cuidadosa preparaci6n de las prue. bas, y Ja incansable blisqueda de los aplicahles prindpioa juridic.JS y doctrinas de jurisprudencia, absorbfon de tal modo su atenci6n personal que hien i::e comprendla c6mo aquet hombre no haltase tiem. po y vagar para otro empleo que no :fuese el que demandaba su pro. fesi6n, Y cuando, en reconocimiento de sus meritos, el gobierno de la RepUblica le clev6 a la ma.gistratura para que parlicipara en la tarea de hacer justicin e interpretar el derecho, llcv6 a su alto ministerio tal caudal de conocimientos y experiencia y de tal forma se consagr6 a et con la misma devoci6n de los a.gitadm1 dfas de 811 pr:ictica forense, que de no haber sido porque le plugo al Creador llamarle a descansar en su seno, se hubieran realizado plenamente las justas y legitimas esperanzas que la magistratura y el fl\rO habfan cifrado en su acertada selecci6n como miembro de este Supremo Tribunal para los grandea fines de la administraci6n de justicia. Desde que hizo incuralonea por el campo de 1a poUtica, quc se. ii.ala como una mna digresi6n adventicia de su vida de ciudadano, y de proft;>sional. milit6 en el partido nacionalista, y otra vez vimcs destacarse en el esa virtud de lealtad a los principios en que s~ acrisol6 su carActer, y, a pesar de los tumbos que di6 su partido con sus alternativns de triunfo y dcrrota, pnmaneci6 inconmoviblc sin hacer cambios de frente, sin inudarse de camisa y sin dar golp"I! de oportunismo, esas posturas y lances de volatinero que son entre nosotros de incidencia tan frecuente que ya ban parecido sintom3s alnrma.ntes de anestesia moral en nuestro cuerpo politico, poni(;ndose en riesgo de muerte la vida de nuestras instituciones. La pasi6n del trabajo y la capacidad para el trabajo no han sido de las cualidades menos pronuncia.das del Magistrado Diokno en el predio deslindado de su a.ctividad. Fac.nas intelectuales que otros tomarian semanas en acabar, Ram6n Diokno las despachaba en veinti. cuatro horas. La calidad de! trabajro a veccs se resentfo.., pero ~ste difie~ltad quedaba allanada facilmcnte en el pro-. ccso de revisi6n. Para e1 lo importante era comenzar con prestez:i y terminar pronto lo que se habfa comenzado. Y en cl caso particular de la administraci6n de ju,.ticia le parecia que los primores de! lengt1aje y exquisiteces del estilo, las hondura.s del pensamiento y novedacl.es de doctrina, bien podian inmolarsc en la mayoria de las casos en araa de la prontitud y diligencia en dar a cada uno lo suyo. Habia, pues, en Ram6n Diokr.o ese espcjo de virtudes morn.les: Jealtad - quid.a la palabra ingfosa "loyalties" sea mas ex:acta Y comprensiva - fimteza en las convicciones, laboriosidad Y discipli~ na, en que deben mirarse aquellos de nuestros compatriotas que e.stin aun en su proceso formativo, si han de s.er en lo futuro Utiles a sf mismos y a la comunidad, Sea el mayor tribute a la memoria de Ram6n Diokno, Magistrado y Senador, el que muchos filipinos, aobre todo los que como el nacieron en humilde cuna, llegoen a la e.ltura a que et Ueg6 por la noble virtud de su ejemplo Y el noble ejemplo de sua virtudes. 170 LA WYERS JO'URNAJ, April 80, 1904 SUPREME COURT DECISIONS In the Mattu of the Petition11 for Admiasion fo the Bar of Unsuccessful Candidates of 1946 to 1950, promulgated, March 18tli, Hl54, Diokno, J. 1. BAR FLUNRERS' ACT; - REPUBLIC ACT NO. 972; ILLEGALITY OF ITS OBJECTIVE. - By its declared objective, the law ii: contrary to public interest because it qualifies 1,094 law graduates who confesst)d!y had inadequate prepara~:on for the practice of the law profe~sion, as was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of the legal profession ad~uate prepa!'a'.ion &.nd cf. ficiency, precisely more so as legal problems evolved by tho times become more difficult. An adequate legal profession is one l'lf the vital requisites for the practice of law that should be develop~d ccm"~antly and maintained firmly. To the !egg.I profMsion is entrusted the protection of property, life, honor and civil libertil:!s. To appMve offi.:ially of these inadequately prepared indi,·iduals, tC' dedicate themselves to duch a delicate mission is to create a serious social danger. 2. IBID; IIHD. - There is no identical case of similar background as the Bar Flunkers' Act in the Anglo Saxon legal history that un be invoked to support the validity of .>-:1id set. We cannot find a case in which the validity of n simi!er law has been sustained, while there are C'asc:1 which tupport it& invalidity. The lnw has no p!·ecedent in its f&..;o:r. "I:he case of Cooper <22 N.Y. 81) cited by the petitioners is of complete ina;:iplicability with the case e.t bar. 3. ATTORNEYS-AT-LAW; THEIR ADMISSION, SUSPENSION AND DISBARMENT. - In the judicial legA.1 system from whic!l ours has been evolved, the admission, suspensi'>n, disbsrment and reinstatement of attornf'ys at law in the prnctice of the profession and their supervisi1.m ha.ve been indisputably a judicial functfon and responsibility. 4. IBID; IBID. - This function requirP.s en previous establish_ed rules ar.d principles, <2> concrete facts, whether past or pr~sent, affecting determinate indivictuals, and <:1> decision na to whether these facts are governed by the rules and !Jrinciples; in effect, a judicial !unction of the highest degree. And it becomes more indisputnbly judici:.:.1, :rnd not legislative, if previous judiciel resolutions on the petitions of these same individuals are attempted to be revoked or mcdified. G. CONSTITUTIONAL LAW; DISTINCTION BETWEEN THE FUNCTIONS OF THE JUDICIAL AND LEGISLATIYE DE. PART~1ENTS OF THE GOVERNMENT. - The Ji!•tinC'tion between the functions of the Jegislativt: and th<: judidal departments is that it is the province of the legislature ti.: cstah.. lish rules that shall regolate and govem in matters of trnn. sactions occurring subsequent to the legislative action, while the judiciary determines rights and obliga.tions with rcferenC'e to transactions that are past er conditions that exiRt at the time of the exercise of judicial power, and the distinction is a A'tal one and not subject to alteration or change either by legislative action or by judicial decrC'es. BID; SECTION 13, ART. VIJI OF THE CONSTITUTION CONSTRUED. - Section 13, Article VITI of th~ Constitution has not conferred in Congress and the Supreme Court equal rcsponsibilitiesi concerning the admission to the praC'tice of law. The primary power and responsitility which th,. C:>nstitution recognizes, continue to reside in this Court. Had c1mgreS!J found ihat this Court has not promulgated any rule on the matter. it would have nothing over which to exercise th.? power granted to it. Congress may repeal, alter and supplement the rules promulgated by this Court, but the authority and responsibility over the e.dmission, suspension, disbarment and reinstatement of attorneys at law and their supervision remain vested in the Supreme Court. The power t:> repeal, alter and supplement the rules docs not signify nor perm:t that Congress substitute or take the plaeo of this Tribunal :.n the exercise of its primary power on the matter. The Constitution does not say nor mean that Congress may admit, sus.. pend, disbar or reinstate directly attorneys at law, or a determinate group of individuals to the practice of law. Its power is limited to repeal, modify or supplement the existing rules on the matter, if according to its judgment the need for a better service of the leg:il profes!lion requires it. But this power docs not relieve this Court of its responsibility to admit;, suspend, disbar and reinstate attorneys at law and super .. vise the practice of the legal profession. 7. IBID; IBID. - Being coOrdinate p.nd independent branches, the power to promulgate and enforce rules for the admission to the practice of law and the concurrent power to repeal, niter and supplement them ma.y gnd should be exercised with the respect that each owes to the other, giving careful consi. deration to the responsibility which the nature of each department requires. These powers have existed together for centuries without diminution on each part; the harmonious delimitation being found in that the legislature may and shouid examine if the existing rules on the- admission to the Bar respond to the demands which public interest t"t!quires of a Bar endowed with high virtues, culture, training and responsibility. e. IBID; IBID. - The legislature may, by means of repeal, amenctment or supplemental rules, fill up any deficiency that it may find, and the judicial r,ower, which has the inherent responsibility for a good and efficient administration of justice and the supervision of the practice of the legal profession, should consider these reforms as the minimum standards for the elevation of the profession, and see to it that with these reforms the lofty objective that is desired in the exercise of its traditional duty of admitting, suspending, disbarring and reinstating attorneys e..t law is realized. 9. BAR FLUNKER$' BILL ACT; ITS UNCONSTITUTJONALITY ON ACCOUNT Oli' ITS RETROACTIVITY. - To defend the disputed law from being unconstitutional on account of its retroactivity, it is argued that it is curative, and tl>at in such form it is constitutional. What Congress lamented is that the Court did not consider 69.5% obtained by those candidates who failed in 1946 to 1952 as sufficient to qualify them to pre.dice of law. Henee, it is the lack of will or defect of judgmsnt of the Court that is being cured, and to complete the cure of this infirmity, the effectivity of the disputed law is being extended up to the years 1953, 1954 &.nd H55, jn. creasing each year the general average by one per cent, with the order that said candidates be admitted to the Bar. This purpose, manifest in the said law, is the best p1·oof that what the Jaw attempts to amend and correct are not the rules promulgated, but the will or judgment of the Court, by means of simply taking its place. This is doing directly what the Tribunal should have done during those years accordins to the judgment of Congress. In other word11, the power exercised was not to repeal, alter .:1r suppl2ment the rules, which continue in force. What was dr}ne was to stop or suspend them. And this power is not inclurl'!d in what the Constitution has granted tc Congress, because it falls within the power to apply the rules. This power correspc..nd11 to tht! judiciary, to which such duty hns be!?n confided. IO. IBID; ARTICLE 2 OF THh LAW IS UNCONSTITUTIONAL -In +;his case, however, the fatal detect is that the article is not expressed in the title of the Act. While this law 11ccording to its title will have temporary effect only from 1946 to 1955, the text of article 2 establishes a permanent system for an indefinite time. This is contra1·y to Sec. 21 <l), Art. VJ of the Constitution, which vitiates and annuls article 2 completely; and because it is inseparable from urticle 1, it is obvious" that its nullity affects the entire law. 11. CONSTITUTIONAL LAW; WHEN LAWS ARE UNCON. STITUTJONAL. - Laws are unco:istitution:i.I on the follow# ing grounds: first, because th!:!y arc not within the )rgi.slative powers of Congress to enact, or Congress hag exceeded its powers; second, because they crea.te or cstabl;sh arbitrary methods or forms that infringe constitutional principles; and third, because their purpose or effeets violate the constitution or its basic principles. As has already been seen, the con. April 30, 1964 LA WYERS JOURNAL 171 tested law suffers from these fatal defects. LABRADOR, J., concurring and dissenting. 1. ATTORNEYS AT LAW; THE RIGHT TO ADMIT MEMBERS TO THE BAR IS THE EXCLUSIVE PRIVLEGE OF THE SUPREME COURT. - The right to admit m~mbers to the Bar is, and has always been, the exclusive privilege of this Court, bcca.use lawyers are members of the Court and only this Court should be allowed to determine admission thereto in the interest of the principle of the separati.:in of powers. The power to admit is judicial in the sense that discretion ia used in its exercise. 2. IBID; THE POWER TO ADMIT MEMBERS TO THE BAR DISTINGUISHED FROM THE POWER TO PROMULGATE RULES WHICH REGULATE ADMISSION. - This power should be distinguished from the power to promulgate rules which regulate admission. It is only this power Cto promula judicial function only because said matters happen to be entrusted, under the Constitution and our Rules of Ccurt, to the Supreme Court. There is no judicial function involved, in the strict and constitutional se11se of the word, bec<>..use bar examinations and the admission to the practice of law, unlike justiciable cases, do not affect opposing litigants. It is no more than the function of other examining boards. S. IBID; THE RETROACTIVJTY OF THIS ACT DOES NOT MAKE IT UNCONSTITU'l'IONAL. - RC!troactive Jaws are not piyhibitC!d by the Constitution, except only when they would be e:x: post facto, would impair obliga.tions and contracts or vested rights, or would deny •.iue process and equal protection of the law. Republic Act No. 972 certainly is not an e::r post facto enactment, docs not impair any obligation and contract or vestc<l right, :md denies to no one t.he right to due procesl and equal protection or the law. gate amendments to the rules> that is given in the Constitution 4 to the Congress, not the exercise of the discretion to admit or · not to admit. Thus, the ruleS on the holding ot examination, IBID; THE ACT IS A MERE CURATIVE STATUTE. - It is a mere curath·e statute intended to correct certain obvious inequa~ litiC!s arising from the adoption by this Coui·t of different pa.sa.ing general averages in certain years. the qualifications of applicants, the passing grades, etc. are within the scope of the legislative power. S. IBID; POWER TO DETERMINE WHEN A CANDIDATE HAS MADE OR NOT THE PASSING GRADE. - The power to determine when a candidate has made or has not made the rcquire.d grade is judicial, and lies completely with this Court. 4. BAR FLUNKERS' ACT; ITS UNCONSTITUTIONALITY: - The Act under consideration is an exercise of the judicial function, and lies beyond the .acope of congressional prerogative of a.mending the rules. To say that candidates who obtain a general average of 72% in 1958, 73% in 1954, and 74% in 1955 should be considered as having passed thP. examination, is to mean exercise of the privilege and discretion lodged in this Court. It is a mandate to the tribunal to pa~s candidates for different years with grades lower than foe passing mark. No reason is necessary to show that it is ~n arrogation of the Court's judicial authority and discretion. 6. IBID; THE ACT IS DISCRIMINATORY. - It is furthennore objectionable as discriminatory. Why should those taking the / ~aminations in 1953, 1954 and 1955 be aJlowed to have the priY vilege of a lower passing grade, while those taking earlier or later are not? PARAS, C.J., dissenting. 1. ATTORNEYS AT LAW; POWER TO REGULATE THE ADMISSION TO THE PRACTICE OF LAW. - All discussions 6. IBID; THE ACT IS NOT DISCRIMINATORY. - Neither can it be said that bar candidates prior to July 4, 1946, 2.re being discriminated agai~st, bec3.use we no longer ha.ve !iny record of those who might have failed before the war, apart from the circumstance that 75 per cent had always been the passing mark during said period. It may also be that there a.re no pre-war bar candidates similarly situ:ited as those benefited by Republic Act No. 972. At any rate, in the matter of classification the reasonableness must be determined by the legislative body. It is proper to recall that the Congress held pllblic hearings, and we can fairly suppose that the classification adopted in the Act refleds good legislative judgment derived from the facts a.nd circumstances then brought out. 6. IBID; THE ACT DOES NOT CONSTITUTE AN ENCROACHMENT UPON THE JUDGMENT OF THE SUPREME COURT. in support of the proposition that the power to regulate the admfssion to the practice of law is inherently judicial, are immal:erial, becausc the i;ubjed is now gove1·ned by Article VIII, Section 13 of the Constitution. Under this Constitutional pro.. vision, while the Supreme Court has the power to promulgate rules concerning the admission to the practice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see that the power of the 7. Supreme Court and the Congress to regulate the admission to - As regards the alleged interference in or encroachment upcn the judgment of this Court by the Legislative Department, it is sufficient to state that, if there is any interference at all, it is one expressly sanctioned by the Constitution. Desides, interference in judicial adjudication prohibited by the Constitu~ tion is essentially aimed at protecting rights of litigants that ha.ve already been vested or acquired in virtue of decisions Of coutts, not merely for the empty purpose of creating appear. ances of separation and equality among the three branches of the Government. Republic Act No. 972 has not produced a case involving two parties and decided by the Court in f:lvur of one and against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. CONSTITUTIONAL LAW; WHEN A LAW MAY BE HELD OBJECTIONABLE AS UNCONSTITUTIONAL. - A law would be objectionable and unconstitutional if, for instance it would provide that tbose who have been admitted to the bar after July 4, 1946, whose general average is b.alow 81.) per cent, will not be allowed to practice la.w, because said statute would then destroy a right already acquired under previo~s resolutions of this Court, namely, the bar admission of those whose general averages were from 75 to 79 per cent. the practice of law is concurrent. 2. BAR PLUNKERS' ACT; ITS CONSTITUTIONALITY. - The opponents of Republic Act No. 972 argue that this Act. in so far as it covers bar examinations held prior to its approval, is unconstitutional, because it sets aside the final resolutions of the Supreme Court refusing to admit to the practice of law the various petitioners, thereby resulting in a li>gislative encroachment upon the judicial power. In my opinion this view 8. is erroneous. In the first place, resolutions on the rejection of bar candidates do not have the finality of decisions in justiciable cases where the Rules of Cou1·t expressly fix certain periods after which they become executory and unalterable. Resolutions on bar matters, specially on motions for reconsiderations filed by flunkers in any given year, are suDject to revision by this Court at any time, regardless of the period within which the motions were filed, and this has Leen the practice heretofore. The obvious reason is that bar examina.. tions and admission to the practice of law DUly be deemed as SUPREME COURT; ITS RULE-MAKING POWER. - Under its rule making power it may pass a resolution amending Section 14 of Rule 127 by reducing the passing average to 70% effective sevcra.l years before the date of the i·esolution. Indeed, when this Court on July 15, 1948 allowed to pass all candidates who obtained a general average of 69 per cent or more and on April 28, 1949 those who obtained a general average of 70 per cent or more, irrespective of whether they filed pPtitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations held in August 1947 and August 1948, said section Cfixing the general 172 LA WYERS JOI/RN AL April SO, 1954 aver&ge at 75 per centl was supposed to be in force. which, among others, reduced the pasalng general nverage in bar 9. SUPREME COURT AND CONGRESS; THEIR CONCUR- t:>..aminations to 70% effective since ltl46. The President requested RENT POWER TO REGULATE THE ADMISSION TO THE thL- views .of this Court on the bill. Complying with that request, PTIACTICE OF LAW. - It stands to reason, i( we arc to seven members of the Court subscribed to nnd suhmitted written admit that the Supren1e Court anti the Congrus havt: ron. ccmments adverse thereto. and shortly thereafter the President vecurrent power to regulate th~ adini:ision to the practice cf law, t.oed it. CongrPss did not override the vote. Instearl, it approved that the latter may vdidly pas!:' a retro:i.ctive rule fixing the Senate Bill No. 371, embodying suhstantially the provisions of passing general average. !~:irv~~;~v::~lbie ~il:::u~~ ~~: . ::~~~~\h0: ~~::id~~~rtall:~:c;a:~: I would, however, not go to_, the extent of .admitt.i.ng thF.t bili to become a law on June 21, 1~53 without his signatur(!. The !::1.c:~t~:cs~~ i:u;:~er::~;c~~.:? 0~u;:: :or"c~:~~~t r!;'1,~~·in~ ;~; J nw, which incidentally was enacted in un election year, reads ln admission to the practice of law, may act in /n arbitrary full as follows: REPUBLIC ACT No. 972 or capricious manner, in the same way tha.t this Coutt may AN ACT TO FIX THE PASSING MARKS FOR BAH. LXAMnot do so. We are thus left in the situation, inci<lcr.ta! to !NATIONS FROM NINE'£EEN HUNDHED ANO FORTYa democracy, wherP. we can and should ortly hope that thf' SIX UP TO ANl.J INCLUDING NJNE1'EEN HUNDRED right men are put in the right places in our Go\'ernreent. AN!J FIFTY-FIVE. 10. BAR FLUNKERS' ACT; NOT ARBITRARY OR CAPRI- Be it ennded b1I the Senate and House of Repruentatbts of CIOUS. - Republic Act. No. 972 cannot be assailed on the the Philippines in Congress assembled: ground that it is unreasonable, arbitrary or capricious, aincs SECTION 1. Notwithstanding the provisions of section this Court had already adopted as passing averages 69 per <'P.nt fourteen, Rule Numbered One hundred and twenty-seven of !or the 1947 bar examinations and 70 per cent for the 1948 the Rules of Court. any bar candidate who obtained a gen. examinations. eral average of seventy per cent in any bar examinations after 11. IBID; ITS WISDOM: CANNOT BE INQUIRED INTO BY THE July fourth, nineteen hu.ndred and forty-six up to the August COURTS. - We should not inquire into the wis1l•1m of the law, nineteen hundred and fifty-one bar examinations: seventy-one since this is a matter that is addressecd to the judgment of the per cent in the nineteen hundred and fifty-two ba.r examinations; legislators. This Court in many instancea had doubted the ur..o- seventy-two per cent in the nineteen hundred aml fifN-thl'ee priety of leJrislative enactments, and yet it has consistenlly re- bar examinations; seventy-three per cent in the nineteen hunfrained f1·om nullifying thl?m snlcly en that gr<iund. dred nnd fifty-four bar examinat:ons; seventy-four per cent 12. !RID; ACT NOT AGAINST PUBLIC INTEREST. - 'fo say in the nineteen hundr(:d and fifty-five bar examinations without that the admission of the bar candidates benefited un~er P.e- a candidatt ohtaining i. gradt: below fifty per cent in any subpublic Act No. 972 is against public interest, is W assume the.~ ject, shall be allowed to take and subscrihe the corresponding the matter c.f whether said Act is beneficial or harmful to the oath of office as member of the Philippine Bar : Provided, general public wa:1 not ~onsidered by the Congress. As g.Jrcady howcve1', That for the purpc.se of this Act, any exact one-half stated, the Congress held public hearings, and we a.re bound to or more of a fraction, shall be cons:dcred as one and included assume that the legislators, loyal, as do the members of this as part of the next whole number. Court, to their oath of officP.. ila.d taken all the c1rci..:mstanceS SF.C. 2. Any bar candid:1t~ who obtained a gi·2de of into account before passing the Act. On the question of public seventy-five per cent in any subject in any ba1· examination interest I rnay 'observe that the Congress, representing the after J uly fourth, nintcen hundred and forty-six shall be deemed people who P.lected them, should be more ciualificd to make an to have passed in such subject or subjE".cts and such gl'ade or appl'aisal. I am inclined to accept Republic Act No. 972 .as grades 11hall be included in comp11ting the passing gennal nvan expression of the will of the people through their duly erages that said candidate may obtain in any subsequent exam<!lected rep1'1?sentatives. ina.tions that he may take. Miguel R. Curntjr>. Jose M. Arut!go, 1-rin~o ltf. Cabrera, Tnma.8 SEC. 3. '!'his Act shall take effect upon its appl'oval. S. Macasat!t, Mn.riano H. de Joya, Burna1·cntura Evangdi.~ta, Vic6n- Enacted cm June 21, Hl53, without the Executive approval. t .. Pelaez, Svcorro Tirona Liwag and Antoniu Enrile Jntv11 for pe- After its approval. many of the unsuccessful postw•n candititionera. dates filed petitions for admission to the bar invoking its prov. Snlicitvr General Juan R. Liwa.'1 and Sol:'citor Feliz V . Mak.i- isions, while. othrrs whos£' mot.ion~ for the revision of their cxamsi•1r fot• the GoVl'rnment. ination papers were still pending ulso invoked the afflresaid l!!.w as Vicent~ J. Francii:co, Artv'"' A. Alu.friz. Enrique M. Ferrwn:Jo, on additional ground for admission. Ther<: a1·e also others who have Vicente Abad Sc..71tos, Carlos A . Barrios nnd Roman Ozaeta as am·ci i-:ought simply the reconsidcratir:n of their grades without. howcuriae. · J ever, invoking the law in question. To avoid injustice to mdividR E S O L U T I O N ' ual petitioners, the Court first reviewed the motions for reconsideraDIOKNO, J. : In recent yeara few controversial issues have aro\lsed S') much public interest and concern as Republic Act No. !172. pop·_1la!'lv known as the "Bar Flunkers' Act" of 1953. Undi:r the Rufo!ll of Court governing admission to the bar, "in order tha.t a candidhte [for admission to the Bar] may be deemed to have passed his exuminutions successfully, he nmat have obtained a genet·tl aver:lge rof 75% in all subjects, without falling befow 50% in any Sllbject." lRule 127, Sec. 14, Rules of Court>. NP-vertheless, considering the varying difficulties of the different bat· examina.tir.TIR heht since 1946 and the varying degree of strictness with which the e>.ammation papers were graded, this Court passed and admitted to the bar those candidates who had obtained an average of oro ly 72% ii• 1946, 69% in 1947, 70% in 1948, and 74% in 1!:149. I:i 1950 tc 1953, the 74% wes raised to 75%, Believing themselves as fully qualified to practice law M those nconsidered and passed by this Court ... and feeling consc;ous of hnving been discriminated against lSee Exp'anatory Note to R A. No. 972), unsuccessful candidates who obtained uverages of n few percentage lower tha.n those c.dmitterl to the Bar agitated in Congress for, and secured in 1951 the passage of Senate Bill No. U ticn, irrespectiv(: of whether or not they had invoked Repubhc Act No. 792. Unfortunately, the Court has found r.o reason tc.. re\·isc their grades. If they are to be admitted to the bar, it must be pursuant to Rt>public Act No-. 972 which, if declared valid, should be applied equally to all conl'Pmcd whrthl'r they ha,·e filed petitions or not. A complete list of the pe>titioners, properly classified, 4ffected b)o· this decision, as well :.i.s a more detailed account of the Ju.story of Republic Act No. 972, arc appended to this decision as Annexes I and U. And to realize more 1·eadily the effect1$ of the law, th~ following: statistical data are set forth: ll) Th'.! unsuccessful bar candidates who are to be benefited by section 1 of Republic Act No. 972 total 1,168, classified as follow.;;: Year of Ei:am· Total or Total of Candidatn lnatlona undiatn tho•e who benefited by 19~11 fAuriu.t) l9~(1 iNovember) lll'1 m: 1950 1951 11152 IS5S who took failed Republir the ei:amln· Act No. 972 atlon "' m "' ... 1.21! l .3UI 2.068 2;39 2.5U 121 ' "' '" "' "' '" "' 1.033 '" " :~ ... " 1!111 "' ... Tote.le ••·••• •• 12.230 J.,U8 April 30, 1954 LAWYERS JOURNAi. 173 Of the aforesaid 1,168 candidates, 92 have passed in subsequent examinations, and only 586 have filed either motions for admission to the b&r pursullnt to said Republic Act, or mere motions for reconsideration . (2) In addition, some other 18 successful candidates are to be benefited by Section 2 of said Republic Act . These ca11didates had each taken from two to five different examinations, b11t failed tu obtain a. passing average in any of them. Consoli.:!11ting, however, their highest grades in di!!erent subjects in previous examinations, with their latest. marks, they would be sufficient to reach the passing average as provided for by Republic Act 972. <SJ The total number of candidates to be benefited by this Republic Act is therefore 1,094, of which only 604 have filed petitions. Of these 604 petitioners, SS who failed in 1946 to 1951 had individually presented motions for reconsideration which were denied, while 125 unsuccessful candida.tes of 1952, and 56 of 1953, had presented similar motions, which are still pending because they could be favorably affected by Republic Act No. 972, - although, as has been nlready stated, this Tribunal finds 110 sufficient reasons to reconsider their grades. UNCONSTITUTIONALITY OF REPUBLIC ACT NO, 972 Having been called upon to enforce a la.w of farreaching effects on the practice of the legal profession and the administration of justice, and because some doubts have been expressed as to itn validity, the Court set the hearing of the aforementioned petitions for admission on the sole question of whether or not Repub!ic ACt No. 972 is constitutional. We have been enlightened in the study of this question by the brilliant assistance of the members of the ba.r who have amply argued, orally and in writing, on the various aspects in which the qllCstion may be gleaned. The valuable studies n( Messrs. E. Voltaire Garcia, Vicente J. 'Francisco, Vicente Pelaez and Buenaventura Evangelista., in favor of the validity of tht.. law, and of the U, P, Women Lawyers' Circle, the Solicitor General, Messrs. Arturo A. Alafriz, Enrique M. Fernando, Vicente Abad Santos, C1alos A. Barrios. Vicei1te del Rosario, Juan de Blancaflor, Mamerto V. Gonzales arid Roman Ozaeta, aga.inst it, aside from the memoranda of counsel for petitioners, Messrs. Jose M. Aruego, M. H. de Joya, Miguel R. Cornejo and Antonio Enrile Inton, and of petitioners Cabrera, ltlacasaet and Galema, themselves, haa gl'{!atly helped us in this ta.sk. The legal researchers of the Court hcve exhausted almost all Philippine and American jurisprudence on. the matter. The question has been the object of intense de.. liberation for a long time by the Tribunal, and fintLlly, after the voting, the f.oreparation of the majority opinion was assigned to a new member in order to place it a.s humanly as pos:dble aLove all suspicion of prejudice or partiality. Republic Act No. 972 has for its object, according to its author, to admit to the Bar, those candidates who suffered from insuf. ficiency of reading mat.erials and inadequate preparation. Quoting a portion of the Explanatory Note of the proposed bill, its c.uthor Honorable Senator Pablo Angeles David stated: "The reason fQr relaxing the standard 75o/o passing grade is the tremendous handicap which students during the years immediately after the Japanese occupation has to overcome such as the insufficiency of reading materials and the inadequacy of the preparation of students who took up law soon after the liberation." Of the 9,675 candidates who took the examinations from 1946 tt) 1952, 5,236 passed. And now it is claimed th:it in addition 604. candidates be admitted <which in reality total 1,094>, l;;ecause they suffered from "insufficiency of reading matt:ri.e.ls" and of ·•inadequacy of preparation". By its declared objective, the law is contrary to public in. terest because it qualifies l,094 law graduates who confessedly had inadequate prepa.ration for the practice of the pl'ofession, as was exactly found by this Tribunal in the aforesaid examinations. The public interest demands of the legal profession adequate prepi.ration and efficiency, precisely more so as legal problems evolved by the times become more difficull An adequate lega.l preparation is one of the vital requisites for the practice of law that should be developed constantly and maintained firmly. To the legal pro. fession is entrusted the protection of property, life, honor and civil liberties. To approve officially of these inadequately p1·epsred individuals to dedicate themselves to such a delicate mission is to crea.te a serious social danger. Moreover, the statement that there was an insufficiency of legal reading materials is grossly exaggerated. There were abun. dant materials. Decisions of this Court alone in mimeographed copies were made available to the public during these years and private enterprises had also published them in monthly magazines and annual digests. The Official Gazett'e had been published con. tinuously. Books and magazines published abroad ha.ve entered ·without restriction since 1945. Many law books, some with even revised and enlarged editions have been printed locally during these periods. A new set of Philippine Report&' began to be pub. hthed since 1946, which continued to be supplemented by the ad. dition of new volumes. These are facts of public knowled~. Notwithstanding all these, if the law in question is valid, it has to be enforced. The question is not new in its fundamental aspect or f1'0m the point' of view of applicable principles, but the resolution of the question would have been easier had an identical case of similar background been picked out from the jurisdiction we daily consult. Is there any prec'edent in the Jong Anglo-Saxon legal history, from which has been directly derived the judicial system established here with its lofty ideals by the Congress of the United States, and which we have preserved and attempted to impro,·e, o.- in our contemporaneous juridical history of more than half' a century? From the citations of those defending the law, we can not find a case in which the validity of a similar law had been sustained, while those against ib .. -alidity cite, a.mong others, the ciises of Day fin re Day, 54 NE 646), of Cannon <State v. Cn.ni;on, 240 NW 44ll, the opinion 'ot the Supreme Court of Massa. chusetts in 1932 C81 ALR 1060, of Guariiia (24 Phil. 37>, aside from the opinion of the President which is expressed in his veto cif the original bill and which the proponent of the contested law respects. Thii; la.w has no precedent in its favor. When similo.r la'\.VS in other countries had been promulgated, the judiciary immediate. ly declared them without force or effect. It is not within our power to offer a precedent to uphold the disputed law. To be exact, we ought to state here that we have examined carefully the case that has been cited to us as a favorable precedent of the law - that of Cooper ·c22 NY SU, where the Court of Appeals of New York revuked the decision of the Supreme Court of that State, denying the petition of Cooper to be admitted to the practice of law under the provisions of a statute concerning the school of law of Columbia College promulgated on April 7, 1860, which was declared by the Court of Appea.ls to h'1 consistent with the Constitution of the state of New York. It appears that the Constitution of New York at that time provided: "They (i.e., the judges> shall not hold any other office of public trust. All votes for either of them for any elective office except that of the Court of Appeals, given by the Le.. gislature or the people, Shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty-one years, of good mora.J character, and who possesses the rec:1uisite qualifications of learning and ability, shall be entitled to :ldmission tc practice in all the courts of this State." <p. 93). According to the Court of Appeals, the object of the constitutJ,mal precept is as follows: "Attorneys, solicitors, etc., were public officers; the power of appointing them had previously re~ted with the judges, and this was the principal appointing power wh!ch they pos.. sessed. The convention was evidently dissatisfied with the manner in which thia power had been exercised, nr.d with the restrictions which the judges had imposed upon admission to practice before them. The prohibitory clause in the section quoted was aimed directly at this power and the insertions of the provision respecting tlie admi&sion of attar17• LA WYERS JOURNAL April 80, 1954 neys; in this particular section of the Constitut·on, evidently arose from its connection with the object of this pro. hibitory clause. There is nothir.g indicv.tive of confid: :mcc in the courts or of a disposition to preserve any portion of thE'ir power over this subject, unless the Supreme Court is right in the inference it draws from the use of the word 'admission' in the action referred to. It is urged that the ad:nisi:;ion spoken of must be hy the court; that to admit means to grant leave, and that the power of grantir..g necessarily implies the power of refusing, and of course the right of determining whether the applicant possesses the requisite qualifications to entitle him to admission. "These positions may all be conceded, without affecting the validity of the act." Cp. 93). Now, with respect to th~ h\w rif April 7, 1860, the de<"ision seems to indicate that it provided that the p~ssession of n diploma cof the school of law of Columbia College conferri:'lg the degre~ or Bachelor of Laws was evidence of the legal qun.lification!l that the constitution required of applicants for admission to the B:ir. The decision docs not however quote the text of the law, which WE' cannot find in any public ur o.cces:<iiblE' private library in the country. In the case of Cooper, suprO, to make the law cC'lnsisteot with the Constitution of New York, the Court of Appeals said of the ooject of the law; "Thi! motive for pessing the act in question is a?parent. Columbia College being an institution of established xeputntion, and having a law department under the charge of able professors. thE' students in which department were not only wbjccted to a formal examinar~n by the le.w committee or the institution, but to n certain definite period of study before being entitled to a diploma as graduates, the Legisla. ture evidently, and no doubt j:.istly, considered this uamination, toirether with the preliminary study required by \he act, as fully equivalent as a test cf legal acquirc•ments. to ihe ordinary examination hy the court; and as rendering the latter examination, to which no definite period of prelimina.ry Gtudy was essential, unnecessary and burdensome. "The act was obviously passed with reference to thP. learning and ability of the applicant, and for the mere purpO!;e of subst:luting the ~xitminafrm by thP. law committee of the college for that of the court. It could hve had 110 other object, n.nd hence no greater sct>pe sl;ould bE' given to its provisions. WE' cannot suppose that the Legis'.n.ture •:ksigned entirely to dispense with the rlain and explicit. requirements of the Constitution; and the act contair.s nothing whatever to indicate an intention that the authorities of the colleq~ should inquire as t .. • the age, citizenship, ete., of the !tudents before grnnting a diploma. The only rational intcrpr€!tation of which the act adniits is, that it w'l.s intended to makE' the collegr. diploma competent e\·idencP. as to U.e legal attainments or the applicant, and nothing else. . To this extent alone it ope.. rates as a modification of pre.existing statutes, and ~t is 1.o be read in connection with those statutes and with the Constitution itself in order to determine th~ present condition of the Jaw on the subject." Cp. 39). x x x x x x "The Legislature has not ta.ken from the court its Jurisdiction eiver the question of ndmiss!on, that has simply pres. cribed what shall be competent evidence in certain cases upon that question." <p. 9:n From the foregoing, the complete in~pplicability of thP. case Gf Cooper with that at bar may be clearly seen. Plense note only the followin~ distinctions: CP ThP law of New York dces not i·equire that ruiy candidate or Columbia College who failed in the bar examinations be adntitted to the practice of law. C2> Tht.? law of New York, acco,d"ng to the VE'ry decis:on of Cooper, has not taken from the court its jurisdiction over fol? ques1.ion of admission of attorney3-at-law; in effect, it does not deCt'Ce the 1:1.dnussion of any 1<1-wyer. <3> The Constitution of New York at that time and that of the Philippines are entirely difforent on the matter of admission tu the practice of law. In the Judicial system from which ours has been evolved, the admission, suspension, disbarment and reinstatement of a~ton1eys at law in th~ practice of the prof£!ssion e.nd their supervismn have been indisputably a judicial .function and responsibility. Because or. this attribute. its continuous and zealous possess:cn and exercise by the judicial power have been demonstrated during more than six centuries, which certainly "constitutes thE' most solid of titles." E\en considering the power granted to Congress by our Constitution to repeal, alter and supplement the rules promulgated by t.lli-3 C(Jurt regarding the admission to the practice of law. to our judgment the proposition that the admission, suspension, disbarment aud reinsta!ement of attorneys at law is unacceptable. This functiein requires ru previously established rules and principles, c2> CO!lw crete facts, whether past or p1·escut, affecting determinate individuals, and <3> decision as to whethet· these facts are governed by the rules and principles; in effect, a judicial function of the hi~h· est degree. And it becomes more undisputably judicial, and not legislative, i!' previous judicial resolutions on the petitions of th'!se same individuals are atteinpted to be revoked or modified. We havP. said tha.t in the judicial system from which ours hne . bten derived, the act of admitting, suspending, disbarring and rei:1stating attorneys at law in the practice of the profession is concededly judicial. A comprehensive and comcientious study of this matter had been undertaken in the case of State v. Cannon C1932) 240 NW 441, in which the validity of n legislative enactn1ent prov!ding that Cannon be permitted to practice before the courts was discussed. From the text of this decision we quote the following paragraphs: "This statute presents an assertion of legi~lative pown without parallel in the history of the English .;pr.aking people so far as we have been able to asce-rtain. There h:i.s been . much uncertainty as to the extent of the power of thr. Legislature te prescribe the ultimate qualifications of attorneys at law, but in England and in every state of the Union the uct of admitting an attorney at law has been expressly committed to the courts, and the act of admission has always been rew garded a~ a judicial function. This act purport.i to constitute Mr. Cannon an attorney at law, and in this respect it stand3 alone as an assertion of legislative power. (p. 444). "No greater responsibility re11ts upon this court than font of pr€!serving in form . and substance the exact form of government set up by the people. (p, 444>. "Under the Constitution all lE'gislative power is vested in n Senate and Assembly. SE'ction 1. art. 4. In so far as tl:c prescribing of qualifications for e.d.mission to the bar are legislative in character, the legislature is acting within its conw .stitutional authority when it .;cts up and prescribes such qualifications. Cp. 444) "But when thE' Le~islaturE' ha9 prescribed those 'JUalifi. ca.tion.s which in its judj?TIIE'nt will serve the purpose of legitimate legislative solicitude, is the power of the court to im~ pose other and further exactions and qua.lifications foreclosed or exhausted? Cp. 444) HUnder our Constitution the judicial and legislative departments arc distinct, inrlenendent, and coordinate hrancl1es of the government. Neither. oranch enjoys all the powers of sovereignty, but each is supreme in that branch of sovereignty which properly belongs to its department. Neither dep!lrtment should su net M to embarrass thr. othl!r in the discharge of its respective functions. That was the scheme and thoue:ht of the people in setting upon the form of government ur.der which WE' exist. StatP v. Hastings. 10 Wis. 625; AttornE'y General ex rel. Bashford v. Barstow, 4 Wis. 667. Cp. 445) "The judicial department of gove?tUilent is responsible April SO, 19£i4 LAWYERS JOURNAL 17& for the plans upon whieh the administration of justice is maintained. Its responsibility in this respect is exclusive. By committing a portion of the 11owers of sovereignty to the judicial department of our state government, under a scheme which it wa.s supposed rendered it immune from embarrass.. ment or interference by any other department of government, the courts cannot escape responsibility for the manner in which the powers of sovereignty thus committed to the judicial department are exercised. Cp. 445> "The relation of the bar to the courts i~ a peculiar and intimate relationship. The bar is an attache of the courts. The quality of justice dispensed by the courts depends in no small degree upon the integrity of its bar. An t:.nfailhful bar may easily bring scandal and reproach to the administration of justice and bring the courts themselves into disr<lpute. Cp. 445) "Th!'ough all time courts have exercised a dire'-"t and severe supervision over their bars, at least in the English speaking countries." Cp. 445) After explaining the history of the case, the Court ends thus: "Our conclusion may be epitomized as follows: For more than six centuries prior to the adoption of our Constitution, the courts of England, concedely subordinate to Parliament since the Revolution of 1688, had exercised the right or determining who should be admitted to the practice of Jaw, w~ich, as was said in Matter of the Sergeants at Law, 6 Bingham's New Cases 235, 'constitutes the most solid of all titles.' 1f the courts a.nd the judicial power be regarded as an entity, the power to determine who should be admitted to practice law is a constituent element of that entity. It may be difficult to isolate that element and say with assurance that it is either a part of the iflherent power of the court, or an essential element of the judicial power exercised by the court, but that it is a power belonging to the judicial entity cannot be denied. Our people borrowed from England this judicial C'J'ltity and made of it a separate, independent. ttnd coordinate branch of the government. They took this institution along with the power traditionally exercised to determine who should constitute its attorneys at law. There is no express provision in the Constitution which indicates an intent that this traditional power of the judicial department should in any mal'.ner be subject to legislative control. Perhaps the dominant thought of the framers of our constitution was to make the three great departments of government separate and independent of one another. The idea that the Legislature might embarrass the judicial department by prescribing inadequate qualifications for attorneys at law is inconsistent with the do.. minant purpose of making the judicial independent of the legislative department, and such a purpose should not be inferred in the a.bsenfe of express coristitutional provision. While the Legislature may legislate with respect to the qu.!lifica.tions of attorneys, its power in that respect docs not rest upon any power possessed by it to deal exclusively with the subject of the qualifications of attorneys, but is inddental merely to its general and unquesticned power to protect the public interest. When it does lcgislnte fixing a standard of qualifications required of attorneys at l:lw in order that pub.. lie interests may be protected, such qualiCications constitut3 only a minimum standard and limit the class from which th~ court must make its selection. Such legislative qualific~ tions do not constitute the ultimate qualifications beyond which the court cannot go in fixing additional qualific:i.tions deemed necessary by the course for the proper administration of judicial functions. There is no legislative power to compel courts to admit to their bars persons deemed by them unfit to exer~ cise the prerogatives of an attorney at law." Cp450> "Furthermore, it is an unlawful attempt to exercise the power of appointment. It is quite likely true that the Le.gisla.ture may exercise the power of appointml!nt when it is in pursuu.nce of a legislative function. However, the authorities are well-nigh unanimous that the power to admit attorneys to the practice of law is a judicial function. In all of the stntes, except N11.w . . Terse~ <In re Raisch, 83 N.J. Eq. 82, 90 A. '. 12>, so far · as ··our investigation reveals, attorneys receive their formal license to practice Jaw by their admisi=ion as members of the bar of the court so admitting. Cor. Jur. 572; Ex. parte Secombe, 19 How. 9, 15 L. Ed. 565; Ex parte Garland, 4 Wall 333, 18 L. Ed. 366; Randall v. Brisham, 7 Wall. 62, 19 L. Ed. 285; Hanson v. Grattan, 84 Kan. 843, 115 P. 646, !l4 L.R.A. 5i9; Dan!orth v. Egan, 23 S. D. 43, 119 N. W. 1021, 139 Am. St. Rep. 1030, 20 Ann. Cas. 418. HThe power of admitting an attorney to practice having been perpetually (!Xcrcised by the courts, it h9.ving been so generally held that the act of a court in admitting an attorney to practice is the judgment of the court, and an attempt as this on the part of the Legislature to confer such right Qpon any one being most exceedingly uncommon, it seems clear that the licensing of an attorney is and always has been a P\lrely judicial function, no matter where the power to determine the qualifications may reside." (p. 451) In that same year of 1932, the Supreme Court of Massat'husctts, in answering a consultation of the Senate of that State, 180 NE 725, said: "It is indispensable to the administration of justice and t.J interpretation of the laws that there be members of the bar of sufficient ability, adequate learning and sound moral character. This arises from the need of enlightened assistance to the honest, and restraining authority over the knavish, litigant. It is highly importa..nt, also, that the public be protected from incompetent and vicious practitioners, whose opportunity for doing mischiC'f is wide. It was said by Cardozo, C. J., in Pee.pie ex rel. Karlin v. Culkin, 242 N. Y. 465, 470, 471, 162 N. E. 487, 489, 60 A. L . R. 851: 'Membership in the bar is a privilege burdened with conditions.' One is admitted to the bar 'for something more than private gain.' He becomes 'an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice. His co-operation with the court is due 'whenever justice would be imperiled if co..oper:i.tion was withheld.' Without such attorneys at law the judicial department of government would be hampered in the performance of its duties. That has been the history of attorney;,. ur.der the common law, both in this country and in Engla11<l. Admission to practice as an attorney at law is almo!.'t without ex. ception conceded to be a judicial function. Petition to that end is filed in courts, as are other proceedings invol<ing judicia.l action. Admissio~ to the bar is accomplished and made open am) notorious by a decision of the court enb:!red upon its records. The establishment by the Constitution of the judicial department conferred authority necessary to the exercise of its powers as a co-ordinate department of government. It is an inherent power of such a department of government ultimately to determine the qualifications of those to be adn:itted to practice in its courts, for assisting in its work, and to pro. tect its~lf in this respect from the unfit, those la.eking in suf. ficient learning, and thOse nc>t possessing good moral character. Chief Justice Taney stated succinctly and with finality in Ex parte Secombe, 19 How. 9, 13, 15 L. E'1. 565, 'It has been well settled, by the rules and practice .:if comrr.on-law courts, that it rests exclusively with the court to determine who is qualified to become one of its officers, as an a~torney and counselor, and for wha.t cause he ought to be removed.' " Cp. 727) In the case of Day and others who collectively filed a petitit>n to secure license to practice the legal profession by virtue of a law ct the state <In re Day, 54 NE 646), the coui:t said in part: "In the case of Ex parte Garland, 4 Wall, 333, 18 I,. Ed. 866, the court, holding the test oath for attorneya to be unconstitutional, explained the nature of ·the attorney's office as follows: 'They are offic~rs of the court, admitted as such b:t its order, upon evidence of their possessing sufficient Icg::il 178 LAWYERS JOURNAL April 80, 1954 learning and fair pri\tate cJtat_.a~ter. It, hl!s, always been the general practice in this country to obtain tliis evidence by an examination of the parties. In this court the fact of the nrl~ission of such officers in the highest court of the states to which they, respectively, belong, for three years preceding their application, is regarded as sufficient evidence of the possession of tho l'equ:site legal J1mrning, anrt the statemc!'.t of counsel moving their admission sufficient evidence that their private and professional ch:iracter is fair. Th-:! order of :i..:1.mission is the judgment of the court that the parties !'flssess the req·.iisite qualifications as attorneys and cvunselors, and are ,entitled to appear as such and cpnduct causes therein From its entry the parties become officers of the court, a.nd are responsiblr tci it for professional misconduct Thc>y holJ their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judg. ment of the court after opportunity to be henrd has been afforded. Ex parte Hoyfron, 7 ff(lw. <Miss. 127; Flekht>r v. Daingerfield, 20 Cal. 430. ThC!ir admission or their .exclnsion is not the exercise of . a mere ministerial power. It is the exercise of judicir.I power, a.rid has been so held in numerous cases. It was so held by the co~rt of appeals of New York in the matter of the application of Cooper for admission. Re Cooper 22 N. Y. 81. 'Attorneys and CounscJ(lrs,'· said that court, 'are not only officers of the court, but officers whose' duties relnte almost exclusively to prcccedings of n judicial nature; and hence their appointment may, with propridy, be intrusted to the court, and the latter, in performing his dutv. may very justly considered as engaged in the exercise Jf their appropriate judicial functions.'" <pp. 650-651>. We quote from other cases, the following pertinen!. portions: "Admission to practice of law is almost without exception com.:eded everywhere to be the exercise of a judici.:!.l function, and this opinion need not be burdened with citations on this point. Admission to practice have also been heJ.j to he the exercise of one of the inherent powers of the court." -Re Bruen, 102 Wash. 472, 172 Pac. 906. "Admission· to the practicC! of law is the exercise of s. judicial function, and is an inherent power of the court.'' - A. C. Brydonjack v. State Bar of California, 281 Pac. 1018; See Annotation on Power of Legislature respecting admiss:on to bar, 66 A. L. R. 1512. On this matter thC!re is certainly a clear distinction between t!".e functions of the judicial and legislative departments of the governnient. "The distinction between the functions of the legislative and the judicial departments is that it is the province of thC! legislature to establish rules that shall rC!gulatC! and govern in mattC!rs of transactions occuring subsequent. to the lagii:lative action, whit~ the judiciary detC!rminC!s rights ar,d obligations with reference to tra.nsactions that are past or <'Onditions that exist at the time of the exercise of judicial power, and the distinction is a vital one and not subject to alteration or change either by legisla!ive action or by judic!al decrees. "The judiciary cannot consent that its province shall ~ invadC!d by either of the other departments of the government.'' - 1G C.J .S. Constitu~ional La.w, p. 299. "I! the legislaturC! cannot thus indirC!ctly control the nctio:i of the courts, by requiring of foem a construct!on of tl!e Jaw according to its own views, it is very plain it cannot do so directly, by settling aside tht!ir judgments, compelling them to grant new trials, ordering the discharge of offenders. or directing what particular steps shall be taken in the progress of a judicial inquiry.'' - Cov~ey's Constitution;'.!.] Limitations, 192. In decreeing that bar candid:::tes who obtained in the bar examinations of H46 to 1952, a general average of 70% without falling bdow 50'# in any subject, be admitted in mass to the practice of law, the disputed law . is not a. legislation; it is a judgment - 2. judgment rev.:iking those promulgated by this Court during the eforccited rears affecting the bar candidates concC!rned; r:.nd although this Court certainly can revoke thC!se judgments even now, for justiciable reasons, it is no less certain that only this Court, o.nd not the legislative nor executive department, that may do so. Any ath-mpt on the part of any of these departments would be a dear usurpation lf its functions, as is the case with the law in question. Th:::t thC! Constitution ha.s conferred on Congress the pover to repeal, alter or supplement the rules promulgated by this Tribunal, concerning the admission to the practice of law, is no valid argument. Section 13 Article VIII of the Constitution provides: "Section 13. The Supreme Court shall have the power to promulgate rulC!S concerning plC!ading, praeticc, and procedure in all courts, and the admissicn to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increa.sC' or modify substantive righl:i!. The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Court~. subject to the power of the Supreme Court to alter and modify the same. The Congr<:!ss shall have the power to repi!al, alter, or supplement the rules concerning pleading, practice, and procedure, and the admission to the practice of law in the Philippines.'' - Constitution of the Philippines, Ar~. VIII. Sec. 13. It will be noted that the Co:istitution has not conferred on Congress and this Tribunal equal responsibilities concerning the admission to the practice of law. The primary power fi.nd responsibility which the Constitution recognizes, continue to reside in this Court. Had Congress found that this Court has not pr~ mulgated a.ny rule on the matter, it would have nothing over which to exercise the power granted to it. Congress may repcr.l, nltC!r and supplement the rules promulgated by this Court, but the authority and responsibility ovC!r the admission, suspenskn, dish::i.rment <1-nd reinstatement of attorneys at law and their supervision rem9.in vE:sted in the Supreme Court.. The power to repeal, alter and sup. ' plemcnt the rules does not sigiiify nor permit that Congre~s subi.titutc or take the place of this Tribunal in the exercise of its primary power on the matter. The Constitution does not !l'ay nor mean that Congress may admit, suspend, disbar or reinstate directly attorney.:; at law, or a determinate group of individual!l to the practice of law. Its power is limited to repeal, modify or suppfo~ ment the existing rules on the ma.tter, if according to its judgmisnt the need for a bC!tter service of the legal profession requires it. But this power docs not relieve this Court of its responsibility t,) admit, suspend, disbar and reinstate attorneys at law and superviso the practice of the legal profession. Being CflOrdinatP And independent brandies, the power to promulgate ai•d enforce l'Uies for the admission to the practice of law and the concurrC!nt power to repeal, alter and su~plement thrm may and should be exC!rcised with the i·espect that each owes t•l the other, ~iving careful considcra1ion to the responsibility which the nature Clf each department requires. 'l'hE:se pow<'r have existed together for centuries withollt diminution on each part, the harn1oni.1us delimitation bl.ling found in that the legislature way and should examine if the existing rulP.s on the admission to the Ba.r respond to thfl dr-mands which public inte.rest requires ot a Bar endowed with high virtues, culture, training 1:.nd responsibility. The lcl'.!'islatul"e may, by mccns of repeal, amendment or supplemental rules, fill u9 any deficiency that it m::i.y find, and the judicial powt!r, which h:is the inherent responsibility for a good and effi. cient a.dministration of justicC! and the supervision of the pl'actic~ of the legal profession, should consider these reforms as the minimum standards for the elevation of the profession, and sct> to it that with these reforms the lofty objective -that is desired in the exercise of its traditional duty of admitting, suspending disbarring and rcinstateing attorneys at law is re:.lized. T~ey arc powers which, exercised within their proper constitutional limits, are not 1epugnant, but rather complementary to each other in attaining th<' establishment of a Bar that would respond to the increas:ng and April 30, 195-t LA WYERS JOURNAL exacting necessities of the administration of justice. The case of Guarifia <1913> 24 Phil. 37, illustrates our critf'rion, Guarifia took the examinations ant.! failed by a few points to ob.. tain the genera.I average. A recently enacted law provided that one who had been appointed to the position of Fiscal may be admitted to the practice of law without a previous examination. Th~ Gc.vernment appointed Guarifia and he discharged the duties of Fiscal in a remote province. This Tribunal refused to . :{ive his license without previous examination. The Court said: "Relying upon the provisions of section 2 of Act No. Hi97, the applicant in this case seeks admission to the bar, without taking the prescribed examination, on the ground that he holds the office of provinciil fiscal fo'.': the P·tovinca of Batanes. "Section 2 of Act No. 1597, enacted February 28, 1907, is as follows: "Sec. 2 Paragraph one of section thirteen of Act Numbered One Hundred and ninety, entitled 'An Act providing a Code of Procedure in Civil Actions and Special Proceedings in the Philippine Islands.' is hereby amended to read as fol~ lows: " '1. Those who have 1:Jeen duly licensed under the fows and orders of the Islands under the sovereignty of Spain or of the Unit<!d States and are in good and regular standing as members of the bar of the Philippine Islands at the time of the a.doption of this code: P'rovided, That any person who, prior to the paasage of this Act, or at any time thereafter, shall have held, under the authority of the United States, the position of justice of the Supreme Court, judge of the Court of Firs~ Instance, or judge or associate judge of the Court of Land Registration, of the Philippine Islands, or the position of Attorney-General, Solicitor-General, Assistant Attorney-General, assistant attorr.ey in the offir.e of th<' AttorneY,-General, prosecuti?1g attorney for the city of Maniia, assistant prosec.uting attorney for the City of Mam\a, city attorney of Manila, assists.'lt city attorney of Manila, provincie.1 fiscal, attorney for the Moro Province, or assistant attorney for the Moro Province, may be licens.~d to practice law in the courts of the Philippine Islands without an examination, upon motion before the Supreme Court and estab.. li&hing such f:lct to the satisfaction of said court.' " "The records of this court disclose that on a former occasion this upplicant took, and failed to pass the prescribed examination. The report of the examining board. dated March 23, 1907, shows that he receiv<!d an averali:°e of only 71 per cent in the various branches of legl\l learning upon which he was examined, thus falling four points short of the requirE"d percentage of 75. We would be delinquent in the performancE" of our duty to the public and to the bar, if, in the !ace o! this affirmative indication of the deficiency of the applicant in the requil'ed qualifications of learning in the law at the time when ho! presented his former application for admission to the bar, we should grant him a lict'nse to i:ractice law in the courts of these Islands, without first satisfying ourselv<!S that despite his failure to pass the examinatio;i on that occasion, he MW 'possesses the necessary qualifications of learning e.nd ability.' "But it is contended that under the previsions of the above-cited statute the applicant is entitled as of right to be admitted to the bar without taking the prescribed examinntion 'upon motion before the Supreme Court' accompanied by satisfactory proof that he has held and now holds the office of provincial fiscal of the Province of Batanes. It is urged that having in mind the object which the legislator ai:rarently sought to attain in enacting the abrive-cited amendment to the earlit:r statute, and in view of the context generally and especially of the fact that the amendment was inserted as a proYi.!'o in that section of the original Act which spPCifica!ly provides for the admission of certain candidates without examination, thE' clause 'may be licensed to practice law in the courts of the Philippine Islands without any examina. tion.' It is contended that this mandatory construction is imperatively required in order to give effect to the apparent intention of the legislator, and to the candidate's claim d11 Jure to have the power exerciRed." And after copying article 9 of Act of July 1, 1902 of the Con. gress v! the United States, nr.tieles 2, 16 and 17 of Act No. 136. and articles 13 to 16 of Act HJO, the· Court continued: "Man1!e1>tly, the jurisdiction thus conferred upcn this court by the Commission :md confirmed to it by the .Act of Congress would be limited :?.nd restricted, and in a case such as that under consideration wholly destroyed, by giving the word 'm:i.y.' as used in the above citation iron'). Act No. 1597. as mandatory rather than a permissive effect. But anY Act of the Commission which has the effect of setting at naught in whole or in pnl't the Act of Congress of July 1, 1902, or of any Act of Congress prescribing, defining or limiting the power con!erred upon the Commission is to that extent invalid a.nd void, as transcending its rightful limits and authority. Speaking on the application of the law to those who we1·e appointed to thP. posithns enumerated, nnd with particular emphasis in the case of Guarifia, the Court held: 0 In the various cases wherein app!ications for admission to the bar under the provisions of this statute have been· co!lsidered heretofore. we have accepted the fact that such appointments had been made as satisfactory eviderice of the qua. lifications of the applicant. But in all of those cases we had reason to believe t}lat the applicants had been practicing attorneys prior to the date of their appointment. "In the case under consideration, however, it affirmatively appears that the applicant was not and never had been practicing attorney in this or any other jurisdiction prior to the date of his appointment as provincial fiscal, and it fur. ther affirmatively appears that he was deficient in the required qualifications at the time when he last applit•d for admission to the bar. "In the light of this affirmatively proof of his deficiency on that occasion, we do not think that his appointment to th~ office of provincial fiscal is in itself satisfactory pr')()f of his possession of the necessary qualifications of learni!'!g nnd ability. We conclude therefore that this application for Ji. cense to ptactice in the courts of the Philippines should be JenieJ. "In view, however, of the fact that when he took the examination ho fell only four points short of the n·ecessarY grade to entitle him to a license to pra.ctice; and in view also of the fact that since that time he had held the responsible office of governor of the Province of Sorsogo:l and presumably gave evidence of such marked ability in the performance of \he duties of that office that the Chief Executive, with the consent and approval of the Philippine Commission, sought, to retain him in the Government service by appointing him to the office of provincial fiscal, we think we would b"' justified under the above-cited provision of Act No. 1G97 in waiving in his case the ordinary examination prescribed by general rule, provided he offers satisfactory evidence of his proficiency in a special examination which will be given him by a committee of the court upon his application therefor, without prejudice to his light, if he desil"es so to do, to present himself at any of the ordinary examinations prescribed by general rule." - Cln re Guarifia, pp. 48-49.) It is obvious, therefore, th9.t the ultimate power to grant license for the practice of law belongs exclusively to this Court, and the law passed by Congress on the matter is of permissive character, or as other authorities say, merely to .fix the minimum conditions for the license. The law in question, like those in the case of Day and Cannon, ha.s been found also to suffer from the fatal defect of being n class legislation, and that if it has intended to mnke a classification, it is arbitrary and unreasonable. In the case of Day, a law enacted on February 21, 1899 re. 178 LAWYERS JOURNAL . April SC, l!lS4 quired o! the Supreme Court, until December 31 of that ye2.r, to grant licensl:! f0r the practice vf law to those students who began £tudying before November 4, 1897, and h:i.d studied for twc years and presented a diploma issued ·oy a sch'lol of law, or to thos~ who had studied in a Jaw office and would pass an exarr.ination, 01· to those who had sturlied for three years if they commencc:i their studies after the sforementioned date. The S:ipr<.!m~ Court declared that this law was unconstitutional being, among others, a class l_ egislntion. The court said: "This is an applicatio:t to this court for admision to tho kr of this state by virtue of diplomas from law schcols issued to the a.pplicants. The act of the general assembly passed in 1899, under which the application is made, is en. titled 'An act to amend section 1 of an act e11titled "An net to rcvisP thP law in rPlation to attorneys and c:mnse\ors," approved March 28, 1874, in force July 1, 1874.' The amend. ment, so far as it appears in the enacting clau:e, consi.s;ts in the addition to the section of the following: "And ewry ap. plicant for a license who shall comply .vith the rules of the supreme court in regard to admission to the bar in f-:rce at the time such applicant comm~nced the study of law, either in a Jaw office or a law school or collP.ge, shell be gr.:mterl .a license under this act notwithstanding any subsequent C'hangc3 in said rules.'" - In re Day et al., 54. N.E. p. 646. xx x. "After said provision there is a double proviso. one branch of which is that up to December 31, 1899, this court shall grant a license of admittance to the bar to t.he holder of every diplom<?. regularly issued by any Jaw school regularly organized under the laws of this state, whc:.se re. gular cours!? of law studies is two years, anti requiring an attendance by the student >f at least 36 weeks in each of suc!t years, and showing that the student began the study cf Jaw prior to November 4, 1897, and accomp&nied with the usual proofs of good moral chara.:ter. The other branch of the P!'!>-viso is that any student who has studied law for two years in a law office, or part of such time in a law office, 'and part in the aforesaid law school.' a.nd whose course of st-..cly be. 1?an prior to November 4, 1897, shall be admiVed upon a s11tiskctory examination by the examining bo'.lrd in the branches now required by the rules of this court. If the right to ad.. mission exists at all, it is by virtue of the uroviso, which, it is claimed, confers substantial rights and priv:Jeges upol'I. the persons named therein, and establii::hes rule!? of legislative creation for their admission to the bar." <p. 647.> "Considering the proviso, however, as an enactment, U is clearly special )P.gislation, prohibited by th!) constitut:on, and invalid as such. If the legislature had an)' right to admit attorneys to practice in the courts and take part in tho administration of 'justice, and could prescribe the cha~·acter of evidence which should he received by the <"Curt as conclusive d the re•iuisite learnini;- and ability of persons to prac. tice law, it could only bP rJone b}· a general law. and not by granting special and exclusive privileges to certain persons or classes of persons. Const. :-trt. 4, section 2. The right to practice law is a privilege, and a lic!?nse !or thn.t purp:Js~ makes the holder an officer of the court. and confe1 I' upon him the right to appear for litigants, to argue causes, anr! to collect fees therefor, amt creates certain exemptions, such as from jucy service and arrest on civil process while attend. ing court. The Jaw conferrin;; such privilege must be gener~·I in its operation. No doubt the legislature, in framing an enactment for that purpose, may classify persons so Jong ?..2 the law establishing classt?s in generel, and has some reason. ::.ble relation to the end sought. There must be some difference which furnish!!d 9. rea.sonable basis for differen~ legis!:..tion as to the different classes, and not a purely arbitrary one, havin3' no just relation to the subject of the k>g'islatbn. Braceville Coal Co. v. People, 147 Ill. 66, 35 N.E. 62; Ritchie v. Perple, 155 Ill. 98, 40 N.E. 454; Ra:lroad Co. v. Ell:s, 165 U. S. 150, 17 Sup. 255. "The length of time a physician has practiced, and the skill acquired by experience, may furnish a Casis for classifica. tion <Williams v. People, 121 Iii. 84, 11 N.E. 8Bll; hut the place where such phys:cian has resid_d and prac ~icad h:s pro. fession cannot fumii::h such basis, and is an arbitrary disc.ri~ minatiou, making an enactment based t:.pon it void <State v. Pennoyer, 65 N.E. 113, 13 Atl. 878). Here the legisleture undertakes to say what shall serve es a test of fitness fo!' the profession of the law, !lnd, plainly, :my classification mu'>t have some refc1·ence to leaxning, charac~r. or ability to en. gage in such practice. The proviso is limited, first, to a class of persons wl10 bega.n the study of Jew priot· to Novembt>r 4, 1897. This class is sutdivided into two dr.sses - Firo;t, those presenting diplomas ii::;sued by ar.y law school of this state before December 31, 1899; and, second, thos!'! who r:tud!ed law for the period of two yenrs in a law office, or part of the time m a law school and part in n law office, who are to be admitted upon cxamiration in the subjects specified in the present rules of this court, :md as to this latter sub<iivisb"!l there seem;; to be no limit of time for making application for adn1ission. As to both classes, the conditions of lhe rules are dispensed with, and as between the two different conditions nnd limits of time arc fixed. No course of study i~ rrescribed for the law school, but a ciiploma granted upon th:? completion of any !l01'l cf course its mam•..gers may pre~ scribe ls made all-sufficient. Can there be anythinr; with relation to the qualifications o!' fitness of persons to practice law resting upon the merE' dab• cf NovembPr 4, 1897, wh:ch wi!J furnish a basis of classification? Plainly not. Those who began the study of law November 4th could qualify tht"m· selves to practice in two yea.rs as well as those whv began on the 31'~. The classes named in the 11roviso need spend o:ily two ycarl'I in study, whil!? those who cc,mmence.:l the n.:-xt clay must spe11d three years, although they would comph;te two years before the tinic limit. The one who commenced on the Sn!. if P03sesscd of a diploma, is to be adrratted without examination before December 31, 1899, r.nd without any prescribed cnurse of study, while as to thP other the prescriber] course must be pursued, and the diploma is utterly useless. Such dassification cannot rest upon t?.ny natural reason, or bear any jui=t relation to the i::ubject tought. and none is suggested. The pr1>viso is for the sole purpose of bestowing privileges upon ~crtain defined r-ersons. <pp. 647-648.> In the case ?! Cannon above cited, State v. Cannon, 240 N. W. 441, where the legislature attempted by la.w to reinstate Cannon to the practice of law, the court also held with regards to its aspect o! being a class legislation: "But t.hc statute is invalid for another reason. If it he granted that the legislature has powt"r to pl'escribe ultimately and definitely the qualifice.tions upon which courts must '.11mit and license those applying as attorneys at law, that powt"r can not be exercised in the manner here attempted. That pn. wcr must be exercised through general laws which wiil apply to all alike end accord equal opportunity to ~11. Speaking of the right of the Legislature to exact qualifications of those r\e. siring to purme chnsen callings. Mr. Justice Field in tile case of Dent v. West Virginia, 129 U. S. 114. 121. 9 S. Ct. 232, 233 3~ L. Ed. 626, said: 'It is undoubtedly the rig!"lt of t'very citizen of the United States to follow any lawful calling, business or profession he may choose, subject only to such restrictions as arc imposed upon all "persons of like cge, sex, and condition. This right may in many respects be considered as a distingUishing feature of our republican institutions. Hett' all vocations are nil open to every one on like c.onditio:1s. All may be pursued as sources of livelihood, some re;quiring years ot study and great learning for their 'successful protl'cutio!l. The interest. or, as it is sometimes termed, the 'estate' a.c. quired in them-that is, the right to c:m~inue their prosecution -is often of great value to the possessors, and cannot Oe arbi. trarily tak::!n from them, any more than their real or personal property can be thus to.ken. It is fundamental under our sysApril '30, 1954 LAWYERS JOURNAL 179 tern of government that all similarly situated and posses!ling equal qualifications shall enjoy equal opportunities. Even statutes regulating the pr:i.ctice of medicine, requiring examinations to establish the possession on the part of the application of his proper qualifications before he may be licensed to practice, ha.ve been challenged, and courts have seriously considered whether the exemption from such examinations of those practicing in the state at the time of the enactment of the law rendered such law unconstitutional because of infringement upon this general principle. State v. Thomas Call. 121 N.C. 643, 28 S.E. 517; see, also, The S'!:ate ex rel. Winkler v. Rosen. berg, 101 Wis. 172, 76 N.W. 345; State v. Whitcom, 122 Wis. 118, 99 N.W. 468. "This law singles out l\lr. Cannon and assumes ti) confer upon him the right to practice law and to constitute him an officer of this Court as a mere matter of legislative grace or favor. It is not material that he haci. once established his right to practice law and tba.t one time he possessed the requisite learuing and other qualifications to entitle him to that right. That fact in no mann~r affect the power of ll-ie Legislature to select from the great body of the public an in. dividual upon whom it would confer its favors. "A statute of the state of Minnesota <Laws 1929, c. 424) comm10.nded ~he Supreme Court to admit to the practice of law, without examination, all who had 'serve in the military or naval forces of the United States during the World Wur and received an honorable dischargE:o therefrom and who <wne disabled therein or thereby within the purview of the Act of Congress approved June 7th, 1924, known as 'World War Veteran's Act, 1924 and whose disability is rated at least ten per cent thereunder at the time of thP passage of this Act." This Act was held 'unconstitutional on the ground that it cle2rly violated the quality clauses of the constitution of that state. In re Application of George W. Humphrey, 178 Minn. a:u, 221 N.w. 179 · A good summa1·y of .:i. classification constitutionally acceptable is explained in 12 Am. Jur. 151-153 as follows: "The general rule is well settled by unanimity of the au. thorities that a classification tc be valid must rest upon material differences between the persons included in it and those excluded and, furthermore, must be based upon substantie.l distinctions. As the rule has sometimes avoid the coMtitutional pro. hibition, must be founded upon pertinent and real difference, as distinguished from irrelevant and artificial once. Therefore, any law that is made applic3ble to one class of citizens only must be based on some substa.ntial difference between the situation of that class and other individuals to which it does not apply and must rest on some reason on which it can be defended. In other words, there must be such a difference between the situation and circumstances of all the members of the class anti the situation and circumstances of all other members of the state in relation to the subjects of the discriminatory kgislation as presents a just and natural reason for the difference made in their liabilities and burdens and in their rights and privileges. A law is not general because it operates on all within a class unless there is a substantial reason why it is marle to c.perate on that class only, and not generall:,.· on all." <12 Am. Jur. pp. 151-153.) Pursuant to the law in question, those who, without a grade below 50% in any subject, hti.ve obtained a general average uf 69.5% in the ba.r examinations in 1946 to 1951, 70.5% in 19!i2, 71.5% in 1953, and those who will obtain 72.5% in 1954, and 73.5% in 1955, will be permitted to take and subscribe the corres9onding oath of office as members of the Bar, notwithstanding that the Rules require a minimum general average of 75%, which has been invariably followed since 1950, Is there any motive of the nature indicated by the above-mentioned a.uthorities, for this classi. f1cation? If there is none, and none has been given, then the classification is fatally defective. It was indicated that those who failed in 1944, 1941 or the }'Cars before, with the general average indicated, WP.re not includ'ed l;.ecau:;;e the Tribunal has no record of the unsuccessful ca.ntiidates of those years. This fact does not justify the unexplained classification of unsuccessful candidates by years, from 1946-1951, 1952, 1953, 1954, 1&55. Neither is the exclusion of thm::e who failed before said yeari< under the same conditions justified. The fact . that this Court has no record of examinations prior to 1946 does not signify that none concerned rna.y pr.'.lve by some other means his right to an equal consideration, · To defend the disputed law from being declared unconstitutional on account of its retroactivity, it is argued that it is curative, and that in such form it is constitutional. What does Rt!p . .Act 972 intend to cure? Only from 1946 to 1949 were there cnses i1~ which the Tribunal permitted admission to the bar of eandi~ dates who did uot obtain the general average of 75%; in H14G those who obtained only 72%; in 1947 all those who had 69% or more; in l!.148, 70% and in 1949, 74%; and in 1950 to 1!)53, those who obtained 74r1o, which was considered by the Rules, by rea!'on of circumstances deemed to be sufficiently justifoible. These changes in the passing averages during those years were all that cr,uld be objected to or criticized. Now, is it desired to undo wh:?.t had been done-cancel thP licensl" that was: issued to thc.se who ciid not obtain the prescribed 75%? Certainly not. The disputed law clearly does not propose to do so. Concededly, it approve!! , what has been done by his Tribunal. What Congress lamented is that the C9urt did not consider 69.5% obtained by those candidi·.tes who failed in 1946 to 1952 as sufiicient to qualify them to practice law. Hence, it is the lack of will or defrct of judgrrwnt of the Court that is being cured, and to complete the cure cf th!s infirmity, the effectivity of the disputed law is bei11~ extc'llded up to the year!! 1953, 1954 and 1955, increasing each year the general average by one per cent. with the order that said candidates be admitted to the Bar. This purpose, manifrst in the said law, is the best prnof that what the law attempts to am;)r.d and cOI'f"!l";t are not the l'ules promulgated, but the will or judgment of the Court, by means of simply ta.king its place. This is doing directly · what thp 'fdbunal should have done during those years according to the judgm!"!nt of Congress. In other words, tho powl:'r exercised was not to repeal, alter or supplement the rules, which continue in force. What was done was to stop or !mspend tht-m. And this power is not included in what the Constitutic.n has granted to Congress, because it falls within the p•Jwer tC' apply the rules. This power corresponds to the judiciary, to which such duty has been confided. Article 2 of the law in question permits partial passing of examinations, at indefinite intervals. The grave ddect of this system is that it does not take into account that the laws and jurisprudence are not stationary, and when a caadidatc finally l'eceiv~s his certificate, it may happen that the existing b.w!l and jurisprudence are already different, seriously affecting in this manner his usefulness. The system that the said iaw prescribes was used in the first bar examinations of this country, but wa'! abandoned for this and othe1· disadvantages. In this case, however, the fatal defect is th'at the article is not expressed in the title o.f the Act. While this law according- to its title will have temporary effect only from 1946 to 1955, the text urticle 2 establishes a permanent system for an indefinite time. This is contrary to Sec. 21U), Art. VI of the Con!ltitutinn, which '·itiates and annuls article 2 completely; and because it is im:eparable from article 1. it is ob\'ious that its nullity affects the entire law. Laws are unconstitutional on the following grounds: first, because they are not within the legislative powers of Congress b er.act, or Congress has exceeded its powers; second, because they create or establish arbitrary methods or fo.rms that infringe con. stitutional principles; and third, because their purposes or effects ,-iolate the Constitution or its basic principles. As has 3Jready been seen, the contested law suffers from there fatal defects. Summarizing, we are of the opinion and hereby declare that Republic Act No. 972 is unconstitutional 3nd, therefore, void, a.nJ. 180 LA WYERS JOURNAL April 30, 1954 without any force nor effect fnr the fo1lowinll' reasons, to wit: 1. Because its d~lared purpose is to admit 810 candidates who failed in the bar examinations of 1946-1952, and who, it ad. mits, are certainly inadequately prepared to practice Ja.w, :i.s was exactly fou'.ld by this Court in the aforesaid years. It d~rees thP admission to the Bar of these candidates, depriving this Tribunel of the opportunity to determi11e if they are at present already prepared to OOcomc m<'mbers .::if the Bar. It obligcN the Tribunal tn per£orn1 s:imething contrary to rcas1n c.nd in an urbitrary m;i;n. ncr. This is a manifest f'ncroachment on the constitutional i·es. ponsibility of the Supreme Court. 2. Because it is, in cffrct, a judgment revoking the resolution of this Court on the petitions of these 810 candidates, wit:1out having ex2.1nined their respective examination paperi:, and although it is admitted that this Tribunal may i·cconsidcr said resolution at any time for justifiable tearnns, only this C:iurt and no other may revise and alter them. In attempting to do it <lircctly, Republi<" Ad No. 972 violated the Constitution. 3. By the disputed law, Congress has exceeded its legishth·e power to repeal, a.ltcr and supplement the rule3 on adrr.is$ion to the Bar. Such additional or amendatory rules arc, as they ought to be, intended tc regulate nets sul)sequent to its promulg:ition and should tend to in1prove and elevate the practice ot law, and this _ Tribunal shall c<:>nsider these rules as minimum Mrms towarcls thBt end in the admission, suspension, disbarment and reinstatclllent of lawyers to the Bar, inasmuch as a good bar assists imn1ensely in the daily performance of judicial functions and i:ct- e~ scntial to a woithy administration of justice. It is therefore the 1J!'imary ar.d inh11rent prerogative of the Supreme Court to rcndE-r the ultimate decision on who may be admitted :md may continue \n the practice of law accor-ding to existing \·ules. 4. The reason advanced for the pretended classification ot canit.1.ates. whicl> thf' law makes. is contrary to facts which are of general knowledge and does not justify the admission to the Ba.r of law students incdequately prepared. The pretended classification is arbitrary. It is undoubtedly a class lcg:slation. 5. Article 2 of Republic Act No. 972 is not embraced in the title of the law, contrary to what the Constitution enjoins, anri being inseparable front the provisions of Article 1, the entire law is void. 6. Lacking in eight v1?tes to declare the nullity of th~t put oi article l referring to the e.'<amir1ations of 1953 to 1955, said part of article 1, insofar as it concerns the examinations in those yea1·s, shall continue in force. · RESOLUTION Upon the mature deliberation by this Court, nfter hearing a: ad a\·ailing of the magnificent and impassioned discussion of the con. tested law by our Chief Justice 2-t the opening and close of thP. debate among the members of the Court, and after hearing the judicious observations of two of our beloved colleagues who since the beginning have a r.nounced their <lecis:on not to take on.rt in the voting, we, the eight members of the C(lurt who subs;ribc to this decision havt> voted and resolved, and have decided for th~ Court, and under the authority of the same: 1. That (!!.) the portion of .:i.rticle l of R~publie Act No. 972 referring to the examinaticns of 1946 to 1952, and Cb> all of art .. icle 2 of said law :ire unconstitutional and, therefore, void :md without force and effect. 2. That, for lack of unanimity in ~be eigM Justiccil, that part of article 1 which refers to the examine.t:ons subsequent to the approval of the law, that is from 1953 to 1955 inch .. i.ive, Is ,·~lid and shall continue to be in force, in conformity with sectlor. 10 Art. VII of the Constitution. Consequently, Cl> all the above-mentioned petitions of the candidates who failed in the examinations of 1946 to 1952 inclusive a;·e denied, and (2) all eMtdidat~s who in the examinations of 1953 obtained a general a.verage of 71.5% or more, without having u grade below 50% in any subject, are considered as having pMsc.d, whether they have fJed petitions for r:.dmiss:on or not. Aftf'1· this decision has become fin:i.l, they shal( be permitted to takt> and subscribe the corresponding oath of office as members of the Dar on the date or dates that the Chief Justice may set. So ordered. Paras, Pablo, Bengzon, Padilla., Montemayor, RC1/CS, Jugo , D1 1u.. tista Angelo, Lai.Jrador and Ccmcepcion - J.J., c1Jncur. Clrief JuiJtice I'nrati dis~e1tts in e. se)l'll'ate opinion. Mr.ssrs. Justices Bau·ista Angel, arid Conc.pcim did not tnko Wl11" in the voting in this case. LABRADOR, J., concurring and dissenting: Thr right to admit. members to the Bar is, and has always been, thP. exclusive privilege of this Court, because lawyers are mcmbr.r:i rof the Court and only this (',()Utt sl:ould be allowed to det~rrnine admission thento in the interest of the principle of the separat;on of powers. The power to n.dmit is judicial in the sense that d:sct•"ltion is used in its exercise. This power should be distinguishrd from the power to promulgate rules which regulate admission. It is only this power (to promulgate amendments to the rules) that i!I given in the Constituti".ln tn the Congr~ss, not the exerci:c of the discrz. tion to admit or not to admit. Thus the rules on the holding of rxamination, the qualifications of applicants. the passing grades, etc. are within the scope of the legislative power. But the powe~ to determine when a candidatf' hfls made or has not madr. the re. quired grade is judicial, and lies completely with this Court. I hold that the act under ::onsideration is an ('Xercisc of the judicial function, and lies beyo'.'ld the scope of the congressio!i!!.l pre'rogative of amending the rules. To say that candidates who ob.taind a gener:i.I average of 72'io in 1953, 73% in 1954, and 74% in 1955 should be considered as having passed the examination, is to m".an excrcii:l' of the. privilege and diseretion lodged in this Com·t. It is a mandate to the tribunal to pass ce.ndidates for different years wit~ grades lower than the passing mark. No reasoning h1 nC!cessary fo show t.hat it is an an-osrntinn of the Court's judicial au .. .hority and discretil.'n. It is furthermore objectionable as discriminatory. Why i:hould those taking the examinat'.ons in 1953. 1954, and 1955 be allowed to have the privilege of a lower passing grade, while tl:ose taking f!arlier or later are not? , I votP. that the act in toto be declared umonstitutional, because it is not embraced within the rule-making power of Congress, because it is an undue interference with the power or this Court to admit members thereof, and because it is discrimin:itory. PARAS, C.J., dissenting: Under Sf'ction 14 of Rule 127, in order that a bar candidate "may be deemed to have passed his examinations suc:essfully, he must have obtained ::i. general nverage of 75 per cent in all E.!lbjects, without falling below 50 per cent in any subject." Tr.is passing mark has always been adhered to, with certain exception presently to be specified. With reference to the bar examinations given in August, 1946, the original list >f <ouccessful candidates included only those who obtained a general average of 75 per cent or m:ire. Upon motion for reconsideration, however, 12 cand"dates with general averages t:mging from 72 to 73 per ci:nt were rais~d to 75 per cent by reso~u tion of December 18, 1946. In the examinations of November, 194G, the list first released containi:'lg the names of successful carntidates covet;.ed only those who obtained a r,eneral average of 75 per cent or more; but, upon motion fo-: reconsideration, 19 canrlidatl':s with a general average of 72 per cent were raised to 75 per cent by resolution of March 31, 1947. This would indicate thnt in the original list of successful candidates those having a general average of 73 per cent or more but below 75 per cent were included. After the original list of 1947 suc;-essful bar candidates had bten released, and on motion for reconsideration, all candid:itcs with a general average of £9 per cent were allowed to pass by resolution of July 15, 1948. With rl':spect to the bar examinations held in August, 1948, in addition to the original list of successful bar ~andidatcs, all those who obtained a genera.I average of 70 per cent or more, irrespective of the grades in any one subject and irresper.tive of whether they filed petition:i for reconsideration, were allowed to pass by resolution of April 28, Hl49. Thus, for the year 1947 the Court in effect made 69 per cent April SO, 1~54. LAWYERS. J.OURNAL 181 as the passing average, and for the year 1948 70 per cent; and this amounted, without being noticed perhaps, to an amendment of section 14 of RuJe 127. Numerous flunkers in the bar examinations held subsequent to !948, whose general averages niostly ranged from 69 to 73 per cent, ,filed motions for rcconsideratjlln, invoking the precedents set by this Court in 1947 and 1948, but said motions were uniformly denied. In the year 1951, the Congress, after public hearings where law deans and professors, pra.ctising attorneys, 1)residents of bar associations, -and law graduates appeared and argued lengthily pro or con, approved a· bih providing, among others. for the reduction of the passing general average from 75 per cent to 70 per cent, retroactive to any bar examinntion held after July 4, 1946. This bill W'.1.S vetoed by the President mainly in view of an unfavorable comm1mt of J ustices Padilla, Tuason, Montemayor, Reyes. Bau~.:sta and J ugo. In 1953, the Congress passed a.notht-r bill similar to the previous bill vetoed by the Pl"esident, with the important difference that in the later bill the provisions in the Cir.st bill regarding CU the supe~vi£ion and regulation by the Supreme pourt of the study of law, '2> the inclusion of Social Legislation and Taxation as new bar s11bjectc;, t;::i) the publication of names of the bar ex:i.miners before the holding of the examinations, and <4> th<! equal division among th<! exami'lers of all admission fees pe.id by bar applicants, were eliminated. Thi!! second bill was allowed to become a law, Republic Ac~ No. 972, by the President by merely not signing it within the required period; and in doing so the President gave due respect to the wiil of the Congress which, speaking for the people, chose to repass the bill first vetoed by him. Under Republic Act No. 972. any bar candidate who obtained a general average of 70 per cer.t in any examinations aftl!r July 4, 1946 up to August 1951; 71 per cent in the 1952 bar examinations ; 72 per cent in 1953 bar examinations; '13 per cent i•\ the l'J54 b:ir examinations; and 74 1ier cent in the 1955 bar examinations, without; obtaining a grade below 50 per cent in any subject, shall be allowed to pass. Said Act also provides that. any bar candidate who ~ib tained a grade of 75 per cent in any "subject in any examination after July 4, 1946, ·shall be deemed to have passed in such subject or subjects and such grade or grades shall be included in computing the passing general average that sb.id candidate may obtain in any subsequent examinations. Numerous candidates who had taken the bar examinations previous to the approval of Republic Act No. !J72 and failed to obtain th<! necessary passing average, filed with this Court mass or separate petitions, praying that they be admitted to the practice of law under and by virtue of said Act, upon the allegation that they have obtained the general averag<!s prescribed therein. b virtue of the resolution of July 6, 1953, this Court held'on July 11, 1953 a hearing on said petitions, and members of the bar, especially authorized rC'e presentatives of bar associations, were invited to argue or submit memoranda as amici curiae, the reason alleged for s!lid hearing being that some doubt had "been expressed on the con<>titutionality or Republic Act No . 972 in so far as it affects past b:ir examinations and the matter" involved ''a new questicn of public interest." All discus3ions in support of the proposition that the power to regulate the admission to the practice of law is inherently judicial, arc immaterial, because the subject is now governed by the Gonsti. tution which in Article VIII, :.ection 13, provides as follows: '"fhe Supreme Court shall have the power to promulgate rules concerning pleading, practice, and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts of the same grade and shall not diminish, increase, ur modify substantive rights. The t:xisting laws on pleading, practice, and procedure are hereby repealed as statutes and are declared Rules of Court, subject to the power of the SuprC'me Court to aJt~r g,nd modify the same. The Congress shall have the pow~r to repeal, alter, or supplement the rules concerning pleading, practice, and procedure, a.-id the admission to the practice of law in the Philippines. '1 Under this constitutional provision, while the Supremt: Court has the power to promulgate rulf's concerning the admission to the pactice of law, the Congress has the power to repeal, alter or supplement said rules. Little intelligence is necessary to see- that the power of the Supreme Court and the Congress to regulate the admission to the practice of law is concurrent. The opponents of Republic Act No. 972 argue that this ACt, in so far e.s it covers bar ex!lminations held prior to its approval, jq unconstitutional, because it sets aside the final reso!utions of fhe Supreme Court refusing to admit lo ~he praclice or law the variol~S petitioners, thereby resulting i!l a legislative encroachment upon the judicial power. In my opinio-n this view is erroneous. In the first rilace, resolutions on the rejection of bar candidates do not hnve the fmality of decisions in justiciable ce.scs where the Rules e>f Court expressly fix certain periods after which they become executory and unalterable. Resolutions on har matters, specially ".ln motions for reconsider2tions filed by !Junkers in any given ye2r, arc subject t.l revision by this Court at any time, regardless of the periorl within which the motions were filed, and this has been the practice hnetofore. The obvious reason is that bar examinations and admission to the practice of law may be deemed as a judicial function rmly because said matters happen t'l be entrusted, under the Constituti,,n nnd our Rules of Court, to the Supreme Court. There is no judicial function involved, in the strict nnd constitutional sense of the word, because bar examinations and the admission to the practice of laW, ' unlike justiciable cases, do not affect opposing litigants. It is 110 more than the function of other examining boards. Ir. the seconJ ' pince, retroactive laws are not prohibited by the Constitution. except only when they would be ez post facto, would impair obligations and contracts or vested rights, or would deny due process and equal protection of the law. Republic Act No. 9'i2 certainly is not an ex post facto enactment, docs not impair any obligation and contract <'r vested right, and denies to 110 one the right to due process and equal protection of the law. On the other hand, it is a mere curative statute intended to correct certain obvious inequalities arii>ing from the adoption by this Court of different p:u::sing general averages in certain years. Neither can it be said that bar candidates prior to July 4, l!J46, arc being discriminated against, because we no longer have any i·Ecord of those who might helve failed before the war, apart from thP circumstance that 75 per cent had always been the passing mark during said period. It may also be that there are no pre-;var bar candidates similarly situated "lS those benefited by Rer1ublic AcfNo. 972. At any rate, in the matter of claSsification, the reasont:blenes'I must be determined by the legislative body. It is proper to recall that the Congress held public hearings, and we can fairly suppose that the classification adopted in the Act reflects good legislative judgment derived from the facts and circumstances then brought out. As regards the alleged ;nterference in or encroachment upon the judgment of this Court by the Legislative Department, it i£ sufficient_ to state that, if there is any interference at all, it is one expressly sanctioned by the Constitution. · Besides, interference in judicial adjudication prohibited by the Cor.stitution is csscntit.lly aimed at protecting rights of litig2J:1ts that have already been vested 01· acquired in virtue of decisions .:if courts, not merely for the empty purpose of creating appearances of separation and quality among the three branches of the Government. Republic Act No. 972 has not r..roduced a case involving two parties and decided by the Court in favor of one end against the other. Needless to say, the statute will not affect the previous resolutions passing bar candidates who had obtained the general average prescribed by section 14 of Rule 127. A law would be objectionable and unconstitutional if, for instance, it would provide th3t those who have been admitted to thr bar after July 4, 1946, whose general average is below SO p~r cent, will not be :i.llowed to practice law, because said statute woul;l then destroy a right already acquired under previous resolutions of this Court, namely, the bar admission of those : whose general averages were from 75 to 79 per cent. Without fear of Contradiction, I think the Supreme Com'l, in the exercise of its rule-making power conferred by the Constitutior., may pass a resolution amending section 14 of Rule 127 by reducing ,182 , , LAWYERS JOURNAL. April 30, 1954 the passing. average to 70 per cent, effective several years befcre the date of the resolution. Indeed, when this Court on July 15, 1!.l48 allowed to pass all candidates who obtained a general a.vcr::.gf! of 69 per cent or more and on April 28, 1949 those who 'lbtaincd a general average of 70 per cent or moi-e, irrespective of whether they filed petitions for reconsideration, it in effect amended section 14 of Rule 127 retroactively, because during the examinations hd:I in Augm;t 1947 ai:d August Hl48, said sectinn (fixing the general average H.t 75 pct- cent> was supposed to be in force. It stands to reason, if we are to admit th!!.t the Sup:-eme Court and the Congress have concurrent power to regulate the admission to the practice of law, that the latter may validly pass a retroactive rule fi:tung the passing general average. RC>public Act No. 972 cannot be assa.ilEod on the ground that if· is unrt'asonabl!', arbitrary or capricious, since this Court had already adopted as passing >\verages 6!.l per cent for the 1947 bar uaminations and 70 per cent for the 1948 examina.tio:ls. Any w!ly, we should J10! inquire into the wi:;dom of the law, since this is a matter that is addressed to the ludl-':lllent of the legislators. ' Thi'I Court in many instances had douoted the propriety of legislati"~ enactments, and yet it has consistently refrained from nulifying them solely on that ground. To say tha.t the admission of the bar candidates bene'(ited undPr Republic Act No . 972 is against public interest. is to assume that the matter of whether said Act is btneficial or harmful to the genC?ral public was not considered by the Congress. As already stated, tt.~ Congress held public hearings, and we :ire bound to assume that-the l~gislators; loya.l, a.s do the members of this Court, ~' their rnth of cfficc, had taken all the circumstances into account before !'Jassing th~ Act . On the question of public interest I may observe that t!'!c Congress, representing the people who eleclt!d them, sh.>uld he m'lre qualified to mak~ an apprais!ll. I am inclined to accept Repub!ic Act. No. 972 as an expression of the will of the people through their duly elected represi;ntatives. I would, however, not g() to the r.xteut of admitting t!'!at the Congress, in the C'xercise of its concurrC>nt power to repeal, altn er supplement the Rules of Coutt regarding the admission to ihe practice of law, may net in ~n arbitrary or capricious manner, in the same WRY that this Court may not do so. Wi! are thus !<:ft in the situation, mcidental to ~ democracy, where we can nnrl should only hope that the right mc:1 are put in the right places in our Government . Wherefore, I hold that R~public Act No. 972 is constitutior.al and should therefo!"e be given effect in its entirety. II Thr. People of the Phi"ipp:nes, Pfaint i/f-Appell~e, 1.>s. Jua11i'o D'.lllig, et al., Defrn.dants-Appellant.8, G. R. No. L-fi275. August 25. 1!)53. 1. EVIDENCI!:; "FALSUS IN UNO, FALSUS IN OMNIBUS"; Rl!LE EXPLAU.:ED.-Thc rn~e is nnt a mandatory rule of evidence, but rather a permissible one which allows the jury or court to drnw the inference or not to draw it as circumstances may best warrant. 2. JD; ID.-Profcssor Wigmore criticizes the broad rule as unsound, because not true to human nature; that because a person tells a single lie, he is lying throughout his whofo testimony, or that there iiJ strong possibility that he ia so lying. The reason for it is that once a pPrson knowingly and deliberately states a falsehood in one m:it~rinl aspect. he must have done so as to the rest. But it is al<;C' dear that the rule has its limitatio·1s, for when the mistaken statE> .• ment is consistent with good faith and is not conclusively indicative of a deliberate perversion, the believable poi tion nf the testimony should b'e admitted. Because though a person may err in memory or in observation in one or more respects, he may have told the truth :l.S to othe1·s. an Wig. more, Secs. 10U9-1015, pp. 674- 8:J.l 3. ID; LIMITATIONS OF THE "PAI.SUS IN UNO, FALSGS JN OMNIBUS" RULE.-The maxim should not apply in the case at bar for thr~e reasons. First, there is sufficie1:t cor+cboration on many grounds of the testimony. Second, the mistakes are nnt on the very material points. Third. the errors do not arise from an apparent desire to pervC>1't the truth. but from innocent mistakes and the desire of the witness to exculpate himself though not completely. DominfJfl L. Vergarn. e.nd Perfect<J, de Vern f'lr appella.ntfl. Assistant Solicito1· f)n1er11l G1dller:n.o 1'..,'. Torr.;11 and 5,ilicitor ll·1mon L. A vance1ia for appellce. DECISION LABRADOR, J.: Defendants in the above.entitled case appeal from a ju".lgn1cnt of the Court of First Instance of Jsabela, finding them guilty nf the crime of robbery with homicide, and sentencing them to ,,.eclusion pe1petuc, to ir.deinnify j9intly and Eeverally the heirg d Nol'berto Ilamil, in the sum of P4,000.00, anri the complainant, Jacinb"l Galasinao, in the sum of Pl90.00, anri to pay the cotts ot the prosecution. The record discloses that in the evening of December 23, 1949, at about midnight, while Norberto Ramil and his wife, Jacint:i Galasinao, and their daughter and son, Segunda and D::iming~, respectively, were sleeping in their house situated not far away from the municipal building of Antatct <now Luna), Province of babela, the said spouses were suddenly awakened by the barking of dogs and the grunting of pigs. Ramil got up and wall'.ed quietly towards a window, to fi11d out what the dogs werP barking at, but just then two perr;Ons who had entl·red ~he honse fa.::cd him. The wife heard these persons talking in whispi;rs and ShW them in front. ShC> lighted a !amp, and as she did so the two intrudcl"S levelled their guns ct her husband and demanded from h:m to produce his pistol. As the husband could not produce any pistol :inrl said he had none at all, they fired at him. He used his two hantl~ to protect himself but to no avail. As he received tht.> shots, he fell down in a f\tooping positon and then :.lumped on the floor, face downw&rd!l. The wife and her two ~hildren, who h&.d a}ready been awakened, cried for help, Out the intruders k\"elled their guns ~t them, r.ommanding U1em to keep quiet and threatcnin~ to kill if they did not do so. For fear, they had b stop. The intruders then went ins'.de the bedroom and rans:::.cked the contents of the trunk whi<'h contained their \'aluables. Pl0.00 in cash and jewels worth Pl81).00 were taken away. The Chief of Felice of Atatct, who lived at'Ound twenty meters awny from the house of Ramil, heard three pistol shots, to he repaired to the municipal building to fetch one of his police- ' men, then they passed by the house of the :Mayor, and together with him they proceeded to the house of Ramil. When they reached it the ,robbers were already gone. They found Ramil already dead with gunshot wounds on the left eye, in the right brC>ast, at the back, and at the left ir1dex finger. They questioned the wife, who recounted to them what had happened. The Chief of Police found a fired bullet, caliber !"12, inside the trunk, four empty 22-caliber cartridges near tha dead body, three empty 32-calib<'r shells, one near the broken box inside the bedroom and the other tv:o five meters awa}· from thC> house of the deceased, an.! three 45-ca.liber empty shells under the house just b:!low the dead body. The following day, a physician of Antatct pcrformerl an autopsy 011 the dead body of Ramil and he found four gunshot wotimls in the places already indicated above. When he op.med thP chest cavity, he dis::overcd a 22-caliber slug right at the hen.rt. The above facts are not contradicted. The t:vidcnco::-, upon which the judgment of conviction is based, consists of the testimony of one, Jose Mallillin._ that of Andres Bumanglag, which in part corroborates Mallillin's testim0ny, and the findings of a ballistic expert of the Philippine Constabulary to the effect thn.t the empty 32-caliber cartridges found under the house of Rami? had been fil·~d from the Liama autr,.pistol possessed by, and licensed in the name of Mallillin, and that the 32-caliber slug, Exhibit "C111 which was found inside the trunk, had also been fired therefrom. These findings were based on the fact that the striP.tions found in the said bullet are identical with and congruenl to those which he fired from the same Llama auto-pistol, and the pin marks at the empty 32-caliber cartridges are identical with and con~ gruent to that found r..t an emptr cartridges fired from the sa:ne pistol. Mallillin was formerly a school teacher of Antatet and had resided there, but on the date of t'1e robbery he W!IS living in !'l contiguous. town, Cauaya.n. He testified as ·follows: On the evPr.in.i: in question, while he was or. his way home, he saw four persons near a check point, and a9 he passed by, two of th~m got April 30, 1954 LAWYERS JOORNAL 183 hold of him and a third snatched his pistol away and compelled him to follow them. The four were later recognized by him to be thP de.Cendants Balbino Gabuni, Juanito Dasig and Marcelino Dayao, nnd Sergio Eduardo. They boarded a jeep, -which was parked near the road =md in which there were two others whom Mallillin did not recognize, and then they drove to the junction of the C:lbatuan-Antatet roads. Here they all went down a.nd walked towards Antatet. When the party was around 100 meters from the municipal building, he saw his companions talking to Andres BumanglD.g. Taking Bumanglag aside, he info1·med the latter that he had b~en held \I!). Upon Mallillin's suggestion, his companions asked Bumanglag hew the house of Hamil could be entered, and th~ latter answered that it could be done through a window near the wall. They also asked further information from him, a..'ld thereafter he was allowed to go away, but with the warning that if he wnuld .squeal, he would be put to death. After BumnnJ?lag had left, they went to a place around fifty meters from the house of Ramil. the int<:nded victim. Here· they waited till about midnight when they approached the house. Ga.. buni then ordered Mallillin to .itay in a place beside the roall. DnFil! and Eduardo then gave him their shoes for him to keep, while the fi'•e, including the two unknown persons, approached the hou1>e. D:isig :md Eduardo entered the house through the window, whil!! Gabuni stayed at the door in front. Gabuni ga.ve his carHne to Oa}'ao and Mallillin's Llama pistnl to Dasig, while Eduardo held a .22 caliber pistol. Five minutes after the three had gone up the house, M:illillin Jleard three shots. Then he heard a voice calling for help. He got frightened, so he hurried])' went awa.y bound for C::au'J)'r.n. lVhile still in Antatet, he heard the policeman r)f Antatet exchange shots with his companions. He arrh·ed at Cauayan at :ibout one o'clock. At around 4 :30 that morning, Sergio Eduardo called at his house and asked for their shoes. and a.s he went away, he warned Mallillin not to squeal, otherwise he won!d lie killed. Mallillin asked for his pistol and was informed that it wcs with Marcelino Dayao. That same morning he went to Dllyao and got it from the latter. Juanitl'I Dasig also called at hifl house that same mdrning, warning him that if he would squeal, h<: would be in n bad fix. informing him further that their two companions whom Mallillin had nat recognized, had gone to Manila to fetch some more of their compa.nions until they reach as many as twenty. The above is Mallillin's version. He was appl'ehended by the authorities on December 31, 1949. Four da}'s before his arrest, he further said, he had decided after consultation with hi!I wife. t~ go to the <'.hief of police of Caua}'an to ask him to accompany him to Cabatuan, where he wa.s go!ng to relate all that had hap. pcned, but that it so happened that when he saw the chief .:Jf police, the latter had no time to hear him as he was going away alld ws.s then ready with his bagg:ige to go to Manila. When Ma.Hillin we:s taken to the Constabulary barracks on December 31, 1949, he had a talk with Lieutenant Panis of theCo11stabulaey. Panis promised him that he would be used as a state witness if he would .disclose all that he knew about the rob.. bery. With this prnmise ?itallillin made a complete disclo~ure cf the above facts to Lieutenant Pe.ids. His &tatement was put in writing, although it was not sworn to before the justice of the peace until January 3, 1950. His affidavit was introduced at the lrial as Exhibit 4-Gabuni, Exhibit 3-Dasig-Dayao, and contains substantially the same facts testified to by him during the trial. The testimony of Andres Buma.nglag is to the effect that that same evening, he had been playing guitar with two companions at the house of one Labog, and that when they went home and as they were approaching- his house, he was suddenly held up by two persons. When brought to a group to which the two bdonged, he recognized Mallillin, Gabuni, chief of police of Ca.unyan, :ir:d Da. s:g. He was asked about the number of policemen of Ant<!tet, the arms that they had. the caliber C?f the arms, and persons who had firearms. Finally, they asked him to draw a sketch of U1e ~ouse of Norberto Ramil and its position in relation to the house of the ma.}'or, as well as the position of the window through which entrance could be gained into the house. Bumang}ag was very much frightened because, at the beginning when he refused tc answer the quest!ons that they asked him, he WM kicked and threatened by the group. Besides, Mallillin had inform<'d him that he himself had been held up, and that he should tell what they asked him, otherwise both of them wc.uld be killed. After getting ell the information that they desired, Bumunglag was al~ lowed to go home. A few minute~ after he went to bed he heard scme shots, and stray bullets hit his house and a kapok tree near. by. so he and his family had, ~o go down the house to seek shelter from stray bullets. On January 3, 1950, Andres Bumanglag also made an af. fidavit before Lieutena.nt PaniR, which was sworn to by him bcf')re the justice of the peace of Antatet. In this affidavit, Exhibit (').Gabuni, he mentions the fact that before the robbery a grou;i of pe1·sons, four of whom were armed, came and ask·~d informat:on from him about the house of Norberto Ramil, and that on that occasion he also saw Mallillin with them, who told him that he w.&.s also held up by the group. The trial court gave credit to the testimonies of Mallit:in and Dumanglag as above outlined, and tog.:?ther with the identifica~ tion made by the wife of Ramil of one of the appellants by the hitter's stature, and on the further ground that the cartridges and some of the bullets found in the premises had been fired from th~ Llama pistol of MalliHin, held that the crime of robbery with homicide had been committed by the accused-appellants herein, c.nd sentenced them as above indicated. In this court the attorneys for the appellants contend th::l.t inasmuch as Mallillin's confession was obtained by n promise madEi by Constabulary Lieutenant Panis that Mallillin would be e"Ccluded from the information and made a State witness, :P.fallillin's con~ fession is not admissible against him and neither should it be ad. missible against the appellants herein. It is evident that counsel misunderstand1> the :ipplication flf the principle in evidenc~ that a confession secur('d through promise of immunity is not adrniY~ sible. The evidence submitted against tlH• appellants is not th!'! confession m'.lde by Mallillin; it is his testimony given in open <"ourt. There is, t:herefore, no occasion to invoke the 11rincipl1J of evidence in question. The most important claim of the defendants..appelhnts is th~t ina.smuch ns Mallillin was an nccomplice in th<:! crime and his testimony contains !laws in many particulars, the maxim falsv1t in uno falsus in omnihus should be applied to the whofo of his tei:timony, .:.nd the judgment of convicti<m would then have no leg to stand on. There are certainly many points or particulars in Mallillin's testimony which can not stand careful scrutiny. F irst of all, we . have the supposed compulsion or hold-up which he claims he was subjected to. Mallillin admits that the dcfcndants-appcl. !ants had been his companions in various games, like poker, "pekyo", etc. Then there is the circumstance that the supposed holdup took place in the center of the town. According to some defense witnesses, Mallillin had also been telling of robberies th2.t might take place in town. It is not unreasonable. therefore, to con. elude that Mallillin was not an unwilling companion in the coml]lission of the crime. But, .on the other hand, we find that his testim'1ny is corroborated by evidence worthy .of credit. That he was present on the occasion of the robbery can not be denied. because his Llam::i. pistol was proven to have been fired at the scene of the robbery, as cartridges and bullets proved to have been fired from the said pistol had been found in the house where the robbery w 2s comn!itted. And the fact that appellants had been companions of Mallillin in many ga.mbling games ;>•>ints to the clo!e acqu1.1intance between them and their unity of purpos2 as well. While his st.:Jry that it was not he who furnished the data about the climbint; oi the house can not be believed. as h(' must have known the house and its surroundings, his statement that Juanito D:isig and Sergio Eduardo were the ones who went inside the house is corroborated by the inmates of the house to the effect that only two of the robbers entered the house. Agcin, the testimony aDout the different arms used, a carbine in the possession of Dayao, a pistol given Eauardo by Gabuni - these facts are corroborated by the finding of .22 caliber slugs and empty shells in the heart .of the victim and in the house ar.d 184 LAWYERS. J(\TJ,RNAL April- ao, 1954 in the premises. The testimony or Mallillin that Gabuni carried a .45 cah ber pistol, which was his service pistol as chief of police, is e.J.so untrue because the exantination of the .45 C'.l.liber bullet found in the premises shOWiJ that it was not fired f1·om the service pistd of Gabuni. But Mallillin's assertion may b!! due to an innocent error on his part. He perhaps thought that th1:: pistol that Gabun! carried was his SC'<Yice pistol. But Gabuni may have planned to avoid itlentification by using a firearm d:ffercnt from that which he usC!d as member of the police force. Then there is the corroboration of the testimony of Mallillin gh·cn by Andres Burnauglng, wh(..·n1 the trial court considered as a trustworthy witness. We find nothing from the record which \\•ould ju>itify us in reversing the uppraisal of the above testimony and the credit given this corroboroting witness by the tria.I coul't. H has been stated th:tt the rule cfa.!sus in uno, fatsus in omnibus) invoked is not a mandatory rule of evidence. but l'ather a permissible one, which allows the jury .::r the court to draw the inference or not to draw it as dl'cumstances may best warrant. <70 C.J. i83.) The unbelievable e.J.legation of Mallillin, lhat he was forced into joining the band ag-.iinst his will, arises from the n&tural desire of an accomplice to shift the blame t'l his co-cons.pirators and exculpate himself; while his assertion that the gun Gabuni carried was his service pistol may be an innocent mist&.ke (\ll Mallillin's part. His claim th::.t it was Bumanglag who indicated where ~ccess to the victim's house may be had may also bt> untrue, because Mallillin had been sa.id to have been in the house. Do these flaws and defects render his testimony wholly inadmissible under the rule invoked? We take advantage of this opportur.ity to exrJlain the tru'l scope of of tl1ii- much invoked and abuse rul<.' (of /rrhius in 1m11, jalsus in omnibus.) Professor \Vigrnore states that th1!" rulP ceased to be the l'ule in England as early as thP. beginning of the eighteenth century. He criticizes the broad rule as unsound, bf\causc not true to human nature; that because a pers'ln tr.lls a single lie, he is lying throughout his whole testimony, or that there is strong possibility that he is so lying. The reason for it is that once a person knowingly and d.?liberately Ftates FA fa\sC. hood in one materia~ aspect, he mi.;st have done so nl'I to tl'!e rest. Jtut it is also clear that the rule has its limitations, for when th£: mistaken statement is consist~nt with good faith and is not conclusively indicative of a deliberate perversion, the bdievable pcrtion of the testimony should be admitted. Because though I\ r1::rson may err in mr.mory or in observation in one or more res. pects, he may have told the truth as to others. (III Wigrnore, Si:cs. 1009-1015, pp, 647-683.l There, are, therefor<!, these re. quirments for the application of the rule, i.e .. that the false testi. mony is as to a material point, and that there shuuld be a conscious and delibe!'ate intent.ion to falsify. (Lyric Film Exchange Inc. vs. Cowper, 1937, 36 0. G. 1642.> The rule is also carefully considered in the case of The San. tisima Trinidad, 7 Wheat. 283, 5 L. Ld. 454, thus: "Where a party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation t> the country of his birth, or his being in a vessel on a particuler pl::.ce, if the fact turn out otherwise, it is extremely difficult to exempt him from the charge of deliberate falsehood; am! courts of justice under such circumstances, ar<! bound upor. principles of law and morality and justice to apply the mixim fal,;us in uno, falsus in omnibus. What ground of judicial belid can there be left when the party has shown sucri grcss insensibility to the difference betwP.en right and wrong, be. tween truth and falsehood?" In the case of Godair v. Ham National Bank, 80 N.E., 407, foe Supreme Court of Illinois made the following ve1·y illuminating expression of the scope of the rule: "As to th(• second criticism, it has uniformly been he!d by this Court that the maxim, 'l"alsus in uno falsus in omnibus,' should only t:e ariplied in cases where a witness has knowinglv and willfully given false testimony. Chittenden v. Evans, 41 Ill. 251; Cit}' of Chicago v. Smith, 48 Ill. 107; United States Express Co. v. Hutchins, 58 lll. 44; Pope v. Dodso:i, Id. ~60 Guliher v. People, 82 Ill. 145; Swan v. People, 98 Iii. 610: Hoge v, People, 117 Ill. 35, 6 N.E. 796; Freeman v, Eu.;ly 117 Ill. 317, 7 N. E. 856; Overtoom v. Chicago & Eastern Jllinoii Railroad Co., 81 Ill. 323, 54 ?-:. E. 898; Ma.tthews v. Granger, 196 Ill. 164, 63 N. E. 658." "In City of Chicago v. Smith, supra, c:.n page 108 of 48 Ill., it was said: 'As to the eight instructions asked by the defendant and refused, we are of opinion, under the authority of the case of Brennan v. People, 15 Ill. 511. it sh,..uld not have been given. .There the court say it does not follow, merely because a witness makes an untrue statement, tha.t his entire testimony is to be .disregarded. This m•.Jst depend on the tnotive of thf witness. If he intentionally !'!wears falsely as to one matter, the jury may properly reject his whcle testimony as unworthy of credit. But, if he makes 11. fal~e statement through mistake or misapprehension, th<!y ought not to disregard hi3 testimony altogether. The ma.x:im, 'Falsus in uno falsus in omnibus,' should only be applied in cases whero a witness willfully and knowingly ~ives false testimony." "And in Pope v. Dod::ion, supra, on page 365 of 58 Ill.: 'The tenth instruction in the aeries ginn for appellee is pal. pably erroneous. It told the jury that ,if the witness Lovely, 'has sworn falsely in any material statement,' the jury might disregard her entire statement except so far as it was corro. borated. A witness cannot be discredited simply 'ln the grounJ of an erroneous statement. It is only where the statements of a witness are willfully and corruptly false in regard to material facts that the jury are authorized tn discr..:Jit the entire testimony. The most candid witness may inr.ocently make l!Jl incorrect statement, and it would be monstrous to hold that his entire testimony, for that i·eason, should be disregarded.' 'rhis statement was quoted with approval in Matthews v Granger, supra, on page 72 of 196 Ill., on page 6Gl of 63 N.E.'' l•fo Guliher v. People, sunra, the court instructed the jury that, if they believed the defe:idant had 'been contradicted on a materi~l point,' then the jury had the right to disregard his whole testimony unless corroborated by other testimony. The cc>urt s:lid (page 146 of 82 JIU: 'The instruction was clearly erroneous. WhEon analyzed, it plainl~,r tells the jury that 'if they believe, from the evidence, that Alfred F. Foote has been contn\dicted on a material point. then the jury have a rignt to disregard his whole testimony unless corrobor::ited by other testimony.' 'l'his is nut the law . • . . If the witness, whc. ther defendant :ir otherwise, is shown, by proof, to have swom willfully and knowingly fal:;p en any material matter, his evide11ce may be rejected so far M it is not corroborated . The mere fact, however, that he is contradicted as to some material matter is 110t enough to warrant the rejection of hi;i evidence! altogether.' " "In Overtoon1 v. Chicago & Eastern Illinois Railroad Co., BUpm, the court instructed the jury that 'if they belit:ve any witness has testified falsely, then the jury may disregard such witness' testimony except in so far · as it may have been cor~ roborated.' In disposing of this instruction the com·t said <page 330 of 181 Ill., page 901 of 54 N.EJ: 'A witness may have testified falsely upon some matter inquired about from forgetfulness or honest mistake, and in such case t1'e jury would not be authorized to disregard his entire testimony, whether conoborated or '?lot. It is the corrupt motive, or the giving nf false testimony knowing it to be false, that P.uthorizes a jury to disregard the testimony of a witness and the court to .;;o instruct them.' " With the above limitations 1if the rnle in mind, it is clear that the maxim should not apply b the case at bar, for three reasons. First, there is sufficient corroboration on many grounds Clf the testimony. Second, the mistakes are not on the very material points. Third, the errors do not arise from an apparent desire to pe1·vert the truth, but from innocent mistakes t>..nd the desire of the witness to exculm1.te himself though not completely. The next legal que;tion to decide is wh.ether the credible ev:i. dt:nce submitted, together with that adduced on behalf of the ddfendants, proves beyond reasonable doubt that it was the three appellants who p:irticipated in the commissio,n of the crime. The widence submitteti b)' the appellants of their defenses of alibi are r.ut satisfactory to use. That prailcmted by appellant Juanito D'.L~ sig, which consista of the testimony of a nurse, that en the night April 30, 1954 LA WYERS JOURNAi; 185 in question Dasig was in his house b" ecauSe his wife was <;Uffcririg from stomach 2che. is not satisfactory for the reasvn that the nurses did not positively state that the date Yfhen sh.: went to attend Dasig's wife wss December 23, 1949. This d~te was included in the leading questions propounded by counsel for apr-ellants, where the date is insidiously joined w~th another fact and witness' affirmative answer may refer to the mC1re important fact contained in the answer, not to the date. Thus, the first question asked we.s as follows: Q Du you remember having attended to the wjfe of Juanita Dasig sometime or around December 23, 19~97 A Yes, sir. <t.s.n .. p. 174> The affirmative answer may well Jnean that she did actually attend, nnd may not imrily that she did so on DecGmber 23, 1949. Another question asked we.s: Q How many d:iys previous to that trip of yours on De. cember 24, 1949? Was it the day previous? A Previous. <t.s.n., p. 176> This question is a leading questio!l.. The witness also connects the night of the iXibbcry with n trip supposedly made by her with one Dr. Modalcs. But as to this occasion of the trip, her ansy.rer as to the date is also o.mbiguous, thus: Q Do you r~member the date of that trip t)f yours with Dr. Modalc!s wheu you left hi.rn in Antat13t? A It seems to me it was on December 24, 1949. (t.s.n., p. 175; underscoring vurs) On cross-examination, however, thi3 witness testified that she never keeps a record of the cases that sh(' attends to every day, and on befog asked what cases she attended in December, 194~. she nnswercd that she can not tell unless she saw her record. lti; date, there.. fore, December 23, 1949, was not remembered by her but put ir.t.o her mind by the leading question of counsel. To convince the court that the attendance took place on December 23rd, it was necessary for her to have shown that that date appeared in the record that she kept. · The alibi presentE.d by Gabuni is to the effect thflt on December 23, he and Sergeant ' Tamani were together the whole day e.nd evening, and <lu1'ing the evening Gabuni sh1yed at home. _ That Gabuni and Sergeant Tami:mi should stay in a. barrio two kilometers .a.way, on patrol, from nine in . the morning to six in the evening, or fully nine hours, is hard to understand. For them to spend four more hours drinking and eating to . gether in . a restaurant, evidently without their returning to their offiCes to report the results of their supposed mission, is still harder to believe. But for them to eat again at the ho~ne of Gabuni, after they had already eaten in a restaurant, is the height of improbability. Gabuni must have been on vacation that day, not on duty. If Gabuni was really and actually on patrol on that da.y, why was not the police blotter submitted? But even if the above :~~\;m::;b:t!ll~isa~~~s!\;v:;~ ~:s~h:e~v!~i~; !~~e·,v:~: :!s a~a;;: in the morning, also true, it is still not impossible for him to h~v; gone down the house after ten o'clock in the evening to join in th9 commission of the robbery, and come back at home in time to be there and wake up at six o'clock in the following morning. Neither can the defense of alibi presented by appellant Marcelino Daya.a stand the test of careful scrutiny. That Dayao wa' with his witnesses on certain days and on the occasions mentioned m the case of witness Silverio Anies and Juana Molina on the oc: ~~sion ·of the presentation of the latter's claim, and in the case of witness Daniel Yuson on the occasion of a night of gambling, may b? assumed to be true. But their assertion that it was on the pre~J se. d~te, December 23, 1949, that they saw or were with Dayar is d1ff1cult to believe. Human memory on dates or days is frail, and unless the day is an extraordinary or unusual one for the wit. n~ss, ther~ is no reasonable assurance of its correctness. Daya('l's w1tncss did not prove that some e"-traordinary or unusual thing had happened on that day, that would have made them remember It. As to Anies, t~e presentation of claims is admitted by him to be a common occurrence, such that he had to admit he can not rem~mber the dates when other similar applicants sav.· him. As t.> witness Yuson, the playing of maJijong was also a common pasttime. Neither Anies nor · Yuson prcsente:l any writing or book entry where the eVent or occasion they mentioned took place. T~e trial court did not believe their testimony, and we are unable tc find that its conclusion is not born"' out by human experience. ' Haviug found that sufficient admissible evidence, worthy· of credit, has been adduced to pr•we . beyond reusonable doubt that the defendants-appellants were the ones who perpetrated the robbery ir: question, and the evidence with which they sought to prove their defenses of alibi having been f.ound to be unsatisfactory, we must affirm, as we hereby affirm, th~ judgment appealed from, with costs against the appellants. So ordered. Pnras, PaMo, Bl'ng:on, Padilla, Tuason, Montemayor, Re'l/el, Jugo and Bautista.. Angelo. - .1.J. conrur. Ill Leopoldo Gonzales, Petitioner, v. 1. Hon. Sec'f'dat'JI of LabO-f', d al,. Respondents, G. R. No. L6409, Februa1'11 5, 1954. I!. VIDENCE; WHEN THE PRIVILEGE AGAINST SELF-1NCRlMINATION CAN BE INVOKED; CASE AT BAR. - G filed with the Wage Administration Service a claim for overtime pay in the total sum of P13,212.59 against his employer S. To establish his claim, G had S summoned to the witness stnnd nnd put under oath. But before any question could be pro. pounded to him, S invoked his constitutional right not to be compelled to be a witness against himself, calling attentior1 to the . fact that the law on overtime pay provides a. penttltJ for it.<i violation. HELD: As stated ·in Jones on E·;idence tVol. 6, pp. 4926-4927), a person who has been summoned to testify "cannot decline to appear, nor can he decline to be sworn as a witness" and "no claim of privilege can be made until a question callinR" for a crimina.ting answer is· asked: at that time, and, generally speaking, at that time only, the claim of privilege may properly be interposed." Petitioner in his own behalf. Anrtstacio R. Teodoro, Solicitor Gent-ral Juaii R. T.iwag and A11:1istant Solicitor General Pran••isco CtWTfOn for resµondcnts. DECISION REYES, J., On June 23, 1952. the petitioner Leopoldo Gonzalr.s fi;ed with the Wage Administration Service a claim for overtime pay in the total sum of Pl3.212.59 against his employer, the res11ondent Sy Kot. Upon the case being submitted to the WAS CWa.ge Administration Service) for investigation and arbitratil)n, the clnimant, to J!l!tablish his claim, had Sy Kot. sununoned to the wit:-iess ~tand and put under oath. But before any question could be propounded to him, Sy Kot invoked his constitutional right not to he compelled to be a witness against himself, calling attention to the fact that the law on overtime pay provides a penalty for its vio. lation. Considering the point well taken, the investigator orderpd Sy Kat's withd1·awal from the witness stand. The ruli1.g was, u1ion appeal, sustained by the Secretary of Labor in his rkcision ci November 17, 1952. Suing for a writ of certiorari, petitioner asks that the ruling be annulled, contending that the same is illegal and a..rbitl"rttY and mede with grave abuse of discretion. - Except in criminal cases, there is no rule prohibiting a ·party litigant from utilizing his adversary as a witness. As a matter o( fact, section 83 of Rule 123, Rules of Court, expressly auth..:irizes a party to t'all an adverse party to the witness stand <:!.nd interrogate him. This rule is, of course, subject to the constitu. tional injunctior. not to compel any person to testify against himsr.lf. But it is established that the privilege aga!nst self-incrimination must be invoked at the proper time, and the proper time tv invoke it is when a question calling for a CJ"iminating answer is propounded. This has to be so, because before a question is asked there would be no way of telling whether the information tv be elicited from the witness is self-incl'iminating or not. As stated in Jones on Evidence <Vol. 6, pp. 0426-4927), a per::on who has been summoned to testify "ca:inot decline to appear, nor can he decline to· be sworn as a witness" and "no claim of privilege can be made until a question calling for a i:riminating answet" is esked; a.t that time, and, generally speaking, 3.t that time only, the claim of privilege may properly be interposed." The point raised by the Solicitor General on behalf of the 18~ 1 '. LAWYERS .JOURNAL April SO, 1954 rE:spondent Secretary of Labor that' petitioner's reIDedy is to ap. pc:al to the President of the Philippines is not well t~ken. Section 7 Of the law creating the WAS <Re9. Act No. 6021 expressly authorizes any person aggrieved by an order of the Secretary of L'\Uo~· to obbin a review of such order in the- Supreme Court. Wherefore, the petition is grant~d and the ruling or order ccmplained of annulled and set aside. Without costs. Paralf, Pahlo, Reng::on, Padilla, Montemayor, J ugo; Bau.. tista Angelo and LabTador. - J.J., concu'T. IV 'Nie•1cs Du.ran E;nbofe, Plninti{f-Appellce, veTsti:s R~fael F. Pcr.olto Defendant-Appellont, G. R. No. L-4!142, promztlgated on Septeriiber 23, 1953, per Labrador, J. 1. CONTEMPT FOR FAILURE TO COMPLY WITH AN ORDER OF THE COURT GRANTING ALIMONY; CASE AT BAR. - A motion for contempt was filed because of the defendant's failure to pay the alimony for his child as ordered by the court. The defendant filed his answer to the motion allt'ging that he was out of work for sometime and that he was earning only n50.00 a month and that plaintiff had received SOm.'.! waf. damage compensation. Th~ court did not hear the motion unon request of the parties who alleged that there was a 'lossible amicable settlement of their. diff~rences. Thereafter pl~intiff's attorney set the motion for contempt tor hearing, givinr, notice thereof by registered mail to the defendant's co1msel. The d:?fendant did not appear at the hearing. The court issued an order giving him 48 hours to comply with the order directir.g him to support his child oi· he rlaced under arrest. A motion for reconsideration of the order was filed by the defendant !!.lleging that he was not able to attend the hearing for the mo. tion for contempt because he wa.s informed by the clerk of court that the judge thereof was on vacatio:t and therefore he did not have an opportunity to be heard before entering tlw order of contempt. A heal'ing for this motion for reconsideration was held. Thereafter the court denied the same. Held: The appelhint was given an opportunity to answer :rnd he did file one. Then the motion to declare him for contempt we.s set f0r hearing by the ~ppellee in accordance with the rules of coui't. It is not necessary that the court itself order the motion to be set for hearing, :is the pre-requisite therefor, because the notice given by the parties was sufficient. As the motion was heard after this notice, it cannot be said that the hear!ng W!\9 held without due process of law. What th£ law prohibit<: is uot the absence of previous notice, but the absolute absence thereo! and Jack of opportunity to be heard. 2. JUDGMENT AWARDING SUPPORT; AMICABLE SF.TTLBMENT. - A judgment awarding support may be m::idifiE·d. ~ut any attempt at amicable settlement thereon after the final Judgment of support, cannot per se suspend said final judgment. 3. JUDGMENT,; ITS ENFORCEAB!LITY. - Judgments are final .:::nd solem~ pronouncements made after trial and deliberation, a~~ the nghts and obligations fixed therein may not be mod111.ed except in the same form and manner in which thPy are arrived at; and while they stand unmodified they must be enforced and respected by the parties. Felfali~rto M. Se-rrano for a.ppell!!.nt, Paz V. l noc1m.cio for appell<!c. DECISION LABRADOR, J.: , This is 2Jl appeal against an order of the Court of First Ins. ta.nee of Rizal, ordering defendant.appellant to pay plaintiff-ap. pellee or deposit with its clerk of court of P'112.62 within the period of forty eight hours, otherwise he wiJl. be placed under ar1·est until he complies with the order. Plaintiff brought this suit to secure support for a minor s!x years of age, a natural child of plaintiff and defendant, who h'.\1} lived together e.s common-law husband and wife from January, 1943 to January, 1949. In 1949 defendant aband:med i:Jiainti:ff and the child, married another woman, and since then failed to give support to the child. The record discloses that defondar.t h::id to b!? summoned by publication, as his whereabouts could ;aot be located. It does not appear from the record of the c:?.Se that the summons was published, or that the defendant ever filed any =.nswer, but on September 28, 1:149 judgment was rendered by the cc.urt a. quo ordering the defendant to give the chi1d a monthly support of P75 beginning January 10, 1949. The defendant received copy of · this decision on J anuary 23, 1950, ::i.nd appears to have given· to plaintiff for the maintenance of the child the sur.1 of P290 up to January 16, 1951. On this date, plaintiff presented a "motion for contempt" to require defendant to pay her P5(:0, which she had contracted as an indebtedness to support the chi\J. ThP motion w.is call<"d for hearing on Jamiary 27, 1951, but its consideration wa!! postponed i"n the court's order "until furthn ai.signment or petition of either •1f the parties," "who are on the way to a pcs::oible amicable settlement of their differences." On February 6, 1951, plaintiff's attorney petitioned the court that the 1'motion for contempt" bf! set for hearing on February 24, 1951, and pursuant thereto the cOUl't, on February 22, 1951, Eet th() case for hearing on February 24, 1951 and ordered the defendant tC' answ~r t.he motion on the same date. The defendant filed his answer on the day fixed, alle;ring that he was in no position to give support to the child because he was out of work for some time, that he was earning only P150 a month, and that plaintiff had received some war damage compensation. The court did not then resolve the motion, but granted a postponement "until further petition of either of the p:..rties or until further assignment". upon agreement of the par.ties, ''who neerl more time within which to consider a possible amicable settlement of their differences." · On April 20, 1951 plaintiff's· attorney petitioned the ·clerk of ccurt to set thP. motion for contempt for hearing on April 25, 1351, giving notice thereof by registered mail to defendant's counsd .:\t the same time, she caused the Manager of the San Miguel Rrc.. Wl'ry, under whom defendant was working, to be summc.ned .!ls a witness. On April 25, 1951, the court entered the order r.ow a.pJicaled from, requiring the defendant to pay P712.62 within 4R hours, or be placed under arrest. Motion to set aside this order was filed by defendant's counsP.I <!n April 26, 1951. It is stated ir this {l\Otion that counsel did not believe that the moticn was going to be heard as the clerk of court had informed him tha:, in all probability, the motion was not to be called for hearin~ Qecause of the absence of the presiding judge, who was on vacq.. tion. The motion also claims that the judgment gnmting support had been suspended temporarily by the court pending the amicable settlement, and that the defendant should have been a.ffort1ed o:iri1 :ortunity to be present, the notice to set the motion tor hearir.i;" not being sufficient to give this opportunity, but that !1 court order setting the case for hearing should previously have been issued. This motion was heard, and on April 28, 1951 the court denied it. The defendant has appealed against the order of April 2J, 1951 to raise only questions of law. One cuntention of the appeilaut is that the order of the trial court of April 25, 1951 was iss!.led without due process d law, for the reason that the respondent was not given an opport.t:r.ity to be heard, and the order was issued without any lawful hearing . It is argued that the request of counsel for plaintiff that his mo. tion be heard did not per se authorize the court to hear ~he case as prayed for. We find no merit in this argument. First, the azopellant was given an opportunity to answer, and he did fiL· one. Then the motion to declare him in contempt was set for hearing by the appellee, notice of the same being made in arcordance with Section 4, 5 arid 6 of Rule 26 of the Rules of Court. It is not necessary that the court itself order the motion to be set for hearing, as a pre-requisite therefor, beca.use the notice given by the party was sufficient. As the motion was heard after this notice, and strictly in compliance with thE! above provisions of the Rules of Court, it can not be said that the hearing wa~ he~d without due process or law. What the law ptohibits is not the absence of pl'cvious notice, but the absolute nbsen::c thete:.•f S.'ld l.:i.ck of opportunity to be heard. Besides, the adverse party was heard on his motion for reconsideration; this constitutes sufficient opportunit).' to be. heard <Borja, et al. vs. Tan, etc, et al., G. R. No. 1.-6108, promulgated un May 25, 1953.) It is also contended that, inasmuch as there were attempts tc. effect e.n amicable '5ettlement. the judgment of the court awarding P712.62 to the plaintiff should be considered suspended until the court declares that such settlement can not be Brrived at. Iro support of this contention, it is argued that a judgment f;;,r supApril SO, 1954 LA WYERS .lOVRNAlr 187 port may be modified any time and, therefore, may be red11ced or incre:::tsed, and that it bt>comes necessary for the court, b::fore enforcing any judgment for support, to give the respondent full oppcrtunity to be heard. It is true that a. judgment awarding supi;ort may be modified. But any attempt at amicable settlement thereon, after a final judgment of support, can not ver se suspend said final judgment. It is superfluous for us to consider the obj~tion as to lack of opportunity, because, as above shown, such c.pportunity was given in accordance with the rules. As far as respondent is concerned, the purpose that he sought by the amicable settlement seems to be a reduction of the nmount freed as support for the minor, on the ground that his salary wu insufficient. But the trial judge heard the responc!ent's employ. er and was not impressed by respondent's excuse, and found thn~ the amicable settlement ~as part of delaying tactics employed by respondent. But whatever purpose any of the parties mfly have had, the judgment, which had already become final and executory and was actually sought to be enforced, even if it was a support judgment, could not be considere<,t suspended by the attempt at runicable settlement. The fact that it was suggested by the judge did not mean that the judgment should be modified. His evident intention in making the suggestion was to prevert friction between the parties and delay, and cmcourage expediti!)'JS payment of the support. Judgments are formal and solemn pronouncements made after trial and deliberation, and the rights ar.d obligations fixed therein ma.y not be modified except in the same form and manner in which they are arrived at; and while the!' stand unmodified they must be enforced and respected by the parties It should be noted that by the proceedings in this apJ;t>al, the respondent has secured what he had wanted, a delay in the en. forcement of the order to grant imme.diatt> support. More than two years have now elapsed, since he was ordered tc pay the support within forty eight hour'!. Further delay would cause an injustice. The appeal is hereby dismissed and the order affirmed witli costs against respondent. ' So ordered. Paras, Pablo, Bengzon. Padilla, Tuason, Montemayor, Re;;;;s, litffo and Bn.nti.<itn A"n9clo. - J.J, concur. v Valentin Aligarbes, Plaintiff-Appetla.nt, 1.1s. Juan Aguila.r, et al .• JJefendants.Appellees, G. R. No. L.5736, Januarv 30, 1954. - 1. APPEAL; MOTION TO APPEAL lN FORMA PAUPERIS; CASE AT BAR. - The justice of the peace court of Gar.dL.r3. Samar, allowed A to sue as pa.uper in a forcible entry case. After due hearing, the compfaint was dismissed. Within the reglcmentary period he filed a motion to appeal in fon'rl.a paup. eri8, together with a noticf! of appeal to the Court of First Instance. The justice of the peace by written order of July 25, 1950, declared he had no a.uthority to permit the plaintiff to litigate as pauper on appeal a,nd that such permission may ~nly be granted by the Court of First Instance. However, the same judge "transmitted" the records to the supe1·ior court •·for its proper determination in the premises." The Court of First Instance held that because neither the required fee for docketing the case was paid nor a.n orrler from it to docket the same without fee obtained, the dockding was illegal, it being in contravention of the provisions of law. HELD: The justice of the peacr had the :::uthority to permit A to appeal as pauper. Wherefore, his mistake as to the extent of his powers should not prejudice herein plaintiff. Where failur:.! of appella.nts to file an appeal bond on timt is due to an error of the justice of the peace, they w:n not be deprived of their right to be heard in the Court of First Instance. RULES OF PROCEDURE; WHEN LITERAL OBSERVANCE THEREOF CAN BE OVERLOOKED. - The lapse in the literal observance of a rule of procedure can be overlooked when it does not involve public policy and arises frc.m an honest mistake. 1''e-rn.ando de {o1f Santo:r for appelant. Alfredo M. Sabater for apµellce. DECISION BENGZON, J. The jnsticP. of the peace court of Gandara, Samar, allowed the plaintiff Valentin Aligarbes to sue as pauper in a forcible entry case. After due hearing, tht> complaint was dismissed. Within the rcglementary period he fih:d a motion to appeal in f .rma i;a.uperis, together with $!. notice of appeal to the <'OUrt o! first ir.stance. The justice of the pea<'e by w1·itten orrfor of J11ly 25, l!J50, declared he had no authority to permit the pb· ;ntiff to litigate as pauper on appeal and that such permission may only Le granted by the court of first instance. However the same: judge "transmitted" the records to the superior court •'for its proper determination in the premises": On August 3, l9!i0 the clerk of the Samar court of first im:tar.ce addressed to the defendants a letter of the following tenor: "In accordance with the provisions of Act 3171 in relation with Section 7, Rule 40. of the Rules of Court, you are hert>by notified that the above-entitled civil case has been entered on this date in the docket of this court in view of the appeal taken by the plaintiff from the decision of the Jui.lice of the Peace of Gandara, Samar. "In view hereof. you arc required to file before this court · your answer to the complaint or any other pleadings therein within fifteen <15) days from receipt of this notice. If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint. "Witness the Honorable Fidel Fernandez, Judge of said court, this 3rd day of August, 1950." The defendants duly answered. During the hearing a.nd while the plaintiff was testifying, the trial judge issued this order: · .. This case was appealed from the Justice of the peace Court of Gandara. No docket fees were paid by the appe. )ant on the ground that he presented a motion before the Justice of the Peace Court that he be allowed to app..:111 thi9 case as pauper. The Justice of the Peace Court, in its order remanded this cast> to thi~ court but with injunction that tmch petition to appeal as pauper be presented before this Court of First Instance who has the authority to consider it. Such was not done. The required fee for docketing this casG was not paid. Neither was &n order from this court to docket the same without fee obtained. "But in spite of the failure to pay the fee and to obtain the order of this court, the case was docketed. "This court is of thf' opinion and so holds that the docketing was illegal, it being in contravention of the provisions of law. "Inasmuch as the period for appeal has already o:piTed, to return this case to the Jus~ice of the Peace Court of origin, or to allow the plaintiff to pay the docketing fee or sccm·e the order from this Court to allow it a paupcr'!!I appeal woulJ be void as this Court has not acquired jurisdiction over this case. The judgment of the Justice of the Peace Court has alrea.dy become final. .. Therefore, the court orders that this case be returned to the Justice of the Peace Court of Gandara for the execution of the judgment." His motion for reconsideration having been denied, the plaintiff interposed this petition for review, which the court a quo sub. sequently certified as a paupP-r's appeal. The expediente clearly shows the appellant's lack of means. And, in view of the constitution::i.l mandate that poverty shall not deny any person free access to the courts, w<! are impelled to hold that under the circumstances it was a mistaken exercise of discretion to dismiss the case for non-payment of fees. The justice of the peace granted permission to litigate as paup. er by virtue of £ec. 22 Rule 3 of the Rules of Court under which said officer could have subsequently excused the poor litiga11t from compliance with the requisites involving payment of money to Pt>rfect his ;lppea.l <Lacson v. Tabarres 68 Phil. 317). In other worris the· justice of the peace had the authority to permit Alcgarbes to appC'a\ as pauper. Wherefere, his mistake as to the extent of hi:i powers should not prejudic<: huEin plaintiff. 1 True, the Lacson decision says the appellant should also ask permisskn from the court of first instance to continue or substantiate his a.ppeal in forma prmperis: but Alegarbes probably thought it uirntcP-ssnry to take further steps, the clerk having already docketed the cause without payments of fees as shown by the letter requiring de188 LA WYERS JOURNAL April 30, 1954 fcndanls to answer. Supposing then that, strictly speaking, the controversy "al not bdore the cou:rt due to non.payment of fees, "the lapse in the Ii. teral observance of a rule of procedure could be overlooked as it did not involve public policy. and arose from an hon<?st mistake"t21 It would now be unfair to hold that the decision of the juc;tict> of the · peace has bC!comc final. The plaintiff took all the: step!I nE-cessary to perfect his appeal; and it was only thru the ci'ror of said officer. and of the clerk of court that the matter of court fees has not beC!n attended to. There being no question as to appellant's inability to pay, he should be afforded opportunity tn comply with procedural requirements to enable him to pro>lecute his suit. In view 0£ the foregoing, the record will be returned !!O that the justice of the peace may pass on the petition to app.:?al as pauper, and the court of first instance may n.lso act thereafter, upon request by the litigant for exemption from payment of fees. So ordered, without costs. Paras, Pablo, Padilla, Montemayor, Reyes, Jugo q.nd Bautista Angelo. J.J. concur Mr. Jw;tictt Labr<Wo1· took nf' part. U) Whert1 fa!lul'<! of aprellanta to file an appeal bond on time lt due to an error of the juttlce of the peace they will not be deorived of their right 1.0 be heard In the court of ti.-.t Instance. (Alancb' "'· San Jo.e f5 0.0. No. 1 p.2829) (21 (Ji;thel ease and Minn& Hartl v. Juiro '3 O.G. No. 11, U29l VI Ma.rvel Building Corporation et 11ls., Plaintiffs-Appe'lees, "Us. Sa. t-un1ino Da1•id. in Ju's capacity as ColUctor, Bureau of f11ternal Re. 11ume, Defendant-Appellant, G. R. No. L-5081, Feb. 24, 1954. - 1. EVIDENCF.; TESTIMONY OF HANDWRITING EX.Pl!:RT MUST BE RECEIVED WITH CAUTION.-Attempt was alsc made by the plnintif£s to show by expert evidt!nce that the endol'sement could have been superimp:is~d, i.e., that thr. sig. nature~ made on other papers and these were pasted and thereafter the documents photographed. Judieial experience is to the cffnct that expert witnesses can always be obtained for both sides of an issue, most likely because C..'<pert witness.... es are no longer impermeable to the influence of lees <II Wig. more, Sec. 563 t2l, p. 646L And if parties !lre capable Of paying f P.es, expert opinion should be received with cs.·1tiun. 2. ID; WHERE THE OPINION OF THE EXPERTS SHOWS MERE POSSIBILITY THAT THE DISPUTED SIGNATCRli IS NOT GENUINE AND IS CONTRADICTED BY VARIOUS CIRCUMSTANCES.-In the case at bar, the opinion on the supposed superimposition was merely a possibility, and we note various circumstances which J;rove that the signatut1;.!J were not superimposed and corroborate defendant's cl:tim th3t they were genuine. In the first place, the printed endorsement co~ tains a very heavy line at the bottom fer the signature of tho? endorsee. This line in almost ull of the cndo1 lv.!ni'..:n~s is a!I clear as the printed letters above it, and at the points where the letters of the signature extend down and traverse it tthe line>, there is no indi::ation that the line is covereJ by a superimposed paper. Again in these places both tho signatures imd the lines are clear and distinct where th<'y cross· one another. Had there been superimpOsitions the ab::ive features could not have been possible. Solicitor General for appellant. Rose1u.ijo J, 7'ansiusin for appellees. DECISION LABRADOR, J.: This action was brought by plaintiffs as stockholders of the Marvel Building Corporation to enjoin the defendant Collector of Internal Revenue from selling at public auction various properties described in the complaint, including three parcels of I:ind, with the buildings situated thereon, known as the Aguinaldo Building, the Wise Building, and the Dewey Boulevard-Padre Faura Mansion, all registered in the name of said corpo?'ation. Said properties were seized and distrained by defendant to collect "'ar profits taxE:s as~essed against plaintifC Maria B. Castro <Exh. B>. Plaintiffs allege that the said three properties· (lands and buildings> belong to the Marvel Building Corporation and not to Maria B. Castro, while the defendant claims that M~ria B. Castro is the true :md sole owner of all the subscribed stock of the Marve! Building Co1·poration, including those appearlng to ha.ve beC'n subs. ('.ribed and paid for by the other members, and consequently said Maria B. Castro is also the true and exclusive ownE:r of the pro. perties seized. The trial court held that the evidence, which is mostly circumstantial, fails to show to its satisfaction that Mn.ria B. Castro is the true owner of all the stock certificates of tho corporation, because the eviden:e is susceptible of two intcrpreta .. tions and an interpretation may not be made which would deprive t•ne of property without dullo process of law. It appears tha.t on September 15, 1950, the Secretary of Financri, upon consideration of the report of a special committee assigned to study the wat· profits tax case of Mrs. Maria B. Castro, recr.mmended the collection of P3.5!1S,950.78 as war profits taxP.s for the latter, and on September 22, 1953 the President instructed the Collector that steps be taken to collect the same <Exh~. 114, 114-A to 114-D>. Pursua.nt thereto various properties, including the three above mentioned, were seized by the Collectcr of Internal Revenue on,_October 31, 1950. On Novembf'r 13, 1950, the original complaint in this case was filed. After trial, the Court of First Instance of Manila rendered judgment ordering the release of the J.roperties mentioned, and enjoined the Collector of Internal Re .. venue from selling the same. The Collector of Internal Revc:nue has appealed to this Court against the judgment. The following facts are not disputed. or a.re satisfactoril~ proved by the evidence: The Articles of Incorjlorati1m of the Marvel Building Corporation is dated February 12, 1947 and according to it the capital tock is !'2,000,000, of which Pl,025,000 was <at the time of incorporation) subscribed and paid for by the following incorr•orators·: Marin H. Castro . . . . . . . . . . 250 11hares - P250,000.00 Amado A. Yatco ..••..•.... 11"10 " 100,000.00 Santiago Ts.n 100 100,000 00 Jose T. Lopez , • . • . . • . . . • . . 90 90,000.00 Benita Lamagna ••.••. _ .•• , 90 90.000.00 C. S. Gonzales • . . . • • . . . • . . 80 So,oon.OO Marfa. Cristobal •• , . . . . . . • . • 70 70,000.00 Segundo Esguerra, Sr •. , . • . . 75 '15.000 00 Ramo:i Sangalang . . . . . . . . . • 70 70,0UC:O.OO Maximo Cristobal r;5 55,000.00 Antonio Cristobal ... _...... 45 45,000.00 Pl,025,0GO.OO Maria B. Castro was elected President and Maximo Cristobal, Secretary.Treasurer <Exh. Al. The Wise Building was purchased on September 4, 1946, the pur. chase being made in the name of Dolores Trinidad, wife of Amado A. Yatco tExh. Vl, and the Aguinaldo Building, on January 17, 1!147, in the name of Segundo Esguerra, Sr. <Exh. Ml. Both buildings were purchased for Pl.800,000, but as the corporation hA.d only f':!. 025,000, the ha.Janee of the purchase price was obt'.l.ined .:is loans from the Insular Life Assurance Co., Ltd., and the Philippine Guaranty Co., Inc. <Exh. C>. Of the incorporators of the Marvel Building Corporation, Maximo Cristobal and Antonio Cristobal are half-brothers of M:uia B. Castro, Maria Cristobal is a. half-sister, and Segundo E:;guerra, Sr. a brother-in.law, husband of Maria Cristobal, !tfaria R. Caatto's half-sister. Maximo B. Cristobal did not file ::my inc••me tax returns before the year 1946, except for the years 1939 a.nd 1940, but in these years he was exempt from the tax. He has not filed t..ny war profits tax return <Exh. 54>. Antonio Cristobal, Segun .. du Esguerra, Sr. and Jose T. Lopez did not file any income tax returns for the years prior tn 1946, and neither did they f:le any war profits tax rE:turns CExh. 52) . Maria. Cristobal filed income. t&x returns for the years Hl29 to 1942, but they were exempt from the tax tExh. 53>. Benita A. Lamagna did not file any income bx returns prior to 1945, except for 1942 which was exempt. She did not file any war profits tax <Exh. 55L Ramon M. Sangalnng did not file income ta.x: returns up to 1945, except for the years 1936. 1937, 1938, 1939 and 1940. He has not filed any war profits tax i·eturn <Exh. 56>. Santiago Tan did not file any income tax re. turns prior to 1945, except for the years 1988, 1939, 1940 and 1942, but all of these were exempt. He did not file any war proiits tax return <Exh. 57). Amado .\. Yatco did not file income tax re. turns prior to 1945, except tor the years 1937, 1938, 1939, 1941 and 1942, but these were exempt. He did not file any war profits tax April 30, 1954 LAWYERS JOl.JRNAL 1S9 return <Exh. 68>. Antonio Cristobal's income in 1946 was PlS,630, and in 1947, P4,550 CExhs. 59-60); Maximo B. Cristobal's income in 1946 i.? Pl9,759.10, in Hl47, fl:J,773.47 <Exhs. 61-62>; Segundo E~guerra's income in 1946 is PS,550, in 1947, P7,754.32 <Exhs. 63-64); Jose T. Lopez's income in 1!146 is P20,785, in 1947, Pl4,302.77 <Exhs. 69-70> i Benita A. Lamagna's income in 1945 is f'l,559, in 1946, P6,463.3f:, in 1947, PS,189 .79 and her husband's income in 1947 is PlO 825.53 <Exhs. 65-68); Ramon M. Sangalang's income in 1945 is P5,500, in 1946, PlS,300.00 <Exhs. 71-72>; Santiago Tan's income in 1945 is P456, in 1946, P9,167.95, and in 1947, P7,620.ll <Exhs. 73-75); and Amado Yatco's income in 945 is P12,600, in 1946, P23,960, and in 1947, Pll,160 <Exhs. 76-78). In October, 1945 Maria B. Castro, Nicasio Yatco, Maxima Cristobal de Esguerra, Maria Cristobal Lopez and Maximo Cristobal organized the Maria B. Castro, Inc. with a capital stock of Pl00,000, of which Maria B. Castro subscribed for PD9,600 and all tht= others for PlOO each. This was increased in 1950 to P500,000 and Maria B. Castro subscribeci. P76,000 and the others Pl,000 each <Exh. 126L It does net appear that the stockholders or the hoard of dircctvrs of the Marvel Building Corporation have ever held a busine!!s meeting, for no books thereof or minutes of meeting were ever mentioned by the officers thereof or presented by th1.>m at ·the trial. The by-laws of the corporation, if any had ever been anprovcd, has not he<!n presented. Neither does it appear that any report of the affairs of the corporation has been made, eithrr of its transactions or accounts. From the book of accounts of the corporation, advances to thr Marvel Building Corporation of P125,000 were mad~ by Maria B. Castro in 1947, Pl02,916.05 in 1948, and Pl60,910.96 in 1949 <Exh 118). The msin issue involved in these proceedings is: Is Maria B. Castro the owner of all the shares of stock C1f the Marvel Building Corporation and the other stockholders mere dummies of hers? The most important evidence presented by the Colle<'tor of Internal Revenue tf' prove his claim that Maria B. Ca!'tro is the sole and exclusive owner of the shares of stock of the Marvel Building Corporation is the supposed endorsement in blank of the shares ot stock issued in the name of the other incorporators, and the possession thereof by Maria B. Castro. The existence of said cndor$ed certificates was tt>stified to by witnesses Felipe Aqu;m,, internal revenue examiner, Antonio Mariano, examiner, and Cris. Join Llamado, Under-Secretary of Finance, who declared r.s follows: Towards the end of the year 1948 and about the beginning of the year 1949, while Aquino and Mariano were c>xamining the books and papers of the Marvel 'Building Corporatior. at its placa of business, which books and papers were furnished by its Secreta.ry, Maximo Crist<'bal. tht>y camE" aeross an envelope containing eleven stock certificates, bound together by an Acco fastener, which (certificates> corresponded in numb~r and in amount on their face to the subscriptions of the stockholders; that all the certificates, except that in the name of Maria B. Castro, wen• endorsed in blank by the subscribers; that as the two revenue: agents could not agree what to do with thE- certificates, Aquino brought thl'm to Undersecretary of Finance Llamado, who there•Jpon suggestt•d that photostatic copies thereof be taken; that this was dc.ne, an.;' the photostatic copies phl.ced by him in his office safe; thri.t Aquino returned the certificates that same day after the photostatic C<'pies had been taken; that the photostatic copies taken a1-e exhibite 4, 5, 6, 7, S, 9, 10, 11, 12 and 13; and that in July, 1950, copy. <'at copies of the above photostats were taken, and said copy-c='.ts are Exhibits 40-49. Julio Llamado, bookkeeper of the Marvel Building Corporation from 1947 to May, 1948, also testified that he is the one whr. had prepared the original certificates, putting therein the numb~r of shares in words in handprint; that the originals were given to him by Maria B. Castro for comparison with the articles of incorporation; that they were not yet signed by the President and l•y the Secretary.Treasurer when he had the certificates; and that after the checking he returned all of them to Mrs. Castr'), Ile recognized the photostats, Exhibits 4 to 13 a.s photostats of the 1mid originals. He also declared that he also prepared ti. set of !'tock certificates, similar to the certificates which were copied in he photostats, filling the blanks for the name of the stockholder, tht: number of shares, and the date of issue, and tliat the ~ertifi ca.tes he had prepared are Exhibits H, H-1 to H-7 and J (Exh.s. S0-38>. This set of certificates was made by him first and the set of which photostats were taken, a few days !al;:er. The plaintiffs offered a half-hearted denial of the e:idstence of the endorsed blank cc::tificatts, Maximo C,ristobal, srnct'.!r}"' of the corporation, saying that no investigation was Pver made !Jy Aquino and Mariano in which said certificates were disco,·ered by the latter. They, however, vigOrously ~ttack the crr.dibility of the witnesses for the defendant, imputing to the Llamados, e:i.mit,y against Maria B. Castro, and f;o Aquino and Mariano, a very doubtful conduct in not· divulging the existence of the certificates either to Lobrin, Chief Income Tax Examiner, or to the Collector of Internal Revenue, both their immediate chiefs. Reliance is also placed on a certificate, Exh. ", wherein Aquino and other,. declere that the certificates <Exhs. 30 to 38, or H. H-1 to H-7 and JJ w•:re regular and were not endorsed when the same were examined. In connection with this certificates examined were Exhs. 30 to 3R, f;he existence or character of which arc not disputed. But the statenient contains nothing to the effect that the above certificates were the only on.es in existence, according to their knowledge. A1;&in the certificate was issued for nn examination. in SC!ptemLer 1949, r.ot by Aquino and Marian~ at the end of 1948 or the beginnin~ cf 1948. It can not, therefore, discredit the testimonies of thQ defendant's witnesses. As to the supposed enmity of the Llamados towards the pla'ntiff Maria B. Castro, we note th:it, suppnsing thc.t thern really was such enmity, it does not appear that it was of such m'?.gnitude or force ns could have induced the Llam:tdos to Ii·~ or i'Lbricate <'Vidence against her. It seems that tht> Llam:o..dos and Maria B. Castro were close friends way back in 1947 and up to 1949; but that at the time of the trial the friendship had been man·ed by misunderstandings. We believe that in 1948 and 1949 !t:.e LJ;:i. mados w.'.!re trusted friends of Ma.ria B. Czstro, and this explains why they had k:i.owlcdge of her secret transactions. The younger Llarnado even made advances for the hand of Maria B. Cast1 o's daughter, and this at the time when as n bookkeeper he wa.s entl'Usled with checking up the certificates of stock. Whe:l the older Llamado kept secret the existence of the endorsed certific'.l.tca, the friendship between the two families was yet intact, hence, the existE>ncc of the endorsed certificatea must have bee;! kept to himst!lf 1".y the older Llamado. All the ahove circumstances reir.forcf: our b.•lief thut the LJamados had personal knowledge of the facts they te:stified to, and the existence of this knowledge in turn renders improbable plaintiffs' claim that thfir testimonies were bi:J.,€d. Attempt w&s also made by the plaintiffs to show by expert <'Vidence that tho end~rsement could have been superimposed, i. c., that the signatures made on other papers and these were pasted nnd thereafter the docmnents pho'.cgra11hed. Judicial experie:ie-:: is to the effect that expert witnesses can always be obtained for both sides of an issue, most likely 'occause expert witnesses are no longer impermeable to the influence of fees (II Wigrnore, Sec. 563. I~), p. 646). And if parties are capable of paying fees, c :xpert op;n:on should be recei\'ed with caution. In the case at bar, the opm1on on the supposed superimposition was merely a pos11iJ..ility, and we note various circumstances which prove that the siinaturl:s werr: not superimposed and corroborate defendant's claim that they. were genuine. In the first place, the printed endorsement contains a ve>ry heavy line at the bottom for the signa~urc of the enG.01·flce. Tl1is line in almost all of the endorsements is as clear a.s the printed letters abovP. it, and at the points where the letters of the siirnature extend down and traverse it Cthe line), therr, is no indic;ation that the line is co\'ered by a superimposed paper. Again in these places both the signatUres and the lines are clear and distinct where they cross one another. Had there beer. superimpositions the above features could not have been possible. In tho second place, Maria B. Castro admitted having sign,ed 25 stock certificates, but only eleven were issued (t.s.n., p. 662). No explanation is given by her why she had to sign a.s many as 25 form:i when there were only eleven subscribers and eleven forms to IJ1:i filed. This circumstance corroborate the Y"lmg Llamado',; declaration that two sets •Jf certificates h:td been prep!lred. Thi" nineteen illsued must be Exhs. H, H-1 to H-7 and J., or Nos. 33 to 38. 190 LA WYERS JOURNAL April 30, 1954 and the stock certificates endorsed whose photostatic copies are Exhs. 4 to 13. It is to be remembered also, that it is a common pr(!.Cticc among unscrupulous merchants to carry two sets of books, one set for themselves and another to be e:hown to tax collectors. This practice could not have been unknown to Maria B. Castro, who iipparently had been able to evade the payment of her war profits taxes. These circumstances, coupled with the test!mony of Julio Llamado that two sets of eertific2.tes were given to him for chr,cking, show to sn impartial mind the existence of the set of certificates endorsed in blank, thus confirming the- testimonies of the de.. frndant's witnesses, Aquino, Mariano and Crispin Llamaclo, and thus discrediting the obviously partial testimony of the exp~rt presrnted by plaintiffs. The genuineness of the signatures on the flndorsements is not disputed. Hc.w could the defendant ha.ve secured t.hese genuine signatures? Plaintiffs offer no explanation for this, although they do not question them. It follows that the genuine signatures must have been made on th<? stock certificates themselves. Next in importance among the evidence submitted by the defendant collector to prove his contention that Maria B. CastrC'I is th<? sole owner of the shares of stock of the Marvel Building Corp.1r2.tion, is the fact that the other stockholders did not have incomes in such amounts, during the time of the organization of the C'lrporation in 1947, or immediately thereto, as to enable them to pay in full for their supposed subscriptions. This fact is proved by their income tax returns, or the absence thereof. Let us take Amado A. Yatco as an example. Before lti4::0 his return were exempt ft'om the tax, in 1945 he had P12,600 and in 1946, P23,000. He has four children. How could he have paid Pl00,000 in 1945 and 1946? San. tiago Tan who also contributed Pl00,000 had no appreciable incomf' before 1946, and in this year an income of only P9,167.95. Jose T. Lopez also did not file any income tax returns before HMO 3nd in 1946 he hc.d an income of only P20,784, whereas he is suppos2d to hr.ve subscribed P90,000 worth of stock early in 1947. Benita Ln~ magna had no returns either up to 1945, except in 1942, which was exempt, and in 1945 she had an income of Pl,550 and in 194U, P6,463.36. In the same situation are all the others, and besitl~s. brothers and sisters and brother-in-law of Maria B. Castro. On the other hand, Ma'ria B. Castro had been found to have made er.ormous gains or profits in her business such that the taxes thereon wC're •asi;essed at around rS,000,000. There wai:, th~refore, a 11rim~ facie case made out by the defendant collector that Maria B. Castro had furnished all the money that the Marvel Buildin& Corporation had. In order to meet the above evidence only three of the plaintiff:j testified, namely, Maximo Cristobal, the corporation's secretary, who made the general assertion on the witness stand that the othC'r stockholders paid for their sha.res in full, Maria B. Castro, w!lo s~atcd that payments of the subscriptions were made to her, and C. S. Gonzales, who admitted that Maria B. Castrc paid for his subscription. Arter a careful study of the above testimonies, however, we find them subject to various objections. Maximo Cristobal declared that h!! issued provisional receipt,1 for the subscriptions supposedly paid to him in 1946; but none of the supposed receipts was rresented. If the subscriptions were really received by him, big a!I the amounts were, he would have been able to tell specifically, by dates and in fixed amounts, when and how the payments were madl·. The gene_r:i.I assertion of alleged payments, without the CJncrcte days 2.11d amounts of payment, are, according to our experience. positive indications of untruthfulness. for when a witness testifies tn a fact that actually occurs, the act is concretely stated and no ~eneraliza ti on is made. With respect to Maria B. Castro's testimony, we find it to be as untruthful as that of Cristoba.l. She dechred that the payments of the subscriptions took place between July and December, 1946, and that said payments were first deposited by her in the National City Bank of New York. A study of her account in said bank <Exh. 82>, however, fails to show the alleged deposit of the suh::i. criptions during the year 1946 <See Exhs. 83-112), This fact completely belies her. assertion. As to the testimony of C, S". Gonza.les that 'Maria B. Castro advancCd his subscription, there is nothing in the evidence to corroborate it, and the circumstances show otherwise. If he had really been a stockholder and Maria B. Castro advanced his subscription, the agreement between h!m and Castro should have been put in writing, the amount advanced being quite considerable CP80,000), and it appearing further that Gonzales is no close relative or confidant of Castro; Lastly, it is significa.nt that the plaintiffs, the supposd subs~ crihrrs, who should have come to court to assert that they adually paid for their subscriptions, and ne not mere dummies, did not rl.o so. They could not have afforded such a costly indifference, Valued at from P70,000 to Pl00,000 each, if they were not actual dummiP~. This failure on their part to take the witness sta.nd to deny or refutfl the charge that they were mere dummies is to us of utmost significance. What could have been easier to disprove the charge that they ,.,.ere dummies, than for them to come to court a.nd show their receipts and testify on the payments they have made on their subscriptions? This they, however, refused to do. They had it in their power to rebut the charges, but they chose to keep silent. The non-production of evidence that would nat•Jrally have been }Jroduced by an honest and therefore fearless claimant perinits the ir:ference that its tenor is unfavorable to the pa:-ty's cause or Wiitmore, Sec. 285, p. 162l, A party's silence to ad~use testimony is equivalent to an admission of its truth Clbid, Sec. 289, p. 175J. Our consideration of the evidence submitted on both sides leads u:1 to a conclusion exactly opposite that arrived at by the trial court. In general the evidence offered by the plaintiffs is testimonial and direct evidence, easy of fabrication; that offered by defendant, documentary and circumstantial, not only difficult of fabricatioii. but in most cases found in the possession of plaintiffs. There is very little room for choice as between the two. The circumstantial evidence is not only convincing; it is conclusive. The existence of endorsed certific&tes, discovered by the internal i·t:venue agent;:i between 1948 and 1949 in the possession of the Secretary-Treasur!!r, the fact that twenty five certificates were signed by the president o! the corporation, for no justifiable rea.son. the fact that two sets of certificates were issued, the undisputed fact that Maria B. Castro had made enormous profits and, therefore, h:1d a mt:1tive to hide them to ,evade the payment of ·taxes, the fact that the other subscribers had no incomes of sufficient magnitude to justify their big subscriptions, the fa.ct that the subscriptions were not receipted for and deposited but were kept by Maria B. Castro herself, the fact that the stockholders or the directors never appeared to have ever met to discuss the business of the corporation, the fact th<J.t, Maria B. Castro advanced big sums of money to the corporation without any previous 3rrangement c.r. account.ing, and the fad that the books of accounts were kept as if they belonged to Maria B-. Castro alone - these facts are of patent and potent significance. What are their necessary implications? Maria B. Castro would not have asked to endorse their stock certificates, or be keeping these in her possession, if they were really the owners. Tht>y never would have consented that Maria B. Cash·., keep the funds without i·eceipts O)' accounting, nor that she manages the bu~iness without their knowledge or concurrence, were they owners of the stocks in th.Jir ow::i rights. Each_ and every one of the facts all set forth above, in t~'? same manner, is inconsistent with the claim that the stockholders. other than Maria B. Castro, owned their shares in their own righf: On the other hand, each and every one of them, and all of theni, can point to no other conclu,sion than that Maria ~· Castro was the sole and exclusive owner of the shares a.nd that they were only lier dummies. In our opinion, the facts and circumstances duly set forth above, all of which have been proved to our satisfaction prove, conclusively and beyond reasonable doubt CSec. 98, Rule 123 of the Rules of Court and Sec. 42 of the Provisional Law for the application of the P<·nal Code) that Maria B. Castro is the sole and exclusive owner oi all the shares of stock of the Marvel Building Corporation ann that the other partners are her dummies. Wherefore, the judgment appealed from should be, as it herehy is, reversed and the action filed by plaintiffs-appell~es, dismissed. with costs against plaintiffs-a.ppellees. So .ordered. PaTas, PablD, Bengzon, Padilla, Montem'ayC>T, Jugo, Bautista ,.lngelo, J.J., concur. Justice Reyes took no part. April 30, .1954 LAWYERS .JOURNAL · 191 Eugenio AquinC', Petitioner, 1·s. Eulogio F. de G1m>ta;1, Judge of tho Court of First In.stance, Da.gupan City, and Emiliana Mendoza, Respondents, G. U. No. L-5763, Sept. 28, 1953 PLEADING AND PRACTICE; APPEAL; CASE AT BAR. - Thi" registration case has been tried by the judge jointly with a civil case, because the parties in the latter are the same as those of the r~gistration case. and both parties in both cases were represented by the same attorneys. One single decis:on was entered in both cases. Judgment having been rendered age.inst the petitioner in both cases, the attorney presented on June 19, 1951 a notkeof appeal for both cases and a joint record en appeal for both cases also, and deposited an appeal bond. The app.;-31 bond was receipted for in the civil case on June SO, lf/51. No bond was deposited for the appeal in the land registration case until August 1, 1951. The record on appeal was approveu but the court gave course only to the appeal in the ciV:.l case. Objection to the appeal in the registration case w~s presented and this was sustained by the court. Held : -ThP contention that since the notice on appeal and the record on appeal were embodied together in -a single document in both cases, the certification of the record o:": appeal in the civil case necessarily included that of the registration case, becaus<'! the record on appeal in one case is inseparable front that ol the other, is entirely without merit. The physical embodii~er.t of both records on appeal into one single document does not make the two cases one, or relieve the petitioner of the ob!iga. tion to file a bond in the other. The identities of both cas'e'J are preserved; the oneness of the record on appeal does not modify the nature of one or the other, or merge the regir.tration case into the civil case. Sevcrfoo Daydc.u1 !or petitioner. Primici..is, ALrvl, Men.cia:J & Castillo tor respondents. DECISION LABRADOR, J.: This is an original petition instituted in this cnurt to compel the Court of First Instance of Pangasinan, Judge F. de Guzman, presiding, to allow tl1e petitioner's appeal :igainst its judgment in Land Registration Case No . 302, G.L.R.O. Record No. 1173 to the Court of Appeals. The record discloses that this case wa'J tried by said judge jointly with Civil Case No. 10965, becau9~ the parties in the latter are the same as those of the registration case, and both parties in both cases were represented by the same attorneys. One sjngle decision was entered in both cases. Judgment having been rendered against the petitioner in both cases, his attorney presented on June 19, 1951, a notice of appeal for both and a joint rE'cord on appea.l for both cases also <bearing titles of both cases) and deposited an appeal bond of P60. This appeal bond was receipted fot in the Civil Case No. 10965 on June 30. 1951 <Annex 4 ot answer . ) No bond was deposited for the appeal in the Land registration case until August I, 19i>l <Annex 5 of answer .> The record on appeal was approvea, but the court gave course only to t~e appeal in the civil case. Objection to the appeal in the registratio:t case was presented and this was sustained by the court, whereupon the present action was filed in this court. The petitioner contends that since the notice of appeal and tl:.c record on e.ppeal were embodied together in single documents in both cases, the certification of the record on appeal in the civil case necessarily included that of the registration case, because th~ i·ecord on appeal in one casE' is inseparablE' from that in thE' other. The contention is entirely without merit.. The physical embodiment of both records on appeal into one single document •.iocs not m'.lke the two cases one, or relieve the petitioner of the obliga.~ion to Cile a bond in the other. The identities Of both cases :ire preserved; the oneness of the record on appeal does not modify the nature c:;f one or the other, or merge the registration case into the civil case. But while we hold that there is no error of law committed bv the court a quo in dismissing the appeal in the registration cas;, th1:;re are potent reasons why, in the exercise of its discrc!ion, it should have decreed otherwise. One is the fact that the ci\·il casJ is entirely dependent upon the registration case; no reco·1ery of possession can be decreed in fav"r of, and no damages can accrue to, the plaintiff unless he is declared the owner of the property s:.ibject of both caFes. When defendant, therefore, questioned plaintiff's right to the possession and to damages, he must ban mea.nt to question plaintiff's title to the property. The other reason is the fact that as the two cases were so inextr:cably related to eac\ other, and they were tried jointly, and oniy one joint record on appMl presented, appellant's attorney or his client or both may l:ave overlooked the need of filing two bonds, or thought that one was sufficient without the other. 'fhis co:istitutes an excusable over~ sight. Under these circumstances, the filing of the bond in VO d~ys should have been excused and the 3ppeal in the civil case given due C'!lUrse and relief granted as authorized under the provisions of Ilule 38. The petition is hereby granted, but petitfoner should pay the costs. ParaJJ, Pablo, Bettgzon.. Padil!a, Tuason, Mllnt.?mayOf', Reve•, Jugo and Bautista Angtlo, J.J., concur. VIJI Ty Kong Tin, Petitioner.Appellee, 1.'S. R spub'ie of the Phi!ippinett, Oppositor.Appellan.t, G. R. No. L-5609, F cbru'Jry 5, 1954. CIVIL CODE; CHANGE OR CORRECTION OF ENTRY IN THE CIVIL REGISTER; CASE AT BAR. -- T filed a p<!titio::i in the court of first instance alleging that all his children were born in Manila whose births were duly reported to the Civil R2gister by the midwife or doc.tOr who had attended their births. By submitting the report it was made to appe:ir therein that the citizenship of T was "Chin~se" instead of "Fi:ip'no"; that t!lc mistake were committed by the midwife or doctor w:thout th'.! knowledge or consent of T; therefore he prays that an ordel' be issued directing the Civil Register to correct the per:inent vor. tion of the civil registE'r by making it appear there:n that the petitioner as well as his child1·en ar(' F;J:pino citizens and not Chinese citizens as authorized by Article 412 of the new C.vil Code. HELD: It is our opinion that the petition under consi. deration does not merely call for e. correction of a clerical error. It involves a matter which concerns the citizenship not only of petitioner but of his ch:ldren. It is the:·efore an imp orta~.t con. troversial matter which can and should only be threshed out in an appropriate action. The philosophy behind this rtquirtment lies in the fact that "the books making up the civil register snd ail documents relating thereto :;hall be cons"dered public doc.umcnt.l a.nd shall be prima facic evidence of the facts therein contained'' <Article 410, new Civil Code, and if the entriei; in the civil l'egister coul<l be corrE'cted or changed through a mere sum. mary proceeding and not through an appropriate action wherein all pa1-ties who may be affected by the Pntries arc notified or represented, we would set wirie open the dJor to fraud or other mischief the consequence of which might be d_trhnental and far reaching. DECISION BAUTISTA ANGELO. J.: This is a. petition filed by Ty Kong Tin to correct certain misR takes which had allegedly been comm"tted in the civil rcg:ster of the Civil Registrar of the City of Ma!!ila concerning his cit:zenship. On M::i.y !>, 1951, petitionl'r filed in the Court of First Instanc:i of Manila a petition alleging that he is a Filipino l!itizen duly li. censed to practice law in the Philippines; that all his children were born in the City of l\:lanila whose births were duly report:d to the clvil registrar by the midwife or doctor who J1a.d attended th"ir births but in submittin~ the report it was made to appear thereb. that the citizenship of petitioner was "Chinese'" instE>ad of "Filip'. no": that the aforesaid mii;takes were committe:'I hr the midw fe or doctor without the knowledJ?"e or consent of peti~ioner who b:c<1.me uwarc thereof only when he asked for a certified copy of the birth certificates of his children; anri. therPfore, he prays that e.n order be issued directing the civil registrar to correct the pertinent portion of the civil register by making it appear therein that petitioner as well a~ his C'hildren are FiHpino citizens and rot ChiMse cit:zens, as authorized by article 412 of the new Civil C-Ode. ThC' Civil Registrar of Manila ,in his anS\v'er, states thn.t he has no knowledge or information sufficient to form a b~lief as to the truth of the alleirations contained in the petit:on but he has n:> ch.. 192 LA WYERS JOURNAL April SO, 1954 Jection to making the required correction provided he is so ordered by the court. The court set the petition for hearing not after orderinl! petitioner to serve a copy thereof on the Soli!'itor General for whatenr cction hP may dr.em proJ)t"r to tak~ in thP premises. After the hea.ring was held, the Solicitor General submitted a wri ~ten opp'.lsitil)n wherein he asks that the petition be denied on the ground that petitioner has failed to prPS{'nt sati:;faC'tory and convi;;cing ev:d.mc2 in J!Upport of his claim that he is a Filipino citizen. Issues having been joined, the court rendered <lecision overruling the opposition of the Solicitllr General and ho!ding that th!1 evidence presented by petitioner suffic:enty establishes the claim that . he and his children are Filipino citizens, and, consP.quently, it or. dered the Civil Registrar of Manila to make the necessary correction in his register as prayed for in the petition. From this decision the Solicitor General has appealed. When the case came up for discussion before the members of this Court, the issue that became the center of controversy revoh·e:I around the interpretation of the prov:sions of article 412 of the new Civil Code under which the petitfon under consider2.tion was !iled. This article provides that "No entry in a civil register shall be changed or corrected, without judicial order." The bone of ccntention was the extent or scope of the matters that may· be changed or corrected as contemplated in .;aid legal provision. After a mature deliberation, the opinion was reached that what wa.s contemplated therein are mere corrections of mishke3 thg,t are cle.. rical in nature and not those which may affect the civil stat~s or the nationality or citizenship of the persons involved. rt the purpose of the petition is merely to correct a cleric2.I error then the court may issue an order in order that the error or mistake may be corrected. If it refers to a substantial change. which nffects the status 01· citizenship of a pnrty, the matter should be threshed out in a prope.r action depending upon the nature of the issue involved. Such action can he found at random in our suubstantive and remedial laws the implementation of which will naturally depend upon the factors and circumstances that might arise affecting the ·interested parties. This opinion is prPdicated upcin thl? theory that the procedure con~mplated in article 412 is summary in nature which cannot cover cases involving controversial issues. It is Olll' opinion that the petition under consideration does not merely call for a correction of a clerical error. It involves a matter which concerns the citizenship not only of petitioner but of his children. It is therefor(' an important controversial m'.ltter which can and should only be threshed out in an appropriate acticn. The philosophy behind this requirement lies in the fact that "the Looks ma.king up the civil rcgist\!r a:id all documents and shall b~ prima faciP evidence of the facts therein contained." CArlicle .UO. new Civil Code). and if the entries in the civil register could be corrected or changed through a me;e summary .proceeding and not through an appropriate action wherein all parties who may be a~fected by the entries are notified or represented, we would set wide open the door to fraud or other misch:ef the cC1nsequencc of \'lhich might be detrimental and for reaching. It is for these reasons that the law has placed the necessary s::.feguards to forestall such eventua!ity that even on matters which call for a correction uf clerical mistakes the intervention of the courts was found necessary. This is an inno,·ation not originally found in the !aw which placed this mattP.r exclusively upon the sound judgment ,rnd discretion of the civil registrars. This was founrl by Congress unw:se and risky in ~iew of the far 1·eaching importance of the subjects covered by the dvil register .. .\nrl under the present innovation the Jaw even exacts civil liability from tht. civil registrar for any unauthorized alter::t.tion, which shows the concern of Congress in maintaining the integrity and genuineness of the entries contained in our civil registers <Article 411, new Civil Code). The foregoing make it unnecessary for us to consider the issues raised by the Solicitor General in the pres~nt appeal. Wherefore, the deeision appealed from is reversed. The peti~ tion is dismis.::1ed without pronouncement as to costs. Paras, Pablo, Bengzon, Padi!la, Montemayor, Reyes, La.b,,.ador. concur IX Secretary of Public WorkH and Communications, S ecretary of Finance and Exccutfre Secretary, peti:ioneTs, vcrR us Hon. Bien4 venido Tun, Judge of tlie Court of First Instance of R:zal, 'the · Provincial Board of Rizal, Narciso G. Isidro, ReRpondents, G.R. No. L-5987, promulgated, Nov. 25, 1953, Jugo, J. RULES OF COURT; INJUNCTION TO RESTHAIN THE SF.CCRETARY OF PUBLIC WORKS AND COMMUNICATIONS FROM CONTINUING THE COLLECTION OF TOLLS ON A BRIDGE.-Where the Court of First Instance issued the writ of preliminary injunction prayed for in the complaint, restrain~ ing the Secretary of Public Work1:1 and Communications, Secret • ary of Finance and Exec11tive Secretary from continuing the collection of tolls on a bridge because the cost of the same plus 4% interest per annum had been fully recovered from the tolls collected up to the filing of the complaint, a fact which is asserted by the Provincial Board of Rizal and not denied by any interested party, the court did Mt exceed its jurisdiction or abuse its discretion in issuing the writ of injunction. DECISION JUGO, J.: The Marikina Toll Bi:'idge was constructed under the provisions of Act No. 3500. The pertinent provisions of said Act are as follows: "SECTION 1. The sum of five million pesos is hereby appropri&ted out of any funds in the Insular Treasury not otherwise appropriated, to constitute a nvolving fund for the construction of permanent bridges on interprovlncial or intercoastal roads in the Philippines, which shall be expended under the supervision of the Secretary of Commerce and Communications. Said bridges shall be declared toll bridges for a period not exceeding fifteen years and tolls shall be collected from all traffic using such bridges in accordance with rates to be fixed by a board composed of the Secretary of Commerce and Communications as chairman, the Secr;~tary of Finance, and the Insular Auditor, as members: Prcmided. however, That no toll charges ' shall be collected from pedestrians. xx xx xx xx xx xx SEC. 4. When the total cost of a bridge, plus interest .>f four per centum per annum, is fully recovered, thl'.l board created in section one of this Act sh::ill i<o certify to the GovernorGeneral who, by means of an Executive Order, shaJI turn over the bridge to the provincial board concerned and order the collection of tolls to be discontinued. The cost of maintaining bddges financed under the provisions hereof shall be charged to the road and bridge fund of the province in which said bridges are situated.'' On March 4, 1952, Narciso G. Isidro filed a complaint in the Court of First Instance of Rizal against the petitioners herein, the Secretary of Public Works and Communications, th<' Secretary of Finance and the Executive Secretary, and the Provincial Treasurer and the District Engineer of Rizal, alleging, among other things, that he is an operator of several buses with proper certificates of public convenience which pa~s over said bridge in their trips from Manila to Marikina and vice versa, and that the defendants (petitioners herein), have been collecting tolls for the use cof said bridge; that the period of fifteen years had passed since the construction oC said bridge and that the cost of the same plus 4% interest per annum had been fully recovered from the tolls collected up to the filing of the complaint, and pr9.ying that a writ of preliminary injunction be issued restraining the defendants from continuing the collection of tolls, and that an order be issued requiring the defendants to certify to the President of the Philippines that the cost of the construction of said bridge had been fully recovered from the tolls collected. The Provincial Board of Rizal as an interested party filed a complaint in intervention, making Substantially the sam~ allegations and the same prayer as Narciso G. Isidro. The Secretary of Public Works and Crimmunil'!ations, the SPc.. retary of F'inance and the Executive Secreta'ry filed an a.nswer in the Court of Fil·st Instance alleging in substance that the money borrowed from the Agricultural and Industrial Bank for the conApril 30, 1954 LAWYERS JOURNAL struction of said bridge had not yet been fully paid. The rcspundcmt Court of First Instance issued the wr:t of preliminary injunction prayed for in the complaint of Isidro, restraining the do!fendants, their represent::tives etc., from continuing the collection of tolls on said bridge, upon the filing by the plaintiff of a bond in the surr: of P2,000.00. The defendants Cpetitirmers here:n>, have filed a petitbn in this Court for a writ of certiorari, praying that a preliminary injunction be issued pro:iib:ting the enforcem~nt of the prdiminary injunction issued by the Court of First Instance and that after hearing said injunction be declared null and vo:d. It should be borne in mind th2.t the lower court has not yet tried the case on the medts an.J has not yet renrlered a final judzment, the only question before m~ bein,1? whether the court acterl in excess of its jurisdiction or with abuse of its discretion in issuing said writ of preliminary injunction. In this connection, it should b~ considered that the Provincial Board of Rizal nllcges that the totnl cost of bridge plus 4% interest per annum had bP.en recovered with excess from the tolls already collected and the.t the period of fifteen years from the opening of the bridge had elapsed since the year 1945. However, the petitioners raise the tcc~nical po:nt that it is r.ot within the authority of the defendant officers to order the disc:mtinuencP of the collectit.m of tolls but only to ccrti!y to tht: <G~v ernor-Generall President of the Philippines that the cost of tha bridge plus 4% intere~t had already been recovered. In the first place, more than fifteen years h:!d elapse:i since the opening C'I! the bridge and this fact does not require any .certification In th<> sPcond place. thr above-mt'ntioned board hes fail<'d to comply with its ministeriRI duty to certify to thl' President t;he fact that the cost of the bridge plus 4% interest per annum has been recovered with excess, a fact which is asserted by the Provincial Board o:f Rizal and not seriously denied by any party. '£he al!egn!ion of the defendants (petitioners here:n>. in their an.<,iwer that the money borrC'lwed :from the Agricultural and Industr'.al Bank to construct the bridge, has not been fully puid, if true, is immaterial, fot it would not be the fault of the plamtiff Isidro that. the toll collections had not been turned over to the said bank or its successor, ·in payment of the alleged debt. It would appear, therefore, from !he allegations in the pleadings that the iespC'lndent Judge did not exc:ed his jurisdiction nr abuse his discretion in issuing the writ of injunction above-mentio!'led. Without prejudice tQ the holding of the trial on the merits in the court bcfow and the rendition of final judgment by it, the petition for the writ of :tc"rtiorari is hereby denied without costs . It is so ordered. Pams, Pablo, Brn.g::on, Padi'la, Titason. ,'f.fo-ntcma11or: Rt11c.q; Bautista Angelv and Labrad,,, J.J., cor:cur. x Catalina de los Santos, Plaintif/-A ppeUee, vs. Romtin Catholic Cfiurch of Midsayap et uls., Dt!fn1du.,1ts-Appdlu1,t~. G. R. No. L .C058, F,.h_ ruary 25, 1954. 1. PUBLIC LAND; SALE 01•' LAND COVERED BY A HOMESTEAD PATENT BEPORE THE EXPIRATION OF FIVE YEARS FRUM THE DATE OF ISSUANCE OF PATENT; ITS NULLITY. - Whcte a land covered by a homestead patent is sold before the expiration of five years from the date of th~ issuance of the patent such sale is null and void . 2. IBID; IBID; APPROVAL OF THE SALE BY THE SECRETARY OF AGRICULTURE AND NATURAL RESOURCES; REGISTRATION OF THE DEED OF SALE. - The t:pprov::i.1 of such salo! by the Secretary of Agriculture and Natural Resources does not validate it although the approval w:is obtamed more than ten years from the date of the jssuance of the patent, nor the fact that the deed of sale was registered in the offic.:: of the Re~istcr of Deeds also more than ten years after thu issuance of the patent. The 2.p;iroval of the S ~crehry of Agriculture an.i Natural Resnurces regard:ng the sale of land covered by a homestead paten-; is me1·ely a forma'.ity which the law requires if the sale is effected after the term ')f five years but before the expiration of a period of 25 yea.rs for th'2 purp..>s~ of testing the validity of tht: sale on constituti::mal ground:!!. But, as ruled by the Supreme Court, the absence of such formality will not render the transaction null and voi~ . S. IBID; ~!ANDATORY CHAR.\CTER OF THE LAW. - The provision of the law which pl'ohitits the sale or incumbrance of the homestead within five years after the grant of the p1tent is ma.ndatory aml cannot be obviated even if official approval fa granted beyond the expiration of that period, because the purposJ of the law is to promote a definite public policy, whicit is "to preserve and kePp in the family of the homesteader that portion of public land which the State has gratuitously given to him." <Pascua v. Talcns, 45 0. G., No. 9. CSupplemen~> 413.l 4. IBID; PURPOSE OF TH'E SALE IS IMMATEJUAL. - The claim t-hat the sa.1e 'Jf land covered by a hllmestead patent which was sold before the expiratio!'l of five ye:i.rs afhr the is3u:i.11ce of the patent can be validated because it was made for the purpose of IJeinl? dedicated solely b educational and charita.ble pm· .. poses is unmeritorious. &. IBID; SECTION 121 OF COMMONWEALTH ACT NO. 141 CONSTRUED. - It is true that under section 121, Commt·nwealth Act No. 141, a corpora;:ion, as:o:btion, or p:.:rtnership may acquire any land granted as homestead if the sale is dc,ne w;th the consent of the grantee and the approval of the Secre~ary of Agriculture and ~atural Resources and is solely for ~ommer cial. industrial. educational, reliiious, or charitahle purposes, or for a right of way, and apparently there is no limitation therein as to the timP within which such acquisition may be made. D.it this p1'flvision flhould be interprete.d as a me1·£ &.uthority granted to a corpo1·ation, c.ssociation or partnership to acquire a p:ntion ol public land and not as an unbridled license to acquire without restriction for such would be givinl? an advantage to an l'nUv over P.n individual which fi11ds no kgal justification. It is nur opinion that the authority gra=-ited by section 121 should be interpreted as subjert to th£' condition prescribed in section 118, namely, that the acquiflition should be after the period of five years from the date of the issuance of the p:i.tent. 6. IBID; PRINCIPLE OF PAnI LIELICTO NOT ABSOLUTE. - Where the principle uf pari ddicf.o is invoked by the d_fendantl because the :iomPsteaderl'l ,:;old the la!ld bef~re the cxpiratiC'ln of five years after the issuan::e of tl:e patent the .said pr.nc:rilc may not be invoked in this ca;;i<' ro:is:derir.g the philosophy and the policy behind the approval of the Public Land Act. The principle underlying pari delicto as known t.ere a..'ld in the Uni:ecl States is not absolute in its appliration. It. recognizes certain exceptions one of them being when its enfo1·cement. or appJ:cation runs counter to an avowed fundamental i::oJ:cy or tn pub.i<" interest. Ao stated by us in the Rellosa case, "This doctrinn is subject to one important limitation, namely, 'whenev~r public policy is considered advanced by <!.llowini:r either party to ,;ue ~or relief against the transaction." lRcl!osa v. Gaw Chee H . .m. y" R. R. No. t ... 1411.> 7. IBID: PRINCIPLE OF PARI DELICTO NOT APPLICABLE TO THE CASE AT BAR. - Ordinarily the pri1iciple of pari delictu would apply to the appt.lke who des:irP.s tll n'..lllify a tr~n saction which was done in violation of the law because the predecessor-in-interest has ca.rried out the sale w'.th the presunt<·d knowledge of its illegality 03 Manresa 4th ed ., pp. 717-718>. but because the subject of the transaction is a piece of public land, public policy requires that she, as heir, be not prevented from re-acquiring it because it was gi\·en by law to her family for h<"r home and cultivation . This is the policy on which our hcmestead law is p1·edm:.ted lPascual v. Talens, supra). This right <'annot be waived. "It is not within the competence of any c:tizen tn hurter away what public policy by law seeks to pr~ s~rve" <Gonzalo Puyat and Sons, Inc. v. Pantaleon de las Arna, ct al .• 74 Phil.,3>. DECISION BAUTISTA ANGELO, J.: On December 9, 1938, a homestead patent covering a trP-C't of land situated in the municipality of Mids:iyap, province of CC'lt~ bato, was granted to Julio Sarabillo and on March 17, 1939, Or:gin~I Certificate of Title No. RP-269 (1670 wa.s issued in his favor. On December 31, 1040. Julio S:ir.:-.billo £o·d tw;i hectares of iaid land to the Roman Catholic Church of hi:dsayap for the ;;um of PSOO to be dedicated to educational and chari'.able p'.lrp:>soi. It was expressly ag1·eed upon that the scle was subject to the LAWYERS J01JRNAL April 30, 1:)54 approval of the Secretary of Agriculture and Natural ResouuP.11. ln December, 1947, a request for said approval was submitted Jn behalf of the Roman Catholic Church by Rev. Fr. Gerard Mongeau stating therein that the land would be used sol~ly for educational and charitable purposes. The sale was approved un Mai..:h 26, 1949, and on March 29, 1950, thP. deed of sale was registered In the Office of the Register of Deeds for the provinc·? of Cotabato. No new title was issued in favor of the Roman Catholic Church nJ_ though the deed was annotated on the back of the title issued to the homesteader. In the meantime, Julio Sarabillo died and intestate proceedings v.•ere instituted for the settlt>ment of his estate and Catalina de Jos S2.lltos was appointed administratrix of the estate. And havin.t? found in the course of her administration that the sale of the land to the Roman Catholic Church was me.de in violation of section 118 of Commonwealth Act No. 141, the administratrix it'lstituted thP. present action in the Court of First Instance of C9tabato praying that the sale be declared null a.nd void and of no legal effect. In !heir answer defendants claim that. the sale is !~gal nnd valid It having been PxP.cuted for educational and charihtble p1;rpn!>es and approved hr the Secretary oI Agriculture and Natural Resources. They further claim that, even if it be declared null and void, its immediate effe<'t would Le not the return of the land tn appellee but the reversion of the propertr to the State ·as ordain<:d by law. Defendants also set up ns a de.fensf! the doctrine of puri delicto. As a preliminary step, the court, upon petition of counsel for defendants, directed the clerk of ~ourt, assisted by a represeni'.ltive uf both parties, to appraise the value of the improvements existing on the controverted land and to submit to the court a report of his findirigs. This was done, the clerk of court reporting that the value of the improvements was P601. After the parties had submitted the case on the pleadings, in c.ddition to the report of the clerk of court as to the value of the improvements existing on the land, tht: court rendered decision declaring the sal"' m;.11 and void and 01-dering the plaintiff to reimburso to the defendants the sum of !"800 which was paid as purch!lso price, plus the additional sum of POOl as value of the improvements, both sums to bear ·interest at 6 per cent per annum from the dat<> of the complaint, and ordering defendants to vacate the land in < luestion. Dissatisfied with this decision, the case was taken to the Court of Appeals but it was later certified to this Court on the ground that the appeal merely involves questions of law. It appears that the patent covering the tract of land wh:ch ir:cludcs tho:- portion now disputed in this appeal was issued to the hte Julio Sarabillo on December 9, 1938, and the sale of the pcrti.>n of two hectares to the Roman Catholic Church took place on December 31, 1940. This shows that the sale wa~ made Lefort' the expiration of the period of five years from thC> date of the issuance of the patent and as such is null and ' 'oid it being in contravention of section 118 of Commonwealth Act No. 141. The fact that it was expressly stipulated in the deed 'of sale that it was subject to the approval of tll'.e Secretary of Agriculture and Natural Il<'w s::m.rce3 anrl the ~pproval was sought and obtained en March 26, 1949, or more than ten years after the date of the issuance of the patent, or the fact that the deed of sale waf! registered in the office of the Register of Deeds only on March 20, 1930 and was annotntt>d on the back of the title on that date, cannot have the effect of validating the sale for the reason that the approval of the St!cretary of Agriculture and Natural Resources does not have any valid curative effect. That approval is merely a formality which the law l't!Cluires if the sale is effected after the term of five years but before the expiration of a period o! 25 yeau for the purposi:: of tcstin~ the v&lidity of the sale on constitutional grounds. But, as was ruled Ly this Court, the absence of such formal ity will not render the- transaction null and void <Evangelista v, Montano, G. R. No. L-55fi7). What is important is the period within which the sat.? is executed . The provision of the law which prohibits the sale or encumbrance of the homestead within five years after the grant of the pat~nt is mandat1Jry. This can.not be obviated even if official approval is granted beyond the expiration of that period, because the purposP ot thf: kw i.~ to promote a definite public policy, which is "to pr('. serve and keep in the family of the homesteader that portion ot public b,nd which the_ State has gratuitously given to him." <Pascua v. Talcns, 45 0. G., No. 9, <Supplement) 413.) The claim that. the sale can be validated because it was mado with the avowed aim that the property would be dedicated solt>fy to educational and charitable purposes is lik~wise unmeritorious even C(lnsidering the law invoked by counsel for appellants in favor of its validity. It is true that under section 121, Comm~nwenlth Act No. 141, a .'.'orporation,. ass()('.iation, or partnership may acquire any land granted as hc.niestead if the sale is done with the con~ent of the grantee and the approval of the Secretary of Agricultur<· and N:.:.tural Resources and is solely ror commercial, industrial, cdticational, religious, or charitable pur11oses, or fer a right of way, and apparently thc:re is no limitation thereiu as to the time within which l.ueh acCJ,uisition may be made. But. this provision should be int~r preted as n mere authority grnntcd to a corporation, associ:l.tion or partnership to acquire a portion of the public land and tiot as an unbridled license to acquire without restriction for such w.Juld be giviug an advantage to an entity O\'er nn individual which fmds no legal justification. It is our opinion that. the authority granted by section 121 should be interpreted e.s subject to the condition pres.. cribcd in section 118, namely, that the acquisition should bE: after the period r1f five years from the date of the issuance of the patent. But appelJants now cpntend that even iC it be dec!arcd that the sule made to them by the homesteader is null and void yet its immediate effect would be not the return of the land to appcllee but rather its reversion to the State wherein the Government is the interested party. <Sction 124 of the Public Land Act). Appellants further claim that the present action cannot be maintained b)' the appellee undet· the principle of pari delicto. The principles thus invoked by appellants are corrt!ct and cannot bo disputed. They are recognized not only by our law but by our jurisprudence. Section 124 of the Public Land Act indeed provides that any acquisition, conveyance or tt·ansfer executed in violati'on of any o! its provisions shall be null and void and shall produce the effect of annullini' and cancelling the grant or patent and cause the reversion or the property to the State, and the principle of pari delictn has been applied by this Court in a number of cases , wherein the parties to a transaction have pl'Oven to be guilty of having effectt'd the transaction with knowledge of the cause of it.i invalidity . <Bou.irh and Bough v. Cantiveros and Hanopol, 40 Phil., 210, 216; Rellosa v. Gaw Chee Hun, G. R. No. L-1411; Trinidad Gonzaga de Cab:matan v. Uy Hoo, et al., G. R. No. --2207; Caoile v. Yu Chiao Pen~. G. R. No. L-4068; Talcnto. et al. v. Makiki. ei al.. G. R. No. L-3529.) But we doubt if these principles can now be invoked considering the philosophy and the policy behind the approval of tht> Public Land Act. The principle underlying pari delicto as known here and in the Un:tcd States is not abso.utc in its application. It recognizes certain exceptions one of them being when its enforcement or application runs count.er to an avowed fundamental policy or to public intel'est. As stated by us in the Rellosa case. "'This doctrine is subject to one important limitation, namely, 'whenc·;er public policy is considered advanced by allowing either pa!tY to sue for relief against the .transaction.'" <Rellosa v. Gaw Chea Hun, G. R. No. L-1411.> The case under consideration comes within the exception ab: ws o.dvei·ted to. Herc appellee desires to nullify a transaction which wa,; dom•. in violation of the Jaw. Ordinarily the principle of pari <itlictu would apply to her because her predecessor-in-interest has carried out the sale with the presumed knowledge of its illegality (ti Ma.nrcsa 4th ed., pp. 717-718>, but because the subject of the transaction is a piece of public land, public policy requires that ehe. as heir, be not prevented from re-acquiring it becaus.;! it was given by Jaw to her family for her home and cultivation. This is the policy on which our homestead law is predicated <Pascua v. Talens, i.-upra). This right cannot be waived . "It is not within the com. petence of any citizen to barter away what public policy by Jaw t>cekl'I to preserve" <Gonzalo Puyat anrl Son:;, Inc. v. Pantaleon de las Arna, et al., 74 Phil., 3). We are, therefore, constrained to hold that nppellee can maintain the present action it being in fu1·therance of this fundamental aim of our homestead law. As regards the contention that because the immediate effect of (Continued on page 202> April 30, 1954 LAWYERS . JOURNAL OPINIONS OF THE SECRETARY OF JUSTICE (On the question as to whether or not the Director of Put.lie chools may authoriztJ publir 11or.nal schtm'.s to grant the Degree of Bachelor of Scie11ce in Educutio11, and issae the cor1·esponding diploma~~A degree is any academic rank recognized by colleges and universities having a reputable character as institutions of learning, or any form of expression indicative of ac11demic rank so as to convey to the ordinary mind the idea of some collegiate. university or scholastic distinction, whil~ a diploma is the written o;. print{:d evidence indorsed by the proper authorities that the person named thereon has completed a prescribed cnursc of study in the £chool or institution named therein. The power to confer degrees and issue diplomas may exist either by express provision of statute or \.Jy necessary implicati11n. OPINION NO. 11, 1954 3rd Indorsement Jan. 21, 1954 Respectfully returned to the Director of PubJ:c Sc1100IS, Manila Opinion is requested as to whether or not the Director llf Public Schools may authorize public normal schools to grant the Degree of Bachelor of Science in Education, major in Elr:mentary Education, and issue the corresponding diplomas. · lt appears that the Director of Public Schools, with the arr·roval of the Secretary of Education, issued Circular No. 10, !!. 1952, authorizing certain normal schools to offer an elementary teacher curriculum on the four-year collegiate level IM:g:nning J uly 1, 1952. This curriculum allegedly fulfills all the acadEmic requirements necessary for the degree of :Rachelor of Science in Education with Elementary Education Maj.Jr and is similar to the curriculum in duly recognized colleges and universities here an1 abroad. A degree is any aca.demic rank recognized by colleges :inrl universities having a· reputable character as institutions of learning, or any fo1m of expression indicative of academic rank so as to convey to the ordinary mind the idea of EOme collegiate, university or scholastic distinction Cl4 C.J.S. 1337>, while a diploma. iii the written or printed evidence indorsed by the proper authorit'.es that the person named thereon has comple~d a prescribed course of study in the school or institution named therein <Valentine v. Independent School District of Casey et al., 183 N.S. 4341. The pcwer to confer degrees and issue diplomas may exist either by c-xpress provision of statute or by necessary implication Cl4 C.J.S. 1337, citing State 12x. inf. Otto v. St. Louis College of Physiciar.s: & Surgeons, 295 S.W. 537, 317 No. 49; Collins v. 1''amry, 126 A. 538, 100 N.J.L. 170>. In Valentin v. I ndepencfont School Dist. of C&.sey, et al., supr<t, it was held that a school b:la1·d which prC'S· cribed a course of study approved by ihe department of public instruction, so the high school became an apprcved or accredited one, is, although not so required, by implication bound to issue diplomas to those pupils sati3factorily completing the prescribed course who were otherwise qualified. Assumin~, therefore, tha.t Circular No. 10, s. l!Hi2, of the Director of Puhlic Schools is valid, the foregoing princ:ple would sns. tain the conclusion that public normal schools offering elementaryteacher curriculum on the four-year collegiate level pursuant to the said circular are by implication authorized to ~rant the Degree of Bachelor of Science in Educatio:i, Major in Elementary F.du. cation and issue the cOJ-responding diploma to students satisfactorily completing the academic requirements necessary for that pa:ticul.:lr course. The question thus hinges on whether the above-mentione..! circular of the Director of Public Schools is valid and aulhorized. From the tenor of the preceding indorsement, the said eirculi>r appears to have been issued pursuant to Section 910 <i and d> of the .Revised Administrative Code, which authorizes the Director of Public Schools to ma.intain cladses for superior instruction to teach. crs and to fix the curriculuum of all public schools under his juris.. diction, However, in a previous opinion rend{'red for the Secretary of Education, Mr. J ustice Ozaeta, then Secretary of Justice, ruled that Section 910 of the Revised Administrative Code which enumerates the powers and duties o[ the Director of Public Schools, does not include that of establishing collegiate and profossional courses, and that a specia.1 law is necesdary before such courses may be established in any of the iichool divisions undP-r the Burnau of Public Schools. <See Op., Sec. of Justiee, No. 175, s. 1947.) The four.year course lead.ing to the dC'gree of Bachdor of Science in Education with Elementary Education Major is no doubt a collegiate or professional course which, as above hl"ld, the Director of Public Schools cannot establish in any of the school divisions falling under hi::i bureau unless authorized by specific provi<:ion of law. This rule was impliedly recognized and given legislafr1e sunction when the former Philippine Normal School, origin2!ly established under Act No. 74 and thereunder authorized to ofitr only the two-year general and three-year combined curricula, was, by epeda.I congressional act, converted into the present Philippine Norn:al College with specific authority to llffer a four-ye::.r and a fivPycar courses leading to the degrees of Bachelor of Science in Elem~n tary Education and Master of Arts in Education, respectively, and to confer the corresponding degrees to successful candidates for graduation. <Rep. Act No. 416, as t..mended by Rep. Act No. 921.> In the instant case, however, no legal provision other than s~tion 910 of the Revised Administrative Code has been cited, and neith~r is the undersigned aware of any, upon which the authority of thP Director llf Public School11 in issuing the circular in question could be based. - In Yi('W of the foregoing, this Office is led to conclude that Circular No. 10, s. 1952, of the Director of Public Schools is null and void as having been issued without legal authority. Accordingly, the query is answered in the negative. Sgd PEDRO TUASON Secretary of Justice /,h, qu.,tion ., to wh::h., or not th• National Plannfog Commission can prescribe penaJties fO'I' the violation of its p!anning ...-epulation.1). Once the National Planning Commission has promulgated the plans, zoning ordinances, 2.lld subdivision regulation8 it is authorized to adopt by the law of its creation, its authority u:r.der its charter is exhausted, and any attempt by the Commis~ion t:> impose penalties for violations of the said regulations would be a clear case of unwarranted exercise of e.n undelegated and nondelcgablc power. OPINION NO. 13, 1954. The Chairman National Planning Commission P. 0. Box 117 l\J an i I a S i r : January 23. 195'1 This is in reply to your !etter of the 6th instant requesting for au opinion as to whether the National Planning Commission could rrescribe penalties for violations of its planning regulations adopted and promulgated in accordnnce with Executive Order No. 98, sel'ie9 of 1946. The National Planning Commission <NPC> was created by Executive Order No. 367 dated November 11, 1950, a.nd assumed &11 th.: powers, duties and functions theretofore exercised by the Cefunct National Urban Planning Commiss'.on <NUPC>. the Capitzl City Pla.nning Commission <CCPC), and the Real Property Board <RPBl . 'fhe functions of the NUPC, as defined in Exr<'.utive 0l'der No. 98, snies of 1946, and now exercised by the NPC by virtue of Executive Order No. 367, series of 1950, are the preparation and promulgation of genera.I plans, zoning ordinances and subdivision regulations for the physical development of urban areas. The penal sanction for violations of regulations issued by the NUPC is prescribed in Section 18 of Executive Order No. 98, series' of 1940, which reads as follows: "Any willful violation of any resolution, regulation or 196 LAWYERS JOURNAL Aprfl 30, 1954 General Plan which is in effect in accordance with this Order shall be punished by imprisonment not exceeding six months or a fine of not exceeding P500, or both such imprisonment s.nd fine in the discretion of the court." The above provision is neither modified nor abrogated by Exe.. cutive Order No. 367, series of 1950, sincP the lntter expressly repeals only such provisions of Executive Order No. 98, series of 1946, Republic Act No. 333, and of nil other acts, executive ordel's and administrative orders as are inconsistent therewith. <Sec. 10 Ex. Order No. 367, series of 1950). The validity of the above..quoted provision is not in issue; h<'nce, no inquiry will be made into its legality. Besides, thi.t Office is not competent to declare invalid any law or presidential executive order. The undersigned, however, notes in passing that in its decision in ·the case of U:1iversity of the East vs. The City o{ Manila, Civil Case No. 20850, the Court of First Instance of Manila made some remsrks expressing doubts that Executive Orde!" No. 98, series of 1946, is still in force. It would seem that the present request for legal opinion has been prompted by the afore. said decision n.nd the National Planning Commission proposes to provide a penalty for Yiolations of itS" regulations independently of the penal p1·ovision contained in Section 13 of Executive Ord<!r N'o. 98, series of 1946. It is a settled rule of law that administrative authoritiea may be empowered to enact rules and regulations having the force and effect of Jaw, but any criminal or penal sanctkn for the violfltion of such rules and regulations must come from the legiSJa. ture itself C42 Am. Jur. Sec. 50, ft. 35S). Prescribing of penalties is s legislative function <State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 S. 969, 32 LRA <NS> 639), and a commission may not be empowered to impose? penalties for violations of duties which it creates under a statute permitting it to mal(e rules <H:u~ bcr Commr.S. v. Excelsior Redwood Co., 88 Cal. 491, 26 p. 375; Ex parte Leslie, 87 Tex. Crim. Rep. 476, 223 SW 227). Acccrdingly, it has been held that the legislature cannot delegate to an administrative board the authority to fix the penalty for a violatir•n CJf orders or regulBtions which ~he legislature authorized the boarrl tc make. The penalty must be fixed by the legislature itself. <Howard v. State, 154 Ark. 4!30, 242 SW 818; State v. Atlantic Coast Line R. Co ., 56 Fla. 617, 47 S. 969; Zuber v. Southern R. Co. , 9 Ga. App. 539, 71 SE 9371. If the power to provide? pcnaltle'..~ for violations of rules and regulations may not be validly delegated to au administrative body, much less can such an administra~ tive body by itself initiate penal sanctions. <U.S . v. Brimam.I, .1220 US 506, 55 Led 563, 31 S. Ct. 480; Re Kollock, 165 US 526, 41Led8fa, 17 S. Ct. 444; U.S. v. Eaton.144 US 677, 36 Led 591; Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 S. 523). It follows that once the National Planning Commission has promulgated the plans, zoning ordinances, and subdivision regula4 tions it is authorized to adopt by the law of its creation, its authority under its charter is exhausted, and any attempt by the Commission to impose penalties for violations of the said regulations would be a clear case of unwarrantetl exercise of an undelegated and non~de.legable power. The query is therefore answered in the negative. Respectfully, <Sgd.) PEDRO TUASON Secretary of Justice / Ill . /on the question as t r> 11:hethBr or not the Uni1,crsit11 of the Philippines may be considered a part of the government of the l'hilippines as that term is u.~ed in Section 624 of the llevised Administrative Codt). For the purpose of Section 624 of the Revised Administrative Code the University of the Philippines may be regarded as a part of the government so that debts due it may be cvllected in the manner provided in said section . OPINION NO . 14, 1954 5th Indorsement Jan. 22, 1954 Respectfully returned to the Honorable, the Auditor General, Manila. Opinion is requested on whether or not the salary of Mrs. Bonita B. Sotto, nn employee of the Bureau of Public Works ma.!' l>c withheld and applied to the outstanding loan account with the Student Loan Board, University of the Philippines, of Miss Beatriz Garcia, for whom said Mrs. Sotto bound herself as co-debtor, p~r suant to Section 624 of the Revised Administrative Code which reads: ''SEC. 624. Retentio~ of saJ.ary for satisfaction of indebt... edness to Government. - When any person is indebted to the Government of the Philippines, the Auditor General may direct the proper officer to withhold the payment of any money due him or his estate, the same to be applied in satisfaction of such indebtedness." The question boils down to the nature of the University of the Philippines, i.e., whether it may be conside:ed a p~rt of the Government of the Philippines as that term ts used m the above-quoted section. No established ruling ha.s so far been laid down as t:o whether or not the University of the Philippines may be considered a part of the Gcvernment for all purposes. In an opinion :~nd:red by this Office, it was held that the University of the Ph1hppmcs did not come under the term "Philippine Government" as d:fined in Section 2 of the Re"ltised Administrative Code e.nd is therefore not embraced within th9 scope of that term '.1.!I used in Section 8 of the Copyright Law. It was stated that altho said University was created by an act of the PhilippinE: Legi~ Iature as a public corporation maintained at public expense,. it was not created for political purposes and is not invested with political powers. <Op., Sec. of Jus., No. 11, S. 1940.) Howeve_r, in another opinion, this Department held that employment m the same university may be considered employment in the gov. nnment ,;ithin the meaning of Section 16, Article VI, o~ tl~P Constitution of the Philippines, because it is a government msbtution existing f?r the purpose of effectuating a function imposed upon the government by SP.ction 5, Article XIV, of the Constitution of the Philippines, that of providing advanced education in the arts and sciences. <Op., Sec. of Jus. dated November 26, 1946.) This seeming inconsistency is, nevertheless, e~ plained by the ruling of this Offic£>: that government-owned corporations may properly be treated as part of the governm('nt ~or one purpose and as independent entity for another, depending upon the object of the provision of law being applied. <Ops., Sec. of Jus., No. 849, S. 1940; No. 159, S. 1952; No. 28, S. 1953; s.nd No. 208, S. 1953> . Section 624 of the Revised Administrative Code, abow-quoted, was evidently aimed at safegu3rding the interest of the gove1't14 ment by ensuri~g the collection of debts due it. The University of the Philippines was created by Act No. 1870 and all moneys appropriated or donated for its operation and maintenance are public funds. Like any government office, its accounts ar.d expcnsea are required to be audited by the Auditor-General, and the Treasurer of the Philippines is its ex-afficio Treasurer. . My opinion is that for purpose of SE-ction 624 of the Revised Administrative Code the University of the Philippines :nay be regarded as a part of the Government so that debts due it may be collected in the manner · provided in said section. IV Sgd. PEDRO TUASCN Secretary of Justice On the retiremtnt gratuity of provincial, municipal and city officera. and employees). The l"etirerr.rnt gratuity prcvided for in the law may be demanded only if the claimant is retired or separated from the servicC as a result of the reorganization of the office to which he belongs. OPINION NO. 16, 1954 2nd Indorsement Jan. 27, 1954 Respectfully returned to the Honora.bte'., the Executive Secretary, Manila. Qpininn is requested as to whether or not Mr. Pascual AgApril 30, 1954. LAWYERS JOURNAL 197 caoili, road maintenance capataz in the Office of the Eni;rinecr of !locos Nrn1:t", may be retired with gratuity under Act No. 41S3. The following facts appear inr.ontrovertible:- That Mr. P:?.S . cual Agcaoili was the Justice of the Peace of Piddig, llocos Norte, from 1900 to 1902; Clerk, Office of the Governor from 1903 W H.105; Municipal Treasurer of val'ious municipalities from 1905 to 1919; Capatas in various capacities from Hl34 to 1941; and Road Maintenance Capataz from 1946 to the present. It also appea!'s that in 1941 he applied for retirement under Act No. 4183 but no action was taken thereon by reason of the war. In Hl46 ht" renewed his application which wa.s favorably recomended by th~ District Eui"ineer who also certified that the position of Mr. Ag4 coaili will be abolished as soon as he is retired and its functions absorbed by another Maintenance Capataz. The PrJvincial Board oi Ilocos Norte approved the said retirement a.nd granted him a gratuity e<JUivalent to 24 months salary. Act No. 4183 is still enforce insofar as Mr. Agcaoili is concerned becau~c. he has not become a member of the Government Service Insurance Systc.m. (See Sec. 28, Rep. Act No. 660). Section 1 of Act No. 4133, as amended, expressly provide'! a11 follows: "In order to grant a gratuity to provincial, municipal and city officers and employees who resign or are separated frcin the service by reason of a reorganization thereof, the provincial boards, municipal and city boards or councils may, with the approval of the Secretary of the Interior, retire their officers a.nd employees, granting them, in consideration of satiafac!ory service rendered, a gratuity of one month's snlary for each year or fr.e.ction of a year of service but not to exceed twent)•four mm1ths in any case on the basis of the salary they receive at the time of leaving the service, to be paid month!)'· at the rate of thirty-three percentum of the monthly salary!' Construing the ab'Jve-quoted provision, this Department has consistently ruled that the retirement gratuity provided for ther!l .. in may be d.~manded only if the claimant is retirer:I or separated fr'Jm the service as a· result of the reorganiz!!.lion of t.he Office to which he belongs. Thus, commenting on the application of A-.:-t No. 4183 as amendcri by Cvmmonwo1alth Act NIJ. 623, in connection with the propoi::ed retirf'ment of Mr. Sisenar.do Ferriola, AJminis.. trntive Deputy in the Office of the Provincial Treasurer of natangas, this Department i·ecommentled that no provincial, municipal, or city officer or employee could he retired with gratuity under said Act unless his retirement or separation from the service arose frcm ~r be~·ame necessary by reason of a reo!"gar.ization of the service. COp. Sec. of Justice <lated October 16, 1946). Again, in thfl: cn!'>e of !\Ir. Coi·nelio Revilla, a former laborer in the Department of Engii~eering and Public \Vork.;:, City of Manila, this Office has held that having been separated from the service by reason of his death and not by rea!Oon of the reorganizati ... n of the City of Manila, hi: was not entitled to the retirement gratuity provided for under Act No. 4188. (Opinion Sec. of Juet.. ice No. 105, s. 1946>. Upon the other hand, the case of Mr. Petronilo Repia, a laborer in the Engineering Department of the City of M:rnila who was arrested and confined in the San Lazaro Hospital as leper &uspcct and given an indefinite leave of absence from his work bu~ whose item was later on abolished in the Appropriation Ordinance of the City of Manila, was held to be fully within the purview witn gre.tuity under said Act. COpinion Sec. of Justice No. 46, s. 1939>. It may be stat~d, in this connection, that Act " No. 4270 is identical with Act No. 4183 in that both Acts authorize the grant of retir<'ment gratuity to officials and employees who have resigned or bef'n separated from the service by reason of the reorganization of the Office to which they belong. Lately, tl;te Supreme Court, in the case of Cornelio Antiquerz vs. Hon. Sotero 13<1.luyot, Secretary of the Iriter:or, G. R. L-3318, promulgated on May 5, 1952, ruled that "the simple retirement provided by Act No. 4183, in order that a municipal officer or employee may be retired thereunder, is that he be 8'.!p!lrat;Pd from the. service by reason of a reorganization," and that "the importnnt and decisive fact, in order that a municipnl officer or emr,Joyee may come under Act No. 4183, is that his position or item be abolished." Thus, it can be gathP.red from all the foregoing cases that, the right to retirement gratuity provided for in Act No. 4183 as well as in Act No. 4270 Cfor the City of Manila), c::m be t.vailcJ of only when the position of the officer or employee conrerncrl has been abolished, either by virtue of a reor~;iization of the Office, or merely eliminated in the appropriat:on law for the s:ike of economy. Neither death of the employee, his long service, nor old age would satisfy the requirement of Act No. 4183 so as to entitle him to the benefits thereof. True indeed that Mr. Agcaoili's position has not been abolished but, upon his retirement, the authorities concerned nre committed to its abolition and the transfer rif its fu!'l.ctions to other maintenMce capataces whose secti·::-ns ~re adjacent to that of Mr. Agcaoili's. This is a substantial compliance with the requirement of section 1 of Act No. 4183, as amended. It is believed that, for purposes of the retirement gratuity provided in Act No. 4183, there is no substantial difference between abolishing an employee's position first and retiring him the1·eafter, and retiring him first and thereafter abolishing his po~ition. The requirements of the law are complied with and its purpose equally attained in both instan. ces. Besides, Act No. 4183 is a gratuity law and should be liberally .constru~d in favor of the employee to better accomplish its purp_ ose. In view of the forP.going, the undersigned ts of the opinion that Mr. Pascual Agcaoili may be retired with gratuity under t!le provisions of Act No. 4183, as amended, provided that his posit.ion is abolished immediately after his retirement. v Sgd. PEDRO TUASON Secretary of Justice ( the question. as to whetl!er or not the monev value of th6 eaves cm-ned by a justice of the Court of ApPcals may be •paid out of savings on the appropriations for the inferior courts, 1rursuan.t to Section 6(8) of Republic Act No. 906>. OPINION NO. 37, 1954 6th Indo:·sement Mar. 1, 1:154 Respectfully returned to the Honorable, the Acting C.:ommis~ sioner of the Budget, Manila. It appeal's that Justice Maria.no de la. Rosa was, upon reaching the age of 70 years on September 23, 1953, retired as As.o;ociate Justice of the Court of Appeals un~l'.?r Republic Act No. 910. At tha timl'.? of his retirement, liC' had to his credit leave amounting to 7 months and 26 days. Because of lack of funds in the Court of Appeals for the payment of the money value of said lezve, the Presiding Justice of the Court of Appeals requested that the President authorize the use of salary savings in th'!l executive departments for the purpose. The General Aud'.ting Office disallowed said request, on the ground that Section 6<8l of Republic Act No. 906 allows the use of savings in the executive departments for the payment of commuted leaves only when the employee retires under Republic Act No. 660, but allowed the payment of said leave out of Justice de la Rosa's salary item. Meanwhile, the President had appointt!d Judge Potenciar:o Pee.son as Associate Justice, vice Justice de la Rosa, and the for . mer assumed office on November 5, 1953. Because of the ur;e of the salary item, as above-st?.ted, n.nd because said Colirt dues not have any savings in its appropriations for salaril:s and wage!'>, Justice Pecson has not been paid his salary from the time he assumed office. For his salary up to June 30, 195-l. the C'>urt er Appeals nCed:i about rs,000.00. It has- therefore been proposed that the salary savings of rs_ ooo.oo in the· inferior courts be transfei·red to the Court of Appf'als to ?ffset the payment made to Justice de la Rofla for his tl)rminal leave, thus making availeblc the appropriation for the item occupied by Justice P€cson (Continued on page 211) 198 LA \YYERS .JOURNAh April 30, 10:i4 REPUBLIC ACTS REPUBLIC ACT NO. 928 AN ACT TO AMEND SUBSECTION "C" OF SECTION ONE HUNDRED AND FOURTEEN OF ACT NUBERED FOUR HUNDRED AND NINETY-SlX, ENTITLED "1'HE LAND RF:GISTRATION ACT" AS AMENDED BY REPUBLIC ACT NUMBERED ONE HUNDRED AND SEVENTEEN. Be it e1111Cttd by the Senatt. and 1/011se of Representatives of the Philippines in Co1lg1'ess assembltd: SECTIO~ 1. Subsection "C" of section one hundred and fourteen of Act Numbered Four hundred and ninety-six, entitl~d "Thr! Land Registration Act", as amended by Republic Act Numbered One hundred and seventeen, is hereby further amended to read as follows: "C. Fees payable to the Register of Deeds.-The regi:;tc.:r of deeds shall collect fees for all service~ rendered by him under this Act in accordance with the following schedule: "l. For the entry of one original certificate of title, and isi.uing :me owner's duplicate> certificate, eight pesos for ~he first parcel of land d ... scribed tht'reon, and 011e peso for each additivnnl paicel: Prot;ided, h01.nver, That in case of certificates of title unde:the Cad:istrat Act, the fees for entering one original certificate of title and issuing the owner's dupli:::ite thereof, when the · total cur. rent assessed value of the Jots included therein does not exceed s•.!v"'n hundred pesos, and irrespective of the number of imch lots, shalt be one pt:so for every one hundred pesos or fractional pert there_ of. "2. For each entry in the primary entry book, one peso. "3. For the annotation of an attachment levy, writ of execution, or adverse claim, three pesos for the fi rst parcel of land affected thereby, and two pesos for each additional parcel. If the total assessed value of the land and improvements exceeds six thousand pesos, there shall be collected an additional fee equivalent to tom per centmn :1f the fees under paragraph sixteen of this sllbsection computed on the basis of .<>aid assessed value, "4. For the annotation ,,f a notice of !is pendens, or of any docwnent or order in connection therewith, for each parcel of la.nd afCected thereby, two pesos. "5. For the annotation of a release of any encumbrance, '!X· cept mortgaJ;::I!, lease, or other lien for the cancellation of which a specific fee is prescribed herein, for each parcel of land so released, two pes~s; but the total amount of fees to be collected shall not exceed the amount of fees paid for the registration of such en.. cumbrance. "6. For the annotatit'ln of an order or the court for the umendment of, or the making of a memorandum on, a certificate of title, except inclusion of buildings or improvements, or :my order directing the registration of a document, or of any right or interest refetred to in said crder, or the cancellation or a certificate of title and/or the issu=<.nce nf a. new one, two pesos for e:ich certificate of title on which annotation is made, in addition to the fees: prescribed under paragraph sixteen or seventeen, as the case may be, of this subsecthm , if the s:ame are also due for the registtation of such ducoument, right or interest. 7. Fo" the annotation of an order of the court for the indusion of builaings a.nd/or imrmiven1enta In a certificate of title, five pesos for each certificate of title if the. buildings or improvements belong to a person other than the registered owner of the land. If they belong to the same registered own~r. the fees to be collected shall be based on the value of such buildings and improvements in accordance with the schedule prescribed under paragraph sixteen or seventeen, as the case may be, of this subsection. "8. For 1·egistering e.nd filing a powe1· of attorney, letters of administration or letters testamentary whether or not accompani'!d Ly a copy of the testament, certificate of allowance of a will with attested copy of the will annexed, appointment of guardian for a minor or incompetent person, appointment of receiver, trustee, or administrator, articles of incorporation of any corporation, asscci::i.tion ot• pa1tnership, or resolution of its board of dirf'ct'Jrs cmpowc"ing an officer or member thereof to act in behalf of the se.me, seven pesos; and for the annotation of such papers on certi. ficates of title when required by existing laws or regulations, one 11eso and fifty ccntawg for each certificate of title sn annotated: Pro1>ided, howcve1', That when the certificate of allowance of a will e..nd the letters testamentary or lcttf"rs af administration are filed together, only one fee !hall be collected. For reg!stering end filing an in~trument of revocation of any of the papers mentioned above, two pesos; and if annotated on the corresponding certificate of title, one peso and fift}• centavos for each certificate of title. "9. For the annotation .:if a notice of tax lien of any description, notice of Jost duplicate or copy of a. certificate of title, order of the court dechll"ing such duplicate .'.Ir copy null and void, notice of change of address, or the cancellation of any such annotation, l'or each certificate of title, one peso. "10. For transferring the memorandum of an encumbrance of any kind from one certificate of title which is cancelled to & new one in lieu thereof in the name nf a new owner, for each memorandum thus transferred, one peso. "11. For any memorandum made in a standing co..owner's, mortgagee's, or lessee's copy l)f a cl'rtifirate of title after a simi!ar men101·andum has been ma.de in the original thereof, for each such certificate of title, one peso. "12. For any memorandum made in a certificate of title for which no specific fee is prescribed above, for each certificate of title, two pe1;os. "IS. For the issuancE! of a transfer certificate of title, including its duplicate. to a trustee, executor, administrator, or reeeiver, for the cance11ation of such certifieate of title and issuance of new oM, includin1t its duplicate, to the cestui que trust, in case of or for the ca.nceUation of such certificate of title and issuance of a trusteeship, eiizht pesos. If the certificate covers more than one parcel or lot, an additional fee. of one peso and fifty centavos shnll be collected for each additional parcel or lot. "14. F or the issuance of a trani=fer certificate of title including its duplicate, to a person other than those named in the n~xt preceding pAraf!"raph, three pesos, ht addition to the fees hermnafter prcscribPd in parae:raol1 sixteen or seventeen, as the cas~ _may be, of this subl!ection, if the same ar<' also clue. If the certificate cov,.r11 mot"e than one narcel or let. an additional fee of ()ne pP.so ond fif"tv r"rit!lvn<: shall br. coll,.cted f'ot" ef!Ch nildit;oY.stl narcel or lot. , "15. For the issuance of a new owner's dunlicate or a . co. owner's, mortgagee's or lessee's copy of a certifieate of t'.tte, or any additional dunlicate ot" copy thet"eof, three pesos for the first page and one peso for ".in.ch subsequent page, or fraction thereof. ' 416. For the registration of u deed of sale, conveyance, transfer, exchane:e, partition, or donaticn; a deed of sale with pacto de t·ctro. co"lditional sale, shet"iff's ssile nt nublic aurtion, sale for nonpayment of taxes, or any sale subject to redempt~on, or the repurchasp or redemption of the pronerty so sold; nny instrument, ord~r, ju<l.1?ment or decree divesting t.he title- of the reS?istered o~ner, f'Xcent in favor of n trustee, executor. ndministl'Btor or receiver; option to purchase or promii;e to i-:ell; any morbrage, surety, bond, lease, easement, riS?ht-of-way, or other real right or lien crel\~ed. or constituted by virtue of 'a distinct contract or agreement, and not as r-.n incidr.ntnl condition of sale, transfer or conveyance; t.he asshmment, enlare:ement, extension or no"at!on of a. mo:tgage vr of nny other real right, nr a release of mortgage. termma~1on of lease, or consolidation of ownership over a property sold with pacto de 1't:tro • where no sneeific fee is prr.scribed thflrefor in the preceding p&ra~ranhs, the fr.es shall be based ~n the value of the consideration in accordance with the following schedule: "<al When the value of the c.::"'sideration does not e:ii:ceed ~!.: thousand pesos, three pesos and fifty centavos for the frn;t :1 hundred peso!'. or fri>ctional part tl>ereof. and one peso _and fifty centa,·os for each a.dditional five hundred pesos, or fractional part ther;,tb, When the value of the consideration is more than six thousand pesos but dl'les not exce::d thirty thousand peso~. twenty. four nesos for the fit"st ei.11:ht tho11sqnd pesos, or fracttonal part thcrPnf, anrl four pesos for each additional two thousand pesos. or frac~!~;:i .;~:n t::;P.~~-tuP. of the ('Qnsideration is more tha.n thirty tliousand pesos bi1t doe snot exceed one huitdred th1 msand pesos, (.evcnty-five nesos fnr the fit"st thirty-fi'\'e thousan~. pesos,. or fractional pai·t thereof, and seven pesos for each additional five thouApril SO, 195'· LA WYERS JOURNAL 199 sand pr:sos, or fractional part thereof. 1'<d) When the value of the consideration is more than one hundred thousand pesos but rloes not exceed five hundred thousand pesos, enc hundred seventy-siv pesos for the first one hundred ten thousand pesos, or fractional rart thereof, and ten pesos for each additional trn thousand pesos, or fractional part thereof. "Ce) When the value of the consideration is more than five hnudred thommnd pesos, five hundred eighty-one pesos for the first five hundred twenty thousand pesos, or fractional part therP.Of, and fi.Jtcen pesos for each addititmal twenty thousand pesos, or frnctiona! pnrt thereof. 1117. In the following tra.nsactions, however, the basis of the fees collectible under pa1·agraph sixteen ':'.lf this subsection, whether or not the value of the consideration is stated in the instrument, shall be as hereunder set fo1th: "Ca) In the exchange of rcal property the basis of the fees to be p11id by each party shall be the current assessed value of the properties acquired by one party from the other, in addit'on ,to t~e value of any other consideration, .if any, stated in the contract. ·'Cb) Jn the trimsmission cf an hereditary est.ate without partition or subdivision of the property among the heirs, devisees, or lc.gatees, although with specification of the share of ea.ch in the value .,f the estate, the basis shall be the total current assessed va.!ue of the property thus transmitted. "Cc) In the partition of an hereditary estate which is still in the name of the deceased, in which determinate properties are. ad. judicated to ee.~h heir, devisee or legatee, or to each group of heirs, devisecs or legatees, the basis of the fees to be paid by ach pe.rson or group, as the case may be. shall be the total current asses5ed \"alue of the properties thus adjudicated to each person or gro~p. In the case, however, of conjuge.1 property, the basis of the fees for the 1·egistration of one-half thereof in the name of the surviving spouse shall be an amount equal to ten per centum of the total cuurrent assessed valne of the properties adjudicated to said spouse. "(ell In the partition of real propErty held in common by several regi!!tered co.owners, the basis of the fees to be paid by each co-owner or group of co-owners shall be the total assessed value of the property taken by each co-owner or group. "<eJ In the sale. conveyance or transfer of two or more pa.reels of land in favor of two or more separate parties but executed in one singl.a instrument, the basis shall be the total selling price paid hy e&ch party-buyer, or, in the .:use of lump sum consideration, such portion theI'1?of as apportioned in accordance with the assessed value of the respective land acquired by each party-buyer. "ff) In the sale, conveyance, or transfer of properties situ:i.ted iu different cities <:Jr provinces, the basis of the fees in each registry of deeds where the instrument is to be registered shall be the total selling price of the properties situated in the respective city or province, or, in case of a lump sum consideration, such por~ tion thereof e.s obtained for those properties lying within the jurisdiction of the respective ~gistry after apportioning the total consideration of the sale, conveyance or transfer in acc:irdance with the current assessed values of such properties. "(J!'l In thg sale. conveyance. or transfer of a mort.1?a~ed property, the bash= shall be the srllir.g price of the pronerty proper plus the full amount of the mort.Q"age, or the unpaid ha.lance thereof if the latter is stated in the instrument. If the properties are sit.uated in different l'itie! or provinres, the basis of the fees Jn eroch rel?istry of derrls whn<> the ini:;trurrtE'nt is tri be rPf!"istP,red shall be such sum as obtained for the properties situated In the respective city or province after apportionin.Q" in accordance with the current assessed values nf said properties the total a.mount of consideration as above computed, unless the sellint? price of the pronerties in e;ich city or province and the proportionate share thereof in the amount or unpaid balance of the rnortgal!e are stated in the instrument;, in which case the aggregate of such sellint? price and share shall be the basis. In any case, however, where the :lJ?l?regate valve of the cons!deration .as above cnmrmterl shall be Jrss than the cuttt>nt R"sessed value of the nronerties in the city or pY.ovince concerned, snch assessed value shall be the ha.sis of the fees in the resnt;ct.ive rel!istry. "Ch) In a mortgage affecting propr.1ties situated in diffrrent >!l~ tics or provinces, the basis of the fees in each registry of der:ds where the document is to be registered shall be such amount as obtained for the properties lying within the jurisdiction of said re. gistry after apportioning the total amount of the mortgage in accordance! wit.h the current ass:csscd value of such properties. "Ci> In the! release of a mortgage the be.sis of the fees shall be an amount equal to ten per centum of the total amount of oblig:i.tion secured by the mortg.'.l.gP, If the! prC'pertics arfJ" situated in different cities or provinces, !ht: hasis of the fees in each registry shall be ten per cent.um of such sum ·::.s obtained for the properties in the respr.ctive city or province "after apportioning the amount of the ;nortgul?e in accordance with the curr~nt assessed values of such properties In the case of a partial release, the fee::~ sh2..ll be based c..n ten per centu.m of the current assessed value of the property so released in the respective city or province: PTovided, how-. cuo?r, That where sevl!ral parti9.I releases had been registe;-ed, the fees corresponding to the final release shall be comput1;;d on the basis of ten per centum of the diffrrence between the amount of the mortgage and the ng~egate of the considerations used as basis for the cnllt:ctirin of the fees paid for the registration of 2.1.1 prr.vious partial releases. "(j) In a certificate of sale at public auction by virtue of :m order of execution. or sale- fflr dclinqu<-ncy in the ptoym~nt >:if taii:Ps, or repurchase of the property so sold, the basis of the fees in e11ch r'°'~istry shall be ten ;J<ir cenl u.m of the selling or repurchase price of the property lying within the jurisdiction of the registry. ' ' 1tk) In an af.fida.vit for the con!lolidation of ownership >:iver a property sold with pacto de re.tro or pursuant to an extrajudicial foreclosurr under thP provision!! ;,f Act Numbered Thirty-one htmdred and thirty-five as amended, the basis of the fees in each registry shall bt: an amount equivalent to ten per ecntum of the cun. sid~ration of the sale in the respective city or province. "m In contracts of lease, the be.sis of th.; fees in each regisby shall be the sum toi:al ~o be paid by the lessee for the properties situated in the respective city or pro,·ince during the entire period specified in the contract, includir.ir tlie extension contemplated by the parties which may be given effect without the necessity of further registration. If tht> period is from year to year, or othrrwise not fixed, the bnsis shall be the total amount of rentals due for thirty months. If the rentals are not distributed, the total amount thereof as above wmputed shall be apportioned to said properties in accordance with their assessed values, and the prnpartio11ate sum thus obtaint:d for each city or province shall be the basis of the fees to be collected in the registry concerned. • "(ml In the termination ,.,fa lease, the bMis of the fet>s in each rrJristry shall bP. ten prr centum of the amount used as basis for the collectirm of the fees paid for the registration of said lease. "(n) In contrl\cts of option to purchase or promise to sdl, the hasis of the t'ees in each regi:,;try shall bo:i five per cn•Jum of the current as.,ei::sed ,•alue nf the prcperty subject of such contract in the respective city or province. "'n) Tn other tra,,saction!I where thE> actual value of the co'lsideration is not fixed in the contract nr can not be determined from the tPrms thereof, or. in. c~se of a sale. conveyance, or tran!lfE'r, the consideration rlab•d is lc.'l'J than the rm·rent assc>rACd vah1e nf the pronerty, the basis of the fr<'s s1"\all be the cnrrP.,t asscssrort value of the o,.or<>,.tv involv<>d in the tr,.,nsaction. If the nro'lt"!rties r>.."e sitnatPcl in <tifiercnt cities or nrrivincei::. the basis of the fee!! in e~cb rc!?istry shall he the assessed valne of the properties lyin~ within the jurisd;ction of the rel?iio;try cnncemc<l.. 11 18. For furr.ishinl? cn11ics or any entry, dE'cree, doeurr>ent, or oth'!r p<tpers on file, twenty c(,ntavC1s for each hnndre<l words or fr:iction thereof contained in the Mpies thus furnished. "19. :F'or certifying a copy furr.ished under the next preceding paragraph, for each certification, one peso, "20. For issuing a certifica.te refative to, or showing the existence or non-existence of, an entry in the rcgistraticn books or a ciocumP,nt on file, for each such crrtificate containing not more than two hundred words, three pesos; if it exceeds that. number an ad. ditional fee of fifty r.entavos shall be collected for every one hun200 LA WYERS JOURNAL AprjJ SO, 1964 dred words, 01· fraction thereof, in o..cess of the first two hundred words." SEC. 2. This Act shall take effect upon its approval. Approved, June 20, 1953. / REPUBLIC ACT NO. 815 AN ACT TO AMEND .RF.PURUC ACT NUMRRRF.O FJVJ.~ HUN. DRED AND SEVENTY-THRC:E, OTHF.RWTSE KKOWN AS THE "PHILIPPINE MILITARY AID TO THF. UNITED NATIONS ACT", ANn FOR OTHER PURPOSES. Be it enacted by the Senate and Ho1tse of Reprtsentatives of the Philippines in Conyre!!:! a!!:Jo1etnbfed: SECTION 1. RP.public Act Nunil1ered Five hundred and seventv. three is a.mended by insf!rtin~ between section five and Tit1e III thert'of the following- new sPction: "SEC. 5.A. Family sttbsistence aUowlZ.nee .. -The spouse, or in default of the spouse, the children, OT in default of such SMtlse and children, the pa.rents, nr in default of such sn:>use, childrrn. and fl!H'i>nts, the denenrfi>nts fnr <m1mo1·t of an offirer or enlil!:ted man shall receive a family subsistence allowa.nce equivalent to three months' base pay in the cast> of an officer and four mont11s' h.Ase pay in the case 'lf an enlisted man. Said famil:v subsist.enc£ allowar.ce shall he paid onlv ouC"e upon dEps.rture of the officer or en. li.sted man from the Philippines for service oversea!. The familv eubsistcnC"e aJlowflnce advanced or to be paid to the officers a:id enlisted men of thf' Tenth and Twentieth Battalion Comb:it Teams shall be computed on the basis of their respective rankti at the time of their tfeparture from the Philippines:: Provldnrf, That if the cash advance alreadv madP to any officer or enlisted man of the Tenth or Twe..,tieth Battalion Cnmbat. Team shall execed his f,.m:ly subsistence allowe.nce as cnmputed above, such officer or enlisted man shall not be requiTed to reimburse tht> differencP.," SEC, 2. The same Act is amended by inserting between section seven and Title IV thereof the following new provision: TITLE IIT.A.-E:eetnption from the Income Tax "SEC. 1-A. E:ee•nption. fr'>m thR Tm:ome T11:r.--The o\•Prseas pay •. overse~s duty· bonus, d<?atli gratuity, di11ability pension, and family su~s1stence alfownncc provided for herein shall be ex~mpt from the mcome tax, and no portion thereof shall be withheld as ~ithholdin~ tax: and any income tax coJIPCted thereon or withholding tax withheld therefrom shall be refunded." SEC. S. To carry out the purposes of this Act, such sum ae ~ay be m::~essary is authorized to be appropriated out of any funds m the N&tional Treasury not otherwise appropriated. SEC. 4. Thi3 Act shall take effect as of September 7, 1950. Approved, July 14, 1952. REPUBLIC ACT NO. 892 w AN ACT TO AMEND SECTIONS ONE, TWO, THREE, AND SIX OF REPUBLIC ACT NUMBERED SJX NDRED AND TWENT~·-ONE BY TRANSFERRTNG THE UNITRD ~A TIONS J.~Dl'CATIONAL, SCIENTIFIC AND CULTURAL OR GANIZATION NATIONAL COMMISSION OF THE PHT1~ IPPTNES FROM THF: SUPERVISION OF TRE DF.PARTMENT OF FOREIGN AFFAIRS TO THE PRESIDENT OF THE PHILIPPINES, AND FOR OTHER PURPOSES. Be it ".".rict~d b~ the Senate and Ho,,se of Rewesentatives of ths Philippines 111 Congress assembled: SECTION I. SPction one r,f RC?public Act Numbered Six hundred and twenty-one is hereby ameded to read as follows: ganizatlon accepted by Joint Resolution Numbered Three of the Congress of the Philippines Adopted on October seventeen, nineteen hundred and forty-six." SEC. 2. Subsection (a) of section two of the same Act is hereby amended to read as follows: "Ca> Twenty shall be designated by the President of the Philippines upon recf)mmendation of OJ·ganizations interested in educational, scientific and cultural m2.lters affiliated with and duly registered in the Commission; ·Provided, That no person shall be npJiointed to the commission who is not morally and academically qua,. lified for membership therein." SEC. 3. The s1?cond paragraph of section two of the same Act · i!> further amended to read as follows: · "A Chairman and Vice-Chairman shall be elected by the-. C',,mmission to serve for a term of two years or until their respective successors shall have been elected or qualified. The Chairman shall be the presiding officer of the Commission and shall ex officio be the Head of the Executive Committee herein provided." SEC. 4. The first paragraph of section three of the same Act is amended to read as follows: "The Commission shall treate a.n Executive Committee and such other committees or sub.committees as may be necessary for the effective and efficient· performance of its powers and duties." SEC. 5. Sub-section <b> of section six of the same Act is hereby amended to read as follows: "Cbl To promulgate rules and reb"Ulations for the conduct of its o\vn affairs;" SEC. 6. The transfer of the United Nations Educational, Scientific a.nd ·Cultural Organization <UNESCO> National Commiss10n of the Philippines from the supervision of the Department of I•'oreign Affairs to that of the President of the Philippines shall include the transfor of all its records, property, equipment, appropriations and personnel. SEC. 7. This Act shall take effect upon its approval. Approved, June 20, 195:t REPUBLIC ACT NO. 899 AN ACT CREATING A REVOLVING FUND FOR THE CONSTRUCTION, RECONSTRUCTION OR IMPROVEMENT OF IRRIGATION SYSTEMS. Be if. enacted b11 the Senate and llO'Use of Representatives of the Philippines in Congress as~embled: SECTION I. Revolving fund.-The sum of twenty million pesos is hereby authorized to be appropriated, out of any funds in the National Treasury not otherwise appropriated, and placed to the credit of a Special Fund, hereby created, in the National Treasury, to be known as "Irrigation Revolving Fund.'' SEC. 2. Adminixtration of f1md.-The "Irrigation Revolving Fund" shall bl? administered by the Secretary of Public Works and Communications and shall be used exclusively for the construction of nt:w inigation systems and for the 1·econstruction or improveme:nt of existing private or communal irrigation systems. SEC. 3. A-pplication of interested parties. - Any land owner r.r planter interested in, or ,any group of such persons constituted to carry out, the construction, reconstruction or improvement of a11 irrigation system shall apply to th(! Secretary of Publi.'.: Works and Communications for the financing of such project to the extent of ninety per centum of the cost thereof, payable by the applicant in ten equal annual il:stallments beginning with the first crop year a.Cter the completion of the project plus interest at four per cer..t.um per annum. The applicant shall, in his application submit his plans, specifications and itemized estimates of the work involved as well as such other pertinent information as the Secretary may require in connection therewith. "S!~CTION 1. The United N::itinns Educat•onal, Scientific and ?ultural Organiz<.1tion National Commission of the Philippbes, herein a:ter rdcrred t-o as the? Commission, is hereby cr<?ated ur.der the President of the Philippines to serve ai: a Ji2.ison agency between the Government of the Philippines and the United Nations Educational Scien~ific and Cultural Orizanization lUNESCQ) and to associat~ P.ri.nc1pal bodies in the Philippines interested in educational, scientific and cultural matters with the work of the UNESCO, in accordance with Article VII of the Constitution of the a.foresaid OrSEC. 4. Processing of applications.-Tbe Secretary of Public Works and Communications will process such applications, may require such changes in the plans, specifications and estimates as he shall deem due and proper and, if the proposal merits his approval pursuant to the provisions of thii; Act, shall forthwith · accomplish and submit to the Secretary, on forms duly prescribed for the purApril 80, l95t LA WYERS JOURNAL pose, the application for the loan, supporting such application with the required evidence of the availability of the applicants funds for such project equivalent to at least ten per cet1tum of the approved estimated cost of the project. SEC. 5. Construdion work.-The approved work on any project !;hall be undertaken by the applicant under the technical supervi;;ion of the Director of Public Works, who shall certify i;eriodica.lly to the quality of the work and the percentage of completion of the pro. ject: Pro1•ided, That no certification for less than ten pu c1mtum of the tot1:tl cost of the work shall be released by the Di1 ·ector f~'r the purpose of releasing sums from the Revolving Fund, pursuant lo section six hereof. SEC. 6. Rtleri.sc fl./ fund.,.-U1,on the approval by the Secretary of Public Works and Communications of the ap9lication for loa.n executed pursuant to sections three end four hereof, he shall forthwith authorize the construction of the proj<!Ct, transfer the approved sum to the credit oC the Director of Public Works, :md. advise the Director tc supervise the· work therein, charging the ex. penses of such supervision against the funds of the project: P.rovided, That in no case shall such cost of supervision exceed two per centum of the actual cost of the project. Upon completion of B.t least fifteen per centum of the ~vork and ht every ten per cent progr~ss thereafter, the Director of Public Works shall certify such accompli.shmf:nts to the Secretary of Public Works and Communications and shall release to the credit of tha applicant the amount corresponding and equal to the certified amount of work a:complished. SEC, 7. Amortiz11tiort ti{ loan.·-Ltlans shcl.l be garanteed by a first lien ':In a sufficient. amount oi the crop of the applirant nnd sl1all be r~deemcd in ten equal annual installments with intere~t at four per centum 71er ntinum. The amortization payments shall be due and pB.yable on or before thirty days after the crop has been haryested. SEC. 8. Accr.uils.-AIJ moneys cc-lll'cted pu1·suant to the provisions of this Act, IMS snch s.mount ns may have been spent by the D!rector of Public Works to defray the expenses of supervising the work on authorized projects, shall accrue to the "Irrigation Revolving Fund." Approved, June 20, 1953. REPUBLIC ACT NO. 833 AN ACT AUTHORIZING THE PRESIDENT OF THE PHTUPPINES TO LEASE FOR A PERIOIJ NOT EX"tEEDING NINETY-NIN£ YEARS TO THE UNITED STATES OF AMERICA THE Tl!ACT OF LAND KNOWN AS THE "PLAZA MILI1'AR" LOCATED IN THE CITY OF MANILA, PHILIPPINES. Be it enacted by the Sennte and House of Repreae1ttatives of the Philippines in CongTess assembled: SD'f'I'ION 1. The President of the Philippines, subject to such terms and conditions as he may deem just and advis:':ble in the na. tional interest, is hereby authorized to lease for a period not cxccP.ding ninety-nine years to the trnitcd Stntes of America., for diplomatic or consular purposes, the following portions of the tr:i.ct (I fland located in the District -:if l\folute, City of Manila, Philippines, known as the "Plaza Mil!tar" described as follows: 1. Parcel 1, which consisb of portions of lots Nos. !l a.nd 16 Bicek No. 501, of M'aniln Cadastre, bounded on the northwest by the proposed extension of Herran Street; on the northwest by M. H. -:lf!.l Pilar Street ae proposed to be widened; on the southeast by the extensk>n of Mi!itar Street; and on the southwest by the Dewey Boulevard as proposed to be widened, containing an area of 12,000 square meters, more or less; and 2. Parcel 2, which consists of Block No. 502, Manila Cadastre, bounrted (In the nerthw€'st by Herran Street as propose-J to be widened; on the northeast by M:i.bini Street as pr<>posed to be widened; on the southeast by Calle Militar as pro.posed to be widened; and on the southwest by M. H. det Pilar Street, as propostd to be widened, containing an area of 12,407.8 square meters, m:Jre or Jess. SEC. 2. The Director of Landt1 shall make the survey as soon as possible of the parcels of land which are authorized to be trans. fcn"Ed by t-hia Acl SEC. 3 .. H shall be a condition of the lease ngreE'ment that in the event the tTnited States of America find no m.orc need for the land, for diplomat.it• or r.onflular pm·pr:oses. the lease shall be terhtinated a.nd thr. land shall rcvC'rt to the possession of the Republic of the Philippines, together with the improvements therein. SEC. 4. The registl'ation of such instruments as may be neccs.. eary to carry out the provisions of this Act shall be exempt !rom registraticn or other fees. SEC. 5. This Act shall take effect upon its approval. Approved, August 14, 1952. REPUBLIC ACT NO. 783 AN ACT TO AMEND PARAGRAPH ONE HUNDRED FORTY. SEVEN, CLASS IX, OP SECTION EIGHT OF THE 'PHIL. I PPINE TARIFF ACT OF 1909, BY PROVJDJNG E:X:EMP., TYON OF NEWSPRINT FROM CUSTOMS DUTY IN' CEU.. TAIN CASES. B~ it enat'ted by the Sm.ate a.nd Hnuse of Repf'esentatives of the Philippines in Congress assembled: SECTION 1. Paragraph numbered one hundred and forty-i::evcn, Class IX of section eight of the Philipr•ine Tnriff Act of nineteen hundred and nine as ccntinu~d in rorce and effect by Republic Act Numbered Three, is ::tmended to rend as follows: "147. Printing paner, white or colored, suitable for books not printed or otherwise elaborated, and sand, glass, emery, carbonindum, and similar papers, and she!!thing and rooring paper, ten per centum ad valorem: P,,oi.fded, Tha.t printing paper, w~itP. or co~· tored, suitable· for newspapc~s. not printed otherwise els.boraWd, whenever imported by or for publishera for exclusive use in the publication of newspapers, shall be exempt from p:i.yment of duty. SEC. 2. This Act shall take effect upon its approval. Approved, June 21, 1952. SUPREME COURT . . <Continued from page 195> the nullific:i.tion of the sale is the reversion of the property to t he State appellee is not the proper party to institute it but the State itself,- that is a point which we do not have, a.nd do not propose, to decide. That is a matter between the State an::l the. Grant.ea of the homestead, er his heirs\ What is important ~ conSider n:Jw is who of the parties is the b<!tter entitled to the pos:;es~1on ~f the land while the government does not take steps to assert its title to th11 • homestead. Upon annulinent of the sale, the purchaser's ~laim is reduced to the purchase price and its interest. As agamcit. the vendor or his heirs, the purchase1· is no more entitled to keep th• land than any intruder. Such is the situation of the appellantfl. Their right to remain in possession of the land is no betler th~n that of appellee and, therefore, they should not be allowed to rema1P in it to t.he prejudice of appdlee during and until the governmPnt takes st~ps toward its reversion to the State. lSee Castro v. Or. piano, G. O. No. L-4094, Novembet• 29, 195. 1.) Wherefore, the decision appealed from is affirmed, without pronouncement as to costs. Paras, Pablo. Bengzon, Montema11or, Jugo and Lt1brador, J.J.: 202 LA WYERS JOURNAL Aptj) 301 1!'154 MEMORANDUM OF THE CODE COMMISSON (Continued from the Ma.Yeh Issue) MEMORANDUM ON THE PROPOSED AMENDMENTS SUBMITTED BY THE MEMBERS OF THE BAR TO THE PROVISIONS ON SUCCESSION <BOOK III> ARTICLES 779 and 780 Prof. n. C. Aquino of the College of Law, Unlvt!rsitj' of the Philippines, suggests the inclusion of a definition of legal or intes~ tate succession. We have accented t11is SU!l'i:restion in our Mf'mn~ randum on the Proposed Amendments Embodied in House Bill ?lo. 1019. ARTICLE 782 Prof. R. C. Aquinn nlso asks fl'lr thr. definitions of "v<-luntnry and legal heirs" The Code Commission deE'ms this unnecessary, Lecause the distinction is too elenientary. ARTICLE 789 Attorney R. M. Jalandoni suggests that "the oral dt.'Clnrations of the. testator should not he excluded from the extrinsic evidencP. which may pro,·e his intention." How can the testator clarify his intention whim he may be ten feet below the ground? The rule fa that the probate i;.ourt should confine itsC?1f to the context of the? will, and should consider the circumstances snrroundini;? the? ex«:. ution of the same, in order to ascertain the intention of the testator.. The admission of oral declarations of the testator before his death would create confusion and foster false claims. ARTICLES 805 and 806 Prof. R. C. Aquino proposes the elimination of the attestation rlnuse in case of ordinary wills and the.t the matters to be stn.t('d in the said attestation clause be embodied in the notarial acknow. ledgment. We maintain that the liberalization of the execution of ordinary wills as embodied in Article 809 of the new Civil Code if coupled with the prnposed eliminaticm of the attests.tion clau!le may open the door to fraud. It is a better safeguard to l1ave both an attestation clause and a notal'inl acknowledgment, the formP.r to be executed by the attesting witnesses and the latter by tha notary public. ARTICLES 828 and 1027 <4l Attorney R. M. Jalandoni contends that Article 823 and Al't.. lcle 1027<4> at"e in conflict. As an answer to this contention, we refer to our Memorandum on the Proposed Amendments of Mr. Justice Jose B. L. Ticyes on articles 823 and 1027<4>. Prof. R. C. Aqiuno suggests that "to obviate any doubt, the Code should exprr.ssly disqualify an heir, including a compulsory heir, from bct:i>ming a witness to a will." The suggestion may prevent a person from making a valid will because there may not be nther per~ons around at the time when a testator makes his last wishes. The article refers only to devises and legacies that should be taken from the disposable portion of the estate of the decedent, and does not include thC! legitime of a compulsory heir. The purpose of the law is to forestall undue pres. 6Ure and influence that may be exerted upon the testator in the disposition of the free portion. ARTICLE 824 Attorney R. M. Jalandoni suggests that there should be no qualification as to the nature of the debts, and that creditors may be witnesses to the will in all cases. What article wants to avoid is the disqualification of a creditor who may have a real right in the thing devised or bequeathed, and that real 1·ight may be claimed to be such an interest as may disqualify a person from being a witness to the will. In other words, the provisions of this article make it clear that a mere charge on the real or ~ersonal estate 1'1f the testator, tor the payment of debts, say either in the form of a ~ortgage er a pledge, shall not prevent his ere.. ditors from being competent witnesses to his will. ARTICLES 878, 880 and 885 Prof. R. C. Aquino claims that these three articles are incon.. sistent with une another, and suggests that they be eliminated. By studying these artides a little more deeply, it will appear that they provide for different situations. Article 878 deals with a disposition subject to a suspensive term; Article ,880 provides for what shall he doni: with the f'stu.te of a deceased pE:nding the arrival of thP. suspensive term or condition; and finally Article 885 speaks of n 'l'csolutory conditfon or te1·m. In other words, how can these articles be incompatible with one another, when they provide for different things? We beg to oppose the proposed suggestion. ARTTCDE 882 Attorney R. M. Jalandom proposes that the phrase "in this mann~r" in the first line of pa.ragraph 2 of this article be replaced by "in this latter manner". It is a question of interpretation, whether the phrase 04 in this manner" refers to the "institucion modnl" alluded to in the first part of the first paragraph of this: article, or the said phrase refers to "unless it appean that such was his intention" (mea.nin&- condition). We maintain that a careful reading of the whole first paragraph of this article will show that [The phrase "in this manner" refers to the ''institucion modal" because the heir or heirs so instituted are also obliged to give security for the compliance with the wishes of the testator in the same manner as the heirs subject to the fulfillment of a suspensive condition or tenu.] <See Manrese., Vol. 6, pp. 190-Hl3>. ARTICLE 891 Attorney T. M. Santiago wants that the pro\'isions of the Civil Code on the rights and obligations of the "reservista" and the "reservatario" be restored to supplement the provisions of the article on "reserva tror.cal". We deem it unnecessary to have any com. me:nt on this subject inasmuch as the Code Commission does not believe in the "reserva troncsJ" and we have eliminated the same from our original draft of the :new Civil Code. ARTICLE 895 Prof. R. C. Aquino suggests that this article should expressly state that the legitime of an illegitimate child, other than a naturnl child, should be two.fifths <215> of the legitime of each legitimate child. This express statement is unnecessary. Any person who has a little knowledge of arithmetic will not ma.ke a mistake. Article 895, paragraph l, provides that the legitime of each of the J1.cknow. !edged natural children and each of the natural children by legal fiction shall consist of one.half <1/2> of the legitime of ei:ich of the legitimate children or descendants. Pa.ragraph 2 of the samr article provides that the legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction (spurious child} shall be equal in every case to four-fifths (4/5> of the legitime of an acknowledged natural child. To compute: If the share of an acknowledged natur&l child is 1/2 of that of a legitimate child, and the share of an illegitimate child other than the natural ' is 4/5 of that of the acknowledged, the shri.re of that illegitimate child other than the natural is 4/5 of 112, or 4/10 or 2/5 of that of the legitimate child. ARTICLE 891 Prof. R. C. Aquino recomme:nds that Article 891 \reserva troncal> be repealed, to which the Code Commission concurs. AtWrney R. M. JaJandoni suggests that the provisions of the old law on "reserva viudal" be restored because of t.he revival o( the "reserva troncal". The Code Commission ha11 never been in favor of these "re~ servas". and inasmuch as we have recommE;nded the abolition of the "res~rvn b'oncal", we cannot very well accept the revival of t.hc •jreservn. viudal". LEGITIMES AND INTESTACY Attorney R. M. J&lnndoni gives an example of the application of Articles 895, 083 and 999 o.nd cc.oncludes from his own ex::unplr. April 80, 196, LAWYERS IOURNAL 208 that legitimate children may get only 4/9 of the estate of the decedr.nt and therefore less than one-half <112> which should be th<!ir fogitime. The conclusion arrived at by Attorney Jalandoni will necei;... s:'!.rily be wrong because he mixed up the provisions of the law on testamentary succession with those on intestacy, citing Articles 895, 983, and il09. It should be burne in mind that in intestacy, there is no le,qitinre inasmuch as the whole estate of the decedent shall be subject to distribution. Article 886 of the new Civil Code provides: "Art. 886. Legitime is that part of the testator's property which he cannot dispose of b<!causP the law has reserved it for certain heirs who are, ther<!for<!, called compulsory heirs." In oth<!r words, if a person dies, intestate, there is no lcgitime at all, and the whole estate left by the deceased shall bt=l subject to· distribution in favor of persons entitled to the sam'? under the law. If Attorney Jalandoni proper!}· gives an examph'!, confining himself to either testate or ilitestate ~mcccssion, we may be able to solve the example: However, in case of mixed succession or partiel intestacy, we accept the proposed amendment submitted by Congressman Tolentino as showr. by our memorandum commenting on his proposed amendments. - ARTICLES 904, 872 and 864 Prof. R. C. Aquino has the same suggestion as that of Mr. Justice Tieyes with 1·espect to th<!3e three articles which we have commented upon in our Memorandum on the Proposed Amendment!: submitted by Justice Reyes. AR7'1CLE 892 Attorney A. $. Atienza proposes that this article be amended so es to give the surviving spou:>e only one sixth <116> of ~he hereditary estate in case she or he should survive with one legitimate child :'Ir descendant ar.d an acknowledged natural child CI' children or a natural child or children by legal fiction, and that thes'e illegitimate children should also be entitled to c.ne-sixth <116> of !he he1·editary estate. In both cases, their shares <spouse and illegitimate children) shall be taken from th<! free portion. He further suggests that if the testator leaves only one legitimate child or descendant and an illegitimate child or children, the surviving epouse shall be entitled to one-sixth <l /6> of the estate; and the illegitimate child or children to onC!-eighth U/8) of the estate. We beg to oppose the proposed amendment, not only becaus" we do not sec any reason for the change, but also because the division of Um inheritance as suggested will destroy the mathematical symmetry of the division of the estate as provided in other articles of the Civil Code, aside from the fact lhat the survivinP. :-ipouse under the! proposed reform will get very little, which would be unfair and unjust. · LEGITIMES OF ILLEGITIMATE CHILDREN Attorney L. G. Formentera claims that illegitimate children other than natural should not be given any legitim'! because it is not in accord with the tradition of the Filipino people. We beg reference to our arg,uments on the Successional Rights of Illegilimate Children embodied in a Memorandum submitted to the J oint Committee of Congress on Codes, dated July 20, 1950, and publii:bed in the Lawyers' Journal in its issue of Decembe1·, 1951. ARTICLES 983 and 990 Prof. R. C. Aquino asks for clarification of these two articles. These two articles of the Civil Code shC1uld be read in connectinn with Articl<!s 9!.15, 998 and 999 which all refer to the rights of the surviving spouse concurring with ilkgitimate t:hildren. ARTICLE 994 In answer to the question of Prof, R. C. Aquino on this article. we beg rcforcncc to 1>ur Memorandum on the Additional Amendments Proposed by Congressman Tolentinn ARTICLES 986 and 993 . Prof. R. C. Aquino suggests that in connection with Articl;;i 986. a prevision similar to that M Articl~ 887, be formulated to the effect that the parents may concur with illegitimate children and surviving spouse of the deceased. These suggestions are al~ ready embodied in Articles 991, 9!13, 994 and 1000. - With regard to his suggestion on Article 993, we would like to invite attention to our comml:!nts on the same in our Memor.c.ndum on the Proposed Amen'dments of Justice Reyes. Manila, February 21, Hl51. Respectfully -;ubmitted, PEDRO Y. YLAGAN Member, Code Commizsion MEMORANDUM ON THF. ADDITIONAL AMENDMENTS PROPOSED BY CONGRESSMAN TOLENTINO 1'0 THE PROVISIONS ON SUCCESSION CBOOK llI> ARTJCLE 959 The Code Commission has no obiection to have this article !1 S9 transferrtd to the Section on Institution ')f Heirs ,and it should be placed bctwc.?n articles 847 and 848. ARTICLE 880 It is sw~gestcd that this artich: RSO be replaced by the prn\isions of article 801 Clf the o\<l Civil Code. - The <::ode Commission regrets to disagree with the sugJ:?estion, because tl1e old law speaks of "suspensive condition" in article 799 upon which article! 801 is based, and the new Civil Code changed tht· term "suspensive condition" mentio:ied in article 799 t.o "suspensive term" in article 880. Hence, the change in article 799 of the old Jaw fnow 878> should also change article 801 (now 880). If nrticle 801 o( the Civil Code should be restored as suggeSt<:!d it would throw article 878 of the new Civil Code out of gear. NEW ARTICLE Congressman Tolentino proposes that a new article be inserted between ar.icels !J61 and fl62 which should read as follows: "In mixed succession, the devises, legacies, bcqueds and other tC!stuJr.cntary disposition!' shall be taken from the share! of the intestate heirs to whom the rules hereinafter set forth give more than their respective legitimes, but without impair. in~ thl' latter, or who nre not compulsory l1eirs.'1 The Cede Commission accepts this propostd amendment inas. much as 1t clarifies the provisions of the law on mixed succession. ARTICLE 983 It is proposed that this article be amended to rcf'.cl as follows: "If illegitimate children survive with legitimate chil(fr,•n, they shall, in uddition to their lt::gitimes. share in the free portion in thP. same proportions prescribed in articie 895." We believe that t11e proposed amendmer.t is not necessary be. cause in intest~.te succession, the whole estate of the deceased is subject to distribution, and it, follows that the illegitimate children shall always share in the free portion by operation of law in the same proportions prescribed in article! 895. In int<!state succe~s'on, there is no legitime nor free . po1·tion to speak of, because legitimP exists only in testamentary succession. ARTICT_,E 894 The Code Commission does not see any substantia.l difference between the provisions of this article of the new Civil Code and the proposed amendment. Hence, we beg to disagree with the propcscd amendment. ARTICLE !188 Article 988 is proposed to be amended by adding the follo,ving: "in the proportion established in the second paragraph of article 895." We believe that this proposed amendment is uot necessary ~ cause the term "illegitimate children" used in paragraph 2 of this LAWYERS JOURNAL April SO, 19G4 article !J88 includes acknowledged natural children ~roper, imtural children by legal fiction, and other illegitimate children not haYing the status of natural children (spurious children> whose filiation fs c!uly ·proven. If they concur in the succession, they shall share in the proportions prescribed in article 8!.15. ARTICLE 993, Par. 2. We have accepted this amendment in our Memorandum to the .. Proposed Amendments of Mr. Justice Reyes under the same 8:rticle. ARTICLE 994 The Code Commission believes thnt the r•rop::>sed amendment to arlicle 994 which reads as follows: "but if the lntter alone survive, they shall be entitled to the entire estate," Is not neces!:'ary because of the pl'Qvisions of articles 1004 and 1005 giving brothers and sisters, nephews and nieces who alone survive, the right to succeed to the entire estate. Manlla, February 20, 1951. Respectfully submitted, PEDRO Y. YLAGAN Mcmbf'r, Code Commission MEMORANDUM ON THE AMENDMENTS TO SUCCESSION PROPOSED BY MR. JUSTICE JOSE B. L. REYES ARTICLE 782 Mr. Ju!:'tice Reyes contends that Article 782 dues not give a clear distinction between heir and legatee. The word "heir" as used in this article includes testamentary legatees or devisees to whom gifts of personal and real property are respectively given by virtue of a will. The distinction between " 'heredero" and ''lega.tario" under the old Civil Code is unimportant now because of the ne:w 11ystcm of payment of debts under the Rules of Court. ARTICLE 794 The Cede Commission has no objection to the proposed amendment by substituting the word "different" in the place of the word "less" in the last line of the said article. ARTICLES 802-803 These articles speak only of nmrried women in order tn clarify e.nd supplE:mer.t the provisions of Article 1414 of the old Civil C::>r!s (Art. 170, new Civil Code> which expressly gives the hut=:band the power to make a will without mentioning that of the wife. ThcsE: Articles 802 and 803 are inserted in the n(;W Civil Code to make the law on the subject more comprehensive, and to correct the impression on the part of many people that a married woman cannot mnke a will without the consent of the husband. ARTICLE 805. par. 2 It is proposed that the last psgc of the will sha11 also be signed by the testator and by the instrumental witnesses on the left margin. This article of the new Civil Code provides that the last page need not be signed on the left margin by the testator and the instrumental witnesses because they ore already required to sign the end of the will by virtue of the provisions of the first paragraph of the same e.rticle. Inasmuch as their signatures already appear on the same page <at the end of the will), there is no necessity that they should further sign the left margin. With the other safeguards mentioned in the same article, insertions and substitutions of new pages can hardly take place. ARTICLE.' 808 The Code Commission has no objection to the proposed amend. ment to the second sentence. So that as a.mended, that sentence shall read, thus: "once by a subscribing witness before tM will is oecuted, and again by the notary public before the will is acknowledged." ARTICLE 809 The proposed amendment reads as follows: "If such defects and imperfections can be supplied by «tt examination of the will itself •md it is proved tha.t the will was in fact executed and attested." There is no necessity for this proposed amendment because the court in determining whether or not the will was executed in subEotantial compliance with the law will necessarily examine the will itt:elf and shall also consider the circumstances surrounding ib execution. The rules of interpretation embodied in Articles 788 tc. 792 are deemed sufficient. ARTICLE 810 Mr. Justice Reyes doubts the revival of the holographic will because "its simplicity is an invitation to forgery". That conten. tion may be true because even the most complicated handwriting may be forged. But the law should favor testacy, and should give a person greater freedom tq dispose of his property subject to the limitations imposed by law. Hence a person should be allowed to make his will in his own handwriting without the necessity of cnmplying with the complicated requirements of an ordina!'y will. Without the holographic will, even a person of college or university education may not make an ordinary will without resorting to the aid of another who may not know the formalities himself. Many wills are. thus disallcwed. Bi:?sides, the testator should be given a choice to make a holographic will if he wants to keep his disposi. ticns a seeret. Such secrecy is often essential to co!lserve family harmony and to guaranty freedom to the testator. ARTICLE 811, par. l This nrticle requires that if ti. holographic will is contest~d, the testimony of at least three witnesses who know the handwriting and signatur2 of the testator jg required. The purpose of the article is to counteract the simplicity required in the execution of hologrt1.phic wills, and is c0mple.ined of by Justice Reyes, and to prevent the allowance of a will based on the testimony of only one witn~ss which may be perjured at that. True, a witness can be very con. vinclng, but suppose he is a consumm&te liar? ARTICLE 8Hi Mr .. Justice Heyes asks whether a Filipino who is abroad can mnke a will in the form prescribed by our Civil Code. Article 815 provides: "Art. 815. When e. Filipino is in a foreign country. h"' is authorized to mah1J a will in a11y of the forms established by the law of the country in whh~h he may be. Such will may be probated in the Philippines." From the reading flf the provisions of the above article, it does not appear thilt he is obliged or compelled to follow the forms of the foreign Jaw. He is merely authori'ztd, and that does not preclude his right to make a will e.ccording to the law of his own country if hP- happens to know thP. same. ARTICLE 816 The Code devotes an artkle to a will e:x.ecuted by an a1ien abroad to make the law on the subject more complete. It can readily be seen that Article 815 provides for wills executed by Filipinos who may be in a foreig'lt. country; Article 816 speaks of 11•ills ezecuted li11 an alien abroad; and Article 817 deals of will made in the Phi!. ippines by a citlzen or subfcet of another cou·~trv. ARTICLE 823 This article [speaks of a witness to the '11i.ll and other persons who may cb.im interest under him, and who are disqualified from Eouccceding. Wh~reas Article 1027 mentions the persons who are disqualified from succeeding not only because of their participation in April SO, 1954 LAWYERS JOURNAL 205 thP. execution of the will, but abo bccauso of the undue prcs~ure and ir.fluence that they may E'Xert on the testator. In other words, Article 1027 provides for the general rule, nnd Article 823 denls only with speeifi.! persons. Moreover, Article 1027 <para. 1 and 2> refer to priests and ministers, whose moral influence on the testator is greater than nther persnns, so the prohibition should extend as far as the 4th degree. Pars. 3 and 5 do not refer to relatives of the disqualified person because their moral influence is not as great a.s the priest er minister. ARTICLE 827 The Code Commission has no objection to the prC1posed amendment suggested by Mr. Justice Reyes in line 2, first paragraph of the article, and in No. 4, of the same article. With respect, however, to the elimination of the provision on incorporation by reference, we believ(; that the same is necessary for the convenience of the testator so that instead of embodying in the will itself the contents of e. document he may incorporate the same by reference, provided that the safeguards required by l:\w are present. ARTICLE 829 This article provides for the Jaw under which the revocation should be made in order that said revocation be valid. Mr. Justice Reyes claims that in revoking a wm, the Code applies the law of the place where the will was executed or the la.w of· the testator's domicile, while in the execution of testaments, it applies the law of the place of its execution, or the lnw of the testator's country, and thereby creates a double standard. The Civil Code in allowing a testator to revoke his will according to the law of his domicile has in mind a situation where & tEStstor may not be residing in his own country or nation when he revokes his will. Therefore, to give that freedom to revoke his will any time during life, he may do so either according to the Jaw of the place where the will was made, or according to the law of his' domicile at the time of revocation, or aec(lrding to the provisions of the new Civil Code. In all thPse cases, the revocation shall be valid in the Philippines. ARTICLE 836 The propo!ied amendment is unnecessary because it is clearly st.!l.ted in the preceding articl.? (835) that "the testator can no:t re~ publish without reprodueing in a subsi;quent will," etc. Theref!'lrc, under Article 830 the previous will must necessarily be a valid one in form. ARTICLE 851 This article deals with mixed succession. Mr. Justice Reye! snys: "There seems to be no reason why intestate succession should be limited oiily to the remainder of an estate of which an aliquot portion is disposed of by the testator. Whether the will covers an aliqUot portion or f'lot, the property not disposed of should pass by intestate succession. How else could it be inhe!'ited?" · If a testator has disposed of only a portion of his estate~ ne.. cessarily the rest shall bP disposed of according to the provisii.ms of the law on intestacy. The provisions of the a.rticle explain what !hall be d<:'ne with the rest of the estate. If these proYisions are not found in this article, it would not be surprising if critics would ask this question: "What she.11 'oe done with the rest of the estate of thr. decedent?" Now that the provisions make the matter cleat, it is alleged that the same is not necessary. ARTICLE 856 The Code Commission maintains that the provisions of Article 856 are proper, as they should be read together with those of Article 977. The first paragraph of this article speaks only of volu~tttry lidr who dies before the testa.tor. The second µaral!raph deals with the following: Ca> A comp1tfsor11 heir who dies before the testator; <b> A person incapacitated to succeed; and <c> one who renour.ces the inheritance. The word " pci·son" nsed in the second case includes both compulsory and voluntary heirs, and so is the word "one" used in the third case. If these words are properly understood, they 11mount to the same thing as the proposed amendment of Mr. J ustice Reyes. However, we agree to the addition of a disinherited compulsory heir. Therefore the· first line of the second pe.ragraph should read: "A compulsory heir who dies before the testator or is dis· inherite~.'' Express ·reference 'teo the legatees is ·licit neCesh.ry. ·see our comment under Art. 782. AR1'1CLE ,959 , This article of the new Civil Code "provides that substitution of heirs may be: (1) Simple or common ; (2) Brief or compendious; <3> Reciprocal, or (4) Fideicommisary. Mr. Justice Reyes contends that the compendious and reciprocal are merely Varieties of the ·simple or vulJ?ar substitution. We agree with him specially when he says that 4'there is no incompatibility between a bt•ief or. & reciprocal substitution.- and a simPle cne". That is the .reason why the three ways of substitution cnn stand together and are embodied in Article 858 of the new Civil Code. The four-fold enumer_ation clarifies the subject. ARTICLE 863 Mr. Justice ~ey~s claims that the con)mentators· of Arti_cle 781 0° ( the Snanish ·civil Code. differ· ':18 to the m-e<ining of -"de'!T'ee'' in connPctlon with fideicommissary substitution. May we add that they also differ as to the person from whom the de2'?'ee shall be t'.omputeJ. Rut in connection with the "degree" mentioned in Article 863 of the n.?w Civil Code there is no doubt that the law means "degree of rE'lationship" a~d this is made clearer by the phrase following the same which says "from the h~ir originally instituted." ARTICLE 864 The Corie Commission a~rents the ei:,.,;nat:on nf Article 864 whose provisions are covered by Article 872 a.nd 90l, par. 2. ARTICLJ:: 861 f2) The limitations mentionE'd by this article that the fideicommissnry substitution shall not go beyond one dcJ?ree from the heir vri~inaUy institutP.d, and that the fiduciary or first heir and the second heir should be living- at the time of the death of the testator are impos<>d to prevent the pronerty fr~m be~"''! focke<l. uo in the family, with thf' end in view of C')mplymg with the ph1losopl1y of s?Ciali:r:ation of ()wnership of property. In other words, aside from the limitation imposed by Article 670, the limitations mentioned in Article 863 J!IUSt also be observed in fideicommissary substitutions. ARTICLE 878 It is suggested the.t the provisions of Article 759 of the Spanish CiviJ Code be revived. Said Article provides: · "Art. 759. An heir or legatee who dies before the condition is fulfilled, even though he surviveii the testator, transmits no ri~ht whatsoever kl his heirs." This article of the oM Civil Code was eliminated .becanc:e . of the provisions of Article 884 of the new Civil Code which ordam: "Art. 884. Conditions imposed by the testator upon _ the heirs shall be governed by the rules established for condit!onal obligations in all matters not pr0vided for by this Section.'' According to the above menticined article, if an obligation i;' subject to the fulfillment of a. condition, and the condition is . not fulfilled no right arises. The same rule may be applied in t'ase of an h~ir or 1egatce who dies before the condition is fulfilled. II~ acquires no right and hence transmits nothini to his own heirs. ARTICLE 880 It is proposed that this article bf'. amended by eliminating the words "or term" in line 2, and "or until the arrival of the term" in line.:J 4 and 5 <end of the first paragraph). 206: , _ LAWYERS J.OURN,AL April .. so, 1964 We bt!g to disagree with the proposed amendment because this article provides for what shall be done with the estate of the deceased pending the fulfillment of a suspensive condition or the ar. rival of a suspensive term. By eliminating the words mentioned in the proposed amendment, the a.rticle would cover only one case, when it should cover both the testamentary dispositions subjt!ct to the fulfillment of a suspensive c011d1'Hcm and dispositions with term. ARTICI.E 888 The Code Commission accepts the suggested amendment to tHl· ragraph 2, of Article 8R3, so that it will read, thus: "If a person interested should prevent its compliance, without fault of the heir, the requirements of the testator 11hall be deemed complied with. This rule shall likewise apply to susnen. sive conditions." GENb'HAL OBSERV.4.TIONS The increase of legitime to one-half enlarges the free portion to one-half, thus giving more freedom of disposal. The mtjora is suppressed because the tesbtor may, if he desires, expre113 his preference to any of his children by giving him a part of all of the free half. ARTTCLb' 886 This article uses the words "compulsory heirs"'' Instead of "forced hefrs". The Code Commission believes that the former Is more appropriate a.nd better, because the word "forced" may Im. ply the use of violence or intimidation. Moreover. these two te)'ms have been and are still used intcrchan1.?eably by the bench ::md bar. The German Civil Code in its translation uses the terms "compulsory beneficiary" and "compulsory portion". It is not a question of 4'amending itch", but a question of choice of terms. With the proposed amendment. may we return the "amending itrh" with our complimcds? <See also our comment under Art. 887, No. 3l. ARTJCLE 887 (8) The proposed addition of the phrase ''who has not given c11u11e for legal separation" to No. 8 of this article is superfluous. not only because of Article 892, par. l , but also of Article 176. By adding the proposed amendment, criticism ma~· be made on the ground of repetition. AHTICLE 888 Mr. Justice Reyes sujl'gests that a third par~raph be Inserted in Article 888 which should provide, thus: "The Jegitime of an adopted child !!hall be the !1:1.me as that of a legitimate, except as provided in Articles 342 and 343.'' Again, the insertion proposed is not nec~ssary because of the pffects of atloption which are specifically f:tated in Article 341, para.grapl1s (1) and CS), which ordain: ''Cl) Give to the adopted person the same .rights and duties as if he wer~ a legitim.ite child of the adopter; "CS> Make the adopted person a legal ht-ir of the adopter." ARTICLE 891 It. Sef'ms that Mr. Justice Reyes agrees in the abolition of the "reserva troncal" provided that the right of representation be extended to the direct ascending line. The original dra.ft of the (!r;dp Commission eliminates the "reserva troncal" and all other "rese>rvas" provided for in the old Civil Code, such are the "reversion legal" <Art. 812> and the ·•reserva viudal" <Arts. 968, et. seq.) The main purpose of eliminating all th~se ''reservas" is to let the property go out of the family, to prevent the occurrence of suspended ownership, and to carry out the fundamental principle embodied in the law of successior. leading to the socialization of ownership, not in the sense of "socialism", but in the sense of effective. ly adapting the property to the needs of society. By abolishing the "reserva troncal" and establishing a right of representation in both the paternal and maternal ascending lines, it will necessarily produce the same result which the new Code attempts to avoid. It is the same thing but done under a diffetent cover. Non-representation in the ascending line is based on the d~ep1·ooted sentiment of parents that they do not expect any mate>rial reward from their children and grandchildren. ARTICLE 892 Mr. Justice ReyP.s suggests that the following shall be added to the first paragraph of Article 8!)2: "The result of the .mit shall be awaited!' The insertion of the sentence is not necessary for the pi-oper understanding of the provisions of paragraph 1 of this article. The iast sentence of the snid art:.cle reads: "In ca.se of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the samie." A careful reading of the above provisions shows that the right of the surviving spouse to inherit from the decedent shall depend upon the result of the action for legal separation, and a person would be too presumptuous to claim a right when the same has not yel· accrued. ARTICLE 899 If the surviving spouse concurs with legitimate parents or ascendants, the former shall bp entitled to one fourth <I /4J of the estate, and the other fourth is at the free disposal of the testator <Art. 8981 . Article 899 provides for the share of the survivinJZ spouse who may concur with legitimate parents or ascendants and illegitimate children <natural and spurious). In the latter case. the share of the surviving spouse tOJ.?ether with that of the illegitimate children shall bP. taken from the free portion. It necessarily follows that the legitime of the spouse should be smaller becam1e hP. or she succeeds with another class of heirs. Whereas ,in Artide 898, there are no ille!ritimate children with whom he or she may concur. The free portion consist.ing- of one-ei~hth (1/8) may be given by the deceased to his or her imrvivin~ spouse, and thu~. his or lier share shall be the !'inme !ls the global share of all illegitimate children. A RTICLT? 900 The purpose of Article 900, par. 2 which provides for the legit-ime of the surviving spouse in rase of marriage in °articulo mortis" where the testator died within three months after the marriar.e is to forestall the poi:;sibility of a me.rriage with SClme ulterior motive. Tn oth':!r words, a person may marry another who is on the verge of death and the former may take advantage of that condition. In intestate succession, however, the law makes no distinction with respect to thp cirr.umstanct>!l surrounding the celebration of the marriage, because the possibility of undue preai>ure and influence in the makintr of a will is eliminated, and the surviving spouse inherits by operation of law. ARTICLE 902 Mr. J ustice Reyes contends that the provisions of Articles 902, 989 and 998 confer the ril!ht of renresenta.tion upon the illegitimate issue of an illegitimate child; while the il!f>,qitimate issue of a le. gitima.te r.hild is denied the ri'!ht of represente.tion by Article 992, nnd therefore unfair and unjustified. In answer to this claim of unfairness and injustice, we would like to cite the provisions of Articles 982: "Art. 982. The grandchildren and other descendants shall inherit by right of representation, and if any one of them shontd hnve died, leaving several . heirs, the portion pertaining to him shall be divided among the latter in equal portions." If the provisions of the above article are correctly interpreted and understood, do they exclude the ille>gitimate issue of a lt'gitimate child? The terms "grandchildren and other descendants" arc not confined to legitimate offspring. We submit that not only legitimate but also illegitimate descendants should be included in the interpretation of Articles 902, !199 and 998. In cases of this kind, where the Code does not expressly provide for specific rights. and for that matter, all cedes have gaps, equity and justice should prevail ,taking into consideration the fundamental purpose of the whole law .on succession which, .::imong other things. gives more rights to illegitimate children, there. by re!axing the rigidity of the cld law, and liberating these unfortunate uersons from the humiliating status and condition to which the>y. have been dumped. (To be continued) April $0, 1964 LA WYERS JOURNAL 207 PUBLIC CORPORATIONS (Continued from the March Issue) [§ 280] U. Personal <'Ond11r.t and habits; disorderl71 ho1un.l. In gener-il. - a. G~:ne?"ally. "Within well-defined limits of th!)ir granted powt'!rs, either chnrter or cfatutory, and with careful Clb. servance of constitutional guaranties of personal liberty, municipal corporations msy enact ordinanc;-~ designed to prevent breaches of the peace, disorderly conduct, vagrancy, and similar ofienses. Ordinances desiimed for such purposes, however, are frequcv.tly found to be much to::i broad in scope, hence unconstitutional or unreasnntthle. For inst9nce, ordinances have been held invalid which make it a crime for anyone knowingly to associate with persons having the reputation of being thieves or gamblers, with intent to agre:'E! to commit any offense; which declare it unla.wful for any minor to be upon the streets more than fifteen minutes after the ring. ing of a curfew at an early hour of the evening ; and which make a private trespass a penal of(ense. An .:1rdinance that no pnson i;hsll 'permit drunk2.rds, intoxicated pr.:-sr.ns, tipplns, g'amblo:"r&, persons having the reputation or name of being prostitutes, or other disorderly persons to congregate, assemble, Yisit, or remain' ill ''his or her house, tavern, inn, saloon. cellar, shop, office, or other residence or place of business,' has likewise been declared to be unreasonable and beyond the power of a municipal council ·to enact, because it. is not limited in ih app!ie,ation to places of busines.'l which require police regulation, or to assemblages of immoral per. sons, and does not make knowledge of the reputation of the ucrson visiting a house or place of business, or e..n unl:iwful purPOs~ on the part of the visitor, an ingre".lient of the offense."153 Di.'fOTderly houses. "Disorderly houses may become the proper subjects of regulation by municipal cr>rporatoin; sometimes under their general powers as to public safety, welfare. health, etc., and Mmetimes under an express or implied grant of pl"wer for the purpose. The regulation of such houses may involve the power to PNhibit or suppress."15• (§ 281] b. Stahtto111 prO"Visio'ls as to Pliilippi?le m1tnicip1].l corp0Tati1Jns, - (1) Municipalities in regular 1»'0Vint•es. "Tt shall hP the d11ty nf th!' mllnicipal cou?Jci1. confcrmably with Jaw: ... . . •" "(j) To restrain riots, distL1rbances, and disorderly assemlilP.ge11. "(j) To prohibit and penalize intoxication, fighting, gambt:ne-, mendicancy. prostitution, the keeping of disorderly houses, a11d other s11ecies of disorderly conduct or disturbance of the peace. "Ck) To provide for the punishment and suppression of vs. r:rancy and the punishment of ar.y person found within the town without Jegitima.te business or visible mean!l of support." ... • • •"135 The section in which thesP. provisions are to be fo~md is entitled ''CN"tain legislative powMs of mandatory eharacl.er." (§282] C2) Municipalities in specialltr organized prcn.ir.ces. "The municipal council shsll have power by ordinance or resolution: ... . . "Cgg) Disorderly hcmses, and so forth. - To suppre~s or re.. gUJa.te houses of ill fame and other d~torderly houses • • • "Chh> Gambling, riots, and breeches of the pnce. - Tn p:'Pvent and suppress riots, gambling, affrays, disturba'"lces, rd discrderly. assemblies: to punish and prevent intoxication, fighting, quarreling, and all disordely C'Onduct; to make and enforce a.II ueeessary police ordinances, with the view to the confin!!ment and reforms.tion of vagrants, g:i.mbiet:ii, dis'>rderly persons, mendicant,, :;~n~~:~itutes, and persons com;cted of violating any munici(i:t.l [§ 2'.l:J] CJ\ City of Manila. ''The Municipal board shall bnve the following legislative powers: ..• . "(f) To • make all necessary police ordinances with a view to the cnnfinement and l'efc>rrnatie>n of vagrauts, dil'>Ord,,.rly persons, mendicants, and prostitutes, a.nd persona convicted of vi,,.. ~ur972. 154 43 c. J. 864. 155 Sec. 2242. Rev. Adm. Code. 166 Sec. 2626, Rev. Ad.in. Code. lating any of the ordinances of the city. ... . "Cr) To provide for the proiliHtion and s•1ppression of riots, affrays, disturbances, and disorderly assemblies; houses of ill fame and other diso1·derly houses; gaming houses, gamhlhg and all fraudulent devices for the purposes of obtn.ining money or property; pro$titution, vagrancy, intoxication, fighting, quarrelmg, and all disorderly c:mduct . (§ 284] 2. Use of tobacco. "A municipal corporation has M power to prohibit the smoking of tobacco upon the streets or other public places within its limits. Even when such a broad, attempted restriction is confined to the smoking of cigarettes, it is nonetheless invalid. Smoking in itself is not to be condemned for any reason of public policy. It is agre~able and pleasant, almost indisp<'nsable to those who have acquired the habit, although it is distasteful, and sometimes hurtful, to those who are compl':lfod to breathe the air impregnated with tobacco in c!ose and c1mfined places, such as street cars, may be prohibited by ordinance; like-. wise, regulations may be adopted to prevent smoking in the neigh~ bcrhood of large quantities of combustible materials, in order to limit the danger of fire."158 [§ 285] V. Private property; keeping and use.m - 1. In ge.neral.-"No definite rule can, with accuracy, be set forth, as to the exttni to which municipal corporations may regulate the use of privat& property. While tr.ere is little difference in the enunciation of the :1pplic,1ble prinC'iplP-s, the <lifficul~y :md the differences grow out of the application of th~se principles to the facts of partic11for case!!. The police power of municipal corporations must be responsive, in thtJ intErest of comnibn welfurc, to the chn.nging conditions and dtiveloping_ nei::ds of growing communities. Such power at:tt:orizes various restrictions upon the use of private property as social and economic changes come. The validity of the exrcise of the power may d.:pend upon the circumstances. of the tiarticular case. A restriction which may hav.: been considered unreas'-nable ruid invalid iu prior years may subsequently be considered otherwise. Also a restriction while reasonable and valid in regard to n part.. iC'ular district of the corporation may be unreasonable and invalirl t::r.v.'.l.rd a rliffrrent district or the municipality. And again a restriction while reasonable within a part:cular municipal corporation may be unreasonable in another. The tendency is in the direction of sustaining the power. While it is fundamental that the owner of private property, located within the municipal b:mnda~ ries, may 'Use it frr any lawful purpose or in any l11wful manner that he may see fit, end n municipal corporation cannot interfere with such right, such property may be subject to such res. trictions and re,2'Ulations a~ the corporation may, m the exereise of the police power, by proper enactment, reasonably impose. So long as municipal bodies confine their enactments, providing for the regulation and control of pro.,erty privately owned, within the proper limits of their police powers, they do not violate the property rights of the individu::i.J.16o The limit imposed is that the regulations or requirements, whatever they may be, must he reasonable, and , n'.lt arhitrnry, and haYe for their object the preservation of the public health, silfety, morals, or general welfare. A limitation upon an owner's use of his property ca.:inot be impoSP.d for the lx:nefit of other property owners. It is held that an authority materially to curtail the uses of property ur:der the genera! police power, when health, safety, morals, peace, and comfort are not involved, will not ')rdinarily be: inferred from the general welfai:e powers conferred upon municipal corporations, particularly when kindred or similar powers are not expressly conferred, ::md have not been customarily exercised pursuant to the general power~ relating to the public welfare;"l61 Illustration. On September 7, 1935, the municipal council of Jriga, Camarine~ Sur, approved Ordinance No. 5, series of 1925, article 1 r>f which provides as follows: 157 Sec. 18. Rep. Act No. 409. 158 37 Am. Jur. 973. 159 Bultdinir reirulation, !Sec IUJ)U., I Fire .-egulatlon11. let! 11upn, f Zonlngregul11tion1, 11eeinfra, fS UlO Cue v. Board of Hn1lth; 24 Phil. 250; Fable v. Manila. 21 Phil. 488. 161 43 C. J. 413-U6. 208 LAWYERS JOURNAL April SO, 1054. "ARTICULO l. Se prohibe terminantemente a t'ualquiera persona, associacion o corporacion, duefio del terreno qne colinda con !no orillas fe eualquier camino, vereda, rio y riachuelo dentro d2 la jurisdiceion de! municipio de Iriga, Ca.marines Sur, acorralar dicho parte del terreno sin pedir permiso en forma al Presidente Municipal, especificado en ella el sitio y el nombre donde radica.'' The herein appellant, Pedro Malazarte, was fined PlO, with subsidiary imprisonment in case of insolvency and to pay the cents, for violation of the afnresaid ordinance. On appeal to the Court of First Instance of the province, defenda11t presented no ev:dence and mo\·ed for the dismissal of the case on the ground that the ordinance unduly interferred with individual Iiherty and property and therefore unconstitutional. The Supreme Court held that this contention of the appellflnt is without merit. The permit is required where the private propt:rfy to be fenced borders on public properties or properties affected Piith public interest, :md the requi1·ement i~ a legitimate exerc1s~ of the police power of the municipality. Chief Justice Shaw, ono hundred years ago, observed that ever}' holder of title, holds it under the implied liability that his use of it may be so regulated that it shall not be injurious to the rights of the community. <CQmmonu·1;;alth v. Alger, 7 C11sh. 53.) The permit in the present case is required by the ordinance to saft"!guard these rights. People v. illalnzrlrf,;, ':'O Phil. 236-237. [§ 286] 2. A esthetic con.11idunlions. "Since the police power of n municipal corporation cannnt p!'operly be exercised for merely an a.esthetic purpose, it is generally held that building rcgu1ati0ns or regulations in regard to the use of private property, which are in use solely induced by aesthetic considerations and have no relation to the proper objects of police powers, cannot be sustaiued."162 "Of recent years, in response to a growing demand for the preservation of natureJ beauty and the conservation of the ame!ll~ ties of the nei.q-hborhood resulting !rom the manne-r in which it.: hti9 been laid out and built upon, 1egishtures and municipalities have sought, by statute and by ordinance, to prevent the encroad1il1g of undesirnblc features, ansightly erections, p,nd obnoxious trades. This legislation, induced mainly by aesthetic consideraticms, has given rise to a series of novel questions affecting the leb-islative power of both the State and its governmental agent, the city. It has been held that, !or aesthetic considerations Rnd to promote the popular enjoyment and advantages derived from the maintenanc;e of a public park, the legislature may, by virtue of the power of eminent domain and upon making just compensation, impose restrictions upon the manner tn which property abutting- on the park may be improved and used. But it is z.pparent that res.. tridions founded, not upon the pc.w(.l' of eminent domain, but Uf)on the exercise of the police power, stand upon another basis, and several cases have laid down the rule that by virtue of the police power merely, neither the legislature, nor the city council exercising dPleg:?.t£>d power to legislate by ordinance, can impose re:>t?ictions upon the use of private property which arc induced solely by aesthetic considerations, and have no other relation to the health, safety, convenience, comfo1·t, or welfare of the city and its inhnbita.nts. The Jaw on this point is undergoing development, and rierhaps cannot be said to be conclusively settled as to the extent of the police power.''1113 This rule has been applied to regulations establishing building lines and inhibiting abutting owners from encroaching thereon, and regulations in regard to the height of buildings. But wh{:n it is determined that the regulation has a reasonable reference to the safety, health, morals, or general welfare of the municipality, conf.iderati::ms of nn aesthetic nature may enter in as an auxiliary; and sud1 fact will not invn.lida.t.:! the i·egulation. And from the lanJruage used by some decisions it may be inferred that such regulations may rest upon aesthetic consideralions.''16t "If by the term 'aestlietic considerations' is m"?3nt a reg!:.rd mr.rely for nutward appeara.nc"?s, for good taste in the m'.l.tter of the beauty of the neighborhood itsf'lf, we do not observe any substantial reason for saying that llUl'h a cons1de1·ation is not a mattr.r of general welfare. The beauty '>f a fa<>hionable residence ncigh~ .c111. 1611 2 Dillon Municipal Cort10ratlons f 695 (quot Fruth v. Cbarlnton Bd. ol .rr.rfain. 7S W. Va. 4S6, 464, LRA19l5C 981. 1s4 ca c. J . 416·-f.17. horhood in a city is for the comfort and happiness of the residents, and it sustains in a general way the value of property in th~ neighborhood. It is therefore as much a matter of general welfare a.s iS any either condition that fosters comfort or happiness, and consequent values generally of the !>roperty in the neighborhood. Why should not the police p;:iwer avail, as well to suppress or prevent a nuisance committed by offending the sense of hearing, or the olfactory nerves? An eyesore in a neighborhood of residences might be nl'I much a public nuisance, and as ruinoui; to property values in tht> neighborhood genera.Uy, as a disagreeable noise, nr odor, or a menace to safety or health. The difference is not in principle, but only in degree. In fact, we believe that the billhoai·d case • • • might have rested as logically upon the so-callei:l Msthetic considerations as upon the supposed other considerations of general welfa.re.''165 [§ 287] W. Public calamities; statutory provisions as to Phil. ippine municipal corporations. - 1. Municipalities in 'Tegulair pro. 1'inces. "[Tht! mayor] shall have the following duties: ""' . "' "(c) He shall issue orders relating to the police or to public safety and orders for the purpose of avoiding conflagrations, flood.'i and the effects of storms 0 1· other pu.blic calamities. ""' • • *"lM. E! 288] 2. Municip~lities in specially ~rganized vrovinccs;,;'The municipal council shall have power by ordinance or resolution: "<U Storms and calamities. - To make suitable provisions to insure the public safety from conflagrations, the effects of storms, and other public calamities, and to provide relief for persons suffering from the same. "* • [§ 289] 3. City of Manila. "The general duties and poweri; of °!~. mayor shall be: • • ''Co> To take such emergency measures as may be necessary t.o avoid fires, floods, and the effects of storms and other public caJ.-mities. . . ~~e Municipal Bott.r~ shall have the fol~owing legislative p~:-;ers: "(k) To make regulations to protect the public from conflag. rations and to prevent and mitigate the effects of famine, flood, storms, and other public calamities, and to provide relief for persons suffering from the same. "* • [§ 290] X. Public meetings. "Public meetings or asi;emblies in public places ma.y be subject to reasonabl~ regulations by municipal corporations. Such regulatfons are a valid exercise of the police power; and they have been upheld as against constitutional cbjections, as for instance, that thr.y curtailed or restricted the liberty of speech and tha.t they made arbitrary discrimination in favor of some persons against others. Dut the regulations must be reasonable, and not arbitrary. It is only when public meetings create public disturbances, become nuissnces, or create or threaten tome tangible public or private mischief that the power to regulate such meeting should be exercised. Under express or implied powera municipal corporations may ptohibit publie meetings in public places on the Sabbath day. Municipal corporations may prohibit the display of banners, placards, etc., on the streets or sidewalks except in public processions."170 "Permits. In the exercise of the power municipal corporations may require permits to be obtained, for the holding of public meet.. mgs, from designated public officials or boards. Such requirement is a valid exercise of the police powers. The grant or refusal of such permit cannot be left to arbitrary discretion. Where applicant for a permit for a public meeting complies with all the J·equiremcnts, and the permit is refused, he may invoke the aid of th~ court to prevent the unreasonable refusal nnd to compel the granting of the necessary permit. "171 · 165 State v. New Orleans, 164 La 271, 83 ALR 260. 161l ~. 2194, Rev. Adm. Code. 167 $«. 2626. Rev, Adm. Cod'!I. 168 See. It, R<:!p. Act No. 409. 1~9 See. 18. R'1111, Act No. ~09. !70-171 43 C, J, 419; Prlmiclas v. Fua"oso. 3264, ruUnir - I 161, 1uwa April 30.1 1954 LA WYERS JOURNAL 209 [§ 291] Y. Public utilities of private ownership. - t .. fo g1;neTa.l. - a. Generally. ''The term 'public utility' implies a pub. Ii..: use, carrying with it the duty to serve the public and treat all pc.rsons alike, and it precludes the idea of service which is private in its nature and is not to be obtained by the public.••m "As a general rule municipal corporations have power to regulate reasonably the conduct of public utilities conducted under private ownership. Alld the state may delegate to such Cl)rporation its right to do so. Such power may be derived from npress, constitutional, or statutory grant, or iL may be implied when, and only when, necessary to provide for the health, safety, or welfare of the corporation, unless such power has been exclusl vely con. ferred upon some ether public body. Such regulations are incidt-nts of police power, and must be so restricted. This power is a continuing one nnd cannot be bargained away or otherwise part~d with. The regulations imposed must be reasonable, and certain, and such as not to violate any cha.rter rights of the public utility company, or infringe on constitutional rights. The power to regu. late does not include the power to ,prohibit. A municipal corpciratior. cannot impose upon a public utility essential to the welfare of thC" people conditions of operation or maintenance which will confiscate its property or destroy its power to serve the public; this the corporation cannot do either by ordinance or by contra~t. Th$ language uf a statute granting such power is strictly construed. '\'-here the means by which the power granted shall be exercised are specified, no other or different means for the exercise of auch power can be implied. The cxercis.- of the power of regulat:on is subject to judicial review, but the court will not interfere in the absence of evidencE> establishing abuse of discretion or a vfola.ticm of constitutiona.J rights.''113 [§ 292) b. Statutory pro11isfong as to Philippine municipal corporntion. - (!) Municipalities in speciall11 organized pro1:inces. "The municipal council shall have power by ordinanc• or resolutivn: ... . . •" "{p) Gas, 1:lectricity. tdep1"mes, and 10 forth. - To prcvidri fer the inspection of all ga!I, electric and telephone wires, conduits~ meters, and other appsi.ratue and the condemnation and correction or removal of the same when dangerous or defective. ... . . [§ 293] <2> City of Manila. "The Municipal Board shall have the following legislative powers: ... . . "Cdd> to regulate and provide for the inspection of all gaa, electric, b!lephone, and street.railway conduits, mains, meters, and other apparatus, and provide for the condemnation, substitution or removal of the same when defective or dangeroU& ... . . (§ 294] 2. Where stat6 has acted. 1'The power to regulate public utilities may 00, and often times is, delegated by the state to boards or commissions. Then the question arises whether the power of !luch body is exclusive or concurrent with that ·of the municipal corporations. If the power conferred on the board or commission may be exercised without being interfered with by the r~gulation of the municipal corporation, the power may bf! exer. c1sed concurrently to the extent that the municipal regula.tion does not conflict with the exercise of the power conferred upon the state board or commission. Following the general rule municipal regulations dealing with public utilities cannot conllict w:th stn. tutory enactments on the subject. Ordinarily power conferred on publie service boards or commissions over public utilities exelude3 the corporation from acting in the premises. The power of th!? municipal corporation ceases when the a.uthority b exclusively vested by the state in a public service comrni.uion or board. And it ce~~s immediatt'ly whPn the law· conferring the powl:r on the com. m1ss1on becomes effcctive.'1118 Applicati<M (•f 'l"Ules. The above ruJes have been applied, among" eother public utiiities, to gas companies, electric companies, uil. ~:·a.'~~;~et railroad&, telegraphs and telephones, and water com. [§ 295] z. Ract1 srgrtgn.tirm.. - 1. 111 genernt. "The f'!artlest: decisiot1s of thfl highest courts of appeal of several of the states upheld the validity of regulations segregating races, whereby sep'.\rate residential sections were provided for particular ra.ces. They held that the power arose by implic-ation under the incidental p:iwera of municipal corporations; also under a general grant of power; and they regarded such ordinances as & prnper exercise of the pclice power -Jf the corporati:m, The valid"ty o( such eordinsi.nces was ,upheld that the power arose by implication under the incidental powen due process of law, that they we:-e discriminatory, and that the1 denied the equal protection of the law."111 "No intelligent observer in communities where there are ma\iy colored people can fail to notice th~t there are sometimes exhili,itions of feelings betw~n members of the two races which arl! Ji11..;ly tC', and occasionally do, result in outbreaks of violence and dia.. order. It is not for UR to say what this is attributable to, but the fad remains - however much it is tn be regretted - and if a aeg. n~gation of the races to such extent as may be permissibl~ und!!r the Constitution and le.ws of the land will have a tendency not only to avoid disorder and Yiolence, but to make a better feeling between the races, every one having the interests of the co'.ored penpie as well as of the white people at heart ought to encounge rather than oppose it.''1'19 "The avowed object of the ordmance is to presen·e peace, prevent conflict and ill feeling between the two races an1 thereby promote the welfare of Baltimore. The means employed &.re that hlocks which were occupied by t:olored people exclusively should c11ntinue to be occupied by them exclusively, and that blocks occupiPd excluaivE:ly by white people hhould so continue to be occupfod by them. The ordinance does not legislate on what were 'mixed Ulvcks' - those ?ccupied by members of the two r!lces - at the time it was passed, and whatever other object:ons roay be urged against it, it cannot be truly saitl that there is any discrimin:it·on in th e ordinance against the colored race. Indeed in its practical C·peration it would be more burdensome on white people than on colored people, for it is well known that white poople own the great bulk of property in Baltimore City, and l1ence where the property of one colored person w<lu"ld be af!ccted by such an ordinance those of many more white p<.'Ople would be. What i'I denied one class is denied the other, what is allowed 011e clas!I is allowed the other. There is therefore no such ditcrimination a3 is prohibited by the Constitution or st2.tuti>s securing civil rights, and it is not necessary to discnss that question further."180 "But even some of the early decisions held that thA power conferred upon a municipal corporation to enact ordinances for the general welfare o( the community did not authorize such segre~ pating rcgul11.tions."lll "We do not think that the authority conferred .. to enact eirdinances for the 'general welfare of the city' can 1ustly be cons.trued as intended by the Legislature to authorize an ordinance of this kind which establishes a public polic1• which has hitherto be1:n unknown in the lej?"islation of ou1· Stnte. To do so would gi\'"f! to the words 'general welfare' an extended and wholly unn:strictE:d l't'ope, which we do not think the Legislature cculd have contem. plated in using those wcrds. If the bond of aldermen is th.:re~ Uy authorized to make this rel'ltriction, t: bare majority of the Ward couM, 1f the1• may 'deent 1t wis~ and proper,' require R~Jiub.. licans t<' Jive on certain streets an<l Democrn.ts on uthers; or th1t Protcsta11ts shall reside only in certain parts of the town a":td Catholicl'I in another; or that German.It or people of German descent shnuld reside on1y where thq ar.? in majo1·ity, and that Irish and th .... se of Irish descent should dwell only in certain locaJitie!I, de~igro.a~ed for them by the arbitrary judgment and permission of a majority of the aldermen. They could apply the restriction as well to busi. nus occupations as to r~sidences, and could also pt·es~ribe the localities allotted to each class of people without reference to whether the majority eJready therein is of the prescrib:d rac~, nationalit)'·, or political or religiou<J faith . . . . In Ireland there were years ago limits prescribed beyond which th~ native Irish or Celtic population could not reside. This was called the 'Irish Pale,' and one ot the results was continued disorder and unrest in that ullhappy island, which ha.d as one of its conSequences that more n: ~~~· :: t2 i!';ray, l21 Yd. 634. H6, 47. LR.ANS 1087. 180 State "'• Guru.y, 1upra. 181 43 c. l. •29. 21Q .LAWYERS JOURNAL April JO, 195' OPINIONS OF . (Continued from page 198) for the payme.nt of his salary. Hence, opinion is requested on whether or not the money vahtP of the leaves · enrncd by Justice de la Rosa may be paid out of savings in the appropriations for the inferior courts, pursuant t<i Section 6C8) of Republic Act No. 906 which reads: ''Sec. 6. Authority to use savings for other purpose'i -- l'he President of the Phi\if..}Jines is authori::ed to use any savings in the appropriations authorized in this Act for the Executive Departments x x x; <Sl for the payment ..,f c0mmuted sick and vacation leaves of employees who may be retired· under the provisions of Republic Act Numbered Six hundred sixty; x x x." The Auditor General interposes no objection to the transfer of the savings in question to the Court of Appeals and justifies his stand in the following manner: "If the provisions of section 6<8> above-quoted were to be strictly adhered to, the savings of P8,000.00 mentioned above could not be transferred to t11c Court of Appeals under this section. Considering, , however, the circumstances · of the ca~e as stated above and the fact that Republic Acts Nos. 906 and 910 wC!re approvC!d simultaneously so that Congress could rlot include the payment of tE'rmir.al leave of Justices of the Court of Appeals and the Supreme Court \\;ho may be retired under Republic Act No. 910 out of the savings the.t may be realized, und considering further that Justices of the Court of Appeals are entitled to retire under Republic Act No. 6GO <Justice de la Rosu crmld have availed '>f the Lenefit!I of Republic Act No. 6GO, instead of Republic Act No. 91'J had he chosen to do so in which case his terminal leavt' could be paid out of sala.ry savings pursuant to section 6C8> ,upra\, this Office, in line with section 6<8> ~f Republic Act No. 906, will interpose no objection to the transfer to the Court of Ap~ peals of the savings of PS,000.00 realized for the Inferior Courts for the purpose of covering a portion of the accumuln~ ted leave of former Justice de la Rosa, if approved by 'tho President of the Philippines." The undersigned concurs in the above-stated view of the· the Auditor General and agrees with the reasons advanced in suppvrt thereof. The quety should therefore be answered in the affirmative. Sgd. PEDRO TUASON Secretary of Justice than half its population came to this country. That policy has since been reveroed. But in Russia, to this day, there are certain districts to which the Jews are restricted, with the result that vast numbers of them are emigrating to this country. We can ha.rdly believe that the Legislature by the ordinary worde in a charter authorizing the aldermen to 'provide for the public welfare' intended to initiate so revolutionary a public policy."182 And they also held that such regulations could not interfere unreasona.bly with vested rights. When the question fir&t arose in the supreme cou?"t · of the United St:ites, several munidnal corporations, from the states wherein the ordinances under c:ns'.deration were upheld, were permitted through amid curiae to file briefs in the case. That court sE'ttled the question and l:eld th1t segregation ordinances or regulations whereby separete res'dentbl sections are_ provided for particular races are not within the po kc power of municipal corporatioris, and that such ordinances or regUlations were unconstitutional in violation of the Fourteenth Amendment of the federal constitution."lU (§ 2!16] 2. Statutory provisi1n1, as to City of Manila. "The Municipal Board shall have the following legislative powers: ""' . . .,, "(dd) To regulate, inspect and provide measures preventing any discrimination or the exclusion of ::my race or races in or from any institution, establishments, or service open to the public within the city limits, or in the sale and supply of gas or e~ectricity, or in the telephone and street-railway service; to fix and regulnte charges therefor ~here the same have not been fixed by national law •• ... • • •"18fi 18Z State v. Darnell. 166 N. C. llOO • . 102. 803, 61 LRANS 332. 183 Buchanan v. Warh!Y. 245 U. S. ftO. 88 Sup. Ct. 12, 62 L. ed. 18fi Sec. 18, Rep. Act No. 409. BACK TO LAW • • • <Continued from paga 168) in its entirety? How many are familiar with Artide 191 of that code? Of the legal requirement of executing a testament bE:fore a notary public? How many have a copy of the new code? And ho'v many of my colleagoes know that about sixty per cent of this codes is new; and when I say new I mean bra.nd new? There is therefore need, great need in our country, for regular refresher coursE's for practising attorneys and for other members uf the bar. The medics have it. The question, then, is, Which of our Jaw schools will initiate the movement for refresher cla;ises for LI. B. 's? It's a fertile field I · Republic of the Philippines Dt.!partmcnt of Public Works and Communications BUREAU OF POSTS MANILA SWORN. STATEMENT (Required by Act 2580> The undersigned, VICENTE J. FRANCISCO, editor and publisher, of THE LAWYERS JOUHNAL, published once a month, in ENGLISH AND SPANISH, at 1192 Taft Avenue, Manila after h'.iving been duly sworn in accordance with law, hereby submits the following statemO?nt of O\.\'Tlership, management, circulation, ete., which is requi1·ed by Act 2580, as amended by CommonwE>alth Act N'l. 201: NAME Post-Office Address Editor: VICENTE J. FRANCISCO 1192 Taft Avenue, Manila Managing Editor: V. J. FRANCISCO 1192 Taft Avenue, Manila. Businesg /l!anager: A . OCAMPO 1192 Taft Avenue, Manil.i. Owner: VICENTE J. FRANCISCO 1192 Taft Avenue, Mamlt1. Publisher: V. J. FRANCISCO 1192 Taft Avenue, Manila Printer: CAPITOL PUB. HOUSE INC. 105 Don A. Races Avenue Quezon City Office cf publica.tion: 1192 Taft Avenue, Manila If publication is owned by a corporation, stockholders owning one percent or more of the total amount uf stocks: NONE NON F.: Bondholders, mortgagees, or other security holders owning one percent or more of total amount of security: NONE NONE In case of daily publication, average number of copies printed and circulated of each issue during the preceeding mcnth of--19--: 1 . Sent to paid subscribers . . . . . . . . . . . . - -2. Sent to others than subscribers ............. - - - . Tot a I ..... . In case of publication other than daily, total number of copies printed and circulated of the last issue dated February 28, 1954. 1. Sent to pa.id subscribers . . . •. . . . . 3,180 2. Sent to others than paid subscribers 120 Total ~ CSgd. > VICENTE .J. FRANCISCO Owner and Publish~r Subscribed and sworn to before me this 3rd day of April, 1954. at Manila the affiant exhibiting his Residence Certificate No. A-0195781 issued at Manila, on February 10, 1954. DOC. No. a:n ; Page No. 68: Book No. II; Series of 1954 CSgd.> CELSO ED. F. UNSON Notary Public My Commission Expires on December '81, 1954 April SO, 1954 LA WYERS JOURNAL 211 "LAUGHTER IS LEGAL" TOO TRUE f gine the surprise of the good womn.n when she read; "Arriwd Statistics show it rP.Quires a.bout 19 hours of congressional talk to safely-heat terrific." produce one Jaw. And one law probably results in 1!> y!!at~ of talk in the courts after it's passed. HE IS THAT NOTHING BUT THE LIE The judge wished to maim rnre that the witness um.ler. stood the solemnity of the- occ'.lsion. 1'Do you know what that oath means?" the judg~ askl'd. "Sure; I do," the witness answerrd. "That oath mc~s if I swear to a lie, I gotta stick to it." JHST ON DAYTIME Client tjust aquitted on bulgary charge> - "Well, good bye. I'll drop in your home some time." Counsel - "All right, but make it in the daytime, ple~se.'' THE CFrOICE "1 shall have to give you ten d::J.ys or $20" , said the jlldge." "I'll take the $20, judge," said the prisoner. PROFIT AND LOST My uncle, helping a. farmer prepare his tax return, ex:im~ ined his ledger. There were no debit or credit colu:nns, but im~tead the entries read : "Sold eggs $2.68" or Bou~ht $Hi.92." Most of the items were easy to interpret, but One readinl? simply "Horse $10.00'' stumped my uncle. . "Did you buy the horse for ten dollars or sell him", he asked. "Well," said the farmer," it's like this: I bought that ornery animal for ten dollars. Ho! right away kicked dC>wn two stalls, and that cost ten dollars. Then I used him to pull a car of a mud rut, and got paid ten dollars. Once I so!1 him for ten dollars, but he cause such a peck of trouble that T bought him back for ten dollars. I used him to take some kids for a rirll', and they gave me ten dollars. Finally the fool horse wandered into the ro:tds, and a guy hit him and killed him. Ile paid me ten dollars, but I had to turn around and pay ten dollars to have the carcass hauled awa.y. And you kr:.ow," said the farmf't-. J must have lost track somewhere, 'cause I can't figure out whether that durn horst: ended up in llwir.g me or nie owing him." cot•RT CASES A man appeared in court seeking a separation from his wife. "On what grounds?" asked tho! judge. "011 the ground~ guaranteed in the constitution. You know, Judge - freedom of speech." EAVESDHOPPED " Repeat the wnrc:ls the defendant used", said the lawyer. ' 11 did rather not. They were not fit words to tell a gentkmnn." "Th en," said the attorney, "whisper them to the judge." TAKE ALL An undertnker wired a man; "your mother in !aw just died." Shall I btlry, enbalm, or cremate her"? The guy wirt:d; All thee - take no chances! ASYLUM GRADUATES The etory is told of Oliver Wen dell Holmes that he once mi~ took r..n insane asylum for a college. Realizing h'is mistake, he explained to the gatP.ke1~per and commented h'..lmorously. "I suppose after all, there is not a great deal of difference." "Oh yes, sir, there is," replied the guard. "In this place you must show some improvement before you can get out.'' WELL, WELL, WELL , .. .. . T\VO men bearing identical names, one a lawyer and the oth<!-r a businessman, lived in Manila.. The lawyer ·lied at about the same time that the busiTIP.ssman left for the South. Upon reaching his destination the· lattr.r sen~ his wife a telegram informing her of his safe journey. Unfor. tunate~y the message was delivered to the wife of the lawyer. Ima. Hadley Myers, an Q}tlahoma friend of mine, was mighty ma•l when l saw him on the street a while b1:ck. What.'s your wife done now? I asked. "Oh, Hadley extJludcd," she got smart-alecky the other d:iy and hired me as secretary. Blonde or brunette?" Hedley grimaced; "He's bald.'' STOP ME A men was about to go on tri::l for murd::r and he didn't f~cl thnt his chances for acquittal were very good, so he decidtd to gel to -:inc of the jurors. After sizin1: them t:p, he decided to bribe one little guy who didn't look any too bright. And he was success. ful. This Ettie dope would take a bribe. The dor,e said to the man, ''What do you want me to do?" The mau i;aid, "l w::mt you to oppose the dc:i.th penalty." The elope sairt, "How do J do that?" "You just hold out for a verdict of manslaug!iter" "Okay.'' After the tri3l, the jury was charged and they retired. They were out deliberating for about four days. Meanwhile the m!l.f!was ontr.nterhrll'lks. Finally they 1·eturned with · a. Yerdict. And the verdict was manslaughter. Th~ ma.n was delighted with the verdict and us soon as he could he met lhe dope to pay him off. He said, "I'n1 tremendously < bliged to you. Did you have a hard time holding out for a ver. diet of manslaughter?'' "YeJ.h. Th<' ::ither eleven guys wanted to ecquit you!,. Stop Me if You've Heard This One. LEGAi. SlfRATEGY If you are strong on the facts but weak on the law, discui;s the facts. If you are str.Jng c.n the law but weak on the facts discuss the law. U you are weak both on the law and the facts, hng the table. SELECTION The period of mma.nce also brings some bitter laughs. For example, during the last war. this guy was in the Army and wa~ crazy about this girl, and when he left for overseas. she criEd anJ cried. He was crazy about her and he carried her pictui·e next to his heart for two years-with the knowledge that she had told him she would ulwa.ys be true to him, that she was waiting fa• him t:> come home. Then one d;iy he got a letter from her. He; was so hapoy tc receive it that he tore the envelope open and the lett<>r 1·ead: "Denr Mr. Jones: I have decided I cannot wait for you. The banker's son wanb to many .ne right away arid has al.-ea.dy given me a Ueautifal 6-karat ring and a beautiful mink coat. So would you be good enough to return my picture. Very truly yours, Mande" Well, this ju'3t left Prh•ate Jones heartbroken. Then he startnl to burn. The more he thought about it the madder he got. So he went through the camp colkcting evny picture he coulrt get., including pin.up girls, grandmothers, mothers ... until he he.d about 200 of them. Then he sent the collt!ction of pictures to the gid with the following note. "Dear Miss Milliken : Received your request for your picture: I don't remembPr exactly who you are, so if your picture it:: among these, wou1 d )YU be good enough to take it out and send back the rest. 212 LA WY.El!S JOURNAL April 30, l tl;54 MISSING PAGE/PAGES