The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Vol. XIX, No.11 (November 30, 1954)
Year: 1954
Rights
extracted text: JM~A JOUR VOL.UME XIX VICENTE J. FRANCISCO Editor and Publisher LOPE E. ADRIANO RODOLFO .t. FRANCISCO Assistant Editors ADELA OCAMPO Business Manager RICARDO J. FRANCISCO Assistant Business Managet THE LAWYERS JOURNAL is published monthly by Sen. Vicente J. Frandsco, fom1er delega.te to the Constitutional Convention, practising attorney and P resident of the Francisco College (formerly 1'~rancisco Law School>. SUBSCRIPTION . AND AD. VERTISING RATES: Sub. aeription: P18:00 !or one year; Pl0.00 for 6 months. Advertising: Full pa~ - P105.00; Hal~ page - t65.00; MAY REBELLION BE COMPLEXED WITH OTHER CRIMES? - By Bern:irdo Stuart del Rosario OPINIONS OF THE SECRETARY OF J USTICE: Opinion Nos. 55, 68, Ml, 70, 72; 76; 79; 149; 155 and 157 •. JJECISION OF THE UNITEI:. STATES SUPREME COURT: Pereira.and Brading vs . U.S. - Chief Justice Warren SUPREME COURT DECISIONS: H. E . Heacock Co. vs. National Labor Union et al. NUMBER I 529 533-539 ••• - Chief Justice Paras . . . 544 Galanza vs , N uesa - Chief Justice Paras ..... , .. , , • . . 546 Buhat et al. vs. Besana et. al. - Chief Justice Paras . . . . • . . . . . . 546 Chuy vs. :Philippine Ame1 ·ican Life Insurance C',ompany - Justice Pablo 547 Perkins vs. Benguet Consohd:i.ted Mining Company et al. - Justice Pablo . . . . . . . .. .. . . , . . . , 549 Feldman vs. Judge Encarr.aci.on - Just ice Padilla . . . . . . . . • • 552 De la Cruz vs. Nor thern Theatrical Ente1·prises Inc. , et. al. - Justice Montemayor . . . . . 354 Enriquez et al. vs. Hon. Panlilio - Judge Montemayor . . . . . 555 Go ct al. vs. Go et al. - Justice Bautista Angelo . • . • • • . . . • 556 Banclos de Espi:n11goza et al. vs. Judge 1.'11n - Justice Bautista Angelo 559 Jalandoni vs. Sarcon - Justice Bautista Angelo 560 Marc Donnelly & Associates Inc. vs. Agl'egado et al. - Justice Bauti:;ta Angelo , , •. , .• , • . . . . . . . • . . . . . . . • . . . • . . . . . 563 Arnido vs. Francisco - Justice Labrador . .•. . . .. . .. . . . .... . . , • . . . S68 Cabuyao vs. Caagbay - Justice Concepcion 569 DECISION OF THE COURT OF INDUSTRIAL RELATIONS: Hotel & Restaurant Free Workers C FF \V) vs. Kim San Cafe & Restaurant et al. - Judge Lanting . 571 UIGEST OF DECISIONS OF THE COURT OF APP EALS . • . . . . 57i.o lU~PUBLIC ACTS: Nos. 1052, 1053 and 1057 . . .. .. . . .. . . . .. •... . . T EXAS LAWYER TALKS O!\ JURY SYSTEM AT FRANCISCO COLLEGE 579 i'>SU One-fourth page - P.f.5.00; One..e.ight page - P85.00; One•ixteenth page P25.00 Entered aa second clo.u mail matter at the Post Office. BUSINESS OFFICE: 1192 Ta.ft Ave.nue, Manila. Tel. 5-.f.S...55 NOW OFF THE PRESS EVIDENCE (Revised Edition) By VICENTE J. FRANCISCO ember, Philippine Bar Francisco College n civil and criminal cases. Ea h provision -is .,cussed and illustrated. Co t ins leading cases deed by the Philippine and American Courts. Lawyers and law students alike will find this revised and en~ 1arged edition a very useful and handy reference. Price: P40.00 Additional Pl.20 per copy for provincial orders. EAST PUBLISHING 1190 Toft Ave., Monild Tel. 5-43-55 EAST PUBLISHING 1192 Taft Avenue Manila Tel. 6-43·55 FRANCISCO LAW BOOKS IN SERIES REVISED LIST OF PRICES AS OF JULY 15, 1954 Civil Law in 4 Vols. P30.90 per volume .. Trial Technique and Practice Court in 5 Vols. Criminal Procedure & Forms in 2 Vols. 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Statutory Construction . . . .....•...... Taxation ... Torts and Damages 095( EditionJ Pre-Bar Re\•iew on Adm. Law & Election Law . Pre.Bar Review on Civil Procedure <Pleadings> Prt";.Bar Review on Corporation Law & Sec. Act. Pre-Bar Review on Cl'iminal Procedure Pre-Bar Review on Evidence Pre.Bar Review on Land Registration & l\lortg. Pre-Rar Review on ?ttercttntile Law • , , ... , •. Pre-Ba.r Review on Polilical Law Pre-Rar Review on Private International Law , . Pre..Bar Review on Public International Law .. STILL IN THE PRESS Administrative Law Corporation Civil Procedure Evidence in Ci\'il Cases Legal Forms .. Public Corporation Public Officers .. P'I23.60 164.50 30.90 61.80 61.80 35.45 8.25 25.75 28.00 IO.SO 12.60 25.75 15.45 8.25 12.35 15.(5 9.SO 12.40 12.35 6.20 10.30 8.25 6.20 IO.SO IO.SO 8.70 6.20 10.so 8.26 10.60 8.25 8.25 51.50 5.50 10.30 10.so 12.50 6.45 6.(5 6.45 6.45 IO.SO 6.45 8.25 6.45 5.45 5.4.b r so.90 41.20 51.50 51.50 25.75 25.75 25.75 NOTE: Prices nre subject to change without notitt. For provincia.l orde.re, additional Pl.20 per book i• charged !or mailing and handling upense:i. MAY REBELLION BE COMPLEXED WITH OTHER CRIMES? B'/I: Bernardo Stuart dd Ro11ario ll,.B., D.C.f,, {fl(' de i'll w l ril/) Member, PJ1ili11pine Beu Bernardo Stuart del Rosario The courts have had no occasion to rule squarely on the question of whether rebellion complexed with other crimes can legally exist. Justice Tuason opined that there is no such creature known to Jaw (Nava vs. Gatmaitan, GR L4855 ; Hernandez vs. Montesa, GR L-4964; Angeles vs. Abaya, GR L-5102). But our postwar government prosecutors seem to be of the contrnry view. In t he so-called politburo and other rebellion cases, they have been making charges of rebellion complexed with other crimes. The !>Bmi> is done in the rec::-nt case of Luis Taruc, which has currently occupied the headlines. Are the government prosecutors influenced by the putlic clamor to "lhrow thfl book'' at the surrendC'ring Huk Supremo ii1stcad of being guided by the correct t.ppraisal of applicable laws? 1. The law and reason for comple:i: crimes.-According to Art. 48 of the R~vised Penal Code, a complex crime can be committed only in eithP.r of two instances: first, when a single act constitutes two or more grave or less grave felonies; and, secofidly, when an offense. is a necessary means for committing the other. Although a provision on complex crimes similar to our own ia found in the Penal Code of Spain CArts. 77, Code of 1850; 90, Code of 1870; 75, Q:ide of 1932; 71, Code of 1944>, said provision, hewcver, had never been resorted to for the purpose of increasing the penalty, much less had it been applied to political crimes. The principle behind complex crimes and the reason for its adoption is to afford the accused the benefit of a sing-le penalty for two or more offenses, and the· penalty cannot be incl'eased over and beyond that of a single offense. La unificacion de penas en los casos de concurso de d&litos a que hace referencia este articulo, est.a basado franca~ mente en el principio pro reo, d<? ta! suerte que cuando este fin no se logra con la aplicacion del castigo unico correspondicnte al delito m~s grave de los varios calificados, el mismo precepto sancionador disponc que se penen separadamente todas las infraccioncs quc integra el compuest.o criminoso atribuido al culpable; como hubo de entenderlo y realizarlo la So.la de instancin, al Advcrtir que cl grado maximo de la pcnn nplicable nl atcntarlo comp1·edido en cl parrafo ultimo del articulo 259 de! Codigo Penni de 1932 alcanzaba la duracion de tres aiios, nucve meses y cuatro dias a cuatro afios y dos meses, mientras que impuesta dicha pena en su grado medio y a ella somctida la de cuatro meses y un dia que aplica al delito de lesiones, resultaba esta suma inferior en duracion y, por ende, mas beneficiosa para el reo que aqucl cnstigo, unico especificamente prescrito en la norma sustantlva ya citada. CS. 30-11-945; R. 1. 377) HI Rodriguez Nava rro, Doctrina Penal de! Tribunal Supremo, p. 2168) . 1'o resort, therefore, to the application of complex crime provided fer by Art. 48 in order to increase the penalty, is a manifest contravention of the principles of oenal law, that the penalty should be strictly construed and always in favor of the accused. With less reason should Art. 48 be applied to rebellion, inumuch as the pE:nalizing law d'!(ines it as " rising publicly and taking a rms ag&in1t the government" for the purpose therein stated <Art. 134) and "engaging in war against the forces of the Government, destroying property or committing seriou:i \•iolence." <Art . 135l. " Engaging in or ]('vying- wa r" is a tf'chnical term that has receh'ed j udicial construction and acquired a definite meanin&. (U. S. vs. Lagnason, 3 Phil. 473l . The attendance of crimes penalized in other provisions of the Revised Penal Code ma~ be considerEd wiU1in the coda I definition of rebellion. 2. Leniency in political crimn rwtwithstanding their fattual cc.m11lezity.- Our Supreme Court has definitely ruled that all other crimes committed with treason form the essential element of the given Cl'ime and cannot be divided into parts fo1 · each one to stand as a separate ground to convict the arcused of a different crime. It also had occasion earlier to rule on cases of treason and rebellion under Act 292 and under the Revised Penal Code before the war. (U.S. vs. Ayala, Ci Phil. 151; U.S. vs. Lagnason, 3 Phil 473; U.S. vs. Bllldello, a Phil 510; League vs . People, 73 Phil 155>. SaiJ c115es involved murder;i, physical injuries, destructions and other crimes, yet they were not held to be complex crimes , but plain rebellion. Rebellion is closely related to h~ason having the same el~ments. The diffzrence is that treason involves the d£>livery or the country to a foreign power, and therefore, remained punishable as a capital offense. But rebellion might even be committed for Jove of country and therefore was given a lighter penalty. Reason for this is in the chnnged :-ittitude on political crimes. El origen de este cambio se remonta, segun opinion muy difundida, a la revolucion que tuvo lugar en Francia en el afio 1830. El gobierno de Luis Felipe establecio una honda separacion entre los delitos comunes y Ios politicos, siendo estos sometidos a una penalidad mas suave y sus autores exceptua- . dos de la extradicion . Irradiando a otros paises tuvieron t>• tas ideas tan gran difusion que en casi todos los de regimen liberal indh·idualista sc ha lle~1ldo a crear un tratamiento de!lprovisto de severidad para la represion de estos hechos. No solo las penas conque se conminaron pcrdieron gran parto de su antigua dureta, sino que en algunos paiKCs se creo un re· gimen pl"!nal mas suave para estos dclincuentes, en otros se abolio para ellos la pena dt: muerte . Tan profundo contraste entre el antiguo y el actual tratamiento de la criminalidad politica en ta mayoria de los palses solo puede ser explicado por las idees nacidas y difundidas bajo los regimenes politicos liberales acerca de estos delitos y delicuentes. Por una parte sc ha afirmado que la criminalidad de estos hechos no contiene la misma inmoralidad que I& delincuencia comun, que ea tan solo relativa, que dcpende de\ tiempo, del lugar, de las circunstancias, de las institucioues de\ pais. Otros i1wocan ht elevacion de los moviles y lientimientos determinantes do eatos hechos, el amor a la patria, la adhesion ferviente a determinadas ideas o principios-, cl espiritu de !acrificio por el trlun(o de un idea. (l Cuello C&lon, Derecho Penal pp. 250,251.J The leniency with which the American Courts had viewed the various crimes committed in furtherance of armed uprising ia reflected in the refusal to extradite former President Eieta of Sal· vacior, where he had been charged for murders and robberies on the ground that said crimes were committed during the progress of actual hostilities of a re\'Olutionary uprising and therefore of political character not subject to extradition. <In re Ezeta, 62 Fed. Rep. 972>. The court therein had occasion to cite the rea· sc111s for the tenderness of the Jaw for political offenses. "In the revolutions, ss we conduct them in our countrl('~ the common offenses are necessarily mixed op with the political in many cases. A revolutionist has no resources. My distinguished colleague General Caa mano C of Ecuador) know1 how Novembet· SO, 1U6& THE LA WYERS JOURNAL 029 we carry on wars. A revolutionlat needs hor~ for moving, beef to feed hJs troops, etc., and since he does not go into the public markets to purchase those horses and that beef, nor the arms an:l saddles to mount and equip his forces, he takes them from the first pasture or shop he finds at hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of war it is a circumstance closely allied to the manner of waging it. " <Inter. Am. Conference, vol. 2, p. 615.) <In re Ezeta, 62 Fed. Rep. 972> . 3. Background of our rebellion and sedition law,.-Our law en political crimes have undergone changes, starting with the enactment of Act 292, that abrogated, among others, the old Penal Cede provisions in the case of r~bellion. Considering that it does not involve a delivery of the country to a foreign power, and that the people then were engaged in a justifiable purpose of trying t-.. obtain their indP.pendence, the rigarous penalty of the old Code was changed by Act 292, and the change later on was adopted in the Revised Penal Code, the very i;ame law to this day for Vo'.hich rebellion cases are prosecuted. Our laws on treason, rebellion and sedition had been modified to be in harmony with American laws. Significant of these changes ts the reduction of the penalty on t-ebellion without the least chfll.ngtng or lessening the scope of the offense. There was alsO the virtual abrogation of Art. 244 of the old Penal Code which otherwise indicated a separate penalty for common crimes c('mmitted in pursuance of rebellion. In the enactment of the Revised Penal Code, some of these changes in Act 292 have been adopted to alleviate the rigorous penalty provided for by the old Code. There was no intention, whatsoever, to expand the application of the provision on complex crime by extending it to rebellion in order to Increase the penalty. Subsequent decisions of the court tend to show this liberal change. In the case of Ayala, where the defendants rose in arms, liJx>rated prisoners and robbed the barracks of weapons, money and C<lmmissary supplies, killed comitabularymen and caused terror in the town, the trial court convicted them of treason. The Supreme Ccurt. however, found them guilty of plain rebellion and reduced the sentence accordingly. CU.S. vs. Ayala, et al., G Phil 151). In the case of Lagnason, where the lower court convicted the defendant to death for the crime of treason for an attack upon the pueblo of Murcia during the course of which there was a fight with the constabulary causing about twenty-two casualties, two of whom were policemen, the Supre:me Court, instead, convicted appellant of rebellion &!Id accordingly reduced the punishment. (U. S. vs. Lagnason, 3 Phil 473). In the case of Baldello, wh~re the defendants attacked a municipal building, wounded a policeman and overpowered the clerks, rcbbing the municipal building of guns and ammunitions, causing dl'aths and physical injuries during the running f ight, the Supreme Court again held that · the crime committed was not treason but rebellion. <U. S. vs. Baldello, 3 Phil 509), 4. Spa.ni3h and Philippine la~ns on rebellion and sedition distinguished.-The Philippines bad departed from Spain in the treatment of attendant crimes committed during a rebellion or sedition . Heretofore our old Penal Code in ifs Art. 244 had substantially the aame provision as Art. 259 of the Spanish Penal Code of 1870 <formerly Art. 184, Penal Code of 1850; then Art. 254, Penal Code of 1932; and now, Art. 227, Penal Code of 1944> which reads: ART. 244. Los delitos particulares cometidos en una rebelion o aedicion, o con motivo de ellas, seran castigados respeetivamente segun las disposiciones de este Codigo. Cuandn no pueden descubrirse sus autores, seran penadoa como tales los jefes principole:J de la rebel ion o sedicion . This provision has no more counterpa1t in our present Revised Penal Code. The retention of this provision in all the Spanish Penal Codes of 1&50, 1870, 1982, and 1944, as well ns the retention, nt same time, of the provision on complex crime <Art. 77, Code of 1860; Art. 90 Code of 1870; Art. 75 Code of 1932; and Art. 71, Code of 1944> in saJd code1 are indicative of the fact. that the article 011 complex crif!le haa never ~n envisaged to be made to apply tc. rebellion :ind se<lition with thl'ir attendant common crime.. This becomes doubly significant when we conaider that our Revised Penal <:ode has excluded any semblance of Art. 24' the~ from, thus, leaving and limiting-- punishment of all other crimes committed in the course or in furtJ:.erance of rebellion and sedition, to those respEctively provici.ed for in said articles on rebellion and ~dition . Certainly the article on complex crime cannot and should not be made to extend its application to these political crimea, for, otherwise, the Revised Penal Cot\e would hB\'e declared ao, or el&e specially provide that they should be treated as common crim~ u heretofore provided in the old Penal Code. 5. Rebellion not comple% ed with oth~ erimea.-ln rebellion there is an attendant physical activity which may be, and often ia, in itself an orherwisc criminal offense under another coda! provision. The crime of rebellion or of inciting it is by na ture a crime of masses, of multitudes. It always pr~upposes a vast movement and a complex net of intrigues and plota. In the Sakdalista uprising of 1935, at Sta. Rosa, Laguna, th!'.! rebels cut the telegraph, telephone and electric-light lines, robbed vehicle passengers of their arms and engaged in a bloody encounter with the constabulary resulting in deaths and physical injuries . The Supreme Court held that these acts constitute rebellion. <League vs. People, 73 Phil. 155>. In another Sakdal uprising constituting similar acts and an encounter with the constabulary, there wer<1 fifty-nine knled and several wounded, and although the defendants were acquitted, the Court of Appeals held that said acts constituted n.bellion. <People v. Almazan, 37 O.G. 100. ) It can be gleaned from these cases that notwithstanOing the occurrence of robberies, multiple murder3, frustrated murders, nnd other acts of vio1ence and destructions, no pretense was made whatsoe\·er that the crime of rebellion therein committed were complexed with the other attC'ndant crimes. 6. Treason not complexed with othe-r crimes.-Treason in its form of commission and its political nature is closely related to rebellion. Yet treason cannot be complexed with other crimes. The Supreme Court in several decisions have been explaining and clarifying the nature of t reason. In the nature. of things, the giving of aid and c<'mfort can only be accomplished by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation . !Cramer v. U.S., nnte) This deed or phy11ica1 activity may be, and often is, in itself a criminal offense under another pe!_lal statute or provision. Even so, when the deed is charged as an element of treason it becomes identified with the latter crime and can not be the subject of n separa te punishment, or used in combination with treason to increase the penalty as Art. 48 of the Revised Penal Code pro.vides. <People v. Prieto, 45 O.G. p. 3329) And again, specifying the elements of treason, that lea.;es no room for other interpretations. The essential elements of a given crime cannot be disintegrated in diffugient parts, each one to stand as a separate ground to C<lnvict the accused of a different crime or criminal offrnse. The elements con!ltituting a given crime are integral and inseparable parts of a whole. In the contemplation of the law, they cannot be used for double or mulliple purpo~s. They can only be used for the sole purpose of showing the commission of the crime of which they form part. The factual complexity of the crime of treason does not endow it with the functional ability of worm multiplication of am "l'ba reproduction . Otherwise, the accused will have to face as many prosecutions and convictions aR there are element.a of the crime of treason, in open violation of the constitutional prohibition against double jeopardy. ( People v. Labra, 46 O.G. supp. (l), 159. ) It is clear from all the consistent decisions of the court that murders nnct other attendant crimes, are ingredients of treason, and eaa HO THE LAWYERS J OURNAL November SO, 19!;4 not be complexeci. <see People T . Alibotod, 46 O.G. 1005; People v. Vilo, 46 O.G . 2517; People v. Delgado, 46 O.G. 4213; People '"· Suralta, 47 O.G. 4594; and People v. Navea, 47 O.G. Supfl . 12, 2521 7. Contra.ry aroitnu!nts considered .-Some arguments may be advanced to support the view that rebellion may be complexed with other crimes. But their weaknesses are self-evident: ( 1) Article on comple::i crime, never conceived b'l/ framers of Pen.o.l Code to apply to common crimes. A suflcrficial reading of Art, 48 together with Art. 134 of the Re\·ised Peual C<ide may give the impression that it is easy to foresee therefrom that the complex crime of rebe 'Jlion with murder and a rson co.n, and docs exist, by saying that the crime ceases to 00 plain rebellion the moment excessive force or violence upon persons or serious destruction of property :·esult in the course of the rebellion. This would be disregarding the implication of fl public tu·med upri11ing. This would do :i.way also with the provisions of Art. 135 of the Revised Penal C<'riP in which the inhe1ent factual complexity of the crime of rebellion is said to involve "e!'lgaging in war against the fot"ces of thl! Government, desh-oying property or committing liel'ious violencP". In effect, it would limit and r~ strict the context of the law on rebellion as specifically provirled for in Arts. 134 and 135 of the Revised Penal Code. Said reasoning would also disregard evident historical facts in that since its inception and throu~h the many f:uccessive revisions of the Spani!!h Penni Code down to this day, the article on com11kx crimes which we hnd adopted in our old Penal Code and RPvised Penal Code, had never been made to apply to the cases of rebellion and sedition. The Spanish Penal Codes as well as OUT old Penal Code, had, instead of Applying the articlf' (lll complex crime and increase the penalty to t"he maximum of thP gravest act committed durinJ? a rPbellion, had made a special provision that snid acts should only be penalized in accordance with the apprOpriate coda! provision, which may not, therefore, be necessarily the maximum thereof. Now under the more liberal intention and spirit Lehind Act 292, followed in ou~ Revised Penal Code, this special provision was abrogated and the penalty for said concommittant crime11, therefore, 'hnd been relegated to that of rebellion and sedition only. To make the punishment more severe by extending thereto the provision on complex crimes would certainly go again!lt the !-pirit and purpose of said Act 292 and the Revised Penai Code. It is clear that without lessE-ning the magnitude of the offense, our legislature had purposely converted the crime of 1·ebellion in al! its forms of Cl.lmmission, into a non-capital offense. In so considering, and penalizing rebellion l:!s a non-capital offem.c, even thP theory of absorption, does not apply. Rather, the imposition of the penalty thCrefor may fluctuate according as to how it may be a1rgravated by other crimes resorted to in the commission of the rehellion, but can never ho made to exceed the maximum of primon 1 :o.a11o-r provided for rebellion , <2l Th~ legisfo.tors' eons• of proportion. It may be maintained that the penalty for r~bellion ;s very much less than that of rtestructiw arson, of hC1micidP. murder l~' k!dnnping and that the legislature should be credited with a sense of proportion in the sense that in defining rebellion and preccribing a lc.wer penalty, the legislators had in mind rebellion without the uttendance of othct· more serious punishable crimes. This would be a grave mistake, for this is lo Jose si)lht of the fact, that t he. legislators had mere I}• followed the modern tr.end of penology. Aa fer back as the French Revolutkm, the crime 'lf rebellion had been pl'nalized with death. The pr~st•nt trend 1s that being •' pditical crime of lesser degree than treason, the motive of the participants is the form taken into account nnd not the extent or result of their nets. In rebellion the participants do not kidnap, kill. rob ant1 burn purely for personal moti1·es and for the sake of perverse kldnaping, killini;t, robbing and burr.ing but only in furtherance of their common political objectives. C3l "Force and iPltimidation" eut-ntial to comAon crimes, is of Uaser degTett than what is involved in trt1U10?l OT rebellion OT seditiO'll. lt may be asserted also that the mere fact that a rebellion necessarily implies the use of arms and ·a public uprising does not justify the assumption that it C 3nnot be committed without kidnaping, arson or murder. No such auumption or argument is intended herein because rebellion can be committed in so mar:y ways and kidnapings, killings and burnings, among others, cerl3inly, are committed in rebellion. A " public uprising and taking arrr.s" ngainst the government, "engaging- in war" against govemmPnt forces and "destroying pro-perty or cnmmitting serious violenc<''' in plnin rebC"llion; and, rising publicly and tumultously to attain by force, intimidation or other illegal methods, any act 'lf hate or reven~ or the d2spoiling of property for p{llitical or socia! end in plain sedition. cnn never justify nny assumption that kirlmi.pings, killings, buminE,.'S, pillag-. inr.~ and sackings must not occur in these crimes a~inst public order. It will be seen that the force and intimidatic:.n essential to certain common crime~ · is of much lesser degree than what is involved in treason, rebellion and sedition. In the case of rape with physical injuries <U.S. v. Andaya, 34 Phil. 690) it is said that the term "force and ir.~imidetion'' if used to excess therein such that injuries are sustained, it is con\'erted intn a complex crime. Trul', but it does not follow that when "serious violence,'' indicated in the alto,:rether different crime of rebellion, is resorted to in excE:ss, the rebellion becomes convnted into a ·C omplex crime, How anything could exceed serious violence is inconceivable. While excessive force is not contemplated in the usi:: of force and intimidation in the common crime of rape, there can be no more excessive violence than serious violence itself indicated in the political r.rime of rebellion. (4) Direct assault without pu '>lie uprising should not be eon/used witlt rebellion. It may be claimed that if direct assault under Art. 148 can be con1plexed with other crimes as in the cases of Lojo C52 Phil. 390>, Ginosolongc <23 Phil. 170, Raluyot C 40 Phil. 385> and Mont iel (9 Phil. 162), there is no reason for rebellion not to be equally comple.'<cd inasmuch as direct assnult is committed in some ways with the purpose.<> enumerated in rebellion and sedition. Direct assault, unlike rebellion and sedition, is committed only without publi~ uprising in nny of the two ways. <Art. 148) . The first is the employment of force or intimidation for the attainment of any of the purposes enumerated in rebellion :ind sedjtion. Here, while the purpose to which it makes reference may be the same, yet thr. means employed - and here is where direct asenult differs frc.m rebellion - cannot go tY.>yond the use of force or intimidation, ss in certain other common crimes. Clenrly, the article dnPs not indicntP whatsoever that in the commission of direct assault, the various means emp1oycd in the commission of the crimes of rebellion und sedition can bti rcsortf:d to. The second way of committing direct assault is wh~n onf' shall attack, en;ploy force or serinu~Jy intim;date or resist persons or agents in authority while orricially performing their duties. Here there is no refere11cc, much )t)SS similarity with rcbelli0r. and sedition, And it is under this second instance that Lojo was held guilty for assault with }w:;mici<lc; Gir.osolongo and Baluyot, for :issault with murder; and, Montiel, for assault with lesiones graves. To undenicore the provision on direct assault and citP the above cases of complexed cc,.mmon crimes, is to emphasize only too we11 that rebellion and sedition have to be- considered in nn entirely different manner so ns to avoid extreme confusion betwee.n the purpose of a crime ftnd the means employed in the commission thereof, (51 Jn rebellion with attmdant common M"imu, it is not thtt theor11 of November SO, 1954 THE LAWYEH.9 JOURNAL 631 abaorption llUt uf aoorarnti011. that applie1. The theory of absorption is not an exclusively fixed criterion in determining the penalty. The rule on complex crimes may also apply as well as the rule on aggravating circumstances, in certain cases. In other cases, however, where several offenses may otherwise be considered committed, the Code separately applies a distinct penalty as an indivisible .'.:rime. Take, for instance, robbery with homicide <Art. 294 par. 1); or robbery with rape, robbery with intentional mutilation, robbery with serious physical injuries CArt. 294 par. 2>; treaS-On with all its modes of commission <Art. 114); piracy with murder, homicide, physical injuries or rape <Arts. 122 and 123 par. 3); rebellion and sedition with all their modes of commission CArts. 134, 135 and 139) - just to cite a few of them. The minimum or maximum of the penalty therein specifically indicated may be imposed depending as to how said special crimes are aggravated by the seriousness of the co-exi'sting nttendant acts. (6) Analo1111 from treaso-n cases. It has already been shown that the crime of treaS-On is specially pennlizrd hy a particular provision of the Code, and that there is an overwhelmin~ number of deci!':ions that Art. 48 cm compfo'lt crime dOf!s not apply thereto. The crime of rebellion i11 also specially pc>nalizcd by a particular codal vrovision, and likewise should M l e.dmit of the application of Art. 48 on complex. crimes. Attention m:iy however be called to the unpublished treason case of Labra (G.R. L-1240, May 12, 1949) and the casP. ')f TfarrnnlPda <47 O.G. 5082>. But in neither of said cases were tl:e acf'USPJ nctnall)' hrld l?Uilty of a complex crime. Ca> Clerical error in the Labra case.-Examining the decision in the case of Perfecto Labra, the opening staten\ent of the Supreme Court starkd by saying that Labra was dccl1n·ed by the tl'ial court guilty of "treason aygra1•ated with murder" and WllS sentenced to death. After disci;sning the facts, the Court held: "Wherefore the verdict of guilt must be affirmed. Arts. 48, 114 and 248 of the Revised Penal Code are ap1>licabie to the offense of treason with murder. However, for lack of sufficient votes to impose tht! extreme penalty, tlit" appellar1t 14Jlwill be S'!ntenced to life imprisonment." The insertion 'Jf Art. "48" was clearly an inadvertent clerical error, for the verdict of guilt that was affirmed in this case is ne>t treason comnlexed with murder, but rather, treason aggravate.I with murder. In view of the definite stand of the Supreme Court tefore and after this ~abra case was decided, that treason cases are incapable of being Mmplexed with other crimes, the inclusion of figures "48" in said decision becomes clearly incongruous and unnecessary and can be attributed to no other than clerical mistake. Hence, this Labra case c&nnot be considered aa a correct precedent. \b) BurramtJda aa.su - Mt a com1.te~ crime.-ThP clerical error in the Labra case becomes more patent in the decieion on the Barrameda ca~e, when the Solicitor General took the wrong cue from tho former and advocated for extreme penalty on the ground that Barrame<la was guilty of treason complexed with multiple mur-der. Because it so happened that the Supreme Court meted out the death penalty, it may now be claimed that the theory of complex crime of t reason with murder won the approval of the Court. This would be confusing the reasoning for that of the penalty i·ecommcnded. This is 3 case where the Court ad,.,pted the Solicitor General's recommendation but nQ t his reasoning. Nowhere in the decision of said case had the Conrt ever stated that it is a complex crime. Tho penalty of death was imopsed not because it ia a. complex crime but because the t reason committed by appellant waa "~companied" not only by apprehension of American1 but •bo bt Feveral individual killings &nd alao mau killlngs an!! slaughte.r. So the death pen&.lty imposed waa not on the prinrjple that treason may be committed complexed with other crimes but, rather w:is so impo!W!d because it was aeeompanied or aggravated by others deser ving maxim11m p.unishment urder the cod.al pro\·i11:ion on ~ As it has been explained, treason i.l of a similar nature with rebellion. If treason can not be complexed with ita attendant crimes, it goes without sa}·ing that rebellion can not be complexed also. But treason is already 3. capital offense and. there may be no need for the government prosecutors to complex the crime to make the punishment sting upon the culprit. whOe rebellion ia a non-capital offenRC. Are our prosecutors justifieJ in converting r&bellion into a capital offense by 1he simple expedient of complexing it with the attendant crimes? Multiple murders, kidnapings, arsons and robberies attendant in rebellion could not have been produced by a single act but rath-er by a series of different nets at different times and by and a~ainst different individua'ls in different places. Therefore, the charges in these post-war rebellion cases could not come under the purview of the first Instance contemplated in Art. -48. The informations in these rebellion casea invariably alle!tfl that the attendant crimes perpetrated were the necessary me:ina f'>r committing the rebellion, hence, seemingly coming under the second instance. The crime of rebellion, however, is already of factual Cl'lmple.""<ity and may be committed in many different ways already com· prehendcd in its c.odal definition. AccoJ"ding to Arts. 134 and 136, thP crime of rebellion is committed the instant persons riSf- public· ly and take arms against the Govc>rnmcnt for the puri:;:oses mentioned therein and in engagin~, among others, in war against the government forces, destroyin~ property and committing ser iom1 vblence. Public armed upriaing is, therefore, an essential part cf the offanse. It is natur:il that acts of violence, kidnaping, mu:rder, arson, a nd robbery would be committed in the course of the r£-bellion. And as long as injuries and destructions are necessarily connected with or committed in fmtherancc of the rebellious purposes, which arc political in nature, they are deemed to be a part of the rebellion and cannot be considered as separs.te offense. Therefore, under the second instance, such acts alleged could not also be made to fall under the article on complex crime. The coses wherein thr a rticle en complex crimes was extcntl· ed to rape with physical injuries, assault with homicide, rel'listance to agents of persons in u.uthority with murder, and attempt against the authority with lesiones graves, which are all common c!·imes, certainly cannot serve as analogy for the crime of rebe!lion, which is of a political nature. Without the killings, bnrn· ings, sackings and kidnapings tluring the course of a rebel\;011, where would be the rebellion complained or! Hence, plain l"'l'bellion does not cl':ise to be such by the use, in furtherance theroof, of attendant excessive force or violence resulting in serious in· juries upon persons and destruction upon property. In popular governments, where the influence of the panionJ is strong, the struggles for power are \"iolent, the fluctuations of party arc frequrnt, and the -Jesire of suppressing oppoi;ition, or of gratifying revenge under the forms of Jaw and by the arency et the courts, constant and active, <Ex Parle Bollman, 2 U.S. 699) it is all the n1ore important that this question be resolved not in ,he light of present prejudkes hut in the in'terest of ju.sttlce for nil time.- c 682 THE LAWYERS JOURNAL NoV(':rnbtr 30, 1964 OPINIONS /THE SECRETARY OF JUSTICE OPINION NO. 55 Th<'se pnpe~ t'efer to the npplicntion of Mr. Feduko S. <01'1nfo11 on the qiustion as to whether or not a Ckrk of Cowrt Rcimero for retirement undrr Com. Act No. 186, as amendecl by Re. of First Instance a.a ex-officio sheriff is entitl'd to an adclitirmal cot11- public Act No. 660. It appears that Mr. Romero fh-st entered the penaation puraitant to the provisions of Republic Act No. 915.) government &ervice on July 28, 1908, as a temporary cluk in the 2nd Ind,,rst'ment J :rnuary 30, 1954 t:ourt of First Instance of Laguna. On September 28, 1950, after 42 years of continuous service and on account of ill health, he wns retired with gratuity as Chief Supervising Auditor, General Hespectfully returned to the Honorable, the Deputy Auditor Auditing Office, under the provision of Act No. 2589. Mr. RoGeneral, Ma nila. The City Auditor of the City of Ozamis c.bjects to the payment of additioual compemmtion to the Clerk of Court of the Court of First Instance of Misamis Occidt:ntal as rx-officio sheriff of said city 1mrsunnt to the p(ovisions of Republic Act No. 915 upon thei following grounds: <H that said law npplies only to a city which is at the same time the capital of the province; and C2l Section 71) of Repuhlic Act. No. 321, othenvise known as the Charter of Oza.mis City, makes thP. clerk of tlw municipal court as the sheriff f'f the city. Section 1 of Republic Act Ne>. 91!) provides as followi;: "Sec. l. The clerk of the Court of First Instance of a pre.vine<> shall be ex-officio sheriff not only of such province but also of i1ny city, which hefore conn?rsion to a city. formed Part of such province. As ex-officio shel'iff of a city, such <,:lerk shall receive n.n a(lditional compensation of not exceeding flne thousand two hundl'ed pesos. which shall be fixed by the city council or municipal board and pnyable from city funds.'' This law repealed Commonwealth Act No. 629 which prescribed thr.t "the provincial sheriff of the provinces to which chnrt{;red cities belong shall be ex officio t.he City Sheriff, with an addi. tional compen!'ation not exceeding one the>usand pesos per annum to bf' fixed by the respective city council, payable out of the city fonds. " Constrning this provision, this Office has repeatt.'~ly held that the eCfect thereof is to repeal impliedly the provision~ tlf city charters enacted prior to Commonwealth Act No. 629 which made the cle1 ·k of the municip2\ court ex officio sheriff of the city (Qp., Sec. of Jus., No. 197, s. 1947). It was also pointed out in thr Inst cited opinion that said law applies to a city irrespective of whether or not it is the capital of the province, there being no provision in the Jaw on which to hasc :;uch a distinction. The enactment of Republic Act No. 915 was apparently induced by the fact that the cle1·ks of court of first instance have assumed the duties of the provincial sheriff in accordance with Section 64 of Executive Order No. 94, series of 1947. It is practically a reenaction of Commonwealth Act No. 629, excepting that instead of providing for additional compensation to the provincial sheriffs, Republic Act No. 915 grants said benefits in favor of clerks of court as ex officio provincial sheriffs. This Office accordingly believes that the r uling laid down with l'<'Spcct to the l'i11:ht of provincial sheriffs to a.dditional compensation under Commonwealth Act No. 629 applies equally to clerks of court as ex offir.io Jlrovincial !heriffs pursuant to Republic Ad No. 915. It appearing that the Charter of Ozamis City CRerliblic Act No. 321> was appl'Oved prior to Republic Act No. 915, tht• pl'ovision of the former making the clerk of the municipal court city sheriff should bf' deemed r'i!pe:i.led by Republic Act No. 9Ui. <Sgd.) PEDRO TUASON Secretary of Justice OPINION NO. 68 ../ IRetireme11t on account of ill-health of a temporarv clerk who t.erved in tlie Gover11mc11t for forty-r1vo years.I 5th Indorl!trnent March 2:.?, 1!154 nunecttully returned to thP. Honorable, lhe Auditor Genrral. Manila mero is still living. Opinion is requested as to whether or not under the fact.. dri;cribed Mr. R('lmero is still elir,ihle for 1-etirement under O:im. Act No. l 8fi, a3 amended by Hep . .Act No. 6/'iO. The provisions of law applicable in this case is section 26 of Republic Act No. 660, pertinent portion of which reads as follows: "SEC. 26. Notwith.;tanding the provisions of th<? Act to the contrary. anjl of,liee• c>r rmpl<>v"' trlu.> died in tl:.e llC'J'c.!ice 1"i'1tin ll1ree yM1·s br/u" sc.id .4 ct went iuto effect nnd who /tad rendered at least t}.irty-five yMrs of servk11 and who is entitled to or who ('('lllfd hn.ve cstnl>lislu..tf his right to th rctirnncnt gratuity Provided for in Act Numbered Tw1mt11-five hundred mul eighty-~1fo11, as amended, or to any o!luir retire. ment benefits from any prm•ion f1rnd created by law shall be co1'~i~ered retired 11•1dcr the provisions of this Act if his wife, or in her default, his other legal heirs shall so elect and notify the Sys'em to the cffl'ct. Upon making such election, the wife or legal heirs of t11e dec;::ased officer or employee o;ll:dl be J1aicl tho monthly nnnuit)· for five coni>ecutive yl'ars o . uch othcl' 1:-enefit ns provided in said Act, in lieu of the ..:ii.ment gratuity or rt>tii·emrnt benefits to which the de.. rea;; .... J waR r:ntitlcd at the time of his death ; and any vor~ion -if s• ch gratuity or retirement benefits already paid to hiq wife or ('lther legal hP.irs sl1sl\ be refunded t? the System: Provid;::d. that contributions corresponding tv I.is Inst five years nf service shl\IJ be dC?dUd t!d monthly from his life annuity. · "Noth11•ithstandin9 any prot-isions of tflis i\ ct to the contrary, any officer or t>mfll<'yee whose position u:as aboli,1hed or who was separated from tlis service as a co•1i.t?quence of the re<•rnani:!:ation providerl for in R.A. Numbered Four H11ndred and Twenty-two may be retirul under the ~rovision:'! n/ this Act if qualified. Providt!d: That any gratuity or retirem'i!nt benefit already received by him shall be refunded to the System: Provided, further, Tha.t contributions corresponding to his last five years of service shall be paid us provided in section twt:ive of this Act. Thi:; pravisio" shall nlso apply to any member of the ;udiciary t,.ho, p1·ior to the apjlroval of thilf Act, u;a,s separated /,·om 1/ie strvice after reaching sct•ent·11 y erors of age and re11dP.ring at least thirty 11ear:1 of s&rvice and who is not entitled to rctire1•1ent be11efit under ony law." CUnderscoring supplied). x x x x The foregoing section constitutu as an ex<"eptiou to tht> genet'l\I policy of Republi;: Act No. · 6GO thnt it shall take effect upon ih appr<>val, and that the benefits thrreof shall be limited only to those officers and employees, whu are in the service at the timti of i;uch approval. Thus, it expressly 1 irovidea that only the following officers and employees, !hough no longet in th<? scnicc on J une 16, 1951, may be entitled to the benefits therein provicied: (1) those whc died in the service within three years before Republic Act No. 660 took effect and who had rendel'<'d at least 35 years of service and were entitled, or have established their rights, to retirement gratuity undC!r Act Nn. 2:J89 or to any othet' retirement benefit fr()m any pension fund created by lllw: C2l those whose po~tion1 wNe a..bolishrrl or were separatert from the service cs a re11ult of thl" reorganization made pursuant to Republic Act No. 422; and IS) members of the judiciary who prior to the appr()val of Republic Act No. 660 were separated from the service aftc1 reaching the ri1-"f' of 70 years and ha\'e at lrast rendt:red 30 years but were not entitled to any retirement benefit under any la.w. Inferentially, N'>vember SO, 1954 THE LAWYERS JOURNAL SSS therefore, any person who does nol c-:>me under any of the 3 gro'lpa above specified and who waa not in the l'ervice o·f the g'll\'crnmen~ at the time of Republic Ad No. 600 took effect. cannot. be retired under ita proviaion1. Evidently, the resolution of the query hinges on whether er not Mr. Romero comu under any of the 3 groups of ,).mployees mentioned abo\'e. It is claimed that v.·h\le Mr. Romero is not, strictly speaking, embraced within the letter of See. 2G above-quoted, nevertheless, he comes within its spirit and reason, and should therefore be entitled to its benefits to invoke its provisions, such parties only ma.y act. <Taylor v. :Michigan Public Utilities Commission, 186 N. W. 485>. It is an eleml'ntary principle ::if statutory construction that when the intention of the legislature is i;o apparent from the face of the statute that tl1ere can be no question as to its meaning there is no room for construction, for there is no safer nor better settled common interpretation than that when the language is clear and unambigous it must be held to mean what it pla..inly expresses. ( II Sutherland 334>. This rule may be deviated from only when such intent of the law is rendered dubious by the context of the act, or if the words are sufficiently flexibb to admit of a con3truction which will effectuate the legislative intention. In the insta:nt case,. a ecrutiny of the whole law will yit!ld nothing to render dubious the clear int.?ntion of the legislature. Neither can it be said that the term "who died in the service'' is flexible enough Ui include-on& who is much alive though sickly, nor can the phrase "whose po.'tition um• aholiahed" include a man who has been r etired with gratuity but whose position is never abolished. Begidl's, one who contends that a section of c.n act must not be read literally must show either that some other section of the 11ct expands or restricts its ml'aning, or that the section itself le repugnant to the general purview of the act. (2 Sutherland 334835>. In this case, no showing hns been made that any particular section of Republic Act No. 660 tends to vary the import .of the words used in section 26 thereof so as to justify a departure fr::im what its letters purport to convey. Moreover, being an exception it should be strictly construed, for although an exception is generally considered as a limitation only upon th~ matter which precedes it, yet if it is clear from the legislative intent that it Is considered as a limitation to the entire act, it will operate to restrict all provisions of the act. (2 Sutherland 474). It has been argued at length that adherence to a strict and literal construction of the provision in question will not onlv be unjust and discriminatory but may also be productive of mischievous result, but so the law is written. Sid ita le:z: scripta est. The undersigned is not unmindful of the merits of the claimants contention that he should, as a matter of justice, be entitled to the benefits of Hcpublk Act No. 660, but when thP. law is so clear and unam..: biguous, the remedy is . not in inter11retation but an amendment, for to hold othenviso will, in dfed, makP an executive body supe:rior to tho legislative branch of the government, and pr3ctically invest it with law making powel' . (State v . Duggan, 6 A. 787). In view of all the foregoing, the undersigned is of the opinion that Mr. Federico S. Romero may no Ionier ~ retir<.'d unde1 Hepublic Act No, 660. CSgd. > PEDRO TUASON Secretary of Justic/ OPINION NO. 69 / (Opinion o-n the qm1~tion as to whether the Veterana Memorial BHilding mnv be co,utnicted upon the USAFFE Pork in llltramuro1t.) 1'he Chairman National Planning Commission P. 0, Box 117, Manila Karch 10, 195( Si r : This is in reply to your request for an opinion aa to whether the Veterans Memori3l Building mar be constructed upon the USAFFE Park in lntramuros. The USAFFE Park was established by Republic Act No. 579, Section 3 of which provides that ''the sire of the former Cp.arte.l <le Espa.iia is hereby declared a uational park to be known as USAFFE Park." The proposed Veterans Memorial Building is intended to be a permanent office building, four stories high to house the Philip... pine Veterans Board, the Board on Pensions for Veterans, and private, accredited veterans' organizations in the Philippines. It will cost one million pesos, and will occupy, according to a rep~n talive of the Philippine Veterans Board, from one-fourth to on&sixth of the entire e.rea of the l!SAFFE Park. A " park'' is defined to be a pleasure ground in or near a city set spa.rt for the recreation of tlie }.onblic; a piece of ground inclC1.o;e..J for the purpose of pleasure, exercise, amusement or ornament; a pface for the resort of the public for recreation, rur, and light; a place open for every one. Kennedy v. City of Nev:ida, 281 S. W. jG, 58. It is a. dd:iched tract of i;round generally of -i.uite sizable proportions de\•oted to P.1'rposes of ornamentation and rC('reati<>n, hounded or approached by streds or highway11 of which it is not pa.rt, and not devoted to purposes of travel, usually planted out with trees and ornamented in a way plensing to the ~yes as v.-ell ae 'furnished fin opportunity for open-air recreation. Kupelian v. Andrews, 135 N. W. 502, 503; 283 N. Y. 278 . The general rule is that where land is dedicated for the ordinary use of park ur common, the erection of buildings thereupon uot distinctively for park purpose;; is inconsistent with '!Uch use. 18 A.L. R . 1252 and case!! cited thereunder, and 63 A.L.R. 845. A park ·'need not and should not, be a mere field or ope.n 11pace, but no C1bjects, hcwever worthy, snch as courthoust!S, which have no connection with park purposes, should be permitted to encroach t:pon it without legislative a.utho,rity plainly conferred, even when the dedication to park purposes is mnde by the publi:: itself and the strict construction of a private g1·ant is not insisted upon." Wi!li:ims v. Gallatin, 299 N.Y. 2&-1; 18 A.L.R. 1238, 1241. &ime st.ruclures, which, according to the same decisions, have a natural connection with park purposes ar.d arc therefore permissible even without special !t?giida.tive sanction, are monument:1 and buildings pf architectm·sl pretension which atlruct the eye Dnd dh·ert \he mind of the visitor. floral and horticultural displays, zoologi~al gardens, playing grounds, and even 1·estnurants and rest houses, and many other common incidents of pleasure grounds which contribute ti) the use and enjoyment of thP. park. The use of part o! a park as a public library <Spires v. Los Angeles, 150 Cal. 64), or aa a state capitol \Hartford v. Maslen, 76 Conn. 599), or as a museum (Atty. Gen."· Sunderland, L. R. 2 Ch. Div. (Eng.) 684), is to be inconsistent with its use, as has been held. But the ereetion upon a public park of a courthouse <Mcintyre v. El Paso County, 15 Colo. Ap1 1. 78; McBride v. Rockwall, 19[ S.W. 926}, a. city hall <Church v. Portland, 18 Or. 73; Delly v . Hayward, 192 Cal. 242), a schoolh(luSO tR.Jwzee v. Pierce, 75 Miss. 846; Sharp v. Gu!hrie, 145 Pac. 764), o. jail (Flaten v. Mov1·ehead, 51, Minn. 518), or a building for the police devutment (Foster v. Buffalo, 64 How. Pr. 127}, is a diversi"ln of property dtvoted to park purposes. In Slavicl1 v. Hamilton, 257 Pac. 60, the court allowed the construction of & veterans' Memorial hall upon a public park, but would not allow the construction of a building to be used as an office building. Said the court : "Under the well-settled principle of Jaw ge:ierally applicAble, if the city were undertaking to establish in Adams Parle a city hall, fire engine station, hospital, or Jo.ii, i?rideavoring to devote the property to the erection o! ,municipal building1 or offices for use in the transaction 0£ public business, we would have little hesitancy in saying that such purp.>Jea would be entirely inconsisU!nt with the use of property for park purposes." The re11son for the rule is that pa.rii:1 are conducive to hea.ltil, 534 THE LAWYERS J OURNAL NcM!mb!r 30, 19W furnishing to the citizens of crowderl cities a place whel"f; they may breathe pure air, unt.n.inted by smoke and obnoxious gasea, ISO that the erection of public buildings, like a courthouse, would be ineon.. slatent with the dedication of land as park. Mcln1sre v. El Paso County, CClm'rs., eupra. Parke, e•pecially in large cities, are highly important. They afford healthful and pleasant resorts in the heated season, a.nd are, in fact, the only places where a large class of the community are able to go and enjoy the bleuing1 and comfort to shade and pure air; and any atb:!mpt on the part of public officials to appropriate them as a site for public buildings, in which to conduct the economic affairs of a city, under any pretext whatever, would, as I view it, be a cruel effort to subvert a humane echeme." Church v. Portland, 18 or. '18. Considering the reduced size of the USAFFE Park, the cons... truction of an office building thereon of whatever nature, would destroy its utility as a park. For the foregoing reasons, the query is answered in the negative. Legislative authority for the erection of the building 'ln the USAFFE Park must be secured. Respectfully, <Sgd.) PEDRO TUASON Secretary of JustiCt> OPINION NO. 70 IOpinfon on the question ns to whether &r not tM ccmcluding proviso of Section B-IV-10 \a) of Republic Act No. 816 regarding the fees to be received bJI the chairman and members of the variou' czamining boards prevaUs over the provisions of Repu.bl~ Act. Nos. 465 and 664. in conncdion with tht iJllme /ees.l Mr. Felipe Ollada Executive Chairman Boards of Examiner• Buree.u of Civil Servic. M an i la Sir: March 22, 195' This is in reply to your letter requesting an opinion as to whether or not the concluding p1·oviso of Section .B-IV-10 (al of Republic Act No. 816 regarding the fees to be receiv.!d by the Chairman and membc1'9 of the various examining boards prevails c.ver the provisi•'ns of Republic Acts Nos. 465 and 564, in connection with the same fees. Republic Act No. 465, which is an Act to standardize the exa.. mination and registration fl;!l;!S charged by the examining board.I, prc.vides as follows: ''SEC. 5. Each chairman and member of the Bc.oarda of Examiners, whether a government employee or not, shall receive as compensation a fee not u:ceeding te11 pcaos per capita of the candidares eXamined. x x x." <Underscoring supplied.) And Republic Act No. 564, which amendtl the Roorganita.tfon Law of 1932, <Act No. 400'1>, runs thus: ''x x x who shall receive. compensation not to exceed ten pesos per capita of the candidab:!s examined or registered without examination." <Sec. 1) On the other hand, the App:ropriation Act for the fiscal year 1952-1953 lR.A. No. 816) sets a:.side a certain amount /or the necessary expensu of the boards of examiners and fixes ten pesos for eech candidate examined as the fee which the chairman and members ol the various boards may receive. but with the J'roviso that "no Chairman or ml!mber of e.ny board •hall receive from exarrJnation and other fees a total compensation of more lh11n P9,UOO per annum, th~ provision• of existing law to the contrary notwithstanding." <See pp. 73-74, Item B-IV-10, R.A. No. 816. ) In this connection, Hcpublic Act No. go15 fAppropriation Act !or the fiscal year 1953-1954> contain11 the same proviso e:1cept that the maximum limit has been increased to r12,ooo. <Item B-8-19 <a), p. 84, R.A. 906), It ia overred that the above provlto or Rep. Act No. SU Cthat no chairman or member of any board of examiners shall ,.eceh·e a total compensation exceeding P9,000 pe.r 5.nnUDl) i• only a rider :ind cannot prevail over the above-quoted proYi1ions of Republic Acts No. 465 and No. 564. It cannot be denied that Rep. Act No. 816 is a General Appropriation Law which mue!y appropriates or sels u.ide fund! fo1 government expenditures while Rep. Acta Nos. 4GS and 564 art' laws which specially deal with the o:amining boards. And it i• also true that this Office has held that "Where a specific law creates an office, and fixe11 the !;alary attaching thereto, it seems plain that the mere fa.ilure to appropriate the necessary funds therefor or the appropriation of a l~sser or greater aum, cannot have the effect of abolishing, or altering the compensation of, the position created, unless ezpressl11 so prwidcd.'' <Op., See. of Just. No. 154, S. 1950). It must be noted, however, that the fees to be received by the chairman and members of the various boards have not been fixed by Republic Acts No. 465 and 564, beyond stating the ma.ximum not exceeding ten pesos per capita of the candidates examined or registered without examination. Said Acts therefore do not preclude the fixing of such compensation 111 a aubsequenl law. Consequently, the proviso in the Appropriatfon Act cannot be said to amend or do violence to, the provisions of these two Act.a, tor as long as the fee fixed by the suid Appropri11tion Act did not exceed ten pesos per capita, they would not be infringed, Besides, e\•en granting, aTyucndo, that said proviso in the A~ propri&tion Act of 1952 in effect s.mends the corresponrt.ing provisions of the two previC'us Republic Acts bet'ause it fixed a maxhnum of nine thousand pesos as the greatest total compensation that might be allowed the Board members. yet the intention of Congreu to effectuate such a change is very clear. The said Appropriation Act does not stop at merely setting aside an item for the fees but g(ICS so far a.s to provide expressly that the amount of such fees may In nco case exceed '9,000 a year. And this intention to effectunte the change has been reiterated in the Appropriation Act for the current fiscal year, above referred to, when it restates such a proviso, merely increasing the maximum amount to P12,000. Pursuant to the principle enunciated in the opinion above-quoted, said proviso in the Appropria.tion Law mu3t necessarily supersede the provisinn of the specific Acts, for, and a11 held in said opinion, an Appropriation Law can have the effect of altering the compensation of positions created by a specific law if it is ezpreaslv so provided in the APpropriation Law. The constitutionality of the proviso under consideration bu been assailed. But the constitutionality of a la.w mu3t be presumed and every reasonable doubt is usually resolved in favor of the vali .. dity of the enactment. <11 Am. Jur. '182.> It must also be borne in mind that the power of declaring a Jaw unconstitu~ional is beyond the province of this O!fice. It is a prerogative exclusively belonKing to the courts. Anent the argument that the reduction in fees should be a.pplied equally to all of the eumining boards by reducing the rate paid per capita of exaininera aud not by eliminating the total amount paid to each examiner and that the compensation of era.·minera should be proportiona~e to the volume of wo1·k done, sulfice it to say that such matter is not one for the Exeeutive Devartment to considei:. Out one properly addrc:ssed to the law-making body. Atte.ntion has also been invited to the reason given by the President for his diSBpproval ot an item in House Bill No. 2903 <Approprie..tion Hill for fiscal ye!l:r, 1952-1958> aimed at raising the salary of justices of the peace, to the effect that "unlu:• u:preaaly so provided, an appropriation Jaw may not alter the rates of salary specifically fi:1ed in a special law." Th.is is be1ide the point because, as already discusseJ, the proviso in question ii in itself an express provision regarding the change of foo - if change there has been. Furthermol"f;, such an objection waa railed by the President in the exercise of his veto power and there.fore was sufficient to put down the iten1 objected, which is not to with the present case where the proviso ia already a part of a la" regularly passed and approved, which the E:s:ecutive Department is bound to uphold. N~vember SO, 1954 THE LAWYERS JOURNAL PremiseJ considered, and in view of the constitutional mandate that no money shall be paid out of the Treasury except in purauance ot an appropriation made by la'v (Art. VI, Sec. 23 l2), Const. of the Phils.], the undersigned is of the opinion that the provision of the Appropriation Act for the current fiscal year regarding the fees of the chairman and members of the various cxa.mining boards must be followed. Respectfully, <Sgd.l PEDRO TUASON Secretary of Justice OPINION NO. 72 <Opinion O?J comyulsVl"Jf retirement. I 2nd Ind('ITilement March 22, 195' Reapcdfully returned thru the Secretary of National De(en6e, to the Chief of Staff, Camp Murphy, Quezon City. Opinion is requested on the following queriea: 1. In determining whether an individual has reached compulsory retirement category urt'der Section Hbl of Republic· Act No. 340, must his service as a civilian Government official be counted, a&liluming that such service is creditable under the conditions speci . tied in Section 9<e> of the same law, as amended? 2. It the answer to 1 above be in the affirmative; may the Individual waive or renounce all rights and benefits available to him under the said SE"ction 9Ce) in order to continue in the active service until such time as the period of his active military service Ahall make his retirement compulsory? 3. Are the benefits of Republic Act No. 861 available to persons who had already been retired or otherwise separated from the active military service prior to the effectivity of the said Act' Under Section l(b) of Republic Act No. 340, ret.i:rement, up~n completion of at least 30 years of continuous satisfactm·y active service, is compulsory upon an officer o:r enlisted man of th-. Armed Forces, unless his continued service heyond th&t period b considered necessary by the President of thP Phili11pines for th,. good of the sen;cc. In determining the length of service of an officer or ~nlistcd man for purposes of either his optional or compulsory retirement, Section 9(el of Republic Act No. 340, as amended by Republic Act No. 861, expressly provides that his period of service 1u1 a civilian official or employee in the Government shall b~ creJittd. The only limitritions to the giving of such credit spP.Cified by said subsection (e) are that the officer or enlisted man concerned mus"t have rendered at least 10 }!ears of active m:litary service in the Armed Forces of the Philippines, .!nd that in case his civilian service is longer than the period of hia military service, such service ae a civilian shall be credited only as equal to his military service. Accordingly, query No. 1 is answered in the affirmative, subject to the proviso specified in said nibsection Ce). As to whether &n officer or enlisted man may waive or re. nounce all rights and benefits provided for in Section 9<e> of Republic Act No. 840, as amended by Republic Act No. 861, ht order to continue in the active service until such time as the period of his military service shall have reached at least SO years, the undersigned is of the opinion that he may not, because such reti'tement shall be compulsory upon completion of at least SO yeara of service to the Government. Section 1 (b) in conjunction with Section 9Ce> of Republic Act No. :.140, as a.mended, declares that upon the completion of at least SO yearR of satisfactory service, including that as a civilian official or employee in the Government, l'etiremcnt shall be compulsory upun an officer or enlisted man of the Armed Forces, unless his continued stay is deemed necessary by the President, for the good of the eervice. Doubtless, the purpose of such a provisi<'n is to keep the Armed Forces well staffed nil the time with young officers and enlisted men ond thus maintain vitality in the military bloodstream and at the aame lime to give those who have 1pent the belt 1ears of their lh-ea in the service of the Government the much-needed rut and reward daring their declining years. To all<'w thert'fore a waiver, u above e.>ntemplated, wii) not cnly nulli.fy such purpose of the law but also, in effect, grant every officer and enlisted man the right to exerciM the power to decide for · themselves their retention in the service beyond the period fixed by law, '7hich power is grant.eel only to the President of the Philippines. As to the 3rd query, it is said that, an amendment becomes a part of the original statute il it had always bee.n contained therein and as if the law had been as amended as of the time it was passed, unless such amendment involves the abrogation of CC'lntra.ctural relations between the state and others. (59 C.J. 1096, citing Commonwealth v. Hawes, 169 N.E. 806; Ex. Parle Carillo, 158 P. 800; State v. Moon, 100 S. E. 614) . "The legal effect of the amendment is the reenactment of the old statute with the the amendment incorporated in it and the amendment from its adop.. tion has the same effect as if it had been a part of the statute when first enacted. <Nichols v. Board, 24 SE 71, cited in State v. Moon, 100 SE 614>. "As a rule of construction, a statute amended is to be construed in the same sense exuctly as if it had read from the beginning as it dtoes as amended." <Farrel ". State 24 A. 725; Cain v. Allen, 7tl NE 201; Myers v. Fortun.11.to, 116 A. 623>. Thus, in Opinion No. 226, scr:es t.lf 1953, involving the right of the heirs cf the late Lt. Col. Villalvbos to continue rccciving pension, notwith9ta.nding its termination long before the law was omr:nded on June 21, 1952, this Department ruled the.t Section 3 of Republic Act No. 240, as amended by Republic Act No. 803, should be interpreted as i! it had been in that amended form when first enacted on J uly 26, 1946, so that tho~e whose right 1'.> pension had already cea.sed prior to the ami:ndment might 00 entitled to the benefits thereof . It is believed that the rule of Nnstruction laid down In the foregriing cases, more particularly in Opinion No. 226, s. 1958, c.f the Secretary of Justice, is cquclly applicable to the enterpN'.tation of Republic Act No. 861, insofar as it affects o!!iccrs and enlisted men of the Arn:cd Forces who were already retired at the time said Act was epproved un J une 16, l!\Ci3. Accordingly, Qnd considering that no abrogation of any c1mtractual obligation ef the state is im·olved, Republic Act No. 861 should be interpreted a.s if the same had always been a part of SEction 9 of Republic Act No. :HO, which said Act 861 ameude'd. Moreover, no valid reason can be perceived why retired offit'erl and enlisted men who are by statute declared to be a part of the Army, who may wear its uniform and a.re entitled to t.he same privileges as officers and enlisted men in the active service, whose names shall be upon its register. are subject to the rules and .uticles of war and may be tried by military court martial <section 4, 5, 6, Rep. Act No. 340), should not be entitled to the benefits of Republic Act No. 861, when the great purpose of the Army Retirement Act is to extend the most benefits within the means of the legislaturl'l to those who ha\·e dedicated the best years of their lives to the service of the Government. CExplanatory note, Hou3e Bill No. 2284 which latter became Republic Act No. 861.) In view of all the foregoing t:nd considering that it la a "'ell-settled principle that pension statutes should be liberally construed in favor of t.;E' 'grantees, the undersigned is of the "'pinion that the 3rd quer.{ should be answered in the affirmative. <Sgd.> PEDRO TUASON Secretary o! Juatico OPINION NO. 76 IReinstattmmt of a government emplo11ee who wa• found QMillll of urosa miaeonduct b11 th• Bureau of Civil Service.) Srd IndorlW'-ment March ~7. 1954 Respectfully returned to the Honorable, the Exec.utl,·• Sec.. retarv. Manila. Mr. Quirico Camus, Administrative Officer of the Bure.'l.u of Public Works, was charged admini1tratively for his particl686 TJ:IE LA WYERS JOURNAL No\~ber SO, 1954 patlon in cer tain anomalies in the importation - of asphalt by Florencio Reyes and Co. He wa.s in~estigated by the Department of Public Works and Communicatirons and the result ol said investigaticn wao fc.rwarded to the Bureau of Civil Servic~ on October 29, 1952. Mr. Camus, jointly with Mr. Florencio Reyes, was al9(1 pro.. aecuted criminalJv in t he Court of First Instance of Manilh for violation of Section 18 of the Import Control Law, Republic Act No. 650, and the rules and regulillic.ns issued thereunder. Pending the termimi.tion of the criminal proceeding, the Bureau of Civil Service rendered its decision in the administrative ca!W'I on December 12, 1952, finding Mr. Camus guilty uf gross miscon.. duct, for which he was suspended for two months without pay, demoted to a lower position, with a wa rning that his commission of another offense will be dealt with more drastically . Althoua-h Mr. Camus was under suspension since September 13, 1952, and the decisi9n of the Commissioner of Civil Service Jtated that his t•reventive suspension shall be taken into a.ccount in the computation of his two months' suspension, itc was not reinstated upon the rendition of said i:lecision m view of the pendency of the criminal case against ldm. In an order dated June 1, 1953, the Court of First Instance of Manila dismis!'ed p.rovisionally the criminal case against Mr, Camus and his ~o-e.ccused upon the ground, principally, that the law under which he was being prosecuted would cease to be effective after J une 30, 1953. Upon the provisional dismissal of the criminal case, Mr. Cn.mus requested t hat his suspension be lifted, without prejudice to his request for a reconsideration of the decision of the Commissioner of Civil Service. Mr. Cr.:.mus was forthwith reinstated tl'I the position 'lf Chief of Water Rights Division, which is a lower position than that held by him o.a Chief of the Administrative Division , Subsequently, Mr. Camus petitioned for reinstatement t.o his former position as Chief of the Administrative Divi~ion of the Bureau of Public Works. In a 1st indorsement elated December 10, 1953, the then Secretary of Public Works tnd Commumcttions expressed opposition to said request but nevertheless forwarded lht. case to the Office of the Presidr.nt "for final decision ." The view was exPressed that to favorably consider the position for reinstatement would be to set at naught civil service rllles and regulations and would adversely affect t he m'.>rale and dis.. cipline of the employees of the Bureau of Public Works . l n a 3rd indorsement dated January 15, 1954, however, the Commissioner of Civil Service expressed the opinion that, inasmuch as M:r. Ca.mus docs not ap9ear to have acted in bad faith tmd that he had already satisfit?d the decision in the ad.minis.. trntiva case against him regarding the two months suspension without pay and demotion to a lower position for over six m:mths, which length of time makes him eligible for promotion under Section 11 of Executive Order No. 94, series of 1947, "l\Ir. Camus may be returned to his former position at the discretion of the a ppointing officer, if circumsta.i1ces war rant, such llS final disposition of the court case ag11inst him which ha!l been provisinnally dismissed " As pointed out by the Commissioner of Civil Service, the return of J\.fr. Camus to his former position as Administrative Officer of thn BurE"nu of Public Works is discretionary with the appointing officer , Should it be decided, in the exe1·cise of the Anid discretion, k reinstate him, the circumstance that the criminal case filed against him was merely provisionally ciismissed Is no, obstncle to the taldng of such action. If at all, the criminal case against Mr. Camus for violation of Republic Act No. 650 may only be revived by the enactment of legislation to that effect. In the event that this possibility would happen, his reinstatement to his former position would not .=onstitute a bar lo Mr. Camus being charge criminally for the same offense nor to the taking of disciplinary action against him us circumstances might warrant. 'l'he fact that he had been previously charged administratively and found guilty, a nd the possibility that he may again be charged criminally for tho sante nets which led to the administrative proceedings, are factors to cons ider in his prouiotion but lhey do not, by them.selves, p?"event his appointment to the former or even hishe.r position at the discretion of the appointing power. <Sgd.) P E DRO TUASON Secretary of Justice: OPINION NO. 79 <Opinion on the queation ae to 1uhether Uw Mctropolllon Water DistrU:t is ez1:mpted from pu!fitty the rompe111ati"!1 tar 011 hq1<i1 l ehlorinc imported b11 it.) Srd Indorsemen• March ~4, 1954 Respectfully returned to the Honorable, the Encuthe ~ retary, Office of the President, Mnlacnfiang, Manila. This is in connection with the request of the Melropolitan Water · District for exemption from the !Hlymmt ot the compensating tax on liquid chlorine imported by it. It appears that this Office, in Opinion No. 'l85, series 1951, held tha.t said District, being a corporation performing a non-governmental function and doing business for gain, is v.-ithin the purview of Republic Act No. 104 which requires corporations owned or controlled by the government to pay the same taxes and other charges as are imposed upon individuals or corporations engaged in any taxable business. <This Republic Act, it has also been held b)' this Office, was intended to apply to corpora.tione or agC"ncles owned or controlled by the Government engaged in business or industry for profit in competition with private enterprises. Op. Nos. 67 and 158, s. 1948 and No. 16, s. 1950, Sec. of J us.) The Metropolitan Wa ter District, in support of its request for exemption <and consequently, for a rcconsideratio11 of the abovecited opinion) states : " This opinion runs counter with the spirit and in• .ent for which the Metropolitan Water District is created. It may be stated, in this connection, that prior to the creation of the Metropolitan. Water District, Manila':.i water supnly was administered by the City authorities, the Cit y E ngineer . being in char~ of the maintenance and operation o>f the system. The passage of Act No. 2882 in 1919 created the Metropolitan Water District, which was charged with the responsibility of maintaining and operating t he Manila w& ter supply, a function formerly done by the city government. It is clear, therefore, that the Metropolitan Wnter District i• a corporation created primarily for governmental service, as it is charged with the function of furnishing adequate water supply BJ'ld sewerage system to the metropolitan area , Furthermore, the District is not engaged in business for profit and any surplus derived :s incidental only to its operation. Such surplus enables the District to repay itt. bonded debtlll and to reim·est any balance therefrom in the fo1m of improvements and extension of its system. Any new tax or imposition made on materials needed by the Distrkt, especially in imported products required for ita purification proceu, will either raise the cost of its opera.tion :md maintenance, thereby adversely affecting its financial position, or dela7 its complete rehabilitat ion. or the expansion of its water services to the public." 1.Srd par., 1st Ind. of M: .W . D., dated March 10, 1952. ) That Office requests comment on the above-quoted statement. of the Manager of the Metropolitan Water District. The fact that before the creation of the Metropolitan Water District, Manila'a water supply was administered by the City government thru the city engineer does not in any wa y pron that the function is a governmental one. For, as stated in the opinion above-referred to, "the distribution of water to the inhabitants of a municipality for their domestic and commercial uses is genera.Uy considered to be undertaken by a municipalit}i in its private or proprieta ry capacity," in the exercise af which the "municipal corporation is governed by substantially the umt rules that govern a private individual or ·corporstion ." Thu.a, even if it wore the city eovunment itself which r.np ,.es in tbt November SO, 1054 THE LAWYERS J OUR.'hl'AL activity now being handled by the MWJJ, the government would nevertheleas be engaging in a private or proprietary - and not • i('OVernmental - activity. Nor may the fact that the MWD invests the surplus derived fron1 its operation in the improvement and the extension of ~ system and in tho payment of its ir.debtedness change the character of its enterprise. On the cont:-3.ry, it is an indication that aaid corporation is actually deriving prufita from it.a business, thui. ju.1tifying the application of Republic Act No. 104. As to the averment that any new tax imposed on said Corporation would raise the cost of its operatio~ and maintenPnce or delay its compkte rehabilitation or the expansion of its services. wffice i\ to restate the objectives behind the passage of Republic Act No. 104, as set forth in the opinion under cronsider~tion, 81:1.id Act was passed irl order "to require th.~se government-own~d or controlled corporations to reduce their expenditures; to reeover the taxes that are lvst to the Government as a result of this tax immunity In favor of these government-owned corpcirations; . and. thirdly, in order to place them on an equal footing, on a level with private initiative by giving exemption to government enterprises.'' The undersigned does not, therefore, see any reason !or disturbing the ruling of this OUice,, a.a expressed in Opinion No. 2:85, series of 1951. · <Sgd.> PEDRO TUASON Secretary of Justice OPINION NO. 149 (On the questions as to: (1) Whether or not an appointment of t'l Foreign Affairs Officer to the same class without increase in compensation but merely involving a consolidation of basic and ezcess salary should be submitted to the Commissio1i on Appointments for confirmation; (2) Whether or not an in-g-rade prcnnotional appointment of a Foreign Affairs Officer within the same class also be submitted for confirmation; and (3) Whether a Foreign A{fai-rs Officer whose appointment to a higher grade of salary within the same class is by-passed by the Commission on A ppointments reverts to his"last appointment or is automatically separated from the service.) 1'he Honorable 1'he Acting Secretary of Foreign Aftaira Manila Sir: June 22, 1954 This is a reply to your request for opinion on the following questions: "Cl> Whether or not an appointment of a Foreign Affairs Officer to the flame class without increase in compensation hut merely involving a con~lidation of basic and excess salary should be submitted to the Commission on Appointments foC" confirmation; 1' <2> Whether or not an in-grade promotional appointment of a Foreign Affairs Officer within the same clas11 also be submitted for confirmation; and "C!ll Whether a Forcdgn Affairs Officer whose ~ppointrnent W a higher grade of salary within the same class is by-passed by the Commission on Appointments reYP.rts to his l:\Sl appoilltment <:r is autcimatkally separated from 1ht' service." Sec. 3, Pul't A, Title IV rof Hepublic Act No. 70& provides that "all promotions of Foreign Affairs Officers shall be made by the President, with the consent of the Commission on Appointments, by appointment to a higher class x x x". By inference, it is not necessary under this provision t.o submit appointments in the same class to the Commission on Appointments for confirmation. The appointment in question did not involve promotions to a higher class but only m compensation, and so did not come within the ~quirement of the aforequoted provision of Republic Act No. 708. This conclusion is strenghte.ned by the to.ct that under the l•'oreign Service Act of the United States from which Republic Act No. 708 was adopted, salary increasea within the range e• tablished for the class to which a Foreign Service omen hu been appointed are not required to be submitted to the Senate for eon· firmation, but are merely fixed by the Secretary of State <Sec. SS, Act of May 24, 1924; 46 Stat. 1215). There is no similar provision to be found in RcpubHc Act No. 708, but neither is there 11ny which requires in-grade riromotions to be acceimplished in the i.ame manner as promotions to a hight:r .:bss. In brief, the first and seoond questions should be, and they are, answered in the negative. On the third question, it is believed that the qualification or description of the appointments in question 11.s ad interim was not correct and their submission to the Conuniasion Ctn Appointments for confirmation was Mt required t-y law, and unnecessary. It follows that the failure of the Commission on Appointments to act upon them did not operate as legul and effective disapproval of said appointments. My opinion is that for all legal purposes the appointments under consideration were valid and e.f. fective as .)f the dates they wero issued, barring refusal or failure of the appointees to qualify. Respectfully, CSgd. ) PEDRO TUASON Secretary d Justice / OPINION NO. 155 (On the question as to whether the application of Chua Man to operate a cabaret bought from Mr. Ding which had ceased to operate after liberation comes within the exception of the Cabinet resolution of December 28, 1949 which allows cabarets ancl other amusement places, within the zones specified in said Ezeciltive Order No. 319, s. 1941, and in operation on or before January 1, 1941 " to r.ontinue operntion in their present locations 1mtil further o .. ders.") 5th Indorse:111ent June 28, 1954 Respectfully retumed to the ffonryrable, the Executive Secretar y, Office of the President, Malacaiiang, Manila. This is with reference to the n.>quest of l'ifr. Chua Man for permission to operate a cabaret in Progreso Street, San J uan, Ri.1.al, lo:?ss than 1000 lineal meters from the Roosevelt l\femorial High School, the Instituto de Mujercs, the San Juan Elementary School, nnd the municipal building, in violation of Executive Order X1>. 319, e. 1941. It appears that before the war and before the promulgation of the aforesaid Executive Ordt:r, Mr. Bell S. Diug operated a ca· bnret, cnlled the New Mabuha1· C::.baret on the nbove-mentioned site. This cabaret continued in opet"ation during thf' occupation but was closed thereafter. On Augu~t 15, 1952, Mr. Chua Man filed :m application with the Mayor of San Juan. Rizal. for a permit to b\)ild and operate a cabaret on the same site of the New Mabul-tay Cabaret. On August 18, 1952, Mr. Bell S. Ding had executed a deed transferring to said Chua Man, for a consideration of one peso, the "Nrw Mabuhay Cabaret together with all the will that makes its name", and on Septen1bf.r 15, 1952, the Mayor granter! ChuA Man the permit applied for, on the strength of which Chua Man co11st.ructed 3. building for a cabaret on the site indicated. In this connectiron our attention is i11vited to a resolution of the Cal:inet of December 28, 1949, which allows cabarets and other am~ ment places, established within the zones specified in said Executive Order No. 319, s. 1941, and in op~ration on or before JRnuary l , 1!:141, "to continue operating in their rresent loc:.tions until fur· ther orders ; x x x." Opinion is requested as to whether Chua Mc.n's tlpp!iestion comes within the exception of th~ sbo\•e-mentioned Cabinet reaolution. The Cabinet resolution referred to was intended to protect the interests of cabaret owners who had ma.de im·eatmcnts in established and going concerns. Mr. Chua Man did not haVe any iflteNat i11 the <Continued on pag• 643l 6S9 THE LAWYERS JOURNAL November 80, 195' DECISION . OF THE UNITED STATES SUPREME COURT ;. <Advance Reporh - 1958 Term> VICTOR EMANUEL PEREIRA AND EUGENE B. BRADING, PETITIONERS, , .. UNJTED STATES OF AMERICA Witnesses § 42 - competency ;,if wife to testify araln.st hu.sband ln criminal cue - after divorce. 1. Divorce removes any bar of incompetency of a wife to testify in a criminal prosecution ag-ainst her husband, Evidence § 704 - marital communications - effect of divorce. 2. Divorce does not terminate the privilege for confidentii.11 marital communications. Evidence § ?Hi - what constitutes confidential marital communications. 8. The privilege {)f ccnfidcntbl communications between husband and wife is inapplicable to ·bar the testimony of a wife in a criminal prosecution against her husband, where her testimony involves primarily statements made in th~ preHence of third persons, acts of the husbar.d which do not amount to communications, trips taken with third persons, and hc1 own acts, whertJ niuch of h~r testimony refotcs to matters occurring prior to the marriage, and where any residuum which may have been intended to be confidential is so slight as to be immaterial. Evidence § '104 _ ;marital communlcaUons - presumption. 4. Although marital communications are presumed to be co~ fidential, th:i.t. presumption mny be cvercome by proof of fact.::! sl1owing that they were not intended to be private. Evidence § '104 - marital communications - presence of third person - intention to convey information to third perso11, 5. Tl11~ presumption of privacy of marital communications is negatived by the presence 0f a third person or by the int.en'tion that the information conveyed be tra!lsmitted to a third person, Evidence § 698 - Confidential communications - scope of privilege. 6. A 11rivileg-e of c•mfide1itial t"ommunications, generally, extends only to utterances, and not acts. Evidence§§ 990, 991.3 - surrtcJcncy - mall fraud - transporting stolen property interstate. 7. Ce>nvictions of violating the mail fraud shtute C18 USC ~ 134ll nnd the National Stolt:R Property Act C18 USC §2314> are uot subjeet to attack on the ground that there was no cvidenr,e of any mailing er transportiilg stolen property interstate, where it Is established tliat thr two defendants fJlanned to defraud a woman, that collecting the proceeds of a check drawn by her on an out-of1itate bank wu.s an essential part of that scheme, and there was Fubstantial evidence to show that the check, which was delivered t.y one of the dcfcndii.nts to a bank for collection. was mailed by that bank to the out-of-state bank, in the ordinary course of business. Posl Oftlce § 48; Recelvlnr or TraDSJJortlng Stolen Property § 1 - mall fraud - actual mailing or transportation not necessary. A. To constitute a violation of the mail fraud statute <l8 USe § 1341) or the National Stolen Property Act ClS USC § 2314>, It 1 s not necessary to show that accused t.ctually mailed or transportP.d 1 mything himself; under 18 use § 2(b) it is sufficient if he caused it to be done. Post Office § 48 - mall fraud - elements of offense. 9. The elcmC'nts of the offense of mail fraud under 18 USC § 134l are <l) a scheme to defraud, nnd <2> the mailing of a letter. e:tc., for the purpose of exceuting the scheme. It is not nr.cessary that tho scheme contemulnte the ust" of the mails as an essential f'lement. Post Office § 48 - mall fraud - c&USln&' the malls to be used. 10. A person "causes" the mn.ils to b& used within the mearung of the mail fraud statute <18 use § 1341}' wher" he dou an act with knowlech!e that the use of the mails will follow in the ordinary ccurse of business, or where such use can reasonably be forueen_ even though not actually intended. Criminal Law § 7 - mall fraud statute - National Stolen Pro~tr Act - separate offenses. 11. Violations of the mail fraud statute ns USC § !341> and the National Stolen Property Act <18 use § 2314l constitute two seoarate offenses, and a defendant may be convicted of both even though the charges arise from a sinR"le act or series of acts, an Jong as each requires proof of a fact not essential to the other . Recclvlnr or Transporting Stolen Property § 1 - National Stolen Property Act - e!cments of offense. 12. The National Stolen Pri>pe1 ·ty Act <18 USC § 2314) requires <1 l knowledge that l"erta.in pr?perty has been stolen or obtaineri by fraud, and <2> transporting it or causing it to be tunsportert in interstate commerce. The tranS!J?:ting chargt> c!.i>es not require proof that any specific means o! transporting werl! used, or that the acts were done pll'l's~ant to 3 :;cheme to defraud. Recelvinr or Trans11ortlng Stolen Property § 1 - collection of check drawn on an out.of-state bank. 13. When a defrauder delivers a check, drawn by his victim on an out-of-state bank, to a domestic bank for collection, he ''cauecl"" it to be transported in interstate commerce. It is common knowledge that such checks must be sent to the drawee bank for collection, and it follows th:it he intends the domestic bank to "end the check across sta.to lines. Trial § 288 - Instructions to jury - aiding" and abetttnr. 14. In a prosecution against two defendants fer violations of the mail fraud statute US USC § 1341) and the National Stolen Property Act <18 l 1SC § 2314l, committed by one of the defendanU, by causing a Meck drawn ~ tho defrauded person upon a.n out.-ofstate bank to be transported to the drawee bank, the jury is, as to the other defendant, properly charged on the theory that one who aids or abets the commission of :in act is as responsible for that act as if he had directly committed the act himself, where there is ample evidence of the defendants' collaboration and close co-operation in the fraud from "hich the jury could conclude that the second defendant aided and abetted the first in the comruission of the specific acts charged. Crbnlnal Law § 36 - double jeopardy - substantive otfeme 2nd conspiracy as sepa;ate offenses. 15. The commission of a substanti\'e offense ,;ind a conspiracy W commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a. convictiC1n for both. Only 1f the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy. Criminal Law § 36 - double Jeojardy - substantive offense and conspiracy as different offense.it. 16. The doctrine of double jeopardy does not preclude the con~ viction of two defendants on charges of violating, the ono as a principal, and the other as an abettor, the mail fraud stat•1te US USC§ l 34U and the National Stolen Property Act Cl8 USC§ 231'), and on charges of conspiracy to commit the substantive offenses, since the substantive offenses do not require more than one person for their commission and the conviction on the subsbntive grounds, of both the principal and the abettor, do not depend on any sgreement. Cd mlnal Law § 16 - aldinr 2nd abettlnw. 17. Aiding, abetting, and counseling are not terms which presuppose thf' existencf' of an agreement, but have a broader application, making the defendant a principal when he consciously aharu in a criminal act. rt'gnrdless of the existence of a conspiracy. November SO, 1954 THE LAWYERS J OURNAL 1189 Compfrac1 § 9.5, 20 - to violate mall fraud statute or Nation.al Stolen Propert1 Act. 18. To constitute a conspiracy to violate the ma.it fraud statute <18 USC § 13'1) or the National Stolen Property Act (18 USC § 2314), it is not necessuy that an agreement to use the mails or transport stolen property e."<iata from the inception of th'! &ehema to ddraud; it ia sufficient if there wns such an agreement at any time. Tri.al § 1S7 - question for JOJ'J' - use of malls for perpetration of fraud. 19. Where two defendants were closely associ3ted in a l!Chem'l to defraud, it is not imyropei: to al11,.w the jury to detcnnine from the circumstances whether one of tht> defendanti1 sh:i.red the other's knowledge that n check obtained by the latter from their victim was drawn on an out-of-state bank and &greed with him on the use cf the mt.ile as the only appropriate rr.eans of collecting the monc;. Argued October 20, 1953, Decided February 1, 1954. ON WRIT of Certiorari to the United States Court of Appeals fop the Fifth Circuit to review a judgment affirming petitione~s· conviction in the District Court for the Western District of Texas of violating the mail fraud statute and the National Stolen Properly Act, and of a conspiracy to commit these offenses. Affirmed. See same case below, 202 F2d 880 DECISION WARREN, CJ.: The petitioners, Pereira and Brading, were convicted in the District Court for the Western District of Texas under three counts of an indictment charging violation of the mail fraud 11tatute, 18 USC tSupp \') § 1341, viola.tion of the National Stolen Property At't, 18 USC <Supp V> § 2314, and a conspiracy to commit the aforesaid eUbstantive offenses, 18 USC <Supp V) § 371. The Court of Appeals for the Fifth Circuit affirmed. 202 F2d 880. This Court granted certiorari to consider questions which are important to the proper administration of criminal justice in the federal courts. 845 US 990, 97 L ed 13!'.19, 73 C Ct 1134. On April 19, 1951, Mrs. Gertrude Joyce, a wealthy widow, fiftyr.ix years old, and her young half-si.rter, Miss Katherine Joyner, were accosted by the petitioner Brading as they were about to enttlr a hotel \n El Paso, Texns. Mrs. Joyce and her siskr had just arrivetl frnm their hQme in Itoswell, New Mexico, and were preparing to register at the hotel, Brading identified himsell, nssisted them in parking their car, and invited them into the hotel bar to meet a friend of his. They accepted. The friend was petitioner Pereira, thirty-three years of age. After a few drinks, the men suggested that they all fio to Juarez for dinner. The women accepted, and after dinner visited some night clubs with the petitioners. Pereira devoted himself to Mrs. J oyce, telling her that thei.r meeting was an "epoch'' in his life. ·He mentioned that he was getting & divorce. This same performance was repeated the following night. When Pereira said that he would like to return to Roswell with the women, Mrs. J oyce invited the two men to be her house guests, and they a.ccepted, Pereira commenced. to makP lovP to Mrs. Joyce, and she responded to his attentions. On May 8, Pe~ira rxhihited a telegram to Mrs. JoycP, in the pre,:ence of Brading a.nd Miss J oyner, stating that his divorce would be granted on May 27, but that he would not receive his share of the property settlement, some $48,000, for a month. Brading represented himself as a prosperous oil man, dealing In leases, and Pereira ss the owner and operator of several profitable hotels. Brading then told Mrs. Joyce that Pereira was about to lose an opportunity to share in the profits of some excellent oil leases bceausc of the delay in the divorce property settlement, and ·Persuaded her to lend Pereira $5,000. Pereira suggested that he and Mrs. J oyce take a trip together to "become better acquainted.'' He 'borrowed $1,000 Crom her to finance the trip. Brading joined them at Wichita FaUfi, and the three of them continlled the t.rip together aa far as Dallas. Pereira dia.. cussed his purported hotel business i1' Denver during thi• p&rt of the trip. He atated th.at he waa givinJ[' two hotels to hia divorHCI wife. but intended to reen\er the hotel bus.ineu in the fall. IA the meantime, he we.a going to ''play a little oil" with Brading. In Hot Springs, Arki:.nsas, Pereira proposed marria~ and was accepted. Brading reappeared on the SC<!.ne, exprHsing great joy at the impend~ ing marriage. Pereira then told Brading, in the pruence of Mn. Joyce, that he would have to wilt.draw from !urtl':.er oil deals and get a hotel to assure himself of a steady income. Pereira and Mrs. Joyce ~·ere married May 25, 1951, in K&nus City, Missouri. While there, Pereira p€'rsuaded Mrs. Joyce to procure funds to enable him to complete an arrangemer.t to purcha99 a Cadillac through a friend. She secured a chttk for $6,956.65 from her Los Angeles broker, and drawn on a California bank, which she endorsed over to Pereira. The price of the car was $4,750, and ehfl instructed Pereira to return the balance of the proceeds of the che'!k to her. He kept the change. From that time on, Pereira and Brading, in the prese.nce of Mrs. J oyce, discussed a hotel which by words and conduct they re. presented th&t Pereira was to buy in Greenville, Texas. They took Mrs. Joyce - by this time Mrs. Pereira - to sec it, and exhibited an option for its purchase for $78,000 through a supposed broker, "E. J . Wilson." Pereira asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000, She agreed. It was then agreed, between her and Pereira, that she would sell some securities that she possessed in Los Angeles, and bank the money in a. bank of his choosing in El Paso. On June 15, she received the check for S85,000 on the CitizeM National Jfank of Los Angeles f rom her brokers in L<ls Angeles, and gave it to Pereira, who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on J une 18, a cashier'• c~1eck for $35,000 was drawn in ftwor of Pereira.. At five o'clock in the morning .Jf June 19, Pereira and Brading, after telling thrir victim that they were driving the Cadillac to a neighboring tov.n to sign some oil lenses, left her at home in Roswell, New Mexico, promising to rdurn by noon. Jnstead Pereira picked up the check for $35,000 at the El Paso Bank, cashed it there, and with Brading left with the money e.nd the Cadillac. That was the last Mrs. J oyca saw of either pt:titioner, or of her mont?y, until the trial some seven months later. She div'?rced Pereira on November 16, 1951. Th€' r P.cord clearly shows that Brading was not an oil man; thAt Pereira was not a hotel owner; that there was no divorce or property settlement pending in D':!nver; tho.t Pereiro. arranged to have the tP.legram concerning the :Jivorce sent to him by a frir:nd in Denver: that thel'e were no oil let>ses; that the hotel deal was wholly :fictitious; and that " E. J , Wilson" was the petitioner Brading. The only tr ue trtatements which the petitioners made concerned the purchase of the Cadillac, and they took that with them. Pereira and Bra.Jing contrived all of the papers used to lend an air of authenticity to their deals. In short, their nctivitics followc-1 the familiar pattern of the "confidence game." The petitioners challenge the admissibility of Mn. J oyce's testimony as being based Oil' confidential communication!' between Mrs. Joyce and Pereira during the marriage, Petitioners do not now contend that Mrs. Joyce wn.s not a competent witnesa against her ex-husband. They concede that the divorce removed any bar uf Incompetency. That is the gen. Headnote 1 erally accepted rule. Wigmore, Evidence Headnote 2 § 2287; 58 Am JtJr, Witnesses § 204, Petitioners rely on the proposition that while divorce removea the bar of incompetenry, it does not terminate the privilege for confidential marital connnunications. Wigmore, Evi. dence § 2841 C2J; 58 Am Jur, Witnrsscs, § S79 . This is a <."'>rre<:t stutement of the rule, but it is inappUHeadnote 3 cable to bs.r the communications involved In thi• case, since under the fact.a of the case, it cannot he said that these communications were confidential. Although marital communications are Presumed to be confider.tial, that presumption may be overcome by proof of facts show640 THE LAWYERS JOURNAL Nove.mbor SO, 1964 ing that they were not intended to bE: private. Blau v. United Headnote .( State•, 340 US 332, 95 L ed 306, 71 S St 301; Wolfie v . United States, 291 US 7, 78 L ed 617, 54 S Ct 279. The presence o! a third party negatives the preoumption of privacy. Wigmor ... , Evidence § 2336. So too, the intention that the information Headnote 5 conveyed &. transmitted to a third person . Id ., § 2337. A review of Mrs. Joyce's testimony reveals that it involved prim<.rily statements made in the presence of Brading or Miss J oyner, or both, acts of Perdra Headnote 6 which did not amount to commnnicationa, trips taken with third parties, and her own acts. Much o! her testimony related to matters occurring prior to tho marriage. Any residuum which may have been intended to be confidential was so slight as to be immaterial. Cf. United State! v. Mitchell <CA2d NY> 137 F2d 1006, 1009. The court below was not in error in admitting Mrs. Joyce's testimony. The petitioners challenge t heir conviction on foe substantive counts on the ground that there was no evidence of any mailing or Headnote 7 of transporting stolen property interestate, the gist of the respective offenses. These contentions are without merit. The mail fraud statute n!"ovides: "§ 1341. Frauds and swindles "Whoever, having devised or int~nding to r!.evise any schemti 0 1· artifice to defraud, or f l}l' C1bt11.ining money or property 1'y means of false or fraudulent pretenses, represer.tations, Ol' promisPe, or to sell, dispose of, loan, c ·xchange, niter, give away, distribute, supply, or furnish nr procure for unlawful use any counterfLit or spurious coin, vbligation, security, vr other article, or anything represented to he or intimated or held out to be guch counterfeit or spurious article, for the µurp·)Se of executing such scheme or artifice or attempting so to do, places in ~ny post office or authorized depository for mail mntter, any matter or thing whate.ver to be sent or delivered by the Post Office Department, or takes or receives therefrom, r.ny such matte!' or thitig, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is add1·essed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both." 18 USC (Supp V) § 1841 . The National Stolen Property Act provides: "§ 2814. Transportation of stolen goods, securities, monie~, O!' articles used in counterfeiting'. "Whoever transports in interstr.te or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have br:en stolen, converted or taken hy fraud . "Shall be fined not more than $10,000 or imprisoned not more than ten years, or both . , " 18 USC <Supp VJ §2314. To constitute a violation of these provisions, it ie not necessary to show that petitioners nctually mailed Headnote 8 or trnnsported anything themselves; it is suffident if they cnused it to be done. 18 use tSupp Vl ~ 2 <bl. Petitioners Jo not deny t.hut the proof offered esta.blishes that they plouned to defraud Mrs . • Toycc. Collecting the proceeds ot tho <:h<'ck was nn esscntiu\ J'lart of that scheme. For U1i" purpose, Pereira delivered the check drawn on a Los Angeles bank to the El Paso bank. Thf're wns subt.tanlial e\·idence to show that the check w:is tnailed from Texas to Ca.lifornia, in the ordinary course of bu•iness. The elements of the offense of mnil fraud under 18 USC <Supp VJ § 1341 are U> a scheme to defraud, and (21 th£ mailing of a letter, etc., for the purpose of extt:uting the 11ehu:ne. It i• not neceasary th:it the scheme contemplate the U.!e of the mails as an essential ek!:ment. United Headnote 9 ' States v. Young, 232 US 15!i, 58 Led &CS, S4 S Ct 303. Here, the scheme to defraud i• ea. tablishcd, and the mailing of the check by the bank, incident to an essential part of the scheme, 1s establiMed. 'fhl're remains only the question whether Pereira .. caused" the mailing. That question is easily answered. Where one does an :i.rt with kno11rlHeadnote 10 edge that the use of the mails will follow in the ordinary cour:;;e of busineM, or where such u!';e can reasonobly be forer.l'CII, even though not actually intended, then he "causes" the mails to be used. United States v . K<'nofskey, 243 US 440, 61 Led 836, 37 S Ct 438. The conclusion that Pereira's conviction under this count was prc•per follows naturally from these factors. As to th~ charge of causing stolen property to be transported in interstnte con1merce, the validitf of Pereira's conviction i• even more apparent. Sections 1341 and 2314 o! Title 18 constitute> two separate offenses, ond a defendant may be Headnote 11 convicted of both even though the charges arise from a single & ct or series of acts, so long as each requires the proof of a fact not essential to the ether. Gavieres v. United States, 220 US 33~, 55 Led 489, 31 S Ct 421; Block burger v, United States, 284 US 299, 76 L ed 306, b2 S Ct UIO. 18 USC <Supp V> § 2314 requires <ll knowledge that certain property has been stolen or obtained by fra.ud Headnote 12 and (2) transporting it, or causing it to be transported in interstate commerce, It is obvious that the mail fraud offense requfres different proof. The transporting ('.barge does not require ~roof that any specific means of transporting were used, or that 1.he acts were dt>ne pursuant to a scheme to defraud, a.s is required for the mail fraud charg11. United States v. Sheridan, 329 US 379, 91 L ed 359, 67 S Ct. 832. When Pereira delivered the check, drawn on an out.-ofstate bank. to the El Paso bank for collecHeadnote 13 t ion, he "caust.d" it to be transported in , intestate i:ommerce. It is common knowledge that such checks must be sent to the drawee bank for collection, nnd it follows that Pereira intended the El Paso ba.nk to send thi11 check across state lines. United States vs. Sheridan, supra C 329 US at. 39ll. The trial court charged the jury that one who ''aids, nbets, counsels, commands, induces, or procures'' the commission of an act is as responsible for that act a.a if he had directly committed the act himself. Sec 18 USC <Supp V> § 2 (a). Nye and Nissen v. United States, 336. The jury found lJrading guilty in the light of this instruction. The Court of Appeals affirmed on the ground that the evidence supported c1Juviction under this char&"e.' The evidence is clear and convincing that Brading wha a participant in the fraud from beginning to end. Brading made the initial contact with the victim. He persuaded her to part with $5,000, as a Joan to Pereira for investment in some non-existent oil leases. He was present and pa......itcipated in conversations about buying the hotel lease. He · engaged a telephone answering service under the name of '"E. J . Wilson," broker. The eviJencc establiahed that he sent a t.elegram to Pert:!ira authorizing an extension of the supposed option to purchase the hotel, signing it "E. J. Wilson." He supplied the false excuse for Pereira's departure from the victim, and went with Pereira to collect the prO('eeds of tho chec.k. Ho and Pereira fled together with the money, The "aiding and abetting'' instruction entitlrd the jury to draw inferences supplying any lack o! evidence directly conned.. ing the petitioner Brading with the apecific acts i::harged in th• l The G<w.rn1n1nt •f"CUH I.hat Br.dins'• con.lctlo11 011 I.be ...,t..t..11tl"e $ffe11•e. u • .n. be affirmed on th. bul• of Plnkerto11 "'· Unlt<!d St.atH. l!ll US U t. tD L ltd 1~!9, H S Ct I ISO. 1lnC<1 I.be ...eord clemonstrat.u th.i ba consp;red Lo dlfraud M.n. 1o.,-c. and the a<:l&t-harired 111 U..auhet.\ntJ...,oftt-llM9 -n Kl.a 111 t urtti.ranc. ol that d..ts11, The P loker\c>n ca., how...,u, t. lu.111>Ucabl. btni • lnC<I the Jury wu not lnttruct.ed In t.n:u of that t.beotT. N,. 6 Nl-11 "· United Stata1, au us tU, u L -4 tlf, H s 0 111. NoYembcr 30, 1966 THE LA WYERS JOU'R~AL indictment from the abundant clrcumr.tantial evidence offered. The jury waa properly charlft!d on this theory. There is ample evidence of the petitioneu' Headnote 1' collaboration and close/~oopnation in the fraud from 'C\·hich the j;vty could conclude that Brading aided, abetted, or counseled Pe~i~4.'in the commission of the arpecific acta charged. See Nye f.t. Nissen v, United Statca, eupra <336 US at 619), The Court of Appeals has pa.ssed on the aufficiency of the. the evidence to sustain Brading's conviction on thia theory. We see no reason to upset the findings of the courll below. The petitioners allege that their conviction on both the substantive counts and a conspirary t-0 commit the crimes charged in the substa.ntive counts constitutes Headnote 16 double jeopardy. It is settled law in thb country that the commission of a substantive of!ense and a conspiracy to commit it are separate and distinct crimes, and a plea of double jeopardy is no defense to a conviction tor both. See Pinkerton v. United States, 828 US fi40, 643, 644. 90 L ed 1489, 1494, 1945, 66 S Ct 1304, and case cited therein. Only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy, Cf. Gaviere11 v. United States, 220 US 338, fi5 L ed 489, 31 S Ct 421. The substantive offenses with which petitioners were charge do Headnote 16 not require mere than one person for their commission; either could be accomplished by a single individual. The essence of the conspiracy chargt. is an agi-ee.. ment to use the mails to defraud and/or to transport in interstate commerce property known to have been obtained by fre.ud. Pereira'a conviction on the substantive counts does not depend on any agrN· ment he being the principal actor. Similarly, Br£ding's conviction does not turn on the agreement. Aiding, abetting, and counseling are not terms which pre.. Headnote 17 suppose the existence of an agreement. Those terms havtl a. broader application, making the defendant a principal when he consciously shares in a crimina.1 ad, regardless of the existence of a conspiracy. Nyl:l & Nissen v. United States, supra• <336 US at 620l. Thus, the charge of cons· piracy requires proof not essential to the convictions on the substantive offenses-proof of an agreement to commit an offense against the United States--a.nd it cannot be said that the sub.. stantive offenses and the conspirncy are idcnt:cal, any more th::n the two substantive offenses are identical. Petitioners further contend that there was no evidence that they agreed to use the mails in furtherance of the scheme to defraud Mrs. Joyce or that they Headnote 18 agru d to transport stolen prnperty in in~ terstate commerce. It is not necessary that an agreement to use the mails or transport stolen property exists from the inception of the scheme to defraud. If there was such an agreement at any time, it is sufficient. The existence of a conspiracy to defraud Mrs. Joyce is not denied. Pereira obtained a check from the victim for the purchase of nn :iutomobile. ThRt check was drawn on a Los Angele.J bank by Mrs. Joyce's broken. When the subject of purchasing- the hotel was broached, Mrs. Joyce told Pereira that she would have to have her California broker sell some stocks to obtain the funds for the purchase. When there was a delay in contacting the broker, Brading, as "E. J, Wilson," Bent a telegram extending the spurious option for tho purchase of the hotel. There is no doubt about Pereira's knowledge that a check on an out-of.state bank wouk'. be involved. From what we have ~aid with regard to the subshmtive offenses, it is also clear that an intent to collect on the check would include an intent to use the mails or to transport the check in interestate commerce. It certainly not improper t.3 a.llow the jury to determine from tho circumstances H eadnote 19 whether Brading shared Pereira's knowledge 3nd agreed with him as to the use of the cnly appropriate means o( collecting the money. It would be unreasonable to suppose that Brading would be sc closely uso.. dated with Pcrcim in the scheme to dc!raud without knowing the details related to the realization of their common goal. There ii no reason for this Court to apset the jury's finding ot conspiracy. For the foregoing reasons, the judgment below ii Af!irmed.. Mr. Justice Reed took no part in the consideration or decision of this case. Mr. Justice Minton, with whom Mr. JiutU:e Blat:k and Mr. J1LStice Douglas join, concurring in part and dissenting in part. That a monumental fraud was perpetrated by the petitionen on Mrs. Joyce in the true fashion o! a confidence gs.me cannot be disputed. Such fraud could be punished by the States. For the United States to take cognizance of the ofCenses, the mails had to be used to carry out the fraud or the check fraudulently obtained must have been carried across state lines. That is what the Government charged. Count one charged that they caused a letter to be mailed from El Paso, Texas, to Los Angeles, California, on June 15, 1951. Count ten charged that o:i or about the same date they caused the check, in the amount of $35,286.78, to be transported in interstate commerce from El Pa.so to Los Angeles, knowing it was obtained by fraud. Count 11 charged a conspiracy to corwnit the substantive offenses. I would affirm the convictions e..'!cept as to Brading on the substar-tive counts. To convict on the substantive counts, the potl'itioners must have actually used tho mails to transpo1t the ch~k from El Paso to Los Angeles. The use may be proved by direct or circurnsta.nt.iAI evidence, but it m~st be proved. Brading must have used, or must have known or from the facts and cfrcumslances be reasonably expected to have known, that Pereira actually would use the mails. United States v. PeQni tCA2d NY> 100 F2d 401, 402. To be guilty of the cC1nspiracy, Brading had cmly to reasonably anticipate the.t Pereira might use the mails, and if he did subsequently use them, then Brading is bound. The elements. of the offense under the Mail Fraud statute are n> a scheme to defraud which (2) reasonably contemplates the use o! the mails, and (3) use of the mails in furtherance of the plan. The National Stolen Property Act is violated if <ll one transports securities or money of the value of $5,000 or more in interstate commerce and (2) does so knowing they have been taken by fraud. Concededly, Brading did not participate directly in the use of the mails to transport the thirty.five thous.and dollar check from El Paso to Los Angeles. He can be convicted, if at all, only .•11 an aider and abettor. Nye & Nie.sen v. United States, 336 US 618, 618, 93 L ed 919, 924, 69 S Ct 766. There is no evitlence to establish that he could reasonably have expected that the mails would be used in carrying out the scheme. Three financial trans.actions are mentioned by the Court in its opinion. First, the $5,000 transaction. That aU took place in Roswell, New Mexico, where Mrs. Joyce cashed a check on a Roswell bank alJd gave the proceeds to Pereira. No federal offense there. The Cadillac transa.etion was liquidated by a check received C rom Los Angeles by Mrs. Joyce and tumed over to Pereira, who cashed it in Kansas City, Missouri. Brading was not shown to have known where this money came from, and, morB important, it was not proved that that check wu mail~. aa was done in the ca.se of the third check, for $35,286.78. Mrs. Joyce arranged for this check, the only transaction upon which thP convictions are based by selling securities in Los Angeles. She received the check n.. 1d turned it over to Pereira in RosweU, New Mexico, from whence he took it to El Paso, and there, on J une 15, 1951, after securing Mrs. Joyce's endorsement. caused it to be sent through Lhe mails for collecticn. The evi. dwce does not shC1w where Brading was at the time these eventa occurred. He next appeared st Mrs. Joyc<l's home b Roswell aft.for the completion of the a.eta constituting the federal crimes, and on June 19, 1951, left with Pe=eira, ostensib!y to tee about some oil leases in Texas. The same day Pereira collected the money at the El Paso bank. There is no direct evidence that Brading actual.. 542 THE LAWYERS J OURNAL November 30, 19r.4. Jy knew or had reason te believ~ that a check would be received or that the check would be dra\vn on e.n out-ot-Mwn bank, ne. ceuitating its being placed in the mails for collection. Lacking !uch proof, an important element of each crim@ charged, namely, that Brading had reason to foresee the use of tho mails or interstate commerce, has not been established. It 18 true that the use of the mails need not have been originally in. tended as a part of the plan, but its use must have been a na... tural, reasonably foreseeable means of executing the plan. Brading might well have assumed that cash would be given to Pereira, or, if t. check, one drawn on a local bank. It may well be reasonable to infer that one receiving a cheek drawn on an out-of.town bank would know that it would be mailed in the process of collection, but to that inference must be aclded the inference that Brading had reason to know that a check wculd be received and also that tho check would be on a.n out-oft.own bank. This is piling inference upon infcrcuce, in the absence of direct proof. In short, this is simply guessing Brading into the federal penitentiary. It may be good guessing, but it is not proof. Brading is clearly an aider and abettor of th~ scheme to defraud, which a State may puniah, but is he an airier. and abettor of the federal offenses -of using the mails to defraud and causing the fraudulent check to be carried across state lines? I think not, unless we are willing to say that aiding and abetting the scheme to defr.!.ud is aiding and abetting any mea:m: u~ for the consummation of the fraud. Brading must aid and abet the fede. ral crimes, not just the f raudulent ccheme. There is not a acin. tilla of evidence ths,\ firading aided and abetted anything more than the scheme to get the money from Mrs. Joyce. In Bollenbach v. United States, 326 US 607, 90 L ed S50, 66 S Ct 402, the defendant was cha.:-~d with transporting securities in interstate commerce knowing them to have been stC'len, and with conspiracy to commit the offense, The court had instructed the jury that possession of the securities by the defendant in New Ycrk soon nfter their theft in Minnesota was sufficient to warrant the jury in finding that the defcnrtant knew the securities had been stolen, and this would support the further "presumption'' thnt the defendant was the thief a.nd transported the securities in interstate commerce. This Court set the conviction aside. The lotter inference was said to be unWnable. In this case, I think it untenable to infer that Brading had reason to know that Pereira would g£:t a foreign check that must b~ sent through the ma.ils and in its handling must l.e carried acroH statelines, thereby making out the fe<le1·0.l crimes. It is untenable because it is unreasonable to infer one or more facts from the inference of another fact. Looney v. Metropolitan R. Co. 200 US 480, 488, 50 L ed 564, 569. 26 S Ct 303; United States v. Roaa, 92 US 281, 23 L cd 707.-c OPINIONS OF THE SECRETARY OF J USTICE Conh·nued from page 538) New M:abuhay Cabaret which ceased operation after liberation. The l'xei-tion and sleepless nights during guard duty." It also appears, t:nly identity between that cabaret t:nd the cabaret proposed to t e from an ~xamination conducted by the Committee on Physical constructed is that the latter would use the wm1• name .tnd b~ F.xamination of the Depu tmen\" of Henlth <4th indors~ment of constructed at the same place. For all legal and practical pur- J uly 7, 1952, not attached), that the continued performance of the poses, the new cc.baret is a new business and does not come within strenuous duties of Lapira who was already suffering f rom a chrothe protection of the Cabinet resolution which is being invoked. nic heart desease may have been the direct and immediate ca1'8• The licei:se granted the form~r owner of the New A1abuhay of his death. Cabaret was a mere privilege; he had not acquired any vest1::d ri~ht Opinion is now requested as to whether under the facts above therein which he could transfer as of right to anyone with or with- described the widow and children of said deceased may be entitled l')\.lt valuable consid1;ration. to the benefits of section 1 of Republic Act No. ~O which provide! ' The undersignPd is therefore of the opinion that the qutry as follows: should be answered in the negative "SECTION 1. In additir-n t<> nny right ur benefit which, CSgd. > P E DRO TUASON Secretary of Justice / OPINION NO. 157 /r"o~1 the questio1t as to whether the circumstances surroimdmg the death of i11. Lapira, former member of the Police Poree of Guagua, Pampanga, e11title him to the benefits of Sec. l of Rep. Act No. 30.) 5th lndor11cme'l"ll J une 30, 1904 Hespectfully returned to the Hunnrable, the Executive Secretary, Manila. The within papers refer to the claim for gratuity under Re· public Act No. 30 of the widow of the late l\lart.in Lapira. The lnte Martin Lapira was a former member of I.he Police Force of Guaguu., Pampanga. On several nights prior to Novembt>r 18, 1951, he was assigned to guard duties at Barrio San Antonio, .Municipality of Guagua, in connection with the campaign for the maintenance of pl'ace and order. It appears that the barri" of Snn Antonio had been the scene of nightly depredations by the dissidents prior to the deceased's assignment to said barrio, On the night of November 18, 1951, while on guard duty, he suddenly had a :;light chest pain followed by frothinE; at the mouth, dyspnea, snoring, unconsciousness dnd cyano!>is. Htl died at obout &:SO tlmt. sumc night. According tfl the maternity and charity physician of Guagua who attended th-:. Jece&scd, he "died of heart failure which may be the result of coronury thrombosis or a long standing myocR!"ditis, either of which may be co.use by prolong phyi:ical by op1::ration of law, accrues to the widow and/or chi!drCJl of a t\('ceased officer or membe~· of ony police fc.rce or similar governmental organization, whethel" national, provincial, city or municipal, engaged in the maintenance of peace and order, there is a uthorized to bl' paid to such widow and/or children a gro.tuity equivalent to one year so.lary, but in no case less thun the sum of one thousan•t r•esos, if the deceased officer or member of the force shall have bee11 1.. -illed while cnaaged in the performance of hi• duh"e• in com1t"cliOt1 with the campaign fo1 the maintenance of peace and order or as a direct consequence of liis participation therei11. If such deceased has m> 3urviving widow or chilrlren, such gratuity shall be paid to his other he:irs in the order of succession established by the Civil Code." Prom the finding of the Mat~rnity and Charity Physician of Guagua and the Committrc. on Phy1,ic11l Examination of the I)('.. partmerit of Health, there is a clear showing that the late Policeman Lupiru. died as a consequence of his participation in the campaign for the maintenance of peaco and <>rdE'r in his m1.iuicipality. Tho fuct that he was already suffering from a chronic heart dcseaM' nt the time of his assignment does not detract frr">m thr l inding<J that the decea~ed died in line of duty; died as the direct and immedia te result of his duties which, because of the hours and the dangerous character of said duties, must hav.!" inflicted heo.vy stt>.sin on his physic and produced severe nerve.us tension, He was all the more d?.serving of reward because of the greater risk he undertnok to his life on account of his impaired health. In view of the foregoing, the query i! answered in the aflirma· tive. CS~td. > PEDRd TUASON Secretn ry of Ju111Jc:e November 30, 1954 TUE LAWYERS JOURNAL SUPREME COURT DECISIONS I H. E. lleat:ock Co., PetitiD11er-Appellant, v1. Nati0'11(1l Labor Union et al., Rupondenb-Appelleu, No. L-5577, JulJi 31, 1954, Paraa, CJ . 1. EMPLOYER AND EMPLOYEES ; FINDINGS 01'~ FACT OF COURT OF INDUSTRIAL RELATIONS, CONCLUSIVE IN APPEAL BY CERTIORARI . - The findings of hct of the Court of Industrial Relationa in an appeal by certiorari are conclusive on the Supreme Court. 2. ID.; BONUS; PAYMENT ON EQUITABLE CONSIDERATION. - For the year 1947 the petitioner paid a bonus of one month snlary to all its employees, and for the year.; 1948 P.nd 1949, realizing necessary profits, it also paid a be.nus to its executives and heads of depar.:ments, omitting only the low salaried employees. H eld: E~·en if a bonus is not demandab!P. for not forming part of the wage, salary or compensat.ion o~ the employee, the same may nevertheless be granted on equitabll' considerations. 3. ID.; ID. ; ITS CONSIDERATION. - Any extra concession granted by the employer to his E"mployee or laborer is nec1<ssa1·ily premised on the need of improving the latter's working conrtitions to the highest possfo!e level, in return only for the efficient service and loyalty exi;E"cted from the employee - laborer. Perl.:ins, Ponce En.Tile and Contn.,,-as fJJr the petitioner. / H . A . Ferrer lor the respondent court. V Eulogio R. Lerum for the respondent Union. DECISION PARAS, C.J.: The National 4bor Union, hereinafter to be referred to as the Union, filed a petition under elate of J une 26, 1950 in thP Court of Industrial Relations against H . E . Heacock Co., herE:inafter to be referred to as the Company, praying that the lattP.r be ordered to pay to all its low salaried employees their bonus for the ye:i.rs 1948 and 1949, in an amount equivalent to one mcnth 15alary for each year, it being alleged in substance that on th{I occasion ol the distribution on April 17, 1948 of the same bonus for the year 1947, the Company promised that said benefit would be grnnted y•nnly to th11 employees, provided sufficient. prl"fits werti mnde; that in 1948 and 1949 the Company, notwithstanding available profits, distributed bonus only to its high salaried employees; that upon the Company's failure to accede to the Uni1m's demand f.-r the payment of the stipulated bonus for the years 1948 and 1919. nnrl upon its refusal to· submit the matter to the labor-manngcment ~ommittec in accordance with the collective bargaining agree1r:ent of April, 1949, the employees declared a strike on June 19, 1950. In ita answer, the Company in substance alleged that 1t had never bound itself to pay an annunl bonus and that granted for the year 1947 was purely an act of grace anci liberalhy on the part of the Company; that while the Company made some prl"fil9 tind paid to its c.xecutives and ..:hiefs of departments bonuses for the years 1948 and 1949, the t !ll:ime was a voluntary concession to 1581id officials who had received no increases in pay and were not entitled to nnd did not actually cnllect compensation for overtime work; that the compensntion of the employees was never mac!r- !o depend wholly or in pa1t upon profits, nnd sll wages Lo which were set out in the agreement cf July 11, 1949, nnd any other 1myment or gratuity was entirely within the Company'~ Jiscrction; that the illegal strike stnged by t.he Union led the Company to suffer damages in the sum of P'12,000.00. After henring, the Court of Industrial Relntions, through Judgt! Jose S. Bautista, rendered a decision in favor of the employees, ordering the Company to pay them one month salary as bonus for the year 1948 and another one month salary for the year 1949. A subsequent motion for reconsideration filed by the Company was dcnil'd by the resolution of the Court of IndWltrial Relations in bane, dated July 16, 1951, by a vote of three to two. The instant petition for certiorari was filed by the Company, aa.u.;Jing the decision of the Court of Industrial Relations. The lower court found thi;.t on April 17, 1948, the Com~y distributed to all its en1ployees a bonus equivalent to their salaril"'I for one month for the year 1947; that the Company realil:ed profits in 1948 and 1949, and although it paid bonus to its high officials and executives for said years, it did not extend the same pnvilege to any low salaried employee; that the Union duly filed with the Company a protest against such omission, and demanded the payment of the same bonus to all the low salaried employees; that in t.he protest of May 15, 1950, the Union gave notice that. upon failure of the Company to grant the demand, steps would be taken for thl! protection of the members of the Union; that upon denial of the Company and its failure lo submit the m!\tter to the labor-management comn1ittee, as requested hy the Unior:, the employees staged a peaceful i::trike on J une 19, 1950, although they returned to work in obedience to a directive of the court; that the Company in fact · made a promise to all its low salariP.d {:mployees on April 17, 1948, that a bonus of one month salary would be distributed among them yearly, as for the year 1947, as long as the Company would realize sufficient profits, The Company, however, contends that it had never assumed the obligation of paying the bonus claimed by the Union, and that there is no evidence whatsoever tending to prove such obligation. It appears thnt the issues of The Manila Times and The Manila Chronicle of August 22, Hl48 featured a "Heacock Supplement" containing the following statements: "The stesdy growth and enviable reputation of the H. E. Heacock Co., as an institution well known in the Philippines and in the entire Far East for its quality merchandisE: nnd courteous service exemplify a modern tenet of progressive employer-employee relationship founded on mutual confidence and good-will. "The lieo.eock employees arc given all the benefits that can reasonably be expected from the management, Jose Y. Orosa, the firm's first vice-president and assistant general manager, declared. 'For this reason,' he added, 'we have never had the unfortunate experience of seeing our employees go on strike since the company was organized in 1905. And we don't expect to have any strikes.• "That the sound relationship between the management and the employees redoundR to the good of everybody concerned win also pointed out by Mr. Orosa. The employer's goodwill is returned wit.11. a spontaneous manifestation of loyalty, coopera· tion, efficiency and unstinted h~nesty .Jn the part of the employees, it was further explained. "The present mutual· confidence and good-will of Heacock'a personnel is maintained for the ultimate benefit of the buying public, Mr. Orosa said. Employees who arf' treated right have sufficient reasons to give their employers full cooperation so that in the final analysis, thP customers are the recipient11 of the rewards of sucb cooperation. "Since the H. E. Heacock Co. resumed business after the war, 87 of its 200 employees have been given salary incl"C!lsea, Mr. Orosa revealed. There are other meritorious cases which deserve sin1ilar consideration in due time, it was pointed out. "One of the most helpful and progressive atepa ever taken by a firm like Heacock's is the setting up of a special fund for which the employees may draw a cash loon equivnlent to a haJf. month salarr and psyable within 60 d~ya. Thia privilege, it was explained, is a boon to those employees who may be fo;."'Ced THE LAWYERS JOURNAL November 30, 195' by circumstance11 beynnd their control to meet emergency needs. "Another benefit extended to Heacock employees is a 25 per cent overtime par in addition to their regular pay. In other words, the employees arc paid 25 per cent for all hours of work beyond the eight-hour iimit fixed by law, it wall- also str~ssed. Thie makes it fair and profitable for the employe<> of this firm to render ovcrtimt> service whenever the need arises. and that generally is durin15 speci&l sales and the Christmas "At the end of every year, 3.fr. Orosa declared, the Heocock cmplnyees enj•)Y a profit-sharing privilege when they are given bonuses by the management, the amount depending on the pro~'it:.i realized during that year. This progressive policy, he pointtid .mt, makes for a genuine interest on the part of the employees to work honestly and sincerely for the good of the company - a compa11y which is theirs in a sense. ·'Every year lhe employee.• of Heacock's are giwn 15 days vacation leave and 15 days eick leave with pay. They arralso entitled to free medical and dental service r~ndert:d by the company physician and <le11tist. "The management of the H. E. Heacock Co. fi rmly lw· lieves that athletics fosters fraternity, cooperation anc( 'a sound mind in a sound body.' With this end in view, the firm formed an alhll!tic association whose membership is open to all employeC's of the company. Followers of the basketball game in this country arc familiar with the reputation of the Heacock quintet which has time and again garnered laurels in the local sporting world. "Mr. Orosa. revealed that the H. E. Heacock Co. is a bona fide member of the Manila Industrial and Commercial Association <MICA>. Such membt>rship, he said, a:;sures both the management and the employees with a solid foundation for profitable anci sound business J·elationship. Problems affecting both parties which may arise a rt: met and solved with opG11 minds on common grcunds. Fortunately for Heacock's, 40 years of puhlic' service have pt·oved that the management and the employees have joined hands in mutual confidence and good-will . "'Heacock's has a splendid reputation,' Mr. Orc~a dechued, ':uul this has been built up by the employees and the government. We ha\'e liv"d up to the expectation of the 1iublic. We <'Oil· linue to do so, and to better serve our customers, wC' are opening our now air-conditioned stol'e this week . '•· The sumo publication was cari·!ed in the issue of Tlie Manila Dttily B1tlleli11 f)f Au~ust 23, l!M8. The Union presented om\ c\'idence tendin~ to show that the President and General Manager of the Company, Donald 0. Gunn, was the one who made the prnmise uf .<\.pril 17, 194~, to pay to all its employees yearly C'ne·mr.nth salary a s bonus, provided there were profits. This testimony is controverted by Mr. Gunn; but the lower court considered, in addition to such oral evidence, the publication of the " Heacock Supple'· mC'nt" on the occasion of the opening of the new store or the Company in Dnsmariiias Stre~t, Manila, as conclusive 11roof of its com· mitment to pay the bonus in question . The ''Heacock Supplement'', in the portion pertinent. to th~ casP ut bar, contained the following paragraph: "At the end of C'ven• yenr, Mr. Orosa declared, the Heacock employees enjoy a profit. sharing privilege when they are given bonuses by the management, the amount depending on the profits realized during the year. 'l'his prog ressive policy, he pointed out, mnkea for a genuine interest 011 the pa1·t o·r the employees to work honestly nnd sincerely for ~;1e good of the company - a company which is theirs in a sense. " These sbtements are denied by Mr. Orosa, Vice-President and Assistant General Manager of the Company; and attorneys for the latter argue that Guztavo M. Torres, Assistant Manager of the Personnel Service Ad\·ertising Bureau which was then handliug the advertising account of the Company, prepared the " HeP.cock Supplement", and, testifying on his interview with Mr. Orosa. declared that he was not cert3in a.s to the nature of the boniu ta!kt.d about, 3nd that he thought that it referred to the Christmas bonua which the Company gives to its employees at the end of e,·ery year, and that thls was what. he had in mind when be wrote the article in question. The Court of Industrial Relations irue M weight to the denial of Mr. Orosa, and observed that the htter was aware, or should have read and known the Supplement in question, and his failure to make any correction or dental of it1 contents shortly after its publication, negati'"es the stand now taken by him . The Company also points out that both Mr. Gunn 3ttd Mr. Orosa could not legally bind the Company which can only act through its board of directors. and there is nothing in the reoord to show that the board promised to pay any yearly bonus or ratified t.he alleged promise mo.de by Mr. Gunn or M r. Orosa. Coun!el for the Union, however, observes t.hat notwithstanding U1e pubUcation of the " Heacock SuJJJilement" which undoubtedly must have been noticed by all the officials of the Company, no correction or denial ever came from its board of directors which, by such silence, must be deemed as having ratified the commitment of Mr . Gunn 11.nd the statement of policy fea tured in the "Heacock Supplement" . The Court of Indust rial Relations also in\•oked, as another circumstance confirming the promise made by Mr. Gunn to pay an annual bonus to all the ·low salaried employees of the Company, the following passage contained in his letter of February 19, 1949, addressed to the Union: "The company desires to call your attention tb the fact that the salar ies, bonuses (on plural por referirse al bono de Navidsd y al bono por razon de utilidades) pa id vacation leaves, paid sick leave, medical and dental ser\'ices, and other privileges and facilities, accol'ded to its cmplol·ees are the highest in the city of Manila for comparable positions nnd, as a consequence, we cannot consider any general increase in wages at the present time without doing violence to the stal1ility of thr- labor situation here, of which rou are fully aware." Attorneys for the Company h1n·e exerted great efforts in disputing the findings of the lower court, but we are not in a 11osition to pass upon, much less alter, said findings which !I.re conclusive in this instance. Bven so, the decision favorable to the Union may further be predicated upon the case of Philippine Education C.Ompany, Inc . vs. Court of Industrial Relations et al. , G. R. No. L-5103, December 24, 1952, in which we held that, even if a bonus is not demandable for not forming pa1t of the wage, balary or compensation of the em1ll,1yce, the same may nevertheless be granted rm equitable considerations. It appears herein !hat for the year 1947 the Company paid a bonus of one-month salary to all its employees, and for the years 1!>48 and 1949, 1·eahzing necessary r,rofits, it also paid a bonus to its executives and heads of dep:rrtments, omitting only the Jew salaried employees. The payment of the bonus in 1947 already generated in the minds of all the employees the fixed hope of receiving the same concession in subsequent years, nnd on the ground of equity they deserved to be paid the bonus for the years 1948 and l 949, when the Company admittedly realized enough profits. The Company insists that its high officials were given bonus for 1948 and 1949 because they had never been granted any salary raise or paid for any overtime work. This i1, h~wever, answered by the Union which alleges that no salary inc1·ease or overtime pay was neC"cssury for the high officials of the Company, since they have already been receiving adequat• compensation . The Company also maintains that no valid obligation to pay the bonus in question could a rise, because there was no consideration therefor. It is !1-uCficient to state that any extra concession granted by the employer (l( his employee or laborer is necestarily premised on the need of improving the latter's \\"Orkin~ conditions to the highest possible level, in return only for the efficient. service and loyalty expeeted from the employee or laborer. Wherefore, the decision of the Court of Industrial Relationa is hereby affirmed, and- it is so ordet~d with costs against thf' petitioner, H . E . Heacock Co. Pablo, B eng::.on, Padilla, M01tttima.11or, A. 'Revu, Ju110, Baadi.tta kf'ytJl o, Labrador, Con.cepci011. J.J., C'lncur . November 80, 195.!l T l-I E LAWYEP..S JOU RNAL ... II Junn Ga"-in:a, Plainfif!-Appdlee, 118. Sotero N. Nuesa, Defendant-Appellmit, No. L-6628, August 31, 1954, Paras, C. J. PURCHASE AND SALE; RIGHT OF REPURCHASE; STIPULATION ON THE PERIOD FOR LEGAL REDEMPTION. - The parties to a sale with pacto de retro may stipulate on the period for redemption, unaffected by registration or by section 119 of Commonwealth Act No. 141. Alejo ll!abanag and Mauro Verzosa for defendant and appellant. Fidel Sor. Mangonon for plaintiff and appellee. DEC I S I ON PARAS, C.J., The plaintiff Juan Galanza owned a parcel of land covered by original certificate of title No. I-2247 issued on July 23, 1934, and acquired as a homestead. On September 7, 1940, he sold said. land to the defendant Sotero N. Nuesa with a right of repurchase within 5 years from the date of execution of the deed of sale. The original certificate of title No. 1-2247 was not cancelled until July 17, 1947, when a transfer certificate of title No. T-172 was issued in the name of the defendant. On May 19, 1951, the plaintiff instituted in the Court of First Instance of Isabela a complaint against the defendant, praying that the latter be ordered to reconvey the land to the plaintiff in accordance with Section 119' of Commonwealth Act 141. In his answer, the defendant set up the special defense that the plaintiff had failed to exercise his right of redemption within the period stipulated in the deed of sale executed on September 7, 1940, and that therefore the title to the property had already consolidated in the defendant. The parties entered into an agreement of facts, and the Court of First Instance of lfiabela, on J une 23, 1952, rendered a decision ordering the defendant to convey to the plaintiff the land in question, upon payment by the plaintiff to the defendant of the sum of Pl,328.00 as tbe i·epurchase price, and ordering the Register of Deeds of Isabela to cancel transfer certificate of t itle No. T-172 and issue another in the name of the plaintiff. after the proper deed of reconveyance shall have been presented for registration, without pronouncement as to damages a nd costs. From this decision the defendant has appealed. The question that arises, as expressly framed in the stipulation oC facts is "whether the period to i·epurchase the land in question shall be counted from the execution of the deed of sale with right to i·epurhcase or from the issuance of fransfei- cel'tificate of title of the herein defendant." The trial court held that the 5-year 1 ieriod of repurchase should be computed from the day the deed of sale with pacto de retro was registered on January 17, 1947, applying section 50 of the Land Registration Law which provides that "the act of registratiou shall be the opern-tive act to convey and affect the land." In his brief, counsel fol' the plaintiff-appellee admits that the latte1"s right of repurchase under the deed of sale executed on September 7, 1940, had already expired, but it is contended that the present action is based on the right of repurchase granted by section 119 of Commonwealth Act 141 which provides that "every conveyance of land acqui1·ed under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant. his widow, or legal heirs, within a period of !i years"; and that the term "conveyance" imports the trans for of legal title, which in the present case took place only after the issuance of the tr.:rnsfer certificate of title in the name of the defendant-appellant. Tn our opinion, appellant's title had already become absolute, becnusr. of nppellee's failure to redc>em the land wit.bin five years from September 7, 1940. Both under section 50 of the Land Re~is tration Law and under section 119 of Commonwealth Act 141, the owner of a piece of land is nc>ithcr prohibited nor precluded from binding himself to on agreement whereby his right of repurchase is for a certain 1ieriod starting from the date of the deed of sale. Indeed eectiun 50 of the Land Registration Law provides that, even without the act of registration, a deed purporting to convey or affect registered land shall operate as a contract between the parties. The registration is intended to protect the buyer against claims or third parties arising from subsequent alienations by the vendor, and is certainly not necessary to give effect, as between the parties, to their deed oC sale. In the case of Carillo \·s. Salak, G. R No. L-4133, May 13, 1932, we made the following applicable pronouncement: "While we admit that the sale has not been ngistered in the office of the rel{ister of deeds, nor annotated on the torrens title covering it, such technical deficiency does not render the transaction ineffective nor does it convert it into a mere monetary obligation. but simply renders it ineffective against third persons. Said transaction is, howevel', valid and binding against the parties. In the stipulation of facts, it is provided that in case judgmer.t be in favor of the defendant, "the plaintiff will pny the amount of FIVE HUNDRED PESOS (F500.00) to the defendant in concept of damages suCCered." Even so, we are inclined to disallow appellant's claim for damages, in the same manner that, in the appealed decision, no damages were awarded in favor oC the plaintiff in the absence of evidence to show how said damages accrued. Wherefore, the appeal~d decision is hereby reversed and the complaint dismissed, without pronouncement as to costs. Pablo, Padilla, A. Reyes, Ju,r10, Bautista Angelo, Labrador. Concepcion, and J. B. L. Reyes, JJ., concur. Montemayor reserved his vote. BENGZON, J. concuning : The idea occurs to me that the five-year period under section 119, C.A. 141 did not begin to run until after expiration of the conventional 5-year period of redemption. I should like to mull it over. Nevertheless I concur in thi!.' opinion, now because anyway the plaintiff allowed more than ten years to elapse before exercising his rights (Sept., 1940 to May 1951). IIJ Espcrnnza V . 8 1 that, et al., Plaintiffs-Appellants, vs. Rosario Bei<ana, Etc., et al., Dufendmits-Appellees, No. L-6746, Augu.st SI, l :>54. Paras, C. J. ACTIONS: PRESCRIPTION; MORTGAGE; REGISTRATION OF MORTGAGE DOES NOT MAKE IT IMPRESCRIPTIRLE. -The fact that a mortgage is registered does not make action to foreclose it imprescriptible. Vieente Abalajon for plaintiffs ond appellants. Santiago Abella Vito for defendants and appellees. DEC I S I ON PARAS, C. /.: On May 31, 1924, Jose M. Besami. mortgaged his undivided one-half share in Jot No. 14 .06 <0f thC' cadestral survey of P~may in favor of Luis Bernnies. to securf' 411 indebtedneSA of f'900.00. payable within six yenrs from said date. On October 27, 1926, original ccrtiCicAte of title No. RC·1S54 <10255) was is!lued in the mime of Jose M. Besana and Rosario Besana, brother and sister, covering lot No. 1406 in undivided equal shares: and on said certificate the mortgage in favor of Luis Bernales was n1Jted. J ose M. Besana died and his po!"tion rns!led to his surviving si:>tC>r, Hosario Besana. Lui!! Bcrnales 11.lso died and his m<'rlgage Cl"edit &gaint Jose :r.r. Bessna was inherited by Antonio Rcrnales who in turn transfernd the same to the herein plaintiffs. Esperanm V. B11hat ant.I Maur<0 A. Buh:i.t. Rosario Bcsana M>ld her port inn to Manuel B. Bernales who, on J une SO, 1950, con,•eyed it to the 11laintiffs. As the indebtedness above referred to remained unpsid, the JJl'esent action was instituted in the Court' of F irst Inalance of Cupiz by the pbint1ffs against Rosario Bes:ma and hrr huab:..nd THE LA WYERS JOURNAL Lorenu. Contreras on December 6, 1952, for the foreclosure of tht mortgage of May 31, 1924. Th<:? defendants Rosario Bes3na and Lorenzo Contreras fifod a motion ~" di5rniss thP complaint, on the j:!round that plaintiffs' cause of action had prescribed, the complaint hnving been filed more than ten year!'! from May :n , 1930 'in facL i;ome 22 years after the oblig:i.tion had become due :ind demandablel. On May 6, 1953, the Court of Virflt Tnstance of Capiz i11sued a n order dismissing the case without costs. The plaintiffs hwe appealed. Appellants' contention is that, as the mortgage wa:; registered, the action to foreclose did not presc1·ibe, bec:i.use sertion 48 of the Land Rcgii-1tration Act, No. 49G, provides that "No title t., rtlgiSttired owner shall be :i.cquired by prescription or adverse possession . " This is cll'arly without merit. Thr- citation i;.peaks of the title of the "rcgh1tercd owner" and refcr11 to 1n·cscdption or adverse pnssession =i.s a mode of acquiring ownership, the wholu philosophy of the Jaw being merely to make a Torrens title indefoasible and, without more, surely not tn caul'le :i registered lien or encumbrance such as a mortj!"aj:!c - and the right or aclion to enforce it - imprescriptible as against the re~istercd owner. The impo11ant effect of the registration of a mortgage is obviously to bi11d tl1ird parties. Wherefore, the appealed order is affirmed, and it is t'>O ordered with costs against the appellants. Pablo, Beny-:on, Padilla, Montem.ayOT, A. Reyes, Jugo, Bautistt. /'°• Lc1ln-ndor, Co11cl3prifln and J .B.L. R eyes, J.J. concur. IV Ben L. Clmy, Demanda11te y .'1.pelado, eontrn Philippine A1rter• iean Life J11surance Compnny, Dcmandada V Apdantc, G. R. No. L-6672, Junio 29, 1954, Pablo, M. l. LEY DE SEGUHO; SEGUROS DE VIDA; LA CERTIFICACION DE MEDICOS DE LA COMPAR"IA ASEGURADORA PHEVALECE CONTRA LA DECLARACION NO CORROBORADA lJE OTRO MEDICO QUE NO ES DE LA COl\IPARJA. - DcspuCs de examen fisico por m&l.icos de la compaii.la aseguradora, se expidieron a Dee Se p6lizas de scguro de vida. Las primas correspondientes fueron p:}gadas debidamente. Despul?s de un aiio, Dc·J Se fa11eci6 de .-:ancer. Su beneficiario reclam6 el pago <lei importe de las p6lizas. Despul?s de !'ictc me!>es cir- trit.mitc, la cnsa ascguradora le envio una r.arta dllndole cuenta d!! que rescindia los contratos de scguro, y se negaba u pagar cl importe de las polizas y le cnvi6 d..,s cheques c1uc venian a co11stitutir la restituci6n de la.!: primas pagadas con sus intcrcses. La negativa de la casn asegurad..,ra n pagar cl import<! de las polizas se fundaba en la dech~ra ci6n de otr" medico quc 110 era de la compafiia asegurador'.l, de quc Dec Se, bajo el 11cmbre de J ose Dy, habia sido tratado por aqucl por cstar enformo de ca" ncer por mils de tres afios de su muerte. Se fle0 clara: Que las opiniones de los doctores de la casa ascgur::idora son de m{1s peso quc la dcclaraci6n no corro· bornda de otro medico que no u; de dicha compafila. Los me. dicos dc las <:USMI ascgurndoras son los que debian tener in · tcres en sabf'r el vcrdadern cstado de salud de! solicitante, y el expidieron cert ificados de bucna salud serU porquc cstaban convcncidos de la verdad de lo que ccrtificaban, NCI hay .. 1 menor indicio de quc ellos hayan obrado de mo.la fe. No existc en nutos ninf una prueba de que cl asegurndo haya engniiado a In ens.a nseguradora hacien<lo creer que Cl goznba de bucnn salud cuando CH r~alidad estnba onfermo de cancer. ADOGADOS; HONORARIOS; SENTENCIA POR HONORA· mos CONTRA LA PAR'fE QUE PERDIO EL ASUNTO; LA MANIFESTA Y EVIDENTE MALA FE, DEBE PRO· DARSE. - Sc rccli..ma tambiC11 contra la casa a.!:eguradora honorarios de abogado qtlc ascicnde a !"10,000. Se 1lecfom: "In the absence of stipulation, ntbrney's fees and expenses or litigation, other than judicial costs, cannot be recovered, excl·pt: ([,) 'Vhere thr defendant acted in groi;s and evidt!lt bad faith in reCu!ling to satisfy the plarntiif's plainly \'alid, just and demandable claim" (Art. 2208, COd. Ci\•. de Filipinas). La casa aseguradora no obro con manifuta y ev1dente mala re al no pagar el 1mporte de la poliza. El tramite de siete meses demuestra la. prccauci6n que ha tenldo en cerciorarse de si Dee g.. na el mismo J ose Dy que habta sido informaci6n de dicho medico, cualquiera que estuviese en lugar de la casa aseguradorn hubiera hecho lo mismo. Si dcspuCs dP. una vista larga en que Jttlararon \'3rioa doc:tor.:-s, cl J uzga.do ha llegado a la conclusi6n de que Dee Se no em cl mismo J ose Dy, no se debe deducir necesariamen!e que IR demandnda ha obrado con abierta y C\•idente mala fe. J. A. Wolfson and Manuel Y . Mncin.:;i por cl demandado y :ipelante. Primicias, Abad, Menci<1.~ :ind Ct1'ftillo por cl demandantc y apelado. DECISION PABLO, M.: Ben L. Chuy present6 una dcm.:mda contra la Phllipr!ne Anierican Life Insurance Company lque se denominari PHILAMLIFE 1-n el curso de esta decisi6n) en el J m:gado de Primera Jnstancia de Pangasimi.n, causa No: 12033, pidiendo que se condenase a la demandada a pagarh> la suma de !"46,008.75 con su interb legal desde d 22 de junio de 1951 hastti su \~ompleto pago, mis la cant idnd do Pl0,000 en cont'epto d<' dtdios. TambiPn se present6 otra dem:mda por Ben L. Chuy y Lee Sin contra la Lincoln National Lif1. Insurance Cnmp:.ny, causa No. 12034, en el mismo juzgado, rech. mandn el i;ago de iguat cantidad con igua\ causa de ncci6n. A petici6n de ambas partes, las dos causas se vieron conjunlamente, somctiendc un cvnvcnio de hecl1os udemis de preser.t.•u (ftras pruebas. Despues de consideiar las prucb:is prcsentadas, el .Juzgado dict6 sentcncia concedicndo la reclamaci6n de los demanJantes. Las dos compaii.ias aseguradorns apelaron; pero antes de la :i.prob:ici6n del cxpediente de apclaci6n, la Lincoln National Ufe Insurance Company, considerando tal vez inU.til todo esfucrzo, pa~ a los dcmandantes la cantidad de ' 50,000, abandonando Ia ap<>la· ci6n. Por eno solamente se deciclir8 por este Tribunal la apelaci6n de la Philamlife. Eutiquiano P. Na\'a, un agcntp asegurador de la Lincoln Nutional Life Insur:i.nce Company, consigui6 convencer a Dee Se p:ara asegurarse en f'".l5,000; los doetores G Oreta-Dizon y Gorlofredo A. Antonio le examinaron y expidie•·on el certificado mediro correspondiente, que fue aprobado por cl dirl'ctor medico de In Lincoln :.Iational Lifp Insurance Company. La solicitud de Dee Se rue aprobada y la p6liza. No. 812 254 por la suma de P'25,000 se ex· pidi6 en 8 de mayo de 1950; otra p61iza No. 812 411 por igual eantidad sc expidi6 a Dee Se en 10 de junio de Hl50 rlespuCs de cumplidas toda~ las formalidades indisvensablee. Paula. Dolores Sendaydir.go, agente de Ia Philamlife, consigui6 tambi~n convcncer a Dee Sc de quc se asegurarse en s1..1 comparii:>. en la suma de !"25,000. El Dr. Brnulio M. Venecia examin6 a Hee Se y su eertificado medico ful! aprobado por rect>mcnduci6n del doctor '.le la oficin:i. cent ral. En 2 de mayo dEl 19[•0 se expid:6 a nee Se la p61iza No. 97310 por la EUma de !"25,000. Por medio de la ngt>nte P&ula Dolor,:.s Sendaydiego, Dee Se otra ver. !K!l:cit6 otra pJliza. por la suma de !"25,000. El Dr. Ricardo B. V1llamil lo e.t amin6 y expidi6 el certHicado corrc11pondiente que fu6 aprobado por Pl Dr. Valenzuela, director medico de la Philamlife. Se aprobt la solicitud y se expidi6 a Dee Se otra p6liza No. 101840 por la sum>'! de !"25,000 en 18 cie julio de 1950. Las primas de las cuatro p61izas fueron pagadas debidamente. En 22 de junio de 1951 Dl!e Sc ralleci6 de c6.nccr en la reei6n naso-faringen en el Hospital Prnvi11dal de Pongasinin, situado en la ciudnd de Dagupan; su beneficiario, que cs el de1mmdant' f'n C!l'lta causa, reclam6 el pago del impo1te d~ las dos p611zar;.. Despuis de siete meses de tr6.mite, la dcmandada, con fecha 24 de enero rte 19:>2, le envi6 una carta dAndolt' euent:i de que reaci11dla Joa dos November SO, 1954 THE LAWYERS JOURNAL 5-4i contratos de seguro; se negaba a pngar el importe de las dos !)6lizas y le envi6 dos cheques, uno por Pl,723.58 y otro de r:.!,570.90 contra cl Bank of America, cantiaP.dcs quc venfan a col"!stituir la t estituci6n de las primas pagadus, con sus intereses. La demanda'1a, en a~laci6n, alcgu que el juzgado erro: (1) a! declaiar que Jose Dy, el paciente del Dr. Chikiamco, no era el asegurado Dee Se; C2> al declar.tr que Dee Se gozaba de buena Ealud al t.icmpo c fo solicitar su seguro y que no habia hecho ninguna manifes+.<lci6n falsa en su 1101icitud de seguro ; (3) al no dedarar quc dichas dos p6Jizns de segurn cran nulas y de ningiin valor; y <'> al conceder al demandante honcrarios de abogado. La demandada contiende que Dee Se, bajo el nombre de J ose Dy, habia sido tratado por el Dr. Paterno S. Chik.iamro por estar enfermo de d.ncer desde el 19 de abril de 1948 hasta cl 20 de encro de 19fil , fundandose en la declar;i,ci6n del m ismo doctor, el cual declar6 as!: "I think I have a clear memory of his f P.atures bec>us~ f'XCept whr.n I was aw:\y for ffix months in the State in i94'Jmost of the t reatment waa done by me although scme of the record!' are jotted down by my assistant." C Exl1ibit "17", page 23.) "I remember very well that he looks the san1e as the patient by the name of J ose Dy." (Exhibit "17", pl ge 24.) Lf~s suficiente la dechnaci6n no corroborada del Dr. Ch"k amc? pnra concluir qllc cl ai!egurado Del! Sc fut$ su pacientc JDse JJy: Est(' testimonio dcl Dr. Ch!kiamco cs incompatible con el de varios <loctores. El Dr. Brauli·.> M. de Venc<'a, mCrlico de la Philamlife, asegura que al tiempo en que le examin6, Dee Se ~O:Z:'\ba <le bucna salu<l; que le ha bia conocido por unos des a1ios porque t'·ra su vecino y quc trabajaba. en nr.a tableria; quc al t1empo o?n quc lo llnm6 para cxaminarlc, Dt!t! Se ncababa de venir de su trabajo con la tablerfa, un trabajc irduo, y estaba atin sudando cuando Cl le examin6; si Dee Se - asegura el Dr. de Venecia - hubicra estado sufriendo de c:i.nccr y habia estado bajo un tratamiento mCdico por mis de tres aiios, no habria podido afrontar Jos rigores dcl trabajo en una tableria. Det! Se: habia sido examinado, adem8.s <le! Dr. de Venecia, por cl Dr. Villamil de la Philamlife y los doctores Oreta-D;zon y Go:lofredo A. Antonio de Jn Lincoln National Life lnsilrar.ee Company y fos ecrtificados medicos que ellos expidieron fueron ap1·obados por Jes dircctorcs medicos de las dos compafifas demandadas. El Dr. Amado Tan Lee declar6 qup habia tratado a Dee Se en 28 de diciembre de 19f.IO y enviadole al Dr. Sevilla en 13 <le febrero de 1951. lExh. E.) El Dr. Manuel D. Pefias declai-6 que en 18 de fcbreH. de 1951 habia l1echo un examen hispatol6gico de doi; esp~cimenl!i> sac!l.dos de la nasofaring<' de Dee Se por recornendaci6n del Dr. Sevilla. El Dr. Cnrlns L. Sevilla dcelar6 que habfa tratado pur prime!'!!. vez a Dee Se en 13 de febrero cle 1951 por reeomendaci6n de! Di·. Amado Tan Lee. Creyendo que puriecfa de cancer , le env:6 al Dr. Valencia en la misma fccha C13 de fcbrero de 1951) para que sc lo rmmetiera a rayos X; dos dins dcspuCs e1 sae6 cspecimenes de In 11asofaringe para scr cxaminaJoa r,or el Dr. Peiias, qu1en J·.izo c:onstnr en su informc que hal\6 "Grnnulntion tissue with Saba~ute and Chronic Inflammntion ' non-specific)." Si el Dr. Se\'illa fuC el quc envio a Dee Se al Dr. Chikiamco en 1951, entonces debia ser otro y difercntc cl paciente a quicn cl Dr. Chikiamco habfa cstado trntando con el nombre de Josl'i Uy deP.dt> el 19 de abril de 1948 hasta el 20 de enero de 1951. Si D<'.'e Se y el llr, ChikiP.mco eran ya P.ntiguos conoc:dos, zquC necesidad tenfa Dl'c Se de una recomendaci6n del Dr. Sevilla? Esta rec."mendaei6n llcvndn por D::!e Se al Dr. Chikiamco nos convence que Dee Se <>m t:l nucvo p'l.cicnte y no el antiguo: que Dee Se y J ose Dy eran dos Oistintm~ personas. Cuando acudi6 a los Drs. Lee y Se\·illa y cnviado al Dr. Chi· kiumco, Dee Sa ya estaba ascguriidt1. Si Cl solicit6 el seguro pnra medrar o favorecer a sus beneficiaries haeiendo crttr que gozJ•t. tie buena salud cuando en realidad ~·a padecla de c:inct.I por •1es ailos, LJ>0r quC entreg6 al Dr. Chikiamco la recomenda(:i6n tEih.. 2 ) Lei Dr. Sevilla? LPara que se descu!>riue mis tarde 11u impostura! Eso es contrario al s.entido comUn. Dt"bia de habe:r destrWdo la recomendaci6n y proponerse no ver yn al Dr. Chikiamco. El tratamicnto de Jose Dy de cerca de lres aiioa no ae tuthfa hecho exclush-amentc por el Dr. Chikiamco, porque hab1a estado fucra de Fi.lipinas por seis me;;es y la Dra. Carmen Chikiamco, de b. misma. clinica, trat6 al pacientc en Jugar de aquCI. Es e.xtMr.o que el testimonio de ella - que hubiera sido una e.xcelente corroboraci6n - no se haya present.ado ante el juzgado sin ei::plicar !a raz6n. El Dr. Chikiamco, segli.n e1, fu{; honrado con un lcuriat por J .>se Dy, su paciente, en 26 de diciembrc de 1950 ; per» uiste pl"T1PM. l'.::t a utos de que Dee Se estaba en Dagupan en dicho dfa y ~ali6 para Manila el 27 despuCs de las fiestas de Dagupan. La declaraci6n df'l Dr. Beni.i:rno Parayno, rn&:lico r~identf' de! Hospital Provincial de Pangasin3.n, de que la enfermedad de Dee Sc, Ccinccr en la regi6n nasofaringea) debia haber exirtido entr4> cuatro y seis meses antes dt" su rnuerte en 22 de junio de 1951 apoya las opinionei. de los cuatro doctO?·es de las casas aseguradoras. Las opiniones de esto's cuatro doctr1res, 1aa de dos dirPctnres medicos de las mismas casas de segutos, las de los Drs. Lee, S vil'a. Pt>fias y Parayno, son de mRs peso, a nucstro juicio, que la declaTne:6n no corroborada del Dr. Chikiamco. Los cuatro medicos de las casas aseguradoras son los que debian tencr interes en saber el verd:v'ero estado de salud del sol'cilante, y si expidieron certificadot de buena salud ser:i porque estaban convencidos de la verd!\d de lo que c~rtificabin. No hay el menor indicio de que ellos hayan obrado de mala te. No existe en autos ninguna prueba de que Dee Se haya engafiado a las caa.'\!' aseguradora!l haciendo creer que Ci gozaba de buena sa!ud cuando en realidad estaba enfermo de cancer. La mala Ce debe probarse. Creemns que el juzgado inferior no crr6 al concluir que Dee Se y Jose Dy no eran una misma persona y que D~e Se goz::ib::i de buena salud al snlicitar su seguro. Como no ex's+e prueba de qne nee Se habfa emrilea<lo fraude y engafio para obtener las dos p6lizas de seguro, fuerza es concluir que el jucz a. Q'tlo no cometi6 el tercer error artibuido a 61. En cuanto al cuart.o error, el nuevo C6digo Civil dispone que "In thn absence of stipulation, :ittorney's fees and e:cpenl'e& of litigation, other than judicifll co11ts, cannot be recrivcreJ, except: x x x <5> Where the defendant acted in gross and evident bad fait.h in rl'fusing to satisfy the plaintiff's plainly valid, just and demandable claim;" <Art. 2208, C6digo Civil de Filipinas.) En el caso presente, crecmos que la demandarla no obr6 l"On manificsta y evidcnte mala fe al no pagar cl imporle de las ODs p6lizas. El t d.mite de sit>tt> meses dcmuestra la preeauci6n que ha tcnido en cercicrarse de si Dee Se era el mismo Jose Dy que habia sido tratado por el Dr. Chikiamco por cerca de tres afics. Teniendo a la vista la informaci6n del Dr. Chikiamco, cualquiera fl'JC estuviese en Jugar de 18. Phibmlife hubiera bee.ho lo mi!Mo. Si, despuEs de una vista larga en quc declararon varios Ooctores, el Juz~ado ha llcgado a la conclusi6n de que Dee Se no era el mismo JnsC Dy, pacicntP. J>Or tres afios del Dr. Chikiamco, no 9e dcbe deducir necesariamE'nte que la demandada ha obrado con abiertd y evidente mala re. Creemos que la derisi.6n de\ tribunal inferit1r, rondenando e la demandada a pa'!ar !'10,000 para hon"lrarioa de nbogado, no est! justificada: el demsndante es quie.n debe plgar!os a su abogado. Se revocn la sentencin apelarln en cuanto conr!ena a lo rlemand;i,da a pagnr PI0,000 ccmo honorariO!' de abo"gado, y se oonfirma en todo lo demli.s. Paras, C.J., Beng:on, Montemayor. Re11u: Jugo; Bauti.da A.ngrlo; Labrador y Concepci6n, J.J., conformes. · Padillu, J., L"'Ok no parl fi48 THE LAWYERS JOURNAL No7ember 30, 195' v Eugene A1'thur Perkins, Plaintifl-Appellee, v•. Benguf>t Co1w1olidated Mining Company, et al., Defenda:nts; Benguet Consolidat.ed .'\fin · iny Company, /Jef endont·Ap1,ellm1t, Nos. L-1981, L-1982, Ma.11 28, 1954, Pablo, J. 1. DECISIONS; Ef.,FECT OF DECISION OF A FOREICT~ COURT AGAINST A DECISION OF A COU RT IN THE Pl~IL- JPPINES. - The doctrine of Coke <Coke on Littleton, 325'.i) "that where there an~ two co11!licting judgments on a clairn c.r deniand . The two judb'111Cnts neutralize each other an::l both pnrti('S may assert their claims anew," is not allplicab!c in the preseut case. The litigants, whcth<>r t.hey are citizen!. or foreigners, should rcspr.ct the decisions of PhiEppine Cou":"h; but if they choo~c to resort to a foreign court, nsking for a remedy that is incompatible with the execution of a dccisivn obtained in thE- ~ippines and obtain a decision that is adven-f'. thcr should not be permitted to l"f'Jmdiate the decis!on of the foreign court and to ask the. enfott'ernent of the dccis"on of the Philippine court which they h::i.vc ahandoned. To permit th·m to litigate in that manner is contrary to the order and public interest in the Philippines hecause it disturbs the ordC'rly administration of law. 2. ID.: COMMENCEMENT OF A NEW CASE ABROAD, ABANDONING THE DECISION OF A PHILIPPINE COURT. - "One who subjects himself to the jurisdiction of a Court, even where he would not otherwise be subject to suit, becomes subject to any valid claim asserted against him directly relating to thf' subject matter of his voluntarily initiated proceeding." 8. ID.; ID.; THE CASE OF QUERURIN VS. QUERUBIN NOT APPLICABLE. - Tht> case of Querubin versus Querubin Ur 3692, July 19, 1950), is not applicable in the present case. Jn the present case the decision of the New Yo; k court was not obtained by Mrs. Perkins behind the back of the plain~iff; on the contrary, that decision was rendered by virtue of the complaint filed by Mr. Perkins, he was the p1aintiff, the initiator of the case- in which was diE:cussed for the seconJ time the owner of the 24,000 shares and, abandoning the decision of the court ~f Manila, he asked that said shares be declared his exclusive property. After the trial in which the puties harl nmple opportunity to be heard, decision was l'endered dcclari11~ Mrs. Perkins owner of the shares. ThJs decision is final between the two of lhem. The plnintiff has no right to impugn said <leci3ion 1·cndere<l in n case commenced by him before a C•mrt m New Yol'k where plaintiff nnd defendant are citizens. 4. ID.; JD.; DISTINCTION BETWEEN EXECUTION OF FOREIGN DECISION . .\ND TRANSPOSING OF THE SAME AS RES JUDICATA . - · There exists a difference !>etwee1 ushin~ for t he enforcement of foreign judgment in the Philippines and that of p1·e\·cnling the defense of res judicata. To order the enforcement of a foreign decision implies a direct act of ~ov ereignty; to recognize the defense of a judicial cause only the spirit of justice enters; hence Sections 14 and 48-a of Rule 39. do not require that there be a special reason in order that Ilic defense of re.q j11dicata may be accepted as required in Sec. 47 which we abnlished by the resolution of August 9, 1946. The reason is simple; tho execution of res jmlicato. is ne>t aske:c! for RS the enfo<cement of a foreign decision ia naked; 1t 1s i:o:ely presented ns a defense against an action. Cfaro M. Reeto &. Perkiris, Ponce Enri1e, Contrera• & Gome: for the plaintiff-appellee. Ross, Selph, Carrri.'!eoso & l a1ula for the appellant. RESOLUCION PABLO, M.: El dcmandante pide la reconsidel'ac:6n de la decisi6n s:isteniendc que no nbandon6 la scntencia que e1 habia obtenido en la t'ausa lrumitndn ell Joe Tl"ibunales de Manila, porque e1 habla l\CUdi<!o a Joe de Nueva York para pedir precisa.mente que ae f'jecutaae die.ha st'ntencia . La mociOn de reeonsideraci6n dice: "The only purpose of his Sew York action was to enfr.TCe his final Philippine judgment. xx "'( C pig. 12. > ''AU that plaintiff sought by his complaint in the Sew \ ark suit was to enforce the final judgment of the Phiiippine courts, by securing the return of the certificates, the ownership of wh ch had already been determined by thC' suid judgment, xx x. "Plaintiff, in pursumg the Nrw York suit, far f rom having the intention of abandoning the rights granted him under tJ,e Philippine judgments, sought to enforce them, x x x. " (p;i.gs, l S-14. ) La dcmanda enmcndada que sc p1·esent6 en Nueva York habh por sf misma. Contiende dos causas de acci6n: en la primers, el d<'m&ndante alega hechos que dieron Jugar a que sc dictase una deciai6n en su favor por los tribunales de Filipinas en que sc declaraba que las 24,000 acciones de la Ben~uet Consolidated Mining Company en n .2.!.e~ gananciales del demandant~ y su esposaJ y no ..E!2Jtl.edad rxclusiva de Mrs. Perkins; en que se la ordenabn que 1indiera cuentn de los bienes ganauciales que estaban en su poder y que los entregase al demanda!lte; y que, en vez de cmn plir dicha sentcncia, ella huy6 de Filipinas y depoSit6 la!l acciones en poder 1ie la Guaranty Trust COmpany of New York. Como segun<la cauSP. de acci6!l, el dt"mandante a\ega hechos que tienden a establecer que las 24,000 acciones de la Benguet Consolidated Mining Compa11y son de su exclusivn propiedad y oeclia lo siguiente: "Wherefore, this plaintiff demands judgment against the defendants: "1. Adjudging and declaring the plaintiff herein to be the true and lawful owner of said certificates numbered 1484, 1595, 2176, 2238, 2773, 2780 and 2781 of stock of said Benguet Consolidated l\Iining Company. "2. Permanently enjoining and restraining the said defendants, and each of them, from delivering, assigning or transferring sa;d twenty-four thousand C24,000) shares of Benguet Consolidated Mining Company stock to any other person except to the plaintiff herein. "3. Directing the said def~ndants, and each of them, to ·deliver to the plaintiff herein the said twenty-four thousand C24,000> shar f''J o! Benguet Consolidated Mining Company stock. "4. Requiring the said defendants, and each of them, to account tc the plaintiff herein and to pay over to liaid plaintiff any and all dividends which have been or may be Teceived by either of them up011 said twenty-four thousand (24,000) shares of Benguet Consolidated Mining Company !!ltock, a11d for the costs and disbursements of th's nction, together with any other and further relief as to lhc Court may seem just and proper." <Exhibit A-64, pAgs. 20-21.) Com\> se ve, el demandante no pidi6 la entrega a e1, eomo mari<lo o administrador de los bienes gananciales, de las 24,00U acciones; n :i pidi6 que se condenasc a Mrs. Perkins }" la GuarA.nty Trust Co. a entregarle las ncciones en cumplimiento de la sentcncia de\ Tribunal de Manila: lo quc pidi6 rue .Cl) que fuese dt!dnrado dueiio legal de las 24,000 acciones de la Benguet Consolidated Mining Company; (2) que se prohibif!se a los demandados a entregarlas o trasfer irlas a cualquiera persona; C3> que las mismas ncciones fuescn entregadas a Cl Ccomo duefio indudablemente y no como administradClr); y C 4) que los demandados rindiesen cuenta de \os dividendos de dichaa acciones. De acuerdo con la primera causa de acei6n y la decisi6n obtenida por el demandante en Manila, CJ era solamente conduefio de las 24,000 acciones, o propieta rio de> la mitad de las mismas, con derec:ho a poseer todas e\Jas como administrador de los bienes gananciales. Cuando pidi6 e11 su demanda enmendada que fue.;e dcd arado due6o de las 24,000 acciones, abandon6 necesariamente la ae.ntencia que dcclarnba que dichas acciones eran biencs gal)anciales; a l pedir que fuese declarado duefio legal de las accione11, abri6 de nuevo el pleito sobre la propiedad de dichas acciones, ronaider11ndo imltil y de November 80, Hl54 THE LAWYERS JUURNAl 549 nlngUn valor la deciri6n de Joa t ribunalea de Manila. Que 61 abandon6 dicha dccisi6n Ct evidcnte; ti pidi6 que fue!e declarado duefic de las 24,000 accionea; en vez .:le pedir que se ordenase por el Tribunal de Nueva York el cumplimi<>nto y ejecuc:6n de la sentencia que et habia obtenido en Filipinas. El mismo, con au demanda enmendarla auscitando de nuevo la propil'<lad de las aceiones; del'hit.o dicha decisi6n, implicitamente pid 6 su ri-w•c -e 6.1 para q e pu1!ese c.btener de) Tribunal de Nueva York una decia.6n declarandole dueiio legal de las acciones. O estas accionea son gananciales, o son de la exclusiva propiedad del dcmandant<>: no pueden ser g:manciai~s J, al mismo tiempo, de la propiedad exclusiva del dcmandante. Si son gananciales, no pueden ser del demandante, y si son de su excluaiva propicdad, entonees rcchazaba, o por lo m~nos n..:gab la validez de la deciai6n de los tribunales de Filipinas: sostenia 1:-ntonce!I que e 1 1:ra el Unico dueiio de las 24,000 acciones. Si el objeto de\ demandante al acudir a los tribunales de Nueva Ycrk era solamentf' conseguir la posesi6n de las acciones, "the ownership of which h'\d already been determined by said judgment" <de Filipinr.s), zpor quC no lo pidi6 as! en su dcmnndo. cnmendada en vez de pedi:r (Jue sea dcclaradn dueiio de las mismas? Si en su demanda enmendada en Nueva York no hubiera el deman<lante pel'.lido mils <i.ue el cumplim1ento de la decisi6n del Tribunal de Manila, sin suscitar de nue\"O la cuesti6n de la propiedad de las accio11es y el Tribunal <le Nuev<t York; hubie!le dictado una decisi6n contrnria a la del T~ibunal de Filipinas, estC Tribunal probablemr!nte no titubearia en no honrar esii nueva decisi6n y haria cump!ir la primera. Y asi la Sra. cit? Perkins. a espaldas de sumarido, reclamand<' la propiedad de las accioncs en Nmwa York. hubiera obtenido sentencia a su favor, este Tr bth~~I induc.lablemente no tendria ningtin reparo en ignorar tal decisif.n y, a petici6n de parte, haria cumplir la decisi6n dictada por el TribnnRI Filipinas . Bueno es hacer eonstar que la demanda enmendada no rue fir · mada por el den1andante ni por sus abogados en Filipinas, sino por Ruf: aboizados en America, Sres. Platt, Taylor &. Walker, p2ro la nctuaci6n de Cstos le obliga. Se invoca una decisi6n de esto Tribunal que, en parte, dice asi: "x x x Creemos fJ UC este Tribunal no debe hacer cureplir un decreto dictado por un tribunal cxt··a""tj2ro, que con'r :w·<'riP nuestrns !eyes y los sanos principios de moralidad que informan nuestra estructura social sobre relac:ones f amiliares. "Las sentencias de tribunates extranjeros no pueden ponerse en vigor en Filipinas si son contrarias a las lcyea. costumbres y orclen ptiblico. Si dichas dedsioncs, pnr ta dmple to..orfa de reciprccidad, cortesfa judicial y urbanidad internacionnl son base suficiente para que nuestros tribunales decidan a tenor de las mismas, entonces nuestro::i juzgados estarian en la pobre trsitura de tener que dicta.r sentencias contrnrias a nuestras !eye~, costumbres y ordep ptiblico. Esto es absurdo." <Qucrnbln contra Querubfn, 47 O. G. <Supp. 12> :ns.> Por esta doctrina el dcmandante Postiene que In decisi6n de Nucva York no debe ser reconocida en Filipinas. Ha.y eonfusi6n en cunnto a lu semejanza de las dos cnusns. En el asunto de Querubfn ocurrieron los siguientes hechos: Silvest.rc Qucrubfn, filipino. y Mnrgarct Querubfn, amcricana, sc ca1m.ron en America y tuvieron una hija l'amada Q erubma; pol"QUt> la esposa cometi6 adultcrio, el rnnrid::> pidio divorci?; se le adj d co el dccreto correspondiente, encomenclli.ndole la cus'od·a de la m~mor. Posteriormcnte In esposa se cas6 con el honibre con quien habfa cometido adultcrio, tuvieron una hija y despuCs o.cogierc.n a una CO!l\I) protei;?"idn, y alegando qnr- tenh iwstantPs recursos para mar.tPn..:r a la hija legal y a 111 protcgida, Jn esposa pidi6 la custodin de su hijn Querubina cuando Qunubin y su hija ya no estnban en los Angeles porque ya liabfan venido a F ilipinns; el Tribune.I Supr<'mo de Los An~les, California, se la concedi6, ordenando al padre que )Jase una pensi6n mensual de $30 a Querubina. La esposa pres1.:nt6 en Vigan, Ilocos Sur. un recurso de habeas corpus pidientlo la ens· todia de la menor, fundnndo su rcclamaci6n en cl scgumlo decrc·to del Tribunal de California en .que i-e le habia concedido la custodia de la menor. Eate Tribun~l no reconoci6 el decreto i.orque ua ccntrario a la moral y a la ley; porque "la menor e11tarla bajo •I cuidado de su madre que fuli declarada judicialmente culpable d• infidelidad conyugal ; vivirla bajo un techo juntamente con el hombR que deshor.6r a su mad re y ofendi6 ft su padre." La c:.isbdia de hijos menorea en Filipinas se encromienda al c6nyuge inocente; por csta razOn, estc Tribunal, al decidir el recul'9'> d2 habeas corpus en apelaci6n, t:~satendi6 el decreto deJ Tribunal d~ California. En el caso present-e, la decisi6n de! Tribunal de Nueva York no ha sido obtenida por la Sra . de Perkins a espaldas del demandantf'; al contrario, es:i deeisi6n rue dictada en virtud de la dem:inc!a r.ntablada por el Sr. Perkins; Ci rue el actor, el iniciador de la c .. u8" en que se discuti6 por segund:i. vez la propiedad de las 24 000 :iccioncs y, abandonando la decisi6n del Tribunal de Manila, p'.rli6 quo dichas acc1ones fuesen declnradas de !u exclusiva propierlnd. Despui?s de una vista en que las parWs habian tenido amplia oportunidad de ser oidas. se dict6 sentencia declarando a la Sm. d~ Perkins duciia de las acciones. Esta sentencia es final entre lns ':los. El dcmandante no tiene dcrecho a impugnar dicha decis:6n dictada en un asunto iniciado por e1 ante el Tribunal de Nueva York en que ellos, demandante y dcman.dada, son ciudadanos. Es inaplicable la doctrina de Querubin contra Querubin en la presente causa. Suponiendo que el Tribun.:il de Noeva York hubiera dtti<lirlo que las 24,000 acciones eran <le la exclusiva. propiedad del d(.m2rdant<', y la Si·a. de Perkins hubiera venido a Filipinas para pedir judicialmente la partici6n de dichas 24,000 aeciones que son bienl"!s gannncialel!, se habrin allnnado el demandante a tal d1:manda de partici6n? Induda.hlemente que no; 61 habria alegado como defense. d<' 'es jitdicata la decisi6n del Tribunal de Nucva York en que se le declariiba duE:fio r.xdusivo de tali 24,000 acciones; habrfa alegado que el Tribunal di' Nut>va Y!'rk tenia jurisdicc'6n sobre h~ cosa lilitri..,M no habria t:ermitido que la decisi6n de) Tribunal de Manila fue~ reconocida. Precisamente pidi6 qne fuese declarado dueilo de las 24.000 aee1ones porque no estaba ccnformE! en que dichss accione'> fuesen .:;olamente gananeiales: su interCs ent.onces era obtener una scntencia incompatiblt> cC>n la de! Tribunal de F ilipinas. Y nhorn que la dccisi6n no favor~e al dcmandante pero si a la S a. rtt" Perkins, 1,por quo esa decisi6n no .-:onstituye -res ;11.dicata y tiene que scr nu\11. p"r quC el Trihunal de Nue\·a York no t iene juri.Jdicr on scbre la materia litigiosa, y por que la decisi6n del Tribunal de Nueva YoJ"k no debe tt>nn nin.l?'lln valor en Filipinaa? Par.i d demandante el Tribunal de Nueva York tiene jurisdicc:6n 1i la sentencin le es favorable, pero no si le- es contraria. Es inconsistP.nte la te.orfa del demandantt" y, por inconsistente, inso:;tcn ble. "'One who subjects himself to the jurisdiction of a Court, e\·t'n ~:h::y h~·a~7~u~~ai1:t n~:~:~:~n:~b~~~ :r:c~,t~ ~~: s~bj::! snbject matter of his voluntarily initiated proceeding." CHo~y vs. Hoffpauir, 180 F.2d 84,l "It docs not lie in the m1Juth of one who has affirmed tho jurisdiction of a court in a particular matter, to accomplish a purpose to afterward dc.ny snrji juriFdll'ti.'.ln to <!scape a pena"ty." <Littleton v. Burgess, 1U L.R. A. [N .S. ] 49, 16 Wyo. 58, 91 Pac. 882.J "'To pe1·mit one to invoke the exercise of a jurisdiction within the general powers of a court and then to reverse its order UP'Jn the ground that it had no jurisdiction would be t.o allow one to trifle with the cc:urts. 'fhe principle is one of estoppel in tho Interest of a sound administration of the lawa x x x closes the mouth of the complainant." <Spence et ux. v. State Nat. Banko! El Paso ct al., 5 S. W. <2d>, 754.> <Commission of Appeals ot T<'xas, Sec. B, May 2, 1928.) El dcmandnnte eontiende que !a dccisl6n del Tribunal de Nueva York no tiene efecto como ... ea ;udieata en Filipinaa, porque Manresa dice que "En cuanto a las aentenc"as extranj~raa, de mayor importnncia cadn dia, deber& atenderse :l 11111 reglaa que aobre au ejec:uc 6n, con la cual se relaciona su firmeu, contlene la lay Procesal, di• THE LA WYERS J OURNAL November 80, 195' ~r::~::~o:gt:z;~~av:ril~8 s:~~:~ciaem~:tr~~8~ey h:;aa~~!0~::; au ejecuci6n ." <Manresa, 531. ) Ln ley de cnjniciamienlo civil espaiiola no csta en vigor en Filir inaR. En su lugar csta la Regla 39, nrticul6 44, quc di!!'pone lo siguientc: "El efecto de una sentrncia u orden finales dictadas p(lr ur: tribunal c juez de Filipinas o de los Elltados Unidos, <' de cnalquicr estado o territorio de los Estados Unidos, que teng11 jurisdicci6n para clictar dicha sP.ntencia u orden, pueden ser el siguier.tc: x x x <b> En los demb casos, la sentencia as{ dictada es, rcspecto de la materia sobre la cual recay6, concluyente entre lits partetc 1J "us derechol.abientes por t Hulo 8" .tbsiguieJJtt al comien::o dt. la 4Cet6n o at:tuaci6n espeC1.11l, t/Ue fitiu11en . ~i:oore la mismo cosn, bttjo el m1'stffo tftulo V en la m i1mta ca11ucidad." Y el artlculo 48 <a) trata del efecto de las sentencias dict.ndas en cl extranjero, di::e: "Si la sentencia fucre svbrc una cosa determina,Ja, ser3 col!cluyentc en cuanto al titulo de la misma:" No es precise, segUn estos artfculns, que para que la excepci6n de cosa juzgada, consistente en una decisi6n extranjera, puP.da p.JnPrse con exito en F ilipinas, haya mediado un ju·cio adm_ t:cndo c!;cha decisi6n. No dcbe confundirse la ejecuci6n de una sentencia extranjera con la excepci6n de res judicata. Existe diferencia entre pPdir en F ilipinas el cump!imiento de una decisi6n extranjera (enforcen1cnt of foreign judgment) y presentar la defensa dP. res judicata. Ordcnar el cumplimiento de una sentencia extranjera implica acto di recto de 1ioberanfa; reconocer la excepc'6n de cosa juzgi:da E Olamente interviene cl sentido de justicia; de ahl que et a r tfcufo 44, de la Regla 39, no dispone quc llaya mediado actuaci6n especial para que la exce9ci6n de res judicota fuese aceptada como se exige en el articulo 47. El procedimiento para pedir el cumplimiento de UM decisi6n extranjera no cs ig'ual en las siguiente naciones: En F ilipinas, antes de la derol!ac:6n por este Tr'b•inql en su resoluci6n de 9 de agosto do 1946, de! articulo 47 de la Regla 89, era el siguientc: "El efecto de un cxpediente judicial de un tribunal de los Esto.dos Unidos, o de unc de sus E stados o territories, es en las Islas Filipinas el mismo quc en los E stados Unidos o en el Estado o tcrritorio en donde se trami16, s6'o que, pnra que tenga vigor aqui, es mcnester que haya mediadc un juic:o o nctuaci6n especial al efecto. " <Art . 47, Regla 89 .) A falta de procedimientD prcviamente establec'do, crenn"s qne para que se pueda pedir cumplimiento de una dec!si6n extranjeu en Filipinas, debcl'li presehtarse una acci6n fundada en ella. E n Italia: "Of all the foreign countries enforcing foreign ju ~g mcnts as such, Italy has had the distinction for many year!: of having adopted the most liberal policy, Accol'ding to this sy.oitem the st11t11s of the foreign judgment is fixed once for all. The ri=view .:>f the judgment relates only to certain points which have no reference to the correctness of the decision , Before the foreign judgment is enfol'ccd a preliminary pror.cedinf? takes place <Guidizir di delibazione) whose object it is to ascertain whether t he judgment wns rendered by a court of competent jurisdiction, whc h_r the defendant had due notice of the orij?inal proceeding, whether he appeared or was duly defaulted, and whether the enforcement of the foreign judgment wonld be contrary to the public policy of preaumption being created in !avor of ita fairness and inhn'f'nt justice." En Francia: ''Under the ordinance of 1629 the French couru would enforce foreign judgments <:btained by F renchmen with::iut a review of the merits. No efte<'t would be givai, however, to foreign judgments against a F ri:nchma n . As againrt them a nt'W !!uit would have to be brought on the original cause of acti(ln. According to Maleville the law was not cha.nged by the Code Napoleon, but this view is now ger:erally ab:indon!!d. The sy~tl'In octually prevailing is one which reviews the merits of the Cfl.SC <revision au fond). It does not content itself with inquiring into tlle jurisdiction of the foreign court, the regula rity of the service of the summonl!i, appearance or ddault, and the pub'ic por cy of the !"late in which the proceeding for the enforcement of the foreign judgment is brought; but examines the merits of the decision itself . The French doctrine rests upon an assumption diametrically opposed tc that underlying the Italian system, and emphasiz'.?11 the fact that while the different states of the civiliz?d world are in theory equal and entitled to the same respect, their courts do not sct uelly inspire the same degree of confidence in regard tD their dec'.s'nna. It takes not ice of the fact that the judges of certain countries sre less competent than those of others and are sometimes not f ree from bias against defendants belonging to a foreign count ry. Under these circumstances it is fe)t to be the duty of a state, b fore allowing the execution of fore'gn judgments within its tenitory, to ascertain whether the foreign judgment was fair and just." En Inglaterra: "The En~lish Jaw by req•iiring a suit on the foreign judgment differs from the other fore·gn eys'ems in thJ mode of enforcing judgment s for the payment of money. It differs from them also in that it regi rds fore'gn j ·dJ men'a as cnforceahle in princip'e and imposc3 upon the d_fendnnt the burden of establishing the defenses recogn1zpd by iaw . A~ 1·er;"arda t.hi: ccnclusive effect of foreign judqm~nts the English law atands between the French and Ital'an systems. Origin~ lly f reign judgments were regarded as being only prima facie e de11ce of the justice of plaintiff's claim, but since the case o odard v . Gray they a re ordinarily conclusive, In this respect the Englisll law has abandoned the viewpoint of the French law and accC'pted that of Italy <before the decree of J uly 30, 1919). It does not go so far, however, 2s dues the former Italian Jaw, for in except ional cases it will try the merits of the case over again . The law appears to be established in England that foreign judgments mny be impeached if procured by false and fraudulent representations and testimony of the plaintiff, even if the same quest ion of fraud was presented to and decided by the foreign court. Such fraud may be shown although it cannot be done without a retrial of the case. The cbject o'f such ret rial is not, ho.,vever, to show that t he foreign court came to a wrong conclusion . Courts of equity may enjoin the enforcement of judgments, domestic or foreign, if they have been procured through fraud, accident, mistake or surprise." <29 Yale Law Journal 194-199.) En cuanto al reconocimiento tie decisiones extranjeras como res judicata, varios 11utores sostienen quc, sigu:endo la teorfa del dereeho Mmano, una sentencia tiene la naturaleza de un contrato o cuasicontrato y que la obligaci6n que emana de dicha sentencia cuando se presenta como defensa de ,.es ;udicato, debe considerarse como cualquiera otra obligaci6n. "By submitting the case to the fore.!Jm court, the parties are deemed, according to this view, to hive m:iJ B an implied agreement. that they will abide by the dt cision of the cnurt. The obli~ation arising f rom the judgment is refer red, therefrre, to the will of the parties rather than being derive-J directly from the sovereign power of the forei1[1l slate. " < 29 Yale Lflw Journ9.l 190. ) Italy. If the judgment !l.lltisfie~ these requirements, the juc;ticy' En Filipinaa no es necesario teorizar porque los articulos •s or injustice nf the plaint'ff's clnim will not be reviewed. ~e y 48 <u> tie la Regla 39 son clnros: no exigen que hara mediado nos.hove system is <l<'rived fl'om the principle of the equality of all tuaci6u espec:al sobre Ja decisiOn E:xtranjera para que ella aur ta stales, nnd rests upon the fundamental assumption that. the juJg- cfecto como defemi.a de COSA juzttu.da. La raz6n es !lenc1lla: 110 rmcnts of othPr states are entitlo?d to full trust nnd confidence. As pide la ejecuci6n de la ,.e8 ;uJicata como se. pide al cumplimlento in the cnse or domestic judgments, a. foreign judgment so far n:i. it1-1 de una decisi6n cxtranjera ; sol11mente se prescnta contn una 11.cci6n merits are concerned, imports absolute verity - an irrebuttablci como defPnsa. Ahora bien, si se pidiese por la Sra. de Perkinw Novcrober 30, 1954 THE LAWY ERS J OURNAL 551 el pago en Filiplna1 de 101 diviJendoa de las 24 00) acc:ones de lri Benguct Con!0l1dated Mining ~ .• entoncea ya no es suficiente la !imple exhibic:6n de la <.lecisi011 del T:-ibunal de Nueva Yl)rk; es lndiapensnble que ella entable b acci6n C' Jrreapondiente en cl juzy!VIJ coinpete11k Jiara pedir una sentcncia fundad:i en la del Tr,bun_il de Nueva York. Heml)s estuida do d.tenidamente las dcr·s one'!i <.xtranjet'a11 y nacionales que tiencn relaci6n con la pr<>sente cau~a. y no hPmos encontrado ninguna raz6n por que la decisi6n del Trih1Jnal <le Nueva York no debe tener efecto como f'Cs jud:cala entre las partes litigantes. Si el den.andante huhiera obtenido sentenc'a a su favor en 1m dcmantla pidicnd,:i que fuese dec:arado dueiio absoluto de las 24 000 acciones, e1 hab:-fa sostenido en America, en Filipinas y en todas partes qu~ dicha decisi6n era d.lida; pero como la fuC adversa, arguy~ hoy en la presente causa que dichi dec'si6n es nula y de ningUn valor y que no t iene efecto de cosa juzgada. Les litigant.Ps, yn Pean natura!P.s; ya extranjeros, debPn resp2tar Ins decisiones d~ loa tribunaks de Filipinas; pero t;j optaran por acudir a un tri~un'll extranjero, pidiendo un rcn1edio incC'mpat:ble con la di:iposic:6n de la aentcncia ob~nida en Filipinas y obtuviesen una decis'6n ad\'Pr~a. no se !es debcrfa permitir que rep1diaran luego la dd tril:'!!lll extranjem y pidieran el cumplimiento de la d~cis"61 d-:!I tribtmal de Filipinas que ellos habian abnndonado. Permit rles H iga:- rle esa manera es contrario al orden e intere.s nl.iblico en F ilipinas porque perturba la orde1iada administraciCn de la ley. Los errores atribuido!I a Tribunal de! N ue,·a York hubieran sido resueltos por el Tribunal Supremo de los Estad'>s UnidDs si. el demandante no hubiese abandonado su apehc" 6:t. El dt>mandante pidt> que se aplique la Figuiente doc' r inl de Coke: "That where there are two conflicting judgn1enh ,_m a claim or demand, there Is an estr-pp?l BJl"l inst an f'Stoi;p~l w···c!l •setteth the matter at large', Coke rn Littleton, 32SO. T!le ti;r,:i judgments neutralize each other ancl both parties mny assert th.·ir claims anew." Sin decidir si t>sta doctrina deb:> ndop'ars~ o n" en esto. jurilldiccion, se puede ckcir que h m'sma no es t pl c b:e al c:iso presente. La parte petitoria de la d~manda. enrnend:::d'l i;>s de! tenor siguiente: . "WHEREFORE, it is respectfully prayed that judgm-nt be f'ntered in favor nf the plaintiff Jlnd aga'nst the cf·fenda!ltS Il nguet Consolidated Mining Company for the sum of P7137!l .90, c n~btin~ of the dividends which have been declsred and made p~f· b"e on th€' said 52,874 shares in defendant B:-nguet C:mso'idated Mining C mpany registered in plaintiff's name which rem:iin unpaid, as herl?inOO!ore alleJ?~d. together wi~h interest ther'2on at the rate of 11·x );er cent C6'j(.\ per annum from th~ date of f :ling of the or'gin.1 1 l"Omplaint herem until paid; that the defendant B~nJ?uet Consol;datcd Mining Company be ordered to :oay t" pJ::•.'ntiff all dividends dec·P.rP.d in t.he future on the said shares, so long as they stand in p'ain'lff's nnme. whent>vcr sairl divid€'nds nre madl? payable; that defendant Benguet Consolidated Minin_ g C-1mp!l.ny be rpq•iired and ordered to re· cognize the right of the plaintiff to the control and di!:po~al of .. a;.1 share!, so !lt3ndine- in his nam<', lo the exclusion of all others; th'l.t the additional defendants Idonah Slade Perkins and G..:orge H. Engelhard be each held to have no intrrest or cttim m the subj(('t matter of the ·controversy between plriintiff and defendant, B ~nguet Consolidated Mining Company, or in Ot' under the judgment tn b:! rendered herein and that by the said jndgment th~y. and <'ach (If them, be excluded therefrom; and that the plaintiff be awarded the costs of this suit and general relief." El demandante no pide r-ier d\!clara.do dueib de las 24,000 aceion€'": s6lo pide :ii pago por lo Bengu1>t Conso)idatf'd P..f"ning CPmpany cte L.is dividcndos vencidos y no pagadus y ros d1viden:1o.s que vayan venciendo, y no cxpreSfl en quC concepto ha <le rccibir los dividendns: si como administrador de los bienes ganarc:ales o e ' mo duefio d~ sohlto. Los divirtendos io;on accesorios de las accivnes, c mi f') lntcres !ligue al capital. El duefio de las acc'ones cs el d-.ufio de Jo:i dividendos y es el que debc recibirles, a menos que disponga n'ra <'naa. Cllmo la propiedad de las 24.000 acciones ho sido debida.mcnte deridida yo por el Tribunal de Nl1eva York, a irs:snc·a prrc'samente de.I dcmandnnte, sus di"idendos d~ben ser p:igados a 1115 dueiia declarada. Los dividendos vencidos de dichaa acc:ionea, que UC.:ende:n a Pl,019,245.92, ya habian sido satisfcchoa, por ejcc- c.6il ; u Ca...1fornia, y no por acto \'oluntario de la d .manda. Loa mil!D09 d.Tidendos no deben pagarse o otra persona, especia1mente al dlm&n· donte que fuC vencido en la cuesti6n sobre la propiedad. E l aobresimiento de la demanda est& bi en fun dado, Se dcniega la moci6n de reconeideraci6n. Paras, C.J., Bengzon, Padilla, Jugo; Bauti'•ta Angelo; Labrador and Concepcion, J.J., conformes, VI Joseph Peldman, Ptlitioner, vs. Hon. 0 f'metf'"n B. Ene11rna--i01'l, a11 Judge of the Court of PiTst Instance of Rizal, Victorio Lachmal, A lfomo Lachenal and Jose Villaflor, Respondents, No. L-7021, July 31, 1954, Padilla, J. EXECUTION PENDING APPEAL; APPEALS; EFFECT OF PERFECTED APPEAL ON JURISDICTION OF TRIAL COURT; EXCEPTIONS; MATTERS INVOLVED AND LITIGATED IN APPEAL. - In a judgment rendered on the counterclaim by the defendants, the Court of First Instance ordered the plaintiff to vacate and surrender to the defendants the property in question and to pay the rentals up to the date the possession of the entire property shall have been received by them. Plaintiff appealed from this judgment to the Court of Appeals. After the approval of the record on appeal, defendants filed in the Court of First Instance a motion, praying thst the plaintiff be ordered to d:pJsit wi~h the c"Hk of •}'e trial court th.e accumulated rer.!als plus interest :ind the monthly rental until the decision appealed from shall hnve been finally disposed of by the appellate court. The trial court grantt>d the motion. Plaintiff se<!kS by certiorari to annual the order of the trial court. Plaintiff contends that upon the approval o! the record on appeal, the trial court losses its jurisdiction over the case and, consequently, the order complained of was entered without jurisdiction. On the other hand, defendants claim that despite the appeal, the trial court retains the power "to issue orders for the pro~ction and preservation of the rights of the parties which do not involve any matter litigated by the appeal." In support of their pretense, they cite the assignment of errors made by the plaintiff that the lower court erred in holding (1) that the consent of plaintiff to the waiver of his rights over the leased property was voluntary and !or good consideration and not under duress; (2) that plaintiff had not exercised the option granted by the original lease; and (3) that plaintiff was a possessor in bad faith and the defend· nnts in good faith, Held: It would seem that the defendants' theory is that takin[r into consideration the assignment of errors of the plaintiff, the dil'ective to the latter to deposit with the clerk of court t.he accumulated unpaid rentals including interest thereon and the future rentals until the appeal is finally decided, does not involve a matter litigated in the appeal of the plaintiff in the original motion. The contention is not well taken, because i! the consent of the plaintiff to the waiver was not voluntary and !or good consideration but under dures11, he might be entitled to exercise the option granted in the lease; because if plaintiff had exercised the option granted, he would be entitled to continue in possession of the leased premises, and because i! he was a possessor in good faith, then the judgment of the trial court directing the plaintiff to vacate the premises and to pay the rentals would have been to be reversed. Tho accumulated unpaid rentals and interest thereon and the fu. ture rentals of the leased premiseS' are then matters invoh-ed and litigated in the appeal. To order the deposit thereof with the clerk of court is "irtually, if not actually, an execution of the judgment which the trial court cannot direct but !or good reasons to be stated in a special orde.r and to be set forth in the record on appul. 562 TH~ LAWYERS JOURNAL November 30, 19~ .. Juan T. Chuidian and Jose S . Zafra for the peitioner. Si:x;to de la Cesta, Benjamin l. Alonzo and Prot~o Amon.OJI for the respondent&. · DECISION PADILLA, J.: The petition seeks to annul the order of the respondent court entered on 30 June 1953, the dispositive part of which reads as follows: IN VIEW OF THE FOREGOING, the second motion of the defendants in the opinion of this Court is in order, and the plaintiff is hereby ordered to deposit with the Clerk of Court of this Court the accumulated unpaid rentals including Jntcrest thereon in the total amount of P119,700.00 and the corresponding rental on the said property every month from May 1, 1953 until the appeal is finally decided; x x x for lack of jurisdiction of the respondent court to enter it. The petitioner and the respondents are agreed that in civil case No. 7799 of the Court of First Instance of Rizal entitled Joseph Feldman, plaintiff; Mercedes H. Vda. de Hidalgo, intervenor, O.!\ party-plaintiff; Hon. Herbert Brownell, Jr., Attorney . General of the United States in lieu of the Philippine Alien Property Adminis· trator of the United States, intervenor -versus· Ramon L. Corpus, de., defendants: Victoria Lachenal, Ildefonso Lachenal, and Jose Villaflor, joinders, as parties-defendant, judgment was renderl!"d on the counterclaim of the defendants, the pertinent dispositive part of which reads as follows: x x x. On the counterclaim of the defendants, the plain· tiffs and his business partners, Henry File and George Feldman, are hereby ordered to vacate and to surrender to the defend· ants the property formerly known as Varadero de Navotas xx x and to pay the defendants, by way of rentals on the shipyard the amount of Pl,000.00 a month from and beginning June 1, 1946, up to the date the physical possession of the entire Property or shipyard with all its accessories and improvements thereon shall have been actually returned to and duly received by the defendants, the registered owners thereof, with legal interest thereon from the date of the filing of the counterclaims; that from such judgment a notice of appeal, an appeal bond and a record on appeal were filed on 30 October 1950; that on 10 March 1952 the trial court issued an order which reads as follows: There being no opposition to the amended record on appeal, dated March 10, 1952, filed by counsel for the plaintiff, which is also adopted by the above-named intervenor, and finding the name to be correct and in order, the said amended record on appeal is ht:reby approved. The Clerk of . Court is hereby directed to certify and ele· vate the same to the Court of Appeals, together with all the exhibit;; adduced during the trial, oral and documentary, within the period prescribed by the Rules of Court; that the record on appeal was forwarded to and docketed in the Court of Appeals as CA-GR No. 9375-R; that on 3 August 1953 t:1e case was forwarded to this Coutt by the Court. of Appeals; that on 14 May 1953, the respondents Victorio Lachenal, Alfonso Lachenul and J ose Villaflor, defendants therein, filed in the respondent court a supplemental motion, the prayer of which reads as follows: 1. That the plaintiff (now petitioner) be ordered to de· posit with the Clerk of this Court (Court of First Instance of Rizal) the accumulated rentals plus interest in the total amount of P119,700.00 and the monthly rental of l°l,000.00 every month beginning J une l, 1!153, until the Jecision app·aled f om sh:il! have been finally considered and disposed of by the appellate court; 2. That the plaintiff and his business partners be ordered and enjoined not to sell, encumber, remove, dismantle, or other· wise dispose of any of the installation, equipments, machineries and motor vehicles listed in the Annex "B" hereto attached, without the consent and approval by this Honorable Court: that on 30 June 1953 the respondent court granted the motion in an order the dispositive part of which is quoted at the beginning of this opinion; and that a motion for reeonsideration of the order just referred to on the ground of lack of jurisdiction of the trial (respondent) court was denied. It is the contention of the petitioner that upon approYal or allowance of the record on appeal the respondent court lost its jurisdiction over the case and, consequently, the order of 30 June 1953 complained of was entered without jurisdiction. On the other hand, the respondents claim that despite the appeal the respondent court retains the power "to issue orders for the protection and preservation of the rights of the parties which do not involve any matter litigated by the appeal," pursuant to section 9, Rule 41. In support of their pretense they cite the as· signment of errors made by the petitioner, appellant therein, to wit: 1. The lower court erred in holding that the consent of appellant to the waiver of his rights over the 11aradero on May 5, 1943 (Exhibit G-1) was voluntary and for good con· sideration and not under duress; 2. The lower court erred in holding that the appellant had not exercised the option granted by the original lease, Exhibit "A"; 3. The lower court erred in finding that the appellant was a possessor in bad faith, and the appellees in good faith, for purposes of article 361 of the Civil Code. (pp. 1()...11, appellant's brief, CA-GR No. 9375-R, now SC-GR No. L-7195.) It would seem that the respondents' theory is that taking into consideration the assignment of errors of the petitioner, appellant therein, the directive to the petitioner to deposit with the clerk of court the accumulated unpaid rentals including interest thereon · amounting to PU9,700 and the corresponding rental of the property every month from 1 May 1953 until the appeal is finally decided, does not involve a matter litigated in the appeal of the petitioner in the original action. This contention is not well taken, because if the consent of the petitioner, appellant therein, to the waiver was not volun~ary and for good consideration but under duress as he contends, he might be entitled to exercise the option granted in the lease; because if the petitioner, appellant therein, had exercised the option granted as he contends, he would be entitled to continue in possession of the leased premises; and because if he was a possessor in good faith, as he contends, then the judgment of the trial court, which unfortunately has not been brought to us by the par· ties but only the pertinent dispositive part directing the petitioner, appellant therein, to vacate the leased premises and to pay the ren· tals would have to be reversed. The accumulated unpaid rentals and interest thereon and the future rentals of the leased p1·emises are then matters involved and litigated in the appeal. To orde1· the depcsit thereof with the clerJc of court is \·irtually, if not actually, an execution of the judgment which the 1·espondent court cannot direct but for good reasons to be stated in a special order 11nd to be set forth in the record on appeal. (l) The good reasons do not appear. The order complained of is not the one contemplated in the rule just referred to because it was issued not while the case was still within the jurisdiction of the respondent court. H it be true as contended by the respondents, appellees therein, that the order of the respondent court complained of was just to supplement the writ of execution issued against Mercedes H. Vda. de Hidalgo, intervenor and party-plaintiff therein, who has not appealed from the judgment rendered against her, then it would be pertinent to ask why the liability under the judgment of the intervenor and party-plaintiff who has not appealed by making the pe. titioner, appellant therein, responsible for her. obligation or liability !O Section'· Rule JSI. Nl)vember SO, 1!'154 THE LAWYERS JOURNAL •SS under the judgment! Are they aeveraTiy (1olidariamenU:) respon· 1ible? Tbat part of the order which enjoins and prohibits the peti· tioner, appellant therein, ''to 1ell, encumber, remove, dismantle or otherwise dispose of any of the installation, equipments, machine-ries a nd motor vehiclea as listed aforesaid, without the consent and approval of this Court," is not bein1Z questioned by the petitioner. It need not be passed upon. The order in so far as it directs the petitioner, appellant therein, to dept'Sit with the cle1·k of court the accumulated unpaid rental~ including interest thereon in the t-Otal amount of Pll9,700 and the corresponding rental of the proper ty every month from l Ma y 195~ until the appeal is finally decided, is annulled and set aside for lack of jurisdiction of the respondent court to enter it, without pronouncement as to costs. Paras, C.J., Pablo, Bengzon, Montemttyor" A. Reyes ; Jugo: Bautista Angelo, Labrador, Concepcion and J. B. I.,. Reye11. J.J .. concur. VII Domingo de la Cruz, Plaintiff-Appellant, vs. Northern Theatrical Enterprises Inc., et al., Defendarirs rrnd Apellees, No. L-7089, August 31, 1954, Montemayor, J. 1. EMPLOYER AND EMPLOYEE; DAMAGES CAUSED TO EMPLOYEE BY A STRANGER CAN NOT BE RECOVERED FROM EMPLOYERS; GIVING LEGAL ASSISTANCE TO EMPLOYEE IS NOT A LEGAL BUT A MORAL OBLIGATION.A claim of an employee against his employer f.or damages caused to the former by a stranger or outsider while said employee WM in the performance of his duties, pfesenti a ·novel qtiestion w:iieh under present legislation can not be decided in favor of th<' employee. While it is to the interest of 'the employer to give legal help to, and defend, its employee charged criminally _in court, in order to show that he was not guilty of any crime either deliberat~ly or through negligence, because should the employee be finally held criminally liable and he is found to be in1.1olvent, the employer would be subsidiarily liable, s11c!1 legal assistance might be regarded as a moral obligation but it does not at })resent count with the sanction of man-made laws. If the employer is not legally obliged to give legal a~sistance to its employee and provide him with a lawyer, natbral!y said employee may not recover from his employer the amount hr may hove paid a lawyer hired by him. 2. ID.; ID.: PARTIES WHO MAY BE HELD RBSPONSIBL~ FOR DAMAGES. - If despite the absence of any criminal responsibility on the part of the employee he was accused of homicidP., the responsibility for the improper accusation may b<" laid at the door of the heirs of the deceased at whose instancr the action was filE:d by the State through the Fiscal. Thi! responsibilit)'' can not be trnns rP.rred to his employer, who in no way intervened, much less initiated the criminal proceedings and whose only connection or rt>Jation to the whole affair WM thst it employed plaintiff to pE'l'form a specific dut!t• or task, whirh was performed lawfully and without negli1Zence. Conrado Riibio for plaintiff and appt!llant. Ruiz, Rui::, Ruiz, Ruiz and Benjamin Guerrero lor defendant• and appellee1. DECISION AIONTEMA YOR, J . · The facts in this case based on an agreed statement of fr.els are simple. In the year 1941 the Northern Theatrical Ent,,rprises Inc., a domestic corporation opea ·a ted a movie house in Laoag, lloro<1 Norte, and among the per1ona employed by it waa the pla:ntiff DOMINGO DE LA CRUZ, hired aa a special &uard whoae duties were to guard the maiu entrance of the cine, to maintain peaefl and order and to prevent the 001 nmi&ifon of diaordera withi11 the premiaea. Asv uch goard he carried a ?e\0 olver . In the afternoon of July 4, 1941, one Benjamin Ma rtin wanted to craah the gate or entrance of the movie house. Infuriated by lhe rdu&&I of p~aint-iff De la Cruz to let him in without first providing himself with a ticket, Martin attacked him with a bolo. De la Cru.1 defended himself as beet he could until he wa11 cornered, at which moment, to save himself, he shot the gate crasher, resulting in the latter'1 death. For the killing, De la Cruz was charged with homicide in Criminal Case No. 8449 of the Court of First Insta nce of llocos Norte. Afbir a re-invest igation conducted by the Provincial Fiscal f,he latter filed a motion to dismiss the complaint. which wu granted by the C ?urt in J anuary 1943 . On J uly 8, 1947, De la Cru~ WSI again accused of the same crime o( homicide, in Criminal Case No. 431 of the same Court. After trial, he was finally acquitted of the charge on January 31, 1948. In both criminal cases De la Crus t:mployed a lawyer to defend him . He demanded froin his fnrmcr employer reimbursement of his expenses but was refused, af ter which he filed the present actfon Against the movie cor poration and the three members of its board of directors, to recover not only the amounts he had paid his lawyer but also moral damages said t.o have been suffered, due to his worry, his neglect of his interests and his family as well as the supervision of the cultivation of his land, a total of P15,000.0<t. On the basis of the complaint and th• answer filed by defendants wherein they asked for the dismissal of the complaint, as well as the agreed statement of Cacts, the Court of First Instance of llocos Norte after rejecting the theory of th"' plaintiff that he was an sgent of U1e defendants and that ss tuch agent he was entitled to reimbursement of th" expenses incurred by him in connection with the ag.wcy <Arts. 1709-1729 of the old ;ii:~edc~~:'~o~;;~~n~h:;it~~i;t~!tsh.ad ~~o 1:a~:uz0fa:~~~~ a~i~:ti~ t.o this Tribunal for the reason that only queetiona of law Rrf'' ""involved in the appeal. We agree with the trial court tha t the relationship betwc.>e.n Lhc movie corporation and the plaintiff was not that of principal and agent because the principle of representation was in no way involved . P laintiff was not employed to represent the defendant corporation in its dealings with third parties . Re was a mere employee hired to perform a certain specific duty or task, that M ·acting ns anecial l!'tlArrl n.nd :ib1ying at the main entrance of the movie house tc stop gate crashers and to ma.intain peace and order within the premises. The questfon posed by this s ppeal is whether an employee· or servant who in 1ine of duty and while in the performance of the task assigned to him, performs an act which eventually results in his incurring in expenses, caused not dirf'<'tll· by his master or employer or hi11 fellow servants or by reason of his performance of his duty, but rather by s third party or stnngcr not in the employ of his employer, may recover said damages again .. t his employer. The learned t rial court in the last paragraph of its decision dllimissing the complaint said that "after studying many laws or provisions of law to find out what law is applicable to the facts !'ubmitted and admitted by the parties, has found none and it hR1 no other alternative than to ~ismiss the complaint ." The trial court is right. We confess that we a re not aware of any law or judicial a uthority t11at is directly applicable to the present case, and realizing the importance and b r-reaching effect of a ruling on the subjeetmatter we have searched, though vainly, for judicial autho1 itiea and f:nli.llhtenment. All the Jaws and principles of law we have found, as reprds master and servant, or employer and employee, refer to cases of physical injuries, light or serious, resulting in loss of a member of the body or of any one of the senses, or permanent physical disability or even death, suffered in line of ducy and in Urn course ol the performance of the duties as.signed to the servant or employee, and these cases are mainly governed by the Employers' Liability Act and the Workmen's Compensat ion Act. But a c~ue involving damages caused to an employee by a stranger or oub.:der while said employee was in the performance of his duties, presents a novel question which under present legia'ation we are neither able nor prepared to decide in favor of the employee. THE LA WYERS JOURNAL November 30, 196t In :i case like the present or a similar ease of say a driver employed by a transportation company, who while in the course of employment runs over and inf1icta physical injuriea on or cau1es the death of a pedestrian, and such ilriver is later charged criminally in court, one can Imagine that It would be to the interest of the employer to give legal help to and defend its employee in order 11how that the latter was not. guilty of any crime either dP.lib~rately or through negligence, because should the emp1oyee be final'y held criminally liable and he is found to be insolvent , the employer would be subeidiarily liable. That is why, we repeat , it is to the inte!"est oC the empl:iy£>r to render legal usRistance to its employee. But we templalPs the expropriation of lends lawfully occupied, when; said occupancy is known and ~rmitted by the .nmer undl"?" '\ft agr~ment. express or implied. of tenancy, &nd where the unantl and occupants are 'lbservin(t' the terms of the agrummt by pcying the rentals agreed upon, or, a ttaaonahle amount H· certained by the court for the use and occ •pation ot the p~ misPS. The purpose of the b1w is to aid and benefit ihe law· ful occupants and tenants, b>· making their occ;;pancy ~r manent and giving them i.n opportunitr to become ownen ot their holdings. are nc>t prepared to say and to hold that the giving of said legal 2 · aSBietance to its employees is a legal obligation. Whil.:! it n1ight ID.; ID.; IP.; OCCUPANTS WHO CAN NOT INVOKE THE LAW . - Whl'lre petitioners entered the land in question wi•b out tJ,e knowledge and consent of the O'>'-'Tler and le3SE:e therN>f, the relationship of la ndlord and t<>nant has not b:!en ea'ab'i1ht-d.. Hence, they can not im•nke the benefits of Commonweal.h Act No. 538. yet and possibly bt> rP.~arded 11.s u moral obligation, it does not at present count with the sanction ot man-made laws. IC the employer is not legally obliged to give legal ass'stance to Its employee and JJrovide him with a lawyer, naturally said employee may not recover the amount he may have paid a lawyer hired by him. Viewed from another angle it may be said that the damgge Sllffered by the plaintiff by reason of the expenses incurred by h'm In remunerating his lawyer, is not caused by his act of shooting tfl death the gate crasher but rather by the filing of the charge of homicide which made it necessary tor him to defend himself with the aid of counsel. Had no crim!nal charge been filrd againet him, there would have been no expenses Incurred or damage suffered. So, th!'.! damagf' suffPred by plaintiff was caused rather Ly the Improper filing of the criminal charge, possibly :i.t the inst?iace of the hcin of the deeeased gate crasher and by the State through the Fiscal . We say improper filing, judging by the results of the court proceedings, namely, acquittal. In other words, the p'aintiff was innocent and blameless. If despite his innocence and despitf' the absence of any criminal responsibility on his part he was accused of homicide, the m the responsibility for the impropeT accusation may be laid at the .J.oor ot the heirs of the deceased and thf! State, and so theoretically, they a re the parties that may br held responsible civilly for damages and if this is so, we fail '° ref' how this responsibility can be transferred to the employer who in no way intervened, much less initiated the criminal proceeding!: and whose only connedion or relation to the whole !lffair was that he employed plaintiff to perform a specific duty or task, which task or duty was performed lawfully and without negligence . Still another point of view is that the damages incurred herP consisting ot the payment rif t hl! lawyer's fee did not flow directly from the performance of hit; duties hut only indirectly because there was an efficient, intervening cause, namely, the filiug ot th• criminal charges. In other words, the shooting to death of the d~ ccased by the plaint.iff was not the proximate cause of the damai;:-eiJ suffered but may be regarded s~ on!y a remote cause, becau~e from the shoot.ing to the damages suffered there was not t.hat natural and continuous sequenc~ required to fix civil respr·nsibility. In view of the forPgoing, the judgment of the lower c<'11r1 is affirmed . No costs. Parn8, C.J., reserved hia \'Ote Beng•rm, Pad"lta., A. Reyes, Bauttda A11gelo, Labr·idor, Conrepcion and J .L .B. Reyes, J.J., concur . Jugo nnd Pablo, J.J., took no part. VIII M'lrario Enriquez, et al., Petitioner•, tl.t. Hcmorabl• Al~jandro P.n1lilio, in his capacity as tlie prcdiding Judge of Bra>1ch A , Court of First Instance of Manila; the Sheriff of Manila; Do C. Chuot1 Co., ln.r. a11d Standard Vncmun Oil Co., R esp0t1dents, G. R. No, L·7S2fi, July 16, 1954, Montemayor, J. 1 . EMINENT DOMAIN; SUSPENSION OF EJECTMENT PRO· CEEDINGS, WHEN PROPER; PURPOSE OF COMMONWEALTH ACT NO. 538. - Commonwealth Ac~ No. 538 conCostmio, Ampil, and p.,.onove for peti:foner. Rou , Selph, Carrascoso and Janda for respondent Standard. Vrscuum Oil Company. Quiswmbing, S ycip, Qui:wmbing and Salazar for other TP. spondents. DECISION MONTEMAYOR, J.: This is a petition for certiorari with prelim;m1.ry Ir.junction. f.·rom the alley.ations l'Jf said petition and its annexes as well as of the answer filed by respondents, we gather the following: Respondent Dee C. Chuan Co. <to be later refened to u Chuan Co.) is the owner of quite a large parcel of land situated in the City of Manila and adjoining the J uan Luna sub-d v:sion and the North Bay Boulevard. A portion ot the same of about 1,000 sq. m. was leased to respondent Standard V:i.cuum Oil Co. <to be later referred to as Oil Co. ). Sometime prior to 1947, without the knowledge and consent of Chuan Co. {owner) and the Oil Co. <lessee>, a number of people including the petitionera enter· ed the parcel, particularly that pol'tion under lease, and ereded thereon temporary houses (baron~·b:norgJ , and thereat er re!u.ied to leave the same despite rE"peated demands made upon tht!m by the owner and lessee. The oil company filed a suit in ejectment in the Municipal Court of Manila ag!linst the petitioners and obtained a favorable judgment ordering petitioners to vacate the portion occupied by them and denyin~ their counterclaim, Petitioners as defendants appPaled to the Court ot First Inshince of Manila which rendered judgment against them on December 27, 1949. For purposes of reference particularly !IS to the facts of the case, we are reproducing said decisions, to wit: "This is an ejeetment case appealed from the Mun'cipal Court. The lower court in its dec:s;on ordered the defendanta to vacate the premises in question and denied defendants' counter· claim. Hence the appeal of the Defendants to this Olurt. While the case was pending t rial, Dee C. Chua'} prays the defendants be ejected f.r;:om the premises and to pay jointly and severally a monthly rental nt '90.00 from May 5, 1947 to October, 1949. Subsequently, counsel for the defenda nts filed a motion asking for the suspen11ion of the tria1 of the case on the ground that the government was negotiating tor the pur· chase of the land in question fron1 the plaintiff-intervenor, De. C. Chuan &: Sons, Inc. Because the hearing of the case had been postponed already several times on the same ground, with· out any positive results havin(t' come out from Eaid supposed negotiations, the petition was den:ed, and trial was then commenced. After the plaintiff has pre£ent,..d tteir evidence, coun· sel for the defendants asked for postponement alleging, as their reason. that nflt all thf' .iefendants were present in Cou1t. To give the defendants their day 1n court, the ease waa then postponed to an agre<:d date among the parties. But on the &11.d date, counul for the dPfend&rtls t r:.iled (o appear on t.he un· verified ground that he was indisposed. Further polt"pon• November 30, 195' THE LAWYERS J OURNAL ... ment of the case was objected to by the other parties, and the cue was then submitted for decision. "It appears that the plaintiff i11 the leuee of c. parcel of land, as evidenced by a contract of lease <Exh. "A'') between plaintiff :ind the owner, who is the plaintiff-intervenor herein; that the defendants, prior to February, 1947, without the knowledge and consef!t of the owner or plaintiff-intervenor, illega!ly entered and occupied the premises in question and erected barongbaron~ ther~in; that, in spit(' of repeated demands of the piaintiff-intervenor, as well as the plaintiff <Exhs. B, B-1, B-2, C, C-1 to C-5J , the defendants refuRed to ''acate the property. "WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering all the defendants to vacaU: the premises in question, and each of them to pay the p1aintiff-inkr· venor a monthly rental of P'5.00 from May 1947 to October 1949. Defendants arc further ordered to pay the costs in both instances. "SO ORDERED." The judgment above reproduced apparently beeame final am1 executory. Why it was not then executed, the record does J\.')t show. In July, 1950, the Republic of the Phi1ippines instituted expropriation proceedinga, Civil Case No. 11525, concerning a p'lrtion of the parcel belonging to Chuan Co., including that portion leased to the Oil Company, undt:r t11e pl'Ovisions of Commonw2al'h Act No. 638. By reason of said cxpropri.iition proceedings, the Court of First Instance of Manil:"., deciding the ejectment Case ag:i.inst petitioners, suspended execution of its judgment b}o· order dated April 17, 1901. Early in 1953, Chuan Co. moved to lift the (order staying execution. We quote the order dated 1"ebrunry 21, 1953 granting the motion. "After a careful considerntion of the grounds advanced by Counsel for Intervenor Dee C. Chuan & Sons, Inc., in support of the motion to lift order staying execution, the Court has re~ch ed the conclusion that said motion is well takm and meritorio~s, and hereby grnnts same. "The defendants, not being bona-fide tenants or occupants of the land in question, and having failed, on the other hand, to pay to the landowner, or to deposit in Court, the current reasonable rent:il for the land thl:Y illegally occupy, can not avail themtelvcs of the provision of Commonwealth Act No. 538. ·•Accordingly, the Order of April 17, 1951, suspending the execution of the Judgment rendered in the casP, is hereby lifted amt set aside. ··so ORDERED. Manila, Philippines, February 21, 1953. CSgd.> Alejandro J. Panlilio Judge'' A copy or ~aid order was duly served on counsel for the defendants in said Civil Case No. 5654 <now petitioners herein). It was only on November 23, 1953, that rlefendants-petitioners filed a motion for reconsideration of the order of February 21, 1953, which wss denied by orde1· dated November 28, 1953. Claiming that in issuing the orders of February 21, 1953 ar:d November 28, 195~. the t rial court acted wit.h gTave abuse of discretion, amounting to cxces'i Qf jurisdiction, petitioners have filed its present petiticn for cert iorari with preliminary injunction. We a.re reproducing section 1 of Commonwealth Act No, 5S8 by virtue of which the expropriation proceedings, as already stated, was Initiated by the Government. chase of the lands, in which lattEr ease, the pe.riod of 1u&pen.1ion shall not exceed one year. ''To avail himself of the benefits of the susptonsicn, the tenant shall pay to the landowner the current rents &a tMy become due or deposit the saml! with the court where the action for cjectment has been instituted." We agree with the trial court ::.nd the herein respondents that petitioners are in no position to invoke the benefits of Commr<nwealth Act No. 5;$8, particularly section 1 thereof. As found by the tri::I court in the ejectment ccse, t hey are not bt.nn.-fide occupants or tenants because they E.ntercd the land without th0 knowJP.dge and consent of the owner and lessee thereof. The relaticn~hip of landlord and temmt h.11.s not been established; on the contrary, u soon as their illegal occupation of the bnd was notM the owner and lessee made demands upon them to vacate the pramises, which demands were ignored. Petitioners ha\'e nc.t paid anything for t!rl!ir occupiition. Et·en after judgment was rendered by the Cc.urt of First Instance against them ordering them to vat'ate the !:ind illegally occupied by them and ord~ring them to pay a reasonable amount for their occupation, f ixed by the Court, up to this time they have paid 11othing. Commonwealth Act No. 5:38 contemplates t he rxpropriation of lands lawfully occupied, wher" said occupancy is knnwn .and permilted by the owner under an r;.greem£>nt, cxpr~ss or implied, of tenancy, and where tt:e tenanta and occupants are observing the terms of the agreement by P'•Y· mg the rentals agreed upon, or, tl reasonable amollllt a:::cer 'a=ned by the court for the use and occu1i:i.ti.on of the premises. The pul'" pose nf the law is to aid antl brnefit the lawful occupants and ten:rnts, by making thei?"' occupancy pennRnent and giving them an opportunity to become owner<J '}f their holdings. This is not the case with respect to petit:oners. Petitioners annexed to their petition a copy of an alleged agreement (Exhibit "E"l between Chuan Co., the Oil Co., ar.d the Rural Progress Administration to the effect that the land subject of e:xpropritltion would be leased to the owners of the houses standing th.creon on a monthly rental not to exceed 1 % of the assessed value of the land for t he current year. Respondents in their answer explained that this ngrE·ement was made the bas:s of the motion for dis!I\issal of the expropriation case, resulting in the dismissal of the same. However, with the abolition of the Rural Progress Administration and the taking over of its functions by the Bureau of Lands, the latter upon the instigation of the petitioner., themselves, impugned the validity of the agrHment, thus resulting in the lifting of the order of dismissal in the expropriation case. Moreover, the agreement itself excludes from its operation a portion of about 920 sq. m. which is apparently the vortion involved in the ejcctment <now occupied by the petitioners), the agreement providing for the rernDval from said porti"n of the houses and other improvements made by the petitioners. In conclusion, we find that th€ rf'spondent court did not ccmmit any abuse of discretion, much less did exceed its jurisdiction in issuing its order of February 21, 1953 and in denying the m<>tiGn for its reconsideration. Thf' present petition for certiorari with preliminary injunction is hereby denied, with costs against 1 1ctitioners. The writ of Prc\iininary injunction heretofore i•sued, is hereby dissolved. Paras, C.J., B erog::o1i, Padilla, A lex Reges, Jugo; Ba11lisf.a Angelo. [,abrador, Conr~pcion snd J. B. L. R l:!ycs, J.J., concur. IX Alicia Go, et al., Plaintiffs-.J\ppeUeu, vs. Alberfo Go, et al., Defendants-Appellants, G. R. No. L-7020, Ju11e 30, 1954, Bautiata Angelo, J. "Sec. I . When the Government seeks to ar.quire through purchase or expropriation proree<lings, lands belonging to any eslnte or chaplaincy <capr.11.!lnal, any action for ejectn1,,nt against the tenants accupying P::-iid lands shall be automntically 1 . suspended, for such time as mu}' be required by the ruq.iroprlation proceedings or the necessary negotiations for the purPLEADING AND PRACTICE; JOINDER OF PARTIES, AP· PLICABLE TO BOTH COMPLAINT ANl> COUNTERCLAIM. -The rule permitting the joinder cf parties applies with equal 556 THE LAWYERS J OURNAL November SO, 195-i force to a counterclaim in view of the similarity of mle1 ap- of action involving an aggregate amoUJ:1t of P3.500. plicable to both complaint and counterclaim. ID.; COUNTERCLAIM; TEST TO DETERMINE JURISDICTION OF JUSTICE OF THE PEACE COURT.-If the elaim is composed ot several accounts each distinct from the other or arising from different transaction, they may be joined in a single action even it the total exceeds the jurisdiction of the justice of the peace court. Each account furnishes the test. But if the claim is composed of several accounts whic!l arise out of the same transaction and can not be divided, the same should be stated in one cause of action and cannot be divided for the purpose of bringing the cnse within the jurisdiction of the justice!' of the peace court. 3. ID.; ID.; CLAIM COMPOSED OF SEVERAL ACCOUNTING EACH DISTINCT FROM THE OTHER CAN NOT BE JOINED I N ONE SINGLE CLAil\f.-Where the first claim refers to the recovery of an amount arising from the alleged un13wful taking by the plaintiffs of certain fumiture and equipment belonging to the defendants while the second and third causes of action arose, not from the illegal taking of the property, but from the alleged unlawful institution by the plaintiffs of the ~ction of ejectment in the Municipal Court, the claims can not he joined in one single claim because they arise from different Lets of facts. 4 . ID.; ID.; COMPULSORY COUNTERCLAIM: TO BE SET_ UP REGARDLESS OF AMOUNT; CLAIM BARRED IF NOT SET UP.-If a counterclaim arises from, or is necessarily connected with, the facts alleged in the complaint, then that counte!'clnim should be ~et up regardless of its amount. Failure to do &o would render it barred under the rules. 6. ID.; ID. ; ID.; COMPULSORY COUNTERCLAIM SET U , COGNIZABLE BY COUR'f OF FIRST INSTANCE.-- h? SPC ond and third claims of defen·'ants being comnulso-·y, and ~he respective amounts, i:onsidered separately. are within the jurisdiction of the municipal court, the Court of First Instance can not act on them in the exercise of its appellate :urisdiction. Emmanuel T. Jacinto for plaintiffs and appelle.~s. E11rique V. F'iktmor and Nicolas Belmonte f'>r defendants-appellants. DECISION BAUTISTA ANGELO, / .: On December 18, 1951, plaintiffs brought an action in the Munici1ial Court of Manila to recover from defendants the possession of a house situa!P.~ at 921 Dagupan St., Manila, and the sums of !'2,000 as damag~s and f"200.00 as attorne)·'s fees. Defendant<; in their answer i:et up severnl Sp<'Cial dcfon:;t!~ and a counterclaim. The counterclaim was divided into three causes oi action as follows: the first is for P2,000 representing the value of cet•tain furniture an<i equipment belonging to defendants and which ti.re claimed to have hePn taken away by plaintiffs from the house in litigation; the second is for Pl ,000 representing expenses incurred by defendants arising from the falsity of the facts 11lleged in the complaint ; and the third is for PS00.00 as attorney's fees a1·ising from the institution of the present action. The court found for the plaintiffs, after due hearing, ordering defendants to vacate t.he house in litigation and to pay the costs, hut denied the claim for damages both of plaintiffs and defendants on the ground that their amounts are beyond its jurisdiction. The defendants, in due time, perfected their appeal to the Court of First lnstnncti, aud after th(' fatter had filed their answer as required by the rules, plaintiffs filed an amended complaint wherein they reitcrnted their originnl allegations with some slight modifications. To this amended complnint, defendants filed an amended answer reiternting the counterclaim they had alleged in their original .nn· swer which, as previously stated, has been divi<ied into three causes Claiming that the amount im·olved in the counte.rcJaim is beyond the jurisdiction of the Municipal Court, and, therefore, the Court of First Instance cannot act on it in the exercise of its appellate jurisdiction, plaintiffs filed a motion to dismiss under Rule 8, Section 1 (a) , of the Rules of Court. This motion was resisted by defendants, but the court, in its order issued on M.arch SO, 1953, overruled the opposition .and granted the motion U> dismiss. Hence, this appeal. Appellants, in their brief, present the question for determination in this appeal in the following wise: "The issue involved in this appeal is purely a question of law: whether or not the counterclaim was within the jurisdiction of the Municipal Court, and, hence, whether or not the Court of First Instance has appellate jurisdiction ther~m. We respectfully submit that the legal points involved are of paramount importance, as a definition is sought of the rule which should control, not only in the case at bar, but also in other cases, in the dctcrminati'>n of the juris<iicti.-mal amCtunt in case there are several causes of action: whether the jurisdiction is determined by the amount of each r.ause of action, or by Ule aggregate amount of the several causes of action; and whether in compulsory counterclaims the amount thereof is immaterial in the question of jurisdiction." (Underscoring supplied) A case that may throw light on the issue before us is A. Soriano & Co. vs. Gonzalo M. Jose, ct al., 47 O.G., 156, decided on May 30, 1950, where variou~ employees brought a joint complaint against their employet- in thE' municipal court to collect a month salary each in lieu of :~O days' r.oticP.. The question there decide.I was whether the jurisdiction of thP municipnl court is governed br the amount of each claim or by the aggregate sum of all the claims when there are se\'cral plaintiffs suin,:r jointly but ha\'e independent causes of action. In that case, we held that "where several cll:limants hRve ~eparate ar.d distinct demands agninst a dcfcnd!\nt or defendanb, which may be properly joined in a single suit, the claims cannot be added together to make up the required jut'isdictional amount; each separate claim furnishes the jurisdictional test." The purpose of the rule permitting the joining of partiPs is to saw~ unnecessary work, trouble, and expense, consistent with the liberal spirit of the new rules. This ruling, no doubt, applies with equal force to a counterclaim in view of the similarity of rules applicable to both complaint and counterclaim. The question that now rises is: Can this ruling be applied when there is 01>Jy one plaintiff or one defendant, or several plaintiffs or defendants but with a common claim, divided into several causes of action involving transactions different one from the other? Stated in another way, docs this ruling apply to a counterclaim set up by several defendants which have a common claim against the plaintiff divided into severRl causes of action for the reason that they arise from transactions one different from the other? A case which may be c9nsidered on all fours with the present case is that of Villaseiior v. Erlanger & Galinget-, 19 Phil., 574, wherein this Court, in discussing the test to be consid<'red in determining the jurisdiction of a justice of the pence, laid down the following rule : "When a separate due is due, it is demandnble in a separate action. Therefore, neither a debtor nor a third party may plead lack of jurisjiction because the sum of two separate debts exceeds the amount for which action may be brought in a court of a justice of the peace. On the other hand, if a debt is single a creditor may not divide it for the purpose of bringing the case within the jurisdiction of a justice of the peace." This case is authority for the statement that if a claim is composed of se\·eral account. each distinct from the other or arising from different transaetions they may be joined in a single action even if the total ueeeils the jurisdiction of a justice or the peac:e. Each account furniahes the te:tt. But if the claim is compt.sed of Sc\·ernl nc:count..i which arise out of the same transaction :rnd cannot be divided, the ume November 3:>, 1954 THE LAWYECS J OURNAL 057 should be stated ln one caase of action and cannot be divided for the purpose of bringing the case within the jurisdiction of the justic,. of the peace. The same rule obtains in the American jurisdiction. Thus, it has been g'!nerally held that " In order that two or more claims may be united to make the jurisdictional amount, they must belong to a r.lass that under the statute will permit them to be properly jvincd in one !'!Uit, and not such as should be made the subject of independent suits ; ;rnd where two or more causes of action are im· properly united in om: suit the amounts involved in the different causes cannot be added together so as to make an amount ~n controversy sufficient to confer jurisdiction on the court in which thE> suit is brought x x x." But; " in so far as causes of action which may be properly joiner\ are concerned, and which concern all the 11arties litigants, there ii;, however, a lack of harmony on the question of whether or not their various amounts should be aggregated in order to determine the amount in controversy for jurisdiction purposes." (21 C. J., !Jp. 76·78.) In the last analysi.c;, therefore, the q1Jestion to be determined is whether the t hree causes of action into which the r:ounterclaim of the defendants has been divided refer to transactions which should be stated separately, or transactions which have a common origin and should be joined in one cause of action for jurisd.ictional purposes. An analysis of the facts r eveal that the three causes of action of the countcrclnim a1·c different one from the other, or at least the first is completely differl"nt and ai·ises from a set of facts diffC!rent from those which gave rise to the other two. The fiTst refers to the r ecover} of the amount of 1"2,000 arising from the al· legcrl unlawful taking by the plaintiffs of certain furniture and equipment belonging to the defendants; while thC! second and third causes of action arose, not from the illegal taking of property, but from the alleged unlawful institution by the plaintiff5 of the action of ejcctment in the Municipal Court. From this it can be seen that the first cause of action cannot be joined with the other two in one single claim becausC! they arisC! from different sets of facts. Another consideration that should be borne in mind is whC!ther the counterclaim is compulsory or not. If it is, such as if it arises from, or is necessarily connected with, the facts al!C!ged in the complaint, then t hat counterclaim should he set up regardles11 of its amount. Failu1·e to do so would render it barred under the rules. In this pa1·ticular case, while the first cause of action cannot be considered compulsory because it refers to a t ransaction completely un· related with the main claim, the second and the third belong to this class because they necessarily arise from the institution of the main action. Viewed in this light, it can be said that the counterclaim of the defendants should be deemed as coming wit-hin the j urisdiction of the municipal comt because the respective amounts, considered separately, do not exceed its jurisdiction. From all a ngles we view the order appealed from it would appear that it is unwarranted and has no. legal basis. \Vherefore, the order appealed from is hereby set aside, without pronouncement as to costs. Parm.<, C.J., Beng::on, Re11e.~. Ju(lo and Co11ce11eion , J.J., concur. Ptiblo, Jr .. took no part. PADILLA, J., dissenting: This is an nction of forcible entry and for recoYerv of P2,000 as damages, and P200 as attorney's fees. Jn their an<=wer the de· fendants sought to recove1· a counterclaim of P2,000, the Yalue of the furniture and equipment allegedly belonging to them and claimed to have been taken by the plaintiffs from t he apartment (tucesoria), the 1 >0ssession of which is sought to be recovered in the action; .the sum of Pl,000, the expense allegedly incurred by t.he defendants as a result of the action brought agnil1st them; and !"500 as attorney's fees. The municipal court of Manila rendered judgment ordering the defendants to vacate the apartment but did not award the sums sou~ht lo be reco'"crc<l b)" both parties on the ground that the same are bi!yond its jurisdicticn. The defendants appealed to the Court of First Instance setting up the same counterclaim they had aonght to reco\"er in the municipal court. Plaintiffs mo,·eJ for the dis· n1issal of the counterclaim on the ground that the Court of Fint Instance has no jurisdiction to try and decide on appeal a. coun· terclaim involving P3,500 set up by the defendants in the municipal court and repeated on appeal in the Court of First lnstance which the municipal court had refused to try and decide for lack of juris· dictior. The motion was granted and from the order dismissing the counterclaim the defendants have appealed. In the first place, the defendants should not have been allowed lo appeal from the order of dismissal of their cour.terclaim but should ha\•e waited until after final jurgmcnt shall ha,·e been rendered by the Court of .First Instance in the forcible entry action. (l) By allowing this appeal the case may be submitted twice to an appe!late court when 3JI the issues joined and questions incident thereto raised by the parties should be passed upon 3nd decided in one appcnl. Granting, nevertheless, that the defendants may appeal from an ordc1· of dismissal of a counterclaim, I disagree with the majority that the amount of each claim arising from different transactions and not the aggregate amount of the counterclaim is deter· 111inative of the jurisdicti1m of the Court. Section 86, Republic Ad No. 296, as amended by Republic Act No. 644, provides: The jurisdiction of justices of the peace and judges of municipal courts of chartered cities shall consist of: (b) Original jurisdiction in civil actions arising in their respective municipalities and cities, and not exclusively cognizable by the Courts of First Instance; and Section 88, Republic A<.'t No. 296, as amended by Republic Act Ne. 644. provides: In all civil actions x x x arising in his municipality or city. and not C!Xclusively cognizable by the Court of First Instance. the justice of the peace and the judge of a municipal court shall have exclusive C1riginnl jurisdiction where the value of the subject-matter or amount of the demand does not exceed two thousand pesos, exclusive of interest and costs. x x x The first claim for P2,000 which represents the value of certain furniture and equipment allegedly belonging to the defendants and claimed to have been taken by the plaintiffs from the apart· ment (accesoria), the possession of which is sought to be recovered from the defendants who, plaintiffs claim, forcibly entered upon the same and depri\·ed them of the possession thereof, is not an independent transaction or claim because it arose from the alleged unlawful entry upon the premi::es by the defendants. Hence, the three items of the counterclaim arose from the alleged unlawful entry by the defendants upon the l)remises, thC! possession of which the pl9.intiffs Set?k to recover . . The aggregate umount being be)•ond the jurisdiction of the municipal court to hear, try and decide, the order of the Court of First Instance of Manila to which the case was appealed is in accordance with law. The jurisdiction of the municip11l court is limited whereas that of the Court of First Instance is general. The limited jurisdiction of the former should not be enlarged or stretched at the C..'t~nse of that of the latter. Enlarging the jurisdiction of the municipal court would be illegal. The case of A. Soriano y Gia. vs. J ose, 47 Off. Gaz. Supp. No. 12, 156, cited br the majority is not in point. There several employees having each a cause of action against the employer were allowed to join in one suit brought in the municipal court of Manila, although the aggregate amount of the several causes of action (lJ Section t, Rule o . 568 THE LAWYERS J OURNAL November 80, 1951 constituting the demand was beyontf the jurisdiction of the municipal court, because the amount of each cause of action which is less than P2,000 determines the ji;risdiction 1Jf the court, and the joinder of .1mch part!es ia permitted by section 6, Rule S. ln other words, if the sevr.ral employeei:; having a claim against the employer were not permitted to join in one suit by the above mentioned rule, each w1>uld havP to bring a separate action and the action of each would be within the jurisdiction of the municipal court because the amount claimed by each plaintiff would not exceed '2,000 e.'{clusive of interest and costs. The rule in the case of Villasefior vs. Erlanger & Galinger, l9 Phil. 574, im•okerl by the majority does not support its opinion. There the action 'was one of interpleading brought by the sheriff of Tayabas for determination as to who amoug the defendants were entitled to the' funds he had in his possession. The question of jurisdiction of the justice of the peace court of Manila was not the ii~ mota but rather the question of preference of credits. There were two actions brought by Ruiz y Rementeria against Manuel Abraham and two judgnients rendered by the justice of the peace court of Manila in favor of Ruiz y Rementeria - one- for P572.91 and the other for !"304.73 - both amounts being within the concurrent jurisdiction of the justice of the peace court and the Court of First Instance of Manila. This Court in reversing the judgment of the trial court, which disallowed the two credits of Ruiz y Rementeria ordered by the justice of the peace court of Manila in two judgments to be paid to Ruiz y Rementeria correctly ruled that such credits were allowable. · For these reasons, the order appealed from should be affirmed, with costs against the appellants. Labrador, J., concurs. x Marta Banclos de Enp,mt.IJO'Za et al .. PetifiottP.t'I. ii.er. B"ent1'11 iq'!1 A. Tan, etc. et al., Rexponrlrnts, G. R. No. L-6525, A pril 12, 1954; Ba1tti11ta Angelo, J • . CERTIORARI; DENIAL OF DUE PROCESS CONSTITUTES ABUSE OP DISCRETION. - Where a written chargP tor contempt was filed against petitioners, but no copy thereof has been served on them, and their plea to be given an opportunity to answer the charge before any action is taken against them was disregarded, this action is tantamount to a denial of due process which may be considered as a grave abuse of discretion. Pio L. Pestano for petitioners. Ricardo N. Agbunag for respondent Angela Fernandez. DECISION BAUTISTA ANGELO, J.: This is a petition for certiorari with preliminary injunction seeking to set aside certain orders of respondent Judge which direct the immediate arrest of petitioners for their failure to appear to show cause why they should not be punished for contempt, and to set aside the decision rendered by the Court of Appeals dated November 17, l!J52, sustaining and giving effect to the aforesaid orders. The orders herein referred to had arisen in a case instituted in the Court of First Instance ot Rizal by tbe Judge Advocate General of the Armed Forces of the Philippines against Marta Banclos de Espuragoza, et al., in connection with the disposition of the nmount of $1,HI0.8S accruing to one Aniceto Esparagoza, deceased, as pay in arrears due the said deceased (Civil Case No. 877). The case was instituted in order that it may be determined who among the different claimants as heirs of the deceased is entitled to the amount in question. After due hearing, the court found that Marta Banclos, the widow, is the only person entitled to receive the benefits of the estate, and, accordingly, tt crdered that the amount of $1,190.83 be paid to her. However, as the widow, and her lawyer, in a gesture of nobility, agreed to giYe one-half cf uid amount to the four illegitimate children of thf> deceased, the court also included in the decision an injunction that the widow depcsit with the Philippine National Bank said one-half, or the sum of $595.41, in the name of the four minor children, in equal shares, to be dis+ posed of in accordance with law. Two months after the money was received by the widow D directed in the decision, Angela Fernandez, mother of the four minor children demanded that the money be given to her instead of being deposited in the bank alleging as reason that if it be 110 deposited, she would encounter difficulties in withdrawing the money for the benefit of the children. The widow refused to agree to the request unless the mother secure from the court an order authorizing her to receive the money in line with her request. The mother failed to d() ro, nor was she able to disclr,£e the where.,b·m's of the c'iildren, and instead the widow came to know that the children were no lonr.P.r living with their mother tJut had been ~iven away to wcll-t0+do couples who promised to bring them up and take care of them, and so, upon advice of Atty. Pio L. Pestano, her counsel. the widow declined to give the money either to the mother or to the children. The result was that, on March 28, 1952, Angela Fernandez, the mother, instit"uted contempt proceedings against the herein petitioners in view of their failure to deliver the money nR crdered by the court in its decision in Civil Case No. 87'i, The petition for contempt was set for hearing, and after the widow and her counsel were duly heard, the court found the petition without merit, and denied the same. Six months thereafter, a similar petition for contempt was filed by Angela Fernandez wherein she reiterated the same act ot dereliction of duty on the part of herein petitioners, copy of which was never served on the petitioners. However, the same was acted upon e:i: part~ by the t'ourt who, on October 18, 1952, issued an order directing them to appear and show cause why they should not be punished for contempt for having disobeyed the order of the court. Copy of this order was served on petitioner Pestano on October 22, 1952, and on October 25, the latter submitted to the court a written statement explaining the circumstances why he could ncit show cause as directed among which was the failure of the movant to serve on him a copy of the petition containing the charges for contempt. In said written manifestation, petitioner Pestallo made the special request that the order requiring his appe:i.rance be held in abeyance until after he shall have been served with copy of the petition for contempt as required by the rules, and that no action thereon be taken until after he shall have been given an opportunity to an· swer said motion. Instead of acceding to this request, the court, on October 25, 1952, issued an order directing his immediate arrest and that of his client Marta Banclos de Esparagoza. They sought to set aside said order by bringing the matter to the Court of Appeals by way of certiorari, but their petition was dismissed for lack of merit. The only issue to be determined is whether respondent J udge has excecCed his jurisdiction . .,r ac'.ed wi'h grave abuse of d'st>retion in issuing his order or October 25, l!J52, directing the imm~ diate arrest of petitioneNi her<?in in view of their failure to 3ppear and show cause why the~· should ncit be punished for contempt for having discibeyed the ore!er of the court. The determination of thi11 would depend upon an examination of the facts Jeadi.ng to the issuance of the disputed order. It should be recalled that because of the refusal of Marta Bnnclos de Esparagoza, following the advice of her counsel and c0+ 1 1etitioner, Pio L. Pestano, to deposit the money belonging to the four minor childN!'n with the Philippine National Bank, or to deliver it to their mother, Angela Fernande:i:, as dt?manded by the latter, Angela Fernandez filed a petition for conten\pt in the main case praying that the two be ordered to show cause why they should not be punished for contempt for their failure to obey the decision of the court. This petition wa.s acted upon by the court ez. porte, November SO, 1954. THE LAWYERS JOURNAL G59 and because petitioners herein never received copy of the petition tor contempt, they submitted a written manifestation to the court praying that action thereon be held in abeyance and that they be these allegations substantially comply with the law and are sufficient to confer upon courts of first instance the requisite jurisdiction. not required to appea1· until after they shall have been given an 2. opportunity to answer as required by the Rules of Court. This special request was disregarded by the court and considering their failure to appear a s B defiance, the court ordered their immediate arrest. Is this attitude of the court justifiable under the rules? ID.: ID.; CERTIFICATE OF CANDIDACY. - A motion of protest need not in so many words state that the protestant has presented his certifica te of candidacy or tha t he is a candidate !or the office of mayor because all these allegations may be clearly inferred or deduced from the facts expres5l)' alleged therein for it cannot be denied that one cannot be a registered candidate unless he has duly filed t he required certificate of caJJ.didacy for the office he seeks to he a candidate. Emigdio V. Nietes for protestee and a ppellant. Section 3, Rule 64, of the Rules of Court provides: "SEC. 3. ContemµL vuni8hed after cJmryed and heariny.After charge in writing has been filed and an opportunity given to the accused to be heard bv himself or counsel, a person guilty of any of the following. act may be punished for tempt: "x Sixto Brillantes, Primitit·o B 1 w yus and Melq11iacln S1u<1ldito for protesta11t and appellee. DEC ISION BAUTISTA ANGELO, J.: "(b) Disobedicuce of or resistance to a lawful writ, process, or order, judgment, or r.ommand of a court, or injunction granted by a court or judge; Demetrio N. Sarcon and Leopoldo R. Jalandoni were candidates for the office of Mayol' of Midsayap, province of Cota bato, a nd :< had been voted for a.; such in the elections held on November 18, "x "But nothing in this section shall be so construe~ as to prevent the eourt f1om issuing process to bring the accused party into court, or from holding him in custody pending such proceedings." As may be see111 a contempt proceeding as a rule is initiated by filing a charge in writing with the court, and after the charge is filed, an opportunity should be given the accused to be heard, by himself 01· counsel, bcfol'c action could be taken against him. Here, it is t rnc, a wr itten charge was filed against petitioners, but no copy thereof has been served on them, nor have they been given an opportunity to be heard. The petitioners asked for this opportunitr, but it was denied them. Instead, their arrest was immediately ordered. It is true that, under the same rule, "nothing x x shall be so construed as to pi·event the court from issuing process· to bring the accused party into court, or from holding him in custody pending such proceedings", but such drastic step can only be taken if good reasons exist justifying it. Apparently, this rca!>on docs not exist. Petitioners not having received copy of the written charge, they asked that they be given one. They also asked that they be given an oppo1'tunity to answe1 · said charge before action is taken against them. Both pleas we1·e disregarded. Such action, i1t our opinion, is tantamount to a denial of due process, which may be <:onside1·ed as a grave a,buse of discretion. As this court has aptly said: ''Court.ii should be slow in jailing people for non-compliance with their ordei·s. Only in cases of clear and <:ontumacious i·cfusal to obey should the power be exercised. A bomi ffrle misunderstanding of the terms of the order or of the procedural l'nles should not immediately cause the institution of contempt proceedingi::." (Gamboa v. T~sodol'O, 1 .r4893, May 13, 1952.) Wherefore, th<' Ol'(\e1·s of respondent Judge dated Octobct· 18, 1%2 and October 25, !!>!'ii, are hereby set asi,fo and it is hei·eby onlered that before Hction be taken on the motion for contempt, /'etitioners herein be gi,·cn au oppol'tunity to answe1· said motion as prayed for in their \\Titten explanation dated Octohe1· 24, 19!'ii. without costs. Pnrf/.'<, G.J., P<1blo. Brngzon, illontemttycw, A. Re11e1., Jugu, Lnbn1dv1 ·. rom·c1wion and Difl/mo. J.J., concur. XI Lcoµoltlo n. J1~fo11doni, Pl'otestont and Appellee, vs. Demetrio N. S111·co11, Protestce and Apvelfont. G. R. N o. 1 .r6496, Ja1mary 27, lfl54, Bautista .'hrgelo, J. 1 . l!:LECTIONS; MOTION OF PROTEST, SUFFICIENCY OF'. - Where a motion of protest contains allegations that the protestant is a qualified elector and one of the registered candidates \'Oted for in the general elections held on November 13, 1951, 1951. In the canvass made by the Municipal Board of Cam·assers, Sarcon obtained 3,181 \'O.tes and Jalandoni 3,088 votes, and ag a result the former was proclaimed elected. In due time, the latter filed an election protest in the Court of First Instance of Cotabato. The trial court, upon petition of protestant, directed the National Bureau of Investigation to examine all the ballots contained in the white boxes as well as the stuhs contained in the bo>.:es for spoiled ballots, the corresponding voters affidavits and lists of voters, and all the pads containing the stubs of ballots used, of precincts Nos. 19 and 34 of Midsayap, to determine if the ballots cast in se.id predncts were ge:mine., or were cast by persons uther than the legitimate vote1·s. Angel H. Gaffud, examiner of said Bureau, made the examination as directed and submitted his report to the court. - During the trial, the protestant, tht·ough counsel, introduced as · part of his evidence the certificate of candidacy he had filed as required by law but its admission was objected to on the ground that his motion of protest does not contain any allegation that he has filed any certificate, but the objection was overruled and the certificate was admitted in evic\ence. U11on the conclusion of the trial, the court rendered judgment nullifying 22G ballots cast for the protestee and declaring the protestant as t he mayor elect with a majority of 133 votes. The case was orginally taken to the Court of Appeals, but, as appellant has rnised as 011e of the errors that the lower court hnd no jurisdiction to try the case because the motion of IU'Otest doe.'! not allege sufficient jur isdictional facts, it wa s later certified to this Court. Appellant contends t hat the motion of protest does not contain jul'isdictional facts because it fai ls to state that the 111·otcstant is a candidate voted fo1· iu the elections held on November 13, 1951 and that he has presented the 1·equirecl certificate of candidacy. He claims that these allegations u e essential a nd the failure to include them in the motion of 1wotest operates to divest the court of its ju1·isdictio11 O \'er the case. We agree with counsel that court of first insta nce, when taking cognizance of election protests, act as com1s of special jurisdiction. In this sense they have a limited jur isdiction. They can only act when the pleadings a\·er jurisdictiona l facts. As this Court aptly said: ';The Court of First Instance has no jurisdiction over an election protest until the specia l facts UJ>on which it may take jurisdiction are expressly shown m the mot ion >f protest_ f here is no 1 1rcsumpfo1n in favor of the jurisdiction of a court of limited or special jurisdiction. x x x Such court cannot, by any suppose.I analogy to ordina ry proceedings, exercise any power beyond lhat which the legisla ti..;re has gh·en . '' C Tengco v. J ocson, 43 Phil_ 715.) But we disagree with counsel that the motion of )lrotcst in th" 160 T HE LAWYERS JOUHNAL Nonmber SU, 195' present case does not allege facts sufficient to confer jurisdiction upon the lower court. Among the important allegations appearing in the motion of protest are that protestant is a qualified elector and one of the registered candidates voted for in the general elections held on November 13, 1951, that, in accordance with the certificate of canvass of the Municipal Board of Canvassers, the protestee received 3,181 votes and the protestant 3,088 votes, and on December 3, 1951, the protestee was declared elected to the office of Mayor of Midsayap. In our opinion, these allegations substantially comply with the law and are sufficient to confer upon the court the requisite! jurisdictiou. It is true that the motion of protest does not in so many words state that protestant has presented his certificate of candidacy, or that he is a candidate for the office of Mayor of Midsayap, but all these allegations are clearly inferred or deducible from the facts expressly alleged therein for it cannot be denied that one cannot be a registered candidates unless he has duly filed the required certificate of candidacy for the office he seeks to be a candidate. This is a requirement which must needs be met bef(,re a person can be eligible or be voted for lSection 31, Revised Election Code). This is also the interpretation placed by the Senate Electoral Tribunal on the words "registered candidate" in a case involving a similar issue (Sanidad v. Vera, et al., Case No. 1, Senate Electoral Tribunal). Indeed, to countenance the plea of appellant would be to defeat an otherwise good case through a me1·c technical objection, which is the duty of the courts to prevent, for "It has been frequently decided, and it may be stated as a general rule recognizerl by all the court, that statutes providing for election contest are to be libcr:'llly construed, to the end that the will of the people in the choice of public officers may not be de· fe:ited by merely teC'hnical objections. To that end immaterial defects in pleadings should be disregarded and necessary and proper amendments should be allowed as promptly as possible." (Heyfrom v. Mahoney, 18 Am. St. Rep., 757, 763; Mccrary on Elections, 3rd Ed., sec. 396; Galang v. Miranda, 35 Phil., 269.J As a co1·ollary, it should be stated that the lower court did right in allowing the presentation in evidence of the certificate of candidacy of protesta'nt which is necessary ~o establish a material jurisdictional fact. Let us now come to the merits of the case. Note that the ballots disputed by appellant arc those cast in precincts Nos. 19 and 34, and that these were all examined as ordered by the court by Angel H. Gaffud, a handwriting expert of the National Bureau of Investigation. The ballots disputed among those cast in precinct No, 19 amount lo 806 of which 226 were found to be spurio11s. And among those cast in precinct No. 34 those disputed amount to 200 ballots and of these 53 were found also to be spurious. The handwr:tin,:r expert classified the first batch into 14 group31 &nd basing his opinion on the striking similarities of the handwriting fr,und in each g!"oup, he g~ve the opinion that the 226 bailots had been written by one and the same hand. The second batch was classified into 10 groups and following the same process he reached the same conclusion. The lower court concurred in this opinion as rP-gards the 226 ballots but disagreed with regard to the 58. 1t found that these 53 ballots were all written in Moro characters, and considering that these characters were not known to the handwriting expert, it entertained doubt as to the veracity of his findings. This doubt the court resolved in favor of the protestee and counted them in his favor. Counsel for appellant disagrees with these findings concerni11g tho 226 ballots and, pointing out the individual characteristics of the writer of each ballot shown by his habit of writing, "such u his slant, the proportional heights of his one spaced to his two spaced letter, or to one another; the pressure of writing, the spacing, the penlift of the writer, the crossing of his 't's', the dotting of his 'i's', his habitual initial and terminal strokes, whether they arE: blunt or flying, the loops of his letters, his speed in writing, and the use of capital letters", he now vehemently contends that the ballots in question cannot be considered as having been written by ono and the same hand. And to niake his opinion more impressive and factual he made his own grouping of the ballots and proceeded to compare one with the other pointing out certain differences which in bis opinion tend to destroy the findings of the handwriting ezpert and of the trial court. In view of these conflicting opinions, and in order to reach a conclusion as close as may be possible to the truth, we have examined these ballots one by one and han found that, with the exception of 15 ballots which appear to have been written by different persons, the findings of the handwriting expert are correct and should be sustained. For the purpose of this decision, and in order that the characteristics of the writing may be better appreciated, we have placed the ballots in small groups within the classification made by the handwriting expert and the following are the reasons supporting our conclusion: GROUP I 45 ballots (Exhs. A; A-1; A-4; A-IO; A·l4; A-25; A-SG; ~,_,_,~;~;-;_; _;~;- ; A-49; A-50; A-52; A-53; A-66; A-67; A-72; A-74 ; A-81; A-85; A-86; A-90; A-91; A-94; A·U6; A-97; A-100; A-102; A-103; A-107; A-lO!l; A-110; A-2; A-3; A-15; A-93; A-45 a nd A-101> wer(> undoubtf'dly written ly only one person . While there is an attempt to disguise the handwriting by using different writing instruments, as indelible pencil, lead pencil and blue-colored pencil, and by varying the slant of the writing, pen pressure and spelling of the words, the. general characteristics of the writer as to form, formation of letters and habits are clearly noticeable. In all these ballots, except one or two, one cannot help but notice the peculiar form of the capital Jetter T in "T:idio" and "Tan". Except the first ballot, the M in "Mantel" has four "legs". Tho capital letter C in "Cambronero" and "Carlos" has a peculiar formation, that is, the initial stroke begins from below, has a loop on top and is brought down with the usual curve. The capital F in "Flores", the capital S in "Sarcon", and the capital R in "Roganton" are similar in practically all these ballots as "Suluezeta", or "Suluezta", or "Suluezela" having forgotten to place the crosg.bar in the t, "Suluezat", and the terminal "a" is separate from the "t", a practice habitual to the writer. 12 ballots (Exhs. A-6; A-8; A-16; A-39; A-40; A-43; A·51; A-54; A-58; A-61; A-70; and A-73). These were clearly written by same person who wrote the above 45 ballots. The characteris· tic formations of the capital letter M in "Martel", C in "Cambronero" and "Carlos", T in " Tan" and "Tadio" and R in " Roganton" in the above 45 ballots are all found in these 12 ballots. In all these ballots the name Zulueta begins with capital Z in printed form. The terminal letter "a" is separate from the "t" just like the 45 ballots above. 14 bttllot3 <Exhs. A-13; A-19; A-20; A-21; A-22; A-26; A-29; A-41; A-44; A-55; A-57; A-75; A-76; and A-87). In all these ballots one hand wrote the votes for Senators with indelible pencil, without any attempt to disguise the penmanship. Another hand, which is the same one that wrote the above-mentioned 45 balJots, wrote in lead pencil the votes for the provincial and municipal officials, with the usual characteristic formation of the capital letters M in "Mantel", C in "Cambronero" and "Carlos'', R in "Roganton" nnd T in " Tadio" and " Tan". 11 ballots (Exhs. A-5; A-7; A-32; A-38; A-G:l ; A-69; A-71 ; A-77; A-78; A.80; and A-106l. One hand wrote th~ votes fnr Senators in all these 11 ballots. but ditferent from the hand that lhc above 14 be.Hots. This writer iA a more accomplished writer. HC' tried tn disguise his writin~ in 8 of these ballots ( Exhs. A.Ii, A-78 nnd A-80) by makjn,1r his letters smallPr, but this betrayed by his usu11.I formation of the capital lt•tter Z in "Zuluetn" which is lhe l'nme in all the ballots. Hi: also wrote in the last 2 ballote the votes for members of the P rovincial Board. The rest of the \'Otes in these 11 ballot.!! was written by another iland, the nm"' lhat. wrote the 45 bailots. suprn:, as s.hown by the e11pital lettera !t: in " Mantrl", C in " Cambronew'' .e.nd "Carlo~". T in " Tad:n" and "Tan", R in 'Roganton", B in "Dangas" and Y in " Yemo". He hied to disguise his handwriring in tho last bal!ot by cmmgin(C hifl slant. S ballots <Exhs. A-27; A-31 and A-84>. These were pre.. November SO , 1954 THE LAWYERS JOURNAL pared by the same person who wrote the 45 ballots, supra, with an indelible pencil. ·rhc usual charactt-ristics of his writing as alrendy de,:cribed arc present, lik~ the C in "Cambronero'· and "Carlos", F in "Flores", R in "Roganton" and others. G ballots CExhs. A.68; A-79; A-99; A-33 and A-56) . The first four ballots were each prepared by different voten. and could have bPen regular were it not for the in!ertion of tt.e name of can... didatc Carlos Tan in the spa<.e for special election by the c;amc guilty h:u,rl that invalidated all the ballots discussed. But this can. uot lnvali<latc them. In the last two ballots, "Sarcon", and ''Yerno'' in the spaces for Mayor and Vic!!-Mayor, respeC"tivt:ly, were writ. ten by the same guilty lui.nd as shown by the capital letttr C in '·Cnrlos", Tin ''Tan" and Y in "Yerno". These two ballots are, therefore, invalid. 5 balloti. CExhs. A-23; A-511; A-64; A-89 and A.10;)). The voter in the first ballot voted ,mly for " Bona" and "Cambronero"; in the secpnd, the voter voted only for "Quirino" and "Roganton", in the third the voter voted for "Sarcon", "Yerno" and fo!.lr coun.cilors; in the fo1.1rth L hc vote1 · voted for "Zuelueta'', "Borra" and "Cambronero", i.nd in the Ja3t voted for seven councilors fron1 line 2 to 8. With the exception of the third baltot, the name "Sarco m" was written by t he same guilty hand and should therefore be declared invalid. Only the third is valid. · 3 ballots IExhs. A-11; A-24 and A-83>. Similarly, those t!lret: ba!lots WP.re tampered by the same guilty hand. The f irst 2 ballots were YOtcd in Arabics wJ:iil~ tl1e third voted only fo~· "Kimpo" in blue pencil. The guilty hnnd wrote "Carlos Tan" and thP (•i.hcr writing as can he seen by his characteristic capital letters "C" and "T". 2 ballots C Exhs . A-98 and A-48>. These were ead1 preparei:J by two hands. "Zulueta" in both ballots were written by one hand, the c;ame pcn;on who w rut(: this word in thf' 11 ballots, 811pra. This hand wrote also the rest, written in blue-colored pencil, in the second ballot. The 1·est of the writing in the first ballot was written by the same guilty hand that prepared the 45 ballofs, supra. 2 ballots <Exhs. A-17 an<l A-47). These two ballots were ench prepared by 2 hanrls. "Carlos Tan" was written in both ballots by the same guilty perS<'Jl in the 45 ballots, siwm, but the name "Sarcon" was written by the same hand in the two ballots. 4 ballots <Exhs. A-82; A-95; A.104 and A-108>. These were prepared by the same t!Uilty hand that prepared the 45 ballots, :!Uprc1. He tried to disguise his writing but he could not escapP jud.(."ment by om• who has become used to his letter formation . 3 ballot.'I rnxhs. A-18; A·Gll and A-88J. A careful scrutiny 'If these ballots shows that nothing in them indicates tliat they have bel'n tamrerf"d with. They are valid. GROUP II 30 ballots (Exha. Il to B-30, inclusive, with the l'XCeption of B 28). They were nil pt·r1mrcd by only one individual, the same r crson who wrote the vutcs foi· Senators in the group of 11 bal. luts, s11pr11, of Group I . The writer made an attempt to dis:!uis<' l1i11 handwritinR" which may Oe classified into three 9ro•1ps, as follows: first group, Exhs. B; B-1; B-7; B.8; B-10; B.12; B-15 ; B-JG; 11-17; 11-18 : B-22 ; B-2C.; B-24; B-26 and B-27; second group, Exhs. R-2; R.3 ; B.4; B-5; B-9; B.J3; B-19; and B.21, and third group, Bxhs. B-6; B·ll; B-14; B-20; B-23; B-29 und D-30. Tht. first g1·ou1 J may be dl'SCribed as the writer's ordinary handwriting with his usual slant; in the second group, he clianged his slant mnkinJ.:" it a little bit vC'rtico.l; and in the third group, he made his l..:tkrs :<muller but in his usual slant. The writer is an Accomplished Olli'. He camouflaged his handwriting by using lead, indelibll' and blue-colc.red pencils, but this did not vitally .::hangc his hnbitual form. His formation of capital Y in "Ycrno" in all the ballots, exce11t a few, is eye-catching, in that, It starts with a flour ish from bPlow. This is also true in his capital V in .. Villa1·c:ll". One ran easily J\c,ticc his formri.tion of Z in "Znlue-ta•·, K in "K.impo•·, M in "Mantel", C in Cambronero" and T in "Tadio'' and " Tan''. They are all alike in all the ballots. 1 ballot cExhs. B-20>. This is void because the writings there... in were written by three different hands. This is apparent by 11 mere examination of the ballot. GROUP Ill 17 ballots <Exhs. C to C-16, inclusive>. They were all written by one anrl thE' same person. 'f he general appearance of the handwriting m all the ballots shows that the w1·itings therein were made hurriedly, but the writer did not attempt to disguise his pen. 111ans_hip. The ballots may be grouped into three: first group, Exhs. C; C-1; C-2; C-3; C. 6; C-9; C-10 C-11; C-12 and C-14 were all written in lead pent!il; second group, Exhs. C-4 ; C-5; C-7; C-8; C-13 and C-15, all written in blue-colored penc'.I; anrl tho last g tou11, Bxh8. C-16, written in indelible pencil. GROUP JV 9 ballots CExhs. D to D.8, inclusive). They were nil written J,y one hand with apparently the same indelible pencil. No at. h:mpt was made to disguise the handwriting. The most ciistinguishing characteristic of the handwriling is the upward flourish in all terminal letters of the nan1e 'lf the candidal<!s, especially the ter. minal letter "o'' in "Y~rno", "Carbronero" and " Kimpo". GROUP 1' 8 ballots <Exhs. E.1; E.4; E-5; E-6: E-11; E-12; E-13 and I~:-16>. They were all wr itten by one hend. The similar forma~ion of the following capital lettel's betray the fraud committeJ: S in "Sarcon'', Y in ''Ye1·no"; B in "Bengzon" and ·•Borra", R In "Ragonton" and "Randing''; F in ''Flores" and V in "Villareal". In all the ballots, the ca1>ital letter C in "Cuenco'' and "Cambra. nero" were written like a small letter c . 4 bo.llot~ CExhs. E-9; E-18; E. 21 and E>. They were written by the same person who wrote the 8 ballots in the preceding paragraph. The writing was disguised by the writer changing his slant, making it vertical and using different pencils. But the characteristic formati:lfl of his capital letters Y in "Yerno", F in .. Flores", V in "Villareal", H in " Ragonton" 3nd " Randing" 3TI' unmistakably present. 4 ballots <Exhs. E-10; E.17; E-19 and E-20). They were nil written by onl' l111ncl using a blt1C'-colored pencil. Thi' writing in all the ballots is very similar with the same light pen pressure. The hcn·•icr c!ownwurd stroke in the trr minal ••J" ;n ''Laurel", "Man. tel" and "Villareal" is gb ringly noticimble. 3 ballots <Exhs. E.3; E-7 and E-14). They were written l•y the sam(' hand that w1·ote the 8 b:illots, sup ra. The w:·iting in these ballots was disguisE'd by making the letters o. little biggn than the r;roup referred to. But the same letter fonnation can l•f" found in thf's.:> ballots . 2 b:lllots CF.xhs. E. 2 ancl F.-15). They were written by one person. This is apparent by a mere l!:mmination of the ballot&. His lettl'r form:ltion and !"larit are alike in both ballots. 3 ballots CExhs. E.S; and E.22 and E-23). Nothing in these ballots shflws that they were tampered with. They were eRch written by dif;erent voters. They are valid. GROUP VI 4 b11ll<'ts n-;xhs. F to F-:i>. They were all written by one and thr; sanu: J}{'rson, tl1e first hallot, in indelible pencil, and the last three in blue-colored pencil. The handwriting in these 4 bal. lots is vf'ry much alike. Even the spelling of the senators voted fo1 in these 4 ballots is the same. ''Laurel" for Laurel, "Zulueta" for Zuluetu, and ''Locsin'' for Locsin. GROUP Vil 2 ballots CExhs. G and G.l) . They were eu.h written by 562 THE LAWYERS JOURNAL November SO, J9E4 two handa. One hand wrote the name "Sarcon" in both ba1 1oll, while the Arabic votes each ba11ot were written by two d f ·e··ent peraona. Thi11 is apparent by a mere examination of the ballota. These ballota are, therefore, void. GROUP VIII 8 ballots CExha. H to H-7, inclusive). They were a11 written by one person using a blue-colored pencil . The handwriting in these ballots is all identical, the writer having made no attempt !o disguise his penmanship. Thfa is apparent by a mere examinatinn of the ballots. GROUP IX 7 ballots <Exh!'I. I-1 to I-7, inclusive). They well' all written by cnly one individual who tried to disguise his handwriting by using indelible, lead and blue-colored pencils, But his attempt is ~ lied by his identical formation of the four-legged capital M in ''Mantt l", the capital Jetter .U in "D. Sarcon" and "Q. Man~el" in 4 of the ballots, capital letter Z in "Zulueta" and L in "Locsing" nnd "Laurel". His attempt is further exposed by his wrong spl.'11ing of Zulueta as "Zulela" and Locsin as "Loesing" which are found in all the ballots. 1 ballot CExhs. 1·8>, This was written by at ]east two hands. OOth ballots are identical. These two ballota are, therefore, vc!d. In re8t1mi. we find that of the 226 baJlots dttlattd spurious by thp lower court, 15 are legitin:ate and .should be cast in favor of the protestee. These ballots are Exhibits A-68; A. 79; A-92; A-99; A-64; A-18; A-65; A-88; E--8; &-22; E-23; I ; J -1; L ~nd L-1. The findings of the lower court as to the b3lance of 211 bsllots should be sustfo.ined. Deducting this ntimber from the votes awardl'd tn the protestee by the Board of Canvass~rs, we have that the pr~ testant has won the election with a majority of 118 votes. Wherefore, with the above modification, we hereby af-firm the decision appealed from, without pronouncement as to costs. Pnrns, C.J., PnMo, R1rng::on, P:ufillo Montcmnvot'; A. Rey•s; Jugo; and Lal>radtw, J .J . concur. XII Ma.re Donndl11 & A sRociatea. lne.., Pci:tioner. vs. Mnnu•l .4.grgnrfo, Auditor General: Cornelio Bnlmare-la, See.retary of Commerce and Tndustrv: and Ramon L. Paguia, Chief of the Sugar Q•tota O;fice. R P.spondents, No. L-4510,_ May :n, 1954, Bautista Angelo, J. One hand wrote the names "S:i.rcon" and ••Yenno" in the spaces fer Mayor and Vice-Maor, respectively. One can immediately 1 · CONSTITUTIONAL LAW; DELEGATION OF LEGISLATTVE POWERS; POWERS MAY DE DELEGATED IF AUTHORIZED BY THE CONSTITUTION ; ACT OF CABINET IS ACT OF PRESIDENT .-On J uly 10, 1946, the P rt''lident. et'ting upon the authority vested in him by Commonwealth Act No. 728, making it unlawful t'l export a~iculturai or industrial produd s without a permit from the President, p!'<lhibit.::d th~ exportation of certain materials but allowed t11e exportat ion or other merchandisl.', like scrap meta1s, provided an t'Xport license is first obtained from the Philippine Sugar Ad· ministration. The Cabinet, upon recommendation of the Nu.tional Development Company, npnroved a resolution fixing t.lie schedule of royalty rates to be charged on rnel9.l exports and authorizerl their eollection. P<'t itioner exported brire amounts · r>f scrnp mPtah: for whieh it paid by way or royalty fees the total amount of P54,862.84. Petitioner now seeks t11e refund ot saiJ royalty fees, content!ing that the ulornsaid resolution constit11tes an undue clele~tion of legislative powers becaus~. in s:.i.b~t.Ance. it creates and imposes an ad valorem ta%. field: detect that the writer of these names is more accomplished than the hanr:l that wrote the votes for senators, membera of p .ov:ncial beard and councilors. 1 ballot <Exhs . I>. This appears to be good. There is nothing to indicate that it was tempered with. GROUP X 2 b:'l.~lots (Exhs. J and J-2> . They were written by one individual. The handwriting in h.'lth ballots is identical in all r('s. pecf.s. The name of Carlos Tan was written in both ballots as one W?rd. 1 ballot CExh.· J -ll. T~ handwriting in this bal1ot appear! to be different from that in the other ballots and there is nothing tc.. indicate that it was tampered with. GROUP XI 2 bullo~s CExhs. K and K-U. They were written by one hand. No attempt to disguise t.he writing was m!lcle and the similarity t f the penmanship in both ballots is very apparent. These two are void. GROUP Xll 2 ballot!'! CExhs. L and L-1> . These two ballots were written hr two difforent. persons. The disimilarities between the handwriting in both bnllots are mnre striking than any similarity that can be seen. The 1ilant, lette1· di1'tanl!es, stroke, pen lift and pen prc!!sure are different, These t.wo bal'.ots are, therefore valid. GHOUi' XIII 1 ballot CExh. M> . Thif! was written by two persons. One hand wrote lhe senatorial candidates from line 3 to 7, while tht: 1·est was written by another. ThP. first hand is the same one that wrote the senatorial candidates i 1 1 the group of 14 ballots, rilp-ra, under Group I. The slant, ren pressure and tern1inal strokes are different from the second hand. 1 ballot 1Exh. M-ll. This was written by the same p!!rson who w1YJte the votes for provincial and municipal offic:als in the bnll·lt discussed in the prcceC:ing paragraph . The letter formation, sltrnt an<! the penlift in "Yerno" are identical. GROUP XIV 2 ballots <Exhs. N and N-ll. They were written by one and th<' sumc person. No attempt to disguise the writing was made. The sizes of the letters, spacing, alignment and letter formalions in The resolution approved bv the Cabinet is perfrctly leJ?t!I bPcause it was done by authori~v of C<immonwealth Act No. 728 and in pursl•9.nce of an f'Xnr~ss pro,·is:on of the Constitution that Comrress may by law author'ze the P resident, subject to certain limitations, to fix, wi+hin specified limits. tariff rates, import or export quotas, and tonnao:re and wharfa<PC dues. Tl1e lnct tho.t the resolutinn W.'.l'l approved bv the C:ibinet and the collection of thP royalty fees was rot rlecre!'d by virtue of an r>rder issued by the President himself dO"S not invali.!!'l.te said resolution bE>ca\1se it cannot be dispnted that the Aet of the Cabinet is deemed to be, and essentially is, the act or the President. 2. ID.: Jn .: RUT.F. FORllIDDTNG n~LEGA1'JON OF LEGISLATIVE POWERS, NOT ABSOLUTE: EXCEPTIONS.-Th~ rule which forbids dele,1?at;on of legislative power is not abl!Olttte. It admits of excentions as when the Constitution itself authorizes such delegation. 3. ID.: PROPERTY RJ<;RTS: EXPORTATION OF SCRAP METALS NOT A RIGHT BUT A PRIVILEGE; AUTHORITY OF PRESIDENT TO REGULATE EXPORTATION INCLUDES AUTHORITY TO IMPOSE CONDTTIONS AND LJMITATIOSS FOR TRF. EXERCfSE OF PRIVILEGE.-Commonwealth Act No. 728 ('Xpressly authorizes the President not merely to regulg,te but to prohibit altogether the exportat!on of scrap rr."tals. Hence, there is no nbsolute right on the part of any person or entity to export such mnteriols. H, however, lhe President chooses to grant the privi'ege,' he can impose cor<li· tions and limitations he may deem proper, one of them being November 30, 1954 THE LA WYERS JOURNAL •63 the payment of royalties for permiaaive or lawful use of property right. 4. ROYALTY RATES, MAY TAKE THE FORM OF TARIFF RATES; IMPOSITION THEREOF CAN BE DELEGATED TO THE PRESIDENT .-Royalty rates may take form of tariff rate1-;, the imposition of which can be delegated to the President by Congress in pursuance of an exDress provision of thf' C"onstitution. 5. ID.; ROYALTIES NOT IMPOSITION; PAYMENT OF ROYALTY IS THE CONSIDERATION FOR THE EXERCISE 01'' THE PP.IVJLEGE; EXPOR'l'ER WHO PAYS, GUILTY OF ESTOPP~:L .-The payment of royalt~· rates cannot be considered ai; an imposition or one exacted under duress, for the ex.porter who wants to avail ~f this privilege is free to a<"t on the matter as his inten:st might dictate. The payment of royalty can be considered as the consideration for the exercise of the privilege and one wM &.vails of that privilege and paw;i. the consideration is ~uilty .1f estoppel. · Arturn Af!uxtines for the petitioner. Solicitor General Pompeyo I>Wz, Assistant Solicitor General F'rflncfaco CarrP011, and Solicitor Augusto 111. L ucimi'? for the respondents. DECISION BAUTISTA ANGELO, J. · This is a petition fo1· review of a decision of the Auditor Gen· eral denying the claim of petitioner for the refund of the export fl!Pf: paid by it. tc. the Sugur Quota Office in the amount of P54,862.84 On July 2, 1946, Congress enacted Commonwealth Act No. 728, making it unlawful for any person, association or corporation to export agricultural or industrial products, merchandise, articles, materials, and supplies without a permit from the President of thf' Philippines. This Act confers u_pon the Pr~sident authority to "regulate, curtail, control, and prohibit the exportation of materials abroad and tn iss1te snch rules and re!llf-IO::tioits ils mliy be necessary to carry out the provisions of this Act, throut;"h such der)artment 01· officf' as he may designate." On Jrrly 10, 1946, the President, acting upon the authority vested in him by Commonwealth Act No. 728, promulgated Executive Order No. 3, prohibiting the exportation of certain materials therein enumerated but allowing the exportation of other me1 ·chan<lise, like scrap metals, provided an export license is first obtaiuect from the Philippine Sugar Administration. On April 24, 1947, tl1e Chief nf the Executive O!fice, by authority of the Presirlent, sent a communication to the Philippine Sugar Administmtion i:.uthorizing the exportation of scrap metals upon payment by the a1iplicants of a fee of PIO. 00 per km of the metals tl'I he exported. Subsequently, the Cabinet, up,on recommendation of the National Development Company, npproved a reMlution fixmir the schedule of r;.iyulty rates to he charge on metal exports. Petiticne1· herein expol'ted large amounts of scrap iron, brass, copper, and aluminum during the period from December, 1947 to S1.•ptcmber, 1!>18, for which it paid by way of royalty fees the total e.mount of f'G4,862.84. This amount was collected by the Sugar Quota Office under the authority granted by the Chief oi the F.xecutive Office and the resolution of the eubinet- above mentioned. The Ctl!.<: is now before us by way of appeal from the decision of the Auditor General who denied the request--for· refund- of said ro)lalty fees. Petitioner contends that the resolution of the Cabinet of October 24, 1947. fixing the !!chedule of royalty rates on metal expor~ and providing for their collection constitutes an undue delegation o! legislative powers because, in !nbstance, it creates and impose!' an nd ·1•nlorcm tax. Article VI, Section 22 (21. of the Constitution provides: ''The Congress may by law 11.uthoriie the Pruidenl, 11Ubjrct t? such limitations and relitrictions, as It may impose, to fix, within specified limits, tariff rates, import or export quotas, nnd tonnage and wharfage dues " It is clear from the above th11t Congress may by law authoriu the Pr-esident, subject to certain li111itations, to fix, within specified limits, tariff <rates, import or export quotas, and tonnage and wharlnge dues. And pursuant to this constitutional provision, Congrt!&s approved Commonwealth Act No. 728 conferring upon the President authority to regulate, curtail, control, and prohibit the exports or scrap metals and to issue such rules and regulations as may bl' 11eccssa1·y to carry out its pi'oVis.iQnS: And implementing this bro:id authority, the Cabinet approved the resolutUm now in question au thorizing the levy-aiid collection of cretain royally fees as a condition for the exportation of scrn:> metals and other merchandise ln out· opinion, this resolut ion is perfectly legal because it was done by authority of Commonwealth Act No. 728 and in pursuanco of an express pr:>vision of our Constitution. The fact that th" resolution was approved by the Cabinet and the collection of th1· royalty fees was not decreed hy '·irtue of an ordn issued by the President himself does not, in our opinion, invalidate said resolution because it cannot be dis_ 9uted that the act of the Cabinet is deemed to be, and essentib.lly is, the act of the Presic!ent. And this is so because, as this Comt has aptly said, the secretaries of departments are mere assistanis of the Chief Executive and "tho multifarious exccuth1 c and administrative functions of the Chief Exccufive are performed by and through the executive dcpartmPnb, rmd the actR o; the secretaries of wch departments, performed and promul9att:d·fo:t1ie regular CO'ltr'S'e nf bia1"n~ss. af'fl, 1inle•s disappro11cd o-r reprobated by the Chief Exi:c1ttive, preaumptively the acta of the Chief E:z:ecutive." <Villena y_ , .l:be ~~cretary of Interior, 67 Phil., 451.) To hold Cltherwise would' be to entertain technicality over substance. And with regard to tht: acts of the Cabinet, this conclusion acquires added force bet>ausa, unless shown otherwise, the Gabinet is deemed to be presided over .shvnys by the President himself. It is contended that the royalty rates prescribed in the Cabine+; -resolut,ion ~are not fe€s- -but in effr~t ·partake· of the nature of an ad valore-m tax the imposition of which cannot be delP.gated to thf' -President hy Congress. The l'Uie .w hich forbids delegation of legislative power is not absolute. It admits of exceptions as when the Constitution itself authorizes- suCh delegation CConstitution of the Philippines by Taiiada and Fernando, p. 449). In the present case, our Con!\titution ex11ressly authorizes such delegation. [Article VJ, Section 22 C2).} This is so because the royalty rates may take -t he form ot {firiff rateS. - At any rate, Commonwealth Act No. 728 confers upon the President authority to regulate, curtail, control, and prohibit the eXjl6.rtafiQn of scrap metals, and in this authority is deemed included the power to exact royalties for permissive or lawful use nf property right. CRaytheon Mfg . Co. , .. Radio Corporation of America, 190 N. E. 1, 5, 286 Mass. 84, cite:l in Words and Phrases, Vol. 87, p. 810> One point that should be considered is the distinction between \ht business of exporting scrap metals, on one hand, and other mercl:andise on the other. As a rule, common trades or industries, for ti!!' exportation or merchandise in general, cannot be prohibited, but may only he rei;,Jlated in the exercise if the police power .Jf thr States; not so wnl1 re..:-ards to !;crap metals whose exportation may be completely banned. This is the core of Commonwealth Act No. 728. It auHv:irizes the Presillent not merely to regulate but to prohibit altogethe1· the exportatiou or certain articles, among them scrnp metals. Hence, there is no absolute right on the part of any person or e1ltity to eXPort such materials . But the President, acting under the authority granted by said Act, did not, in promulgating Executive Order No. 3, choose to place a complete ban OP the exportation of scrap metals, but permitted such exportation upon payment or certain royalty. If the President c:an prohibit altogether such exportation, a /orfior-i he can, aa he did, impose condition'$ :md limitations he 1:iay deem p1'9per in grKnting the privileges, one of them being the payment of royalties similar to the one subject of the present litigat.lon. 564 THE LAWYERS JOURllrAL November 30, 1954 The payment of these royaltfoa cannot be considered, aa eon-tended by petitioner, as an imposition or one exacted under duress, for the exporter who wants to avail of this privilege is free to act on the matter as his interest might dictate. Compliance with the resolution was optional. It was left entirely to his discretion. If with full knowledge of the condition imposed by the re8';>)ution the exporter of the prohibited article deems it convenient to traffic on it because of the profit he expects to derive from the transaction, he cannot later be henrd to complain of what the Gcvernment has exacted b1..~ause of the presumption th::..t, in spite of that charge, the transaction would still bring him a substafltia1 profit. The payment of the royalty can be considered Sb the eonbideration for the exercise of the privilege and one who avails of th::it privileg:? and pays the consideration is guilty of estoppel, This is the predicament of pfltitioner. Wherefore, petition is dismissed, without pronouncement a! to Cl'.ISts. Paras, C.J., Labrador, Montemayor and Jugo, JJ.; concur in the result. PABLO, M, concurrente: La recurrente pide la devoluci6 de la cantidad de F54,968.41 que habia pagado a la Sugar Quota Office por el pernuso quP. ohtuvo para exportar desperdicios de metal, "scrap metals." Cus.ndo la rccurrente p1di6 permiso estaba enterada de que la Ley dP.\ Commonwealth No. 728 declaraba ilega1, sin permiso del Presidenti> de Filipinas, la exportaci6n de productos, mercanc:a~. articulos. materiales y efectos agricolas e industria1es. En su articuln 2. <lict1a ley autorizA. al Presidente ll regular, restringir, cont:-olaY y fffohibir dicha exportaci6n y dictar Jos reg1amentos r.ec~sarins pnra llflvar a P.fccto !aft di~posiciones de dicha Jey. En 10 de j ·ro de 1946, ejerciendo los poderes que le conferia dicha ley, el PresidentP. promulg6 la ord..,11 ejecuti\'a No. 3 que prohibfa la exportaci6n dP los materinlcs cmumerados en el Jtrticulo I.o; pero permitfa. la t-:C:11ortaci6n de vtras mercanefas com<' los desperdicios de metal con la condici6n dP que se obtuvierantes Jicencia de la Philipoi~e Sugar Adminit:ttration. En 24 de octubre de 1947 el Gabinete, por recomer.daci6n del Administr!.ldor de la National l>P.\•elopmcnt Cornpany, aprob6 una J'Pl!'olur.i6n establcciendo un "schedule of royalty rates on metal ex~ ports." La rcr.urrente contiende que la cantidad que pag6 de acuerdo con dicha tarifa <schedule) y que hoy reclama fu.; un impuesto sobre lus cantidades de desperdicios de hierro, 1at6n, bronce y alnminio que habi8 exportado desde diciembre de 1947 hasta septiem~ hr~ de 1948. En 2 de diciembre de 1947 In recurrente, acogiendose a las disposicioneR de la ley del Commonwealth No, 327, present6 su reclnmaci6n al Auditor General, alegnndo que el impuesto era anticons· titucional, porque el Gnbincte no tenia autoridad para uduptar dicho impuesto y que solamente d Congreso es el qup esta autnrizado para nprobar ley ..!obre impuestos. F.n su dedsi6n de 8 de r.oviembre de 1950 el Auditor deneg6 el reembolso, y contra ella la recurrente apcl6 en 25 de ene1·0 de 1951. Los artfculos 1 y 2 de la Ley del Commonwealth No, S27, en Qll<' se fundn ~e reclamaci6n, d.icc>n asf: "SECTION 1. In all cases involving the settlement of accounts or claims, other thnn those of accountal:.le officers, the Auditor General ~hall act and decide the same within sixty 1lays, exclusive of Sundayi: snd holidays. after their presentation , If said nccounts or claims need reference to other persons. officP or offices. or to a party interested, the perio-1 afo~e!l<lid !lhnll be counted from thfl timP thP last comment r.eccssary t<i a proper decislc.n is receh·e·d by him. With respect tc. the s.ccounts of accountable officers, the Auditor General shall act on the same within one hundred days after their submission, Sunduys nnd holidars excepted. "In case of accounts or claims already submitted to but 1till pending decision by the Auditor General or befcre the approval of this Act, the periods provided 1n t.hia 1tttion ah?Lll commence from the date .->f such approval, "SEC. 2. The party aggrieved by the final deci.s.ion of the Auditor General in the settlement of an account or claim may, with.in thirty days from receipt of the deciaion, take an appeal in writing: "Ca) To the President <Jf the United Stn~es, pending the final and complete withdrawal of her sovereignty over t.he Philippines, or "(bl Tr> the President of the Philippines, or "Cc) To thP Suptf'me Ctlurt flf thr Philippines if the appelbnt is a private perBl'n or entity. "If there are more thl\n one appellant, a'I appeals s?i:ill be taken to the same authority resorted to by the first 11ppellant. "From a decisicn 1utversely Affecting the interests of the GovernmPnt, the appeal may ™;? taken by the proper head of the department or in case of local governments by the head of the office or branch of t~e Govl'rnment immediately concerned. "The appeal shall specifically <ret fot th the particular action of the Auditor General to which e:-<ception is lakE:n with reasons snd authorities relied on for reversing such decision." Toda reclamaci6n, al parP.Cer, esta incluida en la palabra "claims" porque su significado PS amplio; pero no est.a inclufda la reclamaci6n que pide el reembolso de una contribuci6n indebidan1ente cobrsda, porque el C6digo Administrativo de 1916, el C6digo Administrntivo Revisado de 1917, la L.ey No. 8685 y el C6digo Necional de Rentas Internas disponen especificamente ante quP autorirlad deben presentarse reclamaciones de reembolso de impuestos ilegalmente cobrados. Si el Auditor General tiene facultad o jurisdicci6n para resolver asuntos como el presente, entonces una reclamaci6n presentadn antes de la proclamaci6n de la independencia seria apelable al P re· sidente de los Estados Unidos. No creemos que la Legislntura haya intentado, ni en sueiios, que el Presidente de Estado! Unidos y el de Filipinae se entretuviesen en asuntos de tal naturaleza. Si se trn.tase, pnr ejemplo, de recobrar un impuesto ilr.galmente r.obrado por poseer licencia de armas de fuego, 1,apelaria el interesado al Pre· sirtente de Estados Unidos si no estuviese satisfecho de la decisi6n de! Auditor? I.a palabra ''claims" de que habla el artlculo l.o tlo la Ley del Commonwealth No. S27 que se aprob6 en 18 de junio dP 1938 no debe referirse a reclamaciones de reintegro de impuestos indebidamente cobrados, porque la resoluci6n de las mismas ya estaba encomendada expresamPnte al Administrador de Rentas Intcrnas y a los tribunales de justicia por el C6digo Administrativo Revisado de 1917, tal como fu0 enmendado por la Ley No. 3685. El artfculo 1721 del C6digo Adrninistrativo de 1916, el art!culo 1579 del C6digo Administrativo Revisado de 1917 y el artlculo 1579 del Ultimo c6digo, tal como .rue enmendado por la Ley No. 3685, dicen textualmente: "When the validity of any ta:c is qitutioud, C'r its amount disputed, or other quest ion raised as to liability therefor, the person against whom or against whose property the same is sought to be enforced shall pay the tax under instant prote!t, or upon protest within thirty days, (10 dlas en el C6d. Adm. de 1916 y C6d. Adm. de 1917) and shall thereupon request the deci· sion of the Collector of Internal Revenue. If the decision of the Collector of Internal Revenue is adverse, or it no decision hi made by him within six months from the date when his decision wu requested, the taxpa~·er may proceed, at; any time within two years after the payment of the tax to bring a n action &!fainst the Collector of Internal Revenue for the recovery x x x." (Art. 1579, C6d. Adm. Rev., tal como fu6 enmendado por Jn Ley No. S685.) En las palabras "any tax" empleados en 'Jos tres c6digoa: esUn inclufdas todas las reclamaciones sobre cualquier impuesto indeNovember ~o. 195' TIIE LA WYEHS JOURNAL bidamente cobrado: no se refieren a impuestoa de rentas internas solamente. La diaposici6n eapecilica del C6digo Administrativo Revisado, ta! como fuC enmendado, debe prevalecer sobre la disposici6n de caracter general de la Ley de! Commonwealth No. 327: asi lo exige la hermenCutica legal. El asunto citado por la mayoria de la Manila Electric Company contra la Auditor General y Comisi6n de Servicios Pitblicos, 73 Phil., 128, no puOOe servir de precedente; no se percataron el Au· ditor y este Tribunal del articulo 1570 del C6digo Administrativo Revisado, tal como rue enmendado, de que el asunto era de la incumbencia de! Administrador de Rentas Internas y de! Juzgado de Primera Instancia. El articulo 584 del C6digo Administrative Revisado dice asi: "The authority and powers of the Bureau of Audits extend to and comprehend all matters relating to accounting procedure, including the keeping of the accounts of the Government, the preservation of vouchers, the methods of accounting, the examination and inspection of the books, records, and papers relating to such accounts, and to the audit and settlement of the accounts of all persons respecting funds or prnperty received or held by them in an accountable capacity, as well as to the examination and audit of all debts and claims of any sort due from or owing to the Government of the Philippine Islands in any of its branches. x x x" Esta disposici6n no incluye la reclamaci6n de impuestos indebidamente cobrados. Darle a l Auditor facultad para 1·esolver semejante reclamaci6n es conccdel'le funci6n judicial. El C6digo Nacional de Rentas Intcrnas <en sustituci6n del C6digo Administrativo Rcvisado y otras !eyes enmendatorias ) en vigor cuando la recunente prnscnt6 su rcclamaci6n dispone lo siguientP.: "SEC. 306. UECOVERY OF TAX ERRONEOUSLY OR ILLEGALLY COLLECTED. - No suit of proceeding shall be maintained in any court for the recovery of any national inter· nal-revenue tax hereafter alleged to have been erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum allegeO to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Collector of Internal Revenue; but such suit or proceeding may be maintained, whether or not such tax, penalty, or sum has been paid under protest or duress. In any case, no such suit or proceeding shall be begun after the expiration of two years from the elate of payment of the tax or penalty." La cantidad quc rcclama la rccurrnnte esti incluida en las siguientes palabras: "of any sum alleged to have been excessive or in any manner wrongfully collected", que equivalen a any tax empleadas por Jos c6digos anteriores. No es de la incumbcncia del Audito1· General decidir la reclamaci6n sobre la devoluci6n de impuestos ilcgalmente cobrados o declarar quc una ley, orden o resoluci6n que dispone cl cobrc de un impucsto, sea a no anticonstitucional. Son dos questiones que dcben resolver las tribunalcs de justicia, porque son asuntos esenciahnente judiciales y no administrativos. La recunente, por tanto, debi6 de haber planteado la devoluci6n de! impuesto anticonstitucionalmente cobrado ante cl Administrado1· de Rentas Internas primero o la Philippine Sugar Administration, y si dcnegara o no se rcsolviern su rcclamaci6n, 11rcscntar demanda ante cl Juzgado de Primera Instancia dcntro de dos afios despuCs de pagados los impuestos. (A1·t. 306, C6d. Nae. de Rentas Internas.) Podria arguir la rccurrente que el im1mesto hoy discutido no es de rentas interna3 sino de exportaci6n y, por lo tanto, no debiera plantearse untc cl Administrador de Rentas Internas ni en el Juzgudo de Primera lnstancia. Tai contenci6n seria insostcnible, por· que en Visaynn Electric, S.A. contra Saturnina David, etc., G.R. No. L·5157, nbril 27, 1953; Philippine Railwa)• Co. vs. Collector of Internal Revenue, G.R No. L-3850, marzo 25, Hlb2; y Manila Railroad Co. contra Rafferty, 40 Jur. Fil., 237, se tl"ataba de WI indebido aumento de impuesto sobre franquicia, y la cuesti6n se plante6 ante el Administrador de Rentas lnternas y luego ante el Juzgado de Primera Jnstancia. El Audjtor General no tiene jurisdicci6n para resoker la reclamaci6n fundada en la anticonstitucionalidad del impuest<:i cobra.do; tampoco este Tribunal adquiere jurisdicci6n apelada. Por estas razones, concurro con el sobreseimiente de la causa. Creo, con el Magistrado Pablo, que el Auditor General carece de autoridad para determinar la validez de los derechos o "royal· ties" envueltos en la presente causa. (Fdo.) Roberto Conupdi>n BENGZON, J. dissenting: With due deference to the majority opinion, my vote is for the 11etitioner. On several occasions. between December 1947 and September 1948, the domestic cornoration Marc Donnelly and Associates lnc. exported considerable quantities of scrap iron, brass, copper and aluminum, for which it paid under protest to the Sugar Quota Of· fice as "Royalties" the total amount of P54,862.84. Such royalties were admittedly demanded "under the authority granted to it (Sugar Quota Office) by the resolution of the Cabinet of October 24, 1947", which reads as follows: "Upon recommendation of the General Manager of the National Development Company, the Cabinet approved the following schedule of royalty rates on metal exports: Scrap copper Scrap brass Scrap aluminum Scrap lead Scrap cast iron Scrap steel other than burnt copper wire . PS0.00 per metric ton 50.00 per metric ton 20.00 per metric ton 40.00 per metric ton 5.00 per metric ton 2.00 per metric ton 5.00 per metric ton Contending that the Cabinet's resolution was invalid, and that the payments were involuntary, Marc Donnelly and Ai=sociates Inc. submitted to the Auditor General, in Septembe1· 1950, a formal claim for refund. which was denied with the explanation: "The collection of the royalties in question is based on the resolution of the Cabinet, dated October 24, 1947, which is as· sailed by you as unconstitutional. Inasmuch as this Office has no power to pass upon the constitutionality or validity of said resolution and the fact that the resolution is presumed to be constitutional unless declared by a competent court to be otherwise, the request (or refund of royalties collected by virtue of said resolution is hereby denied." Reversal of the Auditor's decision is now rec1uested under the provisions of Com. Act No. 327 and Rule 45 of the Rules of Court. In Manila Electric v. Auditor General, 73 Phil. 128. we entertained a similar petition. It i!' urged that the execution is illegal, the Cabinet having no lawful (lower to require the collection of ·•royalty" fee on metal e.xports. As the Auditor General Disapproved the 1·efund solely upon the ground that the Cabinet's resolution "should be presumed t<:i be constitutional unless declared by a competent court to be otherwise", the question is the Cabinet's authority to direct the collection of the aforesaid royalties. No statute has been quoted authoriting · the Cabinet to levy the assessment. Observe that "tho taxing power of the State is 5U6 THE LA WYERS JOURNAL exclusively a legislative function, and taxes can be imposed only in pursuance of legislative authority" (61 C.J. p. 81). However,' seeking to justify the collection, the respondents have formulated these propositions: 1. Commonwealth Act No. 728, July 1946, made it unlawful to export agricultural or industrial products, materials or supplies, without a permit from the President. It authorized the President to regulate, control or prohibit exportation of materials and to issue rules and regulations in connection therewith. 2. In the exercise of such authority, the President promulgated Executive Order No. S prohibiting the exportation of scrap metal unless an export license was first obtained from the Philip. pine Sugar Administration. Subsequently the Cabinet at its 132nd meeting of Otcober 24, 1947 approved the resolution in question. 3. And the President authorized the collection by the indorsement of the Chief of the Executive Office dated April 24, 1947 which reads as follows: "Respectfully referred to the PhJippinc Sugar A 'm'nistration, Manila, hereby authorizing the exportation of scrap brass and scrap metals representing only the balance of the expert pP-rmits issued before November 1, 1946, upon payment by the applicants concerned of a fee of Pl0.00 per ton of scrap brass and scrap metals to be exported." 4. The President was validly authorized by Congress (deleCation of legislative power) (Art. VI Sec. 22 (2) Constitution) to regulate, control and prohibit the exportation of metals. 5. "When the Cabinet, the highest advisory-body to the President approved the resolution in question and the President himself authorized the Sugar Quota Office to levy and collect royalties as fixed in said resolution, this was done by authority of Com. Act No. 728." 6. The authority to regulate included the authority to exaCt royalties or export dues. To repeat, the respondents' defense is founded on the above propositions which for convenience, have been numbered in six separate paragraphs to facilitate examination or analysis. The first two paragraphs are undeniable. The third is incorrect insofar as it asserts that these royalties were demanded pursuant to the indorsement of April 24, 1947. The Auditor-General expressly found they were demanded by virtue of the resolution of the Cabinet - not by the indorsement-- and this involves a question of fact, the indorsement i·eferring specifically to exports "representing only the balance etc." which did not evidently cover herein petitioner's consignments abroad. The fourth proposition is correct. Innsmuch as the indorsement of the Executive office is inap· vlicnble, the fifth propo!!ition pose.:; the crucial question whether the Cabinet approved the i·esolution by authority of Com. Act No. 728. The authority to regulate -and to requ.ire payment of fees on - expo1-ts wa.:; ::mtrusted to the President. Tliat power was not flxpressly dele{,ruled by the President to the Cab.net.. <It is doubtful whether he could validly do so.) And the Cabinet is not the President. True', the President presides Cabinet meetings, but his voice is only one, convincif'g though it may be. Furthermore, the Cabinet may meet without the presence of the President. The conclusions of the Cabinet and its resolutions are not necessarily the President's. We may not, thereforf', hold that, in the ('yes of the law, the Cabinet's resolution of October 24, 1947 was the act of the President. It was the act of the Cabinet, that had 1 10 d a tutor11 authority to require payment of royalties or export fees. Our ruling in the Vi lena easel followed by the m jori·y, applies only to ezecutivc powers of the President - not to legislative powers delegated to him. Ddegata potesta.s delegari non 43) Vlllon11 '" S.Croury of the Interior 67 P hil. poUat. As a ruppletory proposition, the respondenU claim the entire transaction "might be regarded as a eontrnct between the gon~-m· ment, the latter conceded to the exporters the privilege of exporting certain goods tbe export of which could otherwise ha\•e been prohibited. The government, therefore, collected the royalty, M t by virtue of its taxing power, but in the exercise of a contractual right." But the comparison is unacceptable, because the exporter wu not o-n equal footing with the government; it was virtually under duress. The officers said, " pay, otherwise your metals will not be exported." And the exporter had to disgorge, under protest; othenvise his goods would rust and rot. And then, accepting the r.omparison for the sake of ar~rr.ent, I think " lhe Go''emment"<Xl means the appropriate governmen!al agency, whien in th!" it1stance should be the Legislature or the President (at most) . Surely not the Cabinet. Supposing however that the resolution of the Cabinet might be regarded as a Presidential directive, the question remains whether the President himself had power to exact the "royalty". In my opinion he had not. Under Com. Act 728 he could, at most, require a license fee; but a "royalty" is not a fee. It connotes some kind of owuership•, far diffc!ent from that power of ~ gulation justifying the exaction of license fees. Yet even supposing the royalty had been labeled "export fees", it would undoubtedly bf' nlso unauthorized, because, virtually, it was a ta:i:, for it ended tCI produce revenue - a.d valorem charges. It was not collected merely as compensation for services rendered, in the interest of necessary regulations. This difference between fees and taxes is well-known in this jurisdic~ion~. the cne imp'ying tho exc:rciw of police power, and the other the taxing power. And a uthority to collect fees, does not ordinarily embrace the power to impose Utxes•. In this regard it is noteworthy that, doubting the validity of these exactions, the House approved in 1950 a bill (H. Bill No. 511) validating the Cabinet action re royalties on metal exports. Sur.h bill, nowever, failed to pass the Senate, because there werP objections to its retroactive operutions. It is said that, because the President had the power to regulate and prohibit exportation of metals, he could permit exporta· tion thereof upon payment of taxes. This is a tantamount to saying, as the Secretary of Education has the power to regulate the establishment and operation of schools, he may, instead of regulat. ing, just require the schools to pay taxes - without supervision, inspection, etc. And because the City of Baguio has authority to control or prohibit the establishment of gambling houses, and houses of ill fame (Sec. 2553 (u) Rev. Adm. Code), it may permit their operation upon payment of taxes. Extreme examples indeed : but they illustrate the idea that the police power to prohibit, or regulate, does not include the power to permit upon payment of taxes. The power of regulation and prohibition in the case of schools or gambling houses is founded upon the same principles n.s the power to prohibit exportation' of metals : pro bono publico. Police power. Such regulation of prohibition cannot be ba rtered awa y in exchange for thousands of pesos. It is also said that the matter was not within the jurisdiction lxl T he quoltlon l1 nnt whether the Go .. ernmt nt m. '\) ' tax metal UPON (4) Appan!ntl7 1uch "'"' the l,;'lblnet'a view. It • PJU'O•·o'd th .. ri::en1utlon lndund by 1 ml,'mor1ndum ~·f th., Gtn.ral M:1n11lf<!r, National De~Lopmeot Co. U'l'ina::"Ho• e•·N, it i1 11n lndisput1ble f1Ct thllt t .... .., .. P Iron. wrr..p mot11l1, 1cr1r bran , etc. thll! we re J7in1r In 1 117 public pl1eu ind w1t..r1 e~vee •llY runken 1hip1 a nd barlrl'I. belonw to our lf<;urn""'nt ind - would . therefore, t l!COntnvnd th11t the 1>1-nlQ w ho W't!rl I•~ llMOICI be ~ulred to P• Y our lfO.-ernment 1 roy11t7 of 1 minimum of H>.00 o~ PIO.OCt fl("t ton or scrnp Iron, 11er11p metal1, ac .. p bra.,., octe. thlt may be e . ..;POrted." But th11 "ownersh ip" "- 11 not preucd bel'W. OlwloUJly, eoll<"Ction In thl1 c ........ a mistake n a ppll ... tlon of the Cabinet'• re110lut.on, 11 the meta l• ex1>0..i..d "'"'"' not at.own to be "b'lna ln public p\8"'1 •nd water• upeclally 1unken 1hlp1 a nd b11r1rn." 10 M11nll1 El« trie C. " Audl•or Gf'neral. U Pt11I. 1'!8: Cn UnJkns "· f'al· llone. 4! l'hll. 01&: P hil. T •1n1l1 .... T rf'UUl"lr' l-1!7• MQ t1. 1110. It) ef. Cooley on TuaLon llll?O Vol. 4 I'll· ,S.Ul0 S5U: K.lowa Coun~ • · Dunn. 21 Colo. Hl5, 41) p,..., 351: Ju~n ,., N .. wman. H MW. ~•: Wn tern U. Tel. Co. v, Ci~ Counell 66 F.cl . .. t. November SO, 195' THE LAWYERS JOURNAL U T of the Auditor General's Office. It was a "claim x x x: due from " x x the government of the Philippine Islands" within the m~an ing of Art. 584 of the Revised Administrative Code. It was also a claim within the scope of C.A. 327. The fact that appeal to the President of the U.S." is no longer feasible, does not have, in my opinion, the effect of annulling t he whole law (C.A. No. 327). Granted that the Auditor General had no authority to annul the Cabinet's resolution, still it does not follow that the Auditor had no power to take cognizant:!? of the monetary claim against the Government. Before him were two questions: Was the tax collected in accordance with the Cabinet's resolution? Was this resolution valid or constitutional? He answered the first in the affirmative. As to the second he said he must hold it valid because he had no power to annul it. He thought prudently; but he acted on the claim. And we now have appellate jurisdiction. Had he decided both questions in the negative, appeal could still be made to this Court. Let us remember that this being a government of laws; its officers may only exercise those powers expressly or implied by them without authority are void, confer no rights, afford no protection. Royalties in taxes demanded without lawful authority and paid under protest, should be returned? no matter tl}e consequent loss of revenue. The citizens will thus be imbued with the fullest respect, the utmost loyalty to constituted authority and republican government. A. ReyeB, J., concur in this dissent. (11 Zaragou v. Al!oril!O, XIII Ignacio Arnido, Plaintifl-A.ppellee, vs. Alfonso Fra:nci~co, De/•mdant-.4.ppdlant, G. R. No. L-676-1, Ju'M 30, 1954, Labrador, J, 1. PUBLIC LAND; MERE OCCUPATION AND PLANTING DOES NOT CONVERT IT INTO PRIVATE LAND; ACQUISITION IN ACCORDANCE WITH PUBLIC LAND LAW. - The mere occupatiC1n of public tum.I hy th(; applicant and the planth•g thereon of improvements do not oon\'ert it into a private land. and it may, therefore, be acquired only in accordance with thP public land law. 2. ID.; JUDGMENT BASED ON ADMISSION, NOT BINDING ON DEFENDANT WHO IS NOT PARTY TO THE ACTION. - A judgment based on an admission contained in a com· promise agreentent between the parties can not bind the defendant who was not a party to the action, especially where there is no showing that he ·has acquired his right fraudulently. Jose M. Angustia for pl1:1intiff and appellee. Jose L. Almario for defendt>nt and nppellanl.. DECISION LABRADOR, J.: Thi& is nu actioJ.l to recover th" title to and poss('ssion of a certain parcel of land in the barlio of Kabangkalnn, l'!acer, Mssbnte, designated as Lot 11 in skPtch plan attached to Exhibit A, together with damages. The case wai; presented for deci;;ion upon an agreed 1it11.tement of facts, the most pertinent of which are as follows: The land forms part of the homestead application of one Alb:iro Vergnra, H. A. No. 123545, which was presented in J uly, 1926 I Exhibit Al. · The application was approved on June 2, 1~81, and ~iven Entry No. 83952. On October 17, 1941, Albaro Ver$ara sold the land applied for to defendant. Alfonso Francisco for F370 I Exhibit Cl, and on August 10, 1948, Vergara assigned his homestead rights thereto (Exhibit B), and after proper investigation and report by a lnnd officer (Exhibits E and E-1), the assignment wns recommended for approval. Thereupon, Alfonso Francisco filed his own homastend application for the land (Exhibit D). It also appears from the agreed statement of facta that in an action of forcible entry and detainer filed by Arnido against. Vergara, which was appealed to the Court of First Instance, 1t was found by that oourt that on July 13, 1939, one Joaquin Ferrer aold a land, eleven hectares in area to Arnido, and in the same d~ of sale, Vergara sold the coconuts and bamboes on the land pur· chased; that the land had been the object of contro,·eny between the said Ferrer and Vergara before the Bureau of Lands, and ths t the latter had adjudicated it to Vergara; that Ferrer could not have sold the land, beeause it was not his, and that Vergara had a better right thereto. The court absolved the defendant from the action (Exhibit F). It further appears that in September, 1940, Arnido presented an action to recover the title to the property against Albaro Ver· gara, Civil Case No. 989-R (Exhibit G). The records of the case were destroyed during the last war, and after its reconstitution in November, 1948, Vergara recognized Arnido's title to the property in a compromise (Exhibit H-1), as a result of which judgment was entered in favor of Arnido CExhibit 8). The agreed statement i1 t-0 the effect that th!! lands officer who investigated the trans~er of homest~ad rights in favor of Francisco was not aware of lhii'l case or of the compromise and judgment. The judgment entered upon the compromise is dated November 27, 1948, and was executed by the sheriff, but defendant herein refused to deliver the property to plaintiff tExhibits I & l·U. The trial court held that the land is private land, solely on the alleged gre"lund that it was improved. The alleged improvements consist of some 15- to :J5-year old coconut trees and Lansnas exiating thereon even before Vergara applied for it as homestead in the year 1926, but which are admitted to belong to Vergara. Some of the trees must have been planted on the land before Vergara applied for it in 1926. No evidence, however, has been r,resented thnt the 1and was owned Oy any one prier to Vergara's occupation. But mere occupation of public land and the planting thereon of improvements do not oonvert it into private land. The mere fact that Vergara applied for it as homestead shows that he C1ccupied it as public land. His admission in the compromise agreement that it belonged to Arnido, which is contrary to his conduct in applying for the land as homestead, is no evidence that the l:md is private land. The agreed statement also expressly concedes that it is part of H. A. No. 123545 The conclusion of the trial court that it i~ private land is, thne!ore, without nny foundation in law o:- fact. We find t hat the land is not private but public Jund, and us such it is subject tn acquisition in accordance with the public land lnw. The other oonclusions of the t rial court, especially those based c.n its findings that the land in question is private land, are also incorrect. ThP. judgment in Civil Case No. 989-H, based on an admission contuim:d in a compromisr agreement between the parties dated November 27, 1948, can not bind the defendant Franci!!'C O , who was not a party to the action. When Vergara made the compromisP., he was no longer in possession of the land, as he had sold his rights thereto to Francisco in October, 1941, and executed the deed of assignment of his homestead rights in fuvor of Alfonso Francisco also on August 10, 1948 <E:ichibits C and B> ; all his acts prejudicial to Francisco's rights can not be binding or effective against the latter. Francisoos' purchase of Vergara's rights can not be said to be fraudulent. There is no evidence to prove bad faith, and good faith is presumed. It is unnece~sary to consider the other conclusions of the trial court, such as the applicability of Article 1473 of the Spanish Civil Code and the fraudulent acts of Francisco's transferor, as these are not material to .the decision of the case. If Vergara has been guilty of fraud perpetrated on Arnido, let him be made to account therefor to the latter, but in no case may Francisco, a third party, be mnde to suffer from the effects of his double-dealing. The judgment entered in the case is l'lereby reversed, and the action dismissed, and the defendant-appellant Alfonso Fran668 THE LAWYERS JOURNAL November 30, 1954 ci11co 3bsolved from the complaint, with costa against the plaintiffappellee. Paras, C.J., Pablo, Bengzon, Padilla, Montemauor, R ?Jtt•, Jugo, Bautiat1t Angelo and Concepcion, J.J., concur. XIV Damaso Cabuyao, Plaintiff-Appellant, vs. Domingo Caaobay, el at., Defendants-Appelleee, G. R. N11. L-6636, Auguat 2, 1954, Concepcion, J. 1. EXTRAJUDICIAL PARTITION; AFFIDAVIT OF EXTRAJUDICIAL AJUDICATION; REQUISITES.-An affidavit of extrajudicial adjudication suffices to settle the entire estate of the decedent if the following conditions are present, namely: (a) that the decedent left no debts; and (b) that the heirs and legatees are all of age, or the minors are represented by their judicial guat"dian. 2. ID.; ID.; JUDICIAL DECLARATION TO SUCCEED DECF.ASED, NOT NECESSARY TO ASSERT A CAUSE OF ACTION AS AN HEIR.-Where the p~eadings in question alleged, and it was not denied, '1> that plaintiff was the so~e heir of the decedent, (2) that he was of age, and (3) that the decedent left no debts - he has a right to assert a cause of action as an alleged heir without judicial declaration to that effect. Jose L. Desvarro for the plaintiff and appellant. Ed. Espinosa Antona for the defendants and appellees. DECISION CONCEPCION, J" This i.s an appeal from as order of the Court of First lnstanct> of Quezon dismissing civil case No. 5308 of said court. It a:mears that said case wr.s instituted on April g' 1952. In the ol'iginal cnniplaint, plaint.iff-ar,pellant Damaso Cabuyao alle.e;ed that he is the "lone t:ompulsary heir" of the spol:.s:s Prud ncio Cabuyuo and Dominga Caagbay, who died leaving the e·evcn (11) parcels of land therein described, and that, although plaintiff had adjudicated said properties to him1;:21f, pursuant to section 1 of Rule 74 of th!:l Rules of Court, the corresponding transfer certificates of title could no•. be issued in his name because the original owner's duplicate certificates were being witheld by the defendant:;;, Domingo CnatcbaY nnd Eugenio Caagbay, who had also taken possession ot said pnrr.els of land, and would oontinue unlawfully us;ng the same and committing acts of dispossession thereof, unl~ss enjoine<l. by th11 court. Hence, he prayed that a writ of preliminary injunction be ies•1ed !lgsinst the defendants and that, thereafter, jndgment be l"E-ndered; <a> sentencing lhem tn vacate said lands, to turn them over to the plaintiff, and to indemnify him in the sum of !"4,000.00; 0:» "removing clouds and quieting title of the plaintiff" over said properties; and <c> ordering the defendants to surrender to him or to the Register of Deed::: the aforesaid owner's duplicate certificates of title and, should they fail to do so, to order the cane:llntion thereof and the issuance of tl1e corresponding transfer certificates of title in favor of the plaintiff. On April 21, 1952, defendants filed a motion to dismiss for lack of "jurisdiction over the ~rnbject-matter", the original complaint bein~ entitled "Unlawful Entry and Detainer". By an order, dated April 29, 1952, plaintiff was required to file an am:nd· ed complaint, stating therein the date on which the defendants had seized the properties in dispute and their grounds therefor. On April 30, 1952, plaintiff moved for the admission of an amended complaint, which excluded Eugenio Caagb!ly as party defc.ndant, nnd included, as such, Vicente, Irineo, Antonio, Emilio, AurC'a nnd Pelilla, all surnamed Caagbay. Stat.ing that plaintiff'!! counsel was "C'omerting this o;lmple case into a complir..J.tc.d one" the court, by an order d11ted JuM, 4, 1952, gl"anted plaintiff anothP; five <SJ days within which "to filo an amended compl::iint, in acccrdance with section 3, Rule 17 o>( the Rules of Court," ~tting fnrth thP. data required in the orlt'r nf April 29, 1952. Ira compliance therewith, pLlintiff filed, on J une 12, 1952, an amended ocmplaint, which the defendants sought to be d;amiased upon th• ground that "plaintiff has no legal capacity to 1ue,'' there being no nllegation that "plaintiff had been judicially dcc·ar.::d fone c- mp:Jlsory heir" of the deceased spouJtes Prudencio ~bu)·ao and Dominga Caagbay. On motion of the defendants, dated July 5, 1952, the court issued, on July 22. 1952. a11 order disn1issing thP cue, with costs against the plaintiff, for the reason that, "under the facts and circumstances of this case, as disclosed by the pleadings, nn action can be maintained until a judicial dec~ration of heirship hns been legally secured," Soon later, or on August 1, 1952, plaintiff moved for the ~ cc.nsideration of said order of July 22, 1952, and for th1;: admiasion of another amended complaint thereto attached. In this pleading, plaintiff alleged that he owns th1o parcels of land above-mentioned, having acquired thP same by inhPritant>e Imm hir parents, Prudencio Cabuyao and Dominga Caagbay, who died on April 8, 1919 and August 14, 1944, respectively; that rlf'spite the ahov<" m"!nti,.ned extrajullirial adjudication of said properties made by plain'iff in 11ia fav('lr, as the "only issue andlnr successor" of his aforementione<l paN!nts, pursuant to section l of Rule 74 of the Rules of Court, the corresponding transfer certificates of title could not be is.irued In his name, the owner's duplicate of the original certif1'!ate!I of titlP havinR" been taken by the defendants, who are nephews and nieces of the deceased Dominga Caagbay, except defendant Domingo Caagbay. who is her brother; that. upor. the death of Dominga Caagbay on Au2'Ust 14. 1944, the tlefendants took P'JSSession of the lands in dispute and have continnously enjoyed the fruits and rf>nta thereof, ag)ST~gating N,000; and that the df>fernlants will continue unlawfully exerci~in~ and/nr claiminJ!' owneriihip over emid pr'lrrrtie~ and violating plaintff's dominical rights, unless a writ of injt:nction lw issued against them. The prayer in the last amended complaint reads· "WHEREFORE. it fa hf'1"i:!hy rnpf't'tfully asked that a preliminary injunction be issued against the defendants, their representatives, tenants, or any other person receiving instructions from them or acting in their behalf prohibiting them from re-entering the b.nds above-described or collecting the fru:ta thereof, fnr which purpose plaintiff is willing and rrady to file cor1"esponding bond, and, after due hearing, judgment be renJered: <a> removing clouds and quieting the title of the plaintiff ove?" the pro;ierties in question :md ordering the defendant!! to vac3te and restitutc sold pr::ipc1"ties to the herein plaintiff; Cb> ordering said defendants, jointly and so:!verally to pay thf' hP.rein plaintiff the aniount of Four Thousand Pe."()!I (P4,000.00> as damages; (c) ordering the defendarts to surrender to the Register of Deeds of the ProvinC"e, or to herein plaintiff the titles of the lands above-Jcscribed and, in case of failure to do so to order the cancellat1on of said titles and to issue corresponding duplicates in the name of the herein plaintiff, upon payment of tJm corresponding fees; and to pay costs of this suit., PLAINTIFF, prays for any other relief or remedy just and equitable in the premises." Attached to said pleading was plaintiff's affidavit of extra· judicial adjudication <Exhibit A>, as well as the documents appended thereto, namely: the death certif1catP of Prudencio Cabuyao <Annex A>; the certificate of burial of Dominga Caagbny <Annex m; and the baptismal certificate of plaintiff Damaso Cab11yan (Annex C>. In said Exhibit A, plaintiff declared that he wu born in Tayabas on December 13, 1925, "the only child or heir of thr espouses Prudencio Cabuyao s.nd Dominga Caagbay," both in qu~dtion, and left no debts whatsoever, and prAyed that the rorresponding tTan.ifer certificates of title be issued in his name. It appears from Ar.nex A, that Prudencio Cabuyao, married to ~ minga Ca.gbay, died on April 8, 1919 and w~s hurried in Tayahas, Ql!ezon, the next day, Annex B showa that Dominga Caagbay, widow of Prudencio Cabuyao, was buried in Tayat.s, Quezon, on November 80, 1964 THE LAWYERS JOURNAL 6G9 August 5, Hl44 . Annex C, states that Dama so Cabuyao, the legitimate 3on of Prudencio Cabuyao and Dominga Caagbay, who W '?re lawfully married, was born on December 10, 1896, was christened by the parish priest of San Miguel Arcangel, Tayabas, province of Quezon, on December 13, 1896. Defenda nts objected to sa id motion for reconsideration and to tht: 3rlmission of the amended complaint and, on August 6, 1952, thP court iesued the following : ORDER " AFTER considering phintiffs motion for the reconsicleration of the order of July 22, 1952, and the admission of thP amended complaint thereto attached and defendant's oppositio~ thereto, this Court has :irr1ved e t the conclusion that said motion 11hould be, as it is her11hy, DENIED for lack of merit. As stated in the order of the reconsideration of which hi pray11d, it Is impossible for plaintiff to maintain the action in this case because he and t.he pal'ty defendants alleged to be the heir !Jf the same decedents and there has been no sl10Wine that they have been judicia1ly declared as heir of the deceased. Once the question of who are the heirs is determined, it may not be necessary for the plaintiff to file the oomplaint in thi!: case." <Amended Record o~ Appeal, pp. 49·50} Plaintiff ha!! appealed to this Court, and now he con«:nds: "I. That the court below erred in sustaining the moticn to dismiss dated July Hi, 1952. II. That the court below erred in holding that 'in this case no action can be maintained until a judicial declaration of heirship has been legally secured'. Ill. Thii.t th<' court below erred in denying thE< motion for reconsidt:!ration dated July 21, 1952, and in not giving due course to the .<;econd amended complaint. '' <Brief for Appellant, J>, 3> In the pleadir.gs in question, it is alleged and, in the orders and briefs before us, it is not denied, that the lands in dispute be1onged originally to the espouses Prudencill Cabuyao and Dominga Caagbay, who were legally ma tried; that plaintiff Damaso Cabuyao is their "lone" legitimate child; and that the defendants are nephsws and nieces cf Dominga Caagbay, except of defendant Domingo Caagbay, who is her htother. The rnly question for determination before us is whether, under the foregoing facts, which, for purpose of this appeal, must be assumed to be true, plaintiff has a cau~e of action to recover the properties in dispute and to quiet his alleged title thereto. The defendants maintain, and the lower court h1:ld, that plaintiff's alleged right to succeed the deceased must be Sf'ttled by a judicial declaration to such effect before said cause of action could be asserted in his favor. This view is, however, in conflict with t.Jie law aml with a rule well established in our jurisprudence. St>ction 1, of Ruic 74 of the Rules of Court reads: "If the decedent left no debts and the hefrs aud legatees are all of age, or the minors art> represented by their judicial guardians, the parties may, without securing letters of administration, divide the estate a.mong themselves as they see fit by means ot a public instrument filed in the office of the register of deeds, nnd should they disugrec, they may do so is an ordinnry actio1, of partition . If there is only one hefr or one legatee, ha may <uljudicate to himself the entfre estate b·y means of an ntfidavit filed in the o/jice nf the register of deeds. It shn!I be presumed that tl1c decedent left no debts if no creditor files a petition for letters of adm;:;istration within two years after the Jcnt.11 of the decedent." <Underscoring supplied.) Pursuant thereto, plaintifi's affidavit of e:xtrajudicial adjudi· ca.tion in hi~ favor sufficed le settle the estate in question, if the following conditions nre present, nhlnel)•: (a) that the dcceJents left no ilrbts a nd (bl thnt the heirs nncl !ego.tees arc all of age, or the minors nre represented by their judicial guardians. The presrnce of the first requirement is 11resumed, no creditor having filed n petition for letters of adminlstrati(;n within two C2> yea rs after the denth of the decedents . Tho allegations of the original and the amended complaints - which, for tht> purpose of this appeal, shou1cl be r egardt!d as true - show that plaintiff is the sole h!!:ir or thl!: decedent, that he is of age, and that the Sttond requirement i5likewisc, present . Hence, plaintiff can not be denied tht. full fore@ and effect of the provision above quoted. Moreover, the Spanish Civil Code, which was in force whl!:n the events material to the issue before us took place, provided: "Art. '):\';'. The r ights to the succession of a person !\ff' tran::;mittcd from the morne•1t of his death . Art. 661 . Heirs succee1\ to all the rights and ubliga.tions of the decedent &y the mere fae.t of his death." Thus, as early as 1904, this Court entertained, in the c:i:::e ot Mijares v. Nery <3 Phil. 1%), the action of an acknowledge-d n::itural child to recover property belonging to his deceased fat'1Pr - who had not been survived by any legitimate decedent - nc.twithstanding the absence of a previous declar ation of heirship in favor of the plaintiff, although the latter's claim did not prosper for it was predicated u pon the theory that th~ defendant - as illegitimate children of the dece:ised pursuant to the laws of TnM, which were in force at the time of their birth - had no r ight t,;, succeed their common father, and such pretense was not sustained, the latter having died a fter the promulgation o! the Civil Codo of Spain, under the provisions of which said defendants were, likewise, acknowledged natul'BI ·children, and, as s11ch, had the same rights ns the plaintiff, The right t ll assert n cau!>e (if action as an alleged heir, e.1th'ough he has not heen judicially declared to he so, has been ar· knowledged in a number of subsN1uent cases. "The property .of th~ c!eccased, both real and person:\!, beca me the property (JI thl! J.eir by the mere fact of dta/11 of his predecessor in interest, aud he could deal with it in precisely the same way in which the deceased cnuld have de.'\lt with it, subjt'ct only to the limitations w•ich by law or b) contract were imposed upon the deceased himself. x x x" <Suiliong & Co. vs. Mar ine Insurance Co., Ltd . et al. , 12 Phil. 13, 19., "Claro Quison died in 1902. It was proven at the trial that the present plaint iffs are t-he next of kin and heirs, but it is said by the appellant that they are not entitled to maintain this · action because there is no evidence that any proceedings ha\'C been taken in court for the settlement of the estate of Claro Quison, and that, without such settlement, the heirs can not maintain this action. There is nothing in this point. As well by the Civil Code as by the Code of P rocedure, the title to property owned by a person who dies intestate passes at once to his heirs. Such transmission is, under the present law, subject to the claim of administration and the property may be take:i from the heirs for the purposes of paying debts and expenses, but this < loes not v revent the immediate passage of the t-itle, upon the dea th of the intestate, from himself to his heirs. Without some showing that a judicial administrator had been appcointed in proceedings to settle the estate of Claro Quison, the right of the plaintiffs to maintain this action is established." <Quison vs. S<:.lud, 12 Phil. 109, 113-114) "It is alleged in the complaint that the plaintiff, Silvestre Lubrico, is :i.n only child, a nd therefol'e thf' sole general h<'ir of the original owners of the property, and no proof was offered a t the t rial to 11lvlw that there was any other descendant entitled to tlucce('d besides the ~Jaintiff, who. on her part, has !lhown herself to be the legitimate da ughter of the l:ite Guillermo Lubrico and Vennncia J a ro. If heirs succeed the decea~ed by their own right :ind operation of Jaw in nll his right.a and obligation by the mC!re fact of his death, it is unquestiona ble that the plaintiff, in f11(t and in law, succeeded her pol'rnts and acq11ired the OWPl.ff'lhip rif the land r efer red to in the said t itle, by tlle 'tnue fact of their dM.th. tArts. 440, 657, 658, 659, and 661, Civil CodP,) E ven in tlte t>vent that tlH're tih<mld be a coMir or a C00"'11fr of the parcel of laud i.s que.stion, once thC right of the µlairt(Continurd on txJ.96 571) THE LAWYERS JOURNAL November 30, 1954 DECISION OF THE COURT OF INDUSTRIAL RELATIONS Hot._l & Reataurant Pru Workera CFFW), Com.plain.ant vs. liim San Cafe & Rettaurant et al., Rerpcm.dentt, Ca11e No. 159-ULP, Lcmlino, J. 1. COURT OF INDUSTRIAL RELATIONS; UNFAIR LABOR PRACTICES; HEMEDIES AND PENALTIES. - In the event had been no such findings but only the imposition of the f.ine, the r~uiren1ent of section 2 of Rule 116 of the Rules of Court that a judgment of conviction shall state " the legal qualifica* lion of the offense constituted by the aeta committed br the defendant" had not been " complied with. of a finding hy the Court in :m unfair labor pncfae Cl\lle 5. initiated under section 5, Republic Act No. 875, that a ny perID.; ID.; I NITIAL STEPS IN UNFAIR LABOR PRACTICE PROCEEDINGS. - Under the pro\'ision of section 5 (b) or Republic Act No. 875, there are three initial ateps wb;ch must be followed in unfair labor practice proceedings, namely : son has engaged or is cngagini.!' in unfair labor practice, only the remedies provided in sa ic1. i;:ectit:m may be granted. In such ca&?, the Court should n.:it and cannot at the samP. time impose the penalties prescribed in section 25. Republic Act No. 875. On the ether hand, in cue the imposition of the penalties prescribed in section 25 iR sought, a ;:riminal compl~int or informaiton must be fili!d and the requirements of due proce11s as to pn;cedure and cvi;Jcnce in ordinary criminal cases must be observed. 2. ID.; ID. ; CHARGE OF UNFAIR LABOR PRACTICE NOT A CRIMINAL COMPLAINT. - The> chargf filed by the complainr.nt union cnnnot in any way be consider'?d as a criminal complaint or information which could .serve as the basis of a criminal proceeding. Moreover, the absence of e.n arraignment and plea which. amon~ others, are fundamental requirements nf due proce11s in criminal ca}es, is sufficient to cause the settine aside of the imposition of a fine in such case. S. ID·: 11>.; PROCEDURE TO BE FOLLOWED IN UNF.AIR LABOR PRACTICE CASES. - In a case initiated ur.der Sec· tinn 5 of Republic Act No. 875, this Court cannot in the s~me pr.:iceeding consider both the unfr.ir labor p~actice aspect nnd the criminal aspect. The procedure to be followed In unfair labor practice cases is prescribed in said section and it is certainly very lax and liberal as compared to the procedure followed in criminal cases. The imcosition v! a fine or imprisonment pursuant to Section 25 in an unfair labor practice case initiated under Section 5 would result in the criminal conviction of a person in violatfon of due process. Furthermore, there is tnarked incompatibility between the two proceed* ings as regards the sufficiency of evidence. In an unfair labor practice case, only substantial evidence is required to ~us tain a finding' that unfair labor practice has been committerl: on t.he other hand, to justify n judgment of conviction in a criminal case, there must be proof beyond re&sonable doubt. ID.; ID.; IMPOSITION OF A FINE; WHEN PROPER. - Imposition of a fine under the first paragraph of section 25, Republic Act No. 875, can only be done in case thi:?re is an express finding that a person has violated section 8 of that Act. On the other hand, to justify the imposition of th~ fine> under the second paragraph of section 25. there must be an express finding that a perso11 has committed a v'olation of Republic Act No. 875, which is declared unlawful. Where there <lJ The filing of a charge by the offended party or his represcntt.tive that a person has engaged or ic engaging in unfair labor practice; (2) The investigation of cuch charge by this Court or irn}I agency or agent designated by it; CSl The issuance and service by this Court or its desi~at ed agency or agent of a complaint upon the person char~ with committing unfair labor practice. The ab:ive steps, among others, are indispensable requirements of ciuc proceu in unfair lsht:>r practice proceeding<J and not mere> technicalitiea of law and procedure. lD. ; TD. ; F UNCTION OF A CHARGE. - The f unction d a charge is merely th:it of putting the machinery of the Board in motion. A charge may, by limited analogy, be c~mpared with an 'information' in criminal procedurs A charge, lik" an info(mation, is neither a pleading nor proof, but is rr.erely a verified notification to an appropriate government agency cf the commission by a designated person of a specific violation of the law over which such agency has jurisdiction. At this point the similarity between a charge and an information ends In th~ case of an information, if the information complies with the requirements of the law, appropriate process may issue forthwith to bring the offender into court. However, in the case of the charge filed with the Board, such is :wt the procedure . . In proceeding! before the Hoard the mere filing of the charge, no matter how grave the allegE:d offense no1 how .nciequntely the offense may be recited, does not in and of itself sanction and precipitate issuance of summoning process. With the filing of the ch.nrge, it devolves upon the Board's Gener.nl Director, but subject to review and final decision by the Board's General Counsel, to conduct the preliminary investigation tci determine the> necessity for the issuance of and, if required by the facta, to issue tl~f' complaint. , . ID.; ID.; INDISPENSABILITY OF A PRET.IMINARY INVESTIGATION. - Under the original Act it was held thnt once a chnrge wa.:o: filed it was incumbent upon the Board to investigate the matter. While in eva luat ing thf' results of tl-a investigation the Board enjoy?d broad discretior. and the right SUPREME COURT DECISION <Continued) tiff, and con~eque11tly her personality, has been proven the dtf cndant has no right to dispz,te them. x x x." <Lubrico vs. Arbado, 12 Phil. 591, 596-597> "There is no legal precept or established rule which imposes the nl?cessity of a previ(lus legal declaration regar ding their status '>n heirs to an inte£tate estate on these who, being of .ngc and with legal capacity, consider themselves the legal heirs of a person, in order th&.t they may ntaintain an action a rising out of a right which belonged to their ancestor." <Hernandez vs. Padua, syllabus, 14 Phil. 194. > See, .nlso, Inocencio v. Gat-Panden, 14 Phil. 491; Sy J oe Lieng ,.s. Sy Quin. 1G Phil. 137 ; Ahe.n v. Alcantara, 16 Pili!. 48!l; h lnndo v. Pitargas, 28 Phil . 383: Castillo v. Castillo, 23 Phil. 3fi4; Noble J ose v. Uson, 27 Phil. 73; Beltran v. Soriano. '32 Pl1''.. 6G; Bona v. Briones, SS P hil. 276; Uy Coquc v. Na o:os L . S!or3., 45 Phil. 430; Fule v. Fule; 46 Phil. 317; Orozco v. Garcia, 50 Phil. 149; Gibbs"· Gov't of the P.I ., 59 Phil. 293; Mendoza Vda . tle Bonne,·ie v . Cecilio Vda . de Pardo, ()9 Phil. 456; Lorenzo v . Posadas, 64 Phil. 363 ; Gov•t \'. Serafica, 82 Off. Caz. 334; l'c Vera vs. Galauran, 67 Phil. 213; and Cuev&.s v. Abesamis, 71 Phil. 147. In view of the foregoing, the order appealed from is hereby reversed, and let the record of 1his case be, 'lS it is hereby remanded U; the court of orii:in for further proccedingi; not inconsi&tent wilh this decision, witJ1 costs e.gaini.t the defcndants-e.ppellees. It is so orde.red. Paras, C.J., Pablo, Padilla, Mo11tem'l.,or, A . Reyes, J 11go, Ba•'tista Angelo, Labrador, a nd J. 8. L. Rt 'lfe&, .J..J., concur. Order appea led f rom, reversed Novembe1 SC., 1954 THE LAWYERS JOURNAL 67l of decision, the duty of making the preliDiinary tixamin:ition it.ell was a mandatory duty. Although the amended Act pres-crihes th:Jt the Board's General Counsel 'shall have final authority, on the Board's behalf, in respect of the investigation of charges and issuance of complaints under Seetion 10 ••• ,' i' is doubtful whether this provision ef(ects any change in rea-ard to the basic duty of conducting a preli1ninary investigation. While this provision of the amended Act manifestly has the effect of shifting the right of deeision in evaluating the results of the investigation, it is not likely that it will be ccn~ trued as making the task of conducting an investigation a matter of option and prerogative in the Board's General Counsel. 8. ID.; ID.; NATURE OF A COMPLAINT. - Where it is prc.perly determined from the preliminary investigation that thP.re is necessity and justification therefor, the Board has the power to issue :i 'complaint' . While the Board has no right to initiatP. complaint proceedings by filing a charge itself, and, therefore, must await the filing of a ehargc by an interested party befor it may act, once a charge is properly filed anti there follows an investigation which discloses the necef!-sity or propriety of issuing a 'complaint,' the Board, through its Regional Director and subject to the final decision of the Board's General Counsel on the question of necessity or propriety, then has the right to issue the 'complaint'. 'However, it should be noted that although the Regional Direcbr for the Board, has the right to issue a 'complaint,' he may not be compelled to do so by order of any court, agency or person other than the Board or its General Cou.nsel since this function· is one in which the Board, and ultimately, its General Counsel, alone may exercise their own discretion. 9. IO.; ID·; DrFFERENCE BETWEEN THE "CHARGE" ANO THE "COMPLAINT". - 'rh<! difference between . the 'charge' and the 'complaint' is basic and fundamental. . While the charge, as we have previously seen, is a prime condition tc the initiation of complaint proceedings and is, so to speak, the trigge!' to the action, the filing of a charge does not make the person or the organization filing the charge the 'actor' in the premlsea:; nor is. the mere filing of the charge the comm~nce ment of the proceedings pr.c.per. Treat ing th~ term 'procerdings' as the equivalent of 'litigation', the proceedings commPnce only with the issuance by the Board of a complaint, from which time forward the Boai-d's judicial functiona: come into play. Its prior acceptance of the chsrge and ·the resultant invuti· gation are purely of an administrative character. Eduardo D. Rivera for the complainant. Cri8anto T. Btaquera for the respondents. RESOLUTION In the first paragraph of the dispositive portion of the order sought to be reconsidered, respondents 'ran Guan and Sy Teh were '·ordered to pay a fine of fivl! hundred <P500.00> pesos, pursuant to Section 25, Republic Act No. 875." We are of the opinion that this should be set aside. In the order of the undersigned dated October S, 1958 in Case No. 4-ULP entitled "La Ma llorca Local 101 La Mallorca Taxi" the following pronouncement was made: "It is our opinion that in the event of a f inding by t his Court in an unfair labor practice case initiateci under section 5, that any person has engaged or is engaging in unfaii· lat-or practice, only the remedies provided in said section may be granted. In such case, this Court should not and cannot at the same time impose the pennlties p1·escribetl in section 25. On the other hand, in case the imposition of the pennlties prescribed in section 25 is sought, n criminal complaint or informa· tlon must be filed and the requirements of due procers as to procl!dure and evidence in ordinary criminal cases must be observed." \\'hen the case wa' elevated to the Court ·in ban~, said Order wa• nffirm'!d in whole by four judges of this Court ar.d the Judge who penned the Orchir sought to be reconaidttred in the instant case concurred in the result· We have examined carefully the record and we find that the instant case wa.i initiated by the filing of a " charg-e for Unfair Litbor Practice" by the complainant union. After an An.sw"r to said charge was filed by "Counsel for the Retpondent-Emilia Go and new management", a hearing on the merits waa held by the trial Court after which the Order in question was iaaued. We need not 11tress the fact that no criminal information baa been filed in the case at bar. The charge filed by the complainant union cannot in any way be considered as a criminRl comphunt or information which could serve as th~ basis of a criminal p~ing. Moreover, the abEen~ af an arraignment and plea which, anu:ng others, are fundamental requirements of due p1oceas in criminal cases, is sufficient to cause the setting aside of the imposition of a fine in this case. In a case initiated under Section 5 of Republic Ad No. 875, this Court cannot in the same proceeding consider both the unfair labor practice aspect and the criminal aspect. The procedu1e to be followed in unfair labor practice cases is prescribed in said section and it is certainly very la.'< and liberal as compared to the procedure followed in criminal cases. The imposition of a fin& or imprisonment pursuant to Section 25 in an unfair labor praclice c11se initiated under Section 5 would result in the criminal conviction of a person in violation of due process. Furthermore, there is marked incompatibility between the two proceedings as regardll the sufficiency of evidence.' Jn an unfair labor practice case, only substantial evidence is required to sustain a finding that unfair labor practice has been committed; on the other hand, to justify a judgment of convict ion in a criminal case, there must be proof beyond 1·eaS<'nable doubt. There are still other considerations which militate against t.he Imposition of fine in this case. It is not clear whether the fine of P500.00 is being impos® pursuant to the first or second paragraph of Section 25 of Republic Act No. 875. If the fine is imposed under the first paragraph then the order in question is fatally defective because this can only be done in case there is an express finding that a person has violated Section 3 of the Act. No such finding, however, was made by the trial Court. On the other hand, to justiiy thP imposition of a fine under th<' second paragraph of Section 25, there must be an express finding that a person has committed a violation of Republic Act No. 875 which is dec:l:ned unlawful· Again, no such finding has been ml\de. Thus, the requirement of Section 2 of Rule 116 of the Rules of Court that a judgment of conviction shall state "the legal qualification c,f the offense constituted by the acts committed by the defendant'' has not been complied with. The second paragraph of the dispositive portior> of the order of the tiial Court reads as follow11: "Respondents Tan Guan, Emilia Go and Sy Teh are 1t.ls'J ordered to offer reinstatement to Pedro Vinluan with back pay from December 10, 1953, until the date of his actual readmission. Said respondents are alw directed to cease and desist from discouraging their employees from bec{'ming members of a labor organization, and from inter!erring in any other manner with their employees in the exercise of their rights to t'elforganization, or to join labor organization, or bargain coll~tive ly, through representatives of their own choosing." Jn this connection we find that tl1c procedul'c prescribed by Scefo (bl of Rep. Act No. 875 was not followed. Said section prov1dea: ·• lb) The Court shall observp the following procedure without resort to mediation and conciliation as provided in section four of Commonwealth Act Numbered One hundred and three, as nmendeO, or to any pre-tr ial procedure, When~ver it is charged by an offended party or his representative that a ny person has engaged or is e:ngnging in any such unfair labor practice, the Court or an1· agency or agent designatetl by the Court must investigate such ch&rge and shell have the i:ower to issue itnd cause to be aerved upon such person a complaint statinlt' the charges in thnt respect and cc.ntaining a notice of hearing before the Court or a member U:ereof, or be.fore a designated Hearing Examiner at the time'and place fixed therein not le&!I than five Dor more than ten daya after serving the 672 THE LAWYERS JOURNAL NovembPr :10, 1954 eid complaint. The perso:.1 complained of shsll have the right to file an 8!1swer or otherwi~ <but it the Court shall so ~ qucol, the appearance shall oe personal> and give testimony a•. the place and time fixed in the complaint ..• •· Under the foregoing provision there are three initial steps which must be followed in unfair labor practicP. proceedings, namely: CU The filing of a charge by the offended party or his n?-Jlresentative that a person has engr.gcd or is engaging in un!air labor practice; <2> The investigation of such charge by this Court or any agency or agent designated by it: (3) The il-lsuance and service by this Court or its designated agency or awnt of a complaint upon the person chttrged with eommitting unfair labor practice. We can say that the above steps, nmong others, are indispensable requirements of due process in unfair labor practice proceedings and not mere technicalities of law aud procedure. The function of a charge under thr American law nftcr which our law was patterned is best explained by J. Hl'!rbert Rothenberg in his "Rothenberg 'on Labor Relations'' as follow!':: "The function of a charge is merely that of putting the machinery of the Bo::ird in motion. A charge may, by limited analogy, be compared with an 'information' in criminal procedure. A charge, like an information, is neither a pleading nor proof, but is merely a verified notific&.tion to an appropriate government agency of the commission hy a designated person of a specific violation of law over which such agency has jurisd:otion. At this point the similarity bctweM a charge and an information ends. In the case of an information, if the information complies with the requirements of the law, appropriate process may issue forthwith to bring the offender into court. However, in the case of the charge filed with the Board, such is not the procedure. In proceedings befo:-e the Board the mere filing of the charge, no matter how grave the alleged offense nor how adequately the offense may be recited, does not in and of itself sanction and precipitate issuance of summoning process. With the filing of a charge, it devolves upon the Board's General Director, but subject to review and final decision by the Board's GeneTal C'ounsei, ti) conduct a preliminary investigation to determine the necessity for the issuance of and. if required by the facts, to issue the complaint." Cpp. 596-597> The indis9cnsability of the second step, that is, the preliminary investigation of the charge, is discussed by the same author in this wise: "Under the original Act it was held that once a charge was filed it was incumbent upon the Board to investigate the matter. While, in evaluating the results of the investigation the Board enjoyed broad discretion and the right of decision, the duty of making the prPliminary examins.lfon itself was a mandatory duty. "Although the aim:rnded Act prescribes that the B::iard's General Counsel 'shall hav~ iinal authority, ''" the Board's behalf, in respe\!t of the investigation of chargeP and issuanct- of complnints under Section 10. .,' it is doubtful whether thi'> provision efrects any change in regard to the basic duty of conducting a preliminary inv~stigation. While this provi~ion ot the! amended Act m~mifest.ly has the effect of shifting tl:e right of decision in cvaluatin;r the results of the investigAtion, it is not likely that it will be construed as making the task of conducting an investigation a matter of option and prerogative in the Board's General Counsel". Cpp. 598-599) As to the nnture of a complaint and its basic difference from a churgt' we again quote from the snme author: "Where it is properly detP.rmined from the preliminary in,·estigation that there is neCf'.!'Eity and just!fication therP.fOrP. the Board has the power to issue a 'complaint·' Whilt> the Bonrd has nc. right to initiate (."Omplaint proceedings by f\Ji!lg a charge itself, and, therefore, must await lhe filing of a charge by an interested party before it may act, once a charge is properly filed and there follc..wa an investigation which di• d oses the necessity or propriety of issuing a ·complaint,' the Board, through its Regional DirPctor and subject lO the f1nal decision of the Board's Gen~; al Counsel on the qu"ation of necessity or propriety, then h11.s the rit:!'ht to is.sue the 'C'omplaint'. Hl)wever, it should be: noted that :illhough the R&gional Director, for the Board, has the r ight t. ~ issue a 'complaint,' he may not be compelled to do so by order of any court, agency er person other than the Board or its General Counst:I since this function is cne in which the BoarJ, and ultimately, its Gi:!neral Counsel, alone may exercise their own discre!;on. "From the foregoing it may be gathered thttt the difference between the 'charge' and the 'oomplaint' is b. "\sic and funrlnment:ll. While the charge, :i.s we have previously seen, is a prime condition to the initiation of complaint riroceedings snd is, so to speak, the trigger to the action, the filing of a charge does not make the person or the organization filing the charge the 'actor' in the premises; nor ii;i the mere filing of the charge the commencement of the proceedings proper. Treat.mg the term 'proceedings' as the equi·:alent of 'litign~on,' the pro.:el'dings commence only with the issuance by th9 Board of a com· plaint, from which time forward the Board's judicial functions come into play. Its prior acceptance of th~ charge an<l tl:e resultent investittation are purely of an administrative character." Cpp. 599-600) Jn the instant case, whih: it i!I true that a charge of unfair lubor practice W3s filed by the union, still the record discloses that thHe has been r.o preliminary investigation of such ch(l.rge ncr i6 there a \'alid complaint issued and served by thu,' Court upon ':.he respondents herein. Instead, the trinl Court immediately oondocted a hearing ~lely on the basis of the charf!'e filed, and it is our opinion that in SI) doing it committed a grievous and fatal error. We must confess that we are at a loss to understand t.he t!'iRI Court's stand as regards respcndrnt Emilia Go. Both witnesses for the oomplainant testified that at the time of Pedro Vinluan's dismissal only Tan Guan and Sy Teh were the co-owners oi the Kim San Cafe nnd Restaurant. Ther£: is· no evidence whatsoevP.r that at that time Emilia Go was in one way or nr."ther connected with said restaurant. Since this is so then obviomdy she could not have committed any act of unfair labor practice against the c.:implair.ant. On the other hand, Emilia Go testified that sl1e bought the share of TAn Guan in the restuurant on Jan. 1. 1954. ThP. tr'.al Court seems to be of the opinion that the sale of Tan Guan's interest to Emilia Go was simulated and fictitious. Jf this is so, !hen Emilia Go never became a co-owner of the establishment und hence incurred rio liability under the Act. On the oth(:r hand, if the cale is considered bc.na-!i<lc, then Emilia Go became a C 0-01\"ner only after the discharge of Pedro Vi:-tfoan took place anc!, therefo!'e. no cease and desist order nor any affirmative order may be 1ssue,1 by this Court against her. We thereforr conclude that ns far as Emilio. Go is concerned, the trial Couet's Order has no juslificntion. IN VJEW OF THE FOREGOING, let the crder of the t~ial Court, Jated March 19, 1954, be, as it is hereby, sct aside· SO ORDERED. BAUTISTA, J.: dissenting - <SGD.l ARSENIO C. ROLDAN Presiding J udge <SGD.l JUAN L. LANTING Associate J udge CSGD.) V . JIMENEZ YANSON Associate J ucigi! I beg to differ with the vpinion of this Court expressed in lt.s Resolution of June 25, 1954, setting aside the Order of the t risl Court of Mal'ch 19, 1954. The 'it!rnd of the Court en bane b its majo1ity opinion can be steted briefl)'·, and I quote: "While il ls true that a charge of unfair labor practice was filed by the uni:ln. still the rcc<·rd discloac.s. that there h•s (had) been no preliminary investigation ·or such ch.uge nor i:a (was> tht.r~ a valid complaint issued and served by this Court No\•ember SO, 1954. THE LA WYERS JOURNAL .,. upon the re1pondents herein . Instead the trial Court imme-diately conducted a hearing lltllely on the basis of the charge filed, and it is our opinion that in IO doing, it committed a grieviou1 and fatal error." It i11 obvious that said opinion wae baaed on American ru!ings and interpretations. While it is to be admitted that our law on thr. matter, Rep. Act No. 875, was " patterned" after the American Jaw, it does not nec(';ssa rily follow that both laws are exactly ~he same· Even a cursory reading of both laws will bare basic differences of policy and procedure. While the American law exp>:'PBl'ly provides for a " preliminary investigation" and the machinery therefllr, Rep. Act No. 875 is nnt as insistent on the ~ame . On the other hand, Rep. Act No. 875 contains provisions which are not present in the American Jaw. Further difficulty lies in the failure of this Court to promulgate its nwn Rules and Regulation.3 regarding unfair labor practice11 similar to the Rules and Regulations of the National Labor Re.l~ tlona Board of the United States. Nevertheless. in th12 absence of such definite rules, this Court cannot legislate for itself and rPad into our law provisions of the American law which our Congress deliberately left out. I disagree with the opinion that without such "preliminary i11vcstigation", the respondents were deprived of "d'Je process". For "due process" is a matter of subatance and not merely of form. The i·espondcnt in this case were not deprived of th('.!il' right to due pocess. There was a fair and impnrtial hearing after they wt>rf' served copie3 of the charge and summons. They were ·represe!ltecl. throughout t he proceedings by an attorney of their own choice. There was hc;ncst evaluation of the evidence presented and no objection to t he conduct of the hearing wc.s made by respondent!! or their attorney. the Court is presently over-burdened with work and its limited personnel cannot cope with the myriad details of the administration of justice. 1f we apply the system in the National Labor Relations · Board to this judsdictioh <granting that such procedure is provided for- in Rep. Act No. 87'5>, this Court will be placed in the anomalou" and manifold role of "accuser, prosecutor, judge and executioner" nnd the functions and burdens ns well will beeomc mor€' multiplP. and varied. In effect, this Court will not only rer.t'ive and investigate the charges, but also act as an investigatory agent, lodgf the ~·omplaint, act as accuser nnd ii) the conduct of the hearing, act o.s both the prosecutor and trier of the facts and thereafter a!; the "executioner". That is too much to e:xpeet of the Court, an..J it. is our opinion that such a procedure is contrary to the policies of Rep· No. 875. To expect the trial Court to go through the whole proceeding twice is, in the light of the express provisions of Rep. Act No. 875, net Mtly unrcesonnble but violative of the statute. Another differenc1>. between the American law and Rep. Act No. 875 is that, while the letter :orovides for penalties for violA.tion of Section S thereof, the former docs not contain any like proviH icn. In addition therefore to the remedies provided in Section 5 ot Hep. Act No. 875, the Comt can impnse at the same t ime the penalties prescribed in Section 25. 1t is also our opinion th:i.t a person who violates Section 4 C a) Cl> automatically violates Section S. Section 3 st&tc.s: '·Employees shall have lhe right to self-organization and to form, join or assist labor organi:iations of their own choosing for the purpose of collective bargaining through repre11entatives of their own choosing nnd to engage in concerted activities for th<' purpose of collective bargaining nnd other mutual aid or protection. Individuals employed as supervisors shall not be eligible for membership in a labor organization of employees under their supervision but may form separate organization of their own ." Section 4 < a> Cl) makes, any interference with, restraint or coercion of employees in the exercise of their right. guaranteed in Section S un "unftt.ir labor practil'f'" for an emplorer. A vio!ation therefore of Section 4 la) <1> is a]., a violatinn of Section S. Otherwise, there can be no violation of Section 3 and coMequ@ntl}', there cannct be any application of the first paragraph of &cti"-n 25. In the United States, this is aJ50 the case. A violation of any of the four subdivisions of section 8 la) is regarded in addition as a violation of subdivision Cl 1 which in turn ia considered a violatitn of Section 7. It is quite clear Crom the Order of th@ Court dated Msrt"~ 19 that respondents Tan Guan and Sy Teh were guilty oi violating Section 3 (Jf the Act by incriminating and dismissing fmm employment one P<'dro Vinluan, an employee in the Kint San Cafe &. Restaurant by reason of his union activities. Respondent Emilia Go was included in the "cense and desist" order because the Court found t hat she was at least an "agent" of Ta n Guan and Sy Teh, contemplated in Rep. Act No. 875. The unders.igned could not understand why the Resolution setHng aside the Order of the trial Court did not mention a word about the dismissal of Pedro Vinlu11.n. Based on the evidence introduced at the hearing of this cas2 and on the underailf!led'a pet'sonal observation, there can be no doubt as to the fact that Pedro Vinluan was dismissed only beco.use of his union activities. Th~ trial CoUrt therefore ordered the respondents to offer reinstatement with backpay to Pedro Vinlu.an f rom the time of his dismi11sal up to the d~te c,f his actual reinstatement. Was the procedure of the trial Court so "fatal" as to render both the complainant Union and Pedro Vinluan helpless? I ask the other members of this Court: Will the Jaw that C(lmplainanb now invoke for the protection of the ri~hts guara:ite<"d thereunder be the vl'!ry instrument of their destruction? And now, I wish to make of record the following: On or about April 21, 19b4. this Court adopted a Resoluticn denying the motbn for reconsideration of the Order of March M, 1954, filed by the Repsondents. Said Resolution was issued bv th~ undersigned, with the concurrence .:if J udges Cast.!llo and Yanson. A photostatic copy of said Resolution is hereto attached and marked as "Annex A" . Arter the lapse of two nionths, that is, on June 25, 1954, Jndga Lanting rE-ndered his dissentinl!t vote, which was concurred with by Presiding Judge Roldan. A phoh,static copy :>i es.id clissentini:r vote is hereto attached a nd marked as "Annex B" . On July 14, 1954, a second Resolution was prepared, bcat"in~ the date of June 25, 1954, setting r.side a nd reversing said Order ,,f March 19, 1054, which order was affirmed by the first ReR<>lution of April 21, 1954. This second Resolution was issued by Judge Lanting :i.nC. concurred with by J udges Roldan and Yanson . A photostatic copy of this second Resolution is hereto atl'l.ched g,nd marked as "Annex C". J udge Yanson changed his vote und signed the second Resolution after having written in f ront of hi& signa~ure in the first Resolution, the following: "Concur ro con Judge l<.:111· ting" , Obviously, this annota tion <"ould not have been made before J udge LsntinJf3 vote was rendert:d on J une 25, 1954. There W.'.!S yet no dissenting opinion to cOnccr with . There being the requisite number of judges necessary to r~ der a deciilion, nn April 21, Hl54, the Court pr:inl'unced ils jurtK-" ment, and since t hen, said fil'st Resolution became th@ lawful df'cision of the Court. Of course, Judge Lanting may render his .,pinion and Judge Yanson change his v.:ite, at any t ime, evcm perhaps two mont11s 1'.fter tho? adoption of the first Uo!So..lution . Their CoJnduct does r..ot concern us. It makes no difference whether their ectuation is proper or not. The thing that matters is that such anom:tly exiAts and t hat in order to place the Court above ausr1icion, aometl-ing should be done tn stop such practice. Ml\nila, J ulr 22, 1954. <Contin1ud on page 575> 674 THE LA WYERS JOURNAL November SO, 1954 DIGEST OF DECISIONS OF Tiffi COURT OF APPEALS PROPERTY: POSSESSION; PRESUMPTION IN FAVOR OP ACTUAL POSSESSOR. - When a party Is admittedly in lhe actual posse11ion of the disputed laml, all presumptions are, and all doubts must be resolved, in his favor, it being a rule of Jaw that the present possessor is to be preferred should a question arise regarding the fact of possession C Art. 530, new Civil Code; Art. 445, old}. Victorina Culasito and Ff"4nciaco Siecl, plai?Ltiff• and appellantll, vs. Teodoro ClidO'f'O, defenda11t and appeUce, C.A. No. 10111-R, November 7, 1953, Reyu, J.BL., J. EVIDENCE; INTRODUCTION OF ADDITIONAL EVIDENCE AFTER PARTY HAS RESTED HIS CASE; COURT'S DISCJmTION. - It is discretionary with the trial court to admit further evidence ofter the party offering it has rested, which discretion will not be reviewed except in dear cases of abuse <Lopez vs, Libor, 46 Off. Gaz., <Supp. to No. 1, 21U; and thi" discretion can be said to have been abused only if the additional evidence rejected by thll court below would have altered or changed the result of th'! case. Ibid, Ibid. CRTMINAL LAW; EVIDENCE; V'jTNESS: TESTIMONY; UNCONSCIOUS PARTNERSHIP. - It has been said that ''Perhap~ the most subtJ.:: and prolific of all the fallacies of testimony arises out of unconRcious parlisnnsl1ip. Upon tht: happening of nn accident the occasional passengf:rs on board of a 11trectcar are very apt to• side with thl' employees in charge of the tar,'' <Wellman, The Art of CrosS-t'xamination, 161, 614 and 165>. 'l'he PMple of the Philiµ7>i11e3, 11la1'ntif! and apprllee, 111. Antonio R eyes, defe11dant and appellant, C. A. No. 10277-R, N<wembe.r 11, 1953, /Jizon, J. An.; DAMAGE TO PROPERTY 'fHROUGH RECKLESS IMPflUlJENCE; INDEMNITY; " l'AYMENT OF DAMAGES BY INSURANCE COMPANY DOF.S NOT RELIEVE ACClfSED OF HIS UBLIGATION TO RF.PAIR DAMAGES CAl.:8ED THROUGH a:IS NEGLIGENCE; CASE AT BAR. -Accused contends that inasmtl.cb as the owner of the Ford car has already been paid his damages by an insurance company, the lower court erred in sentencing him to pay damages. It should be taken into account, in this connection, that the payment made by the insiurance company was made pursuant to its contract with the owner of the Ford car and was ,•Jenrly not made on behalf of accused. It cannot be said, therefore that the payment hed relieved the accused of h?a obligation to repair the damages caused through his negligence. The insurance company, however, must be deemed to have been subrogated to the rights of the offended party as far as the damages awarded are concerned. /11id; Ibid. CRIMINAL LAW; EVIDENCE; Rli!..E OF "RES INTER ALIOS ACTA"; CONFESSION 01;- CONSPIRATOR; ADMISSIBILITY.The rule of re11 infrr ali(Js acla is well established and consistently adhered to in this jurisdiction. "The rights of a p11rty cannot be prcjudircd by the net, dcclarution or omission \Jf another and proceedings a:;rainst om~ cannot &ffect another x x x" <section lll, Huie 12~, Rult!s of Court>. Only the c(;nfession of a conspiratnr, made du1·ing- the f'Xiatcnce of the con!piracy, is admissible &gninst his co-conspirator. Again a. confession is admissible against a co-nccuseJ when it is Rdopted by the latter or, when given within his hearing, he kept silent about it. Peo7J/e of the PJrilip11ines, plaintiff and appellee, vs. Pedro Obtii era, Lupo 1<~01·tu1 and Gregorio Calibara, :Jefendn.nts a"d appelfouts. C.A. No. 10052-R, Nflvember 13, 1903, Martine=, J. CHll\tlNAL LAW AND PROCEDURE; SEPARATE TRIAL; USE OF CO-DEFENDANT AS PROSECUTION WITNESS AGAINST BIS CO-DEFENDANT; SECTION 9, RULE llfi, RULES OF COURT. - It 18 well-settled that the granting of s aepa.rate trial when two or more defendanta are jointly tried with an ofie11M is discretionary with the trial court <section 8, Rule 115, Rules of Court; People va. Go, L-1527, February 27, 1951); and, that when two or more persons are jointly prosecuted for the same crime, but separaU!ly tried, either of the said defendant.a is competent aa a witness against the other, although the caae against the witness himself is still pending (Peoole vs. Parcon, 55 Phil., 970; People vs. Traw, 58 Phil., 258). While eection 9, Rule 115, of the Rules of Court, limits the ~xercise of the discretion of the court in discharging an accused µeraon who ia to be used as :. witness, it does not prohibit the use of one co.. defendant as a witness for the pr~secution, when 5llch co-defend.. ant voluntarily takes the witness stand to testify against a co..defendant <People vs. Trazo, CSupr&); People vs. JladiUa, 48 Phil., 718; and U.S. vs. Remigio, 37 Phil., 599>. PcopU of the Ph.iliPpines, plaintiff and appellu, t•s. Regalado Ma9sino et al., defendants and appellants, C.A. No. 8073-R, November 16, 1953, De Leon,J. I.AND REGISTRATION; EVIDENCE; PRESUMPTION, "JURIS ET DE JURE" OF COMPLIANCE WITH NECESSARY CONDITION FOR GRANT BY THE STATE. - When the possession of lands by the common predecessors-in.interest of the claimants has been, at least, prior to July 2ti, 1894 and this posseasion h&1 been passed on to the claimants and the evidence shows that it has been continuous, uninterrupted, open, adverse and in the concept of ownl'r, there is a presumption furis et de jun that all the necessary conditions for a. grant by tht! State have been complied with. Pursuant to the provisions of section 48 (b) of Commonwealth Act No. 141, said claimants are entitled to the registration of their title to the lands applied for <Panllntuan vs. Insular Government, 8 Phil., 485; Susi vs. Razon, 48, Phil., 424; Government of P.I. vs. Adelantar, 66 Phil., 793; Gov't of P.I. vs. Abad 66 Phil., 75). Director of Landa, petitioner and·aPi>eUea, 118. Rufin'1 Rendon, movant a?Uf appell'11lt, Eugenio Z. Rendon, oppositor and appelfoe, C. A. No. 8463-.R, November 20, 1953, Ocampo, J. ID. ; DECREE OF REGISTRATION MUST BE DEFINITE AND SPECIFIC IN ACCORDANCE WITH SURVlff PLAN AND TEC11NICA1. DESCRIPTION. - In a land registration proceeding tha decree of registration must be definite and s~cific and in accordance with a plan and technical description cf the property claimed as prepared by a competent surveyor who haa surveyed the pro!)erty, f'thewise the court cannot order the iuuance of the corresponding decrees of registration of the respective titles of the petitioners. Ibid, Ibid. DONATION; DONATION MORTIS CAUSA NOT EXECUTED WITH THE FOTIMAL.ITIES OF A WILL, INVALID. -- Accordin2 to our jurisprudence, a donation mortia catu(l which has not been executed with the formalities of a will is o! no force :ind effect. l"idela Arceo, pl11,intif! and appellant, ill. Ger1trdo A.n:.o, f;uillermo Arceo, Fru.ndsco Arceo and Ravnmndo l'lata, d•fendants and appelleu, C.A. No. 9Ci20-R, N&uember 2S, 1953, Feliz, J. LAND llEGISTRATION; REGISTER OF DEEDS; ERRONEOUS ANNOTATION ON CERTIFICATE OF TITLE; CASE AT HAR. - The annotation of the affidavit at th~ back of the new transfer certificate of t itle <Exhibit A> which did ban for the purpose to inscribe any lit.TI or encumbrance on the proDECISION OF THE COUHT OF INDUSTRIAL RELATIONS <Continued) CASTILLO, J., concurring and diHenting, t~ey are supported by substantial evidence, the order 90ught to t.e I concur only insofar a8 the Resolution elimjnntes or nullifies reconsidered, I think, should not be di11turbed. tht· impos•tion upon the respondents of a fine of fi,•e hundred pe.sos 1P500.00>. But as regards the rebistate.mcnt with back pay of Pec.;u:~:ol~~!:~:·m~~fi~~er of March 19, 1954 Issued by the trial dro Vinluan aud the J"equirement that the respondents cease anc!. desist from committing unfair labor practices, it appearing thst Maniln, Philippines, August 7, 1954. Nove.mber 80, 196' THE LA WYERS JOURNAL 676 perty in question but to nullify the effect of the isauanct _of the new title ttnd the transfer of the property aa a conaoquence of the aale, for it aimed at the> dt struction ot both these a.eta by claiming the right of ownership over the very land by virtue of a previous deed of donation made to atfiants by their f&ther, was erroneous])• made by the Rf'gister of Deeds. Such an. notation, as a conveyance of registered land, falls short of its purpose, for according to section 50 of Act 496, it is necessary to use the n q uired form i•sufficient in Jaw for the pur pose intended,'' and the annotation of the a ffidavit cannot 00 considered to be t he ·'operative act to convey and affect 1hf' land.'' \Philippine National Bank vs. Tan Ong Zse, 51 Phil., 317: Director of Land vs . Addison, 49 Phil., 19J . Ibid, Ibid. C:ERTIORARI; WHEN CERTIORARI MAY BE GRANTED NOT. WITHSTANDING AVAILABILITY OF APPEAL. - Certiorari may be granted, notwithstanding the existence of an appeal or the availability of another adequate remedy for the correction nf the alleged error, when the appeal is not an adequate remedy, ~uch as when• the order is of such nature as to call for prompt relief from its injurious effects <Silvestre vs. Torres and Oben, 67 Phil., 885; Alafriz vs. Nable, 72 Phil., 278.) Gregorio Gelera and Francisco Gelera, petitioners, 118. Hon. Antonio G. Luu ro, Judge of the Court of First Instancct of CaVitct, nnd Felieisima Aranzmm in her own behalf and as guardian ad.litem for her minor children Edmirdo, Leticia and H erminia, all sur. namtd I (]el£ra, respondents, c .. :l. No. 11578-ll, Novembctr 26, 1953, N ati11idad, J. JD. : ID.; ACTS NOT CONSTITU1'JNG GRAVE ABUSE OF DIS.. CRETION. - 'I'he hearing of 3.n action in case the defendant fails to appear tor no known reaeon a t the time set thereafter does not constitute such "grave abuse of discretion" as to warrant the issuance of a writ of·certiorari. <Go Chanjo •·s. Sy.Chanjo, 18 Phil., 405; Cababan vs. Weiesenhagen, 38 Phil., 80,.l Ibid, l bitJ. ATTORNEY AT LAW; Hts DUTIES; LAWYER'S ACTS CONSTITUTING NON-EXCUSABLE NEGLIGENCE. - - An attorney must alw!!.ys be ready to comply with the order of notification of the court and to protect the interest of his client." £Guieb vs. Valdez and Cardena!'!, CA-G. G. No. 4829.R, June 15, 1950.J On!:c informed that the case had been set for trial it is the duty .-1f the attorney to ascertain by reliable means the exact date of such bee.ring. If he !nils to do this, and inst~ad relics, as counsel in the instant case did, on information received from non-official sources, he is guilty of non-P.xcusnble ncgli. gence. Appeal, not cer tiorari, is the proper remedy for correcting an error in denying a motion lo .!let asid~ a judgment lRios vs. Ros, 45 Off Gaz ., 1265), or in alkwing an attorney to withdraw his appearance and procecdin:; with the trial in lhe absen~e of his clirnt (Federal Films, Inc. vs. Pecson, 4G Off. Gaz., 1265). Ibid, Ibid. PJ..EADING AND PRACTICE; AMENDF.D COMPLAINT, ADMIS. SIDTLJTY OF; WHEN PROPER. - An amended complaint which does not allege a new ca.use cf action, or l!hangc the nature of the nction, but merely amplifies certain allegations in the original complni11t may b<' admitted before th<> presentation of evidence by either party (49 C .J ., 49[i) . !bid. Ibid. CRIMINAL LAW; SERIOUS PHYSICAL INJURIES; INDEMNITY. - Where aggrieved party has not as yet paid for the me. dicnl services of the physician who treated his injuries, thP accused l"annot be sentenced to pay indemnity for actually ag. grieved party had not spent it. Action is, however, reserved to him tQ recover it from appellants as soon a s he sha ll have paid It to the phyisician in payment of the medical t reat'ment given to him by the Doctor for the i!'ljuries he had sustained. Pt;ople of the Philippines, plaintiff !Ind a.ppslles, 11•. l gmidio Granals tmd Pedro Cerda, dtif endanta a.nd a.ppellant., C. A. No. 888S..R, Notiember 27, 1958, MMliner, J. J.LLEGAL E NTRY AND DETAINER; APPEAL; APPEAL BOND UNNJ< XESSARY WHEN SUl'ERSEDtAS BOND 1'0 STAY EXECUTION IS GIVEN. - The Rules of Court, in section S of Ra.I,. 41, provide that the appeal bond 6hall be in the • mount. of P60, unleH a different amount is fixed by the court or a auperRde:u hond has been filed . In the case of ContTeras vs. Dinglas.n, 45 Off. Gaz. CNo. 1l 257, the Supreme Court held that since the purpose of the appeal bond is to answer tor the cost. that may be adjudged against the appellant in the a ppellate court, it ~omes unnecessary when a supersedeas bond to stay execution of the judl?IJlent is given, which has in part the sarn~ purpose. (;rt;gorio S akeda, peeitione,., vs. Hon. J ose T . Surti< lo . .111dgr of tlu• Coitrl of Pirst fm tanes of Cam.arine.s Su,-, a11.d Zoilo Balmaceda, r espondents, C.A . No. 8949..R, N01Jembtt 28, 1958, Diaz, Pru. J . ID.; ID . ; W HEN SUPERSEDEAS BONO NEED NOT BE GIVEN; RULE APPLICABLE TO APP EAL FROM COURT OF F IRST INSTANCE TO COURT OF APPEALS . - According to leading cases, notably, Mitschiener vs. Barrios, 42 Oft . Gaz., 1901, Sogucco vs . Natividad, 45 Off. Gaz. , Supp. <No. 9 ) 449, Aylon vs. J ugo, 45 Off. Gaz., fNo . l) 188, Hilado vs. Tan, L-1984, August 23, 1950, a supersedeas bond is unnecessary when the defendant hns deposited in court the amount ;,f all back rent. declared by final judgment of the justice of the peace or municipal court to be due the plaintiff Crom him and on ap!)eal honrt has been filed to answer for costs; the reason being that such bond answer<' only for rents or damages up to the time the appelll is perfected from the judgml!nt of the justice of the peace or municipal court a•nd not for rents or dama~es nc::-ruing while the appeal is pending which are gua. rnnb .. ed by futur<> deposits or payments to be made by thP defendant. Following this reasoning a step farther, when, as i11 this ca se, the deposits alrenciy made by the defendant. do not fully cover the· amount fixed in the ,udgment appealed from and the sup.:?rscdcas bond is rnade to answer !'Jr costs &S well in the :..bscnce of a regular app~a\ bond, a supersedeas bond which covers the balance of such back rents and the probable amount of costs should be considered good and sufficient . Finally, there appea.rs to be no reason why the propositions just set forth which, in the case11 already cited, were aPplied to appeals from municipal courts to courts of first instance, should not e.pply with tqual force to a ppeals from courts of first. instance to higher courts where a supersedeas bond is fUed tor the first t ime on a.ppeal from a court of first instance. Ibid, Ibid. APPEAL; PAUPER'S APPF.AL; MANDAMUS MAY ISSUE TO COMPEL GRANTING OF PAUPER'S APPEAL. ·- While:, con. tra r7 to the r espondents' contention, there is authority to the effect that mandamus may issue compelling a lower court to grant a meritorious petition to appeal a,., pauper which it hu improperly denied <Comia vs . G8stillo, 75 Phil., 526>, it doea not appear that the petition in this case is one which ought to have been granted . Ibid, Ibid. CHIMINAL LAW; MOTOR VEHICLE LAW ; ACCIDENT RE· S ULTING IN DEATH OR SERIOUS BODILY INJURY; LAW APPLICABLE. -·The appellant has heen charged :ind found guilty of a violation of the Motor Vehicle Law <Act No. 8992> . Ac.. cording to section 67 (d) thereof, as amended Dy Republic Act No. 587, if as the result of negligence or reckless or unreasonable fast driving any accident occurs resulting in death or serious bodily injury to nny person, th~ motor vehicle driver at to.ult, shall upon conviction, be punished under the provisions of the Penal Code. T he Peopfo of ths Philivpinea, plai.11tiff and appd. lee, 11s. Ro-n1eo Jase, aceused rind appellant, C.A. No. ~010-Jl, N nvember 28, 1953, Ocampo, J. COMMF.RCIAL LAW ; COLLISION OF VESSELS; DAMAGES; PROTEST; ARTICLE 835, CODE OF COMMERCE, NOT AP· PLICABLE TO SMALL BOATS .-A motor l11unch used In the Manila Bay for carrying back and forth the members of th• crew who were off duty cannot be cgnsiderc-d as included in the denomination of vessel as specified in article 885 of the \ode of Commerce. Therefore, whon auch a motor launch ia aunk, 576 THE I.A WYERS J OURNAL NoveMber 80, 1954 proteet ia Mt a condition precedent, for tht recnvery of the damage11 sustained by its owner , Madrigal S hipping Co., plaintiff ctnd flppdlant, l!B, Santiago Gancavco, defe11dant and appellee, No. 8585-R, November 11, 1953, Martinez, I. !'LEADING AND PRACTICE; MOTION FOR DISMISSAL WITH RESERVATION TO SUBMIT EVIDENCE. - When defendant asked for the dismissal of the case in the court b.?low he reserved his right to submit evidence in defense, should the motion therefor be e\•entually denied. The opposing puty failed to obji:ct thereto; thus in furtherance of justice, this case should be remanded to t.he court below. We do not believe thia to b~ in violation of the rulinit in Arroyo V6. Asur, 43 Off. Gaz., 54. Ibid. CRIMINAL LA\'/; MALVERSATION THROUGH FALSIFICA· TION OF PUBLIC DOCUMENT ; BOND, NOT A NECESSARY ELEMENT; CA.SE AT BAR.- A bond is not necessary to make one civilly :ind criminally accountable and Jic:.ble for govt:rnment property in his custody. It is enough that he had accepted the responsibility entailed by his position and performed his duties as such custodian. People vs. Teodoro Estandante, Francisco Viola, Felipe Ca1' 'aso and Santiago Fa;ardo, cfefendarits and appellants, No. 99·18-R, Nol·ember 12, 1954, Peiia, J, SALE A RETRO; REDEMPTION; RUNNING OF PERIOD OF REDEMPTION PRESUPPOSES FULL PAYMENT OF PURCHASE PRICE. - The running of the period of repurchase in a sale a f"etro presuppoaes the payment in full of the price agreed upon for the trans:iction. Since, in the case at bar, the vendce h:id not completely l!atisfied to the vendor the purchase price of the properties bought, it is i1:conceivable that the period for the repurchase of the property could malu~t upon the lapse of the agreed redemptio11 per;od and much Jes<> thnt the pu1·chaser could lease the property bought and collect rents from the vendor for its occupation thereof, when the former has not complied with his (lbligation to the latter of paying in full the consideration of the sale. Luz Labti[Ja Cf'li;,,, as Special Admi~istratrU l)f the Est.ate of Bonifacio Celi:r, ptai'ntiff and appellee, VP. Eufemia Cuarjjsma Vda. de Jumawan, as administratri:r of the Estate of Sergio Ju.mawan, defendant and awellant, No, 9238-R, December 19. 1953, Felix, J, MANDAMUS; CAN NOT BE USED TO CONTROL JUDGE'S DISCRETION. - Mandamus will only lie wher<: the court, officer, board or person concerned unlawfully :'leglected the perform.!tnce of an act which the law specificnliy enjoins a.s a duty resulting from office, trust, or station, or when such court, officer, bo::i.rd or person has unlawfully excluded a person from the use and enjoyment of a right or office to which he is entitled. The wl'it is only available to compel :i.n officer to perform n ministerial duty. Hence, it cannot be used to control the discretion of a judge, or to compel him to decide a ca!':e o~ a motion p!!ncling before him in a particular way. Anselmo Qitilantlla, petitioner, vs· The Honornble S1J.<r11n.do C. Moscoso, Judge of t.he Court of Fint Instance of Leyte and the Provincial Fiscal of Leyte, responde.ntH, No, 11939, Jo11ua.ry 20, 1954, Natividad, J. l'ROHIBITION; REMEDY I NTENDED TO PREVENT OPPRES.SIVE EXERCISE OF LEGAL AUTHORITY; TEST OF ABUSE OF DISCRETION. - The remedy of prohibition is int<-nJed to prevent the oppressive i:xercise of legal authority. Its only basis is luck or excess of jurisdiction or authority on the part of !In inferior tribunal, C'lrporation, board or pf'rson, us gross abuse of discretion and there Is abuse Jf discretion only where the exercise of judgment is so capricious and whimsical as to be equivalent to lack t)f jurisdiction. Ibid. MANDAMUS OR PROHIBITION; ACTION OF JUDGE OR FISCAI,, NOT CONTROLLABLE BY MANDAMUS OR PP.OIHBITION. - A judge has diseretion to decide a case in arcordance with his best judgment; a Fiscal, to prosecute offense committed within his jurisdiction. Theso duties are imposed by law on both offieialt, and the performance thereof invo~e exercise of judgment. Their nction.1 on such matt.era, lheft"fore, cannot be co::itrolled l'ither by niandamua or by prohibition. /M.d, Ibid. CRIMINAL LAW; ROBBERY; INTENTION TO DEPRIVE ONE OF OWNERSHIP, WITH CHARACTER OF PERMANENCY, IMPORTANT; CASE AT BAR. - Since the a«used, though breaking the locks of his father's desk, never had the intention of depriving hit father of the ownership of the revolvu and ammunitions with any ch!lracter of permanency, but only to threnten hit father into giving him money, and since th>? other essentis.l eleml!nt of taking Capprode?'amiento> is not present In the instant case, the accused could not be convicted o! robbery, He is, however, guilty of grave threats for hflvinv threatened his father. People of the Pliilippines, plaintiff a?ld appeU.i.•, 11s. Agustin Ca11taiieda Kho Choe, defendant and oppeUent, Nos· l0231·R, 10234-R, Janua1"JI 23, 1954, Felix J. BOARD OF MARINE JNQUIRTY; ITS FINDINGS, NOT CONCLUSIVE AND BINDING UPON COURT OF FIRST INSTANCE. - An action for damages arising from and C!l.used by the sinking of a vessel falls squarely within the ju?'isdiction of the Court of First Instance. In the cxC'rcise thereof, it is obvious that said couit had the rigr.t to weigh the evidence pr<'sented before it and, on the "trength thereof, to determine the question of whether appellec nnd its agents had been negligent. To hold that the decision rendered by the Board of Marine Inquiry is conelusive upon said court would virtually denrivc: the latter of the right to use its own discretion and compt'l it to accept the findings of a body that had conducted an investigstion me?'ely to decide whether th(' marine ce1tificates of cer..ain marine officers should be suspended or cancelled on account of misconduct, intemperate habits m negligence in the perfonnanct: of their duties . Moreover, it would be obvEously unfair to hold such findings as oonclusive and binding upon the: lower court anll determinative of the rights of the herein appellee . O. B. F e'"f! S ervice Co., plaintiff and awellant, 11s. P. M. P. Navi.qation Co., defrndant a11d appellee, No. 10392-R, January 26, 1954, l>i;on, J. CONTRACTS; CHARTER PARTY; VAGUENESS OR AMBIGUITY RESOLVED AGAINST 'l'HE PARTY WHO PREPARED IT. - When a charter pal'ty is prepared under the direction of the owner of the vessel, it goes without saying that whatever vagueness or ambiguity there might be in its provisions must be resolved against it, pursuant to the provisions of article 1288 of the old Civil Code as well as of article 1377 of the new. ibid. CORPORATION LAW; ONLY BOARD OF DIRECTORS HAS AUTHORITY TO BIND CORPORATION· - Under t)Ur Corporation I.aw only the board of dirc.>ctors of a corporation, Acting as such, has the authority to bind the c-:>rporation. Thc.> generr..l rule of law, invoked by the appellant, that if an ;>f· ficer of the corpt)ration l!m11lors a person to perform servitt"S for the corpomtion and such <1crvices are performed with knowledge Clf the directors and thc.>y receive the bc.n~fits thereof wi~h out objecti,..n, thC' corpor~tion is liable, only rolds true where the statute is not specific. When•, as in this jurisdiction, the law clearly provides that "the. expression of the corporate will is ve!ted in the Bnard of Directors and therefort- only the majority of the Board of Directon ncting as such has the authority to bind the oorporatir>n" such rule does not apply (Superior Gas and Equipment Co. vs. Jurado, sup?'a, > E1'teban Aguilnr, plaintiff and awrllant, vs. Phil1ppine America"ll Drug Co., (80-tica Boie), dtfendant a11d appellte, No. 7129-R, Jmmarv 2~. 1954, Natividnd, I. EMINENT DOMAIN; EXPROPRIATION; COMMISSIONER'S REPORT; SCOPE OF COURT'S AUTHORITY OVER COMMISSIONER'S REPORT. - The law clearly states that the t"Ourt, in acting upon the commissioner's report in s.n cxproj)ria•:on case, may accept it or set it aside, accep{ it iu pa.rt or reject it In part, and make such order or judgment "aa shall Heu.re No\"'l'mber 80, 1954 THE LAWYERS JOURNAL 677 to lhe plaintiff the property essential to the exercise of his right of cor.ci~mnation and to the defendant just compen&!ltion for the prc.perty so taken." CRule 69, Rules of Court) Such authority, according to the Supreme Court in Manila Railroad Co. vs. Velasquez, 32 Phil., 286, 290, is not limited to accept.ing c.r rejecting in full any of the constituent items of the report, but the court may validly increase or diminish any or all of such items. Other cases hold that this authority may be exercised though there is nothing to indicate prejudice or fraud on th;? part of the commissioners. The Municipality of San Fernando, Province of Pampanga, pln.intiff and appellant, vs, Jose Valencia, Jr., and Jesusa Quiambao, defendant. and appellant11, No. 8575-R, January 28, 1954, Diaz, Pres. J. In.; ID.; ID.; ID.; CRITERIA FOR DETERMINING REASONABLE VALUE OF LAND EXPROPRIATED. - What ought to be reviewed by the court jg not so much the act, or the appearance of it, of fixing the value by a sef>mingly arbitrary atandurcl like ·;splitting the difference" between valuc11 vario.usly fixed by the commissioners, as the evidence that supports or fails to support it. In other words, a court may simply split the difference without elaborating on its reasons for so doing, and yet the value thus fixed may be supported by the preponderance of the evidence. On the other hand, it may choose to ·fix anv of the values variously recommended and still incur in error because the award is not based upon sufficient evidence 0'" upon generally accepted criteria for measuring values. Fair or reasonable market value is defined as that which the property would bring where it is offered for sale by one who de. sires, but it not obliged to sell it, and is bought by one who is under no necessity of having it. It is well settled that the value of property taken by eminent domain should be fixed as / of the date of the proceedings. Ibid. EVIDENCE; WITNESS; TESTIMONY; HOW TO ACCERT AIN TRUE MEANING OF TESTIMONY OF WIT.NESS. - To as-certain the true meaning of the testimony given by a witness "everything stated by hi111 as well on his cross-examination as· on his examination in chief, must be consid1'red. Facts im· perfectly stated in answer to one question may be supplied by his answer to another; when from one statement considered by itself an inference may be deduced, that inference may be strengthened or repelled by the facts disclosed in another-" "We must not select isolated parta of the testimvny; its general hearing must be taken altogether," And where there are apparent inconsistencies in the testimony of a witness, they should be reconciled if possible, for perjury is not t.o be presumed. (3 Moran, Rules of Court, 601·602, 1952 ed.> Cipriano P. Rami· re:::, plaintiff a11d appellant, V.!I. Manuel CincQ, defencl.tnt and appelll'f•, No. 9899·R, February 2, 1954, Gutie•-rez David, J. CHIMINAL LAW; HOMICIDE; SELF-DEFENSE; REASONABLE NECESSITY OF TJ:IE MEANS EMPLOYED TO REPEL AGGRESSION. - ·· In a situation like the one at bar, where the contestants are in the open and the person a;::saulted can exercise the opti1m of running away, the genernl rule that such person is not generally justifi~d in taking the life of one who assaults him with his fists only, without the use of a dangeroU!' weapon must be upheld. Peo11le t'8. Florencio Nicolas 1J Flore.~, defendant and appellant, No. 8826-R, Februarv 5, 1954, De Leon, J. CORPORATION LAW; DIRECTOR; COMPENSATION; DIRECTOR NOT ENTITLED TO COMPENSATlON IN THE AB· SC:NCE OF EXPRESS PROVISION OR CONTRACT. - It hn:o))('en held that a director can not. recove1· for his services as president or as secretary or as treasurer in the ab.sence of express provision or contract for such eompensatirin. Cam.era E-:rehan.ge, Inc., 71/ai.ntiff and appellant, First National Surety anti Assurance Co· foe., Surety-plaintiff and aVPCllant, vs. Jost. 1V. Carame11g, defe11dat1t and a:ppellee, No. 10098-R, Dt.ce111be,. 9, 19[i8, Rtvt 8, J.B.L., J. ID.; JD.; ID.; ID.; KNOWLEDGE AND CONSENT OF MAJORITY OF DIRECTORS AND OF HOLDERS OF THE CA· PIT AL STOCK, IMMATERIAL- - The view that the knowledge and consent of t.he majority of the Directors and of th• holders of the capital stock validated the payment of ulariea of defendant and his wife despite! their membership in the board of directors o! the plainti!f corporation, is unsound both in law and in fact. In law, because it is held "that mere presumption of an agreement to pay arises from the mere rendition of the services, no matter how valuable they may be, and in the absence of express agreement, it is presumed that services rendered by an officer are perlormed gratuitously" and "the rule denying o!ficers of corporation compensation is not varied by the fact that they own nearly all o! the stock of the corporation" Ibid. ID.; ID.; JD.; ESTOPPEL; ESTOPPEL PRESUPPOSES FULL KNOWLEDGE OF PERTINENT FACTS. - Since the stockholders of the cornoration have not been duly informed of the action of defendant and his wife in collecting the questioned salaries and disbursments, and a stockholders' meeting was not held prior to defendants' renouncing his controlling position in the corporate organization, no estoppcl applies, smce estoppel presupposes full knowledge of all pertinent facts. Ibid, Ibid. ID.; TRUST PROPERTY; OFFICERS AND DIRECTORS OF CORPORATCON, THEIR FIDUCIARY RELATION IN RESPECT TO BUSINESS 6R PROPERTY OF CORPORATION. - Officers and directors in control of a corporation occupy o. fi. duciary relat-ion towards the corporation nnd its stockholdeh , in respect to the business l!r property. Ibid, / &id, Ibid. PARTITION; CONSENT; ERROR; TRANSLATION OF ARTICLE 1081, OLD CIVIL CODE ERRONEOUS. - Where there is conflict betwer.n the language of the original text 0 1f the Civil Codo and of its official translation, the text of the ot·iginal text should govern. This rule is applicable to Article 1081 of the old Civil Code, the official tr!nslation of which is erroneous. Luci~ Gorospe-Sebastian, plaintiff a.nd appellee, va. Salvad0r Salazar and Angelf>s Gorospe-Salazar, defendants and appellant., No. 8008R, January 26, 1954, Natividad, J, ID.; ID-; ID.; ARTICLE 1081, OLD CIVIL CODE CONSTRUED. - -Article 1081 of the old Civil Code contemplates a case of error in the status of the person of one of the contracting partiee which amounts to error in the consent. Such error may a.rise from pure mistake or from misrepresentation or fraud. Ibid. CONTRACTS; FAILURE OF CONTRACT TO FULFILL REQUIRF.MENTS OF ARTICLE 1081 OF THE OLD CIVlL CODE, EFFECT OF. - Contracts of partition which fail to fnlfill the requirements of article 1081 of the old Civil Code may be given dfect either as dor.ation8 0 1· quite ciaims if the inten· tion of the parties to treat t.hem as such is ciearly deducible from the dei:ds and their attrndant circumsbncea.. Ibid, Ibid... HUSBAND AND WIFE; OWNERSHIP OF PROPERTY AC. QUIRED DURING MARRIAGE; PRESUMPTION IN FAVOR OF THE CONJUGAL PARTNERSHIP. - All acquisitions by oneromi title during marriage are presumed to be for the cor.jugal partn('rship and at its expense <old Civil Code, art:cle 1401 <I>; new eivil Code, article 153 cu. Hence, although the instant 1Jacto de ... etro sale was made to the wife alone, t'i.erf' being no clf>ar and con\•incing proof that the consideration of the sale paid by both spouses was exclusive money of the wife, said purchase a retro vested ownership of the land in the con· jugal partnership of the spom.ea.. Marcelo Pata11on, plaintiff and a1Jpellee, i·s. A natalia Ort.al f>t al., defendants. Martiniano Dngayday, de/et1dant and appellant No. 1972·R, Februarw 6, 1954, Rews, J.B.L., J. ID.; ID.; IO.; HUSBAND'S RIGHT TO DISPOSE OF THE CON· JUGAL PROPERTY. - The husband is the ndminiatrator of the conjugal partnership (Civil Code of 1889, article 1412; new Civil Code article 165. l Consequently, a sale by him of conju. ~al property. in the absence of fraud upon the wife, is valid <old Civil Code Article 1413) . On the other hand, 1f the wife not <Continl(ed Olt page 579> 078 THE LA WYERS JOURNAL November 30, 1954 REPUBLIC ACTS REPUBLIC Acr NO. 1052 REPUBLIC A.er NO. 1057 AN ACT TO PROVIDE FOR THE MANNER OF TERMINAT- AN ACT TO AMEND REPUBLIC ACT NUMBERED NINE ING EMPLOYMENT WITHOUT A DEFINITE PERIOD JN HUNDRED AND TEN ENTITLED "AN ACT TO PROVIDE A COMMERCIAL, INDUSTRIAL, OR AGRICULTURAL FOR THE RETIREMENT OF JUSTICES OF THE SUESTADLISHMENT OR ENTERPRISE. FREME COURT AND OF THE COURT OF APPEALS, Be it en.acted b'JI the Senate and llouae of Representatives of the Philippines in Congress a.ssembled: SFCTJON 1. Jn cases of employment, without a definite period, in a commercial, industrial, or ngYicultural establishment or enterprise, neither the Pmployer nor the employee shall terminate the employment without serving notice on the other at least one month in advance. The employee, upon whom no such notice was served, shall be entitled to one month's compensation from the date of termination of his employment. SEC. 2. Any contract or agreement contrary to the provisions of section one of this Act shall be null and void. SEC. 3. This Act shall take effect upon its approval. Approved, June 12, 1954. REPUBLIC ACT NO. 1053 AN ACT TO AMEND REPUBLIC ACT NUMBERED THREE HUNDRED AND EIGHTY-FIVE AUTHORIZING CERTAIN OFFICIALS OF THE GOVERNMENT OF THE UNITED STATES OR ANY AGENCY THEREOF TO ADMINISTER OATHS AND AFFIRMATIONS IN THE PHILIPPINES. Bu it enacted by the s~nate and HouH of Representatives of the Ph1lippin11s in Congress cm1emhlcd: S"OCTJO~ I. Section one of Re!')uhlic Act Numbered Three hun·dred and eighty-five, which authcrizes ccrt&.in officials of the Government of the United States or any agency thereof to administer oaths nnd affirmations in the Philippines, is hereby amended to read as follows: "SECTION 1. Any person employed in the Philippines by the Government of the United States, or any agency thereof, to whom authority is delegated by the said Government or agency, to admi· 11ister oaths and affirmations, to aid claimants !or benefits granted by the United States in the preparation and presentation of their claims, and to make investigations and examine witnesses, shall have authority to administer oaths and affirmations during his employment in the Philippines in any investigation or matter connected with the performance of his duties and functions: Provided, howe11er, That for any oath or affirmation :idministered by him, no !ee shall be charged or collected." S&e. 2. This Act shall take effect upon its approval. Approved, June 12, 1954. FOR THE ENFORCEMENT OF THE PROVISIONS HEREOF BY THE GOVERNMENT SERVICE SYSTEM, AND TO REPEAL COMMONWEALTH ACT NUMBERED FIVE HUNDRED AND THIRTY-SIX" AND FOR OTHER PURPOSES. Be it en.acted by the Senate and HtnUe of Repreu ntatives of el1• Philippines in Crmgres1 aatrembled: SECTION 1. Republic Act Numbered Nine hundred and ten I! hen:by amended by inserting between its sections two and three a new section which shall be known as section Tw~A thereof, and which shalI read as follows: "S&C. 2-A. Any Justice of the Supreme Court or of the Court of Appeal~ who ceased to hold s11ch position prior to the approv:i.I of this amendatory Act, to accept another position m the Government nr who resigned or retired from said courts after the effeetivity of Commonwealth Act Numbered Five hundred and thirty-six, entitled "An Act Huthori;ing the retirement of Justices of the Supreme Court, and making appropriations for the payment of a retirement gratuity", without enjoying the benefits thereunder, shn.11 be entitled to the benefits under the provisions of this Act: PTovidcd, ' That at the time of his cessation in office or retirement as Justice of the Supreme Court or of the Court of Appe3ls, he possessed all the requirements prescribed by this Act: And pro11ided, furthu, That the benefits authorized hereunder shall accrue only from the date of the approval of this amendatory Act. ' . SEC. 2. Republic Act Numbered Nine hundred and ten is hereby'•,, further amended by inserting between its sections three and four a new section to be known as section Three-A thereof, and which shall read as follows: "SEC. 3-A. In case the salary of Justices of the Supreme Court or of the Court of Appeals is increased or decreased such increased ' or decreased salary shall, for the purposes of this Act, be deemed to be the s:ilary which a Justice who ceased to be such to accept another position in the Government was receiving at the time of his cessation in office: Provided, That any benefits that have al· ready accrued prior to such increase or decrease shall not be af· rected thereby." S&C. 3. The sum necessary to carry out the purposes of thl1 amendatory Act and Republic Act Numbered Nin~ hundred and ten, is hereby appropriated out of any funds in the National Treasury not otherwise appropriated. SEC. 4. This Act shall take e!fect upon its approval. Approved, June 12, 1954. OIGEST OF DECISIONS OF THE COURT OF APPEALS tContimud) having the representation ot the partnership, disposes of the conjugal property without her husband's consent (article 1416, old Civil Code>, her act is void. IbidID.; ID.; ID.; ID.; NON-JUDICIAL SEPARATION OF SPOUSES, EFFECT UPON POWER OF HUSBAND OVER CONJUGAL PROPERTY. - The fact that spouses are sc>parated without Judicial sanction <Civil Code of 1899, article 1482>, docs not diminish the power of the husband over the conjugal property, Ibid, Ibid. APPEAL; ASSIGNMENT OF ERRORS BY APPELLEE IN CIVIL CASE, WHO HAS NOT APPEALED, NOT COGNIZABLE. - In a civil case, unlike in an election case, the s ppellec, on appeal, C.:lluld not sssign errors, unless he appealed from the deciaion of the court a quo. Thereto"'• we cannrot take cogn~ance of his a51ignmcnt ot errors much leu hia argument.! in sup90rt. thereof. Marcelo Saltaf'7L, plaititil! and appellee, t.1s. Paacual Manoo11 and V enancia Obdula, defmdant. and aJJP6Uant., \IS, Nieasi4 Revi..ttial Morand.ante el al., third part11 defendant., No. 4498-R, Feb. B, 1954; Peiia, J. CRIMINAL LAW; AMNESTY PROCLAMATION NO. 76; CRIMES AGAINST CHASTITY NOT COVERED BY AMNESTY. - Supplementing Amnesty Proelan1ation No· 76, intended for the leadera anJ membera of the arsoeiation known as Hukbalahap and Pambansang Kapatiran ng Magbubukid <PKM>, the then Secretary of Justice iHued C;rcular No. 27 on June 29, 19,8, stating that petitioners under the proclamation ehould be those accused of the crimes ot rebellion, r;edition, illegal aaaociation, assault upon, resistance and di11obedience to peu ons in authority and/or illegal possession of firearms, committOO before June 21, 1948, or any other crime that may be aMwn to have been committed mcrcly u an inciJent to or in furtherance of tha commission of· the crimea of rPbellion, sedition, illegal a.uocit.< Contin1ud on page 580> November 80, 196' TaE LAWYERS JOURNAL ... TEXAS LAWYER TALKS ON JURY SYSTEM AT FRANCISCO COLLEGE Atty. R. Richard Roberts "The system of tl'ial by jury ia not a perfect system." Thus spoke R. Richard Roberti, a member of the Texas and the United States bars and a partner of one of the largest law firms in the United States, Vinsor.s, Elkins, Weems & Sr.ars, at the <>ymposiurn on "Trial System in Criminal Cases" held at the Francisco <:oll<:ge, Friday, November 19, He was the guest speaker. The American lawye1· st'ressed that nowhere in the WNld today c~:n there be found a i,ystem of trial that is perfect. He discoursed on the merit of the jory system adopted generally in the United States although such a system, according to him, is not without flaw, especially in the trial ol civil cases. Mr, Roberts disclosed that he Jl.fe1>ibtr, Toat Ba"', U.S.A. nas advocated for hia native state Jf Texas the trial of civil cases by t1. judge with court commis11!oner1 or ussessors in place of the jury system. He said that at pre".;nt the jurors who ar~ selected to judge civil cases are invariably those who have "blank minds" on the subject or the suit. Since tht' •ubjects of civil suits require in most casu expert knowledge, it would better serve the ends of justice to veat the judge with the power of decision and to appoint court commissioners or assessor• to nssist him with their expert knowledge, he explained. Starting hi3 speech, M>r. Roberts outlined the procedure in jury trial from the time the jurors art> 1:mmmoned, impanelled, examined, challenged and sworn in, up to the time they are given tht: Court's charge or instrudions and convened to deliberate on the case and render their verdict. While there are various safeguards provided by the system against bias on the part of the jurors or u1:due influence exerted upon them by the parties, Mr. Roberts said that it has several loopholes. Mr. Roberts pointed out some ~spects in the practical appli~a tion of the system of trial by jury which may result in mii;carri•~• of justice. The procedure is such, he said, that a mere technicality may provide sufficient ground for a re-trial, thereby rel!ult ing in protracted litigations. To illust rate his point, he l'tcounted some of hi! personal ¥.Xperienccs. He rcc.e.lled some cases in which re-trial was ordered due to the omission, though Inadvertent, or some points in the Court's instTuctions to the jury. He also mentioned a case he hat!dled wherein the whole jury was changed because the opposing counsel made some remarks In his "tatement to the jury which tend;?d to anticipate questions on the wcip-ht and Insufficiency of evidence. Mr. Roberts has bePn in the acti\'e practice of law for the last nineteP.n 3•ears and is .Presently in the Philippines as Vice-President ot the S'ln J ose Oil Corporati('l?l which h 9 ! rect>ntly been grantM a concession by the Philippine gm•t:rnment to explore 600,000 hectare<J of public landA for oil. Mr. Roberts was introdu~~d fo the Francisco College f aculty and students by Vice-Dean Proceso A. Sebastian of the CoJJege of Law, Mr. Sebastian was former Philippine Ambassador to Ital)' and later, to Indonesia, The symposium, held under th>? auspices ot the Francisco College Debating and Oratorical Club, was participated in by four speakers represc>nting all the classes in the College of Law. Adjudged the best developed thesis was "Trial in Capital Offenses by a Collegiatt1 Court" delivered by Abraham 1''. Rriones, class '55. Mario Reyes, class ' 08, with his piece on "Trial by Jury" was declared the evening's best speaker. Ramon Bclleza, class '57, was awarded first honorable n1ention for his thesis on "Trial by a Single Judge," The other sr,caker was Manuel M. Echnnova, class '56, who proposed a sy!ltem of ''Trial by Single Judge with the Aid of Assessors," and to whom second honorable mention was awarded. All facult>• members of the College of Law composed the bnard of judges. DIGEST OF DECISIONS OF THE COURT OF APPEALS <Continued fr&m page 579) tion or assault U)lon, resistnncc and disobedience to persons in authority; it being understood, however, that crimes against chastity shall in no case be deP.med covered by amnesty. People of t/1e Philim1int1s, pl<tintif! and appellee, vs. Eligio Camo, Cri1p11fo Camo and Jose D. Camo, de/enda.nt.9, Jose D. Camo, defendants <md appellant, No. 9568-R, Fel>roary 11, 1954, Pe1ia, J. CRIMINAL LAW; EVIDENCE; POSSESSION AND USE OF FALSIFIED DOCUMENT; PRESUMPTION.-When a person has in his possession a falsified document and makes use ot the same, prC'sumption arises that such person is the forger. People vs. Avelino Z, Dala, defendant and appellant, No. 106S8-R, February 20, 1954, De Leon, J. ID.; ID.; PHOTOSTATIC COPIES, ADMISSIBILITY. - The lower court did not err in admitting the photostatic copies of the checks in question as evidence. The production of the orginl\l checks is not indispensable when lt is not disputed that the offended parties did not sign the checks issued in their respective names; wher. the accused identified his own <iignaturea appearing in the photostats; and there is evidence that the checks In question were correct photostatic copies of the originals. Ibid. CRIMINAL LAW AND PROCEDURE; SPEEDY TRIAL. - The right to a speedy trial is :\ relative one· A speedy trial ia one conducted according to the law of criminal procedure and the rules and regulations which include, among o~hera, the granling of postponements of trinl which while vi<.wed with ahhorence and grAnted sparingly by the court.a can no leu ho a.eluded from our procedural a)·stern of dispensing justice •_ban the Just from the air we bree.the. People ti•· Florencio BoriMga, defendant and a~llant, No. 9771TR, Februarv 27, 1954, D1 Leon, J. 580 THE LAWYERS JOURNAL November 30, 195t Lawyer's (/).iJuld1J.IU/ ADRIANO, LOPE E. 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