The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No.5) May 31, 1954
Year: 1954
Language: English
Rights
extracted text: MISSING PAGE/PAGES A CRITICAL STUDY OF THE PROVISIONS OF THE CIVIL CODE OF THE PHILIPPINES ON LEGITIMACY AND ILLEGITIMACY OF CHILDREN BY E. VOLTAIRE GARCIA• I wish tc thank the members of the Board of Directors of the Philippine Lawyers Association and all delegates representing the· different ba1· asaociations throughout the length and· breadth of the Country now in convention assembled for this rare privilege and opp1n-tunity accorded me to address you ·this a.fternoon on the si1bjeet ''A Critical Study of the Provisions of the Civil Code of the Philip11ines on Legitimacy and Illegitimacy of Children", which I c~nsider of paramouilt importance not only from the point of ·view o{ civil rights and obligations but also from the point of view of t.he social stigma from . which Ulegitimate chi1dren unriasonably suffer. We all know that legitimacy is m&inly a matter of p1-esumption because of the impossibility of descending into· the mysteries of concept.ion for the purpose of the identification of the' paternit)I' Of the child <Ramirez Cabrera, Persons and Family Relations, 255) which appears to be beyond human knowledge to fathom (8 Scae.. "\·ola1 287> so that the p1-esumption of legitimacy of a child ca.n. not be destroyed even by a contrary declaration by the moiht-r CArt. 256, C.C.>. It is, the1-efore, only in the limited cases when the legitimacy of a child is impugned or sought to be established before the Courb that legitimacy may be a matter of evidence Arts. 261, 262, 268, 268, C.C.>. Even if it were scientifically possible to determine exactly the pateni.ity of a child in every case it will, undoubtedly, be still the better policy to adhere to the principles of p1-esumption of legitimacy, otherwise, every time a wife delivers a child medical experts will be prying into the utmost privacy of her conception ·resulting in scandal and embarl'asm~t not only ·to her but also to the poor husband. And, moreover, "if the question of. legitimacy were open to such attack, to be sustained or defeated by a mere p1-eponderance of evidence based largely and most frequently upon circumstances, the integrity of blood, the pride of ancestry, and its just sense of honor all would depend upon the most dubious of titles" <Sergent vs. North Cumberland, etc., 112 Ky 888>. There are physical earmarks connecting the wife, birth and child but none with reference to the husband. The relation between mother and child is a matter «Jf fact, while the relation between father and child is a matUr of presumP!i:~~~:ap=~~~ti:; :i:e ':!!~~:crc~n::~c~s~P~:n!~:.P;e;:::;~;. ~Tenn.) 410), and founded as well upon tl1e coincidence of probabilities <Sergent vs. North Cumberland Mfg. Co., 112 Dy. 88R, 891: 66 S. W. 1036, foot note, 7 C J. ;)41). The presumption, however is not one without scientific foundation. Medical experts on this' matter affirm that the shortest ·period necessary for a foetus to acquire the conditions of viability i1 six (6) months and that. intra.uterine life does not extl'nd beyond ten UO> months <8 ··scaevofa. 291l. This is also the view of Hipocrates, a natural 11hi1osophcr {J Oyuelos 172. 178i. There is, however, no fixed rule in this regard as th~re is authority to the effect that some.. times the period is tirolon~d to three hund1-ed thirteen (319> days •according to Ah"feld) or f!Ven to three hundred twenty C320l days -acccrding 1ri Schroder) which are, undoubtedly, abnormal cases and art>, therefore, valueless as a basis for a formation of ~e rt1lcs. The general average of the maximum period, according to Legrand du So.ulle, is from two hundred sev~ty five C276). to thi·ce hundred <300> days. The German Code establishes the per10.d from a minimum of one hundred eighty. one Cl81 > days to a maximum of three hundred two <802' da)ls Cl Manresa 49U. The Sr.anish ~ode (Art. 108> like that of the Ne~ ~ivil Code of the PhilipJ>ines CArt. 255) fixes a minimum penod of on~ hundred eighty ctRO) days a.nd a maximum of three hundre~ <SOO> · , The same periods are fixed by the French Code (I Cohn Y Capitant. • t.a·~·Se~nd11Na3~~~~··eo~-!~t~11~e t:w::r":· h~r1!~n~he0;l:W!ll'~~l .. onbe~ amher28,1968. ' .APR 14 1~76 THE EXPANDING CONCEPT AND ITS SIGNIFICANCE FOR PROFESSION RY ATTY. ENRIQUE FERNANDO With your. indulgence, I Propose to discuss the eJq>anding concept of libert)• and its significance fo1· those of us in the legal pro. fession. We al'e an familiar with the leading Philippine case, Rubi 11. l'rovincial 804f"d, where liberty as guaranteed by the Constitution was identified with "the right to exist and the right to be . free from arbit1·ary personal restraint or servitude." That is not all there is to it. It likewise "is dl'emed to embrac~ the right of man to enjoy the faculties with which he has been endowed by hi& . Creator, subject only to such restraints IL6 are nece~sary for the common welfare." Thus the right to libei.ty if respected enables human beings, according to the opinion by Justice Malcolm, to use t.Jieir faculties in all Jawfui waya; to live and work whet'e they will; to eain their livelihood by any lawful calling; and to pursue any avocation. It is not to be fo1•gotten that the Supreme Court in the same case gives the warning that liberty as understood in democracies is not license. For what the Constitutioa guarantees is libe.rty Under the law. Implied in the term is restraint by law for the good of the individual and for the greater good, the peace and order of society and the gener.e..l well-being. No man can do exactly ns he pleases. Every man must 2·enQuncc unbridled license. Jn the words of Mabini, as quoted in the same case, "libe1ty is freedom to do right and neve1· wrong; it is ever guided by reason and the upright and honorable conscience .of the individual.'' This is so as the liberty to be safeguarded . is, according to fOrmer Chief Justice Hughes, "libe1ty in a social organization." Arbitrary restraint is thus ruled out. but not immunity from reasonable regulatiom• arid prohibitions imposed in the interest of the com-. n1unity. The liberty of the citizens may, in the interest of public health, public order or safety, of general welfare, in other word~ through the· p1·oper exercise of the pnlice power, then be regulat.ed. linder circumstances which to us in the profession amount to due process, there may even be deprivation of it. No constitutional question arises. In that sense liberty does in deed pose, to quote from Justice Ca.rdo20, "an underlying paradox. J.,iherty in .the most literal sense is the negation of law, for law is restraint, and the absence <A restraint is anarchy. On the other hand, anarchy by destroyint restraint would leave liberty the exclusive polJsession of the strong and unsc1·upulous." Liberty would be meaningless, however, if it we1·e so. The Constitution safeguards it for all. No real contrariety or antagc.nism does exi<Jt between it :md Jaw. For there is reer.gnition, according to Cardozo of that "dome.in of free activity that cannot be touched by government or Jaw at all, whether the command is spE.cially against him or gene1·ally against him and otherli"." Ji>. every proper case ealling for the exertion of governmental power, the problem is one of harmonizing or adjusting the individual right to liberty and the community or general welfare. Necessai·ily then in times of stress, whether occasioned by internal ciiso1·der, fear from .external aggi·ession, or economic insecurity, the field of liberty may cont1·act with the expansion of state powet' occasioned by the gravity and urgency of its needs. Diminution or restriction there msy be, but never obliteration. 'there are those who think '"Jf liberty a.a freedom from interfcmmce. 1.'liat is true. There it begins, but it cannot stop there. So in the Rubi opinion, there is mention no~ only of the negative concept of liberty which is absence of restraint but likewise of its positivf' significance which is the enlargement of opportunity. Liberty is not. 31lly freedom from but fre~dom for. It is not enough that one is let alone. It is equally important that one be enabled to achieve, to realize the potentialities of his personality. It .is in that sense that the me.'\nin@'.' has expanded. It is Mo.y 81, 1954 LAWYERS JOURNAL Jl18 A CRITICAL STUDY •.. 540), the Code of Guatemala (3 Scaevo1a 291>, the S-wiss Code 'Robe1·t P. Shick, The Swiss Civil Code, p. 57). Thus, Article 25Et of the Civil <'.ode of tl:te Philippines <Republic Act 386) commonly known as the New Civil Code provides: Art. 255. Children born after one hundred and eightlt days following the celebration of the marriage, and before three hundred days following its dissolution 01· the separation of the spouses shall be presumed to be legitimate. Against this presumption no evidence shall be admitted other than that of the physice.I impossibility of the husband's having access to his wife within the first one hundred and twe11ty days of the th1·ee hundred which preceded the birth of the child. This physical impossibility mll.y be caused: CU By the impotence of the hq,sband; , <2> By the fact that the husband and wife were living separately in such a Way that access was not possible; (3) By the serious il1ness of the husband. Article 255 of t.he New Civil Code is a reproduction of Article 108 of the Civil Code of Spain, now usually referred to a8 the old Civil Code, with the addition in the New Code of what may cause the impossibility of the husband'a- access to the wife during the pe1iod of conception, namely: <I) By the impotence of tht< hUJ3ba.nd; C2) By the fact that the husband and wife were living separately, in such a way that access was not possible; (3) BM the serious illness of the 'husband. Before the New Civil Code tock effect presumptionr of legitimacy of children were governed by the Rules of Court, providinR for a conclusive presumption and a rebuttable presumption, both of which were taken from the Code of Civil Procedure <Art. Ne 190>, thue: The issue of a wife cohabiting with her husband, who is not impotent, is indisputably presumed to be legitimate, it not born within one hundred and eighty days immediately succeeding the m8.rriage, or after the expiration of three hundred days following its disrolution <Rule 123, Sec. 68, Para.. graph C; taken from Section 338, paragraph, 3 Code of Civil Procedure). That a child born in lawful wedlock, there being no divorce, absolute or f1'0m bed and board, is legitimate <Rule 123, Sec. 69, pa.r. CC; taken from Sec. 334, par. 29, Code of Civil Procedure). Tb°re seems to be no substantial difference in practical ap. plication between Article 255 of the New Civil Code and the conelusive presumption of legitimacy provided for by Rule 123, Sec. 68, paragraph C, of the Rules of Court. Under the provisions of the Rules of Court the presence of the following requisites giver rise to the conclusive presumption: Ca) marriage (b) cohabitation Cc> husband not im~ote t CdJ birth after one hundred eighty days following celebration f marri&ge or within three hundred days from dissolution. hereas, Article 255 of the Civil Code req.uires Ca) marriage d (b) birth after one hundred eighty days from celehration of marriage or within three hundred days from its diss:olution or separation of spouses to give rise to the presumption of legitimacy, which may be rebutted only by physical impossibility of access by the husba.nd to the wife during the probable period of eonoeption, resulting fronYhusband's im.. potence, or separation in such a way that aCcess was impossible or serious illne8's of husband rendering access impossible. Actually, the Civil Code CArt. 255) suppressed two essential elements of the conclusive presumption of the Rules of Court and declaMd them evidenoe thJl.t m&y overco:rne the preaumption of legitimacy provided fo.r therein. In the United States the great weight of authority is to the effect that impossibility of access by the husband to the wife during the probable period of conception overcomes the presumption of legitimacy CSee Max Radin, The Common Law of the Family, VI The National Law Library, 145). The Code Commission has not given any rea.son for a departure from the principles of the conclusive presumption of the RU.lea of Court and a reversion to the old provision of the Spanish Code. THE EXPANDING CONCEPT ... something positiv~. opportunity or capacity or ability to do, freedom to achieve. It is in the latte1· sense that Laski identified liberty with the "eager maintenance of that atmosphere in which men have the opportunity to be their best selves" or "the abSPnee of restraint upon the existence of those E<icial conditions which in modern civilization are the neeessa.ry guarantees of individual happiness." This view consid~1·8' · liberty as identical with thl' opportunity for the growth and the unfolding of tbe hu1r.an personality. What is of the permanent essence of freedom, Laski continued, is that the personality of each individual should be so unhampered in its development, whether by authority or by custom, that it can make for itself a satisfactory harmonization of its impulses. There- is an invasbn of liberty where gov~rnment imposcd prohibition acts so as to d~troy that harmony of .1mp~lS:s which comes when a man knows tl1at he is doing something it is worthwhile to do. Resti·aint frust.i·ating the life of physical, intellectual, and spiritua1l l!nrichment is evil Nor is liberty reserved alone for the rich, the well-born, the economically secut'e. Those with lesser advantages at birth are entitled to their share of liberty. Their lives must not be stunted because of their poor or mol:lest .)rigins. That indeed is the goal. That is all well and good, you might say, these fine w:>rda and noble phl'ases, but what does it mean for us who are practition.ers in· the law? To that even morE. important phase of the question, I now turn. May I start by speaking of 1iberty in the sense of being let alone, -a concept which under the Constitution is implemented by .specific pledges and iramunities that may be classified under two headings: ct) Freedom of belief, whether secula1· or religious, f1·eedum of expressing such beliefs, and freedom to associate with others of a like pe1·suasion; and (2) Personal freedom which includes the constitutional rights of the accused as. an assurance \ha.t such liberty of the !)erson may not lightlY be interfered with by state action. I believe I speak the sense of the legal fraternity, and evr-n those who do not have the good fortune of being its members, when I say that on the whole with certain regrettable lapses, the men of the law whether on the Bench or in the Bar have been true to the sacred calling of dPfending freedom of belief and of exrression as well as personal freedom. As a matter of fact, the cumplaint lately has been that· s,1metimP.s in- their zeal fur . the defense .,f theil' elient's rights, tl1ere may have. been a one-s1~ed stress on the claims of libet1y as against the demands of authority. HPre, I ma.y possibly be entering a more controversial ground when I a&i:rert that those of us in the law E<hould cc.ntinue to fol. fow that cour::e. unrelaxing in ou1· vigilance in the defense of the individual right to liberty. It is not for ;;is to make meariingless the constitutional mandate that frc.edom of belit:f and of opinion should be given free play. When our services are thus solicited, it is not for us to hesitate. .To our country, no less than lo our clients, we vwe all that is in us to oppose, and if we ca.n frustrate, well-meaning, but sometimes mistaken, gnvernmental action hostile and inimical to liberty. The need seem to be greater in the Philippines as well as in the United St~tes, for recent leading decisions indicate not f!Xpansion but diminution ')f at least one aspect of liberty, freedom of belief and of expression. There appea.1·s to be a retreat from the t.igh vantage point of the clear and present danger docbfoe. In 1943, the American Supreme Court in West Vfrginia State BoMd cf Education v. Barnette asserted: "But freedoms of speech and of pre.sS, of assembly and cf of worship may not be infringed on such slender grounds. They are susceptible of restriction only to pr~vent grave a.nd immediate danger to interests which the state may lawfully protest!' CpP.r Jackson, J,) In f949, it could reiterate: LAWYERS JOURNAL May 81, HIM A CRITICAL STUDY ... THE EXPANDING CONCEPT ... The first sentence of Article 268 of the CMI Code provides "Accordingly a function of free speech under our system for a pri11ui fo.cie presumption of legitimacy of "a <ihild born with- of government is to invite dispute. It may indeed best serve in one hundred eighty USO> days following t.he celebration of the its high purpose when it induces a condition of unreSt, crf'.atcs .maniage," which presumption may, of course, be rebutted by any d!ssatisfaction with conditions· as they are, or even stirs pco.. evidence admissible in law that the husband is not the father of pie to anger. Speech is often provocative and challenging. It the child. This presumption is of leas weight tha.n that pro\'ided may strike at prejudices and preconceptions and have profor by Article 255 of the Civil Code in favor of a child born after found unsettling effects as it presses for acceptance of an idea. one hundt:ed eighty (180) days following the celebration of the That is why freedom of spet-ch, though not absolute, (ChaPmarriage or before three hundred <300) days foUowing its dissolu- 1insky v. New Hampshire, supra. (315 U.S. pp. 571, 572, 86 L. ed. tion or separation of the spousP.s which can m>t be overcom.l by any 1034, 1935, 62 S. Ct. 766), is nevertheless protectP.d against ev.idence except that of physical impossibility of access by the hns.. censorship or punishment, unless shown likely to produce ::a. band to the wife during the probable period of conception. There clear and present danger of a serious substantive evil tlmt again, therefore, appears no a.ppreeiable distinction in operation rises far above public inconvenience, annoyai>.ee, or unyest. between the first sentence of Article 258 of the Civil Code and x x x There is no room under our Constitution for a more the disputable presumption of legitimacy provided for in Rule 123, resti·irtive view. For thf! alternative would lead to standard. Sec. 69, par~ CC, of t~e Rules of Coutt, in favor of a child born ization of ideas either by legislatures, courts, or dominant po. in lawful wedlock if the over-all effects be considered of 'Article litical or community groups." Cper Douglas, J., T~rminie1lo 26.6 and the first sente-nee of Ai·tiele 258 of the Civil Code on one v. Chicago). hand and the joint principle-s of conclusive and disputable pre- With the D'Jttttia decision, however, in 1951, there is an insumptions of legitimacy provided tor in See. 68, par. C, and Sc.-c dieation in the main opinion by the late Chie-f Justicf' Vinson that 69, par. CC, of Rule 123 o·f the Rules of Court on the _other. the Clear and present da:nger doctrine now means only that, Iol. The rule seems to be universe.I that a child bom in IRoW!ul lowing Learned Hand, "in each case x x x (courts> must ask wedlock is presumed to be legitimate~ The effects of illegitimac} whether the gravity of the evil discounted by its improbability, under the P.arly Conunon Law of England were- unusually difficult justifiea such invasion of free spMCh as is necessa.ry to avoid the for the child who was considered a filitt11 nullius, without any fa- · danger." The degree of imminence and immediacy of the danger mily relations by birth, <Max Radin, The Common Law of the required is less than in the elassie formulation of Holmes. The Family, VI The National I.aw Library, 141>, child of nob".ldy, or gravity of the evil, the overthrow of the government no less, fillius populi, the child 'of the people <7 Am. Jur. 6271, which doe- might have led the majority to conclude that suppression of the trines did not find acceptance in the _ ea.rly Amf!rican Colonie!! utterance was unavoidable. It is to be hoped that such was the ease. where the natural relationship. between the illegitimate child and At least the fear of the virulent nature of the Communist ~~e::th:d w;:gra~::i~.~~1~ff:~~t o~0~~[ri~~~--~~il~ :::;a:e::i~! :p:~n :r11n~~od~~:~~.on ;! ~:r c~:: ::n::;~~=· C~F..JrlV8_rt:@.hl;r ri!quired- the strongest evidence in order Espuelas v. Peopki, a foolish and intemperate letter by a mar1, to ~!~~e the .. presumption of legitimacy <Radin, Id.; 1 4Z..1~4l who simulated suicide as a protest against the administration, which was carried forward to 1mch a.n extent in Englaud that wa.s cause :mough for eonvictint[ the writer of inciting to sedition. , sometimes amounted to absu1-dities. There developed in the Com- Even if the majority opinion be viewed with the utmost sym. mon Law of Engl~nd a presumPtion of legitimacy in favor oi re.thy, its rationale is far from pere:uasive. It appears as if the th.e issue of a wife which can not be disputed, if her husband be majority in their distate for what the accused did and perhaps within the four seas, that is, within the jurisdiction of the King in their desire to wam similarly.minded c1itics of the 11.dminisc.f Englaud, unless the husband had apparent impossibilities 11f tration to use less "infuriating'' language dignified as seditious procreation (2 Coke Litt. 244a., footnote, '1 C. J. 941>. Thus ''it lihel a matter, that should have occasioned at most derisive laughter. w&.s solemnly decided by a court of the highesl jurisdiction, tnat The dissentiug 09inion by Justice Tuason, concurred in by a child born in England was legitimate although it a11Pf'.ared on Chief Justice Paras and Justice Feria, shows· a better understandthe fuUeat evidence that the huaband resided in Ireland during ing of the command of the Constitution that "no law is to be tJ1e- whole tim,f of the wife's pr£gnaney, and for a long while passed ft.bridging the freedom of speech and of the press." J1reviously, beCause 1\-eland was within the King's dominion," The Supremti Comt earlier in Primiciaa v. Fugoso, tacitly {Wright vs. Hicks, 12 Ga. 15G, 159; 56 Am. D. 4G1 footnote, 7 C. ndopted the clear and pre.sent danger doctrine. Tested by that J. 942). "In the time of Edwa.l'd II, the Countess of GloweestE'r doctrine, the conviction here could not have been sustained. There bore a cbild one yi!Br and seven months ufter the death ot the is no question :i.bout the right of the government to punish. seduke and it was pronounced legitimate. In the reign of Henry VI, dition and incitement to sedition. There should be no question either Mr. Ba1·on Rolfe expressed the opinion with apparent gravity, that t1bout the futility of such Jetter and the fake suicide to lead people a widow might give bil't.h to a child seven years after her husband's lo take up arms. The Filipino masses cannot be deluded that easily. death without injury to her i·cputation" CDickinson's App., 42 Those who may have read the letter and may have believed it might Conn. 4U1, 501; 19 AmR 553, footnote, 7 C. J. 942. There was, have sympathized with the bel-eaved family. The letter though coUld· ~~:!iou;~~~sto:f;::e:h:i~!:~h i:f u~~:1d~~!b!~~- Jeg~~::yp:au~;~i~! ~~~:ti::~e ;~:! ::np~p~eto d!:1';r;p ~~~=:in:; ·~u:i~!!~~ is taintOO. with fiction it must not loo app2rently go against the meaning of the rule is clear: the danger involved must b~ both realitiea of life to appear 1-idiculous. clear and present. It is elea.r that the ·rule is all pervasive - /The New Civil Code has carried forward this fiction in pro- "it applies to every case." viding for certain conclusive pt-esurt:!ptions ol legitimacy of children Fear of Communism alone whether here in the Philippines or iJ! Article 258, which i·eads: in the United States does not seem to warrant such judicial timi. dity. This is not to under-estimate the peril that Communism poses. A child born within one hundred eirhty days fo11owing There is an acceptance of the view that in this country a.n.J the celebration of th<i marriagti is prima fttcifl presumed tc. be fo1· some time now there is a band of de-voted and fanatical fol~ legitimate. Such a child is conclusively presumed· to be legi- lowers of Communism. Since libe?ation witlt the aid of non.Com.. timate in any of tliese eases: munist groups who fought with tbem against the Japanese during <lJ If the husband before the marri8.j'e, knew of the . the occupation, they have been in a stage of open J"ebcllion in not pregnancy of the wife; a few pla.ees in the Philippines. ASI a matMr of fact it was the (21 If he consented, being present, to the putting of mounting intensity of such subvE:rsive activities that called, in the his surname on the record of birth of the child; presidential opinion, f~ the sUSJJension of the privilege of the May 31, 1954 LA WYERS JOURNAi, 216 A CRITICAL STUDY ... (8) If he expressly or tacitly recognized the child as his own. While these conclush·c preS'Umptions rcfe1· to children born within one hundred cighty days following the celebration of the marriage, with more reason, they also apply and with greater force to those born after such period. Under the Civil Code of Spain <Art. 110) a child born within one hundred eighty days from celebration of marriage was presumed (prirna facie) legitimate if any of the three circumsta:iees of Cal husbo.nd's knowledge of pergne..ncy of wife, (b) consent to use of his surname in the record of birth or ~C) express or tacit recognition of paternity be · present. Under Rule 128, Sec. 69, Par. CC, of the Rules of Court, ''A child born in lawful wedlock, there being no divorce, a~oluye' or from bed or board, is presumed (disputably) legitimate.'/Opinion has been expressed to the effect that the reason for Uie conclusive pl'esump .. tion in the three cases covered by Article 268 <C.C.) is estoppel by the husband (Francisco, I Civil Code of the Philippines, 684>. This view of the husband's estonpel finds support in the Anierlcan jurisdiction. "One who marries a woman known by him to be enceinte ts regarded by the law as adopting into his fa.mily the chilct at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nu1ture and maintenance. The law would forbid a thing 80 unnaturaL The child, receiving its support from the mother, must of necea. sity become one of her family, which is equally the famiJ}r of the husband. The child, then is received into the family of the husband, who stands as to it in loco pa.rentis. This being the -1aw, it enters into the marriage contract between the mo... ther and the husband When this relation is established, the law raises a conclusive presumption that the husband is the fath~r of his wife's illegitimate child." <State v. Shoemaker, 62 Iowa, 348, 17 N. W. 589, 49 Am. Rep. 146; footnote, 7 Am. ~ur. 638). One thing, however, is the oper&tion of the _principles of es. l as a l'Ule of evidence and another thing is the grant by statute of the indisputable status of legitimacy upon a child. The rule of estoppel, as a conclusive presumption is s'lated in Rule 123, Sec. 68, Par. 8, of the Rules of Court in this wise, "When. ever a party has, by his own declaration, act or omission, intentionally a.nd deliber8tely led another to believe a particular thing true, and to act upon such- belief, he cannot in any litigation arising out of such declaration, act or omission, be permitted to falsify it." This principle may be broken up into the following essential component parts for its operation: (a) declaration, act or onrls. sion of a party, <b> deliberate intent to lead another party to believe a particular thing to be true, (c) the other party acted upon such a belief. Justice Moran, citing Bigelow on estoppel, in his Comments on The Rules of Court, Vol. III, page 461, gives the following requisites of. estoppel by conduct or in pais: (1) There must have been a representation or concealment of material facts. <2> The representation must have been made with knowledge of the facts. (3) The party to whom it was made roust have been ignora.nt of the truth of the matter. (4) It must have been made with the intention that the other party would act upon it If these elements be present the author of the act, declaration or omission cannot alter said act, declaration or omission in a liti. gation arising therefrom, which are rende1·ed conclusive as against. him. If A husba.nd, for instance, bt'ings his step.child to an exclusive college for board, lodging and schooling and makes the college officials believe the child as his own, he cannot in an ac. tion by the college for collection of fees repudiate his act, declaration or omission and prove that he is not the father of the child. For purposes of that litigation his paternity of the child is conclusive. For all other purposes, however, the child does not beCl)me his. It has been held that the conclusive presumption of legitimacy does not apply to cases involving quUtions of inheritance and heirship, where the rights of others besides the husband and ~hild arise (7 Am. Jr. 688, citing State vs. Shoemaker, 62 Iowa 348; 17 N. W. 589; MillE'r vs. Anderson, 43 Ohio St. 473; S N. E. 605>. Whe:reas,· under the New Civil Code <Art. 258> THE EXPANDING CONCEPT ... writ r>f habeas corpus in 1950, happily l'estored a fe'IV we<iks ago. Through the energetic measures taken by the then Secretary of National Defense, now President-elect, Ramon Magsaysay, an end fl1 this armed uprising is in sight. The view is equally accepted that the forces of Communism bave not been enth·ely wiped out. As long· as Russia :remains a great power and while the struggle fo1· world supremacy continues, Communism may be a spent but not a moribund force in the Phililippines. The small but fiercely determined group of local Communists who may still be at large can be expected to continue 11.n~bated their efforts at winning converts. Their argument& m"f not fall on deaf ears as long as the conditions of misery under which a great portion of the tenant and laboring classes live continue unrcmedied. The social justice measu1-es undertaken by the Government must be expanded in scope and acc£lerated in time to cut the ground from under the deceptive but plausible appeals of Communist leaders. Granting, however, that now and in the foreseeable future there ai·e still among our countrymen those who a1-e victims of the delu. sion that is, Communism, it is my view that we, in the legal profession, must remain steadfast in our dedication to the diffi.cult but highly rewardfog task of defending freedom of belief and of opinion. This is not to l:leny that lawyers, mnre t.han any othP.r group. cannot afford to close thieil' eyes to the realities. They should not live in a social void. , The task of the judiciary then in adjusting or harmonizing individual ritrhts with the !l&fety of the. state, ordinarily one of utmost delicacy, then becomes even more formidable. It beeomeil equally 80 for us practitioners. The fact remains however that the regime established here is one of liberty, of justice and of democra.cy. Belief in the theory of liberty is not merely an echo of a discredited past. It remains a fighting faith. It is a proclamation of the vitality of the democratic process. It rests on the conviction deeply and profoundly held that given the choice, a free people wi11 prefer to remain free. We shall remain true to the noblE'St ideals of our profession if we act accordingly. To us thus is entrusted the difficult and exacting task of pro.. ' tE'Cting personal freedom, mo1-e specifically, as counsel for the defense. ThiR obligation is one of the inost valued specific rights of an accused. I do not have to recall how Justice Moran characterized right to counsel in People v. A rnault. Then there is t'he terfle statement by Justice Douglas that: "The accused 'needs the aid of counsel lest he be the victim of overzealous prosecutol"s x xx or of his own ignorance.' " At this juncture, it may not be inapproJ?riate to speak of the 1·ole of the defense counsel defending those accused of Communism. The revulsion and the repugnance that p!t.rticipation in the Communist led rebellion has occasioned law-abiding citizens is understandable. Nonetheless, it is equaJly imperative th&t when so accused and when so tried the members of the legal profession whether as tU oficio or retained counsel should not shirk the duty of defending them a11d assuring that their conviction if it comes is in accordance witl. dUE' process. You are all familiar with a membe1· of our profession whose opinion on this puint certainly cann'3t command our approval. He denounced the effol'f:S of some of the most respected members of the Bar when they defended in court those accused of Communism. He seemed to have ignored the fact in thus &£fording them the opportunity to meet the charge against them, they were d~privcd of capitalizing on the propaganda line that a democracy does not live true to its profesred belief in freedom and fairness. It is hea1tening to note the vigorous dissent of our people, as shown in the last elections, to that unjustified a.ccusation of our fellow lawyer, the occupant of one of the most exalted offices in the land, until noon of December 30, that is. , Our Nie in the defense of liberty as the freedom to be let aloneis cleal'. It has beE'n sanctified by centuries of legal tradition. We know what to do. What is more important, we have on the whole been doing it. When we speak thouFh of our mission in connection with the positive aspect of liberty or freedom for the achievement of one's potentialities, we ca.nnot be that confidtmt. There '!lay even be moments of doubts and misgivings as to what 216 LAWYERS JOURNAL May Sl, 1954 A CRITICAL STUDY ... the child is conclusively legitimate against the whole world if any of the three circumstances ther<'in provided be preseni. The conclusive presumption l)~-~~C'!_t!~~ _ 1)~der the New Code fArt. 268) invites il'reconcilablP. clashea__between _fiction and fa.et to such an100enf8i-Diay shock th~ conscience. Suppose a-Filipino woman who has never beeil-Outside th.; Philippines be engaged through the mails to an American male who had never been there.. tcfore Gutside the 'United States. This is not only poaslble but has actua1ly happened as a. result of pen-pal letter writing encouraged by some newspapers. The suitor arrived in the PluliPpines to marry his Filipina sweetheart only to discover her advanced state 'lf prepaney. For one reason or another he, nevertheless, married her ten (10) days after his arrival (giving al. Jowa.nces fo1· issuance of the marriage licl'nse), She delivel'f'd a normal baby the day following the marriage. Under the law, the child is conclUsively presu1ned legitimate of the· poor husband. The normal mind cannot be convinced of the fiction. Even if the two f2l other requisites-consent to the use of the husband's surname in the registry of birth, a.nd express ·or t.acit reeognition of paternity be present the brains will revolt aP~nst such atroeiti.es of the law against the facts of life. Argulnent may be. advanced that the husband should suffer the conlequences of his· own etu.. pidity to which a reply may well be made th11;t the laW should not <>pen itself as an instrument of offense for it may very well h&Ppen that not only the husband suffers. but his own legitimate c.ompulsory heirs may fall victims to the unwisdom of the law. The 1tbsurdity of the conclusive presumption of l~gitimacy becomes more obvious if there be legal impe4,iments to the marriage at the time of conception. Take the case of a widower who. married, for instance, fifteen days after the death of his spouse a Woman in a state of pregnancy known to him. Under the law <Art. 258, c.C.l even if the second wife delivers a normal. fpetu_s five days following the marriage, the . child is conclusively .legitimate of the hu11band. Medical authorities are agreed that six months (6J intrauterine life is the minimum requirement for a foetus to live. At the time of conception of the child in the illustration th-e indisputa.ble father was 'not only not married W its mo~er b~t mar. lied ~ anoth~r wife. The New Code <Art. ~68) pro~ounces him conclusively legitimate, without admitting proof to the contrary. And the situation of the chi1d indisputably presumed _legitimate Decomes ·more compli.cated if we take into :Occount the conflict ol paternity between the former and the subsequent hu11bands of a widow who remarries earlier than authorized by law. Article_ R4 <C.C.> prohttiitB-thEnuuance of a. ma.rriage Jicense m a"widow ·tilt after tbree hundred days fol1owing the death of her . husband, unless. in the meantime she has given birth to a child evidently for the purpose of avoiding . conflicts of paternity between the ~~~=~t :c;:n~u:1~;>~;~~·~;:~dD~=:~1 1go::hi:A::2 ;5i,eo;~ nalizes a widow who shall remarry within three hundred- days from the de&th of her husb~nd, or before having delivered if she shall have been pregnant at the time of his death. It should be noted that a marriage license is an essential requisite of marriage, except in a;~rri.age of exceptional character <Art. 53, C.C~.> and If the widow remarries without a ma.rriage licenJe her seeo marriage will be void from the beginning <Art. 80, c.c.>. owever, if she succeeds in .obtaining a marriage licenie and r1U11arries \vithin the prohibited period, her subsequent marriage will, undoubtedly, be valid notwithstanding the legal prohibition and the criminal liability she may have incurred. Then there arises the p:>asibility of a conflict of presumptions of legitima.cy if the remarried widow delivers. a child within three hundred days following the death of her former husband (See Art. 255, C.C.) and at f,he same time within one hundred eighty days from the celebration of the subsequei;it marriage <See Art. 258, C.C.> or aft.er such period of one hundred eighty days from such marriage (Art. 255, C.C.>. The New Code <Art. 259) solves the.fc possible conflicts of presumptions by providing: If the marriage is dissolved by the death of the husband, and the mother contracted another marriage within three hundred days following such death, these rules govern: THE EXPANDING CONCEPT ... it ought to be. NoJO is this unusual. We are on unfamiliar grountl. Li~rty as freedl)m to achieve has but lately received emphasis. As a matter of fact, here, again, the threat tha.t Communism po!!e& against Democracy is an important contributory factor in Lhe long overdue attention now being paid to it. The realization keenly grows that Democracy may lose its appeal for the ra.nk and file in any country when conditions .:1£ want and misery abound and are net remedied. · It is gratifying to note that one of our fonmost statesmen an•i patriots and certainly, the outstandi:r.g contitutionalist, Senator Jose. P. La.utel, has aptly entitled his recent collection of essays on government, "Bread and Jo,reedom.'' Verily, if one speaks of liberty to a man emaciated in body with his basie needs unsatisfi~d. the response is likely to be less than enthusiastic, very much less . Hence, the appearance in constitutions or recent vintage of such rights, termed social and economic, intended to· translate into i·eality the promise of Democracy in the wa.y of more decently housed, decently fed, decently clad, and therefore, happier and more contented citizenry. Our Constitution which in thi:! words of Justice Laurel, ''WaR adopted in the midst of social unrest and dissatisfaction resulting from eoonomic and social .distress," then threatening the stability of governments the world over reflects that aspiration. One of the fundamental (lrinciples therein stated is the p1'01notion of social justice "to insure the well-being and economic Security of all the people." More specifically, there is the con&titutional command that the State shall a.fford protection to la.. bor, especially to working women and minors and shall regulate the relations between landowner and tenant, a.nd between labor and capital in industry and in agriculture. The Congress of the Philippines likewise may determine by law the size of private agl.'icultural lands which individua.Js, C01'· porations, or associations may acquire a.nd hold, may authoriZE', upon payment oi just compensation the expropriation of lands to be subdivided into small lots and conveyed at cost to individUals. l·'ranchises, certificatPcs and any other fenn of authorization for the operation of public utilities in the Philippines may be gmntP.d only to Filipinos or to corporations or t<• other entities organi~ under the laws of the Philippines, sixty per centum of the capiU\l of which is owned by citizens of the Philippines, cannot be exclu.. sive In character, may not be granted for a longer period than fifty years and shall be subject to amendment, alteration 01· re1ieal by the Congress of the Philippines when the public interest so requires. The Republic of the Philippines is enjoined to promote scientific rese&rch and invention, arts and letters being under its pa.. tronage and to create icholarships in arts, ecience, and letters fer specially gifted citizens. . What liberty in the positive sense mean, likewise finds expression in the specific provisions of the Universal Declaration of Humi:r.n Rights, including such rights 'Jf everyone to social security, to work, to free choice of employment, to just and reason.. able renumeration, .insuring for himself and his family a_n existence worthy of humM dignity, to rest and leisure, to a standard of living adequate for the }lealth and well-being of himself ~nd of his family, to education, to participation in the cultural. bfe. of the community, to enjoyment of the arts and to a share 10 SClentifjc advancement and its benefits. No Constitution as of now, goes that far. Even if it does, the actual may tali short of the ideal. At least the Universal Declaration of Human Rights seta a goal Who knows but that it may yet be realized. It is understandable, however, that for those rights to be en. joyed, the expansion of the regulatory activities of the Government may be unavoidable. This will mean the restriction of liberty C'f some so as to assure the enjoyment of li~rty by others. many ethers. As Laski stated: "There are vital elements in the common good which can only be schieved by action under the state-power - educati'Jn, housing, public health, security against unemployment.'' · How does liberty in its poeitive aspect with thP. correspondint expansion uf governmental activity affect us as lawyers? As I May 31, 1964. LAWYERS JOURNAL 217 A CRITICAL STUDY ... (1) A child born before one hundred eighty days after the solemnization of the subsequent ntal'riage is disputably presumed to have been conceived during the former marriage, provided it be born within three hundred days after the death of the former husband: (2) A child born after one hundred eighty days following the celebration of the subsequent marriage is prima f4tie presumed to have been conceived during such marriage, "'·e!'.I though it be born within the three hundred days after the death of the former husband. Article 259 CC.C.) attempts to solve the cnnflicts of presumptions of legitimacy <Code Commission Report, 86) that may arise from the operation of Article 255 CC.C.) and its possible ovedapping with Article 258 CC.C.) in case a widow remarries within the prohibited period (assuming that she succeeded in obtaining a QJ.arriage license) and subsequently delivers a child within three hundred days following the death of her former husband which gives rise to a presumption almost conclusive of le&itimacy of the child as that of the former husband CArt. 255, C.C.>, but if the child be at the same time born after one hundred eighty days following the celebration of the subsequent m&l'riage there is also the same presumption almost conclusive of legitimacy that the child is that of the subsequent marriage CArt. 255. C.C.l; and if the child be born within one hundred eighty days following the celebration Of the subsequent marriage, under the first sentence of Article 258 (C.C.> the child is presumed prima facie legitimate of the subsequent marriage, which prima fa.cie presumption should yield to the almost conclusive presumption provided for in Article 255 CC.C.) which may be overcome only by evidence of ph)'sical impossibility of access by the husband to the wife during the first one hundred twenty da/.:s f the three hundred which preceded the birth of the chit~. is believed that Article 255 CC.C.) and Article 268 CC.C., fir sentence) are general rules and should yield to the provisions of Article 259 CC.CJ under the special and abnormal cir~umstances of a ·widow who remarried within the pij"Jribited penod and delivers a child within three hundred daysArom the death of her former husband which birth may also take place dther within or after one hundred eighty days following the celeLration of the subsequent marriage -in the first case the child is disputably presumed legitimate of the former marriage, and in the second case the child is prima. facie presumed legitimate of the subsequent marriage CArt. 259, C.C.> which may be overcome ~ any evidence admissible in law. The problem becomes more complicated if the present husband lmew of the pregnancy of the widow before the subsequent mauiage, or if he consented. being present to the putting of his surname on the record of birth of the child or if he expressly or tacitly recognbed the child as his own, in which case the child is indisputably presumed his lcgitin1ate child CArt. 258, C.C., second sentence> which, being conciusive, ~dmits of no evidence to the contrary, If the conclusive presumption of legitimacy provided for in Article 258 CC.C., second sentence) , were disputable the law can better cope with compli~ated and perplexing situations which may arise many of which, indeed, cannot now be anticipated. The law as it is, ho~-ever, before suggested reforms come ~ realization, has to be applied to cases as they spring up and it will be, indeed, the difficult task of the bar and the bench to arrive at just and logico.l solutions. Professor Emiliano R. Navarro of the College of Law, Arellano Universjty gi\•eft his own very enlightening view lNanrro, II Cases, Mat:rials and Com-. ments on Persons and Family Relations, 726-727) on the operations of these apparently conflicting presumptions in these words: "A child born before one hundred eighty da.ys after the solemnization of the subsequent marriage and within three hundred days after the death of the foriner husband is disputably presumed, by t~e present article, to have been conceived d~ring the former marriage. But for this arti9Ie, the presumption would be conclusive under article 265. "It may, therefore, be seen that the conclusive presumption in article 255 becomes disputable when it conflicts with the disputable THE EXPANDING CONCEPT ..• ha.ve said earlier, this is a problem that our profession has faced only recently. It offers both a challenge and an opportunity, a challenge that mu.Qt be met and an opportunity that must not be missed. . To many of us in the law profession perh~ps especially 80 m ease of the younger ones, p~blic service outside of the field of prosecuting agencies and the judiciary ·beckons. For in a government of laws and not of men, that now is branching out into al'ea& hitherto left to private enterpriB<!', the need for additional law1ers betomes apparent. Considering that even now the seductive spell that ~ur profeftSion casts over ambitious youths still persists notwithstanding the many other fields of endeavor open to 'ambitious· minds, this is a tendency nnt to be deplored. Certainly, if the trend is for more not less government, as all signs indicate, our liberties will be Ba.fer, I hope, in the hands of our fellow lawyers. It is not however of the opportunitier for more gainful pursuits in the government service that I wish to emphasfae. I have in mind more of the effect of this wider field of governmental activity on the attitude of us lA.wyers as pr11ctitio11tts. By and large, we are retained to Tesist go~el'Dmental intrusion into pTi. vate affairs. It is not only nntura.1 but expected of us then to make use of all our faculties in zeafously resisting what to ns may be unwarranted extension of state authority. That way, the freedom of the mind as weU as the freedom of the person is duly safeguarded. As pointed out earlier, we would be recreant to our responsibilities if we do less. Please note, however, that such service is required of us in connection with a conflict of interests between the government on the one hand, and private individuals, on the other. In that sense, the freedom from, as safeguarded in the Constitution, is freedom from state authority. When we spE:Bk of freedom for, however, the situation is dis.. slmilar for the state here is activt>ly called upon to mediate and reconcile conflicting interests between individuals as betwef!n grnups. with public welfare as the guiding consideration. Liberty, in the positive sense as opportunity for the full and unimpeded development of one's potentialities, may for certain groups of individuals, those economicaUy insecure, be attainable only when the government acts as its protector. Our Constitution thus hRs a manda.te on governmental protection to labor. Those of UB 4!alled upon to advocde ·the cause of the higher income groups, more prone to feel the impact . of state regulatory activity, are not expected to show less than our customary zeal in the defense of their rights. They are entitled to nothing less. All that I would wish to invite your attention is more understanding on our part ot why the government ill thus cnmpelled to act a.nd leas stubborn resistance tc justified state effort. We owe it to ourselves no less than to our country to which we are all devoted. Our responsibility in enlightening tht> rest of our fellow citizens, by precept and example, as to what liberty under law means is inescapable. It is even more imperative then that in the new era about to open, with hopes, justifiable hopes, for greater achievements, under conditions no less trying and under eircumstances equally exacting as in the immediate past, we fulfill our role adequately. To us, the nation lookr for leadership. It is entitled to it. It will get it. Liberty, not in the abstract but in the concrete, is for us to enrich or frustrate. The choice is obvious. We cannot, even if we wish to, and I do not think we do, neglect or ignore that task. If we fail in giving vitality and reality to the concept of liberty, the nation fails with us. Democracy becomes a mockery. We will fall a.n easy prey to the forces of Communism. We cannot afford to fail then. From us must come in our cwn field of action mighty blows for the sacred cause, that is Democracy, not the least attractive quality of' which in the battle for men's minds and hearts is its devotion to freedom. The conviction that no other way of life is deserving of the utmost loyalty and allegiance would be immea.surably strenithened by our profession being firm, immovable, unwavering in its fidelity to the regime o1 liberty enshrined in our Constitution. . . . 218 LAWYERS JOURNAL May 81, 1954 A CRITICAL STUDY ... p1-esumption in uticle 258. But, under this la.st article, the disputabJe presumption becomes conclusive when any one of the three circumstances therein mentioned be present. When the conclusive presumptions, then, under articles 255 and 258 conflict, does the disputable presumption in paragraph (1) of the arlicle we are commenting on still hold? Or is the case thrown open to proof as if no presumption covers it? Or, does the conclusive presumption in a1·ticle 258 govern the case, thus outweighing the disputable presumption in the paragraph of the law we a.re commenting on 1 For the position that the disput.. lible presum-ption in article 259 Cl> still governs, it may be said that the law is in terms absolute. But we have the curious case of a chi1d who is owned by the husband of the second mlirriage who is not similarly claimed by the husband of the first marriage since he died before the child was born. The second husband may be living when the iasue of patemity comes up. As a matter of policy, the second husband should be favored. This position, however, may prejudice the innocent child. But if the case be thrown open to proof, as if no presumption covers the case, the child may be prejudiced th~ more, since it would be a fatherleas child until it can prove who its father is. The problem is perplexing and we can do· no more ttian define it. It would seem that, under the situation we are discussing, it would be reasona.ble to establish at least a disputable presumption, if not a conclusive one, in favor of the second marriage, as does paragraph (2) of the article we al1" commenting on. Paragraph (2) Of the article we are discussing invo1vea a conflict of conclusive presumption11 under article 256. The disputable presumption in favor of the second marriage is wise from the point of view of policy. The child is born in this marriage where it is more likely to receive the care and attention that it needs." / The New Code (Art. 267) introduced a novel feature in the lliw of legitimacy by proving for a presumption prima. faci.e Of illegitimacy of a chiJd under the following circumstances, ~ wit: Should the wife commit ndultery at or about the time o1 the conception of the child, but there was no physical impoa.sibility of access between her and her husband as set :£or1:h in article 265, the child is prima. /acie ·presumed to be illegitimate if it appears highly improbable, for ethnic reaaona, that the child is that of the husband. For the t>Urposes of this article, the wife's adultery need not be proved in a criminal case. Dr. Jorge Bocobo, Che.irnian of th.: Code Commission, speaking before the Joint Code Commisskm 'lf the Senate and Ho~ of Re. presentatives (XVII The Lawyers Journal, No. 1, January 31, 1962, page 49) explained the background of and reasons for this presumption of illegitimacy. And we quote Dr. Bocobo: "Thie article, Mr. Chairman, is primarily intended to take care of the special 'situation created by the liberation as a result of which there are so many child1·en now or babies who are evidently indubitably the children of those G-l's both block and white. The situation created in those days was anomalous, thus making the Filipino husband unfortunately deceived h)" the Filipino wife because in such a time we know tha.t the G-1 became SOml!lwhat like heroes and while the husband and wife were living together, I.he wife went with the G-1 negro or white. There are now thousands of those white or negro babies. Now, it ia a matter of racial dignity for us to change the presumption in this case~ in this given situation. 1 admit that it is exceptional to preaume illegitimacy but in view of the facts surrounding the case and the wbole neighborhood knows that that child of a G-1, the Filipino husband plays the most ridiculous and the most sonowful role in the community. If. it were not for this Art. 257 or whether you call the presumption of legitimacy prima facie only the effect to the community, to the public, is the same. They point out to the poor husband "You aee, that Filipino is the_ legal father of the ne .. gro or white baby" and to save the honor and good name of the Filipino father there should be a prima. fa.cie presumption of illegitimacy because we are dealing here with an exception. If you are going to follow the general rule of presumption of legitiml!_cy what will be the result? That baby. though very black with kinky hair or very white with blond hair will automati~@.lly bear the surname of the father. And that is very humiliating to the Filipino father. Now, if the presumption is going to be legitimacy although prima /acie, don't you see, gentlemen, that burden of proof is on the part of the legitimate children to show the illegitiinacy of. thi! negro baby? We kn"'-w how hard it is to prove a negative proposition, Now, 1 admit thaJ; there is the biological law of recission to an ancestor. It may be that a white baby, a mestizo may appear after two or three generations because the great grandfather was a Spaniard. That may happen. In the first place it ilJ very rare. In the second place that would be a case where those who allege the contrary to the prima facie, presumption will present witnesses to show ths.t the great grandfather was a Spaniard. We don't close the door, if for instance the baby is the great grandson of a Spaniard. That can be shown to rebut the prinw. /acie presumption of illegitimacy, As I said this is a very exceptional· situation, which is the saving of the dignity and the honor of the Filipino parentage, particularly the Filipino husband." In order that a prime fa.ci,e presumption of illegitimacy may arise under Article 257 CC.C.) the following requisites must be present: (a) wife committed adultery at or about the time of con.. ception of the child, Cb) there was no physical impossibility of access by the husband to the wife during the first one hundred twenty days of the three hundred preceding the birth and (c) for ethnic or racial reasons it appears highly improbable that the child is that of the husband. Thus, if a Filipina wife living with her Filipino husband delivers a negro child and there be evidence of commission of adultery by the wife during the probable period of conception the child is presumed prime /a.cie illegitimate. The law does not require that the man with whom the wife committed adultery for ethnic reasons could prob&Dly be the father of the child. If the Filipina wife, therefore, in the same example, committ!d adultery with a negro and a baby of the white race be bom, the presumption of illegitimacy will arise. In the American jurisdiction, the operation of the rule is the reverse. The presumption is in favor of legitimacy of the child which may be overcome by evidence that the husband for ethnic reasons could not probably be the father of the child. It has, therefore, been held that "the J)Jesumption of legitimacy may be overthrown . by evidence that a mulatto child was born of a wife of the white race married to a husband also of the white race, since it is contrary to the laws of na.ture for both parents of a mulatto to be persons of the white race" (7 Am. Jur. 660; Wright vs. Hickii, 12 Ga. 155 Nolting n. Holt, 113 Kanaas 494). The presumption Of illegitimacy provided f~r in AJ-ticle 257 CC.C.> seems to be an original idea of the Code Commission without having been adopted from any foreign jurisdiction. The Jaw as it stands makes it difficult for the child to overcome the presumption of illegitimacy because of his age, 11.hereas, if the presumption be that of legitimacy the Jmsband will be in an adequate position to dispute it. House Bill 1019 <See Francisco, I Civil Code of the Philippines 683> proposes to amend A1ticle 257 CC. C.> to read as follows: "Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but there was no physical impossibility of access between her and her husband as set forth in article 255, the presumption of legitimacy 111&). be overcome by proof that it is highly improbable, for ethnic reasons, that the child is that .,f the husband. For the purposes of this article, the wife's adultery need not be proved in a criminal case." Moreover, if the idea is to protect the husband from intrusions by strangers into the family, then the law should not limit itself to adultery of the wife during the probable period of conception; it should include rape of the wife by a stranger during such period cf conception, if it turns out that. for ethnic reasons it is highly improbable that the husband could be t:he father of the child. <Continued on page 259) May 31, 196' LAWYERS JOURNAL 219 TEXT OF COURT DECISION ON FOUR STATES' SEGREGATION WASHINGTON, May 19 - lUSIS> - FoDowing ia the text of the opinion delivered Monday by Chief Justice Warren on cases involving racial segragation in schools in the states of Kansa111, South Carolina, Virginia and Delaware: "These cases come to us from the states of Kansas, South Carolina, Virginia and Delaware. They are premised in different factors and different local conditions, but a common legal question justifies their consideration together in this consolidated opinion. "·In each of the ca.sea, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a non-segregated basis. In each instance, they had been denied admission to schools attended by White children under laws requiring or permitting se.. gregation according to race. Thia segregation was alleged to deprive the plaintiffs of the equal protection of the laws under. the fourteenth amendment. In. each of the cases, other than the Delaware case, a three-judge Federal District Cou1·t denied relief to the plaintiffs on the so-called 'separate but equal' doctrine an- ' nounced by this court in Pleesy V. Ferguson 163 U. S. 637. Under that doctrine, equality of treatment is accorded when the races are provided eubstantiaJly equal facilities, even though these facilities bo separate. In the Delaware case, the Supreme Court of Delaware adhered to tha.t doctrine, but ordered that• the plaintiffs be admitted. to the White schools because of their superiority to Neira schools. "The plaintiffs contend that segregated public schools are not •equal' and that hence they are deprived of the equal protection of the laws. Because of the obvious importance of the question presented, the court took jurisdiction. Argument was heard in the 1952 term and reargument was heard this term on certain queationt propounded i.- the co'urt. "Reargument was largely devoted to the circumstances surrounding the adoption of the fourteenth amendment in 1868. It covered exhaustively consideration of the amendment in Congress, ratification by the states, then existing practices in racial segregation, a.nd the views of the proponents and opponents of the amendment. Thia discuseiop and our own investigation convince us that, although these sources cast some light, it is_ not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-war amend~ menta undoubtedly intended them to remove all legal distinctions among •au persons bom or n&turalized in the United States~' Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the amendments and wished them to have the moat limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty. "An additional reason for the inconclusive nature of the amend. ment's history, with reiu>ect to eegregated schools, is the status of public education at that time. In the south, the movement toward free common schools, supported by the general taxation, hlltd not yet taken hold. Education of White c:hildren was largely in the hands of private groups. Education of Negroes was almost nonexistent and practically all of the race were illiterate. In fact, any education of Negroes was forbidden by law in some states. Today, in contrast, many Negroes have a.chieved outstanding success in the arts and 9Ciences 88 well as in the business and pro. fessional world. It is true that public education had already advanced further in the north, but the effect of the amendment on northern states waa genera.Uy ignored in the Congressional debate&. Even in the north, the conditions of public education did not approximate those existing today. The curriculum was usually :cudimentary; ungraded schools were £Om.mon in l'Ural areas; th~ school tei:,m was but three months a year in many states; and compulsory school attendance was virtually unknown. As a conae.. quence, it is not surprising that there should be ao little in the history of the fourteenth amendment relating to its intended effect on public education. "In the first cases in this court construing the fourteenth amendment, decided shortly after its adoption, the court interpreted it as prescribing all state-imposed discriminations against the Nf.gro race. The doctrine of 'sparate but equal' did not make Its ap. pearance in this court until 1896 in the case. of Plese:v V. Fergu.. son, ~pra, involving not education but transportation. American courts have since labored with the doctrine for over haJf a century. In this court, there have been six eases involving the 'separate but equal' doctrine in the field of _public education. In Conuning V. Country Board of Education 175 U. S •. 528 and Gong Lum V. Rice 275 U. S. 78, the validity of the doctrine itself was not cha.llenged. In more recent c&aeBt all on the graduate school level, inequality waa found in that specific benefits enjoyed by White students were denied to Negro students of the same educational qualifieations. In none of thf'.ae cases was it necessary to re-axamine the doctrine to grant relief to the Negro plaintiff. And in Sweatt V. Painter. supra, the court expressly reaeved decision on the question or whether Pleasy V. Ferguson should be held inapplicable to public education. "In the instant cases, that question is directly presented. Here, unlike Sweatt V. Painter, there are findings below- that the Negro and White schools involved have been equalized or are being eqaalized with respect to buildings, curricula, qualifications a.nd salaries of teachers, and other 'tantible' factors. Our decision, therefore, cannot tum on merely a comparison of these tangible factors in the Negro and White schools involved in eaeh of the cases. We must look instead to the effect of Regrega.tion itself on public education. "In approaching this problem we cannot turn the clock back to 1868 when the amendment was adopted, or even to 1896 when Plessy V. Ferguson was written. We must consider pub1ie educa. tion in the light of its full development and its present place in American life throughout the nation. Only in this way can it be det:ennined if segregation in public schools deprives these plaihtiffe of the equal protection of the le.we. "Today, education is perhaps the most important functions ot state and local govemmente. Compulsory school attendance lawa and. the great expenditures for education both demonstrate our recognition of the importance of educatiOn ·to our democratic aocidy. It is required in the performance of our most basic public responsibilities, even service in the a.rmed forces. It is the very foundation of gOOd citizenship. Today it is a principal instrument in awakening the child to cultural vaiuee in preparing him for ~ ter professional training and in helping him to adjust normally to his environment. In these days, it is doubtful· that any child may n:oeona.bly be expected to succeed jn life if he_ is denied the oppor. tunity of an education. Such an opportunity, where the state has undertaken to Jlrovide it, is a right which must be made available to all oa equal terms. . "We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other ta.ngible factors may be equal, deprive the children of the minority group of equal educational op.. portunities? We believe that it does. "In Sweatt V. Painter, supra, in finding a lf!gregated law school for Negroes could nof provide them equal educational OPportunities, this court relies in large part on 'those qualities whiclt are inca.pable of objective measurement but which make for great.. neas in a law school.' In McLaurin V. Oklahoma state regents, supra, the court, in requiring that a Negro admitted to a White graduate school be treated like all other students, again resorted to intangible considerations: ' ..• His ability to study, to engage in discussions and exchange views with other students and in gen. eral to learn his profession.' Such considerations apply with added force to children in grade and high schools. To separate them from others of similar age and qualifications solely because of their ra.ce generates a feeling of inferiority 88 to their statue in the community that may affect their hearts and minds: in a way un.. iikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kan.. eas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs (Conh°nued on page 263) 220 LAWYERS JOURNAL May 81, 1954 SUPREME COURT DECISIONS Antonio Delumen et al.. Petitioners-Appellees, 'VB. Republic of the Philippines, Oppositor-Appella:nt, G. R. No. L-6662. Jan'UM"'ll 28, 1954. 1. RULES OF COURT; REQUISITES FOR DECLARATORY RELIEF. - A petition for declaratory relief must be p1·edicated on the following requisites: (1) there must be a justiciable . controversy; (2) the controversy must be between persons whoSP interests are advei-se; CS> the party seeking declaratory relief must have a legal interest in the controversy; and (4) the issue invoked must be ripe for judicial determination. 2. IBID; ACTION FOR DECLARATORY RELIEF IMPROPER IN THE CASE AT BAR. - In essence, the appeUees merely wanted to remove all .doubta in their minds as to their citizenship, but an action for deClaratory judgment cannot be invoked solely t.o determine or try issues or to determine a moot, abstract or theoretical question, or to decide claims which art'! un· certain or hypothetical. (1 C. J. S., p. 1024.) And the fact that appellees' desires are thwarted by their ''own doubts, or by fears of others x x x does not confer a cause of action." Solicitor General Juan R. Liwag and Solici.Uw Florencio Villa. mor for appellant. Romeo M. Eacareo.l for appellefis. DECISION PARAS, C. J.: On October 9, 1951, Antonio, Juan and Jullto, sumamed. Delumen, filed a petition in the Court of First Instance of Samar, allqing that they are legitimate children of Paciencia Pua, a Filipino woman, and Mariano Delumen who was declared a Filipino citizen by the same court in an order d'ated August 7, 1960, and praying said court to determine whether they are Filipino citizens and to declare their corresponding rights and duties. It is further alleged in the petition that the petitionei:s have continuously resided in the Philippines since their birth, have considered themselves _ as Filipinos, had exercised the right to vote in the general elections of 1946 and 1947, and were registered voters for the elections in 1951. The Solicitor General, in behalf of the Republic o( the Philippines, filed an answer alleging that the petition states no cause of action, there being nc· ~dverse party against whom the petitioners have an actual -or justiciable controversy. After hearing, the Court of First Instance ol Samar rendered a decision declaring the appellees to be Filipinos by birth and blood. From this decision the Solicitor General had (lppealed. Under the first assignment of error, the appellant cites ou1· deei&'lon in Hilarion G. Tolentino vs. The BoGrd ot AceoW'l.tanc-y, et. al., G. R. No. L-3062, September 28, 19~1, wherein we held that: "A petition for declaratory i·elief must be predicated on the foUowing requisites: n> there must be a justiciable controversy; C2) the controversy must be between persons whose interests a.re adverse; <3> the party seeking declaratory relief must have a legal interest in the controversy; and <4> the issue invoked must be ripe for judicial determination." While the Solicitor General contends that a justiciable controversy is one involving 11an active antagonistic assertion of a ·1epl right on one side and a denial thereof -on the other concerning a real, and not a mere theoretical question or issue (C. J. S.,. p. 1026>,'' and that in the present case 11 no specific person was mentioned in the petition pa having or claiming an ad.verse interest in the matter and with whom the appelleea have an actual controversy," the appellcies argue that, by virtue of the answer filed by the So. licitor General opposing the petition for declaratory relief, a ju.sticiable controversy thereby arose. We are of the opinion that appellant's contention is tenable, since there is nothing in the petition which even intimates that the alleged status of. the appellees as Fil_ipino citizens had in any instance been questioned or denied by any specific person or authority. Indeed, the petition alleges that the appellees have considered themselves and were considered by their friends and neighbors a.a Filipino oitizens, voted in the general eleCtions of 1946 and 1947, and were registered voters for the ~tections of 1951, and it is not pretended that on any of said occasions their citizenship was controverted. It is not accurate to say, as appellees do, that an actual controversy :>.ro~ after the filing by the Solicitor General of an opposition to the petition, for the reason that the cause of action must be made out by the allegations of the complaint or petition, without the aid of the answer. As a matter of fact, the answer herein alleges ·that the petition states no cause ·of action. In essence, the appellees merely wanted to remove all doubts in their minds as to their citizenship, but an action for declaratory judgment cannot be invoked solely to determine or try issues or to determine a moot, abstract or theoretical question, or to decide claims which are uncertain or hypothetical. (1 C.J .S., p. 1024.) And the fact that &ppellees' desires are thwarted by their "own doubts, or by fears of others x x x does not confer a cause of action.'' (Moran, Comments on the Rules of Court, 1952 ed., Vol. II, p. 148, citing Willing vs. Chieuo Auditorium Assn., 27'1 U. S. 2'14, 289, 48 Sup. Ct. 607, 609.> In 'fiew of what has been said, it becomes unnecesaary to discuss either the second contention of the Solicitor General that the trial 'court erred in holding that the petition for declaratory relief may be utilized to obtain a judicial pronouncement as to appellees' citizenship, or his third contention that the evidence <\oes not support the conclusion in the appealed decision that the appellees are Filipino citizens. Wherefore, the appealed decision is reversed and the petition dismissed without pronouncement as to costs. So ordered • Pablo, Beng~on, Padilla, Montemay07", Re11es, Jugo, Bsutieta Angelo and Labrador, JJ,, concur. II Pilar Bautists, etc. et al., Pla.intiffs.AppeUatr&ts, 1'B· Biia.ri'a U11 lsa.belo, etc., Defendant-Appellant, G. R. No. L-8007, September 29, 1968. CONSTITUTION; PROVISION THEREOF DISQUALIFYING ALIENS FROM ACQUIRING REAL PROPERTIES IN THE PHII.IPPINES. - The question is whether the defenda.nt spouses, assuming that they were Chinese citizens and that the sale was made to both and not solely to Hilaria Uy lsabelo, are disqualified to acquire and hold the property in question in view of section 1 of Article XII '>f the Constitution, as construed In Krivenko vs. Register of Deeds of Manila, 44 0. G. 471. In the case of Trinidad Gonza.ga de Cabauatan, et al. vs. Uy Hoo, et al., G. R. No. L-2207, decided on January 23, 1951, we already held that the Constitution was not in force during the Japantse military occupation and therefore the conatitutional pz:ovision disqualifying aliens from acquiring real propertic!s in the Philippines was not' applicable and the doctrine laid down in the Krivenko case cannot be invoked in a sale that took place during said occupation. This decision was followed in the latter case of Ricamara, et al. vs. Ngo Ki alias Sin Sim, G. R.- No. L-5836, decided on April 29, 1953. It resulia that the sale in quesfiion ha.a to be sustained, Quintin Paredes for defendants-appellants. Delgado and Flores and Alejandro de Sa.ntos for plaintiffsappellants. DECISION PARAS, C. J.: On August 18, 1943, Pilar T. Bautista ~ the owner of four parcels of land, with improvements, located at the corner of Azcarrag& and Ylaya Streets in the City of Manila, and more pR.rtiMay 31, 1954 LAWYERS JOURNAL cula.riy described in transfer certificates of title Nos. 40007 and 40008 of the Registe1· of Deeds of Manila, On said date she exe. cuted a deed of absolute sale in favor of the defendant Hiinia Uy Isabeio, conveying the properties to the _latter ~n c.onside1·ation of PlS0,000, P90,000 of which was then paid. Simultaneo~sly a mortgage was executed by Hiia.ria in favor of Pilar whereby it waa llf,ipulated that the bdance of P6().,000 was to be paid wi~ two years with interest at 6% per annum, and as a secunty a first 'mortgage was constituted in favor of Pilar on the same properties. Although the consideration mentioned in the deed _of sale was Pl50,000, there is no question that the true pu1·cha~~ price was PS00,000, P240,000 of which was paid in Japanese nuhtary notes and the balance of P60,000 was secured by the aforesaid mortgage. The deed of sal1! and the mortgage contract were presented on August 18, 1943 in the office of tb,i! Registra.r of Deeds of Manila for registration, but on August 31, Pilar withdrew said documents so as to prevent regiatration. However; through the filing of signed carbon copies of the instruments the necessary registration wae P.ffected and new certificates of title, Nos. 67070 and 67071, were issued in the name of Hilaria. In the early part of September, 1943, Pilar, assisted by her husband, instituted in the Court of First Insta.nce of Manila a conlplaint for annulment, subsequently amended, against Hilaria and her husband Eusebio Valdez Tan""Keh. On Septem~r 14, 1944, Pilar deposited· in court the sum of '240,000, intended to cover that part of the purchase price already paid by Hilaria. On the other hand, after Piiar had previously refused to accept a PNB certified check for P60,000 which Hilaria tendered in payment of the balance Secured by the mortgage; the said amount wa.s deposited in court. The records and the deposits were burned during the battle for the liberation of Manila, and as the parties were unable to recol)stitute the same, Piiar. instituted the .present action for the_ annulment of the deed of sale and the contract of mortgage hereina.bove referred to. It &pp.ears that the improvements on the land in question were huTiied, and the land -was occupied by the United States Army ~s part of the supply depot. The payment of the rentals by the Army has. been withheld until final adjudication of this case. After the Army had left, Eus~bio Valdez T8.nkeh took possession of the pro. perty and _ constracted thereon a building. The theorj. of. the plairitiff Pilar Bautista is that the defendants Hilaria Uy Isabelo 8.nd Eusebio Valdez Ta.nkeh were Chinese citizens and accordingly disqualified to purchase real propertiee in this c01ii'l.try; and that the consent ·of Pilar to the sale was obtained through duress and misrepresentation. On the other hand, it is contended for· the defendants th&t Hilaria was and is a Fllipino citizen; that. as appears ia the deed, she was the sole purchaser; and that tho deal was voluntary. After trial the Court of First Instance of Manila rendered a decision finding that the sale was in fact to the defenda.nt spoueea who were Chinese citizens and therefore disqualified to acquire real property in· the Philippinee; that the sale was obtained through misrepresentation on the part of the defendants, in that Piiar was made to believe, contrary to wh&t is actually recited in the contracts, that the balance of P60,000 was to be paid after 'two yeare, without interest, and she could .continue occupying the portion of the improvements used by her as residence without any rental, and ~llecting for herself the rentale for the remainder of said improve.. ~en ts. The dispositive part of thJ decision reads as foilows: "IN VIEW OF ALL FOREGOING CONSIDERATIONS, the Court her~b7 declares the deed of sale, Exhibit A, and the deed of mortgage, Exhibit B, null and void, and of no legal effect· and that the consignation in Court of the sum of P240,000.o0 in Japanese. Milita1-y notes w8.s legally made by the plaintiff, and therefore, she baa fully returned the 1>art of tho purchase price of the property received by her from the defendants. The Court also hereby QJ'ders the Register of Deed.I of Manna to cancel Transfer Ce.rtificates of Titles Nos. 67070 and 67071 issued in tli.e name of defendant Hilaria Uy. Iaabelo, and to issue new ones in the name of ,Plaintiff Pilar T. Ba.utist:i. The plaintiff is hereby absolved from the defendants' countercla.im, the same not having been sufficiently proven. No damages are awarded to said plaintiff; and no special pronouncement is made as to costs." From this decision both the plaintiff and the defendants have e.ppealed, the plaintiffs insofar as the decision faiis to d~e that they are the owners l)f the improvements erected by Eusebio Valdez Tankeh, to order the defendants to account for the renta~ collected by them, and to appoint a receiver; and the defendants insofar ai1 the deed of sale and mortgage contract are annulled. While the tria.J. court overt·uled the contention of the plaintiffs that there was duress on the part of ·the defendants, consisting ln the alleged fact t.hat Pilar was forced to accede to the sale lor ff!ar that t.he defendants would avail thentselves of their influence with the Japanese if Pilar had refused, it sustained the·contention that there was misrepresentation in the sense already above indicat. ed, namely, that the balance of PG0,000. 00 was to be pa~d after two years without inte1·est, instead of within two yea.rs with _interest, Pilar having the right to continue residing in the prenuses and collecting the rentals. We have examined the evidence thoroughly and found that its preponderance weighs on the side of. the defendants. Piiar Bautista is admittedly sn intelligent woman with .business experience, and it is fair to .assume that she would not sign the deed of sale covering her property of considerable size and value without ascertaining its terms and conditions. Ind~ there is enough evidence On record to show that Pilar not only read the document herself but called her daughter to read it aloud, and that even before the signing of the contract in the office of the Register of Deeds of M&niia, she again read the document. Of course she denies having read the deed, but this assertio~ ~ to be more unlikely than the theory of the defendants, considering, as already stated, her intelligence and business experience. ~t any rate, as aptly pointed out by the defendants, the al~eged mis1·epresentation could not ha.ve been decisive in the execution. of the deed of sale, the material and important factor undo:ubtedly being the adequacy of the price offered and paid; and there is no controversy on the latter point. This leads us to the question whether the defendant spouses, assuming that they were Chine.se citizens a.nd that the '!:ale was made to both and not solely to Hilaria Uy Jsabelo, are disqua1ificd to acquire and hold the property in question in view of section l of Article XII of the Constitution, as construed in Krivenko vs. Register of Deeds of Manila, 44 O. G. 471. In the case of Trinidad Gonzaga de Cabauatan, et al. vs. Uy Hoo, et al., G. R. No. L-2207, decided on January 23, 1951, we already held that the Constitution was n~t in force during the Japanese military occupation and there:fore the constitutional provision disqualifying &liens from acquiring real properties in the Philippines wa.s not applicable Bnd the doctrine laid down in tlle Krivenko case cannot be invoked in a sale that took place during said occupation. This decision was followed. in the latter case of Ricamar, et al. vs. Ngo Ki alia.s Sin Sim, G. R. No. L-5836, decided on April 29, 1953. It' results that the ssle in queetion hae to be sustained. Moreover, as also intimated in our decision in Gonzaga de Cabau&tan vs, Uy Hoo, et al., ewn assuming that the constitutional prohibition ·and the doctrine in the Krivenko case may be invoked by the herein pl&.intiffs, ae both parties were in pairi delicto, knowing that what they did was in Violation of the Constitution, the law will maintain them in their actual situation, in the absence of any sta~te to the contrary. Another consideration in favor of the d~ fendant Hilaria is that, after the death of her Chinese husband on April 3, 1948, she had admittedly been li'epa.triated and is now beyond question a Filipino citizen. Wherefore, the appealed decision is reversed and the plain~f~s' ccmplaint dismissed, and the plaintiff& are ordered to execute, withm sixty clays from the finality of this decision, the necessary eancella.. tion of the mortgage in question. BengZOff., Tuaaon, Montemo.yor, Jugo a.ml pa.utista. Angelo, J, J., concur. M'I'. Ju.stice LabmdOf' took no part. Mt', Justtce Pa.blo, dissenting. REYES, J., concurring: I cOncur in the result, it appearing that Hilaria Uy lsabelo, 222 L~WYERS JOURNAL May 31, 1964 the buyer of the pl'operty in question, though married to a Chinese at the time of the sale, subsequently reeovered her Filipino citizen.. Ship after ihe death of her husband, III Philippine International Fair, Inc., et al., Petitione-rs vs. Fidel lbciii~, et al., Respondents, G. R. No. L-6448, February 25, 1954. 1. CERTIORARI: INTERLOCUTORY ORDER.-Although an order denying a motion to dismiss a complaint on the ground of lack of jurisdiction is interlocutory, still ~f it is clear thnt the trial court lacks jurisdiction a higher court of competent jurisdiction would be justified in issuing a writ of certiorari and prohibition, for the proceedings in the court below would be· a nullity .&:nd waste of time. 2. IBID; IBID.-In the absence of a clear showing that the respondent court lacks jurisdiction over the case which involve,; an actionable wrong .or a tortious act, the time-honored rule that from an interlocutory order an appeal doe.s not lie must be adhered to. If from an interlocutory order an appeal does not lie, an extraordinary leg8.l remedy cannot be resorted to have the order reviewed by a higher court. Victoriano Ya1nzon for petitioners. Cornelio T. Villareal, Antonio L. Gregorio and P. P. GaUudo for respondents. ,DECISION PADILLA, J.: This ill a petition for a writ of certiorari and prohibition. As prayed for a writ of preliminary injunction was issued. The facts pleaded in the petition are: The Philippines International Fair, Inc. announced a~d published through daily newspapers the holding of an essay colitest entitled "500 Years of Philippine Progress" under the rules which read as follows: 1. The subject of this contest is: "500 Years of Philippine Progress." , 2, The length of the essay should be not less than 800 words nor more than 1,000 words. 3. The essay must be. a formal type and should be historically correct. 4. The contest is open to everybody, regardless of sex, age, and religion-except to members of the staff of the Philippines International Fair, Inc. 5. The contest opens July 1, 1952, and closes August 30., 1952. 6. Each of the 10 Manila dS:ily newspapers will offer cash prize of P200 in the name of the Philippines International Fair, Inc. and a certificate of merit to the first prize winners. 7, Each newspaper running the contest will select and appoint a Jury to determine the winning essay. 8, All first prize winners in the different newspapers are automatically eligible to the Grand Prize of P500 and a diploma to be presented by the Philippines-International Fair, Inc. 9, The DirP.<:tor General of the Philippines International Fair will select and appoint a Jury of three members, including the Chairman, to determine the winner of the Grand Prize. 10. The grand prize· winning essay becomes the property of the Fair, and will be printed in the Official Program of the 1953 Philippines International Fair. 11. Newspaper editors may formulate their own rules anrl. regulations provided these do not conflict. with those of · the Fair. CExhibit A.> Ten newspapers responded to the call and orga.nized preliminary contests, The newspapers certified their respectiv~ winners to the Director General of the Philltipines International Fair, Inc., who appointed the judges to pass upon and examine the various essays certified to by the newspapers as the winning essays in the preliminary contests. After study of the various essays submitted the board of judges adjudged Enrique Fernandez Lumba, representing La Opinion, as winner of the final contest and transmitted its findings to the Director General of the Philippines International Fair, Inc. Upon learning of the result of the contest and the award made by the board of judges, Ponciano B. J:acinto filed a complaint in the Cciurt of First Instance of Manila (eivil case No. 18255) where the validity of the award by the board of judges was drawn into question and the respondent court issued a writ of preliminary injunction upon the filing of 11 bond in the sum of Pl,000. The Philippines International Fair, lne., Luis Montilla, Federico Mangahas and Juan Collaa: answered the complaint and set up these special defenses: (U that the subject matter complained of is not of such a character as would allow legally the Court to intervene and that for that reason the Cou1·t of First Instance of Manila has no jurisdiction over the subject matter of the action and (2) that the complaint states no cause of action. Simeon G. del Rosario filed a petition for leave to intervene and filed his complaint in inb!:rvention. The defendants set up in their answer to the complaint in intervention the same special defenses. The plain .. tiff and i11tervenor asked that the case be set for a preliminary hearing on the legal issues raised in the first special defense to the complaints, the defendants invoking the rule laid down in the case of Ramon Felipe, Sr. vs. Hon. Jose. N. Leuterio, G, R. No. L-'606, 30 May 1952. After hearing, the re1pondent court ruled that it had jurisdiction of the case, A motion for reconsideration was denied. The writ of prelimiilary injunction was dissolved upon the filing by the defendants of a co~ter bond in the sum of P5,000 to answer for any damage which plaintiff Ponciano B. Jacinto and i:atervenor Simeon G. del Rosario might suffer by nason of the continuance of the deefndants' actions complained of. The hearin~ on the merits of the case was set for 29 January 1953 at 8:30 a.m., of which the parties were duly notified. The petitioners, defendants in the case pending in the respondent court, contend that the jurisdiction attempted to be exercised by the respondent court is contrary to law, And as there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of Jaw to prevent the respondent court from proceeding with the trial of the case, they pray for a writ_ of preliminary injunction and after hearing fo1· a writ of certiorari and prohibition to enjoin the respondent court from trying or hearing civil case No. 18255. In their answer the respondents allege and claim that in the essay contest in question there was an offer and acceptance which constitute the consent or meeting of the minds of the contracting parties; there was the essay contest, an object certain or the subject matter of the contract; and the prize of P500, a diploma to be presented by the Philippines IntemaUonal Fair; Inc. and the printing of the winning essay in the official program of the 1953 Philippines Intemational Fair were the cause or consideration of the contract; that the provisions or rules of the essay contest were nOt complied with, because the winning essay was written in Spanish and it contained 1,864 words, whereas the essay chosen by the committee as winning was written in English and contained less than 1,000 words; that in the FeliJ)e-Leuterio ease the attempt to revise the award was made because one of the judges admitted he had committed a mistake in grading, whereas in this case the board of judges made the award in violation of the rules promulgated for the contest; that in the Felii)e-Leuterio case it was a mere error, whereas in this case it was a commission of a clear, palpable and manifest wrong, in clear abuse of authority and in gross violation of the rights of respondent Ponciano B. Jacinto, who was the first prize winner in three newspapers, namely, Bagong Buha11, Evening News and Star Reporter; and that a wrongful award was made in this case. Although an order denying a motion to dismiss a: complaint on the ground of lack of jurisdiction is interlocutory, still if it is clear flhat the trial court lacks jurisdiction a higher court of competent jurisdiction would be justified in issuing a writ of certiorari and prohibition, for the proceedings in the court below woald be a nullity and waste of time. But the facts alleged in the complaint filed in the respondent court, if proved, constitute an actionable wrong or a tortious act committed by the respondent bo&rd Of judges. In the absence of a clear showing that the respondent court Jacks jurisdiction over the case which involves an actionable wrong or a tortious aci, the time-honored rule that from an interlocutory order May 31, 19H LAWYERS JOURNAL an appeal does not lie must be adhered to. If from an interlocutory order an appeal does not lie, an extraordinary legal remedy cannot be resorted to have the order :reviewed by a. higher court. The petition for a writ of certiorari and prohibition is denied and the writ of preliminary injunction heretofore issued discharged, without pronouncement as to costs. Pcwa.s, Pablo, Bangzon, Montemayor, Re'l/es, Jugo, Bautista Angelo, Lalrrador, Concepcion and Diokno, J. J., concur. IV kuperla CamMa et a.ls., Plaintilfs ... Appellants vs. Celestino Agui. lar et a.ls., Defenda.nt11-Appellees, G. R. No. L-6887, Ma1·ch 12, 1964. JUDGMENT; RES ADJUDICATA. - A brought an action for ejectment against N, which involved a parcel of land allegedly possessed in good faith by RC, NC, ZC, AC, SC, & RC, who intervened in the case for ejectment against N. The Court .rendered judgment declaring N oWner of the land in question and ordered defendants and intervenors to pay damages. Subsequently, RC, NC, ZC, SC & RC filed another action seeking tD recover damages for the money they spent in cultivating the land which was awarded to A, and for the fruits which they failed to harvest therefrom or their value. HELD: (1) This action is barred by the prior judgment because there is identity of parties, the same subject matter and the same ca~se of action, as provided for in section 45, Rule 39, the herein plaintiffs having intervened and joined the defendants in the former case, the subject matter involved in both eases being the same parcel of land an'd the cause of action being ejecbnent. (2) The fact that damages were awarded to the then plaintiff against the then defendants and intervenors in the former case negatives the latter's right to "Claim damages in the present case, for such award is inconsist&nt with the claim that they were in possession of the parcel of land in good faith and are ea.titled to recover what they spent for clearing, euttivating tli.e parcel of land and the fruits they failed to reap or harvest therein or their value. (3) The contention that a counterclaim for expenses incuned in clearing and cultivating the parcel of land and plantin& coconut and other fruit-beari'ng trees therein could not have been set up in the former case because that would have been inconsis_tent with or would have weakened the claim that they weH entitled to the parcel of land, is without merit, because ••A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one cause of action or defense or in separate causes of action or defenses." Hence, the plaintiffs herein and intervenors in the former case could have set up the claim that they were entitled to the parcel of land and alternatively that, asswnin~ (hypothetically) that they were not entitll!d to the parcel of land, at least they were entitled as possessors in good faith to the coconut and other fruit-bearing· ~s planted by them in the parcel of land and their fruits or their value. H. B. Ara.ndia for appellants. Alfredo Bonus for appelleea. DECISION PADILLA, J.: Thia is an action to recover the sum of P300 for clearing a parcel of land described in the complaint, &Jld of P760 for its cultivation, caring and preservation of the coconut trees and other fruit-bearing trees planted therein. The plaintiffs further pray that the defendants jointly and severally be ordered to pay them the awn of Pl0,1'00 representing the value of the coconut trees and other fruit-bearing trees planted in the parcel of land or that they be declared entitled to pay to the defendants the reasonable value of the parcel of land. The plaintiffs allep that they artt all of age excep,t Rebeca Camara for whom her sister Ruperta was appointed guardian ad litem; that they are the ehffdten of the late Severino Camara who since 1915 had been in continuous and uninterrupted possession of a parcel of land situated in the barrio of Balubad, municipality of Atimonan, province of Quezon, formerly Tayabas, containing an area of 6 hectares, more or less, and bounded on the North by the land of Catalino Velasco, on the East by the land of Jose Camara 1.o, on the South by the lands of Santiago Villamorel and Antonio Saniel, and on the West by the land of Antonio Mar~ quo; that the parcel of land was inherited by Severino Camara from his parents Paulino Caniara and Modesta Villamorel; that the late Severino &.mara and his wife Vjcenta Nera represented to their children, the plaintiffs herein, that •id parcel of land belonged. exclusively to him; that the plain·i· and their husbands helped cultivate and improve the pareet of' tlnd during the time Severino Camara was in possession thereof and spent· the amount sought to be recovered by them for planting 1,500 coconut and other fruit-bearing trees; that after the death of Severino Camara the plaintiffs became th"e true, exclusive and absolute owner of the parcel of land and improvements thereon; that Fausto Aguilar brought an action for ejectment (reivindicacioft) against Vicenta Nera involving the parcel of land described above (civil case No. 4835> and on 26 Januaey 1949 the Court of First Instance rendered judgment in aaid tase, the dispositive part of which reada aa fol" lows: IN VIEW OF THE FOREGOING CONSIDERATIONS, the Gourt hereby declares the herein plalnt1tf to be the absolute owner of the land in question (the above described parcel of land) which is more particularly described in the complaint and Exhibits "A" and "B," and orders the herein defendant and intervenors to immediately restore pdssession of said land to the plaintiff. to pay said plaintiff the sum of Pl,200 which is the value of the harvest of the products on said land obtained by them from 1941 up to the filing of this complaint, and to pay the eosts Ot the proceeding. For lack of merits, the counterclaim and the third party claim are hereby dismissed; that on 21 October 1960 the Court of Appeals rendered judgment in said cue, the diapoaitive part of which is as follows: Upon the q11estion of damages we agree with the trial court that the preponderance of the evidence shows that the property in question may yield, at most, P200 per year, but appellee's right to collect damages on that account should start only from the date of the filing of the complaint on December 24, 1947, or from the year 1948. Upon all the foregoing, we are of the Opinion, and so hold that the trial court did not commit the errors assigned in aPpellants' brief. WHEREFORE, modified as above indicated, the appealed judgment is liereby affirmed, with easts; that they together with their deceased father Severino Camara Were possessors in good faith of the parcel of land; that for that reason they are entitled to be reimbursed and paid by the defendants for the trees they planted in the parcel of land; that the defendant Celestino Aguilar is the son of the )ate Fausto Aguilar, plaintiff in eivil case No. 4835 referred to, and the other defendant, Purificacion VHlamiel, is the widow of the late Isidro Aguilar, another son of the late Fausto Aguilar and the three minor defendants are ehildren of the deceased Isidro Aruilar and his wife Purificacion Villamiel who represents them as their guardian ad litem. A motion to dismiss the complaint was filed on the ground that the judgment rendered in civil case No. 4835, which was affil'Rled by the Court af Appeals ·with a modification only as above stated, bars the bringing of the present action, for the plaintiffs herein were intervenors in the former case (No. 4836). The Court dismissed the complaint on the ground that the action brought in this case had been adjudged in civil case No. 4885 and that the complaint states no cause of action. Hence the appeal. The appellants eontend that the question ~f damages was not passed upon in the former ease. The eourt below, however, held that thls action is barred by the prior judgment because there is identity of parties, the same subject matter and the same cause of action, ·as provided for in section 45, Rule 39, the herein plain224 LAWYERS JOURNAL May 31, 1954 tiffs having interven€rf and joined the defendants }n the former case, the subject matter involved in both cases being the same parcel of land and the cause of action being cje.ctment (reivindioacion). The fact that damages were awarded to the then plaintiff against the then defendants and intervenors negatives the latter's right to claim damages in the present case, for such award is inc.onsistent with the claim that they were in possession of the parcel of land in good faith and are entitled to recover what they spent for clearing, cultivating and planting the parcel of ]and and the fruits which they failed to reap or harvest therein or 'their value. The contention that a counterclaim for expenses incurred in clearing and cultivating the parcel of land and planting coconut and other fruit-bearing trees therein could not have been set up in the former case because that would have been inconsistent with or would have weakened the claim that they were entitled to the 11arcel of land, is without merit, beeausc 0 'A party may set forth two or more statements of a claim or defense alternatively Ol' hypothetically, either in one cause of action or defense or in separate causes of action or defenses." (!)"Hence, the plaintiffs herein and intervenors in the former case could have set up the claim that they were entitled to the parcel of land and alternatively that, assuming (hypothetically) that they were not entitled to the parcel of land, at least they were entitled as possessors in good faith to the coconut and other fruit-bearing trees planted by them in the parcel of land and their fruits or their value. The order appealed from is affi1med, wtih costs against ~he appellants. Paras, Beng::on, Reyes, Bautista Angelo, Concepcion, Pablo, Montemayor, Jugo, Labrador and Diokno, J. J., concur. (ll S«". 9. Rule 16. v Pabilonia et al., Petitioners, 1•s. Santiago et al., Respondents, G. R . No . L-5110, July 29, 1953. RULES OF CO~RT ; SPECIAL ADMINISTRATOR; AUTHORITY TO SELL PROPERTY TO RAISE MONEY TO PAY DEBTS.-While Sections 1 and 2 of Rule 81 and Section 8 of Rule 87 specify the cases in which a special administrator shall be appointed and the duties which they in genera.I are to perform, Section 2 of llule 81 expressly authoritizes him to sell "such perishable and other property as the court orders sold. " F urther, debts which a special administrator may not be sued for may be settled and satisfied by him if "expressly ordered by the court to do so." <Golingco vs. Calleja, et al., 69 Phil. 446.) If the court may authorize a special administrator to pay debts, it seems to follow that it may authorize him to sell property to raise the money to pay the debts. Pote11ci<ino A. illa.ytibay for petitioners. G. N. Trinidad for. respondents . DECISION TUASON, /.: This is an original petition to compel the Hon. Vicente Santiago, Judge of the Court of First Instance of Quezon, to approve and cer. tify petitioners' record on appeal filed in special proceeding No. 2387 of that court. The proposed appeal is from an order entered in those proceedings on June 20, 1951, whereby Panfilo Nagar, as judicial e.dministrator, was ''ordered to execute another deed of sale of the property referred to and descl"ibed in transfer certificate of title No. 2992 in favor of Antonia Abas under the terms and conditions which appear in the amended deed of sale lilf January 30, 1936 mutatis mutamlis, subject to the approval of the Court." The respondent judge held that the sale mentioned in his order was final and execution of the deed ministerial on the part of the court. To properly understand the status of the sale being impugned it is necessary to recite the salient circumstances under which it was made. This sale dates as far back as the inception of the above. mentioned special proceedillgs in 1953. It was executed in due form by and at the behest of Pedro Pabilonia as 8pecia1 administrator, who was the surviving spouse of the deceased and father of the present petitioners, both of whom were then minors. IDitiator or those proceedings, Pnbilonia not only asked for authority to sell the questioned property but named the price of sale <P2,600> a.nd the person to whom the sale was to be made, Antonia Ahas, a unt of his deceased wife. Regarding the necessity for the sale, P~bilonia al!eged that the property was mortgaged to the Philippine National Bank; that the mortgage was overdue ~nd the mortgagee was threatening to foreclose it ; that on account of the prevailing financial depression the obligation could not be met with the income derived from the land, which was the only asset of the estate; etc., etc. Pabilonia's recommendation was granted without any modification following which a. deed was executed by him in strict accordance with his reconuncndation and the court's order. But the court thought, for the first time, when the deed of sale was submitted for confirmation, that a i·egular administrator and not a special administrator like Pabilonia should sign the instrument if the same was to be valid. Consequently, on Februa.t·y 20, 1036, it withheld its approval oi the said sale "por ahora" pending the "conversion" of the special administrator into a regular one. To this end, presumably, the court directed Pabilonia to. apply for appointment as regular administrator. In the meanwhile, Pabilonia delivered the possession of the land to the buyer, who since then has been paying the mortgage debt tO the Philippine National Bank under a new arrangement reached with the creditor. For all the records would show, the mortgage may have been -paid off completely by now. For the i·eason, so it seems, that the buyer had already entered upon the possession of the land, novated the contract of mortgage with the Bank, and there was no other property to administer and no other obligation to settle, Pabilonia and Ahas lost interest in the appointment of a regular administrator. As a result of their inac· tion the court, now presided by another judge, dismissed the proceedings on June 20, 1939, "por falta de gestion" by the parties. Nevertheless, on May 28, 1947, Pabilonia and Antonia Abas made a joint motion for the reinstatement of the expe<liente. That motion was promptly granted, whereupon Pabilonia asked that he be ap~ pointed regular administrator to carry out the court's order of January 1936, and he was so appointed on June 6, 1947. But for reasons which can be guessed in the light of his subsequent actions, Pabilonia refused to qualify and proposed a brother-in-law, Leon Abrigo, in his place. Antonia Abas was not agreeable to Abrigo's appointment and nominated Panfilo Nagar. Now entered the present petitioners, Pabilonia's children who ha.cl become of age. With their father they opposed Nagar's appointment. insisting on the appointment of their candidate, branded the sale to Abas as invalid, and sought to recover the possession of the property from the buyer. After considerable wrangling between the parties the court ovenuled the petitioners' objections and denied their prayers, and on June 9, 1950, issued to Nagar letters of administration "con todos los derechos y obligaciones anexos al cargo." The herein petitioners took steps to appeal from that order, but later gave up the idea. On January 30, Hl51, after the petitioners' appeal was with~ drawn, Nagar filed a motion praying that the deed executed by Pabilonia as special administrator on January 80, 1936, be approved or, if this be not possible, that he be authorized to execute a new document with the same terms. It was upon this motion tha.t the order quoted at the outset of this decision and from which petition~ ers now seek to appeal was made. It will be seen from the foregoing narration of facts that the sale executed by Pabilonia on January 30, 1936, has never been disapproved, set aside, or modified. Upon the contrary, it was assumed to be valid in every respect except tha;t it was deemed that a regula..i.• administrator should have made the sale. All these long year&; the appointment of such adminish-ator was distinctly understood by the parties and the court to be the only unfinished matter to be attended to, and Panfilo Nagar's appointment and the court's ~rder for him to execute a new deed exactly like that signed by the former administrator were nothing mol'e than in furtherance of that l\1ay 31, Hl54 LA WYEHS J OURNAL 225 understanding, Except, therefore, for that appointment and the court's final approval, and as far as the estate was concel'ned, the right of the buyer was complete, absolute and incontestable , Not only was the sale made in pursuance of the special administrat9r's motion, but the parties have fully complied with its terms. Under the circumstances, only want of any of the essential elements of a contract can give the petitioners the right to stop the court's confirmation of the transaction, The petitioners have not submitted a copy of the record on a.ppeal, nor other supporting papers except excerpts thereof or of some of them, and we are not informed of the exact basis of their objection to the sale. As a matter of fact, we incline to the opinion that the conveyance made by the special administrator was valid and effective and that there was no necessity of a.ppointing a regular administrator to ratify it or execute a new deed. While Sections 1 and 2 of Rule 81 and Seetion 8 of Rule 87 specify the cases in which a special administrator shall be appointed 'and the duties which they in general are to perform, Section ~ of Rule 81 expressly authOrizes him to sell "such perishable and other property as the court orders sold ." Further, debts which a speoial administrator may not be sued for may be settled and satisfied by him if "expressly ordered by the court to do so." <Golingco vs. Calleja, et al., 69 Phil. .446.) If the court may authorize a special administrator to pay debts, it seems to follow that it may authorize him to sell property to raise the money to pay the debts. Here there was a debt to pay a.nd there was an order to sell the only property of the intestate for the purpose of paying that debt. The court finds no merit in the application and, accordingly, denies it, with costs against the petitioners. -Paras, Pablo, Bengzo-n, Padilla, ftfof\lemtiyor, Reyes, J1190, BautiiJta. A-ngelo a.nd Labrador, J.J., concur. VI Manila Trading rrnd Supply Co. , P~titio11er-Appellant, ti3. Register of Dfleds of Ma11ila, Respondl!nt-Appellee, G. R. No. L-5623, Jan. 28. 1954. · LAND REGISTRATION; CERTIFICATE OF TITLE; ANNOTATION THEREON OF OWNERSHIP OF IMPROVEMENTS; CASE AT BAR. - The l\lanila Trading snd Supply Co., a corporation, is the lessee of three parcels of land in the Port Area, Manila, belonging to the Philippine Government, such le:lsc having- been recorded on the G:>Vemment's Certificate of Title No. 4939. The structures built by said company upon the Jots were destroyed during the last war; but after liberation, it erected new buildings that cost over a. million pesos. ThcreaftP.x, on April 12, 1951 it reque~ted the Manila Court of F ii:st Instance to require the Register of Deeds to enter and annotate, on Certificate of title No. 4948, its Declaration of Property Ownership of such valuable improvements. The court granted the request. Then the Register of Deeds demanded payment of Pl308.00 for the assurance fund pursuant to section 99 of Act No. 496. The company refused to pay, and applied to the court for relief thru a petition-consultation. The attorney fo1· appellant insists here that section 99 is inapplicable, because the matter is not original t·egistration of "land," nor entry of :\ cet·tificate showing title aa registered c;;wners in heirs or devisees. The Legislature knew, he argues, tha.t "buildings" "nd "improvements" are not "land." Held: Upon examination of the whole Land Registration Act we are satisfied that "land" as used in section 99 includes buildings. For one thing the same section uses "real estate" as synonymous with land, Anrl buildings are "real estate" CSec. 334, Civil Code; Art. 415, New Civil Code; Republica de Filipinas v. Ceniza, L-4169, Dec. 17, 1951>. FC1r another, although E'ntitled "Land Registratiol'!," having exprE>ssly pe1mitted in its initial sections <sec. 2> th' registration -if t itle "to land or buildings or an interest therein" and declared that the proceeding shall be in rrni against the land and the buildings and improvements thereon, the statute (Act 496) uioed in sub:iequent provisions the word "land" as a short term i:.q,uivalent "to land or buildings or improvements" to avoid frequent repdition of " buildings and improvements." Unless, of course, a different int~rpretation is required by the intent or the terms of the provision itself, which is not the cas.:- of section !>9. On the contrary, tQ cwa:tder buildings as within its range w:iuld be entit-ely in li!J~ its purpose because as rightly pointed out by His Hon~ would be unfair t or petitioner to enjoy the protection of the assurance fund even if it refuses to contribute to its maintenance. Ross, Sel11fl, Cur-rascoso and JJ..:tu!l for petitioner-appellant. for ;;~;/!~:. Gentra( haH R. Li1~and Solicitor Jose G. Bautista DECISION HENGZON, J .: The issue for adjudication is whether the owner ot building ~ected on premises leased from another person is required to cont ribute to the assurance fund when he petitions for annotation of his Ownership on the corresponding certificate of Torrens title. The facts are simple: The Manila Trading and Supply Co., a corporation, is the lessee of three parcels of land in the Port Area, Manila, belonging to the Philippine Government, such lease having been recorded on the Government's Certificate of Title No. 4939 . The structures built by said company upon the lots were dcstroyea during the last war ; but a.fte.r liber:ttion, it erected new buildings that cost over a million pesos. Thereafter, on April 12, 1951 it nquested the Manila Court of First Inst.Ince to require the Register of Deeds to enter and annot:tte, on CutificatE> of Title No. 4948, its Declaration of Property Ownership of such valuable improvements. 1'he court granted the request ( 1). Then the Register of Deeds demanded payment of P1308.00 for the assurance fund pursuant to section 99 of Act No. 496. The company refused to pay, and applied to the court for relief thru a petition-consultation. Th~ Register o.f Deeds was upheld. Hence thfa appeal. Section 99 provides in pa.rt: ''Upon the original registration of land under this Aet, and also upon the entry of a cel'tifics.te showing title l\S regis.tered owners in heirs or devises, there shall be paid to tht: register of deeds one-tenth of one percent\<m of the asse,;i;cd value of the r eal estate on the basis of the last assessment fo!' municipal taxation, as an assurance fund. x x x" The Honorahle Ramon R. San Jose, J udge, approving ~e Hegister's action explained: "x x x considerando quc Ja anotacion de la citada ordcn, juntamente con el exprcsado affidavit, en el Certifieado de Titulo No. 4938 de Gobierno de ·Filipinas, crea un inte1·u en cl terreno descrito en el referido titulo sobre todo en el presente caso en que t:onsta inscrito un contra.to de arrendamiento de! terren.> entre el Gobierno y la dueiia de Jos edificios, este Juzgt:dc es de opinion que la cuestion discutida cae de Ueno bajo las disposici.ones legales que hablan no solamente de tel'J'eno, sino tambien de 'real estate' y de 'interes' en el ter reno y dan proteccion a los que, sin negligencia suya, pierdan irreivindicablemente su derccho, interes o participacion, en el terreno y/o las mejon.s existentes en el mismo. Es injusto que la recunent.e tenga la proteccion de sus edificios bajo el fondo de aseguro y no haga su contribuccion al mismo. x x x ." th() Act <496J permits the registration of interests therein, im- The attorney for appellant insists here that section 99 is inapprovements, and buildings. Of course the building may not be plicable, because the matter is not original registration of "land,'' registered separately and independently from the p:ir~el ou nor entry of a certificate showing title as regi~tered owners in heirs which it is constructed, as aptly observed by Chief Justice or dcvisees. The Legislature knew, he argues, that "buildings" and Arellano in 1909, But "buildings" are r egisterable just the imme under the Land Registration System. It seems clear that . 01 ~:OOJ)ef~~~rn$iB~~F~Bi~. 1!,~d~,!'l~·"o~12,6A~~1t.9636~Jd vrotectt the ririh11 of 226 LA WYERS JOURNAL May 31, 1954 "improvements" a.re not "land." Upon examination of the .whole Land Registration' Act we are satisfied that "land" as used i11. section 99 includes buildings. For Pne thing the same section uses "real estate" as synon71J1ous with land. And buildings are "real estate" <See. 334, Civil Code, Art. 416, New Civil Code, Republics de Filipinas v. Ceniza, L-4169, Dec. l'i', ·1951) .2 For a.nother, altl1ough .entitled "l141UI Registl'a.tion," the Act <496) pennits the registration of interests therein, improvements, and building. Of course the building may not b& registered sepa1·ately and. independently from the parcel on which it is eonstrueted, as aptly o~ed by .Chief Justice Arellano in 190£1.S But "buildings" a~ re'gisterable just -the same under the Land Re"gistration System. It seems clear that having expressly permitted in its initial sections <sec. 2> the .registration of title "to land or baildings or an interest therein'~ and_ ®clared that the proceedings shall· be in Tew. against the land and the buidings and impwvements thereon, the statute <Act 496) used in subsequent provisions the word "land" as a short term equivalent "to land or buildings or improvements"4. Unless, of cour.se, a different interpretation' is required by ~he intent or ·the terms of the provision itself, which is not the case of section 99. On the contrary, to consider buildings as within its range would be entirely in line with its purpose because .as rightly pointed out by His Honor, it would be unfair fo;r petitioner to -enjoy the protection 'of the assurance fund5 even as it refuses to contribute to its niaintenance. Wherefore, the appealed order will be affirmed, with oosts. POlra8, Pablo, Padilla, Reyes, Jugo;, Batttista Angelo . and Labrador, JJ., concur. · . , .. I reserve my vote ....... ·Marcelino R .. Montemayor. VII People of tlte Pltilippines, Plaintif/~Appellee vs. Mazimo Pacheco, aJias Emong, alia.a Guemo, Di;fenda.n.t-Appella:nt, · G. R. No. L-4570, July 31, 1953. 1. CRIMINAL LAW; TREASON; VENUE. - It is common knowledge that when the Government found it was no longer necessary to maintain one People's Court for the whole PhiJ.. ippines to try treason indictments, the Congress abolished that Court and directed th8.t treason eases "pending before it shall be heard by the respective courts of first instance. There is nothing to indicate congressional intention to disturb the usual rules on jurisdiction or venue of courts of first instance nbtaining before the .creation of. the People's Court. 2. IBID; IBID; IBID; TREASON A CONTINUOUS OFFENSE. - The information alleged in substance that Pacheeo, beirig .a Filipino citizen, willfully aided the Japanese in two instances, to wit: (1) the .arrest, maltreatment af!d shooting of Ceferino Rivera on January 2, 1945 in the Municipality of Polo, Bulacan, and (2) the arrest and torture in Manila, in February 1945, Qf Judge Eugenio Angeles, whom the accused had pointed to the Japanese as a guerrilla major of Polo, Bulacan. At the opening of the trial, counsel for the ·defense ques... tioned the jurisdiction of the Bulacan court to take cognizancEi of the second count, inasmuch as it refei:red to acts which occurred in Manila. Held: The crime of treason may be committed '_'by executing, either a sfngle or several intentional overt acts, different or similar but distinct aJ.1d for that reason" it may Ii"' considered one single .continuous offense. <Guinto v. Veluz 44 0. G. 909> • It Diay therefore be .prosecuted in: any province wherein some of-th~ esBential ingredients thereof occurred. <Sec. 9· Rule 106. (U.- S. vs. Santiago ,27 Phtt. 408; U. $, vs. Cardell 23 ·Phil.-- 201>. To- uphold appellant's contention would be to permit another prosecution against him in the Court 0£ First Instance of Ma.nils <See Guinto vs. Veluz supra.> Civrdenas and Casal for appellant. . Solicito.,. G1>1t1Wt1l Pompeyo Diaz and SolicitOT Pacifico P. de CastTo for appellee, DECISION BENGZON, J.: In the year 1950, Maximo Pacheco was tried for treason in the court o~ first instance of Bulacan, the amended information allegii:ig, in the first count, acts performed in Polo, Bulacan and in the second. acts in the City of Manila. The Honorable Manuel P. Barcelona, Judge, in a decision dated January 10, 1951, found him guilty aa charged, and sentenoed him to be imprisoned for life, to pay a fine of Pl0,000 aad to indemnity the heirs of Ceferino Rivera in the amount of P6,000.00. The accused appealed in due time. Bis printed brief saaigns four errors that raise two principal issues: (1) jurisdiction of the court to try the second count and C2> credibility of the witnesses. The. information alleged in substance that Pacheco, being a Filipino citizen, willfully aided the Japanese in two instances, to wit: (1) the a.rrest, maltnatnient and shooting of Ceferino Rivei::a on January 2, 1945 in the Municipality of Polo, Bulacan, and (2) the arrest and torture in Manila, in :February 1945, of Judge Eugenio ·Angeles, whom the accused had pointed to the Japanese as a guerrflla major of Polo, Bulacan. At the opening of the tri•l, counsel for the defense questioned ~he. jurisdiction of the Bulacan c9urt to take cognizance of the .second count, tn'asmuch as it referred to acts which occurred in Manila. Thf' Judge ovenuled the contention, adverting to its orders in previous cases on the same issue. We do not find in this record the reasons of the trial judge. Very probably, however, they refer to the same theory advanced by the People in this appeal relative to one continuous offense consisting of several acts, occurring in different provinces, offense which may under the .principles governing . venue be prosecuted in any province wherein any material ingred·i~nt of the offense is shown to have been committed. The appellant however cites Republic Act No. 811 that in dissolving the People's Court ordered all cu.sea then pending. therf!"in to be "transferred to, and tried by, the respective Courts of Fir&t Instance of the p1·ovinces or cities where the offenses are alleged to have been ~mmitted." · It is common knowledge that .when the ·Government found it 'was no longer necessary to maintain one P.eople's Coul't fot: the whole Philippines to try treason indictments, the Congress abolished that Court and directed that treasnn cases pending before it shall be heard by the respective courts of first instance. There is nothii:ig to indicate congressional intention to disturb the: usual rules fin jurisdiction or venue of courts of first instance obtaining beft\re the creation of the People's Court. Under· the l'Ules, the trial court's jurisdiction may be and should be upheld in this case. The crime of treason may be committed "by executing, either a .single or several intentional overt acts, differai.t or similar but dis.. tinct and for that reason" it may be considerEd one single continuous offaise. (Guinto v. VeJuz 44 0. G. 909). It may thPrefore be prosecuted in any province wherein some of the esBential ingr<>:lients thereof occurred. <Sec. 9 Rule 106). CU. S. v. Santiago 27 Phil. 408; U.S. v. Cardell 23 Phil. 207>. To uphold appellant's ·contention would be to permit another pro.. seeution against llim in the Court of First Instance of Manila <See Guinto v. Veluz supra.). Having disposed of the preliminary question, we may now examine the record. As to the first count, Isidro Rivera, Dominga Camatos, Antonio de Guzman, Federico San Juan and Regino Galicia took the witness stand, aJld their combined teatimony ~ows: In the morning of January 2, 1945 four Filipino makapilis Ctwo of them were Maximo Pacheco, 25, and Teofilo Encarnacion> entered the house of Filo.. mena de la Cruz in Pasong Balite, Polo, Bulacan, and arrested her son..in-law Ceferino Rivera, 24, as a guerrilla suspect, in the 'preMay 31, 195·4 LAWYERS JOURNAL 227 senee Of ·ms father Isidro Rivera, his wife Dominga Camatos and Filomena CTeofila) de la Cruz. The party was commanded by a Japanese officer. Maximo Pacheco, armed with a rifle, tied the hand& of the prisoner. .Theredter the captive was marched to the 'J8.p8.nese garrison at Polo, Bulacan, followed by his near relatives already mentioned, The latter waited for him at the gate for two hours, but in vain. The next day, in the afternoon, they returned in time to see 'rum with three other Filipinos. all tied, walking to the Isla bridge, Polo, guarded by four Filipinos, one of them the appellant, plus one or two Japanese soldiers. Near the foot·.'of the bridge the Filipino captives were shot dead. Antonio lie Guzman, 'l\,'hose house stood about. thirty meters from the place beheld the 'massacre, which was also seen by Federico San Juan, 1'~er., 38, and Regino Galicia, employee, 37. Antonio de Guzman swore 'it was this appellant who shot Ceferino Rivera on that occasion. · Appellant's overt act of taking part in the appreh~nsion of Ceferi.no Rivera, as a guerrilla suspect waa testified to by Isidro Rivera and Dominga Camatoa. But the defense contends that the 'latter is un~-orthy of credit because whereas she stated in direct examination that her husband had been arrested by four Filipinos '(one of them Maximo Pacheco) yet on crosr:i examination she answered it was a Japanese who made the arrest Cp. 285 -n.) But on ·the same page this woman declared: · "P Y los otrcs cuatro filipinos eataban alli mirando en compania del japones, desde luego? R El que le ato era un filipino. P Quien de los filipinos ato a au esposo? R Maximo Pacheco.'" There is consequently no reason to doubt her veracity on tlda score. Other quotations of the testimony of these two witnesses are 'submitted by appellant's counse~, in an effort to destroy their credibility. The:y are either explainable, like the one above discussed, or refer to unsubstantial matters, That thiR appellant took active part in. the· arrest and execution of Ceferino Rivera, we have no rcaSonable doubt. His mere denial can not overcome the positiv<' assertion of the witnesses. And his claim that he was also a guerii.Ua, was held unfounded by the trial judge. Anyway, we have heretofore declared that such claim ia no defense acainst overt acts of treason. (People vs. Jose Fernando, SC-G.G. No. 1-1138, prom. Dec. 17, 1947; People vs. Carmr.lito Victoria1 SC-G. R. No. L-369, prom. Mar. 13, 1947; People vs Carlos Castillo, SC-G. R. No. L-240, prom. April 17, 1947>. . The second charge is also adequately proven by the testimony ·of Judge Eugeitio Aiiaeles, hia son Gregorio, and Dr. Ciriaco Santiago. . . On February 2, 1945 about 7:30 a..m., the three were on their way to Hermoso Drug Store near Divisoria Marbt, Manila. Crossing a bridge on Azcarraga Street they met Ricardo Urrutia ,)f Polo, friend of Judge ·"'-ngeles, who stopped to tell them "the Ame.. ricans were already in Malolos." Hardly had the p&rty crossed the bridge when Judge Angele;;i was surrounded by five young m•~n all armed. One of them wearing a mask ordered him to proceed to lhe Air Port studio nearby, which served as Headquarters of the Kempei Tai, dreaded Japanese orgp..nization. One of the young men was the herein accused. Dr. $anti.ago and G1-egorio Angeles were Mt molested. In the studio Judge .Angeles was brought to a room wherein he saw seven Filipinos (including this appellant> headed by one Santos residing in Polo. The latter asked Judge Angeles if he was a guerrilla., and 1!fhen he replied in the negative he was struck with a piece of lumber. Then he was subjected to several forms of torture. Ue was boxed and kicked and given the water cure. But he stoutly denied connection With the underground resistance. This accused was in the room and informed the investigators that he (Judge Angeles) was the chief of the guerrillas of Polo. In view of this imputation the tortures continued. Fortunately for Judge Angeles, the Japanese began their retrea.t from Manila on February 3, the gaTrison was vacated, and ·he ma.naged to escape together with other ·prisoners. lt may be true, as contended by defense counsel that the ·tortures uiidergcne by Judge Angeles' were described. by him as the sole witness; but his apprehension BB a guerrilla was witnessed and related in open court by Dr. Santiago all:d his son Gregorio, compliance with the two-witnesa rule being thereby effected. Wherefore, after reviewing the whole record we find no hesita.. tion in finding this appellant cuilty of treason. And as th~ penalty meted aut to him aceords with section 114 of the Revised J>enal Code, the a.ppealed decision should be, and it is hereby, affirmed with coats. So ordered. Patra8, Pablo, Padilla, Tuason, Montema710t", Reyes, Jugo, Bautista. Angelo and Labnulo,-, J.J., concur. Mr. Juatice Feria took no part. vm Nica7UW Jacinto, Petitioner os. Hon. Raf"l Amparo, aa Judge of tM. Court of First Instance of Manila, Branch III, and Jose CojHangco, Respondents, G. R. No. L-6096, August 26, 1953. DEPOSITION; DISCRETION OF THE COURT.-ln the case of Frank & Co. vs. Clemente (44 Phil. SO>, it was held that the taking of a deposition rests largely in the epund discretion of the court. Although that decision waa rendered under the provisions of the old Code of Civil P~dure (Act No. 190), it is also applicable In the present case, in view of ·the P,rovisiona of section 16 of Rule 18. Jose P. Lau,.el for petitioner. Lo,-enzo Sumulong for ~dent.a. DECISION JUGO, J.: On November 26, 1961, Nicanor Jacinto petitioner herein, filed1 a complalnt against Jase Cojuangco, respondent herein, before the Court of First Instance of Manila, presided over by Judge Amparo, co-respondent herein, in Civil Case No. 16199 of said court, pray~ ing for an accounting o'f the assets of a partnership organized by Nicanor ·Jacinto and Jose Cojuangeo in 1939. Cojuangco filed an answer with a counterclaim, to which Jacinto in his turn filed an answer. Upon motion of Jacinto, the case was set for trial on February 22, 1962. On February 8, Jacinto served on Cojuangeo a notice for the taking of the latter's deposition by. oral examination on February 12, befbre a Deputy Clerk of the Court of First Instance of Manila. In the morning of February 12, 1962, the date set for the taking of the deposition o:i Cojuangco, the latter's counsel, attorney Lorenzo Sumulong, conferred with attorney Fernando Jaeinto, son and counsel of Nicanor .Jacinto, regarding the possibility of an amicable settlement. In view of this, the taking of the deposition was postponed. to February 1&, and then to Feb~ary 18, at 2:00 p.m. At one o'clock iii the a~ternoon of February 18 or on• hour before the time set for the deposition of Cojuangco, the latter served on Jacinto notice of this motion asking the court to order that the deposition be not taken at all, setting said motion for hearing on February 22, the date fixed for the trial. At the s&Dle time, Cojuangco served on Jacinto notice that he would take Jacinto's oral deposition at one o'clock p.m. on February 22. Ja-einto did not object to the taking of his deposition by Cojuangeo, but moved that the hour of thB taking be changed ·for the convenience of both parties. At the hearing of Cojuan&'CQ'S motion, Jacinto's counsel argued. against it. The respondent Judge dictated in open court the following resolution_: "The Court takes exception to the allegation that the taking of a deposition is a matter .of absolute right after the answer is filed. See section 16 of the• rules. The case is now ready' for trial, why don)t we proceed? 'l'he granting of the taking of a deposition is discretionary: to the Court under Section 16. And taking the circumstances, the eourt finds 228 LA WY~RS JOURN>AL May Sl, 1964 no necessity for the taking of the deposition. It will simply delay the proceedings. The court will deny 01· set aside the taking of the deposition and the counsel for the plaintiffs can test the validity of the_ ruling of the court in the ap.. pellate court. x x x x As the court $ted from the beginning, the court will issue a formal order directing that no deposition will be taken because that will not be necessary. The court finds that such taking of the deposition will lead the parties or the court to ~o practical result. I will have the order made in due form." Cojuangco moved for the rec'Onsideration of said order, but hia motion was denied. Section 16, of Rule. 18, provides that "after notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined and upon notice and for good cause shown, the court in which the actien is operate his taxi cab eight hours, or less than eight hours or in excess of 8 hours, 01· even for 24 hours on Saturdays, Sundays and holidays, with no limit or restriction other than his desire, inclination and state of health 8-nd physical endurance. He could drive continuously or intermittently, systematically or haphazardly, fast or slow, etc. depending upon his exclusive wish or inclination. One day when he feels strong, active and enthusiastic he works long, continuously, with diligence and industry and makes considerable . gross returns and receives much as his 20% commission. Another day when he feels despondent, run down, weak or lazy and wants to :rest between tl"ips and works for a less number of hours, his gross returns are less and so is his conuniSsion. In other words, his compensation :(or the day depends upon the result ·of his work, wllich in turn depends on the amount of industry, intelligence and experience applied to it, rather than the period of time employed. In short, he has no fixed salary or wages. pending micy- make an order that the deposition shall not be taken, S. IBID; IBIDi IBID.-ln an opinion dated July 1, 1939 (Opinion etc." It is clear from this section that the taking of a deposi- No. 115) modified by Opinion No. 22, series 1940, dated Jantion is discretionary with the trial court. We do not find that uary 11, 1940, the Secretary of Justice held that chauffeurs of the court abused its discretion in ordering that the deposition be the Manila Yellow Taxicab Co. who "observed in a loose· way not taken, the reasons given by it being plausible and cOgent. ln certain working hours. daily.'' and "the time they report for certain cases, there may be sufficient grounds for taking the de- work as well as the time they leave work was left to. their di&positibn Qf a party or witness, such as his impending departure cretion," :receiving no fixed saJary but only 20% of their gross frem .the country, or that certain pertinent facts could not .be earnings, may be considered as piece workers and therefore not elicited except by means of a deposition. No such grounds exist _yve:red by the provisions of the Eight Hour Labor Law. ;ee~~ ~::n!ii:a:.uni~er;r i:ru:to h?~:i~: ;:::es~~:n r:~p::~en;a~ ~ IBID; IBID i IBID.-"The provisions of this bulletin on crverwhich may not be Obtained_.from-him at the trial itself, with the ~ compenaation s~all l\pply to all ~ersons employed .in any same coerceive remedies at the disposal of the petitioner. mdu~ or occupation, whether pu~lic or priva~ with tAe As there has been no excess of jurisdiction or abuse of dis- ez:oeptum of farm laborers.' non-agricultural labor~rs, or emcfetion on the part of the respondent court, the remedy of cer- plo~s ~ho ai: paid on .piece work, contract, pak~ao, task or tlorari does not lie; nor may the writ of mandamus be issued, for citmmiasi~ basia, domestic servantf and ~erson~ m the perthe reason that this remedy is available only to compel the per- sonal service of another and members of tile family otf the emfom:iance of a mandatory and ministePial act_ on the part of fin ployer working for him." officer. Manansala and Manansala for appellants. Ramon L. Resurreccion for appellee. DECISION In the case of F'rank & Co. vs. Clemente, (44 Phil., ·ao), it was held that the taking of a deposition rests largely· in -the sound discretion of the court, Although that decision was rendered Under the provisions of the old Code of Civil Procedure (Act No. 190), ft is also applicable in- the present case, in view of the provisions MONTEMAYOR. J,: of section 16 of Rule 18. In view of the foregoing, the petition is denied with costs against the petitioner. It is so ordered. PMas, Pablo, Bengzon, Padilla, Tuason, MontemayOf', Reyes, and Lf.ibrador, J. J., concur. Mr. Justice Bautista Angelo takes -no part. IX Manuel La!ra, et aL, Plaintiffs.Appellants, vs. Petfonilo del Rosario, Jr., Defendcmt-Appellee, G. R. No. L-6339, April 20, .1954, 1. EMPLOYER AND EMPLOYEE; SECTION 3 OF COMMONWEALTH ACT 444 COMMONLY KNOWN AS THE EIGHT HOUR LABOR LAW CONSTRUED.-The last part of Section S of Commonwealth Act 444 provides for extra compensation for overtime work "at the· same rate as their regula., wages Of' sala#-g, plus at least twenty-five per centum additional," and that section 2 of the same act excludes from the application thereof labo1·ers who preferred to be oJJ,· "pie~e WOf'k basis. This connotes that a laborer or employee with 'hi> fixed :..alary, we.ges or remuneration but :receiving as compensation from his employer an uncertain and variable amount depending upon the work done or the :result of said work (piece work) irrespective of the amount of time employed, is not covered by the Eight Hour Labor Law and is not entitled to extra compensation should he work in excess of 8 hours a day. 2. IBID; IBID; DRIVER IN TAXI BUSINESS NOT ENTITLED TO OVERTIME COMPENSATION.-A driver in the tu.xi busitte!!IS of the defendant, like the plaintiffs, .in one day could In 1950 defendant PETRONILO DEL ROSARIO, Jr., owner of twenty-fin taxi cabs or cara, operated a taxi business under the name of "WAVAL TAXI." He employed ainong others three mechanics and 49 chauffeurs or drivers, the latter having worked for periods railging from 2 to 3'1 months. on- September 4, 1950, with bv.t givlng said mechanics and chauffeurs 30 da}'B advance notice, Del Rosario sold his 25 units or cabs to LA MALLORCA, a ~ans portation company, as a result of which, according to the mechanics and chauffeurs abovementioned they lost their jobs because the La ldalloua failed to continue them in their employment. They brought this action against Del Rosario to recover compensation for overtime work reildered beyond eight hours and on Sundays and legal holidays, and one month salli.ry (mesada) provided for in Article 302 of the Code of Commerce because of the faliu1·e of their former employer to give them one month notice. Subsequently, the three mechanics unconditionally withdrew their claims. So, only the 49 drivers remained as plaintiffs, The defendant filed a motion for the dismissal of the complaint on the ground that it stated no cause of action and the trial court for the time being denied the motion saying that it will be considered when the case was heard on the merits. After trial the complaint was dismissed. Plaintiffs appealed from the order of dismissal to the Court of Appeals which Tribunal after finding that only questions of law are involved, certified the case to us. The ·parties are agreed that the plaintiffs as chauffeurs received no fixed compensation based on the hours or the period or time that they worked. Rather, they were pd.id on the commission basis, that is to say, each driver received 20% of the gross returns or earnings from the operation of his taxi cab. Plaintiffs claim tliat as a rule, eaeh driver operated a t.azi 12 hours a day Mat 31, 1954 LAWYERS JOURNAL with gross earnings ranging from P20.00 to P25.00, receiving therefrom the corresponding 20% ahare ranging from P4.00 to P5.00, and that in some cases, especially during Saturdays, Sundays and Holi· days when a driver worked 24 hours a day, he grossed from P40.00 to P50.00, thereby receiving a share of from P8.00 to Pl0.00 for the period of twenty-four hours. The reasons given by the trial court in dismissing the complaint is that the defendant being engaged in the taxi or transportation business which is a public utility, came under the exception provided by the Eight Hour Labor Law (Commonwealth Act No. 444); and because plaintiffs did not work on a salary basis, that is to say, they had no fixed or regular salary or remuneration other than the 20% of their gross earnings, "their situation was therefore practically similar to piece WOl"kers and hence, outside the ambit of article 302 of the Code of Commerce.'' For purposes of reference we are reproducing the pertinent provisions of the Eight ~our Labor Law, namely, sections 1 io 4. "SECTION 1. The legal working day for any person em· ployed by another shall be of not more than eight hours daily. When the work is not continuous, the time during which the laborer is not working and can leave his working place and can rest completely shall not be counted. "SEC. 2. This Act ahall apply to all persona employed in any industry or occupation, whether public or private, with the exception of farm laborers, laborers who prefer to be paid on piece work basis, domestic servants and persons in the per-sonal service of another and members of the family of the empfoyer working for him~ "SEC. 3. Work may be performed beyond eight hours a day in case of actual or impending emergencies caused by serious accidents, fire, fioodT typhoon, earthquake, epidemic, ~.r other disaster or calamity in order to prevent loss of life and property or imminent danger to public safety; or in case of urgent work to be performed on the machines, equipment, Or insi,Uations in o~der to avoid a serious loss which the employer would otherwise suffer, or some other just cause of a similar nature; but in all such cases the laborers and employees shall be entitled to receive compensation for the overtime work performe4 at the same rate as their regular wages or salary, [llus at least twenty-five per centum. additional. "In case of national emergency the Government is empowered to establish rules and regulations for the operation as compensation from his employer an uncertain and variable amount depending upon the work done or the result of said work (piece work) irrespective of the amount of time employed, is not covered by the Eight Hour Labor Law and is not entitled to extra compensation should he work in excess of 8 hours a day. And this seems to be the condition of employment of the plaintiffs. A driver in the taxi business of the defendant, like the plaintiffs, in one day could operate his taxi cab eight ·hours, or less than eight hours or in excess of 8 hours, or even for 24 hourS on Saturdays, Sundays and holidays, with no limit or restriction other than his desire, inclination and state of health and physical endurance. He could drive continuously or intermittently, systematically or haphazardly, fast or slow, etc. depending upon his exclusive wish or inclination. One day when he feeJs strong, active and enthusiastic he works long, continuously, with diligence and industry and makes eonsideJ'able gross returns and receives much as his 20% commission. .AJlother day when he feels despondent, run down, weak or lazy and wanta to rest between trips and works for a less number of hours, his gross returns are less and so is his conunission. In other words, his compensation for the day depends upon tJte !'esl,J.lt of his work, which in turn depends on the amount of industry, intelligence and experience applied to it, rather than the. period of time employed. In short, he hu no fixed salary or wages. In this we agree with the learned trial court presided by Judge Felicisimo OcamDO which ~akes the following findings and observations on this point. " x x x. As already stated, their eaminga were in the form of commission based on the gross receipts of the day. Their participation in moat cases depended upon their own in· dustcy. So much so that the more hours they stay on the road, the greater the gross returns and the higher their com. missions. They have no fixed. hours of labor. They ean retire at pleasure, they not being paid a fixed saJary on the hourly, daily, weekly or monthly· basis. "It results that the Working hours of the plaintiffs a1 taxi drivers were entirely characterized by its irrerularity, as distinguished from the specific and regular remuneration predicated on specific and regular hours of work of factors and commercial employees. ''In the case of the plaintiffs, it is the result of their labor, not the labor itself, which determines their commissions. They worked under no compulsion of turning a fixed income for each given day. x x x x." of the plants and factories and to determine the wages to In an opinion dated July 1, 1939 (Opinio;n No. 115) modfiied be paid the laborers. by Ophlion No. 22, series 1940, dateci January 11, 1940, the Secre"SEC. 4. No person, firm. or corporation, business es- tary of Justice held that chauffeurs of the Manila Yellow Taxicab tablishment or place or center of labor shall compel an em- Co. who "observed in a loose way certain working hours daily," and ployee or laborer to work during Sundays and legal holidays, "the time they repcn·t for work as well aa the time they leave work unless he is paid an additional sum of at 'east twenty-five · was left to their dilM:retion," receiving no fixed sala.ry but only per eentum of his ·regular remuneration: Provided however, 20% of their gross earnings, may be considered as piece workers That this prohibition shall not apply to public utilities perform- and therefore not covered ht the provisions of the Eight Hour ing some public service such as supplying gas, electricity, po-- Labor Law. wer, water, or providing means of transportation or communi- The Wage Administration Service of the Department of Labor cation." in its INTERPRETATIVE BULLETIN No. 2 dated May 28, 1952, Under section 4, as a t1ublic utility, the defendant could have his chauffeui-s work on Sundays and legal holidays without paying them an additional sum of at least 25% of their .regular rf!nmneration; but that, with reference only to work performed en Sund~.ys and holidays. If the work done on such days exceeds 8 hnurs a day, then the Eight Hour J~abor Law would operate, provided of course that plaintiffs came unde.r section 2 of the said law. ::l'.o that the question to be decided here is whether or not pJaintiffs are entitled to extra compensation for work performed in excess of 8 hours a day, Sundays and holidays included, It will be noticed that the last part of Section 3 of Commonwealth Act 444 provides for extra compensation for overtime work "at the same rate as their regular wages or aalotry, plus at least twenty-five per centum additional," and that section 2 of the same act excludes from the application thereof laborers who preferred to be on piece work basis. This connotes that a laborer or employee with no fixed salary, wages or remuneration but receiving under "0•1ertime Compensation," ht Section S thereol entitled COVERAGE, says: "The proviEoions of this bulletin on overtime compensation shall apply to all persons employed in any industry or occupation, whether public or private, with the e:rception of farm laborers, non-agricultural laborers, or employees who are paid on piece work, eontraet, pakiao, task or commission ba.sis, domestic servants and persons in the personal service of ali.other and members of the family of the employer working for him." From all this, to us it ia clear that the claim of plaintiffs. appellants for overtime compensation under the Eight Hour Labor Law has no valid support. As to the month pay <mesada) under Ari. 302 of the Code of Commerce, Article 2270 of the new Civil Code (Republic Aet 386> appears to have repealed said Article 302 when it repealed the provisions Or the Code of Commerce governing Agency. This repeal 280 LAWYERS JOURNAL .May 81, 1954 took place on August 30, 1950, when the new Civil Code went into effect, that is, one year after its publication in the Official Gazette. The alleged termination of se1'Vices of the plaintiffs by the defendant took place according to the complaint on September 4, 1950, that is to say, after the repeal of Article 302 which they invoke. Moreover, said Article 302 of the Code of Commerce, assuming that it were still in force, speaks of "salary corresponding to said month," commonly known as "mesada." If the plaintiffs herein had no fixed salary whether by the day, week or the month, then computatton of the month's sal~ry payable would be impos sible. Article 802 refers to employees receiving a fixed salary. Dr. Arturo M. Tolentino in his book entitled "Commentarie& and Jurisprudence on the Commercial Laws of the Philippines," Vol. I. 4th. edition, p. 160, says that Article 302 is not applicable to emplofec:>s without fixed salary. We quote - "E1nployees not entitled to indemnity.-This article refers only to those who are engaged under salary basis, and not to tholff! who only receive compensation equivalent to whatev~1· service they may r~der. (1 Malagarriga 314, citing decision of Argentina Court of Appeals On Commercial Matters.)" Jn view of the foregoing, the order appealed from is hereby affirmed, with costs against appellants. Pablo, Bengzon, Padilla, Reyes, Jugo, Bautista Angelo, Labradof', Concepcion and Diokno, J. J, concur. Jn the result.-Paras x Pedro Galano, Petitioner-Appellant 11s. Pedro Cruz, RespondentAppellee, G. R. No. L-6404, January 12, 1954, 1. ELECTION; PETITION FOR QUO WARRANTO; DISMISSAL THEREOF FOR FAILURE TO STATE SUFFICIENT CAUSE OF ACTION; APPEAL.-Jn the past we had occasion to rule upon a similar point of law. Jn the case of Marqu.ez v. Prodigalidad, 4_6 0. G. Supp. No. 11, p. 264, we held that Section 178 of t;he Revised Election Code limiting appeals from decisions of Courts of First Instance in election contests over the offices of Provincial Governor, Members of the Provincial Board, City Councilors and City Mayors, did not intend to prohibit or prevent the appeal to the Supreme Court in protests involving purely questions of law, that is to say, that pr.otests involving other offices such as municipal councilor may be appealed provided that only legal questions are involved in the 'appeal. Consequently, the appeal in the present case involving as it does purely questions of law is proper. 2. ID.; ID.; CONTESTANT CANNOT BE PROCLAIMED ELECTED; OFFICE SHOULD BE DECLARED VACANT.Jn the case of Llamoso vs. Ferrer, 47 0. G. No. 2p, p. 727, wherein petitione"r .Llamoso who claimed to have received the next highest number of votes for the post of Mayor, contested the right of respondent Ferrer to the office for which he was : proclaimed elected, on the ground of ineligibility, we held that ; section 173 of the Revised Election Code while providing that any registered candidate may contest the l'ight of one elected to any provincial or municipal office on the ground of ineligi:. bility, it does not provide that if the coiltestee is later declared ineligible, the contestant will be proclaimed elected. J. 'R. Nuguid for petitioner-appellant. Emilio A. Gangcayco for l'eSpondent..appellee. DECISION MONTEMAYOR, J., For purposes of the present appeal the following facts, not disputed, may be briefly stated, As a result of the 1951 elections respondent PEDRO CRUZ was proclaimed a councilor-elP\'t in the municipality of Orion, Bataan, by the Municipal Board of Canvassers. Petitioner Pedro Catano filed a complaint or petition for quo warranto under Section 173 of the Revised Election Code (Republic Act lio. 180) contesting the right of Cruz to the office on the ground that Cruz was not eligible for the office of municipal councilor. Jn his prayer petitioner besides asking for other remedies which in law and equity he is entitled to, asked that after declaring null and void the proclamation made by the Municipal &ard of Canvasser in November, 1961, to the effect that Cruz was counci1or-elect, he (Calano) be declared the councilor elected in respondent's place. Acting upon a motion to dismiss the petition, the Court of First Instance of Bataan issued an ·order of December 27, 1951, dismissing the petition for quo warranto on the ground that it was filed out of time, and also because petitioner had no legal capacity to sue as contended by respondent. On appeal to this Court by petitioner from the order of dismissal, in "' decision promulgated on May 7, 1952, we held that the petition was filed within the period prescribed by law; and that although the petition might be reg2ol·ded as somewhat defective for failure to state a sufficient cause of action, said question was not raised in the motion to dismiss because the g1-ound relied upon, namely, that petitioner had no legal capacity to sue, did not refer to the failure to state a sufficient cause of a~tion but rather to minority, insanity, coverture, lack of juridical penonality, or any other disqua1ification of a party. As a result, the order of dismissal was reversed and the case was· remanded to the court of origin for further proceedings. UpOn the return of the case to the trial cou1·t, respondent again fuoved for dismissal on the ground that the petition failed to state a sufficient cause of action, presumably relying upon the observation made by us in our decision. Ful'ther elaborating on our observation that the petition did not state a sufficient cause of action, we said that paragraph S and 8 of the petition which read thus - "8. Que el recurrente tenia y tiene dereeho a acupar el cargo de concejal de Orion, Bataan, si no habia sido · proclamado e1ecto concejal de Orion, Bataan, al aqui recurrido. "8. Que el recurrente era candidato a concejal del municipio de Orion, Bataan con el Certificado de candidature. debidamente presentado, y registrado asi como tambien fue votado y elegido para dicho cargo, en la eleecion del 13 de Noviemb1·e de 1951." <Underscoring ours) were conclusions of 1aw and not statement.of facts. The trial court sustained the second motion to dismiss in its order of September 80, 1952, on the g1-ound that the petition failed to state a sufficient cause of action.- Again pi?titioner has appealed from that order to this Court. Appe11ant urges that the trial court erred not only in not holding that the motion to dismiss was filed out of time but also in declaring that the complaint failed to state a st1ffieient cause of action. In answer i-esponclent-appellee contends that the appeal should not have been given due course by the td!J,I court because under the law there is no appeal from a decision of a Cou1·t of First Instance in protests against the eligibility or election of a municipal councilor, the appeal being limited to election contests involving the offices of Provincial Governor, Members of the Provincial Board, City Councilors 8.nd City Mayors, this under Section 178 of the Revised Election Code. In the past we had occasion to rule upon a similar point of law. Jn the case of Marquez v. Prodigalidad, 46 0. G. Supp. No. 11, p. 264, we held that Section 178 of the Revised Election Code limiting appeals from decisions of Courts of First Instance hi e1ecl:oin contests over the offices of P1-ovincial Gove1·nor, Members of the Pro"·inciat Board, City Councilors and City Mayors, did not intend to prohibit or prevent the appeal to the Supreme Court in protests involving purely questions of law, that is to say, that protests involving other offices such as municipal councilor may be appealed provided that only legal questions Sl·e involved in the appeal. Consequently, the appeal in the present case. involving as it does purely questions of Jaw is proper, , Going to the question of sufficiency of cause of action, it should be stated that our observation when the case came up for the first time on ,appeal was neither meant nor intended as a rule or docMay 31, 1964 LAWYERS JOURNAL 281 trine. We were merely considering the main prayer contained in appellant's petition, namely, that he be declared councilor-elect in the place of the respondent-appellee. In other words, we only olr served that petitioner could not properly ask for his proclamation aa councilor elect without alleging a.nd stating not mere conclusions of law but facts showing that he had the right and was entitled to the granting of his main prayer. Considering the subject of cause of action in its entirety, it will be noticed that Section 173 of the Revised Election Code provides that when a person who is not eligible is elected, any registered candidate for the same office like the petitioner-appellant in this ~ase, may contest his right to the office by filing a petition for quo warranto. To lega1ize the contest this section just mentioned does not i-equire that the contestant prove that he is entitled to the office. In the case of Llamson v. Fel'?er, 47 0. G. No. 2, p. 727, wherein petitioner Llamoso who claimed to have received the next highest number of votes for the post of Mayor, contested the right of respondent Ferrer to the office fo.r which he was proclaimed elected, on the ground of ineligibility, we held that Section 173 of the Revised Election Code ·while providing that any registered candidate may contest the right of one elected to any provincial or municipal office on the gr.ound of ineligibility, it does not provide that if the contestee is later declared ineligible, the contestant will be proclaimed elected. In other words, in that case, we practically declared that under Section 173, any registered candidtae may file a petition for quo warranto on the ground of ineligibility, and that would constitute a sufficient cause of. action. It is not necessary for the contestant to claim that if the contestee is declared ineligible, he (contestant> be declared entitled to the office, As a matter of fact, in the case of Llamoso v. Ferrer, we declared the office vacant. In view of the foregoing, the failure of Catano to allege that he is entitled to the office of councilor now occupied by the respondent Cruz does not affect the sufficiency of his cause of action. Reversing the order of dismissal, the case is hereby remnaded to the trial court for further proceedings. No costs. PMaS, Pablo, Bengzon, Padilla., Reyes, Jugo, Bautista Angelo and Lab-radOt", J. J., concur. XI Peopk of tM Philippines, Pla..i:ntiff-Appellee, -vs. Motin Coc<>'Jh et al., Defetulants, Matin Cocoy and Apolonio CocOj/, Defetula:nta .. Appellatn.s, G. R. No. L..6019, Dec. 15, 1953. CRIMINAL LAW; COMPLEX CRIME OF ROBBERY WITH HOMICIDE. - A, B and C went to the house of D, and there boloed to death D's wife, daughter and son. Afterwards, thP.y ransacked the house and left it dean of its contents. Heltl: The crime cor.mitted is the complex crime of robbery with ho~icide, not robbery with triple murder, . Henninio P. Villam.~yor for appellants. Solicitor General Juan R. Liwag and Solicitor Jose G. Bautista. for appellee. DECISION MONTEMAYOR, J.:. MOTIN COCOY, his younger brother APOLONIO COCOY, their father BARBIN COCOY, one named MAGDALENO VILLORENTE and another calli!d ABI, were originally o!harged with robbery with triple murder in the Justice of the Peace Court of Libae&D, Capiz. With tJ:!.e exception of Abi, all were arrested and aubmitt.ed to the preliminary investigation conducted by the Justice of the Peace who later sent the case up to the Court of Fil'St Instance. Upon representations Of tlte Provincial l<'iscal that the evidence for the prosecution was not enough "to convict Barbin CocoY and Magdaleno Villorente, the infonna.tion was dismissed as against the two. Upon arraignment the remaining two accused Motin and Apolonio pleaded guilW. Because of the seriousness of the offense charged and because the two l.rothers were illiterate non..Christians, instead of thenceforth sentencing them, the trial court presided over by Judge Luis N. de Leon had Motin Cocoy take the witness stand. With his testimony the trial judge had the impression tha.t the two accused might not have understood the meaning and effect of their plea ·of guilty and so ordered a plea of not guilty. Arter trial the lower court found them guilty beyond reasonable doubt of robbery with triple murder and sentenced them to suffer the death penalty and to indemnify the heirs of the victims in the sum of PS,000.00 plus P273.60 for the value of the things taken away, and to pay one..half of the costs. Tl)e case is now hei:e for review under the provisions of Rule 118, Section 9, of the Rules of Court providing for the transmission to this Court of all C'l'iminal cases where the death penalty is imposed by the trial court. There is no dispute as to the following facts. In the month of 'Ma1·ch, 1952, Jose Leyson, his wife Maria Felix, their daughter Gardenia. aged three and their son Golt>ihan 1-1/2 yei.rs old were living in the barrio of Manica, municipality of Libacao, province of Capiz, in a sort of temporary building commonly known as an evacuation hut, consisting of one sing1e room, including the kitchen, situated near the forest snd standing only about two feet f1'0m the ground. Their nearest neighbor was about two kilometers away, The hut was a good many miles from the poblaeion, requiring many hours hiking over trails and fording streams to negotiate the dis.. tance. In the morning of March 12, 1952 <Wednesday) Leyson left his family in the house to go to the poblacion to make pur .. chases the following day <Thursdayl which was & market day. That same afternoon Wednesday, several marauders entered his house and after killing Maria and the two children by means of bolo blows, ransacked the house and left it clea.n of its contents such as plates, kitchen utensils,·money amounting to P210.oo. jeweley valued at P50.00, clothes costing P40.00 and one cavan of rice worth Pl0.00, According to investigation by the police, the body of Maria bore seven wounds. Gardenia - 6 wounds and the little boy - 8 wounds. The two eyes of the boy were found to have been gouged and extracted from their sockets. Due U. the distance of the poblacion from his house and because upon his return home he could not cross swollen streams, Leyson did not reach his home until &aturday afternoon March 15. We can only imagine the shock that must have stunned him and his reactions to the scene of death and desolation that greeted his eyes, - his dear ones whom only three days before he had left alive end hale, now but corpses scattered on the floor, and the house itself <fespoiled of all its contents. He notified his relatives and then hurried back to his home where they arrived two or three days later. We agreed with the trial court and the Solicitor General that the evidence adduced during the trial is conclusive that Martin Cocoy and his brother Apolonio Cocoy and according to them one named Abi were responsible for the robbery a.nd the killing of the three victims. According to the testimony of Kotin and Apolonio, together with Abi and upon suggestion of the latter they all went to the house of Leyson late in the afternoon of Wednesday. Upon arrival there Abi asked for food telling Maria that they were hungry and the housewife said she would prepare for them. After a long wait Abi impatient a.sked her about the food promised them and she answered that there was no food in the house, whereupon Abi began boloing and otherwise attacking Maria and the two children Golpihan and Gardenia until they were all dead. Motin said that he did not see the killing because at the time he was at the window looking toward the forest. His brother Apolonio equall)' disclaimed having witnessed the actual killing, because aecordinl' to him he was a.t the door looking cut and when the two brothers turned around, Maria and her children were already lying dead on the floor. We do not blame the trial court for calling and consider .. ing this story of the two brothers "too fantastic, a downright lie." The infliction of the seven wounds on Maria, six wounds on Gar .. denia and three wounds on the little Soy could not ha.ve been accom. plished in an instant like the exploaion of bomb but must haveo taken some time, and undoubtedJy accompanied by resistance even if ineffective, shouts or even noiB"! &nd commotion produced by the assault, and 7et Motin and Apolonio would have the court believo that all these happened without their Jmowledge because they were engrossed in contempl&ting the scenery. There is every reason to believe a:nd to find that tHere was a previous agreement on the ~82 LAWYERS JOURNAL part of the two brothe1·s and Abi to rob the house and to kill the inmates in order to better hide the crime, an agreement which they aetually carried out. This is supported not only by the vE:ry testimony of the two brothers Motin and Apolonio, admitting that after the killing they took part in rans&eking the house and taking awar money and articles, but by t.he test.l.mony of Roque Idala whl) l\ccording to him responded to Maria's shouts for help and witnes~d p:ll't C'l the killing by the two brothers from his place of hiding and observation, a distance of several metE:l'S from the house, He also s:iw the killers, including the two brothers leave the house ca.rrying in bundles what they had taken from Leyson's dwelling, According to ldala after the marauders had left be entered the house and saw the dead b~dies on the floor. Tb~ participation of Motin and Apolonio in the ki1ling a11d the l"Obbery is further supporb .. -d by their own affidaYits, Exhibits A-1 a.nd B-1, wherein they admit that once in the house of Leyson and afte1· Maria had told ti.em that there was no food in the house, the two brothe1·s took part in killing the inmates after they saw Abi initiate the murderous assault. This, to sa.y nothing ot' thoir spont9.neous plea of guilty to th(' eha1·ge applied equally to all. It cannot fail to create a resentment in the hearts of the herein accused beca.~se, whereas they are to suffer the extreme penalty of the law for the crime, Abi, who is as guilty, if not more, as they are, is free. Ca.ses as this is one of the causes of tlie people's losing respect for the law and faith in the government. But the non-prosecution of Abi canr.ot be an impediment to the conviction of the accused if they are really guilty." With the modification above euutrterated, the decision appealed from is hereby affirmed, with costs. Let a copy of this decision be furnished the Department of Justice a.nd the Chief, Philippine Cons.. tabulary. Paras, Pablo, Beng:um, Padilla, Tuason, Reyes, J'ugo, Bautista Angelo ll.nd Labrador, J. J., concur. XII Juan D. Crisologo, Petitioner, 11s. People of tlu Philippines and Hon. Pablo Villalobo8, Respondents, G. R. No. L-6277, February 26, 1954. of robbery with homicide, not robbery with triple murder (l) was striken from the record. As to the voluntariness of the affidavits, Exhibits A-1 nnd B-1, Eufr<'.lnio A. Escalona, Justice of the Peace l. of Libaea?, before whom they were sworn ~ssured the Court that CRIMINAL LAW; TREASON; CASE AT BAR. - C was on March 12, 1946, accused of treason under A1ticle 114 of the Penal Code in an information filed in the people's court but before C could be bi-ought under the jurisdiction of the cou1t, he was on January 13, 1947 indicted for violation of Commonwealth Act No. 408, otherwise known as the articles of war before a military court. The indictment contained three charges two of which were those of treason, while the other was that of having certain civilians killed in time of war, He ws.s found guilty of the second and was sentenced to life impri-sonment. he read to the affiants the contents in t.he local dialeet and told them tha.t they could either affirm or deny the truth the1·eof, but. that they told him that they contained the truth. Even during the trial Motin and ApoJonio told the court that they were neither intimidated nor maltreated by the Ccnstnbulary or the police. The crime committed' by ap11ellants which is the complex crime of robbery with homicide, not r.:ibbery with triple mul'der Cl) was truly hideous and shocking, not only beeause of the massacre of th1·ee innocent persons but because the killing of two of the victims was clearly unnecessary. Even if the two had been spal'ed, they were too young Caged 3 and 1-1/2 years) to remember and to relate the occurence and identity of the culprits; and the gouging of the eyes of the little boy as confessed by Apolonlo is a manifestation of waD.. ton cruelty and hruta)ity. Ordinarily, this honifying crime deserves the death penalty imposed by the trial court because of the pusence of SPVeraI aggravating circumstances, such as dwelling, uninhabited place, abuse of superior strength, etc.• but some members of this Tribunal are inclined to reduce the penalty to life imprisonment not only because of ignorance and lack of instruction of the defendants ~i~~ ~::s: ::vi~::~ :::;u:~~;~hri~~~n~i:e~d ~:: ~:c~s:f i:s~:;:: 2· tion in the mountains, Apolonio told the court th&t he had never been to. the poblacion of Libacao within whose territorial jurisdiction he had· been living since birth. Lacking the necessary number of votes to impose the extreme penalty, the death penalty imposed by the trial court is hereby reduced to life imprisonment; and following the. sugg~_stion of the Solicitor General, the indemnity to the heh·s imposed by trial cou1·t fo1· the killing should be raised to P6,000.00, and the value of the articles taken away raised fl"Om P273-.60 to P303.60. We notice that Abi, the person who according to the two bi:others, was the leader, up to no\v has not yet been arrested despite the issuance of the conesponding warrant against him and although 3. according to the appellant he was still living in the sitio of Taroytoy not f&r from their home. The authoriiies should continue or renew their efforts to bring him to justice. We quote with approval a paragraph of the decision from on this point. With the approval of Republic Act No. 311 abolishing the people's court, the criminal case in the court against C was, pursuant to . the p1-ovisions of said act, tra.nsferred to the Court of First Instance of Zamboanga and there the charges of treason were amplified. Arraigned in that court upon the amended information petitioner presented a motion to quash, challenging the jurisdiction of the cou1t and pleading double jeopardy because of his sentence in the military court. The court denied the motion. IBID; TREASON A CONTINUOUS OFFENSE. - Treason being a continuous offense, one who commitS it is not criminally liable for as many crimes as the1·e are overt acts, because all overt acts specified in the information for treason even if those constitute but a single offense." (Guinto vs. Veluz, 44 Off. Gaz., 909; People vs. Pacheco, L-4750, promulgated July 31. 1953l and it has been repeatedly held that a person cannot be fouttd guilty of treason and at the same time also guilty of overt acts specified in the inform&tion for tr~son even if those overt acts, considered separately, are punishable by law, for the simple reason that those ove1t acts are not separate offens"a distinct from that of treas~n but constitutes ingredients thereof. COURT; CONCURRENT JUR>ISDICTION. - Mere priority in the filing of the complaint in one court does not give that court prfority to take cognizance af the offense, it being neces.. s&ry in addition that the court wher~ the information is filed has custody or jurisdiction of the J;iel'Son of the defendant. "The court notes that Abi was a co-accused in the Justice of the Peace of origin. A warrant was issued for his arrest. The record does not show what happened with the case with respect to Abi after the warrant of arrest was issued. This, in spite of the fact that Abi, according to the herein accused. is not hiding. HE: is in Taroytoy. This shows reluctance on the part of the peace and prosecuting officers to bring Abi to the bar of justice. Such an attitude cannot fail to create in the mind$ of many a belief that, &t times, the law is not 4. CRIMINAL PROCEDURE; DOUBLE JEOPARDY; CONVIC.. {l) U.S. v, Landeean, 36 Phil. 869. People v. M1111uel, 44 Phil. 533. Tl-ON OR ACQUITTAL IN A CIVIL COURT NOT A B~R TO A PROSECUTION IN THE MILITARY COURT; EXCEPTION. - There is, for sure, a rule that where an act trans.. gre.sses both civil and military law and subjects the offender to punishment by both civil and military authority, a conviction or O.Il aCquittal in a civil court cannot be pleaded as a bar to a p1-oseeution in the military court, and vice 11uaa. But the rule "is strictly limited to the case of a singie act which infringes both the civil and the military law in such a manner as to constitute two distinct offenses, one of which is within the co:gMay 31, 1954 LAWYERS JOURNAL 288 nizance of the milita1·y courts and the other is subject of civil jurisdietion" <15 Am. Jur, 72), and it doe11 not apply where both cou1·ts derive their powers from the same sovereigncy <22 C. J. S. p. 449.> . It, therefore, has no &pplication to th9 present case where the military court that convicted the pe~ titioner and the civil cou1·t which propoSes to try him aguin derive their powers from one sovereignty and it is not 1isputed that the charges of treason tried in the court martial wer<' punishable under the Articles of War, it being as a zii.atter of fact impliedly admitted by tha Solicitor Gener&l. that the two courts have concurrent jurisdiction over the offenses charged. Antonio V. Raquiza, Floro Crisologo and Carlos Horrill4ino for petitioner. Pa.blo Villalobos for respondent. DECISION REYES, J.: The petitioner Juan D. Crisologo, a captain .in the USAFFTt:: during the last world war and at the time of the filing of the present petition a lieutenant colonel in the Armed Forces of the P~ilippines, was on March 12, 1946, accused of treason under Art. 114 of the Revised Penal Code in an inform&tion filed in the People's Court. But before the accused could be brought under the jurisdiction of the court, he was on January 18, 1947, indicted for violations ·Of Commonwealth Act No. 408, otherwise known as the Articles of War, before a military court created by authority of the Army Chiet of Staff, the indictment 'containing three charges, two of which, the fi:r_:st and third, were those of treason consisting in giving information a.nd aid to the eneny leading to the capture of USAFFE officers and men and other persons with anti-Japanese reputation and in urging members of the USAFFE to surrender and cOoperate with the enemy, while the second was that of having certain civilians killed in time of war. Found innocent of the first and third chargt;s but guilty of the second, he was on May 8, 1947, sentenced by the military court to lif~ imprisonment. With the approval on June 1'1, 1948, of Republic Act No. 311 abolishing the People's Court, the ~riminal case in that court against the petitioner was, pursuant to the provisions of said Act, transferred to the Court of First Instance of Zamboanga and there the charges of treason were amplified. Arraigned in that court upon the amended information, petitioner presented a motion to quash, eba}... lenging the juriadi.ction of the court and pleading double jeopardy be.cause of his previous sentenCe in the military court. But the court denied the motion and, after petitioner had pleaded not guilty, proceeded to trial, whereupon, the present petition for certiorari and prohibition was filed in this Court to ha.ve the trial judge desist from proceeding with the trial and dismiss the case. '!'.he petition is opP,Osed by the Solicitor General who, in UPholding the jurisdiction of the trial judge, denies that petitioner is being subjected to double jeopardy. As we see it, the case hinges on whether the decision of the military court constitutes a bar to further prosecution for the same offense in the civil courts. The question is not of first impression in this jurisdiction. In the case of U. S. vs. Tubig, 3 Phil. 244, a soldiel' of the "United States Army in the Philippines was charged in the Court of First Instance of Pampanga with having assasinated one Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already been previously convicted and sentenced by a court.martiR.I tor the same offense and had already served his sentence. The trial court overruled the plea :>n the grounds tha.t as the provincl! where the offense was committed was under civil jurisdiction, the . military court had no jurisdiction to try the offense. But on appeal, this Court held that "one who has been tried and convicted by a court ma1'!ial under circumstances giving that tribunal juris.. diction of the defendant and of the offense, has been once in jeoll&l'dy and cannot for the same offense be again prosecuted in another court of the same sovereignty." In a later case, Grafton ''s. U. S. 11 Phil. 776, a private in the United .states Army in the Philippines was tried by a general court martial for homicide under the Articles of War. Having been acquitted in that court. he was prosecuted in the Court of First ln2tance of Iloilo for mu1'der under the general Jaws of the Philippines. Invoking his previous acquittal in the military court, he pleaded it in bar of proceedings against him in the civil cou1·t, but the latter court overruled the plea and after trial found him guilty of homicide and sentenced him to prison. The sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United States-, the sentence was reversed and defendant acqbitted, that court holding that "defendant, having been acquitted of the crime of homicide alleged to have been committed by him by a court martial of competent jurisdiction proceeding under the authority of the United States, cannot be subsequently tried for the same offense in . a civil court exercising authority in the PhmPpines:" There is, for sure, a rule that where an act transgresses both civil and military law and subjects the offender to punishment by both civil and military authority, a conviction or an acquittal in a civil court ca.nnot be pleaded as a bar to a prosecution in the milita_ry court, and vice versa. But the rule "is strictly Umited to t"he case of a single act which infrin!E!S both the civil and the military law in such a manner as to ~onstitute two distinct offenses, one of which is within the cognizanee of the military courts and the other a subject of civil jurisdiction" ns A. Jur. 72>, and it does not apply where both courts derive their powers fl'om the same sovereign.. ty. (22 C. J. S. p. 449.) It, therefore, ha.a no app1ication tc the pi-esent case where the military court that convicted the petitioner and the civil court which proposes to try him again derive their powers from one sovereignty and it is not disputed that the charges of treason tried in the court martial were punishable under the Articles of War, it being as a matter of fact impliedly admitted by the Solicitor General tha.t the two courts have concun-ent jurisdiction over the offense charged. It is, however, claimed that the offense charged in the military cou1·t is different from that cha1·ged in the civil court and that even granting that the offense was identical the military court had no jurisdiction to take cognizance of the same because the People's Court ha.d previously acquired jurisdiction over the case with the result that the conviction in the court martial was void. In support of the first point, it is urged that the. amended information filed in the Court of First Instance of Zamboanga contains overt act11 distinct from those charged in the-. military court. But we note that while certain overt acts specified in the amended information in the Zamboanga court were not specifi~ in the indictment in the court martial, they all are embraced in the general charge of which is within the cognizance of the mi1itary courts and the other is not criminally liable for as many crimes as there are overt acts, because all overt acts "he has done or might have done for that purpose constitute but a single offense." <Guinto vs. Veluz, 44 Off. Gaz., 909; People vs. Pacheco, L-4750, promulgated July 81, 1958.) In other words, since the offense charged in the amended information in the Court of First Instance of Zamboanga is treason, the fact that the said information contains a.n enumeration of additional overt acts not specifically mentioned in the indictment before t11e military court is immate~ial since the new alleged overt acts do nnt in themselves constitute a new and distinct offense foom that of treason, and this Court has repeatedly held' th&t a person cannot be found guilty of treason and at the same time also guilty of overt acts specified in the information for treason even if those overt acts considered separately, are punishable by law, fC1r the simple reason that those overt acts are not separate offenses distinct from that of tr1::oson but constitutes ingredients thereof. Respond.. ents cite the eases of Melo vs. People, 47 Off. Gaz., 4681, and People vs, Manolong, 47 Off. Gat., 5104, where this Court held: "Where after the first pl"lsecution a new fact supervenes for which the defendant is responsible, which changes the ~ha racter of the offen11e and, together with the facts existing at the tiine, constitutes a. new and distinct offense, the accused cannot be said to be in second jeopardy if' indicted for the new offense." But respondent overlook that in the present case no new facts have 2Sf LAWYERS ,TOURNAL May 31, 195' supervened that would change the nature of the offenae for which petitioner was tried in the military court, the alleged additional overt acts specified in the amended information in the civil court ha"Ving already taken pla.ce when petitioner was indicted in the former court. Of more pertinent application is the following from 15 American Jurisprudence, 56-5~: 4'SubJect to statutory provisions a11d the interpretation thereof for the purpose of arriving at the intent of the legislature in enacting them, it may "be said that as a rule only one prosecution may be had for a continuing crime, and· that where an offense charged consists of a series of acts extending over a period of time, a conviction or acquittal for a crime based on a portion of that period will ba.r a prosecution covering the whole period. In such case the offense is single and indivisible; &nd whether the time alleged is longer or shorter, the com. mission of the acts which constitute it, within any portion to give the explanation and had submitted the required evidence, for him and in behalf of Atty. F, there waa no reason to require the further personal appearance of the petitioner for the same purpose in Bacolod on some other da.te. The swom explanation is according· to our rule~ prima facie evidence <Sec. 100, Rule 123). 3, IBID; IBID; IBID. - Atty. 14 who had sworn that the fact.a stated in the explanati~ are of his personal knowledge, and who was the one called upon to attend the Criminal Case of the 15th day of Sept., 1963, was a competent person to give a pertinent explanation of the absence of the petitioner on the date of trial on Sept. 15, and he actually offered to give such explana.. tion. It does not appear that there was any question asked of him a~ut the non.appearance of the petitioner· which he could not answer by his own knowledge and about which only Atty, F could give legally admissabJe answe1-. of the time alleged, is a bar to the conviction for other aCts committed within the same time. x x x." · 4• IBID; IBID; IBID. - The denial to hear Atty. M's explana.. tion only because it includes Atty. F's 'ex:planation,,is against the law. It is indisputable that he has the right to be heard in its own representations. then and there. There was no reaaon to compel him to come back. It was also indisputable that Atty. F had also the right. to be heard "by himself or counsel" <Rule 64, Sec. 3). There was at the moment no reason at all to requh·e his personal appearance, even laying aside his delicate state of health at the time which wa!!I an impediment for him to travel. As to the claim that the military court had no jurisdiction ovU the case. well lmown is the rule that when several courts ha.ve con.. current jurisdiction of the same offense, the court first acquiring jurisdiction of the prosecution retains it to the exclu8ion of the athers. This rule, however, requires that jurisdiction over the person of the defendant shall have first been obtained by the court in which the first charge was filed. C22 C. J. S. pp. 186-18'1.) . Tbe record in the present case shllWs that the information for tre._ son in the People's Court was filed on March 12, 1946, but petitioner JUSTICE ANGELO BAUTISTA, concurring. had not yet been a.rreat4d or brought into the custody of the court - l, the warrant of attest .had not ~ been inued - when the indictment for the same offense was filed in the military court on January 13, 1947. Under the rule cited, mere priority in the filing of the complaint in one court does not give that cou~ priorit)· lo take cognizance of the offense, it being necessary in addition that the court where the information is filed has custody or jurisdiction of the person of defendant. ' It a.ppearing that the offense charged in the mili'bt.ry court 2. and in the civil Court is the same, that the military court had jurisdiction to try ~he case and 'that both Ct)Urts derive their powers froni- one sovereignty, the sentence meted out by the military court tn the petitioner shouJd, in accordance with the precedents above. cited, be a bar to petitioner's further prosecution for the same offense in the Court of First Instance of Zamboanga. 3. Wherefore, the petition for certiorari and prohibition is granted and the criminal case for treason against the petitioner pending in that court ordered dismissed. Without costs. Paf'0.8,. Pa.blo, Bengzon, Padilla, M~tema.yor, Jugo, Ba.uti8ta Angelo, Labrador, Concepcion and Diokno, J, J., concur. XIII CONTE.MPT OF COURT; POWER TO PUNISH FOR CONTEMPT. - The power to punish for contempt is inherent in all courts a.nd ia essential to their right of self.preservation, "The reason for this is that respect for the courts guarantees the stability of their institution. Without such para.nty said institution would be resting on a veey shaky foundation." Th.is power is i-ecognized by our Rules of Court <Ru1e 64.). IBID; KINDS OF CONTEMPT. - Under this rule, contempt is' divided into two kinds: (1) direct contempt, that is, one committed in the presence o!, or so near, the Judge as to obstruct him in. the administration of justice; and t2) constructive contempt, or that which is committed out of the presence of the court, as in refusing to obey it& order or lawfuJ process. · IBID; HOW IT SHOULD BE INITIATED. - As a rnle, con.. tempt proceedin.c is initiated by filing a 'charge in writing with the court. <Section 3, :RuJc 64.) It has·been held however that the court ma.y motu fWOpio require a person to answer why he &hould not be punished fo1· contemptuous behaviom·. Such power is necessary for its own p1-otection against an imp1·oper inte1·fe1·ence with the due administration of justice. Vicente J. FNticisco atid F·ra.nciscn Marasigan, Petition.M"B, vs. Edutwdo Ent~, Judge of the CoW""t of Fi-rst Instance of Negros Occidental, Respondent, G. R. No. L.7058, March 20, 1964. 1. CONTEMF1.' OF COURT; FAILURE OF AN ATTORNEY TO APPEAR AT THE TRIAL OF THE CASE; EXPLANATION FOR .SUCH FAILURE; CASE AT BAR. - Attorney F and 4.. IBID; CASE AT BAR. - The contempt under consideration is a constructive one it having arisen in view of the failure of Attys. F and M to obey an 01-d.er of the court, and for such failure i·espondent Judge ordered them to appear and show cause why they should not be punished. for contempt. The1-e wa.s therefore no formal charge filed against them but the action wa111 taken directly by the court u~n- its own initiative. his assistant M with law office in Manila were the lawyers of L &. in a. criminal ease instituted in Negros Occidental. On the day when the trial of the case was to be resumed in BaCPlod both lawyei·s dld not appear. Ju~ Eduardo Enriquez ordered their arrest. Attorney F requested that the order be suspended and sent Attorney M to Negros to explain that their failure to at.. tend at the trial was fully justified. Judge Eniiquez refused to listen to Attorney M's explanation because he wanted Attorney F to appP.ar peJ:sonally and to be the one to pplain why he did / . not appear on the said date. Held: The order is without reason &ll;d the judge acted in excess o! jurisdiction. 6. 2. IBID; IBID; IBID« - After the required explanation had been presented under oath, and after Atty. M J1a.d. appeared in per.son IBID; WAIVER OF APPEARANCE. - The rule on th-a matter is not cJcar <Section 3, Rule 64>. While on one hand it allows a person charged with contempt to appear by himself or by com1sel, on the other, the rule contains the foJ1owing provision: "But nothing in this section shall be so construed as to prevent the court front iwuing process to bring the accused party into court or from holding him in custody pending such proceedings.'' Ap. parently, this is the provision on which respondent Judge is now relying in insisting On the persona£ app£arance of Atty. F. IBID; POWER OF THE COURT TO ORDER .ARREST OF THE ACCUSED PARTY. - This powet <to order the 11.rrest of the accused party> can only be exercised when there ere good reasons justifying its exercise. The record discloses -none. The May 31, 1954 LAWYERS JOURNAL 235 reason for the appearance is already well known. The conWmPtuous charge was clear.. The only thing required was for Atty. F to explain his conduct. Thill he did in his telegram to the court intimating that .his failure to appear was due to failing health and doct(,lr's advice,. while, on the other hand, he caused Atty. M to appear for llim and elaborate on his explanation. Thia attitude, in my opinion, is a substantial compliance with the rule and justi .. fies the action taken by Atty. F. Vicente J. Francisco and F. V. Ma'l'CUrigan for petitioners. Eduardo P. Arboleda for respondent. DECISION DIOKNO, M.; La cuestion en este recurso Ila quedado reducida a la de si t'I Honorable Juez recurrido incurriO tm exceso de ju1·isdiccion al insistir en $U orden de que los recunentes comparezcan persona-lmente ante eJ, en la ciudad de Bucolod para quc e.Xpongan las ra.zones por_ que no se les debe imponer accion disciplinaria por no haber comparecido el dia 15 de septiembre de 1953 para la continuacion de la vista de la causa criminal No. 3220 del Juzgado de Primera lnfltanci&de Negros Occi .. dental, intitllle.do Pueblo contra Lacson )' otros, por asesino.to. Los hechos pertinentes, brevemente expllestos, son Joa siguientei::c: l.o Los recurrentes, Francisco y Marasigan, eran los <1.bogados del acusado Rafael Lacson. El primero era el abogado -principaJ y el segundo el auxiliar, queen ausencia del primero actuarla y actuO,.en efecto, en su lugar. Marasigan era,ademas,abogado de otro acusado en la causa. El 15 de septitm:ibre de 1953 estaba sciialada la continua.. cion de l& vista de la causa criminal, y ninguno de los recurrentes com.. ps.recieron, rrl em.iaron oportuna explicaciOn de su ausencia. ~I acusado Lacson estaba presente, pero se limito 8 informar que el recu~ rrente Francisco le habia dicho que '1 personalmente no asistirla en la viata sino el recurrente Me.i·asigan. Con motivo de la ausencia de ambos abogados, la vista bubo de transferirse para otro dia. 2.o Con vista de esta. ausencia ineJtplicada, el Hon. Juez recurrido o:rdenO el arresto de los recurrent.es. En el mismo dia, el recurrente Francisco dirigio ar Juez recur1ido el siguiente telegra1na, de•de Manila: . 4'Septiembre 15, 1953 Honorable Edua,rdo Enriquez B.acolod City . Please suspend order until we have opportunity to explain stop Attorney Marasigan flying to Negroa tomorrow A .lo ~ue el Hon. Juez ~rrido contestO =~!.:~ncisco" "Bacolod Sep 16-53 Atty. Vicente Francisco Manila Re tel order suspended as requested- but 7ou are required personally to appear twenty fourth ~t to aplain wh7 you should not be held in contempt. Judge Enriquez" El anterior telegram.a fue recibido por el recurrente Francisco cuando el recunente Marasigan ya habi'"a salido por aviOn para Bacolod, por lo que aqu~ envi& el nDamo dia el &iguiente telegram• al Hon. Juez recurrido: "Judge Enriques Bacolod City Received Your telegram. ·when Atty. .Marasigan had gone already to Negroa by plane to submit explanation why he and IDJ'aelf did not attend last hearing Lacson case stop I submit said explanatiOn and motion of withdrawal for your action with. out hearing stop Request m1 presence be diapensed. with 011 the 24th .cannot mak~ trip to Negroa. during thia stormy le880D due to failing health and doctora advice Vicente Francisco" 3. o El recurrente .Marasigan UegO a Bacolod el miam.O dia 16 de &Qtiembr.e -de 1953; llevando consigo la ezplicaci&m. de la au.. sencia de ambos recurrentea en la "Vista del 16, en fonna de un escrito intitulado "Ex.parte Urgent Motion for Reconsideration of Order of Al'l'est," fechado 15 de septiembre, 1953, firmado por smbos recurrentes, y jurado por Marasigan <Exh. D>. El 17 de septiembre de 1953,. el reeurrente Marasigan present6 el escrito y comparecUi ante el Hon. Juez recurrido. Lo que sigue es Parte de la transcripci&n de las notas taquigraficas de lo que ocurri6 en esa ocasiOn: "Marasigan: I would like to state that I am here to explain for Atty. Francisco and for myself. --x- -x__.:. - x - "Court: Practically that order has been suspended or practiealh· set aside because of the telegram of Mr. Francisco sent on the fifteenth. There is a telegram sent by Atty. Francisco !laking that the orde1• be suspended because yo_u a.re coming here by plane, but in my replf .. telegram I advised him that the order was suspended. , but he must appear here on the twenty fourth to explain and to show ca.use why no disciplinary actions should be taken against him. Besides that telegram, I dictated an order requiring Mr. Francisco and you - Mr. Marasigan - to appear on the twenty foui:th. Inasmuch as you 1:1.re here the court is ready to listen to your explanation but that is insofar as you are .concerned only. The court still require.>& Mr. Francisco to appear before this court, before or on St!ptember 24th because I will not accept your explanation for Mr. Francisco. So you choose, do you wa.nt to have your explanation on the twenty fourth with Mr. Franci11co or do you want to advance your explanation by disregarding your explanation for Mr. Francisco? Because tl1e court wants Mr. Francisco to be present here to explain .for himself and no explanation from somebody else will be accepted by this court beca.use I would like to propound some questions to Atty. F1·ancisco. - x - - x - - x - "Court: I have told you already that I ~ill not accept any explanation from somebody else but from Mr. Francisco "him.. self. He must appear here personally. ·--x- · - x - 'Court: Let us cut short this discu::;sion. I made it clear to you that the court will not accept any explanation tor Mr. Francisco by somebody except by Mr. Fra.ncisco only, and there is a standing order requiring. him to be here and not thru somebody else. "Atty. Marasigan: That is it. The court admits that the only purpose in requiring him to .come here is to give bim an op.. portunity to explain. Now I am here·to esplain for him in the meantime. · - x - --.'t- - x - "Court: I will let it appear on the 1'8('.Ql'd that the court is not ready to receive any explnna.tion for Mr. Fran!:isco by somebody else. . "Atty, .Marasigan: Not even if it will be an explanation that would justify the failure of Atty, Frandaco to app_ear here? "Court: I am not concerned with the explanation for Mr. Fran.. cisco by somebod)' ell!S• - x - -.x- - x - 04Court: Well, if you believe that it is his right let us wait for Atty .. Fn.ncisco. If be wnnts to ·be here it is okay and if he does not want to come here it is also oka7 but I ku:ow what steps I will take. "Court: The telegram of .Mr. Francisco is as follows: "Please 8118pend o:rde1' until we hue opportunity to e-xplain stop A,tty. .Marasigan flying· to Negroa tomorrow." This wa& received at -6:46 p.m., September l.5, Tuesday. On the following day, yeat;e.rday, I amwered that telegram. "Re tel order suspended &a requested but you are .required personally to appear twenty fourth htstant to uplain why you ahoald not be held in contempt." This U. very clear. .,Personally." The court wants him to appear pe-rsonally u.d not thro another person. :Beside& that telegl'llm, here is the order of the court signed by roe yeate:tda.y, which I am , quoting: 4'A peticion del abogado Sr. Vicente J. Francisco 236 LAWYERS JOURNAL llay 81, 195' eontenida en su teleg1:aina c;le ayer, por el presente u suspendo aquella parte de ta orden de 16 de Septiembre de 1963 en cuanto se ordena el arresto de los abogados Sres. Vicente J. Francisco y Franeisco Marasigan, y en &U lug&l: se ordena a ambos abc.gados para que personalmente comparezcan ante e&ta Sala el 24 de Septicmbre de 19U8, a ~ 9:00 de I& mafiana y expongan las razones por qu8' no se lea debe imponer acei6n disciplinaria por no haber comp:a.rcido el dia 16 de Septiembre de 1953 para la. continuaciOn de IA vista de esta causa. Envfense por correo aereo y por eer tificado copiaa de esta orden a los referidos abog&doa. . A.&i ae ordena." The court in open court will offer you a copy of this order and please sign on the original of this order. <To a court personnel who wns present there.) Where is a copy of that. You furnish Mr. Marasiga.n. <To Atty. Maraai.gan. > Now, if )'CU want to advance your appearance here by virtue of that order you can do ao but I will repeat: I won't hear any explanation to be made by you in behalf of Mr. Francisco because the. court will stick to its ord~r and will require Mr. Francisco to be here on the 24th," (pp. 3766, 366T, 3768 and 3759, t.s.n.) "Atty. Marasigan: At any rate I will explain and I ask the court to consider that whatever I expla.in; I explain it not only in connection with my case but in connection with the case of Atty. Francisco, I explain in the meantime. "Court: If tha.t is the condition, I will not listen to you - if you will abide by that condition. - x - - x - "Atty, Marasigan: But I insist ... "Court Clntcrruption) I don't want to hear, if you iruiist that you will be hea;d in behalf of Mr. Francisco. If you want to explain for yourself, all right, but if you want to explain for Mr. Francillco, nothing doing." (pp. 3'167-3'168, t.s.n.) "Atty. Marasigan: I have nothing more to say but I "1ill make of record that I am presenting my evidence. This is a question of law.'' Cp. 3768, t.s.n.>. "Cou1t: All right, this is the order of the court. Let the motion for reconsideP&tion filed by Messrs. Franci!:CO and Marasigan pe heard on the 24th of this month September 1953, at 9:00 A.M." (pp. 3768-3769, t.s.n.> ''Court: That is the order of the court. All right hearing closed. "Atty. Marasigan: All right, Your Honor, I will present evi. dence in support of the ex-parte urgent motion for recon.. sideration. "Court: The order is a1ready issued. CTo COurt Interpreter> Next case, that election case." (pp. 3768-3769, t.s.n,) 4.o En cuanto a la condicion fiaica poi· entonces del recurrente Francisco, consta que el 1.o de septiembre de 1963, o quince dias antes. ·el Ju:i;gado estaba ei;iterado que aqueI "temia" via"ja1· en avion. "Court: There ar, people who are afraid to take the plane as a means of transportation and I am one of them. Mr. Francisco is a,s' old as I am and I want to live longer. - x - - x - - x - "Court: This is one instance wherf! the non-appearance of Atty. Francisco is justified. Nobody can go apinat .the will of God. This typhoon is the act of God, If anybody says: If he did not take the boat, why did he not take the plane? But I w.>ul.d ~ve done the same like him." (p, 3716,t.n.t.) Tambien conata el hecho de que el abogado no podfa hacer viaje algnno debido a au mala aalud en el teleg'l:ama a.rriba tl'anacritO de fecha 16 de septiembre de 1953. Y ello no parece ficticio, porque el Dr. Agorico B. M. Sison, Director del Philippine General Hospital, certified bajo juramento - "x x x that Atty. Vicente J. Francisco is under the medical care of the Wldersigned and baa been advised to avoid sea and air travel because he is extremely susceptible to '~otion Sickness' which Jowers his vitality to such an extent that it provokf'.a Neurocirculatory Asthenia, and may seriously endangei• his health." 5.o Ha.biendo el Hon. Juez rP.currido insistido en la comparecencia. personal de los recurrentes para el 24 de septiembrc, el recu. rrente Fi·ancisco, dirigic'S el siguiente telegrama al Hon, Juez recurrido: "Raised question to Supreme Court whether Atty, Mara.. sigan and myself may be compelled. to appear personally in hearing September twenty four stop Requeating incident be held in abeyance until after Supreme Court reaolna certiorari. Vicente Francisco." y dieho Juez, el 24 del citado mes, ~n haber-sido aun notifies.do del recurso aqui preientado diet& una orden Canexo F> que dice en parte~ "El Juzgado eree que, a menos que haya una orden de la Corte Suprema ordenando a este_ tribunal para que st ab&tenga de seguir ejerciendo sus faeultades en eate incidente, podria. hacer caso omiao o ignorar el contenido de este telegrama; sin embargo, para dar todaa 1a.s oportunidades al Sr. Francisco para poner a prueba Ia legalidad de la orden de fecha 16 de Septienibre \ie 1953, el Juzgado 1'1?suelve conceder la peticion del Sr. Francisco y dispone transferir la cOmparencia de los Sres. Fra.ncisco y Marasigan ante este Juzgado a fin de er.. poner las razonea que tuvieren p(,r que no debe ser declaradoa incUrsos en desacato, hasta que la Corte Suprema reauelva el rcmedio de cortiorart" que segun el Sr. Francisco ha presentado ante diche. Superioridad." En la mis.ma. orden el Hon, Juez recurrido dijo QUe se abatenfa. 'de tomar acci6'n a.lguna en cuanto a la moci&'n de reeonsidernci6'n de la orden de arresto de Joa recurrentes "toda vez que dieha orden ya ha sido suspendida.": y en cuanto a la separacion de los recurrentea eomo &bogados en la cauaa criminal conforme a aua mocionea de fecha '1y18 de septiembre de 1953, autori~la-retirada de Joa mismos como abogados del acusado Rafael Lacson, y cl ultimo adem6s como abogado del acusado Jose Valencia. Tambien por dicha orden pospuso la compa.recencia pe1·sonal de los reeurrentes hasta que fucse l'esuelta pol' esta Corte el presente l'eeurso. El art. 8 de la regla 64 de los Reglamentos dice que "after ch&rge , in writing has bef'.n filed, and an oppor~nity given to the accused to be heard by himself or counsel, a person guilty x x x may .be punished by contempt." Dice tambien que "nothing in this s~tion shall be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody pending such proceedings. " Eata.ndo ya presentada la explicaeio'n requerida, y bajo juramento1 y habiendo ya el recurrente Marasigan comp&l'ecido en persona parn dar las ac]araciones y presentai· laS pruebas 9ue se necesiten, para sf y para el recurrente Francisco, no habia raz6n alguna para. re.. querir todavia la comparecencia personal de 1oa recurrentes para el mismo tramite en Bacolod. en otra fecba. La explieaci&n jurada es, con arreglo a nueatroa reglamentos, prueba prima facie._ <Art. 100, Regla 123;) Caso de falaedad de dicha explicaci6n eserita en algun detaJle material, cabe la acusaeion de perjurio, Ademas,am.bos eon miembros del foro y son responsables de toda conduct& anti.profe. · sional. El recurrente Marasigan, que lo Jw-S de propio conoeimiento, y que era el llamado a asistir en la vista del dia 15 de eeptiembre de 1953 de la causa criminal, ei:a competeDte para dar" personalmente cualquiera explicacion pertinente de la a.a.senciG de los recurrentu en Ia vista del dia 15 de aeptiembre, y se hab{a ofracido a darla, No conata QJle se le haya. dirigido pregunta alguna sobre Ia incompare.. eencia de los recurrentes que eI no podia contestar de su propio co.. nocimiento, o que solo el reeurrente Francisco podia dar eontesta. ciln legabnente admisible. La negativa .de oir la explicacion de Marasiga.n solo porque incluia la de Francisco va contra los preceptos de I& ley. Es indisputable que 41 tenia deret'.ho a aer sido en su propia representacion, entonces y ant miamu. No habia razon alguna para hacerle volver. Ea tambien indisputable que el recurrente Francisco tenia derecho a ser oido ''by himself or counsel," (Regla. 64, art. SJ No habia por el niomento razOn para re. querir au presencj& personal, dejando a un lado au por entoncea delicada salud para hacer viajes. Y est& repetidtmente declarado que se obra cen exceso de juriadiccion cuando se dicta orden sin raz&n. Se arguye que al exigir la comparacencia personal de los rellay 31, 1964 LAWYERS. JOURNAL eurrentes el Bon. Jtiez recurrid.o estaba autorisado Por el ultimo parrafo del art. 3 de la Regla 64 que prov~e que el miamo no se in .. terpretari. de modo que impida al Juzga.do ordenar que el acusado sea traido al Juzgado o de tenerle detenido durante la pendencia del incidente. Se pueden tambien invoca.r al mismo efecto los arts. 5 y 6 de la misma regla. Sin emba.TgO, el arresto de Joa recurrentes e~ abandonado y el argumento es por tanto imn&terial. Entonces todo lo que quedaba del incidente era resolverlo. EN VlRTUD DE LO EXPUESTO, se concede el recurso. La. orden del 24 de septiembre de 1953,. en cuanto requiere a Joa recurren. tes que comparezcan ante el Hon. .Juez recurrido para un tramite Ya hecho, cual es, el de explicar la incamparecencia de loa miamoa en la vista del dla 15 de septiembre de 1963 de la cauaa criminal No. 3220 del Juzgado de Primero Inatancia de Negros Occidental queda anulada. Sin coataa. Asi se ordena. Para.ti, Bengzon, MontemagOT', /"1Jo, Labrador, Pablo, Padil~; Reves and BautistG Angelo, J. J., concU:r. · BAUTISTA ANGELO, I., concm•ring: On SepW-mber 15, 1953, date set for the continuation of the bearing of the case, Attys. Francisco and Marasigan, Who were .appearing for the accused, failed to show up, whereupon respondent J'udge issued an order for their aueat. Informed of this order, Atty. Francisco sent a wire askins for an opportunity to explajn. The order was S11Bpended btat Atty&. Francisco and Marasigan were required to appear personaUv on September 24. Atty. Francisco replied by telegram informing the court that he could not appear on the date .set due to failing health and doctor's advice, but was submitting his explanation through Atty. Marasigan. Atty. Mara.. sigan in effect appeared on the date set but respondent Judge re.. fUsed to hear his explanation if it would include that of Atty. Francisco. A portion of the transcript showing what has taken plaee during the hearing is as follows: "Court: I have told you already that I will not accept any explanation from somebody else but from Mr. Francisco himself. He must oppea.,. he.,.e pe-rsonall'/I. - 1 ' - - J I . - - x - "Atty. Marasigan: x x x If in a criminal action the accused can waive his presence, why cannot Atty. Francisco waive his presence and allow me, instead in the meantime to e."Cplain for him, Your Honor! "Court: I can tell you that a defendant in a criminal case can waive his presence in certain stage in the proceedings but he cannot waive his presence to be arraigned of this informs.tion or charge. He ·mu.st be pnaent he.,.e. He cannot be represented by somebody else. "Attr. Marasigan: But in this case there is no arraignment, Your Honor. As a rule, contempt p1'0Ceeding is initiated by filing a charge in writing with the court. <Section 3, Rule 64.) It baa been held however that the court may motu provrio require a person to answe:r whf he should not be pUnished for contemptuous behavior. Such power is necessary for its own protection against an improper interference with the due administration of justice <In re Quirinor 76 Phil. 630>. The contempt under considel'Btion is a constructive one it having arisen in view of the failure oJ Attys. Francisco and Marasipn to obey an order of the court, and for such failure respondent Judge ordered them to appea.r and show cause why they sho11.ld not be punished for contempt. There was therefore no formal charge filed against them but th~ action was taken directly by the court upon its own initiative. The question that now araies is: Can ~ha. attorneys waive their pet"sonal appea.nime as ordered -by the court? The ru]e on the matter is not clear (Section 3, Rule 64>.. While on one hand it allows a person charged with contempt to appear by himself or by counsel, on the other, the rule contains the following proviso: ''But nothing in this section shaJl be so construed aa to prevent the court from issuing pt'OCf'ss to bring the accused party into court, or from holding him in custody pending such proceedings.'' Apparently. thia is the provision oii. which respondent Judge is now i-elying in insisting on the persona] appearance of Atty. Francisco. I believe, however, that this power can only be tixercised when there a.re good reasons justifying its exercise. The record discloses none. The reason for the appearance is already well known. The contemptuous charge was clP.ar. The only thing required was for Atty. Francisco to explain his conduct. Thia he did in his telegram to the cuurt intimating that his failure to appear was due to !ailing health and doctor's advice, while, on the other hand, he caused Atty. Marasigan to appclar for him and elaborate on his explanation. ThiS attitude, in my opinion, is a substantial compliance with the rule a.nd justifies the action taken by Atty. Francisco. XIV Feli% Fabella and E'THBsto Figuet"oa, Plainti/fa-AppeUeea, vs. Ths Provincial Sheri.fl of Riznl, Vicente D. Alobog, and Alto Surety a.n.d Insurm1ce Co. 111.c,, Defndonts .. AppeUa'fttB, G. R. No L.6090, No11emb&r 27, 1953. l. PLEADING AND PRACTICE; JUDGMENT ON THE PLEADINGS; ITS NATURE. - The nature of a judgment on the pleadings maybe found in Section 10, ~ule 36 of the Rules of Court, which provides "where an answer fails to tender an iuue, or otherwise admits the m&terial allegations of the adverse party's pleading, the court may, on motion of that party, direct judgment on such pleading, ezcept in actions for annulment of ma1:riage or divorce wherein the material facts alleged in the complaint shall always be proved." The rules contain no other provision on the matter. "Court: Precisely he ia required to be here, to be apprai~ of 2 the charge. IBID; WHO MAY ASK JUDGMENT. ON THE PLEADINGS.Apparently, in this jurisdiction the rul.:= regarding judgment on the pleadings only applies where an answer fails to tender an issue and plaintiff invokes the rule. The rule is silent as to whether a similar relief· may be asked by the defendant, although under American jurisprudence, the rule applies to either party. "Atty. Marasigan: In a criminal charge there is an arraignment but in a contempt proceedings, there is none. 11Court: Why not? That is the reason Why the cnurt wants him to .be present hel't! to ~ apprised of the charges. 1'Atty. Maiasigan: But he is apprised alnadu. As a matter of fact there is no arraignment." The power to punish for contempt is inherent in all courts and is essential to their right of. ·self-preservation. "The reason for this is that i-espect fo1· the~ ciiurts guarantees, the stability of their institution. Without such guaranty sa.id institution would be resting on a very shaky foundation." (Salcedo v. Hernandez, 61 Phil. 724..) This powel" is recognized by our Rules of Court <Rule 64). Under this rule, contempt is divi.ded into two kinds: (l)_ direct contempt, that is, one committed in the presence of, or so near, the Judge AS to obstruct him in the administration of justice; and <2> constructive contempt, or that which is committed out of the presence of the court. as in refusing to obey its order or lawful proceaa. <Narcida v. Bowen, 22 Phil. 366, 871; lso Yick Mon v. Collector of Customs, 41 Phil. 548; Caluag v. Pecson, 46 0. C. <a>, 514.> 3. IBID; CASE ILLUSTRATING THE NATURE AND APPL!. CATION OF THE RULE. - We have in this jurisdiction q11ite a good number of cases illustrating the nature and application of the rule. As a.n illustration and guidance, we may cite the following restatement of the rulings found in different cases decided by this Court: When the defendant neither denies nor admits the material allegation of the complaint, judgment on the pleadings is proper <Alemany, et a1. v. Sweeney, 3 Phil. 114>. But where the defendant's anaWer tenders an issue, judgment on the plea.dings should not be rendered <Ongsin v. Riarte, 46 O. G. No. 1, p. 67). And when the defendant admits all allegations of the complaint, the adniiasion is a sufficient gl'Ound for judgment. One who prays for judgment on the ple~ngs without offering proof as to the truth of h:is own 238 LAWYERS JOURNAL May 31, 1964 allegations, and without giving the opposing party an opportunity to introduce evidence, must be understood to admit the truth of all the material and relevant allegations of the OPposing pal'ty, and to i-est his motion for judgement on those allegations taken together with such of his own as are ad.. mitted in the pleadings. (Bauermann v. Caaas, 10 Phil. 386; Evangelista v. De la Rosa, 76 Phil., 116: Tanehico v. Ramos, 48 0, G. [1] 654,l 4. IBID; WHEN JUDGMENT ON THE PLEADINGS ll!AY BE RENDERED. - Judgment on the pleadings can only be rendered when the pleading of the party against whom the mo.. tion is directed, be he plaintiff or defendant, does not tender a.ny issue or admits all the material allegations of the pleading of the movant. Otherwise, j'udgment on the pleadings cannot be rendered. I. C. Monsod for appellant Vicente D. Alobog. Ped'J'"O C. Glof'ia fOr a}>pellees. . DE c·I s I 0 N BAUTISTA ANGELO, J.: of plaintiffs state: 'THAT PLAINTIFFS DENY GENERALLY. AND SPECIFICALLY EACH AND EVERY ALLEGATION CONTAINED IN EACH AND EVERY PARAGRAPH oF THE DEFENDANTS' COUNTERCLAIM.; That the herein moving party is thus entitled to a judgment as a matter of law. That the defendant Vicente D. Alobog is ready to present evidence as to the amount of Damage suffered by him therein alleged. WHEREFORE, p1·emises considered, the undersigned pny for an order giving judgment 'in favor of the defendant Vi .. cente D. Alobog and against the plaintiffs based on the plead. ings on file; that the defendant Vicente D. Alobog be allowed to present evidence as to the amount of damage suffered by him as therein aJlegt!d; and further pray for· such other and further relief as the court may deem just with costs, against the plaintiffs." ' What is the nature of a judgment on the pleadings? This point is well defined in our Rules of C.ourt. Thus, in Section 10, Rule 35, it is provided that "where a.n answer fails to tender an issue, 01· otherwise admits the material allegaticms of the adve1·se party's pleading, the cou1t may, on motinn of that party, direct judgment This is an actfon for damages instituted in the Court of First :~easd~:~. P!:::~~~'inex::~!n~n f~~ti:~~:i:e:;-1~~lm::r~gem:;ri;~r:: :~ii::: :i:iz:111·a:~~ii;~e~r::' ::h~!=~:e:~dof!:rn7t:%e ::::: wherein the material facts alleged in the complaint shall always be therein, the owne1·ship ·of which is disputed. . :~::i;, ·i~h~~=l~:r~::::::nn~h:th;:1:r;;~;;in'; :=:;:!~r~n ~i; the ~::n!:~t d:~:;t;0:~:~g 0~il:i:r~t, ~:ti:~edto a!isi::e;n!h:!: pleadings only applies where an an"ewer fails to tender a.n issue and he denied specifically aµ the material allegations of the complaint =~~~ti!!u~~v::; ~e •1:~l~ b~h:ieru~:,!::!~~tal~~o:ghw:::: :n:~ and ~~i:~::::n:~::tit~: a:!:~e;;~~i!ef:::.~:;n!e~~;u~:i:1:~~~ . rican jurisprudence, the rudle applies to either party. CRoxoline deny "generally and specifically each and every allegation eon- Petroleum Co. v. Craig, et al., 300 P. 620; 71 C. J. S. p. 883.) tained in each and every paragraph" of said counterclaim. There- Iese ~~i:h:::: ~:;' i!~~k:u~ew:e:~; :~~ ;!°;:; 0 :d ::':.~ :!:' ~e~~:~~:!~~~ :.:~=gio ct:~::n,-: i:::, ::-:~f'i:0;:;. in this jurisdiction quite a good number of cases illustrating the praying that judgment be rendered in his favor and against plain- nature and application of the rul". Aa an illustration and guidtiffa, asking at the same time that he be allowed to present evi- :;:e•tl:e f:;~:w~:; :~-:!~e!s 0~8 i::!u=::an f::~~~d:~~r::t in:• dene;.h~: :oti:: ~~;us:! ~!r ~::;, ~:ti:scl;!~::.~~ 0~i~i:n:u: SES decided by this Court: When the defendant neither denies nor Eel failed to appE.ar, counsel for plaintiffs informed the court that admits the material allegations of the complaint, judgment on the he was agreeable that a judgment on the pleadings be rendered pleadings is proper <Alemany, et al. v. Sweeney, 3 Phil. 114). But as prayed for in the motion of defenda.nt. Accordinily, the court where the defendant's answer tenders an issue, judgment on the rendered judgment granting practically the relief prayed for in pleadings should not be rendered <Ongsin v. Riarte, 46 O. G. No. 1, the complaint. From this decision defendant has appealed. p. 67). And when the defE'ndant admits all allegations of thE' comThe cHe was originally taken w the Court of Appeals, b>it when plaint, the admission is a sufficient ground· for judgment. One the case was called for hearing appellant's counsel admil..ted tru.t who prays for judgment on the pleadings without offering proof he was "merely raising questions of law, to which appelleea' counsel as to the truth of his own allegations, and without giving the op. agreed, &8 in fact the latter alleged in his brief that said cou1t ~~~:g J~:ii~ni::P:~:::i: ~I i~~~~~~~e==~ !:~':.!': :::::: ~as th:o ~ ~=;~:~i~ouo~~r ~:er::0:~h!~!~t. =~u~:r:i::i;ar!~: tions of the opposing party, and to rest his motion for judg111ent on Court. · those allegations taken together with such of his own as are adThe motion which ·the lower court considered as one for judg- mitted in the pleadings. <Bauermann v. Casas, 10 Phil., 386; Evanment on the pleadings a.nd which served as basis of its decision i-eads gelista v. De la Rosa, 76 Phil., 115; Tanchico v. Ramos, 48 0. G. as follows: (1) 654. > It is apparent from these rulings that judgment on the pleadings can only be rendered when the pleading of the party ''Comes now defendant Vicente A\obog, by and through his against whom the motion is· directed, be he plaintiff or defendant, undersigned. counsel and to this Honorable Court moat res- does not tender any issue, or admits all the material allega.tions of peetfully shows: the pleading of the movant. Otherwise, judgment on the pleadings 1. That the defendant Vicente D. Alobog in answer to cannot be rendered. the plaintiffs' complaint on file denying the allegations con- If we consider the motion filed by the defenda.n.t wkerein he tained therein, except paragraph 1 and in a wa.y paragraphs 8, l>rsyed th!l.t judgment be rendered on the pleading in the light of 5, 6, and 13, for the truth of the matter are as stated in the the foregoing rules, one cannot but reach the conclusion that what Affirmative and Special defenses, and by way of Counterclaim was intended was merely to ask fCtr judgment in so far as the reproduces all the allegations of his 'Answer', 'Affirma.tive De- couterclaim contained in his answer is concerned iJ\ view of the fense' and 'Special· Defense' and incorporated therein aa part failure of the plaintiffs to traverse it as required by the roles. of said Counterclaim in the amount of Twelve Thousand This is i·efiected in the second paragraph of the motion wherein CP12,000.00> Pesos for damages suffered by said defendant. defendant makes patent the fact that plaintiffs' answer to his 1aid counterclaim of said defendant Vicente. D. Alobog, said counterclaim failed to tender an issue because it merely pleaded a answer dated September 6, 1960, failed to tender an issue, and general denial Thia is also refieeted in the prayer wherein he instead in law admit the material allegations of the ea.id 1.An- aeked that judgment be rendered in his favor and against the plain.. ; swer', 'Affirmative Defense', 'Special Defense', and 'Counter- tiffs and that he be allowed to present evidence as to the amount claim' of defendant Vicente D. Alobog, for the said answer of damages claimed by him in his coanterclaim. The motion could ll!ay 81, 1964 LAWYERS JOURNAL 289 not have l'efe"rred to the material allegations of the complaint for the simple reason that they were specifically denied in the answer and therefore the latter has tendered an issue which could not be tht= subject of a judgment on the pleadings. This is the only conclusion that can be drawn from a careful analysis of the contents of the motion of defendant. A contrary interpretation would be incongruous and contrary to its very purpose. It is for these reasons that we believe that the lower court committed an error in considering the aforemiid motion as an implied admission of all th~ me.terial aUegations of the complaint and in rendering judpent accordingly. Wherefore, the decision 8.ppealed from is hereby ·revoked, without pronOuneementa as to costs. The case is remanded to the lower court. for further proceedings. PanJ.8, Pablo, Bengzrm, Padilla, Tua.son., Montemayor, Rqn, Jugo and Lalwador, J. J., concur. xv Ma.1nuto Mission, et al., Pef.itiOMrs, -vs. Vicente S. del Rosi.Mio, as Acting Mayor of Cebu City, et al., .Respondents, G. R. No. L-6754, Febnta1"1/ 26, 1954. . 1. PUBLIC OFFICERS; "DETECTIVE" DEFINED.-"The word 'detective', as commonly understood in the United States_. is defined. as one of a body of police officers, usually dressed. in plain clothes, to whom is intrusted the detection of crimes and the apprehension of' the offenders, or a policeman whose business is to detect wrongs by adroitly investigating their haunts and habits." [Grand ·Rapids & I. Ry. Co. v. King, 83 N.E. 778, 780, 41 Ind. App. 707, citing Am. Diet, and Webst. Diet. (Vol. 12, Words and Phrases, p. SIS.)] 2. IBID; "POLICEMAN" DEFINED. - The term "policemen" may include detectives <62 C.J.S. p. 1091). "3. IBID; "POLICE" DEFINED.-"The term 'police' has been defined as an organized civil fo1·Ce for maintaining order, prevertting and detecting crimes, and enforcing the laws, the body of men by which the municipal law, and regulations of a city, town, or district are enforced." 4. IBID; COMMON FUNCTION OF POLICEMEN AND DE· TECTIVES.-With few exceptions, both policemen and detectives perform common functions and duties and both belong to · ·the ·police department. In contemplation of law therefore both shall be considered. as members of the police force. · 6. IBID; REMOVAL OF CITY POLICE UNDER REPUBLIC ACT NO. 557 .-Section 1 of Republic Act No. 557 provides, in so far as may be pertinent to their ease, that the members of the ritJJ police shall not be removed "except for misconduct or incompetency, dishonesty, disloyalty to the Philippine government, serious irregularities in tlle performance of their duties, and violation of law or duty," and in auch eases, chargea shall be preferred by the cit:r mayor and investigated. by the city Council in a public hearing, and the accused shall be given opportunity to make their defense. A copy of the charges shall be furnished the accused and the investigating body shall try the case within ten days from notice. The trial shall be finiahed within a reasonable time, and the investigating body shall decide the ease within fifteen days from the time the case is submitted for decision. The decision of the city council shall be appealable to the Commisaion of Civil Service. · 6. REMOVAL OF CITY POLICE UNDER EXECUTIVE ORDER NO. 264.-Exeeutive Order No. 264, on the other hand, prescribea a more summa:ey procedure. It applies to secret service agents or detectives and provides in a general way that the appointing officer JQ&Y terminate the aerricea of the persons appointed if he deems. it necessary becawse of lack of trust or confidence· and if the person to be separated is a civil• service eligible, the advice ·of his separation shall &tate the reasons therefor. Under this procedure no investiP,tion is necessary, it being sufficient that the appointee be notified. of hia separation based on lack of confidence on the part of the appointing officer. 7~1~.~~;!~!~v~M?nV!~ ~:U~~=~s~ ~:: ;~ were removed by the Mayor because he had lost his confidence in them. The detectives maintain that ~heir removal is illegal because it was made in violation· of the law and the Constitu· tion which protect thoae who are in the civil service. On the pther hand, the mayor contends that their positions being primarily eonfidentia1, their removal ean be effected under Execn.. tive Order No. 264 of the President, on the ground of lack of trust or confidence. HELD: (1) Sec. l of Republic Act No. 557 provides, in so far aa may ~ pertinent to their ease, that the members of the city police shall not be removed "except for misconduct or incompetency, dishonesty, disloyalty to the Philippine government, serious irregularities in the perf()11nance of th"r duties, and vioh;.tion of law or duty," and in such ease19, charges shall be preferred bY. the city mayor and investigated by the city council in a public hearing, and the accused shall be given opportunity to make their defense, etc. Executive Order No. 264, on the 'other hand, prescribes a mon summary procedure. It applies to secret service agents or detectives and provides in a general way that the appointing officer ma)' terminate the services of the persons appointed if he deems it necessary because of lack of trust or confidence and if the persond to be separated is a civil service eligible, the advice of his separation shall st.ate the reasons therefor. Under this procedure no investigation is necessary, it being sufficient that the appointee be notified of his separation based on lack of confidence on the part of the appointing officer. An analysia of the pertinent provisions of the Charter of t~e City of Cebu (Com. Act No. 58) will reveal that the position of a detective comes under the police department of the city. Thia is clearly deducible from the provisions of sections ,32, 34, and 35. There- , fore, the detectives were illgeally removed from their positions. Fermindo S. Ruiz for petitioners. Jose L. Abad for respondents. DECISION BAUTISTA ANGELO, J.: Petitioners were detectives in the Poli~e Department of the City of Cebu duly appointed. by the Mayor of the city. Some of the appointees were civil service eJigibles. ' Their rank, length of Bel'vice, and efficiency rating appear in the certification attached to the petition. On ,May 11, 12, and 19, 1953, petitioners were notified by the Mayor that they had been removed because he has loat his confidence in them. Following their removal, the City Treasurer and City Auditor stopped the payment of their salaries, and after thei1· positions had been declared vacant because of their removal, the City Mayor immed.aitely filled them with new appointees who are presently discharging the function& and duties appertaining thereto. Considering that their removal was made in . violation of the law and of the Constitution which protect those who are in the civil service, petitioners filed the present petition for mandamus in this Court praying that their removal be declared. illegal and without effect and that their reinatatement be ordered and their salaries paid from the date of their removal up to the time of their reinstatement. Respondents in their answer tried to justify the removal -of petitioners contending that, their positions being primarily confidential, their removal can be effected under Executive Order No. 264 of the President of the Philippines, on the ground of lack of trust or confidence. They claim that the Ma:ror of Cebu Ctiy has lost confidence in tliem, and io he separated' them from the service upon due notice. ~e only isaue invo~ved in this petition hinges on the determina· 240 LAWYERS JOURNAL Ma1 31, 195' tion of the nature of the positions held by ·petitioners at the time 41f their removal. Petitioners contend that, having been appointed as detectives, they should be regarded as members of the Police Department of Cebu City and, therefore, they are members of the city polit:e. As such they can only be removed in. line with the pro. cedure laid down in Republic Act: No. 557. On the other hand, respondents contend that petitioners are not members of the police force, but of the detective force, of the City of Cebu, and, therefo1-e, their removal is governed by Executive Order No. 264. Let us first make a brief outline of the procedure concerning_ removal laid down in the legislation invoked by the parties before passing on to determine the nature of the positions held by petitioners. Section 1 of Republic Act No~ 557 provides, in so far as may be pertinent to their case, that the members of the city police shall not be removed "except for misconduct or incompetency, dishonesty, disloyalty to the Philippine government, serious irregularities in the performance of their duties, and violation of"1aw or duty," and in such cases, charges shall be p1·eferred ·by the city mayor and investigated by the city CO)lncil in ·a publiC heraing, and the accused shall be given opportunity to make their defense. A copy of the charges shall be furnished the accused and the investigating body shall try the case within ten dayS from notice. The trial shall be finished within a nasonable time, and the investigating ·body shall decide the case within fifteen days fr0m the time the case is submitted for decision. The decision of the city council shaU be appealable to the Commission cf Civil Service. e. Executive Order No. 264, on the other hand, prescribes a more summary Procedure. It applies to secret service agents or detectives and provides in a' general way that the appointing officer may terminate the services of the persons appointed if he deems it necessary because of lack of ti·ust or confidence and if the person to be separated is a civil service eligible, the advice of his separation shall state the reasons therefor. Under this procedure no investigation is neceSsary, it being sufficient that the appointee be notified of hls separation based on lack of confidence on the part cf the appointing officer. . · An analysis of the pertinent provisions of the Charter of thG City of ~ebu CComnionwealth Act No. 58) will reveal that the position of a detective comes under the police department of the city. "This is clearly deducible from the pr.ovisions of sections 32, 34 and 35. Section 32 creates the position of Chief of Police "who shall have charge of the poli«:e department and everything pertaining thereto, including the organization, government, discipline, and dis. position of the city police and detecti'Ue force." Section 34 creates the. position of Chief of the Secret Service who shall, under the Chief of Police, "have charge of the detective work of the department and of the detective force of the city, and shall perform such other duties as may be assigned to him by the Chief of Police." ·And section 35 classifies the Chief of "Police and Assistant Chief ~~of Police, the Chief of the Secret Service and all officers and mem"bers of the city police and detective force as peace officers. Under this _;set-up it is clear that, with few exceptions, both policemen and . detectives perform common functions and duties and both belong to the police department. In contemplation of }aw therefor both shall be considered. as members of the police force of the City of Cebu. The authorities in the United States are of the same import. Thus, "The word 'detective', as commonly understood in the U. S., is defined aa one of a bOdy of police officers, usually dressed in plain clothes, to whom is intrusted the detection of crimes and the apprehension of the offenders, or a policeman whose business is to detect wrongs by adl'Ditly investigating their haunts and habits." [Grand Rapids & I. Ry. Co. v. King, 83 N.E. 778, 780, 41 Ind. App. 707, citing Am. Diet. and Webst. Diet. (Vol. 12, Words and Phrases, p. 812.) ]. The· term "policemen" may include detectives (62 C.J.S. p. 1091). And "the term 'police' has been defined as an organized civil force for maintaining order, preventing and detecting crimes, and enforcing the laws, the body of men by which the municipal law, and regulations of a city, town, or district are enforced." (Vol. 62, C.J.S. p. _1050.) It appearing that petitioners, as detectives,. or members of the police force of Cebu City, were separated from the service not for any of the gi-ounds enumerated in Republic Act No. 557, and without the benefit of investigation or trial therein prescribed, the ~n clusion is inescapable that their removal is illegal and of no valid effect. In this sense, the provisions of Executive Order No. 264 of the President of the Philippines should be deemed as having been impliedly repealed in so far as they may be inconsistent with the provisions of said Act. <See sec. 6, Republic Act No. 557.) This interpretation is the more justified considering the rank and length of service of many of the petitioners, involved. The great majority of them had been in the service fur 6 years, one for 9 years, one for 11 years, one for 14 years and .one even for 81 years with an efficiency. rating which is both commendable and satisfactory. These data give an inkling that their separation is due to causes other than those recognized by law. . Wherefore, the petition is gran~, without pronouncement as to costs. Paras, Pablo, Bengzrm, Padilla, Mrm.temayOt", Reyes, Jugo, ~ lwador, Concepcion and Diolrno, J. J., concur. XVI Co 7'e Hue, Petitinncr vs. H'.ln. De1;ietrio B. Encanza.cion, Judge, Court of First Instance qf Manila, Respondrnt, G. R. No. L-6415, Junua;,71 26, 1954. CRIMINAL PROCEDURE; DOUBLE JEOPARDY; DISMISS.. AL CONSENTED AND URGED BY COUNSEL OF THE AC.. CUSED.-Where an accused is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there is no double jeopardy under Sec, 9, Rule l 13. if the case against him is revived by the fiscal. Amado .4. l'atco for petitioner. J>cmetrlo B. EnearnacUm, .4ssistan.t Solicitor General Guillermo I!.'. TIYl'1"es and Solicitor Jaime. de Ills Angeles for respondents DECISION BAUTISTA ANGELO, /.: This is a petition for certiorari seeking to set aside an order of the Court of First Instance of Manila which directs that peti· tioner be included as one of the accused in a criminal case for estafa from which he was previously exclllded by an order of the court. On July 15, 1950, seve1·al pe~sons including petitioner, were charged with the crime of estafa in the Court of First Instance of Manila (Criminal Case No. 13229>. Petitioner was arraigned and pleaded not guilty. On August 29, 1951, upon motion filed by the offended party, with the conformity of his counsel, and without objection on the part of the fiscal, t~e case was provisionally dismissed as to petitioner. On May 31, 1952, the fiscal filed a motion to revive the case on the ground that its dismissal with i-espect to petitioner "was impractical, discriminating since the ground of-dismissal was not based on the merits of the case." Petitioner objected to this motion but the court granted it stating that after a i·einvestigation it was found that he was just as guilty as the other accused. On November 12, 1952, petitioner moved to quash the infonnation as to him alleging that his reinclusion in the same after it has been provisionally dismissed places him in double jeopardy. This motion was denied, and reapondent Judge having refused to i·econsid~ hie order, petitioner filed the present petition for certiorari alleging that s&id Judge has acted in excess of his jurisdiction. It is the theory of petitioner that the charge for estafa filed against him having been dismissed albeit provisionally without him express consent, its revival constitutes double jeopardy which bars a subsequent prosecution for the same ·offense. under section 9, Rule 113, of the Rules Of Cou1t. This Claim is diePuted by the Solicitor GeneTal who contends that, considering What has transpired in relation to the incident, the provisional dismissal• is no bar to his subsequent prosecution for the reason that the dismissal was made with his express consent. May 31, 196' LAWYERS JOURNAL 241 We are inclined to uphold the view of the Solicitor General. From the transcript of the notes taken at the hearing in connec~ tion with the motion for disnussal, it appears that a conference was had between petitioner and the offended party in the office of the fiscal concerning the case and that as a result of that con· ference the offended party filed the motion 'to dismiss. It also a,.. pears that as no action has been taken on said motion, counsel for petitioner invited the attention of the court to the matter who acted thereon only after certain explanation was given by said coUnset And when the order came the court made it plain that the dis· missal was merely provisional in character. It can be plainly seen that the dismissal was effected. not onl11 with the ezpNBB consent of petitioner but even. uptm the urging of his counsel. This attitude of petitioner, or of his counsel, takes thia case out of the operation of the ritle. · A case in pOint is People v. Romero, G. R. No. L-4517·20, promulgated on J'uly 31, 1951, wherein the order of dismissal was is-sued after the defense counsel has invited the attention i>f the court t.o its former order to the· effect that the case would be dis-missed if the fiscal was not ready to proceed with the trial on J'une 1', 1960. When the case reached this Court on appeal, coun· se1 claiml!d that "it is indubitable that your defendant d\d not himself personally move for the dismissal of the cases against him nor expressly consent to it; and that the dismissal was, in effect, an acquittal on the merits for failure to prosecute, because no reserva· tiOn was made in favor of the prosecution to renew the charges against 1our defendant in the ulterior proceedings." In overruling this plea, this Court sai~: "Whatever explanation that may be given by the attorneys for the defendant, it is a fact which cannot be controverted that the dismissal of the cases against the defendant was or· dered upon the petition of defendant's counsel. In opening the postponement of the trial of the cases and insisting on the compliance with the .:irder of the court dated May 25, 1950 that the cases be dismissed if the Provincial Fiscal Was not ready for trial on the continuation of the hearing on June 14, 1950, he obViously insisted that the cases be dismissed. The fact that the counsel for the defendant and not the defendant himself, personall11 moved for the dismisaal of the cases against him, had the same effect as if the defendant had personally moved for such dismissal, inasmuch as the act of the counsel in the prosecution of the defendant's cases was the act of the defendant himself, for the only case in which the defendant cannot be represented by his counsel is in pleading guilty according to section 3, Rule 114, of the Rules of Court." There is more weighty reason to uphold the theory of reinstate~ ment in the present case than in that of Romero considering the particularity that the dismissal was provisional in character. In our opinion this is not the dismissal contemplated by the rule that has the effect of barring 8. Subsequent prosecution. Petition is diamis1ed with coats. Pablo, Padilla, Montema.vor, Reyes, Jugo and Labrador, J. J., concur. Justice Bengzon, concurs in the result. Chief Justice Ptllf'a.S took no part. XVII Philippine National Bank, Pla.intiff-AppeUee 11s. Lauf'eano Atendi.. do, Defendant-Appellant G. R. No . .L..6342, Januat-y 26, 1954. WAREHOUSE RECEIPT; PLEDGE THEREOF TO GUARANTEE THE PAYMENT OF AN OBLIGATION; CASE AT BAR.-On June. 26. 1940. A obtained from the Philippine Na.. tional Bank a loan of P3,000 payable in 120 days with interest at 6% per annum from the date Of maturity. To guarantee the payment of the obligation the borrower pledge to the ba:nk 2,000 cavanea of palay which w11re then depositfod in the warehouse of Cheng Siong Lam & Co. in San Miguel Bulacan, and. to that effect the borrower e,ndorsed in favor of the bank the correaponding warehouse receipt. . Before the maiurity of the loan, the 2,000 ca.vanes of palay disappeared for unknown reason in the warehouse. When the loan matured the borrower failed to pay either the principal or the interest and so action was instituted. Held: The delivery of said palay being meJ:ely by we.y of security, it follows that by the very nature of the transaction its ownership remains with the pledgor subject only to foreclosure in case of non-fulfillment of· the obligation. By thia we mean that if the obligation ia not paid upon maturity the moit that the pledgee can do is to sell the property and apply the proceeds to the payment of the obligation and to return the balance, if a.ny, to the pledgor (Article 1872, Old Civil Code). This is the essense of this contJ:act, for, a.cco1·ding to law, a pledgee cannot become the o~ner of, no1· appropriate to hinlself, the thing given in pledg'! <Article 1859, Old Civil Codel. If by the contract of pledge the pledgor continues to be the owner of the thing peldge durin~ the pendency o~ the obligation, it stands to reason that in case of loaa of the property, the loss shonld be borne by the pledgor. The fact that the wuehouse receipt cc.vering the p&lay was delivered, endorsed in blankr to the bank does not alter the situation, the pu1·pose of i!IUch endorsement being merely to transfer the juridical. possession of the property to the pledgee and to forestall any possible disposition thereof on the party of the pledgor. Thia is true notwithstanding the provisions to the contrary of the Warehouse Receipt Law. Gaudencfo L Atendido for appellant. Ramon B. d« los Re11es and Nfl'IMaio P. Li6unao for a.pfellee .. DECISION BAUTISTA ANGELO, J., Thia is an appeal from a decision of the Court of First Inatance of Nueva Ecij~ which orders the defendant to pay to the pl&intiff the sum of P3,000, with interest thereon at the rate of 6% per annum from June 26, 1940, and the coats of action. On June 26, 1940, Laureano Atendido obtained. from the Philip.. pine National Bank a loan of P3,000 payable in 120 days with interest at 6% pel' annum from the da.te of maturity. To guarantee the pay. 1nent of the obligation the borrower pledge to the bank 2,000 cavanes of palay .;,hich were then deposited in the wa1-ehouse of Cheng Siong Lam & Co. in San 1fliguel, Bulacan, and to that effect the borrower endorsed in favor of the bank the correspondi~g warehouse receipt. Before the maturity of the loan, the 2,000 cavanes of palay dis. appeared for unknown reasons in the warehouse. When the loan matured the borrower failed to pay either the principal or the interest and so the present action was instituted. Defendant set up a special defense and a counterclaim. As i·eg-ards the former, defendant claimed that the warehouse receipt cc.veJ;ing the palay which was given as security having been endorsed in blank in fa.vor of the bank, and the palay having been lost or disappeared, he thereby became relieved of liability. And, by way of counterclaim, defendant claimed that, as a corollary to his theory, he is entitled to an indemni~y which represents the difference, between the va.lue of the pa lay lost and ::.he amount of his obligation. The case was submitted on an agreed statement of facts and thereupon the cou1t i·endered judgment as stated in the early part of this decision. Defendant took the case on appeal to the Court of Appeals but later it was certified to this Cou1t on the ground that the C!Ueation involved is purely one of law. The only issue involved in this appeal is whether the surrender cf the warehouse receipt covering the 21 000 cavanes of palay giver. as a security, endorsed in blank, to appellee, has the effect of transferring their title Ol' ownership to said appellee, or it should be considered merely as a guarantee to secUl'e the payment of the nb1igation of appellant. In ·upholding the view of appellee the lower court said: "The surrr.ndering of warehouse receipt No. 8-1719 covering the 2,000 cavanes of palay by the defendant in favo1· df the pla.intiff was not th~t of a final transfe1· of that wa1-ehouse receipt but merely 242 LAWYERS JOURNAL May 31, 1954 D8 a guaranty to the fulfillment of the original obligation of P3,000.00. In other word, plaintiff corporation had no right to dispose (of) the warehouse r1..-ceipt until after the maturity of the promissor1' note Exhibit A. Moreove1·, the 2,000 cavanes of palay were not on the first place in the actual possession of plaintiff corpors.tion, although symbolice.lly speaking the delivery of the warehouse receipt was actually done to the bank." We hold this finding to be correct not only because it is in line wit.h the n11.ture of a contract of pledge as defined by law lArticles 1857, 1858 and 1863, Old Civil Code), but is supported by the stipulations embodied in the contr1t.ct signed by arpellant. when he secured the loan fl'om appellee. There is nn question that the 2,000 cavanes of palay covered by the w&1.·eho11sc receipt .were given to appellee only as guarantee to secure the fulfillment by appellant of his obligation. This clearly appears in the contract Exhibit A wherein it i11 expressly stated that said 2,000 cava.nes nf palay were given as a collateral security. The delivery quired by Commonwealth Act No. 103 is not a prerequisite to the right of a labor organization to appear and litigate a case beJorc the O:>urt of Industria] ~lations. CKapisanan Timbu1an ng mga Ma.nggagawa, 44 0. G. CU, pp. 182, 184-185.) In the second place, (lnce the Court of Industrial Relations has acquired jurisdiction over a case under the law of its creation, it retains that jurisdiction until the case is completely decided, including all the incidents related thereto. 2. EMPLOYER AND EMPLOYEE; THE POSITION 01'' SUPERINTENDENT IS THAT OF AN EMPLOYEE. - In a reneral sens£: an· " 'employee' is one who rendto:t·s service for another for wages or salarY, and that in this sense a person entployed to superintend, with powe1· ~ employ and dischal'ge men and generally to represent the principal is &n 'employee,' " <Shields v. W. R. Grace and Co., 179 P. 265, 271, quoted in 14 Words and Phrases 360.) of said palay being merely by way of security, it foJlows that by 3. the very nature of the trans9.ction its .ownership i·e1nains with IBID; IBID. - It has been said tha.t while a superintendent who has the power to appoint and discharge may be considered as part of the management, in the dispute that arises between it and the laborers, said surerinrettdent is an employee in his own relatiou to the capitalist or owner of the business, in this case, the Cebu Pol"tla:ud Cement Company. the pledgo1· subject only to foreclosure in case of non-fulfiJlment of the obligation. By this we mean that if the obligation is not paid upon maturity the most that the pledgee can do is to sell the property and apply the proceeds W the payment of the obligation and to return the balance, if any, to the pledgor <Article 1872, Old Cicil Code). This is the essence of this contract, for, according to 4. law, a pledgee cnnnot become the owner of, nor appropriate to-him- , self, the thing given in pledge <Article 1859, Old Civil Code>. If IBID; IBID. - Valencia. was, in the case of bis dismissal by the Cebu Portland Cement Company an employee, not a part of the management, and his case properly falls under the catego:i-y of an industrial dispute falling under the jurisdiction of the Court '>f Industria] Relations. And the fact thai his position was among the highest in a government enterprise did not change the nature of his 1-elation to his employer. by the contract of pledge the pledgor continues to be the owner of the thing pledge dut~ing the pendency of the obligation, it stands to reason that in case of loss of the p1·operty, the loss should be borne by the pledgot'. The fact that the we.rehouse receipt eovering the palay was delivered, endorsed in blank, to the bank 5. does not alter the situation, the purpose of such endorsement being merely to transfer the juridical possession of the property to the pledgee and to forestall any possible disposition thereof on the part of the pledgor. -This is true notwithstanding the pt'OviaionS to IBID; DISMISSAL WITHOUT CAUSE. - There is no question that the position of general superintendent was not aboli~ed; its sala1·y of P6,000 and which was held by one Ocampo, was supi)ressed. Instead of retiring Ocampo, whose petition was abolished, Valencia wes retired, even as his position was re... tained, and Ocampo promoted to take his <Valencia's) position. As ValE'ncia's position was not abolished or suppressed, Valencia should not have been separated by retfrement: it should have been Ocampo wh:> should have been retired because of the abolition of his own position. Petitioner's argument in effect is a.s foilows: that there is economy if Valencia is separatfo.d and Ocampo retained, and Valencia dismissed. Thf! absurdity of the contention is .evident; it· is its own refutation. Reasons of economy may have justified the reduction, of Valencia's salary, but certainly not his separation. Evidently the ·reduction wa.s merely the opportune occasion for a dismissal without cause. the contrary of t!Je Warehouse Receipt Law. In a. case recently decided by this Court <Martinez v. Philip. pine National Bank, G. R. No. L.4080, September 21, 1953) which, involves a similar transaction, this Court held: "In conclusion, we hold that whe1·e a warehouse i-eceipt or quedan is transferred or endorsed to a creditor only to secu1-e the payment of a loan or debt, the transfenee or endorsee does nnt automatically become the owner of the good covered by the wa.rehouse receipt or quedan but he merely retains the 1.ight to. keep and with the conser;it of the owner to sell them so as to satisfy the obligation frnm the proceeds of the sale, this for the simple reason that the transaction involved is not a sale but only a mortgage or pledge, and that if the property covered by the qpedans or wa1·ehouse receipts is lost without the fault or negligence of the mortgagee or pledgee , or the transferree or endorsee of the warehouse receipt or quedan, t-hen said goods are to be 1-egarded as lost on account of the real owner, mc:.rtgagor or pledgor." Wherefore, the decision appea.led from i$ affirmed, with costs against appellant. . B-engzon, Padilla, Montemayor, Jugo, Reyes and Labrador, J. J.; concur. Chief Justice Paras dissents for the same reasons ·stated in Martinez vs. P.N.B., L.4080. XVlll Cebu Portland Cement Company, Petitioner vs. The Court of liaduatrial Relations (CIR) and Philippine Land-Air-Sea Labor Union CPLASLU>, ~espondents, G. R. No. L- 6158, Ma.reh 11, 1904. 1. COURT O~' INDUSTRIAL RELATIONS; JURISDICTION OVER A CLAIM FILED BY A LABOR UNION WHOSE PERMIT HAD ALREADY EXPIRED AND NOT RENEWED BY THE SECRETARY OF I.ABOR. - Tlie registratfon re. Legal Counsel of Cebu Po1tland Cement Company, FM'tunato V. Borromeo and Asst. Gov't Corporate Counsel, Leovigildo Monasterial for petitioners. Emilio Lumontad for respondents, PLASLU. DECISION LABRADOR, J.: This is an appeal by certiorari from a decision of the Court of Industrial Relations ordel'ing the petitioner Cebu Portland Cement Company to reinstate Felix V. Valencia to his former position as general superintendent, with full back pay at Pl,000 a month from November 15, 1950, up to his reinsta.tement and the differential salary collectible f1·om May 1, 1949 up to November 16, 1950, with all the privileges and emoluments attached to said position. The reco1•d discloses that on December 31, 1948 i-espondent Philippine Land-Air-Sea Labor Union CPLASLO> filed a petition with the Court of Industrial Relations, docketed as CIR Case No. 241-V and entitled Philippine Land-Air-Sea Labor U:nion vs. Cebu Portland Cement Company, submitting a set of grievances and demands againet the therein respondent, herein petitioner, for decision and settlement hi said cou1t. While the said case was pending and on May 31, 1954 LAWYERS JOURNAL 248 November 20, 1950, said PLASLU filed an incidental motion in the S&id case, alleging that respondent herein Felix V, Valencia was dismissed without just cause on Nevember 16, 1950 and praying that he be reinstated with back salaries. The Cebu Portland Cement Company filed an answer denying that Valencia was dismissed without cause and alleging that he was retired from the service together with 100 other employees and/or labo1-ers to promote economy and efficiency in the service in accordance with the order of the Secretary of Economic Coordination. In that same answer the cement company questioned the PLASLU's juridical personality as· a labor union, as well as the jurisdiction of the CIR to take cogniz&nce of the inCidental case. After hearing the merits of the incidental case the Court of Industrial Relations rende1·ed the decision appealed from. After a motion for reconsideration filed by the cement company .was denied in bane, it filed the present action for certiorari a.lleging that (a) the CIR has no power to take cognizance of the incidental case of Valencia, firstly, because the PLASLU's license as a registered labor unipn waS revoked by the See1:etary of Labor on August 251' 1950, and 13econdly, because the subject. matter involved in the said incidental case is not an industrial or agricultural dispute i-elated to the main case, Valencia belonging to the management group of the petitioner company; Cb). that the court had no power and acted with grave abuse of discreti:m, firstly, because it did not state correctly the facts appearing on record secondly, because it disrega.rded the essential requirements of ·due process; thirdly, because it did not weigh the evidence aubmitted by the petitioner herein before promulgating its decision; fourthly, because it ha.d, no jurisdiction to consider the claim of a Filipino citizen in the service of a government contro11ed corporation, etc. The facts giving rise to the incidental case filed by Valencia against the Cebu Portland Cement Company may be briefly stated as follows: On or before November 10, 1950, Felix V. Valencia was a genel'al superintendent of the compa.ny with a. salary of P12,000 per annum. He first served with the Cebu Portland Cement Company a.s assistant general superintendent from July, 1989 with a st:ilary of P7,200 pe:t annum. In November, 1947, on recommendation of the general manager, he was promoted to the position of general superintendent with compensation at the rate of P9,600 per annum. On May 1, 1949, he got a promotional appointment with a compensation of P12,QOO per annum. On October 7, October 21, and October 28, the Secretary of J!!conomic Coordination ordered the general manager of the Cebu Portland Cement to take steps to secure a reduction in the expenses of the company, in order to enn.bie it to produce cement at a lower cost and thus reduce its pl'ice for the benefit of the public. Pursuant to this order the manager proposed that the annual salary of the general superintendent of the r1Iant to be reduced to Pl0,800 anc:i recommended that Valencia be retired for the good cf the sel'Vice and the assistant general superintenden~ take his place as genera.I superintendent. The Secretary of EconQmic Coordinatitm approved the propos:al and recommerulation and ordered the retirement of Mr. Valencia effective November 16, 1950. Valencia refused tci retire .p.s ordered and so filed the incidental case. One of the most important questions raised in this appeal is the supposed lack of jurisdiction nn the part of the Court of Indus.. tria.I Relations to consider the incidental case of respondent Va.. lencia, for the reason tliat when his claim was p1·esented befo1-e the court on November 16, 1950 the Philippine Land-Air-Sea Labor Union, to which he belonged, had no longer any persona.Jity befllre the said court, because its permit to continue as a labor 01·ganization had already expired and the same was not renewed by the Secretary cf Labor. In the first place, it must be remembered that the registration required by Commonwealth Act No. 108 is not a prerequisite to the right of a labor organization to appeai• and litigate a case before the Court of Industrial Relations. CKa.pisanan Timbulan ng mga Manggagawa, 44 0. G. CU, pp. 182, 184-185.) In the second place, onee the Court of Industrial Relations has acquired jurisdiction over a case under the Jaw of its ci-eation, it retains th&.t jurisdiction until the case is completely decided, including all the incidents related thereto. <Manila Hotel Employees Association vs. Manila Hotel Coinpany and the Court of Industrial Relations, 73 Phil. 874; Mortera, et al. vs. Court of Industrial Relations, 45 Q. G. (4), p. 1'114; and Luzon Brokerage Company vs. Luzon Labo1· Union, 48 0. G. (9), p. 3883.) It is also claimed that the Court of Industrial Relations has no jurisdiction over the case of the dismissa.I 01· separation of Valencia, because th!! dispute involved between him and the Cebu Portland Cemenf Company is not an industrial dispute which is causing or likely to cause a strike or a lockout, and the number of employffS or labore1·s invoh·ed does not ·exceed ~O. In answe1· to this contention it must be noted that the original case was instituted by 'fue Philippine Land.Air-Sea La.bor Union CPLASLU> and the circumstances requh-ed by law for the case to be submitted to the Court of Industrial Relations, as i·equh-ed by Section 4 of Commonwealth Act No. 103, we1·e then p1-esent. While this original action was pending, the incidental caae of Valencia, a member of the PLASLU, arose and the powe1· of the court to take cognize.nce thereof is recognized in Section 1 of said Commonwealth Act No. 108 as a dismissal of an employee during the pendency of the proceedings in the ol'iginal case. It is also contended that the position o:C general supel'intendent held by Valencia, which is next ih importance to that of general manage1· with respect to the operation of the company's plant, is not that of an employee, as Valencia represented the management of the company and his dismissal was a case involving a member of the management and not 4ll employee, and, therefore, not a.n industrial dispute. In a general sense an •• 'employee' is one who r~nders service fer another for wages or salary and that in this sense a person employed to superintend, with power to employ and discharge men and generaUy to represent the principal is an 'employee,'" (Shields v. W. R. Grace and Co., 1'19 P . .265, 2'1lj quoted in 14 Wo1·ds and .Phrases 860.> It is true that in the case between the PLASLU and the Cebu Portland Cement Company, Valen.ci'l actually i-epresented the management in the dispute arising between the Cebu Portt8nd Cement Compa.ny, employer, and the union of the laborers, employees. But in the incidental case at bar, we a1-e not concerned with said 1-elation between the PLASLU and the Cebu Portland Cement Company, but we are with that of Valencia, employee, on one side, as against the Cebu· Portland Cement Compl!dl.y, em1>loyer, on the other. It has been said that while a superintendent who has the power to appoint and discharge may be considered as part of the management, in the dispute that arises between it and the laborers, said superintendent is an employee in his own relation to the capitalist or owner of the business, in this case, the Cebu Pootla.nd Cement Company. "A foreman in his relation to his employer, is an employee, while in his relation to the laborers under him he is the representative of the empfoye1· and within the definition of Section 2C2) of the Act. Nothing in the Act excepts foremen from its benefits nor from protection against discrimination no1• unfair labo1· practices of the master. <NLRB vs, Skinner and Kennedy Stationary Co., 113 Fed. 2d., 667,) .. ''His inte1·est properly may be adverse to that of the employe1· when it comes to fixing his own wages, hours, SPniority rights or working conditions. He does not lose his right to serve himself in those reSpects because he serves his maste1· in others. x x x." (33U U. S. 485.) Valencia was, in the case of his dismissal by the Cebu Poitland Cement Company an employee, not a. part of the management, and his case properly fa1Js under the category of an industrial dispute falling under the jurisdiction of the Cou1t of Industrial Relations. And the fact that his position was among the highest in a government enterprise did not change the nature of his case or his relation to his employer. Let us now consider the merits of the arguments submitted by :petitione1· in justifica.tion of Valencia's separation. It is claime.d that this was made in the interest of economy and efficiency. There is no question that the position of general superintendent was not abolished; its salary was reduced only, from P12,000 to Pl0,800 pc-r annum, That of assistant general superintendent, which carried a salary of P6,000 a.nd which was held by one Ocampo, was SUPp1-essed .- Instead of retiring Ocampo, whoS<, position was abolished, 244 LAWYERS JOURNAL May s1, 1954 Valencia was retired, even as his position was retained, and Ocampo 2. promoted to take his CValencia'sl position. As Valencia's posi. IBID; IBID; RESTITUTION OR REPARATION AS THE CIVIL LIABILITY OF THE ACCUSED IN CRIMES AGAINST PROPERTY. - The purpose of the law is to place the offended party as much as possible in the same condition as he was before the offense was committed against him. So if t!te crime consists in the taking away of bis property, the first remedy granted is that of restitution of the thing taken away. If restitution can not be made, the law allows the offended party the next best thing, .reparation , tion was not abolished or suppressed, Valencia should not have been separated by retirement; it should have been Ocampo who should have been retired because of the aboUtion of his own position. Petitioner's argument in effect is as follows: that there is economy if Valencia is separated and Ocampo retained, but none if Ocampo, whose position is abolished, is retained &.nd Valencia dismissed. The absurdity of the contention is evident; it is its own refutation. ~:i~~~s b~t e:~::.~:iym~~t h~;: !:;~!~~o!~e r;t~~~::ly:f ~:ie;;;::~ B. IBID; IBID; REPARATION MAY NOT BE MADE BY THE DELIVERY OF A SIMILAR THING. - Reparation may not be made by the delivery of a simiJar thing <same amount, kind or spP.cics and qua1ityJ, because the value of the thing taken may have decreased since the offended party was deprived there. of. Reparation, therefore, should consist of the price of the thing taken, as fixed by the court <Art. 106, Revised Penal Code). tion was merely the opportune occasion for a dismissal without cause. Wu the dismissal in the interest of efficiency? The CIR found that Valencia's efficiency is shown by the greater amount of production obtained· during his incumbency. Even the petitioner admits that there is no charge of inefficiency. CSee Brief for the Petitioner, p. 89.) But the separation was recominended "for the good of the aei'Vice/' implying that there were valid reasons therefor. NoM 4. appear in the record. On the other hand, the evidence submitte1l prove Valencia's efficiency. Even if there were rea.sons therefor, which were not disclosed, the separation would still be illegal because IBID; IBID; AMOUNT TO BE PAID TO THE OFFENDED PARTY AS. REPARATION; MONEY AS STANDARD OF VALUE. - In the case at ba:r, the court considered the payment of P600 as the next beet thing, if the property taken could not be returned. No valid objection can be raised against this decision; money is the standard of value, and, except in finan. cial crises, it does pot fluctuate in value as much as merchandise or things, especially those bought and sold in the ordinary course of commerce. no charges of any kind whatsoever appear to have been filed against him and neither does any opportunity appear to have been given him to answer them or to defend himself against them. The above considerations cover the most important points raised in this appeal; it would be unprofitable to answer all the other ar. guments, most of which are high.sounding claims without founda.. tion in fact and in law, Suffice it for us to state that we have carefully examined the recOrd and we find no reason or ground to disturb the findings of fact and conclusions of law contained in the judgment. The findings of faet are based on the testimonial and documentary evid~nce submitted. The claim that the facts appearing in the record are not sta.ted, or that the requirements of due process of law have been igno1·ed, find no support in the recQJ"d, it appearing that every opportunity was afforded petitioner to present its side. The judgment is, therefore, hereby affirmed, with costs. So ordered. Para.s, Pablo, Bengzon, Padilla, Montemayor; Reyes; Jugo and Bautista Angelo, J. J., concur. Mr. Justice Concepcion &.nd Mr. Justice Diokno did not take part. XIX The People of the Philippiius, Plaintiff, Antonio Espada, Of. fended-Party.Appellee, 'VS Pelagi., Jl..fo11ta8esa et al., AcCUBsed-AppellanU, G. R. No. L-5684, January 22, 1954. 1. CRIMINAL LAW·; CIVIL LIABILITY OF THE ACCUSED; CASE AT BAR. - The defendants were found guilty of the crime of coercion and were sentenced either to return the articles in question <two bales of tobacco) to the com:plainant or to indemnify him of the same of P632.00 with subsidiary imprisonment in case of insolvency. In compliance therewith, the accused delivered to the provincial sheriff two bales of tobacco but in ·spite -of this the provincial sheriff levied up1>n certain real properties of the accused. The accused claimed tha.t tobacco is a fungible thing and that in accordance with article 1598 of the Civil Code, the obligation of one who receives money or fungible things is to return to the creditor the sa.me amount or thing owned of the same kind or specie and quality, Held: The civil liability of the accused.appellants, in the case at bar, is not governed by the Civil Code, as contended, but by Articles 100-111 of the Revised Penal Code. In accordance therewith, the sentence is for the return of the very thing, taken, restitution. and if this can not be done, for the payment of P600 in lieu thereof, t"epa1"ation. Thie amount represents the value of the two bales of tobacco taken, at the time of the taking, and this va.lue was fi.ii:ed by the court presumably in accordance with the evidence adduced during the trial. Julio SiCl'IJOco for appellants. No appearance for a.ppeJlees in the Supreme Court. DECISION LABRADOR, J. : In the above entitled criminal ease, the accused-appellants were found guilty of the crime of coercion and were sentenced by the Court of Appeals, as follows: "x x x the penalty is increased to four (4) months and one (1) day of arreeto mayor, and that appellant should also be sentenced either to return the articles in question to the com. plainant or to indemify him in the sum of P632.00, with subsi. diary imprisonment in case of insolvtncy, xx x." When the case was returned to the Court of .First Instance for the execution of the above sentence, said court issued an order of execution for P600, the value of two bales of tobacco obtained by the acacueed from the offended party. The provincial sheriff levied upon certain real properties of the accused Paulino Dumagat to secure the payment thereof, notwithstanding the fact in oomplianee with the judgment, the accused had delivered to him (the sheriff) two bales of tobacco. So the accused presented a motion in court pi·aying tha.t the order of execution be set aside. The offended party opposed the petition, and the court sustained this opposition, deriying the petition to set aside the order. Against this order of denial, the accused have prosecuted thi.q appeal. In their brief, the accused claim that tobacco is a fungible thing and that, in accordance with Article 1593 of the Civil Code, the obligation of one who receives money or fungible things is to return to the creditor the same amount of the thing owed of the same kind or species and quality. The civil liability of the accused-appellants, in the case at bar, ir1 not governed by the Civil Code, as contended, but by Articles 100~111 of the Revised Penal Code. In accordance therewith, the sentence is for the return of the very thing taken, Testitution, and if this can not be done, for the payment of P600 in lieu thereof, t"eparation, This amount represents the value of the two bales of tobacco taken, at the time of the taking, arid this value was fixed by the court presumably in accordance with the evidence adduced during the trial. , The purpose of the law is to place the offended party as much as possible in the same condition as he was before the offense Wa! committed against him. So if the crime consists in the taking away May 31, 1954 LAWYERS JOURNAL 246 of his property, the first remed"y granted is that of restitution of 3. the thing taken away. If restitution can not be made, the law allc-ws the offended party the next best thing, repa.ration. The Spa. nish jurist Viada, commenting on this provision of the law says: ID.; ID.; PRINCIPLES GOVERNING COLLATERAL AT.TACK. - In cases of collateral attack, the principles that a.pply have been stated as follows: "The legitimate province of collateral impeachment is void judgments. There and there alone can it meet with any mea.. sure of success, Decision after decision bears this import: "En las causas por robo, jurto, ete., en que no hayan sido reeuperados durante el proceso Jos objetos de dichos delitos, be condenarse a los reos a su i·estitucion, o, en su defecto, a la indemnizacion correspondiente en la cantida.d en que hayan sido valorados o tasados por loi; peritos; xx." <3 Viada 6>. Rep&l'ation may not be made by the delivery of a similar thing (same amount, kind or species e.nd quality), because the value .of the thing taken may have decreased since the offended party was deprived thereof. Reparation, therefore, should consist of the price of the thing taken, as fixed by the court <Art, 106, Revised Penal Code>. In the case 11t bar, the court considered the payment of• P600 as the next best thing, if, the property taken could not be returned. No valid objection ca.n be raised against this decision; money is the standard of ".Blue, and, except in financial crises, it does not fluctuate in value as much as merchandise or things, especially those bought and sold in the ordina1·y course of comrrieree. In any case, the judgment of the Court of Appeals 01·dering restitution, or the payment of the value of the property taken, is now final and exeoutory and can no longer be subject to modificatjon. The appeal is hereby dismissed, with costs against accused&ppellants. So ordered. Puma, Pa,blo, Bettgaon, ·Padilf.4, MonUmayOt, Reyes, Jugo and Bautista, Angelo, J. J., concur. xx Re: Transfer Certificate of Title No, 14123, Ti.rso T. Reyes, aa guaniian of the minnrs, Azticena, Flor-De-Lis and Tit'so, Jr., ell surnanicd Reyes y Barretto, Petitioners-Appellees versus Milagros Ban-etto .. Datu, Oppositor-Appellant, G. R. No, L-5549, Febr11airv 26, 1954. ,,,~ ~.; 1. F'INAL JUDGMENTSf lllBJ'ERENT WAYS OF ATTACKING THEIR VALIDITY. :_;_''Under oul' rules of procedul'e, the validity of a judgment or order of the court, which has become final a.nd executciry, may be attacked only by a direct aetion or proceeding to annul the same, or by motion in another case if, in the latter case, the &urt had no jul'isdiction .to ente1· the ord~r or pronounce the judgme..t CSec. 44, Rule 39 of thP. Rules of Courtl. The first proceeding is a direct attack against the order or judgment, because it is not incidental to, but is the main object of, the proceeding. The other one is the collateral atta.ck, in which the purpose of the proceedings is to obtain some relit"f, other than the vacation or setting aside of the judgment, and the att8ck is only an incident. Cl Freeman on Judgments, -Sec. 306, pp. 607-GQS. > A third manner is by a petition for relief from the judgment or order as authorized by the statutes or by the rules, such as those · expressly provide:l in Rule 38 of the Rules of Cou1·t, but in this case it is to be noted that the i·elief is gra.nted by express statutory authority in the same action or Proceeding in which the judgment or order was entered. . In the case at bar, we are not .concerned with a relief falling under this third class, because the project of partition was approved in the testate proceedings in the year 1949, whereas the petition in this case is in a. ~·egistrat.iQn proceeding and was filed in the year 1951. 2. ID.; ID.; CASE AT BAR. -- In the case at bar, the respondent Lucia Milagros Barretto is objecting to the petition by the second methr.id, the collatet'Bl attn.ck. Wh~n a judgment is sought to be assailed in this manner, the rule is that the &ttack must be based not on mere errors or defects in the order or judgments .. There and there alone can it meet with any meaand void, because the court had no power or authority to grant the relief, or no jurisdiction ovC:1· the subject matter or over the parties or both. llbid. Sec, 3261 p. 650). In every· case the field of collateral inquiry is narrowed down to the single issue concerniri.g the void character of the judgment and the nssaila.nt is caUed upon to satisfy the court that such is the fact, To compass his purpose of overthrowing the judgment, it is not enough that he show a mistaken or el'l'oneous decision or a record disclosing non-jurisdictional irregula1ities in the proceedings leading up to the judgment. He must go beyond this and show to the court, generally from the fact of the :record jt.;:elf, that the judgment complained of is utterly void. If he can do that his a.ttack will succeed for the eases leave no doubt respecting the right of a litigant to collaterally impeach a judgment that he can prove to be void." <I Freeman on Judgments, Sec. 322, p. 642.) 4. ID.; ID.; WHEN LACK OF JURISDICTION OF THE COURT MAY BE A GROUND.l'OR COLLATERAL ATTACK. - The doctrine that the question of jurisdiction is to be determined by the i·ecord alone, thereby excluding extraneous proof seems to be the natural unavoidable result of that sta.mp of authPnticity whic,h, from the earliest times, was placed upon the record, and which gave it such uncontrollable credit and verity tha.t .no plea, proof, or averment could be heard to the contrary. x x x. Any other rule, x x x, would be disastrous in 'its results, since to pe:cmit the court's records to be contradicted or va.ried by evidence dehors would render such records of no avail and definite sentence would afford but slight protection to the rights of parties once solemnly adjudicated. x x x. Cl Freeman on Judgments, Sec. 376, p. 789.> Deogracias T. Reves and ViruilW Am:. Cruz for appellant. Cala.nog and Alafrk for appellee. DECISION LABRADOR, J. : I\ n;-< This is an ap~eal .pl'Ol:l_ecuted in this' C~J\t} U,ainst two orders of the Court -.if First Instance '-of Bulacan, 1ssUtN::.,:1.n Case No. 116, G. L. R. 0, Rec. No. 12908, requiring t.h~-'~positor-appella.nt J,ueia 1rlilagrns Barretto to surt'fmdt?t' Transfer-;.'q~i:tificate of Title No. 14123, issued in the name of liihiano Bar1:etto;_J1!) that the same may be cancelled and a new one issut'd in lieu'. 'tlieie'Of in the Barn~ (If Azucena, Flor-de-Us and Til'so, J1·., all «slih1.f!..med Reyes, coc1wnr.rs of an undivided one..hal:i sha~·e, and !.U.Cia Mila&'l'08 Barretto as t.he ownt'r r.if the other half. The circumstances leading to tht" issuance of the said orders may be briefly stated a:s follows~ Bihia.110 Banetto died on February 18, 1936, and in the testat.e proceedings for the settlement of his estate, Salud Barretto and Lucia Milagros Banetto wer, declared as his children and heirs. Lucia Milagros Barretto was at that time a minor, 15 years of age, a.nd proceedings were instituted iri the same cou1·t CCsse No. 4988U for the appointment of her guardian, In the testate proceedings a pJ'Oject of partition was submitted, which was signed by Salud Barretto, Lucia Milagros Barretto (minol') and Maria Gerardo (surviving spouse>, the latte!.' signing "on her behalf a.nd as guardian for the Minor, Milagros Barretto," This project of partition was ap:r·roved by the court. It was filed in the Office of the Register of Deeds of Bulacan on May 22, 1940 but the transfer certificate of title over the prope1-ty in question was nevPr cancelled. His widow, Maria Gerardo, died on March 5, 1948, a.nd in the testate proceedings for the settlement of her estate, Lucia Milagros Barretto submitted a will purporting to be of !!'aid deceased for probate, in ac.. ccrdance with which Maria Gerardo had only one child with the deceased Bibia.no Barretto, namely. Lucia Milagros Barretto. Thi• will submitted by Lucia Milagi'Os Barretto was declared to be the last wit! and testament of the deceased Maria Gerardo. (Continued on page 253> 246 LAWYERS JOURNAL May 31, 19.54 DECISION OF THE PHILIPPINE PATENT OFFICE Menzi a.nd Co., Inc., Opposer, 11s. Andres Co, Respondent.Applicant, T. M. Dec. No. 10, s. 1952. TRADEMARK ACT; SOURCE OF OWNERSHIP OF A TRADE. MARK.-The ownership of a trademark sp1inga from its adoption an~ use. Ownership does not arise from its registration. Be who first adopts and uses a trademark ia considered the owner thereof CAct No. 666, secs. 2, 3 i Rep. Act No. 638, sec. 1; Recamier v. Ayer, 59 F <2d> 802, 806; Keystone v. Arena, 2'1 F. · Supp. 290, 293; McLean v. Fleming, 24 L. ed. 828>, IBID; EFFECT m• REGISTRATION OF A TRADEMARK.-Reg.istration produces for the owner of a trademark only proce. dural advantages in court - advantages which spring from the statutory declaration that a certificate of registration is prima facie evidence of the registrant's ownership of the ~rade mark, of his exclusive iight ·to use it on certain products, and of certain other matters <Rep. Act No. 166. see. 20; Act No. 666, sec. 16). IBID; ~'AILURE TO REGISTER ONE'S TRADEMAR\t-A person's failure to register his trademark under the Trademark Act does not a.fleet his rights of ownership over it. <Ansehl v. Williams, 267 F. 9, 14, and cases cited). Such. failure to register does not of itself result in the abandonment-and in· th• i·elinquishment of his proprietaTY rights. thereover. IBID; ABANDONMENT OF A TRADEMARK..-Abandonment Is a matter not only of the non-user of a tradema1·k but of the actual intent to abandon it, as well, both of which factors need be established by evidence by him who asserts it CAnsehl v. Wil .. lia.ms, supra; p. 13; Sexlehner v. Eisner, 45 L ed. 60; Wallace v. Repetti, 266, F. 307>. IBID; CLAIM TO THE EXCLUSIVE USE OF TRADEMARK.The claim to the exclusive use, or ownership, of a trademark is a continuing·right in the owner <Heger v. Polk, 4'1 F (2d) 966, 969 and cases cited>. IBID; MEANING OF THE TERM "MARX" AS USED IN SEC.. TION 8.-The bro&d term ''mark" used in Sec. 8 of the Trademark Act <Rep. Act No. 166, as amended> means a "trademark" or a ••sernce mai'k.'' mID; PERSONS WHO MAY OPPOSE REGISTRATION OF TRADEMARK.-There is nothing in the language of See. 8 of our statute that w~uld justify the interpretation that no person nia:v oppose a registration, unless he owns a trademark and that trademark il:i registered; and, if the same ia not regiatered, that he must ,at least, have uduaiH rights to it. The fact. that the statute di~ th&t copies of foreign certificates of registration should be attached to the opposition, does not necessarily mean that the ownership of a registered trademark or of an u111"egilitued exclusive trademark, is required 1 as a basis for opposition. All that appears necessary is that the opposer allege in the opposition that he is using something or other on his goods by way of a mark; that the trademark soug-ht to be registered by the applicant so closely resembles this mark, that he believes that he would be damaged by the registration of the applicant's trademark. IBID; UNFAIR COMPETITION; JURISDICTION OF THE PATENT OFFICE.-The Principal Register of the trademark statute. on whlch th& Respondent.Applicant seeks registration of his trademark Seli.orita, is not concerned with labels or their ap.. pearanees; it is concerned exclusively with trademarks. The appeara.nce of labels: falls under the law of unfair competiti~ not under the trademark law proper. Over matters of unfair competition, the Patent Office has no jurisdiction <Sec. T. 11. Dec. No. 2, s. 1951>. ORDER The Respondent-Applicant moves that the Opposition filed by thE Oppoaer be dismissed on the ground tha.t, upon the facts set forth in said Opposition, the Opposer is not entitled to oppose the registration in favor of the Respondent-Applicant of the trademark under dispute. The Respondent-Applicant has applied, undet' the current Trademark Act (Rep. Act. No. 11)6, as amended>, for the registration ,of a trademark, Seiwrita., which ha claims to have used on bobby pins since the year 1948. UJJder Sec. 8 of the Act, the Opposer ha.s opposed the registration upon the ground that it would be damaged by the said registration, having used the same trademark, Seiiorita., on identical articles, since the year 1932. The Opposer allege11 that its trademark Seiiorita ·was registel'(.'d in 1934 under the old trademark Act No. 666, which was repealed on June 20, 1947, by the current Trademark Act, Rep. Act No. 166, approved on the same date. It admits that the said trademark has not been re-registered under the current Act either under its Sec. 4Ha.> or as a new, original registration. It is because of this fact that the Opposer's trademark Se. 'liorita. has not been re-registered under the current Act, and because nobody, according to him, .can have exclusive rights to the designation Sefi.oritu., as UE:ed on bobby pins, that the Respondent-Applicant moves that the Opposition be dismissed. The Respondent-Applicant understands tha.t by its failure to re-register its trademark Seiiorita 'under the cui·rent Act, the Opposer should be deemed to have:: aL&J) .. doned and relinquished all its rights to said trademark: and, being deemed to have abandoned and relinquished said rights, it is now not entitled to oppose the registration of the same trademarkSdioriV.Z., for the same goods, to the Respondent-Applicant. The Respondent. Applicant also understands that a person who has no exclusive rights to a mark he is using on certain goods may not be allowed to oppose the registration, in favor of another, of the same mark used on similar articles. Whether or not the positions taken by the Respondent-Applicant a.re correct, is the issue for decision in this Order. The Opposer alleges that it is the owner of the trademark Sefiorita. The ownership of a trademark springs from its adoption and use. Ownership does not arise from its registration. He who first adopts and uses a trademark is considered the owner thereof <Act No. 666, secs. 2, 3; Rep. Act No. 638, sec. 1; Recamier·v. Ayer 69 FC2d' 802, 806; Keystone v. Arena, 2'1 F. Supp. 290, 293; McLean v. Fleming, 24 L. ed. 828). Registration produces for the owner of a trademark only procedural advantages in court - advantages which spring from the statutory declaratic.n that. a certificate of registration is prima. facie evidence of the registra.nt's ownership of the trademark, of his exclusive right Lo use it on certain produ~ts, and of certain other matters <Rep. Act No. 166, sec. 20; Act No. 666, sec. 16>. A person's failure tc. t"figil'ter his trad.?ll1ark under the Trademark Act does not affect his rights of ownership over it. (Ansehl v. Williams. 267 F 9, 14, nnd cases cited>. Such failui·e to register dot=s not of itself result in the abandonment and in the relinquishment of his proprietary· rights thereover. Abandonment is a matter not only of the non-user of a trademark but of the actusl intent to abandon it, as well, both of which factt>rs need be established by evidence by him who asserts it <Ansehl v. Williams, supra, p. 13; Ssxlehner v. Eisner, 45 L. ed. 60; Wallace''· Repetti, 266 F 807>. 'rhe claim t:o the exclusive use, or ownership, of :\ trademark is a continuing right in the owner <Heger v, Polk, 47 F l2d) 966, 969 and cases cited> • The claim, therefore, of the Respondent-Applicant that the Op1>oser has no right to make opposition in this case, because it bas Jost its propriehry rights to the trademark Seiiorita., through its failure to registe1· it under the current Trademark Act, cannot be sustained. The section of the cur1·ent 'l'rademark Act relating to opposition provides as follows: "Sec. 8. Opposition - Any person• who believes that he would be damaged by the registl'ation of a mark or tradename may, upon payment of the required fee and within thirty days after the publication under the first paragraph of section May 81, 1954 LAWYERS JOURNAL seven h.ereof, file with the Director an opposition to the BPpJication, Such opposition shall be in writing and verified by the oppositor, or by any person on his behalf who knows the facts, and shall specify t!;le grounds on which it is baaed and include a. statement of the facts relied upon. Copies of certificates of registration of marks or trade.names registet:ed in other countriel9 or other supporting documents mentioned in the opposition shall lie filed ther('with, together with the translation thereof into English, if not in the English language. For good cause shown and upon payment of the required surcharge, the time for filing an opposition may be extended for an additional thirty -days by the Director, who shall notify the a.pplicant of such extension.'' The broad term "mark" used in this Section means a "trademark'• or a ••service mark:" Sec. 6 of the U.S. Trademark Act of Feb. 20, 1905, declares: "Sec. 6. • • • Any person who believes he would be damaged bl' the registratio~ of ·a ma1·k 'may oppose the same by filing notice of opposition, stating the grounds therefor, in the Pa.. tent Office within thirty days after publication of the mark sought to be registel'ed, which said notice of opposition shall be verified by the person filing the same before one of the officers mentioned in section two of this Act. An opposition may be filed by a duly autholized attorney, but such oppo11ition aha.II be null and void unless vr.rified by the opposer within a reasonable time after such filing. If no notice of opposition is filed within said time, the com1nissioner shall issue a certificate of registration 1therefor, as hereinafter provided for.•0 " Sec. ·13 of the current U;S, Trademark of 1946, reads: "Any person who believes that he would hr. damaged l·Y the registration of a mark upon the principal i·egister may, upon payment of the required fee, file a verified notice of op~ position in the Patent Office, stating the grounds therefor, within thirty days after the publication under subsection Ca> of section 12 of this Act of the mark sought to be registered: For good cause shown, the time for filing notice o! opposition may be extended by the Conunissioner, who shall notify the applicant. An unverified opposition may be filed by a duly allthorized attorney, but such opposition shall be null and void unless verified by the opposer within a reasonable time aftl?r such filing to be fixed by the Conunissioner." There is nothing in the language of the above See. 8 of our statute that would justify the interpretation that no person may oppose a registration, uni.es& be owns a trademark and that trademark is registered; e.nd, if the same is not registered, that he must, at least, have ezclusive rights to it. The fact that the statute directs that copies of foreign certificates of registration should be attached to the opposition, does not necessarily mean that the ownership of a registered trademark pr of an unregistered exclusive trademal'k, is required as a basis for opposition. All that appears neces.;;e.ry is that the opposer allege in the opposition that he is using something or other on his goods by way of a mark; that the trademark sought to be registe1-ed by the applicant so closely resembles this mark, that he believes that he would be darna.ged by the registration of the applicant's trademark. Construing the above cited Sec. 6 of the U.S. T1·ademark Act of Feb. 20, 1905, the Court of Appeals of the Dist. of Columbia said in Broderk: v. Mitchell, 289 F 618, 619 U923) : "Section 6 of the Trade-Mark Act <Comp. St. § 9491>, as construed by this court in Arkell Safety Bag Co. v. Safepack Mills, - App. D. C. -, 289 Fed. 616, decided at this sitting, gives the right to any one who believes that the mark of an applicant would damage him the right to oppose its regiBtration. In order that he may maintain his opposition it is not necessary tha.t he should have a registered mark, or one that ia f"egisterable. Atlas Underwear Co. v. B. V. D. Co., 48 App. D. C. 425 Mcllhenny Co. v. Trappey, 51 App. D. C. 216, 277 Fed. 615. If the mark of the applicant is so nearly like his as to be likely to lead intending purchasers to believe that the goods of the applicant were put out by the opposer, and to buy them on that assumption,. thereby damaging the latter, the s~atute a.ffords him a right to object to the applicant's mark being registe1·ed. It may be that the opposer ia not enUtled to the e~clusive use of his mark. None the less he has the right to resist thE> applicant's attempt to appropriate to himself !ts exclusive use where, as here, the use of the two marks would probably deceive" (underscoring supplied> In another case, To1iraine v. WMhburn, 286 F 1021), 1022 <1923)-, the same court said: · "The trademark statute (section 6, 33 Stat. 72&> is our cha.rt. There is nothing in it which says that a person must own a trademark, i-egistered or not, before he can oppose the registration ol the mark of another person. All that the sta.. tute requires of him, according to ou·r interpertation, is to prove facts, which, if true, would tend to show that be would probably be damaged by the registration." To the same effect are the decisions in the following casi:s: California. Cyanide v. American C)l'anamid, 40 F<2d> 1003, 1005 <1930>; Trustees v. Mccreery, 49 FC2d) 1068, 1071 ll93U; Helsherg v. Katz, 73 FC2d> 626, 628 <i934>; Pep Boys v. Fisher, 94 FC2d> 204, 209, 0938); Vi-Jon v. Lentheric, 133 FC2d> 947, 948 C1943>; Weinberg v. Riverside, 76 USPQ 218, 219 0948; Juilla.rd v: American Woolen 77 USPQ 21, 22 (1948>; Raymond v. Duart, 77 USPQ 662, 663 0948); First Industrial v. Pierece 78 USPQ 152 <1948); Gq:ldring v. Adler, 78 USPQ 290 Cl948>; Denny v. Elizabeth Arden, 79 USPQ 214, 215 (1948); Seeck v. M,)ran, 84 USPQ 249, 250 0950); Packwood v. Cofax 86 USPQ 410, 413 (1950); Noma Electric v. On-A-Lite Corp., 92 USPQ 283 C1952l. In the cited Packwood v; Cofe;c case (1950> the U.S. Court of CusWms and Patent Appeals said: "Appellant, as the opposer, to the registration of a trademark is entitled in such proceedings to rely not only upon its previously registered trademark, but also upon tradenames and designs previously used on labels end in adverlising literature in a, 1.1z.anner analogOU8 to a trade'lnark use. <Wood v. Servel,) 77 F<2dJ 946, 25 USPQ 488; Virginia Dare v. Dare, 70 F<20.> 118, 21 USPQ 334)'' <underscoring supplied> The objection, therefore, that the Opposer has no right to make opposition because it has no exclusive rights to the designation Seiiorita, as used on bobby pins, cannot be sustained. · Another ground advanced by the Respondent.Applicant for the dismissal of the Opposition is that the label bes.ring his Seiiorita and the label displaying the OppoS1er's Seif.orita, are so distinctly dissimilar in appearance that the use of both trademarks cannot possibly produce any confusion in the public mind, and cannot, therefore, damage the Opposer. . The Principal Register, of the tradema1·k statute, on which the Respondent-Applicant seeks registration of his h·ademark Sefiorita, is not conc.erned with labels on th~r appearances; it is concerned exclusively with trademarks. The appearance of labels falls under the law of unfair competition, not under the trademark law proper, Ove1· matters of unfair competition, the Patent Office has no jurisdicfion <See T. M. Dec. No. 2 s. 1951). Bec&USe the Patent Office has no jurisdiction over the appcar:!lnce of labels, it does not take the same into accoun_t when considering whether or not a given trademark is registerable. Besides, what assurance is the1-e that the appearance of the label bearing the trademark sought to be registered would not be cha.nged, in the future, by the applicant? In Tungsten. etc, v. S1treline, etc., 79 USPQ 272, 2'73 <1948), the U. S. Conunissionei· of Patents said: .. Applicant emphasizes the fact that in actual use the marks of the parties are applied to packag~s, ¥d that the packages of the respective parties are entirely different in co!br, type· of printing and general appearance. The record clearly discloses that there is no similarity between these packages. The question involved in this proceeding is, however, limited to applicant's right to register the mark shown in its applica.tion. While applicant has used this mark for a considerable pel'iod CCon.finued on page 259> 248 LAWYERS JOURNAL May 31, 1964 OPINIONS OF THE SECRETARY OF JUSTICE / OPINIO~ NO. 26 fwpinfon on tlw questioii aa to wMthe-r or not ths office of the National Bureau of ln:vestigation is 't'equired to obtain a permit ft't>m tftt Directtw of Health for an ezhu1na.tion of a dead body in the course of kgtil investigation conducted b71 it.) · Respectfully returned to the Director, National Bureau of Investigation, Manila. Opittion is requested on whether or not that Office is required to obtain a permit from the Director of Health for an exhumation of d~a.d bodies in the course of a legal investigation conducted by it. Section 1082 of the Revised Administrative Code declares that it shall be unlawful to "disinter a human body or human remain.c;, until a permit thf!refor, approved by the Director- of Health, shall have been obtained." And Section 1095 of the same Cod~ reads: 0 Sec. 1095. Permit to disinter after three years - Treatment of l'E'.mains. - Permission to disinte1; the bodies or remains of persons who have died of other than da.ngerous eammunico.ble disease, n1ay be granted after such bodies had been buried for a period of three years;. and, in special eases, the Director of Health may grant permission to disinter after a shorter period when in his "Pinion the publi<: health will not be endangered thereby. ''xx x." It has been averred tha.t said sections are not applie&ble to cases where exhumation has to 1'e done for an auto.psy by any of the person& authorized k• do so in the course of a legal investigation, But the language of the above-quoted sections are clear and ab'401ute in terms and admits of no exception. Nor 1D2.J any exception to said requirement be found in any t'Jf the provisions dealing with leg~l investigations. Therefore, such an· exception cannot be read iii.to the law. This is so because the purpose of the requirement of said permit is the protection of the public health which may not be sacrificed. even where a legal investigatJon is being conducted. It has also been contended that Section 1089 of the ~vised Administrative Code which describes tile proceedings to determine the cause of death in ease of suspected violence or crime and which prohibits the burial or interment of the deceased unless permission is obtained from the provincial fiaeal or from the municipal mayor is an exception to the requirement of r. permit in Sections 10112 and 1095, above-mentioned. But the former cannot funrlsh on exception to the latter beea.use they cover different subject matters -while section 1089 deals with the proceedings before the burial of a. person, sections 1082 and 1095 deal with exhumation 01• disinterment after burial, Reference has furthermore been made to aectiona 983 and 1687, as amended, of the same Code, The first authot'izes the district health officer, upon request of the provincial fiscal or Judge of First Instance or justice of the peace, to conduct, &n i11VE:stigation into the cause of auspicious death; the second authorizes the provincial fiscal to investigate the cause of sudden death not satisfactorily explained and to cause an autopsy to be made for purposes of such investigation. It has been stated that to require a permit from the Director of Health for every exhumation in the course of legal investigations authorized by these sections would be to rende1· abortive the powers granted to the officials mentioned therein, But the undersigned sees no inconsistency between the grant of powers in said sections and the requirement of the permit ln sections 1082 and 1095. Whatever little delay may be caused by the compliance with such requirement is more than compensa.ted for by the consequent protection to the public health. The undersigned is therefore of the opinion that the query should be answered in the affirmative. <Sgd.) PEDRO TUASON Secretary of l uatiee II OPINION NO. 28 ion as to whethe-r X-f'a'I/ films iniported by the c edical IYLc. for tile A'l'ined FOTces of the Philippines should be uem.pted from customs duties.) 1st lndorsement Febru&ry 10, 1964 Respectfully returned to the Honorable, the Secretary of Finance, Manila. In a bidding conducted by the Office of the Surgeon General, AFP, the Oceanic Medical Inc. was awarded the contract .to furnish said office with X-ray films to be imported from Belgium, the delivery of which was to be made 160 days from the approval of the ICC license. The winning bidder was given Purchase Order& Nos. 287-FY-53 and 288-FY-58, both dated March 3, 1953, and the goods were imported under Letter of Credit No. 56858 dllted August 10, 1953. It is now claimed that this importation of X-ray films should be exempted f1·om the 25% ad Valorem dutY in· view of the provision in the Genera.I. Appropriation Act that "aU purchases . made by the Armed Forces of the Philippines exclusively for military purposes shall be tax free." (Par. 11, P. 632, Rep. Act No. 816.; K-VI-(9), Rep. Act No. 906) The opinion of this Office is accordingly requested on whether or not such exemption ni.ay be granted. In a previous opinion dated August 13, 1953 (Op., Sec. of Jus'., No. 160, s. 1958), this Office h~l'.'.1 that the word "taxes". as used in Republic Act No. 901 includes customs duties. By' parity of reasoning, it would follow that exflDption from. taxes of purchases made by the Armed Forces exclusively for military purposes should a.lso be deemed to include exemption from customs duties on purehas:es made by it from abroad. In the purchase under consideration, it appears that in his bid tender, the bidder agrees that "all pertinent parts of the General Conditfons contained in the GENERAL CONDITIONS 01<' THE INVITATION TO BID dated March 5, 1952, are made part and apply to this agreement." One of such conditions re.ads as follows: "8. QUOTATIONS••a. All quotations shall include all taxes, levies, fees, charges, arrastre, etc .. "incident to delivery to the AFP depot. "b. xx x :JI.xx "c. In ease the item under procurement will still have to be imported abroad, the AFP may facilitate the Import Contro~ License. TM dealer in this ease shall specify in his tender that the AFP shall apply for the ICC License &nd that the corresponding quotations shall exclude all taxes and fees to which the AFP sha11 be exempted," It is to be noted from the above conditions that the quotation of a bidder includes all taxes, except that in the case of articles to be procured abroa.d, the dealer Shall specify in his bid tender that his quotation excludes all taxes and fees to which the Armed Forces .shall be exempted. The bid tender of the O~nie Medical Inc. is not entitled to a refund of the import duties it has paid on the importation of X-ray films in question. However, it has been represented to this Office that there was a verbal agreement between the Oceanic Mediea) Inc. a.nd the Office of the Surgeon General, . .t\FP, that the prices quoted by the former were exclusive of customs duties, i.e., that the importation would be duty.free, While such unwritten understanding may not modify the express conditions of the agreement, it is felt that if it really existed, it is still in the sourid disCretion of the Customs authorities or the Secretary of Finance to waive the failure tt'J em. body the exemption on the bid, and extend the relief asked for by the importer in fairness to the latter, If the' Secretary of Finance wishes to consider the ease in this light, then the problem resolvP.s itself in~ the truth of the alleged verbal agreement, the reason why May 31, 1954 LAWYERS JOURNAL 249 such vital stipulation was not made a part of the ·written one, the effect of the omission on the other bidders; a.nd related matters. <Sgd.) PEDRO TUASON Secretary of Justice . OPINI~~ NO. 30 he question as to what should be the salarv of . 1 g of the municipal <"OUf"t of Dagupa.n Citg.) 4th lndorsement February 4, 1964 Re~pectfully returned to the Honorable, the Auditor General, Manila.. The within papers refer to a query of the City Auditor, D~gu pan City, as to what should be the salary of the Judge of the Municipal Court of thnt City. The Judiciary Act :Jf 1948 fixes the salary of the Municjpal Judge of Dagupan City at P3600.00 per annum. Thie was increased to P6100.00 by Republic Act No. 840 which took effect on July 1, 1962. On June 24, 1953, Ordinance No. 34 of the Municipal Boo.rd of Dagupan City was passed appropriating a certain sum of money to pay the salary differential due officials of the City, including the Municipal Judge, corresponding to the period from July 1, 1952 to J'une 30, 1963. On May 6, 1963, however, Republic Act No. 848 was enacted and took effeot on the same day expressly reducing the salary of t:he Municipal Judge of Dagupan City to P4200.00 -per annum. Fina.Uy, on June 20, 1953, Republic Act No. 924 standardizing the salaries of all judges of Municipal Courts too!.: dfect. Section 1 of which expressly provides as follows: "Section 1. The annual salary of each of the Judges of the Municipal Courts of the chartered cities shall bf' the follewing: · (a) Of the qity of Manila, nine thousand pesos; <b> Of all other cities, the salary fixed for each of the Judges of Municipal Court.a by Republic Act numbered Eight hundre:I and forty or by RepuLlic Act numbered Eight hundred a.nd forty. three. which 611t1" is the higher.'' The Municipal Board of Dagupan City, When it enacted Ordinance No. 84, did not fix the salary of the Municipal Judge thereof at P5100.0. per annuq:i, because that amount was fixed by Republic Act No. 840. Said Ordinance merely appropriated money to oover the sale.TY differential due the different officials of the City by i-eason of th• increases provided by said Republic Aet No. 840. The provision of Republic Act No. 843 which, in effect, reduces the salary of certain specified Municipal Judges from P5100.00 as fixed by Republic Act No. 840 to P4200.00 per annum cannot apply to the Municipal .Judge of 'nagupan City because of the exp~-esa prohibition in Section 9, Art. VIII of the Constitution against the diminution of the compensation of Judges during their continuance in office. So that notwithsta.nding the approval of Republic Act No. 843, the salary of the incumbent Municipal Judge of IJ<:t.gupan City remains P5100.00 per annum. Therefore, Republic Act No. 924, inspfar as the Municipal Judge of Dagupan City is concerned, merely confirms the rate of his salary a.a fixed by Republic Act No. 840. <Sgd.) JESUS G. BARRERA Undersecretary nf Justice / OPINIO~ NO. 39 (opinion on the question. as to whether or not the eztention of the ezpif'tltion date of ICC no-dollM remittance lWeme is fegal.) 2nd Indorsement February 25, 1964 Respectfully returned to the Honorable, the Secretary of ForeiR'D Affairs, Manila, inviting attention to Section 2 of Republic Act No. GbO, otherwise known as the Import Control Law, which reads as foUows: 11Sec. 2. The import license provided for in 1Jeetion one of this Act shall be issued by the President of the Pitilippines th1'0ugh such existing board or instru.rnentality of the Gov.!rnment as he may choose or create to assist him in the execution of this Act, No other government instrutp.entality or agency shall be authorized to qualify or question the validity of any license so issued. Questions of legality and interpretation of any license shall be decided exclusively by said board or instrumentality subject to a.ppeal to the President." Inasmuch as the question raised herein involves the }egiJ.lity cf the extension of the expiration date of ICC no-dollar remittance licem1e No. 14880, it is believed that the matter should be decided by the Office of the President in accordance with the above.quotc.-d provision of law. It may be pointed out, however, that there is no provision in Republic Act No. 660 fixing the period for the validity of an import license. It Is i>nly provided that "unless extended in accordance with the rules a.nd regulations, import licenses issued under the Aet and which are not used within thhty days after their issue by the opening of a letter of credit or a similar tranSllction shall be null aud void" <Sec. 8). In Resolution No. 70 dated March 27, 1952, the Import Ccntrol Commission "decided that all licenses issued by the ICC since January 1, 1952, are gl'anted a six.month validity period fl'om the da.te of validat.ion indicated in the lower left hand corner of the license application, prov1ded that the corresponding let~rs ~f credit were opened within thirty days of re19se t11e1·eof." The license in -question having beeil issued and validated on May 18, 1953, its expiration date Should have been November 18, 1963. However, there appears to be certain i·egulations of the defunct ICC which authorized the extension of the validity of an import licei1se, This Office has been una.ble to procu1•e a copy of the rules regarding such ·extension but the within papers sufficiently - indicate the existence .. of rules allowing .extension of import licenses. Thie is shown by ICC Form No. 102, whic!h was the fol'.111 used for rt.quest;.. ir1g license amendment, or extension, a copy of which is atb.iched herewith and on which appears the approval of the extension_ of the import license in question "for another six months so that it will <':Xpire on May 18, 1954." It is also to be observed that Scct(on 8 of Republic Aet No. 650 a.utholizes t.he extension of import licenseH "in a«orda.nce with the ruleH and ngulations." <Sgd.l PEDRO TUASON Secretary of Justice . OPINIO~ NO. 40 e question a.s tfl wl1etJuw or not a certain Chinese may seek ca.tu:ellahon of his aJtf!n certificate of registration on the ground that he is a. Filipino citUen.) 2nd Indorsement January 25, 1954 Respectfully returned to the Commissioner of Immigration, Manila. Jose Ching Muy alias Ching Muy seeks the cancellation uf his a.lien certificate of registration on the ground that he is. a Filipino citizen, Petitionel' .avers that he was born in Amoy, China, on Jaly 16, 1926, the son of Tan Sue, a Chinese woman, and Calixto Lugmoe, a }'iii pi no; that he arrived with hill mother in the Philippines on January 18, 1988, and he was admitted by the Board of Special Inquiry as the son of Calixto Lugmoc a.s "P.r. citizen" (&'le Identific8ti0n CertifiC&te No~ 167-40, is9Ued on February 6, 1940); and that ·he we"nt to· China in 1946, returning to this country in the same year, by means of a reentry permit. He is married to Ya9 250 LA WYERS JOURNAL May 31, 1954 Sio Ang, with whom he has a child named Ching Uy, both now in Amoy, China. It is further averred that petitioner and his father were registered as Chinese nationals in 1941; and that Calixto J,ugmoc and Tan Sui both died during the Japanese occupation in San Pablo City. To prove that his father is a Filipino, petitioner adduced the following documents: (1) Landing Certificate of Residence issued to Calixto Lugmoc on September 12, 1918, which describes him as the s.in of Teodora Lugmoc, a Filipino; (2) his residence certificates issued in 1941 and 1948; <8> see Exhibit •icn and ''D' showing th&t he ·is a Filipino; s.nd (4) his baptismal certificate <Exhibit "A") which recites that he was born in Kawit, Cavite, on October 14, lP~S. baptized on October 18, in the same year, as the illegitim&tc son oi Teodora Lugmoc by an unknown lather. This document having been issued prio?' to the change of sovereignty, is a public dor.umcnt, and m'ay be u111ed _for the purpose of establishing the faets to which it relates <U.S. v. Orosa, 2 Phil. 247 and U.S. v. Evangelista, 29 Phil. 215> . That Calixto is the son of a Filipino citizen finds corroboration in the testimony o( Dorotea Ocampo, 80 years' old, and resident of Barrio Anibang, Bacoor, Cavite, to the effect that Teodora Lugmoc, a Filipina, lived under the same roof with a Chinaman named Sy Wa, with whom he had a. son named Calixto. The foregoing evidence~ in the opinion of this D\lpartment, sufficiently proves that Calixto Lugmoc is a Filipino citizen. As regards, however, the relationship of petitioner Ching Muy to Calixto Lugmoe, this Department finds no competent evidence to prove his filiation. He has not presented his birth or baptismal certificate which would ordinarily constitqte the best proof of his parentage and filiation. True, he baa presented an identification certificate issued by then'. Secretary Of Labor in 1940 in which he is mentioned as thf'_ son of Calixto Lugmoc, but evidently, this can .. not be deemed as sufieient evidence of his true filiatian. Dorotea Ocampo, the only witness presented during the investigation, testi .. fied that he does not know the petitioner herein to be the grandson ol Teodora Lugmoe. Under these circumstances, a.nd considering the far.reaching consequences of a declaration of Philippine citizenship, this Department is not convinced that petitioner Ching Muy is the son of Calixto Lugmoc. Premises considered, this Department holds that Jose Ching Muy alias Ching Muy is prima fade a Chinese citizen, it being admit.. ted that he was born of a Chinese mother in China.. His alien certificate of registration should nc-t be cancelled. <Sgd.> JESUS G. BARRERA Undersecretary of Justice · VI / OPINION NO. 46 ~~~o~~ tlie question as to whether or not e City Health O/fker is entitled to an addib°0tlal C()mvensation under Section .~ of Rtpublic Act No. 840 in his capa.ci't1J a.s 8%-officio Local Civil Registrar.) 2nd lndoreement March 5, 1964 RespeetfuJly returned to the Civil Registrar-General, Bureau of Census and Statifi:ics, Manila, Opinion is requested on whether the City Health Officer of Cabanatuan City is entitled to additional compensation under section 4 of Republic Act No. 840 in his capacity as ez-o/ficio Local Civil Registrar. The above.cited provision reads in part as follows: "See. 4. Unless the corresponding city charter provides for a higher rate of additional compensation in cases whero the charter of a city provides for ez-offici.o officials, such offi.. cialB, except the ex-officio city councilors, shall receive addi.. tional compensation which shall not exceed the following: "In first and second class cities; for city engineers and city fiscals, one thousand six hundred pesos; and for city auditors, city hea.lth officers, city alSeSsors and superintendents of citf schools, eight- hundred pesos per annum." A ea.reful reading of the above-quoted legal provision will readi .. ly show that the officials entitled to additional compensation at the rates therein fixed are those holding the positions of city en .. ~neer, city fiscal, city auditor, city health officer, city assessor and superintendent of city schools in an e:e~oflicio capacity, i.e., in addition to their regular duties as incumbent of a separate office, This conclusion is manifest from the lact that city treasurers a:rc. n'lt included in the enumeration, the reason being that in no chartered city is the position of .city treasurer held in an ez~officio capacity. Assuming, therefore, that the city Bes.Ith Officer of Cabanatuan ·- is also ez-ofjicW Local Civil Registrar for the city - a poi:at which need not be decided in this opinion - his claim must fail for the reason tfiat the office of Local Civil Registrar is not among those specified positions which, if held in an e.z-officio eaimcity, would entitle the incumbents to additional compensation under the statute. Epressio unius est e%clwrio alteriua. (50 A1n. Jur., 288> Wh£refore, the query is answered in the negative. <Sgd.> PEDRO TUASON Secretary of J' uRice / OPINI~: NO. 47 fcOpinion on the question as to whether or not action fO'I' deportation agai,nst three Indonesians under section .'Jr (a-1) of the immigration Act, tzs Mltended, liad, pursuant to sect.i0tt S?(b) of said Act, prescribed. at the time of their apprehension by the Philinriru NtJAJy sometime in August, 1958.) 2nd Indorsement March 8, 1954 Respectfully returned to the Commissioner of Immigration, Manila. It appears ;;hat Ali Amir, Juhuri Abdul Rahim, and M11.ldia Hadji Jassan, Indonesians, entered the Philippines illegally sometime in 1940, 1942, and 1946, respectively, thru Sitangkai, Sulu, Opinion is requested on (1) whether the action for deportation agaiMt t.hern under section S7<a> (1) of the Immigration Act <C.A. No. 618), as amended by <Rep. Aet No. 508), had, pursuant tc section 87(b) of the same Act, prescribed at the time of their ap.. r•rehension by the Philippine Navy sometime in August, 1958, and, (2) in the aftirmativa case, whether the said aliens may apply for the legalization of their residenCP in the Philippines under sectio'l 41 of the same Act. The aforementioned section 87Ca> (1) authorizes the arrest and deportation of "any alien who enters the Philippines after. the effective date of this Act without inspection and admission by the immigration authorities at a designated port of entry or at a placfl other than at a designated port of entry." And section 87(b) ordains that deportation under section 37(a) (1) shall not be ef .. fected unless the arrest in the deportation proceedings is made within five years after the cause for deportation arises, i.e., within five years after tl1e illegal entry. Ali Amir entered the Philippines in 1940 - before the date of effeetivity of Commonwealth Aet No. 618 on January 1, 1941. Therefore, the above.cited provisions do not apply to him. He, however, comes within the purview of section 45(d) of the same Act which penalizes as an offense the act of an alien in entering the Philippines without inspection and admission by the immigration officials. Upon conviction of such offense, the alien may be fined not more than one thousand pesos, and imprisoned for not m'lre than two years and deported <C. A. 618 as amended by ft. A. No. 144>. No prescriptive period for the action having been fixed by this provision, the general law fixing the prescriptive periods for vioJations of special acts applies. (.Act No. 8826). Under said Act. offenses punished by imprisonment of not inore than two years prescribed after four years (sec. n, to be counted fron1 the day of the commissi<m of the offent=:e and "if the same be not known at the time, from the discovery thereof and the 'institution of judicial proceedings for its investigation and punishment" Csec. 2). The unlawfill entry ":C the lndonesiana :having been discovered only in May Sl, 1954 LAWYERS ~OURNAL 261 August, 1958 wh~n they were apprehended by the PhilippiM Navy, Ali Amir may still be prosecuted under the above-mentioned section 46 Cd> and, if found guilty, deported, as part of the penalty therefor. As to the other two Indonesians, since they arrived in 1942 and 1945, <after the date of effectivity of C. A. No. 613) respectively, e.nd since more than five years have elapsed betwttn nid d1.1tea of entry and their apprf.lhension by the Philippine Navy, deportation proceedings may no longer be brought against them un~ der section 37Ca> CU and 37Cb>. Nevertheless, being pereons not properly documented for admission, they are among the aliens excluded from entry into the Philippines vnder section 29Ca)(17) e;f the same act. As such, they come within section 37Ca) <2> of the same Act which authorizes tfu;; arrest and deportation of any ''alien who enters· the Philippines after the effective date of this Act who was not lawfully admissable at the time of his .:mtry. •• And under section 37<b>, deportation may be effected on this ground at any time after entry. Thus, pursuant to these p1'0visions, deportation proceedings may still be b1·ought against Juhari Abdul !ta.him and Maldia Hadji }1assan, in addition to criminal procP.edings under the aforementioned section 45(d) of the same Act. This renders unnecessary a consideration of the second query. <Sgd.) PEDRO TUASON Secretary of J ustlce VIII OPINION NO. 48 / (Opinion 118 to wheth61" or not •J policeman of tempoTary appo£·1it .. ment is entitled to the fJf'Oceeds of the government service insurance policy.) The General Manager Government Service Insurance System Manila March 6, 1954 Sir: . This is with reference to your request for opinion as to whether llr not Mr. Valentin. G. Santos is entitled to the proeeeda of bis insurance policies which matured last February 28, 1952, comlidering that his service record shows that his appointment was of a temporary nature. Mr. Santos is presently a policeman of Hagonoy, Bulacan, having been appointed as such in Januaey 1937. On February 28, 1941, the Municipality of Hagonoy became a member of the Government Service Insurance System and upon the certification made by the Municipal Treasurer that his employment was of a permanent nature, Mr. Santoa was insured with the System, and Original Policy No. 87942 and later its supplements A, B, and C were issued to him. Be paid his premiums religiously until February 28, 1952 when said policy matured. While the cla.im for the proceeds thereof was being processed, it was found from his service record, which was certified correct b:V the Commissioner of Civil Service, that bis a~intment was of a temporary nature, for which reason, the Auditor of the System refused to pass audit payment of said proceeds, contending that, a.a Mr. Santos was not eligible for membership in the System, the policies issued to him were null and void. Section 4 of Commonw~.alth Act No, 186, as amended by Republic Act No. 660, relied upon by the Auditor of the System in ~isallowing payment Of the Insurance proceeds in question, provides in part as follows: ''Ca) Membership in the System shall be compulsory upon all regularly and permanently appointed employees, including those whose tenure of office is fixed or limited by law; upon all teachers except only those who are substitutes; a.nd upon all regular officers and enlisted men of the Armed Forces of the Phi1ippines: P1'0Vided, That it shaU be compulsory upon regularly and permanently appointed employees. of a municipal government below first class only if and when said government employee has joined the System under such terms and conditioos as the latter may prescribe." Without deciding whether under the above-quoted provision - which speaks of compulsory insurance - temporary employees may be admitted as members into the Government Service Insurance System, the principle of estoppel precludes the insurer from contesting the validity of a policy after an employee bad actually been insured without any fault on his part and paid all the pre.. miums stipulated in the contact. It is a universal and statutory rule that a. party may not deny a state of things which by his culpable silence he has led another to believe existed; if the latter in good faith acted on that belief. So it has likewise been uniformly held that it would be unconscionable to allow a person to maintain a position inconsistent with one in whiCh he acquiesces 01· of which he accepted benefits <15 Words and Phrases, 271>. As a matter of fact, the original policy conta.ins, in 2-ecognition of the above principle, the following standard p1'0visions: "This policy shall be incontestable from t:he_ date it takes .effect except for non-payment of premiums, x x x." This clause alone is con.. elusive and answe1·s the question pt'Opounded without necessity of discUBSion . I have the honor, therefore, to answer the query in the A.ffirmative. <Sgd.) PEDRO TUASON · , Secretary of J ustiee - o - - . IX / OPINIO~ NO. 49 ' (Opinion o" the question 118 to whether or not the ofrtcWJa of nu.tnicip1ilitiea CTeated by e2:ecutive OTdet- under Section 68 of thti Revised Administrative Code and appcrinted by the President pending the holding of tA1:1 nnt ngular electiot1 ma.y be removed fre>m office a.t pleasu.r6 OT only fO'I' cause in. accordame with the fJ1'0Cedure fJf'escribed in. Section 2188 et seq., of the Revised Admin.ist.rati11e Code.) T!le Honorable The Executive Secretary Manila Sir : March 5, 1964 This is in reply to your request for opinion on whether the officials of municipalities created by executive order under .Section GS of the Revised Administrative Code appointed by the Preirident 1>ending the holding nf the next regular election may be ren1<r.•ed from office at pleasure, or only for cause in accordance with the procedure prescribed in Sections 2188 et ~eq., of the Revised Administrative Code. You made mention of the particular case of the municipality of Balingoan, Oriental Misarnis, which was created by Executive Order No. 490 dated February 2, 1952, out of a part of the municipality of Talisayan, same province. The first mayor, vice-mayor and councilors of the new municipality were appointed by the former President pursuant to Section 10 of the Revised Election Code which i·eads in part as follows: "Filling of elective llftices in. a new division. - When a new political division is created the inhabitants of which are entitled to participate ill the elections, the elective officers thereof shall, unless otherwise provided, be chosen at the next regular election. In. the interim such offices shall, in the discretion of the President, be filled by appointment by him or by a special election which he may order." Upon the change of administ1:ation, that office removed the mayor of Balingoan and appointed another person in his place. It is further alleged tha.t the incumbent mayor is not willing to sur1·ender his office "without due process of Jaw." In the opinion 'lf this Department dated January 16, 1954 •Op., Sec. of Jus., No. 6, s. 1950), it wa.s ruled that the provision contained in Republic Act No. 629 which created the Municipclity of Palanes, Masbate, that "the first mayor, 'vice-mayor and councilors of the .Municipality of PaJanes shall be appointed by the President ol the Philippines and shall hold o,ffice until their Sll('cessors shall hav'1 been elected and he.ve qualified" fixes a definite term of office for the officials named and they may not therefore be removed except for any of the causes provided. by Section 2188 262 LAWYERS JOURNAi, May Sl, 1954 SUPREME COURT ... (Continued frorn page 246) Reyes presented the petition for the cancellation of the transfer certificate of title in the name of Bibiano Ba.rretto on March 19, 1951 in Case No. 116, G. L. R. 0. Record No. 12908. Lucia Milagros Barretto filed an opposition, claiming (al that the project of partition approved by the court in the proceedings for the settlement of the estate of Bibiano Barretto is null and void, beeausP it appea.rs therefrom that Lucia Milagi:os Barretto was a minor at the time she signed the said project of partition~ and Maria Gerardo was not authorized to sign said project on her <Milagros Barretto's) behalf; and (b) that in accordance "ith the will of the deceased Mari& Gerardo, Salud Barretto was not a daughter of Bibiano Barretto and Maria Gerardo, because only Lucia Milagros Barretto was the daughter of the said spouse. The lower court overruled the above objections and issued the orders mentioned above; so Lucia Milagros Barretto prosecuted this appeal. Under our rules of procedur~, the validity of a judgmeii.t or r,rder of the court, which· has become final and executory, may be attacked only by a direct action or p1·oceeding to annul the same, or by motion in another case if, in the latter case, the court had no jurisdiction to enter the order 01· pronounce the judgment.<Sec. 44, Rule 39 of the Rules of Court) . The first proceeding is a direct a.ttack against the order or judgment, because it is not incidental to, but is the main object of, the proceeding. The other one is the collateral attack, in which the purpose of the proceeding is to bb .. tain some relief, other than the vaca.tion or setting aside of the judgment, and the attack js only an incident. <I Freeman on Judg .. ments, Sec. 306, pp. 607 ... 608.) A third manner is by a petition for relief from the judgment or order as authorized by the statutes or by the rules, such as those expressly provided in Rule 88 of the Rules of Court, but in thia case it is to be noted that the relief is granted by express statutory authority in the same a.ction or proceeding in which the judgment or <1rder was entered. In the ease at bar, we a1-e not concerned with a relief fa11ing under this third class, because the project of partition was approved 'in the testate proceedings in the year 1989, whereas the petition in this case is in a registration proceeding and was filed in the year 1961. In the case at bar, the respondent Lucia Milagros Barretto is objecting to the petition by the second method, the collateral attaek. When a judgment is sought to be assailed in this manner, the rule is that the attack must be based not on mere errors or defeets in the order or judgment, but on the ground that the judgment or of the ReviBP.d Administrative Code. I believe that this ruling applies to the instant case. It is true that Executive Or.der No. 490 did not expressly provide that the first ,mayor, vice.mayor and councilors of. the Municipality of Balingoe.n, Oriental Misamis, who were appomted by the President were to hold office until their successors would have been elected and qualified in the next regular election. But the determining factor is not the terms of the executive order or the appointments, but the provision of Section 10, a:nte. This section makes no distinction btttween municipal officers chosen by election and those chosen by appointmeu.~. and now appears to have been intended. In the absence of any express or implied provision t.o the contrary, it must be concluded that the tenure of a.11 offices ereated by said Section 10 is the same m all cases. There is no plausible support for the theory that the Congress did not intend to place appointive officers Of new inunicipalities on the same ltvel as elective ones. It ia accordingly my opinion that the incumbent municipal ma.. yl"Jr of Balingoan, Oriental Misa.mis, may not be re:moved from office except for any of the causes prescribed in Section 2188 of the Revised Administrative Code. ' Respectfully, <Sgd.) PEDRO TUASON Secretary of Justice order is nuU and void, bees.use the court had no power or authority to grant the relief, or no jurisdiction over the subject matter or over the pa1·ties OL' both. <Ibid, Sec, 326, p. 650.) In cases of collateral attack, the principles that apply have been stated as f.::illows: "The legitimate province of coIIateral impeachment is void judgment. 'fhere and there a.lone can it meet with any mea.. sure of success. Decision after decision bear.S this import: In every case the field of ·collateral inquiry is narrowed down to the single issue concerning the' void character of the judg~ent and the assailant is called upon to satisfy the court that such is the fact. To compass his purpose of overthrowing the judgment, it is not enough 'lihat he show a mists.ken or erroneous decision or a record. disclosing non..jurisdictional .irregularities in the pro.ceedings leading up to the judgment. He must go beyond this and show to the court, generally from the fact of the record itself, that the judgment complained of its utterly void. If he can do that his attack will succeed for the cases leave on doubt respecting the iight of a litigant to collaterally impeach a judgment that he can prove to be void." Cl Freeman on Judgments, Sec. 822, p. 642'.) Is the order approving the project of partition absolutely null and void, and if so, does the invalidating cause appear on the face of sa.id project or of the reeo1·d? It is argued that Lucia Mi1agros Barretto was a minor when she signed the partition, and that Maria Gerardo was not her judicially appointed guardian, The c1aim is not true. Maria Gerardo signed as guardia.n of the minor, and her authority to sign can not be questioned <Secs. 8 and 6, Rule 97, Rules of Court) . The mere statement in the project of partition that the guardianship proceedings of the minor Lucia Milagros Barretto are pending in the court. does not mean that the guardia.n had not yet been appointed; it meant that the guardianship proceed .. ings had not yet been terminated, and as a guardianship proceedings begin with the appointment of a gus.rdian, Maria Gerardo must have been already appointed when she signed the project of partition. There is, therefore, no irregularity or defect or error in the project of partition, apparent on the reconl of the testate proceedings, which shows that Maria Gerardo had no power or authority to sign the project of partition as guardia.n of the minor Lucia Milagros Barretto, and, consequently, no gi·ound for the contention that the order approving the project of partition is absolutely null and void and may be attacked collateraUy in these proceedings. That Saiud Barretto is not a da.ughter of the deceased Bibiano Barretto, because l'fp.ria Gerardo in her will stated that her only daughter with the said deceased husband of he"rs is Lucia Milagros Barretto, does not appear from the project of pa.rtition or from the record of the case wherein the partition was issued. It appears in a will submitted in another case. This new fact alleged in the opposition may r.ot be considered in this registration case, as it tends to support a collateral a.ttack which, as indicated above, is not permitted. The reasons for this rule of exclusion have been rxpressed in the fo1lowing words: "The doctrine that the question of jurisdiction is to be determined by the record aloi:ae, thereby excluding extraneous proof seems to be the natural unavoidable result of that stamp of au.. thenticity which, from the earliest times, was placed upon the 'record,' and which gave it such 'uncontrolla.ble credit and verity that no plea, proof, 01· averment could be heard to the contrary.' x x x. Any other rule, x x x, would be disastrous in its results, since to permit the court's i·ecords to be contra .. dieted or varied by evidence dehors would i·ender such records of no avail and definite sentences would afford but slight protection to the rights of parties once solemnly adjudicated. Finding no enor in the orders appealed from, we hereby a.ffirm them, with costs against the oppositor .. appellant. xx x." Cl Freeman on Judgments, Sec. 376, p. 789.> So ordered. Paras, Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo and Brwtista Angelo, J. J., concur. Mr. Justice Concepcion and Mr. Justice Diokno did not take part. May 81, 1954 LAWYERS JOURNAL 258 REPUBLIC ACTS Republic Act No. 722 AN ACT TO EXEMPT THE HOLDING OF OPERAS, CONCERTS, RECITALS, DRAMAS, PAINTING AND ART EXHIBITIONS, FLOWER SHOWS, AND LITERARY, ORATORICAL OR MUSICAL PROGRAMS FROM THE PAYMENT OF' ANY NATIONAL OR MUNICIPAL AMUSEMENT TAX. Be it 611acted by the Senate and House of Representatives of the Philippines in Ctmgress asB6111bled: SeCtion 1. The holding of operas, concerts, recital.;;, dramas, painting and art exhibitions, flower shows, and lite1·ary, oratorical or musK:al programs, except film exhibitions and radio or phonographic records thereof, shall be exempt from the payment of any nations! or municipal amusement tax on the i-eceipts derived there. from. Sec. 2. All laws or parts of laws which are inconsistent with the provisii:ms of this Act are herebf ~pealed. Sec. 8. This Act shall take effect upon its approval. Appro~ed, June 6, 1952. Republic Act No. 826 AN ACT CREATING THE COMMISSION ON PARKS AND WILDLIFE, DEFINING ITS POWERS, FUNCTIONS, AND DUTIES. Be it enacted by the Ser.dte and Hous_e of Rtpf'esentativea of the . Philippines in Congress 11,!sembled: Section 1. Creation of Commission on P"'1'ka and Wildlife.In ordet' to promote effectual planning, development, maintenance, and conservation of national parks, monuments and wilfllife in said puks, of game and fish, and of provincial, city and municipal public pa.rks, to provide for the. enjoyment of the same, and to, carry out the provisions of this Act, there is hereby created a commission to be known as thP. Commission on Parks and Wildlife, hereinafter referred to as t.he Commission. The eom.M.ission shall be composed of the Secretary of Agriculture and Natural Resources, who shall be the Chainnan of the Commission, the Secretary of Public Works and Communications, the Secretary of Education, the Secrt!tary of Health and the Social Welfare Com... missioner, as members. The Chairman arid the members of t.he Commission shall serve as such without additional compen9ation. A majority of the members of the Commission shall constitute a quonm. The Commission shall be under the executive control and supenision of the President of t.he PhiUppines. · Sec. 2. Duties of the Commi8don.-It shall be the duty of the Commission to administer the provisions of this Act and to promote, conserve, maintain", and regula~ the use of national parks, national monuments and wildlife in said parks, of game and flrh, game -refuge!!!, bird sanctuaries, and game fa.rms, and to provide nuistance to, and cooperate with, the provinces, chartered citie9, municipalities and municipal districts in the establishment and conservation of provincial, city, municipal and municipal district parks a.nd monument$ by such means and measures as conform tc. the fundamental purpose of the said parks, monuments, and game and fish, game refuges, bird sanctuaries, 8.nd game farms, which purpose is to conserve the scenery and the na.. ~ral and historic objects and the wildlife therein, including birds, fishes, mammals, and other animals and to provide for the en.. joym~t of the se.me in such manner and by such means as will leave them unimpaired for the benefit and enjoyment of future ge.. nerations. _The Comm.isaion is also charged with the a8ministr11.tion ·Of Acts Numbered Twenty-five hundred and ninety, entitled "A.n Act for the protection of game and fish," ' and Numbered Thirty-nine hundred and fifteen, entitled "An Act providing for the establishn1ent of National Pa1·ks, declaring such parks as game refuges, and for other purposes," both as amended. Sec. 3 Powers of the Co7ii.mis8ion.-The CommiSsion shall have power to: (a.) Adopt rules· and rf:gulations for the administration of this Aet, and the transaction of the business of the (',ommission. (b) Make expenditures for the care, supervision, improvement, development, extension &nd maintenance of all parks, parkways, and monuments under the control of the Commission and for the protection and conservation of wildlife and game fish, game refuges, bird sanctuaries and game farms. (cl Make rules and regulations governing the proper ust" and protection of park areas, game refuges, bird sa.nctuaries and game farm& and to protect propP.rty and preserve the peace therein. Cd> Cooperate with "the local governments for the purpose of securing improvement. development, or maintenance of land& which are designated as parks or pleasure gro.unds and to seCure agreements between the local governments for the accomplishment t)f the purposes of this Act. (e) Delegate to the Director of Parks and Wildlife or other employees of the Commission, to foresters, Tangers and forest guards of the Bureau of Forestry; to land inspectors of the Bureau af Lands; to agricultural agents, pla.nt inspectors or other suitable employees of the Bureau of Agricultural Extension Service or of the Bureau of Plant lndusti:y; and to members of the Philippine C.Onstabulary and of the Jocal police force and other suitable persons 11.ny duty or authority relath•e to the administration, or protecti(!n of national parks, wildlife, game and fish, game refuies, bird sanctuaries and game farms. Said Director of Pa1·ks and Wildlife and employees and pPl's'3ns shall comply with the duty and exercise the authority del~ gated to them pursuant to this subsection. They shall, in additfon, be peace officers and as such they ms;y arrest any person within the pr~ises of national parks found under suspicious circumstances and 1·easonably tending tC> !!how that such person has committeed or is about to commit an offense against the laws or regulations concerning national parks, wildlife, game and fisb, game refuges, bird sanctuaries end game farms. Sec. 4. Directof' of Pa-rks atul Wildli/e-othe'l' emp'4yees. -The Commission shall have a Director of Parks and Wildlife who shall be appointed by the President of the Philippines with the consent of the Commission on Appointments and who shall have a.ctive cha1·ge and administration of all national parks an:l national monuments and of the laws relating to the protection of game and fish, game refuges, bird aanctual'ies and game farms. He shall, under the direction of the Commission. cooperate with local boards of park commissioners and local officials in the establishment and conservation of provincial, city, municipal and municipal district public parks. He shall perform such other duties &'J may from time to time be required by the Commission. Said flirector shall be &elected. solely upon the basis of executive ability and special' training in park matters. He shall receive an annual compensation of seven thous:and two hundred pesos. The Director of Parks and Wildlife shall appoint, in acco1·dancP with Civil Service Uules and Regnlations and subject to the approval of the Commi!sion, such c.-mployees as shall be necessary for th!! maintenance and comierva.tion of national parks and m0numents, and protection and conservation of wildlife and game and f()r carrying out the functions of the Commission. Sec. 5. Acquisition of proptt"tif by gifts O'l' otherwise.-The Commission, on behalf of the National Government, and the provincial, city, and municipal or municipal district government, cm behalf ot the proyJpce, city, munidpality or municipal district conc~rned, ma.y acquire lands nit;able for park purposes, by gift. donation. contribution or otherwise, and may receive and accept devises, bequests, and other gifts or beneficial transfers of property, mo~ey, and other objects for the purpose of the improvement or omamentation of any national, provincial, city, municipal or municipal district pa1·k. pleasure ground, parXway, a.venue or road, Or for the establishment in said park or pleasure ground of zooJngical or other gardens, collections of natural history, monument& 01· works of arts, or for conservation of wildlife, game birds or anima1s. Sec.-6. Restrictions on membt1's a.nd employees of Commis. .~ion and Bo01'"ds of Park Commi8si01uws.-No member or employee 254 LAWYERS JOURNAL May 81, 1954 of the Conunisaion or of the Jocal boards of park commissioners shall be interested, directly or indirectly, any contract relating to the establishment or maintenance of any national, provincial, city C)r municipal public park, pleasure ground or parkway, or jn any contract providing for the expenditure of any money in relation thereto. Sec. 7. Provincial, city and municipal pMks.-Any province, city, municipality or municipal district may acquire, establiah and 1naintain public parks, pleasure grounds and parkways within the bounds.ries of said province, city, municipality or municipal dis.. trict. Lands which may be required for any ?f such purposes may be set aside .by such province, city, municipality, or municipal dis.. trict lijf.d devoted to such purposes, out of any lands or parcels cf land owned or possessed by 11.ny such provinr.e, city, municip11ity or muiticipal district; or said lands may be acquired by gift or purchase, in the· manner provided by la.w: Provided, That no lands, the purchase price of which exceeds one thousand pesos, shaJI be acquired by purchase by a province, city, muniClpality, or municipal district for any of sUch purposes without the previous approval of thti President of the Philippines. Any province, city, municipality or municipal district establishing public p&rks, pleasure grounds or parkways under ·th• provisions of this Act shall, by its duly constituted ·authority, have full power to cultivate, plant and otherwise improve the same; and shall enact resolutfons or ordinances for the proper adminis.. tration, maintenance and. use_ thE·reof, . Sec. 8 Cities and toum.s tnCl!I unite in establishing puka.-Atif two or more citiH, municipalities or municipal districts which are rontiguous or adjacent :lnay unite in acquiring, establishing and maintaining public parks, pleasure grounds or parkways f11r their common benefit upon such- terms and conditions as may be mutually agreed upon by ordinance. Sec. 9. Board of Pwrk Commisrionff'a.-Whenever a province, city, municipality or municipal district has established a public park, the provincial governor, city, municipal, or municipal district mayor thereof shaJI, with the consent of the provincial boatd, city, municipal or municipal district council, appoint a board of park commissioners,' hereinafter called the Board, which shall bP. composed. of three most travelled and civic minded members whc. shall be residents of the province, city, municipality or municipal district where such park is located, and who shall serve for a term of two year• without compP.ns11tion. The Board shall elect from among themselves a. chairman. A majority of the Board shall constitute a quorum for the transaction of business, and no action of the Board shall be binding unless. authorized by a majority of the members of the Bc4rd at a regular meeting or duly called speda.l meeting thereof. The Bnard !thall be provided by the province, city, municipality, or m11ntcipal district with a ClOIWIDdent office and with such facilities and stationery as may be necessary for the performance of their duties. The provincial , governor, city, municipal, or municipal district mayor concerned may, upon recommenda.tion of the Bo81'd, appoint a secretary of the Board, who shall keep a record of all proceedings of the Board, have custody of and preserve all its records and perform such other duties as may be presc1ibed by the Board. Sec. 10. Management of local pMks-Rules.-The Board of Park Commissioners· shan ·have the management and control of public parks, pleasure grounds and parkways of the province, city, municipality, or municipal district wherein it is appointed. It shall establish neceseary rules and regulations not in conflict with law or the ordinances of the city, municipality or municipal district for the proper supervision and uae of such parks, pleasure grounds and parkways and shall have such additional powers relating thereto a1 may be prescribed by resolution of the provincial board or ordinance by the city, municipal, or municipal district council. Tile prcvincial board, city, municipal, ~r municipal district council concerned shall, by resolution or ordinance, provide for tke enforeemait of the rules and regulatipns {)romulgated by the Board of Park Commissioners. The Board may appoint a park caretaker, who shall be a practical la.nda:cape gardener, .aud who sha1l, under the direction of the Board, have active charge, control and direction of all the parks, pleasure grounds or parkways. under. the contiOl of _said ·Board, _and pi:-"rfonri. such· other d.uties a.a may be required by the Boa1·d . . The provincial board, city, municipal, or municipal district council, ae the case may be, shall provide for the salary of the park caretaker and the secretary to the Board of Park Commissioners. Sec. 11. PMk Commissionus and employees not to be tntE't"ested in contract.-No park Commissioner or employee of the Boa.rd of Park Commissioners shall be interested, directly or indirectly in anjr contract relating to the esteblishm"ent' Or maintenance of any. public park or pleasure grounds under its' jurisdiction or in any contract providing for the expenditures of any money in relation therct.o, Sec. 12. E~enditures for pwrk purposea.-The Board shall, with the approval of the provincial governor, city, lnunicipaJ or municipal di~trict mayor concerned, have full, complete and exclusive power and authority to expend, for and on behalf of the province, city, municipality or municipal district wherein it is appointed, all sums of money that may be appropriated for the establishment, maintenance and improvement of public pa.rks, parkways and plea.. sure grounds therein, See. 13. Tram fer of functions and activities f'elative to po;rb, tlrildlife and game and fisk to Commission.-All the power1t functions and duties vested in, and exercised. by, the Secretary o:C Agiiculture and Natural· Resources and the Director of Forestry unde.r Acts Numbered Twenty-five hundred and ninety· and Thil"ty-ninG hundred &ltd fifteen, both as amended, refative to the protection of game and fish and the eatablishment of national parks, are transferred to the Commission on Parks and Wildlife and the Director of Parks and Wildlifli, respectively. The G:lme and WildJife Section of the Burea:u of Forestry 'lil.d the positioiis therein in charge of the work relative to the ma.intenance, operation and improvement of national parks, together with their corresponding personnel, appropriations, equipment, fa.. cilities, records and other proPerty, are hereby likewise transferred to the Commission on Parks and Wildlife. · Sec. 14. Appropria.tions.-Aside from the sums set asid~ in the General Appropriations Acts for the Game and Wildlife Section of the Bureau of Forestry and for the positions in charge of the work relative to the maintenance, operation . and . improvement uf national parks, which are by vjrtue of this Act transferred to the Commission on Parka and Wildli'fe, there is hereby appropiated, out of any funds in the Nationa.1 Treasll:ry not otherwise appropriated, the sum of five thousan~p os which shall be expended by the Commission on Parks an _ ildlife f~r the establishment, maintenance, conservation and im rovement of na~ional parks, monument.a, aud parkways; for the construction; maintenance and repa.ir of roads, trails, and necessary buildings within the said parks; for the pl'otection and propagation of game birds, mammals, and other useful wild animals protected by law; for the est.ablishment, improvement and maintenance of gamEi "refuges, bird sanCtuaries and game fa.rms; for the salaries and wages d the necessary personnel; and for sundry and other nP.eessary expenses which the so.id ComrnisSJ::m may incur in carrying aut the provisions l'Jf this Act for the 1-elna.inder Of the fiseal · yes.r nineteen hundred a.nd fifty-two and for the fiscal year ninteen hundred and fifty-three. Thereafter, 0the neces98.ry funds for the operation of the Commission on Farks and Wildlife and for cal'fyiug out its activities shall be incl\lded in the Annual General Appropriation Acts. See. 15. Repeal8.-All Acts and parts of Acts in conflict ·with the provisions of this Act are repealed. SeC. 16. Date of taking ef/ect.-This Act shall take effect upon its approval. Approved, August 14, 1952. 'Republic Act No. 879 AN ACT REORGANIZING THE MUNICIPAL BOARD OF THE CITY OF SAN PABLO, BY AMENDING SECTION ELEVEN OF COMMONWEALTH ACT NUMBERED FIVE HUNDRED AND TWENTY, AS AMENDED. Be it enacted by the Senate and House of Representati'IJea of the Philippines in Congress a.ssembltd: Section 1. Section eleven of CommonweaRh Act Numbered May Sl, 1954 LAWYERS JOURNAL 266 Five hundred and twenty, as amended by Republic Act Numbered One hundred and sixty.three, is hereby further amended to read as follows: "Sec. 11. Constitution a.nd orgf11'1iza.tion. of the Municipal Board -Compenaa.tion of members thereof.-The Municipal Board shall be the legislative body of the city and shall be composed of the Mayar, who shall be its presiding officer, the city treasurer, the city engineer, the city health officer, and five councilor who shall be elected at large by Popular vote during every election for pro. vincial and municipal officials in conformity with th4 provillions of the Revised Election Code. In case of sickness, absence. BUS. pens.ion or ot.her temporary disability of any member of the Board, or if nece888ry to maintain a qulH"um, the President of the Philip. pinea may _appoint a. temporary substitute who shall posseo all the rights and perfonn all the duties of a member of the Board until the return to duty of the regular incumbent. "If any member of the Municipal Board should be candidate for office in any election, he shall be ineompetent to act . with the Board in the discharge of the duties conferred upon it re.. lative to election matters, and in such case the other members of the Boa.rd shall discharge said duties without his assistance, or they may choose SOJne disinterested elector of the city to act with the Board in such matters in his stead. "'The Members of the Municipal Board of the City of San Pablo, who are not officers or employees of the Government re. ceiving a fixed compensation or salary from public funds, shall each receive a compensation of two thousand pesos pe-r a.nmttiL'' Sec. 2. Pending the next election for provincial a.nd munfcf .. pal officers, the present .two appointive Members of the Municipal Board of the City of San Pablo shall continue to occupy the two new elective positions in the said Board. Sec. 8. True Act shall take effect upon its approval Approved, J'une 19, 1958. Republic Act No. 838· AN ACT TO CHANGE THE NAME OF KAWIT HIGH SCHOOL TO EMILiaNO, T. TIRONA MEMORIAL HIGH SCHOOL. Be it ena.eted bu the Senate and Hot,se of Representatives of tl:.e PhUippi11es it1 Congf'ess assembled: . Section 1. In ·recognition of the distinguished services rendered by Emiliano T. Tirona, Fili.Pino l'l:a.tesman and leader and an illustrious son of the Province of Cavite, the name of Kawit High School is changed to Emilian~. Tirona Memorial High School Sec. 2. This Act shall ta9 effect upon its approval. Approved, March 26, 1953. Republic Act No. 895 AN ACT TO AMEND SECTION SEVEN, PART C, TITLE III, OF REPUBLIC ACT NUMBERED SEVEN HUNDRED EIGHT, REGARDING CONVERSION OF CERTAIN POSITIONS IN THE DEPARTMENT OF FOREIGN AFFAIRS TO POSITIONS OF FOREIGN AFFAIRS OFFICERS. Be it enacted bv the Sena.ts a.'l'ld HoWJe of Representa.tives of the Philippines in Congress a.ssembted: Section 1. Section seven, Part C, Title III, of Republic Act Numbered Seven hundred eight, is amended to read as follows: .. See. 7. Conversion of positions.-To permit rotation of car. eer personnel between the Home Office and the Foreign Service, as contemplated in this Act. the positions of Counselors and the positions of chiefs of division and those of equal rank and respDnsibility now occupied by graduates of the Foreign Affairs Train. ing Program in the United States Deparln)ent of State are here. by converted into positions of Foreign Affairs Officers, Class I and Claa II, respectively, occupying the rate in each class which the Secretary deems a.pproprlate. The Secretary shall, by regola.. tion, determine the manner and frequency in which Counselors, chiefs of division and occupants of positions of equal rank and responsibility shall be teXchanged with Foreign Affairs Officers in the field, subject to the limitations of this Act." Sec. 2. This Act shall · take effect upon its approval Aj>proved, Jone 20, 1958. Republic Act No. 8511 AN ACT TO AMEND REPUBLIC ACT NUMBERED FIVE HUN. DRED SEVENTY-THREE IN ORDER TO PROVIDE FOR THE EXTENSION O~' THE ACTIVE DUTY OR ENLIST. MENT OF RESERVE OFFICERS AND ENLISTED MEN OF, THE PHILIPPINE EXPEDITIONARY FORCE PROVIDED FOR IN SAID ACT. Be it enacted by the Sent~te and House of Rept"esentatives of the Philippines in Congress as11embled: SECTION 1. Republic Act Numbered Fivo hundred seventy. three, otherwise lmown as the "Philippine Military Aid to the C:nited N&tions Act," is hereby amended by inserting a new section between sections ten and eleven ther00f, to be designated as section ten.A, which shall read as follows: "SEC. 10..A. The provisions of cny law to the contrary notwithstanding. Reserve Officers in the Philippine Expeditionary 1o~orce sha.ll remain on active duty as long as the Philippines continues to maintain aid force overseas,. unless sooner relieved from such aeti.,,·e duty or diecharged by the President, or dismisac:d from the service pursuant to the approved sentence of a general court-. mart~al. All enlisbnents of enlist¢ tnen serving with the Fhiiip.. pine Expeditionary FGrce shall continue in foree for a like Period, unless sooner terminated by the President or pursuant to the ap.. ~roved sentence of a court.martial." SEc. 4. This Act shall take effect upon its ai)proval. Approyed, May 28, 19_53_._~-Republic Act No. 915 AN ACT TO MAKE THE CI.ERK OF THE COURT OF FIRST INSTANCE OF A PROVINCE EX OFFlCIO SEIERIFF NOT ONLY OF SUCH PROVINCE BUT ALSO OF ANY CITY WHICH, BEFORE CONVERSION TO A CITY, FORMED PART OF SUCH PROVINCE. He it enaeted b11 the Senate and House of Representatives of t.he PhilippiMs in Cong,.ess assembled: SECTION 1. The clerk of the Court of First Instance of a prov. ince aha.II be e:e officio sheriff not only of such province but also of any city, which before conversion to a city, formed part of such province. As ell: officio sherif of a city, such clerk flhall receive an additional compensation of not exceeding one thousand two hund~ llf'BOB, which shall be fixed by the city council or m11nicipal board and payable from city funds. SEC. 2. Commonwealth Act Numbered Six hundred twenty.nine is repealed. SEC. 8. This Act shall take etfect upon its &pprova1. Approved, J'une 20, 1953. · Republic Act No. 841 AN ACT TO DESIGNATE THE DISTRICT OR CITY ENGIN• EERS TO TAKE CHARGE OF RECONSTRUCTING, MAJN. T AINING, PROTECTING AND CLEANING MONUMENTS AND HISTORICAL MARKERS SITUATED WITHIN THEIR RESPECTIVE JURISDICTIONS AND REGULATING THE CONSTRUCTION OR MANU~'ACTURE OF SUCH STRUC. TURE OR PLAQUE TO PERPETUA,TE THE MEMORY OF A PERSON OR EVENT. Be it enacted by the Sena.te ·and House of Representativts of tM Pliilippines in Con{ff"ess assembled: Section 1. The district or city engineers are hereby designated tc. ta.lee charge of reconstructing, maintaining, protecting and cleanjng monuments and historical markers located within thei~ respec.. tive jurisdictions. The district or city engin"!crs shall include a yearly estimate ef expenditure for this purpose for appropriate action "by the respective provincial or municipal board, or cit.y coun.. cil. Unexpended appropriation should be reverted to the General Fund. . Sec. 2. In the construction of monuments or manufacture of plaques to perpetuate the memory of a . person or event, the party or parties concerned should submit the necessary plans, sket. ches or inscriptions to the Philippine Historical Committee through the Department of Public Works and Communioationa for D1ent and approval. Sec. 8 This Act shall take effect upon its approval Approved, April 7, 195"8. 256 LAWYERS JOURNAL May 31, 1954 MEMORANDUM OF THE CODE COMMISSION <Continued from April Issue) ARTICLE 902 Mr. Justice .Reyes contend! that the provisions of Articles 90~, 989 and 998 confer the right of representation upon the illegitimate issue of an illegitimate cMld; while the illegitimate ia8U6 of a le~ gittmate child is denied the right of representation by Article 992, and therefore unfair 3lld unjustified. In answer to this claim of unfairness and injustice, we would like tJO cite the provisions of Article 982: "Art. 982. The grandchildren and other deseendanta shall inherit by right of representation, and if any one of them sh.011Id have died, leaving several heirs, the portion pertaining to him &hall be divided among the latter in equal portions.'" If the provisions of the above article ai-e e<1rreetly interpreted and understood, do they exclude the illegitimate issue of a legitimate child? The terms "grandchildren and other descendants" 1ue not confined to legitimate offspring.· We submit that not only legitimate but also illegitimate descendants should be included in the interpretation of Articles 902, 9S9 and 998. In eases of this kind, where the Code does not ex. pressJ.7 provide for specific rights, a.nd for t.hat matteP. all code" have gaps, equity and justice should prevail, taking into consideration the fundamental purpose of the whole law on succession which, among other things, gives more rights to illegitimate children, the.re.. by rela.xing the rigidity of the old law, and liberating these unfortunate persons from the humiliating status and condition to which they have been dJllll.ped. It may be mentioned in this connection, that the old Civil Code fails to provide for several concurrences of heirs, but aR th" same have correctly said, justice and equity should prevail in such ...... With respect to the provisions of Articles 903 and 993 allowing illegitimate children and descendants to inherit from an :ta. cendant. but the illegitimate grandparent may not inherit from a grandson, the Code Commission has in mind that the succession of illegitimate ascendants shall be confined only to the parents a.nd &hould not go beyond that degree of relationship Sb that his or her spouse and/or brothers and sisters shall be entitled to the same CArt. 994>. ARTICLE 904, P"'· 2 This proposed amendment is already discussed in connection with Article 864. ARTICLE 908, par. 2 The Code Commission accepts the proposition of Mr. J"ustice Reyes by eliminating the words 1'that a.re subject to co11ation" found in lines 2 and 3 of the second paragraph of this article. ARTICLE 900 The Code Commission has no objection to the aubstitution of the words "compulsory heirs" to the word "children" found in line 1 of this first paragraph of this article. The further suggestion of inserting "without prejudice to tb<' provisions of Article 1064" is not necessary becau1e the p)lrase may be out of place in this section on le£"itime, and bec1J.use the idea in Article 1064 should not be repeated here. The additional rule also proposed may not be necesaary because anything that will be in excess of the legitirne shall be considered a part of the free portion, and may be given to stra.ueers. ARTICLE 911 C2> The rule established in this article is different from that mentioned in Article 950. The rule established in No. C2) of Article 911 speaks of the reduction to be made of legacies if the legltiinu is impaired. The rule provided, however, in Article 950 deals with cases where the total free portion is not sufficient to pay all the legacies and devices mentioned by the testator in his will. ARTICLE 912 The proposed amendment wholly depends v,pon the policy to be adopted, whether the compulsory heirs should be favored or not. As it is, the article provides that if the reduction a.bsorba exactlf one.half U/2) of the value of the legacy or devise, the property should go to the compulsory heirs, Blld this ehould be the case, because as between the compuleory heirs and third persons, the for .. mer shall be preferred, as the testator owes more obligations le"al and moral, to his own parents, descendants and spouse. ARTICI,E 918 The proposed amendment to this a.rticle Is to clarify th" effects Clf a defective disinheritance, and the Code Commission has no objection in eliminating the phrase "annul the institution of heirs insofar as it may prejudice the person disinheri,ted'' in lines 4 and 5 of the said article, and in replacing the same with "not prevent the disinherited heir from receiving his share in the legitime." ARTICLE 919 C'l> One of the grounds for diSinheritance of children· and descend. ants under the old Civil Code is prostitution of daughters or grand .. daughters <Art. 858, No. 8, Spanish Code>. Under this law, sons and other male descendants an not included because prostitution ean onl:v apply to women. It seems unfair and unjust because a 9on or a grand.son may live a life more immoral than tha.t of a daughter, and yet they cannot be disinherited. To avoid this double standard, the new Civil Code in Article 919, No. '1, provides: U(7) When a child or descendant leads a dishonorable or disgraceful life". With this provision Of the law, both sons and daughteH are placed on the same level. Mr. Justice Reyes claims that what the testator deems .. dishonorable" or "disgraceful" may not appear .DO ·to the judge. May we ask, have the ·Filipino people so lost their sense of moral values that they can no longer discern what is dishonorable and disgraceful life? Has the moral standard of our people com~ to the level that . they can no longer distinguish the moral from the immoral? Is the judiciary so ignorant or morally warped tha.t those interpreting the law and administering justice can understand llnly "prostitution of daughters" but can not under • stand what comtltutes a diahononble or disgraceful life on thei part of a son? On this point, the German Civil Code provides in Article 2338. No. <6>: ••If the descendant leads a dishonorable or immoral lifo · contrary to the testator's wishes." Let the court establish its doctrine a.nd prnpound its juri&p"l"U• dence. ARTICLE 928 The Code COD"l!Dission accepts the proposed amendment to Article 928, which should constitute itB first paragraph: "A valid disinheritance not C1nly deprives the disinherited heir of any share in the legitime, but au~matically revokes any disposition in his favor chargeable to the free portion." The above &mendment shall make the effects of valid disinherit.. ance very clear. It will also clarify the effects of restoration of the right.a of a compulsory heir in case of preterition as well as those of compulsory heirs restored to their rights in case of a defective disinheritance. ARTICLES 929 AND 981 There seems to be no inconsistency between the&e two articlt'$. Article 929 refers to a case where the testator owns only a pa.rt uf, ff' intffeat in, the thing bequeathed, in which case, the legacy or bequest shall be limited to such pa.rt or interest, unless the testator exp~Bsly declares that he gives the thing in its entirety. Article 931 speaks of a thing esclu.wely belonging to ruwther, in which case he ma.y order that it be acquired in order to be given to the legatee or devisee. In case the testator bequeathes an undivided share that does not belong to him as provided in Article 929, do not the provisions of Article 931 apply, which requires that it be acquired in order to be gi.ven to the lega.tee 01• devisee? Mr. Justice Reyes asks why the new Civil Code suppressed the sublegacy permitted by Article 868 of the old Civil Cod.e. There is nothing wrong with it, but the Code C<immission believes that it is not necessary to be included. inasmuch as the same is covered by Articles 925 and 952. Article 868 of the old Civil Corle providU: 11Art. 863. A legacy made to a third person of a thing belonging to the heir or to a legatee, shall be valid, and su:eh May 31, 1954 LAWYERS JOURNAL 267 heir or legatee, on accepting the succession, must deliver the thing bequeated or its value, subject to the limitations established by the following article. "The provisions of the foregoing paragraph are understood to be without prejudice to the leg:itime of the forced heirs." Arltcles 925 and 952, par. 1, of the new Civil Code provide: "Art. 925. A testator may charge with legacies and devises not only his compulsGry heirs but also the legatees and devis~a. "The latter shall be liable for the charge only t.o thfll extent of the value of the legacy or the devise received by them. The compulsory heirs shall not be liable for the charge beyond the amount of the f1·ee portion given them." uArt. 952. The heir, eharged with a legacy or devise, or. the e1:ecutor or administrator of the estate, must deliver the very thing bequeathed if he is able to do so and cannot discharge this obli&"ation by paying its value." The legacy mentioned in Article 863 of the old Civil Code ts a variety of wha.t is called "legado de cosa ajena". In other words. the thing bequeathed does not belong to the testator bot the same mar belong to a third person, or to the heir, or to the legatee or devisee. From the provisions, therefore, of Article 925 and Article 952, par. 1, we maintain that they include what is intended by Article 863 'Of the old Civil Code. ARTICLE 932, par. 1 and ARTICLE 933, pew. 1 The two pamgraphs of thC!Se two articles are said to expreaa the same rule, and hence, It is cls.imed that tho latter ts a miire repetition of the former. The firat parts of 1Jle two paragraphs may provide for the same rule, but the latter pa.rls o/ the same f)Olragratphs provi~ for different effects. Moreover, the M!cond paragraph of Article 923 is very different from the provisions of paragraph 2 of Article 933. By placing these two articles close to each other, the reader can readily compare their respective provisions as well as their reapec:tive effecta ARTICLE 934 The proposed amendment to this article is not necessary ina~ much as the meaninc of both fonns is the same. ARTICLE 943 It is suggested that the last part of this article which provides that "but a choice once made shall be irrevoca.ble" should be elimi .. nated because 1t is a repetition of paragraph 3 of A1·ticle 940. llowever, Article 940 deals with tht. ••heir, legatee or devisee, who ma~ have. been given the choice", but ''dies be/C1.,.e making it", while Article 943 deals with cases where the "heir, legatee or de'lisee cannot make the choice," not only because of death but because of other causes, likP. disinheritance or unworthiness. ARTICLE 950 our ~!!'m::P:: ~:: 9 o;:er or payment of Iegaclea, please sea Mr. Justice Reyes contends that Article 950 which gives the order of payment of legacies and devises, doea not include donatinna given in a marriage settlE:ment by a future spouse to the otl:.er which is mentioned in Article 180 of the new Civil Code, and whir.b shall be chargeable kl the free portio11.. Article 950 gives the order of payment of various kinds of legacies and devises, taking into C'lnsideratio~ their particular purposes and objectives. Inasmuch as the donation of futun property mentioned in Article 130 mav n?t have a particular purpose or objective, it may be classified either under No. (2) or under No. (6) of the article depending how it wau given. We do not believe that such a donation he giveJt a special pnference as contended, inasmuch as it was given in consideration of marriage, and it is for this rea.son that thf" same should be treated as an ordinary donation and should fall under No. C6> of .the article, unless declared by the testator to b.:! preferential, in which ease, it should fall under No. (2). ARTICLE 967 Another paragraph is proposed to be added to this a11icle, to read. thus: ·• (4) A legacy in favor of the spouse whO subsequently gives cause for a decree of legal separation, as provided in Article 106; (4) of this Code." We beg to disagree with the proposed amendment because it is a mere repetition 'lf Article 106, No. <4>. This Article 106 provides for the dfects of legal separation, and No. C4) expressly do!als with the subject in both intPst&te and testate successions. ARTICLE 960 t""3> The new Civil Code does not include as a cause of intestacy the case of a conditional heir who survives the testator but dies before ·the fulfillment of the suspensive coRdition. Thif is not necessary because if an heir subject to tile fulfil1ment of a suspensive condition should die before the' f'Jlfillment of said condition, he shall of course acquire no rights no1· transmit any to his cwn heirs. Hence, intestacy shall take place. Please see our comments on Article 878, ante. Besides, in the case mentioned by Justice Reyes, ''the suspensive conJition x x x x x does not happ.en or is not fulfilled" within the meaning of No. 3 of Art, 960. ARTICLES 963-967 These Articles 963 to 967 deal with the degree of relationship of personB, and the manner of computing the proximity of relationship. Mr. Justice Reyes proposes that these articles should be in Book I dealing with Family Relations. W~ beg to differ. The question is whether the provisf.Oils of theSe a.rticles have more relation with intestate succession or with the la.w on persons and family relations. We maintain that if these provislonft should be embodied in ~k I, they would really be out of place there. As a matter of faet, the only instance: where Vie degree of relationship is mentioned in Book I is in connection with incestuous marriage <Article 81, No. (3)). A person will be at a loss to be reading the. rules on the degree of relatlo"J.ship in a Book where they ~II have no bearing with the other provisions found therein. The arrangement of the new Civil Code is adopted not only by the Spanish Civil Code but a.Iso by the Civil Codes of France and Switzerland. ARTICLE 968 It is proposed that the term "accrue" used in line 3 of this article be replaced by the word "benefit'" or "pass", so as to a\oold C'>nfusion that may arise with the provisions of the Code on accretion, mentione4;1 in Articles 1015 to 1023. The term "accrue" is better than the word "benefit" or "pe.ss" because it is mort. comprehensive, and it caL·ries the meaning that the Code wants to impart. In law, "accrue" means "to come into existence as an enforceable claim; to vee~ as a right; as a ca.use of action has accrued when the right to sue ha.s become vested". In general, it means "to come, by way of increase; to be added as increase, or profit". Moreover, "accretion" is· nearer to the Spanish original, "acrecer'". Lastly, Article 968 ·deals with accretion. See also Articles 1080 and 1020. AllTTCLE 972, pM. 2 The propo!ed amendment to this article is unnecessary, noT wi11 the rule be inconect without the amendment to pa1·agraph 2 of this article. Article 972 provides for the persons in whose favor the right of representation is established, the first paragraph being in favor oi the direct descending line, while the second paragraph in favor of the colfateral line. Article 975 deals with a concurrence of heirs, that is, if .uncles· or aunts surrive with nephews or nieces. Besides, Article 975 is sO near that a reference to it is unnec~ sary. Any one who wanta to study rEipresentation would read the whole subsection 2. ARTICLE 978 It is proposed that Article 978 be suppressed on the ground that under the new Civil Code when tke spouse concurs with legitimate dt:scendants, the said spouse "has in the succession the same share as that of each of the children", and hence, "the .surviving spouse is an in.testate heir together with the descendaJLts." Artiele 978 ordains: "Art. 97JI. Succession pertains, in ihe first place, to th,; descending direct line." This article assumes that there are no pther heirs who may concur with the ehlJd·ren or desceudants. So that if they concu1 with the survivjng spouse, the rule is provided for in Articles 996, 9!18, and 999. 258 LAWYERS JOURNAL May 31, 1954 Besides, Justice Reyes fail.;i to grasp the method of the mw Civil Code in See. 2 - "Order of Intestate Succession". By Articles 978, 985, 988, 995, 1001, and 1103, the Code names the re. latives who, in the order stated, inherit the whole est<it.. Article 978 assumes that there is no surviving spouse. (To be Continued) A CRITICAL STUDY ... <Continued from page 219) CONCLUSIONS AND RECOMMENDATIONS Much of the possible difficult situations we have endeavored to present which cannot be adequately solved by the present provisions of the Code without absurd results may be remedied by eliminating the conclusive presumption of legitimacy provided for in Article 258 of the present Civil Code in s.ny of the three case9 therein mentioned. This will make the present rigors of the law more flexible to permit its rigidity yield to the realities 9f hfe. The Prima. facie presumption of illegitimacy provided for in Article 257 <C. C.> shoUld be reversed. The presumption of legitimacy should be the rule, but its rebuttal should be allowed under the conditions and circumstances mentioned in Article 257 <C. C.l and adding thereto the case of rape of the wife dul'ing the S•1me period of time. Articles 255 and 259 may remain as they .:ire subject to a modification of Article 259 CC. C.> for clarity only by incorpore.ting to the opening paragraph thereof the foUowing phrase, "notwithstanding the provisions of Article 255". · It is, therefore, recommended that Articles 257, 258 and 259 of the Civil Code be redrafted to read as follows: "Art. 257. In case of the commission of adultery by the wife or rape of the wife at or &bout the time of conception of the child, but there was no physical impossibility of access by the husband to the Wife as set forth in Article 255, the presumption of legitimacy therein provided, may be overcome by proof that it is highly improbable for ethnic reasons that the child is that of the husbaiad. Fo1• purposes of this Article the adultery or the rape as the case may be need not be proved in a criminal case.'' rPattemP.d after House Bill No. 1019; Francisco, I Civil Code of the Philippines 683). "Art. 258. A child born within one hundred eighty days following the celebration of the marriage is prima. facie presumed to be legitimate.'' "Art. 259. If the marriage is dissolved by the dee.th of the husband, and the mother contracted another marriage within tliTeO hundred days following such death, the&e rules shall govem, notwithstanding the provisions of article 255: (ll A child bom before one hundred eighty days after the sol~niYtion of the subsequent marriage is disputably presumed to have been conceived during the former marria.ge, provided it be born within three hundred days after the death of the former husband; (2) A child bom after one hundred eighty days following the celebration of the subSequent marriage i.s primer. faoi.e presumed b have been conceived during such marriage, even though it be bol'D within the three hundred days after the death of the former husband.'' DECISION OF THE. . . <ConUnu•d r- page 248l of time on a particular style of packages any registration which might issue upon its application would not be limited to use upon such packages, and the p&ckages used could be changed by either party at any time. Ambrosia Chocolate Co. v. Myron Foster, 603 0. G. 545, 74 USPQ 307. U1ide-r well settled tW.thority <General Food Corporation v. Casein Company of America, Inc .• 27 C.C.P.A. 797, 108 F.2d 261 144 USPQ 33); Barton Mfg. Co. v. Hercules Powder Co., 24 C.C.P.A. 982, 88 F.2d 708 (33 USPQ 105); Sharp & Dohme, Incorporated v. Abbott Laboratories, 571 0. G. 519, 64 USPQ 247>, the difftn-ences in packaging ca• not affect the right to .. e. gistra.tion." (underscoring supp1ied} In view of the well-settled principle that an opposer need not own a trademark; a registered trademark; or have exclusive rights FOR lHE SAKE OF TRUlH BY POR~'IRIO C. DAVID I wish to make a vigorous exception to Mr. Federico B. Moreno's article ROLL OF HONOR (of judges of First Instance) as published in the Sunday Times Magazine of May 9, 1954. I do not question Mr. Moreno's right to praise a particular judge or group of judges. For the consumption of the public, he can even raise them to the level of an· Arellano, a Cardozo or Holmes. But, he has no right to do so at the expense of other judges whom he had degraded and ridiculed by publishing his conclusions about their efficiency on the basis of half-truths and mis-truths. The proficiency of a judge cannot be co:irrectly Jl)easured by the precise action of the Supreme Court on his appealed decisions and orders for only one year (last year) and on the applications for writs of certiorari, prohibition and mandamus decided in the preceding three years and on the basis of important cases settled by the Court of Appeals in 1952 and 1953 as published in the Official . Gazette. One who is familiar with the machinery of justice, like Mr. Moreno, who is a lawyer, should know that not all decisions are published in the Official Gazette. Hence, to rate a judge en what might have been published of his appealed decisions in the Official Gazette alone would be the height of irresponsibility. Take, for instance, the particular cases of Judges Barot, Moscoso and Ocampo, who are represented to have had Jlo affirmed · decisions of any sort during the period given. This is unbelievable. I regret that I do not have offhand the records CJf Judge Moscoso, wbo is in the Visayas, and of Judge Barot, who is in Pampanga. But from the records alone of Judge Ocampo as available in the Office of the Clerk of Court of the Court of First Instance of Manila, where said judge has been presiding since 1951, I can say that the conclusions of Mr. Moreno about these judges are at once preposterous and gratuitous, if not libelous. In this connection, I am supporting my stand with .the facts and figures appearing on the correct copies of Reports of Cases decided by Judge Ocampo and brought to the Appellate Courts, duly , certified by the clerks in charge, which are self-explanatory. Summarizing, I find: Criminal cases appealed •..•.............. , 34 Affirmed ... . ... . .•. . .... ....... ..... .. 8 Modified , • . • . • • • . . . • . . . . . . . . . . . . . . • . . • 3 Appeal abandoned ......... , . . . • . . • • . . . . 8 Reversed . . . . . . .. . . . . . . . .. • • • . .. . . . . . . . 2 Pending .............•......... ; . . . . . . . . 13 Civil cases appealed to Supreme Court . . . . . . 4 Pending . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . 2 Affirmed .... , .• ,. . . . . . . . • • • . . • . . . .. . . 2 Reversed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . None Civil cases appealed to the Court of Appeals . . 19 Pending . . . . . . . . . . . .. . • . . . . . . . . . . . . . . • 13 AJ;lpeal dismissed or abandoned .... , . . . . 4 Affirmed . . •. . . . . .. . • . . • . . • . . . . . .. . . . . . 2 Reversed . . .. • . . . . . . . . . . . • . . . . . . . . . . . . . Non~ If only to set tlle record straight and to oorrect any wrong impression which Mr. Moreno's article may have produced on the readers' minds, I have taken pains to dig up the above facts and figores. to a trademark, registered or unregistered; all he needs being something which is analogous to a trademark, and e. showing that he would probably be damaged by the registration sought; and in view of the egually well-settled principle that the appearance fJf the labels bearing the rival trademarks cannot affect the right to registration of one of them, the motion to dismiss the Opposition ia rejected, and the Respondent-Applicant is' directed to answer the same within fifteen (15) days of his receipt of a copy hereof. SO ORDERED. Manila, Philippines, October 31, 1952. <SGD.) CE1$DONIO AGRA VA Director of Patents May 31, 1954 LAWYERS JOURNAL 2159 PUBLIC CORPORATIONS (Continued from April Issue) (§297] AA.RepOf't conoerning p6'1'sons sojourning; statutory provision,, as to municipalities in f"egular provinces. "When the pro. 'Vince or municipality is infested with out1aws, the municipal council, with the approval of the provincial governor, may further require each householder of any municipal center or of any barrio of the municipality to make prompt report to the ma.yor or municipal councilor of the barrio, as the case may be, of the name, residence, and description of any person not a resident of such municipal cen. ter Or barrio who may enter the house of such householder 01· receive shelter or accomodations therein. The report made to the municipal 'councilor of the barrio shall be transmitted by such councilor. within twenty.four hours after its receipt to the mayor. "116 [§298] BB. Rewards. "If; is generally held that municipal corporations, unless authorized by statute, are not empowered to offer rewards for the arrest or conviction of offenders against the criminal Jaw of the state, a.nd that the power to provide for the general welfare does not confer such power. By virtue of express grant or or by necessary implication from power expressly granted ·such corporations may have t~e power to offer such rewards. When authorized to offer rewards the power may, and must, be exercised wi'thin its scope. It has been held that a municipal corporation may Qf.fer & reward for the arrest and conviction of a person for arson as a means of protection against fire, and such power ha1 ·been held authorized under the welfare claUse. The offer of a reward. when made by a municipal corporation empowered to _make such an offer must be made ·by the proper municipal' authorities."188 . (§299] CC. Schools,· statut°'11 provisiona as to Philippine mu. nicipal corporation.a . .:..... 1. Municipalities in regular 'Pf'O'llinees. "It shall be· the duty of the municipal c:ouncil to establish and maintain primary schools in the municipality, to ·be conducted as a part of the publi~hool system in conformity with the provisions of the School Law."1" ''Special a"4 profeslriO'nal schools. - After adequate provision has been made for the primary schools of a municipality, the council may establish ·and maintain intermediate, secondary, or professional schools,; and with the approval of the Director of· Public Schools, rea.aonal:iie tuition fees may be charged for instruction in such inatitutions. "118 "Cooperation of municipalities in maintenance of school, giving intermediate imtruction, - Where the number of pupils eligible for intermediate instruction in any municipality is not sufficient to justify the maintenance by it of a school giving intermediate instruc. tion or where the municipal funds are insufficient to make adequa.te provision therefor, the municipal council may, with the approval of the Director of Public Schools, eoopera.te with the authorities of any other municipality or municipalities in the same province in the maintenance of such a school. "1811 (§300] 2, Municipalities in specially orgtlnized provinces. "Tht" municipal council have power by ordinance or resolution: ,.. . . . . ''Cg> Schools. - To establish and maintain primary schools, sub. jec:t ~ the limita~ons oi law.• .,, 190 (§301] 3. City of Manila. ''The Municipal Board shall have the fono:,ng legislatiV: powers: (d) To provide for the establishment and maintenance of free public schools for intermediate instruction and to acquire sites for school houses fOl" primary and intermediate classes through purchases or conditional or 1t.bsolute donation. "Ce) To establish secondary, and professiona.1 schools; and. with the approval of the Director of Public Schools, to fix reasonable tuition fees for instruction therein. • • "'"191 [§302] DD. Sign.a, bi.UboarU, atul oth6'r stmcturea or devices for advertising. - 1. In generol. "With the limitations to be discussed hereinafter, as a general rule municipal corporations may control and regulate the construction a.nd mainteii.ance of 'billboards, signs, ~Rev. Adm. Code. 186 48 c. J. 481. i:~ ~: ~~~; ~v. Adm. Code. i:: ~: H~~: ~. Adm. Code. 191 See. 18, Rep. Act No.· 409. and other struotures or devices for advertisinl' purposes. Such power .may l;le expressly conferred or it may be implied; and it is usually derived from the police power of municipal corporations. For the preservation of the public health, safety, moral&, or general welfare, municipal corporations may have the right to prescribe the manner of construction of such structures; to compel the use of safe material in their construction, as that the material be incombustibl~; to prohibit the erection of insecure billboards or similar structure&; to restrict reasonably or limit· their size, length, height, and Joca .. tion; to require th.at they be maintained in a secure and sanitary condition; to provide for their removal, if they become dangerous or unsa.nitary, and that at the expense of the owners; and to prohibit advertisements thereon of indecent or immoral tendencies. But such regulations must have some reasonable tendency to protect the public safety, health, morals, or general welfare; they tnust be rea.. sonable, and not arbitrary or discriminatory; they _must not unnecessarily invade private property rights. Following the general rule the power cannot be exercised merely for the benefit of adjoining owners or other particular individuals .. Aesthetic considerations alone do not justify the exercise of the power. Some· regulations may be reasonable in a particular 16cality or district of the corpora.. tion and unreasonable in other localities or districts; in such case a regulation, without qualification or limitation, applicable to sign& or billboards !!like in aU portions of the corporation, is unreasonable. "Permits and absolute prohibition. While a municipal corporation may require permits for the construction s.:nd maintenance of such structures, the grant or refusal must not be left to absolute or despotie power or without reference to prescribed and duly enacted rules and reiu1ations. While, under its power to regulate streets, it has been held that a municipal corporation may prohibit the erection of signs, sheds, or other obstructions on or over any part of the side.. walk, roadway, or neutral ground of certain streets, as in residential districts, and may compel the removal of such existing structures, the prohibition of the erectioii of filtructures designed for advertising purposes, however safe, sanitary, and morally unobjectionable they may be, is warra.nted and invalid. "Retroactive effect of regulations. Some of such regulations have been held to apply, to structures erected prior to their passage or enactment· and they have been regarded as not offensive to the provisions of ihe organic law protecting vested interests e:r inhibiting retrospective legislation, Other regulations have been held not to apply to existing billboards a.nd signs: and it has been held that any attempt to interfere with existing billboards, signs, etc., except tq make them safe and secure, will be invalid provided they complied with the ordinanct!s or regulations at the time of their erection. Even though the regulation may have no retrOaetive effect. it may apply to billboards or signs previously erected when there is a desire or necessity to remove them to some other place. "Advertising truck. A regulation prohibiting the use of a.dvertising trucks, vans, or wagons in the city streets has been valid, as an exercise of the police power. "Official biUpostfW. In the absence of express legislative authority a municipal corporation cannot create the office of billposter and gi~e him exclusively the right to post advertisements."10 (§303] 2. Statutorg provisions as to Philippine municipal c&rporation.a. - a. Municipalities in 'l"egular provinces. "The munici-. pal council shall have authority to exercise the following !liscretionary powers: ,.. "' • * • * ''<r> To regulate ••. signs, signboards, and billboards displayed or maintained in any place exposed to public view except those displayed at the place or at places where the profession or business advertised thereby is in whole or part conducted. ... . . "' (§304] b. Municipalities in speciaU11 Of'f/Gnized provinces. 1'The municipal coancil shall have the power by ordinance or resolution: "• • • * • * ''<d> . , . To regulate , . . signs, signboards, and billboards, displayed or main.ta.ined in any place exposed 1lo pub1ic view, except those displayed at the place or places where the profession or busi~22-82&. 193 Sec. 11248, Rev. Adm. Code. 260 LAWYERS JOURNAL May 31, 1954 neas advertised thereby is in whole or in part conducted , . , ... • ... • * 1 (§805] c. City of Manila. "The Municipal Board shall have the following legislative powers: ''¥ * • * • ... "<ee> • • • to regulate or prohibit • • . the use of property on or near public ways, gi"Ounds, or place, or elsewhere within the city, for a display of electric signs or the erection or maintenance of bill. boards or structu1-es of whatever material, erected, maintained, or used for the display of poste1·s, signs, or other pictorial or reading matter except signs displayed at the place or places where the p1·0fession of business advertised thereby is in whole or part conducted.le& ... * • * • * council shall have power by ordinance or resolution: ... • • * • * "Cy) Slaiughterhousea and markets. To establish or authorize the establishment of slaughterhouses . . , and inapeet a.nd regulate the use of the same . . , " ... • • "' "' *"J01 [§811] City of MBniT.a. "The Municipal Board shall have the following legislative powers: ... • • • * "(cc) Subject to the provisions of. ordinances issued by the Department of Health Jn accordance with law, to , , , prohibit or permit the establishment or operation within the city. limits of public • • • slaughterhouses by any person, entity., e.ssociation, 01· [§806] d. Power of mayOTs. "If after due investigation, and corporation other than the city. having given the owner an opportunity to be heard, the mayor "¥ ¥ ¥ * shall deCide that any sign, signboard, or billboard displayed or ex- [§812] GG. Sunday observance. "The securing of the proper posed to public view is offensive to the sight or is otherwise a nui- observance of Sunday may be the subject of reasonable policl' sance, he may order the removal of such sign, signboard, or bill- regulation by municipal corporations, either under the general board, and if same is not removed within ten days after he has issU:ed police power, or un@r an express or implied grant of power. fat such order he may himself· cause ifs removal, and the sign, sign- the pui·pose. The gene1·eJ statutes of the state on this subject fix board, or billboard shall thereupon be forfeited to the municipality, the limit and measure of municipal police power, unless the charter and the expenses incident to the i·emoval of the same shall become --expressly confers more. But the n1bnieipality need not cover the a lawful charge against any person or property liable for the entire field of the statute; and an ordinance forbidding only a erection or display thereof. "198 · portion Qf the acts denounced by statute may yet be valid. In (§807] EE. Searches and seizures. "A municipal corporation the exercise of the power under consideration municipal corporations in the absence of express authority may not authorize the search may regulate the conduct of business on Sunday; may within rea.for, and seizure of, property kept for unlawful use. "19'1 sonpble limits prohibit work or labor on such day; may pl'ohibit the' [§808] FF. Slaughtering animals and slaughterhouses. - 1. sale of particular merchandise on that day; and may regulate SunIn general. "The slaughtering of animals for food within municipal day amusements. While such regulations should not be discriminabound&ries is a prope1· subject fo1• regulation by municipal corpora- tory a.nd must be reasonable, the fact that the municipal authorities tions, under the police power to protect the health of their inhabi- to whom the power is delegated single out certain occupations does tants, unless especially governed by the supe1ior power of a state not operate as an unre~sonable or illegal disCJ•imination against those statute. Following the-general rules, slaughtering regulations must engaged in those occupations."JOJ: , be reasonable and not arbitrary or discriminatory. In the exercise (§818] HB. Vehicles and mean.s of trnnspOTtation'.· - 1. Jn of ita power a municipal corporation may prescribe the character 1;:eneral. ."Subject to the limitations discussed he1·einafter, ordina.. of buildings and equipment for slaughterhouses; may provide for rily municipal ccrporations have power to regulate the traffic of their inspection, the inspection of those employed therein, the inspec:- · vehicles t.f all kindS, commonly used within the corporate limite, as tion of the animals to 1>e slaughtered· and of their meats; and may an exercise of their police powers, not inherent, but granted to the prohibit the sale as food of aninrals not inspected and slaughteretJ corporation exp1·essly or impliedly. But such regulations must ~ &t such slaughterhouses. It has been held that a municipal regulation reasonable, and not arbitrary or discriminatory. And the power providing that licensed slaughterhouses shall slaughter for the public to regulate such vehicles does not authorize prohibition. But under Without discrimination is valid. In some jurisdictions municipal a grant of express power a municipal corporation may prohibit par~ corporations maintain abattoirs for the l>Urpose of pl'oviding a. place ticular kinds of vehicles from operating on its _sb:eets or other public where cattle may be killed and prepared for food by those skilled in p1aces. Vehicles merely passing through the municipality may not the work of that kind and under the control of regulations of the be included; but thoae may which belong to non~dents if publicly municipa.l corporation; such abattoirs_ are not itltended to provide used in the municipality, or if the route terminus is within it. The a place of business for slaughterers.188 municipal corporation may prescribe what style· of vehicles sha11 11 As nuiscinca per se. Although the maintenance of a slaughter- be used for public passenger service, but not for private use; what house is a legitimate business and not a nuisance per se, a slaughter- streets they must travel, if regular lines; and where hacks must house may be a nuisance when located near an inha.bited locality. s~~m~; whether the driver may leave them; and what mark of dis. So under the rules as to the authority of municipal corpol'&tions over tmction he skall wear. It me.y prohibit anyone from riding on the nuisances such corporations may declare slaughterhouses to be seat with the driver. It may also prohibit fast driving, but not nuisances when the facts and circumstances warrant it; rna.y pro. slow driving; and may assess a penalty against B: public. conveyance vide the limits within which they may be erect.ed. and maintained· for refusal to carry a passenger. It may confine vehicles to the may demand their removal from particular districts, though the; righ.than~ sid~ of the centers of sti-eets, ~ith reference to ~e di. may have been established pursuant to ordinances authorizing rections Jn which they are severally moving, and may forbid the them; a.nd may even entirely exclude them from the corporate bound- leaving of any vehicle standing on a street elsewhere than on the aries, But af course the facts and circumstances must show them to righthand side thereof with reference to the direction in which it be nuisances in fact. "189 faces. A municipal regulation which interferes with its lawful {§809] 2. Sta.tutory statement as to Philippine municipal CtW· us.e of sidewalk~ ~y pede~trians and e~dangera ~he safety of P.edesporations. - a, Municipcilities in regular provinces. "It shall be tr1ans by permitting vehicles on the sidewalks is unreasonable and the duty of the municipal council, conformably with law: invalid. ''¥ * ¥ • ¥ "Chmrges and prices. Generally speaking, a municipal corpora"(q) To establish or authoriz.e the establishment of sla.ughter- tion, under its properly delegated police power, may prescribe rates houses , . . ~md inspect and 1 -egulate the use of the same. for carriage by cab, hack, coach, omnibus, car, or other vehicle, tl8ed "¥ ¥ ¥ "' * *"200 in transportation within the municipal boundaries. [§810] b. Municipalities in regular provinces. "The municipal "Delegation of power. While a. municipality may vest upon desig ... - - - - nated officials or officers certain power of discr'etion to carry into ~=: ~: ~~r;:~~d~~-~; effect the regulation under consideJ:ation, and in doing so may autho6 196 r:i~.2~. 8:;26;!r'·Id~~Jt:'':,;:!::0~ ~ui:~~~8:;~!1e;~la~!~~:f:i rize police officers .to requ~re drivers to obey ~eir ~irections in regard 197 ~ See. 19, Rep, Act No. '109, with reference to City of Mimlla. to the places which vehicles may occupy, it cannot confer upor. 198 "' "' May 31, 1954 201 See. 2621), Rev. Adin. Code. 202 See. 18, Rep. Act No. .t.09, 203 43 a. J.-.aas. LAWYERS JOURNAL 261 such officials wtlimited discretion in prescribing the rules fc.r the regulation of vehicles on the streets or other public places. "Jilt: [§31'] 2. Statutory· provisfons as to city of Manila. "The Municipal Board shall h3ve the following legislative powers: . . .. (v) ••• to regulate the speed of horses and other animnls, motor and other vehicles, cars, and Jocomotives, within the limits of the city; to regulate the lights used on all such vehicles, cars, and loeomotives; to regulate the locating, constructing, and Jsying of the track c..f horse, electric, and other fo11ns of railroad in the stl·ects or other public places of the city authorized by Jaw; to provide for and change the location. grade, and crossings of rii.ili-o&ds, and compel any such rai1road to raise or Jower its h·acks to conform to such provisions for changes; and to require railroad companies to fence their ptoperty, or any part thereof, to provide suita'hle Jirotection ·age.inst injury to persons or property, and to construct and repair ditches, drains, i;ewers, and culverts along and under ·their tracks, so that the natui·aJ drairiage of the -streets and adjacent 11roperty shall not be obstructed. ... • * * 't"ll05 (§315) II. Zoning. - 1. Definition, nature, a.nd history. "The verb .'zone' ha.a acqui~d a comparatively new meaning, that is, to sep~rate the commercial or industrial districts from the resident districts, and to prohibit the establishment of places of business in · any designated residence district, or vice versa. In its original and primary sense, zoning is simply the division of a municipal corporation· into districts and the prescription and applica.tion of different regulations in each district. Roughly stated, these regulations, which may be called 'zoning i-egulations,' are divided into two classes: Those which regulate th"' height or bulk of buildings within certain designated districts, in other words, those regulations which have to do with stl'Uctural a.nd architectural designs of the building; and those which prescribe the use to which buildings within certain designated districts may be put. Zoning c.rdinances are of com. paratively recent origin. The subjP.ct of zoning hRS certainly beccme .& very important bran~ of the law affecting municipal cor. porations. ''lllOll • [§~16] 2. Source and dtlegation of power to municipal cor. vorotonu. "The powe1 of municipal corporations to enact zoning regulations ~ay be derived frum constitutional or statutory provisions. Within its ccnstitutional limitatirns the legislature may auhoriZe such enactment. The power may also be derived direetly from ~e constitution ·>f the stat.e; and state constitutional provisions con~ernng the power have been upheld as against the objection that thel'.' violated the federal constitution as a denial of the equal pro.. te.::tion. of the law, or discrimination. Also, the statutes conferring :;1:tia;:e::~: ~:r:fhc:a:~~~~~st the objection that they were "Construction of statute. It has been held that statutes conferring upon the mtmicipal corporations the power to enhot zonir1g n:gulations should be liberally construed. ''P~lice power as su.fficihl.t sOtwce, It has been suggested that the -police power residing in the state legislature is sufficient to au~orize the enactment of zoning statutes, i~ done wisely; that zoning_ wtder the power of eminent domain is unwise; and that ::~g:~.~: necessity. for constitutional amendment to provide for (§317) 3. Eriste."Ule and limits of power. - s. In g~eral. "As a genera] rule, subject to the limitations to be noted here.. inafter, municipai corporations may enjoy th~ right or power to enact reasonable zoning ngulatil ns. Regulations to that effeet Ji:.ave been upheld as against the objection that they were unconstitutfonal, as deni&l of due process or equal protection of the law and that they ware discriminatory. The power is not an inhe1•eni one; it oan be exercised only when it is expressly ~nferred on t-he ?1unicipal corporation or rises by necessary imptication. While it has been held that the power to enact certain zoning regulations ~ercised as an incidomt of the municipal police power, 204 4S c. J. 440-442. 205 See. 18, Rep. Act No. 409, 206 43 c. J. 333. 207 43 c. J. 333.a34. the weight of a.uthority is to the effect that reasonable zoning regulations may be proper exercise of the municipal police power. But the question whether municipal corp•>l'ations have power tr.. enact zoning regulations often depends on the particular regula.. tion in question. It depends on conditions. Unde1· certain conditions and circumstances zoning regulations may be the constitutional and proper exercise of the municipal police power, but under other conditions and circumsta.nces they may be considered unconstitlltional as being an attempt to deprive owners of real property of their rights of dominion over it without due compensation or in an unreasonable manner. In this connection it should be noted that the police power of a municipal corporation must be responsive, in the interest of common welfare to the changing conditions and developing needs of growing communities. And, as it is the case with police powers genera.lly, zoning regulations which may at one time be regarded as not within the power of a municipal corporation may, at another time, by 1·eason of changed conditions be recognized as a legitimate subject of municipal power. Also, zoning regu1a.. tions which may be regarded as within the powei· of one municipal corporation ma.y not be so regarded. as to another. "!108 [§318] b. Limits on uercise. - In g61UWO.l. ''The power to enact zoning i-egulations. by municipal corporations, if it exists, must be exercised subject to the limitations and restrictions which the legislature may have imposed up011 the municipal corporation. It must be exercised reasonably, not arbitrarily. without diser.imiriation. The regula.tfon must have some tendency to promote the 1>ublic health, public safety, and publie welfare. The power of the municipality to zone is not limited to the protection of established districts, but extends ta aid in the dew!opmenti of new distriots. "209 [§319] (2) Matters considered. "In determining whether a J.oning regulation is valid two q!nlstiona present themselves: <1> Whether the scheme •)f zoning is as " whole sound, that is. to say, whether the methDd of c1assification and the districting is reason.. ably necessary W the public health, saftey, morals, or gene1:al w,elfare. (2) Whether the scheme of classification and districting has been applied fairly and impartially in ea.ch instance. It is difficult to isolate the several factors which may be considered in the enactment of zoning regulations. Such regulations may i11volve complicated and conflicting elements and interests. Zoning regulations must take into consideration the ehar~te1· of the district, the fuLurc development of the municipality, and the dh-eetion of municipal improvements. All questions affecting the public and private intc1-ests must be consider~. The peculiar suitability for particular uses, the conservation of property valu~s, the· permanency of the structure and ita use, are all matters to be · C')nsidered. Zoning regulations must be in accordance with some wen considered plan and must adopt a definit.e policy. 'rhey should describe with certainty the district or districts within which they arc applicable. Tl-e authority ta zone contemplates fixed areas with defined boundarici. To what extent it is necessary to zone the entire municipal bounda1ies often depends on circumstances, and also the rule ma.y diffe1 as ltl different municipal corporations. An absolute identity of treat.. ment of particular parcels of land is not 1·equired. Under partfoular circumstances zoning may be limited to one street only. When the statute so requires it, zo:iiing regulations should be in accordance with well-considel'ed plans applying within the entire municip,al boundaries."!110 "Aesthetic Cw111idtrationa. .Aesthetic considerations alone do not justify the enactment of zoning regulations. But when once it is determined that regulation tends to promote the public health, public !33.fety, or public '5"elfal-e, l\esthetic considerations may M considered in the enactment of the particula.r regulation.''211 [§320] c. Pa.rticular 1•ou•et"s. - (1) Architectwral design and structural designs. Municipal zoning regulations may consist in regulating th~ architectural and structural designs of buildings within specified districts in regard to bulk, building lines, heights, open spaces, yards, etc, In the exercise of the power apartmeiits,· tenements, and like structures may be. zoned and their height, bulk, open spaces, etc., regulated; as for inEttanee, the particular 208 4.3 c. J. 884.-836. 209 48 c. J, 886. 210 " c.,1. aae.8a8. 211 Stat.e v. Harper, 182 Wl1. 14l!, 158, 88 A.L.R. 289. 262 LAWYERS JOURNAL May 31, 1954 nwnber of families for which such structures may be built may be regulated,212 ''It is needless to . . . analyze and enumerate all of the factors which make a single family home "'In.Ore desir11.ble for the promotion and perpetustfon of family 1ife than an apartment, hotel, or flat. It will suffice to say that there is a sentiment pra.etically universal, that this is so. But few persr.ns, if given their choice, would, we think, deliberately prefer to establish theil' homes and rear their chi1dren in an apartment house neighborhood rather than in a single home neighborhood. The general welfare of a c<immuw nity is but the aggrega.te welfare of its constituent members and that which tends to promote the welfare of the individual members of society cannot fail to benefit '!IOCiety as a whole. The entrallce · of one apartment house or flat into n district usua11y means thP. entrance of others, and while it m&y mean an enhancement of value of the adjacent property for the building of similar structurPs, it detracts from the value of neighboring property for home building. The man who is seeking to establish a permanent home would not deliberately choose to build next to an apartment house, and it is common experience that· the me.Ya W'ho has ah'eady built is dissa.. tisfied with his home location and desires a change, In other words, the apartment house, tenement, flat, and like structures tend to the exclusion of homes. The home owner may move to another district but this may not be a sufficient solution . , . (of) his problem, for if no protP.ction can be given to strictly borne districts - such as is contemplated by a comprehensive and 11roperly constructed zoning plan - he may be forced by the e.verincreasing encroachment of apartments and flats to relinquish, if not altogether abandon, the benefits emanating from a permn.. nent home site. "2ll ' "With particular refet'ence to apartment houses, it is pointed out that the development of detached house sections is greatly retarded b7 the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in such sections very often the &pa1tment house is a mere parasite, constructed in order to take advantage of the open spaces and at. tractive surroundings created by the residential character of ihe district. Moreover,, the coming of one apartment house is followed by others, interfering by their height and bulk with the free cir. cula.tion of air and monopolizing the i·ays of the sun which othel'WiR& would fall upon the smaller homes, and bl'inging, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and 11arked automo:>bilots, of larger portions of the streets, thus detract-ing from their safety an.d depriving children of the privilege of quiet e.nd open spaces for play enjoyed by those in more favored localitie.11 - until, filially, the residential character of the neighborhnod and its desirability as a place of detached residences arc utte1·Jy destroyed, Under these circumstanCf:s, apartment houses. which in a different environment would be not only entirely unobJectionable but highly desirable come v~ry near to being nuisances."21• ''Discussion of, a1'.d nason. for, m.le. - Restriction of the use of land to buildings each to be occupied as a re1idence for a singlP family may be viewed at least in two aspects. It may be regarded as preventive of fire. It seems tn us manifest that. other circwnstances being- the same, there ia less danger of a building ~ ~oming ignited if occupied by one family than if occupied by two or more families. Any increase in the number of persons or of stoves or lights under a sirteie roof increases the risk of fire. A regqla.. tion designed to decrease the number of families in one house may reasonably be thought to diminish that l'isk. The space betwef'n buildings likely to arise from th,; separation of people into a single family under one roof may rationally be thought also to diminish the hazard of conflag1·ation in a neighborhood . . . It may he a reasonable view that the health and general physical and mental welfare of society would be promoWd by each family dwe1ling in a house by itself. Increase in fresh air, freedom for the play of childreJI: and of movement of adults, the opportunity to cultivate a bit of land, and tke reduction in the spread of contagious diseases may be thought to be advanced by a general custom that each family 212 4.8 c. J. 838-368. 218 Miller v. Loa An1relea Bd. or P11blic Worka, 196 Cal. 4.77, 4.93, 284. P 881. 214 Euclid v. Am.bier Realty Co., (U.S.) 4.1 $11p. Ct, 114. live in a house standing by itself with its own eurtilage. These features of family life are equally essential or equally advantageous for all inhabitants, whatever may be their social standing or material prospel'ity ~ The1·e is nothing on the face of this by.law to indicate thet it will not operate indifferently for the g'eneral benefit. It is a matter of common knowledge that there are in humerous distl'icts plans for real estate development involvine modest single-family dwellings within the reach as to price of the thrifty and economical of modP.rate wage earning capacity. "215 "The power is not an inherent one, it must be expressly gronted t.•r rise by necessary implication, and in many instances the existence of the power has been denied, as for instance, prohibiting tbP erection of four.story apartment houses, prohi.biting the ereetio~ of frame office buildings, prohibiting the erection of one-story buildings within a particular district, prohibiting the ~rectltin, within a specified district, of buildings to be used by more than one family, prohibiting the erection of a four.family flat within a i·esidential district, prohibiting the erection of two-family houses within a district. In l'..ny event the power must be exercised within its scope. Thus, a regulation providing that no buildings shall be erected, altered, or used as a residence for more than one family, but not regulating the size of the \ot or specifying how far buildings shall be separated, is not authorized by statute authorizing municipalities to regulate the location of industries and buildings with a view to promote the public health, safety, and general welfare. Also, authority to regulate th.e 'manner and method of building' does not autho1·ize the restrfotion of the location of cne-story build. fogs. The reaulations mu1t have the tendency to promote th~ health, safety, or general \velfare. The power must be exercisei'. reasonably, not arbitrari1y, and without discrimination, although reasonable classification ma.y be permitted. "210 215 Brett v. Brookline Blda"., Comr., 260 MRBI. n, 7S, 146 N.E. 289. 216 4.3 C:. J. 889-HO, <To be continued> TEXT OF COURT . . . <Continued from page 220> "Segregation of White and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the pollcy of l!eparating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of in. feriority affects the motivation of a child to learn. Segregation with the S&nction of the Jaw, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system." Whatever may have been the extent of psYchological knowledge at the time of Plessy V. Ferguson, this finding is amply supported by mod~rn authol'ity, any language in Plessy V. Ferguson contra.ry to thi"s finding is rejected. We conclude that in the field of public education th.e doctrine of 'separate but equal' has no place. Separate educational facilitie11 are inherently unequal. Therefore, we hold that the plaintiffs a.nd others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws raranteed by the fourteenth amendment. Because these arc class 8.ctions, beca.use of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On i-eargument, the consideration of appropriate relief was necessarily subordinated to the primary question - the constitutionality of segrega.tion in public edueatioa. We have now announced t~at such St>gregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will l>e restored to the docket, and the parties are requested to present further &rgument on questions 4 and 5 previously propounded by the court for the reargument this term. The Attorney-General of the United States is again invited to participate. The public education will also be permitted to appear as amici curiae upon request to do so by September 15, 1954, and sdbmission of briefs by October 1, 1954, It is so ordel'ed. May 31, Hl54 LA WYERS JOURNAL 263 Dll. CECILIO PUTONG JOINS FRANCISCO cotLEGE AS VICE-PRESIDENT The Board of Ti·ustees of the Francisco College haa appointt-d ·Dr. Cecilio Putong, fonner Secretal'Y flf Education, as Vice. President and Dean of Gradllo.te Studies <M.A.) of the Fl'&ncisco College. Dr. Puto~s appointment to the s"cond hiche-1t adminh1h·a... tive position in the Frll.1lci&co Colle1e; is in line with , the school's policy 9£ giving the youth of the la.nd the best in educational guidance. and ins.. truction. The name of Dr. Pu.. tong is inextricably linked with the field of education in the Philippines. DR CECILIO PUTONG Graduatinc as valedictoiian fr.:>m the Philippine Normal School in 1912, Dr. Pt1tong was immediately appointed principal of the Dimiao Intermediate School in Bohol, his home piovince, at the youthful are of 21. F1'0in thence on his riire in the rung of PUbi:iC "eciUcatiOli was meteoric. He successively. became· high school principal in· Abra and La Union, 1922-1924; division superintendent of eehools for Romblon, Abra, Agusan, Leyte, 1924-1931; chief, cut;,rieulum department of the Bureau of -Education, 1931-1938, during which period he also- served as division suJ)erintendent of schools for Bulacan, Tarlac, and Pangasinan for brief terms; and superintendent of eitj aebools, Manila, 1988-1944. After liberation he rejoined- the Department of Education as Chief of the Elementary School Division. Subsequently, and in quick succession, he became Assistant nirtcti)r of Public Schools, Director of Puhlk Sehool11, Undet'ttertt&l"J of Education, and finally, Secl'etary of Educatfo"l. He retired from the eo~rnment 1el'vlce last Decun~r. He obtained his B.S.E. degree from We11tern Illinois St&te College in. 1920, his M.A. degree fro1n Columbia University in 1921 and his Ph.D. degree from the Unfrerstty of Chicago. Hi1 studies in eljucational institutions were supplemented by travel for purposes of 'observing educational practices &nd trend~ under a Uneac., fellow.!'hip grant in 1950, during which he attended the Fifth Uncaco Conference at Flcrence, Italy aa one of the d<!leR"a~s from the Philippines. Ht" also vi11ited school aystems in the United States, Mexico, England, Italy, Spain, France, Denmark, and Swtden. He had vialted schoola in Japan when he attended the Pan-Pacific New . Educational Conference at the Imperial Uni. ver1ity of TokyC\ in 1985. Last July he attended the Sixteenth In~ationa1 C<;-nfei1mec on Public Gove1·nment and· after the conference he made studies in higher education, visiting the University of·Louvaine and the University of Brussels in Belgium, the University of Leyden in Holland, the lJniversity of London and Oxford University in Engle.nd, The Ministry of Education and Ecclesiastics in Norway, Columbia University, the Unive1"Bity of Chicago, and Han-ard Univeraity of the United StatE"s, and the Central University of Had1·id and the University of Salamanca- in Spain. He attended the Seventh Centennial of the University of Salamanca as a repre.sen~ti~e of the University of the Philippines. He is listed in W"/1.o's Who in. American EducoJ.i"n, Leaders in AmerieGfl Ed11r.ation, and World Riogrn.pli11. FRANCISCO COLLEGE ANNOUNCES THE OPENING OF SCHOOL YEAR 1954 - 1955 COURSES OFFERED:• GRADUATE SCHOOL: Master of Arts Master of Laws •LAW: Complete 4-year course (Ll.B.) • EDUCATION: Complete 4-year course (B.S.E.) • LIBERAL ARTS: Complete 4-year cou1·se (A.Il.) Associate in Arts (A.A.) Pre-Law •COMMERCE: Complete 4-year (B.S.C.; B.B.A.) 2-year Commercial course (A.C.S.; B.B.A.) }.year Collegiate Secreta1ial Course •ROTC • HIGH SCHOOL Enrolment: - Jurie 1-13 Classes Open: - June 14 SPECIAL DISCOUNT Working Student~ are given 10% Discount on their . tuition fees. HON. VICENTE J. FRANCISCO President DR. CECILIO PUTONG Vice-President For particulars write or see the Registnr FRANCISCO COLLEGE 1192 Taft Avenue, l\j~nila Tel. 5-30-86 LAWYERS JOURNAL M:&J 31, 1954 LAW BOOKS BY FRANCISCO IN SERIES .... (Reviaed Caah Priee Lid Aa Of November 6, 1968) Pric• Revi1ed Election Code (1967 Ed.) •....... 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