The Lawyers Journal. XXV (11) November 30, 1960

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Title: The Lawyers Journal. XXV (11) November 30, 1960
Year: 1960
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extracted text: JAL t.A WYERS JOURNAL MANllu\ PHnJPPINES VOLUME XXV NOVEMBER 80, 1960 NUMBER 11 VICENTE J. FRANCISCO Editor and Publisher RICARDO J: FRANCISCO Al8i8tcint Editor "DOES THE SUPREME COURT MAKE FREQUENT MISTAKES?" - By Atty. Jose A. Pe,rello PARITY AMENDMENT TO· THE CONSTITUTION Ry the11 Sf'nato·r Carlpn P. Garcia. C' NITED SUPREME COURT ADVANCE OPINION 321 323 Smith v. State of California ,•.......... . . . . . . . . . . . • . . . . . . . . 326 VICTOR 0. FRANCISCO Business Manager· ACCUSED ri!AY REMAIN AT LIBERTY UNDER ORIGINAL BOND AFTER CONVICTION AND DURING APPEAL SUPREME COURT DECISIONS Omn.eiia vs. Pendatun. et al. - J1UJtice Bengzon 331 332 THE LA WYERS JOURNAL is published monthly by Hon, Vicente J. Francsico, former senater and delegate to the Constitutional Convention, practising attorney and president ef the Franciaco Cellege (formerly Fraacllco Law School. ) Gutierrez vs. Re11e11 - Justice Endn1cia . . . . . . . . . . . . . ...........•. , 338 Dangue vn. Fn11nkin Bakff' Co. - Jcstice BfJIN·era ... , ............ , . . . 343 De los Re11es Vda. de Santiago et al vs. Re11es - J11stiu Labrador 344. SUBSCRIPTION AND ADVERTISING RATES: Subscription. In the Philippines-P20.00 for one year; Pl0.00 for 6 months; '2.00 per copy, In the United States and foreign countriea$20.00 for one year; $10.00 for 6 months; $2.00 per copy. Advertising: Full page----PI05.00; Half page--P65.00; One.fourth page-P,5.00; One-eight page35.00; One-sixteenth paceP25.00; Back Issues: In the Philippines-P25.00 - t we Ive issues; P3.00-per issue. In the Tlie M11nidpal Treasurer of Pili, Ca.marines Sur et al. vs. Hon. PaJacio et al. - Juetice MontenutytJr Gnbriel et al. vs. Mu.nsayac, et al. - J1tslice Bautista Aiigelo 1960 BAR EXAMINATION QUESTIONS (Continuation) Political Law Criminal Law THE ARARAS CASE (Unconstitutionality o! Republic Act No. 1379) United States and foreign count1·ies-$25.00-twelve issues; $3.00-per issue. 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Place your orders to the EAST PUBLISHING 508 Samanillo Bldg., Escolta, Manila Tel, 4-13-18 THE LAWYERS JOURNAL A monthly magazine which keeps lawyers abreast with the development of law and jurisprudence through the publication of legal articles by Filipino and American lawyers, some of them appearing in leading American law re.views. The Journal helps lawyers in the practice of their profession by publishing Advance Opinions of the U.S. Supreme C1Jurt, Decisions of our Supr·eme Court, Court of Appeals, Court of Industrial Relations, and Court of .Agrarian Relations. It publishes also Laws passed by the Congress of the Philip pines and the Opinions of the Secretary of Justice. The October Issue contains: (1) orations delivered by the Secretary of Foreign Afifairs, Hon. Felixberto Serrano, 8enator Lorenzo Tallada, Justice Alejo Labrador, and former Senator Vicente J. Francisco, the latter in behalf of the Delegates of the Constitutional Convention at the neorological services of the late Senator Claro M. Recto held at the Session Hall of the Philippine Senate on October 11, 1960; (2) advanced decisions of the U.S. Supreme Court; (3) selected decisions of the Philippine Supreme Court; (4) digest of the Court of Appeals decisions and of the Court of Agrarian Relations; and (5) a pleading in the Araiias case, impugning the constitutfonality of the first Anti-Graft Law. The Lawyers Journal RM. 508 SAMANILLO BLDG. ESCOLTA, MANILA TEL. 4-13-18 "DOES THE SUPREME COURT MAKE FREQUENT MISTAKES?" lly JOSE A. PERELLO Member, P4Ui,,,,tne BM A law pro:f'esaor had Just winded UR a lengthy diileourfie on the doctl'ine of ata.t"e deMa before ll :fri!ahtnan Un\" claaa When one of the students asked him: "Sir, does the Supreme Court make frequent mistakes!" Having newly become familiar with the doctrine, the young ttl*n was fraftlily worried about the consequeneea ihoukl the hil'beat tribunal of t.he land make erroneoua but precedent-setting decisions. · ' After a pause, the. p1'0fessor replied in carefully measured words: 11Well, it does make mistakes - ermmm ~um eat. Of cotni1e, when the Supreme Court realizes its errors, it does ncti:f'y them, for, as Ju.slice Maleolm said, 1'More important than Dnything else is. that the court should ,be right." One may imagine, though, how many Jud.pa and lawyers in , iubsequant similar ca~ would be misled while such errors last, how much rights would be prejudiced and how mueh time &nd money of the litigants, the government, and all other concerned lliOUld be wasted in foll~int erron~us detisicrias. This brings to our mind the promulgation in recent years of certain conflicting decisions that could hardly serTe as guii.leposta in our forest of laws and jurisstrudence. O• Avouat 81, 1966, the Supreme Court held that the Court of Industrial ltelaElons hali jurisdiction over caaea where the controversy refera to minimum wage under the Minim.um Wap Law, or when it involves houn of employtnent under the Eia')lt. Hour t.bor Law. Pa.flu vs. Tan, G.R. No. L-9116, 52 O.G. &Ba&. 0a Ma'I/ 81, 1967, the Supreme Court held that the Court of . Jnduatrial. Relations . has jurisdiction onr claims for payment of additional compensation for work performed on Sundays and bolldaya, for night work, and for ftcation and. sick leave pay. Detective and Prot!ective .BureaH, Im:. va. FBlipe Guevat'G, G. R. No. £-8738. On Octolm· 81, 1967, the Sup1-eme Court held that the Court of Industrial Relations, has juriadiction over eaaee involving claims for convenion of wages from hourly to daily baaia, overtime pay on Sundays and legal holidays, vacation and sick leave pay, payment of medical and hospitalization bills, and paJ1118nt of their waces during a strike, if such strike had to be declared due to the refusal of the company to consider their demands. Il#IGO P"'1l Bowling Alley vs. United Empltt1fe•• Asaociation., G. R. No. L-9831. On December 28, 1967, the Supreme Court held that it is the Court of First Instance and not the Court of Industrial Relations which haa ju1·hdidtion over elaima for paymG of overtime wages, because auch claims do not involve hours of emploJ'lilent under Commonwealth Aet No. 444. Mittda.noo Bu Bmplopea Labat' Union vs. Mindanao Companu, ct a~ G. R. No. L-9795. On April 30, 1968, the.Supreme Cou1t held that; where the action 'Was simplJ for the collection· of unpaid salariea and wages alleged to be due tor services rendered and no labor dispute appears to be involved, and petitioners do not seek reinstatement, the Court of lnduattial Relation& doee ~ot haw··juriadlction over the case but the Court of Ffrat; Instance. lilOmon. Ca.tholio A-rcli.biskop 6/ Manila vr. Ys11.stm. r.. R. Nb. L-18841. On Afhil 30, 1968, ~e Supreme Court, in Eliza.Ide & Co., Inc. vs. Yanson, et -1., G.R. No. i.-12346, reiterated the above doct·f'ine. Ou. August 18, 1968, the Supreme Court held that it was the Court ot Industrial Relations, and not the Court of First Instance, which ·has jurisdiction to hear and decide claims for overtime compensation and for separation. pay. Said the Suitreme Court: "It is clear from the forephil' that the Court of First Ihatarice baa jurisdiction only OY81" eontroveraiea inYOJ.vint viOlations of the Minimum Wage Law. The initailt actioni however, was for the collection of overtime com.PflnHtion 'Under the Eight-Hout Labor Law (Cofti. ·Act 4'4-) and for sepGm~ tion pd.If.. and that aetioni of thii nature Sliall be brodclit befol'e a court of competent jurifldicbioli. In· this 1'8spect, it has been held by this Court that with the enactment of the lndwltrial Peace Aet (:ihp. Act 8'15)t c!&eea iil.t'OltJ"irig holii'S of empllNtJW!rit under the Ei/Jhe.Jlnr Labor La.to •"6aif~ f.U wUl&if& tA• · ;vrim-leeion df ti\ei Cbnt"t o.f Itldustrid& .R•r.fion• (Philippifle Aisociation of Free ·:u.bor Untona-PAFLU vs. Tan G.R. No. L-0116, prom.ul~te:I Adgrist III, 19&6; Reyei Va. T811; G.R. No. L-913'1, promu1-ted August 81, 1966; Cebu Port Labor Unions Vs. States Ma.tine doFpota"tion, G.R. Ne. 1)9B1i0, ptorit0.lpted Ma:v 20, llt57) "· Gonie:c v•. North Cll1nd.rineB Lum•er Co., a. R. No. L-11946. In this case, petitioner Raymundo Gomez was no longer employed by the respondent company and did not ask. for reinstatement. On. NOVBmber 28, 1968, the Supreme Cou1·t held that it ls the Court; of Industrial Relations and not the Court of First Instance, whith has jutiadietlon to heat and determine elal11$ fqr offrtime corilpen!ation. and for work done on Sunda:vs '9oiid holidays nnd at night. The petitioner in thia case was actually in tha employment of the reepondent company. N ASSCO va. ALMEN et al.. G. R. No. L-9066. On. April 29, 1969, the Supreme Court ruled that the Court of First Instance - and llOt the Cour.t of Industrial Relations, - whleh has juriadletion oveit claims -for the differential and overtime pay of claimants who wete former employeee of respondent company. CHUA WOIUCB.RB UNION va CITY A UTOMOTIVB COMPAl\•Y, tt al., Q.R. No. L-11616. On May 29, 1.969, the Sup"reme Cou1t held. that the Court ol. Industrial Relations and. not the Court of First Instance, which has juriidiMion over a cliJie where the claimant seeks pajment of differential and overtime pay and reinstatement. MON ARES vt. CNS ENTERPRISES, et al., G.R. N4. L-11749. On. AP'l;l 29, 1960, the Supreme Cou1·t held that the Court o1 Industrial Relations, and not the Court of Fh"St Instance, which has jurisdiction over the contl"OVel'SY of 39 employees of the respondent company for payment for work in "excess of eight hours including Sunda:rs and lep.l holidays and nighttime wo1il:, eince it is practicallr a labor dispute that may ,lead to conflict between the employees and management. The Supreme Court fur· November -SO, 1960 LAWYERS JOURN.\f, 321 ther stated that "if the claimants were not actual employees of the NASSCO, as for example, they have severed .. tb~r. conneetion with it or were dismissed but do not insist in reinstatement; the claim for overtime compensation would become simply · a monetary de.. mand properly cognizable by the regnlar courts and not by the Court of Industrial Relations." Naatfoo 118, Cou'T't of Industrial R'e-_ latioti.B, G. R. No. L-18888. On May 23, 1960, the Supreme Court, after making an analysis of all the conflicting decisions on the question of jurisdiction over claims for overtime compensation, laid the following doctrine: "Where the employer-employee relationship is still existing or is sought to be established because of its wrongful severance (as where the employee seeks reinstatement), the Court of Industrial Relations has jurisdiction over all claims arising out of, or in connection with the employment, such as those related to the Minimum Wage Law and the Eight-Hour Labor Law. After the termination of the relationship and no reinstatement is sought such claims become mere money claims, and come within the. jurisdiction of the regular courts." Prisco 1.1. C.f.R. et al., G.R No. L-13806. Duti"ng th,e Commonwealth regime, there were conflilcting doctrines of the Supreme Court, but this was due tO the fact that the Supreme Court had been acting then in division and, quite . inevitably, the ruling of one division conflicted with those of the other divisions on similar question. This was not frequent, however. It was precisely to remedy this situation that the d.ele• gates of Lhe Constitutional Convention adopted the present pro'•ision in the Constituti~n enjoining the Supreme Court to always sit en bane when. deciding cases. Similarly, it was the practice of the Supreme Court during the Commonwealth regime to distribute amongst its justices the cases for decision, with each justice thereafter making an individual study of the case assigned to him and submitting his findings and conclusions therein to the whole division or to the Court en bane. This practice ptovoked the criticism, founded or otherwise, that the resultant decision purportedly Of the Supreme Court was in reality a onejustice decision. To remedy the situation, the Constitutional Con.vention provided in Sec. 11 Article VIII of the Constitution of the Phllippines that - · "The ·conclusion of the Supreme Court in any case submitted to it for decision shall be reached in consultation be/we the case is assigned to a justice for the writing of the opinion of the court," If the Supreme Court had followed this constitutional mandate and the legal presumption is that it did, then perforceJ. the aforecited doctrines were reached by its justices in consultation with each other. As is obvious, the, aforecited doctrines of the Supreme Court on the court which has jurisdiction over claims of separation pay, overtime pay, and allied subjects, hold diametric.ally opposing views, and it is not too difficult to see that they cannot all be correct. Hence, it is not surprising if our young law student's apprehension about the hosts of judges arui" lawyers of litigants who must have been confused and misled thereby, the precious time and money that mus\; have been wasted in the process of searching just for the right court, should come to pass. Indeed, an illustrative actual case in point which demonstrates the adverse ill-effects of shifting doctrines on litigants haplessly caught in its wake is the case of "Stanley Winch, petitioner, versus P. J, Keiner Co., Ltd., i·espondent, G.R. No. L-17665."' Thls case involves a claim for overtime pay, vacation leave pay, and separation pay claimed by petitioner as a result of his illegal dismissal which took place on April 19, 1955. It was commenced on November 4, 1955, in the Department of Labor later substituted by the Wage Administration Service (WAS). As the proceeding in the WAS was very rnl.ich delayd, petitioner decided to file the corresponding complaint in the Court of First Instance of Manila and notified the WAS of the withdrawal of his claim.. However, the WAS dismissed the claim with prejudice. On July 6, 1966, petitioner filed with the Court of First In-. stance of Manila the corresponding complaint based on the claim presented to WAS and docketed as Civil Case No. 30132. The complaint, hO"\\-ever, upon motion of the respondent company that the same is barred by a prior judgment (referring to the order of dismissal of the WAS), was dismissed by the court. 01\ appeal, however, the Supreme Court Set: aside the dismissal and remanded the case to the lower court for further proceedings, The ._case, however, was not heard on its merits beeause the respondent company again filed another motion to dismiss the complaint on the ground that the Court of First Instance of Manila has no jurisdiction over the subject matter and despite petitioner's opposition, the court issued its order dated March 5, 1969 dismissing the Cllse, basing its resolution on the doctrine of the Supreme Court in the case of "Gomez v. North Camarines Lumber Co., Inc.," G.R. No. L-11945, promulgated on AugUSt lS, 1958, holding that claims for collection ol overtime compensathm and separation pay pertain to the jurisdiction of the Cou.rt of Industrial Relations. (supra) In view of said dismis.sal and doctrine of the Supreme Court petitioner had no alternaiive but to reproduce his complaint be~ fore the Court of Industrial Relations, which he did on April 13, 1969 and the same was docketed as C.I.R. Case No. 1937-V. But the respondent company again filed a motion to dismisa the complaint on the ground that the Court of Industrial Relations has no jurisdiction ov~r the case invoking thi~ time the case of "Chua Workers' Union (N .L. U,) vs. City Automotive Company, G.R. No. L-11655, promulgated on April 29, 1959, where the Supreme Court decreed that claims for collection of differentiai and overtime pay belong to the jurisdiction of the regular courts ( su.p1-a,) Petitioner opposed this motion, invoking the doctrine of the Supreme Court in the case of Monares vs. CNS Enterprises," G. R. No. L-11749, promulgated on May 29, 1969, declaring that claims for recovery of differential and overtime pay, reinstate.. ntent and damages fall within the jurisdiction of the Court of Industrial Relations. In its order dated June 25, 1960, three judges held that the CIR has no jurisd_iction over the case citing the case of NASSCO vs. CIR, supra; another judge ruled that the CIR has no jurisdiction and cited the case of Price Stabilization Corp. vs. CIR supra; and another judge held ~hat the CIR has jurisdiction citing the cases of Monares vs. CNS Enterprises, and Gomez v. North Camarines Lumber Co., supra. Curiously enough, however, after declari·ng itself without jurisdiction over the case the Court of Industrial Relations also ruled that petitioner's a~tion. has already prescribed after the lapse of four years from the accrual of his cause of action. Petitioner then brought the case to the Supreme Court on appeal by certiorari, but this Court dismissed the petition "for Jack of merit". To cap it all, when petitioner's lawyer tried again to reneW petitioner's action before the CFI of Manila, it was found out that respondent (Kiener) had closed down business in the Philippines and returned to the United States. Upon being; informed of the result of the case by his lawyer, said petitioner sharply remarked, "After my case has been footballed from one court to another to the tune of changing rulings, now the court ruled that I have lost my right to bring action to recover overtime pay, vacation leave pay, sick leave pay, and separation pay because more than four years have elapsed. But all these four years were consumed in footballing my case from one court to another. Why should I be held responsible for it? What kind of justice is this?" "Truly, only when we cease to be- human and have lost all sense of fairness can we fail to understand the bitterness of this poor litigant. 322 LAWYERS JOURNAL November 30, 1960 PARITY RIGHT AMENDMENT TO THE CONSTITUTION THE ISSUE•. GENTLEMEN OF THE CONGRESS: There are moments in. the life of a nation when itl: parliameni ia called upon to deliberate on questions involving the nation's very life and death. There are times when the parliament of the nation determine& queStions that affect the very depth Of ita being and the "t'\9!'y essence of its fundamental national ideals and prineiplea. Saeh a moment has come to thi& Congress. It '\\ill now' decide and determine whether we will 0keep this land of ours and all our natural resources for the Filipino people and for our posterity, or whether we will open it to the acquisition and exploitation of .Amei'icans and other aliens hiding behind American frcmt&. We a.re called to determine whether this natio11al patrimony, thill Mered: heritage for whieh millions of our race have fought, auf. fered and died, shall remain ow·a to keep and preserve, or whether aJien hands will be allowed: to •PPropriate its blessinp. We. aro called upon to decide on this momentous debate whether or not this land of ours will l'emain the cradle and grave, the ·womb and tomb of our race - the only place where we build our homes, our temples and our altars and where we erect the . castles of our racial hopes, dreams, and traditions, and where we establish the warehouse of our happineu and prosperity, of our joys and sorJn short, we will answer the question - shall we PB8B this e~titutional amen.dment, permitting the alienation of our land and reaources to foreigners? ln the mapitude of this tranacend.en.tal question, parties and personalities are lost. Offices, ambi~1 wealth and temporary power become molecular particles lost in the grN.tneaa of the issue. Henee, we have come here only as F-ilipinoa to think with our he81'ts and to determine with our ~ the momentous answer. On this sacred hour, aa we chart the course of the State, after communion with the Spirit of the Nation, and co~tation with our ancestors - our great dead wboM deeds and thoughts and visions were beacon lights of our Past that still illumine our path in the uncharted future, we come to the solemn conclusion that our answer must be No, No an.i No. TEXT OF AMENDMENT The concrete question presented to ou1• considel"ation is whether or not We will amend the Constitution of the Philippines by -appending thereto- a new Ordinance to read aa follows: "The dispoaition, exploitation, development, and utilization of all agi:icultural, timbe1·, Rnd mineral lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils, all forces of potential energy, and other natural resources of the Philippinea, and the operation of public utilities, shall, if open to any person, be opm to cieisena of the .Uniled. Sta.tea atid to a.H J01·ms of business .intft"priae owned or conWolled, directly o-r indiuctly, by the Ulftited Sta.tA- citizcma." * We are publishing thi&l speech of Senator Garcia in view of the numerous requests from our subscribers for a copy of the issue of the Lawyers Joumal where this speech was published, and due t.o the laek of back issu"es of the same. RESUME OF PRO ARGUMENTS In popular parla11ee, this is known as the "equal rights" provision. The illuistrious advocates for the acceptanee of this amendment built a formidable batt,ery of contentiona and arcu.ments upon the two fundamental emotions of the hum&'ll heart - hope and fear. They ravish the hope of the Filipino people by painting an Utopia of economic renaissance magically arising out of the wreck a'ILd. ruin of war. They usure us that the approval of this amendment gives our people "usurance of future work: that by this we draw now the _pattern of a national reconstruction to )tel"lllit the development Of a b1•oader, a richer, more productive economy than we.ever had;" that the intent of this amendment was ".simply to invite and eneourap American capital to i~ve~ in the Philippines and aid in our rehabilitation." With mosaic eert,o.inty we are aasured that the paaaing of this am.end, ment to "implement the program that baa been deaicneci will be givinc to the people ol the Philippines alld to oUl' friends and wellwishera throughout the world the signal that we are on our way in a great crusade, eighteen million strong, to reach the haven of economic security which all the world is seeking today." (See Special Meuage of Rous on the Subject). FEARS On the other hand, these adroit proponents of this amendment, these matte1·s ot word-painting, theae adepts in the paychology of the muaea, excite their fear to terrify them into acceptinl' this propoul to ravish our Constitution. They aay that "without this aa.aistance (what we are suppoaed to get if we approve the amendment). we are faced immediately_ by dil88ter.n "Without the helpinc hand thua u:tended to us, we cannot aurvive. n We have t.o accept the executive agreement which impoaed the condition of amendinc our Constitution because "to do otherwise would be to invite economic and final political catastrophe." To thl"ow more gh01Jta into the picture, they further aay "that to seek the elimination of that provision at this time (referi·ing to Section 341 of the Bell Act), would, .be to warn American inveators and American enterprise not to come to the Philippines. That would be auicidal for us. Without "that Investment. we are lost. Our rehabilitation would be imposstbk without such assistance (meanilll' the assistance of American capital expected to flow into the Philippines if and when this amendment is approved). Not content in the raising oi the hobgoblins of fear they evoke the Spectre of death by contending that failure to paas this amendment will automatically terminate t.he trade relation between the Philippines ancf the United States and ·~ will be on a full f'oreip.-duty basis, which means, that the sug8l", tobacco and eoConut oil iridustries will ,be dead; so, too, will be embroideries, pearl, buttons and, 'probably, cordqoe." (See special message of Roxa!!J on the subj~t.) SYNTHESIS Boiling down these arguments to the lowest common denominator, they may· be summarized as follows:· We muat paaa this amendment signing away our national patrimony, for if we do, we hope to have money, trade and bread and plenty of them, and if we don't, we fear we will die of hunger' in ruins and in poNOVember SO, 1960 LA WYERS JOURNAL 323 verty. Indeed, a masterly appeal to our sensual instinct of aelfpreservation - the strategy of modem economiats1 Trae to form, these savants of economics, the youngest cen11t11etjon qt s.n .. cho Panzas eo engroued in their pet adage · th1tt the !lhortest wa:r to the heart is via the stomach, that the:r forgot that men and nati011S do "'.not live br bread alone but by the spirit also. "Non in solo pane vi"vi.t homo aed in omni verbo Dei," was one of the subJimeat truths enunciated by the 1reat realist - Jesus. Yet how often in this complez: materialistic age we take it with contempt! NATIONALIST'S ANSWER To this proaaic line of reaaoniftl', we anawer: (1) That our land is a saared part of the nation, t.he home of the Philippine race, whole value far transcends aatronomkat ficul'E!8 in dollan and pesos, and it must not be alienated and bartered for all· the said of a thouu.nd Samarcand and Bocara. We are more willing and ready to forego rehabilitation, if need be, and tQ suffer poverty, hunger and privatio!lll rather th•n· have the most complete rehabilitation -at the price of our natiqnal he-ritap. On this rock of 'faith the true nationalists stand. (2-) That our freedom which we laave won at tl\e price of supreme sacrifices, is only t,rue and real when its roots strike deen into our own free soil. There is no true freedom that ihrivea on alien.awned soil. So the alienation of our land to fqreignera ia the negation of our freedom. On this rock of conviction we stand. (8) Thai the true n•tionalist11 of the PhilippinmJ have "alwa:re stood, still stand and will forever stand on. the Imperishable • principle of complete .-.i absolute independence, and the nation shall nnw be satisfied until we have the reality and not the mimicry of independence. Freedom of the nation is something we ea111 not evaluate in terms of human pounds and dollars. rt ia aomethin1 of the spirit. It is something far above rehabilitation or reconst.ruetion, dearer than trade, more -valuable than induebies. Indeed, we can never permit our freeJom to be diminished or j~ pardized b:r alienating to foreign hands the land on which the nation's home, shrines and alta1'8 are built, the only land GoJ has given us. On "the rock of this trinity of faith we stand. NATIONAL LONGING Gentlemen of the Congress, on the tablet of Eternity is written our deepest longing to be a free nation, livinc' on our own free Ind, a free master of our destiny. This is the deathless dream of the Philippine race that remains unaltered t.hl'OUl'hout the surging centuries of events and changea. We must attain" and realize it, coat what it may. If to attain it we have to renounce American. aid in rehabilitation and constl'uction, if to attain it we have to forfeit our trade relations with America, if to attain it we have to forego all loans and aasiatanee we neecl ao badly, if to attain it we will ha'8" to deny ouraelYea of the comforts of life, we will decidedly and freely choose to renounce all these rather than renounce our freedom atid our land. MA.JORITY DEFEATISM v- In one Of the greatest lapses to defeatism ever recorded, the majority predicts "disaster," "economic and political eatas:trophe," "suicide and death, n if we refuse to amend the constitution which ia said to be the Me qar.c non for American aid. To me, this ia a double-barreled dander leveled against both Filipino.a and Americans. Because, how can we believe that the American people ao well known for their sense of fairneu and justice will ever deny us fqnds for rehabilitation and reconstruction of the verJ' cities, towns and induatriq destroyed. by thel11 own ~ and guns, just because we refuse to do that which th91 tbemsel:vw would never do? Who will ever doqbt for a moment that the American sense of honor will ever take baek her plighted word to reimburse our people of all expen•ea incuned to keep alive here the Reeistance Movement against Japan just becauee we do not grant them that which they would never grant &DJ' nation! b it conceivable that a puod tl'ader like UlLOle Sam will ever elose trade relation with the Filipinos who atood steadfastly and loyally by them in the direst and darkest· hour of peril, just because we refuse to do that which they themsel:na -.-ould consider a ridicul~ indjgnitJ'! I do not know what othen think, but as for me, no matter what we do with our constitution, we ean depend upon American Justice, upon .American honor, and American gratitude, to do ua and give us,. what help we deserve, amen.iment or no amendment. To me it is abaolutely unfair and unjust for the majority to repreaent thai America will help 1111 only wtien we give them our reaouree11. Rather than let our cause depend on the shifting sand a common bargain,' let us rest our case on the eternal principles of justice and the American people will gin us both - justice and rehabilitation. The insinuation is likewime a slander against the Filipino people, because nobody acquainted with the catutrophea and. calamitiea and perils our nation einale-handed and alone has IODe through an:I survived through, can and will ever believe that without America's half a billion dqllara we will p unct.-. (kid knows how deep in the abyss of distresa we had f.Uen. dqriq Lhe three years of the most bloody and the most brutal enemY oecupation. God knows the peril_ and hunger our people in the provinces survived th~ugh in that lone night of our fall. We djd survive through tlie .devaat.tinc war against 4merlea and on ita wreck and ruins, w~ did build apin our national nna.llffnce. We went throqh and aurvived through the hell of 300 revolution, against Spain aJLd each time we fell, we rose from the .t.ahea Of defeat to renew the good fight. Yes, through theu long ~ra of untold sufferinp, of teJ&rl and blood, of fire an4 floc>d. the Philippines still survives, and has gained 0in strength IPld stamina, in sturdiness and fearlessneu, giving us the fullest con.fidence and asaurance that without American aid, and loans an"d trades, and what not, We can and. v.ill survive, because God has given us a tryst with Destiny. EXECUTIVE FAITHLESSNESS "Without the helping hand thus extended to us, we cannot survive," so said the hig'heat eucutiv8 of the land. How little faith our President baa in hi1 people's capacity tQ alU'riTel A'Dd )'et no people on earth has passed throueh more bitter tests -.cl tliala and has shown more magnificent power of endurance and su1-rival than the Filipinos. We have given the moat abundant evidences of national survival, I am proud tO say. So I am convinced. from the innermost core of my heart. President Roxas notwithstanding, that there is absolutely no ground to doubt that with or without American aid, the Philippine nation shall live forevet" to fulfill its hi~h miss.ion assiped by Destiny. Why then are we afraid to SQ" NO to America in answer to a request which. she herself v.-ould ban answered NO with • mighty blow? Are you not ashamed to own independence and proc)aim sovereignty and then admit our incapacity to survive through these moments of distresi; if half a billion dollars' aid is denied us? Since when have natiO'D&l honor and dignity fallen in value lower than trade and bread? How and why should the highest interest of freedom. and patria be •laced below the pasaing intenst of econoMics? Anewer these queationa honestly, gentlemen of the majority, and your conscience and my conscience, and the conscience of our people will meet on the common ground that there shall lie no D•f•stiam. no Dieaetleriam. no economic CCltcsatropltiem in our national foreign policy. Our forellft poliey" must be founded. on the cornerstone of Faith and Confidence in ourselves ao We ea.n conunand the confidence of the world. That policy must stand pat two-fisted on the principle that our independence la abaolute and lndhiaible. The only foreign policy R&tiafaelory to our people is that which rejects outright all deals and bargains that involve as consideration our land, or our honor, or our freedom. If we must have the love and conf"tdence of the American people we WI11 not get it by stooping to indi1Ditiea; we wilt not pt it by cowering servility or fear to face and fight the dangeis in the adventu~s path of true and free nationhood. ... LA WYERS JOURNAL November SO. 1960 Let u1, thm'efore, atrikr. out a course in. foreign relations characterized with manly independence and self-reliance, Let us give notice to the wol'ld that we &l'e not afraid to suffer in a few fleeting moment.e of distress and hardships to gain an eternity of joy in freedom. LEt it be known that our uew republic is unafraid to '"be in the high seas· taking her chances with wind and wave and star; and that it is the considered determination of this nation rather to go down in glory and grandeur of the the storm than to rot in a "haven ol the economic secu.1·ity" out of foreign alms, foreip loans and :Coreign charity. SPIRITUAL RESERVOIR Gentlemen of the Congress, this is not an extemporaneous nutburst. Of an: enthusiast. It is no foamy chatte1· ol inesponsibility. [t is. the considered. opinion of thousands ol Filipinos who know that deep in the soul of our nation therfl is enough endurance and reaiatanee to conquer all sufferings and ha1-dships, there is enou1h faith and power to succeed and triumph. There lies in the soul of our nation an infinit• Spirittial Resei-voir deep and fathomless, the sum total Of all our dreams and deeds, our faith and achiev~ menta, our hopes and loves, and even our mistakeJ and mia•Jeeds - all of theaei ac:eumulated into a mi1hty force beyond human ken to measure. ' • LOVE OF NATIVE LAND First and foremost is the Filipinu's love of hia native lan:.1. This pddeas alone, if we stop to think about it, has wrought won«141rs recorded i.n the Old Testament Of our pasti and will yet ·work grander and greater mh·acles to be w1itten in the New Testllment of our independent nationhood. Take away the native land around which cluster the vines of love of a young ardenti patdot, pasa it t.o &DJ" alien . hand, be it .friendly, and there would bl" no more Lapulapu who stood like a rock in defense of Mactan, there would be no more Soliman whose heroic nationalism still lives In songs and romances and still inspires the L1J11.as and Amo1·solos, there would be no more Dagohoy whHe revolt for neariy a century write& in characters of Cold the rumred, patriotism o:i our race. Take a.Way Calambs'., Bifian, Dapitan and the emerald isJes of the Visayas from the etei'llal ioves of the hero-poet, and there would be no more Rizal who would stand on that peak of glory called Bagumbayan to proclaim unafraid before the guns and cannons of the mighty th& aspiration of his i·ace. Take away the smallest portion of this land that has been justly called the brightest pm in Orient Seas, and there wood be no more Bonlfacios, del Pilan and Quezons who would be willing to give up all that they had and all that they were for their native land. Take awqr these ·Alpine height.a of valor and heroism, called Corregidor and Bataan, and there would be no more of those thousands upon thousands of the Youth and flowei• Of our nation who hurried to their post of duty, be it death, even as the stars hasten to the east to die in the glorj- of morning light. It ia thia love of the native land that inspires the great sonp of our poeta and the immortal creation of Our artist.a. It is tha.t power which turns the wheels of industries to weave the fabric of our wealth, and makes our farma heave and awell with bounteous b&l"V81t. It is the same spirit that swells the sails of our ships which plow across the waves homeward bound laden with our wealth aud our hopes. After all, banks, eommerclal houses, institutions And nan churehe.s find their true use and meaning and derive their existence from that exhaustless spirit we call love ol our 11ative land. Alienate the object of that love and tiiere only reJD&ins darkness - death. What then, I ask, is the good of the rehabilitation and reconstruction Of the Philippines when the price we have to paJ' for it is our whole national patrimony - our native land! What does it. profit 111 to have trade, loans, reliefs, lurplus goods, and all those things that give us• the illusion of material ease a.nd comfort, when the price we pay for them is nothing Ieu than our national heritage? The question of the Master is now pertinently addressed to the Filipinos. Quid onim prodest homini si mundwn univenum lucretur; animae vere suae detrimentum patiaturt For what is a man profited, if he ahall gain the whole world and lose his own soul! LOVE OF FREEDOM In the alchemy of that Spiritual Reservoir of the nation we also find. love of freedom a potent generator of noble deeds. What olmoat incredible achievements we have attained with that magical mightl With that spiritual po-..-er we scaled and conquered the Rocky Mountain rangea of 1U1to)d hardships and sufferinp. We went through the Valley of a thous&nd deaths to prove our worth and worthiness, untill the Sun of Freedom, after a long ni1ht that seemed eternity to ilS, finally rose gloriously in our eastern akiea. At last our land is free. But, alas I if we aliente this land for alien use and expli>itation, that frJedom becomes· a mockin1 U· lusion instead of a beautiful reality. He. who controls our nat11ral i-esourcea definitely controls our economy - even our government. A surrender of our land to alien capital is a surrender of om freedom. Take away this dynamic and mystic element catted the love of freedom by alienating our native land to foreicners, and you have deprived. our people of the"lever that lifted this nation and will rat lift her to the sun-kissed pinnacles of glory. Keep it by hugging to the land that pve lta birth, and J'OU can be sure that the problems of rehabilitation, trade, national i-eeovery and others that ail our people and afear our defeatists . are eaiP.Iy un, ravelled even as the sunbeams Yanisla the clouds. Bow truly has it been said, 0 that coming from the infinite sea of the future. there will never touch this 'bank and shoal of time' a riche1 gl..ft, a rarer blesai11& than liberty for man, WOJD&1L and for child." FEARS NOT FACTS Juat one more argument and I am thl'OU8'h. The eloquent defenders of the amendment in their frantic effort to blackout the leuons of history, invoke the self-denying reconl of America here and through their chief spokesman pontificate: "I wish to emphasize again and again that all the arcuments that have been made against this provision have been based not on facts ' but on fears. I refused to be frightened by the ghost of imperialism." Brave man this. But, frankly, what impresses me more is not the Rooaeveltian anphasis but the ability to shut his efff oatrfok-ltke to the stark lessons of history and then wheedle hi:t people to balk in. a fool's pa.""adiae. But ·We must 'insist tliat onlJ" leara we have are those based on facts - historical facts. Pro1I»8Ction is poaaible only by retrospection, We see forward by lookiq backward. Foresight looks thr0ugh the glasaea of hindai&'ht. LESSONS OF HISTORY Let us be realistic- - brutally realistic if you wish, and ex.nm.Int: a ff!!W papa of recent history written in the blood and tears of the naive and the candid, just to prove our thesis by the cimpirieal way that all big capitals· whether English, American, or German are monopolistic and, therefllre, imperialistic. Did not Me.xieo in 1823 rejoice under the protection of the Monroe Doct.rine and in 1848 ceded an empire succumbing to the irresistible 11nd imperialistic might of .her protector? Doea not the dollar imperialism o.l Wall Street now control the domestic economy of Cuba, and indirectly her politics also? The very country who helped he1· in the fight for liberation now places her under economic "p1"0tective custody." All the naive and trusting countries of the Carribea.n, whfoh of them has escaped from the insatiable t·on~piscene of imperialistic capital? Let us not talk of Hawaii for that is a back number in modern geopolitics. Korea, was she not a protege of Japan in 1907 and a hostage in 1911 'l What of Persia and half a dozen principalities in Asia Minor, have thQ not first been cuddled in the protecting arms of seductive capitalism only to end finally as economic vassals? Gentlemen, 1 have no desire to t8Jl more your induicence, b;y delving too long into the gloomy but ilistruetive chambers of history. I only want to wind up by saying, Itt's stop klddinrr ourselves. Let's atop be;ng :fun.DJ' by pretending that we have the (Continued n fJ&fJ• 862) November 80, 1960 LA WYEllS JOURNAL UNITED STATES SUPREME COURT Advance Opinion ELEAZAR . SMITH, Appellant, . PEOPLE OF THE STATE OF CALIFORNIA -US-,4 L ed 2d 205, SO S C._ (No. 9) Conatit1&t'ionat L111t• ll'cc, 9255 - freedom of speech a.nd press. 1. · The liberty of the press and of speech is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. Constitu!Jioncd La.w sec. 925 - freedom of press - co~ WO'J"ks, 2. The free publication and dissemination. of books and other forms of the printed word are protected by the oonstltutional ruaranty of freedom of speech and press, irrespective of. whether the diasemination takes place under commercial auspices. Criminal Latu sec. 6 - mBM na. s .. The existence of a men's rea is the rule of, rather than the exception to, the principles of Anglo-American erimin&l juriserudence, Criminal Law sea. 8 - ,,OWer of the st1ii. - scimt.,., 4. It is competent for the states to create strict criminal Ha· bilities by defining criminal offenses without any element of scienter, though even where no freedom-of-expression question. is involved, tbi& power is not without limitationsConatituViontll La.w uc. 926 j Evidence aec. 88 i Tun aec. 142 - freedom of apeecl&. - but"Cl• Gf proof -- n-emptiona. 5. While the states generally may replate the allocation ol the burden of proof -in their court&, and it is a common proceJu1·al device to impOSts on a taxpayer the burden of proving his en-tiUement to exem.l'tiona from tazation, nevertheless, the applicalion of this device will be struclr. down b)I' the United States Supreme Court whe1-e it ·is being applied in a manner tending to cause e"vcn a aE!l1-impoaed restriction of free expression. 8tcJtaOes Ho. 88 - seperabilittl - fnefiom of BJ>6Cal.. 6. The usual doctrinea as to the separability of constitutional and unconstitutional applications of statutes do not apply where their effect ia to leave standing a e.tatute patently capable of many unconstitutional applications, threatening those who validly exerci!e their rights of free expression with the ex.pense and incc..nvenience of criminal prosecution. Con.atitutional lANJ sec:. 925 i Ststutes uo. 17 - wgu8'&88a - fre«lom of apeer.1.. 7. Stricter standard of permissible . statutory vagueneaa may be applied to a atatute having a potentially inhibiting effect 'n ap~h i a man may the less be required to aet at his peril in such a situation, because the free dissemination of ideas may be the loser. Conatitutionc.l LGto He. 925; Food. Gftd' Dnga aec. 1 - dutJf' o/ csn - fre«lom of apeec.\. S. While there is no specific eanstitutional inhibition apinat making the distributors of food the strictest censors of their merchandise by imposing upon them an absolute standard which will not hear a distributor's plea as to the amount of care he baa used, the constitntional guaranti91 of the freedom of speech an.J of the press stand in. the wq of imposi1Jc a similar requirement on a bookaelJer. I~ • .LftCl(faeaa, tJm4 068Cftitt/ He. 1 - aC'ienter. 9. Common-Jaw prosecutions for the dissemination of obseen.e matters adhere strictly to the requirement of aeienter. Evidnoe 8808. 148, 914 - howled.ge - Obacen.i,,.. 11). E:J8Wi,tneaa test.lmonJ' at · .: bookseller's perusal of a book hardly need be a necessary element in proviDC' his awareneas of its obscene contents; the circumstance. may warrant the infe1ence that he was aware of aueh contents despite hia denial. ConaOitution.al LIMO aec. 925 - f'rHd,om of speech. 11. The fundamen'll'!l freedom o>f apeech a.nd press have contributed greatly to the development and well beinl' of our free society and are indispensable to its continued growth; ceaselru vigilance is the watchword to prevent their erosion by Congress or by the states. Con.atitutionsl Law aec. 925 - /nedom of apeecA and preae. 12. The door barring federal and state intrusion into the area of f1-eedom of speech and press cannot be left ajar; it must be kept tightly closed and opened only th~ slightest crack necessary t.o .iJrevent ·encroachment upon more important interests. lndecetacu. .Lewdneas, G7td b61oenit11 sec. 1 - power of sta.te. 18. The existence of a state's power to prevent the distribution Of obscene matter does not mean that there can be no oonstl'tutional banier to aQ 'form of practical exerd8& Qf th.at pnwer. Coutitutionsl Law sec. 930 - freedom Q/ pt'saa - Weoent boob - acisn.tler. 14. A municipal ordinance which, without requtrhig scienter, makes it a criminal offense for any })er.son. to have in his possesaion an ob.scene or indecent writing or book in o. place of buai11ess where books are sold or kept for sale. has such a tendenc7 to inhibit constitutionally protected expreBSion that it cannot atand under the Federal Constitution· Pointa from Separate Opiniona Crimin.ml lsw sec. 6 - acimter. 115. The rule that acieater is nx required in prosemtiona for so-called public welfare ('fienses is a limitation on the general principle that awarene11 of what one is doing is a prerequisite for the infliction of punishment. (From separate opinion by Frankfu:rther, J.) ltMleonq, Lewtluaa nd' 06scnitJ' aec. 1 - community st1171dMde. 16. The detm:minatlon of obscenity is for juror or judge, not on the bas18 of his personal unbringing or restricted reflection or particular experleno:e of life, but o:n the baais of contempoTa?'J' oommunit;v standards. (From separate opinions by Frankfurther, ,t,, and Harlan, JJ.) Constitutional LCHCP sec· 840 - due prooeBI - evidence - o6acetrity. 17. The due process clause of the Fourteenth Amendment ia violated by exclusion. at the state trial of a bookseller for possession. of obacene books in his shop, of o:idence through duly qualified witneasea regarding the prevo.ilinc literary standards and the literary and moral criteria by "which books relevantly comparable to the book In controversy are deemed not obscene. (From separate opinion b)I' Frankfu1ther, J.) Constitutional £a.w sec. 786 - d'uei rwoceas - Mtwing. 18. Due process in its primary sense requires an opportanitJ' to be heard and to defend a substantive right. · (From separate '>pinion by Frankfurther, J.) Constitutional La.w sec. 840 - d'u• fWOd811 - evi~e - obacnity. 19. The state conviction Of a bookseller for bavinc in bia possession obscene books violates the process clause of the Fourteenth Amendment, where the trial judge turned aside every attempt by defendant to introduce evidence bearing on communitJ' standards. (From aeoarate opinion by. Harlan, J.) APPEARANCES OF COUN~EL Stanlou Fleiahiman and S11m Rosen'Wrin. argued the cause for appellant. Boga,: Arneberg arsued the cause for appellee. LAWYERS. lOURNAL N .. ember 80, 1900 OPINION OF THE COURT ldr. Justice Branan delivered the opinion of the Court. Appellant, the proprietor of a bookstore. was convicted in a California Municipal Court under a Loa Angeles City ordinance which makea it unlawf\11 "for an7 person to have in his posaession any obttene or indecent writing, (or) book , , • in &DJ' place of business where . . . books . . . are sold or kept for 1&le." The offense was defined by the Municipal Court. and by the Appellate Department of the Superior Court, which affinned the Municipal Court judgment imposing .a jail sentence on a~ pellant, as consisting solely of the posaeision, in the appellant's brokat.ore, ot a eert.ain book found upon judicial investigation to be obscene. The definition included Dl' element of scienter · - knowledge by appellant of the contents of the book - and thus the ordinance was construed as imposing a "strict" or "absolute'' 1.'Timinal liabilitj. The appellant made timely objection below that. if the ordinance were so construed it would be in conflict with the Constitution Of the United States. This contention, toiether with other contentions based o~ the Constitution, was rejected, and the a.se comes here on appeal. 28 USO see. 1267 (2) i 868 !JS 926, 3 L ed 9d 299, 79 S Ct 817. Almost 80 JQl'S ago.. Chief Justice Hughes ~ed for this Court: "It is 1IO longer open to doubt that the liberty of the prea, and of speech, is within the liberty safeguarded by the due procesa clause of the Fourteenth Amendment from invasion by 11tate action· It was found impossible to conclude that this ·eaeential personal liberty of the citizen was left unprotected by the •general guaranty Of :fwldamental richt.a of person and property. . . . " Near v Minnesota, 283 US 897, 70'7, '16 L eel 1367, 1868, 61 S Ct 626. It is too familiar for citation that such has heaD I.he doctrine of this o~ in respect of these freedoms, ever &ince. And it also requires no elabo1·ation thai the free publication and dissemination of books and other fonns of the printed wo1·d lnrnish 'V9l'J' familiar applications of these eonstitutionally protected :freedoms, It is of course no matter that the disseminatidn takes place under eommereial auspices. See Joseph· Burstyn, Ine. "· Wilson, 343 US lf96, 96 L ed 1098, 72 S Ct '1'17: Groajean ., American Press Co. 29'7 US 238, 80 L ed 660, 68 S Ct 444. OertainlJ' a retail baok seller plays a most sicnUicant role in the process of the distribution of books. California here imposed a strict or absolute criminal re&ponaibility on appellant not to have cbseene books in his shop. "The existence of a mens res is the rule of, rather than the ezception to, the principles of A11Clo-Am&riean jurisprudence." Den· nis v United State!, 841 US 494, 600., 96 L ed 118'1, 114'1, 71 S Ct 867. Still, it is doubtless competent for the "states to ereate strict criminal liabilities 1-y defining criminal offense& without a11J' element of seienter-thoagh even where no- freedom-of-expression i& involved, there is precedent in this Court that this power is r.ot without lim.itationa.' See Lambert v. California, 855 US 225, !! L ed. 228, 78 S Ct 240. But the question here 111 as to the validity of this o-rdlnanee's elimination of · the scienter requirement - an elimination which may tend to work aa substantial restriction on freedom of speech. Our deeielon famish examples of legal devices and doctrines, In most applklations consistent with the Constitution, whlch cannot be applied in settings where thQ' have the collateral effect of inhibiting the freedom of expression, ~ making the individual the more reluctant to exercise it. The States gqerall7 may regulate the allocation of the burJen of proof in their courts. and it Is a common proeedural device to impose on a taxpQer the burdtm of pl'OTing his entitlement to ex· emptions from taxation, but where we conceived that this device na being applied in a manner tending to eauae even a aelf-im.· posed restriction of free expression, we struck down its applic .. tioa. Spalarer v Randall, 36'1 US 613, 2 L ed. 1480, '18 S Ct 1882. See Near .,. Minnesota, aupra (283 US at 712, '118) •. It baa been i;tated here that the usual doctrines aa to the separability of constitutional and uncettitutional applia.tions of atatutea mQ not apply where their effect is to leave standing a statute patently capable of ma11y unconstitutional ·applications, threatening those who validlJ' exercise their rights of free n.preasion. witll lh• expense and ineonvenienee of criminal prosecution. Thornhill Alabama, 810 us 88, 97, 98, 84 L ed 1098, 1099, noo, so s ct '186. Of. Staub v. Baxley, 366 US 818, 2 L eel 802 78 S Ct 2'17. And thia Court has estimated that stricter sta:ndanls of permissible sta.. tutor;v vag11enesa may be applied to a statute havill&' potentiallJ' Inhibiting effect on speech; a man may the leaa be required to act at his peril here, because· the frtte dissemination of idea1 ma1 be the loser. Winters v New York, 388 US 60'1, 609, 610, 617, 618, 92 L ed 840, 848, 847, 860, 861, 88 S Ct 666. Very much to the point here, where the question 11 the elimination of the mental element in an offense, le this Court's holding In Wieman v Upd• tcraff, 844 US 188, 9'1 L ed 216, 73 S Ct 216. There an oath as to past freedom from membership In RUbversive organizations, ezo.cted. by a State as a qualification for public employment, was held to violate the Constitution in that it made no distinction between members who had, and those who had not, known of the organization's character. The Court said of the elimination of scienter in this context: "To th:_us inhibit individual freedom of movement is to stifle the flow of democratic expression and eon':rover17 at one of its ch\ef sources.'' Id, 844 US at 191. Those principle& guide us to om decision here. We ban held that obscene speech and writings are not prqtected ~y the ponatitut.aonal guarantees of freedom of speech and the press. Roth v United States, 364 US 4'18, 1 L eel 2cl 1498. 77 S Ct 1804. The ordinance here in question, to be sure, only imposes erimlnal saJM> tions on a bookse1ler if. there in fact ia to be found in his shop an ub!.eene book. Hut our holding in Roth doea not recognize anJ .11..a~ power to restrict the d11sem.inat.1on o.f books wh1en are .not ouseene; w.w. we r.tunk tJWi orumanc.:1ra suiet baDun.y .tea.wre wowd tenc:I ser,ously to have that euect, by penab.zmc Dookselien, even tru.ucn tney llBCl noi; the 111cnw1t notaee of t.lle ellal'aC'8!" of the buou wey &Old. Appeuee aua. ine court. below awuoglH tb.is &tne~uabJhr.y penal ol'Oluauee to .tamLl1&r forms ot pena.I stator.ea w.n1eh a1spenae with any element of kbO'\\·ledge on the part. of the p81'80A charged, food and dru1 legl8J&uOD l;Jemc a prin· ripal aainplfl. We tmd the analogy instrueQve in our ezamina.. t.ion of the question before ua. The usual rationabie for such staLutea is that . tne puohc interest in the Purity of• ita food ia so enat as to warrant the imposition of the hlpst standard of c1ue on distributors-in fact an aLJsoiute standard wbicli wll.1 noi hear the {ijs\1'1butor's plea as to th8 amount Of ~are he has used Cf. Umted. .State• v .lialant, 258 UH 26Ui, ll'.5;r;..2.li)4, 66 L ed. ti04-tiU7, '2 S Ct 801. Hia icnoranee of the character of the food is irrelevant. '!'here ia no specllie const1tuT.10nal inhibition against ma· king the distributors of food the strieteat censors of their merehanaiae, but the constitutional c11&rantees of the freedom of speech and of the press stand in the way of imposing a similar requirement of the bookselle1·. By dispensing with any requi1·ement of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to eonstitutionall)'-proteeted matter. For the bookseller is criminally liable without knowledge of the contents, and the ordinance fullfila its purpose, he will tend to i-estriet the books he sells to those he has inspected; and thus the State will have jmpoaed a restrict.ion upon the distribution of constitutionally protected as well as obscene literature. It has been observed of a statute construed as dispensing with any requirement of scienter that: "Every bookseller would bo placed under an obligation to make hilDIBl:l aware of the content.a .,, eft!'J" book in his shop. It would be altogether unreasonable tu demand ao near an approach to omniscience." The Kine ., Ewalt, 26 NZLR 709, 729 (CA). And tl\e bookseller's burden would become the public's burden, for by restricting blm. the public's aeeeas to readiq matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an in.speetlon, the, might be depleted indeed. The bookseller's limitation in the N'""""bOr 80, 1960 LAWYERS JOURNAL U7 amount Of reading material with which he could familiarize himself, and his timic:lity in the face of his absolute criminal liability, thus would tend to reatrict the public's acceu to forms of the printed word wi:Jich the State could 11ot crmstitutionally suppress dfrectly. The bookuller'a self-censorship, compelled by the State, wuuld be a cl!nsonbip affecting the whole public, hardly leas virulent for being privately administered. Through it, the di• tribution of all books, both obscene and not obacene, would be impeded. It ia argued that unless the scienter 'requirement ia dispensed with, rqulation of the distribution Of obscene material will be ineffective, as booksellers will falsey discallm knowledp. of t.heir books' cDD.tents or falsely deny reason to suspect their ·obscenity. We might observe that it bu been aome time now ainr.e the l&v.· view i~elf 815 impot<'Dt to explore the actual state of a man's mind. See Pound, the Role of the Will in Law, 68 Harv r.. Rev 1. Cf. American Ccm1municatlom1 Asso. v. Douds 33Jt US 382, 411, 94 L ed. 926, 960, 70. S ct 674. Eyewitness testimony Of a bookseller's perusal Of a book hardly need be a necesB&l'J' clement in proVing his awareness of its content.I. The cireums-t.ancea may warrant the infe1uce that: he was aware of what a book contained, despite bis denial. We need not and most definit.ely do not pass today on what sort of. mental, element is requisite to a constitutionally permisaible }JJ"OSecution of a bookseller for carryi1lg' an obscene book in st.ock:; whether honest mistake aa to wether its contents in fact consti. Luted obscenity need be an c:xcuse; whether there might be cir· • cumatances under whicll the State constitutionally might require that a bookaeller inTeS{igate further, or might put on him the burden of explainill8' why he did not. and what such circumstances might be. Doubtless any form of criminal obecenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene, but we COllaider today only one which goes ,tlJ the extent of eliminatine all mental elements from the crime. We have said:- "The fundamental freedoms Of speech and preu have contributed. greatly to the development and well-being of our free society and are indispensable to its continued ll'O'Wth. C'eaaeleas vigilance is the watchdog to prevent their erosion by Congreaa or Q the States. The door barring federal &lld st.ate Intrusion into this area cannot be left ajar; it must be kept tightlJ' cloaed and opened only the slightest crack necessary to prevent encroachment upon more iJnportant interest;.n Roth v United. Statel, supra (854 US at 488). This ordinance opens that door too far. 'l'he ~istence of the State's power to prevent the distribution ot obscene matter does not mean that there can be no constitutional barrier to any form of practical exercise ot that power, Cf. Dean Milk Co. v Madison, 3'0 US 349, 95 L ed. 829, 71 S ct 295. It is plain to us that the ordinance in question, thou.ch aimed at obscene matter, has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution. Reversed. SEPARATE OPINIONS Mr. Justice Blaolc, concurring. The appellant was sentenced to prison for possessing in his bookstore an "obscenen book in violation of a Loa Angeles cit, ordinance. I concur in the judgment holdiug that ordinance un· NDStitutional, but not for the reason given in the Court's opinion. The Court Invalid&& the ordinance solely because it penalize11 a. bookseller for mere possession of an "obscene" book, even. though he is unaware of itll obscenity. The grounds on which the Court dl'awa a constitutional distinction between a law that. punishes possession ot a book with knowledge of its "obscenity" and a law that punishes without such Jmowleclge are not ~suasive to me. Thoae grounds are that conviction of a bookseller for possession of an "obscene'' book when be is unaware of its obscenity "will tend to restrict the books be sells tC> those he has inspected," ancl thoretore "m&J' tend to work a aubstantial restriction on freedom of speech." The fact is. of t.ourse, that Prison sentences for pos· seSBion of .. obscene'' books will seriously burden freedom of the pr.esa whether punishment is imposed with or without lmowledlJ' ot the obacenity, The Court's opinion correctly points out how little extra burden will be imposed ou prosecutors by requirin1 proof that a bookseller was aware of the book's contents when he poaseasec:l it. And if the Constitution's requirement of knowledge is so easily met. the result of this case is that one particular bookseller gains his freedom; but the way is left open for staW censorship and punjshment of all other bookl"ellera by merely adding a few more words to old censorship laws. Our constitutional safegqarda for speech iand press therefore gain little. Their victory, if any, is a Pyrrhic one, Cf. Beauharnais v. Dlinois, HS US 260, 26'1, at 276, 96 L ed. 919, · 932, 936, 72 S Ct 726 (dissenting opinion), That it is apparently intended to leave the way open for both federal and state governments to abridp speech and press (tothe extent this couTt approves) is also indicated by the following statements in the Court's opinion: .. 'The door barring federal and state intrusion into this area tf1·eedom of speech and press) can-. not be left ajar; it must be kept tightly closed and openeed only the slightest crack necessary to prevent encroachment upon more important intereats.' • . • This ordinance opens that door too far.• . This statement raises a number of questions for me. What are the "more important" interests fot the protection of which constitutional freedom of speech and preaa must be l'iven second pJace? Wlaat is the Standard by which one can determine when abridgmeni of speech and press goes "too f&rn and when it ii slight enough to be constitutionally all<:>wable? Is this momentoue decision to be left to a majority of this Court on a case-by-case baai1? What ezpress provision or provisions of the Constitution put freedom of speech and p1-esa in this precarious position of SU· bordination and insecurity? Certainly the First Amendment'! language leaves no room for inference that abrigeme.nts of speech and. press ean be made just because thlJ' are slicht. That Amendment provides, in sim· pie words. .that .,Congess sball make no law , • .abridging the f1·eeclom of speech, or of the press." I read "no law abridging" to mean wo la,11,1 alwidghr.g. The First Amendment. which is the eupreme law of the land, has thus fixed. its own value on freedom of speech and press by putting these freedoms wholly "beyond lhe reach" of federal power to abridge, No other provision of the CC>Datitution purport• to dilute the scope of these unequivocal com· mands of the Firat Amendment. Consequently, I do not belieft that &DJ' federal sgenciea, including Congress and this Court, have power or authority to subordinate speech and press to what they think are 11more important interests." The contrary notion la, in my judgment, court.made not Constitution-made. State intrusion or abridl!llellt ot freedom of speech and of press raises a different question, since the First Amendment by ita terms refers only to law passed by Congress. But I adhere Lo our prior decisions hotdfug that the Fourteenth Amendment made the first applicable to the States. See cases collected in the. concurring op;nion in Speiser v Randall a&7 US 618, 630, 2 L ed. 1460, 1476, 7 S Ct 1382. It follows that I am for reversing this case because I believe that the Los Angeles ordina"Dce sets up a censorship in Tiolation of the First and Fourteenth Amendment&. If, as it seems, we are on the way to national censorship, l think it timely to sunest again that there are grave doubts in my mind as to the desirability on constitutionnality of this Court's becoming a Supreme Board of Censors, - readtng books and viewinl' television rertormanllils to deterniine whether, if permitted, they misht advenely affect the moral of the people throughout the 1119nJ divesified local communities in this vast country. It is true that the ordinance here is on its face only applicable to obscene oz indecent writing.'' It Is also true that this particular 828 LAWYERS lOURNAL November SO, 1980 kind of censorship is considered by many to be "the obnoxious thing in its mildest and least repulsive form. . • . " But "illegitimate an.d unconstitutional practices get their first footing in that way. . . . It is the duty of the couits to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v United States, 116 US 616, 635, 29 L ed. 746, 752, G S Ct 524. While it is "obscenity and inde-cency" before us today, the experience of mankind - both ancient and modern - shows that this type of elastic phrase can, and most likely will, be synonymous with the po1itical, and maybe with the religious unorthodoxy of tomorrow. • Censorship is the deadly enemy of freedom and progress. The plain language of the Constitution forbids it. I protest against the judiciary giving it a foothold here. Mr. Justice Frankfu1·ther, concurring. The appella~t was convicted for violating the city ordinance of Los Angeles prohibiting possession of obscene books in a ,bookshop. His conviction was affirmed by the highest court of California to which he couia appeal and it is the judgment of that court that we are asked to reverse. Appellant claims three grounds of invalidity under the Due Process Clause of the Fourteenth Amendment, He urges the invalidity of the ordinance as an abridgment of the freedom of speech which the guarantee of "liberty" of the Fourteenth Amendment safeguards against state action, and this for the- reason that California law holds a bookseller criminally liable for possessing an obscene book wholly apart from any scieil.ter on his part regarding the book's obscenity. The second consti. tutional infirmity urged' by appellant is the exclusion of appropriately offered testimo-ny through duty qualified -witnesses regarding the prevailing literary standards and the literary and moral criteria by which books relevantly comparable to the book in controversy are deemed not obscene. This exclusion deprived the appellant, such is the claim, of important relevant testimony bearing on the issue of obscenity and therefore restricted him in making his defense. The appellant's ultimate contention is th&t the questioned book is not obscene and that a bookseller's possession of it could noi be forbidden. The Court does not reaeh, and neither do I, the issue of obscenity. The Court disposes of the case exclusively by sustaining the appellan't claim that the "liberty'' protected by the Due Process Clause of the Fourteenth Amendment precludes a State from making the dissemination of obscene books an offense merely because a book in a bookshop is found to be obscene without some proof of the bookseller's knowledge touching the obscenity Of its contents. The Court accepts the settled principle of constitutional law that traffic in obscene literature may be outlawed as a crime. But it holds that one cannot be made amenable to such criminal outlawry wtless he is ch11-rgeable with knowledge of the obscenity. Obviously the Court is not holding that a bookseller must familiarize himself with the contents of every book, in his shop. No less obviously, the Court does not hold that a bookseller who insulates himself against knowledge about an offending book is thereby free to maintain an emporium for smut. How much or how little awareness that a book may be found to be obscene suffices to establish scienter, or what kind of evidence may satisfy the how much or the how little, the Court leaves for another day. I am no friend of deciding a case beyond what the immediate controversy requires, particularly when the limits of constitutional power are at stake. On the other hand, a case before this Court is not just a case. Inevitably its disposition carries implications and gives directions beyond its particular facts. Were the Court holding that this kind of prosecution for obscenity requires proof of the guilty mind associated with the concept of crimes deemed infamous, that would be that and no further e'Iucidation would be neiided. But if the requirement of scienter in obscenity cases plays a role different from the normal role of men's res in the definition of crime, a different problem confronts the Court. If, as I assume, the requirement of scienter in an obscenity prosecution like the one before us does not mean that the bookseller must have read the book or substantially know its contents on the one hand, nor on the other that he can exculpate himself by studious avoidance of knowledge about its contents, then, I submit, invalidating an obscenity statute because a State dispenses altogether with the requirement of scienter does require some indication of the scope and quality of scienter that is required. It ought at least to be made clear, and. not left for future litigation, that the Court's decision in its practical effect is not intended to nullify the conceded power of the State to prohibit booksellers from trafficking in obscene literature. Of course there is an important difference in the scope of the power of a State to regulate what feeds the belly and what feeds the brain. The doctrine of the United States v Balint, 258 US 250, 65 L ed. 604, 42 S Ct 301, has its appropriate limits. The rule that scienter is not required in prosecutions fo1· so-called public welfartl offenses is a limitation on the general principle that. awareness of what one is doing is a prerequisite for the infliction of punishment. See Morissette v United States, 342 US 246, 96 L ed 288, 2S Ct 240. Th~ balance that is struck between this vital principle and the overriding public menace inherent in the trafficking of noxious· food and drugs cannot be carried over in balancing the vital role of free speech as against society's interest in dealing with pornography. On the other hand, .the constitutional protection of non-obscene speech cannot absorb the constitutional power of the States to deal with obscenity. It would certainly wrong them to attribute to Jefferson or Madison: a doctrine absolutism that would bar legal restriction against obscenity as a denial of free speech. We have not yet been told that all laws against defamation and against inciting crime by speech, see Fox v Washingt.on, 236 US 273, 59 L ed 578, 85 S ct 883 (1915), are unconstitutional as impermissible curbs upon unrestricable utterance. We know this was not Jefferson's view, any more than ft was the view of Holmes and Brandeis, JJ., the originating architects of our prevailing constitutional law pl'Ootective of freedom of speech. Accordingly, the proof of scienter that is required to make prosecutions for obscenity constitutional cannot be of a nature to nullify for all practical purposes the power of the State to deal with obscenity. Out of regard for "the St8.te's int'erest, the Court suggests an unguiding, vague standard for establishing "awareness" by the bookseller of the contents of a challenged book in contradiction of disclaimer of knowledge of its contents. A bookseller may, of cou1'Se, be well aware of the nature of a book and its appeal without having opened its cover, or, in any true sense, having knowledge of the book. As a practical matter therefore the exercise of the constitutional right of a State to regulate obscenity will carry with it some hazard to the dissemination by a beiokseller of non-obscene literature. Such difficulties or hazards are inherent in many domains of the law for the simple reason that law cannot avai1 itself of factors ascertained quantitatively or even wholly impersonally. The uncertainties pertaining to the scope of scienter requisite for an obscenity prosecution and the speculative proof that the issue is likely to entail, are considerations that reinforce the right of one charged with obscenity-a right implicit in the very nature of the legal concept of obscenity-to enlighten the judgment of the tribunal, be it the jury or as in this case the judge, regarding the prevailing literary and moral community standard! and to do so through qualified experts. It is immaterial whether the basis of the exclusion of such testimony is irrelevance, o:r the incompetence of experts to testify to such matters. The two reasons coalsece, for community standards or the psychological or physiological consequences of questioned literature can as a matter of fact hardly be established except through experts. Therefore, to exclude such expert testimony is in Effect 'to exclude as irrelevant evidence that goes to the constitutional safeguards of due November 80, 1960 LAWYERS JOURNAL ••• process. The detemrlnation of obacenity no doubt rests with judge or jucy. Of course the teltimoDJ' of a.perts would not displace judge or jury in determining the ultimah question whether the particular book is obscene, any more than experts testifring to the state of the.. art in patent suits .determine the patentabilir of a controverted Ct.'evice. There is no external mea~uring rod of obscenity. Neither, on t11e other hand, la Its rucertainment a merelr subjective reflection of the taste or moral outlook of individual jurors or individual Judges. Since the law th1'0ugh it.a functionaries is 11appl)'i.ng contfmporary communit)' standards" in determining what constitutes obscenitr, Roth v. United States, 364 US 476, 489, 1 L ed: 2d 1498, 1909, '1'1 S Ct 1804, it surely must be deemed rational, and therefore releva'nt to the issue of obscenitr, to allow light to be shed on. what those 11cont"emporary communit7 standards" are. Their interpretation ought not to depend solely on the necessaril1 limited, hitor-mi!!s, subjective view of what, they &re believed to be bj the individual juror or judge. It bears rep<!tition that the determination of otacenity is for juror or judge not on the basis of his personal upbringing or restricted reflection or particular experience of life, but on the basis of 11eontemporarry eomm;unity stalld.ards." Can it be doubted that there is a creat difference in what is to be deemed obscf!ne in 1959 compared with what was deemed obscene in 1859. The difference deTives from a shift in community feelinir regarding what is to be deemed prurient or bot pru1·ient by reason of the efffects attributable to this or that par•tieular writing. Changee in the intellectual and moral climate of aoc:ety, in part doubtlesa due to the views and fndinga of spectaliat.s, afford shifting foundatillllUI for the attribution. What may well have been consonant "with mid-Victorian morals, does not seem to me to answer to the underataziding and morality al the present time." United States y Keml.erley CDC NY) 209 F 119, 120. This was the view of Judge Learned Hand decades ago reflecting an atmosphere of propriety much closer to mid-Victori4n dan than is ours. Unless we disbelieve that the literary Pll'· chological or moral 0standards al a community can be made fruitful and illuminating subjecta of i:Dquil'J'" by those who give their life to such inquiries, it was viola~ive of "due process .. , to exclude the eonstitutional17 relevant evidence proffered in this ease. The 1m.p0rtance Of this tne of nidenee in prosecutions for obscenity has been im.preuively attested by the recent debates in the House of Commons dealing with the insertion of sueb a prov1· aion in the enactment of the Obscene Publications Act, 1959, 7 &: 8 Eliz 2, Ch 66 (see 597 Parliamentary Debates, H Comm, cols 1009, 1010, 11>42, 1043 i 604 Parliamentary Debates, R Comm, No. 100 (April 24, 1969), col 808), aa well aa by the most considered thinking on this subject in the proposed Model Penal Code of the American Law In8titute. See ALI Model Penal Code, Tentative Draft No. 6 (1917), sec. 207.10. F~r the reasons I have indicated I would make the richt to introduce such evidence a r&quirement of due process in obacenity prosecutions. :U:r. Juatlee Douglas, eoneurrinc. I need not repeat here all I said in my dissent in Ro~h v. United States, 364 US 476, 608, 1 L ed 2nd 1498, 1580, 77 S Ct 1304, tn underline IDJ' conviction that neither this book nor its author or distributor can be punished. under our Bill of Rights for publishing or distributing it. The notion that obscene publications or utterances were not included in free speech developed in this country much later than the adoption of the Fir.st Amendment, as the j11dieial and leeislative developments in this eoun.try 1how. Our leading authorities on the subject have swnmar.ized the matter as follows: "In the United States before the Civil War there were few n-ported decisions invol'9inc obscene literature. Thfs of course is no indication that such lit.eratare was not in eirculatlon. at that time; the persistence f1f pornograph)" is entirrely too stronc to warrant such an inference. Nor ia it an indication that the people of the time were totally indifferent to the proprieties of· the lit.erature they read, In 1851 Nathaniel Hawthorne's The Sorwi.e LUr t6t' was bitterly attacked as an Imm.oral book that degraded literature and encouraged social licentiouSJ1es1. The lack of eases merely means that the problem of obscene literature wa& not tbouch.t to be of sufficient importance to justify arousing the forces of the etate to censorship.'' Lockhart and McClure, Literature, The Law of Obscenif.7, and the Constitution, 88 Minn L ReV' 295, 324, 826. Neither we nor legislatures have power, as I see it, to weigh the values of speech or utterance against silence. The only grounds for suppressinl' this book are very narrow. I have read it; and while it is repulsive to me, its publication or distribution can be constitutionally punialied only on a showina- not attempted here. lfy view was stated in the Roth Case, 354 US at 514: "Freedom of expression can be suppressed if, and to the extent that, it ia ao eloaely brigaded with illegal action as to be an inseparable part of it. Giboney- v Empire Storage Co., 886 US 490, 498i Labor Board v Virginia Power Co., 314 US '69, 4!1"1, 478. As a people, we ea1',Mt afford to relax that standard. For the test that suppreBSel a cheap tract today can suppress a literary gem tomorrow. All it need do is to incite a lasciviousneu thought or arouse a lustful desire. The list of books that judPI Or juries can place in that category la endless.'' Yet my view is in the minority; and rather fluid tests of obscenity prevail which require judges to read condemned literatnre and pass judgment on it. Thia rote of censor in which we find ounelvea is not an edifyilll' one. But since by. the prevailine school of thought we must perform it, I see no harm, and perhapa some pod, in the rule fashioned by the Court which ~ quires a showing of sclenter. For It recognizes implicitly that these First Amendment rights, by reason of the strict command in that Amendment-a command that ea.niea over to the States by reason of the Due Process Clause of the Fourteenth Amendment.are preferred rights. What tbe Court does today may possibl7 provide 90me small degree of safeguard to booksellers by making those who patrol bookstalls proceed less high-handedly than has been their custom. Mr. Justice H111rla:11, concurring in part and dissentinl' in part. The striking down of local lel"islation la al.wan serio11S business for this Court. In my opinion in the Roth Case, 864 US at &03-6CB, I a.pressed the view that state power in the obseenit7 field bas a wider scope than federal power. The q11estion whether acien.ter is a constitutionally req11ired element in a criminal obscenity statute ia intimately related to the constitutional scope of the power to bar material as obscene, for the impact of such a requirement on effective proncution may be one thing where the scope of the power to prescribe is broad and quite another where the scope ia narrow. Proof of scientor may entail no gra.t burden in the ease of obviously obscene material; it may, however, become vecy' difficult where the character of the material is more debatable. In my view then, the scienter qusation involves considerations of a different order depend.in& .on whether a state or a federal statute is involved. We have here a state ordinance, and on the meagre data before us I would not reach the question whether the absence of a sclenter element renders the ordinance unconstitutional. I must say, however, that the generalitiea in the Court's opinion striking down the ordinance leave me unconvinced. From the point of view of the free dissemination of constitutionally protected ideas, the Court invalidates the ordinance on tli.e 1T011nd that its .effect may- b8 to induce bookseJlen to restrict their offerings of non-obscene literary lnerchandize tho11gh fear of prosecution for un.wittingl7 havinl' on theit shelves an obscene publication. From. the point of view of the State's interest in p~ (Continu«l tuia:t page) 380 LAWYERS IOURNAL November 80, 1960 U. S. SUPREME COURT ••• (Continued from. page 380) tectinl' ita citizens against the dissemination of obscene material, the Court in effect saya that proving the state of a man's mind 11 little more difficult than proving the date of his digestion, but also intima,!;el that a relaxed .standard of mens 1·ea "W"Ould eatisfy constituttonal requirements. This is fo1· me too roush a balancing of the competing interests at stake. Such a balancing is' unavoidably required in. this kind of constitutional adjudication, notwithstanding that it arises in the domain of liberty of speech and preas. A mol'e critical app1·aisal of both sides of the eonstitutional balance, not possible on the meager matel'ial before us, eeems to me required. before the ordinance can be stl•uck down on this ground. For, as the concurring opinions of my Brothers Black' and Fran~furtet show, the conclusion that this ordinance but :not one embodying aome element of scienter, is likely to restrict the dissemination of legitimate literature seems more dialeptical than real. I am alao not persuaded that the ordinance in question was unconstitutionally applied in this instance merely because of the state court's refusal to admit expert te11timony. I ag1-ee. with my Brother Frankf\lrter that the trier of an obscenity caae must take into account "contemporary community standards," Roth v United Statea, 354 US 476, 489, I L cd 2d 1498, 1609, '1'1 S . Ct 1804. This means that,. reprdless of the elements of the offense under state law, the Fourteenth Amendment does not permit a -conviction such as was Obtained here unless the work complained ef is found substantially to exceed the limits of candor set by contemporary community standards. The eomm.unjt:r cannot. where liberty of speeeh and pres• are at issue; condemn that which it generally tolerates. This being so it :£ullows that due proee1& - '•using that term in its primary !IC!nse or an opportunity to be heard and to depend (a) ••• substantive richt, n Brinkerhoff-1',aria Trust 1l Sav. Co. v Bill, 281 US 6'18, 678, '14 L ed. 110'1, 1112 60 S Ct 451 - requires a State to 0allow s liti1ant in some manner to introduce proof on thi• 1COre. While a State is not debar1-ect from regardinc the trier of fact as the embodiment of community standards, competell.t to judp a challenged work against thOle standard.I, it is not privileged to rebuff all effo11.s tu enlighten 01• persuade the trier. However, I would not hold that any particular kind of evidence must be admitted., specifically, that the Constitution requires that oi·al opinion testimony by experts be heard, There are othel' waya in which proof ean be made, as this very case demonstrates. Appellant attempted to compare the contents of the work with that of other allegedly pimilar publications which were openly published, aold and purchased, and which r~ceived wide general acceptance. Where the1'8 1a a variety of means, •ven though it may be considered that expert testimony ia the most convenient and practicable method of proof, I think it is going to f&r to say that such a. method is constitutionally compelled, and that a State may not conclude, for reason.a .responsive to its t1·aditional doctrinee of evidence law, that the issue of community standards may not be the subject of expert testimony. I know of no case where this Court, on constitutional gJ:ounds, has required a State to samtion a particular mode of proof. In my opinion this conviction is fatally defeative in that the trial judge, as I read the record, turned aside ewl"JI attempt by appellant to introdUC8 evidence bearing on community standards. The exelusicmary rulings were not limited to offefed expeit testimony. Thia had the effect of depriving appellant of the oppol'tuaity to offer any proof on a eonst.i.iutionally relevant issue. On this sroll'Dd I would revene the judpient below, and remand the case· for a new trial. ACCUSED MAY REMAIN AT LIBERTY UNDER ORIGINAL BOND AFTER CONVICTION AND DURING APPEAL In a preceden't-provoking decision, Judge Jesus P. Morfe of the Court of First Instance of Linpyen, Panpsinan recently ruled that an accused may continue to remain at liberty under hl.s original ball bond after the rendition of judgment of conviction aad duriq the period of" appeal, In its effect, Judge Morfe's ruling departs from the standard judicial -practice of placinl' the accused into the custody of tha law immediately after the reading of the judgment of conviction to him, UDleu then and there he appeals the decisiori and files a new bail bond for his provisional release durine the pendency of the appeal. · Judge Morfe made the ruling in a criminal ease fo1· estafa (People of the Phil. vs. Floro.C. Garcia and Alfredo R. Balqtas, Crim. Cue No. No. 91267) followinl' the oral manifestation of the coUllHl for the two accused the~ of their intention to file a motion for reconaideration of the decision of conviction that was read in open court to the ac~used, accompanied wi~ the vei·bal motion that in the meantime the accused be allowed to remai_n at liberty ~nder their 01i1inal bail bond. In cranting said ve1·bal motion of the accuaed, Judp Morfe reasoned. out that "to send an accused. to jail for custody within the reglement&l·y fif~ day period within which he can appeal the decision p1"0vided in Section 6 of Rule 118 will be tantamount to making him serve the sentence before it becomes executory". But an accused, Judge M.orfe pointed out,. cannot be so committed "unless he waives in writing his right to appeal and forthwith surrenden hinwelf for the e:icecution of the sentence imposed on hlm. or his bondsman surrenders him to the Court before the lapse of the period to appeal." He also pointed out that as the bondsman of the accused did not appear at the i-eading of the judgment of conviction and did not surrender the accused to the court pursuant to' aec. 16° (a) of Rule 110, "the bondsman will contiaue under the obligation of its bail to see to it that the aecused appear before the court after the fifteen-.d.ay period mentioned in section 6, Rule 118 if the accused neither perfect his appeal during aaid period nor voluntarily surrender himself to the court for execution of its decision." Judp Morfe also said that the term ''conviction" contemplated in See 4, Rule 110 which &'ives rise to the ineffectivity of the ol'iginal bail bond and the detention of the accused after the reading of the judgment of conviction, is a "conviction." that has become ripe for execution bf virtae of the lapse of the fifteendq period provided in sec. 6 of Rule 110. Thia conclusion finds support in Sec. 1 of Rule 118, which provides that 'ham all /ioo.l ;11dgment• of the Court of First Instance or cou1·ts of similar jurisdiction, and in all eases In which the law now providu for appeal• from said courts, an appeal may be taken to the Court of Appeals or to the Supreme Cou1·t as hereinafter preselibed.' The use of the term 'final judgment' in sec. 1 of Rule 118 implies that the juclament therein contemplated is one that has become 1·ipe for execution by reason of the lapee of the fifteen-day period provided in sec. 6 of the Rule 118. Consequently, a convicted accused must begin to sei-ve his sentence on the 18th day following p1·0mul1ation of judgment, un.leu he perfect hi& appeal before the close· of office hours of the lfith day." Ni>vember 30, 1960 LAWYERS JOURNAL 331 I SUPREME COURT DECISIONS I S.,.,,W Oemeiia. Jr., Petitioner vs. SmliplJfla K. Penda.tw&, flt ed., 6& ·UNW ~ .. t1Mmbmr of A\., BJMOial Cottllltitie. erMUcl llJI' HOK88 Resolwtion No. SI, R~, '{}.R. No. L-111.U, Odo· &er 11, J.960, Bengsoni. Z. 1. CONSTITUTIONAL LAW; PARLIAMENTARY IMMUNITY; SECTION 16, ARTICLE VI OF CONSTITUTION CONS~RUED. - The provfaton of Section 15, Article VI of the Philippine Constitution which pl'ovidea that "for any speech or debate" In Congreaa. the Senatora or members of the House Rf Bep~tati,Vea "&hall not be questioned in any .other place,.. which ~ ia a copy of Sec. 6, Clause I of Art. 1 of the Constitution of the United States, baa been understood in the United States to mean that although exempt from proaecution or eivil aetf.one for their words uttered in Congress, tempts to divest him of his immunity so acquil'ed and subject him to diecipline and punishment, when he was previously not so subject_ violatei the cqnltitutional inhibition again1t •s poad fru:to lerrialations and Reaolutions·Noa. lii9 and 1'16 ar3 legally obnoxious and invalid. 9. ID.; EX POST FACTO LAW. - The rule is well established that a law which deprivea an accused person of any substantial right or immunity possessed by him befOre its passage is n: poBt} faoto as to prior offenses. 10. ID.; LIMITATION ON THE RIGHT OF THE HOUSE OF REPRESENTATIVES TO AMEND ITS RULES. - The l"ighta of the House to amend its 11Jlea does not ear1-y "\\ith it tbe right to retroactively divest its members thereof of an immunity he had already acquired. The Bill of Right& is apinst it. the Members of Congress may, nevertheleea, be ctue"stioned in 11. Congress itself. ID. ; SUSPENSION' OF PRIVILEGES VIOLATIVE OF CONSTITUTIONAL PROVISION AGAINST EX POST FACTO LEGISLATION. - In the case at bar, while petitioner was only meted. out a suspension '>f privileges, that suspension ia aa much a penalty as impri10Dment or a fine, which punitive action ia vlolatlTe of the spirit if Dot of the Jett.er, of t:he constitutional pro'fision against llilf. 1'0l't faoto legislation, 2 .. ID.; ID. - Parliamentary immunity guarantees the legislator complete freedom of expression without fear of being made responsible in criminal or civil actions before the courts or any other forum outside the Congreasional Hall but it does not protect him :troD.. responsibility before the lecialative body i&lelf whenner his words and conduct are considered by the latter disorderly or unbecoming a member thereof. S. ID.; ID. EXTENT OF PUNISHMENT OF MEMBERS OF CONGRESS FOR UNPARL1AMENTARY CONDUCT. - Kemben of Colll'l'UI could be censured, committed to prison, s111pended. or even upelled by the TOte1 of their eolle&l'lMll for unparliamentary eouduet. 4. ID.; PARLIAMENTARY RULES MAY BE DISREGARDED BY LEGISLATIVE BODY. - Parliamentary rules are merely procedural and may be disregarded by the legislative body and, therefore, failure to conform to said rula will not innlid8.te the 'action of a deliberative body when the requisite number of members have aereed to a particular measure. &. ID.; DISORDERLY BEHAVIOR; CONGRESS THE BEST JUDGE OF WHAT CONSTITUTES DISORDERLY BERAV· IOR. - In the ease at bar, the House of Representatives is the judge of what constitutes disorderly behavior, not only because the Constitution has conferred jurisdiction upon it, hut also because the matter depends mainly an factual circumstanc:ea of which the House knows best but which cannot be depicted lri black and white for presentation to and adjudication by the Courts. 6. ID.; POWER OF LEGISLATIVE BODY TC EXPEL A MEMBER. - Every legislative body in which is veated the general leglalatin power of the state baa the implied power to expel a member fo.r any cause it may deem sufficient, even in the abaence ·of an expre11 provision expressly conferring said power. 'I. ID. ; ID. - The power of the legillative body to expel a member thereof is inherent and courts are forbidden to direct or control said body in the exercise of said powe?". REYES, J.B.L .. J., diaunti.ng: 8. ID.; EX POST FACTO LEGISLATION; VALIDITY OF RESOLUTIONS NOS. 69 Mid 1'16. - In the case at bar, petitioner had delivered his speech and before1t1iie House adopted, fifteen days later, Resolution No. 59, the House had acted on other matter& and debated them nd, therefo1-e, petitioner had ceased to be answerable for the worda utteNd by him in his privile~ speech. Resolution No. 59, insofar as It: at12. ID, ; PURPOSE OF IMMUNITY PROVIDED BY THE KO USE RULES. - The plain purpose of the. immunity provided by the House Rules ia to protect the :freedom of action of ltll members and. to relieve them from the fear of diaciplinary action taken upon second thoucht. &1 a result of political convenience, Tindictiwn.esa or pressures. 13. ID.; POWER OF SUPREME COURT ·ro DECLARE UNCONSTITUTIONAL THE QUESTIONED RESOLUTIONS. - In the ease at bar, the faci that the Supreme Court poneases no power to direct or compel the Legislature to act in any special manner, should not deter it from recognizing and deClarlng the unconstitutionality. ·and 11ullity of the qumtioned reaolutions an.ct all actions taken in pursuance thereof. LABRADOR, A., J., diasm'°"': 1,, ID.; RULE LIMITING PERIOD FOR IMPOSITION OF PENALTY FOR A SPEECH TO THE DAY IT WAS MADE NOT MERELY A RULE OF PROCEDURE. -The rul~ limltiDI' the period for impoeition of a penalty for a speech to the day it wa• made, is not merelJ' a rule of procedure but a limitation of the time in which the ROUie may take punitive action agalnat an offending member. In reference to time, it i.s a limitation OIL the liability to punishment. 16. ID.; DUTY OF SUfREME COURT TO PRONOUNCE .WHAT THE LAW IS. - The Supreme Court should not interfere with the lecislature in the manner it performs ita functions, but it: can not abiandon ita duty to pronounce what the law ia wh• it is invoked by the members: of ConlHllS or 8JQ" humble citizen. DECISION On July 14, 1960, Congressman Sergio Oamefta, Jr., submitted to this Court a verified petition for "declaratory relief, certiorari and prohibition with preliminary injunction" against Congre.uma.n Sallpada K. Pendatun and fou1·teen o~r congressmen in their capacity aa n:.embe1·a of the Speclal Committee created by Houae Resolution No. 69. He asked for annulment of such Resol\ltion on the ground of infringement of his parliamentaey lmm11nity; he also asked, principally, that 'said members of the specfal committee be tllljollled. from p1'0C84!dln;g in accordaue 832 l.AWYERS JOURNAL NOftmber 30, 1960 with it, particularly the portion authorizing them to require him to substantiate his charges agains the President, with the admonition that if he failed to do so, he must show cause why the Houso should not punish him. The petition attached a copy of House Resolution No. 59, the pC>rtinent portion. of which read as follows: "WHEREAS, on the 23rd day of June, 1960, the Honorable Sergio Osmeiia, Jr., Member of the House of Representatives from the Second District of the prov'ince of Cebu, took the floor of this Chamber on the one hour privilege to deliver a speech, entitled "A Message to Gar-cia"; WHEREAS, in the course of said speech, the Congnssman from the Second District of Cebu stated the following: xx xx "'i'he people,. Mr. President, have been hearing of ugly reports that under your unpopular administration the free things they used to get from the government are now for sale at premium prices. They say that even pardons are for sale, and that ~ar.d less of the gravity and Seriousness of a criminal case, the culprit can always he bailed out fonver from jail as long as he can come across with a handsome dole. I am afraid, such an anomall•us situation would reflect badly on the kind of justice that your ndministration is dispensing. x x x x District of Cebu, if made maliciously or recklessly and without La.sis in truth and in fact, would constitute a serious assault WHEREAS, the charges of the gentleman from the Sec~nd U!'.lon the dignity and prestige of the Office of the President, ·which is the one visible 'Symbol of the sovereignty of the Filipino people and would expose said office to contempt and disrepute: xx xx Resolved. by tke House of Ropresentati11e~ that a special ecmmittee of fifteen Members to be appointed by the Speake1· be and the same hereby i.s, created to investigate the truth oI the charges against the President of the Philippines made by Hon· orable Sergio Osmeiia, Jr., in his privilege speech of June 23, 196(), and for such· purpose it is authorized to summon Honornble Sergio Osmeiia Jr., to appear before it to substantiate his charges as well as to issue subpoena. and/or subpoena. duceB tecum to require the attendance of witnesses and/or the produ.ztion of pertinent papers before it, and if Honorable Sergio Osmeiia Jr .. fails to do so to require him to show cause why he should not be punished by the House. The special committee shall submit tu the House a report of it.s findings and recommendations before the adjournment of the preseut special session of the Con~"J'ess of the Philippines." In support of his request, Congressman Osmeiia alleged: first., the Resolution violated his constitutional absolute parliamentary immunity for speeches delivered in the House; second, his words constituted no actionable conduct; and third, after his allegeJly t.bjeetionable speech and words, the House took up other business, and Rule XVII, sec. 7 of the Rules of the· House provides that if other business had intervened after the Member had uttered obnoxious words in debate, he skal.l not be held to ansW"er therefor nor be subject to censure by the House, Although some. members Of the cowt expressed doubts of pC'titioner's cause of action and the Court's jurisdiction, the majority decided to hear the matter further, and required respondents to answer, without issuing any preliminary injunction. Evidently aware of such circumstance with its implications, and presed for time in view of the imminent adjournment of the legislative session, the special committee continued to perform its task and after giving Congressman Osmeiia a chance to defend himself, submitted its report on J1d11 18, 196-0-, finding said congressman guilty of serious disorderly behaviour; an~ acting on such report, the House approved on the same day-before closing its sessions-House Resolution No. 175, declaring him guilty as recC1mmended and suspending him from office for fifteen months. Thereafter on July 19, 1960, the respondents (with the exception of Congressman De Pio, Abeleda, -San And1·es Ziga, Fernande~ and Baltao1 filed their answers, challenged the jurisdiction cif this Court to entertain the petition, defended the power of Congre~s to discipline its. members with suspension, upheld House Resolut1on No. 175 and then invited attention to the fact that Congress having ended its session on July 18, 1960, the Commit:e e:ds~hose members are the sole respondents-had thereby ceased There. is no question that ·congr~sman Osmeiia, in a privilege speec~ debvered before the House, made the serious imputations of bribery against the President which are quoted in Resolution No. 59, and that he refused to produce before the House Committee created fo-r the purpose, evidence to substantiate su.ch jJD~utatio~s. There is also no question that for having made the m1putations snd for failing to produce evidence in support thereof, he was, by resolution of the House, suspended from offiee for a period of fifteen months, for serious disorderly behaviour. Resolution No. 176 states in part: "WHEREAS, the Special Committee created under and by virtue of Resolution No. 59. adopted on July s, 1960, found Representative Sergio Osmeiia, Jr., guilty of serious disorderly b~haviour ~o~ maki.ng without basis in truth and in fact, scurnlous, mahc1ous, reckless and irresponsible charges against the President of the Philippines in his privilege speech on June 23, 1960.; and · · WHEREAS, the said charges are so vile in character that they affronted and degraded, the dignity of the Bouse of Representatives: Now, Thel'Cfore, be it RESOLVED by the House of Representatives, that Representative Sergio Osmeiia Jr., be. as he henby is, declared guilty of serious disorderly behaviour: and x x x x." As previously stated Osmeiia 4!ontended in his petition that: (1) the Constitution gave him complete parliamentary immunity, r.11d so, for words spoken in the House, he ought not to be questi<'D.ed: (2) that his speech constituted no disorderly behaviour for which he could be punished: and (3) supposing he could be questioned and disciplined therefore, the House had lost the power to do so because it had taken up other business before approving House Resolution No. 69. Now, he takes the additional position ( 4) that the ~ouse Jias no. power, lmder the Constitution, to suspend one of· its members. Section 15 of Article VI of our Constitution provides that "for any speech or debate'' in Congress, the Senators or Members of the House of Representatives "shall not be questioned in any other place." This section was taken or is a .copy of sec. 6 clause 1 of Art. 1 of the Constitution of the United States, In that country, the provision has always been understood to mean that although exempt from prosecution or civil actions for their words uttered in Congress. the members of Congress may neV'ertheless, be questioned in. Congress itself. Observe that "th~y shall not be questioned in any other place" than Congress. Furthermore, the Rules of the House which petitioner himself bas invoked (Rule XVII, .sec~ 7), recognized the House's power to hold a member responsible "for words spoken in debate.'' Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in every legislative assembly oi the democratic world. As old as the English Parliament, its purpose "is to enable and encourage a representative of the public to discharge his public trust with firmness and success" for if? "is indispensably necessary that be should enjoy the fulleat liberty of speech, and that he should be protected from the resent1nent of every one, however powerful, to whom the exercise of that liberty may occasion offense."2 Such immunity has come to this country from the practices of Parliament as construed and applied by the Congress of the United S~tes. Its extent and ap( 1) These, except Congessman Abeleda, share the views of petitioner. (2) Terry v. Brandhowe, 341 U.S. 867. November 30, 1960 LAWYERS JOURNAr.: 338 plication remain no Ioncer in doubt in so far as related to the queation before us. It pa1·anteea the legislator comple~ freedom of expression without fear of being made responsible in criminal or ci'ril actions before the courts or &nJ' other forum outside of the Conpeesional Hall. But "'it does ftOt protect htm from "'"l'onsUlili't1/ be/ortJ the legialstive bod'll itaelf wl&never h.iB words a.nd conduct a;re considered by tU latt.r dieowlet"lfl o,. unbecoming a member fJh.e.r6of. In the United States Congress Congressman Fernando Wood of New York was censured for using the following la~ on the i'loor of the House: c•A monstrosity, a 'measure the most infnmous of the many infamous acts of the infamous Congress." (Hin:ls' precedents, Vol. 2, pp. 789-799). Two other congressman W81'8 censured for employing insulting words during debate. (2 Hinds'' preceden.t, '199-801). In one case, a member of Congress was summoned to. testify on a statement made by him in debat.e but he invoked his parliamentary privilege. The Committee rejectf!d. his plea. (3 Hinds' Precedents 1~-124). · For unparliamentary Conduct, members of Parliament or Congress have been, or could be censured, committed to prison,J suspende:l, even expelled by the votes of their colleagues. The appendix to this decision amply attests to the consensus of ·informed. opinion regardina the practice and the traditjonal power of lecisJat:ve assemblies to take diaciplinal'7 action against its members, imluding ~riaon.metc.e, 8Ul'p6nlion ot" espuleion.. It mentions one instance of su8pension of a legislator in a foftip country. · ~ And to cite a local illustration, the Philippine Senate, in April lll49, suspended a senato'r for one year. Needless to add, the Rules of Philippine House of Repreaentativt'B provide that the parliamentaey practices of the Congre1B ol the United States shall apply in a supplel:nenta17 manner to its proceedings. This brinp up the third point of the petitioner: the House may no longer take action apinst me, he argues, because after my speech, a.:nd before approvina Resolution No. 69, it had taken up other business. ·Respondents answer that Reeolution No. U was UllaiD.imoualy approved hr the House, that such approval an.ounted. to a suspension of the House Rules, which according to standard parliamentary practice may be done by unanimous consent. Gr~ted, coUntera the petitioner, that the Houss may suspend tho operation of its Rules, it may not, however, affect past acts or renew its right to take action which had already lapsed. The situation might thus be compa1'ed to lawa4 a.tending the period of limitation of aetiona that had lapsed. The Supreme Court of the United States has upheld such laws as against tlie contc:ntlon that th91 impaired Tested rights in violation of the Fourteenth Amendment (C&ID.pbel v. Holt, 116 U.S. 620). The at.ate& J1old diverpnt views. At &nJ' rate, courts have declared that '"{he rules adopted by deliberative .bodies ~ subject to revocation, modification or waiver at the pleuure of the body adopting them."5 And it Ma ltHn aaid that c•Psrl~ ndea 111"6 tnerelv 71roec4""'4 Ibid with. tMM ob~, tl&s caurta IMwa tto CORCe1"'IL Tkeu ma.11 be 10Gived 01" ditw1gtwded l>y Bh.e lagislaUv. bod.11." O>nrequently, c"mere · failure to conform to parliamentary usage will not invalidate the action (taken by a deliberative body) when the requisite number of membera have agreed to a particular measure.'" The following is quoted from. a reported decision of the Supreme Court of Tennessee: (3) Kilboum v. Thompson, 103 U.S. 189; Hiss v. Bartlett & Gray, 468, 68 Am. Ree. 768, '170. (4) Rules of the House have not the force of law, but they are merell" in the nafuTe of by-laws prescribed for the oTderly and convenient conduct of their own proceedings. (6'1 Corpus Juris Seem:i:lum, p. 8'10). (5) 87 Corpus Juris Seeundum, p. 8'1'0. (') South Georaia Power v. Bauman, 169 Ga. 649; 161 S. W. 615. "The rule here invoked is one of parliamentary proceduN, . and it ts uniformly held tha.t it is within the power o1 an deliberative bodies to abolish, modify, or waive their own rules of procedure, adopted for the orderll" conduct of buaineas, and as security against hasty aetion." (Bennet v. New Bedford, 110 Mass. 433; Holt v. Somerville. 127 Mass. 408, 411; City of Sedalia v. Scott. 104 Mo. App. 69&, '18 S. W. 2'16; Ex parte Mayor, etc.:, of Albany, 28 Wend. (N.Y.) 27'1, 280; Wheelock v. City of ~wen: 196 Mass. 220 "290., 81 N. E. 9'1'1 124 Am. St. Rep. 64.8, 12 Ann. Cu. 1109; City of Comith v. Sharp, 107 Miss. G9G, 66 So. 868; McGraw v. Whet.son, 69 lolr& 348, 28 N. W. 632; Tuell v. Meacham Contracting Co. 146 Ky. 181, 186, 140 s. w .. 159, Ann. cas~ 1918B, 800) [Taken from the ease of Rutherford v. City of Nashville, '19 South Western Reporter, p. 584.] It may be noted in this connect.I.on, that in the ease of Conca-resaman Stanbery of Ohio, who insulted the Speaker for which m a resolution of censure was pl'8aented, the House approveJ the resolution, despite the argument that other business had intentened after the objectionable Marks. (2 Hinds' Precedent. pp. 79MOO.) On the question wheUier delivery of speeches attacking the Chief Executive constitutes disorderly conduct for which Osmeiia may be dii.c.iplmed, many ai·pmenta pi·o and eon have been adVanced. We kliew, Mwetiet'1 tka.t the HtnUJe is tM judge of what oon1Cltatea disorderlv beka.wiotw, ttot onlv becauH tha CcmatU.ticm Ms oo'lf/M'1'1d .ju.riadtction upim it, but o.lso beoauas tM matO.r dt:pe:ndr tnGi:nlt1 im factual oit"cumatain.cas of wMA :the Houee knows beat but wkioh. oa.n. not be d.epicted in &lack aad «'kite for preantaticm to, Ad udjudioaticm &,, th.e Courta. For one t/&.ing, ii eh.is Court aasume ths powet" to detenn.ine 10Ae· th.er Oame1ia.'a conduct oonstituted di.acndorlfl behavio~ it would tlHt'Wbll Aave uswned SJl'Pdlate jurisdiction, wl&.ch. eke CoftBtitU.. tiim ftBWI" in.tumled to C4tifet' upon a ooordinste bra.ck of tM Govern.mnt. The Oh.eorv of aqa.ration. of powers faatidioUBlfl obht'Wd "11 th.is Courl, demands Sn. sutl& aitatitiot& a. prudent w:fv.aol. ,,, intwfen. Each dapMtmimO, it h.aa bem mid., h.aa •cluatvs cognimti.ce of n&11ttera toith.;n. its jwriadicition. and i6 suprnze with.in its own. apAenr. (AngGra. v. Electoml Commission, 68 Pkil. 139.) "See.. 8001 JwlJ.ciaJ Inter/~• witk.'Legialstwre. • • • The principle is well established that the courts will not assume a Juriawction in &DJ' caae which will. amount to an interference by the Judie.al depar&ment with the leei,slaLure since each dep81·tment is equally independent upon it by the Constitution. "The general rule has been applied, in other eases to cause tbe court.a to refuse to intervene in what ai·e oxe.lu.si.vely leg.aalatiV'e !Unctions. 1'hus, where the state Senate is given tbe power to expel a member, the courts v;ill not review its action or revise evm a. moso Grbitt'tlf"fl Ot" ur./a.ir decision." (11 Am. Jur., Const. Law, see. 200, p. 902) Underscoring Ours). The above statement of American law merely abridged the landmark case of Clifford V:: F.L-ench.7 In 1805, several senators who had been expelled. by the State Senate of California for llaving taken a bribe, filed mandamus proeeed.ings to compel reinstatement, allecin& the Senate had given them no heariq, nor a chance to make defense, besides falsity of tbe ch&l·ges of briberJ'. The Supreme Court of Califoi·nia declined. to intarfue, a.plaining in orthodox juril;tie langaage: "l!ndtw our form. of gOIJlemmsn.t, du judicial dapartmnt 1MIB 110 power to ntlias tJffJI. tAa moat srbitnwfl and wn,JllM action of tAe l~sU.W ~e or of eitMr house tlwreof, taken. ta panua.noa of the pow1w oummltt'ed eseluaively tD tka.t department btt tl&e ConatituOion. It has been held by· high authority that, even in the absence of an express provision conferring the power, every legislative body in which is vested the gene1·al legislative power of the state has the implied pow•,. to espel a membcw for (') -1.40 Cal, 604; 609 L.R.A. 666. 884 LAWYERS JOURNAL November 30, 1960 emu caus •AicA. it mau deem. sufficient. In Hiss v. Barlett, a Grey 473, 68 Am. Dee. 768, the sup1·eDle court of Mass. says, in aubatanee, thai this power ia inl&ernt fll. """"' legisla.tiw bodtl tha.t it ia 11ecesaart1 to enallle the bodp 'to pet"form. ita high funetion, and it necessa.'1t Oo the fl4f•t'll of the state,·• That it is a power of fflf-'JW'Ofeotion, and that tAe legi.sltJOi.n 6CJdv must nece88aril11 h the sols ;udtJe of the aigenoy which. mll'll ;wrUf'I/ «nd ~ ita net'Oin lip lrit'hr house of no pnwiaitm. a.uth.cwising clJW"ts to contt-ol, diroc~ ~ CW' forbid the ennriss 611 eiUtsr kol&S6 of the f'OW67' to «Cp6l a. tMmlJer. "Thea• powenr a.re funotitrns of the logisla.tiw deplWtmmit O.Rd therefore, in the elllercistl of the poW67' th.ua oommioted to it, tke Sena.te is aupremB. An attempt by this court to direct or control the legislature, or either haiise thereof, in the exercise of the power, would be an a.ttempt lo es· cni,u' legisla.Uve. /uftctiona. which it is expresaly forbidden to do." We have underscored in the above quotation those lines which in our opinion emphasize the prineiplea controlling this litigation. Although referring to ~ulsion, · they may as well be applied to other disciplinary action. Their gist are applied to the ean at bar: tks Havae ha:s o::cluri"t.oe po111er; the cOUt"ft Tta.ve no ;uriadietiott to interfere. Our refusal to intervene mieht impress some reaide;s as subconscious hesitation due to discovery of lmpermiuible course of action ill the legislative chamber. Nothing of that sort; we merely refuse to disregard the allocation of constitutional functiona which it is our special duty to niaintain. Indeed, in the intme&t of • comity, we feel bound t,o state that in a conscientious survey of governinc principles and/or episodic illustrations. we found the House of Representatives of the United States taking the pos1. tion on at least two occasions that pet'81mlll •ttacks upon tA.s Chief Esecv.ti'P• constitute unparliamentary eonduet or breach of order.• And in several instanees, It took action against offenders, f'Vft aftwr 0th.er 6uin1tas bad been considered..9 Petitioner's principal areument against the House's power to BUspen.d is the Alejandrino precedent. In 1924, Senator Alejan-drino was. by res:oJ.Utlon. of the Senate, suspended from office for 12 months because he had assaulted another member of that bodJ for certain phrases the latter uttered in the course of a debate. The senator applied t.o this court for reinstatement, challenging the validity of the resolution. AlthoUl'h this court held that in vi..,w of the separation of powen, it had no jurisdiction to eom,. pol the Senate to reinstate petitioner, is neverthelesa went on to 11a.y the Senate bad 110 power to adopt the resolution because suspension for 12 months amounted t.o removal, and the Jones I-aw ·(under which the Senate was tha funettoning) gave the Senate no power to remove an e1pPoin.tiw m&mber, like Senator Alejandrino. The Jones La.w specifically provided that "ea.eh House may punish its members for disorderly behaviour, and, with the concurrence of two.-'thirds votes, expel an elec#lw' member (aec. 18). Note partieularl;v the word "elective." The Jones Law, it must be observed, enlpowered the Governor General to appoint "without consent of the Senate and without restriction as to realdenee senators z z x who will, in his opinion, best represent the h-elfth Di.strict." Alejandrina waa one appointive senator. It is true, the opinion in that ease contained an obiter &tum that "suspension deprives the electoral district of representa,.. tion without that district being afforded any means by which to till that vacancy." But that remark should be understood to refer particularly to the a.~ e81&Gtor wbo was then. the af· feeted party and who WU by the same Jones Law cha.reed with th• duty to repreaent the Twelfth District, and maybe the views ef the Government of the United. States or o1 the Governor.Ge11r eral, who had appointed him. · • Cannon's Precedents (1936) par. 249?' (Wnttam Willet, Jr. of New York). par. 2'98 (Louis T. McFadden of Pennsylvania). • Constitution, Jefferson's Manual and the Bouse of Representatives by Louis Beachler (1966) p. 382. It must be observed, however, that Ill: tlhGt titu the Legislative had only those powers which were granted to it b;v the Jonea Law;•o wh6"8G6 now tM Congresa Aas tks fv,U 1-gisla.tive powen and pnroga.tiws of a. eo11et'trign nation except as restricted by the Constitution. In other ~ in. the Ale;amdrino CG8s, tke oow1 t"eaoh.ed the conclu.siotl. that the JunM lAlllJ did not give the Senate eht power it thm es61'Ciee4 - the potHr o/ 8"8~ for ans 11..,.. Whereas now, as we find, tha Congress Aae the inkernt '8giglc1Un preroga.Oive of su.apenaio?l.11 which the Constltu~on did not impair. In fact. as already pointed out. the Philippine Senate did suspend, a senator for 12 montha in 1949, .. The legialatlve power of th• Philippine eon.,... ta plenarr. subject only to such limitations as . are found in ·the Republic's Constitution. So that· any power deemed to be leclslative b;v usage or tradition, is neeessaril;v pouened by the Philippine Congresa, unless the Constitution. provides otherwise." (Vera v. Avelino. 'i7 Phil. 192, 212.) In any event, petitioner'a argument aa to ~eprivation of the district's representation ean not be more weiehty In the matter of suspension. than in the ease Of impriHDment of a legislator, yet deliberative bodies have the power in proper cases, to commit; one of their members to s-n.•i Now come questions of procedure and jurisdiction. The pe. tit ion intended to prevent the Special Committ.ee. fl'OIP. a.etine in pnrsuanee of Rouse Resolution No. 59. Because no prelimin.ar;v ln,iunetion had been issued, the ColDDlittee performed it.a task, reported t.o the House, and the latt.er approved the auspension order. The House has cloaed ita session. and the Committee hae ceased to exist aa such. It would seem, therefore, the ease should be dismissed for havin1r become moot or aeademie." Of course, there is nothing to prevent petititioner from filing new plead· ing to include all members of the Bouse as rupond.enta, ask for 1-einstatement and thm1b;v to preaent a justiciable cause. Moat i;robable outcome of aueh reformed suit, however, will be a pronouncement of lack of jurisdiction aa In Vera v. AveliJLot4 nd Alejandrino v. Quezon.is At any rate, havinc perceived suitable solutions to the fmportant questions of political law, the Court thousbt It proper I.a express at this time its conclusions on such isauea as were deemed relevant and decisive. AeeordinglJr, the petiti<ln ha& to be, and is hereby dismlsaed. So ordered. Pon:ia, C. J., BfJUIJisf• A""'elo, Concepoion., BOll'f'fff, GM"""Dotri<I, P-dea ond Diz<m, JI., CODCUrred. Padilla, J. abstained. R- J. B. L., J., dluentinc. I conenr with the majority that the petition filed by Conggrenm.sn Osmeiia, Jr., doea not make out a ease either for declatocy judgment or certiorari, since this Court hu no original jurisdiction over declaratory judcment proeeedinp, and certiorari is available onl;v against bodies exercising judicial. or quasi.Judi. cial powers. The respondent· committee, belns merely fact findina' was not properly subject to certiorari. 10 The Jones Law placed .. In the hands of the people of the Philippines as large a control of their domestic affairs as can be given them, without in the meantime lmpalriq the rights of sovereignty by the people of the United States." (Preamble) 11 Apart from the view that power to remO?e Includes the power t.o suspend as an lneideilt. (Bunia.p v. U.S; 612, 64, L. Ed 693, 696.) Thia view is diatingu.iahed from Hebron v. Reyes, G.R. Nb. L-912', July "8, 1968. (See Gregory v. lla;pw, 21 N.E. 120.) But we need not to explain this now. Enough to rely on the Congre&sional fnherent uower 12 See Appendix par. VII, .Cushing. . 13 Thi!'!. ana,.+ from douhtJ1 on la) our .furisdletlon to entArtain original petitions for declaratory judgments, a1ld (b) avail .. ability of certiorari or prohibition qainat respondent& who are not exercising .iud•claJ. or ministerial functon& (Rule 67, secs. 1 and. 2). •• See aupra. Iii q Phil. 83. November 80, 1960 .LAWYERS JOURNAL 886 I submit, howwer, that Concresaman Osmeiia was entitled to invoked the Court's jurisdiction on bis petition for a writ of prohibition against the committee, in so far as Hou1e Resolution No. 69 (and ita sequel, Resolution No. 1'16) constituted an unlawful attempt ~ divest him of an immunity from censure or p11nishmcnt, an immunity vested under the very Rules of the House of Representatives. House Rule XVII, on Decorum and Debates. in its section '17, provides as follows: · "If it is requested that a Member be called to order for words spoken in debate, the Member making such request sha11 indicate the words excepted, and they shall be taken down in writing by the Secretary and read aloud to the HOuse; but *1te Member who uttered them shall not be held tu answer, nor be subject to the censure of the House therefor, if further debate or other business has intervened.'' Now, it is not disputed that· afteT Congressman Osmefia0 had "delivered his speech and' before the Houae adopted, fifteen days later, the resolution (No. 69) creating the respan.:J.ent Committee and empowerins it to investipte and ii!commend proper action in the case, the House had acted on other matters and debated them. That being the case, the Congressman, even before the resolution waa adopted, had ceaaed to be an!lwerable for the words uttered by him. in his. privilep speech. By the expreu wordiing of the Rules, he was no longer subject to consure or disciplinary action h)' the House. Hence, the resolution, in so far as it attempte to Givest him of the immunity ao acquired and subject him to discipline and punishment, when he was previously not so subject, ,;oJates the constitutional inhibition ag:ainst n post fMto legielat!ons, and Resolutions Nos. 69 and 176 are legally obnoxious and invalid on that score. The rule ia well established that a !aw which deprives an accused penon of any substantial right or immunity possessed by him before its passage is ea: poat fa.tlio as tn prior offenses (Cor. J"ur. Fed. 16-A, section 144, p, 163; Pe0, w. Talkington, f.7 Pa,c, 2d 368; U.S. ft. Carfinkel, 69 F. Supp. 849). The foregoinc also answer the contention that since the immun!ty wa1 but an effect of section 'I of Bouse Rule XVII, the House could, at any time, remove it by amendins those Rules and Resolutions NO& 69 and 176 effected such an amendmut by ·implication. The right of the house to amend its Rules does not earry with it the right to rettoactivel:v divest the petitioner of an Imm.unity he had already acquire.i. The Bill of Ril'hta Is a1ainst it. It is contended. that as the liability for his speech attached when the Congressman delivered it. the subsequent action of the House only affected the procedure for dealing with that liability. But whatever liability Congressman Sergio Osmeia, Jr. then incurred was u:tinguished when the Bouse thereafter considered other business; and this eztinction Is a sub1tantin right that ca.n not be subsequently tom away to his disadvantage. On an analogous issue this Court, in People vs. Pa.rel, 44 Phil. 437, has ruled: "In !'€'&'•rd to the point that the subject of prescription of Pt'flalties and of. penal actiom pertains to remetlial and not substantln law, it is· tO be bbeened that in S:panish legal system, pnwirions for limitatioft. or pr'fffriptin of a.atione ctn invmrisfll11 cltUsified as nhtn.n.tive cmd not as t"ttnedilil low; we thus find the provisfons for the prescription of criminal actions in the Penal Code and not in the 'Ley de Enjuiciamiento Criminal.' This ia in reality a more logical law. 111. criminal oases ,,,..,._ oription ie nol, st.riett11 spea.frittv, a matter of JW04edun: it 64f"I' or outs off the right to JHttriaA the crime mt4, consequentlfl, goH directlJ/ to the nibstcmoe of t'Ae GOtion. s s s" (B'mphasU 8UJ1'" plied) ' I see no substantl&l diftei-ence, · from the standpoint of the the oonstitutional prohibition against o post fa,oto la.ws, that tbe objectionable measures happen to be House Resolutions anJ 11ot statutes.. Jn so far as the poaition al petitioner Osmeia Is concernd, the easential point is that he is beinc subjected to a punislu:nan.t to which he was fe>nnerly not amendable. And while he · wa1 only meted out a suspension of privileges, that suspension is as much a penalty aa imp1isonment or a fine vrh!.ch the house oo-uld have inflicted upon h(m had it been so minded. Such punitive action is violative of the spirit, if not of the letter, of the constitutional proviSion against es post /aAJto legislation. Nor it is material that the punishment W81 inflicted in the exercise of disciplinary power. "The o post /at:to effect of a law," the Federal Supreme Court has ruled, "can not be evaded by giving civil form to that which la easntially criminal" (Burgess vs. Salmon, 9'1L. Ed, (U.S .• ) 1104, 1106i Cummings vs. Missouri, 18 L Ed. 276) .. The plain purpose of the immunity provided by the House niles is to protect the freedom of action of its members and to relieve them from the fear of disciplinary action taken upon second thought, as a result of political convenience, vi.n.dictiveness, or pressures. It ia unrealistic to overlook. that without the immuni· ty so provided, no member of Congress can remain free from the hauntinc fear that his most inncicU<1us expresaio:na may at 8llJ' time afterward place him in jeopar~y of punishment whenever a majority, however transierit, should feel that the shifting sands of political npcdieney so demand. A rule designed to assure that nK:mbers of the House may freely act as their con!Cie.:nce and sense of .duty should dictate complem«:nts the parliamentary immunity from outside presa.ure enahrinf:d in our Constitution, and is certainly deserving _of liberal interpretation and application. The various precedents. cited In the majority opinion, aa inatances of disciplina1·y action taken notwithstanding intervening buaine1s. are not truly applicable. Of the five instances cited bJ Deachler (in hia edition of Jefferson's Manual), the case of Congressman Watson of Georgia involved also printed disparaging remark& by the respondent (III Hinds Precedents, sec. 2637), ao that the debate Immunity rule afforded no defensej that of Congresaman Weavei• and Spark& was one of censure for actual disorderlJ' conduct (II Hinda, sec. 166'1) ; while the cases of Congressmen Stanbery of Ohio, Alex Long of Ohio, &nd of Lovell Rouuea.u of Kentucky (II Hinds, secs. 1248, 1252 ant 1656) were decided under Rule 62 of the U.S. House of Reppresentatives . a• it stood before the :1880 amendments, and waa differently worded. Thus, in the Rousseau case, the rulinc of Speaker Colfax was to the followlnc effect (II Hinds Precedent.I, page 1131) ; · "This 11.lr.tJ·aecond rule is divided in the middle by a semicolon nd the Chair asks the attentions of the gentleman from Iowa (Mr. Wilson) to the language of that rule, as it settlea the whole questio"D: "62. If a member be ealled to order for words spoken in debate, the person calling him to order shall repeat the worda acepted to" - That is, the "calling to order'' is "excepting" to words spoken in debate-"and they shall be- taken down in writing at the clerk's table; and no Member shall be held to answer, or be subject to l"hc censure of the Hoase, for words spoken in debate. if 807 c:o~her Member has spoken, or other businesa has intervened, after the words spoken, and before axceptlon to them. shall ha.ve been taken." Th first part of this rule declares that 1'callinc to order'• is "cxceptin1 to words spoken in debate." The second part of the ru1e declares that a Membtt shall not he held subject to censure for worda spoken in debate if other business has intervened. after the words have been spokm and before "exception" to them haa bem taken. Exception to the wo1ds at the gentleman from [<tWa (Mr. Grinnell) was taken by the gentleman from KentockJ' (Mr. Harding), the gentleman from Mall88Cl]usetts (Mr. Bankah the gentleman from Kentucky (Mr. Rousseau), and also by the Speaker of the House as the records of the Congressional Globe will abow. The distinction fa olni.ous between the two parts of 886 LAWYERS JOURNAL November· 30, 1960 the rule. In the first part it speaks of a Member exceptinc to language of another and having the '9r-Ords taken down. In the last part of the rule it aaya he shall nOt be censured. thereafter unless exception to- bis words Were taken; but it omib to add aa an essential condition that the. words must also have been taken down. The suDsiantial point. required, in the latter .part of the rule is, that exception to the obj~onable words m.uat have been tAken." The difference between tlie Rules as invoked in these eases and the Rules of our House of Representatives is easily apparent. As 1'Ule 62 of the United States House of Representatives stoOd before 1880, all that was required. to preserve the disciplinary power of the House was that ea:ception should havs been takeR to the remarks on the floor before further debate or other busineas interVened. Upder the rules of the Philippilll.e House of Rep. reaentatives, however, the immunity becomes absolute if other de.bate or business has taken place before the motion for cl!Dsure is made whether or not exceptions or point of order have been made to the remarks coinplained of at the time they were uttered. While it 18 clear that the parliamentary immunity established in Article VI, section 15 of our Constitution does not ba.r the members being questioned and disciplined by Coneress" itself for J"emarks made on the floor, that disciplinary power does not, as I have noted, include the right to ntroactively amend the rules so •s to divest a member of an immunity already gained. And if Courts can shield an ordimary citizen from the effects of es poet fa.oto legialation, I see no reason why a member of Congress 11hould be Cleprived of the same prot.ootion. Surely membership in thP legislature does not mean forfeiture of the liberties enjoyed by the individual citizen, 11The Constitution empowers es.ch house to determine its rules of proceedings. It mau ttot 611 its ndes ignore constiOUtional. nstnsints or 11iolate iv.nda:mntal rights and there shoul.i be a reasonable relation bet.ween the mode 1>r method of proceeding established. bJ" the rule and the result which is sought to be atta111ed. But within- these limitationa all matters of method are c.pen to the determination of the House, and it ta no impeachment of the rulo to say that some other way would be better, more accurate or even more accurate or even more just." (U.S. ft. Ballin,. Joseph & Co., 86 Leiw Ed., 3~5). "Courts will not interfere with the action of the state senate in reconaideri'ng its vote on a reaolution submitting an amGDdmeut to the Constitution, wl&.N its action tams in. oom.pliaMB tuitA it. own. mies and therl 'WG8 no con.atieution.al provision. to U,.. oontni.rg!' (Crawford vs. Gilcbfist, 64 Fla. 41, 59 Sc. 963). (Empha1ia Supplied.) Finally, that this Court poSBeBses no power to direct or compel the Lrqlslature to act in any specified manner, should not deter it from recognizing and declaring the unconstitutionality and nullity of tlie questiOlled resolutions and of all action that has bean taken in pursuance thereof. Although the respondent committee has been disbanded after the Cl&Se was filed, the basie issues remain so important as to require adjudication by this Court. Lt&bnulor,. J~ dissenting: I fully concur in the above dissent of Mr. Justice J. B. L. Reyes and I wntu1' to add: Within a constitutional government and in a reaime which purporta to be one of law, where law is supreme, even the C01!r greu in the exercise of the power conferred upon it to discipline its members, must follow the rules &nd. regulations that had itself promulgated for its guidance and for that of its memben. The ruJe in force at the time Congressman Osmeiia delivered the speech declared by the House to conatitu.te a di80l'derly conduct provides: "x x x but the Member who uttered them shall not be held to answer, :nor be subjeet to the censure of the House thereof, if further debate or other business has interYened, (R.ulea XVII See. 7, Rules, House of Representatives.) Con1J"9ssman Oameftla delivered the speeeh in question on June 23, 1960. It was only on JUIJ' 8, or 16 d&}'B after June 23, 1960 when the House created the comm."ittee that would. investigate him. For full)'" 15 cl.an the Bouse took up other matters. All that was done, while the speech was being delivered., was to have certain portions thereof deleted.. I hold. that pursuant to its own Rules the Bouse J1L87 no lonpr punish Concres11DSD. Oamefl.a for the speech delivered fifteen d&.71 before. The fact that no action was promptly taken to punish Concressman Osmei\a immediately after its delivery, except to have sume parts of the speech deleted, · ahows that the members of the House did not then consider Oameiia's sPffch a disorderly con.duet. The idea to punish Congressman Osmeiia, whieh came 15 days after, was, therefore, an afterthought. It ta, therefore, clear that Conci'f:ssman Osmefia ta being made tO answer for an act. after the time during whieh he could be punished therefor had lapsed, The ntajority opinion holda that the House can amend its rulea any time. We do not dispute this principle, but we held that the House may not do so in utter disregard of the fundamental principle of law that an amendment takes place only after its approval, or, as In this CU8, to the extent of punishing an offense after the time to pu.nish had elapsed. Since the rule. that a member can be -punished only before other proceedings have intervened, was in force at the time CongreslDl&n Osmefta dl•livered hi• speech, the House may not ignore said role. It is , eaid in tho majority opinion that the rule limiting Uie period for irnpoaition of a penalty for a speeeh to the day it was made, is merely one of procedure. With due respect to the opinion of the majority, we do not think that it is merely a rule of proce-dure; we believe it actually is a limitation of the time in whieh the Bouse may take punitive action against an offending mem· ber; it is a limitation (in reference to time) on the liability to punishment. As Mr. Justice J. B. L. Rqes points out, the rule is substantive, not merf'Jy a procedQ.ral principle, and may not be ipored when invoked. · If, this Government ia a Government of laws and not of men, then the House should observe its own nle and not violate lt by puniahlnc a member after the period for Indictment and punishment had already pasaed. Not because the subject of the Philippic ia no less than the Chief Magistrate of the nation should the rule of the House be ignored by itself. It ia true that our Government is based on the Principle ot separation of powers between the three b:ranehe1 thereof. I also qree to the corollary proposition that thil · Court should not interfere with the Jqislature in the manner it performs its functions; but I also hold that the Court cannot abandon its duty to pron.ounce what the law ia when any of its (tho Bouae) members, or any humble citizen, invoke& the law. Congressman Osmefia has invoked the protection of a rule of the House. I believe it is our bounden. duty to state what the rale beins invoked by him. is, to point out the fact that the rule is being violated in m.etinc out punishment far his speech; we should not shirk our nsponaibility to declare his rights under tllf' rule simply on the bmad excuse of separation of powers. Even the legislature may not ignore the rule it baa promulgated :Cor the B'O"'&mment of the conduct of its members and the faet that a coordinate branch of the Government is involved, should not deter u1 from performinl' our duty. We may not possess the power to enforce our opinion if the House chooses to dlsreprd the aame. In 1uch case the memben thereof stand before the bar of public opinion to answer for their a.ct in iglft.Oring what they themselves have approftd as their norm of conduct. Let it be clearly understood that the writer of this diasent personally beliena that vituper'OU& attacks apainst the cmsr Executive, or any official or citizen for· that matter, should ~ condemned. But where the Rules, promulgated by the House 1tse1f, fix the period during which punishment ma:v be meted ~t, said Rules should be enforced. regardless of who may be prejudiced thereby. Only in that way may the supremacy of the law be maintained. November 30, 1980 LAWYERS JOURNAL 38? Jn Luia Gutierres, Petition;,., 11a. T•lesforo Bern, Bcr8p07ldnt, G. R. No. L-18137, Febnui'll ~. 19S9, Endencia, J, 1. ELECTION LAW; APPRECIATION OF BALLOTSj WRITING NAM.fl OF CANDIDATE· SEVERAL TIMES INVALIDATES BALLO'l'.-A ballot in which the name "Recto" is written eight times on the eight apaces for senators; the name "P. Ca.tafiag'' written two times on the second and third spaces for councilors; and the npme "F. Catapang" written th1·ee times on lines 4, 5 and 6 for couneilor1 is a marked balloL 2. ID.; ID.; WORD "ASION" HELD NOT IRRELEVANT.The word "Asion" may refer to the nickname of a person Whom the voter wanted to vote for and can not be considered &.'1 irreleva~t expression which moy mark the ba1lot. 8. ID.; ID.; CANDIDATE VOTED FOR SUFFICIENTLY IDENTIFIED.-Where the ·candidate is Telesf<1ro Reyes and the names written &re "Reiyes", "TiRes", "Keiria poro Reis'', ' 1Teryis", "T Reus", "T Rivies", "t. Riss", "T Reyes". "T. Reyesa", "te Reiz", "T rijies", "T. Ryu", "te Riz", "te Reyes" end "T Rez'', the hallo-ts are valid for said candicUte. 4. ID.; ID.; SIGN TO INDICATE DESISTANCE FROM VOTl~G.-TJ:\e appearance ot "x" marks on the blank spaces of the ballot merely indicates the voter's desistuce from voting for the positions covered by said mark. 6. ID.; ID.; WHEN ,INITIALS CANNOT BE CONSIDERED IDENTIFYING MARKS.-Where the initials appearinc at the upper right hand comer of .the ballot was placed by the Chairman of the Board of Election Inspectors to indicate that said ballot was accidentally torn when the same was detached from the smb, tbe initials cannot be considered identifyina' marks. 6. ID.; ID.; NICK.NAME ALONE VALID.-Where the candidi.te for mayor is ':felesforo Reyes and the word "Porong'' which it his nickname is written without his surname, and there is no other candidate for the same office with such nickname, the ballot is valid for said candidate. 7 " ~~; I~i~i!~~~i1!r::~~~!N~~~:~:.::i:.:= didates are YOted by their initials la not marked. 8. ID.; ID.; WORD "LEMAS" HELD NOT IRRELEVANT.The word "Lemaa" written on the space for senator, special elect!on, is not necessarily an irrelevant expression written for the purpose of identifying the ballot. 9. ID.; ID.; WORDS "TEBAN" AND "TIYAGO" HELD NOT IRRELEVANT EXPRESSIONS.-The words '"Tc-ban"' and "Tip.go" written On the 6th and 6th spaces for senators are not irrelevant expressions for they may refer to candidates for senators Esteban Abada and Santiago Fonacler. 10. ID.; ID.; IDEM SONANS. - The names "L. Arguelis," 1'Gllo," "Lor.ea"," "loas", "Lolio Gotiferea," "I. Cuineoes, and "Laulis· Eriiarz", are not idem somm with the name of candidate Luis Gutierrez. However, the names "L. Gofierez" "L. Got" "Lare", "L. Tutierrea." "L Culurris and "L Golukiris" are idem 80'llCIU with Luis Gutierrez. 11. ID.; ID.; STRAY VOTE.-Ballots wherein the name "Quizon" ;;a .. =!,:,~r=:~e-:n~=~ar:a:-~~:: since the vote 12. ID.; ID.; ID.-A ballot with the name "Dador Pastor'' written. on the aeeond apaee for senators ia not marked, ainee the vote for Dador Pastor ia a stra7 vote, there, beiq no indication in the record that said name has been written to mark the ballot. 13. ID.; ID.; BALLOT WITH CAPITAL LETTERS "A B C D" HELD NOT MAil&ED.-A ballot with the capital letters "A B C D" ia not marked, for said. letters sounds like "Abeede", a candidate for senator, and the voter evidently wanted to vote for him. . 14. ID.; ID.; NAME WRITTEN Do~;s NOT SUFFICIENTLY IDENTIFY CANDIDATES VOTED FOR.-The names "Luis Hernandez'' and "Menaloz" do not sufficiently identify the candidate Luis Gutierrez. A ballot wherein the name "Teofilo Reyes" is written by a person who writes well ta not valid for candidate Telesforo Reyes. 16. ID.; ID.; PARAGRAPH 28 OF SECTION 149 OF REVISED ELECTION CODE CONSTRUED.-Under paragraph 23, Section 149 of the Revised Election Code, a ballot appearing on lta face to have been written by. two distinct hands is null and void, thus creating a presumption that such ballot has been east durinc the voting, and this presumption can only be overcome by the ahowill&' that the tam.Perine with the ballot was made after it had been deposited in the ballot bo:ic. The eommon doctrine ts that a ballot clE-arly appearing to be written by two distinct hands on its face ia null and void. In the absence of proof that a ballot has been filled by two hands after it has been depl>Sited in the ballot boz, the validity of the ballot should be Upheld. 16. ID.; ID.; STRAY VOTE; EVIDENCE ALIUNDE~In the absence of proof Gliundt!ll that the names of persons who are not candidates written on the space for aenaton were used to identify the ballots, the ballots are valid Bi'nee the votes for persona who are not candidates for the office should be considered stray vote1. 17. ID.; ID.; WORDS "PANALO ITO" AND "PABAM" HELD IRRELEVANT.-The Taplog-expreuiona "panalo iton which means "this wins", and "paham" which meana "wise" are irreleYant expressions intended to identify the ballot and in· validates it a1 mark. 18. ID.; ID.; CANCELLATION OF NAME VOT!:D FOR. - , Where there ia Do clear indication that the voter meant to cancel entirely the name ot a eandidate written on the proper space, ~e ballot should be considered valid in. favor of said candidate. 19. ID.; ID.; EXCEPTION TO TllE RULE TlfAT A NAME NOT WRITTEN ON PROPER SPACE CAN NOT BE COUNTED.-In a ballot the names written are 4'Recto" on the firs~ line for aenator; "T. Reyes" tielow the printed line for Mayor and. 14P. Castillo'~ below the printed line for Vice-Mayor. "T. Reyes" and "P. Castillo" appear written one immediately below the other. Held: Considering that Telesoforo Reyes and P. Castillo were the only candidatea for Mayor and VieeMayor of their political group, and that "T. Reye&'' is written just below the line for Mayor and "P. Castillo" ia written below the 1l&llle "T. Reyes" and that the ballot was left blank except for the said three names written, the voter intended to vote for Reyes and Castillo for munictpal offics. Col8&quentJ.y, the ballot is '1alid for Telesforo Reyes, a candidate for Mayor. 20. ID.; ID.; EVIDENCE TO SHOW INTENT TO MARX BALLOT MUST BE SHOWN.-ln the absence of evidence that the name 4'Dionisio Tapero" written on the space for senator, special election, waa written to mark the ballot, the ballot is valid. 111. ID.; CONCLUSIVENESS OF LIST OF VOTERS AS TO PERSONS ENTITLED TO VOTE-10'7 ""°'" appear registered in the permanent list of voters for the year 1966; the.ir names were not the subject of eulusion proceedings in the Court of First Instance; and their right to vote was not conteated during the election .Held: In the absence Of refutation of the fact that theae voters appear in the permanent liat of voters for 1966, the ballots cast b7 the 10'1 voters. are wlid. LAWYERS lOURNAL November 30, 1960 U .1!:i \; J. IS 1 U .1'1 Petitioner Luis Gutierrez and respondent Telesforo Reyes were the only candidates to the office of municipal mayor of Alitagtag, province of Batangas, in the elections of 1956, After the election and pursuant to See. 168 of the Revised. Election Code, the municipal boa'td of canvassers pioclaimed the petitioner eleeted to the office with a majority of 10 votes, it having found that the two candidatea obtained the followin&' number of wtes: Luia Gutierrez , • , , , • , , , •• , ..• , , ••• , .. , , , •• , 1964 TOtes Telesforo Reyes , •• , , •• , • • • . • • • • • • ••• • • • • • • • • • 1944 'f'Otes Whereupon respondent filed with the Court of First Instance of Batangaa a protest alleging therein fraud, anomalies and violations of the election law. After hearing, the case was deCided in favor of petitioner who was declared to have received 1939 as against 1926 votes east for the respondent. thus reaulting a majorit:v of 13 votei in his favor. Not satisfied with this decision, respondent appealed to the Court of Appeals where he \\·as adjudged to have been elected with a m,.jority of 17 votes, on the ·l'l'Ound that he received 1988 · votes while the petitioner received 1916 votes only. Thereupon petitioner brought this case to us on certiorari, alleging that the Court of Appeals committed the following errors: .,The Court of Appeals erred in not passing upon each and everyone of the 43 ballot.a involved in the first and 9'C0Dd counter-assipmenta of errors of the herein petitioner, viz., Exhibits A-6, C-1, D-8, E-6, F-6, F-7, G-7, H-2, H-6, H-7, R-9, 1-66, J-48, J-60, J'-66, J'-61, K-6, K-10, K-14, K-16, K.-88, K-37, K-SB, K..S.9, X-49, 1.-12, L-181 1.-1.c.. 1-Q, a-Q. a-uu. 8-HHR, 4-CCC. 6-E, 6-H, 6-T, 11-A, 12-E, 12-0, 12-Q, 12-R., 12-S and 12-V II "The Court of Appeals likewise erred in declarine the nullity of 18 ballots wherein the herein petitioner app8fml voted for as municipal mayor on the mere finding that each iUd everyone '}f them waa filled up by two hand11 vtz., Exhibits 1-0, 1-EE, 8-L, 8-X, 8-QQ, 8-HHH, 3-000, l·Y, B-L,· 6-EE, l~M. 11-T, 1-S, 4-1, 4-NN1 61 IS-J and 8-A. III 41The Court of Appeal1 apin erred in failing to declare the nullity of the. foll°"ing 126 ballota: A-iz, A-18, B-1, B-2, D-1, D-9, D-11, D-121 D-14, D-16, F-Z, F-3, F-4, G, G-1, G-2, G-4, G-12, G-181 G-19, G-ZO, G-21, G-22, G-ZS, G-24, G-25, G-26. G-2'1, G-28, G-29, G-30, G-31, G-82, G-38, G-84, G-36, G-86, H-11 B-3, H-4, B-6, B-20, B-21, H-28, H-2', H-25, 1-e, I-7, 1-16, 1-aa, 1-41, I-&7, I-581 I-69, I-61, I-62. I-68, 1-64, 1-65, l-66, l-6'1, 1-69, 1-69, 1-7.0, 1-71, 1-72, 1-78, 1-74, J-G. J-14, J-26, J-S6, J-38, J-40, J-46, J-68, J-62, J-63, J-64, J-66, J-66, J-67, J;-69, J-70, J. '11, J-'l2, J-78, J-74, J-76, K...S, K.-6, X.-7, K.-30, K-81, K-32, X-401 K-41, K-42, K-43, X.-44', K-46, K-46, K-4'1, K-481 K-60, K-611• K.-62, L-8, L-8, L-9, L-11, L-16, L-'2fl, L-23, L-24, L-Z&, L-26, L-27, L-28, L-29, L80, L-31, L-39, L-88, and L-84. IV "The Court of Appeala: also erred in rejecting the votes for the herein· petitioner in Exhi1nta I-BB. Z-A, 2-W, 4-LL, 6-C, 6-L, 6-PP and 16-T. v "Th Court of Appea.ls finalJ.7 erred in not rejecting the votes for the herein respondent :Im. E:mibita A-10, D-61 D-6, J-48, K-16 and K-28.'' Respondent, in turn, after refuting the above-quoted uaignment of errors, made the following coun~gnment of errors: "The Honorable Court of Appeals erred in counting and recording uhtbita 8-N and 6-l as eoo4 &Dd ftlid votes for the petitioner. 11 11The Honorable Court of Appeals erred in n0t. counting and recording Exhibits A-1, K-D, IC-28 and 1-19 as eood and valid votes for the respondent. Ill .. The Honorable Court Of Appeal1 erred in ruling that Exhibit C-2 wherein the name "Teofilo Reyes" is written on the space for ma)'Or aa a stra7 wte ~for the respondent, and in not counting and recoMing' the same u a Yalid. vote for him. "The Court of Appeals erred in rulinl' that Exhibita lt-29 and L-10 are marked ballot.a and in not countinc and recording them as valid votes for the respondent. v "Tne Honorable Court of Appeals erred in rulil18' that Exhibits B-8 and J-44 are matked ballots, and in not counting &!Id recording them u good and valid votes for th.? respondent, VI "The Honorable Court of Appeal& erred in counting and and recordinc EUi&it K--85 for the respondent. VII "The Honorable Court of Appeals erred in not ceun:tiq and ~rdinc Exhibit K-36 for the respondent. . VIII ' 1The Court ·of Appeals en"ed in not counting and recordina Exhibit L-16 as a good and nUd vote for the respondent. IX "The Court of Appeals erred in ruling that Exhibit. 1-X, 6-A and 6-1 are good and valid votes for the petitioner. x 41The Honorable Court of Appeals erred In counting and• recording as a valid vote for the petitioner Exhibit 4-FF wherein the same 'Dionisio Tapero' was writtan. on the apace for senator, special elections. XI "The Honorable Court of APPeala erred in counting and reeording as 'f&lid votes tor the petitioner the following one hundred seven (10'1) ballots no~withltRIDding the fact that they were cast by persons wlio were never registered electors; 2-W, 2-Y, 2-Z, Z-AA, 2-BB, 2-CC, 2-DD, 2'-EE, 2-FF, 2-GG, 2-HH, 2-lt, 2-JJ, 9-XX, 2-LL, Z-MM, Z-NN, 2-00, 2-PP, B-QQ, 3-GG, 2-HH, 11-JJ, 3-KK, 3·LL, 8·11111, 3-NN, 2-00, 2-PP, 8-QQ, 3-RR, 3-SS, 3-UU, 3·VV, 8-WW, 2-XX, 2-YY, 8-ZZ, S-AAA, 3-BBB, 3-CCC, 8-DDD, 8-EEE, 3-FFF, 3-GGG, 3-HHH, 8-111, 3-JJJ, 8-JCK.K, 3-LLL, 3-MMM, 8-NNN, 8-000, 8-PPP, 3-QQQ, 8-RRR, 3-SSS, 8-TTT, S-UUU, 3-VVV, 3-WW, 4-VV, 4-WW, 4-XX, 4-YY, 4-ZZ, 4-AAA, 4-BBB, 4-CCC, 4-DDD, 4-EEE, 4-FFF, 4-GGG, 4-RRH, 4-III, 4-JJJ, 4-KXK, 4:LLL, 4-MMM, 4-NNN, '4-000, 4:-PPP, 4-XXX, 4-YYY, 4-ZZZ, 4-AAAA, 4-BBBB, 4-CCCC, 4-DDDD, 4-EEEE, 4-KKKK, 4LLLL, 4-MMMM, 4-NNNN, 4:-0000." For the sake of clarity, we will diacu11 one b:v one all the erl'Or& asisgn.ed by both parties. Assignment of Error No. 1 Petitioner claims, under this error, that the Court of Appeals failed to pau upon each and 8VerJ01lE! of tile 43 ballota hereiin. enumera.ted; aa con-ectly pointed out by tile respondent, said ballots were considered and passed upon by the Appellate Court, u could bo seen in its decision attached to petitioner's brief, Petitioner submits however, that the Cou1t· of Appeals counted in favor of the respondent ballots which should have been rejected and rejected thoH that should have been counted in his (petitioner's) favor, and discussed them in his brief. We will decide these ballots individually. November 80, 1960 L~ WYERS JOURNAL 389 Bslr.i&it A-&. Counted in favor of respondent and assailed by petitioner as marked with Roman number III appearing in line 4 of the spaces for councilors. Respondents contends that the allepd mark is not really so but the initial "M" of the name of the candidate .Marcelino Hernandez. We have carefully examined thia ballot and· we agree with respondent's theory; consequently, this ballot waa rightly counted. in favor of respondent. Bdi&it C-1. Counted in favor of respondent rd ass'\iled b pctit"oner as marked hallo\ the mark bei~ the word 11Recto'" written eight times on the eight spaces for senators; the name "P. Cataiiag" written two- times on the second and third spaees for councilors; and the name "F. Catapang"' written three times .on the 4th, 5th and 6!h spaces for councilors. At first impression, the r,petition in the writing of the names of Recto, Cataiiae an·1 Catapang in the ballot in question may constitute either a marking of the ballot or merely an enthusiasm of the vote1· for thH-, three candidates. The majority opinion is that this ballot is marked and should not be coun~d in favor of petitioner. The writer of this opinion, however, believes that the repetitious writing of the names of Recto, Catailag and Catapang is nothing but an ind:cation of the enthusiall!m of the voter for them. The ballot is rejected. Exhibit D-S. assailed aa marked ballot in view 'of. the word "Asion" written on the third line for councilors. Upon careful o:amination of this ballot, we find that the word "Asion"' may l'tspotld, as Contended by respondent, to the nickname of a penon ?."horn the voter wanted to TOte for, as it is common knowledge that 11Asion" may be a nickname or petname of Atanasio, Anas• tasio, Engracio, or Pan~racio, and does 'hOt nece11a1ily mean ~n irrelevant e:ir.pression which may mark the ballot. Bslt.ibita E-6, F-0, F-7, G-7, H-7, l-56, J-49, J-55, J-61, K-6, K-88, K-87, K-49, L-12, L-18 and L-14. Petitioner contends that in each and everyone of these ballots respondent was not the candidate YOted for, or at least the peraon voted for is not sufficiently iden'ified. This cont.ention is not well taken, for upon careful e:ir.amlnation of these ballots, the names "Reyes"'. "Ti ris", •·Keiria poro Ries", 11Teryfe", .. T. Reues", "T. Rivies'1, "t. R'.ss", "T. Reyes", "T. Reus", "te Reiz", "T rejies11, 11T. Ryss", "T Reyeaa," .. te Riz" "te Rejes" and 11T. Rez'1 appear to be vo-~ecl for in the space for mayor. Undoubtedly these are good ballo!s for the reaponden:t. B~libit H-z, claimed to be marked with the word 11Maplang'' written on the 8th line for senators. Respondent claims that such word ia simply the mispelled surname of Enrique Maplona, candidate for senator. We agree with this theory, and therefore this ballot has been properly counted for respondent. Bzh.ibit H-6, assailed as marked be:auee it was written in ink. Evidently thia objection is not well taken, having in view paral'raph 10 of See. 149 of the Re•isOO. El:ction Code which prov.ides that "Any ballot' written with crayola, lead pencil or with ink, wholly or in part, fs valid." Ezlr.ibit H-9, objected to u marked because o-f a bil' "x"' placed and covering the blank spaces Noa. 3, 4, 5, 6, 7 and 8 for senators; another big "X'" plaeed and covering the blank spaees Nos. z, 8, 4, Cii and 6 for councilo"':'a; and a small 11x" placed on the blank space for· senator, special election, at the foot of the ballot. The objection. fa not well taken, for evidently, the said "X'a" merely mean that the "l'Oter deaia~ed from voting for the positions covered by those "X's" as ao pointed out by respondent. B.,;hilrit J-00, claimed by the petitioner as marked because of the vote for Santiago Makabunot on the si:ir.th line for counci~ lora. It is contended that the name Santiago- Makabunot is purely hnaginary or indecent. We find no reason for this contention. This ballot Is valid, for the YOte for a person to the off'.ce to '\li;hleh he is not a candidate is considered a stray vote and doe;1 not invaliate the ballot. Es'6il>it K.-10, usaUed as marked ballot because o-f tbe "initials appearing at the upper right-hand corner of the ballot. The r&· cord shows,, howeYer, tbat •aid initial• were identified by · Bermogenes, Daagn, Chairman of. the Boa1"d. of Election Inspectors of Precinct 10 as his, who testified. that he placed them to indicllfi~ that said ballot was accidenally torn when the 1ame was detached from the stub. The alleged initials, therefore, cannot be eon1ldered as an identifying mark. Exhibit K-14, claimed to be marked because of. the word "E· mong" written on the 6th line for councilors. It is claimed that there was no candidate for councilor with that n!ckname, and th·"T.t· fore, this word is an ldentifyinl' mai-k. It is apparent that 11E"Tlong" may be a nickname of Guillermo or Geronimo; consequently the vote for "Emong" should be considered as 1tray vote and not a mark to identify the ballot. .E'sAibit K-18, also contested as .marked because of the words 11Ten.inten1 Anong"" written on the sixth line for councilors. This ballot is in the same category as Exhibit K-i4 and therefora should be counted for reepondent. Es'6iblta K-38 and K-39 are objected to on the ground that the word "Porong0 in the space for mayor in Exhibit K-38 and the word 11Purong" in the corre.sponding space in E.:ir.hibit IC-39 are not accompanied by respondent's surname and therefore thes'! ballots cannot counted for him. It is uot disputed that "Porong" or "Pu:rong" is the nickni.me of respondent Tele.sforo Reyes, and there being no other candidate for mayor With such a nickname we hoJ.d that the person voted in these- tv..-o ballots is the respondent. •Petitioner contends, however, that these ballots should be rejected in accol"dance with the ruling of the l!:lectoral Tribunal of the House of Representatives in the case of Sosa va. Lucero where two ballots bearing oDty the nickname 11Manen1" were rejected on the ground that they do not sufficiently identify the eandida·{\ voted. for. We are of the opinion that the Sosa case is 'DOt applicable to the pi-esent because It is not disputed here that 11Porong" or "Purong'' ia the nickname of the respondent Teleaforo Reres, and no evidence waa adduced to show that there is another can· didate for ma70r with that nickname. E~libit• L-12, L-13 and L-14 are enumerated as among those • not passed upon by the Court of Appeals, but petitioner fail.W to apecifJ" his objections thereto, and upon examination of. these ballots we find that the respondent ta the one voted far maJW. Petitioner assails the rejection b,- the Court of Appeals of the following' ballots, and claim.a that all Of them should be counted in his favor: Bd.i&it 1.q, rejected by the Court of Appeals as marked ballot for the reason that the voter only wrote the initials of the names of the candidates, with the exceiotion of the complete names. of "C Recto" for senator, and "Luis Gutierrez" and A. Cassalla11 for mayor and vice-mayor, respectively. There ia no evidence that said initials are not thoae of the names and B".Jrnames of candidates whom the elector intended. to vote for. We have ezamined. theae imtiala, written in printed form and in capitals, and we find that they may refer to the initial letten of the names and surnames of the candidates for .senator, such as "F.R." for Francisco Rodrigo, 11Q.P." fpr Quintin Paredes, ''P.R." or "D.R." for Decoroso Rosales, "P.S." for Pedro Sabido, "P.W.'" for Pacita Warns, and D.A. for Domocao Alonto. This ballot therefore, cannot be considered aa marked and should be counted in favor of heroin petitioner. Bzh:i&ita 3-QQ and 8-HHH, rejected by the Court of Appeals on the ground that they were written by two hands, but claimed by petitioner aa written by one hand. These two ballots were th'! subject matter of expert testiDlOllJ" who testified that they weN written by two hands. No rea&Oh having been advanced for disre1ardin1' the expert testimony, we find no ground for dsturbing the opinion of the Court of Appeals. Ed.ibit 8-UU, rejected as marked. because of the word .,Lemaa•• written on the space for senator, apeclal election. This is in the ea.me category as E.zbibit D-8 which" we declaTed valid in favor of respondent; consequenU,., this Bl:hlbit 3-UUU should to counted, in favor of petitioner, for the word "Lema&" is not ne-LAWYERS JOURNAL cuaarily an irrelevant expreseion written for the pu1-pose of identifJing the ballot and it may refer to the sumame "Lim," candidate for senator Roeeller Lim as claimed by petitioner. Eadaibit 4-CCC, rejected as marked because there were voted "Telian" and 'l'ipgo" on the 6th . and 6th spa.cu for aenaton, i-eepectively. Jfetitioner contends that said names cannot be considered aa distinguishing marks because they ma1 be intended for Esteban Abada and Santiago Fonacier, respectively, who were candidate& for aenator. There ia merit in. this contention; hence, thia ballot should be counted in fa"YOr 0of petitioner, having in view the conatant doct1·ine of our coarta of justice that no ballot 1!1-hould be declared null and void as marked unleBB there are c~ear and sufficient reasona to justify such conclusion. Baidea the words "Tebpn" and "Tiyago' are not irreluant expressions that may render the ba1lota invalid as marked. B'zh.ibita 5-B' and 6-H, rejected as marked because in each of them the name "Quizon" was voted for senator. The rejection should be recomaidered, .as the "vote for Quizon should be considered as stray vote (paragraph 13, Sec. 149, Revised Election Cade). Eshibit 6-T, rejected by the Court of Appeals on Pie ground ·that the one voted. therein for mayor is not the petitioner, but claimed. bJ him maintainiDI' that under the doctrine of idem BOJtGt11, this ballot should be counted In his faYOr. The name voted for in this ballot Is "L. Argolliz" who la clearb" not the petitioher; hence this was properly rejected. Bzhibit 11-A, rejected by the Court of Appeala and claimed b;r petitioner aa valid vote for him. The person voted for maYor in this baUot is "Gllo" which has no semblance what.aoever with Luia Gutierrez: hence, the rejection of this ballot is correct. Ezldbit 12-E, ~ected by the Court of APPeals for being marked with the name "Dador Pastor" wrl~ on the second space for senaton. This ballot, like Exhibit& 6-E and 6-H shoul.i be counted "in favor of petitioner, for the vute for Dador Pasior is clearly & ltr&J' vote, there beinl' no indication in the record that "Dador Pastor"' has been written to mark the ballot. E11:kibit 12-0, rejected by the Court "of Appeals as the one vot.ed for mayor is "Lures" or "Lueres" and not the petitioner. Upon· the face of the ballot. the rejection v.-as justified. Ezhibit 19-Q, rejected by the Court of Appeals aa marked with the capital letters ••A B C D," claimed by petitioner IUI good ballot on the ground that the "A B C D" responds to the samarne •1Abeede" of the candidate for senator Alfredo Abeede. The ~ontention ia well taken, for "A B C D" sounds "Abcede". This ballot was prepared by a voter who is not well versed in handwriting and evidently he wanted to vote for the candi.iate Alfredo Abeede. . . Ezkibifl 12-R, 12-8 and 12· V are mentioned umier this assignment of error, but nofl discussed in :Petitioner's brief. Upon examination of these ballots, we find that in Exhibit 12-R the person voted for mayor is Luis Hernandez, clearly written; in Exhibit 12-S the word written on the apace for mayor is 'Menaloz;" and in Exhibit 18-V the space for ma;ror is left in blank. Evidently, these ballots cannot be validly claimed by the petitioner u the names "Luis Bernilndez" and "Menaloz" cannot certainly refer to mm. · ASSIGNMENT OF ERROR II Th8 18 baDots enumerated under this second aaaignment of error qaotad hereinbefore haw been rejected by the Court of Appeals on the ground that they v.we written by two hands. They are now elalmed by the petitioner as good ballots for him. We have examined. carefully each and evel'J' one of these ballots aJld wel find that, whfeh the exception °' Exhibits 8-L 11-T, 1-S and 8-A which in our opinion are written by one hand, all the rest were reall:r prepared by two hands and there· fore illepl and void. Petitioner, however, contends tha.t there being no additional evidenee to the effect that the ftllinl' up of these ballots 6u two luJna. haa 6en made dvrin11 the 110Mn11 cmd' 6~/on ti&.,- ••re cf•poaifetf in. "'- baU9t lt(IZ88, aaid ballots should not be declared null and void for the mere fact that they appear to have been prepared b:r two handa. Really paragraph 28 of See. 149 Of the Reviaed Election Code provid.11 aa followa: 11An:r ballot which clearly appears to have been filled by two distinct persons before it was deposited in the ballot box during the voting is· totally null and void." It is clear under this proviaion that a ballot appearinl' on ita face to have been written by two distinct hands is null and void, thus creating a presumption that such ballot has been caat, as is, during the voting, a'lld. this presumption can only be overeome by the showing that the tampeiing with the ballot was made after it had been deposited. in the ballot box. Moreover, in this jurisdiction as well as in the Electoral Tribunals of the Senate and House of Representatives, the common doctrine is to the effect that ballot& clearly appearinc to be written by two distinct hands on its faee are null and void. In this particular case, there is absolutely no proof that the bal_lota in question have been. filled by two hands AFTER they had been depoaited in the ballot box; hence,. the rulinc of the Court of Appeals declaring theae ballots as null and void for having been prepared by two diatinct ham.is should be maintained. As to ballots Exhibits S-L, 11-T, 1-8; and 8-A whieh we find to have been. written b7 only one person, ·they should be a'Cljudieated. to the petitioner. ASSIGNMENT OF ERROR Ill The 126 ballots disputed under this assignment of error have been ab-eadJ' enumerated hereinabove. Petitioner claims that these ballots are null and void for having been filled bJ two different hands and should 1l0t have been countsd in favor of the respondent. We have painstakingly scrutinized each and ever;r one of them and find petitioner's contention to be ·not well taken. Although we observe that in some ballots the voter used printed capitals mixed with ordinary handwriting and in others the voter wrote in capitals only, aaid ballots do not appear to have been prepared by two distinct hands. The respondent, in refuting this error, made mention of lM ballots cou~ted. in favor of petitioner deapite the fact that they ware written b;r two diffennt hands, an:l asked this. Tribunal to reject said ballots should we find that the respondent's 126 ballots a.ssailed under thi• auignment are invalid. In other wor.is, respondent claims that we should apply the same yardstick in the appreciation of ballots ander this category. We have also examined. the 121 ballot& assailed b;r respondent as written by two diatinet baud& but counted in favor of petitioner, and we are aatiafied that they were wriiten by only one hand. We therefore declare both .sets Of ballots as valid votes, and should be accordingly and 1'9lpective11 counted in favur of the claimant. ASSIGNMEN'l' OF l~RROR IV The eight ballots under thi11 auipment of error were rejected b;r the Court of Appeals on th<- .ground that the person voted therein. for maJW is iLot the petitioner. It is claimed, however, that under the theory of id'etn- 80Kflft8 they should be counted in his favor. We have earefull:r examined theae eight ballots and we find that, with the exception of Exhibit 6-PP, 'DO reason extsta for disturbinl' the finding of the Court of Appeals in rejecting them, for the name written on the space for mayor is either undeeipherable or totall,:v foreign to the sound in. Loia Gutierrez, such aa the "loas", in Exhibit ·1-BB, ''Lolio Gotiferm" in Exhibit 9-A, "L. Cuncou" in Exhibit 2-W, "Laulls Eriiarz'' in Exhibit 4-LL, "Zetta" in Exhibit 6-C, "Lora Coliers"' in Exhibit 8-L and "L. (llle&ible)" in Exhibit 10-T. In Exhibit &.PP, how· ev'1', "L.Golierez" or "L. Gutieres" ts wrilten on the space for m&JOr, and this may be eonlridared as. vote for Luil! Gutierrez, it appearing that this ballot was prepared by an unt1:ained hand and the voter simply forgot to ero.sa the "l" to make it "t" and to put a dot over the "i". November 30, 1980 LAWYERS JOURNAL 341 ASSIGNMENT OF ERROR V The six ballots involved. in this error were admitted by the Courts of Appeals and adjudicated. in favor of the respondent. Petitioner assails them as marked ballots which should have been deducted from ft:11pondent's votes. lt · is claimed that Exhibit A-10 is marked by the .fipre 1'7" written. on the fourth space for councilors, leaving apaeea & and 6 in blank; that Exhibit D-5 is marked by the name "Oliva Bolar'' written on the eight space fo1• senators but leaving sPaees 4, 5, 6 &l}d 7 in blank although spaces 1, 2 and 3 have hem filled; the same is true with Exhibit D-6, only that the "0 Bunggo" is written cm the eighth space for senators; that Exhibit J-48 is marked by the name "Santiago Jilacabonot" written on the eighth space for senators leavinc 6 and 7· in blank; Exhibit K-15 is ma.rked because "Pio Ilagan," was voted for senator who was not a candidate for that office; and that Exhibit lC-28 ta likewise marked because "Mau1risio Jasa"' was voted for senator without being a candidate. On the fae9 of the ballots, We find nothing to disturb the f"mding of the Court of Appeals, as these are not marked -ballots as contemplated by law. COUNTER-ASSIGNMEN'r OF ERROR I. • Under this coun~asignment of error, respondent claims that Exhibits 3-N and 8-1 which were counted and recorded as gOOtl votes for: petitioner, should have been rejected on the ll'OUnd that "L. Gat" written on the space for mayor in Exhibit S-N and the ''L Gat" or "L Got" written in Exhibit 8-1 do not sufficiently -identify the petitioner lll!I the person voted for mayo1·. Under the well-respected doctrine of idem aona.m we find no error committed by the Court of Appeals, fOr the "L" stands for Luis and "Got" or 11G&t" repreeents the incomplete surname of Gutierrez. Besides, there waa no other candidate for ma;t-or whose initials are L. G. other than petitioner Loia Gutierrez. COUNTER-ASSIGNMENT OF ERROR II Under this counter-assignment, respondent claims that Exhibils A-1, K-22, K-23, I.·19 L-19 llhould not have been· rejected by the Court of Appeals on the cruund that said respondent was tho we voted for m&)'Or therein, for although these ballota were filled in an inverted. position, the respondent appears voted therein . We haTe examined these ballots and find no reason how the contention of respoildent could be sustained.. Not even under the adjustment theory could these ballots be- declared for respondent. These' ballots, therefore, were properly rejected. COUNTER-ASSIGNMENT OF ERROR Ill Exhibit C-8. This ballot was rejected on the ground that it is "Teofilo Reyes" and not Teleaforo Reyes who appears Toted therein for mayor. On its face, this ,ballot appears to have been prepared by one who writes we11, and it is to be presumed that he could not have mistaken TeofiJo Reyes for Teleaforo Reyes; therefore, this ballot cannot be counted as good vote for rea· pondent. COUNTER-ASSIGNMENT OF ERROR IV Esldbits K-29 a.19d L-10. These were rejected. by the Court of Appeals as marked ballots, it appearing that in Exhibit K-29 .. Vidal Araiio" and, Nemecio Araiio, Jr." appear voted fo1· senators, and in Exhibit L-10 "Satur Abra", "Maurie Mac," "A. Calinpun," "A. Marasican," and L. Macalin1ag'1 appear voted for senatore. Respondent claims them as valid votes in his favor on the ground that there is 110 proof aliunde that the afo1-ementioned vote for senators was a means of identification of said ballots. Thia contention is well taken, ll!ince the votes for persons who are not candidates for the office should be considered as stray votes. Theae two ballots should be counted in favo1· of 1-eap!)n.ient. COUNTER-ASSIGNMENT OF ERROR V Eski6it. H-8 "1ld J-«, rejected by the Court of .Appeals as marked ballots and now claimed by respondent as valiJ votes in his favo1·. In Exhibit H-8, the phrase 11 panalo ito" appears written immediately after "T. Reyes" and in Exhibit J-44 th"e word "paham" appears written on the space for senator, epecial election. We find that "panalo ito" and "paham" are irrelnant TalalOI' expressions intended to identify the ballot. "Panalo ito" meana "this wine" and "paham" means "wise", and both expresalons do not respond to the name of any person. Then. .two ballots have therefore been properly rejected. COUNTER-ASSIGNMENT OF ERROR VI Only one ballot, Exhibit· 1-H, is involved in this counterassi.pm.ent of error, which was rejecied_ by the Court of Appeals becauae the "Reyes" voted for mayor appears to have been cancelled or erased. We have examined. this ballot carefully and we find that there ie: really a line crossing the upper part of "ey" but did not cross "&-es," and there is noo clear indication that the vote1· meant to cancel entirely the vote for Reyes. Havins "in view our ccmaiatent rulinc that the courts should be slow in annulling a ballot and that the eame should be read liberally to cive way to the wm of the voter, it is our considered opinion that this ballot should be appreciated in favor of the respondent. COUNTER-ASSIGNMENT OF ERROR VII Exhibit K.-36 ia the only ballot involved in this counterasaigmnent wherein the w.1>rd "T Beres" or "T Berer" appears written on the space for mayor, the rest being left in blank. Respondent claims this ballot as vote for him, but we find that this word written on the ballot appears meaningless and entirely lorei&'n to the name Telesforo Reyes. We fincJ, no reason fo1· disturbing the findinc of the Court of Appeals. COUNTER-ASSIGNMENT OF ERROR VIII Exhibit L-16 is the only ballot involved in this counte1·assicnznent, which the Court of Appeals rejected on the ground that the "T . Reyes" voted for ia written on the apace for vicemayor. Re.sponden.t claims this ballot to be valid in his faTOr because, upon proper adjustment, the "T. Reyes'' will fall on the apace for mayor. Examininc the ballot, we see that the only names written on it are "Recto" on the first line for senators, "T. Reyes" below the printed line for mayor and "P. Castillo" below the printed line for vice-mayoi·. "T, Reyes" and "P. Castillo" appeal' written one immediately below the other. Pursuant to the provisions of Sec. 186 of the Revised Election Code, the name of a candidate should b~, written on the proper apace. In this particular cue, really, the names of "T. Reyes" and "P. Castillo" are not written on the proper spaces for mayor and vice-mayor; but, considering that Tele.sforo Reyes and P. Castillo were the only candidates for mayor and vice-mayor of tlieir political group, and that "T. Reyee'' is written just below the line for mayor and "P. Castillo" is w1·itten belo"\\· the name "T. Reyes," and thatl the ballot was left in blank except for the three written names of Recto, Reyes and Castillo, it is our conaide,.-ed opinion that the voter intended to vote for Reyes and Castillo for municipal office& and in fact wrote their names one immediately below the other in such a way that, if these two names were to be slid an inch farther up, they '\\ill not only coincidl!I with but will fit mugly in. the spaces alloted for ma70r and vice-ma70r, respectively. This vote should thei:efo1'8 be counted in favor of respondent • COUNTER-ASSIGNMENT OF ERROR IX Ezhibits 1-X, 6-A and 6-1 were admitted by the Court of Appeals aa valid votes for petitioner, but respondent aseaila them on the ground that the petitioner is not the one voted for the1-ein. Upon examination of these ballots, we find that "L. Tutirres" appears written on the space for mayor in Exhibit 1-X; "L Culurres" appears written in. Exhibit 6-A; and ••L. Galukiris" ap.. peara written in Exhibit 6-1. Theae n~s really aound "Gutierrez" and the Court of Appeals correctly &dmitted them u~ the theory of idem 1onana. COUNTER-ASSIGNMENT OF ERROR X Under tbia error, ballot Eshibit 4-F and aot 4.-FF is disputed. It wea counted as good ballot for petitioner by the Court·.of 342 LAWYERS JOURNAL November 30, · t960 Appeals but assailed as marked because of the name 11Dionislo Tapero" written on. the space for senator, apeeial electioa. This ballot is valid for lack of showing that the name 11Dlonisio T ... pero" waa written to mark the ballot; evidentl:v this is a stray ..... COUNTER-ASSIGNMENT OF ERROR XI Under this counter-assignment, respondent claims that the 107 ballots counted by the Court of Appeals as valid votes for petitioner should be disregarded. as the same were cast by unregistered voters. This error was raised before th. Court of Appeals and decided against respondent on the ground that said voters admittedly appear in the voters' list Of the preeincta concerned, .and that aa lone as they al'e not stricken off, the list stands as conclusi;ve proof that the:v were dul:v registered voters. In his brief, petitioner admits that the names of these voters are really registered in the permanent list of voters tor the year 1966 in the municipality of Alitagtag; that their names were not the aubject of exclusion proceedings in the· Court of First Instance, and that their ridit to vote was 110t contested during the election. In the absence of refutation of the tact that these voters appear In the permanent list of voters for 1965, we find no reason tor disturbing the tindin&' of the Court of Appeals that· these 10.7 votes wel'e nlidly cast. In conclusion, we hold that the 12 ballots Exhibits 1-Q, 8-UU, 4-CCC, 6-E, 6-H, 12-E, 12.Q, 8-L, 11-T, 1-S, 8-A and 6-PP' individually discussed above should be added to the 1918 votes • adjudicated b:v the Co\lrt of Appeals to the petitioner, thus Increasing the number of votes cast in hla favor to 1928. On the other hand, from the 1933 vote& adjudicated to the respondent, one vote (Exhibit C-1) should be deducted therefrom, leavins a total of 1982 votes. To this, however, tour votes (Exhibits X-29, L-10, 1-64 and L-16) should be added, thus makinc a iotal of 1938 votes cast In his favor. WHEREFORE, with the modification of the decision appealed from along the lines above Indicated, the same Is hereby affirmeJ, and respondent Teieaforo Reyes declared elected to the office of municipal mayor of Alitactag, province ot Batangu, with a majorit1 of ei&"ht votes. With coat& against petitioner. Ptm18; C.J., B""l/zon,~· , Mont,11&1Zf1or, RoVM ~ Bauttiatm Angelo, LGlwador. and • , JJ., concurred. Ill Ca.yetano Dml.gu, Petition.er. t•s. Fnznklin Buker COf1VllMl.V of the PAilippines cmd Wofflmen.'s Com.pel&BGtion. Com.miuioa, Res,,ondenta, G.R. No. L-16838, April 9, 1960, B""""'- l. 1. WORKMEN'S COMPENSATION LAW; INJURY RE· CEIVED BY EMPLOYEE OUTSIDE OF HIS EMPLOYMENT BUT AGGRAVATED IN THE COURSE OF EMPLOYMENT IS doMPENSABLE. - In the case at bar, petitioner's right eye was Injured, whi~ he was engaged in the performance of work outside of his emplo:vment, but said injury became worse or was aggravated by the accident which he met, while performing work in the course of his employment in respondent company and, therefore, be is entitled. to compensation2. ID.; EFFECT OF FAILURE OF EMPLOYER TO CONTROVERT EMPLOYEE'S CLAIM FOR COMPENSATION. - The rule is that when. the employer does not controvert the elalm of the employee for compensation, he is also deemed ·to have waived his right to interpose an:v dafense, and he could not prove an::vtJJ.inc in relation thereto. .DEC IS I 0 !~ This iD a petition for review on certiorari, of the decision dated. March 12, 1959 of respondent Workmen's Cl)Jftpensation Commission, and Its resolution, en &tznc, of June 23, 1969. In the morning of July 1'7, · 1964, while petitioner Cayetano Dangae, an emplo:vee of respondent Franklin. Baker Compan:v of the Philippines, was cleaning his kdn.git\ his right eye was hit by the leaves of a shl"tlb known aa 11payang-pa;vanc"'. Since his right eye was becoming reddish In color, he consulted reapon.ient company's physician on Jul)' 19, 1954. Apparentl:v findinl' nothing serious, he was allowed to work. On the following day, Jul:v 20, 1954, while petitioner wa1 In the courae of his work a& sheller (shellinc cocon.uta), his right e:ve was struck by flying speek of cc..conut shell. As a result,. there developed an unbearable pain and bllllTing of vision· On July 21, 1964, upon the advice at respondent compan:v'• ph;vaici.an, :petitioner-. waa given leave of absence, which waa extended from time to time, until November to, 1954, when he resumed work. During this time, he was thrice cperated on his injured e:ve and austained a .16.4%. loss of 'tision, thus causing his temporar:v total dJSability and permanent partial disability. For the entire period of his said leave of absence, from July 21, to November 10, 1954. petitioner was not paid 8DJ' compensation by respondent company. On September 6, 1964, petitioner filed 'With the Deitartment ot Labor a complaint a1ainst respondent company praying, ititft'" alia., for pa:vment of compensation in accordance with the Wort-. men's Compensation Act.• On June 10, 1967, after due hearing, the Rea.ring Officer of Ie:Spondent Commission at San Pablo City rendered a decision f Annex A) ordering respondent compaD.1' to pay petitioner- the . amount of P460.7'7, aa compensation puTSuant to Sections 14 and n Of the aforecited Act. Onn June 21, 195'.1, respondent compaBJ' filed with reaponden.t commi11ion a petition tor review of said declalon of the Bearing Otficer. On March 12, 1959, reepondent Commission rendered a decision dismissing petitioner's claim for compensation and a• !IOJving respondent company from liability. From this decision, petitioner filed a motion for reconsideration, which motion, was denied b:v respondent Commission in its resolution eKJ bGft.O of June 23, 1969 (Anno: C).Z Bence this petition for review. Petitioner claims that reaponden.t Commission erred in diami11- • ing his claim for compen1ation. We agree with petitioner. It la not disputed that petitioner, after consultiq the com,pan:v phJBician about his eye, was allowed. to report for work. Thia fact indicates that .the first injury, if at all, received on July 17, 1954 Was not serious. U it were so, respondent company would have undoubtedb", and by all mean1, advised or even prevented him from reporting for work, and petj,. tioner himself would not have been able to go ab~t !hi• taaks, considering the utreme aensitiveneas of the human eye. It ap .. pears, however, that after he met the second accident while working for the company aa a sheller, petitioner was, OD the followlna day, or on .July 21, 1954, advised to go OD leave, which Indicates that this second accident was serious, as in fact it Was, as he had to be operated on thereafter and his leave continued until Nov-ember 10, 195'. True it Is, that petitioner's right e:ve was injun.1 "·hlle engaged in the performance of work. outaide of his employment, but aaid injury become worse or was aggravated by the 11:C"Cident which he met, while performing work in the coarse of bis employment In respondent compan1· Conaeqaently, he ia entitled to compensation. "Recover:v will not be prevented because the consequences o1 the injury received In the accident were aggravated b7 the emplo:vee's ph7sica1 condition at the time the illjury was received." (71 C.l. 806.) "But even aasuming that appeDant's left e:ve wu alrea;IJ defective when he entered appellee'& emptor, neverthelesa it is clear that the defect was somehow aggravated or accelerated b:v his mployment and· altimatelj neceasitahld an operation by reason of the accldeut In quaation. Appellee is not r Act No. 3428, as amended. ' 2 With Associate Commissioner Nievet1 Bae11a del Rosairo di.~ting ~in a separate opinion. November 80, 1960 LAWYERS JOURNAL 343 therefore relieved of responsibility under the Workmen's Compensation Law, for acceleration of a previously existing disease in an injury under the Wo1·kmen's Compensation Laws (Brightman v. Aetna Life Insu1·ance Compaey, 220 Miss. 1'11 107 E·E. 627), and it is sufficient that the injury and a preexisting disease combined to produce disability in ordtn' to make the injury compensable." (71 C,J., 614; laar v. Kellog and Sons, 40 O.G. 167). "The fact that the emplo7ff suffered from impaired Yi· lion prior to the accident aoes not .in-event the loss or fur-ther impairment of bis vision from constituting an injury such as the slatute authorizes compensatiOn for." (Hicatu1· v. Hunter, 89 Pa. Super. 898.) · '"Where a steel chip flew into an employee's e)'e, accelerating the development of a cataract and causing the loss of sight, he swfered an iDJury withm the statute." (Kueinic v. United Engineering and Foundry Co., 160. A. 844: 110 Pa. Super. 261.) · ''W.b..a-e a miner while at work was struck so hard a blow on the left eye h7 a piece of coal that it accelerated the development of a cataract in that eye. and made nece. sary an operat.on wh.ch resulted in the loss of tht! vision of the e:ye, he 101f..,red, an injury with the statute." (Sakunaa Ji· Philadelphia and Readinc Coal and Iron Co., 78 Pa. Super. 261.) "An employee was struck In the eyes by a stream of analyne. Iba Q'e& ,were injured, and he was advised by the em}llo;ver'a ph;va1c.ian t.o wear dark glasses. A month later w.nlle wearinc these Oaasea, be fell downatain and permanently inj01-ed one e)"e. 'J:he second injucy was held the natural and proximate result of the :first ace.ident." (VI Schneider's Compensation Tu.t, 30-40, and eases therein cited.) "The Workmen:s Compensation Act is a social legialation designed to cive relief to the workman who bas been the viet.m o1 an accident in the pursuit of his employment and must be liberatb- eonatrued. to attain the purpose for which it bas been enacted.'' ('11 C.J. 841-362; Ramos v. Poblete, '13 Phil. 241; Francisco v. Consinc, 683 Phil. 364.)3 ,Petit.:oner also contends that respondent Commission erred in aholril:.g re~pondent eomp&llJ' from liability, in spite of ita non.c...mLroVeI"aion of peti.ioner's claim and admission of his injury in the performance of his regular work. There is also merit in the contention. Examination of the recon;ls of the ease diaeloaa that the Eo;aployer's Report of Accident or Sickness, eigned by reaponde11t company's personnel manC.J?er, Mr- Gregorio Imper.18l, contains the followinc: (1) u to etJnl.lovt:rBion, said report atated "No", indicating that respondent company will not COD:trovert petitioner's claim; (2) as to the queH.on, "was he (peStloner) inju.ed in regular oceeupationT", the answer is "Yes·'; and (8) as t.o the de~ription of the arcic!tnt, said report stated: "while taking off the shell from a coconut, a speck of coconut shell hit his (petitioner's eye!' A& a r1;le, when the emp~yer does not controvert the claim of the 1:mployee for compensation, he is also deemed to have waived his right to interpose any defense, and he could not prove anything in relation thereto. (Vlletorias Milli!W' Co., Inc. v. Compensation Commissioner, G. R. No. L-10638, prom. May 13, 196'1.) WHEREFORE. the appealed decision and resolution of respondent Commission an set aside. ltqpondent Franklin Baker Co. is hereby ordered to pay petitioner, the amount Of P460.'17, as compensation in accordance with Section 14 and 1'1 of the Wo~ men's Compensation Act. and to pay the amount of P&.00 to i-espondent Commission, pu··nant to Section 61 of the same Act. With coats qainst reapondent eOJD.p&DJ"o ' SO ORDERED. Pmraa, C.J., Bngson, Pa4iUtJ. .llon.tn&mpor:, Ls&rsdor, Ctm' See II Fr.,,.. Labor Lawa (Brd Ed.) 187-141· ........ - B1ul ...... iJ. concurred. J.B.L. Bep1, J., on ve, took no part. Tn'niidad de lo1 81/ft Vda. ~. SnU.,o,. /Of'" Mrself and in b~h,o,/,f of h.et' minor oltild.ren, Mamato, L,;onila, and Andrea, aU Arnatn111t ban.t.Ggo, Pet10WMr1, w. Ang.ta S. R.e.,,ea and Wcwk1""1&'11 Vompun.acmon. Comm.uinon. .Beaponctents, (i.R. No. L-UU15, ft't:bru.tJr/I 2kt, lwtiO, Labrador,. J, 1. WU.RKm..l!i.1'11 S CU.M~.l!i.l'll~TION' LAW; PRESUMPTION OF P.l!i.U.l'"V~A.1.'llt.:J!i U.b' lJU.u..1!.1:1 .Hr J!:.&d..t"l..U.l.i!.J!O, - ln the ease at Dar, it ia a fact that be.tore leaving ltl.anila, t.b.e aeeeMaed waa enpged. in tus ~ployment1 an.a &Ile p.L~.iumption i8 that he pt:r.iormed h.la aut.ies legail)' and in aecoruanee WJth the l"Ules and regulativna bacuuae t.b.at was h.ls ngunu ob11ga1.1on and it 18 mcumDi:nt, t.b.e1:1:101-e, upon t.ne responuent to prove that the deeeu.at:d volunurlly went. out of Ilia i-oute &Dd arove Illa Jeepney towaraa tile provmee of Quezon, not that the deceaSt..Ci voluntarily went to that pro\'"ince tllercby eo1ng beyond the route proviued for the ve.b.lc.1e that he WU driVllll'~ . 2. ID·; PRESUMPTIO!i( THAT EMPLOYEE DIED IN THE COURbE 01!-' EM~LOY.M.l!;NT. - In the eaae at bar, the death Of the "JmJ,Jloyee must be presumed. to h&ve arisen out of hia emplo7mmt because there is a presumption that the deeeaaed. died while in the course of his emplo;vme11t. DECISION This is a petition· to review t.he decision of the majority of the membera Of the Wo1·kmen'a Compensation Conunission, denying a cl&lm for compensation of petitioners for the death of \'ietoriano Santiago, driver of a jeep.ney operated. by the respondent. 'l'h' l&lC1 deceased was the driver Of an aut.o-calesa belonging to respondent and waa last seen operating said autocaleaa at 9 :OD in the evening of beptember ~6, 1965. Jn the 1n0rninc of September 27, 1956, hia dead body was found in Ta1abu, Quaon, obviously a Yietim. of murder b)I' persona who were at large and whose identities were not known. ApparentiJ' the driver must. haq been attacked with blunt instrument or instrun1enta u an examination ol his head diaclosed that it was hea~ily fractured, fragmenting it into ma.DY pieces, crushing and lacerating the brains. (Stipulation of Facts). Other pertinent facts In the stipulation of facts submitted by the parties are aa follows: ' 1That there la a speei:f'"ie lnatraction given by the respondent to the deceaaed to follow the route prescribed by the Public Service Commission. Jn the ease of jeep driven by the deceased, ita route is within Manila and suburbs; That it has always been the practice of the respondent that, whenever the driver is accepted, specific instruction is given to him to follow faithfully the traffic rules and regulations, eapeeialiJ' apeeding and overloading, and he i8 r&queated. also not to operate beyond the route given by the Public Service Commisaion· In ease the driver goes beyond the route prescribed by the Public Service Commission, a fine o1 P&0.00 is imposed which i& paid by the respondent. However, in ease of the traffic violations, especially speeding, it is the driver who pa.J'S. (p. 2, Anna "E"). Two of the members ot the Comrniuion made the following finding on the question as to whether or not the death of Vietoriano Santiago aroae of and was occasioned. in the course of his emplOJ'Dl.ent. "There is nothine in the i'eeord which justified the .. sumption that he was forcibly taken away, at the point of a pn or a knife from his regular orbit or employment. The most that may be conceded, howeVer remote it seems, is the poeibility that, to use the referee's o\\'D word, "he, the driver, might have been lured." by his a1aaain1 to get away ~ hia replar route. onl7 t.o be robbed of his earninga, "' LAWYERS JOURNAL November 80, 1960 the jeep, and, which is the most important, bis life. But this only demonatratea the voluntarineu of hie act of going out to the ordinary way of fulfilling hie a11igned job. It only adds to the inevitable conclusion that ht went with his at.tackers in disregard not only of the instructions or orden of his employer -but also of the rules and reBUl•tions of the Public Service Commisalon., which rulea un.cidlliabl:v should be regarded. as having the force of law, having been set by authorities for the observance of those to whom they are addresaed, this deceased driver not ml.uded. If there is a111 material findilll' that is to be made out in this ease, it is that the drivers aet in deviating from the route prescribed for his observance constituted a positive factor in bringing about his own demise. His departure from the route where liis emploJDJent only required him to be, in fact, brought him to an area fraught with extra risks or hazards not forceably and ordinarily at.taehed to the cmployement for whiqh he was hired. This Conuniuion finds that the deceaseoi willfully violated public service rules and reculations and the instructions of his employer in undertaking a trip too far beyond. the limits of the line which his jeepne:v was authorizd to ope· rate. And with this as the basis, the correct determination of the second issue can be reached upon consideration of the following precedents: x x x. (pp, &·6, Annex "E"). • Associate Commissioner Nieves Baena del Rosario dissented • from the opinion of the, majority. She says in part: "In connection wit!) the 'arising out of and in the course of employment' requirement in relation to the preaum.ptioDS in favor of the employee, Larson makes th.is comment: 'The burden of provinc his cases beyond speculation and, eonjeetw-e is on the claimant. He is aided in 101DB jurisdiction by presumpt.iona t!iat help to supply the mi· nimum evidence necessary to support an award, and which shift. the burden to the defendant when some eon· nection of the injuey with the work has been proYe.' (p. 262, W/C.S. b7 Larson, Vol. Z) And iq ithia: juriadliction where web. p1eump:tlona in favor of the employee are provided in our Workmen's Com· peDSation Act, our Supreme Court in the aforecited Batangas Transportation ease ruled: 'Our position is that once it is proved that the employee died in. Me co""" of the employment, the legal presumption in the contrary, ia that the claim comes within the provisions of the compensation law (See. 44). In other words, that accident "'"°" out of the workmen'• em.ploJDl!Dt (2;-A)· Another presumption crated in favor of the employee and which is more specific than the all embracing presumption 'that the claim comes within the prov111ons of the Aet' is that one provided in sub-section 3 of Section 44. It read&: '3. That the injury was not occasioned by the willful intention of the injured emplO)'ee to brillg about the injury or death of himself or of another.' This presump· tion arises from the rule against suicides and once the presumption is established, the burden of proof ehifts to the employer. He is, under the Workmen's Compensation A.et, required to preaent 'substantial evidence' to overeome BUCh presumption. · In the ease of Tnvellers Insurance Company vs. Cardillo, 140 F-2d 10 (1948) the court stated: 'The evidence necessary to overconle the preaump· tion then must do more than create doubt or set up noneompensable alternative e.z.planatlons of the aeeident. It must be 'evidence such as a reasonable mind must accept a1 adequate to support a eoneluaion. • No such evidence was presented by the herein respondent. In explanation of this policy, tbe Court held. in the Batanp.s Tranap01"tation eaae: 'It ia not unfair; the emplo:rer bu the means and the facilities to know the e&IJ8e; and should not be al· lowed to profit by eoneealinc it. May, he should take active stepa to ~tain the cause of the murder; not just eont.inue its operatiOlll. unm~ed.' And in the ease of Tranllers lnsuranee Co. cited abow the following reason was given: 'The death of the employea usually deprives the de· pendent of his best witness· - the emplojee himself - and, especially where the accident is unwitnessed, some latitude should be given the claimant. Renee, preswnptions or inference that an unwitnessed .death arose out d the employment are allowed in some jurisdictions, "'""" the employer providn 1i.O oontra.f'll fWOOf, and when last seen deceased was workio1 or had properly receued.' Here, the respondent employer has not provided &DJ' eoatracy proof, and Santiago when he was last seen waa doin&' his regular work of drivhac xx xx. (pp, 14·16, Annex. "G"). Section 43 of t.be Workmen's Compensation Act: aa aziaended ·b)· Section 24 of Republic Act 772, establishes the following pre. E;UMptiona: "In 8llJ" proceeding fol- the enforcement of the claim for compensation under this Act, it shall be presumed in. the abaenee of substantial evidence to the contrary - 1. That the claim comes within the provisions of thia Act; 2. That sufficient notice thereof was eiven; 3. That the Injury was not occasioned by the wilful intentic;n of the iDJured employee to bring about the inJurr or death of himself or Cif another; 4. ·That the injury did not result soleb' from the intoxi· cation of tJle lDJUred emp1o)'e8 while on dutyi. and , &. That the contents of ver:fhid medical and surgical reports introduced. in evidaee by elaimanta for compensation are correct;.. 1"he decision of tile majorit7 of the members of the Commisaion reu.sons out tllat the deceased had received epeeifie inatruetiona not to operate beyond the route given by the l'GbJie Service Com· nnssion (onJy w1tn1n the City of 111.anda), and his act in getting ouwde Of the e1t)r was hie free and voluntary aet, becauee he d181-egarded the orders of hia employer as well as the rules and regulations of the Public Service Commiuion. The majority eoneludea that the deceased willfully 9iolated. Public Service Comm1asion rulea and recuiationp and, therefore, death did not arise out of or by reason of hie employement. The flaw in the above reasoninc o1 the majority is that it violates the preeumption exprealy laid down by the followiJW provision o1 Section 69, par. (q), Rule 128,. BWes of Court: "The following presumption are aati8faetory if uncontradicted and overcome by other evidenee: x (q) That the ordinary coune of buaineu has been followed: There is no question that immediu.f.ely before leaving Manila th<' deceased was engaged in his emploJDlD.t.' The presumption is that he performed his duties leplly and in accordance with the rules ~d regulationa. because that was bis replar obligatiOJl. November 30, 1960 LAW~ERS IOURNAL 345 Inasmuch 88 the law establishes the presumption that the .d'lCeaaed followed t:he law and ragulations, it was incumbent upon reieponcient to prove that he did otherwise, or that he failed to comply with the regulations. In other words it was incumbent upon the i-espondent herein tc prove that the deceased volun.tarily went out of his route and dl'OYe his jaepney towards the provinee of Quezon, not that the deceased voluntarily went to that province t.hei:eby gcing beyond the ·route provided for the vehicle that h~ was driving. •. Petitioners elaim that the deceased voluntarily went out of his ordinary route. Petitioners also have the obligation to pr~ this fact, this being as affirmative allegation· They failed to do so, There being. no such evidence submitted by the respondent, i. e., that the &Qing of the deceased to Quezon province \\"as made wJ.untarily by him, we must co~clude, pursuant to the predump.tion that every person performs his duty or obli1ation, !hat ~e ·was forced by circumstances beyond his will to go outside h18 ordinary route; in other words that while driving in the ~ty he D1ust have been forced to go out and drive to the . PJ;CMDCe of Quezon on the threats of the malefactors guilty of assaulting and killing him apinst his (deceased) will. In the ca.se Of Batancas T.i:an&po1·tation Co. vs. Josefina de River&, et a1:, G. R. !llo. L-'lti06, prom. Alay 8, 1956, decided "by th.is '-'Oll.L·t, m wo1ch a driver of a tius, wnile so drivmg was • su.!t.elll,y atcackea bi his' aaaall&Dt who boarded the bus and ther~ aner staboed. bim, the m&J_orit)r of thia t.:ourt h~d that the d_n'~r died in the courao of Ilia emploYDUsDt even if there were 1~ "icationa (not suificient to pi-ove) that there waa personal an1:1081iy between tbe aa1ai1&D.t and the victim, whieh ~Y. 'have eaused tJie a11&Wt. In said case t.he reason for the decision of lh•I Court waa that the ein.'11IDatanclll or indicatio?" show tha.t the ~ased died while ddYing the bus, thus that hi• death must have been due to ~is employment. . of Tho present case i1 stronger than the above-cited _case 'd Batanps 'l'ransportation Co. vs, Rivera, for wlule m S&l pn:vious case there were indications which showed. personal animuaitiea which m&J' have been the root cau~ of the auault, in the case at bar, there are no such indieauons: On _the. othel' .band, there is a presumption that the deceased died while in the eouL'lle Of his eDlployment, and thereto~ his death must be pr&sumed to ban arisen out of said empioyment. We, therefore, find that the dec,alOD of the majority which has been a_..p~ from is not m consonance with the law and the ezpreu p.1:ov111on of Section 43 (If tile Wodunen's Compenaar..ion .ld.W; and toat by reason of such ex.press prov is.Ion of thf.i law, we mua' hoJd' tbat V1cto.l.'iano .!Santiago t11ed DJ reason _of and m me cour..e of h1a employment and couaequeotly lu.a beirs 111-. entnled to rece.ive the compensation p1-0Y1«ed for by law in s.uch cases. Dee.lion rendered by the -court below is hereby set aaide, and tespondent is hete'1y ordered to pay the compensation due the 1'.1iirs -under the la'fr. W1'1lout costs. SO ORDERED. /'OINIS, C. J., B6'Jtgffn, Bautilta A"t'alo, J,B·L. R8J168~ ~ ricJ, Btwf'fl'O Gn4 Gutitm'ft Dfwid, JJ., concurred. MontmMllfCW, J., ruerved his vote. v The Manioipal 2'na8anr of Pili, C~s hr, Ba.lbino OnIJfCit and Feliz On.pit. Pstitionars, '118, TM Honorabl• Pst'"/•CIJo R. PfllGCio, Jtulga of the Ccnwt of Fi1'st lJi.BbteB of CCMllGl"inaa Swr r&ttd Honnto PflladU&, Raapondm&, G.R. No. L-13663, April 2'1, 1960 Ji.ron:ten11t0r, J... CIVIL PROCEDURE; SECT10N 10 RULE 40 OF RULES OF COURT CONSTRUED. - Under Section 10, Rule 40 of the Rules of Court, where a Justice of the Peace Court disposes of a ease not on ita merits but on a question of law, as when it: dismisses it, and it is appealed to the Court of First Instance, the latter ma7 either affirm or reverse the ruling or order of dismisaal. DECISION Thia is a petition for certiorari and mandamus to set aside the deeiaion of respondent Judge Paiaclo in Civil Case No. 3909 of the Court of First Instance of Camarines Sur, and to order him to retum the case to the Justice of the Peace Court of Pili, Camarinea Sur. ·• _J,.j..J The facts in this ease are not in ·dispute. BalbiDo Onquit loat a earabao sometime in February, 1946. In December of that l'flar, lionea..o Paladin bought a ca1·abao for PlW.UO from one Jov1to Milarpis, who in turn had bought the same animal fl'ODl Vicente Baoeya that 1ame day, Almost ten years later, that is, on April 13, 1956, Balbino Onquit saw the carabao bought by Paladin in December 1946, and in the latter's. possession and supposedly' recog-. nized it to be the anb:nal he had lost about ten yea.rs beforei so, be reported the matter to tJie Chief of Police of Pili, who immediate-. 17 impounded. the animal and save ita custody to the Municipal Tl'Eaaurer Of the said town. , On April 28, 1966, Paladin filed an action for replevin in the Justice of the Peace Court of Pili, Camarinea Sur, (Civil Case No. 66), against Balbtno Onquit, Felbc Onquit, and the Chief of I:'oliee of Pili, to recover posseasion of the earabao. The Justice uf the Peace Court decided. the case in favor Of the defendants. I>aladin appealed the case to the Court of First Instance of Camarinea Sur (Civil Case No. 8'63), which in a decision dated January 14, 195'1, reversed the appealed decision and ordered that the earabao involved be returned to plaintiff Paladin, After said decision bad become final and e:xecutor;v, Paladin demanded, the delivery of the earabao to him, but the Municipal Treasurer r.fused to deliftl'. Instead of having the decision executed. b7 the proper authorities, l'alaclln would appear to have done notJu.ng, poss1b.l7 wal"ting .tor the .D4unic1pal '.Uaaurer to cnanp hi& m1na. .but on April Uf, 1Wb7, mstead Of t1bng motion to emoUe the judement in .b.is favor w.n1cb h&4 lCIDg become .tmal m1a execuui.1-y, ne .tlled anCAner U1vu t.:aae .L\lo, G7 m the s~ Just.Ice oi tb.e .t'eace t.ourt of t·u..a_ aa1unst l.llEt ll!l.U1UC1pa1 'l.'reasurer, J:Sa101no Unqun; and 1''elix On..,,u1t, mall.Ing reie.i-e.oee to Uivll t..:aae 1'10. ti6 of tne Ju.suee of tne .t"eK.ee \.iourt and tile declalon in CiVJ.l Case .No, SDH, t.:ourt of .1''1ra, tna"'nce, m h.is 1avol', afld. Ultlng tbat the same caraoao be returnea to h.un alld, that detendanis onqwt be made to pay l11m the sum of rl,DU\l.UU as damBgea. De.tenaan.te .tJ1ed a mouon 1..> .u.l&JIWIB on the g~ound Of res llaJudiea.'a. and estoppal, Ac&mg upon a11ud mo&.aon, tile Jusuee of tile l'eace t.:ourt dismissed the raee, si.ailng tut it was without p1'8jud1ee on the Part of l'&J&dm to .tlle a mouon for exee0ut1on, on tne ground that the deci810D in the first eaae had alread)r become final and exeeuto1·7, at the aame time rubng that the Municipal 'l'reaaurer, one of the d.fl!ridan~ had no incerest in the can. Paladin appealed, the order of .dism.isaal to the Court of First Instance of t.:amarl1le8 Sur. Defendante-appellees failed to file tJ.eir &Jlltwer to the complaint and were declared. in .default. Paladin was allowed to present his evidence in their absence and respondent Judp Palacio, p1-esiding the Court of First Instance o1 Camarines Sur, rendered the deeiaion afqrementioned, ordering the defendant& Balbino On.quit and Felix Onquit to deliver the ea.rabao and its offspring to the plaintiff and to pay the latter the sum of Pl,50-0.-00 as moral and conaequential damages plus costs. Defendants filed two motiona for reconsideration which were denied, Thereafter, they filed the present petition for certiorari and mandamus. 846 LA "ll'YERS JOURNAL November 30, 1960 It is the contention of the petitioners that reapondent Judge acted in excess of his jurisdiction or with grave abuse of discretion in trying the case appealed t.o him for the reason that under Section 10, Rule 40 Of the Rules Of Court, which read as follows: "See. 10. Appellate J)OWet"8 of Courts of Firse lnl'tc:mce 'WMfoe action we Wied cm iOs menes b7I in,/nior ooures. - Where the action has been disposed of by an inferior court upon a question Of law and not after a valid tl'ial upon. the merits, the Court of Fi.rat Instance shp.11 on appeal review the ruling of the inferior court and may affirm or reverse it, as the ease may be. In ease of reversal, the ease shall be remanded for fUrther proceedings.", he should have remanded the ease to the Justice of the Peace Court of Pill for fUrther proceedings after he evidently had r&\"P.?sed the ruii:rig Of said Justice of the Peace Court, dismiaaing the case. We agree with petitioners. According to Section 10, 'Rule 40 of the Rules of Court, 11\'here a justice of the Peace 'Court disposes of a ease not on its merits but on a question of law as when it dismisses ft. and it ia appealed to the Court of First Instance, the latter may either affil"Dl or reverse the ruJing or order of dismisaal. In the present case, it presumably reversu said order; Instead of trying the case on the merits, ae it did, it should have returned the same to the Justice of the Peace Court for fUrther pl'<lceedings.• IN VIEW OF THE FOREGOING, the petition ia graiited.. The decision of respondent Judge is hereby set aside and he ta • directed to remand the ease to the Justice of the Peace Court for further proceeding&. No ~sts. Although we are ordering the remand of the can by reapcmdent Judp to the Justice of the Peace Court. neverthelese, there is reason to believe that said eaae is already barred on the eround of '"" a.d;udioa.ts and that the Justice of the Peace Court was correct in dismissing the same. If the plaintiff seeks damaces due to the failure of the defendants !n the first case to deliver the earabao to hi~ within a reasonable time after said decision became final and executory, a sepa1·ate action might be nece&11arJ not for the delivery of the carabao, but for damages suffered, if any, after the rendition Of that decision. As to the delivery of the carabao, the decision of the Court of First Instance in Civil Case No. 8453 in favor of plaintiff Paladin was rendered on January 1', 1957. Within five years thereatter, Paladin ma1 yet file a motion for its execution. This is ""hat he should have done, instead. of filing the second case, Civil Case .No. 87, in the Justice of the Peace Court. Ptwaa, CJ., B8'tllzon. But.is AngelOj, Lsbmdor, CMI06jJCion, and J.B.L. Rey8B, JJ., concur Bflll"l'ef'G, J., concurred i e result. VI Nioa:n.or B. GtdJriel, et sl., Plainti/fl-il:PP•ll•nts, 11s. Csrolino Alun&a.flGC, st st, Dsfenda11ts-Appell66s, G. R. No, L-111.U, Jue 80, 1960, Ba.utista Angelo, J. CIVIL PROCEDURE; PRO-FORMA MOTION FOR NEW TRIAL; MOTION FOR RECONSIDERATION.-Where the ol'w der of the trial coUrt denyi"11c the motion for new trial on the ground that it is merely yro-fo"1HJ. has already become final for failure of appellant to ask for Its reconsideration within the pe1iod of thirty daJ'8 from the date it was received by counsel, bu"t inetead gave notice of his Intention to appeal from the decision on the merits, appellant can not attack the validit1 of said order for the first time on appeal. DECISION Nicanor E. Gabriel broucht this action before the Court of First Instance of Isabela to recover from Carolfno Munsayac and Rafael de Leon certain sums of money allegedly advanced by ~· SSO. 1 Mirano w. Diaz, 7& Phil. 274; Saavedra ft. Pecaon, 76 Phil. former to the latter in connection with the construction of a government project known as the "'Pinakanawan Bridge Approach" alnng the Cqayan valley road which was the aubject of a contract entered into between plaintiff and the eovernment on lune 5, 1960, plua damages and attorney's fHs. Defendants filed separately their respective answers setting up certain special defenses and a counterclaim. Aftel.• trial, the r.ourt rendered judgment ordtrinc defimdant Munaayae to pay to plaintiff the sum of P674.36, but pla'intiff in tum was ordered to pay defendant Rafael de Lf!on the sum of P4,361.92 as prayed for in the latter's counterclaim. On September 28, 196&, plaintiff filed a motion for new trial, which was denied by the court in an order entered ~ October 16, 196&. And on October 19, 1966, plaintiff gave notice of his intention to appeal f1·01n the decision rendered by the court on August U, 1955. On Novembe1• 11, 1966, defendant Mu:nsayac filed a motion to dismiss the appeal on the ground that the notice of appeal was filed beyond the reglement•ry period considering that the motion for new trial filed by plaintiff was mere11 JWO-fonna. as it does not conform with· the rule relative to a motion for new t.rial. On: December 10, 19&&, plaintiff filed a petition for relief pl'aying that the order of the court of Octobe-r 16, 1966 denying .1llaintiff's motion for new trial on the ground that ii was nierely pro-fomuJ be set aside, to which defendan~ Munaayac filed an opposition on January 28, 1966. On October 29, 1966, the court, considering the reasonil alleged in the opposition founded, denied the motion for relief, Plaintiff interposed the preeent appeal seeking to set aside the order denying his petition for relief as well as the order denying his motion for reconsideration. It should be noted that the deeision of the trial court on U1c- merits was rendered on August 2', 1966, copy of which was i-eceived by plaintiff's counsel on September 3, 1966. On Septemher 28, 1965, plaintiff's eounael filed a motion for new trial with the request that it be included in the calendar for October 15, J.966 stating as reason the fact that counsel for plaintiff will be busy appearing before the Bouse Electoral Tl'ibunal in an election ease then pendin&" before it. The purpose of counsel was to appear before the court on said date and' ar&'U8 his. motion ·orally and if neceasar;y "supply" his oral argument with a written memorandum. However, he sent a telqram on October 14, 1966 praying that the hearing be postponed to October 18, 1966 alleging again as i·eason the fact that he was busy attellding to the electoral protest. But when he went to Ilagan, lsabela on October 181 1955 ready to argue on his motion for new trial he was surprise.I to fin.cl. that his said motion was denied on October 16, 1965. Plaintiff's counsel adT&hced as reasons for his petition for .relief the followina facts; that it was bis intention to support his oral aregment on the motion for new trial with a written memo· randum so much so that he started its preparation in Ilagan, Isabel& after filing the motion for new t1.'ia11 but could not finish it on time as he had to leave for Manila in order to overtake the hearing of the electoral case between Albano and Reyes; that instead of finishing the memorandum, counsel prepared a supplementary petition for new trial wherein he pointed out in detail the errors which in his opinion were committed in the decision,, putting the original and the copies in different envelopes :reaQ tu be sent to court and to the parties, but when he went to the 11ost office to mail them he found the same already closed; that in the morniJll' of September 18, 1966, being indisposed because he waa then suffering from severe headache, plaintiff'• counael dl!c-ided to aee his doct<tr for treatment and entrusted the three 61velopes to his houaemaid, one Virgi~ia de Vera, with the request to mail the same. but unfortunately Virginia lost the three envelopes and failed to inform counael for' her failure to mail them. Counsel now claims that the trial court committed a grave abuse ff discretion in denying the petition for relief. November 80, 19GD LAWYERS JOURNAL 8'7 There ia no Jnel'it in the appeal. The record shows that ap1:"1lant as well as bis counsel received notice of the decision of thE: court on September S, 1965. On Septembei· 28, 1955, appellant's eounaeJ filed a motion !or new tJ:ial which he asked that it be calendared for hearinl' on October 10, 1955. On October 15, 1955, the trial court issued an orJer denying the motion cu the itl'ound that it was merely rwo-fm·11U1.. On October 15, 195G, ap-. pt>llant's counsel received copy of the 01·de1· denyillg the motion, 1.:nd on October 19, 1966, he filed a notice of appeal from the dccir;ion on the merits. On November 11, 1966', appellee's counsel filed a motion to dismiss the appeal on the ground that it was filed beyond the reglementaey period. On December 10, 1956, appeljant's counsel filed a petiliun for relief, which the trial coUrt denied ou October 29, 1966. Ii is apparent that the order of the trial court rendered on Oetobar 16, 1966 deJ1¥ing the motion for new trial on the ground that it is merely pro-form.a. has already become final for failure < f appellant to ask for, its reconsideration within the period of thirty days fi·om the date it was received by counsel, inasmueh as instead Of filing a motion for reconsideration he gave notice of h~:l intention to appeal from the decision on the merits. It would appear, therefore, that appellant cannot now attack its vilidity for the first time in this instance. But counsel may elaim that the validity of said 01·der has in fa.Ct been' assailed in bis petition 'lor relief wherein he asked. that it be .set aside considering the explanation he has advanced .Justifying hi& failure to, appear at the hearing of the motion for 11ew trial, as well as his failure to send the supplementary petition wherein he set forth the reasons pinpointing the errors allegedly committed by the trial court. But the trial court acted correctlJ' in not according merit to the alleged attempt to file a supple· mentary petition. for new trial, considering that the petition for r{'lief was filed on DecemJJer lG, 1956, or almost a month after appellee's counsel bad filed his motion to dismiss the appeal. This fact proves the ~ru:Ueesnesa of eounsel's claim that be prepa;:cd such supplemeDtaey petition and pve it to one Virfdinia de Vera for mailing, because if such claim were true counsel would have immediately filed a motion for reconsideration setting forth the i·eason for his failure to comply with the l'llle. But, as the record shows, instead of filing such motion, he gave notice of. 1iis infention io appeal, apparently in the belief that he could do away with such technicality thru an oversight on the part of a.ppellee's counsel. Verily, the alleged preparation of a supplementary petition is but an afterthought or a last-minute effort to obvia~e the objection that the motion for new trial was merel)' pro-Jonna. which scheme cannot justify a ~etition for relief. "The 1Ta.ntiD&' of a motion to set asid.e a judgment or order on the cround Of mistake or excusable negligence ia a:ldresttd, to the sound diacretion of the court (S~ Coombe vs. Santos, 24 Phil., 446; Daipan vs, Sip.bu, 25 Phil., 184). And an order isBUed in the exercise of such discretion is ordinarily not to be disturbed unless it is shown that the court has gravely abused such discretion. (See Tell vs. Tell, 48 Phil., 70; Macke vs. Campo, 6 Phil., 185; Calvo vs.. D& Gutierrez, 4 Phil., 203; Manzanares vs. Moreta. 38 Phil., 821; Salva V'B. Palacio 6 Liuterio, G. R. No. L-il47, Januaey 80, 1862.) Where, ae in the presE:nt case, counsel for .defendant was given almost one month notice before the date set for trial, and upon couneel's failure to appear thereat, the trial cou1·t received the eridence Of the plaintiff and granted the relief prayed for, the trial court did not abuse its discretion in refusing to reopen the case to give defendants an opportunity to pJ'l"SeDt their evidence." (Palileo v. Cosio, 61 O.G., No. 12, 8181) Wherefore, the order appealed. from is affi~ed, w.lth costs againat appellant. Pa.nMI, C.J., Bengzcm, Peclilla, McmtetnaflO", L&Pmzdot', Con.eepoion• J.B.£. Reuss, Batl'f'MJ ~ GutiMTn DIWicl, JJ., concurred. WHAT THE WORD "SUCCESS" MEANS by Joaquin R. Roces .Many young men and women define succeas in term• of a bi&' house, two or three cara, and a large bank deposit. I would nieasure a man's success by the extent he bas helped his fellow men on this earth in a positive manner, and conversely, his sueeeu could be measured b:v the \\'&Y mankind in general and his.friends in particular have learned to love him. That is, as judged by' his neighbors, his flienda, his b1·others, hia in-laws, and not by those eelf-anointed and self-appointed judge of. mankind who have set definite moral standards where God himself has not. I would measure a man's s~ not by the work he has achieved but by the effort he put into it. I would measure a man's success Mt by the virtues he accumulated but by the manner of weaknesses he learned to overcome. And lastly, 1 would measu1-e his suecese by the happiness and joy he pt out of his youth, hia life, the beauty that God laid around him. ..\s for the big house, two: or three ears, and a large bank deposit, -they certainly ai-e not the measure of. suceeae. But let me tell 7ou. A small house, one car, and a small bank deposit would help, Republic of the Philippinea Depa1·tment of Public Wo1·ks and Communications BUREAU OF POSTS Manila SWORN STA'l'EMENT (Requl<ed by Act 2680) The undersigned, Atty. Vicente J. Francisco, editor/pubisher, of THE LAWYERS JOURNAL, published monthly, in English, at R-608 Sam.anillo Bldg., Eseolta, Manila, after oaring been duly sworn in accordance with law, hereby submit.a the following statement of ownership, management, circulation, etc., which ts required by Act 2580, as amended by Commonwealth Aet No. 20il: NAlllE: ADDRESS: Editor: Vicente J, Fi'&neiseo •• , ••• Rm. 200-205 Samanillo · Bldg., Escolb. JIMUJging Etlitot': V. J, Francisco •. Rm. 200-205 Samanillo Bldc., Escolta Bu. Ml/f'.: Vietor o. Francisco ..•• Rm. 200-206 Samanillo Bid&"., Escolta 0WMt": Vicente J. Franeiscc. ....... Rm. 200-205 Samanillo Bldg., Escolta hWiaher: Vicente J, Francisco ... Rm. 200-206 Samanillo Bldg., Escolta Pmit•: MABUHAY Puss ••••••• 2882-42 Auro1·a Blvd., Sta. Cruz, Manila Office of Pu6limition.: ••••• , R-508 Samanillo Bldg.~ Escolta In esse of publication other than daily, total number of copies printed and circulated of the last issue dated October, 1960: 1. Sent to paid subscribers . • . . . . . . . . • • . . . • 1,600 2. Sent to othen than paid aubacriben . . . . 25 TOTAL . . ..••....•. 1,625 (Sgd.) VICENTE J. FRANCISCO Edi"1 SUBSCRIBED AND SWORN to before me this 29th clay of Novembe1·, 1960, at Manila, the affiant exhibiting his Residence Certificate No A-226'7, tesued at Manila, on January 4, 1980. . (Sgd.) RICARDO J. FRANCISCO Nota."11 Pul>lio Doc. No. 457; Book No. Illi Page No. 98; Series of 1960 Until December 81, 1960 NOTE: This form ta e.zempt from th~ payable of documentary stamp tax. ACT 2580 REQUIRES THAT THIS SWORN STATEMENT BE FILLED WITH THE BUREAU OF POSTS ON APRIL 1 AND OCTOER 1 OF EACH YEAR. 348 LAWYERS JOURNAL November SO, 1960 1960 BAR EXAMINATlON QUESTIONS (Conti~11q1$n.) POLITICAL LAW • 1." (A) What is an unwritten constitution and w)lat are ita merits and demerits? . ·.· )B> (1) Wh•t are the ntPiaital ler • pod written constitution! (2) What are ita .....,ti.al parts? ·.II. (A) Give th• proViaiona of the Conatltutton deligned to prQJ11Gte 89Cia.J. j1,1atlee. (B) Wbt is YoilJ' concept of social justice? IJI. (A.) Explain briefly th• d®trine of state immunity from suit. (B) Is the immunity waivable! If so, how? (C) Doe.$ the .immunify apply to political aubdivilliorw! IV. CA) What is the provision of the Constitution on parliamentary immunity? (B) What ia ita underlying purpose! (C) What is the juetifleation for the exercia8 of the right of eminent domain.? V. Some 20 teftant.a in a parcel of agricultQral land with an ·~ of 40 hectares haVe frequently been at odds with their landlord, the owner. Upon their petition and over the objecticrn. of • the landowner, the Presi~ent qrdared the ex))J'Opriation of 1aid. land and it.a 1ubdivisi1>n, once acq1,1ired, into small farm lots for reeale at cost to 6ona fide tenants, oeeupanta or other qualified. persona. The Land Tenure Administration (LTA) advised the owner of the presidential order and gave him three months to decide whether to a~e or not to sell the land to the Government at a price to be determined by an evaluation committee.. Instead of anawering the LTA, what the owner did was to convey by absolute sale in emall lots more than one-half of the land to hia relatina none of whom was a tenant or oeeupant of ap.y portion thereof. The Government inatitute-J condemnation proceedinga. The owner and those who had purchased portions of the land opposed the expropriation, contending - 1. That the property was not being expropriated for publi.! ua or purpose; 2. That the existence of tenancy conflicts between the landowner, on the one hand, and the actual tenants, on the other does not justify expropriation; and 3. That only big landed estates and not those containing only 40 hectares, are subjeet to expropriation for the purpose ol sellinB' them in &mall lots to tenants, l:te. Decide, giving reasons. VI. (A) In the exercise of what powers may the state interfere with private property rlehts? (B) la it necessary that such powers be eranted. by any constitutional or statutory provisions! Explain. VU. (A) What. is the basis of police power of State and what are the requisites for a valid tmercise thereof. (8) May our. municipalities exercise police power? If they ma7, what is ·the source of their authorit7? VIII. (A) What persons are disqualified to vote? (8) A was elected municipal m•yor. B iQti~ted po 1UGT'7'Gllto proceedinp to have him declared iJl,8].iciblt 01'- ~ pPund of previous convi~on of theft for which he waa sentenced to ten months imprisonment. A contend• that hia di.aqQUfieation u a nter had been removed •nd his electln franchise reat.ored by the plenary pardon IT&nted him. B arpes that the pVdon did not iiemov8 A's diaqualifieation 1ince hia eonvl.etj.on was for an .offanse against propertJ" Decide. giving reasons. IX. (A) In 1960, A's petition for naturalization was granted. His aon,. B, born in the Philippines, was then 20 years old. In 195#, after the 2-:year p1'0batJonary period, A was _finally allo~ to i.ke his oath ot cimei.ship . Did 8 automatically acquire Philippine Clti~ahi-p! Reaaona. (8) An alien applied for naturalizati~ 1tlleging th,t he posaessed all the qualifications and none of ·the disqualif"icationa enumerated in the law. The court finding the petitioner to be a deaf-mute, denied the petition. la the decision correct! Reaaons. X. A," Incumbent ma70r of a municipality, was charged ad· mnlatratively with: 1. having been convicted of malveraation of public funU before his election; and 2. having committed the following acts during his incumbency: (a) organizing and particiSt&ting· In illecal cockfighting in a neighboring municipality, and (b) inflicting bodily harm upon the person of his wife inside the municipal building and during office hours for which he wa1 convicted. by the juatiee of the 1;eaee court of physical injuries. Having been suspended by the provincial governor pending il1veatigation of the cae by the provincial board, A filtd an action in court to annul the order of his suspension. and to prohibit the provinci•l board frrom· proceeding with the inveatlgation. of an., ot th8 charges above specified, claiming that the acts complained of do not fall within the purview of section 2188 of the Beviaed Administrative Code which empowers the provincial l0V9l'nor to suapend and the provincial board to inveatipte municipal offken "for neglect of duty, oppreuion, corruption or ~er fonJI of mal~ admini1tration of office, and conviction by final judgment Of 8iD1" crime involving moral turpitude." Decide. giving reasons. CRIMINAL LAW I. (A) Define frustrated felony, and give an exam.Pie. (8) Enumerate the circwnatancea for Hlf...defenee. Give an example. II. (A) Define conspiracy. (8) A and B conspire to rob a ho11.ae. A remain• below to act as guard while B goes up-and proceeds t.o ransack it and. tnkes away with him money and other valuables, wbil;h the two later divide between themselves. While ranaacklnc the house, the cwner thereof offered some reaiatance, and without the knowledge 01· consent of A, B shoots him dead. What is the crime committed., and the criminal responsibility of each? III. A, a boy eight yea1•a old, living with his pannta, after quarelling with another boy, B, a neighbor, seta fire to B's ~a house, razing it to the ground. B's father accUllell A of 81'80D. and demands indemnity fol' the value of the house burned. I>. cide the case, giving reasons. IV. State: two justifying cireuJUtances two exempting circumstances two mitigating circumatanees two aggravating circumetui.ea one qualifying circumstviee and .one alternative circuma~ V. (A) Mention two ways in which criminal li.iiility ia totally extinguished. (8) Distinguish betwewi prescription of a crime. and prescription of a penalty. · 'VI. Define (A) parricide, (B) mUrder. (C) What is adultery! (D) Di.,tlnguish it frPm c_oncubin.... (C01't'inttf'd on. pa.gs 352) "November BG; 1980 LAWYERS JOURNAJ, 3'9 THE ARANAS CASE (UNCONSTITUTIONALITY OF REPUBLIC ACT NO. 18•9) Jn the· October· i11ue1 we :Published the eomplaiilt filed bJ' former CGlllJlliaioner 'of Intermal Revenue Mr. Arafiaa agaiut the Solicitor General for prohibition with pftliminary injunction, coyt8Ddlng that Republic Act No. 1879 is unconstitutional for being an es post fa.tJto Jaw. ·Solicitor General Barot opposed. the issuance of the prelimina1'7 illjunction. A l'eply to the opposition was filed by Atty. Franeiaeo who represent.a Araiias. Judge Alvendia denied the i ... auance of preliminary injunction. We publish hereunder the aforeaaid opposition, reply and the pertinent portion of the or-r of Judge Alvendia. · OPPOSITION OF SOL. GEN. BAROT "The term •z-poat /a.t:kJ l1MU is a technical term used only in connection. with crimes and penalties. It ia not applicable to civil laws but to penal and criminal laws (Concepcion vs. Garcia, 64 Phil. '81). Although Republic Act No. 13'19 provides for forfeiture to the· State of property which petitioner has not shown to have been iawfully acqul~ (Sec. 6), said forfeiture is imposed not as a penalty but aa a civil remedy to recover that which never lawfully belonpd to petitioner. The proceed.inc ia akin to eseheat which ia nothing more or lea• than the reversion of property to the State.· which takes place when title fails (Delaney vs, State, 42 N.D. 630, 174 N.W. 290, quoted in footnote 6, 19 Am. Jur. 881,. cited. in Relloaa v. Gaw Chee Hun, L-1411, Sept. 29, 1963). As applied to the right bf the State to lands purchued by an alien, it would more properly be termed a "forfeiture" at common law -(19 Am. Jur. 381, cited in Relloaa v. Gaw Chee Hun, saq.wa.). Although eseheat and forfeltUl'fl are not strictly synonymous terms, the diatinetion. between. them is ,not clearly drawn in modern usage (19 Am. Jur. 880). Thus, the uae of the term "forfeiture" in Republic Act No. 1879 does not necessarily make the statute penal in nature. On the theory that such property was obtained by a public officer either as a gift given to him in consideration of his office or as monies which should have aeci·ued to the Government in the first plaee, and both on the principle that a public office is a public trust and that nO one i!hould be permitted to enrich himself at the expense of another, it follows that the recovery of sueh property may be viewed as one for recovery of property held under an implied trust (Arts. 1445, 1447, 1891, Civil Code). Even assuming for the sake of argument that petitioner's objections as to the n:..po11t faoto character of the statute are valid, it will be seen· however that the complaint filed against him (Appezulbc B of the Petition) contains char.gea of unexplained acquisitions made after June 18, 1966, the effectlft date of Republic Act No. 1879. In so far therefore aa they are concerned, they cannot be subject to attack of invalidity on ground of es-post faeto. Petitioner, therefore, is not entitled to a m:it Of prohibition enjoining respondent from taking cognizance of the complaint. The act of suspending the operation of a law by the t1ial court especially one intended to combat graft and corruption in the government, is a matter of extreme delicacy, because that ia an interference with the official act.s not only of the duly elected repreaentatiftB of the People in Congress but also of the highest magistrate of the land . The courta should, therefore, refrain from enjoininc the enforcement "ot la1n1, and should ·not interfere with tJie ·am-.. of public officen perfonned under statutory. authoriZ.i.tion ." A Dieft allegation ot the invalidity of a ltatlate will not warftnt the enrciae by the courta of the atraordtnary injmLCtive power and· ~ t.lte enforcement of the law (Borden's Farm. Products vs. Baldwin, l!98 US 194, 68 S Ct 111'1; State ... Ad81118 El<p. Co., 86 NEB 26, 41 LR.A. (ra) 898). Thia :la specially 10 where in thia caSe, the petitioner js not placed under any rerstraint of his freedom of action in hia daily life by any doubtful provision of the·law. · Furthermore, the constitutionality of the law can always be interposed as a defense in ea1e ot the filing ot a complaint apinst petitioner." · REPLY OF. A TIY. FRANCISCO "In the course of the oral argument yesterday, the Solicito1· General manifested to the court that he doea not dispute the ·ex .. i1-tence and correctness of the authorities cited in the Petitioft for Prohibition, which hold that forfeiture la a punishment for trans· greasing the law; that the effect of the forfeiture ia to transfe1· the title of a specific property from the owner to the sovereign power, imposed by way of punishment for the tranagresaion Of the l~w, or the eommilllion of some wrong; that a law creating forfeiture as punishment is a penal statu~ and that a penal statute that makes an action, done before ita passage and which was innocent when done, criminal, and punishes auch action is an e:c..po11t jaoto law. Hov.-ever, he contended that although the law provi~ that whenever any public off'icer has acquired during his incumbency an am:ount of prope1ty which is maniffftly out of proportion to his salary and to his other lawful income, and said public officer is unable to show to the satisfaction of the court that he has lawfully acquired that property, the same should be forfeited in favor of the State, aaid forfeiture is imposed not as a penalty but u a civil remedy· to recover that property which DeVel" lawfully belonc to him but to the State, anci that he, therefore, only held it in trust. "The proceeding" - the Solicitor General maintained - "is akin to eacheat which is the reve1-sion of property to. the State which takes place when title fails." (Page 5, Oppoaition.) No proposition could be more obviously fallacious. 1. Although we have cited a long line of authorities holding tba11 the law which creates forfeiture &s a punishment for the trangression of its provisions is a penal law (Petition for Prohibition, pp. 11-12). the Solicitor Genei·al \\'&8 not able to cite a single authority holding the conti:ary. Having !ailed ·to find any authority holding that fo1i'eiture is not penalty, he stretched his imagination and foisted the novel theory of escheat. But this i8 the JDOBt unfortunate argument that the Solicitor 11ad advanced. The properties subject of escheat are those left by a person who die.d intestate, leaving no heir or person by law entitled. to them (Rule 92, Rules of Court; Arts. 1011-1014, Civil Code). And, according to Manreaa, •·the foundation of tho State's right over the propertiea of a pemon who died without a will and without leaving heirs, springs from the actual condition of abandonment of the properties so left upon the death of the owner and all peraons having rights thereto/' (7 Manre&a 168.) In the caae at bar, the properties that the Solic_itor seeks to forfeit in favor of the State are propeitiea that belong .to the petitioner, not properties belonging to 111.0 One and, therefore, is not reversible to the State, as in the e11.se of escheat. 350 LAWYERS JOURNAL NOVfmber 30, 1860 '·'·'Besides, iii. eacheat. there is no forfeiture but reveraion of the ProPertY to the State. Bennion la defined as "the retu.rn of the ~ to the gr&ntor after the grant i& OTer. n (Bou.vier's Law Dic!trO:liary); tha grantor in eaae of the escheat is the State. Fo .... feitire,· on the Other hand, is defined as "a puD.ishm.ent annexed bj ~18.~ to some illegal aet in the owner of lands or hereditaments w~ he loees all his interests therein, and they become ·vested in .~e St.ate." (Ibid). SU.relJ', the law in usilll' the term "forfeiture" instead of "eseb;ea~, n each of whieh terms has established meantnc and connotatiC.it of its own and is distinct from ihe other, the law could n6t ~ve contemplated "eacheat." Othenise, it would have em~ the term "escheat" instead of "forfeiture," Why should the l&w use "forfeiture" if it meant "escheat"! The law must be ta~ to mean what it plainly and unequivocally aaya; it cannot b&. Changed by ·the courts, much less by the Solicitor General. · Where the language of a statute is plain and unambipous and convey& a clear and defiuite meaning, there is no occasion for reaorti~ to ~ rulea of statutory interpretation, itnd the court has no right to look or impose another mean. ing. In the case of such unambiguity, it is the established pOiicy of the courts to regard the statute as meaninc what it &aJS, and to aYOid giving it any other constniction than fhat whieh its words demand. 50 Am. Jur. 206-20'7. · A statute may not. under the cuise of interpretation, be modified, revised, amended, distorted, remodeled, or rewritten, or given a constiucti.on of which its words are .not susceptible, or which is repugnant to its terma. The terms of the statute may not be disregarded, To depart from the meaning apressed by :the words of a statute, is to alter it, and is not construction, but leg1slatiou. 50 Am. Jv.r, 218-214.. ·2. Pursuing this fantastic eacheat theory, the St:tlicitor Gen~ eral advances the arpment. equally fantastic, that the philoaopb)r of' the law in providinc that propert)r acquired by a public offiee1· out of proportion to his salary an.ti. to his other laWfUI income. is unlawful and ahall be forfeited in favor of the Stat.9 unless hei can show to the u.tiafaetion of the court that he baa lawfully acquired the same, ia that it belonp to the State and petitioner only held it entrust for the State. In the light of our, contention that Republic Act 18'79 is an em-pa10 /aoto law, let us apply .aaid th80cy' to properties acquired by the petition.er in 1929, 1980, 1981, 1982, 1983~ 1984, 1986, 1986, 198'7, 1988, 1989, 1940, 1941, 1942, 1943, 1944., 1946, 1946, 194'7, 1948, 1949, 1951>, 1961, 1962, 1963, and 1954. The Solicitor admits-and he cannot deny-that those properties acquired by the petitioner in thase years belonc to him and 'that the presumption is that he acquired those properties lawfullJ'. Even if there is no proof as to how a person has acquired a piece of property, his mere possession thereof under claim of ·ownership carries with it the legal presumption that he pouessea it with just title, i.e .• lawfully. Article 641 of the Civil Code provide& that ••a poueasor in the concept of the owner has in his favor the legal preaumption that he poasessea a just title and he cannot be obliged to show or prove it." "'Every person is taken to be honest and acting in good faith unleu the contrary appears. The reason for this presumption is to protect owners from inconvenience. A contrary rule '\11."0uld oblige the owneJ.' to carry with him his titles ·in order to exhibit them to anyone who, with or without reason, may bring an action. against him." ( 4 :Manresa 248.) Since the complaint filed. by the Anti-Graft Committee admits that the petitioner is the owner of those properties whieh he acquired in those years, the legal preaui:nption is that he acquired the same lawfully. How then can the Solicitor General claim that sinee those properties are manifestly out of proportion to 'bia income, the same were unlawfully acquired and held by him, only In trust for the State! Granting, for the eake of a .... 'gmnent, that the &mount of thoee properties were out of propo..., tion to his income, wu there any law at the time of their acquisition declaring that auch acquisition is unlawful! Since it was only on June 18, 1956, that a law (Republic. Act No. 13'79) was passed' ~larinl' that propertiea acquired by a public ofricer out of proportion to his income is unlawful, we have to. oonclude that prior to thia law the lecaJ. presumption is that the acquiidtion ~I such propertie• was lawful . And he beinl' the lawful owner of thOH »roperties, it is absurd to maintain that he only held them in trust for the State, 3. Jn invoking the tJieoey of trust, the Solicitor Generai d089 not of course have in mind an ezprua trust but an implied. trust, the concept of which is em.bddied in article 1466 of the Civil Cod. which providea: · Art. 1456. Jf proper()' is acquired. through mistake or fraud, the person obtainiDI' it is, by force of law, considered a trustee. of an implied trust for the benefit of the Person from whom the property comes.· Frorq the above.quoted. provision, it is dear (l) that in order that property ma.y he considered held in implied trust, the same must have been acquired through mistake or fraud and (2) that the property ia held for the benefit of the person from whom the property comes. Now, considering that properties acquired by a public officer prio1· to the enactment of Republic Act No. 13'19, rega.rdle.sa of whether or not it is oat of • proportion to his salary or to his lawful income ia presumed to be posseaed. by him under a just title; that la, legally, how can those properties be deemed. to have been acquired thrw1h fraud and thua held in Im.plied trust! '· And even assuming that those prope1:ties were acquired under eircumatances creating an Implied trust in accordance with· the afetre-quoted provision- of the Civil Code, how can it be contended that those properties: held for the benefit of the State, since the same admittedly do not come from the State? If at all, such propertlee are held in trust for the benefit Of anyone, it ia cmtainq nOt fiYr the benefit of the State, but of the person from whom the property came. Property unlawfully acquired. within the meaninc of Republic Act No. 18'79 cannot be conaide:ntd to be held in trust; for the State any more than property acquired. through robbel'J', theft, or eata:fa. 4.. There can be no doubt that in trying to slip across the id• that the proceedings provided by Republic Act No. 18'19 is akin to eacheat. the purpose of the Solicitor General is to cloak the e,; poat /GtJto natm'8 .:if the said Act with a civil mantle. Thia, of course, is futile: · • The ere-post /aeto effect of a 13.w cannot be evaded by giving a ~ivil form. to. that which wu essentially criminal. Brwgene w. Slamon, 97 U.S. 381, 24 L. Bd., 1104. A statute Which deprives a man of his eat.ate or any· part of it for a crime which was not declared to be an offense by any previous law is void ea an ex. post facto law. FleUMr ""' Peok, 6 Cnmelt. (U.S.) 8'1, L. Bd., 162. The Solicitor General further contended that even assuming 1'or the sake of argument that Reputllic Act No. 18'79 is an ez poet /a.do . law, the complaint filed ap.inat him contains charges of 1.!nexplalned acqulaition made before and after June 18, 1956, the effective date of the said A.ct, and that in'sofar aa the properties acquired after the effeetivity of said Act is concerned, the law cannot be attacked. as an e:x: po.st facto law. Citing the separability of provisiona provided in Section 13 of the law, which reads: "If any provision of this Act or the apl'lication thereof to any person or circumstance is held invalid, the remainder of the Act and the application. of auch provision to other persona or circumstances shall not be affected thereby,n the Solicitor General claims that although the complaint makes reference to properties acquired before passage of the law, it also makes reference to properties acquired after th6 · passage of the law; therefore, as to the latter properties, .the law cannot be attacked as es posO /aoto. Moreover. he argues, even if the law is Bl!: poat /a.cto, the provision that make& the law ex post facto may De disregarded and separated from the rest 6f the law without affecting the remainder of the Act. November 30, 1960 LAWYERS JOURN"AL 351 .. . The . entire. argument of the Sc;>licitor General rests on this false premise: that only part of the Act in question is es poet facto law a~d the l'emainder is not such. Mothing could be clearer than that it is the Act itself, not mereiJ" a part. thereof, that is ez post facto; the Act itself penalizes acts performed prior to ita enactment and innocent and not punialtable at the time. The whple: Act, therefore, is. n post facto and hence, unconstitutional Dnd invalid in toto, pul'suant to exp1·ess provisional eonatitutlon which we again quote: "No ex post facto" law or bill of, attainder shall be enacted." Section 1. (1) Article Ill, PhiL Constitution.. Moreover, it Is apparent from the foregoing provhdon of the Constitution that it prohibit. an es post fa.cto law, such U the law under consideration, absolutely, without any qualifie•tion it.a to severability. When a law is of that character, it becomes unconstitutional in ·ivto, the constitution s.llowing no part to- remain. True, the ex post facto Character of the Act proceeds from Settion 14 of the law. But the fact remains that It la not aolely Section 14 that is es poae facto,· but the entire Act by l'e&SOn of the said section. Nor could Section 14 be separated from the rest of the Act, since It provides for the effeeti-rity and operation of ~he entire law. Neither is it poasible to weed out any part of Section 14 f1"0m the l'est thereof in order to remo'le the ea: po•t facto character from "the Act without amending the law and thus in effect ~e aorting to judicial legialation. Section 13 reads: "Thia Act aball • take effect on its approval an:l shall epply not onlv to properly thereafteT unlawfully ~ired hut aJ•o to property unlawfully aequlred before the effective date of this AeL" It is patent that we cannot remove the clause "but also to prope1ty unlawfully acquired. before the effective date of this Act," since what would remain would be an incomplete incoherent idea, to wit: "'Thi• Aet shall take effect on its approval, and shall not only apply to property thereafter unlawfully acquired." It will be aeen that eveey part of this provision of Sect.ion 14, la interdependent and not a&verable from one another. BAR EXAMS • . • (Continued from 7JO.ll• 349) VII. .1, poseessing only a student license to drive motor vehicles,. finds a parked cal' with the key left in the llwitch. He ' proceeds to d1:ive it away, intending to sell it. Just then, B, the owner of the car al'rivea. Failing to make A at.op, B boards a taxi and pursues A who in his haste to eacape, and because of his inexperience, violently collides with a jeepney full of pauengers. The jffpney was overturned and wrecked; one pauenger wu killed; the leg of another passenger was crushed and had to be am~ putated. The car driven by A was also damaged. What offense or offenses may A be clu\1-cecl with? VIII. State the t'Ule for the applicatic:in of penalties which contain three periods (maximum, medium and minimum) in view of the p1-esence or absence of aggravating and/or mitigating circumstances, IX. (A) State ·one difference between arbitrary detention. and illegal detention. (B) A, is accused of robbe1·y and is arrested by B, a cc.nstabula1·y serpant, by virtue of a warrant of al'l'eat. A put lilP bail and was orde1-ed released by the court. Three days later serge&Dt B eees A at the cockpit and Immediately arrests him and takes him to the constabulary cuardhouse and was kept there till the next morninl' when B took him to the court. All along A was telling B that he was out on bail, but B would .ftot believe him; J!e,ither did he, B, make liny effort to verify if A had really been released on bail. What offense if any has B committed, and why? X. Define complex crime and· givo an ell:alriple. No matter how invoked, the rule must be employed .with the Q'1ali,ication that it it is impouible to tell what part of .a statute is intended to be operative ~-hen some of ita provision~ are- unconstitutional, it ie wholly innlid. Consequeiili).r, where the legislature intends to substitute a new QBt9m .of taxation as a whole for the existing one, and all the imm:sions cannot be carried into effect because of conatitntion.al infirmity, and it ia impossible to tell what part the lecial#ure would have adopted independently, the entire statute ia wid. 11 Am. Jar~ 838-889. ' Ita unconatitutional character cannot be remedied ueqt; .by amending the law thus: "'i'hia Act ahall take effect on Its approval and shall only apply to property thereafter unlawfully, ltCquired," which would be the function. of the legislature. and tM>t of the Court. It is a pneral rule that the courts, in the interprei..tion of a statute, may not take, strike, or read anything out of a statute, or. delete, subtract, or omit. anythinc therefrom. 50 Am. Jur. 219. It is well settled that inj~on will lie to restrain the .enfol'cement of a penal law that Is unconstitutional or the constitutionality of which is doubtful and failiy debatable (Yu Cong Enr: YB. Trinidad, 47 Phil. 886) a1 well as where it is n~ for an orderly administration of juatice or to prevent the Wl8 of the strong arm of the law in an oppressive tnanner (Recto vs. Cas-telo, 13, L. J. (1963) 660, Dimayuga vs. Fernandez, 47 Phil: 385) - which circumstances obtain in this case . JUDGE ALVENDIA'S ORDER In re10lving the question of the iasuance of the writ Of preliminary injunction, Judge Carrnelino Alvendia: iuued an order idated November 5, 1960 denying the issuance of the aame on the elaim of petitioner CAraiias) that Republic Act No. 1879 is unco:nstltutlonal, and adduced as reason thereof: "To tlo so would be: equivalent to judging- the cause on lta me-rits before the lasuea are actually joined and hearing ia held." (To b• cominuecl) -~~~~~--~~~~ PARITY . . . (Ccmtinaad from ""'1• 325) "legal safeguanle," the "legal authority," the "legal way" out Of • hopeless predicament once we have fallen into the gri~ of the Imperialistic cobra. If We must go tb hell, let's not :fq,mish the rope to lead us there. If we must haftl', let us at least nfuac to sign our death. wal'rant. If we. must be subdued, let us at l~ast refuse to submit. CONCLUSION Adverting our attention to the heaV}' demande for naval, aerial and military bans already diaturbill&' us, to the most recent violations of our sovereignty in Palawan yet unpunished., to the heavy investment in big estates already atarttng, to the growing control of our army by military asailltantl frotn abroad, etc., etc., let this my last warninl", If not heal'd, at least, be recorded: Pass this amendment and you have turned the c1oek: of Philippine history 400 yeal'8 back. Pasa this resolution and :you -have led our unhappy nation thrcnigh the fatal gates where passed the nations of vanished or vani1hing identities - Hawaii, Caba. Persia, the Carribean countries, Korea, and a dozen others in Europe and Central America that have the misfortune of falling within the otbit of mie"hty powers. Pass this amendment and you have consummated the greatest betrayal to the sublimest national eause, and the worst destrur.tlon to" the memories of the hei"Oes and leaders who fought and fell in 300 revolutions and three· wan that eonatitute the sum total of our epic cruaa.de for freedom. Pan this amendment and when the tragic 1:9nsequencea of this act will a11urrie a reality showing our poaterity orphaned. of" their birthright and their friedom. - you will. weep but too late with the anathema of history on your head told in the words of" Ateiza, the mother of weeping Boadbil expellel king of Granada, when she said, "Weep like a woman for the loss of the kingdom whieh you did not defend like a man." 362 LAWYERs JOURNAL November 30, 1960' Lawyers Directory AN'l'ON 10, UUAIAN JI, R-420 llomnH 81a11lW1 llldit., Plnzu (loili, !.ln.ulln ort. '1'els. ll-91-BO 3-6'-40 Re.i. Tel. 2-(6-36 ARANAS, JOSE, R-~01 Da11k of the Phil. l1l1md Dld11. PIH• Cervantes, Manila Tel. 3·58-51 Al't'flAGA, SAN'l'lAt:O Jll. Suite 309 S11m11nillu Dldll'. Eolcolt11, Marnilll ARTURO A. AL,\lo'lllZ & ASSOt~IAT.h::i Attor1u,>J'!I & Cuu11sello1'11 at Law Suite 406·41111 Jtell'i1111 Uhlir. Escolt.o., Maniln 'l'el$.:3-33-38 3-U-67 ASA, Jo'r1mci~c" l.nw Ofticll!ll ll-21.11 Snnnmiltu llldll'. JoAowlh1, Huniln ·rel. 3-:113-6' llli:llNAJ.IJll, IUCAllllO MAH. A1111t. All<>rney: 1.li:ONAlll>O S, DAI.AN Suite 303 C11 Uujieu1.: llldr,1. 208 D1111nurliin11, M11nil11 ll•it\e11ce: ti12-614. llerhu.111 enr. 'h111Ju,M1111t:a BUENDIA, JIMENEZ JI. Ortice: Suite 303, Sama11Hlu Did&. Escolta, Manila 'l'el.3-94.-5' R~idence: U!6 Radium St., Manila 'fel. r;.32.40 CHIPECO & ALETA LAW OFl-"ICl!:S Suite 404 FCI Duildinir 4.16 DosmnriiiH, M.anllu Tel. 3.44.45 Govt. 22·02·80 !':All-mKNCIANA S. l'Al!lll!:Ctl·'l'l!ll,AO UU·ll Sun A111u11, Mu11ib1 'J'el. 3.11r,.20 FEllNANIJ~:t;. l~STANISl,AO lt·UO llu1n1111 Suulue llldir. l'Juzn Guill, )fo11ilu 'l'el•. 3.91.so FRANCISCO, Al.IJh:ll'l'O J, R·201 Suuum!Hu llldir., M11nll• 'J'el. 3.33.u In view of Uie Present Oif!ieUky o( kicntinir the office ot practicln11 anormws. th1 Journai publishe.s thi• dircreto1·y to acquaint no1 only their clients but aiso the public of their 11d<ire~s. Lawyen may avail them9ei\•es of this se~viee np11n payment nf Two Pe..cq tor l'llch issue of this publie:i.tion or Sii; Pesoa for one ye11r 12 iHUel payable In adva:iu. l•"llANCISCO, IUCAllUO J. ll·201 Sn1111rni!I•> llldi: .. M1111ila 'l'el. 3·33-6' FllANCISCO, ll01.IOl.1•'() J. 11-201 S111mml!lu llhhl' •• 1'el. 3-S:i-S' JAltCIA, }llENVl!:NIDO L. 210 Culvo Dhl.u:. Eacolla. Manilu 'l"el.3·68·33 GONZALES, RAFAEL CAS't!Ll.O Suite,.,, ·Ith 1-'luor Duiia lller.:edl!S Bld11., Plaza Mi1·,.11d:i, Qulaw,, Manila OUiee: 'l'el. a-31-28 R01Sidenee: 'fel. 6·80·94 GU'flERREZ, VALEN1'1N C. Rma. 40!1-~ 11 llu1·ja Didi. 6•1 Riz11I AH., Jl.lanil• Tel. 3.71.97 • GUZMAN, llOMINt.:O I•', Suite 3U !•'Cl Uldi:. 4.16 D11sni1u·ilu11 St. Al•nilA 'l'el.3·46-61 la/ZlllAN, l'ltlllll~NCIU DI~. JmNl'l'O, Jllli'l'INO Z. 1;tJ7.MAN. ]'JUJD1mc10 UB, JM!O~ J,eyba lllohr. all! llH~mal'iiins, M1mil11 'J'o:I. Nu. a-21.w JlllUl,\N 'l'WJlllCO I.AW IWl'lln~li A~~ociure.•: Cu~iu1irn Ii. l'e J.iceri11.J.lll"nci110:1lu 111111 Cl1111111 llJdic. Suite 201·202, llU 'I'. l'in11i11 Con1er 0111,n1i11, lllm1ila 'I'd. lMl1·2~; ll-r.2-3f.; 3-IU-6' l.l~UN 0. 'l'Y, 01.IVJ!:lt llANAYU tar.::>MUNUU &. lllt:A IUIO Z. V J~l.ASCO - e/o Confed.,1·11liu11 ut Cili~em1 J,ubu1· tluiun (CCl,U) llou. ao:1 1-'rn l'ress Wdic .. 70H llbul Ave., Maniln, •ro:I. 3·1111·74, 2-2u.a1. llr1111eb Of· lice: 6 lli~1<\ Ave., 81111 l'ablu City (e/o l•'ede1·11liun ut Cucurmt Wurker• (Sun 1'•blo City Clm1>terJ - CCI.Ill. LIWAG LAW Ol•'l•'ICES L01·enzc J. Liwa11 Raae; F. Ramus Teresito de I• Paz Suite 302 Free P1·eas Bldg:. Rizal Avenue, l\111nil11. Tel. 4-13-33 l\IENDIOLA, MARCIAL G. S-203 Quiapo Bldg, 758 Hidnl11:u, Plnzn MirnnJ:i lllnniJn Tel. 3-13-SS MORAi.Es; Ellt>:l!:S'l'O 'l'. 717 Bnnk of th( l". I. 81<13, Pinn Cc1"V1111tcs, Manihr Tel. 3-52-86 Res. 1921 D11kut", M11t11te. M•11ll11 Tel. 5-25-3( OLIVEltoS I.AW OFl•'ICE Twli11111 'I'. Oliveros Snmp,.]oe, llfn11il11 Tel. 6·81·04 m::n:s. MARIO RAMOS 716 Uomon Snntoa BJ<11. Plaza Coiti, Manila Teb,, 22·0196, 3-30-60 & 3·2'·66 'I, A YSON ROSARIO Ortlee: nm. 217 Gr•wt Enslern llolel Dlt\11. Echaa'u~. Munilu 'fei. 3-30-70 Residence: 2H Ruoacvt!ll Avenue S11n Fr11neisco del Mu11te Quezon Cit)' 'l'ei. 7·86·32 llOXAS. ltUDEN I,, 202 C11lvu 11:.Jir. 'l'el. 3-66·08 SAN JUAN, Al•'lllCA, YAIUlJEZ & ll~NEDIC'l'O 4110 l'mlre l•'1111r11, Er111iln, lolunll• 'l'el~.; r..;o.'I:! It r.-711-'i:i S1 \N'J'OS, .!OSI~ 'l', DI!: I.OS $ANTOS, CIJtlACO 'I'. 1)1<; I.US SANTOS. JOIWI~ ·r. l>E 1.os 2nd Jo'luur ll:MA llldi,:. No. Ill U11in1>0, l\ln11il11 'l'el. 3.34.411 SA Y!iON, CllUACO CJ, Office: R-306 Uurke DJtlg' E~culln, Mi1ml" '1'e1.3-li8·l0 llcsidcnce: !ill Sim Antonio S1111 Fr1111ciscn 1lel Munl• Qucvm Citr SYCJI', SAl.A1.Alt & AS!;OCJA'l'l!:S; iitn l•'I"'"'• 'l'nufo Arni Comnrerce· llhlir 21i> J1u111 J,111111, M1111ill• 'l'el~. 2-li!l-Uli. 2·G\1·07 & :t-6\1-IJM SYQUIA LAW OFFICE RNlll(jl/J~ I'. S'{(WIA Andreo L. Balta1111 Jose L. Javier J<»1e J. Fener, Jr. Felix 'fo1·1·alba A1·t11ro R. Vi11do ' ilnis. 32\1 & 326 Samanill<' l\ld,g:. E>ll!Olla, Mnuilo Tels. 3-77-62 & 4·19·70 JUST A FEW MORE COPIES AVAILABLE! Francisco's THE UWYERS BIGHT VOLUME I A-E What is the Lawyers Digest? It is a condensed compilation of Supreme Court doctrines alphabetically arranged by the topic. The facts of the decisions cited therein may be found in the corresponding pages of the Lawyers Journal. 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