The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume XIX (Issue No.6) June 30, 1954
Year: 1954
Language: English
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extracted text: A!'f<. l" .~76 JM- LAWYERS ~ JOURNAL MANILA,, PHILIPPINES VOLUME XIX JUNE 30, 1954 NUMBERfi VICENTE J. FRANCISCO Editor and Publisher ' LOPE E. ADRIANO ,R'JiiOP''O J. FRANCISCO Assistant. Editors ADELA OCAMPO Business Manager SUBSCRIPTION AND ADVERTISING RATES: Subscription: P18:00 for one year; Pl0.00 for 6 months. Advertising: Full p~ge - rt.05.00; Half page - P65.00; CERTAI N VEXATIOUS QUESTIONS JN OUH NATIUNAUTY LAWS - B)' Atty. Leon T . Garcia Sll PREME COU RT OECISIONS: Samso11 vs. Anda/ de Ag-oJilu, d als. - Justic1· Paras . Balinun vs. Llc Leon, et al. - Justice P<i.ras Wu vs. Sycip - Just~ce Padilla The Shell Colllpany of P. I ., Ltd. vs. Va1io - Justic, Padilla Riveru, cl a ls., vs. Jutlgc Ocampo - Ju.c:licc Pablo Rall \'S .. Republic (1f thf' Philippine.!' - Jt:sl1ce Pabb People of the P hilippines vs. Livat·a - J uslirc Rcngzon Ng vs. Rcpuhlic of the Philip1)i11cs - J u .. tic{' J ug~ Allied Wo1kcrcJ A~sn. ""· Insulc.r Lumb..:r CCI . -- Justice Mont"t>mu)Tr Johnson vs. Turner, ct al. - Juslict: !\1rml..,mayor Tolsa vs. Judge Panlill<.i, ct als. - J ustice Montemayor P eo1>lc of the Philippines vs. Minga.o - Ju!<tice Reyes Teodoro vs. Balatbat, el al. - Justiee Rl•ycs People of t.'1e Philip1lines vs. Catcl1ero - J m::tice Heyes People of the Philippines vs. Aquino - Justice" Reyes Festejo vs. Fernando - Justice Diokn':l Planas vs. Madrigal & Co. -· J ui<ticl' Bautiste. Ang1•\o P eople of the Philippines vs. Diet - J ustic"' Bautisti1 Ang-t•ln . De Vcrzosa et als., vs. R ii.:omrn, el' a ls. - J u!'tic' Rautista AnKelo Bime<la vs. P{'rez, et a l -· Justice Bautista An!,!Clo ~:s:l50vs~e~e~~icthi~e/~~~i.ce._B~t~~:i~ac ri~~~::ta .An~~j,;. Algarin, et' al ., vs. Nava1·ro, et al. - Justice Labrador People o thc Philippine:; vs Antg"On - Justic(· Lah1:a.lor" . . Marasi s . Ronquillo - Justict: L<\.brado1 vs. Judge Mac<>ren, et al. - Justice Labrado1 do - J usti<'c Lahrndo1· doro, ct al. -. 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Free literature on request. Place YOUR order now at - EAST PUBLISHING 1192 Taft Avenue, Manila Tel. 5-43-55 MAGAZINES ANNUALS RAFAEL PALMA - MY AUTOBIOGRAPHY P3.00 per copy, postpaid HANDBOOK ON LABOR LAWS - by Morabe &: Soriano P7.00 per copy C i11d ude P.50 for postage) Capitol PUBLISHING HOUSE, INC. "Heme •f Pine Ott.et Prlalinr' A B•m.ua Bou• hblicatlons Siib1idl•l'1' Teb: Dial H aak for llW or&I ukfor H~J CERTAIN VEXATIOUS QUESTIONS IN OUR NATIONALITY LAWS* BY ATTY. LEON T. GARCIA (Vice Consul oJ/ the Philippines) The question of nationality has in the past been the cause of inte1·national complications or even wars tha.t it has become the conc1:rn of international bodies which gather in convention or conferences for the purpose of finding ways and means of minimizing ns much as possible the conflicts in the Municipal Laws of the various countries of the world. Sui::h problems arise every now and then and there seems to be no end to questions growing out of such conflicts. Our nationa~ity laws cannot be an exception to this. It is, therefore, my desit'c to present to you some of the most v<>xntious questions in our nationality laws. Firstly: - Whether or nOt it.. was ever the policy of the United States to extend to the Philippines the appli~ation of thc princirle of jus sofi - a doctrine which predominates in the United States-a principle which was applicable in the Philippine:; dcring the Spanish Regime. Secondly: - Whether or not bv the marriage of an alien woman to a Filipino citizen which automatically make her a citizen of the Philipr>ines. her minor children pr~viously begotten with a .de.. ceased husband or other man, follow her new political status. Was it ever the policy of the United States to extend to the> Philippines the applic&.tion of the principle of jus soli as it applies in the United States - a p1'inciple which was .J.pplicable in thr Philippines under the Stlanish regin .. c? ls the prindple of jus soli a:;: enunciated in the Roa case and other cases based on it., in consonance with Jaw? If not, why? If, in the affirmative, how far is it justified? Docs the jiu soli principle affect those per~ sons born between the period Ap?"il 11, 1899 and July 1, lfl02?. Before the American Occupation in the Philippines, th<'re hnd not been so mtl~h iieed for elariiir.ation of the provisions of th!' Sp:.i.nish Civil Code in the matter of citizenship, because there was no such term of "Philippine citizen", or "citizc>nship of the Philippines", but that the natives of this country, generally, were regarded and denominated as "Spanish subjects", or "subjects of Spain". In passing, it mny be stated that under the Spanish Jaw in the Islands, beth tl1e doctrines of jus so/i and jus san9uinis were reC'ognizcd in this jurisdiction as provided in Articles 17, etc., of the Spanish Civil Code, which enumerates the following aS Spaniards: (a) persons born in the Spanish territory; (b) children of a Spanish father or mother, even if they were born outside of Spain; (c) foreigners who have obtained a certific'lte of naturalization; and (d) those \vho have ,not obtained such c£rtificates but ~ ~acquired domicile in any town in the Monarchy. Article 18 of the Civil Code, however, gave to children the nationality of their parents while they remain under parental authority. That in order for those born of foreign parE:nts in Spz.nish territory to enjoy the benefits which paragraph 1 of Article 17 gave to them, it is indispensable roo.uisite that the parents declare, in the manner and before the official in charge of the civil registrY specified in Article 19, that they choose in the name of their children, the Spanish nationality. renouncing any other. Article 19 gave to children of foreign pa1·ents born in Spanish domains the right to declare within .::i. year following th~ir majority or ;:mancipation, whelher they desire to enjoy the Spanish nationality. With the clmnge of sovereignty, however, the aforesaid provisions yert!lining to nationality being political in nature, wen: ipso facto abrogated because, "pursuant to well-established public h!w, when a nation cedes territory to another, either in view o! conquest or for some other cause.. such Jaws which arc of a pclitical nature and pertain to th<.: prerogatives of the previous government, immediately ceased upon transfer of soverl'ignty.'' <Up. Alty, Gen. U.S., July 10, 1899, cited in Mariano Sy-Jueco v. ?ifanuel A. Hoxas, decided by the Court of Appeals, January 31, 1941, CA-G.R. No. 7026, anrl ·also in ,Roa v. Collector of Custom:.., 23 Phil. 315). Under international practice in general, the inhahitants of ceded territories, not only automatically lose their o!fl political allegiance but also acquire that of the 'lAnexing State. Ordinarily, the reservation is made that they conset·ve their criginal nationality by means of option. <See Garci.::i., "Problems of Citit.cnship in the Philippines'', p. 19, and authorities cited>. By Article 1 .x vf the Treaty of Pad;, of Dcr;ember 10, 1898, ~tween the Umted States of America and Spain, it was pro. v1ded that "the civil tlnd political status of the na.tive inhabitants of the territories hereby ceded to the United States, shall be ·determined l=y thr: Congress." Filipinos remaining in this countl"y or temporarily sojourning abrnnd who were not natives of the Pe. ninsula could not, according to the terms of the treaty, eleci to retain their allegiance to ·Spain. By the cession, their allegiance became due to the United Stz.tes and they became entitled to its protection.. (Uoa case, supra). Although they did not become citizens of the United States, the Filipinos ceased to be aliens in the sense of the immigration laws. It was not the intention ot the Commissioner::; who negotiated the Treaty to give those inhabitants (of the Philippines and Porto Rico), the status of citizens of the United States. <Garcia, "Problems of Citizenship', p, 21; and Moore, "III Digest of Intcrnationa.l Law", p. 32L) Despite the authority conferred upon it by the Treaty, the Congress of the United States did not enact a law to that effect until J uly 1, 1902, when it appro\•erl the Philippine Bill of 1902, which provides as follows: "That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the eleventh day of April 1899, and then resided if! the Islands, and their children born subseque11t thereto, she.II be deemed and held to be citizens of the Philippine Islands, and as such entitlcr! to the protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in accordance with the pro\•isions of the treaty of peace between the United States and Spain signed at Paris December 10, 1898." <Section 4, Philippine Bill of 1902, which is similar to Section 7 of Act of Congress f)( the United States establishing civil government for Porto Rico" approved April 12, 1900.} This is a statement oi the p.>licy for th'1sc wh.:, were Spanish subjects on April 11, 1899, mt?aning those who were already born and were Spanish subjects on tlrnt date; and also as lo those who were born on and after the effectivity of the Act of July 1, 1902. The ioregoi11g provision of Jaw did not seem to cover persons Lorn in the Philippines of foreign parents from end after April 11, 1899 to July 1, 1902. For our use in this di':l~ussion Jet thig period be ca.lied a "vacuum" period in the absence of any law a.t the time. Said specific provision was amended by an Act of Congress approved on March 23, 1912 which added the following proviso: "Provided, that the Philippine Legislature is he1·eby nu. thorized to provide by law for the acquisition of Philippine citizenship by those natives of the Philippine Islands who do not come within the foregoing provisions, the natives of ot!ter insular possession of the United States, and such other persons residing ill the Philippine Islands who could become citizens of t-he United States, if residin,l therein." The provisions of section 4 of the Philippine Bill of 1902 as amended by the Act of March 23, 1912, were embodied substanJune 30, 1954 THE LAWYERS JOURNAL 265 CERTAIN VEXATIOUS QUESTION .. tially in the Philippine Autonomy Act ot 1916, otherwise known as the Jones Law approved on August 29, 1916. This provision in addition to the treaty constitutes lhc basis from which an analysis may be made whether or not it was ever the intention ,,f the United States to apply in this country the principle of ju.• soli, which predominates in the United Stutes as it WM also applica.hlE< in the Philippines dul'ing the former isovereign. An interpretation of the above provisions of the American Law for the Philippine Islands, which has become a legal doctrine ir. our jurisdiction and repea~edly fr>llowed, is found in the dechiiun ot the case of Roa v. Collector of Customs, 23 Phil. 315, which said: "Here Congress declared that a.ll inhabitants of the Philippine Islands continuing to reside therein who were Spani!!h subjects on the 11th of April, 1899, and then resided in this country, and their children . born subsequent th:n·eto, sJiall be deemed and held to be citizens of this country. According to those provisions it is not necessar:r for such persons to do anything whatsoever in order that they may acquire full citizenship. The same is true with reference to Spanish subjects who were born in Spain proper and who had not elected to retain their allegiance to the Crown. By section 4 the doctrine or principle of citizenship by place of birth which prevails in the Untted States was extended to the Philippine Islands, but with limitations. In the United States every person with certain exceptions, born in the United States is a citizen of that country. Under section 4 every person born after April 11, 1899, of parents who were Spanish subjects on that date and who continued to reside in this country are at the moment of birth ipso fa.cto citizens of the Philippines." For our purposes in this discussion, it must be borne in mind that Roa was born in the Philippines in 1889 of a Chinese father and Filipino mother legally marl'ied at the time of his birth. Bi~ father went to China and died there in 1900. Roa wns sent to China by his mothe'r in 1901 for study and returned here in 1910 when he was nearly 21 years of age. The Supreme Court dednred him to be a citizen of the Philippines. This decision has been followed thereafter in a number of cases a.nd became the rule until 30th September 1939, when in the Pae Chua case <G.R. No. 46451, 40 Off. Gaz. 2 Supp. 244), our Supreme Court abandoned it end hf'ld that a person of Chinese parentage, born in the Philippines in 1914, is not a citizen thereof, because she followed the citizenship of her parents and l'he was not a citizen of the Philippnies under Section 2 of the Jones Law, <Act of August 29, 1916>. But in Torres v. Tan Chim <G.R. No. 46953, F'ebruary 3, 1940) and in Gallofin v. Ordoiiez <G.R. No. 46782, June 27, 1940, 40 Off. Gaz. 8th Supp. 122, No. 12 September 20, 1940), said Court reverted to the rule of fus soli. Attention is invited to the fact that in the case of Tan Chim, the issue involved is the citizenship of his alleged father, Alejandro Tan Bangcc; who natter) was born in Manila in 1893. This case is similar to the Roa case in the sense that in both cases, the subjects involved were born in tht. Philippines before the advent of the American sovereignty, of Chinese fathers and Filipino mothers. The Court said: "We can not reverse the doctrine in Roa case .s-upra, if to convert him into an alien after final pronouncement in 1912, that he was a Filipino. If we depart from the rule there established notwithstanding the almost exact 3nalogy between the two cases, nothing short of legal anachronism would follow and we should avoid this result." In the Gallofin v. Ordoiiez case, supra, Ordoiiez was born in Pasay, Rizal, in 1891 of Chinese father and Filipino mother as IUegitimate child. Similarly, in Yu Ching Po. v. Gatlofin, G.R. No. 46795, promulgated on October 6, 1939, it was held that a person born in the Philippines of a. Filipino..mestizo father and a mestiza-Chinese mother, notwithstanding vagueness in point of paternity and matc.rnity, because according to our decision, "no deeen si es hijo de padre Filipino de madre china, o si lo es de padre chino y de madre Filipino", is a Filipino citizen, for the reason that under article 17, paragraph 1 of the Civil Code, which was in force in that year, he was a Spanish subject, which nationality he conserved. Again on September 16, 1947, in the case of .lose Tan Chong v. Secretary of Labor, G.R. No. 47616 and La.m Swee Sang v. Commonwealth, G.R. No. 46723, jointly decided l>y the Supreme Court on that date, it was held that the petitioner in the first case •born in Laguna in July, 1915 of Chinese father and Filipino mother lawfully married> and the applicant in the second case \born in Jolo, Sulu, on May 8, 1900, of Chinese father a.nd Filipin<:' mother) who were born of alien parentage, were not and are not, under this section (section 2 of the Jones Law), citizens of the Philippines. Then on September 26, 1952, in the case of Talaroc Y. Uy, G.R. No. L-5397 in quo warranto prot'eedings instituted by defeated candidate against the elec.tion of Alejandro D. Uy on the ground that the latter was a Chinese national, the court h<!ld that Uy wa11 a citizen of the Philippines, for having been born on Jan. 28, 1912 in Iligan, Lan~o. of Chinese father and Filipino m:>ther while hi's 'parents were living as common-law husband and wife; latter contracted religious marriage in March 1914; father having died in Jligan in 1917 and mother died a widow in 1949. He became a citizen of the Philippines for as a minor at the time of death of his father in 1917, he followed his mother's citizenship who reacquired her original citizenship following the death of her husband. <Note: Com. Act 63 approved on October 21, 1986, provicle-s certain procedure for a Filipino woman who lost her original citizenship by marriage to a foreigner, to re- · acquire her fost citi~enship after dissolution of marriage. Hence automatic reversion was abrogated by Com. Act No. 63) From a review of the diHel"ent cases which were decided by the Supreme Court following the principle of the Roa Case, it is revealed that in the majority of such cases the persons were born in the Philippines of Chinese fathers and I•'ilipino mothers, legally married, or in some cases bom illegitimate and whose births took place before the ndvent of the Am.!rican Sovereignty. Among such cases are Vano v. Collector of Customs, 23 Phil. 80 in which subject was born in the Philippines of Chinese father and Filipin? mother in 1892; U.S. v. Ong Tianse, 29 Phil. 332, born in Leyte, in 1890 o! Chinese father and Filipino mother; U.S. v. Ang, 36 Phil. 8i'i8, born in Philippines of Chin1:se father and Filjpino mother; U.S. v. Lim Bin, 36 Phil. 924, born in Philippines in 1882 of Chinese parents; Basilio Santos Co. v. Governml!nt 52 Phil. 543, born in Malolos, Bulacan, as illegitimate child of a Chinese father and Filipino mother before ·the American Regime; Yu Ching Po v. Gallofin, G.R. No. 4679f>, 11romulgated on October ti, 1939, father of person involved was born in the Philippines during enforcement of the Civil Code; Mariano Sy- J ueco v. Manuel A. Roxas CCourt of Appeals case) CA-G.R. No. 7026, decided .:in January 31 1941, born a.s natural son of Chinese father and Filipino mother <parents contracted marriage in 1898>; Torres v. Tan Chim, G.R. No. 46953, February 3, 1940, father of person involved was born in Manila in 1893, of Chinese father and Fili~ino mother; and Gallofin v. Ordonez, G.R. No. 46782, June 27, 1940, 40 Off. Gaz. 8th Suppl. 122 No. 12 Septt!mber 20, 1940, born in Rizal in 1891, of Chinese father and Filipino mother (illegitimate). As to persons born of foreign parents (Chinese parents) during the period covered by the American :r:egimc, that is, from April 11, 1899, there are only two cases so far upon witich the Supreme Court make pronouncement, because for a long period of 266 THE LAWYERS JOURNAL June 30, 1954 CERTAIN VEXATIOUS QUESTION. time, the bench, the bar and the public had had t·he impression that the mere fact of birth in this country, of a child irrcspectivl'! iJi the nationality of the parents, conferred citizenship upon such person. In the case of Teofi\0 Haw v. Collector of Customs, S:l Phil. 612, in which Haw was born in Tey::bas, in 1916, d Chinese pa. rcntage, it was hE:ld that the "petitioner's birth in the Philippines makes him a citizen of the Philippines". This is the only csse decided by our Sup1·eme Court in which the principle of jus soli aa applied in the United States pursuant to the provi;lion of the 14th Amendment to the Constitution, was actually applied in this j uris. diction covering persons bom in the Philippines of foreiln pnrents during the American regime. The reason of the C:iurt was based on the 14th amendment to the Constitution of the United States which pervaded the legal minds of the Court as well as the members of the legal profession at the t ime, on the n.\'sumpt.ion that persons of ~imilar cirr.umstance'f if born in the United States could Mt have been denied admission in said country being citizen!' there. i;f, and on the strength of such nn analogy, it was believed thz.t e iierson bom in the Philippines could not have been denied admission into the country of their birt h which gave them PhilippinC citizenship. Such was the real impression at the time, and whether it was the correct view or not, attempt shall be made to analyzf'. the provision of the Congressional Ads to S(-E! the real intent of Congress as embodied in the law. · Between the decision of Teo!ilo Haw case supra and that uf Paz Chua case Sripra, both of whom were born in the Philippines after July 1, 1902, there is very sti-ong reason supporting the view and which is in consonance with the law, that the fus soli principle was not provided in the Philippine Hill and, therefore, t h!::! mere fact of birth in this country afte1 · that da.te did nol confer Philippine citizenship. This new ruling on Paz Chua case to the effect that the prin. ciple of j11s soli was not carried on in the Organic Act of 1902, was further strengthened when the same Court decideri jointly the two cases by declaring that: "x x petitioner Jose Tan Chong in the case o( Jose Tan Chong v. Secretary of Labor, G.R. No. 47616 <who was born in La.guna in 1915 of Chinese father and Filini1:0 mother, legally married); and applicant L.:im Swee Sang, :n the case Lam Swee Sang v. Commonwealth, G.R. No. 47623 (who we.s born in Sulu, in 1900, of Chinese father and Filipino mother ), were not and are not, under section 4, Act of July 1, 1902, and section 2, Act of August 29, 1916, citizens of the Philippi:ie Islands." Said Court further held: "Conside1·ing that the common law principle or rul<! o( jus soli obtaining• in England and in the United States as embodied. in the Fourteenth Amendment to the Constitution of the United States, has never been extended to this jurisdiction I Sec. 4, Act o( 1 July, 1902; Sec. 5, Act of 29 August 1916); and considering that the law in force and applicable to the petitioner and the applicant in the two cases :-it the time of their birth is section 4 of the Philippine Bill (Act of 1 July 1902) as amended by Act of 23 March 1912, which provides that only those inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the 11th day of April, 1899, and then resided in said Islands, and their childi-m born subsequent thereto, shall be deemed and held to be citizens of the Philippine Islands,'· We are of the opinion and so hold that the petitioner in the first case and the applicant in the second case, who were: born of alien panmtage were not and are not under said sections citizens of the Philippine Islands." ''Needless tu say, this decisi"n jg not intended or designed to deprive, as it cannot divest, of their F ilipino citizenship, those who were declared to be Filipino citizens, or u11on whom such citizenship had been conferred, by the court because of the doctrine or the principle of res adjudicata.'' The concurring opinion of Mr. Justice Hilado, in the two cases Inst mentioned is a simple, concise clarification of t-he issue in cer. tain respects, which says: "I concur in the .revocation of the doctrine of fus soli enunciated, among other cases, in the Roa v. Collector of Customs, 23 Phil. 315. Besides, the ruling of t-hat case can not be invoked in favor of the petitioner in G.R. NI}. 47616 nor of the applicant in G.R. No. 47623 for the reason that, while Tranquilino Roa in that case was born in the Philippines in the year 1889, when article 17, etc. seq. of the Civil Code were yet in force here and made him Spanish subject, the said petitioner and applicant in the instant cases were born, although also in the Philippines, in 1915 and 1900, respectively, i.e. after the abrogation of said articles, due to political character, upon the change of soverignt~· following the Treaty o( Paris ending the Spanish-American war. <Roa v. Insular Collector of Customs, 23 Phil. 315, 330; Hal!eck's International Law, Chapter 34, par. 14; American and Ocean Insurance Companies v. 356 Bales o( Cotton, Pet (26 U.S.) 511, 542; 7 L. ed. 242). As decl:?.red in the majority opinion, the citizet1. ship of said petitioner and applicant should be determined as of the dates of their ·respective /,frths. "At the t ime petitioner in G.R. No. 47616 was born U915) the law on Philippine citizenship was . contained in the Philippine Bill, section 4, as amended by the Act of Congress of March 23, 1912. Petitioner could not be a Filipino citizen upon the date of his birth because his father, who was legally married to his mother, was a Chinese citizen and not a subject of Spain on April 11, 1899, like his mother .. "The applicant in G.R. No. 47623 could not possibly be 3. Filipino citizen upon his birth CltJOOl because, aside from thefact that his father, who h: presumed to have been legally married to his mother, was a Chinese subject, there was no 1011· on Philippine citizc1~hip at that time, because firstly even the aforesaid articles of the Civil Code had previously been s.brogated, as already stated, by the change of sovereignty in the Philippines following the Spanish-American war, secondly, said articles at any rate did not regulate Philip_pim: citizenship nor did they make said applicant's f!:l'hcr a Spanish subject, and thirdly, the Philippine Bill was oot enacted until July 1, 1902." We are fully in accord with the majority and i:i the concurring opinions in the Tan Chong Case Cborn in Philippine'.l in 1915) G.R. No. 47616 that the Philippine Bill of 1902 which has no provision on the application of jus soli principle, was applied in his case because t hat was the law in force at the time of his birth. But we humbly dissent from the opinion in the other case of Lam Swee Sang G.R. No. 47623 <born 1900) because there being no law on Philippine citizenship a.t that time, the principle of jus sanguinis was applied to him by the court. In the absence of law at the time c-f Lam Swee Sang's birth in Sulu, the next question is: How E.hou\d his citizenship be determined? The Civil Code provisions on citizenship were by the t ime of his birth already abrogated; the Philippine Organic Act cannot apply to him for the simple reason that its provisions while d0termining the political status of the native inhabitants of the Philippines as of April 11, 1889, as agreed in the Treaty of Paris, cannot apply retroactively upon pe1·sons born in thu Philippines before it became effective in 1902 ; hence, the Court declared him k. be not a citizen of the Philippines, for he followed the Chinese nationality of his parents, who were Chinese citizens at the time 'l( his birth. But the Court failed to consider the case from another angle, t.hat is, it should have laid stress on the fact that at the time of June 30, 1954 THE LAWYERS JOURNAL 267 CERTAIN VEXATIOUS QUESTION. birth of applicant in this country, lhe Philippine$ wa.s alreadr a territory of the United States, in which the dcmncratic way of life was more pronounced than in any part of the world. It should have been borne in mind by said Court that any r:erson born like the circumstances of the applicant <1900> in P.L, began to breath a new air in a new atmosphere, under a democr<>cy whose p1·cvailing r ule was to the effect that the mere fact of birth in the United States conferred citizenship upon such person, irrespective of his pat·ents' citizenship. That was the paramount principle which predominated in the new sovereign country then and at the present time, We do not believe that the United States could have disregarded the position of those situated like the applicant, when even the early justices of the Supreme Court of the Philippines entertained the view as Mr. Justice Malcolm said in his concuning opinion in the Lim Bin case supra, that the principle of 111s soli was applicable in this country with limitation, on the· ba.sis of the case of U.S. v. Wong Kim Ark, 169 U.S. 649 . During the period of indecision on the part of the United States until the Organic Act of 1902 was actually enacted, the benefit of .such an indecision should be in favor of the persons who would otherwise be prejudiced thereby. And such rights acquired during said va. cant period, cannot be abridged by any subsequent legislation in the same way that rights to life, liberty and property should be protected. Although the Constitution of the United States did not extend to the island ez propio vigore, however, the same principle upon which the Government of the United States lies, and which underlie the protection of life, liberty and property, carry with them the right to the possession of a certain kind of political status which should naturally identify them as a result of their birth in a United States territory. The former sovereign actually applied in the Philippines the same principle or doctrine of jus soli aS it was and is still being applied in the United States. And no justifiable reason may be attributed, why same principle should not be applied in the · Philippines during this vacuum period. It would seem an injustice to let such persons' status to hang in the balance during such period of indecision on the part of the United States. Such an i:adecision on the part of the new sovereign can. not and should Mt prejudice the rights of person who would he.ve Leen adversely affected thereby Th£' fundamental reasons relied upon by the Supreme Court of the Philippines in the Roa case and the subsequent cases based on it, we honestly believe, while not exactly applicable or appropriate on the circumstances of the Roa and similar cases, for they were born during the Spanish Regime, would, undoubtedly, be the very same fundamental and persuasive reasons which very aptly would fit ant.I uphold the rights acquired by the persons born during the vacant (vacuum) period between April 11, 1899 and J uly 1, 1902, exclusive. The circumstances of these persons differentiate or distinguish their status from those born after the enactment of the Philippine Bill of 1902, it being the expression of thr! policy of -thi:: United States in the Philippines and should goverr. in determining lhe citizenship of persons born after the latter date SUMMARY OF PART I Summarizing our analysis of the antecedents, the development or evolution of the Philippine laws on citizenship, starting from the Spanish Regime, through the period of the Military-Civil Occupation, to the period of the Civil-Autonomous Administration by the United States of America, a nd the trends of the constructbn or interpretation of said laws by the Courts of this country, bee.ring specifically on the present inquiry - whether or not it was ever the policy of the United States to extend here the principle of jua soli, it is our conviction that the following points may now be considered as clear and uncontradictcd: Firstly. - That there is actually no basis, and therefore, no justification for the Courts to have over-used the term "jus aoli" allegedly as a doctrine in this jurisdiction in conner.tion with the interpretation of section 4 of the Philippine Bill of 1902 and section 2 of the Jones Law of 1916, in view of the fact that the perscns or individuals whose citizenship was then involved, were perscns born in the Philippines of Chinese fathers and Filipino mo. lhers, before the advent of the Americ:m sovereignty in the Philip. pines. Therefore, their citizenship was governed by the law then in force ii.nd effect, such as ttie Spanish Civil Code, and not by the Philippine Organic Acts. Secondly. - There was actually no specific provision in the Philippine Organic Acts (of 1902 and of 1916) in question, from which it might be considered or inferred that the mere fact of birth in this country from and after July 1, 1902, conferred citizenship u1ion those born thereafter in this country. Thirdly. - That the period from April 11, 1899 to July 1, 1902, exclusive, is a vacant vr vacuum period which is characterized by the absence of specific law on citizenship. Fourthly. - That the citizen:;h1p of persons born in the Philippines, should be determined as of the dates of their respectiw births, and by the Ja.w then in force at the time. CONCLUSION TO PART I Consequently, it may be conclllded that in not incorporating the principle of ;us soli within the terms and provisions of the aforementioned Organic Acts of 1902 and 1916, the United States. either inadvertently or deliber.ately, did not extend the application of the i;rinciple of jus soli to the Philippines, at least from and after July 1, 1902, when for the first time, Congress expressed in law its own policy in the Islands. That though said principle or rloetrine of jus soU W&S not actually adopted as a policy when Congress enacted the Organic Act of 1902, it shollld undoubtedly be considered as applying in this jurisdiction with limitation, at least from April 11, 1899 to July 1, 1902, exc\usi\1 e, as a necessnry alternative to upset any possible injustice or discrimination against the peoplr. affected, and as a necessary coni;equence of the fundamental principles which underlie the protection of life, liberty !lnd property a.'I embodied in Great Bill of Rights of the United States. RECOMM.END:\TION TO PART I In view of the foregoing clarification, it is our humble and considered view as we strongly recommend to all concerned, that in matters of citizenship, the following rules be ivfopted in deter. mining questions of citizenship in the manner suggested by Mr. Justice Malcolm of the Supreme Court in the case of U.S. v. Lim Bin, sup-ra, and Mr. Justice Jose Lopez Vito, of the Court of Appeals, in the case of Mariano Sy-Jueco v. Roxas, supra, with our humble amplifications, to wit: 1. If the child was born before the date on which the Spanish Civil Code took effect in the Philippines, his citizenship should be governed by the Jaws then in force, especially the Royal Decree of November 17, 1852, the Law of September 18, 1870, and the Law of the 3rd Title, 11th Volum·e of the 6th Novisima Rccopilacion; 2. If he was born after the Spanish Civil Code went into effect in these Islands, but previous to the acquisition of said Islands by th!l Unit!!d States, the .:iti:wnsh1p of the child must be governed by the provisions of the Civil Code; 3. If he was born a.fter the Philippines were ceded to the United States and before any law was promulg11t~d on July 1, 1902, - defining the status of the natives of the Philippines, his citizenship should be governed by the American law on citizen. ship, especially the 14th Amendment to the United States Constitution, and the interpretation made by the Supreme Court of the United States in the case of U.S. v. Wong Kim Ark, 1897 069 U.S. 469), an interpretation which constiiutes a legal doctrine applicable to a territory of the United States; at least, during the \'acant <vacuum) period when there was no law on citizenship in this jurisdiction: 268 THE LAWYERS JOURNAL June 30, 1954 CERTAIN VEXATIOUS QUESTION. 4. After the acquisition of the hilippine Islands by the United States, by virtue of the Treaty of Paris, and after the actua.l enactment of the Philippine Bill of July 1, 1002, the citizenship of persons born thereafter must be gove1·ned by the said Organic Acts. - II - Finally, we come to the second question - whether or not a minor child of an alien woman w!lo automatically becomes a Philippine citizen by reason of her marriage to a Philippine citizen, also b12con1cs ipso facto a citizen of the Philippines? That is, does an alien minor step-child of a Filipino citizen step-father become also a Philippine citizen like the mother·! ls the citizeuship acquired by marriage a naturalization within the meaning of Section 15 of Commonwealth Act No. 473, otherwise known as the Revised Naturalization Law? Is there such thing as naturalization by marriage which may transmit citizenship to the wife's minor c~ildren by previous marriage or previous illicit relations with other man? And what is the citizenship of a minor child of a foreign divorcee mother who becomes a Filipino citizen by marriage to a Filipino, assuming that the divorce is cognizable in this country? The Jaw applicable or which has a bearing O!l thC foregoing questions, is section 15, paragraphs 1 and 3, thereof, which pro''ides as follows: "Effect of the naturalization on wife and children. - " Any woman who is now or may hereafter be married to a citizen of the Philippines, and who might herself be naturalized, shall be deemed a Philippine citizen. "A foreign-born minor child, if dwelling in the Philippine'! at the time of the na.turnlization of the parent, shall automatically become a Philippine citizen, and a. fo1·eign-born minor child, who is not in the Philippines at the time the parent· is naturalized, shall be deemed a Philippine citize;1 only during his minority, Unless he begins tn reside permanently in the Philippines when still a minor, in which case, he will continue to be a Philippine citizen even after becoming of age.'' The foregoing provisions are quoted for purposes of reference whether they really apply to the questions under scrutiny in view of the mothe1·'s acquisition of Philippine citizenship by virtue ot such marriage, and whether further there is such thing as "natura.lization by marriage." The first paragraph of Section 15 above quoted, confers Philippine citizenship upon alien woman upon her marriage to a citizen ::if the Philippines, if such alien woman herself might herself be lawfully naturalized. The phrase "'who might herself be naturalized", does not requil"t;! that the woman shall have the qualifica.. tions of residence, etc. as in the naturalization proceedings, but merely that she is of the class or race of person::i who may be naturalized. Inasmuch as race qualification has been removed from our Naturalization Law, it results that any woman who marries a citizen of the Philippines prior to or after Juno 17, 1939, and lhe marriage not having been dissoh"ed, and on the assumption that she possesses none of the disqualifications mentioned in section 4, Commonwealth Act No. 473, follows the citizenship cf her Filipino husband. (Garcia "Problems of Citizenship" p. 122, .and authorities cited). Although this paragraph provides for the conferment of citizenship upon the a.lien wife who marries a Filipino citizen, it cannot be said that she acquires it by naturalizatiou although the provision is included in section 15 of the naturalization law. At most it may be said that marriage is a form of acquisition of citizenship, not necessarily as a form of na.turalization, but following the principle of unity of nationality in the family, and following cur system of the family in which the father-husband is the head. While marriage is a form of institution and a source of acquisition of citizenship, it is not a kind of naturalization, beca.use naturalization implies certain form of procedure, be it in cnurt or in executive or administrative agency, to be followed with some formality of some kind as a pre-requisite, where the petitioner is the head of the. family, that is, the husband~father. In his default, however, if the wife so desires, then she has to comply with certain requirements as to qualifications and disqualifications, etc. But in case of marriage as a source of citizenship, the fact of marriage alone, without disqualification due to wa!" or due to lack of reciprocity as provided in ·section .4, and without even taking an oath of allcgin.nce, confers citizenship of the Filipino husband upon the alien wife. In short, if citizenship is transmitted to the alien wife, it is by her marriage that she acquires a distinct status whose personality is merged with her husband from whom she derives her new political status. The next question which now presents itself ia: Is this new citizenship of the wife transmisSible from her to her minor children pi·eviously born to her with another man, be it her legal husband or not? Does not the child pos:;css a certain citizenship already conferred upon him by reason of his birth, be it under the principle of ju.s soli or jus sanguinis? Could such citizenship of the minor children acquired when born, be merely laid aside as easy a~ that and get another upon the change of nationality by the mother? · In at least three Opinions, the Secretary of Justice expressed the view based on the alleged rule in the United States, to the effect that minor children of a.lien woman who automatically became citizens ot the Philippines by re:ison of their marriage to naturali2.ed citizens, also ipso facto became citizens of the Philippines. These are Op. No. 1, s. 1954 in the case of Sophie and Betty Lian, l!) and 18 years of age, born in China of Chinese parents; mothel', after becoming a widow, married another Chinese, who later was naturalized as citizen of the Philippines, were likewise considered citizrns; and Op. No. 111, s. 1953 re-citizenship of Zosimo Tan who was also c:onsidered as Filipino citizen, based on similar circumstances. The case of a certain Pascual, Op. No. 147, s. 1953 who was born in \915 of Spanish parents, his father having died in 1916, his mother · married a citizen of the Philippines, was also considered citizen o( the Philippines following the same vein as the other two Opinions. These three opinions were based on some American authorities to the effect that: "When the husband of an alien woman becomes a. naturalized citizen, she and her infant son, dwelling in this country, become citizens of the United States as fully as if they have become such in the special mode prescribed by the naturalization laws. United State ex rel. Fisher V. Rogers, U.S. Com'r et al., 144 Fed. p. 711; 712; United States v. Keller /c.c./13 Fed. 92; Kelly v. Owen, 7 Wall./74 U.S./26 Fed.j2nd/148, 149." Assuming the child in the American cases cited to be that of a previous husband of the woman, that is, step-c:hild of the naturalized citizen, still we cannot be guided by such a ruling in the United States, because, there is such a lot of differences in our Constitution and other laws -on citizenship, from the Jaws on citizenship in the United States. In the United States, an American wom::>.n who marries an alien does uot follow he~· husband's nationalit.y, which is opposed to ours. Under the Am~rican law iheY follow certain procedure for naturalization of alien women m:irried to citizens of the United States. Be it as it may, we must bear in mind that we have our own law on the subject which we will attempt to analyze for our clarification For instance, there is nothing to infer from the provision of paragraph 3 of section 15, Com. Act No. 473, from which it may be inferred that an alien woman who acquired citizenship by reason of marriage, may in turn. transmit, such hi.i:rh privilege of citizenship to her minor children of a previous marriage. In fa.ct the title of section 15, "Effect of naturalization on wife and children", indicates and refer only to the legal wife and legitimate children of applicant-husband-father of the family to which his June 30, 1954 THE LAWYERS JOURNAL 269 CERTAIN VEXATIOUS QUESTION . . . ,r;tep-childrcn -children of his wife with a previous husband, have no relation to him as would have the benefit of the efff'cts of naturalization. It must be stated further that the foreign wife who becomes a citizen by virtue of the marriage, has no privilege of her own, to re. transmit what has been transmitted to her or. the virtuality of that marriage, for her own personality is merged with her Filipino husband who is the head and the fountain rnurce of such right or high privilege. This is founded on the very principle which underlie our unique system of family institution, in which even in questions of inheritance certain legitime ls reserved upon the forced heirs, and on this analogy the logical conclusion is that the step-children of: the Filipino citizen, husband of the child's mother, shall not have such i·ight of succession to thf' pri\•ilege of citizenship coming solely from the 'step-father. But it may be argued that since she is the only surviving guardian of her own minor children, her minor ~hildren should follow her citizenship. As a matter of fact, in the dissenting opinion in the case of Villahermoso v. the Commissioner of lmmigrationi G.R. No. L-1GG3, March 31, 1948, 45 Off. Gaz. 167, No .. 9 Suppl. where a minor child of a Filipino woman marrieJ to a Chlnesf alien, docs not follow the mothe1"s citizenship folluwing the dPath of her alien husband. Messrs. Justices Perfecto an<l Tuazon (dissenters) argued that under Art. 18 of the Civil Code, "childien, while they remain under parentll.l authority, have the nationality of their parents," and that "since minor childl'en depend on their parents for their subsistence, support and protection, it stands to nason that they should foilow the nationality of said parents." This was the same argument used in the Roa c11se, supra, that "the weight of authority is to the effect that the marriage of an American woman to an alien confers upon her the nationality of her husband during coverture; but that thereafter on the dissolution of marriage by death, she converts ipu; f<1cto to her original stat\l9 unless her conduct or acts show that she elects the nationality of her deceased husband." The dissenting opinion, while pointing to fllltural law as a basis of unity of citizenship, such is not the case in the question at issue, firstly because Article 18 of the Civil Code has already been abrogated by change of sovereignty, and secondly, the principle tha! "a minor child follows that of its surviving pa•·ent. the mother", was abandoned when section HO, Art. IV, of the Constitution was adopted to the effect that children of Filipino woman married to fr.reigner continue to be aliens until upon reaching the age of ma. jority, they elect Philippine citizenship. In view of mid Constitu. tic.nal provision, the Supreme Court held in the Villahermosa case, supra, that "Commonwealth Act No. 63, does not pr'lvide that upon the repatriation of a Filii)ina her children acquire Philippine citizenship. It would be illogical to cr>nsider Delfin as 1·epatriated like J1is mother, because he never was a Filipino citizen and could not have acquired such citizenship.'' Continuing, the Co\11t said: "While his Chinese father lived, Delfin was not a Filipi110. His mother was not l'.!. Filipino; she was a Chines1.:. After the death of his father, Vilbhermosa continued to be a Chinese, until she reacq1 1ired hel· Philippine <:itizenship in . .\.1 H·il, 1947. A.ftrr tlwl reacq•1isition Ddfin could clni1•1 that llis mother 11.1a11 a Filipina within tl•e meani1ty of pa1Tnf1raph 4. section J, of Article IV, of the Constitutio»; but according to same Organir Act, he Jwd lo elect Philippine citizenship 11pon uttai11i11g his majority." If the Philippine Constitution <Sec. 1 <4>, Art. JV), as interpret.ed by the Supreme Court in the Villahermosa casP., supra, promulgated a policy in which, despite the repatriation of a Filipino woman to her original Philippine dtizenship as Filipina after the dea.th of he1· alien husband, her minor son does not follow the Philippine citizenship of hi& Filipina mother, considering even the fact that such a child has in his blood 50% alien and 50% Filipino, it would be the height or injustice, and certainly .:ontrary to the spirit of the Co11stitution, to make as Philippine citizen ipso facto as ite worst, any full-blooded alien minor child of full-blooded alien mother who automatically became a citizen by her marriage to a Filipino husband. 1t could not have beC'n intended by the legislators to provi'1c such an easy way of making alien children citizens of the Philippines, and yet deny similar privilege to a child of a Filipino woman even after her repatriation as such Filipino citizen. It is true that it used to be the rule in this juri!:'diction previflus to adoption of the Constitution and the enactment of Com. Act No. 63, that "a F ilipino woman manied to a Chinese by placing herself within the jurisdiction of the Philippines after the death of her husband ipso facto followed her nationality she being the legally surviving guardian." a ·ut such old rule (in the Hoa case supra) wa..s abandoned upon the adoptio:-i vf the Constitution and the en. actment of Com. Act 63, and, therefore, any rule ir principle bor1·owed from the American decisions 01· jurisdictiou which are in conflict with our Constitution and law$' should be disregarded an<! forgotten. As the Constitution is a key to the interpretation of the provision of the Naturalizatiqn Law in ~uestion, so is the provision cf section 13 of the Philippine Immigration Act of 1940 <Com. Ac:t No. 613) which must be availed of as may aid :11 the clarification of other provisions of othel' law. Said Immigration Law provides for admission into the Philippines of certain "non-quota immigrants'', without regard to the quota limitations, precisely because of some special considerntion such as family relationship to citizen of the Philippines - a provision which forsees .i. con. tingency as b1·ought .i.bout by cases of a nature like one under inqui1·y. Sec. 13 of Com. Act No. 613 provides: "U ndci· the conditions "l<'t forth in this Act, there may be admitted into the Philippines immigrants termed 'quota immigrants' not in excess of 50 of any one nationality xx x except that the follnwing immigrant~. le11ned 'non-quota. immigrants' m:i.y he admitted without regard to such m1merical limitations. x xx "(a) The wire or the husband or the unmarried child undel' twrnty-one years of age of a Philippine citizen, if ·nccompanying or following to jf'in such citizen." Jn adopting this ;>revision in the Immigration Act, the legislature must have in mind cases like step-children, children, or hus.. band or wife of citizens. To our point of view, Md this is the most logical conclusion, that tht>~e am mg others •He the very cont':'ete exam1 iles of non-quota immigrants whc are permitted to come under section 13 of the Immigrati1J11 Law to enable them to enjo) the company of those under anti with whose care ;:;.nd protection they want to come and j.Jin in the Philippines. The difference of nationality among members of a family due to inter-marriages, is the vel'y contigency envisioned in this provision t)f the law, which fortunately, is an aid to the ~laJ'ification of the naturalization act. Ther~ is another important consideration which supports om· view thnt while the alien woman becomes a titizen by marria~ to a FiliJ'ino, the children of said wom<i.n by pri;viou;; hucband, do not become so, for it would contravene another provi:.;iC1n of the naturalization Jaw, for in section 2, par. sixth, among the qualifications required of applicants for naturali7.ation is that "he must have enrolled his minor children of school age, in any of the public schools or private schools x x x where l'hilippiuc history, ~ov ernment and civics are taught x x x". The Supreme Court coneidered this qualification a very important 'Jne, stat!ng that "the legislator evidently holds all the minor children of the applic~nt for citizenship must ll>arn Philippine history, government and civics, iw1rmtuch a.<i uJ)on 1wl11'tali:zation vf their ftlthe1· the11 1pso {ado acquire the privilege of Philippine citizenship." . (underscoring ours>. In not granting the application for naturalization of the applicant (Continued on pO.!Je :110) 270 THE LAWYERS JOURNAL June 30, 1954 SUPREME COURT DECISIONS Alejandro Srm1son, Petitioner, V3. Andrea B. Andat de Agui. h, ct al., Respondent:>, G.R. Nt). L-5932, Feb. 25, 1954, Pnrns, C.J.: OBLIGATION PAYABLE DURING THE JAPANESE OC.. CUPATION; PAYMENT AFTER LIBERATION MUST BE ADJUSTED WITH THE BALLANTYNE SCHEDULE.The Supreme Court has heretofore sustained the yroposition that, when an obligation is payable within a certain period of time, and the whole or part thereof coincides with the JapaneSe occupation, payment after the liberation must be adjusted in accordance with the Ballantyne schcdul'E!, because the debtor could have paid said obligation in Ja}Jd:i.ese war notes during the occupation. <Asis vs. Agdamag, G.R. No. L-3709, October 25, 1951; Ang Lam vs. Peregrino., G.R. No. L-4871, Ja:lUary 26, 1953) ; Jales vs. Gamara, G. R. No. L-4460, Oct. 31, 1053.) The debto1·'s mere failu.re to accomplish p<ayment during the Japanese occupation did not make him liable to pay, as dam:ige or penalty, the ':liffr-renc<• between th{' value of tl,e Japanese war notes at the time the obligation became payable and of the Philippine currency at the time of r,ayment. <G0n1ez vs. Tnhia, 47 O.G. 641.) It is true that the creditors herein could not demand payment prior to October 25, 194f;, but this did not prcdudE' the debtor, herein petitioner, from paying l'>is obligation at any time within one year from October 25, 1944, if he had wanted tQ du so. llbid.) Se11.<;1n S. Ceniza for petiifoncr. Sison, Sevilla, Aqitino & Paras and Pedro P. Colina for res;JOndents. DECISION PARAS, C.J.: On March 4, 1947, Alejanrlro Samson filed aga.inst Agapito B. Anda! and Valentina Berana de Andal in the Court of First Instance of Manila a complaint for declaratory l'clief, praying that judgment be rendered fixing tht! amount which A!PjaT?drn Samson should pay to Agapito JJ. Andal and Valentina Bcrana de Anda! under a deed of mortgage executed by the former in favor of the latter, and that the defendantF be ordered to co.reel the mortgage upon pa.yment of said amount. On August 26, 1949, the court rendered a dedsion, declaring that the amount du~ from the plaintiff to the defendants is P150.00, Philippine currency, plus annual interest a.t the r::ite of 7% from October 25, 1!:144, and O!'dering the defendants to execute t he proper deed of cancellation upon payment by the plaintiff of said amount. The coui-t applied the Ballantyne scale of values. Agapito B. Andai and Valentina Berana de Anda! appealed to the Court of Apr~'als which, on J une 9, 1952, rendered a decision hclding that the plaintiff should pay to the defendants f'6,000.00 (the full amllunt of the loan obtained by the pl~nt!ff from the defendants on October 25, 1044), in actual Philippine currency, plus the stipulated intert:st, but subject to the mor!ltorium law. Fi·cm this decision Alejandro Samson has appealed to this Court by way of certiorari. By resolution cf October 17, 1952, Agapito B. Andal and Valentir.a Berana de Andcl 'who had <lier!) wel"C ordercci substituted as parties respondents by their heirs, Andrea B. Andal de Aguila '1nd others. The Court ;f Appeals found that Alejandro Sams1m, hnreir. petitionE"r, obtained from Agapito B. Andal and Valentina B. de Anda! on October 25, 1944, a. lo::i.n of f'6,000.00, with intr.rest at ':% per :innum and, to secure its payment, the former execut~d in favor of the latter a real estate m:n·tgage. 'fhat court, i.n holding that the pelitirmer ahould pay f'6,000.00 in p:P.sent Philippine r.'un·ency, argued that while t he loan was made during the: Japan<:se occupation, it became due and pnyable Q nly afte1· said period. We ha'"e heretofore sustained the pruposition that, when :lll r>bligUtion is payable within a certain 1ieriod of time, and the whole or part thereof coincides with the Japanese uccup:;.tion, payment after the liberation must be adjusted in accordance with the Ballantyne schedule, because the debtor could have paid said obligation in Japanese war notes during the occupation. (Asis vs. Agdamag, G.R. No. L-3709, . 0 ctober 25, 1951; Ang Lam vs. Pcregrina, G.R. No. L-4871, January 26, 1953.) As Mr. Justice Feria indicated in his crmcurring opinion in the case of Gomez vs. Tabia, 47 0 .G. G41, the debtor's mere failure to accomplish 1ia~·mrnt during the Japanese occupation did nvt make him li&b\c to pay, as damage or penalty, the difference between the value of the Japanese war notes at the time the obligatbn became paynble and of the Philippine cuncncy at the time of payment. It is true th:lt the creditors herein could not demand payment prior to October 25, 1945, but this did not preclude the debtor, herein petitioner, from paying his obligation at any time within one year from October 25, 1944, if had wanted to do so. Wherefore, the decision of t.he Court of Appeals is hereby reversed, and it is declared that the amount which the petitioner should pay to cancel his mortgage is only the sum of !'150.00, the c -quivlllent in actual Philippine currency of PG,000.00 in Japanese war notes on October 25, 1944, phis ar,nual interf!st at the rate of 7% on the said sum of !'150.00 from October 25, 1944. So 01·dered without costs. 8 e11g::on, Reyes, Ju90, Ba.utista A.ngdo and Labrador, J.J., concur. Justice Padilla concurred in tlie rf' . .!<Ult. Just·ice Montemaycn- a.nd Justice Pablo took no part. II Benita S. Balinon, Petitioner, vs. Celestino 111. de Leon et al., Respondents, ADM. Ca:Je No. 104, Ja,n. 20, 1954, P<Nras, C.J.: ATTORNEY AT LAW; SUSPENSION; CASE AT DAR. - This Court had heretofore imposed the penalty of suspension upon an atforney who prepared a document stipulating, among other, that the contracting parties, who al"e husband and wife, authorized ce.ch other to marry again and that each renounced whatever right of action one might have against the party so marrying (/11 Te Roque S:intiago, 40 Off Gaz. [5th Supp.] p. 208>. In effect the affid-ivit prepared and dgned by respondent De Leon has similar implicaticn, in that althoni?h it does not bluntly authorize said respondent to marry another during his subsisting wedlock with Vertudes Marquez, he made it appear th::i.t he could take in :lnother woman as a lifetime partner to whom he would remain loyal and faithful ss a lawful and devoted loving husband and whom he could take and respect as his true and lawful wife ; thereby virtually permitting himself to commit the crime of concubinage. It is true, as respondent De Leon argues, that the consent or pardon of either spouse constitutes a bar to a criminal prusecutivn for adultery and concubinage, but, as the Solicitor General observes, said crimes are not thereby lega.lized, the result bdnz merely that prosecution is such cases would not lie. The contention th:lt the affidavit is only a unilateral declaration nf facts is of no moment, since it uudoubtedly enabled respondent De Leon to attain his purpose of winning over Regina S. Balinon with some degree of permanence. F'irst A ssistant S(·Ucircn- General Ruperto Kapv;nan, Jr. and S olicitor Juan T. Alano for petitioner. Jose W. Viokno, Justo '/'. V r!ltlyo &lld Celestino de Leon for respondent . DE C I SION PARAS, C. J.: The Solicitor General has filed a. complaint against the resJ une 30, 1054 THE LA WYERS JOURNAL 271 pondents Celestino M. De Leon and J usto T. Velayo, duly qualified members of the bar in active practice, alleging that, since Dec~in bE:r, 1949, respondent De Leon, still legally married to Vertudes Marquez lived as husband and wife with Regina S. Bali non; that Faid rt-spondent prepared and subscribed on Febrm>..ry 4, 1949, before respondent Ve>layo, a notary public, an affidavit which i·eads as follows: "KNOW ALL MEN BY THESE PRESENTS: "I, CELESTINO DE LEON, of legal age, married, filipino citizen, after being duly sworn to according to law depose and say: "That there exists a contract of separation executed a nd perfected between my wife, Vertudr.s Marquez and myself; "That said contract states among other things that each of us is at liberty and free to take for himself and herself a lifetime partner with the full consent and authorization of ea.ch other; "That by the same contract our conjugal p::.rtnership was dissolve and our existing property, rights and int~rf'st were divided and apportioned; "That in the said contract my wife shall have the full control, care and custody of the children, and as such all of . our conjugal property rights and interests were apportioned to her with the exception of my private personal belongings and things pertaining to my law profession; "That, besides the said dissolution and apportionment, Gaid contract further states about my wife's and also my children's share to my current income by way of alimony and support; "NOW, therefore, by virtue of the said contract of separation, I now by these presents take my new found life-partner REGINA S. BALINON, as my true and lawful wife; "That, in order to protect her i·ights a11d interests with regards to her personality and future property rights, I, hereby voluntarily and of my own free will solemnly swear under oath; "That I will uphold and defend her honor and dignity and prestige as a woman of the weaker sex as well as any and all members of )ler family arising by reasons of said relationship; "That I will maintain and preserve the new existing companionship, the love, respect and goodwill prevailing among the members of her family of which I am now a Member ::s well as equally mine; "That I will not do any act that may tend to degrade or dishonor her or any member of her family unbecoming the dignity of said relationship but would rather take and resflect her as my true and lawful wife; "That in case of intentional desertion on my part thereby frustrating the true and honest intent of my affirmations, the same may be sufficient ground for my perpetual disbarment upon her in11tance or any third lJal'ty in interest; "That except for such minur dues and allt'wances by way of alimony and support mentioned above, any and all such future properties, rights and interests that we shall acquire during said relationship shall exclusively appertain and belong to her as her due share and shall bear her name in all such titles and documents thereto, subject to her legal heirs as such; "That any offspring that we shall bear by reason of said companionship and relationship shall be acknowledge by me as my true and legal child with all the i·ights and privileges accorded by law pertaining to that of a legitimate child; "That this contract of companionship is done of my own accord, freely and voluntarily without any mental reservation or purpose of evasion, So HELP ME GOD. "IN WITNESS WHEREOF, I have hereunto set my signature this 4th day of February 1949. "SGD.) CELESTINO M. DE LEON CELESTINO DE LEON .. SIGNED IN THE PRESENCE OF: "REPUBLIC OF THE PHILIPPINES ) CITY OF BACOLOD ) S.S. ''Pc!'Sonally appeared before this 4th du.y of February 1!)49, CELESTINO DF. LEON with Residence Certificate No. issued at on 1949, who executed the foregoing affidavit with contract of companionship consisting of two pages, and acknowledge by me that the same is his own free and voluntary act and deerl. "I N WITNF.SS WHEREOF, I have hereunto set my hand and seal on the place and date first wrtiten above. "Doc. No. 484 "Page No. 97 "Rook No. XVJ "Series of 1949," "(SGD.l JUSTO V. VELAYO" NOTARY PUBLIC Until D~c. 31, 1948 The complaint. also alleges that, nc>twith:itanrling the unlawful and immoral purposes of the for~going affidavit, iespondent Velayo knowingly signed the same in vioh:tion of his oath of office '.l.S attorney and notary publil'. Respondent De Leon admits his continuous cohabitation with Regina S. Balinon during his subsisting marl'iage with Vertudes Marquez and the fact that he prepared and subscribed the affidavit above quoted, hut contE'nds that he has not yet been finally convicted of a crime involving moral turpitude ; that while the affidnvit ma~ be ilicit, it is nc;t an agreement but a m('re innocent unilateral declaration of facts; and that while the execution of said affidavit may hP. illegal and void ab i11itio, no 1<pecific law has been violated so as to give rise to an action. Respondent Velayo alleges, on the other hand, that his participation was limitNI to the task of notorizing the affidavit, as a matte1· of courtesy to a brothe1· lawyer and wit.11011t. knowing its contents, and thi£ allegation is corroborated by ·l'eSp<illdent De Leon wh'> fm•ther stat.. ed that no consideration whatsoever passed to the fo1·mcr. This Court had herctofol'e imposed the penalty of suspension upon an nttorney who prepared a document stipulating, among otJier, that the contracting parti('S, who are husband and wife, authorized e::i.ch other to marry again and that each renounced what.. ever right of action one might have against the party so marry·ing (ht re Roque Santiago, 40 Off. Gaz. 5th Supp. p. 208). In effect the affidavit prepared and signed by respondent De Leon has similar implication, in that although it does not bluntly authorize said respondent to marry another during his subsisting wedlock with Vertudes Marquez, he made it appi!ar that he could take in another woman as a lifetime partner to whom he would remain loyal and faithful as a lawful and devoted loving husband and whom he could take and respect as his tru(' and 0 lawful wife; thereby virtually permitting himself to commit the crime of concubinage. 272 THE LAWYERS JOURNAL June 30, 1954 pondents Celestino M. De Leon and Justo T. Velayo, duly qualified members of the bar in active practice, alleging that, since Dr-.er.inbcr, 1949, respondent De Leon, still legally manicd to Vertudes Marquez lived as husband and wife with Regina S. Bali non; that Faid respondent prepared and subscribed on Febt·m.wy 4, 1949, before respondent Vela~'o, a notary public, an affidavit which i·eads as follows: "KNOW ALL MEN BY THESE PRESENTS: "I, CELESTINO DE LEON, of legal age, married, filipino citizen, after being duly sworn to according to law depose and say: ''That there exists a contract of sepa.mtion executed and perfected between my wife, Verludes Marquez and myself; "That said contract states among other things that each of us is at liberty and free to take for himself and herself a lifetime partner with the full consent and authorization of ea.ch other; "That by the same contract our conjugal p~rtnership was dissolve and our existing property, rights and int~rest were divided and apportioned; "That in the said contract my wife shall have the full con· trol, care and custody of the children, and as such all of . our conjugal property rights and interests were apportioned to her with the exception of my private personal belongings and things pertaining to my law profession; "That, besides the said dissolution and apportionment, 1rn.id contract further states about my wife's and also my children's share to my current income by way of alimony and support ; "NOW, therefore, by virtue of the said contract of separation, I now by these presents take my new found life-partner REGINA S. BALINON, as my true and lawful wife; "That, in order to protect her rights and interests with regards to her personality and future property rights, ], hereby voluntarily and of my own free will solemnly swear under oath; "That I will uphold and defend her honor and dignity and prestige as a woman of the weaker sex as well as any and all members of )\er family arising by reasons of said relationship; "That I will maintain and presen-e the new existing companionship, the love, respect and goodwill prevailing among the members of her family of which I am now a 1riember ns well as equally mine: •'That I will not do any act that may tend to degrade or dishonor her or any member of her family unbecoming the dignity of said relationship but would rather take and respect her as my true and lawful wife; ''That in case of intentional desertion on my part thereby frustrating the t rue and honest intent of my affirmations, the same may be sufficient ground for my perpetual disbarment upon her imctance or any third 1m1·ty in interest; "That except for such minc.r dues and al1C1wances by way of alimony and support mentioned above, any and all such fu. ture properties, rights and interests that we shall acquire during said relationship shall exclusively appertain and belong to her as her due share and shall bear her name in all such titles and documents thereto, subject to her legal heirs as such; "That any offspring that we shall bear by reason of said companionship and relationship shall be acknowledge by me as my true and legal child with all the i·ights and privileges accorded by Jaw pertaining to that of a legitimate child; "That this contract of companionship is done of my own accord, freely and \"Oluntarily without any mental reservation or purpose of evasion, So HELP ME GOD. "IN WITNESS WHEHEOF, I have hereunto set my signature this 4th day of February 1949. .. SGD.) CELESTINO M. DE LEON CELESTINO DE LEON ';SIGNED I N THE PRESENCE OF: "REPUBLIC OF THE PHILIPPINES ) CITY OF BACOLOD } S.S. ''Personally appeared beio!'e this 4th day of February Hl49, CELESTINO DF: LEON with Residence Certificate No. issued at on 1949, who executed the foregoing affidavit with contract of companionship consisting of two pages, and acknowledge by m e that the same is his own free and voluntary act and dee1I. "I N WITNESS WHEREOF, J have hereunto set my hand and seal on the place and date first wrtitcn above. "Doc. No. 484 "Page No. 97 "Book No. XVI "Series of 1949." "(SGD.l J USTO V. VELAYO" NOTARY PUBLIC Until DP.c. 31, 194R The complaint. also alleges that, Mtwithstanding the unlawful and immoral purposes of the for"!going affidavit, 1espondent Velayo knowingly signed the same in vioh::.tion of his oath of office as attorney and notary publit!. Respondent De Leon admits his continuous cohabitaf-ion with Regina S. Balinon during his subsisting marriage with Ver· tudes Marquez and the fact that he prepared and subscribed the affidavit above quoted. hut contends that he has not yet been finally convicted of a crime involving moral turpitude; that while the affidavit ma"i be ilicit, it is nc.t an agreement but a mere innocent unilateral declaration of facts; and that while the execution of said affidavit may be illegal and void ab inilio, no ~peci fic law has been violated so as to give dse to an action. Respondent Vclayo alleges, on the other hand, that his participation was limit£>d to the task of notorizing the affidavit, as a matter of courtesy to a brother lawyer and wit-l1out. knowing its contents, and this allegation is corroborated by ·respc.ndr-nt De Leon wh'l further stated that no consideration whatsoever passed to the formet\ This Court had heretofore imposed the penalty of suspension upon an attorney who prepared a document stipulating, among otJi.er, that th~ contracting parties. who are husband and wife, authorized eRch other to marry again and that each re11ounced whatever right of action one might have against the party so marry·ing (In re Roque Santiago, 40 Off. Gaz. 5th Supp. p. 208). In effect the affidavit prepared and signed by respondent De Leon has similar implication, in that although it does not bluntly authorize said respondent to marry another during hi;; subsisting wedlock with Vertudes Marquez, he made it appCar that he could take in another woman as a lifetime partner to whom he would remain loyal and faithful as a lawful and de\"oted loving husband and whom he could take and respect as his true and ·lawful wife; thereby virtually permitting himself to commit the crime of concubinage. 272 THE LA WYERS JOURNAL June 30, 1954 It is true, as respondent De Leon ugues, that the consent or pardon of either spouse constitutes a bar to a criminal prosecution for adultery and concubinage, but, as the Solicitor General observes, said crimes are not thereby legalizeci, the result being merely that prosecution in such cases would not lie. The contention that the affidavit is only a unilateral declaration of facts is of no momf'nt, since it undoubtedly enabled respondPnt De Leon to nttain his purpose of winning over Regina S. Balinon with some 1!cgr~e of perIt is likewise insisted that the acts imputed to respondent D1:i Leon had no relation with his prMessional duties and therdore cannot Eerve as a basis for suspc11sion or disbarment under seetion 25 of Rule 127. It should be remembered, however, that a member of the bal' may be removed or suspended from office as a lawyer on irround other than those enumerated by said provision Un re Pelaez, 44 Phil. 5ti7). l\forcover, we can even stute that !'espondent DP. Leon was able to prepare the affidavit in questiou bf'cause he is a l::wyer, and has rendered professional serv\cp to himself as a client. Ile smely employed his knowledge of the law a.nd skill as an attorne~· tn his advantage. fManalo v. Gan, Adm. Case No. 72, May lS, lfl53. l With reforence to respcndent Velayo, there is no question that he did nothing except to affix his signature to the affidavit in question as a notary public. While, as contended by his counsel, the duty of n notary public is p!·incip2.lly to ascerl::iin the identity of the affiant and the voluntariness of the deela.ration, it is nevertheless incumbent upon him at least to guard against having any_ thlng to do with illqrnl or immoral arrangement. In the pre>sent case respondent Velayo was somewhat negligent in just affixing his signature to the 2.ffidavit, although his fault is mitigated by the fact that he had relied on the good faith of his co.rt.>spondent. Wherefore, we he>reby decree the suspension from the practice of law of respondent Celestino T\L De Leon for three year11 from the date of the promnlg:ition rif this decision. Respondent Justri T. Velnyo is hereby merely reprimanded. So ordered. Pablo, Ben9:1ni, Padilla, Mu·11lcmayor, Reyes, Jugo, BuuliBta A n9elo and Labrador, J.J., concur. III King Mau Wn, Plaintiff-Appe/lee vs. Francisco Sycip, Defend. cr.t-A ppellant, G. R. No. L-5897, April 23, 1954, P•JJilla, J.: PLEADING AND PHACTICE; ACTION BY A NON-RESIDENT PLAINTIFF AGAINST A RESIDENT DEFENDANT. - Where in a contract uf agency it is contended that ir.!\Smuch as the contract was executed in New York, the Court of First Instance of Manila ha.s no jurisdiction over the case, the contention is without merit bec.'.luse a non-resident may sue a resident in the co~rts of this cr.untry where Jefendant may b..: summoned and his property leviahle upon '!xecution in case of a favornble, final and e:xecutory judgmer.t. <MarshallWells Co. vs. Henry W. Elser & Co., 46 Phil. 70; Western Equipment and Supply Co. vs. Reyes, 51 Phil. 115.) I. C. Jlfonsod for appellant. J. A. lVolfsun and P. P. Gallardo for appellee. DECISION PADILLA, J .: This is an actier. to collect P59,082.92, togeth:!r with lawful interests frem 14 October 1947, the date of the written demand for payment, and costs. The claim mises out of a shipment of 1,000 ions of coconut oil emulsion gc,Jd by the plaintiff, M agent of the defendant. to Jas. Maxwell Fassett, who in turn assigned it to Fortrade Corporation. Under an agency agreement set forth in a letter dated 7 November 1946 in New York addressed to the defendant and accepted by the latter on the 22nd day of the same month, the plaintiff was made the exclusive agent of the defendant in the sale ?f Philippine coconut oil and its derivatives outside the Philippines anci was to he paid 2-1/2% on the total actual sale price of sales obtained through hii:; 1:ifforts anQ. in addition thereto 50% of the difference between the authorized sale price and the act.ual sale price. After trial where the depositions of the plaintiff and of Jas. l\faxwell Fassett and several" letters in connection therewith were introduced and the testimony of the defendant wa:. heard, the Court rendered judgment as prayed for in the complaint. A motion for reconsideration wa.s denied. A motion for n1:iw trial was filed, supported by the defendant's affidavit, based on newly disc.overed evidence which consists of a duplicate original of a letter dated 16 October 1946 covering the sale of 1,000 tons of coconut oil soap emulsion signed by Jas. Maxwell Fassett to the defendant; the Jetter of credit No. 20122 of the Chemical Bank & Trust Company in favor of Jas. Maxwell Fassett assign~d by the latter to the defendant; and Jetter dated 16 December 1946 by the Fortrade Corporatic.r. to Jas. Maxwell Fassett whereby the corporativn placed a firm order of 1,000 metric tons of coconut oil soap emulsion and Jas. Maxwell Fassett accepted it on 24 December 1946, all of which documents, according to the defendant, could not be produced at the trial, despite the use of reasonable diligence, and if produced they would alter the 1·esult of the controversy. The motion for new trial was denied. The defendant is appealing from said judgment. Both parties arc agreed that the only transaction or sale n•ade by the plaintiff, as agent of the defendant, wa& that of 1,000 metric tons of coconut oil emulsion f .o. b. in Manila, Philippines, to J as. Maxwell Fassett, in whose favor letter of eredit No. 20122 of the Chemical Dank & Trust Company for a sum not to exceed $400,000 was established and who assigned to Fortrade Corporation his right to the 1,000 metric tons of coconut oil emulsion an<:l to the defendant the letter of credit referred to for a sum not to , exceed $400,000. The plaintiff claims that for that sale he is entitled under the agency contract dated 7 November 1946 and accepted by the defendant on 22 November of the same year to a commission of 2-1/2% on the total actual sale price of 1,000 tons of coconut oil emulsion, part of which has already been paid by the defendant, there being only a balance of $3,794.!14 for commission due a~d unpaid on the last shipment of 379.494 tons and W% of the difference be>tween the authorized sale price of $350 per ton and the actual selling price of $400 per ton, which a.mounts to $25,000 due and unpaid. and $746. 52 for interest from 14 October 1947, the date of the written demand. The defendant on the other hand, contends that the transaction for the si.i.le of 1,0oo metric tons of coconut oil emulsion was n~t covered by the agency contract of 22 November 1946 because it was agreed upon on 16 October 1946; that it was en independent and sepa.rate transaction for which the plaintiff has bee~ duly cc mpensated. The contention is not borne out by the evidence. 'I'he plaintiff and his witness depose that there were several drafts of documents or letters prepared by Jas. l\faxwell Fassett preparatory or kading to the exeeution of the agency agreement of 7 November 1946, which was accepted by the defendant on 22 Nove1~ ber 1946, and that the letter, on which the defendz..nt bases his contention that the transaction on the 1,000 metric tons of coconut oil e>mulsion was not covered by the agency agreement, was one of those letters. That is believable. The letter upon which defendant relies for his defense does not stipulate on the commission to bC' paid to thl' plaintiff as agent, and yet. if he paid the pla!ntiff a 2-1/2% commission on the first three coconut oil emulsion shipments, there is no reaoon why he should not pay him the saml' commisi;ion on the last shipment am,ounting to $3,794.94. There can be no doubt that the sale of 1,000 metric tons of coconut oil emulsion was not a separate and independent contract June 30, 1954 THE LA WYERS JOURNAL 273 from that of the agency agreement of 7 November and accepted on 22 November 194G by the ddendant, because in a letter dated 2 January 1947 2.<idressed to the plaintiff, refening to the transaction 'lf 1,000 metric tons of coconut oil emulsion, the defendant saysx x x I am doing cvel'ything possible to fulfill these 1,000 tons of emulsion, and until such time that we completed this order I do not feel it very sensible on my part to accept more orders. I want to prove to Forlrade, yourself and other 1>eople that we delive1 · our goods. Regarding your commission, it is understood to be 2-1/ 2% of all prices quoted by me plus 50-50 c ;n o\•er price. (Schedule B.) In another letter dated I G January 1947 to the plaintiff, speakinir of t he same transaction, the defendant. saysAs pel' our understanding when I was in the States tlui overprice is subject to any increase in the cost of production. I am not t rying to make things difficult for you and I ·shall give your 2-1/2% commission plus our overprice provided you can give me substantial order in ordel" for me to amortize my loss on this_ first deal. Unless such could be :1nanged I shall remit to you for the present your commission upon collection from the bank. (Schedule C.) · In a telegram sent by the defendant to the plaintiff the> former saysx x x YOUR MONEY PENDING STOP UNDERSTAND YOU AUTHORIZED SOME LOCAL ATTORNEYS AND MY RELATIVES TO INTEHVENF. YOUR BEHALF. (~chedule D.l The defendant's claim that th~ agreement for the sale of 1,000 metric tons of coconut oil emulsion w::.s agreed upon in a document, referring to the letter of 16 Octuber 1946, is again <lisprovcd by his letter dated 2 December 194G to Ft'rhade Corpor1tion where he says: The purpose of this letter is to confirm in final form the oral agreement which we have heretofore reached, as between ourselves, during the course of various conven;ntions between us and our respective representatives up•.n the subject matter of this lettn. It is understood that I nm to sell to you, and you · are to purchase from me, one thousand 0,000) tons of cor.f'nut oil S02.p emulsion at a price of four hunclr<:d dollars ($400.) per metric ton, i.e., 2,204.G pounds, F . 0. B. shipboard, 1\tanila, P.1. (Exhibit S, Special. Pndel'scoring sup11lied.) 'rhe contention that as the ccntract was executed in New York, the Court of First Instance of Manila has no jurisdiction over this case, i:::z without merit, because a non-resident may sue a resident in the courts of this c<>untry (I) where the defendant may be summoned and his property lcviable upon execution in case of a favorable, final and cxecutory judgment. It is a JlCrsonal action for the collection of a sum of money which the courts of first instance h>lve jurisdiction to t.ry a nd decide. There is no conflict of laws involved in the case, because it is only a question of enforcing an obligation created by or arising from contract; and unless the enforcement of the contract be against public policy of the forum, it must be enforced. The plaintiff is entitled to collect M,589.88 for commission and P50,000 for one. half of the overprice, or a total of P57,589.88, lawful interests thereon from the date of the filing of the complaint, and costs in both instances. As thus modified the judgment appealed from is affirmed, with costs aga..ins the appellant. (l) Manha1J.Wel11 Co. v1. Henry W. El~r & Co •• ~6 Phil. 10; Weatern Equip. ment and Supply Co. v1. R"JU, 51 Phil. l U. Paras, Pablo, Beng:::on, Montmnayor, Reyes, Jugo, BautisM A t19elo, and Concepcio11, JJ., concur. IV T he SJu:ll Comv<rn·u of P.l., Ltd., Plai11liff-Ap11rllant, vs. E. E . V(u1o, as Municipal Treasurer oi the Municip(!Jity of Cordova, Provine.: of Cebu, 1Jefct1tlnnt. A1i11ellee, G. R. No. L~6093, Fcbruaty 24, 1954, Padilfo J. PLEADING AND PRACTICE; ACTION FOR HEFUND OF MUNICIPAL TAXES; REAL PAHTY IN INTEREST. - In an action for refund of municipal taxes claimed to have been paid ,and collected under an illegal ordinance, the real party in interest iii not the municipal treasurer but the municipality concerned that is empowered to sue and be sued. C. D. Jolmston and A. P. Dean for appellant. Provincial Fiseut Jose C. Borromeo and Assista.nt ProvinciQl F isrn.I An.mi11.~ V. i111friabao for UJ.lpcllee. DECI S ION PADILLA, J.: The Municipal Council of Cordova, province of Cebu, a.tlopte<l the following ordinances: No. IO, $Hies of 194G, which imposes an annual tax of !"150 on occupation or the exercise of the priYilege of installation manage!'; No, 9, sel"ies of 1947, which imposes an annual tax of P40 for local deposits in drums of combustible and inflammable materials and an annual tax of !"200 for tin can factories; and No. 11, sel'ies of 1948, which imposes an annual tax of !"150 on tin can facto1 ies having a maximum annual output capacity of 30,000 tin cans. The Shell Company of P.I. Ltd., a foreign corporntion, filed suit for the refund of the taxes paid by it, on the ground that the ordinances impnsing such taxes are 11/tra vircs. The defendant denies that they are so. The controversy was submitted for judgment upon stipulation of facts which reads as follows: Come now the parties in the above-entitled case Cy their undersigned attorneys and hereby agi·ee to the following· stipulation of facts: 1. That the parties admit the allegations contained in Paragraph l of the Amended Complaint referring to residence, personality, :rnd capacity of the pa11ies except the fact that E. E. Vai10 is now replaced by F. A. Corbo as Municipal Treasurer of Cordova, Cebu; 2. That the parties admit the allegations contained in Paragraph 2 of the Amended Complaint. Official Receipts Nos. A-1280606, A-:m~V742, A-3'7h0852, and A. 21030388 are herein marked as Exhibits A, ll, C, and D, 1 ·espectiwly, for the plaintiff; 3. That the parties admit that payments made> under Eichibits ll, C, and D were all 101der protest and plaintiff admits that Exhibit A was ?Jot. paid under protest; 4. That the parties admit that Official Receipt No. A-1280606 for !"40.00 and Official Receipt No. A-3760742 for P200.00 were collected by the defendant by virtue of Ordinance No. 9, <Secs. E-4 and E-6, respectively) under Resolution No. "31, Series of 1947, enacted December 15, 1!)47, approved by the Provincial Board of Cebu in its Resolution No. 644, Series of 1948. Copy of said Ordinance No. 9, Series of 1947 is herein marked as Exhibit "E" for ihe pla..intiff, a nd as Exhibit "1" for the defendant; 274 THE LA WYERS JOURNAL June 30, 1954 5. That the parties admit that Of(icial R~ceipt No. A-3760852 for P150.00 was p:i.id for taxes imposed on Installation Managers, colleeted by the defendant by virtue of Ordinance No. 10 <Sec. 3, E-12) under Resolution No. 38, series of 1946, approved by the Provincial Board of Cebu in its Resolution No. 1070, Series of 1946. Copy of ~aid Ordinance No. 10, Series of 1946 is marked a~ Exhibit "F" for the plaintiff, an<I a~ Exhibit "2" for the defendant; 6. That t.he parties admit t!l8t Official Receipt No. A210~0388 for P5,450.00 was paid by plaintiff and that said amount was collected by defendant by virtue :>f Ordinance No. 11, Series o( 1948 (under Resolution No. 46) ct:acted August 31, 1948 and approved by the Provincial Board of Cebu in its Resolution No. 115, Series of 1949, and same was approved by the Honorable Secretary of Finance under . the provisions oC Sec. 4 of Conunonwealth Act No. 472. Copy of said Ordinance No. 11, Series of 1948 is herein marked as Exhibit "G" for the plaintiff, and as Exhibit "3'' for the de!t:ndant. Copy of the approval of the Honorable Secretary of Finance of the same Ordinance is herein marked as Exhibit "4" for the defet1dant, WHEREFORE, aside from oral evidence which may be offered by the parties and other points not covered by this stipulation, this case is hereby submitted upon the foregoing agreed facts and reeord of evidence. Cebu City, Philippines, January 20, 1950. THE SHELL C:O. OF P.I. THE MUNICIPALITY OF LTD. CORDOVA By (Sgd.> L. de C. Blechynden By <Sgd.> F. A. Corbo Plaintiff Defendant C. D. JOHNSTON & A. P. DEEN <SGD.> JOSE C:. BORROMEO By <Sgd.> A. P. Deen Provincial Fiscal Attys. for tht- plaintiff Attorney for the defendant (Record on Appeal, pp. 15-18.) The parties reserved the right to introduce parole evidence but no such evidence was submitted by either party. From the judgment holding the ordinances valid and dismissing the complaint the plaintiff tias appealed. It is contended that as the municipal ordinanee imposing an annual tax of P40 for "minor local deposit in drums of combustible and inflammable materials," and of P200 "for tin factory" was adopted under and pursuant to section 2244 of the Revised Administrative Code, which provides thnt the municipal council in the exercise of regulative authority may require any person engaged in any business or occupation, such as "storing combustible or explosive materials'' or "the conducting of any other business of an unwholesome, obnoxious, offensive, or dangerous character," to obtain a permit for which a reasonabl~ fee, in no case to exceed PIO Jler annum, may be charged, the annual tax of P40 and 1'200 are unauthorized and illegal. The permit and the fee referred to may be required and charged by the Municipal Council of Cordova in the exercise of its regulative authority, whereas the ordinance which imposes the taxes in question was adopted under ar.d pursuant to the provisions of Com. Act No. 472, which authorizes municipal councils and municipal district councils "to impose municipal license taxes upon persons engaged in any occupatiC'l;'I or business, or exercising privileges in the municipality or municipal district, by requiring them to secure licenses at rates fixed by the municipal council or municipal district council," which shall be just and uniform but not "percentage taxes and taxes on spl!Cified articles." Likewise, Ordinar:ce No. 10, series of 1946, which imposes an a11.nual tax of P150 on "installation manl_Lger" comes under the provisions of Corn. Act No. 472. But" it is claimed that "installation manager'' is a designation made by the plaintiff and such designation cannot be deemed to be a ''calling" as defined in section 17~ of l"hc National Internal Revenue Code (Com. Act No. 466), and that the instailation manager employed by the plaintiff is a salaried employee which may not be taxed by the municipal council under the provisions or Com. Act No. 472. This contention is without merit, because evl'n if the instailation manager is a sa... laried employee of the plaintiff, still it is an occupation "and one occupation or line of business doeS; not become exempt by being ce>nducted with some other occupation or business for which such tax has beeIJ paid" (1) and the occupation tax must be paid "by £=&ch individual engaged in a calling subject therE'to." C 2> And pmsuant to section l 79 of the National Internal Rev~nue Code, "The payment of x x x occupation tax shall not exempt any person from any tax, x x x provided by Jaw or ordinance in places where such xx x occupation is xx x regulated by municipal law, nor shall the 1iayment of any such tax be held to prohibit any municipality from placing a tax upon the same x x x: occupation, fol' local purposes, where the imposition of such tax is authorized by law.'' It is true, that, according to the stipulation of facts, Ordinance No. 10, series of 1946, was approved by the Provincial Board of Cebu in its Resolution No. 1070, series of 1946, and that it does not appear that. it was approved by the Department of Finance, as provided for and required in section 4, paragraph 2, of Com. Act No. 472, the rate of municipal tax being in excess of !'50 per annum. But as this point on the approval by the Depart.. ' ment of Finance was not raised in the court below, it cannot be raised for the first time on appeal. The issue joined by the partit:s in their pleadings and the point raised by the plaintiff is that the municipal council was not empowered to adopt the ordi. mmce and not that it was not aJlproved by the Department of Finance. The fact that it was not stated in the stipulation of facts justifies the p1·esumption that the ordinance was approved in accordance with Jaw. The contention that the ordinance is discriminatory and hostile because there is no other person in the locality who exercises such 40designation" or occupation is also without merit, because the ' fP..ct that there is no other person in the locality who exercises such a "designation'' or calling does not make the ordinance discriminatory and hostile, inasmuch as it is and will be applicable to any person or firm who exercises such calling or occupation named or duignated as "installation manager." Lastly, Ordinance No. 11, series of 1948, which imposes a municipal tax of P150 on tin can factories having a maximum annual output CP.pacity of 30,000 tin cans which, a::cord.ing to the stipulation or facts, was approved by the Provincial Board of Cebu and the Department of Finance, is valid and lawful, because it is neither a percentage tax nor one on specified articles which are the only exceptions provided for in section 1, Com. Act No. 472. Neither does it fall under any of the prohibitions provided for in sl'ction 3 of the same Act. Specific taxes enurnernted in the National Internal Revenue Code are those that are imposed upon "things manufactured or produced in the Philippines for domestic safo or consumption" and upon "things imported from the United States and foreign countries", such as distilled spirits, domestic denatured alcohol, fermented liquors, products of tobacco, cigars and cigarettes, matches, mechanical lighters, firecrackers, skinuned milk, manufactured oils and other fuels, coal, bunker fuel oil, Diesel fuel oil, cinematographic films, playing cards, saccharine. {l) And it is not a percentage tax because it is tax or. business and U.e maximum annual output capacity is not a percentage, because it is not a share or a tax based on the amount ot the proceeds realized out of the sale of the tin cans rnanufacturt> therein but on the business of manufacturing tin cans having a maximum annual output capacity of 30,000 tin cans. In an action for r~fund of municipal taxes claimed to have Ill ~tlon 118, National Internal Revenue Code <Com.. Aet No. 466.l (2) Supra. (31 Section• U3 to U S. Nation•\ Jntarnal Re .. enue Code (Com. Act No. June 30, 1954 THE LA WYERS JOURNAL 275 been paid and collected under an illegal ordinance, the real party in interest is not the municipal treasurer but the municipality concerned that is empowered to sue and be sued. (4) The judgi"nent appealed from is affirmed, with costs ai'ai11st the appellant. Paras, Pablo, Bengzon, Montemayor, Reyes, Ju.go, Bautista A11oelo, f,cbmdor, Cunr<;Jeion, and Diok110, J.J.; concur. ~t l:i Fuenlu d al .. G. R. No. L-3925, 15 December 1961. v Claro Rivera, Riznlina S. R;i·era, Lope K. ~MreC1l JI A.Hociatcd Insurance & Surety Co., !no., Recu"entes, con.tTfli El Hon.. Felid simo Ocnmvo, Cathay Ceramics, Inc. Y. Jes1U L. Uy, R ecu1'1"ido1. G. R. No. L-5968, A11,gust, 1953, Pablo. M. l. CIVIi. PROCEDURE; INTERPLEADER; MONEY WHICH IS THE SURJECT-MATTER OF INTERPLEADER DEPOSITED WITH CLERK OF COURT CANNOT BE WITHDRAWN BY SUBSTITUTING IT WITH A SURETY BOND.-Aikins. Kroll and Co. deposited the sum of !"21,792.49 with the Clerk of Court and asked the court to dec.ide who an-ong the Cathay Ccrnmics Co., Inc., Lope Sarreal, the Associated In1mra.ncc and Surety Co., Rizalina Rivera, Chuo Rivc!'a and Jesus . Ur. had a right to the said sum. Cathay Ceramics Co. Inc., presented n motion asking the cou1t to withdraw t.'he eum of 1"21.792.49 and to substitute it with a surety. This was op.. posed by Ri:r.alina Rivera a.nd the Associated lnauran!!P. and Sul'rA'y, Co. The Court, hnwever, authorized the Clerk of Court to deliver out of the sum of P21,782.49 deposited, the sum of Pl9,800 t<, J esus L. Uy and the balance of Pl,992.49 to the defendant Cathay Ceramics Inc. ttpnn the filing of the Cathay Ceramic~ Jnr.. of a surety in the amount of P25,000.00, "Oliff of the conditions of which shall be that the surety shall Pa.) to the claimants herein upon the adjudication of their several claims by th1!! Court immediat\>ly and without the necessity ot any further suit in court to enforce collection upon such bond" HELD: There is a great diffe:-cm.•e between lhe amounl' of P21,792.49 de:posited with the Clerk of Court, disposable al: any moment by said clerk upon orders of the court, a.nd a surety of P25,000 borrowed to insure a case. The value of the surety is not the amount which can be distributled by the Clerk of Court at any momcr.t that the court orders, because it is not in his possession. In order that the clerk of courl: may deliver or dia.. tribute it, the court has to order first the guaraotor to deposit t he snm of money wit'h the clerk nf court. 1f the surety CC'mpany on acc0unt of technicality or because theM is no fund dis.. posablc or on account of otht:r motives does not comply im. mediately with th~ orrler of the c<:u1·t, the claimants are left: to wait for the goodwill 'lf the guarantor. How many cases have been brought: to the court bccau~e the sureties did nnt comply with the t erms of the contract. 2. CI\'lL CODE; DEPOSIT; OBLIGATION OF DEPOSITARY.-· The depositary, according to the Civil Code m:iy not use the thing Jeposited without t'hc permission of the depositor C1766 Spani&h Civil Code and Art. 1977, Civil Code of the Philippines>. As a. corollary, the depositary may not dispose of the tbina dl'posited so that others may use it, MR. JUSTICE TUASON, diss~nting, CJ) The law does not provide that the subject-matter of intcrpleader be deposited with i'he clerk of court. By Section 2 of Rule 14 the bringing of the money or property into court is left to the sound judgment of the judge handling the case. In other jurisdicl'ions it is held that it ls not necessary to ot. fer to bring money into court, but only to bring in before other proceedings are taken. <33 C.J. 455>. It has also been held that the stake-holder may ho made the bailee of the fund pend. ing Che litigation. <33 C.J. 451; Wagoner v. Buckley, IS N.Y.S. 599L <2> The sole ground of obJcction to the questioned order by two of the defrndants, to wit ; "the surety bond can not be !\Jl adequate substituCe for money" ·- is, flimsy; and the fears expressed by this court ·regarding the delays and difficulties of enforcing a bond could ea!:.ily be overcome by the selection of a solv..:nt surety of good ~t;;\nding and adequate proviaion1 in U1e undertaking insuring prompC payment when the money was needed. If the court can allow the plaintiff to keep the fund In his posseHion during the pendency of the suit without obligat.,il)n to give any sccurit.'y, why can it not make a tespon1ible third party, with good and sufficient bond, the bailee ot t.he muney? <3> It is of interest to note that t'he remedy by interplcadcr is an equita ble one <38 C.J. 419), and tha.t even in making the final award the c~urt is not necessarily circum. scribed by the legal right's of tht: parties. Thus, "where t.he court has properly acquired jurisdiction of the cause as between defendants, it is not bound to award the fund or other thing in dispute wholly to him who has the legal t'itle, but may so ·shape its rlecree as to do t:omplete equii'y between the -parties." 133 C.J, 467>. JosP.fino 0. CorP'HS for petitioners. Benjamin Re/O'l)a, and S. Emilia.no catma for i·espondents. DECISION PABLO, M.: En la caus:l eivil No. 17111, titulada Atkins, Kroll & Co., Inc., demnnda.nte, cont'ra Cathay Ceramics, Inc., Jose Sarreal, Asao. ciated Insurance & Surety Co., Inc., Rizalina S. Rivera, Claro Rivera y Jesus L. Uy, demandados, presentada en 2!1 de Julio de . 1952. en el Juzgado de Primera Instancia de Manila, la dema.ndante f1idi6 que <:!l Juzgado decidiese quien o quiCncs, '!litre los demandados, tienen dcrecho n la suma de P21,792.49 quc dicho dcmandante dcposit6 en la escribania dcl Juzgado. Esta. suma representa el valor de la segunda rcmesa de rieles de acero vendida a la demnndante Atkins, Kroll & Co., lnc. por la Cathay Ceramics, Inc. en virt'ud de un contrato habido entre ambas en 25 de abril de 1952; y de acuerdo con dicho contrato, la primera remesa se envi6 a la demandante por la. Ceramics, Inc. en 20 de Junie de 1952, con un costo total de 1'25,789.45, y la segunda remesa que monta a "21,792.49, se envi6 en 17 de J ulio del mismo aiio. Segii.n la demanda, Jesii.s L. Uy, por medio de su abogado J ose L . Uy, reclam6 derecho prefe1·ente sobre el importe de la segunda remesa con exclusi6n de Rizalina S. Rivera y la Asso. dated Insurance & Surety Co., Inc.: que estos dos recurrentea, a su vez, _ reclamaron derecho preferente, adrnitiendo, &ln embarab, ,,. la Associated Insurance & Surety Co., Inc, quc de loa P21,792.4.9 cicbe pagarse antes la reclamaci6n de Ri:zalina S. Rivera. y que el saldo se la pague a ella. Estns reclnmaciones contrarias 11on las que dieron Juga.r a que Atkins, Kroll & Co., Inc. se viera obligada a presentar la demand& de 1 "nterpleuder y a depositar la sum a de P21, 792.49 en la. escrib11nia de! juzgado. En 30 de Julio de 1952, un dfa despuCs de presentada la demanda, la Cathay Ceramics, Inc. prcsent6 una moci6n urgente pf. dicndo que sc la pcnnitiera retira.r el dep6sito de P21,792.49 para sustifuirla con una fianza, selialando cl 31 de julio para la viab de la moci6n, a la que se opusieron Rizalina $ , Rivera y la As. socia.ted Insurance & Surety Co., Inc, La moci6n fue vista ant. el Hon. Juez Zulueta que entonces presidia tempora.lmento la Sala 7. a de! Juzgado de Primera Instancia de Manila; pero, en vez 276 THE LAWYERS JOURNAL June 30, 1954 de resolvcrla, endos6 cl e:xpedicnte al Hon. Juez Ocampo que entonces presidia la Sala. 7.a. Oidas las partcs en 4 de agosto, al siguiente <lia, o sea, 5 de agosto, el Hon. Juez Ocampo dict6 una orden cuya parte dispositiva cs la. siguicntc: THEREFORE, the Court hereby authorizes the Clerk c.1f Com·t to deliver, out of the sum of P21,792.49 deposited in his office, the sum of Pl9,&00.00 to defendant: JESUS L. UY dnd the balance of Pl,992.49 to defendant Cathay Ceramics Inc., upon the filing by the said defendant Cathay Ce1'amics, Inc., of a surety bond in the sum of P25,000.00, one of the con.ditions of which shall be thai' the surety shall pay to the claimants herein upon the adjudication of their several cl:!.ims by this Coul"t immediately and without the ut!eessity of any further suit iu court: to enforce collection upon such bond. "The authority herein granted shall take effect upon tho approval of the above-mentioned bond." Al enterarse de dicha orden, Rizalina S. Rivera. y Ia Associated Insurance & Surety Co., Inc. presentaron una moci6n ur~ gente de reconsideraci6n, con una petki6n adicional de que, en cl ca.so de que se dencgase su moci6n de reconsideraci6n, no se efectuara la retirada. de la cantidad consignada mit:ntras eJtuviera pendiente en el Tribunal Supremo una petici6n de certiorari; que el Juez recurrido signific6 que denegaria la moci6n de reconside:raci6n y que ordenaria la ejecuc:i6n de la orden de 5 de agosto a menos que el recibiera una orden <le interdicto. Los rec:urrentes a.cudieron a este Tribunal alegando en sU sohc:itud que el Juez recurrido obt·6 en exceso de Sll jm·isdicci6n o con grave abuso de su discreci6n al expcdir su orden del 5 de .agosi.b; que no tienen ot:·o remcdio fiicil, sencillo y expcdito en el curso ordinario de los procedimientos sino el presente recurso y pidieron que se rcvocace la orden impugnada y, mientras tanto. que se expidiese un interdicto proilibitorio preliminar. Se expidi6 la orden pedida. Cathay Ceramics, Inc. contiende que no hay ninguna proviSi6n le:gc.I qu<:! prohih<-1. al Juzgado permitir que una de las partes en una acci6n de inte?-pleader retire el dep6sito que es el object'o· de ia ac:ci6n siemprc que los derechos de los otros interesados esMn propiame:nte prctegidos por mcdio de una fianza; y los otros re .. curridos c:ontienden que dicha orden no es injusta a los recurrentes puesto que la orden discutida esta redaci..'ada en ta! forma. quc protcge ampliamentc por mcdio de una fianza de 1'25,000 los derec!ios e lntercses de los recurrentes, ye que l'>icndo Cathay Ceramics, Inc. la dueiia y summistradora de los rieles de acero, ella. tiene derecho de recibir el producto de dichos efectos swninistrados. Est:o /ltimo al'gumento no se ajusta a los hechos: de la cantidad depositada, Pl9,800 se entregarian, segU.n la orden, a JesUs L. Uy y solamente Pl,992.49, a la Cathay CE"ramics, Inc. Hay mucha diferencia entre P21,792.49 depositados en la escribania, disponibles en cualquier momento por el escribano a la primera indicaci6n del juzgado, y una fianza de P25,000 prestada por una. casa aseguradora. El import~ de la fianza no es cantidad que puede distributir el escribano en cualquier tiempo quc el juzgado rirdene, porque no esta en su poder. Para quc el escribano pueda entregarlo o distribuirlo, tiene que c.rdenar antes el juzgado al fiador que lo deposite en la escribania. Si la casa. aseguradora, por algun tecnicismo o ya porque no tenga fondos disponibles o por algun otro motivo, no cumple inmediatamente la orden dcl juzgado, los reclama.ntes quc tienen derecho a cobr2.l" quedan en la expectativa esperando la voluntad de la casa fiadora. Cu:l.ntas causas se incoan en los juzgados porque los fia.dores no ban cwnplido los terminos precisos de sus fianzas! Parte de la orden impugnada dice asi: "It is obvious that if by delivering the deposit in the hands of the Cink of Court to defendant: Cathay Ceramics, Inc., a.nd to its co-defendant Jesus L. Uy, said Cathay Ceramics would be aided in a large measure in fulfilling its obligations to the plaintiff, it should likewise be ob\;ous that its co-defendants would be benefited because, then. payments for subsequent shipmem's would be assured.'' Lr.. demandante, que no ~icnc interCs en la cantidad de P21,792.49, la deposito en la escribani& con la suplica de que el Juzgado, despuCs de oir a todas las partes intcresadas, determinase quien tienc derecho a dicha cantidad y que :irdenase su pa.go a la parte y vencedora; no se deposit6 esa cant'idad para que Cathay CC'ramics, Inc. necesitaba dlnero para poder cumplir debida.mente sus obligaciones, que lo obtenga de otra fuente, de algU.n banco, y no de la escribanfa. El depositario, dice el C6digo Civil, no pucde servirse de la cosa depositada sin el permiso del depositante. <Art. 1766, CO. digo Civil Espa.ii.ol y Art. 1977, Civil Code of the Philippines); como corolario, tampoco puede disponcr del mismo para que ot'ro Jo utilicc. El fin por cl cual sc dcposito la cantidad redamada por los dcmandados queda frustrado si uno o dos do cllcs la utiliz:::m para su propio provecho. No pucde, por tanto. el juzgado disponer la retirada del deposit6 de la escribania para quc la Cathay Ceramics, Inc. y JesUs L. Uy pueda11 usarlo en .sus negocios. Se concede el recurso pedido y los rccurridos, exccpto el Juez, pagar6.n · 1as costas. Pablo, Ju!Jo, Bautista A11 gelo. Labrador. Paras, Montema11or and Reyes, J .J. conformes. Justice Padilla took no part • FERIA, J.: Concurring and dissenting The present case is not a mere action of interpl~ader filed by Atkins, Kroll & Co., Inc., a debtor, against several persons claiming preferred right Co a.n obligation or debt due from the plaintiff, in which the law does not require the subject matter of thi:>" interpleader to be deposited with the Clerk of Court, as contemplated in the dissenting opinion of Mr. Justice Tuason. Nor is it a case arising from a contract of depositum in which the bailee is obliged to keep l'hc thing deposited and cannot use it w.ithout the authority of the bailor under Article .1766 of the old Civil Code cited by the majority in their decision to show that the respondent Judge, as a. bailee, had no authority or abused ifu discretion in issuing its order of August 5 herein complained of, for the simple reason that there was not and could not exist such a contract of dcpositum between t'hc plaintiff and the respondent Judge. This is a case of a deposit made by a debtor of the sum of P21,792.49 with the Clerk of Cou:-t claimed by several persons as creditors entitled to receive it, in order to relieve himself of any liability under Article 1176 of the Civil Code. Under the provisions of Articles 1176 to 11$1 relating to tender of payment and deposit, which are the only provisions of law applicable to the case, the money deposited in court is in C11Stodia legls <Manajcro v. Buyson Lampa, 61 Phil. 66) and cannot be disposed of by the court except in accordance with the provision of Article 1180 and 1181 of said Code. Therefore, the respondent J udge ccted without authority or in excess c.f the court's jurisdiction in issuing its order complained of. Therefore, we concur in the result of the majority's decision, but we dissent from the reasons given in support thereof. T UASON, J., di.ssenting: The law does not provide that the subject-matter of fnterpleader be deposited wit.b the clerk of cot1rt. By Section 2 of Rule 14 the bringing of the money or property into court is left June 30, 1954 THE LAWYERS JOURNAL 277 his adopted brother who, on account of having been a.dopted, bttomes his co-heir. t.o the sound judgment of the judge handling the case. In other jurisdictions it is held \.hat it is not necessary to offer to bring mont!y into court, but only to bring in before other proceedings are taken. (33 C.J. 445.) It has also been held th~t the stake- 2. holder may be mliode the bailee of the fund pending the litigation. ID.; ID.; ID.; WHAT CONSTITUTE IMPEDIMENT AS WOULD PREVENT SAID ADOPTION.-The possibility of adopting a step-child depends on the non-existence of legitimate heirs of the "dopting parent. When the Code Commission said in its report that the adoption of a step-child softens family relations it had in mind a case in which none of the legitima.te children will be prejudjced by Che said adoption. <33 C.J. 451; Wagoner v. Buckley, 13 N.Y.S. 599.> Finally Section ·6 of Rule 124 provides: "Sec. 6. Means to carry jurisdictiO'll. into effed. - When :ri ~:il{~;~'!!,~ii~: ;!o~;::e:~~d o~~e: ;:~~~ ~:~!~;!~~\:f:~::~ 3 · JD.; JD.; ID.; ART. 335 OF THE NEW CIVIL CODE HAS CHANGED SYSTEM OF ADOPTION UNDEH CODE OF CIVIL PROCEDURE.-Article 766 of the Codigo de Procedimiento Civil is of American origin. It does not: explicitly prohibit the adoption of a step-child by the step father who has a legitimate child; on the contrary it l!tates that the step-father may ask for the adoption of the ~tep-child. 'l'he Codigo de Procedimiento Civil has revoked the s)stem of adoption in the Civil Code <Jn re adoption of Emilia O. G'.lzman, 40 O.G., 2083J, which doctrine was confirmed in Joaquin v. Navarro and Castro in the Int.estate Estate of the spouses Angela Joaquin alld Joaquin_ Navarro, 46 O.G., <Supp. lJ, 155. Jn order to change this system of the Codigo de Procedimiento Civil which pem1its the adoption of a step-child by a step. father who lms a leiiitimate child, an adoption which may produce grave troubles wit'hin the family which believes in forced heirs, the Code Commission. adopted Article 174 of the Spanish Civil C:ide with some amendnlents, which is now Article 335 of the Civil Code of the Philippines. it into effect may be employed by such court or officer; and if the procedure to be followed in the exercise of such jurisdiction is not specifically pointed out by these rules, any suita.ble process or mode of proceeding may be adopted which i1.ppears most conformable to t.he spirit of said rules." The court's order of which petitioners comphiin has for its avowed purpose the promotion of the interest not only of Ceramics but of all the other defendanls, and it contains adequate safeguards against any substa.ntial injucy to any of the interested parties. The sole ground of objectic-n to the question ori:ler by two of the defendants-to wit: "the surety bond con not oe an adequate substitute for money" - is, flimsy; and the fears expressed by this Court regarding the delay!:! and difficulties of enforcing a bond could easily be overcome by the selection of a solvent surety of good standing and adequate provisions in the undert:aking insuring prompt payment when the money was needed. If the court can allow the plaintiff to keep the fund in his pC"seession during the pendency of the suit wil'hout obligation to give any security, why can it not make a responsible third party, with good and suf. ficicnt bond, the bailee of the money? It is of interest to not:e that the remedy by interpleader is an equitable one (33 C.J. 419>, and that even in making the final award t'he court is not necessarily circumscribed by the legal rights of the parties. T~us, "where the court has properly acquired jurisdiction of the cause u between defendants, it is not bound 1."o award the fund or othf'r thing in dispute wholly to him who has the legal title, but may so shape its decree as to do complete equity bet\veen the parties." C33 C.J. 467.) By the ordC'r under consideration the respondent Judge has not violated any positive legal provision, or abused its discretion, or jeopardized any substantial righC of any of the defendants, and In interfering with that order this Court has shown rigid paternalism not in accord with its powers of review and the spirit of a sound judicial system. VI I. CIVIL CODE; ADOPTION; STEP-FATHER MAY ADOPT STEP-CHILD IF' NO IMPEDIMENT EXIST; CASE AT BAR. -B. an American residing in the P.I., wants to adopt W. son of B's wife who is a divorcee. B and wife have a child. The Solicitor General maintains that B cannot adopt W under Art. icle 335 of the Civil Code, which states that those who have legitimate children cannot adopt!. The lower court held thai B could adopt under Article 33R, which states that a step-child may be adopted by the step-father or step-moiber. HELD: - -Article 338 should be understcod in the sense that a stepfather or step-mother may e.dopt a sCep-child if there is no impediment. If the step-father who adopts has a forced heir, the adoption is not conducive to peace and harmony in the f!l-mily, because the legi~mate child cannot look with favor at 4. ID.; ID.; ID. ; THE WOHD "MAY" USED JN ART. 838 IN. TERPRETED.-Arlicle 338 uses the word "may"; this word may be interpreted in i.11e impen:.tive sense, which imposes an obligation, or permissive, which confers a discretion; its interpretation de11ends on the inte11tion of the legisiator, an intention which may be deduced in relation with the whole law. <Case of Mario Guarifia, 24 J ur. Fil. 38.> lf it is obligatory, therefore, Article 335 is redundant. It is unfair to suppose that the legislature had included in the Code a. rule that is' useless or two rules which are contradictory. If one law is susceptible to various interpretation, the Code should adopt that which does not contradict the other rules, but that which supplements them. Therefore the word "may" in this case is interpreted to mean that which confers discretJon ; it permits, but does not oblige, the adoption of a step-child. R~conciling Article 335 wit.h 338, a stcp-mothllr or step-father who has no legitimat'e child may adopt " i;tep-child; but if they have, they cannot. Solicitor General J11a1~ R. Liwa9 and Solicitor Estrella Abad San. t.-,,s for appellant. J. de Guia for appellee. DECISION PABLO, M.: Normun H. Ball, ciudadanO americano y domiciliado en F ilipinas, habfa pedido la adopciOn de! menor George Willia.m York, Jr. que naciO en 29 de febrero de 1948. El Ministel'io Fiscal se opuso. Despues de la vista correspondicnte, el Juzgado de Primera Instancia de Manila decretO la adopciOn de dicho menor de ilcuerdo con el artfculo 338 del CodigO Civil de Filipina.s. Contra esta decisiOn, tal come ha sido enmendada, en 21 de octubre de 1951 apelO el Ministerio Fiscal. Los hechos son los siguientes: George William York, Jr. es hijo de George William York, Sr. y Sophie S. Farr, los cuales se divorciaron en 1944. DespuCs del decretO de divorcio, est.e menor continuO bajo el cuidado de su m:idre. George William York, Sr. ya esti casa.do con otra mujer y vive en San Francisco, California. El solicitante Norman H. Ball se casO en 5 de agosto de 1947 con la divorciada Sophie S. Fan y con la Cua] tiene una hija do does afios de edad. La fa.milia vive en la calle Balagtas No. 278 THE LA WYERS JOURNAL J unc 30, 1954. 168-D, Manila. La madre de George William dib su consentimiento a la adopciOn de su hijo por el so1icitante, el cual, segtin las pi-uebas, est8 en condiciones econcimicas para educa.r y mantener al El Procurador General contiende que el solicitante no puede adoptar al menor porque el articulo 335 del Codigo Civil de Fili. pinas dispone qu~ no pueden adoptar aquellos que tiElnen hijos legitimos. Dicho articulo dice asi: "ART. 335. The following cannot adopt: "{l) Those who have legitimate, legitimated, acknow. ledged natur:i.l children, or natural children by legal fiction; "l2) The guardian, with respect to the ward, beCcre the final approval of his accounts; "CS> A married person without the consent of the other spouse; "C4> Non-resident aliens; "(51 Resident a.liens with whose government the Repub.. lie of the Philippines has broken diplomatic relations; "(6) Any person who has been convicted of a crime involving moral turpitude, when the penalty imposed was. six months' imprisonment or more." Codi~ !~:t d~s::::e:funda su decisiOn en el articulo 338 deJ mismo "ART. 338. The following may be adopted: "(l) The natural child, by the natural father or mothel'; "(2) Other illegitimat.'e children, by the father or mother; "C3> A step._child, by the step-father or step.rnother.n. En .apoyo de su in~rpretaciOn, cita el informe de la ComisiOn de Codigos clel tenor siguiente: "Adoption of a step.-child by a step. f~th~; o: step-mother is advisable. f~r it eases up a strange pituatto11. . E_ ste argumento es bueno s1 el o ell a no tiene hijo legitimo; pero St ti~~e, la adapcion de un hijastro no suaviza las fricciones en la fam1ha; la ,empeora por cl cvntrario, porquc el hercdero for. ~os~ no s~ ~ntirill felit con la ad~pciOn de su hermanastro; queaana perJudicado porque no gotaria de todo el culdado y amor de :~eJ::fae ~e~i~:· : ;e~:C~~!i.cip:i.ciOn en la herencia, si Ja tuviere, La a.d~.pciOn de George no puede, puea, mejorar las rel1tcioncs entre el h1Jo adoptivo y la hija legitima, La disposiciOn del artL cuJo ~-38 debe entcnderse en el sentido de que se puede adoptar a un .hiJastro por un padrasto o por una madraSUi. si no existe imped1mento algun~~ Si · el padra.sto que adopta ticne un heredero forzoso, la adopc1qn no puede producir paz y armonia en su familia, porque el hijo legitimo no puede ver con buenos ojos al hermanastrC" que~ .P~r haber sido :i.doptado, se convierte en su coheredero. La ~s1b1hdad de la a.do,Pcion de un hijastro depende de la no existenc1a de. herederos legitimos del adoptante. Cuando la ComisiOn dijo en su mforme que la :i.dopcion de un hijast'ro suavita las relaciones !~~~:rr~~ ;:~~~d~c:d~a ::n:c~! :~S:pc~:in.que ningun hijo Jeg{ti~o El ~r.ti'~ulO 174 del CodigO Civil espaiioJ dispone: "Se prohi"" la adopcion: 1.o x x x. 2.o A _los )lUC tengan desccndienbs le.qi. timos o lt!gitimados. etc." Razon de esta disposiciOn: "Tambien prohibe el CodigO la adopciOn a lo.:; que tengan descendientes Jeg{~::? P:~:gi!!~eardo:~li:~~~:n~~ :rt.lo:9,h~:: :e:i~~:le~u:e~e~n:;~:~ bido se tiene pornacido para todos los efectos que le sean favorables'. El fundamento de esta prohibiciOn es sencillo y evidentc tratandose de los que consideran que la adopciOn tiene por fin proporcionar consuclo al que no tiene hijos, pero no para nosot:ros que no vemos en a.quella obra de miscricordia, aunque muy piadosa y loable, la base suficiente de una instituciOn juridica. Nosotros en contrnmos legitimada dicha prohibiciOn, teniendo en cuenta Jos conflictos y diferencias que produciri.l ln cntrada dcl extrafio adop. tado en una socicda.d familiar quc cuenta ya con ot'ros individuos a quicnes prodigar los cuidados y atenciones a que cl adoptado ten. drili derccho.1' (2 Manresa 6.a Ed., 108.> El articulo 766 del Codigo de Pfflcidimiento Civil dispone asi: ''.De la adopciOn por un padrasto.-El h:i.bitante de las Islas Filipin:i.s, marido de una mujer que tuviere un menor habido de m:i.trimonio anterior, podra solicitar del Juzgado de Primera Inst!ancia de la provincia donde residiera., la autorizaciOn para adoptarlo y para cambiar su apellido, pero set& n(' cesario el consentimiento escrito de dicho menor, caso de que tuviere catorce aiios, y el de su madre si 110 padeciere de dcmcncia o embriague_r incurables, sustituyendole en el UJ. timo caso el tut:or legitimo, y si no lo hubiera, una persona discreta e idonea. nombrada por el juzgado actual'a como amigo de! menor." Esta ley es de origen amerlcano; .no prohibe expresamente )a ad op. ciOn de un hijastro por un padrasto que tiene hijo legitimo; al contrario, dispone que el padrasto puede solicitar la adopcion de un hijastro. El Codigo de Procedimienth Civil ha deroga.do el sistema de adopcion del Codigo Civil (In re adoption ot ,Emiliano Guzman. 40 O. G., 2083), doctrina co~firmada en Joaquin contra ~avarro y Castro en Intestate Estate of the Spouses Angela Joaquin y Joaqu[n Navarro, 46 0. G. <Supp. 1), 155. Para cambiar,esta dispG. siciOn del Codigo de Procedimiento que tiene hijo legitimo, adopcio'n que pucde producir grave!! trastornos dentro de la familia que crce en la herencia forzosa, la Comisio'n de CodigOs adoptO el articulo 174 de! Ccldigo Civil espaflol con ciertas cnmiendas, que es hoy el articulo 335 de! c0digo Civil de Filipinas. El articulo ~38 emplea. la palabra may; clicha palabra puede intcrpret~rse c~mo i.'!1perativ.a, que 1m~?ne un dcber, o p~rmisi:V~· que conf1erc <.hscrecion: su mterpreUlcion depende de la mtenc1on · del legisl:i.dor, int<-nciOn que pucde deducirsc de! ~onjunto de toda la ley ' Asunto de Mario Guarifia, 21 Jur. Fil., 38.) Si es obli. 1Iatoria, cntonccs es redundante cl articulo 335. Es injusto suponer quc el legislador hayn. incluido en el C0digo una db1posiciOn inUtil o dos disposicioncs contrarias. Si una ley es susceptible de varias interpretaciones, el tribunal debe adoptar aquella en que nc se contradigan sus varias disponsiciones sino que se complementtn entre si. Declaramos que la. palabra may esta usada en el sentido de quc confiere discreciOn: permite, pero no obliga I:?. adopciOn de un hijastro. Armonizando los articulos 835 y 338, el padrasto o la madrasta que no tienen hijo lcgitimo puedcn adoptar a un hijastro; pero r.i tienen, no pueden hacerlo. Como Herman Ball ticne una hija legitima, no puede adpotar a George William York, Jr. Se revoca la decisiOn aPelada. Paras, Bengzon, Padilla, Tuason, Montemayt>r, Re11es, Jugo, Bautista Angelo, and Labrador, J.J., conformes VII Thi! People of the Philippines, Plairitif/.Appel!ce vs. Felipe A . Livara, Defn1dant.Appellant, G. R. No. L-6200, April 20, 1954; Beng. zon, J. CIVIL COURTS AND COUH.TS-MARTIAL; CONCURRENT JURISDICTION. - The civil courts and courts-martial have concurrent jurisdiction over offenses committed by a. member of the Armed Forces in violation of military law and the public law, The first court to take Cognizance of the case does so to the exclusion of the other <Grafton v. U. S., 11 Phil. 776; Valdes v. Lucero, 42 O. G. No. 112845>. June 30, 1954 THE LAWYERS JOURNAL 279 CRIMINAL LAW; CONSTITUTIONALITY OF ARTICLE 217 01" THE UEVISED PENAL CODE. - Article 217 of the Revised Penal Code which reads: "The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable upon demand by any duly authorized officer, shall be primn fUC1.0 e evidence that he has put such missing funds or property to personal uses," is not unconstitutional and the 'ialidity of that article was discussed and upheld in People v. Mingoa, L-5371, promulgated March 26, 1953, wherein this <"OUrt through Mr. Justice Reyes declared: 1'there is no constitutional objection to the passa.ge of a law providing thnt the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence.'' Marulino Lontok for appellant. Solicitor General Pompcyo Diaz and Solicitor Isidro C. Borromeo for appellee. DECISION BENGZON, J: After the corresponding trial in the Court of First Instance of Romblon, Felipe A. Livara, was found guilty of malversation of public funds and sentenced to imprisonment from four (4) years, two (2) months and one (1 l day of prison correcional to ten <IO> years of pr£sion mayor, with perpetual special disqualification, to pay a fine of P5,000.00, to indemnify the govecnment in the sum of P5,597.00, without subsidiary imprisonment in case of insolvency, and to pay the costs. From this judgment he app('aled on time. Because he assailed the constitutionality -::if Article 217 of the Revised Penal Code, the expcdiente was fonya.rded to this Court. Appellant was from January, 1947 to July 22, 1948, provincial disbursing officer of the Philippine Constabulary in Ilomblon. As finance and accountable officer, he took charge o.f paying the salaries and subsistence of the PC officers and enlisted men of that region. On July 22, 1948, he ca.me to Manila carrying some money, and, having se~ured a Treasury Warrant from the finance officer at Camp Crame for more than PB,000.00, he cashed the same in the Finance Building at 'f4ft Avenue. In November, 1948, an examin9.tion of his account.a was conducted by Major Emilio Raldia, Chief of the Cash Examin<ition and Inspection Branch of the Finance Service, who found him with a net shortage of P9,597 .00 unaccounted for. Major Baldia submitted a report of his findings to the Adjutant General of the PC. Da.ys afterwards, a board of officers was created formally to investigate the appellant. That board found him accountable for P9,59,7.00, and recommended his prosecution before the civil courts for malversation of public funds. An information for the crime of malversation of public funds was consequently filed in the Court of First Instance of Romblon on September 10, 1949. Ma.jor Emilio Baldia, testified in the Romblon court that sometime in November 6, 1948, he examined the accountability of Lieutenant 1"elipe A. Livara and found he had incurred a net sl-.ortage of P9,597.00; and that in answer to his question, appellant admitted his financial liability but asserted he ha.d lost ihe money in Manila on his way to North Harbor to board a vessel for Romblon. Capt. Teofifo V. Dayao, Zone Finance Officer, testified that in the month of August, 1948, he was dispakhed to Romblon to pay the sala.ries and subsistence of the officers and enlisted men of the PC stationed in said province; that he inquired into the whereabout.a of Lt. Livara but was informed that' he had left for Manila on July 23, 1948, to submit for approval the disburs~ent he had made and get the re tum of the same from the PC headquarters; that finding the safe of the accused locked, he sealed it in the presence of Capt. Diaz and Lt. Tafiedo and brought it to Manila where it was opened in the presence of eleYen officers including the appellant; and. that no cash was found in the safe. Provincial Auditor Aproniano S. Celajes, last tirosecution wi~ ness, declared that on July 16, 1948, he examined and verified the books of account and money accountability of the appella.nt amJ ,found a balance of P14,984.00, represented by cash of P6,330.10, actually found on hand and vouchers in the amount of PS,654.00. The appellant Felipe A. Livara :.vas the lone witness for the defense. He d(:clared that on J uly 22; 1948, he c::i.tne to Ma.nil& and submitted his abstract to the Auditor of the PC; that a treasury warrant was issued to him in the amount of more than PB,000.00; that he proceeded to the Finance Building at Taft Avenue and cashed the same; tha.t while riding a public utility jeepney bound for the North H3rbor to embark on the S . S. Elena for ROmblon, he lost his portfolio containing the said money plus about PlOOO more, and other public documents. He swore to having made efforts to r('cover t he portfolio but the jeepney was nowhere to be found. There is no doubt about the !'lhortage. It constitutes prima facie evidence that the accused made personal use of the money, unless he gives a. satisfactory explanation <Art. 217 Rev. Penal Code>. His account of the loss of the portfolio was not believed by the board officers that 0 investigated him, and by the court below. It is really an incredible story. With about ten thousand pesos in it, the portfolio /could not have b1..-en forgotten for one moment by any passenger, especially a finance officer like the accused. The alleged loss was obviously a ruse to conceal his defalcations. As a., matter of fact, even before the Manila trip he was already In the red" as shown by the testimonies of Lt. Bernabe Cadiz, commanding officer of the 83rd PC company and Lt. Damaso C. Quioo, a,d. jutant, supply and finance officer, of Romblon. If the portfolio had actually been lost as recounted.by appellant, he would not be responsible for the money. Yet he admitted hie liability, n1ade efforts to paY it, even used for that purpose a false check payable to Colonel Selga of the Constabulary. ,, Counsel for the appellant c1;>ntends that the Court of First Instance of Romblon had no jurisdiction over the caSJ', arguing that the alleged crime of malvcrsa.tion of public funds occurred during the incl.irnbency of the ac<"used as an officer of the Philippine Constabulary. Such contention is without merit. The civil courts and courts.martial have concurrent jurisdiction over offenses committed by a member of the Armed Forces in violation of military law and the public law. The first court to take cognizance of the case does so to the exclusio~·of the other <Grafton v, U.S., 11 Phil. 776; Valdez v . Lucero, 42 0. G. No. 112845). 'l'he accused-appellant having been first tried and convicted of the crime by the Court of First Instance of Romblon he cannot now claim that the criminal action should have been brought before a courl:-me.rtial. The constitutionality of the last paragraph of Article 217 of the Revised Penal Code is likewise assailed. It reads: "The failure of a public officer to have duly forthcoming a.ny public funds or property with which he is chargeable upon demand by any duly authorized officer, shall be prinm facie evidence tha.t he has put .such missing funds or property to personal uses.'' Defense counsel maintains the view that this provision is contrary to the constitutional directive that in criminal prosecutions the accused shall be presumed innocent until the contrary is proven. This contention deserves no merit, inasmuch as the validity c! the said article has already been discussed and upheld in People v. Mingoa., 1-5371, promulgated March 26, 1953, wherein this court through Mr. Justice Reyes declared: "There is no constitutional objection to the passage of a law providing that the presumption of innocence may be overcome by a contrarY presumption fqunded upon the experience of human conduct. and enacting what evidence shall be sufficient to overcome such presumption uf innocence.'' 280 THE LA WYERS JOURNAL June 30, 1954 WHEREFORE, as this appellant is guilty of malversation of public funds and as the penalty imposed on him r.ccords with the ~~~~l·~~ here~y affirm the judgment with cost.s against him, Sc> Paras, PaMo, Montemayor, Reye:i, Jugo, Bauti~ta Angelo, La. brador, Cuncepcfon and Diokno, J.J., concur, VIII Smiti'ago Ng, Petitioner-Appellant, vs. Republic of the Philip· JJi1les, Opposit<>r-Appellee, G.R. No. L-5258, February 22, 1954, /itgo; J. 1. NATURALIZATION; FULL COMPLIANCE WITH STATUTORY PROVISION BY APPLICANT NECESSARY.- It is not within the courts to make bargains with applicanh for na.. turalization. The courts have no choice but to require that there be full compliance with the statutory provisions. (2 Am. Jur., 577). 2. IBID; IBID.-An alien who seeks political rights as a member of this nation can rightfully obtain them only -upon terms and conditions specified by Congress. Courts are without authority to sanction changes or modifications; their duty is rigidly to enforce the legislative will in respect a matter ao vital to the public welfare. <U.S. vs. Ginsberg, 243 U.S., 4.72; 61 L. ed. 853; 856). Pat1filo M. Ma11g11era for a.ppellant. Solicitor General /fian R. Liwag and SoliciWr Isidro C. Borromeo for appellee, DECISION JUGO, J.: On October 25, 1949, Santiago Ng filed with the Court of First Instance of Marinduque a petition praying for his naturalization as a Filipino citizen. The petition was accompanied by the affidavit of Jose Madrigal, Municipal Mayor of Boac, Marinduque, and the affidavit of Filemon Ignacio, Chief of Police of the same municipality, together with two pictures of the pet.itioner. However, the petition was not accompanied by the declaration of intention to apply for Philippine citizenship presented one year prior to the filing of the petition. The notice of hearing o( the petition had been posted in 3 conspicuous place in the Capitol Building of 'Marinduque and published in Llie newspaper "Nueva Era," a newspaper o( general circulation in said province, on October 31, November 7, and 14, 1949, and in the Official Gazette in October, November and December, 1949. The petition was called for hearing on September 8, 1950, at 9:10 a.m. No oppo$ition was filed, except that o( the Provincial Fiscal, which was presented on September 13, 1950. At the hearing it was established that the petitioner was born on May 28, 1927, at Boac, Marinduque, Philippines, his father being Ng Kin and his mother Ching Kiat, who ai:e still living, both citizens of the Republic of China, the petitioner, therefore, being also a citizen of said country; that the petitioner was 22 years old, single, native and resident of the municipality of Boac, Marinduque, where he had been residing continuously from the time of his birth up to the date of the hearing; that he is of good moral character and believes in the principles underlying the Philippine Constitution; that dul'ing his residence he had conducted himself in a proper and irreproachable manner both in his relations with the constituted authorities as well as with the people in the community with whom he mingled; that he has a lucrative and lawful occupation as a trained mechanic; and that he is able to read and write English and Tagalog. He has no children. He has completed the primary and elementary courses and the first and second year high school. After he finished the second year high school he stopped and entered the vocational school known as the National Radio School and Institute o( Technology in Manila, Philippines, which is duly recognized by. the Philippine Government, He graduated from said school on May 23, 1948, obtaining a diploma. The cou1t o( first instance of Marinduque denied his petition on the ground that he had not made a declaration of intention to become a Filipino citizen one yea1· be(ore he filed his petition. The petitioner appealed from said decision, alleging that the trial court erred in not exempting him from the requirement of making his declaration of intention to become a Filipino citizen one year before the filing of his petition by virtue of Section 6 of the Naturalization Law, as amended, which, among other things, provides as follows: "Pe.rso11s ezempt from requirenunt to nuike a. declaration of intention.-Person.s born in the Philippines and have received their primary and secondary education in public schools or those recognized by the Government and not limited to any r11ce or na.tionality, and those who have residt:d continuously in the Philippines for a period of thirty years or more before filing their application, may be naturalized without having to mRke a declaration of intention upon complying with the other requirements of this Act. x x x''. It is clear that he has not resided for thirty years in the Philippines. He has finished only the second year of high school. The question is whether the course that he took in the National Iladio School and Institute of Technology is equivalent to the third and fourth year high school. The court below on this point ' said: "1-The subjects given in the High School course are entirely different from those given in the vocational school; cultural training is emphasized in the first while scientific and practical training in ~he second; "2-The number o( unit hours required to (inish the first and second year High School 'is much more than those required in finishing the vocational course, "The 1ietitioner does not have sufficient knowledge of Philippine history, government and civics. "In view thereof, the Court has eome to the conclusion that the vocational course eannot be the equivalent of the third, and fourth year High School course. In other words, the pet itioner did not complete his secondary education as required by section 6 o( the Re~ised Naturalizaiton Law for exemption from filing a declaration of intention to acquire Philippine citizenship one year before an alien may file a petition for the acquisition o( Philippine citizenship by naturalization." This Court, in the case of Jesus Uy Yap v. Republic o( the Philippines, G. R. No, L-4270, held as follows: "Because of petitioner's failure to file his intention to become a citizen of the Philippines, we are constrained to deny his application for naturalization. It would seem rather unfair to do this because outside of his failure to file a declaration of intention, the applicant is clearly entitled to naturalization. According to the findings of the trial eourt, not impugned by th~ Government, the applicant was born ~nd raised in the Philippinea, resided continuously here up to the time he npplied June 30, 1964 THE LAWYERS JOURNAL 281 for naturalization, Is married to a Filipino, and is 11ow Jiving as a peaceful resident in this country. Besides possessing all the qualifications required of an applicant for naturalization, the evidenee shows that during the last war, he cloo.rly identified himself with the Filipinos, even helping in the underground resistance movement. However, the law must be complied with. The following authorities may be cited: "x x x It is not within the province of the courts to make bargains with applicants for naturalizatoin. The courts have no choice but to require that there be a full compliance with the statutory provisions" (2 Am. Jr., 577). •"An alien who seeks political rights as a member of this nation can rightfully obtain them only upon terms and conditions specified by Congress. Courts are without authority t; sanction changes or modifications; their duty is rigidly .to en· (orce the legislative will in respect of a m.'.l.tter so vital to the public welfare"' <U.S. vs. Ginsberg, 243 U.S., 472; 61 L. ed. 853; 856). In view of the foregoing, the judgment appealed from is affirmed, with costs against the appellant. SO ORDERED. PartU, Pablo, Bengzon, Padilla, Montemay<W, Reyu, Bau.tista Angelo, Labrador, Concepcion., and Diokno, J.J., concur. IX ,/ Allied Workers Association of the Philippines, vs. Insular Lum. /'er Company, C.R. No. L-6128, Febrtl.!111"1J 25, 1954, Montenw'llor, J. EMPLOYER AND EMPLOYEE; UNFAIR LABOR PRAC.. TICES; CASE AT BAR. - The Insular Lumber Co. tmployed laborers who belonged either to the Allied Workers Association of the Philippines or to a rival union known as the United Labor Union. Santos, a foreman of the Saw Mill De.. parhnent of the Company, had previously been l\n aclive and le.'.l.ding member of the Allied Workers Association of the Philip. pines, but recently had been President of a rh·al union (the United Labor Union). On April 18, 1952, the Allied Workers Association of the Philippines demanded the immediate expulsion and dismissal of Santos, and one of the grounds for the petition was that he had committed and continued to commit acts which constitute unfair labor practices, cruel and detri. mental to the members of the Association. These unfair and cruel labor practices consisted in the threats made by Santos against the workers that if they did not join the United Labor Union, they would be expelled from their jobs or t·eported to the special policemen of Governor Lacson to be manhandled and said laborers were forced to pay f>l.00 each :ind to enter said union against their will and desire, etc. The Lumber Co. filed a motion stating that as may be seen from the charges filed by the Association, the charges against Catalino who was the president of the United Labor union, a cival or the ASsociation had nothing to do with the per!ormanco? of his duties as an employee of the Lumber company, and that the charges were motivated by the fact of Catalino's being president of Qie United Labor Union; that the Lumber Company was under no obligation to take any part in the charges and countercharges of rival unions. HELD: - We cannot agree to the order appealed from stating that the charges againrt Catalino de los Santos were made against him as president of a rival labor union and iu no manner affected the Lum~r Company. It will be remembered that Catalino in allegedly making the threats and putting pressure upon the laborers working under him so acted while he wa::; working as a !oreman of the Lumber company, exercising the functions and authority of an important emw ployee or official of tht! Compa?ly. Furthermore, if he so acted with the knowledge and consent of the company, the parties to this case and the Court wants to know and have the right to know. We are more inclined to agree with Presiding Judge Roldan in his dissent that under the circumstances the Lumber company should take direct interest in the case, deny or meet the, charges for the reason that its good name is involved; that the continued employment of Catalino would in no way solve the industrial conflict between the parties to the case, and that unless the Lumber Company could show that the acts of Catalino complained of, if proven. were individual acts withw out the anthority of the Company, or it authorized, were ex.. ceeded, the Company could not ucape blame, and that Cataw lino as foreman exercised to a limited extent managerial func. tions as a result of which his acts as an agent may be con.. sidered as the acts of his principal. Emilio R. SEveri110 for petitioner. Ross, Selph, CMTascoso and Janda for respondent. DECISION MONTEMAYOR, J., There is no dispute as to the facts. Respondent INSULAR LUMBER COMPANY <later to be re!erred to as the Lumber Compuny) is a domestic corporation <.ngagcd in the lumber business in Fabricn, Negtos Occidental, employing laborers who belong either to the petitioner ALLIED WORKERS ASSOCIATION OF THE PHILIPPINES <later to be referred to as the Association) or to a rival union known as the UNITED LABOR UNION, of which Catalino de los Santos is the President. On April 18, 1952, the petitioner Allied Workers Union sent a letter to t.he respondent Lumber Company presenting three demands, namely: (]) The immediate expulsion and dismiss;1l of Catalino de los Santos, foreman of the Sawmill Department of the Insular Lwnber Company on the ground that he had committed and continued to commit acts which constitu+.e unfair labor practices, cruel and detrimental to the members ot the petitioner; (2) The standardization of salaries and wages based on proper job classification and evaluation; and (3) A general daily ;ncrease of P2.00 in wages and sa.. laries of all the employees and laborers of the company. According to the memorandum filed on behalf o( the Lumber Company dated January 7, 1953, on April 18, 1952, the company replied to the petition as regards the demand for the expulsion and dismissal of Catalino de los Santos, saying that the latter had been the foreman of the sawmill .department of the company for many years, hacl previously been an active and leading member of the petitioner Association, but recently had been the President of a rival Union (The . United Labor Union) of which many employeca and laborers of the company wero affiliated; that while the accuw sations made against Catalino might be well founded the comp1>ny wanted to say that the United Labor Union had made more or less similar charges from time to time against several members of the Association, and that inasmuch as the company had always (ollowed a strictly neutral attitude as between the two unions, ~id company had ignored said complaints; consequently, the company felt that in Order to be fair it Eihould not take the drastic action of dismissal requested but that if the Association sent proof that Catalino had been enriching himself at the expense of the laborers working under him, the company Would immediately investigate the matter. 282 THE LAWYERS JOURNAL June SO, 1954 Convinced that the Lumbe1· Company refused and failed to grant the three demands aforcmenli'lnt>d, the Association d<'clared a strike in the afternoon of June 7, 1952. On Ju_ne 9, 1952, the company sought the interventi~n of the Court of InduStrial Relations CCIR> by filing a petition entitled "INSULAH LUMBER COMPANY, petitioner, vs. ALLIED WORKERS ASSOCIATION, respondent, Numbered '705-V''. On June 14, 1952, while the strike was in progress, the Lumber company filed an urgent petition in the CIR asking it to ord{'r the strikers back to work. On June 17, 1952, Associa~e Judge ,Jose Bautista who wns hearing the ease issued an order to the Jnborers and employees of the Lumber Company who were on strike to i·eturn to work pending determination of the demands and i~ues involved in the cuse. Pursuant to said order the sfriking laborers and employees i·eturned to work. Complying with the verbal order of Judge Bautista the Association presented a specification or charges against Catalino de lvs Santos, dated June 16, Hl52. According to this specification, Catalino de los Santos was working as foreman of the sawmill dl'partrnent of the Lumber company, which sawmill department was the biggest department of the Lumber company; that ten laborers whose names wen: listed, working in said sawmill under Catalino were threatened that if they did not join the United Labor Union they wou,ld be expelled from their jobs or reported to the Special Policemen of Governor Lacson (presumably of Negros Occident.al) to be manhandled, and said laborers were forced by Catalino to pay f'l.00 each as entrance fee to said Union against their will and desire; that Antonio Ablando, a laborer in the sawmill department under Catalino was promised by the latter a job provided that in exchange he lent Catalino the sum of Pl0.00; that eventually Ablando was given a job but during the time that he was working with the Lumber Company, Catalino had taken from him the total amount of f'130.0.0 allegedly borrowed but never paid, and that Catalino also took one of Ablando's pigs worth P30.00 without paying for the same; that abnut 458 laborers whose names were listed in the specification and who were working in the sawmill department under Ctalino were thl'eatened that if they refused to sign their membership and affiliation with the '·VOICE OF THE POOR", a union being organized by Catalino, they would be separated frcm the service; that the Lumber company had been duly advised of these doings and activities of De lo~ Santos but that the management had not done anything to pl'otect said laborers who had been the object of the threats, intimidation and coerci.on by Catalino, and that the laborers so mentioned and listed were 1·eady to testify in court. On June 21, 1952, the Lumber company filed a motion stating that as may be seen from the apecification of charges filed by the Association, the charges against Catalino who waa the president of the United Labor Union, a rival of the Association had nothing to do with the performance of his duties as an ~mp\oyee of the Lumber company, and that the chuges were motivated by the fact or" Catalino's being president of the United Labor Union, that there was no law specifying what are unfair labor practices by rival union leaders; that the Lumber company could not act on ex.parte charges; that the Lumber company was under no obligation to take any part in charges and countercharges of rival unions; that Catalino should be served a copy of the charges an_ d given the opportunity to answer the same and make such defenses and present evidence as he may have, with such counsel as he may select for all of which the Lumbe1· company could not be held res.. ponsible; thirt the other issues involved referring to the demands for standardization of and increase in wages could be properly discussed and submitted to the CIR in Manila. , 1'he motion concluded with a prayer that the Lumbe1· company be relieved of any obligation or duty to defend Mr. Catalino de los Santos against ihe charges filed by the Association, and that the CIR dismis3 such charges as not a proper issue in the dispute between the petitioner and respondent with the right of course on the r,art or the Association to present such charges before the proper tribunal. ~. Acting upon this motion of the Lumber company Judge Bautista issued an order dated J une 28, Hl52 holding that according to the specification of charges filed by the association against Catalino de los Santos, it was clear that the charges were filed against him as President of a rival union for unfair labor practices and in no manner affected the Lumber company, <>s the dispute wafi between two rival unions; however, considering that the said charges against Catalino mi~ht involve the Lumber company if not solved in time, the court <CIRI WC'uld proceed to investigate .said charges, "but in so doing it shall relieve the petitloner Lumber company of the obligation or duty to defend Mr. De los Santos." The order rec1ui1·ed Catalino to be notified of the same and of the date of hearing of the charges against him in Bacolod City. As to the other demands, namely, standardization of salaries and gcncral increase of wages, the hearing was ordered held in Manila. The Association filed a motion for reconsid2ration of the above referred order of June 28, 1952. On said motion for reconsideration the CIR act~d in bane and Judge Bautista with the concurrence of Associate Judges Castillo and Yanson ruled that the court failed to find sufficient reasons for altering or modifyin~ ·said order. However, Presiding Judge Roldan and Associate Judge Lanting dissented in separate opinions. The Association is no"! appuling to this Court from the said order. We \!annot agree to the order appealed from stating that the' chanres against Catalino de los Santos were made against him as president of a rival labor union and in no manner affected the Lumber company. It will be remembered that Catalino in allegedly making the threats and putting pressure upon the laborers working under him so acted while h~ was working as a foreman of the Lumber company, exe1·cising the functions and authority of an important cmployec or official of the Company. Furthermore, if he so acted with the knowledge and .:onsent of the company, the parties to this case and the Court wants t.o know and have the right to know. We are more inclined to agree with Presiding Judge Roldan in his dissent that under the circumstances the Lumber -company should take direct interest in the case, deny or meet the churges for the reason t.hat its good name is inv~lved; that the continued employment of Catalino would in no way solve the industrial conflict between the parties to the case, and that unless the Lumber company could show that the acts of Catalino comr lained of, if pro,·en, were indi\'idual acts without the authority (Jf the Company, or if authorized, w{'re exceeded, the Company could not escape blame, and that Catalino as foreman exercised to a limited extent managerial functions as a result of which l;iis ads as an agent may be considered as the acts of his principal. We also agree with Judge Lanting in his dissent that if it were trne as claimed .ir. the order appealed from that the charges against Catalino in no manner affected the lumber company but involved only two rival unions, then the CIR lacked jUl'isdiction over the subject matter because there was no employer-employee relationship involved; that as a foreman Catalino by his position must have had certain supervisory, if not managerial functions; that when he indulged in the anti-labor practices attributed to him there was the likelihood that he was acting for the Company, and tliat said Company has the burden of proof to show why it should be exempt from blan1e for the acts of Catalino, and that even if it was proven that the company did not know of such acts, still it could be compelled to discharge Catalino !n order to remove a sure cause of dissension in the Com1iany. In conclusion, we are of the opinion that the charges against Catalino de los Santos affect. and involve the J~umber company. It would appear that as foreman of the sawmill department emJune 30, 1954 T_ HE LAWYERS JOURNAL 283: ploying hundreds of laborers he had the right to employ nnd dis. charge laborers or at least the anthority to recommend their f'mployment and discharge. Naturally, with such authority, and the laborers knowing it, his urging them to join a certain labor union under threat- of dismissal and his requests for loans even when not repaid, could not well be ignored or rejected by them. Of course, as the order appealed from states, the Lumber company cannot be compelled to defend Catalino de los Santo;;; but that the company should be vitally interested in the investigation against Catalino, there is no doubt. The company is a party to the case. Whether it wants to take part in the investigatio11 and hearing. that is its affair, but it will naturally be bound by any finding and decision of the CIR based on said investigation and hearing. With this understanding and with the consequent modification of the order appealed from, the same is h<'reby affirmed. No costs. Paras, Pablo, Beng:on, Patlilla, Reyes, Jugo, Bautista. Angel9, and Labrador, J.J., concur. x Larry J. Johnson, Plaintiff-.4vpellee, vs. Maj. Gen. Hrm•ard M. Turrter, et al., Defendants-Appelfo.nt., G. R. No. L-6118, April ?.6, 1954, Monte111nyor, J. ACTION AGAINST THE GOVERNMENT OF THE UNITED STATES; JURISDICTION. - Philippine courts have no ju. risdiction to try cases against the Government of the United States unless said government has given its consent to the filing of such cases. Sizto F. Santiago for appellants. Quinhn F. Pidal for appellee. DECIS I ON MONTEMAYOR, J.: This is an appeal by the defendants from a decision of the Court of First Instance of Manila ordering them or their succes.. sors or representatiVes to return to plaintiff or his authorized representative the confiscated Militar y Payment Certificates <SCRIP MONEY> in the reconverted or new series, amounting to $~1713.00. For purposes of the present appeal the pertinent facts not disputed arc as follows. Plaintiff-Larry J. Johnson, an American citizen, was formerly employed by the U. S. Army at Okinawa up to August 5, 1950, when he resigned, supposedly in violation of his employment con. tract. In the same month he returned to the Philippines as an American civilian, bringing with him Military Payment Certificates <SCRIP MONEY> in the amount of $3,713.0IJ which sum he claims to have earned while at Okinawa. About five months later, that is, on January 15, 1951, he went to the U.S. Military Port 'of Manila and while there tried to convert said scrip money into U.S. dollars, allegedly for the purpose of sending it to the Unit~d States. Defendant Capt, Wilford H. Hudson Jr., P rovost Mar. 1>hal of the Military Port of Manila in the performance ·of his military duties and claiming that said act of Johnr.on in keeping scrip money and in trying to convert it into dollars was a violation of military circulars, rules and regulations, confiscated said scrip money, gave a receipt therefor and later delivered the scrip money to the military authorities. J ohnson made a formal claim for the return of his ~crip money and upon failure •lf the military authorities to favorably act upon his claim, on July 3, 1951, he ccmmenced the present action in the Court of First Instance of Manila against Major General Howard M. Turner as Commanding General, Philippine Command <Air Force) and 13th Air Force with office at Clark Field; Major Torvald B. Thompson as Finance Officer, Provost Marshal, 13th Air Force with office at Clark Field; and Captain Wilford H. Hudson Jr. as Provost Marshal attached to the Manila Military Port Area, to recover said amount of $3,713.00 "at the reconverted or new series aud to the same f ull worth and value." It may be stated in this connection that shortly after the confiscation of the scrip money in Manila on January 15, 1951, an order was issued by the U.S. military authorities for the conversion of all scrip money then outstanding into a new series, thereby rendering valueless and of no use the old series of which the scrip confiscated from Johnson formed a part, and that was the reason why the prayer contained in Johnson's complaint is for the return not of the very same scrip money Cold series) confiscated, but the sU:m "nt the reconverted or new serieg and to the same full worth and value." The defendants through counsel moved for the dismissal of the complaint on the ground of lack of jurisdiction over their persons and over the subject-matter for the reason that they were being sued as defendants in their. respective official capacities as officers of the U.S. Air Force and the action was based on their official actuations, and that the U.S. Government had not given its consent to be sued. The motion for dismissal was denied and the case was heard, after which, the trial court found and hdd that it had jurisdiction because the claim was for the return of plaintiff's scrip money and not for the recovery of a sum of money as Carnages arising from any civil liability of the defenda1}ts;. and that the confiscatory act Of the defendants is contrary to the proYisions of the Philippine constitution prohibiting deprivation of one's property without due process of law. Pursuant to rules and regulations as well as the practice in U.S. military establishments in Okinawa and the Philippines, military payment certificates popularly known as "scrip money" is issued to military and authorized personnel for use exclusively within said military establishments and as sole medium of exchange in lieu of U.S. dollars, the issuance of said scrip money being restricted to ~hose authorized to purchase tax free merchandise at the tax-free agencies of the U.S. Government within its military installations. It is said to be intended as a control mt=asure and to assure that the economy of the Republic of the Philippines will be duly protected. The confiscation of Johnson's scrip money is allegedly based on Circular No. 19, Part I, par. 7<a) of the GHQ, Far East Comnmnd, APO 500, dated March 15, 1949, the pertinent provisions of which read thus: "7. Disposition of Military Payment Certificates. A. Personnel authorized to hold and use military payment certificates prior to departing on leave, temporary duty, or permanent change of status from a military payment certi. ficate areas to areas where military payment certificates are not in authorized use will dispose of their military payment certificates holding prior to departure. Similarly authorized personnel who lose their authorized status are required at the time of such lose to dispose of their military payment or certificate holdings." It is the claim of the defendants that Johnson should have disposed of or converted his scrip money into dollars upon his resignation as employee of the U.S. Government when he lost his authori:.:ed status. and prior- to hi11 departure from Okinawa, and that his possession of said scrip mor.ey in the Philippines, parti. cularly m the Manila Military Port Area was illegal, hence the confiscation. Believing that the main and most important question involved in the appeal is that of jurisdiction, we shall confine our considerations to the same. In the case of Syquia v. Lopez, et al., 47 O.G. 665, where an action was brought 'against U.S. Army officers not only for the recovery of possession of certain apart.. ments occupied by military personnel under .a contract of lease, but also to collect back rents and rents at increased rates includiug damages, we held: 284 THE LA WYERS JOURNAL June 30, 1954 "We shall concede as correctly did the Court of Fii:st Instance, that following the doctrine laid down in the cases of U.S. vs. Lee and U.S. vs. Tindal, supra, a private citizeu clniming tiUe ::md right of possession of a <'ertnin property, may, to r~over possession of ~id property.z sue as individuals, officers, and ag<ints of the Government who r.re said to be illegally withholding the same from him, they in doing so, said officers and agents claim that they are acting for the Government and the court may entertain such a suit although the government itself it not bound or concluded by the dE'cision. The philosophy of this ruling is that unless the courts are pennitted to take cognizance and to assume jurisdiction over such a case, a private citizen would be helplP.ss and without i·cdress and protection of his rights which may have been invaded by the officers of the Government professing to act in its name. In such a case the officials or agents asserting i·ightful possession must prove and justify their claims before the courts, where it is made to appear in the suit against them that the title and right of possession is in the private citizen. However, and this ls important wher~ the judgment in such a case would result not only in the recovery of possession of the property in favor of said cifo:en but also a charge against or financial liability to the Government, then the suit should be regarded as one against the govel-nment itself, and consequently, it cannot prosper or be validly entertained by the courts except with the consent of said Government." In the present case, if the action were merely for the return of th1· scrip money confiscated from plaintiff Johnson, it might yet be said that the action was for the recovery of property illegally withheld by officers and agents of a government professing to have acted as its agents. However, as already sta~d, the present action is for the recovery not of the very scrip money confiscated but for the amount of said scrip in the new series ot military paymer.t certificates, and this was the relief granted by the lower court. Furthermore, if the relief is to be of any benefit to plaintiff ahd since he has already lost his authorized status to possess and use said scrip money, he will have to be given the equivalent of said scrip money in dollars. It is therefore, evident that the claim and the judgment will be a charge against and a financial liability to the U.S. Government because the defendants had undoubtedly acted in their official capacities as agents of saiJ Government, tn say nothing of the fact that said defendants ilad le.mg left the Philippines possibly for other assignments; that was the i·cason the decision appealed from directs the return of the scrip money by the defendants or t1uir successors. Consequently, the present suit should be regarded as an action against tht:: United States Government. It is not disputed that the U.S. Government has not given its consent to be sued.. Therefore, the suit. cannot be entertained by the trial court for Jack of jurisdiction. Another point may be mentioned, tho incidentally, namely, that before the decision was ~ndered by the lower court the plaintiff filed his claim for the same amount of t3,713.00 with the Claims Division, General Accountinng Office, Washington, D.C. However, the record fails to sh:iw the action taken, if any, on ioaid claim. In conclusion, we find and hold that the prt:sent action because of its nature is really a suit against the Government of the United States, and because said Government has not given its consent thereto, the courts, particularly the trial court have no jurisdiction to entertain the same. Because of this, we deem it unnecessary to discuss and rule up•m the propriety and legality of the confiscation made by the defendants, particularly Capt. Wilford H. Hudson, of the scrip money from the plaintiff, and whether or not the latter's filing of his claim with the U.S. Government through its Claims Division, constitutes an abandonment of his claim or suit with the Philippine court. In view of the foregoing, the decision appealed from is hereby i·eversed and the complaint is dismissed. No pronouncement as to costs. Paras, Pablo, B en9zon, Reyefl, Jugo, Bmitfata Angelo, LabradOT, and Concepcion, J.J., concur. Mr. Justlce Padilla <lid not take part. XI Aurelio G. Gavierc$, Plaintiff-Appellant vs. Emilio Sanchez, L o. re11::0 T. Ona, the President of the Ha,;arin Dairy F<l!Nn, Inc., and f.1 1c P n Jsfrlent of the R<'hal•ilitation Finance Corporation, De/C71dants.Appcllees G.R. No. L-6206, A pril 13, 1954, Jl.lonte-i1iayor, J. CIVIL ACTION; v~;NUF.. - In several <l~cisions rendered by thl' Supreme Court, as late as 1950, wc have held tha.t under Section 3, Rule 5 of the Rules of Court, an actk.n affecting titfo to or recovery of possession of i·eal property must be commenced and tried in the province where Eaid property Hes; that an action for the annulmmt or rescission of the sale of property does not operate to efface the fundameT!tal nnd prime r,bjective a.nd nature of the action which is to recover said real property. A11reUo G. Gavieres for appellant. Cri1:p11lo T. Jl.lanubay, Si~to de la Costa, Alejo F. Ca1vlilt> an:l 'Llominador A. Rodriguez for appellee. DECISION MONTEMAYOR, J: On December 23, l!J50, plaintiff-appellant AURELIO G. GAVIERES filed a complaint in the Court of First Instance '>f Rizal against EMILIO SANCHEZ, LORENZO T. ONA, the President of the HACARIN DAIRY PARM CORPORATION, and the President of the REHABILITATION F INANCE CORPORATION, alleging that in 1931 he was the registered cwner and possessor of 1/3 of No. 2386 of Cadastre No. 13 of San Miguel de 1\-farumo, Bulacan, covered by Origin.ii Certificate of Title No. 12463; that on February 6, 1931, he sold his one-third share of the parcel to Emilio Sanchez for r10,ooo.oo pn.yable as follows: !'200.00 on February 6, 1931, !'1,800.00 at the end of the month, and the balance of PS,000.00 in April of the same year; that Sanchf'.Z immediately took possession of the property purchased and that although he had paid only '2,470.00 of the entire price of !'10,000.00, in the same year hE sold the property to ~renzo T. Ona with right to repurchD.se for !'4,000.00 and upon his failure to mn.ke ~he repurchase ONA c."onsolidated his ownership and secured the cancellation of Original Certificate of 'l'itle No. 1246il and the issuance to him of Transfrr Certificate of Title No. 6640; that in 1041 ONA sold the same property to the HACARIN DAIRY FARM CORPORATION resulting in the cancellation of Transfer C(!rtificate of Title No. 6640 and the issuance of Transfer Certificate of Title No. 27257 in the name of the purchaser; and that on September 29, 194'1, the Hacarin Dairy Farm Corporation mortgaged the propnty to the Rehabilitation Finance Corporation in the amount of P'l00,000.00. The cc·mplaint prays among other things that plaintiff be declared real owner and p..:1esessC1r: of the property; that the sale of the same to Sanchez be deelared null and void beca.use of failure to fulfill the conditions of the sale : that the pacto de 1-etro i;ak: to Ona be declared illegal, including the issuance of Transfer Ce1·tificate of Title No. 6640 to him; that the sale by Ona to the Hacarin Dairy Farm Corporation t:e declared inva.Iid and illegal, including the issuance of the corresponding transfer certificate of title and that Lhe mortgage iii favor of the Rehabilitation Fi11ance Corporation be declared illegal and invalid, and that furthermore defendants be =nade to pay dama.ges in the sum of '20,000. 00 . Sanchez filed an answer stating that the facts alleged in the ccmplaint did not constitute sufficient cause of action; that the adiOn had already prescribed, and that the court had no jurisdiction to hear and dttide the case. Ona. filed a moiion to dismiss on the g1·ound of improperly laid venue. The Hacarin Dairy Farm CorJune 30, 1954 THE LAWYERS JOURNAL 285 poration equally filed a motion to dismiss on the ground of lack of sufficient cause of action and prescription. And, th<i! Rehabilitation Finance Corporation a.lso filed a motion on the ground of lack of sufficient cause of action. Acti11g upon these pleadings the trial court presided over by Judge Gatmaitan issued an order dated January 20, 1951 dismissing the complaint. We reproduce said order. "Considering the motion to dismiss filed by Lorenzo T . Ona, the Hacarin Dairy Farm and the RFC, the Court finds that all these motions are well founded. If the action can be considered as an action to recover the property described in the original of Transfer Certificate of Title No. 12463 of Bulacan, it is the Bulacan Coart that has juriEdiction; if, on the other hand, it should he considered as an action to rescintl the contract on the ground of failure to pay the balance of the purchue pricl', considering that according to pa. ragraph 2 of the complaint, the period within whicl} to pay the balance of tl\e purrhase price expired in April, 1!131, the cause of a.ction accrued sinl"e then; and as the complaint was filed only on December 23, 1950, a period of more than ei11:hteen C18) years had elapsed from the date when the cause of action accrued to the date when the comf>laint was filed; in that case, it is clear that the same is already barred by prescription; under Rule 8, Section 1, v subpar. e, prescription may be availed of in a motion to dismiss. Even assuming that the Court has venue over the case, and that the action is to recover real property as from the a.llegations of the complaint, it is a ease where plaintiff, according to him, was deprived of the ownership of the proi;erty since 1931; again it will appear that the action has prescribed since defendants got title in 1931. In fact, the co:nplaint ~hould be considered more of an action to recover the property rather than to a sum of money Clnton v. Quintana, L-.1236, 26 May 1948; Baguioro v. Barrios, 43 0. G. 2031, August 30, 1946·). There is even no showing that defendant Ona, Hacarin Dairy Farm and the 'RFC were purchasers in bad faith; even as to them, there ea.n be no cause of action. The principal defendant Emilio Sanchez has not filed any motion to dismiss; but considering the tenor of his answer, he also raises the preliminary question that there is no cause for action; that the action has prescribed and that the Court has no jurisdiction over the case. From the view we have adopted as sho~r. in the above discussion, it will appear even as against Emilio Sanchez, the action has prescribed. The result will be that the case shall be dismissed . IN VIEW WHEREOF, complaint DISMISSMED, without costs. SO ORDERED." Plaintiff Gavieres first appealed from the above-quoted order to the Court of Appeals which tribunal after a study of the appeal indorsed the case to us on the ground that only questions of law were involved. After a careful study of the issues involved, we agree with the trial court in its order subject of the present appeal, specially as it holds that venue was improperly laid. In several de. cisions rendered by this Tribunal, as late as 1950, we have held that under Section 3, Rule 5 of the Rules of Court, an action affecting title to or recovery of possession of real Jlroperty must be commenced and tried in the province where said property lies; that an action for the annulment or rescission of the sale of property does not operate to efface the fundamental and prime objective and nature of the action which is to recover said real property, and that under Rule 8, section 1 Cb>, a defendant may file a motion to diEmiss the action when venue is improperly laid.I There is no question that the present action should have been brought in the province of Bulacan where the iand lies, and that in bringing the action in the province of Rizal, vinue was improperly laid thereby justifying the order of dismissal. True, not all the defendants askP.d for dismissal on this ground but the purpose of their pleadings can well be interpreted as to attack venue. And as to prescripti~n, as already said, there is every reason to believe and to find the dismissal to be well-founded on prescription, whether the action be considered as one to recover a sum or money or to recover real property. In view of the foregoing, the order appealed from is hereby affirmed, with costs against appellant. Paras, Pablo, Bengzon, Padilla, Ri!ycs, Jugo, Bautista Angelo and Labrador, J.J., concur. (l) Inton "· Quintana, G.R. No. L-1236, '5 O.G. No. 12. p . 5456; Enr!Quez "'• Macadaeg. L-2422. 47 O.G. No. ll, p. 1208: Muiioz v. Llama.t, G.R. No. L-2832, Dec. 21. 1950. XII Roman Tolsa, Petitioner, t18. Hon. Alejandro J. Panlilio, ete., et al., Respondents, G.R. No. L-7024, '/ifay 26. 1954, Montemayor, J. COURTS; JURISDICTIONAL AMOUNT IN CIVIL CASES. -What determines the jurisdiction of a court in civil cases i11 not the amount that plaintiff is entitled to recover under the allegations of the complaint and under the law, but the amount sought to be recovered, usually contained in the prayer. M. S. del Prado for petitioner. File11Um R. Emile for respondent~. DE'CI°SION MONTEMAYOR, / .,· f . As a result of the collision 'in the month of October, 1948, between a truck owned by respondent Atayde Brothers and Company driven by one Elpidio Bamba and a passenger bus owned by petitioner Roman Tolsa, , BAMBA was prosecuted in the Court of First Instance of Manila in Criminal Case No. 8748 for damage to property thru reckless imprudence, was found guilty, and sentenced to pay a fine of P765.00, to indemnify Tolsa in the same amount, with subsidiary imprisonment in case of insolvency, and to pay the costs. On appeal the decision was affirmed by the Court of Appeals. Bamba failed to pay the two amounts and had to undergo the corresponding subsidiary imprisonment. Because of Bamba's insolvency and his failure to pay the indemnity Tolsa filed in the same Court of First Instance of Manila Civil Case No. 19557 against Atayde Brothers and Company and Elpidio Bamba to recover the amount of !"2,013.00 consisting of the indemnity of !"?65.00, !'98.00 as damage to one tire as a result of the collision, !'950.00 as consequential damages which is the amount Tolsa was supposed to have failed to reali2e as income during the time that his bus was being repaired, and !'200.00 as attorney's fees, or a total of !'2,013.00. ·Defendants in said civil case answered the complaint and the court set the hearing of the case on August 20, 1953. However, on August 5th, that is, fifteen days before the date set for hearing, respondent Judge Panlilio motu propio dismissed the case, without prejudice, on the ground that the court was without jurisdiction to try the same for the reason that the amount sought to be recovered in the action was less then f'2,000.00. A motion for reconsideration by plaintiff Tolsa was denied and so he filed the present petition for certiorari on the ground that despite the fact that respondent Judge had jurisdiction over the case, he acted in excess of his jurisdiction anJ with grave abuse of his discretion in dismissing it. Although respondent Judge in his order. of dismissal did not state the reason why he ruled that he had no jurisdiction over the ease, we presume that he was of the belief that plaintiff To\sa 286 THE LA WYERS JOURNAL June 30, 1954 was entitled only to the amount of 1'765.00 awarded to him as indemnity in the criminal case, and that for this reason, the Muni-· cipal Court had jurisdiction. We have already held in several de-cisions that what determines the jurisdiction of a court in civil cases is not the amount that plaintiff is entitled to recover under the allegations of the complaint and under the law but the amount sought to be recovered, usually contained in the prayer. In the recent case of Lim Bing It vs. Hon. Fidel lbafiez, et al., G. R. No. L-5216, March 16, 1953, also a case of certiorari but which we regarded as one for mandamus, wherein the petitioner therein filed an action in the court of First Instance of Manila to recover P4,626.SO, exclusive of interest, itemized as follows: P326.SO for merchandise bought on credit; P2,000.00 for damages, and P2,200.00 as attorney's fees, and where the trial court pronounced itself as without jurisdiction on the ground that "the cause of action" was only for the amount of P326.SO, we held that the amount which determint!S the jurisdiction of the courts of 'general jurisdiction is the amount sought to recovered nnd not the amount found after trial to be due; and as we found that the respondent Judge therein erred in holding thnt he had no jurisdiction, we granted the petition and directed him to decide the case, Finding the present petitioner for certiorari whiCh ·we regard as a petition for mandamus to be well·founded, the same is hereby granted, and setting aside the order of dismissal of respondent Judge, he is hereby directed to reinstate Civil Case No. 19557 ·and hear the same. No costs. Jugo, A1lgelo, Labradbr, and Concepcion, JJ., concur. Mr. Jtaticc Padilla did not take part. XII! The People of the Philippines, Plaintif!·Appellee, vs. Aquino Min!lao, De/endant-Ap]Jf:llant, G.R. No. L-5371, Marc1i 26, 1953, Reues, J. 1. CRIMINAL LAW; CONSTITUTIONALITY OF ARTICLE 217 OF THE REVISED PENAL CODE.-The provisions of Article 217 of the Revised Penal Code create a presumpti('ln of guilt once certain facts are proved. It makes the failure of a public officer to have duly forthcoming, upon proper de1r.and, any public funds or propetty with which !ie is chargeable primii facie evidence that he has put such missing funtls or rroperty to personal use. The ultimate fact presumed is that the officer has malversed the funds or property ~ntrusted to his custody, and the presumption is made to arise from proof that he has received them and yet he has failed to have them forthcomine- upon proper demand. Clearly, the fact presumed Is but a natural inference from the fact proved, so that it cannot be said that there is no rational connection between the two. Furthermore, the statute establishes only a prfovi /acU, pres'll1hption, thus giving the accused an oppc·rtunity tn present evidence to rebut it. The presumption is ?"easonable and will itand the test of validity laid down in the aOOve citations. 2. IBID; IRID;.-Tbe validity .:>f statutes establishing pre!wnp. tions in criminal cases is now a settled matter. Cooley, in his work on constitutional limitations, 8th ed., Vol. I, pp. 639-641, says that "there is no constitutional objection tD the passage of a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient tt> overcome such presumption of innocence." In line with this view, it is generally held in the United Statea that the legislature may enact that when certain facta have bet!n pro .. ·ed they shall be prima f~ evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience. (See annotation on constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 1G2 A. L. R. 495.535; also, State v. Brown, 182 S. E. 838, without reference to embezzlement.) The same view has been adopted here as may be seen from the decision of this Court in U.S. v. Tria, 17 Phil. 303; U.S. v. Luling, 34 Phil. 725; and People v. Merilo, G.R. No. L-3489, promulgated June 28, 1951) !lfat·celmo Lontok for appellant. First Assistant Solicitor G611ttal R1iperto Kapu11.an, Jr. and SoJicitOT Federico V. Sian for appcllee. DECISION REYES, J.: Found short in his accounts as officer-in·charge of the office of the municipal treasurer of Despujols, Romblon, and unable to produce the missing fund amounting to PS,938.00 upon demand by the provincial auditor, the defendant Aquino Mingoa was prosecuted for the crime of malversation of public funds in the Court of First Instance of Romblon, and having been found guilty as charged and sentenced to the corresponding penalty, he appealed to the Court of Appeals. But that court certified the case here on the ground that it involved a constitutional question. The evidence shows and it is not disputed that upon examination of his books and accounts on September 1, 1949, defendant, as an accountable officer, was found short in the sum above named and that, required to produce the missing fund, he was not able to do so. He explained to the examining officer that some days before he had, by mistake, put the money in a large f'n\"elope which hE: took with him to a show and that he forgot it on his seat and it was not there anymore when he returned. But he did not testify in court and presented no evidence in his favor. We agree with the trial judge that defendant's explanation is inherently unbelievable and cannot overcome the presumption of guilt arising from his inability to produce the fund which was found missing. As His Honor observes, if the money was really lost without defendant's fault, the most natural thing for him to do would be to so inform his superiors and apply for release from liability. But this he did not do. Instead, he tried to borrow tD cover the shortage. And on the flimsy excuse that he preferred to do his own sleuthing, he even did not report the loss to the police. Considering further, as the prosecution points out in its brief, that defendant had at first tried to avoid meeting the auditor who wanted to examine his accounts, and that for sometime before the alleged loss many teachers and other employees of the town had not been paid their salaries, there is good ground to believe that defendant bad really malversed the fund in question and that his story about its loss was pure invention. It is now contended, however, that lacking direct evidence of actual misappropriation the trial court convicted defendant on mere presumptions, that is, presumption of criminal intent in losing the money undt:r the circumstances alleged and presumption of guilt from the mere fact that he failed, upon de~and, to produce the sum lacking. The criticism as to the first presumption is irrelevant, for the fact is that the trial court did not believe defendant's explanation that the money was lost, considering it a mere cloak to cover actual misappropriation. That is why the court said that June 30, 1954 THE LAWYERS lOURNAL 287 "whether or not the (dcfendantl is guilty of mnlvcrsation for negligence is o! no moment x x x." And as to the other presumption, the same is authorized by article 217 of the Revised Penal Code, which provides: "The failure of a public officer to have duly forthcomine- any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use." The contention that this legal provision violates the constitutional right of the accused to be presumed innocent until the contrary is proved cannot be sustained. The question of the constitutionality of the statute not having been raised in the cou1t below, it may not he considered for the first time on appeal. <Robb vs. People, 68 Phil. 320), In any event, the validity of 1>tatutes establishing presumptions in criminal cases is now a settled matter. Cooley, in his work on constitutional limitations, 8th ed., Vol. I, pp. 639-641, says that "there is no constitutional objection to the passage of a Jaw providing that the presumption of innocence may be oven:_ome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence." In line with this view, it is generally held in the United States that the legislature may enact that when certain facts have been proved they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the fact-s proved and the ultimate fact presumed so that the in· ference of the one from proo( of the others is not unreasonable and arbitrary because of Jack of connection between the two in common experience. (See annotation on constitutionality o( statutes or ordinances making one fact presumptive or prim.a fade evidence of another, 162 A. L. R. 495-535; also, State v. Bro,Vn, 182 S E. 838, with reference to embezzlement.) The sam& view has been adopted h~rc as may be seen from the decisions of this Court in U.S. v. Tria, 17 Phil. 303; U.S. v. Luling, 34 Phil. 725; and Pople v. Merilo, G.R. No. L-3489, promulgated June 28, 1951. The statute in the present case creates a presumption of guilt once certain facts arc proved. 'It makes the failure o! a public officer to have duly forthcoming, upon proper demand, any public funds or property with which he is chargeable prima facie evidence that he has put such missing funds or property to personal use. The ultimate fact presumed is that the officer has malversed the funds or property entrusted to his custody, and the presumption is made to arise from proof that he has received them and yet he has failed to have them forthcoming upon proper demand. Clearly, the !act presumed is but a natural inference from the fact proved, eo that it cannot be said that there is no rational connection between the two. Furthermor.:-, the statute establishes only a prima fade presumption, thus giving the accused an opportunity to present evidence to rebut it. The presumption is rea,;;onable and will stand the test of validity laid down in the above citations. There being no reversible error in the decision appealed from, the same is hereby affirmed, with costs. PaT'as, Feria, Pablo, Bengzon, Padilla, Montema11or, J11go, Bautiata Angelo, and Labrador, J.J., concur. XIV Pedro Teodoro, Plainti{f-Appellee, vs. Agapito Balatbat, et al., Defeftdlint11-Appelle1;, G.R. No. L-6314 January 22, 1954, Reyu, J. CIVIL PROCEDURE; ACTION FOR FORCIBLE ENTRY AND DETAINER IN A JUSTICE OF THE PEACE COURT; DEFENDANT'S ALLEGATION OF OWNERSHIP OF THE PROPERTY INVOLVED.-It has been held time and again that the defendants in a case of forcible entry and detainer in a justice of the peace court may not divest that court o! its jurisdiction by merely claiming ownership of the property involved. It is, however, equally settled that if it appears during the trial that, by the nature of the proof presented, the question of possession can not properly be determined without settling that of ownership, then the jurisdiction of the court is lost and the action should he dismissed. So, where plaintiff's claim to possession is predicated Upon a deed of sale alleged to have been executed by the dc!endant who in turn alleges said document to be fictitious and fraudulent, and there are no circumstances showing that this claim o( defendant is unfounded, the justice of the peace loses its jurisdiction. T. C. /'IIQ,rtin and A. B. ReyPs for nppe\lants. Jose B. Bautista for appeJJee. DECISION REYRS, J,; This is an nppeal from the Ccurt of First Instance o! Bulacan certified to this Court" by the Court of Appeals for the reason that it invol\'es a purely legal question. The CD$e originated in the justice of the peace court o! Hagonoy, Bulacan, with the filing of a complaint for the recovery o! possession of two parcels of land and a house thereon which were allegedly leased by plaintiff to de!endants and which the latter refused to vacate after the expiration of the lease despite demands. Answering the complaint, defendants denied the alleged lease, and silling up title in themselves, alleged that the house and land in question were merely mortgaged by them to plaintif! as a security for a usurious loan, but that to cover up the usury the transaction was given the form of a fictitious and simulated contract of sale with right of repurchase, which they consented t-0 sign on the assurance that it was to be a mere evidence o! indebtedness and would not be enforced as a true pacto de t"etro sale. After hearing the evidence presented by the parties, the justice of the peace rendered his decision dismissing the case for want of jurisdiction on tho theory that the question o( possession could not be resolved without first deciding- that of ownership. 1"som this decision plaintiCC ap)lealed to the Court of First Instance o! Bulacan. There de!endant filed a motion tu dismiss, alleging that the court had no jurisdicUon to try the case on the merits. But the motion was denied, ~hereupon, defendants filed their answer to the complaint and plainti!!, on his part, filed his reply to the answer. On the case coming up for hearing, defendants in open court again raised the question of jurisdiction. But the court rendered an order holding that the justice of the peace had jurisdiction and remanded the ease to that court for trial on the merits. It is from that order that defendants have appealed. It has been held time and again that the defendant in a case o( forcible entry and detainer in a justice of the peace court may not divest that court of its jurisdiction by merely claiming ownership of the property involved. It is, however, equally settled that "if it appears during the trial that, by the nature of the proof presented, the question of possession can not properly be determined without settling that of ownership, then the jurisdiction of the court is lost and the action should be dismissed." (II Moran, Rules o! Court, 1952 ed., p. 299, and cases therein cited.) So it is held that where plaintiff's claim to possession "is predicated upon a deed of sale alleged to have been executed by the defendant, who in turn alleges said document to be fictitiou0 s and fraudulent, and there are no circumstances showing that this claim of de(endant is unfounded, the justice or the peace loses its jurisdiction." (Ibid.) The evidence presented in the justice of the peace court in the 288 THE LA WYERS JOURNAL June 30, 1954 present case is not before us. But from the answer filed by the defl'.!ndants in the Court of First Instance and plaintiff's reply thereto, it is evident that plaintiff's pretended right to the possession of the property in dispute ultimately rests upon his claiin of ownership, a claim based upon a purported contract of sale with right of repurchase admittedly signed by defendants but claimed by them to be a mere simulation to cloak a mortgage obli. gation tainted with usury. If this contract was really a sale subject to repurchase and the repurchase has, as alleged by the plaintiff, not been made within the time stipulated, plaintiff would ah·Pady be the owner of the property sold and, .:is such, entitled to its possession. On the other hand, if the contract was, as de· fendants claim, in reality a mere mortgage, then the defendants would still be the owner of the property and could not, therefore, be regarded as mere lessees. In the final analysis then, the case hinges on a question of ownership and is for that reason not cog· nizabl'? by the justice of the peace court. The case at bar is to be distinguished from that of Sevilla vs Tolentino, 51 Phil. 333, cited by the learned trial judge in the or· der appealed from. In that case, defendant was deemed to have impliedly admitted being lessee of the property in dispuk and could not for that reason be allowed to claim ownership thereof in the same action. Such is not the situation of the present defendants, who have in their answer denied the alleged lease. · DECI S I ON REYES, J.: This is an appeal from an order of the Court of First Instance of Pangasinan, dismissing an information for illegal possession of firearm and ammunition. The dismissal was ordered on a motion to quash on the grounds that the information did not state facts sufficient to constitute an offense. The information alleges that defendant had possession, custody and control of the prohibited articles without the required license. But because it does not allege that defendant made use of them except for self-defense or carried them on his person except for the purpose of surrendering them to the authorities, the lower c_ourt found it insufficient in view of our ruling in People vs. Santos Lopez y Jacinto, G.R. No. lrlOG2 (promulgated November 29, 1!>47), which was re-affirmed in People vs. Ricardo Aquino y Abalos, G.R. No. L-1429 <promulgated May 16, 1949). As the justice of the peace court of Hagonoy had no jurisdiction to try the case on the merits, the order appealed from re· manding the case to that cou1·t must be, as it is hereby, revoked; and, in accord with the precedent established in Cruz et al. vs. • Garcia et al., 45 O.G. 227, and the decisions therein cited, the case is ordered returned to the Court of First Instance of Bulacan for that court to proceed with t he trial in the exercise of its original jurisdidoin. With costs against the appellee. · The ruling cited is applicable only to violations of the firearm law committed before the expiration of the period fixed in Procla· mation No. 1, dated J uly 20, 1946, for surrendering unlicensed firearms and ammunitiori, when mere possession of these a1·ticles did not make the possessor criminally liable unless he was found making use of them except in self-defense or carrying them on his ' person except for the purpose of surrend~ring them. This is what we held in case of People vs. Morpus Felinggon, G.R. No. J.....3460, promulgated December 29, t9riO, from which the following may be quoted: "We are of the opinion that the Santos Lopez case does not apply. Therein the possession of firearms and ammunition OC· cured in August 21, 1946; whereas Morpus' possession was al· leged to be on September 15, 1949. Distingue tempora et con· dordabis jura. Distinguish time and you will harmonize laws. Up to August 31, 194r>-by reaEon of Sectio11 2 of Republic . Act No. 4 and the proclamation of the President - 'criminal liability for mere possession of firearms and ammunition' was in effect 'temporarily lifted' or suspended. Wherefore Santos Lopez' mere /11)8.~esi;fon before August 31, 1946 was not punishable. That was our holding in the Santos-Lopez decision. How· ever, on August 31, 1946 the suspension terminated; and there· after t he general rule making it unlawful to manufacture, sell, possess, etc., firearms and ammunition again prevailed. Con· scqucntly the herein appcllce having been allegedly found in possession of firearms after August 31, 1946 (more specific· ally on September 15, 19491 be transg1·cssed lhe law on the matter. unlc~s he proved some valid defense er exculpation." Paras, Bcngzon, Montem.ayor, Bautista Angelo. Pablo, Padillo, Ju.'10, and Labrador, J.J., concur. xv The People of the PliifippineJ, Plaintiff.Appellant, vs. Ricardo CatcherrJ, Defenda11t..4.ppellee, G.R. No. L-6084, promulgated December 17, 1953, Reyes, J. CRIMINAL LAW; ILLEGAL POSSESSION OF FIRE. ARM8; EXEMPTION FROM CRIMINAL LIABILITY.-The information alleges that defendant had possession, custody and control of the prohibited articles without the required license. But because it does not allege th~t defendant made use of them except for self-defense or carried them on his person except for the purpose of surr,endering them to the authorities, the lower court found it insufficient in view of our ruling in People vs. Santos Lopez y J acinto, G.R. No. L-1062 (promulgated November 29, 1947>, which was re-affirmed jn People vs. Ricardo Aquino y Abalos, G.R. No. L-1429 (promulgated May 16, 1949). The ruling cited is applicable only to viola· tions of the firearm law committed before the expiration of the period fixed in Proclamation No. 1, dated July. 20, 1946, for surrendering unlicensed firearms and ammunition, when mere possession of those ar.ticles did not make the possessor criminally liable unless he was found making use of them except in selfdefense or carrying them on his person except for the purpose of surrendering them. First Assistnnt 'S«licito, General Ruperto Kapunati, Jr. and So. l1ciWr Jose G. B<11itista for :.>.ppellant. No appearan<"e for appellee. As the violu.t.ion charged in the present case is alleged to have be committed on or about August 16, 1949, which was after the deadline (August 31, 1946> fixed for the surrender of unlicensed firearms and ammunition, the ruling applicable is that laid down in the case last cited. Wherefore, the order appealed from is revoked and the case ordered remanded to the court below for further proceedings. PaTas, Pablo, Bengzon, Padilla, T uason, Montemayor, Jugo, Bautista Angelo, and Labrador, J.J., concur. XVI TJ1e People of •the Philippines, Plaintif!A-ppellee, v,s. Leon Aqnino, Defendant~Appellant, G.R. No. L.6063, Aprii 26, 1954, Reyes, J. 1. CRIMINAL LAW; M4LVERSATION OF PUBLIC. FUNDS; FUNDS IMPRESSED WITH THE CHARACTER OF "PUBLIC FUNDS".-Even supposing that funds belonging to the NARIC are not public funds, they become impressed with that June 30, 1954 THE LA WYERS JOURNAL 269 character when they are entrusted to a public officer for his official custody (People vs. De la Serna, 40, O.G. [Supp. 12] 159}. 2 . IBID; IBID.-Red Cross, Anti-Tuberculosis, and Boy Scouts funds delivered to an assistant cashier of a provincial treasurer for his custody acquire the attributes of public funds. Dcmtina<ior 7'. T119Me for appell2.nt. Solicitor G6neral Jimn R. Liwag s.nd Solicitor Fe!i:J; V. Makasia.,. for appellee, DECISION REYES, /.: The accused Leon Aquino was charged in the Court of Firs~\'. Instance of Pangasinan with malversation of public funds fof having on or about July 16, 1951, misappr9priated public !unds amounting to !"20,944.27 entrusted to his care in his capacity as municipal treasurer and postmaster of Mabini, Pangasinan, and "ex-officio in-charge of the properties and funds of the National Rice and Corn Corporation <NARIC)." Pleading guil~y to the charge, the accused was, in accordance with Article 217, paragraph 4, of the Revised Penal Code and the Indeterminate Sentence Law, sentenced as follows: "(a) In accordance with the Indeterminate Sentence Law and Art. 217, par. 4 of the Revised Penal Code, and taking into account his plea of guilty, to suffer a penalty of EIGHT YEARS and ONE DAY of 'Prision mayor' as a minimum and TWELVE YEARS and ONE DAY of "Re- - clusion temporal' as a maximum; ''(b) To suffer the penalty of perpetual special disqualification; "(c) To pay a fine of Pl0,472.13, without subsidiary imprisonment because of the principal penalty imposed; "<d> To indemnify the National Rice and Corn Corporation in the amount of f'l2,656.83 ; "(e} To indemnify the Government of the Republic of the Philippines in the amount of !'2,910.44; "(f) To indemnify the Bureau of Posts or the Government of the Republic of the Philippines in the further amount of !'5;an .oo; "(g) To pay the costs of this case." From this sentence the accused has appealed, and his attorney in this instance contends that the lower court should have applied paragraph 3 instead of paragraph 4 of the article mentioned. In support of this contention attention is invited to the fact disclosed in the information that !'12,656.83 of the fUnds malversed belonged to the NARIC, and, on the theory that NARIC funds are not public funds because the NARIC is a corporation separate and distinct from the Government, counsel argues that with respeet to that sum the accused cannot be held guilty of malversation of public funds. With that sum excluded, the amount of public funds malversed, so counsel contends, would only be !'8,287.44 and would come under paragraph 3 of the article in question, which provides for a penalty lighter than that prescribed in paragraph 4. The contention is without merit. Even supposing that funds belonging to the NARIC are not public funds, they become impressed with that character when they are entrusted to a public officer for his <ifficial custody (People vs. De la Serna, 40 O.G. [Supp. 12] 159). Thus this Court has held that Red Cross, AntiTuberculosis, and Boy Scouts funds delivered to an assistant cashier of a provincial treasurer for his custody acquire the attributes of public !unds (People vs. Velasquez, 72 Phil. 98). We find the sentence appealed from in accordance with law. We, therefore, confirm it with costs against the appellant. Paras, Pablo, Beng::on, Jugo, Bautista An9elo, Labrador, and Concepcion., J.J., concur. Mr. Jitstice Padi//(, did not take -part. XVII Carmen Festejo, Demundante-Apelante, contra Isaias Fernan.Jo, Director de Obras P11blicas, Demandado·Apelado, R .G. No. L-5156, pronmlgada, Mar::o 11, 1954, Dt6kno, M." '.', .;·. P UBLIC OFFICERS; WHEN P.ERSONALLY L,IABLE; CASE AT BAR-Plaintiff owned somt! parcels of land totalling z.bout 9 hectares. The Director of the Bureau of Public Works "without authority obtained first from the Court of F,irst Instauce of !locos Sur, without first obtaining a right way, and withrrnt the consent and knowledge of the plaintiff, and against her express objection, unlaw{ully took possession of portions of lhe three parcels of land and caused an irrigation canal to be constructed on the portion of the three parcels of lan<:i x .x x." Consequently, she asked the court "to return or cause to be returned the poasession of the portions of land unlawfully oc-cupied and appropriated, etc." The defendant, through the Solicitor General, presented a motion to dismiss on the grnund that the coutt had no. jurisdiction over the case in view vf the fact that the action was against the Republic of the Philippines and said Republic had not consented to be sued. The inferior court dismissed the case. HELD: The action against the Director of the Bureau of Public Works is one which is directed against him personally for acts which he performed in his capacity as such official. The law does not excuse him from responsibility for acts which he performed or ordered to be performed beyond the s<;ope of his power in the performance of his official functions. Eloy H. Bello for appellant. Sulicitor Ge11!:!rnl Pompcyo Diaz and Solicitor A1~tonio A. Torres fo1· appellee. DECISION DIOKNO, M.: Carmen Festejo, duefia de unos terrenos azucareros, de un total de unas 9 hectareas y media de superficie, demandO a "Isaias Fernando, Director, Bureau of Public Works", "que como tal Director de Obras Publicas tiene a su cargo los sistemas y proyectas de irrigacion y es el funcionario responsable de la construccion de los sistemas de irrigacion en· el pa is," alegando queThe defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of Ilocos Sur, without obtaining first a right of way, and without the consent and knowledge of the plaintiff, and against her express objection, unlawfully took possession of portions of the three parcels of land described above, and caused an irrigation canal to be constructed on the portion of the three parcels of land on or about the month of Feb. 1951 the aggregate area being 24179 square meters to the damage and prejudice of the plaintiff." - R. on A. p. 3. causando a ella variados dai'ios y perjuicios. PidiO, en su conse.cuencia, sentencia condenando al demandado: · . to return or cause to be returned the possession of 290 THE LA WYERS JOURNAL June 30, 1954 the portions of land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters and to return the land to its former condition under the expenses of the defendant." x x x "In the remote event that the portions of land unlawfully occupied and appropriated can not be returned to the plaintiff, then to order the defendant to pay to the plaintiff the sum of Pl9,342.20 as value of the portions totalling an area of 24, 179 square meters;" - R. on A., p. 5. y ademas a pagar P9,75Gil9 de daiios y PS,000 de honorarios de abogado, con las costas, R. on A., pp. &-6. El demandado,/ ppr medio dcl Procurador General, prcsent:O mocion de sobreseimic~to de Ip. demanda por el fun~amento de que el Juzgado no tiene jurisdiccion 1 >ara dictar s<·ntencia valida cnotra el, toda vez que judicialmente la reclam:1c1on cs contra la Republica de Filipinas, y esta no ha presenta<lo su consentimiento a la demanda. El Juzga.do inferior estimo la moci6n y sob1·eseyO la demanda sin perjuicio y· sin costas. En apelacicln, la demandante sostiene que tue un error considerar la demanda como una contra la Republica y sobieseer en su virtud la demanda. La acciOn contra '"Isaias Fernando, Director de Obras ~ubli cas", "encargado y responsable de la construccion de los sistemas de irrigaciOn en Filipinas" es una dirigida 1Mrsonaluumte contra e1, por actos que asumi6 cjecutar en su concepto oficial. La Icy no le exime de responsabilidad por las extralimitaciones que cometa o haga cometer en el desempeilo de sus funciones oficiales. Un caso semejante es el de Nelson v. Babcock (1933> 18 Minn. 584, 24 NW 49, 90 ALR 1472. Alli el Comisionado de Carreteras, al mejorar un trozo de la carretera ocupO o se apropi6 de terre.nos contiguos a l derecho de paso. El Tribunal Supremo de! Estado declarO que es person11lmente responsable al uuei'io de los dailos causados. Declaro ademas que la ratificaciOn de lo que hicieron sus subordinados era equivalente a una orden a los misrnos. He aqui lo dijo el Tribunal: "We think the evidence and conceded facts permitted the jury in finding that in the trespass on pla.intiff's land defendant committed acts outside the scope of his authority. When he went outside the boundaries of the right of way upon plaintiff's land and damaged it or destroyed its former condition and usefulness, he must be held to have designedly departed from the duties imposed on him by law. There can be no claim that he thus invaded plaintiff's land southeasterly of the right of way innocently, Surveys clearly marked the limits of the land appropriated for the right of way of this trunk highway before construction began. x x x. "Ratification may be equivalent to command, and cooperation may be inferred from acquiescence where there is power to restrain.' It is unnecessary to consider other cases cited, x x x, for as before suggested, the jury could find or infer that, in so far as there was actual trespass by appropriation of plaintiff's land as a dumping place for the rock to be removed from additional appropriated right of way, defendant planned, approved, and ratified what was done by his subordinates." - Nelson v. Babcock, 90 AL.R. 1472, 1476, 1477. La doctrina sobre la responsabilidad civil de los funcionarios en casos parecidos se resume como sigue: "Ordinarily the officer or employee committing the tort is personally liable therefor, and may be sued ots another citizen and held answerable for whatever injury or damage re&ults from his tortious act." - 49 Am. Jur. 289. If an officer, even while acting under color of his office, exceeds the power conferred on him by law, he cannot shelter himself under the plea that he is a public agentt4.3 Am. Jur. 86. "It is a general rule that an officer-executive. administrative quasi-judicial, ministerial, or otherwise who acts outside the scope o! his jurisdiction and without authorization of law may thereby render. himself amenable to personal liability in a civil suit. If he exceeds the IlOwer conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under color of his office, and not personally. In the eye of the law, his acts then are wholly without authority." - 43 At,; .Jr. 89-90. El Art. 32 de! Codigo Civil dice, a su vez: "Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another I>erson shall be liable to the latter for damaies: "C6) The ri,i:ht against deprivation of property without due process of law; "In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of · any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. ''The indemnity shall include nwral damages. Exemplary damages may also be adjudicated." Veanse tambien Lung v. Aldanese, 45 Phil. 784; Syquia v. Almeda, No. L-1648, Agosto 17, 1947; Marquez v. Nelson, No. L-2412, Septiembre 19GO. Se revoca la orden apelada y se ordena la continuaciOn de la tramitacion de la demanda conforme proveen los reglamentos. Sin ef:pecial pronunciamiento en cuanto a las costas. Asi se ordena. Padilla, Reyes, Jugo, Bautista Angelo, y Labrador, JJ.,- conformes. Pan-as, a.nd Mo>1temayor, JJ., reser\'ed their votes. Justice Concepcion dissented in a separate opinion. Pablo, J ., took no part. CONCEPCION, J,, dissenting: To my mind, the allegations of the complaint lead to no other conclusion than that appellee Isaias Fernando is a party in this case, not in his personal capacity, but as an officer of the Government. According to said pleading the defendant is "Isaias Fernando, Director, Bureau of Public Works." Moreover, in paragraphs 4 and 5 of the complaint, it is alleged: "4. That the defendant as Director of the Bureau of Public Works is in charge of irrigation projects and systems, and the official responsible for the construction ?f irrigation system in the Philippines; 5. That the defendant, as Director of the Bureau of Public Works, without authority obtained first from the Court of First Instance of llocos Sur, without obtaining first a right June 30, 1954 THE LA WYERS JOURNAL 291 of way, and without the consent and knowledge of the plaintiff, and against her express objection, unlawfully took possession of portions of the three parcels of land described above, and caused an irrigation canal to be constructed on the portion of the three parcels of land on or about the month of Feb. 1951 the aggregate area being 24,179 square meters to the damage and prejudice of the plaintiff." (Underscoring supplied.) The emphasis thus placed upon the allegation that the acts complained of were performed by said defendant "as Director of the Bureau of Public Works," clearly shows that the designation of his office was included in the title of the case to indicate that he was being sued in his official capacity. This conclusion is bolstered up by the fact that, among othsr things, plaintiff prays, in t he complaint, for a judgment "Ordering the defendant to return or caused to be returned the possession of the portions of land unlawfully occupied and appropriated in the aggregate area of 24,179 square meters and to return the land to its former condition under t he expense of the defendant." (Paragraph a, of the complaint). We take judicial notice of the fact that the irrigation projects and systems referred to in the complaint-of which the defendant Isaias Fernando, according to the same pleading, is "in charge"-and for which he is "responsible" as Director of the Bureau of Public Works-are established and operated with public funds, which, pursuant to the Constitution, must be appropriated by law. Irrespective of the manner in which construction may have been undertaken by the Bureau of Public Works, the system or canal is, therefore, a property of the Government. Consequently, in praying that possession of the portions of land occupied by the irrigation canal involved in the present case be returned to plaintiff herein, and that said land be restored to its former condition, plaintiff seeks to divest the Government of its possession of said irrigation canal, and, what is worse, to cause said property of the Government to be re~oved or destroyed. As held in Sy Quia vs. Almeda C 47 0. G. 670-671>, the Government is, accordingly, "the real party in interest as defendant" in the case at bar. In other words, the same par· takes of the nature of a suit against the st:ite and may not be maintained without its consent. Hence, I am constrained to dissent. I concu~ in the above dissent. - Bengzon, J. XVIII Juan Planas and Sofia Verlon, Petitioners, vs. Madrigal &- Co., et als, Respondenl.s, G. R. Nu. L-6570, AV"il 12, 1954, Bautista Angelo, J,: CIVIL PROCEDURE; EXECUTION OF JUDGMENT; DUTY OF THE SHERIFF. - The duty of the sheriff in connection with the execution and satisfaction of judgment of the court is governed by Rule 39 of the Rules of Court. With re· gard to the proceedings to be !ollowed where the property levied in execution is claimed by a third person, section 15 provides that if such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making levy, the officer shall not be bound to keep the property unless the judgment creditor, 9n demand, indemnify the officer against such claim by a bond in a sum not greater than the value of the property levied on. If the third claim is sufficient, the sheriff, upon receiving it, is not bound to proceed with the levy of the property, unless he is given by the judgment ereditor an indemnity bond against the claim (Mangaoang , .. Tho Provincial Sheriff, L·4869, May 26, 1952). Of course, the sheriff may proceed with the levy even without the indemnity bond, but in such case he will answer for any damages with his own personal funds. <Waite v. Peterson, ct al., 8 Phil. 449; Alzua et al. v. Johnson, 21 Phil. 308 ; Consuli:'?. N::i 341 de los abogados de Smith, Bell & Co., 48 Phil. 56;:i.J And the rule also provides that nothing therein contained shall prevent a third person from vindicaling his. claim to the property by any proper action (Section 15, Rule 39). Jeremia11 T. Sebnstian for petitioners. Baui;a & A 1111>il for respondents. DEC I SION BAUTISTA ANGELO, J,, This is a petition for certiorari seeking to set aside certain orders of respondent Judge with. the view to reviving or giving course to the third party claims filed by petitioners with the Provincial Sheriff of Rizal cl:\iming to be the owners of the houses levied in execution and to excluding them from the list of indi\'iduals who were ordered to vacate the land of Madrigal & Co. Inc., issued in Civil Case No. 954 of the Court of First Instance of Rizal. This petition stems from a case of forcible entry and detainer instituted by Madrigal & Co. Inc., ai:ainst Concepcion L. Planas and Iluminada L. Planas in the Court of F irst Instance of Rizal (Civil Case No. 954>, which culminated in a judgment in favor of plaintiff and against the defendants, whereby the latter were ordered to vacate the property in litigation and to pay to the former the corresponding rentals for their occupancy of ·the property until it is vacated. This judgment was affirmed by the Court of Appeals and became final and executory. On November 28, 1952, upon petition of plaintiff, a writ of execution was issued by the court and was given course by the clerk of court by virtue of which the defendants were given 15 days within which to vacate the land. Defendants having failed to do so, plaintiff filed a motion for the issuance of a special order of demolition of the buildings constructed thereon. On December 16, 1952, J uan Planas filed an action in the same court claiming to be the owner of two of the buildings, plus two other adjacent buildings marked as annexes, contemplated to be demolished and praying for the issuance of a writ of preliminary injunction. The writ prayed for was denied. Instead, the court granted the motion of plaintiff for the demolition of the buildings belonging to the defendants. On January 23, 1953, the provincial sheriff commenced the demolition of the buildings, whereupon Juan Planas filed on January 28, 1953 with said sheriff a third party claim alleging to be the owner of the four buildings which were ordered to be demolished as belonging to defendants, and on the same date, January 28, 1953, Sofia Verdon filed likewise a third party claim alleging to be the owner of the personal property found in said buildings. At the same time, Juan Planas wrote to the sheriff requesting him to stop the demolition of the buildings and to require the judgment creditor to file an indemnity bond as required by the rules. This request was transmitted by the 5heriff to counsel of the plaintiff requesting appropriate action, but instead of heeding the request counsel filed an urgent motion to quash the third party claims filed by J uan Planas and Sofia Verdon. A timely objection was interposed to this motion by the third party cla.imants. On February 5, 1953, the court granted the motion to quash and discarded the third party claims as well as the notice given 292 THE LAWYERS JOURNAL J une 30, 1954 to the sheriff requiring the plaintiff to post an indemnity bond. The claimants moved for the reconsideration of this order but the same was denied. On February 9, 1958, to foUow up his claim in line with his interest, Juan Planas filed another third party claim with the sheriff requesting the latter to turn over to him all the materials that were dismantled and brought down from the houses that had been demolished, alleging t-0 be the owner thereof, and to require th• judgment creditor to put up the necessary indemnity bond for his prot.ection. The sheriff failed to act on this third party claim. Instead, in the afternoon of February 10, 1953, Juan Planas received a copy of an urgent motion to quash said second third party claim filed by counsel for the plaintiff. Juan Planas moved for postponement of the hearing of this motion but his motion was ignored, and on February 11, 1953, the court granted the urgent motion and dis· carded the second third party claim of Juan Planas. On February 10, 1953, Juan Planas received a copy of an order of the court issued of February 2, 1953 which directs that certain individuals, including Juan Planas, vacate the land of the plaintiff pursuant to the judgment of the court. On February 17, 1953, these individuals, including Juan Planas, filed a ' joint petition for the reconsideration of the order of February 2, 1953 but this joint petition was denied. Hence, this petition for certiorari seeking to set aside the orders above adverted to. The question to be determined is whether the respondent Judge acted with grave abuse of discretion when he ordered the quashing and discarding of the first and second third party claims interposed by petitioners on January 28, 1953, and February 9, 1953, and in ordering petitioner Juan Planas t-0 vacate the land of the plaintiff not being a party to the case of forcible entry and detainer instituted by l\fadrigal & Co. Inc., against Concepcion L. Planas and Iluminado L. Planas. The duty of the sheriff in connection with the execution and li8tisfaction of a jueigment of the court is governed by Rule 39 of the Rules of Court. With regard to the proceedings to be followed where the property levied in execution is claimed by a third person, section 15 provides that i! such person makes an affidavit of his title thereto or right to the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy, the officer shall not be bound t-0 keep the property unless the judgment creditor, on demand, indemnify the officer against such claim by a bond in a sum not greater than the value of the property levied on. If the third party claim is sufficient, the sheriff, upon receiving it, is not bound t-0 proceed with the levy of the property, unless he is given by the judgment creditor an indemnity bond against the claim (Mangaoang v. The provincial Sheriff, L4869, May 26, 1952>. Of course, the sheriff may proceed with the levy even without the indennity bond, but in such case he will answer for any damages with his own personal funds. (\Vaite \'. Peterson, et al .. 8 Phil. 449; Alzua, ct al. v. Johnson, 21 Phil. 308; COnsulta No. 341 de los abogados de Smith, Bell & Co., 48 Phil. 565.) And the rule also provides that nothing therein contained shall prevent a third person from vindicating his claim to the property by any proper action (Section 15, Rule 39). In the present case, the provincial sheriff departed from the regular procedure prescribed by the rules. He chose to proceed with the levy even without the indemnity bond in view of the urgent motion to quash filed by the judgment creditor in the main case. It should be remembered that the court, after proper hearing, wherein the parties were allowed to submit documentary evidence, found the third party claims to be without merit and ordered that they be discarded and quashC!d. Indeed, the court found that Juan Planas, the third party claimant, is the son of defendants Concepcion L. Planas and Illuminado L. Planas, and a stockholder of a firm of which Concepcion L. Planas was the principal stockhold~r. It also found that since the filing of the ejectment case against the spouses Planas up to December 29, 1952, the four houses claimed by Juan Planas were registered in the name of his mother, Concepcion L. Planas, in the assessment rolls of Pasay City, and that it was only on said da.te that said :i.ssessments were transferred to Juan Planas. On the other hand, the answer sub. mitted by spouses Planas in the ejectment case contains a clear averment that the four houses now in dispute were contradicted and were the property of said spouses. Likewise, the letter of Atty. Arcadio Ejercito, counsel of Concepcion L. Planas, sent to the provincial sheriff in connection with the demolition of the four buildings in question, contains an avermcnt which indicates that said buildings belonged to said defendant. This circumstantial evidence must have engendered in the mind of the court the conviction that the claim of ownership put up by J uan Planas at so late an hour is but an eleventh hour attempt to thwart and frustrate the execution .of the judgment rendered in the ejcctment case. We hold that the action taken by the respondent Judge on this matter is jm;tifird. At any rate, the right of Juan Pla.nas to the property is not completely lost, for the rule reserves to him the right t.o vindicate his claim in a proper action (Section 15, Rule 39) . This he did by bringing an action in court asserting his own.ership over the property. This action is still pending and will be 'decided in due time (Civil Case No. 1961). Anent the order of respondent J udge dated February 2, 1953 which directs that Jose Isla, Carlos Neri, Jose T. Josue, Juan Planas and the San Miguel Brewery, Inc. vacate the land of plaintiff pursuant to the judgment of the court in the ejectment case, which order is now attacked as illegal because they were not parties to that case, the record shows that, before issuing said order, the court conducted a summary hearing to determine the nature of the possession of the property claimed by Juan Planas and other occupants, and that at that hearing respondent Judge summoned all of · them t-0 appear to show cause why they should not be ejected from the premises. And after the hearing was over respondent Judge found that Juan Planas and the other occupants were mere transferees or possessors pendente lite of the property in question. RespondC!nt Judge found that if they had any right at all to occupy the property, that right is merely subsidiary to that of defendant Concepcion L. Planas. As such, they are bound by the judgment rend· ered against the latter in consonance with the doctrine laid down in the cases of Brodett v. De la Rosa, 44 0. G., No. 3, pp. 874-875, and Gozon v. De la Rosa, 44 0, G., pp. 1227-1228. Of course, these are questions of fact as to which there may be controversy, but the proper place where this should be threshed out is not in this proceedings, but in an ordinary action. For the present, we are satisfied that the respondent Judge has acted on the matter in the exercise oi his sound discretion. Wherefore, the petition i~ dismissed, with costs. Panis, Pablo, Ben.::on, Montemayor, Reyes, Jugo, Labrador, and Diolmo, J.J., concur. Justice Cvncepcion concur red in the result. XIX The People of the Philippines, Plaintiff-Appellant, 11s. Lee Diet, aeciued, Rizal Surety and Insurance Company, Bondsman-Apvellce, G. R. No. L-5256, Novem.ber 27, 1953, Bautista Angelo, J .. CRIMINAL PROCEDURE; DAIL; · DISCHARGE OF SURETIES: CASE AT BAR.-R company was the defendant's surety. On the day of the preliminary investigation of the case., the defendant failed to appear. · Counsel for the ac.. cused appeared and informed the court for the first time that June 301 1954 THE LA WYERS JOURNAL 293 V the whereabouts or the accused was not known due to the fact that he escaped three days before while under the custody of the Philippine Constbaulary. It appears that the accused while out on bail was rearrested on June 8, 1951, by some agents of the constabulary, but during his detention he escaped. For his failure to appear, the Justice of the Peace declared the bond forfeited and required the surety to produce the body of the accused within thirty days with notice and to show cause why judgment should not be rnnde1·ed against it for the amount of the bond. Two days later, however, the Justice of the Peace reconsidered his orde1· and remanded the case to the Court of First Instance of Cotabato. On August 2, 1951, on the day of the arraignment, the accused a~in failed to appear, whereupon the provincail fiscal moved for the confiscation of the bond Posted by him for his personal liberty. Held: It is true that a surety may also be discharged from the non-performance of the bond when its performance "is rendered impossible by the act of God, the act of the' obligee, or the act of the law" <U.S. v. Sunico, 40 Phil .. 826-832>, but even in these cases there still remains the duty of the surety to inform the court of the happening of the event so that it may take apJ?rOpriate act.ion and decree the discharge of the surety {Section 16, Rule 110). Here no such steps was taken by the surety when the accused was r£o-arrested by the constabulary authorities. The surety kept silent since it did not take any of the steps pointed out by law if it wanted to be relieved from its liability under the bond. It only gave notice to the court of that fact when the court ordered the appearance of the accused either for arrai£T1ment or for trial. It was only then that it informed the court that the accused was re-arrested 1md that. while he was detained, he made good his escape. Since at that time his bond was still valid and binding, and notwithstanding the re-arrest of the accused the surety kept silent. it must be presumed that the surety chose to continue with its liability under the bond and should be held accountable for what may later happen to the accused. tody of the Philippine constabulary. It appears that the accused while out-on bail was re-arrested on June 8, 1951, by some agentS of the constabulary for questioning regarding his alleged aubver· sive activities, but during his detention he escaped. For his failure to appear, the Justice of the Peace declared the bond forfeited and required the surety to produce the body of the accused within 30 days from notice and to show cause why judgment should not be rendered against it for the amount of the bond. Two days later, however, the Justcie of the Pe.ice reco,isidercd his order and remanded the case to the Court of First Instance of Cotabato. On July 2, 1951, the Provincial Fiscal filed the corresponding information against the accused. The arraignment and trial of the accused were set for August 2, 1951, but on said date the ac· cused again failed to appear, where~pon the Provincial Fiscal moved for the confiscation of the bond poSted by him for his provisional liberty. Counsel for the surety objected giving as reason for the non-appearance of the accused the same reason given by him before the Justice of the Peace Court of Cotabato. The court denied the motion holding in substance that the reason given by counsel for the surety for the non-appearance of the accused was satisfactory and had the e~fect of relieving it from its liability under the bond. Hence this appeal. The only question to be determined is whether, while the accused was out on bail, was picked up by the constabulary authorities in the province for questioning in connection with subversive activities, and thereafter escaped from their custody, wilt excuse the surety, the Rizal Surety & Insurance Company, from the nonperformance of its obligation under the bond. It is a well-settled doctrine that a surety is the jailer of the accused. "He takes charge of, and absolutely becomes responsible for the latter's custody, and under such circumstance, it is incumbent upon him, or rather, it is his inevitable obligation, not merely a right, to keep the accused at all times under his surveillance in as much as the authority emanating from his character as surety is no more nor less than the Government's authority to hold the IBID.; IBID.; WHEN SUBSEQUENT ARREST OF PRIN- said accused under preventive imprisonment.'' (People v. Tuising, CIPAL DOES NOT OPERATE AS A DISCHARGE OF HIS 61 Phil. 4o4.) SURETIES.-It has been held that "The subsequent arrest of the principal on another charge, or in other proceedings, while he is out on bail does not operate ipso facto as a discharge of his bail x x x. Thus if, while in custody on another charge, he escapes, or is again discharged on bail, and is a free man when called upon his recognizance to appear, his bail are bound to produce him." (6 C.J., p. 1026.) First Assistnnt Solicitor Gt:11f/ral R itperto Kap10;,an, J·r. and So. licitor Meliton G. Soliman for apriellant. Pad.ilia, Cairlos & Fernando for a.ppellee, DECISION BAUTISTA ANGELO, /.> On May 25, 1951, Lee Diet was charged before the Justice of the Peace Court of Cotabato, Cotabato, with the crime of uttering false U.S. gold coins in connivance with some counterfeiters. On the same date, the Justice of the Peace issued a warrant for his arrest and fixed the bail bond for his provisional liberty at rt2,000. Thereupon, the bond was put up by the Rizal Surety & Insurance Company and the accused was released. The Justice of the Peace set the preliminary investigation or the case for June 14, 1951. On this date the accused failed to appear. Counsel for the surety however appeared and informed the court that the whereabouts of the accused was not known due to the fact that he escaped three days before while under the cus. When the surety in this case put up the bond for the provisional liberty of the :i.ccused it became his jailer e.nd as such was at all times charged with the duty to keep him under its surveillance. This duty continues until the bond is cancelled, or the surety is discharged. The procedure for the discharge of a surety is clear in the Rules of Comt. 'l'hus, it is there provided that the bail bond shall be cancelled and the sureties discharged of libaility <a) where the sureties so request upon surrender of the defendant to the court; (b) where the defendant is re-arrested or ordered in· to custody on the same charge or 'for the same offense; (c) where the defendant is dischal'ged by the court at any stage of the proceedings, or acquitted, or is convicted and surrendered to serve the sentence; and (d) where the· defendant dies during the pendency of the action. CSection 16, Rule 110.) It is true that a surety may also be discharged from the non· performance of the bond when its performance "is rendered impossible by the act of God, the act of the obligee, or the act of the law" (U.S. v. Sunico, 40 Phil., 826-832), but even in these cases there still remains the duty of the surety to inform the court of the happening of the event so that it may take appropriate action and decree the discharge of the surety (Section 16, Rule 110). Here no such steps was taken by the surety when the accused was re-arrested by the constabulary authorities. The surety kept silent since it did not take any of the steps pointed out by law if it wanted to be relieved from its liability under the bond. It only gave notice to the court of that fact when the court ordered the appearance of the accused either for arraignment or for trial. It 294 THE LAWYERS 10URNAL June 30, 1954 was only then that it informed the court that the accused was rearrested and that while he was detained, he made good his escape. Since at that time his bond was still valid and binding, and notwithstanding the re-arrest of the accused the surety kept silent, it must be presumed that the surety chose to continue with its liability under the bond and should be held accountable for what may later happen to the accused. It has been held that "The subsequent arrest of the principal on another charge, or in other proceedings, while he is out on bail does not operate ipso facto as a discharge of his bail x x x. Thus if, while in custody on another charge, he escapes, or is again discharged on bail, and is a free man when called upon his recognizance to appear, his bail are bound to produce him." (6 C. J. p. 1026.) This case should be distingUished from the recent case of People v. Mamerto de la Cruz, G. R. No. L-5794, July 23, 1953, wherein this Court said: "It has been seen that if the sureties did not bring the person of the accused to court, which thef were powerless to do due to causes brought about by the Government itself, they did the next best thing by informing the court of the prisoner's a rrest and confinement in another province and impliedly asking that they be discharged. On its part, ·the court, by keeping quiet, and indeed, is:ming not ices of the hearing direct to the prisoner through the Sheriff of Camarines Norte and ignoring the sureties, impliedly acquiesced in the latter's request and appeared to have regarded the accused surrendered." No such ~tep was taken by the surety in this particular case for it failed even to inform the court of the apprehension made of the accused by the constabulary authorities. Wherefore, the order appealed from is reversed, without pronouncement as to costs. Pa.rru, Bengzon, Pahlo, a.nd Pndilla J .J., concur. Turuon, Reyes, Jugo, and Labrador, J.J., concur in the result. MONTEMAYOR, J .. concur ring: I concur in this opinion penned by Mr. Justice Bautista her cause it is in accordance with and follows the view maintained in my dissenting opinion in the case of People vs. Mamerto de la Cruz, G. R. No. L-5794, despite an attempt to disitnguish the present Diet case from the Cruz case. xx Consolacion C. Vda. De Verzosa, Paz Verzosa, Jos-e Verzosa, Vicente Verzosa, CrispUlo Verzosa and Raymundo Verzosa, Plaintiffs·Appellants, vs. Bonifacio Rigonan, Segundo Nacnae, Nemesio Seguno, Clerk of the Coilrt of First Instance of !locos Norte. and Ludovi<;o Rivera, Provincial Sheriff of !locos Norte, Defendants· Appeltees, G. R. No. L-6459, April 23, 1954, Bailtista Angelo, J .: PLEADING AND PRACTICE; MOTION TO DISMISS; RES ADJUDICATA; PROOF OF THE EXISTENCE OF PRIOR JUDG~IENT.-Where, in a motion to dismiss, it is stated that there is a former judgment which bars said action and a copy of the decision is attached to the motion, which is not disputed, the said copy of the decision may be considered as sufficient evidence to prove the existence of the prior judg· ment between the same parties because under Sec. 3, Rule 8, a motion to dismiss may be proved or disproved in accordance with Rule 123, Sec. 100, which provides : "When a motion is based on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." C01trado Rubio and Hermenegildo A. Prieto for appellants, Bonifacio Ri9onan for appclleea. · DECISION BAUTISTA ANGELO, /.: Plaintiffs instituted this action in the Court of First Instance of Ilocos Norte praying that judgment be rendered Cl) declaring null and void the actuations of the clerk of cou1"t and of the sheriff of said province on the ground that they are in contravention of law; (2) declaring null and void the order of the court dated J uly 18, 1941 on the same ground ; (3) ordering defendants to pay plaintiffs damages in the amount of Pl0,000; and (4) ordering defen· dants to pay the costs of action. The averments of the complaint are: Luis Verzosa, on February 5, 1931, ex~uted a real estate mortgage for the sum of P3,500 in favor of Ignacio Valcarcel on a parcel of land situated in the municipality of Dingras, Ilocos Norte. On July 13, 1932, the mortgage creditor filed an action to foreclose the mortgage CCivil Case No. 3537) and after trial, at which the parties submitted a compromise agreement, the court rendered decision in accordance with said agreement. On April 20, 1934, a writ of ex~u· tion was issued by the clerk of court ordering the sheriff to sell at public auction the property described therein for the satisfaction of the judgment. On November 28, 1934, or Seven month:oi after the issuance of the writ, the sheriff returned the writ with a stntement of the action he had taken thereon. On December 12, 1934, the clerk of court issued another writ of execution, and the sheriff, acting thereon, announced the sale of twenty parcels of land belonging to the judgment debtor instead of the parcels of land described in the writ. On January 15, 1935, the sheriff sold several parcels of land to Bonifacio Rigonan and Rafael Valcarcel. and on May 21, 1936, the sheriff issued a final deed of sale in their favor. On March 10, 1936, counsel for judgment creditor requested the clerk of court to return the writ to the Rheriff so that other propHty may be lc\•ied in execution for the satisfactioll of the balance of the judgment which remained unsatisfied, which request was granted. And on October 15, 1936, the sheriff sold other parcels of land in favor of Bonifacio Rigonan and Irineo Ranjo, the latter in behalf of Rafael Valcarcel, heir of the judgment creditor who had already died. On July 7, 1938, counsel for judgment creditor again requested the clerk of court for an alias writ of execution, but instead of submitting to the court said request for resolution, the clerk of court issued a decree reiterating the original writ which was carried out by the sheriff. On February 17, 1941, Rafael Valcarcel sold to Bonifacio Rigonan and SegUndo Nacnac one of the parcels of land sold by thf< sheriff for PlOO, and on July 18, 1941, an order was issued placing Bonifacio Rigone.n in possession of said property. The present action was instituted on September 19, 1950 pray. ing for the · nullification of the actuations of the clerk of court and the provincial sheriff as stated in the early part of this decision. Defendants filed a motion to dismiss on the following grounds: (1) that the action of the plaintiffs has prescribed; (2) that there is a former judgment which bars said action; and (3> that the complaint states no cause of action. Copy O f the decision above referred to was made a part of the motion. The above motion having been submitted to the court for decision, the latter found that the action had already prescribed it apJune 30, 1954 THE LAWYERS JOURNAL 295 pearing that the acluations which are sought to be nullified took place more than ten years ago. As regards the ground that there is a prior judgment which bars the present nction, the court ruled that the same cannot be entertained because it involves a question of fact which does not appear admitted in the complaint. The court expressed the opinion that no affidavit or evidence can be considered on a motion to dismiss because the sufficiency of a complaint should be tested on the basis of the facts alleged therein, The court, however, allowed the plaintiffs to amend their complaint within five days from receipt of the order in accordance with the discretion given to it by the rules of court. Paras, Pablo, Be11g::cm, Montemayor, Reyes, Ju.90, Labrador, Concepcion, and Diok110, J.J., concur. / XX! v. . . DECISION Salvador E. B1medll, Pt.ht1011 er, vs. Arcadio PerM ttnd Hon,. Jose T. Swrtida, J11dge of First l111~ta11cc o/ Camarines Swr, 10 Judicial District, Respondents, G. R, No. L-5588, Ang. 26, 1953, Bautista Angelo, J.: Taking advantage of this grace, plaintiffs submitted an amend. 1. ed complaint wherein they reiterated tl1e same facts with some clarifying modifications. Defendants reiterated their motion to dismiss on the same grounds. And finding no substantial difference between the original and the amended complaints, the court ordered the dismissal of the case without pronouncement as to costs. After the case had been taken to the Court of Appeals, it CERTIOHARI; ERROR OF J URISDICTION nISTJN. GUISHED FROM ERROR OF JUDGMENT. - As a rule, lhe erro1·s which the court ma.y commit in the t!Xercise of its jurisdiction are merely errors of judgment. In the t·rial of a case, it be<'omes necessary to distinguish errou of jurisdiction from errors of Judgmrnt. The first may be reviewed in a certiorari proceeding: the second, by appeal. E1·rors of jurisdiction 1·ender an order or judgment void or viodable but errors of judgment or procedure are not necessarily :i. ground for reversal CMonn, Comments on the Rules of Court, Vol. 2, 1952 ed .. p. 158>. was later certified to this Court on the ground that the appeal involves purely questions of law. A cursory reading of the amended complaint will reveal that the actuations of the clerk of court, as well as of the sheriff, which are sought to be nullified are: the writ of execution issued by the 2. clerk of court on December 12, 1934, as well as the sales and other actuations executed by the sheriff by reason of said writ of execution; the decree of the clerk of court issued on May 21. 1986, as mm; WHERE APPEAL IS AN ADEQUATE REMEDY. - A writ of certiorari will be denied where the appeal is an adequate remedy though Jess speedy than certiorari. Mere possible delay in the perfection of an appeal and in securing a decision from the appellant court is no justification for departing from the prescribed procedure . •. "unless" there was lack or excess of jurisdiction or abuse of discretion and the delay would work injustice to the complaining party. well as the sale1t and other actuations of the sheriff made in pursmmce thereof: the decree of the clerk of court issued on July 7, 1988, as well as the actuations of the sheriff made in compliance with said decree: and the assi,IZ'llment made by Rafael Valcarcel of his right and interest in the land sold on February 17. 1941 to defendants Bonifacio Ri(!'(lnan and Segundo Nacnac. And as a necessary consequence, plaintiffs also asked for the nullification of the order of the court dated Julv 18. 1941 placing Bonifacio Rigo. nan in possession of the land sold to him. It appears from the above recital that the acts and decrees which are soug-ht to be nullified took place more than ten years prior to the filing of the present action, and since under Article 44 of Act No. 190 an action of this nature prescribes in ten years, it follows that the action of the plaintiffs is already barred bv the statute of limitations. If the aforesaid acts can no lonirer be nullified, it also follows as a 1el!al consequence that no action can be taken on the order of the court issued on July 18, 1941 directing the sheriff to place Bonifacio Rii:ronan in possession of the parcel of land sold to llim because of the principle that possession must follow ownership unless ordered otherwise. As regards the second ground invoked in the motion to dismiss no affidavit or extraneous evidence can be considered to test the sufficiency of a complaint except the fact11 alleged in the same complaint. We hold that under Section 3, Rule 8, a motion to dismiss may be proved or disproved in accordance with Rule 123, Section 100, which provides: "When a motion is baRed on facts not appearing of record the court may hear the matter on affidavits or depositions presented by the respective parties but the court may direet that the matter be heard wholly or partly on oral testimony or depositions." And in our opinion the copy of the decision attached to the motion, which is not disputed, may be considered as sufficient evidence under the rule to prove the existence of a prior judgment between the same parties. In this sense, the second ground of the motion to dismiss may also be entertained to test the sufficiency of the cause of action of the plaintiffs. Wherefore, the order appealed from is affirmed, without prono11ricement as to costs. Dominndc>r P. Padilla for petiti<'ne>r. Ramon Imperial for respondents. DECISION BAUTISTA ANGELO, J.: This is a petition for certiorari and mandamus with preliminary injunction seeking to compel respondent Judge to allow petitioner to adduce evidence relative to an alleged irregularity committed by the board of inspectors of precinct No. 6, of Pamplona, Camarines Sur, during the election for municipal mayor held on November 13, 1951. The purpose of the injunction i!I to restrain respondent Judge from procc:eding with the trial of the protest })ending determination of the issue raised in this proceeding. This injunction was issued ai; prayed for. Petitioner w".l.S declared elected municipal mayor of Pamplona, Camarincs Sur, with the plurality of one vote, in the elections h<:ld on NovemlM:r 13, 1951. Respondent Arcadio Perez contest.eel the election in due time. In hia answer, respondent set up a t'ounter-protest averring, among other things, "That he impugns the electoral returns in Precinct No. 6 of Pamplona e..s well as the votes therein on the ground of wholesale irregularity, gross violation of the election law by the Board rof Inspectors, and wanton disregard by said boa1·d of the right of some 20 or more voters in Eaid precinct to vote fol' protestee; it follows that were it not for such irregularity a.nd ''iolation of law, protestee would have obtained 20 or more votes in his favor." When tria.I came, and after protestant had concluded presenting his evidence, protestee proceeded to present his evidence to establish not only his specil\I defenses but also his coun.ter-protest relative to the irregularity which he claims to have been allegedly committed :n Precinct No. 6 of Pamplona as stnted in the .preceding paragraph, but respon:lent Judge, sustaining the opposition of protestant, ruled out such ~vidence upon the theory that to permit proof of said 296 THE LAWYERS JOURNAL June 30, 1954 irregularity would in effect disfran.::hise two hundred or more voters if the purpose is to annul the clecti<·n in the aforesaid precinct. This is now the order subject of the present petition for certiorari . It should be noted that the main ground of the opposition of protestant to the presentation of the ('vidence which protestee desires to adduce is the fact that the irregularity which is desired to be established has not been clearly a1~d specifically set out in th(; answer, which vaguen('ss or gcnE-ralization makes the avernment utterly inadequate or insufficient to serve as basis for the rresentntion of evidence, even if at the trial counsel made a verbal manifestation as to the 1iarticular acts constitutive of the violation of law on which he bases- his pica for the nullification of the election in p1·ecinct No. 6 of Pamplonn . But it appears thP..t such is not the ground entertained by the 1·espondent Judge in ruling out the evidence, it being a matter which may be subserved with the mere amendment of th<>. pleading, but rather his view, right or wrong, to the effect that such evid<>nce could not serve any useful purpose for, even if it be allowed, it may not have the effect of nullifying the f'lection as such would have the effect of disfranchising two hundred or more legitimatc voters whose right has never been assailed, Such being the question before us for determination, we are of the Gpinion that the action taken by petitioner to correct the ruling of the court is not the proper one, it being a mere error of judgment which should be corrected by appe!ll, and not an act of lack of juris.. diction or grave abuse of discretion which is the proper subject of a petitioi:i for certiorari. As a rule, the errors which the court may commit in the exercise of its jurisdiction are merely errors of judgment. In the trial of a case, it becomes necessary to distinguish errors of jurisdiction from errors of judgment. The first ma.y be reviewed in a certiorari proceeding; the second, by appeal. Errors of jurisdiction render an order or judgment Yoid or voidable, but errors of judgment or procedure are not necessarily a ground for reversal <Moran, Comments on the Rules of Court, Vol. 2, 1952 ed., p. 158) . Again, a writ of certiorari will be denie~ where the appeal is a.n adequate remedy though less speedy than certiorari. "Mere possible delay in the perfection of an appeal and in securing a decision from the appellate court is no justification for departing from the prescribed procedure . . " unless "there was Jack or excess of jurisdiction or abuse of discretion and the delay would work injusl1ce to the comph1ining pa.rty . . " (f<leni, pp. 166, 167.) The order complained of by petitioner 1s merely interlricutory or peremptory in character which is addressed to the sound discretion of the court. That order may be erroneous, but it is a mere error of judgment which may be corrected by appeal. This remedy is adequate enough, for whatever delay may be suffered in the }>l'O<".eeding would not work injustice to petitioner who sure enough is presentlr_ holding the office contested by respondent. \Vht'r€"fore, the petition is hereby denied with costs agtdnst pl:titioner. The writ of injunction issued hy this Cou1t is hereby di::;sc-lved. Paras, Po.bk>, Padilla, Montc11111yvr, Jugo, Be119zon, TuaR?n, Revt:., and I.-abrador, J.J., concur. XJCll Lazara R. Bien, Petitioner-Appellee, vs. Pedro Beraqitit, Respondent-Appellant, G. R. No, L-6855, April 23, 1954, Bautista Ange. Io, J.: P LEADING AND PRACTICE; GRANTING EXTENSION OF TIME TO FILE ANSWER AFTER THE REGLAMENTARY PERIOD; DISCRETION OF THE COURT.-The granting of a motion to file an answer after the period originally fixed in the summons, or in the rules of court for that purpose had expired, is a matter that is addressed to the discretion of the court, and under the circumstances obtaining in the case, we find that this discretion has been properly exercised. Delf1'n de Vera for appellant. Ramon C. Fernandez for appcllee. DECISIO N BAUTISTA ANGELO, J.: This is an appeal from a decision of the Court of First Instance of Albay declaring respondent Pedro Bera.quit ineligible to the office of mayor of the municipality of Malilipot, province of Albay, on the ground that he was not a resident of said municipality one year prior to the elections held on November 13, 1951. A petition for quo 1varranto was filed by Lazara R. Bien to test the eligibility of Pedro Beraquit to be a candidate for the office of mayor of the municipality of Malilipot, province of Albay. It is alleged that the resPondcnt was ineligible for that position because he was a resident of Baras, Catanduancs, and has not resided for at least six months in Malilipot, Albay, prior to the elections held on November 13, 1951, and that, notwithstanding his ineligibility, he registered his candidacy for that office and was proclaimed duly elected by the municipal board of canvassers on November 17, 1951. It is prayed that his election be declared null and void and the office be declared vacant. The record shows that upon the filing of the petition for qiw 1varranto on November 19, 1951, the court issued an order directing that summons be ·made immediately upon respondent giving the latter three days within which to answer from service thereof. The hearing was set for December 4, 1951. In - compliance with said order, the clerk of court, on November 23, 1951, required the deputy sheriff of Catanduanes to serve the summons at respondent's residence in Baras, Catanduanes, and directed that another summons be served upon him at his residence in Malilipot, Albay. Neither of the summons was served either because of respondent's absence or because of the refusal of the persons found in his residence to accept the service. As a result, substituted service was resorted to as allowed by the rules by leaving a copy of the summons at the :residence of respondent. When the date set for hearing came, neither the respondent , nor his counsel appeared. He di'.l not also file an answer as required by the court. Petitioner asked to be allowed to adduce evidence in the absence of respondent, but the court decided to transfer the hearing to December 7, 1951 in order to give respondent ample opportunity to appear and defend himself. In the same order, the court directed th~t another summons be served upon respondent. Again, the summons failed for the same reasons. And when the case came up for hearing for the second time, and respondent again failed to appear, the court decided to allow petitioner to present her evidence. Thereafter, a decision was rendered granting the petition. Copy of this decision was received by respondent on December 15, 1951 and on December 18, he filed a motion praying that the decision be set aside and the case be heard on the merits. This motion was granted and the court set the hearing on February 22, 23, and 25, 1952. On February 22, 1952, petitioner presente,d four witnesses. On February 23, 1952, she presented one witness, and on February 23, 1952, she presented two more witnesses, plus eleven pieces of documentary evidence. Then she rested her case. When the turn of respondent came to present his evidence, June 30, 1954. THE LA WYERS JOURNAL 297 counsel for petitioner made a manifestation whereby he made of record his objection to any and all evidence that respondent intends to present on the ground that it would be immaterial and inele· vnnt for the reuson that he has failed to file an answer to the petition. At this juncture, counsel for respondent asked for an opportunity to file an answer, and instead of ruling on this request, the court allowed counsel to prc,sent evidence without prejudcie on its part to disregard it if should find latel' that tl1e question raised is well taken. But after the presentation of one witness, and while the second witness was in the course of his testimony, the court suspended the hearing and requil'ed the parties to present memoranda to determine whether or not respondent may be allowed to file his answer and continue presenting his evidence. This was done, and on March 14, 1952, the court issued an order denying the request to file an answer and declaring the ease submitted for decision. And on the same date, it rendered decision declaring respondent ineligible as prayed for in the petition. The case is now before us upon the plea that the question involved in this appeal is purely one of law. The question posed in this appeal is whether the 1ower court erred in denying the request of respondent to be given 4n oppor. tunity to file an answer to the petition and, in default thereof, in denying him the right to continue presenting his evidence notwithstanding the action of the court in setting aside its previous decision in order to give him an opportutiity to appear and defend himself. The reasons which the lower court has considered in denying the request of respondent to be given an opportunity to file an answer and to be allowed to present evidence in support of his defense are clearly stated in the decision. Said reasons are: "As abo\•e stated, respondent failed to file his answer and when his turn came, and he attempted to present his evidence, counsels for petitioner vehemently objected on the ground that he has n~t raised any issue. The court, after a careful consideration of all the facts and circumstances surrounding the case, was constrained to sustain the objection of petitioner, and barred respondent from presenting his evidence. For evidently, he is guilty of gross and inexcusable negligence. From the time he voluntarily appeared in court on December 18, 1951 when he filed the motion for reconsideration above adverted to, he submitted himself to the jurisdiction of the court. His voluntary appearance is equivalent to l!er· vice. Consequently, he should ha,,e filed then his answer within the reglamentary period fixed by law, it being his legal duty to do so. At least, he should have filed his answer from the time he received the order setting aside the judgment-that is, on January 21, 1952, and befo1·e the 15 days period ex1iired. When he entered trial on February 22, 1952, without filing his answer, there was no issue raised, and a summary judgment for petitioner may be rendered. Indeed, Section 8, Rule 9 of the Rules of Court provides, among others, that material averments in the com1ilaint other than those as to the amount of damage, shall be deemed admitted when not specifically denied; and Section 10 states that defenses and objectoins not pleaded either in a motion to dismiss or in the answer are deemed waived." We can hardly add to the foregoing reasons of the lower court which we find fully supported by the record. We can only state in passing that the granting of a motion to file an answer after the period originally fixed in the summons, or in the rules of court for that purpose had expired, is a matter that is addressed to the sound discretion of the court, and under the eircumstance.s obtaining in the case, we find that this discretion has been properly exercised. The court has been most liberal to respondent such that it even went to the extent of setting aside its previous decision. And we don't believe that the interest of Justice will be jeopardized if the decision of the lower court is maintained for, while on one hand the evidence adduced by the petitioner aJlpears to be strong, on the other, it does not appear that respondent has made any offer of the evidence he inWnded to introduce that might give an inkling that, if presented, it may have the effect of offsetting the evidence of petitioner. There is, therefore, no legal basis for concluding that the result of the decision would be changed has respondent been able to complete his evidence. And in the absence of this basis, i·espondent's plea for equity can deservt! but scant con. sidcration. Wherefore, the decision appealed from is affmned, without pronouncement as to costs. Para!!, Re11l}zon, Reyes, Labr. 'ldor, Pablo, Mon!~mayor, / 1190; Concepciol1, and Dio/.:no, J.J., concur. XXIII Antoufo llfi,,.asol, Petitio11u, vs. Porfirio Gerochi y Gamboa, 1'/lirlano Gerochi y Gamboa, Jt1an Nn.rajas y Gamboa, Saturnina Na.va;a. Gam./Joa mul the Co11rt of A ppet1/s, Re:;pondents, G. R. No. -4929, pronnllgated b1ly 23, 1953, Bantista Angelo, J. LAND REGISTRATION; CERTIFICATE OF TITLE: WHEN PURCHASER IS NOT A "SUBSEQUENT PURCHASER OP HEGISTERED LAND." - Where 1.me purchases a registered land from a· person who did not have apy certificate of t itle in his name, his only evidence being the deed of sale in his favor, and its annota.tion on the certificate of title which still appears in the name of the previous owners, most ol whom had already died, the purch,.ser is not a "subsequent purchaser of registered land who takes a certificate of title for value and in good fa.itl1" and who is protected aga..inst any encumbrance except those noted on said certificate, as provided for in Section 39 of Act No. 496. Jose D. Evangeslista for peti\..'ioner. L11is G. llofileiia and Cet1C1r T. Martin for respondents. DECISION BAUTISTA ANGELO, J.: This is :l petition for review of a decision of the Court of Appeals rendered on June 14, 19!il wherein, amonr other things, the deed of sale executed by Saturnina Navajas in favor of Antonin MirnS<•l, petitioner herein, was declared valid in so far as the shine and participation of said Saturnina in Lot No. 3760 of the cadash'al survey of Iloilo City is concerned, which participation is one. half <1/ 2) of the undivided one-fout·th 0 / 4) be.longing to her mother Dionisia Gnmboa; Juan Navajas w3s declared owner of one-half <1/ 2) of the same undivided share; anrl with regard to the cross.claim of Antonio Mirasol, Natividad Escarrilla was ordered to pay him the sum of rl,575. In the same decision it was ordered that the judgment Le registered and annotated on the original Certificate of Title No. 1399 CO\•ering Lot No. 3760. On July 30, 1946, two deE>ds of .sale wel'e executed, one by Filomena Ledesma, who posed as only heh· of the deceased Teodo. rica Gamboa, over one.fourth undivided share belonging to the latter in Lot No. 3760 of the cadastral survey of the City of Iloilo, which lot was covered by originnl Certificate of Title No. 1399, in favor of Salvador Solano, and a.nr,ther executed by Saturnina Gerochi, who posed as only heir ::if the deceased Dionisia Gamboa, &\'er one-fourth undivided share belonging to the latter in the same Lot No. 3760, in favor of the same purchaser. These two deeds were annotated on the original Certificate of Title No. 1399, as well a.s on the owner's duplicate of the same title, On August 1, 1946, Salvador Sofa.no in tui:n sold with pGCto de retro for a term of two years the port.ion bought from Satumino Gerochi to Natividad Escarrilla for the sum of f3,500, and on 298 THE LAWYERS JOURNAL June SO, 1954 August 17, 1946, he sold to the same person e.nd under the same terms the portion he bought from Filomena Ledesma for the sum of Pl,400, which was later increased to PS,150, These deeds were also annote.tcd on the original as well as on the duplicate certificate of title of the property on September 14, 1946. When Natividad Escarrilla became the absolute owner of the two portions mentioned in the preceding paragraphs, she- trnnsferred her interest, right and participation over one-half of the undivided one-fourth share which was originally acquired from Saturnina. Gerochi to Antonio Mirnsol for the sum of P3,Hi0 on October 21, 1946, and the corresponding deed of sale was likewise nnnotated on thr original and duplicate of the certificate of title of the property. On October 8, 1947, Porfirio Gerochi, Mari:mo Gerochi, Juan Navajas and Saturnina Navaja..s bega.n an action in the Court of }''irst Instance of Jloilo a.gainst Natividad Escarrilla, Antonio Mirnsol, Salvador Solano and Saturnina. Gerochi for the annylment of the deeds above mentioned alleging, on one hand, that Porfirio and Mariano Gerochi were the only heirs of Teodorica Gamboa. and, therefore, the owners of the one.fourth undivided share which had been sold by Filomena Ledesma to Salvador Solano, and on the other, that Saturnina and Juan Navajas were the heirs of Dlonisia Gamboa and, therefore, the owners of the one.fourth undivided r:hare which had been sold by Saturnina Gerochi to Salvador Sola.no, and praying thnt said deeda be declnrcd null and void and that the plaintiffs be declared respectively owners of the shares and interests therein mentioned. The court, after receiving the evidence of both parties, dismissed the complaint, with coi;ts against the plaintiffs. The court !'l-aid that while "plaintiffs Mariano Gerochi and Saturnina Navajas themselves executed exhibits 5-Escarrilla and 8-Escarrilla a.nd therefore are stopped from seeking their annulment on the grounds alleged in the comP,laint, the same cnnnot be said with respect to the plaintiffs Porfirio Gerochi and Juan Navajas, Their remedy, however, would seem to Jie not in this action but under the provisions of Rule 74, et seq., of the Rules of Court. Upon appeal te.ken by the plaintiffs, the Court of Appeals moditied the decision appealed from in the following dispositive part: "FOR THE FOREGOING CONSIDERA'flON, the judgment appealed from is hereby modified, and we hereby declare CU that. by virtue of the d.:~ds of sale and conveyance designat.. ed es Exhibits 4-Escarrilla and :>-Esca!'rilla, v.rhich we hereby declare va.lid and executed by Saturnina Navajas, and Annex F, defendant Antonio Mirasol is now the own~r of the share and participation of Saturnina Navajas in Lot No. 3760 of the cadastral survey of Ilvilo, which participation is one-half Cl/ 2) of the Ul\dividcd one-fourth <1/4) belonging to her mother Dionisia Gamboe.; t2> that the deeds, Exhibits 8Escarrilla, 7-Escarilla, and 6-Escarilla are null and void, and the :mnotalions thereof on the crrtificate of title, Exhibit A, ordered cancelled; (3) 1"11at Porfirio and Mariano Gerochi continue to be and are the owners of the undivided one-fourth Cl/4) share and participation of their deceased owner T~ dorica GambCla in said Lot No. 3'i60; and C4) that plaintiff Juan Na.vaj&s is the owner of one-half Cl/ 2) of the one-fourth Cl/ 4> undivided share and participation of th~ deceased Dionisia Gam'!na in said Lot No. 3760, and we hereby order that this judgment be registered and annotated on Original C~rtificate of Title No. 1399. The action of the plaintiffappellant Saturnina Navajas is hereby dismissed. Judgment is also hereby rendered in favor of defendant Antonio Mirnsol on his cross-claim against his co-defendant Natividad Escarrilla, who is i>rdered to pay him the 1mm of Pl,575.00. Judgment is also rendered on Natividad Escarrilla's cross..claim in her favor nnd against Filomena Ledesma and Salvador Solano, jointly and severally, ordering the latter to indemnify her in the amount of f'l,750. One-half of the costs shall be taxed against plaintiff-appellant Saturninn Navajas; the other hatr against defondants-a.ppellants Salvador Solano and Filemon Ledesma.'' The case is now before this Court by virtue of the peti. tion for review interposed by · Antonio Mirasol who now contends that the Court of Appeals, in deciding the issues involved and raised by the parties, has invoked the pertinent provisions of Act No. 496 and the several decisions of this Court which proclaim the iudefeasibility of a torrens title and 11rotect every subsequent pur£haser of registered land who tak~s a. certificate of title for value and in good !nith against all encumbrances except those noted on the ccrtifi,.tate of title. Petitioner claims that,. having been found to be purchaser ~n good faith and for value of a registered land, the cleeds of sale subject of the petition for review cannot be declared null and void to his prejudice. One of the cases cited by petitioner in support of his contention is De la C!'UZ v. Fahie 35 Phil. 144, wherein it was held that, "even admitting the !act that a registration obtained by means of fraud or forgery iE not valid, and may be cancelled forthwith, yet when a third person has acquired the prope1ty subject matter of .Such registratiOn from the person who appears as registered owner of the same, his acquisition is valid in all respects and the regis.. tration in his favor cannot be annulled or cancelled: neither can the property be recovered by the previous owner who is deprived thereof by virtue of such fraud or forgery.'1 (See Reyn.ts v. Barrera, 68 Phil. 658.) The doctrine laid down in the case of De la. Cruz v. Fable wa!l reaffirmed in the subsequent case of Reynes, et al, v. Barrera, rt al., 68 Phil. 656, wherein this Court made the following pronCluncement: "There is no question that the defendant-appellant is a purchaser of Lot No. 471-~ jn good faith and for a valuable considera.tion. There was nothing in the certificate of title Jf Manuel Heynes, from whom she acquired the property, to indicate any cloud or vice in his ownership of the property, or any encumbrance thereon. Where the subject of a judicial sale is a registe!'ed prnperty, the purchaser thereof is not required to explore farther than what the Torrens title, upon its face, indicate in quest for any hidden defect or incho~te right that may subsequently defeat his right thereto. If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which th'!! Torrens system F.eeks to insure, would entirely be futile and nugatory. 'Every applicant receiving a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land who takes a certificate of title for value in good faith, shall hold the Sain(: f(ee :>f alJ encumbranc'l exct'lpt tJ>ose noted on said certificate x x x.' !Sec, 89, Act No. 496. as amended hy Act No. 2011.) In De la Cruz vs. Fahie <SS Phil., 144), it was held that, ev(:n admitting the fuct that a registration obtained by means vf fraud or forgery is not valid, a.nd may be cancelled forthwith, yet, when g, third person has acquired the property subject matter of such regi11tration from the person who appears as registered owner ot same, his acquisition is valid in all respects and the registration in his favor cannot be annulled err cancelled; neither can the property be recovered by the 11revious o'.'l"ner who is deprived thereof by virtue of 3uch fraud or forgery." Pctiticmer herein cannot invoke in his favor the benefit of the salutary doctrine laid down in the c:tses above adverted to. His E>ituation is different from that of Ramon Fabfo in tho case of June 30, 1954 THE LAWYERS JOURNAL 299 De la Cruz. In that case, it has been shown "that Ramon Fahie is an innocent holder of a certificate of title !or value.'' Vcdasto Velasquez, from whom he bought the propert.y, not only had a title registered in his name, but the !iame was given to Fahie, who, together with the deed of sale, took it to the Register of Deeds, and C1btained the issuance of a t'itle in his name on the strength of said deed of sale, and so it was there declared that "in conformity of the oft-cited section 55 of Act No. 496, he is the absolute owner of the land mentioned in the complaint, and the action for recovery of possession, improperly brought iigainst him, c:m in no w_ ise prosper." Antonio Mirasol is in n diff~rent predicament. He bought the property from Natividad Escarrilla, who in turn ac11uired it from Salvador Solano. The different deeds of conveyan(';e were merely annotated on the original and duplicate certificates of title which appear m the name of the p1·evious owners. Neither Sola.no, nor Escarrilla, nor Mirasol ever ·secured from the Register of Deeds the transfer of a new certificate of title in their names. In other words, the. only picture Mirasol presents before us is that of a purchaser of registered land (rom a person who did not have any certificate of tit1e in his name, his only evidence being the deed of sale in his favor, and its annotation on the certificate of title which still appears in the name of the previous owners, most of whom had already died. He is not therefore a "subsequent pui:. chaser 1Jf registered land who tak-es a certificate (}f title for value and in good faith" and who is protected against any encumbrance except those noted o.11 said certificate, as provided for in Section 39 of Act No. 496. The ca!la of petitioner falls squarely within the doctdne )aid down in the case of The Director of Lands v. Addison, 49 Phil. 19, wherein this Court ruled that the entry of a memorandum of a conveyance in fee simple upon the original certificate of tit1e with.. out the issuance of a transfer certificate of title to the purchaser· is not a sufficient reg\stration of such a conveyance. The issuance of a transfer certificate of title to the purchaser is one of the essential features of a conveyance in fee by registration and in ('lrder to enjoy the full protection of the registration system, the purchaser must be a holder in good faith of such ::ertificate. And elaborating on this point, and incidentally in drawing a striking contrast between the case above referred to and that of De la Cruz, this Court said: "As will be seen, the issuance of a transfer certificate of title to the purchaser is one of the essential features of a conveyance in fee by registration and in 01·der to enjoy the full protection of the reiistralion system, the purchaser must be a holder in good faith of i:uch certificate. This appears clearly from section a9 of the Land Registration Act which provides that 'every applicant recdving a Ctl'lificatt of title in pursuance of a decree of Tegistration, P.nd every subsaqut:nt purchaser of registered land who takes a. certificate of title for \•alue in good faith, l"'hall hold the same free of all en. cumbrance except those noted Cln said certificate, and any _ ot the followir.g incumbranees which may be subsisting, namely: (enumeratbn of subsisting ineumbrances).' In fact the re~ gister o! deeds has no autho1·ity to register a conveyance in fee without the presentaticn of the conveyor's d:.iplicatf' certificate unless he is ordered to do so by a court of competent jurisdiction \s~e I.and Registration Act, section 5bl, As we have already shown, neither Pedro Manuntag nor Soledad P. Hernandez ever held a. certificate of title to the land here in question and the1·e had therefore been no sufficient legal conveyance in fee to them neither by deed nor by regis.. tration. The t>riginal certificate of title No. 414 in favor of the Angeles heirs has never been cancelled and is the only certificate in existence in regard to the property. ''In the case of De la Cruz vs. Fahie, aUpra, the situation was entirely different. There the registration of the property in question was decreed in the name of Gregoria Hernandez and a duplicate original certificate of title issued to her, She turned the duplicate ce1·t.ificate over to her nephew, the de'fenda.nt Vedasto Velasquez, who forged a deed to himself of the property and presenting the same with the duplicate certificate of title to the register of deeds obtained a transfer certificate with its corresponding duplicate in his own name. He thereafter sold the land to his co-defendant Ramon Fa.. bie to whom a transfer certificate of title was issued upon the cancellation of Velasquez' certificate. There was there. fore a complete chain of registered title. The purchaser was guilty of no negligence and was justified in relying on the certificate of title held by the vendor. In the present ease, on the other har.d, the vendor held no certificate of title and the1·e had thel'eforo been no complete conveyance of the fee to him. The purchusu was charged with presumptive knowledge of the law 1·elating to the conveyance of la.nd by registration and, in purchasing from a persun who did not exhibit the proper muniments of t itle, must be considered to have been guilty of negligence r.nd is not in position to com. plain of hie loss.'' Whcrnforc, the decision appP.aled from is affirmed, with costs against petitioner. Parn!f, Pablo, Beng=on, Padilla, Tua.!011, Montemayor, Reves, and Jugo, J.J., concur. Mr. Juatice LabTador took no part. XXIV Arsenio Algarin et al., Plaintiffs-Appellees,, vs. Francisco Navarro et al., Defenda11ts-Appella11ts, G. R. No. L-5257, April 14, 1954, Labrador, J, CIVIL PROCEDURE; SECTION 10 OF RULE 40 OF THE RULES OF COURT CONSTRUED AND APPLIED; CASE AT BAR-Plaintiffs filed an action against the defendants to recover from the latter the amounts which the plaintiffs earned while working in the construction of defendants' house. The ease was t ried in the Municipal Court, nnd after the plaintiffs' had closed their evidence, one of the defendants filed a motion to dismiss, claiming that there is no contractual relation between him and plaintiff, and that as the latter have not shown that he had violated the provisions of Act 3959, he is not liable. The l\lunicipal Court sustained this contention and dismissed the ease. The plaintiffs appealed from this decision to the Court of First Instance of Cavite, which found the order of dismissal entered by the Municipal Court to be an err<n· and reversing it and remanding the case to said Court for further proceeding under the authority of Section 10 of Rule 40 of the Rules oi Court which states that "where the action has been disposed of by an inferior court upon a question of Jaw and not after a valid trial iipon the 111-erits, the Court of First Instance shall on appeal review the ruling of the inferior court nnd may affirm or reverse it ." Held: There is no question that there was a trial. The trial was held after issues of fact had been joined by the filing of an answer. And the case was not terminated solely on a question of law, because the court found that the facts proved do not entitle the plaintiffs to recover. Moreover, the mere fact that the municipal court found that there was absence of allegations necessary to entitle the plaintiffs to recover, or evidence to xtablish said allegations of essential facts, does not mean /~hat there was no valid trial upon the merits. IBID; IBID.-What section 10 of Rule 40 considers as ter· soo .THE LAWYERS JOURNAL June 30, 1954 mination of a case without a valid trial upon the merits is a dismissal without trial and/or determination of any of the issues of fact raised in the pleadings. Thus, if the hearing is had merely on the Jack of jurisdiction or improper venue, without introduction of evidence on the merits, or on the issues of fact which entitle the plaintiff to recover or the defendant to be absolved from the action, there would not be a valid trial on the merits. IBID; IBID.-The existence of a trial on the merits is the determining factor for the application of the rule C$ec. 10, Rule 40). Even if the case is deeided on a question of la.w, i.e., lack of jurisdiction, provide9 there was a trial, the case may not be remanded to the inferior court. Even if the defendants did not present their evidence for the reason that the court found that the plaintiffs had failed to establish a cause of action, it does not mean thereby that the case was terminated on a question of law, and that there was no valid trial upon the merits. There was a valid trial, only that the court found that the trial was of no advantage to the plaintiff, because they failed to prove the facts necessary to entitle them to recover. The mere fact that the defendant did not present his evidence, because the court found it unnecessary, is no reason for holding that there was no valid trial at all. · As the trial on the merits was held, no matter what the result thereof may have been, whether the court rendered judgment for plaintiff or absolved the defendant or denied the remedy to the plaintiff, alil the court has considered the evidence on the merits of the case, there was a valRi trial on the merits within the meaning of section 10, Rule 40, of the Rules of Court, and the case may not be remanded for trial. IBID; PURPOSE OF SECTION 10 OF RULE 40.-It will be noted that the purpose of Section 10 of Rule 40 is to prohibit the trial of a case originating from an inferior court by the Court of First Instance on appeal, without the said inferior court having previously tried the case on the merits. If there was no such trial on the merits, the trial in the Court of First Instance is premature, because the trial therein on appeal is a trial de novo, a new trial. There can not be a new trial unless a trial was already held in the court below. It might happen that after the trial on the merits in the lower court the parties may be satisfied with its judgment. So the evident purpose of the rule is to give the opportunity to the inferior court to tey the case first upon the merits, and only thereafter should the Court of First Instance be allowed to retry the case, or to conduct another trial thereof on the merits. Augusto de la Rosa for appellant. Roberto P. Ancog and Atanacio A. Mardo for a.ppellees. DECISION LABRADOR, J.: This action originated in the municipal court of Cavite City, where the plaintiffs-appellees filed an action against the defendants to recover from the latter the amounts which the planitiff, who are laborers, earned while 1 working in the construction of the house of defendant Francisco Navarro from September, 1950, to October, 1950. The other defendant, Francisco Legaspi, was the building contractor employed by Navarro. Defendant Franciscp Navarro alleges in his answer that he did not enter into a contract with the plaintiffs, nor did he authorize his co-defendant to employ them. As special defenses he asserts that the allegations of the complaint do not constitute a cause of action against him, and that the complaint is premature. The record fails to show whether defendant Francisco Legaspi filed an answer. The case was tried in the municipal court, and after the plaintiffs had closed their evidence, the defendant Francisco Na· varro filed a motion to dismiss, claiming that there is no contrac· tual relation between him and ·the plaintiffs, and that as the plain· tiffs have not shown that he had violated the provisions of Act 3959, he is not liable. The municipal court sustained the con· tention of the defendant Francisco Navarro that there is no evi· dence to prove the facts required in Sections 1 and 2 of Act 3959, because it was not shown that the defendant Francisco Navarro did uot require the contractor Francsico Legaspi to furnish the bond in an amount equivalent to the cost of labor, and that Francisco Navarro had paid the contractor Legaspi the entire cost of labor without having been shown the affidavit that the contractor bad paid the wages of the plaintiffs. The plaintiffs appealed from this decision to the Court of First Instance of Cavite. There was no trial in that court; it only reviewed the record. The~eafter it rendered judgment finding the order of dismissal entered by the municipal court to be an error and reversing it, and remanding the case to said court for further proceedings under the authority of Section 10, Rule 40, of the Rules of Court. In reversing the order of dismissal the court reasoned: x x x. From this discussion, this Court has reached the conclusion tha:t under the proven facts of the case as shown by the plaintiffs evidence, the order of dismissal rendered by the Municipal Judge of the City of Cavite is an error and sine& the dismissal was prompted by a demurrer to the evidence de· fendant Francisco Navarro is precluded from introducing evidence in his defense when this case is remanded to the Municipal Court of Cavite City for further proceedings. Against this order of remand, the defendants have filed on appeal directly to this Court. Section 10, Rule 40, of the Rules of Court, upon the authority of which the case was dismissed and remanded to the municipal court, provides as follows: Sec. 10. Appellate powen of Courts of First Instance. wJure action not tried on its merits by inferior courts. - Where the action has been disposed of by an inferior court upon a question of law and not after a valid trial upon the merits, the Court of First Instance shall on appeal review the ruling of the inferior court and may affirm or reverse it, as the case may be. In case of reversal, the case shall be remanded for further proceedings. (Underscoring ours) Th issues involved in this appeal, therefore, are: (1) Was the action disposed of in the municipal court upon a question of law? and <2l Was there a valid trial upon the merits in the muni. cipal court, as defined in the above-quoted section? There is no question that there was a trial. That trial was held after issues of fact had been joined by the filing of an answer. And the case was not termintaed solely on a question of law, because the court found that the facts proved do not entitle the plaintiffs to recover. Moreover, the mere fact that the municipal court found that there was absence of allegations necessary to entitle the plaintiffs to recover, or evidence to establish said allegati~ns of essential facts, does n,ot mean that there was no valid trial upon the merits. What Section 10 of Rule 40 considers .as termination of a case without a valid trial upon the merits is a dismissal without June 30, 1954 THE LAWYERS JOURNAL 301 trial and/or deterrTiination of any of the issues of fact raised in the pleadings. Thus, if the hearing is had merely on the lack of jurisdiction or improper venue, without introduction of evidence on the merits, or on the issues of fact which entitle the plaintiff to recover or the defendant to be absolved from the action, there would not be a valid trial on the merits. As stated by Justice Moran, the said section is a restatement of the rulings laid down by the Supreme Court. He cites as example of the application of the rule a case where there is no trial in the inferior court and the case is disposed of upon a question of law, such as the lack of jurisdiction to try the case. In this instance, upon appeal to the Court of First Instance, the cnly question to be decided in t he appeal is the jursidiction of the inferior court, and if the Court of First Instance finds that the municipal court has jurisdiction, the case is remanded thereto for trial upon the merits, otherwise the dismissal is affirmed. Another example is where the inferior court sustains a motion to dismiss on the ground of failure of plaintiff's complaint to state a cause of action, in which case the ap· pellate power of the Court of First Instance is to review the order of the inferior court sustaining the motion. And if the Court of First Instance finds the order to be wrong, the case Jlas to be remanded to the inferior court for trial upon the merits. <I Moran, 1952 Rev. ed., pp. 889-890.) It is pertinent to add, by way of clarification, that the existence of a trial on the merits is the determining factor for the application of the rule. E ven if the case is decided on a question of law, i.e., lack of judsdiction, provided there was a trial, the case may not be remanded to the inferior court. In the case at bar, there was a trial upon the issue as to whether or not the plaintiffs should be entitled to recover. Even if the defendants did not present their evidence for the reason th~t the court found that the plaintiffs had failed to establish a cause of action, it does not mean thereby that the case was terminated on a question of law, and that there was no valid trial upon the merits. There was a valid trial, only that the court found that the trial was of no advantage to the plaintiffs, because they failed to prove the facts necessary to entitle them to recover. The mere fact that the defendant did not present his evidence, because the court found it unnecessary, is no reason for holding that there was no valid trial at all. As the trial on the merits was held, no mat. ter what the result thereof may have been, whether the court l·endered judgment for plaintiff or absolved the defendant or denied the remedy to the plaintiff, as the court has considered the evidence on the merits of the case, there was a valid trial on the merits within the meaning of Section 10, Rule 40, of the Rules of Court, and the case may not be remanded for trial. lt will be noted that the purpose of Section 10 of Rule 40 is to prohibit the trial of a case originating from an inferior court by the Court of First Instance on appeal, without the said inferior court having previously tried the case on the merits. If there was no such trial on the merits, the trial in the Court of First Instance is premature, because the trial therein on nppeal is a trial de novo, a new trial. There can not be a new trial unless a trial was already held in the court below. It might happen that after the t rial on the merits in the lower court the parties may be uatisfied with its judgment, So the evident purpose of the rule is to give the opportunity to the inferior court to try the case first upon the merits, and only thereafter should the Court of First Instance be allowed to retry the case, or to conduct another trial thereof on the merits. FOR THE FOREGOING CONSIDERATIONS, the order appealed from should be, as it is hereby, reversed, and the Court of First Instance of Cavite is hereby ordered to proceed with the trial of the case by virtue of its appellate jurisdiction. P<JA'O.S, Pablo, Beng~on, Montemayor, Reyes, Jugo, Bautista Angelo, Concepcion, and Diokno, J.J., concur. xxv The People of the Philippines, Plaintiff-Appellee, vs. Adelo Aragon, Defendant.Appellant, G. ll. No. L-5930, February 17, 1954, Labrador, J. CRIMINAL PROCEDUHE; PREJUDICIAL QUESTION DEFINED.--Prejudicial qticstion has been defined to be that which arises in a case, the resolution of which (question) is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal (Cuestion prejudicial, es la que surge en un peito o causa, cuya resolucion sea antecedente logico de la cuestion objeto del pleito o causa y cuyo conocimiento corresponda a los Tribunales de otro orden o jurisdiccion. - X Enciclopedia Juridica Espaiiola, p. 228>. The prejudicial question must be determinative of the case before the court; this is its first element. Jurisdiction to try said question must be lodged in another tribunal; this is the second element. In an action for bigamy, for example, if the accused claims that the first marriage is nuli and void and the right to decide such validity is vested in another tribunal, the civil action for nullity must first be decided before the action for bigamy can proceed; hence, the validity of the first marriage is a prejudicial question. IBID.; THERE IS NO PREJUDICIAL QUESTION IN THE CASE AT BAR.-Defendant is charged of the crime of bigamy for having contracted a second marriage with the complainant on September 21, 1947, while his previous valid marriage with Martina Godinez which was still subsisting had not been dissolved. The information is dated May 22, 1951. On October 11, 1951, while the case was pending trial, complainant filed a civil action in the same Court of First Instance of Cebu against the accused, alleging that the latter "by means of force, threats and intimidation of bodily harm, forced plaintiff to marry him," and praying that the marriage on Sep· tembcr 21, 1947 be annulled. Thereupon on April 13, 1952 the accused filed a motion on the criminal case of bigamy praying that the criminal charge be provisionally dismissed on the ground that the civil action for annulment of the second marriage is a prejudicial question. HELD: There is no question that, if the allegations of the complaint are true, the marriage contracted by defendant-appellant with Efigcnia G. Palomer is illegal and void (Sec. 29, Act 3613 otherwise known as the Marriage Law). Its nullity, however, is no defense to the criminal action for bigamy filed against him. The supposed use of force and int imtdation against the woman, Palomer, even if it were true, is not a bar or defense to said action. Palomer, were she the one charged with bigamy, could perhaps raise said force or intimidation as a defense, because she may not be considered as having freely and voluntarily committed the act if she was forced to the marriage by intimidation. But not the other party, who used the force or intimidation. The latter may not use his own malfeasance to defeat the: action based on his criminal act. It follows that the pendency of the civil action for the annulment of the marriage filed by. Efigenia C. Palomer, is absolutely immat~rial to the criminal action filed against defendant-appellant. This civil action does not decide that defendant.appellant did not enter the marriage against his will and consent, because th~ complaint does not allege that he was the victim of force and intimidation in the second marriage; it does not determine the existence of any of 302 THE LA WYERS JO URN A~ June 30, 1954 the elements of the charge of bigamy. A decision thereon is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. Amadeo D. Seno for appellant. Assistant Solicitor Ge-neral Francisco CQlrreon and Solicitor Ramon L. Avancena. for appellee. DECISION LABRADOR, J.: The defendant in the above-entitled case is charged in the Court of First Instance of Cebu with the crime of bigamy, for having contracted a second marriage with one Efigenia C. Palomer on September 21, 1947, while his previous valid marriage with Martina ~dinez was still subsisting and had not been dissolved. The information is dated May 22, 1951. On October 11, 1951, while the case was pending trial, Efigenia C. Palomer filed a civil action in the same Court of First Instance of Cebu against the defendant-appellant, alleging that the latter "by means of force, threats and intimidation of bodily harm, forced plaintiff to marry him," and praying that their marriage on September 21, 1947 be annulled <Annex A). Thereupon and on April 30, 1952, defen· dant-appellant filed a motion in the criminal case for bigamy, praying that the criminal charge be provisionally dismissed, on the ground that the civil action for annulment of the second marriage is a prejudicial question. The court denied this motion on the ground that the validity of tl1e second marriage may be det'er~ mined in the very criminal action for bigamy. Against this order this appeal has been presented to this Court. It is contended that as the marriage between the defendantappellant and Efigenia C. Palomer is merely a voidable marriage, used the force or intimidation. The latter may not use his own malfeasance to defeat the action based on his criminal act. It follows that the pendency of the civil action for the annulment of the marriage filed by Efigenia C. Palomer, is absc;>lutely immaterial to the criminal action filed agair.st defendant-appellant. This civil action does not decide that defendant-appellant did not enter the marriage against his will and consent, because the complaint does not allege that he was the victim of force and intimidation in the second marriage; it does not determine the existence of any of the elements of the charge of bigamy. A decision thereon is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. There is another reason for dismissing the appeal. The order appealed from is one denying a motion to dismiss and is not a final judgment. It is, therefore, not appealable <Rule 118, Secs. 1 and 2>. The order appealed from is hereby affirmed, with cos;ts against defendant-appellant. So ordered. Paras, Pablo, Bengzcm, Padilla, Montemayor, Reyes, Jugo, and Bautista Angelo, J.J., concur. XXVI F'l'"ancisco Ma'l'"<Uiga.n, Petitioner, vs. Felicisimo Ronquillo, Res· pondent, G. R. No. L-5810, January 18, 1954, Lab'l'"ado-r, J.: 1. CIVIL PROCEDURE; FINAL JUDGMENT; AMENDMENT. -The rule is absolute that after a judgment becomes final, by the expiration of the period provided by the rules within which it so becomes, no further amendment or correction can be made by the court except for clerical errors or mistakes. and not an absolutely void marriage, it can not be attacked in the criminal action and, therefore, it may not be considered therei~; consequently, that the civil action to annul the second marriage should first be decided and the criminal action, dismissed. It is 2 · not necessary to pass upon this question because we believe that IBID; IBID.-The change ordered by the Court of Appeals was made when the judgment was already being executed; and it cannot be said to merely correct a clerical error-"because it provides for a contract of lease of nine years and three months duration, from Nov. 10, 1950, which is different from one of ten years from December 1, 1941, excluding the period from September 1, 1942 to August 31, 1947. the order of denial must be sustained on another ground. Prejudicial question has been defined to be that which arises in a case, the resolution of which (question) is a logical antecedent of the issue involved in said case, and the cognizance of which pertains to another tribunal (Cuestion prejudicial, es la que surge en un pleito o causa, cuya resolucion sea antecedente logico de la cuestion objeto del pleito o causa y cuyo conocimiento corresponds a los Tribunales de otro orden o jurisdiccion.-X Enciclopedia Juridica Espafiola, p. 228). The prejudicial question must be determinative of the case before the court; this is its first element. Jurisdiction to try said question must be lodged in another tribunal; this is the second element. In an action for bigamy, for example, if the accused claims that the first marriage is null and void and the right to decide such validity is vested in another tribunal, the civil action for nullity must first be decided before the action for bigamy can proceed; hence, the validity of the first marriage in a prejudicial question. There is no question that, if the allegations of the complaint are true, the marriage contracted by defendant-appellant with Efigenia G. Palomer is illegal and void (Sec. 29, Act 3613 otherwise known as the Marriage Law), Its nullity, however, is no defense to the criminal action for bigamy filed against him. The aupposed use of force and intimidation against the woman, Palomer, even if it were true, is not a bar or defense to said action. Palomer, were she the one charged with bigamy, could perhaps raise said force or intimidation as a defense, because she may not be considered as having freely and voluntarily committed the act if she was forced to the marriage by intimidation. But not the other party, who Rosendo J. Tansinsin for petitioner. M. G. Bustos, Ubaldo T. CapQlrros, P<Uto'· G. Bustos, Teodorico R. Nungu. and E:i:pedito B. Yumul for respondent. DECISION LABRADOR, J.' This is an appeal by certiorari against a decision of the Court of Appeals, in C. A. - G. R. No. 7853-R, Felicisimo Ronquillo, plaintiff-appellant, and Francisco Marasigan, defendant-appellee. The circumstances leading to the appeal may be briefly stated as follows: 1. 011 April 10, 1943 Ronquillo brought action against Marasigan to compel him to deliver a parcel of nipa land which the latter h~d agreed to lease to Ronquillo for a period of 10 years and to execute the corresponding deed of lease therefor. 2. After trial and on September 1, 1947, the Court of First Instance rendered judgment ordering, "That the defendant Marasigan deliver immediately the possession of the land described in the amended complaint to the plaintiff Ronquillo; that the defendant Marasigan execute a contract of lease covering the said lanCi. for a period of 10 years in favor of the plaintiff Ronquillo, as of December 1, June 301 1954 THE LA WYERS JOURNAL 303 1941, by excluding therefrom the five years period from September 1 ,1942, to August 31, 1947, inclusive, with a consider&.. tlon of P14,000.00 minus the amounts of Pl,200.00, Pl,277.70 and P600.00, the amount of Pl,277.70 being additional advances received by the defendant Marasigan and the last amount of 1"600.00 being a reserve fund for the payment of the land taxes; and that the defendant Marasigan will assume his former position as assistant manager with a compensation of P60.00 monthly. The contract of lease embodying the above conditions must be executed and ratified before a notary public within 10 days from the date this decision would become final. The complaint against the other defendants is dismissed, without pronouncement as to costs. The defendant Francisco Marasigan shall pay the costs of this action." 3. The case having been brought to the Court of Appeals, this court entered judgment on April 10, 1950 modifying the above judgment in some parts and affirming it as to all others, thus: ''WHEREFORE, the decision appealed from is hereby modified in the sense that defendant Marasigan shall not be compelled to assume his former position as assistant manager in the business of the plaintiff, unless he be willing t.o serve as such, with compensation at the rate of P60.00 per month. The decision is affirmed in all other respects, with the understanding, however, that defendant Marasigan shall pay to the plaintiff the damages that the latter may prove to have suffered if the provision regarding the execution of a new contract of lease of said land could not be carried out for any legal impedimenl Without pronouncement as to costs in this instance." 4. After the return of the case to the Court of First Jnstance for execution and on August 1, 1950, plaintiff deposited the amouri.t of Pl0,922.30 with th.e clerk of court, in compliance with the judgment, and asked for an order against the defendant to deliver the land immediately to him and execute the deed of lease provided for in the decision. This petition was granted on November 10, 1950 over the defendant's opposition. 5. On November 27, 1950 defendant submitted a draft of deed of lease, which he claimed to conform to the decision of the court, and on December 12, 1950 he was authorized to withdraw the amount deposited by plaintiff. But in an order dated January 18, 1951, the court disapproved the draft of the contract of lease submitted by defendant and approved another one, prepared by the sheriff. This contract merely recites the judgment, insofat' as the term of the lease is concerned, but obje<:ti.on to it was interposed by plaintiff on the ground that under its term the duration of the lease would be limited to the period ending November 30, 1951 merely. According to the court, however, the period of lease is ten years from December 1, 1941, the date when plaintiff was placed in possession, excluding the period from September 1, 1942 to August 31, 1947 and, therefore, the lease should end on December 1, 1956 (Orders of January 18, 1951, as amended by order of March 13, 1951.) 6. Upon appeal against the above orders the Court of Ap· peals promulgated the decision, now appealed from, as follows: "WHEREFORE, the orders of March 13 and April 19, 1951 are hereby set aside and the defendant Francisco Marasigan is hereby ordered to execute a contract of lease embodying the conditions set forth in the decision of the lower Court, with the understanding that the contract should be for a period of nine (9) years and three (3) months more, to begin from November 10, 1950, until said period is covered in full. If within ten (10) days from the receipt of the corresponding notice from the lower Court after this decision shall have become final the defendant fails to execute in favor of plaintiff Felicisimo Ronquillo the contract of lease herein provided, then, in pursuance of Section 10, Rule 39, of the Rules of Court, the Clerk of the Court of First Instance of Bulacan or any other person whom the lower Court may authorize, shall execute said deed of lease in the precise terms as specified in this decision. No pronouncement as to costs." In arriving at the above judgment, the Court of Appeals rea· eoned, thus: "Predicated on these reasons, we did not modify but affirmed the decision of the lower Court in so far as it refused to award damages to plaintiff. Anyway, and even assuming that we cannot clarify the scope of the decision nf the lower Court as slightly modified by us, and that by such decision the contract of lease to be executed by the defendant in favor of the plaintiff should be as decreed in the appealed order of March 13, 1!:151, we shall not forget that Marasigan demanded and received the sum of PH,000.00 as payment in full of a whole term of ten years of lease, and even if by virtue of the decisions rendered in this case he could not be compelled to execute the lease contract for the remaining period of 9 years and 3 months, yet by his own act of withdrawing the sum of Pl0,922.30, which together with other sums previously received made the total of P14,000.00 which corresp.onds to the rentals for the entire period of ten years, he contracted the obligation, independently of said decision, to execute a deed of lease of the property in question for the unenjoyed term of 9 years and 3 months, as otherwise he would receive payment of rents for the period from September 1, 1947, to November 10, 1950, during which he (Marasigan) and not the plaintiff was in possession of the land in controversy and enjoying the proceeds thereof." The rule is absolute that after a judgment becomes final, by the expiration of the period provided by the rules 'Yithin which it so becomes, no further amendment or correction can be made by the court except for clerical errors or mistakes. Thus, it has been held: "The general power to correct clerical errors and omissions does not authorize the court to repair its own inaction, to make the record and judgment say what the court did not adjudge, although it had a clear right to do so. The court cannot under the guise of correcting its record put upon it an order or judgment it never made or rendered, or add something to either which was not originally included although it might and should have so ordered or adjudged in the first i~stance. Jt cannot thus repair its own lapses and omissions to do what it could legally and properly have done at the right time. A court's mistake in leaving out of its decision something which it ought to have put in, and som·ething in issue of which it intended but failed to dispose, is a judicial error, not a mere clerical misprision, and cannot be corrected by adding to the entered judgment the omitted matter on the theory of making the entry conform to the actual judgment entered." (Freeman on Judgments, Sec. 141, Vol. J, p. 273.) "But the failure of the court to render judgment according to law must not be treated as a clerical misprision. Where there is nothing to show that the judgment entered is not the judgment ordered by the courts, it cannot be amended. On the one hand, it is certain that proceedings for the amendment of judgments ought never to be permitted to become revisory or appellate in their nature; ought never to ~ the means of modifying or enlarging the judgment or the judgment record, so that it shall express something which the court did not pro-304 THE LA WYERS JOURNAL June 30, 1954 nounce, even although the proposed amendment embraces matter which ought clearly to have been so pronounced." <Free.. man on J udgments, Vol, I, Sec. 142, pp. 274·275.) is reversed on appeal, the execution of the judgment is the exception, not the rule. And so execution may issue only "upon good l·eas:ons i::tated in the order!' The grounds for the grant. ing of the execution must be good grounds. (Aguilos v. Bar· rios, et al., G.R. No. 4781G, 72 Phil. 285.) It follows that when the court has already granted a stay of execution, upon the adverse party's filing a supersedeas bond, the circumstances justifying execution in spite of the supersedeas bond must be paramount; they should outweigh the security offered by the supersedeas bond. In this last case, only compelling reasons of urgency or justice can justify the execution. The change ordered by the Court of Appeals was made when the judgment was already being executed; and it can not be said to n1erely correct a clerical error because it provides for a con· tract of lease of nine years and three months duration, from Nov. ember 10, 1950, which is different from one of ten years from December l, 1941, excluding the period from September 1, 1942 to August 31, 1947. The modification is, however, sought to be justified by two circumstances, namely, the withdrawal by the lessor of the amount of f'I0,922.30. which amount, together with sums 2. previously received, total P14,000, and which is the rental for a IBID; IBID. - The "good reason" ' stated in the order subject of this proceeding is "the better preservation and protection of the property.'' But we find from the record that the pro-parties are three parcels of land. And we are at a loss to under-stand how and why they could be better preserved if in the hands vf the petiti(lners, wh.) already have titlt!s thereto, and as there is nothing to indicate that they were acquired in bad faith, the presumption arises that the purchasers are posseseors in good faith. It seems, therefore, that the execution of the judgment, after the giving of the supersedeaa bond, can not , be justified, there .being no urgent or compelling reason9 !Or granting the same. full ten year term, and the injustice caused to lessee because he was not placed in possession from September 1, 1947 but only on Nov1::mber 10, 195(\ when the court ordered the execution of the judgment. The reasons given above are not entirely without value or merit; but while they may entitle the Jessee to some remedy, t he one giv~n in the appealed decision flies in the teeth of the pro-procedural principle of the finality of judgments. When .the deci· sion of the Court of Appeals on the first appeal was rendered, modification thereof should have been sought by proper application to the court, in the sense that the period to be excluded from the ten-year period of the lease (fixed by the judgment of the Court ·of First Instance to begin on September 1, 1942 and end cm August St, 1947) be extended up to the date when the land was to be actually placed in t.he possession of the lessee. This full period should be excluded in the computation of the ten-year lease because the delay in lessee's taking possession was attributable to the lessor's fault. Whether the failure of the lessee to secure this modification in the original judgment as above indicated is due to the oversight of the party, or of the court, or of both, the omission o,r mistake certainly coU!d no longer be remedied by modification of the judgment after it had become final and executory. As to the acceptance by the lessor of the full amount of the prke of the lease for a full ten year period, from which acceptance the judgment infers an acquiescence in a lease for fully ten years from November 10, 1950 (the date when lessee was placed in possession after judgment), it must be stated that as such act of acceptance was made after the date of the final judgment, it may not be permitted to justify its modification, or change, or correction. Said act of acceptance may create new rights in relation to the judgment, but the remedy to enforce such rights is not a modification of the judgment, or its correction, but a new suit or action in which the new issue of its (acceptance) supposed existence and effects shall be tried and decided. The judgment appealed from should be as it hereby is, reversed, and the orders of the Court of First Instance of January 18, 1951 and March 13, 1951, affirmed, without costs. So ordered. Ptvrcu, Pablo, Bengzon, Padilla, Montema.yor, Reves, Jugo; and Bautista Angelo, J.J., concur. XXVII Rob1U1tiano Carogao, et ak., Petitioners, vs. Hon. Cirilo C. Maceren et al., Respondents, G. R. No. L-4665, October 17, 1952, Labrador, J.: 1. CIVIL PROCEDURE; EXECUTION OF JUDGMENT PENDING APPEAL IN SPITE OF SUPERSEDEAS BOND. - The general rule is that the execution of a judgment is stayed by the perfection of an appeal. While provisions arc Inserted in the Rules to forestall cases in which an executed judgment Jose P. Laurel and J,aurel & Salonga Arll'lnio Suazo for petitiones. Alez Albert, Mcvrgairito G. A f.ana and Proculo B. Fuents• for respondents. DECISION LABRADOR, / .: Thia ls a special action of certiorari to annul and set aside an order for immediate execution issued on March S, 1951, by the Honorable Cirilo Maceren, judge of the Court of First Instance of Davao, in Civil Case No. 288 of that court entitled G. P. Sebellino, as Administrri1or of the Estate of Jose Cara.gao V. Robustiano Ca. ragao, et al. In the jugdment rendered after trial the court found that petitioner herein Robustiano Caragao had secured the transfer to himself of three parcels of land, registered in the name of the intestate Jose Caragao under certificates of title Nos. S31, 608, and 2715, which he sold to his cc-petitioners in this proceeding, the first to Isabel Garcia nnd Bartolome HernandP.z, the second to Josefa Caragao, and the third to Gorgonia J ayme. As a result of the conveyances the lands, according to the decision, are now registered in the name of the purchasers under T ransfer Certificates of Title Nos. 206, 207, and 208. The court, however, found that the intestate had left a daughter by the name of Lau· reana Caragao by his first wife named Catalina Baligya, and it, therefore, ordered the cancellation of the new transfer certificates of title in the names of the petitioners, and the issuance of new ones in lieu thereof in the name of Jose Caragao, deceased, and that defendants vacate the lands and pay J ose Caragao's share in the products thereof in the a~ount of P6,000. (Annex A.) The judgment was rendered on December 28, 1950, and on January 6, 1951, the plaintiff moved for fbe immediate execution of the judgment <Annex B). Opposition to the motion was registered by the defendants (Annex CL On February S, 1951, the court granted the motion for immedia.te execuiion, but upon motion for reconsideration, it set aside its first order by another dated February 10, 1951, which, in part, reads as follows: x x x. It appearing that the plaintiff offers no objection to the filing of the supersedeaa bond to · answer for damages, the order of the court dated February 3, 1951, is hereby set aside and defendants are ordered to file . a bond of P6,000 to answer for damages. The defendants seem to have filed the bond, but opposition to June SO, 1954 THE LAWYERS JOURNAL 805 this was registered by the plainti{f on the ground that it was insufficient, and the latter thereupon filed a counterbond for Pl0,000. Subsequently, the plainti(f also filed a motion for reconsideration dated February 20, 1951, praying that the original order for the execution of the judgment be reinstated. On March 2, 1951, the court set aside its order of February 10, 1951, and directed anew the issuance of an execution, thus: X X x. It having been shown that the property would be properly taken care of and administered by the plaintiff herein for the better preservation and protection of same and inasmuch as the issuance of a writ of execution having been determined in its order of February 3, 1951, the order of this court dated February 10, 1951, is hereby set aside, and let execution issue in this case u1>0n filing by the l)laintiff of a bond in the total sum of PB,000, and an additional bond of Pl,000 to be filed by the plaintiff G. P. Sebellino as embodied in the order of this court of February 3, 1951. It is against this order that the present action ls filed, petitioners contending that after the filing of the supersedeas bond, the execution of the judgment could not be justified by the reason expressed in the order, i.e., that the property could be better preserved or protected in the possession of the plaintiff. The genual rule is that the execution of a judgment is stayed by the perfection of an appeal. While provisions are inserted in the Rules to forestall cases in which an executed judgment is reversed on appeal, the execution of the judgment is the exception, not the rule. And so execution may issue only ''upon good reasoris stated Jn the order." The grounds for the granting of the execution must be good gMunds. <Aguil<'s v. Rarrios. et a.I G. R. No. 47816, 72 Phil. 285.> It follows that when the court has already granted a stay of execution, uf}(')n the adverse party's filing a supersedeas bond, the circumstances justiCying exceution in spite of the supersedeas bond must be paramount; they should outweigh thl! security offered by the supersede:u bond. In this last case, only compelling reai::ons of urgency or justice can justify the exi:cutiun. llbid.) The "good reason" stated in the order subject o( this proceeding is "the better preservation and protectoin of the property." But we find from tho pecord tha.t the properties are three parcels of land. And we are at a loss to understand how and why they could be better preserved if in the hands of the administrator. Besides, the judgment shows that the lands are in the hands of the petitioners, who already ha,·e titles thereto, and as there is nothing to indicate that they were acquired in bad faith, the presumption arises that the purchasers are possessors in good faith. It seems, therefore, that the execution of the judgment, after the giving of the supersedeas bond, can not be justified, there being no urgent or compelling reasons (or granting the same. We, there· fore, hold that the execution was granted with grave abuse of discretion. The petition is, therefore, granted, and the order of the respondent judge of March 2, 1951, is set aside, and that of February 10, 1951, revived. With costs against the respondents. Paras, Pablo, Bengzoi, Padilla, Montemayor, Jugo, and Bautista. Angelo, J.J., concur. XXVlfl Vicenta Ylnr.a.n, Plaintilf-AvPellee vs. Aquilino 0. Mereado, De/endant .. AppeUant, G. R. No. I~-6089, April 20, 1954. Labrador, J. CIVIL PROCEDURE; PRO FORMA MOTION FOR NEW TRIAL OR RECONSIDERATION. - Where the motion for reconsideration was based on the claim that the finding of the trial court as to the authenticity of the disputed signature, Exhibit "A", was not justified by the evidence :mbmltted which is the testimony of the expert witness denying such authenticity, and said motion points out why the finding of the court is not justified by the evidence, said motion is clearly Mt a pro forrna motion for new trial or reconsideration. Salvridora A.. Loyroiio for appellarit. Pablo Al/eche for a.ppellee. DECISION LABRADOR, J.: This is an appeal from au order of the Court of First Instance of Cebu dismissing the above-entitled case, which had been appealed to said court from the municipal c :ourt of Cebu City. The appeal wns certified to this Court by the Court of Appeals on the ground that only questions of law are raised in the appeal. The action brought in the municipal court of Cebu City seeks t.J recover from the defendant the sum of PlS0.50, the balance of the value of furniture and other goods sold and delivered by the plaintiff to the Oefendant. The main issue of fn.ct involved in the trial was the authenticity of the signature of one Aquilino 0. Mercado to Exhibit A. Judgment was entered i:i. said court in favor of the plainti{f a.nd against the defendant for the sum of Pl80.50 as prayed for in the complaint. The decision was rendered ,,n November 18, 1949, and the defrndant received notice thereof on November 21, 1949. On December 2, 1949, defendant presen~ed a motion for the reconsideration of the decision, alleging that the same was not justified in view of the fact that the signature to Exhibit A is forged, according to the testimony of an expert witness. It was also alleged that for the sake of justice and equity the court should order the National Bureau of Investigation to examine the disputed signature in Exhibit A . This motion for reconsideration was denie'd, and the defendant appealed to the Court of First InSto.nce. The appeal was perfected within fourteen day:; if the period of time taken by the court in deciding the motion for reconsideration is not taken into account. ACter the defendant had :filed an answer in the Court of First Instance, plaintiff moved to dismiss the appeal on the ground that it was ifled beyond the period prescribed in the rules. In support thereof it was claimed that the motion for reconsidi:ration filed in the municipal court was a pro f<>rmtJ, motion, which did not suspend the period for perfecting the appeal. The Court of First Instance sustained the motion to dismiss the appen.l. holding that the ground on which the motion for nconsideration is based is not one of those !'cquired for a motion for new trial under Section 1 of Rule 37 of the Rules of Court. The only question at issue in this Court is whether the motion for reconsideration filed in the municipal court is a pro /0r1na ?r).<>tion. The question must be decided in the negati\'C, The motion was based on the claim that the finding of the trial court as to the 11.uthenticity of the disputed siruature to Exhibit A was not justified by the evidence submitted, which is the testimony of the expert witness denying such auth~nticity . This is a. motion which points out why the finding of the court is not justified by the evidence, and is clenrly not a rr.-o forma motion for new trial or reconsideration. The Court of First Instance erred in holding that it dld not suspend the period for pel'fecting t~.e appeal. The order of dismissal is hereby rE:versed, and the case is ordered nmanded to the Court of First Instance for further proceedings. Paras, Pablo, Bengzon, Montetn411or, Reyes; Jugo, Bautitst.a Angelo, ConctJpcion, and Diokno, J.J., concur. Mr. /1tstico Padilla took no part. 306 THE LAWYERS JOURNAL June 30, 1954 XXIX Gorgonio Pmuies, Petitionir, vs. Hon. Jose Teodoro, Sr., Judge of the Coitrt of P.irst lnstancl? of Nt.9ros OccidcP.tal et al., R espondo1ts, G. R . .Vo. L-6666, il1ay 12, 1954, Conce7Jcion; J.: 1. CIVIL PROCEDUHE; ATTACHMENT OF PROPERTIES UNDER RECEIVEHSHIP. - The exemption from attachment, ga.rnishme11t or sale under execution of properties under Teceivcrship is not absolutr-. Such pmperties may not he levied upon "except by /cave of t.lie Court appointing the receiver" (4 Am. Jur. 808 ; 45 Am. Jur. 132). This is a mere consequence of the theory that "a receiv.:!rship operates to protect the receiver against interference, without the consent of the court appointing him, with his c1isrody and possessio11 of the property subject to the receivership" (45 Am. Jur. 132; underscoring suppliedl. Hence, "it has heen held x x x that real estate in the custody of a receiver can be levied upon and sold under execution, )>rovided only that the actual possession of the re<:eiver is not interfered with" (45 Am. Jur. 133-134, citing Albany City Bank v. Schermerhorn, 9 Paige [NY] 372, 38 Am. Dec. 551). The reason is that "oTI.ly a 1·ecei\·er's pnssession of p1 ·01ierty subject t-o receivership x x x is entitled to protection x x x against interference" (45 Am. Jur. 134; sec, also, 75 C. J .S. 759). 2. IBID; IBID. - The interference enjoined is that resulting from orders or processes of :l court ''other" than that which appointed the receiver <45 Am. Jur. 136), the rule being predicated upon the need of preventing "unseemly conflicts bet.. ween courts whose jurisdiction embraces the same subjects !1.nd persons" (45 Am. Jur. 137). Manuel T. 7'1mo9ba1ma and Alfredo S. Tad.Y for petitioner. A rturo Villarmeva and E11femfo Parana for respondents. DEC I S IO N CONCEPCION, J .: On December 9, Hl52, Uy Tiong Oh instituted in the Court of First Instance of Negros Occidental Civil Case No. 2562, against Gorgonio Pancles, for the recovery of a sum of monl!y <Annex AL l'pon the posting of the corresponding bond, a w1·it of preliminary attachment was issued, on motion of Uy Tiong Oh, "against the properties of the defendant not exempt from execution" <Annex BL Then, the provincial sheriff issued a "Notic(' of Garnishment" <Annex CJ upon "whatever right, interest end participation the defendant Gorgonio Pandes has or might have in" a certain "partnership between Uy Tiong Oh and Ester PanO.es, the wife of the defendant, in connection with the Eden Theater of San Carlos, Negros Occidental." Thereafter, Gorgonio Pandes filed an "Answer to Notice of Ga.rnil!hment of the l"1ovincial Sheriff" <Annex D>, praying that said garni~hment "be stayed" upon the ground, among others, that said right, interest and participation "is involved in Civil Case No. 2371" of the same court, entitled ''Uy King Poe vs. Ester Pandes aud Gorgonio Pandes." Admittedly, Uy King Poe, the plaintiff in said case No. 2371, is the same Uy Tiong Oh, the pie.inti(£ in case No. 2562. It would seem, also, that Gorgonio Pandes had never sought any court action on his aforesaid "answer". In due course, a decision was, subsequently, rendered in favor of Uy Tiong Oh in case No. 2562. Said decision having become final, the court ordered, on April 11, 1953, on motion of Uy Tiong Oh, the issuance of the corresponding writ of exe:::ution and directed th£; prov!ncial sheriff to sell, at public auction, "wilaten~r rights. interest and participation the defendant may h:ive on the pro1icrty levied upon x x x the p.<"Oceeds thereof to be applied in satisfaction of the judgment rendered" as above stated (Annex E>. After issuing the corresponding noti:::c of auction sale <Annex F>, on April 30, 1953, the provincial sheriff sold to Uy Tiong Oh for !'500.00, such l'ight, interest nnd participation as Gorgonio Pandes has or might have in the partnership a.forementioned <Annex 6>. Prior thereto, or on April 22, 1953, Gorgonio Pandcs had moved fo1· the reconsideration of the order of April 11, 1953, upon tl1e ground that the partnel'ship in question was under receivership and, being a.'! such, under rnstodi<l le9is, said partnership and its assets are not subject to garnishment <Annex Gl. The motion for reconsid~ration having l:een denied by the court, presided over by Hon. Jose Teodoro, Sr., J udge, <Annex Hl, Gorgonio Pan.fes in stituted the present certioiari p1·occedi11gs. In hi.!"! petition to this effect, he prays: "l. For the issuance of nn order requiring the Clerk of Court of First Instance of Negros Occidental to certify to this Coul't, a copy of the order of December 10, 1953, a copy of the order of April 11, 1953, all in Civil Case No. 2S71 of the sa id court, that the same may be reviewed by this Court. "2. That the Hon. JOS E T EODORO, Sr., Judge of the Court of First Instance of Ncgros Occidental, and JOSE AZCONA, Ex-Officio Provincial Sheriff of Occidental Ncgros be ordered to refrain from further proceeding in the matter here sought to be revi~wed until further order l)f this Court. "3. That after hearing the parties, a judgment be rendered dt'claring the order of AJ>r il 11, 1953 as improper, null and void as in excess of the jurisdiction of the respondent judge, or as being a grave abuse of his judicial discretion; and that the petitioner be conceded such further and other relief as in the opinion of the Coul't he is justly and equitably entitled, with costs." <p. 4, petition.) It appears that on October 17, 1950, Uy Tiong Oh and Ester Pandes, assisted by her husband, petitioner Gorgonio Pandes, exE' - cuted a contract of partnership, .~opy of which is ~ ppended to respondents' anSwl'r, as Annex 1. It is stated therein that Uy King Poe <alias Uy Tiong Oh) owns h\'c:, <2) cinema projectors described therein, with all its aceesso1-ies ; that Mrs. Pandes owns one ll> g-ene:i·ator and one (}) motor, with its corrc,sponJing accesories, all installed at the Eclen Theater, situated at San Carlos, Negros Occidental; and that both parties ha.ve agreed to form a partnership for the operation of a cinema house ~t said Theater, subject to the condition that Uy would contribute mid projectors and Mrs. Panclcs, the generator and the motor r.bovc referred to; tliat the rentals of the building wo• Jld be charge r.gainst the partnership; that the net profits, after deducting all llxpenses, would be dh·ided equally between the partnP.rS: that Mrs. Pam.les would be the managinl( partner and Uy Tiong Oh, the trea.surer; that t!ie employment and dismissal of employees would be determined by both; nnd that the partnership would exist for five (5) years, subjeC"t to renewal. 1t furthn ar,pear that on or about July 2, 1952, Uy King Poe •ulias Uy Tiflng Oh) commenced the aforementioned ch•il case No. 2371 of the Court of First ·Instance of Ncgros Occidental, for thl'i dissolutiot\ and liquidation of said partnership and the recovery of the sum of f'lS,000.00, upon the ground that l\l!·ti Pa:ides had misappropriated said sum a llegedly belonging to the partuership, and that she ha'.! prevented the plaintiff and his representatives from inspecting and supervising "t.hc Jiremises of the cinema h9use, causing bodily harm to said represr-ntntivcs." (Annex 4.) Upon the same g rounds and the additional ground that Mrs. Pandes would continue defrauding the partnership and had threatened to damage and destroy his projectors, Uy King Poe moved for the appointment of u receiver, "to take can~ of the properties contributed" by the partners and, also, of the "administration of the Cinema House" during the pendency of the c3se (Annex 5l. Acting upon this motion, said court, presided over by the same J udge, respondent Jose Teodoro, Sr., appointed one Feijsberto A. Broce, "as receiver x x x with authority to take possession nnd take charge of the Cinema House denominated and popularly known as Eden Theater, situated at San Carlos, Negros Occiden~al, Philippines." June 30, 1954 THE LA WYERS JOURNAL 30i CAnnex 3.) The only question for detern1ination in the case a.t bar is whether or r.ot r espondent JuJge had, in the worJs of pEJiti'lner herein <par. 10 of the petition), " exceeded his nu1·J10rity when he issued the <'l"dcr of April 11, 1953" < Annex EJ, directing the ])rovincial sheriff "to sell at public auction whatever rights, interest ancJ participation the deJen,fants ma y have on the propcrt~· levied upon x x x the proceeds thereof to be applied in satisfaction of the judgment rendered in this case." Petitioner maintains the affirmative, upon the ground that "said partnership being in the hands !)f a receiver, the same n the properties thereof cannot be reached by execution.'' (Par. 10 of the petition.) This pretense is untenable lor the exemption from attachment, garnishment or sale undCr execution of prC1perties under 1·eceivership is not absolute. Such properties may not. be levied upon "except by leave of the Court appointing the reccivilr" (4 Am. Jur. 808; 45 Am. Jur. 132). This is a mere consequence of the theory t hat "a receivership operates to protl!ct the receiver against interference, without the consent of t he r.ourt p.ppointing him, with his cust<1dy and possession of the propert.y subject to the receivership" (45 Am. J ur. 132; underscoring supplied). Hence, "it has been held x x x that real estate in the custody of a receiver can he levied upon and sold under execution, pfovided only that the act1tal ·.'.>ossession of the receiver is not interfered wit.h" t45 An1. Jur. l ;i3-134, citi11g Albany City Bank v. Schermerhorn, 9 Paige [NY] 872, 38 Am. Dec. 551). The reason is that "orily a n~ceiver's possession of property subject to receivership x x x is entitled to protection x x x aga.inst interference" C45 Am. Jur. 134: see, also, 75 C.J.S. 75!)). Then, agaiu, the interference cnjr1ined is that resulting from orders or processes of a court "other" than that wl:ich a1 1poi!lted tlie receiver (45 Am. Jur. 136), the rule being predicated upon the need of preventing "unseemly conflicts between courts whose jurisdiction embraces the !':ame subjects and persons'' (45 Am. Jur. 137>. Thus, m Cu Unjieng c Hijos ' '8. Mabalacat Sugar Co . . (58 Phil. 439, 441); this Court said: "The fact ·that the mortgaged properties a re in the hands of a receiver appointed Ly the court which tried the foreclosure suit docs not prevent the s:wne court from ordering the sale of the aforesaid mortg.9.ged properties, inasmuch as although the said properties are in ciistodia legis by virtue of the conflict of jurisdiction therein because the court that ordered the sale thereof is the same which ordered that they be placed under receivenhip.'' public convenience in question placed in the hands of a Te.. cciver, appointed the receiver who was to take <'harge thereof, and ordered the receiver thus appointed to sell said certifica!es. Jn accordance with the a.fore-cited doctrine. said Court of F irst Instance of Tays.bas had jurisdiction to order said sale.'' For this reason, respondents maintain t.hat petitioner is not entitled to the relief sought, the garnishment and the sale under cx1·cution complained of, having been ordC'l"ed, n'lt only by the .same court of First Instance of Negros Occidental which had j urisdiction over the receivers.hip, but, also, by the aame Judye, res.. pondent Jose Teodoro, Sr., who appointed the receive.r At .any rate, the receivership in case No. 2371 is limited to the "po:;session'' and administrati'ln "of the Cilwma House dominated :rnd popularly known as Eden Theater" C Anncx 3>. This is not necessarily a receivership of the partnel"ship in question. Rut, even if it w;.ere, neither s11id possession by the receiver, nur the administrntfon of the Eden 'Theater are affected by the order complained of <Annex E), t he same being directed, not against the partncr.;.ii.ip or its propcrti'!s, but against those of Gorgonio Pandes, particularly, "whatever rights, interest and participation" he "h'.1.s or might have" in said partnership. This right, interest or participation, if any, i3 a pl"Operty of Gm·gonio Fandes, separate and distinct from the properties of the partne.rship, which has a personality of its own, distinct from that of its partners, and, certainly, of said Gorgonio Pandes C Arts. 44 and 1768, Civil Code of the Philippines>. Such property, if any, of the latter, is not under receivership. The receiver had no authority to take i~ under his custody and, in fact, never had it in his possession or under his administration. Consequently, it is not iu cu.stodia legis and is subject to levy, even without the permission of the c6urt appointing the receiver. In view of the foregoing, tho petition is hereby dismissed, with costs against the petitioner. IT IS SO ORDERED. Pnras, Pablo, Bcngzon, Mo11tcmayor, Reyes, J1 1go, Bautista. • A ngelo 1:md Labrador, J .J . , concur. Mr. Justice Padilla did not take part. xxx Lu:on Stevedorin9 Co., Inc., llnd V isayrrn Stet•edore Tra?isporta. tion Co., Petitioners, vs. The Puhlic Se1·vicc Commission and the Phil. imiine Shipo1vnc,·s Associotion, R.!npomlents, G. R. Nu. L-5458, September Hi, 1953, 'l'uazon, J. This view was reiterated .:md applied in Orlanes & Banaag Trans. Co. vs. Asiatic Petr'lleum Co. (p. I .), Ltd. and Laguna- 1 . Tayabas Bus Co. C59 Phil. 433, 439), in the followi1 1g language: PUBLIC SERVICE LAW; WHAT CONSTITUTES PUBLIC SERVICE OR PUBLIC UTILITY . - It is not 11ecessa1·y, nnder Sec. 13(b) of the Public Ser1ice Law (Commonwealth Act No. 146) that one holds himself ont as serving or willing to se!"V"e the public in order to be considered public. In Luzon Brokerage Co. v . Public Service Commi!!Sion, 40 0 . G. , 7th Supplement, p. 271, this Court declared th9.t "Act 454 is ciPar in including in the definition of public s~rvice that which is rendere-d for compensation, although limited <>Y.ciusively to th~ customers of the petitioner." 308 "The appellants contend that inasmuch as the certificates of public convenience in question were in the hands and under the control of a judicial receiver and, thetefore, in cu...-. todia legis, the Court of Firs~ Instance of Tayabas had no jurisdiction to order the sale thereof and, -::onsequently, the sale made by the sheriff of the City of Manila. to the Asiatic Pet roleum Company CP.I.), Ltd., and the assignment for the latter of its rights in favor o.f the Laguna-Tayabas Bus Com- 2 . pany are null and void. "In the case of Cu Unjie11g e Hijos vs. 1'fobalncat Suga.r Co. (58 Phil., 439), which was decided on September 22, 1933, this court held that the court, which ordered the placing of t.he mortgaged property in the hands of a receiver in a foreclosure proceeding, has jurisdiction to order the sale of said property at public auction even before the termination of the r eceivership. " In the case under consideration, it was the sa.me Court of F irst Instance of Tayabas, which ordered the certificates of JBJD ; JnlD. - In the United States where, it is said, that there is no fixed definition of what constitutes public service or public utility, it is also held that it is not always 11ecess9.ry, in ord£'r to be a public service, that an organization be dedieated to public use, i.e., ready and willing to serve the public afi a class. It is only necessary that it must in some way be impressed with a public interest; and whether the operation of a given business is a public utility depend~ upon whether or not the service rendered by it is a public character and of public consequence and concern . <51 C. J. 5.) Thus, a business may be affected with public interest anQ regulated for public good although not under any duty to serve the public (43 Am. Jur. 572 .) THE LAWYERS JOURNAL June 30, 1954 3. PUBLIC SERVICE COMMISSION; APPOINTMENT OF A COMMISSIONER TO TAKE EVIDENCE. - Objection to the appointment of a commissioner to tuke evidence can not be m::ide for the first time after decision was rendered, for such objection must be deemed waived. Pe·rkins, Ponce Enrile & Conh·erns for petitioners. A. H. Aspi/ii;m, O:uet<t, Roxas, L icha11co & Picu,-::u and Jua.n H. P(l11/i110 for respondents. DECISION TUASON. J: Petitioners apply for review of a decision of tlte Public Service Commission l'estraining them "from further operating their watercraft to transport goods fer hire or compensation between points in the Philippines until the rntcs they pro11ose to charge npproved by th iii Commission." The facts arc summarized by the Commission as fellow's: "x x x respondents are corporations duly organized and existing ur.der the laws of the Philippines, mainly engaged in the stevedoring or lighterage and harbor towage business. At the same time, they a rc engaged in' interisfand service which consists of hauling cargoes such as sugar, oil, fertilizer and other commercial ccimmodities which are loaded in their barges and towed by their tugboats from Manila . to various points in the Visayan Islands, particularly in the provinces of Negros Occidental and Capiz, and from said places to Manila. For this service respundents charged freightage on a unit price with rates ranging from PO.SO to P0.62-112 per bag or picul of sugar loaded or on a unit price per ton in the case of fertilizer or sand. There is no fixed route in the transportation of these cargoes, the same being left at the indication of th~ owner or shipper of the goods. The barge and the tugboats are manned by the crew of respondents and, in case of damage to the goods in transit caused by the negligence of said crews, respondents are liable therefor. The service for which respondents charge frcightage covers the hauling or carriage of the goods from the point of embarkation to the point of disemba.rkation eitht:r in Manila or in any point in the Visayan Islands, as the case may be. ''The evidence also sufficiently establishes that respondents are regularly engaged in this hauling business serving a limited portion of the public. Respondent Luz:>n Stevedoring Co., Inc. has among its regular customers the Sa..n Miguel Glass Factory, PRATRA, Shell Co. of P .I., Ltd., Stnndard Oil Co. of New Ymk and Philippine-Hawaiian; while rc>spondent Visayan Stevedore Transportation Co. has among· its regular customers the Insular Lumber, Shell Company, Ltd., Kim Kee Chua Yu & Co. , PRATRA and Luzon Merchandising Corp. During the perio.d from January, 1949 and up to the present, respondent Luzon Stevedoring Co. , Inc. has been rendering to PRATRA l'egularly and an many occasions such service by carrying fertilizer from Manila to various points in the province of Negros Occidental and Capiz, such 2s Hinigaran, Sila.y, Fabrica, Marayo, Mambaquid, Victorias and Pilar, and on the return trip sugar was loaded from sr1id provinces to M:inila. For these services, as evidenced by Exhibits A, A-1, A-2, A-3 and A-4, respondent Luzon Stevedoring Co., Inc. charged PRATRA at the rate of f'0.60 per picul or bag of sugar and, according to l\lr. Mauricio Rodriguez, Chief of the division in charge of sugar and fertilizer of the PRATRA, for the transportation of fertilizer, this respondent charged Pl2.00 per metric ton. During practically the same period, respondent Visayan Stevedore Transportation Co. transported in its barges and towed by its tugboats sug::i.r for Kim Kee Chua Yu & Co. coming from Victorias, Marayo and Pilar to Manile, and. for Luzon Merchandizing Corp., from Hinigaran, Bacolod, Marayo and Vieto!·ias to Manila. For such service respondent Visayan Stevedore Transportation Co, charged Kim Kee Chua Yu & Co. i<Jr freightage f'0.60 per picul or bag as sho)vn in Exhibits C, C-1, C-2, C-3, C-4, C-5, C.6, C.7 and C-8, and Luzon Merchandisin~ Corp . was a!so charged for the same service and a t the same rate as shown in Exhibits B, B-1 and B-2." It wan upon these findings that '...he Commission made the order now sought to be reviewed, upon complaint of the Philippine Shipowners' Association charging that the then respondents \\'ere engaged in the transportation of cargo in the Philippines for hire or comr.ensation without authority or approval of the Commission, having adopted, fixed and collected freight charges at the rate of f'0.60 per bag or picul, parEcularly sugar, loaded and transported in their lighters and towed by thei1· tugboats between different points in the province or Negros Occidental and Mar1ila, which said rates resulted in ruinous competition with complainant. Section 13 (b) of th<' Publir Service Law (Commonwealth Act No. 146) defines public service t hus: "The term 'public service' includes every person that now cir hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and dOnf' for general business pur poses any common carrier, 1·ailroad, street railway, traction railway, subway, motor vehicle, either for freight or passenger, or both, with or without fixed route and whatever may be its classification, freight or carrier service of any class, e.xpress ser\!ice, steamboat, or i-:teamship line, pontines, ferries, and small water craft, engaged in the transportation of passengers a.nd freight, shipyard, marine railway, marine repair shop, warehouse, wha rf or dock, ice plant, icerefrigeration plant, canal, irrigation system, sewerage, gas, elt:ctric light, heat and power, water supply and power, petroleum, sewerage system, telephone, wire or wireless telephone, wire or wireless telegraph system and broadcasting radio stations." It is not necessary, under Sec. 13(b) of the Public Service Law <Commonwealth Act No. 146), that one holds himself out as serving or willing to serve the public in onler to be considered public service . . In Luzon Brokcrnge Co. v. Public Service Commission, 40 O.G., 7th Supplement, p. 271, this Court declared that "Act 454 is clear in including in the definition of a public service that which is rendered for compensation, although limited exclusively to the customers of th« petitioner." I n that case, the Luzon Brokerage Company, a rustoms broker, ha.cl been receiving, depositing and delivering goods discharged from ships at the pier to its customers. As here, the L .<zon Brokerage was then rendering transportation service for compensation to a limited clientele, not to the public at lal'ge. In the United States where, it is said, there is no fixed definition oi what constitutes public service or public utility, it is also held that it is not always necessary, in order to be a public service, that an organization be dedicated to public use, i.e., ready and willing to serve the public as a class. It is only necessary that it must in some way be impressed with a public interest; and whether the 01ieration of a given business is a public utility depends upon whether or not the service 1·endered · by it is of a public character and of public consequence and concern . (51 C. J. 5. ) Thus, a business may be affected with public interest and regulated for public good althought not under any duty to serve the public. (43 Am. Jur. 572.) It can scarcely be denied that the contracts between the owners of the barges and the owners of the cargo at bar were ordinary contracts of transportation and not of lease. Petitioners' watercraft wa.s manned entirely by crews in their employ and puyroll, and th'"e operation of the said craft was under their direction and control, the customers assuming no responsibility for the goods handled on the barges. The great preponderance of the evidence contradicts the a5sertion that there was any physical or Symbolic conveyance of the possession of the tugboats and barges to the shippers. Whether the agreements were written or \!crba.l, the manner of payment of freight charges, the question who loaded and unloaded the cargo, ihe propriety of the admission of certain receipts in evidence, etc ., June 30, 1954 THE LAWYERS JOURNAL 309 to all of which the parties have given much attention - these are matters of form which do not alter the essential nature of the i·elationship of the parties to the transactions a.s revealed by the fundamental facts of record, It is contended that 1'if the Public Service Act were to be construed in such a manner as to include private lease contracts, said law would be unconstitutional," seemingly implying that, to prevent the law from being in contravention of the Constitution, it should be so read as to embrace only those persons and co:npanies that are in fact engaged in public service" with it.s corresponding qualification of ari offer to serve indi:.criminately th~ public." It has been already shown that the petitioners' lighters and tugboats were not leased, but used to carry goods for compensation at a fixed nte for a fixed weight. At the very least, they were hired, hired in the sense that the ·shippers did not have direction, control, and maintenance thereof, which is a characteristic feature cf lease. On the SC<'!ond proposition, the Public Service Commissiori has, in our judgment, interpreted the law in accordance with legislative intent. Commonwealth Act No. 14G declares in unequivocal language that an enterprise of any of the kinds therein enumerated is a public service if conducted for hire or compensation eyen if the operator deals only with a portion of the public or limited clientele. It hns been seen that public utility, even where the term is not defined by statute, is not determined by the number of pe9plc actually served. Nor does the mr-re fact that service is rendered only under contract prevent a company from being a public utility. l43 Am. Jur. 573.) On the other hand, casual or inddental service de\·oid of public character and interest, it must be a<lmitted, is not brought within the category of public utility. The demarkation line is not susceptible of exact description or definition, eueh case being governed by its peculiar circumstances. "It is impossible to lay down any general rule on the subject whether the rendel'ing of incidental service to members of the public by an individual or corporation whose principal business is of 3 different nature coristitute such person a public utility. ln thf! result reached, the cases arc in conflict, as the question involved depends on such factors as the extent of service, whether such person or company has held himself or itself out as xeady to serve lhE: publie or a portion of the public generally, or in other ways conducted himself or itself as a public utility. In s.:veral cases, it has bei?n held that the incidental service rendered to others consti~ tuted such person or corporation a public utility, but in other cases, a contrary decision has been reached.'' C43 Am. Jur. 573.) The transportation service which wss the subject of complaint was not casual ·.)r incidental. It has been carried on regularly for years a.t almost uniform rates of charges. Although the number of the petitioners' customers was limited, the value of goods transported was not inconsiderable. Petitioners did not have the same customers all tbc time embraced in the complaint, and there was no reason to believe that they would not accept, and there was nothing to prevent them from accepting, new custome1·s that might be willing to avail of their service to the extent of their capacity. Upon the well-established facts as applied to the plain letter of Ce>nunonwealth Act No. 146, we are of the opinion that· the Public Service Commission's order does not invade private rights of J.>rOpe1-ty or contract. In at least one respect, the business complained of was a. matter of public concern. The Public Service Law was ~nacted not only tC' protect the public against unreasonable charges and poor, inefficient service, but also to prevent ruinous competition. That, we Ycnture to say, is the main purpose in bringing under the jurisdiction of the Public Service Commission motor vehicles, vther means of transportation, icti plants, etc., which cater to a limited portion of the public under private agreemer.ts. To the 'extent that such agreements may tend to wreck or impair the financial stability and efficiency of public utilities who do offer service to the public in reneral, they a.re affected with public intc1·est and come within the p(llicc power of the state to regulate. Just as the legislature may not "declare a company or enterprise to be a public utility when it is not inherently such," a public utility may not evade control and supervision of its op~ration by the government by selecting its customers under the guise of private transactions. For the rest, the constitutionality of Commonwealth Act No. 14G was upheld, implicity in Luzon Brokerage Company v. Public Service Commission, supra, and explicitly in Pangaeinan Transportation Co. v. Public Service ~mmission, 70 Phil. 221. Were there serious doubts, the c~urts should still be 1·eluctant to invalidate the Public Service I .aw or any provision thereof. Although the legislature can not, by its mere dcclsrn.tion, make something a public utility which is not in fact such, "the public policy of the state as announced by the legislature will be given due weight, and the determination of the legislature that a particular business is subject to the regulatory power, because the public welfare is dependent upon its proper conduct and regulation, will not lightly be disrega rded by the courts." (51 C. J. 5. ) The objection to the designntivn of Attorney Asvillera as commissioner to take the evidence was tardy. It was made for the first time after decision was rendered, following a prolonged hearing in which the petitioners c1·oss-examined the complainant's witnesse!\ and presented their own eVidence. The point is procedural, not jurisdictional, and may be waived by expressed consent or acquiescence. So it was held in Everret Steamship Corporation v. Chua Hiong, G. R. N.J. L-2933, and La Paz Ice l'lant and Cold Storage Co. v. Comision de Utilidades Publicas ct al., G. R. No. L-4053. Upon the foregoing considerations, the appealed order of the Public Service Commission is affirmed, with costs against the 1;etitioners. Paras, Pablo, Bnigwn, Padilla, Montemayor, Reyes, Jugo; Bautista Angelo nnd Labrndor, J.J., concur. CERTAIN VEXATIOUS QUESTION . CC011ti1111ed fro'm pnge ::!70) in Tan Hi v. Republic, G.R. No. L-3354, decided on January 25, 1951, the Supreme Court cited a previous decision of said Court which denied the application on the ground that "the applJcant for 11aturnliration had nin!' child1·en all enrolled in the Philippine schools e.xeept one, a minor because she lh-c frc1n infancy in China, where she W2.S enrolled in an English school in Amoy." From this decision of the Cc.urt it appears in bold rdief that if in an ordinury naturalization case the non-enrollment of a child bccau&c she is studying in her native country is a ground for rejecting an application for naturaliz:itivn, it results by inference that childn:n of mothers marrying Filipine> citizenil, much less cannot bt!comc citiZf'llS of the Philippines for that matter. CONCLUSION AND RECOMMENDATION TO PART II Any other interpretation to the contrary, like the three Opinions ,,f the Secretary of Justice hcrcinabove referred to, would lead to injustic.:i, inequity, and even absurd i·esults, which, perforce, must be ave>ided, for it would give i·ise to incong1·uous possibilities whnein full-blooded aliens with no interest or background on our socio.I, l)Olitica.l, and economic way of life could otherwise be Filipino citizens merely on papers contrary to the spirit of ·)Ul' ConsUtution and laws on the matter. . On the whole, therefore, whether the children ef the foreign woman a1·e legitimate or illegitimate, and whether the mother is a divorcee, or not, and on the ussumption that such mmor children have already citizenship of their own, such 'citizenship which the Municipal Law of the country of their birth has conferred upon them, be allowed to continue the same citir:enship--4. suggestion or a course which would tend to reduce conflict'i.ng problems of citizenship in the future. 310 THE LAWYERS JOURNAL June 30, 1954 DIGEST OF DECISIONS OF THE COURT OF APPEALS F.STOPPEL; ESTOPPEL "IN PAIS"; RULE. - While it is tru<! that, because of P.quitublc cstQilpel, "a party can not, in the course of a litigation, be permitted to 1·epudiate his r<!presentations, or t)<'!Cupy inconsi.:tent positions" I Magdalena Estate vs. Myrick, 71 Phil., :344: 3 Moran, Rules of Court <Perm. Ed.>, p. 496), it is fundamentd in the law of t"Stoppt;\ 111 pafa that the representations held to conclude a party should be of matf'riul fttcts: that the rcprt:senta.tion be made with full knowledge of the truth; and that party invoking the estoppe\ should have been misled to his prejudice <3 Moran, Op. Cit. 494; 21 C.J ., s. 227, pp. 1223.1225.) Test11ttJ E,'stote of the Late Dorotea Apostol. Beiiedicta Obisvo, et al., petitioners and appellees, v.~. Remedios Oi·isp11, oppositor and appellant, C. A. No. 8454-R, Ortober 1, 195:J, Reyes, J. B. L., J. ID.; CONCLL'SIONS OF LAW IN PLEADING CAN NOT GIVE I-:ISE ESTOPPEL. - When it appears from the plain terms of a. pleading that there is no alli!gation of fact therein, but only conclusions of law, such conclusions can not give rise to estoppel rn1 C. J ., 1225>. Ibid. Ibid. / EVIDENCE; WJTNl<.:SSES; TESTIMONY; PARTY MAY CALl OPPONENT AS HIS OWN WITNESS. - There is no provision of law or of the Rules of Court that would prevent a party to a litigation from calling any of the opposing partie:ii to be his witness, so long as the one called is not disqualified under section 25 or section 26 of Rule 123. On the contrary, section 83 of said rule expressly authOrizes the calling of any adverse party as such witness, even if leading q~estions have to be employed to overcome his natural hostility. It the previous acts or former statements of th~ witnes!! contradict his present testimony, they may be shown to impeach his credibility under sections 91 and 92 of Rule 123, but they would not be grounds to bar him from testifying. WILL ; PROBATE; ESTOPPEL, WHF.N NOT APPLICABL.E IN PROCEEDINGS. --!. Probate proceedings involve public intere~, and the application therein 11f the rule of estoppel, when it will block th~ ascertainment of the truth as to the circumstances surrounding the execution o! a. testament, would seem inimical to p\1blic policy. Over and above the interest of private parties is that of the state to see that ti!stamentary dispositions be carrit>d out of it, and only if, executed conformably to Jaw. 1!11 Re Canfield's Will, 300 NYS 502). / hid. / bid. F:VIDENCE; RECEPTION 01" EVIDENCE OF DOUBTFUL ADMISSIBILITY, LESS HARMFUL. - Receution o! evicl.ence or doubtful achnissibility iii: in the long r~n the less harmful course, since all material necessary for final adjudication would come before the appellate trih:mali;. (Prats & Co., vs. Phoeni>" Insurance Co., 52 Phil., 816.) Ibid, Ibid. PROPERTY; STOLEN MOVABLES; OWNER'S TIIGHT TO RF.COVER. - That plaintiffs, as owners, are absolutely entitled to recover the stolen truck!'!, or any fl8rts thereof, results from the :tpplication of article 464 of the old Civil Cude. Ethel Case, et al., plaintiffs and appellants, n . F elipe F. Cru::, defendant antl uvpellee, C.A. No. 9779-R, October 1, Hl53, Re11e11, J.B. T .-., .t. MOTOR VEHICLE; OWNERSHIP; CERTIFICATl<.: OF REGISTHATION, NOT CONCLUSIVE EVIDENCE OF OWNERSHIP.It is a n:atter o! law and general knowledge tnat certificates of registrati,m are not conclusive on the ownership of the vehicle, and they are only issued for wholly assembled motor vehicles, not for component parts thereof. Ibid, Ibid. PROPERTY; POSSESSION IN GOOD FAITH. - The good faith of a possessor consists in the absence of knowledge of a defect that invalidates his title (Art. 433, Civil Code of 1889> or, as stated in article 1950 of the same Code, "a belie! that the person from whom he re~eived the lhing was the owner thereof aud could transmit title thereto", which belief must be well./01mded or rea:;;<mable <S~ntiago vs. Cruz, 19 Phil., 148; Leung Yee vs. Strong, ante; Emas vs. Zuzuar:·egui, jam cit.). Ibid, Ibid. ID.; ID.; ID.; POSSESSION IN I.JAD FAITH; RElMBURSEMENT OR REMOVAL OF IMPROVEMENTS. -- The spirit of articles 453 and 454 of the Spanish Civil Cod._,. of 1889 <in force in 1944 to 1946, when this case institutuD is to deny a possessor in bad faith any 1·ight to be reimbursed for or to remove the improvements (ex;>Msas utiles) made by him, even if he could remo,·e them without injury to the principal thing (3 Sanchez Homan, Estudios de Derechos Civil, 449; 4 Manresa, Commentaries, 6th Ed., p. 318>. Ibid, Ibid. ID.; ID.; ID.; Ill.; ID.; REPAIRS; TERM "NECESSARY- EXPENDITURES", CONSTRUED. - By "necessary exp•~nditures" have been nlways understood those incurred for the preser·ua. tion of thr thing, in order fr prevent its becon;i1~g m;desz; or those without which .the th!ng would deteriorate or ~ lost (Alburo vs. Villanueva, 7 Phil., 277; .1, Ma.nresa, 6th Edition, p. :as; 8 Scac\·ob, Codigo Ci\'if, p. 408) ; "invtrsiones hechas para que la cosa 110 perezca o desmerezca" (3 Puig Peiia, Derecho Civil, Vo!. 3, Part I, p. 46). Ibid, Ibid. OWNF.RSHIP; CHAT'l'EL MORTGAGE; MORTGAGOR, N01' DIVERTED OF ALL O\VNERSHIP. - It is now i·ecognized that a chattel mortgag€. is merdy .:i. real right of security <Bachrach vs. Summers, 42 Phil., 3> and does not compk•tP!y divest the morlg'lgC'r of ownership. l/1;d, lbirl. WILLS; TESTATOR'S SIGNATURE; LOCATION IMMATERIAL.. - Section 618 of Act 190 (unlike article 805 of the new Civil Code) did not require that the testator should "subscribe at . the ~nd" of the will. All it required was that the will - "be written in the language or dialect known by the testator .:i.nd signed by him, or by the testator's name written by some other person in his p1·esence and by his e>:press direction x xx." Th£ Jaw did not expressly stipulate eny particular place for thf, tr.stator's signature; and there is respectable'! authority that under similar statutes, the location of the signature has been held immaterial, (Alexander, Treatise on Wills, Vol. I, pp. 55865!>, 564, 565; Gardner c·n Wills, p. 185; Woener on Wills, Vol. I, pp. 89-90). Testate Esta,te <>/ Roman Castillo. deceased. Jose C. Platon, prtiticme'I" and appellant, vs. Antonfo Castillo et al., counter-petitioner and oppositors.«1>pellee, C. A. No. 1042-R Octvbl.lr 12, 1953, Reyes. J.B./,., J. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE OF THE LAW SUFFICIENT. - The authenticity of the preceding pages o! a will not hP.ing in any way endange1·e<l by the absence of the te£tator's signature at the foot of the fourth page, becaus·~ r.11 pages curied the marginal signat~re of the testator nud the three witnesses, Held: that the law was substantially complied with. Ibid, ll>id. ID.; FAILURE TO PAGE FIRST SHEET, NOT SUFFICI ENT GROUND TO REFUSE PROBATE . - · The failure to page the first sheet of a will composed of several sheets is not a suffici~nt. ground to refuse its pl'obate, where other circun;stances supply identificali;m, as already decided by the Supr1;:me Court oi' thr. Islands in Lopez vs. Libero, 4G Off. Gaz., No. 1 (Supp.>, 211. Ibid, Ibid. ID .; DATING OF WILL OR ATTESTATION CLAUSE UNNECESSARY. - The bw docs not require either th2 will or the attestation to be dated (Pasnr> vs. Ravina; 54 Phil., 379, 380). fl.id, Ibid. June 30, 1954 THE LAWYERS JOURNAL 811 OPINIONS OF THE SECRETARY OF JUSTICE / OPINION NO. 61 OPINION NO. 62 (Opinion· as to whcthn· Santiago C. Phua ay be cons'iderecl a F ilipino citizen.) 1st lndorsemcnt March 11, 1954 Respectfully returned te the Chairman, Board of Accountancy, Bureau of Civil Service, Manila. Opinion is requested whether Santiago C. Phua may be considered a Filipino citizen, of having elected Philippin~ citizenship on J une 21, 1951, pursuant to Artirle IV, Section 1<4', of the Constitution of the Philippines a.11d Commonwealth Act No, 625. For Santiago C. Phua to be entitled to elect Philipt:iine citizenship, he must establish by c0mpetent and ~atisfactory proof that his mother was a Filipino citizen before he1· marriage to an alien. Santiago was born on August 12, 1926, in the City of Cebu, the legitimate son of Cosme Laitimosa Phua., a Chinese, and S:i.lud Carbonell, a Filipino woman. In view of the destruction of the church records in Cebu City <See annex "A"J, Suntiago cannot present the baptismal certificate of his mother. 1'o prove that his mother was a citizen of the Philippines prior to her marriage to an alien, he ha.s adduced the S\'fOrn statements of Oscar A. Kintanar, Special Council for the province of Cebu and Don Filemon Sotto, practicing attorney in Cebu City (see Annexes "C" and "D", respectivdy) , wherein each declared that Santiago's mother, Salud Carbonell, is the daughter of spouses Santiaga Carbonell and P11.uhi. Ni.:ila, both Filipinos. This assertion is substantiated by Messrs. Juan Svlidad and Teodoro Fiel, both resi<lcnts of Sibonga, Cebu, who declared in their joint e ffidavit <Anne:< ''E"> that being neighbors of the Carbonell family they know personally that Salud Carbonell was a Filipino citizen before her marriage to her alien husband, she being the legitimate daughter of Filipino parents, Santiago Carbonell and Paula Niala, both residents of the same town, Sibonga, Cebu, These sworn statements, especially the first two, being those of well-known, distinguished and l'E'Spectable citizens, deserve weight and credence and may be accepted as 82..tisfactory proof that Salud Carbonell, applicant's mother, wns a Philippine citizen before hf'r marriage to her Chinese husband That the herein petitioner is the Santiago C. Phua who is thf' legitimate son of Salud Carbonell and who took the CPA examinations in June, 1953, is confirmed by Messrs. Buenaventura Veloso and Filemon Sotto, who both declared that they stood as sponsors dm·ing Santiago's baptism and confirmation respectively Csee Annexes "F" and "D"l . It having been established that he is the legitimate son of a Filipino woman, Santiago has the right, upon reaching the age of majority or within a reasonable time thereafter, which period has been fixed to three years, to elect Philippine citizenship in accordance with the aforecited constitutional provision and Commonwealth Act No. 625. Petitioner was already twenty-four years, ten r.ionths and nine days old when he made his election on J une 21, 1951, ten months and nine days beyond the proper period. He alleg~s that the delay in making his election waS due to the fact that he honestly and firmly believed that he is a Filipino because he was born in the Philippines of Filipino mother; he did not register in any foreign ccnsulate or embassy; and he had never gone to China since his birth. To bolster his claim, he cited the fact tha.t he had taken the ROTC basic course; and that he participated in the general elections in 1953, a duty and privilega extended only to Filipinos. In the opinion of this Department, the foregoing circumstances may be considered sufficient justificat.ion for the petitioner's delay in making his election of Filipino citzenship. Hi~ election may therefore be considered as having been made within the proper period end should be accorded legal effect. Accordingly, Santiago C. Phua hus become invested with Philippine citizenship and the result of his examination for CPA in June 1953, maybe released. <Sgd . J PEDRO TUASON Secretary of Justice (Opinions of the Depa'1'trn.ent of Justice not binding upon. tM eourts of Justice. It is the policy of said department not to render opin.imis on questions sitb-;udice.) 1st Indorsement Marcl1 12, 19?4 Respectfully returned to the Honorable, the Executive Secrdary, Manila. Inviting attention to the opinion of this Department dated June 1, 1946, a copy of which is herewith attached for i·eady reference. Herein it was held that permanent appointments mad~ by the President under Section 10 of the Commonwealth Act No. 357, the fc.rmer Ele<:tion Code, need the confi1mation of the Commission on Appointments. Section 21 of the Reovised Election Code, Republic Act No. 180, is substantially similar to Section 16 () f Commonwealth Act No. 357. This office is informed that it is an actual case pending before the Court of First Instance of Batangas C Lipa City Branch> invclving the mayorship of Rosario, Batangas, wherein one of the the principal issues raised is the necessity of confirmation by the Commission on Appointnwnts of the appcintment of the municipal mayor extended by the President under Section 21 of t...l1.t Hevised Election Code. In view of the established policy not to Jt'nder opinion on questions snb ;udic<; and considering that the opinion of this Department is not binding upon the courts of justice; the undersigned deems it prudent to refrain from ~xi.oressing cases of appointments made by the President under Section 21Cbl of the Revised F.le.~tion Code, it 1 s suggested that, unless otherwise ruled by competo.:Ht courts, action thereon may be taken in accordan<'e with the ruling of this Department mentioned above, Sgd. PEDRO TUASON Secretary cf Justice ---000-OPINION NO. 65 -----(Opinion on the question 1111 to u•fr.ttlier a dec,,.ec of divorce ob. t11tned in " S u.ioon court b11 two F ilipinu nationals may be recognized in the Philippit1es). 2nd Indor.sement March 18, 1954 Respectfully returned to the Honorable, the U11dersecretary of Foreign Af!airs, Manila. The undersigned concurs ln the views embodied in tht- proposed dispatch of the Department to the Philippine Minister to Bangkok, Thailand regarding the validity of a. decree of divorce granted by a Saigon Court to two Filipino nationals residing in Saigon. It is true that no law expressly pr?vicles that a decree of divorce obtained in a foreign court would be recognized in th~ Philippines. By the suppression of the pro~ision relative to absolute divorce and the retentir>n of only those pertaining to legal separation in the r>riginal draft of the present Civil Code, Republic Act No. 386, nnd the abrogation of Act No. 2710, otherwise known as the Divorce Law, affirms the clear intention of the legislature to abolish the existence of absolute divorce in this country as a matter of public policy. The family is a basic institution which public policy cherises and protects (Art, 216, Ci'Yil Code).' All presumptions favor the solidarity of the family .::rnd every intendment of law or fact leans toward the validity of maniage and the indissolubi!ity of the marriage bonds (Art. 217, Ibid) , Laws r elating to·fanuly rights and duties, or to the status, condition and the legal capa.city of persons are binding upon citizens of the Philippines, even though living abro:i.d <Art. 15, Ibid). Prohibitive laws governing persons, their ads or 9roperty, and those which have for their objfct public order, Jiublic policy and good customs shall not be rendered ineffel!tlve by 312 THE LA WYERS JOURNAL June 30, 1954 REPUBLIC ACT NO. 1186 AN ACT TO Al\IEND AND REPEAL CERTAIN SECTIONS OF REPUBLIC ACT NUMBERED TWO HUNDRED AND NINETYSIX, OTHEJ:tWISE KNOWN AS "THE JUDICIARY ACT OF 1948" AND FOR OTHER PURPOSES. Be it enacted by tltc Sennte and HmtslJ of Representatives of the , Plnlippines in Congress assembled: SECTION l. Sections eleven, twenty-eight, forty, forty.one, forty-two, the second, third, <leventh and twelfth paragrnphs of section forty.nine, fifty, fifty-~me, fifty-tw"'• the second, third, fourth, fifth, seventh, tenth, and eleventh subpuragraphs of the second pamgrnph of section fifty.four, a.nd sCction sixty of Re11ublic Act NuJllbered Two hundred ninety. six, as amended, nrc &mended to i·ead as follows: "SEC. 11. A ppointment ll1!cl compen11ntfon of Justices 9f the S!tpremc Court. ·- The Chief ,Justice and the Associate Ju11tices of the Supreme Court shall be appointed by the P resident of the Philippines, with the consent of the Commission on AppC'intmenbJ. The Chief Justice of the Supreme Court shall receive a compensation of twenty-one thousand pesos pe1· annum, a.nd each Associate Justice shall receive a compensation of twenty thousand pesos p£r annum. Thf:- Chief Justice of the Supreme Court shall be so designated in his commission; and the Associate Justices shall have prccedencP. according to the dates of their rei;pectivc commisstons, or, when the commissions of two or more of then\ bear the samEdate, aC"cording to the oi·der in which their commis1tions me~ have been issued by the President of the Philippines: Provided, how£.t:~r, That any member of the Supreme Court whri has be<!n re. &ppointed to that. Court after rendering sen•ice in 11ny other branch of the Government shall retain the precedence !:o which he is entitled under his original appointment and his service in the Court shall, to a.II intents and purposes, be consider.'.!d as continuous lind uninterrupted. "SEC. 28. Qualifica.tions ·.ind c<mipeiu1Itio1? of Justices of Co1!t·t of A ppeals . .:_ The Justices cf the Court of Appealo shall have the s.'tme qualificatirins as thcise providf)ct in the Constitution for members of the Supreme Court. 'l'he Presiding Juslice of the Court of Appeuls shall recei\"e an «nnual compensation of sixteen thousand peso~. nnd each Associate Justice, an c1.n11ua.I compensa. tion of fifteen thousand pesos. "SEC. 40. Judgep of F frst Instance. - The judicial iunction in Courts of First. Instance shall be vested in District Judges, to be apJ>Ointed and commissioned as hereinafter provided: P rovided, llowei•er, That those who are District J udges at the time of the approvcl of this amcndatory Act shall continue as such in their respective districts without need '1f new appointments by the P res. ident of the Philippines and new confirmations by the Commissiou on Appcintments. "SEC. 41. Limitation. upon temue of office. - District Judge& shall be appointed to serve during good behavior, until they rPach lhe ngc of sevent}-· years, or become incapacitated to discharge the duties of their office, unless soont>r rPmoved in accord:mr.e with Jaw. "SEC. 42. Qualification tmd sala.ry. - No person sha.ll be n11pointed District. Judge unless he has been ten year& a citizen of the P'hilippines and has practised law in the Philippines fol' a period of not less than ten years '1r has held during a like period, within the Ph.ilir>pines, an office requiring admission to the praclaws or judgments promulgated or by determinations or conventions agreed upon in a foreign comt (Art. l'i, par. 5, Ibid). Divorce is to effect a changP in the civil status of those to whom it is granted. Since the status of Filipino citizens residing abroad is governed by Philippine laws, and wnsidering that public policy frowns upon divorce as being rPpugnant to good morals and distruct.ive to public order, it is belieYed that a decree of divorce granted by 11 foreign court to Filipino nationals residing abroad tice of law in the Philippines as an indispensable requisite. 'The District Judge shall ·receive .a compensation at the rate 11f twelve thousand pe-;os per a:nnum. "SEC. 49. Judicial districts. - Judicial districts for Courts oi First Instance in the Philippines are constitutl!d as follows: "The First J udicial District shall consist of the Provinces of Ca.gayan, Datanes, lsabela, and Nueva Vizcaya; "The Second Judicial District, of the Provinces of Ilocos N'1rte, Uocos Sur, Abra, City of Baguio, Mountain Province and La Union; x x "The Tenth Judicial District, of the Pr0vinces of C&lllarines Sur, Albay, Catnnduanes, Sorsogon and Masbate; "The Eleventh Judicial District, of the Provinces of Capiz, Romhlon and Iloilo, the Ci°ty of Iloilo a.nd the Province of Antiqul!: "SEC. 50. Jud,qes of First In.stance for J'll.dicial Districts. - Five judges shall be commissioned for the First Judicial District. Two judges shall preside over t.he Courts of F irst Instance of Ca.. gayan and Batanes, and sh111l be known 11s judges of the first and second branches thereof, respectiv€ly, the judge of the second branch to preside 11\so over the Court of First Instance of Batanes; two judges shall p1·eside over the Court of First Instance of Isabela, 11nd shall be known a.s the judges of the first and second branches thereof; 11nd one judge shall preside over the Court of First Instance of Nueva Vizcaya. "Seven judges shall be commissioned for the Second J udicial District. Two judges shall preside over the Court of First Instance of !locos Norte; two judges shall preside over the Court of First Instance of Ilocos Sur; one judge shall preside over the Court of First Instance of Abra; one judge shall preside ever the Court of First Instance of the City of Baguio and Mountain Province; and another judge shall preside over the Court of Firi;t Instance of La Union. "Six judges shall be ccmmissioned for the Third Judicial Dis. trict. Five judges shall preside over the Court of F irst Instance of Pa.ngasinan and shall be known as judges of the first, second, third, fourth and fifth branches thereof, respectively; two judges shall preside over the Court of First Instance of Lingayen to bo known as the judges of the firat branch and the second branch, respectively; two judges shall preside over the Court of First Instance. of the City of Dagupan and shall be known as the judges of the third and fourth branches thereof, respectively, and one and shall be known as the judge of thf' fifth branch. One judge judge shall presidf' over the Court of First Insta.:1ce of Urdaneta .shall preside over the Court· of First Jnst..ance of Zambales. " Five judges shall be commissioned for the Fourth Judicial District. Three judges shall preside over the C,iurte of F irst Jnstance of Nueva Ecija and Cabanatuan City and shall be known as judges of the first, second, and third branchP.s thereof, res. i:ectively; and two judges shall preside over the Court of First Instance of Tarlac, and shall be known as judges of the first and will not be recognized a.s binding in this jurisdiction. The personal relations of the citizens of this Islands cannot be affeeted by decrees of foreign countries in a manner which our government believes is contrary to public order and g~od morals. tBarrcto Gc.nzales VII. Gonzales, 58 Phil. 67, 72> . (Sgd.) PEDRO TUASON Secretary of Justice J une 30, 1954 THE LAWYERS JOURNAL 813 second brenches thereof, respectively. "Five judges shall be commissioned for the Fift;h Judicial Dis. lr:ict. Two judges shall prcRide over the Court of l":rst Instance of Pampanga and shall be known as judges of the fil·st and second branches thereof, respectively; one judge shall preside ove1· the Court of First Instance of Bataan; and two judges shall preside over the Court of First Instance of Bula.can and shall be known us judges of the first and second branches thereof, rcs11cctivcly. "Eighteen judges shall be commissioned for the Sixth Judicial District. They shall preside over the Courts of First Instance of Manila and shall be known as judges of the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixl.e<'nth, seventeenth and eighteenth bran<'hcs thereof, i·espectively. "Eight judges shall be commissioned for the Seventh Judicial District. Five judges shall preside over the Courts of First, In. stance of the Province of Rizal, Quezon City and Pasay City and shall be known as judges of the first. second, third, fourth and fifth brnnches thereof, respectively; two judges sh'.l\! preside over the Courts of First Instance of the Pro,•ince of Cavite and the Cities of Cavitc and Tagaytay, and shall be known as ju8ges of the first and second branches thereof, respectively; and one judge shall preside O\•er the Court of First lnstaJJce of e:ilawan. "Seven judges shall be commissioned for the Eighth Judicial District. Three judges shall preside over the Courts of First In::."'tance of Laguna and the City of San Pablo, and shall be known as judges of the first, second and third bra.nchc:; thereof, res. pectively; three judges shall preside over the Cour~!! of First Instance of Batangas and the City of Lipa, and shall be known as judges of the first, second and third branches thereof, respectively; and one judge sl1all preside over the Courts of First Instance or' Mindoro Oriental, Mindoro Occidental and Ma.rinduque. "Four judges shall be commissioned for the Ninth Judicial DiS'~ trict. Three judges shall preside over the Court of First Instance of Quezon and shall be know as judges of first, second, and third branches thereof, respectively; and one judge shall presidf' over the Court of First Instance of Camarines Norte. "Seven judges shall be commissioned for the Tenth Judicial District. Three judges shall preside over the Courts of First Instance of Camarines Sur and Naga City and shall be known as judges of the first, second and third branches thereof, respectively; two judges shall preside over the Court of First Instance of Albay t.nd Legaspi City and of Catanduancs and shall be known as judges of the first and second branches thereof; one judge shall preside over the Court of First Instance of the Province of Sor. sogon; and one judge shall preside O\'er the Court of First Instance of Masbate. "Seven judgts shall be commissioned for tl1c Eltvcnth Judi. cial District. Two judges shall preside over the Courts of Fir:;t Instance of Capiz and Romblon and !!hall be known us judges of the first and second branches thereof, respectively; thl' judgP of the first branch to preside also over the Court of First lnstancl! cf Romblon; and foul' judges shall preside over the Courts of First Jnsta.nce of the Province of Iloilo and the City of I!oilo, and shall be known as judges of the fil'St, second, third, and fourth branches thereof, 1·espcetivcly; and one judge sht.11 preside over the Court of First Instance of the Province of Aniique. "Six judges shall be commissioned for the Twelfth Judicial District. Four judges shall preside over the Courts of First ln:;tance of Occidental Negros and the City of Bacclod, and shall be known as judges of the first, second, third and fourth branches thereof, respectively; and two judges sha.11 preside over the Courts of First Instance of Oriental Negros, Dumagucte City and the Sub-province of Siquijor. "Nine judges shall be commissioned for the Thirteenth Judicial District. Three judges shall preside over the Courts of First Instance of Samar and C3lbayog City and shall be known as judges of !ht> first, second and third branches thel'COf, respectively; and six judges shall preside over the Courts of First Instance of Leytc and the Cities of Ormoc and Tacloban, and :;hall be known m; judges of the first, second, third, fourth, fifth and sixth branches thereof, respectively. "Six judges shall be com1nisioned for the Fourteenth J udieial District. Five judges shall p1:esidc over the Courts of F irst Instance of the Province of Cebu and the City of CeLu, anrl shall be known as judges of the first, second ,third, fourth and fifth branches thereof, respectively ; :wd one judge shall preside over thP Court of First Instance of Bohol. "Five judges shall be commissioned for the F ifteenth Jndicia! District. One judge shall preside over the Court of First l nstanct> of Surigao; one judge shall preside over the Courts of First Instance of Agusan and Butuan City; 011e judg~ shall presid~ ever the Courts of F irst Instance of Oriental Misami::; and Cagayan dt Oro City; one judge sha.11 preside over the Court of First In. stance in the Province of Bukidnon; and one judge shall presid!' ever the Court of First Instance of Lanao and tl1e Cities of Dan. srilan and Iligan. "Nine judges shall be commissioned for the Sixteenth Judicia1 District. Three judges shall preside over the Coi.:rts of F irst Instancf' of Davao and Davw City; two judges shall preside uver the Com·t of First Instance of Cotabato; one judge shall preside over th(> Courts of First lrn:tancc of Occidental Misamis and Oza mis City; one judge shall pre:sidc O\'er the Court of First Instance of ZamLoanga de\ Norte; enc judge i;hall preside over the Courts of First lnstl!.nce of Zamboanga de\ Sur and Zamboanga City; and one judge shall preside .:>vet· the Courts of First Instance of Sulu and Basilan City. "SEC. lil. Detail of judge to a11other district or provi11ce. - Whenever a judge stationed in any province or branch of a court in a province shall certify t o the Secretary of Justice that. the condition nf the dl')Ck('t in his court is such as to require the a..q. sist:mce of nn additional judge, or when there is a:1y vacancy in uny court or branch of a court in a province, the Sccre:ary of Justice may, in the interest of justice, with the approval of the Supreme Court and for a period of not more than three months for each timo, assign any judge of any other cou1't or province whose d"cket permits his temporary absence from said court, to hold sessions in the court nccdin~ such assistance, or where such vacancy exists. No judge so detailed shall take cognizance of any cf.Se when any of the parties thcrf'to objects and Lhe objection is sustained by the Suprcmt> Court. "SEC. 52. Permanent stations of district judges. - The per. manent station of judges of the Sixth Judicial District shall be in the City of Manila. ''In othe1· judicial districts, the permanent stations of the judges shall be as follows: "Por the First Judicial District, the judge of the first branch of the Court of First Instance of Cagayan shall Le stationed in the Municipality of Tugucgarao, same province; the judge of tho second branch, in the Municipa.lity of Aparri, same province; one judge shall be stationed in the Municipality of Ilagan, Province of lsabcla.; one judge shall be stationed at Cauay!H~, Isabela; and another judge, in thf' Municipality of Bayombong, Province of Nueva Vizcaya. "For the Second Judicial District, two judges shall be stationed in the Municipality of Laoag, Province of !locos Norte; two judges in the Municipality of Vigan, Province of Ilocog Sur; one judge, in the City of Baguio, Mountain Province; one judge, in the Municipality of Bangucd, Provine!.' of Abra; and one judge, in the Municipality of San Fernando, Province of La Union "For the Third Judicial District, two judges shall be station~ 314 THE LA WYE HS JOURNAL June 30, 1954 fn the Municipality of Lingayen, Province of Pangasinan; two judges shall be stationed in the City of Dagupan; and one judqe in the Municipality of Iba, Provin::e of ZambaleR; and one in thP Municipality of t;rdnneta. "For the Foul'th Judicia.l Di.itrict, three judges shall be stationed in the City of Cabantuan, and two judges in the Municipality of Tarlac, Province of Tarlac. "For the Fifth Judicial District, one judge shall be stationed in the Municipality of San Fernando, Province of Pampanga: and one judge shall be stationed in the Municipality of Guagua, Province of Pampanga; one judge in the Municipality of Balanga, Province of Bataan; and two judges, in the Municipality of Ma. Joios, Province of Bulacan. ''For the Seventh Judicial District, the two judges of the first and second branches of the Court of F irst Instance of Rizal shall be stationed in the Municipality of Pasig, same province; that of the third branch, in Pasay City; and those of the fourth and tifth bl-anches, Quezon City; one judge, in the Municipality of Puerto Princesa, Province of Palawan; and two judges. in the City <ii Ca.,·ite. "J<'or the Eighth Judicial District, two judges shall be ttta.. tioned in the Municipality of Biilan and the Municipality of S:mta Cruz, Province of Laguna, respectively, and one judge ,in , the City of San Pablo; the judge of the first branch of the Court of First Instance of Batangas shall be stationed in the Municipality of Bantangas, Province of Batangas; an.i those of thP second and third branches ,in the City of Lipa and the Municipality of Balay&n, Province of Batangas, respectively; and one judge, in the Municipality of Calapan, Province of Mindoro Oriental. "For the Ninth J udicial District, the two judges shall be stationed in the Municipality of Lucena, Province of Quezon; one judge shall be stationed in the Municipality of Gums.ca, in the same province; and one judge, in the Municipality of Daet, Province o! Camarines Norte. · ''For the Tenth Judicial District, three judges f.hall be stationed in the City of Naga, Province o! Camarines Sur; two judge!J k Legaspi City; one judge, in the Municipality o! Sorsogon, Prov. Ince of Sorsogon; e.nd one judge. in the Municipality of Masbate. Province of Masbate. "For the Eleventh Julicial District, one judge shall be stationed in Roxas City and Romblon; and one judge, in the Municipality of Calivo, Province of Capi21; and four judges, in the City of Iloilo; and one judge in the Municipality of San Jose de Buenavista, Province of Antique. "For the Twelfth Judicial District, four judges shall be stationed in the City of Bacolod; two judges, in the City of Dumaguete. "For the Thirteenth Judici2.I District, the judge of the first. branch of the Court '"J! First Instance o! Samar ahall be stationed in the Munidpality of Catbalcgan, Province of Samar; the judgP of the second branch, in the Municipality of Borongan, same prov. ince; and the judge of the third branch, in the Municipality ot Laos.Jig, same province; the judges of the first and second branches of the Court of First Instance of Lcyte shall be stationed in th9 City of Tar.Joben, the judge of thC' third branch, in the Municipality of Maasin, Province of Leyte; the judge of the fourth branch, in the Municipality of Baybay, same province; the judge of the fifth branch ,in the City of Ormoc; and the judge of the sixth bram:h, in the Municipality of 0.iriagra, Leyte. ''For the Fourteenth Judicial District, fiv:e judges shall be ~tationed in the City <lf Cebu ~nd one judge, in ... J1e Municipalit) of Tagbilaran, Province of Bohol, "For the Fifteenth Judicial District, <lJle judge shall be statioMd in the Municipelity of Surigao, Provine; of Surigao; one judge, in the City of Cagayan de Oro; one judge, in the City o! Da.nsalan; one judge, in the Municipality of Malaybalay, Province of Bukidnon; and one judge, in the City of Butuan. "For the Sixteenth Judicial District, three judges shall be stationed in the City of Davao, Province of Davao; two judges in the Municipality of Cotabato, Province of Cotabato; one judge, in the Municipality of Oroquieta, Province of Occid1mtal Misamis; one judge, in the Municipality of Dipolog, Province of Zamboa.ngn del Norte; one judge, in the City of Zamboanga; and one judge in the Municipality of J olo, Pl'Ovince of Sulu.0 "SEC. 54. Places and time of holding Court. - x x "Second Judicial District : At Bontoc, Mountain Province, Oil the first Tuesday of March, June, and November ('f each ye!lr; and, whenever the interest of ju.iticc so require, a special term of court shall be held a.t Lubuagan, Subprovince of Kalinga. "Seventh Judicial Distdct: At Coron, Province of Palawan. on the first Monday of June and November of each year; and at Cu;vo, same province, cin the second Thursdav of June and Novembn of each year. 11Eight Judicial District: The judge shall h:ild special term a.t the municipalities of Lubang, Mamburao and Snn J ose, Mindoro Occidental; Pinamalayan and Roxas, Mindoro Oriental, onr.e every year, as may be determined by him; at Buac, Province of Marinduque, on the first Tuesday of March, July and October of each year. "Ninth Judicia.l District: At Infants, Province of Quezon, fur the municipalities of Infanta, Cak;iguran. Baler and Polillo. on the first Tuesday of January .and J une of each year. "Eleventh Judicial District: Al Culasi, Province of Antique, on the first Tuesday of December of each year. "'Fifteenth Judicial District: At Centilan, Province of Surigao, on the first Tuesday of August of each year; a special term of court shall also be held once a ytar in either the Municipalit.y of Tandag or the Municipality of Hina.tuan, Province v! Surigao, in the discretion of the di$trict judge; at Mambaja.o, Province of Oriental Misamis, on the first Tuesday of March of each year. A special term of court shall, likewise, be held, once a year, either in the Municipality of Talisayan or in the Municipality of Gingoog, Province of Oriental Misamis, in the discretion of the district judge; et Iligan, Province o! Lanno, on the first Tuesday of March and October o! each year, and at any time of the year at the Municipality o! Baro~·· "Sixteenth Judicial District: At Dipolog, Pr.wince of Zamboanga de! Norte, terms of court shall be held at least four times a year and in the Municipality of Sindangan of said province, on dates to be fixed by the district judge; at Pagadian, Zamboanga del Sur, at least three times. a year; at Isabela, City of Basila.n, at least four times a year on dates to be fixed by the district judge; at Baganga and Mali, Province of Davao: and at Gian, Province of Cotabato, terms of court shall be held at lea!lt onc.P a year on dates to be fixed by the district judge. "SEC. 60. Division of business among branche~ of Court of Si:ttk District. - In the Court of First Instanci:! of the Sixth District all cascg relative to the registration of real estate in the City of Manila and all matters involving the excreise of the powers conferred upon the fourth branch of said court or the judge thereof in reference to the registration of land ~hall be within the exclusive jurisdiction of said fourth branch and shall go or be assigned thereto for disposition according· to law. All other <Continued on n?:r.t page) June 30, 1954 THE LA WYERS JOURNAL 815 RAPE OF THE JUDICIARY BY' REP. DIOSDADO MACAPAGAL Among the piling !'ills of the party in power can be included the enactment into law of H. Bill No. 1961 which, in the guise of judicial reorganization, will remove from office thirty. three judges at large and cadastral judges. The pica of the op11osition to avoid this rape of the judiciary fell on majority ears that have become deaf to the call of justice but keen in hearkening to the siren call of political patrc>nage to create positions for office-hungry political proteges. The remo\•al of these judges tramples upon the constitution. It plunges a dagger into the heart flf judicial independence. It directly transgresses the constitutional JH'O''ision providing' that "The members of the Supreme Comt ::ind all judges of infel'ior courts shall hold office during good beha.vior, until they reach the aie of seventy years, or become incapacitated to discharge the duties of their office.'' Dr. Jose M. Aruego, chronicler of the proceedings of the eonstitutional convention, attests that this provisio1~ is the sinew that gives strength to judicial independence: "The convention i;ought to secure the independence of the judiciary through the provisions tc the effect (1) that the members of the Supreme Court and ::ill judges of inferior courts shall hold office during good bdw.vior, until they rez.ch the age of seventy years, or become incapacitated to discharge the duties of their office." The party in power invokes the power of Congress to create inferior courts under the constitutional provision 1hat: "The judicial power shall be vested in one Supreme Court and in such inferior courts as may be established by law." But in the words of Justice Jose P. Laurel in the case of "Zandueta vs. de la Costat 6li Phil. 615, "the principles embodied in these two sections of the same article of the s:onstitution musl be coordinated and harmonized." Justice Laurel said further: "Cases may arise whert! the violation of the constitution regarding security of judicial tenure is palpable and plain, and that legislative power of reorganization may be sought to cloak an unconstitutional and evil purpose. When a case of that kind arises, it will be time to make the hammer fall and heavily.'' The case en\'iSagcd by Dr. L::iurel has arisen in this measure. REPUBLIC ACT NO. 1186 . business appertaining t~ the Court of First Instance (If said dis. trict shall be equitably distributed amcng the judges of the eighteen branches, in such manner as shall be agreed upon by the judges themselves; but in pr0ceeding to i;uch distribution of the ordinary cases, a smaller _,,hare shall be assigned to the fourth branch, due & ccount being taken of the amount of land registratiOH work which may be 1·equired of this branch: Providecl, however, That at. least four branches each year shall be assigned by rotation to try only criminal cases. "Nothing contained in this section and in section sixty-three sh2.ll be construed to prevent the temporary designation of judges to act in this district in accordance with scclion fifty-cme." SEC. 2. Whenever the w .. ll"ds "J udgc-at-Larg:!" or "Cadas.tral J udge" appear in Republic Act Numbered Two huudred ninety. six, the same shall read "District J udge". SEC. 3. All the present district judges shall continue e.s such, but if any district judge is commissioned for the Courts of First Instance of two provinces, and a sepa1·a.te J.istrict judge has been provided for herein for one of such courts, the former shall The pui·pose of tl1is enactment is avowedly to prevent the transfer judges of first instance from one province to another known as "rigodon de jueces." This objective can be carried out without removing the present judges by. changing their designation and prohibiti11g their transfer except within the same judicial district. The power to create courts must be exercised without remo\'ing the inc1.nnbent judges, particularly where their removal is not css:ential to thE' purpose of the judicial reorganization. It follows that the removal of the incumbent judges is a politic::i.l move made at the sacrifice of judicial independence which is c::insecrat1::d in the fundamental law. This assault on the constitution by the ruling party is aggravated by the fact that in paragraph V of Lhe 1953 Nacionalista platform, the party committed itself solemnly "to maintain an independent judiciary." By its consistency in reversing its election pledges, the uew Nacionalista p'lrty m::iy yet go down in our fl'Jlitical history as the '!Jarty of broken promises. Wi\h the precedent establishec! in this bill, ev'.:!ry new party in power will follow this infamous example, abolish the positioJns of incumbent judges, and empltly its own men. Secmity of judicial t~nure therehy become~ a fiction. J udges will be induced to takP. sides in political fights knowing lhat their stay in office will depend on which party will win. J udicial independ~nce is thereby com1 ertcd into sycophancy to the political gods. This political assault on the courts also partakes of cruelty and ingr~titndc if it is considered that before the election the N:iC'ionalista party hailed the judiciary as truly the last bulwark of democn1.cy against the alleged tyranny of the past administration for deciding case after case involving acts of the Liberal administration against the latter. Now that the N':lcionalista party won partly through the moral support of the judiciary, it seeks to transform the latter from n. bulwark of democracy into political bvoty. The pi·ostitution of the judicial independence by the majority party not OHly a1·ouses the conscience ngainst this conversion of the constitution into a scrap of paper to sati2.te a lust for political patronage, but also induces despair at the cryst::i.lizing truth that there has been a change of adminiio.trution but no change in official morality. have the option to select the court over which he shall <;ontinue to preside and notify the Presid:mt of his selection within a rca. sonable time. If the number of branches in any Court of First Instance has been increased, the district judge presiding over any branch thereof in a particular place shall continue to preside ove1 such branch notwithstanding a change in its number under thP pl'Ovisions of this Act. All the existing poi:;itions of J udges-at-Large and Cadastral J udges arc abolished, :md section fift>'-three of Republic Act Num. bcrcd Two h1u1drcd ninety-six is hereby repealed. SEC. 4. Any judge.at-largo:! 01· cadastral judge who shall not be appointed as district judge by virtue of the provisions of this Act, shall be given a gratuity in an amount of one month's salary for each year of service of such judge, the. total amount not to exceed the salary for one year. The sum necessary to carry out the provisions of this Act is hereby appropriated. SEC. 5. This Act shall tab effect upon· its approval. Approved, 316 THE LAWYERS JOURNAL June 30, 1954 MISSING PAGE/PAGES