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The Lawyers Journal Vol. XIX No. 8 August 31, 1954.pdf

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. '\...,/ ']}& LA WYERS~--JOURNAL ViOLUME XIX VICENTE J. FRANCISCO Editor and Publisher LOPE E. ADRIANO RODOLFO J .. FRANCISCO Assistant Editon ADELA OCAMPO Business Manager RICARDO J. FRANCISCO Assistant Business Manapt THE LAWYERS JOURNAL is published monthly by Sen. Vicente J, Francisco, former delegate to the Conatitutional Convention, pnicUsing attorney and President of the Franciaeo Collece (fonnerIJ :,.....-- Francieeo Law School>. SUBSCRIPTION AND ADVERTISING RATES: Bu• 1eription: P18:00 for one Je&r; no.oo for • months. Advertising: Full pace - PlOS.00; Half pap - P65.00; MANILA, PHILIPPINES 'AUGUST 31, 1954 NUMBER 8 THE SUPREME COURT, THE CONSTITUTION AND THE PEOPLE - By Senator Bailey 373 REASONS FOR .THE PRESIDENT'S PLAN AND THE REMEDY - By Attorney-General Cummings 373 MEMO FROM THE EDITOR . . . . . . . . . . 374 DEBATE ON SENATE BILL NU. 170 AMENDING OR REPEALING CERTAIN SECTIONS OF THE JUDICIARY ACT OF 1948 . 379 F.DITOR'S NOTE . . . . . . . . . . . . . . 391 STATEMENTS OF SECRETARY OF JUSTICE TUASON 392 WHAT A WELLKNOWN ORATOR ONCE SAID ON THE DANGERS OF MIXING POLITICS WITH THE JUDICIARY 392 AMERICAN DECISIONS: State vs. Leonard - By Justice Snodgrass 395 State, ex rel. Gibson vs. Friedley - Justice Dailey 397 State vs. Mabry - Justice Neil 401 State, ex rel. vs. Link - Justice Cook . . . . 402 In Re Opinion of the Justices . . . . . . . . . . . . . . . . 403 SUPREME COURT DECISIONS: Rizal Surety & lnBurance Co. vs. de Ia Paz, et al. - Justice Paras 404 Republic of the Philippines vs. Gonzales, et als. - Justice Bengzon . 406 Ex..Meralco Employees Transportation Co. vs. Republic of the Philippines - JuBtice Jugo . . . . .. , .. , .. , ... , . . 408 Punaalan vs. The Municipal Board of Manila - Justice Reyes • • • • . 409 Halili vs. Lloret. et als. - Justice Bautista Angelo 410 Quizana vs. Redogerio et al - Justice L{abrador . . . . . . • . • . . . . . . . -'12 Hejia Vda. de Alfafara vs. Secretary Mapa et al - Justice Bautista Angelo . . . . . . . . . . . . . • . . . . . . . . . . . • . . • . • • . . .f13 Manalang va. Quitoriano, et ala. - Justice Concepcion . • . • . . • . . • . . • 416 Vega et al vs. The Municipal Board of the City of Uoilo - Justice Concepcion· . . . • . . . . • . . . . . . . . . . . . . . . . . . . . . . 419 Rehabilitation Finance Corporation va. Court of Appeals, et al - J uatice Concepcion . • • . • • . . . • • . . . . . • .421 SUPREME COURT HEARS JUDGES' CASE . . 42t On~fou.rth pace - ,.6.00; One-eicht pace - 1'36.00; Onelirleenth pace rzs.oo Eutered .. acon.d eiu. mail matter at the Post Office. BUSINESS OFFICE: 1192 Taft Annm. Kudla. Tel. $.41.ii EAST P'~S~ING 1192 Taft Avenue Manila Tel. 5-48-55 FRANCISCO LAW BOOKS IN SERIES REVISED LIST OF PRICES AS OF JULY 15, 1954 Civil Law in 4 Vols. PS0.90 per volume .•.•..• Trial Technique and Practice Court in 5 Vols ...• Criminal Procedure &: Forms in 2 Vols •.. Criminal Evidence in 3 Vols .. .... . ••.•.• . .•. Revised Penal Code in 3 Vols. <1954 Edition) .. <!'20.60 per volume - Adu.. .al Pl.20 per book for provincial ordera.) 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SECURE: FRANCISCO'S TRIAL TECHNIQUE AND PRACTICE COURT Whether 11ou a.re a. amaU t-OW7I. laWJfln" or a. big citv pra.ctitiour, or a lawver, who, /0¥' the time being, U engaged in other activitiea but pl.a.nning to enter •c>oner or la.Ur in. the active practice of law, vou need thU book · t1Jhich contains the u.·orking rulea of trial prieedure a.nd the teehKiqUe in the ua.mination. of wi~aaes. The following volumes of TRIAL TECHNIQUE AND PRACTICE COURT are ' available: VOi. I - '25.75; VOi. 11-P30. 90; VOi. 111-1'30.90; VOi. IV-1'30.30 VOi. V -1'36.05 P15'.50 - A SET CFor provincial orders an additional !1.00 per volumeis charged for mailing and handling o:pense11J Free literature on request. Place YOUR order now at - EAST PUBLISHING I J 92 Taft Avenue, Manila Tel. 5-43-55 * If it's in letter press, {{ If it's in offset, * If it's in rotogravure···· Foi all your printing needs [a~jfoJ~~1m~~~1~. TE:L.S . 60 ASK 116.J or 26t...J ~I -, I TMcla(,Urrs J~ # i/r/ ;:t,,.yTHE SUPREME COURT, THE CONSTITUTION AND THE PEOPLE Ry Josiah W. Bailey, United States Senator, North Carolina The Am<'rican people have within the last few days been suddenly confronted with :\ new and deeply disturbing quc3ti:Jn: The proposition has beC'n put forward under alarming circumstances to increase the number of Justices of the Supreme Court from nine (the preser1t number) to fifteen - provid<:d those Justices 70 yea.rs of age or more shall not retire. There are six Justices of the Supreme Court who fall within the tern1s of this bill. The effect is to notify each of them that if he remains on the Bench another Justice will b:! appvinted to off-set his pres1;:nce, because of the alleged infirmity of agl'. If he retires another will replace him. It looks to a reconstruction of the Supreme Court at one stroke. It is either a judicial recall or a judicia.I neutralization. It implies even more than reconstruction of the Court. It predicates a new version of the Constitution. What are the circumstances in which this far-reaching change in the fundamental structure of our Government is put fo1 wnrd? UNIVERSITY 01' Tfl r l'lllLll ' l'lNI!;~ LlllRAHY / REASONS FOR 1M£ f>1tE!mENT'S PLAN AND THE REMEDY By Homer S. Cummings, Attorney-General of the United States Only nine short days have !>assed since the President sent to the Congl'f$S t'ecommendations for the organization of the Federal judicia.ry. Yet in that brief time~ unfriendly voices have filled the air with lamentations and have vexed our i!ars with an insensate clamor calculated to divert attention from the merits of his proposal. Let us, therefore, disregard !or a moment these irrelevancies and di1·ect our attention to a. dispassionak considoratfon of the reasons lor the action taken by the President and the remedy he suggests. From thP beginning of President Roosevelt's first administration I have been in intimate contact with him with reference to ways and means of improving the administration of justice. Literally thousa.nds of proposals have been considered. In addition, the critical literature of the law has been searched, and the lessons of experience hnve Leen canvassed. Out of it have com·e certain WPll-defined conclusions: First: In our Federal courts the law's delays have become First, we must take note of the tact that the Court has with- intolerable. Multitudes of cases h&ve been pending from five to in t.he last two years frund it necessary to hand down an annual number of opinions holding acts, or portions of acts, of Congress unconstitutional; and that in every instance it has sustained the historic interpretation of the Constitution. If the present Court has been wrong, then the Court has been wrong for seventy-five years or more. Second, that these acts were passed by the Congress at the instance of the President. Third, that when these measures were under consideration . by the Congress, many Representatives and Senators were troubled on the question of . their constitutionality. Fourth, that in one instance the President sent a letter to a Representative advising him to disregard his doubts as to the con. stitutionality of a bill, however reasonable. Fifth, that many members of the Congress felt constni.ined to waive for the time the question of constitutionality and leave the matter to the Court. That is, instead of bearing their part of the brunt of proposed legislation as beyond the power of the Congress, not a few of its members thought bes~ to pass the whole burden to the Court. Let it be said that this was done under the impulses of a sem:e of profound emergency, and with much re.. gret on the part of some. Sixth, that the effect of this procedure was to subject the Supreme Court to widespread criticisn1 and not a few bitter attacks. The Court was described as an oligarchy; it was ~poken llf as exercising the veto power; careless men said even that it haci nullified acts of the Congress; - none of which accusations 4re true; - and even a. scurrilous and ribald book was printed in which the highest court in our land, the highest on earth, respected always and everywhere, made up of learned and venerable men long known in our public life, was held up to scorn and con.tempt. I have read this book Thue is more of falsehood and less of truth in it than in a.ny :oimilar number of pages of which I have had knowledge these fifty yean I have been reading. And seventh, we must bear in mind that in his address to the Congress on January 6th, the President complained of the decisions of the Supreme Court and made some suggestions, the full import of which did not appear at the time. This is the general ba.clcground in which legitlation is proposed, which, if pas..sed, would either enlarge the Court by six new members or cause six present: members to retire and be re. · ten years. Rather than resort to the courts many persons submit tCl dctS of injustice. Inability to secure a prompt judicial adjudication leads to improvident and unjust settlements. Moreover, thf' time factor is an open invitation to those who are disposed to institute unwarranted litigation in the hope of forci>'lg an ac!justment which would not be secured upon the merits. Furthermore, the small business man or the litiga.nt of lim~.tcd rne&ns labors under a grave and constantly increasing disadvantage because of his inability to pay the price of justice. I do not stress these matters further, because the congestion in our courts is a matter of common knowledge. Second: Closely allied with t.his problem is the situation created by the continuance in office of aged or infirm judges. For eighty years Congress refused to grant pensions to such judges. Unless a judge was a man of independent means there was no alternative open to him except to retain his position to the very last. When, in 1869, a pension system was provided, the new legislation was not effective in inducing retirement. The tradition of aged judges had become fixed, and the infirm judge was often unable to -perceive his own mental or physical <lecreptitude. In· deed, this result had been foreseen in the debates in Congress at that time. To mQet the situation the House of Representative<; had passed a measure requiring the appointment of an additional judge to any court where a judge of retirement uge declined to leave the bench. However, the pi-oposal failed in the Senate. With the opening of the hventieth century similar pzoposals were brought forward. The justices of the Supreme Court, however, protested and the project was abandoned. When William Howard Taft, n former Federal jlldge, left the Presidency, he pub.. lished his views. "Therj! is no doubt," he said, "that there are judges at 70 \vho have ripe judgments, active minds a.nd m\lch physical vigor o.nd that they are nble to perfarm their judicial duties in a very satisfactory way. Yet In a majority of cases when men come to be 70 thf'y have 16st vigor, their minds are not as active, their ~11ses not M acute and their willingnes:e to -undertake great labor ls not so great as in younger men and as we ought to have i~ judges who are to perform the enormous task which falls to the lot of Supreme Court justices." In 191 3 Attorney General M:cR+>y11olds (now a justice of the August 31, 1954 THE LAWYERS JOURNAL 873 THE SUPREME COURT .. . placed b)r six new members; in either ~en giving the President leave to 3ppoint six new Justices and so reconstruct at one stroke the highest Court in our land;-· indeed to tear ,lown the Court as it is and create a new Court in its stead - an a.ctio:i without precedent in our long history. What are the grounds upon which this astonishing action is proposed? In his messl\ge to the Congress presenting the legislation, the rresident undertook first t\:i argue that the Court wa:oi behind with ils work. But the fact is against him here. T~e Court is up with its work. His own Attorney Gen<"lra.I has n.<idc his .'.l.nnual report for the fiscal year ending last July 1st. In this report on page 9, the Solicitor General of the United States, "'ho represents the Government before the Supreme Court, says: - I quote: 1'T/ie work of the Court is curre11t Mid cases art1 hu1rd as so<rn (lfter records have been vrinted (rnd briefs can be prepared." This statement ends the a.rgurnent that this r.idical change is proposed m order l'o e>;pedite the detnmination of <:ases. It is conclusive testimony from the President's own witness. It i'!I moreover a matter of record. -Th e President argued in th~ second instance that· the Court had declined t.o allow petitions in many cases, and t hat this indir.ated necessity for six additional Justices. As to this let. Uli hear his Solicitor Generu.I, in the same Report, page 13, in w.ords as follows: I quote"A very large majority of the cases on the appellate docket do not possess sufficient merit to warrant consideration on the merits. • • • Many petitions for writs of certiorari <i.e. appeals) :ire filed which in the light of setl1ed practice m-..ist be r1:garded as entirely without merit." To be sure tha.t is a sufficient negation of the second of the alleged facts upon which the President seemed to base his recommendation. If petmons are without merit they ought to be df'clined and the reason for it lies in the petitiofl'!J not the Court. And how, anyway, could fifteen Justices hear and decide cases more quickly than nine men? As a rule the larger the number of participants in a discussion the longer a.nd more difficult U1e consideration. It is easier for nine men to agree than for fifteen. Just who misinformed the President I do not know. That he wa, not correctly informed in these essential matters of fact is only too plain from official statements I have quoted from his Solicitor General, and published in the latest Annual Report of his Attorney General. The third consideration i!Ubmit.'ted by the President in supIn the earf11 part of 1937, President Franklin D. Roosevelt laid before the Cotigress of the United States a comprehemtive plan for tht reorganization of the federal judiciari1. Dubbed by the American press as R oosevelt's " court-packing plan," the 7>residential measure's 11wst co-ntrt>i•ersial feature was that u·hich con.(erned the Supreme Ce>urt. Contained in the President's message and the bill which was subsequently filed in the Senate wa..s the provision for the appointment of an additional justice for every Supreme Court justice who failed to retire within six nwnths following the age of 70. The total number 1 of justices under this provision was not, however, to eueed 15. Pre!lident Ro"J:levelt's "court-par.king" bill came in the wake of REASONS FOR THE PRESIDENTS ... Supreme Court) in his annual report for the Department of J 1,1stice urged that the Congress adopt a similar measure. Some judges, he argued, " have remained upon the bench long beyond the time when they were capable of ade<1uately discharging their duties, and in consf'fluence the administl'ation of justice has suffered. I suggest an act providing wben any judge of a F l:deral court be.. Jew the Supreme Court fails to avail himset! CJf the privilegt- of retiring now granted by lz.w, that the President be required, with the advice and \!onsent of the Senate, to appoint anothel' j udge, who shall pr~side over the affairs Of the court :).,nd have precedence over the older one. This will insure i:.t all limes the presence of a jlldge sufficiently active to discharge promptly and ade-. qu::i.tely the duties of the court." Jn 1914, 1915 and 1916, Attorney-General Gregory renewed his recommendation. Solicitor General J ohn W. Davis aided in drafting legislation to carry out the proposal. Instead of following this advice, however, the Congress in 1919 p:i.ssed a measure providing that the President "may" appoint additional oistrict and cil'C'Jit juciges, but only upon a findin~ t hat the incumbent judge over 70 ''is unable to discharge efficiently all the duties of his officE' by reason of mental or physical <lisability of permanent character." This legislatior. failed of its purpose, bi:_cause it was Indefinite and impossible of practical a.pplicafion. The unsatisfactory solution of 1919 had been endorsed by for mer Justice Charles Evans Hughes, but in 1928 he made this further observation; ··some judges," he pid in pa?t, "have stayed too long on the bench. It is extraordinary how relucta..nt aged judges are to retire and to give up their accustomed work. 1 agree that the importance in the Supreme Court of avoidirg the risk of having judges who are unable properly to do their work snci yet inl!il>t on remaining on the bench is too great to permit chances to be taken, and any e.ge &elected must Pe somewhat arbitrary as the time of the failing in mental power differs widely." Despite this long history of effort to obtain some measure of relief, we are now told in certain interested quarters that age ' J.aa no relation lo congestion in the courts. The verdict of ex~ pericnce and the testimony of those eminently· qu.ilified to :;peak from actual service on the bench a":"e ignored. Third: Attacks upon the constitutionality of measures enacted by the Congress have burdened tht courts. The powers of government are suspended by the automatic issuance of injunctions commanding oCficers nnd agents to cease enforcing the laws of the United States until the weary round of litigation hn.s run its course. In the uncertain condition of our constitution:;! Jaw it is not diHicult for th1: skillful to de\'iSE' plausible arguments and to raise technical objection!! to almost any form of legislation that may be proposed. Often times drastic injunctive rc,medies are appli~ without a number of Supreme Court dedsions invalidating the adminisfra. lion's "'New Ue(J./" mea.mre;;. Jn 'llJ r•ther pl!riod of American history had the gap betwee11 the /1Jg1slative and ezecu'tive departments un the one ha11d and the jm.{iciary 011 tht othe; widened to unusual 71roportfons. Of !5 ma.jor deci!iions relating to New Deal legislation or Mtivitirs, i ?1 the 1Jeriod from 1935 to 19.'17 alone, the Suprrme Court supported the administrfltion 011l11 14 limt!s b;tt declaired its acts 1t~1ronstituticmal 11 tinles. T11vicai of important administrn. lion measures ntled 1rnconstitutional by the Supreme Court wf'rf! the National l rulltstrial Recov'!r11 Act and the Agricultural A djustment Act - ;;pe.arheads of the New Deal program for economic reform. In the /Me of this trt!nd in the Supreme Court deci!liom. New Dealer3 raised a clamor for either judicial reform by congressioti.al act or by constitutional amendment. President Roosevelt's "court-packing" bill was the administration's .answer to this demand. When the bill j or ''reform" of the Supreme Court finally came u.p for disc1tssion in the S enate, it precipitated a long series of debates so bitter that they ·threatened to disrupt the Democrati~ /'art11. Jn their zenl to maintain the independence of the judiciar11. 37< THE LAWYERS JOURNAL August 31, 1954 THE SUPREME COURT ... port o[ the proposed legislation concenwd the sul>jeet of age and mental and physical capacity - a subject', as he said, "of delicacy." It related to the two considerati')ns J h&ve just mentioned: The ages of the Jusllces was cited as the reason for conditions that do not exist. It is alleged that the Court's docket is congested because Justices are aged, but the docket is not congested! It is alleged that pet.itions for certiorari are reCused because Justices are infirm, but the Solicitor General bears witness that they are refused because they are without merit! He does not say that any one of the Justices is in any degree incapacitated. He is content to offer only the suggestion of "aged or infirm judges." But age is often the evidence of learn· ing and wisdom. It is agreed that the nobler figures of the Senate hav!! passed three score and ten. And with them .the Vice President. Their eyes are not dimmed nor is their natural strength abated. Senatus connotes age. No country can afford to dispose of its greater servants by any rigid rule as to age. Give to youth all it may claim, the place of lhe elder stat.esmen in a Nation's life is universally· recognized. And age ripens the Judge and becomes him as it becomes no other. The old saying "Young men for action, old men for counsel" has always held good. lt is agreed that six of t he present Justices are each more than seventy )•ears of age. Dut the President's young Solicitor General, in constant contact with the Court, says that its work is current, i.'hat cases are heard and determined as rapidly as briefs are prepared. And the record in the latest yea.r shows that 273 cases were heard and disposed of - a great amount of work done and the Court current. The opinions in these cases are published in the Reports and have been submitted to t:he Bar of America. No one has been heard to sa.y that, at any point or in any case, there is evidence o! want of mental vigor. It haa been a most difficult period. But there has been no complaint from any quarter of delay or deterioration. On the other hand, probably never before have the Court's opinions been so widely published or so closely studied or submitted to tests so searching. · Th~re has been · division in the Court - as there always has been when great. questions were presented. But. no one has attributed this division, on eit'her side, to age or infirmity. We have seen the Court unanimous in the N.R.A. case, but that unanimity has not so far been attributcrl to wcakne;JS in the Court. It was unanimous in t'he Humphreys case, but no one has thought that that unanimity was due to any infirmity in the Court. We saw it divided 6 to 3 in the A. A. A. and Cartu Goal cases, but none who read the opinions has aaid that \.'he opinions of the Court or the dissenting opinions were due to age or infirmity, but rather a.II who have read them have been impressed with the vigor and high intelligence manifested in both, members of CO'lt.{/ress crossed pat'ty lines and Wok turns to speak again.st the bill. After five months of bitter debate, it become quite obvio1u that despite President Roosevelt's tremen.doU8 pt)pUlarit11 with cor.gruaional lelllkrs atuf. the Attom.ei/ Gmeral's brilliant defense of it, the bill would be voted down.. In Juiv, 1937, rather than. risk repudiatwn., administration leaders in the Sena.te withdrew the Roosevelt plan for "reform" of the SuJWHM Court from the body's agMda. In the light of -recent events i" con.tempOt'afV Philippine political hist(}rJI, the Lawyers Journal deems it worthwhile to publish in this issue the speech of Senator Bailey - a Democrat - a9ainst Pre!Jident Roosevelt's ''court-packing" bill in the course of the protracted debates thereon, aB wetl as the defense made thereof by Attorney-General Gumm.in.gs. The following thought e~pressed b11 Senator Baile11 in his 11peeeh ma11 well serve a.a a source of inspiration for anyone interested in having tke independt:nce of tht> ;udiciory pres6rved in thia country: REASONS FOR THE PRESIDENT'S ... notice to the government or without opportunity upon the part of its representatives to be heard in defense of the law of the land. Fourth: If the Constitution is to remain a living document ar.d the law is to serve the needs of a vifal and growing n ation, it is essential that new blood be infused into our judiciary. The Constitution is not a legal rode. In the words of the great Chief Justice Marshall, it was "intended to endure f"or ages lo come, and, consequently, tO be ad;i.pted to the various crises of human affairs." Justice Story likewise pointed out long ago that ·'the Constitution inevitably deals in gC'neral language. Hence its powers are expressed in general terms, leaving to the Legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its power as its own wisdom and the public interests should require." In short, the Constitution is not a dam erected to chECk the flow of the life of our people. It is a channel through which tliat lift: flows, directing, guiding, facilitating it, but a.t no point endeavoring to stop it. That the freedom of our people to direct their own destiny has been hampered, especially of late, by judicial action is scarcely open to debate. These limitations upon Congressional power have brought into challenge a wide range of projects a.nd measures · overwhelmingly approved by our people. To confess that our institutions are not capable of serving our needs implies an admission we should be reluctant to make. Questions of vast significance are moving to their solution. The problems of America are insistent. We are a nati'>n. Our people think as a na.tion. They act upon a nationwide front. Industry has long since spread its arms be)·ond the boundaries of a single State - indeed, beyond the seas. Labor marches on the parade-ground of a continent. It is idle to say that agriculture is a loca.l matter, or a question for the farmers alone. They know that nature has decreed it otherwise. The winds and the dust and the drought and the floods do not heed State lines. They have unmistakable jurjsdictions of their own. I trust it may not be deemed indelicate if I borrow the qu~int phrase of Mr. Justice Holmes and suggest that some of ou1· judges "need education in the obvious." The judiciary is but a coordinate branch of the government. It is entitled to no higher position than either the Legislature or the Executive. The President recognized this situation in his first message to t he new Cong1·css delivered on the 6th of January, when he said: "With a better understanding 6f our purposes, and a more intelligent recognition of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring l~gidative "Courts, in. order to ad11Unister ;ustice, mu.st be independent. Grant that his motive is the purest--! deny a ·P-resident's right to seek to mould the Supru11e Court to his Marl's <hsire. I <hny the right of Cong-ress to seek to form a Court that will interpret tlie Constitution to suit its intcr.preta.tion, its judgment or its wi/L None may seek to infhtence the Co-urt sa.ve by the acceµt fld processes of Justice. President, Cong1·ess, and Court wre each ur;der the Co11s~ituti<.n. It is the people's instru.. tMnt; th£ charter of theit· rights; the sheet anchor of thefr liberties. And it must be interpreted, if it is to be of value, only by a Court of Ju.stice, independent of all influence, free of a.ll politics or persomU will, free of all fOt'ce, imiu.cem.e11.t of temptation, and up01t. the altan of Reason and Conscience under the oath duly taken befo-re the God from whom our liberties and the great ittStrument of th,eir prese-rvation ·were a.like derived. As was said of old, so mvst it be said now and ever more to all u•ho minister ·in the Peoplf!s Teniple of Just~ce: 'What doth the Lord God Tequire of Thee but to d-0 Justice, l-Ove me-rcy and walk humbly befOt'e the Lord Thy God'!" August 31, 195' THE LA WYERS JOURNAL 375 THE SUPREME COURT ... And :it all times it has been recognized that lhc Court's opin4 ions have been cbnsistent with the Court's historic interpretation of the Constiiution - with the reading of the language of t'hat dc.cument which Marshall and Story, Miller, Fuller, White and Taft. ha.ve made familiar, and which the whole country has apJJrOvecl in eve1·y generation. So, while we have only the fact of age here to support t'he President's suggestion, the truth of the matter is against It. If there were a presumption on account of age, it is ~ebut'teci by th1o facts I have cited. The Supreme Court today is up with its work, is capable, is vigorous; and it iii guarding the Constitution with a vigor e.nd a courage worthy of all the grea~ traditions of its i1oble history, and worthy no l~ss of the great Republic which rests upon that history. If the Court has offended, the offense is that it has in a trying time m~ini.'ained the interpretath>n of the Constitution which the pC'Ople have received from their Court and approved in every period of their histc>ry. I have now disposed of the three reasons the President gave in his mes~age of Febru:i.ry 5th for the proposed changes. It is safe t'o say that no 3dvocate of the President's propo£ition will offer to maintain it upon the considerations upon which lhe President relies in his message. In view of their manifEst inadequacy, one may be justified in looking a little beyond the express reasons set out in the President's message supporting this bill - to ascerta.in whether the President has other ground for his extraordinary action. But I would not look beyond t'he manifest facts, I would not risk opinion. I would draw no inferences. Let us see and consider only what the. President himself said on the subject. He closed his message of February 5th with a significant rcm:lrk that if the measures recommended "achieve their aim, we may be relieved of the necessity of considering any fund:lmental changes in the powers of the courts or the Constitution." This indicated .:i. purpose other than merely improving the Judicial system. I now recur to the President's message of Janua.ry 6th. In this message he disc~ssed certain of his measures which t'he Supreme Court had held to be unconstitutional. He advised l\gainst amending the Constitution. He argued the necessity for general laws of the same type as those which the Court' had declared to be unconstitutioni'.l.i. He put his faith in a different judicial iuterpretation. I quote his words: "With a better understanding of our purposas, and a more intelligent recognition of our needs as a nation, it is not to be assumed that there will be prolonged failure to bring legislative and judicial action into closer harmony. Meo-ns must be found to adapt cur leyal forms and our jttdicial ittterpretation to the actual p?"e· sent nati0'114l needs of the largest pr&greBsive dem-0cra<:y in the 11todcrn world." Thus the President ' made known his desire for general laws asserting the Federal power over activities heretofore throughout our history confined to Sta.te regulation, laws like the N.R.A., which the ent'ire Court held to be unconstitutional. And quite plainly he seeks a Supreme Court which will hold such laws to be constitutional, notwithstanding all the prcct;dents to thti contrary. He says that if we reconstruct. ltle Courts as he suggests, "we may be relieved of considering any fundamental changes in the powers of the courts or the Constitution." He would change the Court rather than amend the Constitutfon ! That is, he holds a differently constituted Court would sustain his views; and that, if given the opportunity, Ire may appoint six Jusi'ices and so reconstruct the Supreme Court as to reverse recent decisions, change the· esta):ilished meaning of the Constitution, and asserl the power of the Congress to pass general laws like the Nationa.l R~overy Act - regu!:'.ltinz activities which from thf' beginning unm now have consistently been held to be within the province of the several states. And so, reading his message of January 6th last, together with his message of February 5, 1937, we have no difficulty in perREASONS FOR THE PRESIDENT'S .. 2.lHI judicial action into closer harmony. M;ans must be found to adapt our legal forms and our judicial interpretation to the actual present national needs of the largest progressive democracy in the modern world." In his message of Feb. 5 the President clearly and forcefully announced his considered and deliberate recommcnda.tion. "Modern complexities," he ~aid to the Congress, "call also for a constant infusion of a new blood in the courts, just as it is needed in executive functions of the government and in prh·at:e business. "Life teriure of judges, assured by the Constitution, was designed to place the courts beyond temptations or influences which might impair their judgments; it wns not intended to crea.te a static judiciary. A constant and systematic addition of younger blood will vitalize the courts and better equip them to recognize and apply the essential concepts of justice in the light of the nee'1s and the facts of an everchanging world." These four outstanding defects of our judicia.l system -- de. lays and congestion in the courts, aged and infirm judges, the chaos created by conflicting decisions and the reckless use of the injunctive power. and the need for m:w blood in the judiciary - are dealt with by the President in his message of the 5th of February, in which he submits a simple, well-rounded, comprehensive and workable system which covers all these points a.nd meets all these neerls. The proposed bill which the President ·submitted with his recommendations provides in substance that whenever a Federal judge fails to resign or retire at the age of 70, another judge shall be appointed to share in the work of the court. In no event, however, are more than fifty a.dditiona.l judges to be appointed, the Supreme Court is not to exceed fifteen in number, and there are limitations on the size of any one of the lower Federal courts. It i lso provides for a flexible system for the temporary transfer gf judges to pressure areas, unde1 the direction of the Chief Judi~. - The President further recommenaed the adoption of a proposal now pending in Congress to extend ~o the Justices of the Supreme Court the retirement privileges long a.go made available to other Federal judges. He also recommended that the Congress provide that no decision, injunction, judgment, or d~ree on any constitutional question be promulgated by any Federal c~urt without previous and ample notice to the Attorney General and an opportunit)• for~the United States to prc:::ent evidence and be heard in behalf of the C'Onstitution11olity of the law under attack. He further recommended that in cases in which any District C'ourt determines a question of ccnstitutionality there shall be a direct and immediate app~al to the Supreme Court, and that such cases shall take precedence over all other ma.twrs pending in that court. This is the sum and substance of what the President pro11ose's. This is the so-called attack upon om judicial institutions. Despite the manifest need of these reforms, despite the comprehensive and reasonable nature of these proposals, de11pite the long history which brought them forth, despite the eminent judges and statesmen who have either expressed views .:ir actually pro. posed mea~ures of substantially ~he same character, the President is now the stonn center o( a virulent attack. The technique ot the last political campaign has been revived. We are solemnly assured that the courts a.re to be made mere appendage;; to the executive office, that the judges to be appointed cannot be trusted to support the Constitution, and the tragedies of despotism await only the adoption of the President's r~ommendations. Yet, no serious objection has been made. to any one of the 11urposes or to any part of the plan, except its applica.tion to certain members of the Supreme Court. Why the Supreme Court 376 THE LAWYERS JOURNAL August 31, 1954 THE SUI'~EME COURT ... cciving the ob~ous fact that our President seeks to reconstitute t'hr S'Jpreme Court of the United States in the clear intE:ntion of bringing about a new int'erpreta.tion of the Constitutien, by decisions sustnining his view of the powers of the CongreAfi and the rights c( the people and the States, Thi~ is thto "means" which he said on January 6th must be fo•md "to adapt our judicial interpretation," and so aYoid amendment' to the Constitution. In this, I submit with great respect, the zea.1 ·)f the Prcsidc!'lt ha;; carried him far beyond wisdom i.nd right. The remedy is worse - infinitely worse - than the diCficultr to which it is addressed. Grant t'hat his motive is good, that Ms o1'jective is wo11.hy, he cannot afford to set such a standnrd or such a precedent. It was never intended that a.ny President or any Congress should control the Supreme Court of t11e United States, ot: any dher Court. W1• sdtled that with the Stuart Kings of Englanci 300 years ago. It is, if I m:iy quote the President on another r.rcasion, "mo1·e power tfom a 'good man should ·.•ant or a bad should have." Courts, in order to adminiRt.er justice, must be indi;per..dent. Grant that his motive is the purest - I d~ny a President's right to seek to mould the Supreme Court \b his heart':j desire. 1 deny th~ right of Congress to seek to form a Court that wi!l int<>rpret the Constitution to suir its interpretation, its judgment or i!e will. None m.9.y seek to influence the Court save by th~ acccpt.£:d l'rOceRses of Justice. President, Congress, and Court are each und£:r the Constitution. It is t11e people's instrument; the charter of thf,ir rights; the sheet anchor of their liberties. And it must be interpreted, if it is k be of value, only by a Court of Justice, independent of a.li mfluence, free of all politics or personal will. free of all force, inducement of temptation, and upon the alt.ars of Reason aud Conscience under th~ oath duly taken before the God from whom .:iur liberties and \,,e great instrument of their preservation were alike derived. As wa!' said of old, so must it ~ said now and ever more to all wb minister in the People's Temj>le of Justice: "Wha.t doth the Lord God reqt!ire of TJ1ee but to do Justice, love mercy and walk humbly before the Lord Thy God?" Grant thnt t'he President's objective is desirable; his method is indefensible. It must. b~ resisb•d because it is wrong; 11.nd also because there is a 1·i~ht way. If the President or ihe Co1~gress or both ought to have more power, and the people r.nd the Stat'l>s lets, let an amendment to the Constitution be submitted to the people. Ler us neYel' seek to reconstruct a court t.o suit our wills. Upon proper grounds we may impeach and i·emove, but we cannot reconstru<'t a Coul't. Truth and Just.ice find their sources in a higher will than any man's or all m€n's. We interfere with the processes by which they are revealed at no less peril than that of t'he rash young men of old who laid hands upon the Ark of the Covenant of the Chosen People. I know that this question is :10t a party question: It strikes lhroughout America. far deeper than party lines or partisan predilection, But l am glad i,,9t I can invoke the Platforn: or my Party at this moment. Precist::ly on the point of lhe Prer.ident's poEition, the Democratic Convention of 1936 has syoken. Tn full vi~w of t.he opinions of the Supreme Court on the legislD,tion of the Administration, and in the prospect of the campaign, thl' candidute, and the election, the Democratic Party gave its most: solemn assurance. I quote: "If these problems cannot be effectively solve<i by legislation within the Constitution, we sha~l seek such cl<:.rifyinz amendment i:.s will ussure fo the legislatures of th'1 several States .and to the Congress of the United States, each within its proper jurisdicticn, the power to enact those laws which the Stnte and Federal l~gi-:!ila­ tures, within their respective spheres shall find nccess:iry in order adequaiely t.o regulate commerce, protect public health and sefety, and safeJ;"Ual'd economic sPCur!ty. Thus we J.·roposc to main .. ta~n the letter and spirit of the Constitution." REASONS FOR THE PRESIDENT'S ... should be g-ranted a special exemption from the plan no one has been nble to explain. If th('re were no judges on that court of retirement age thne- would be no substantial objf'ctivn fre>m nny responsible qu!trt£:r, Whr>.t then is the real objection? It fa sillJply tfos: Those who wish to preserve the status quo ·.vant to retain on the bench judges who may be relied upon to veto prcgressiv" Opponents Qf this measure assert that it is imrr.~ral. The reason they charge that it is immoral · i.;; because they are unable to <'harge th&t it is unconstitutional. Whether the iJlan is immoral or not must be tested by the results it produces. If it produces a wholesome result in a perfectly legal way it can scarcely bf' c&lled immoral. It is truP. that the t>resident's proposal may possibly hut not nE>cessarily have the dfoct of incrP.asing the size of the S1•prem" Court. Rut there is nothing new in that. J efferson, Jacksol'!, Lincoln and Grant, togethP.r with the Congresses {;.f their respect.. ive periods! saw no objection to enla1·ging the court. Again, it is loosely charged that the present proposal b a bold attempt to "pack" the court. Nothing could be farther from truth. Every increase in thc men'lbershi9 of a court is open to that charge, imj indeed every replacement is subject to the same obj-'!t'.:tion. Under the> President'e: proposal, if there is any increase in the totnl number of judges, it will be due entirely to the fart that 0 judges HOW of retirement age e!c<'t to remain on the bench. It those judges think it would be harmful to the court to increase it.~ membership, they can avoid thi.!t result by retiring upon full p!ly. The Constitution imposes upon all Presidents the duty of ap1iointing Federal judges, by and with the advice and consent of 1he Senate. Upon what ground, m<>.y I ask, do foe opponents of the President justify the claim that he shall not ~erfo1m the duty that all other Presidents have performed. George Washinr;k.n appoir:ted twelve memhE:rs of the Supreme Court. Jackson appointed five. Lincoln appointed five. Grant appointed four. Harrison a1lpointed fonr. Taft appointed five a.nd devated still anoth(.!r to he Chief Justice. Harding appointed four and Hoover appointed three. President Roosevelt has nnpointed n')ne at all. Out of every attack of hysteria on this question there comes a further charge that the President's proposals will lea.d to dictalorship, through the establishment of an evil precedent. Rut there ha\'e been far more significant precedents than this. J efferson ignored a subpoena issued by Chief Justice Marshall. Jackson, in a stubborn moment, told the Supreme Court to try and enforce its own decrees. Lincoln totally disrega1·ded Chief Justice Taney't dPmand that the 1.lrivilege of the writ of habeas corpus he restored. No one vi these PreRidents waf! a dictator, but each illustrated how powerlei::s the courts are unless the purity of their motives and the justice of their decisions win them the popular support. Indeed, the Supreme Court in its opinions has specifically l't'COgniz~<l this fact. Let us have done with irresponsible talk abcut dictatorship. Let us turn our minds to realities. We hear much a.bout the perils that beset democracy. If we are to defend successfully our institutions against :\li comers from the right and from the JP.ft we must make democracy work. Those who were violently opposing the President's re-comn1en<!ations insist that the reform!! he seeks to brhg about should be acc..,mplished by amending the Constitution and by that met.hod alone. This is the strategy of delay ar.d the last t~sort f'f those who desire to prevent any action whatever. Thirteen State Legislatures can p1·event the adoption of any constitutional amendment. The Child Labor amendment, submitted thirteen years ago, has not yP.t been ratified. Furthermore, if 'any amendment were sc-cured, it would still ha,.·e to run the gauntlet of judicial interpr~tation. <Continued on page 378) August 81, 1954 THE LAWYERS JOURNAL 377 THE SUPREME COURT . These are the words of the President's Party's Platform. This was his platform as recently as November 8, 1936. I ~ta1:d on this Platform, and I have the right to ask that my Pz.rty shall stand on this Platform. It is the Plat:form on which foe President was a candidate, and on which he was standing in thl: campaign. It was accepted i:iy the American people. It was good November 3, 1936. It is go11d at this moment:. Not one word was said for the pres~11t proposition bcfor.J the election. Had we offered a l'latfonn in wl1ich we promised to recC1n:::ttuct the Sup.. reme Court and M: reconstruct it a.:> to chaHge the historic interpretatic>n of the Constitution, the ca...>npaign would have been fought out on that question. And yet, if . this measure is tu be considered, th~t is what we should have done. This at least would have given the people a chance to expre3S' their will in the matter. And it is a matter in which they have right to express their will. If change in the meaning of the Constitution is desired, the way to bring that cha.nge about is to amend the Constitutioii, not the Court. That is what the Platform rays. If a ''modern" Constitution is desired, we can have it only one way - that is in the way we got the old Constitution, by the> will of the ~eople. It is their instrument. They made )!::, and only they may chang•· it. We cannot alter the Ten Comma.-ndments by intei-prctation. 'I'ht: meaning they had the day they were given upon Sinai, that meaning they have had these five thousand years and will have until the end of time. We cannot change the meamng of the Magn<!. Charta by interpretation; we cannot change the meaning ,,f our Bill of Rights by interpretation. May they abide forever! We can chang~ the language of the Constitution in the way provided, but we cannot ordain an interpretation of the language as it stands to suit ourselves, nor may we contrive a tribunal for such n purpose. One may attach to tlmt language a different meaning from that: which the Court has given it, but ·he cannot reconstruct a Cuurt of Justice to bring about tha.t mt:aning. To do so would put an end to the signific~nce of the Constitution as the instrument of t'he Government's existence and stability, as the supreme law of the land and the charter of the people's rights. For if one Congress may add six members to fhe Court in orrter to validate its acts, another Congress ma.y E.dd ten more mt!mben: to validate its act's, This would be to destrcy the Court and the Constitution. And it would be better not to pretend to hav~ t:ither, but frankly confess that our Gon:rnment has become a Government of men, no!! of laws. Let me give you an illustration, Many of you have hll.(f law suits or served on juries. What sort of justice would we h!ive if a litigant could increase the jury to suit his purposl's, putting jurors thereon to do his will? What sort of jury would that be, if upon finding that it was divijed, one might adtl to it six men to suit his purpose? Juries find the facts; Courts, i.<:., Judges, find the law. It is just as import'ant that the law be int-:rprete:l by an impartial Court .as that the facts be found by an impal'tial jury. There is a process of Justice, and it is nc..'i- political. ll lcoks to the will of the Jaw, net t.11e will of men or any :nal'. A stacked jury, a stacked Cq_urt, and a stacked <leek ot cards are in the same moral category - one has no mv1c confidence ir. one than in another of them. - Set the prered~nt for a good purpose, and it will be nwokc<I for a thousand bad purposes. We cannot: put Congress 01· President above the Constitution. Like th.a Flag, it is over all. George Washington was our greatest man. He kept himself under the Cor.stitution. But if he had not been willing to do so, the people would have 1ffoken down th'2' Republic rather than put him above it'. They loved him, they trusted him, he had served thein as no mortal has ever served his fello" men; but his generation knew, as this generation knows, that no man, no Congress, is great enough or wise enough or good enough to be entrustl!d with unbridled power. No man should ask in our land, even with the highesC m'Jt,ives and the best objectives, to be given leave so to reconstruct the Supreme Cou1·t a.;; to give him power. to determine the meaning of the Constitution. That would put him over it, not under it. There would be at once an end of Constitutional· government, and the question with reforer:ce to legislation or any executive act would not be, is it within the powers granted by t'he peonle in the Constitution? - but only, is it within the purpose of a President or Congress which have taken over the power to mould the Constitution to their will? Under such conditions where would be that which we now know as tbe Judicial Power - in the Temple cf Justice, wi1ere the people hiwe placed it, or in the will of the ·President and the Congress? Under 1mch conditions what sort of Rc!Jublic would this Republic be? Very plainly mo1·e is now involved then has been involved in our entil·e history. Court' and Constitution are at stake. We c'1n11ut properly measure their ve.Juc;. Rut I must offer, a~ I con· ch1de, a further word to that cn,1. The Supreme Court of the United States is not the crcatuu of Congress. It is not the creature of a mo'.;!lcnt. It is their institution. It is not the creature of a moment. It. has been in continuous existence nearly 150 years. We see it today embojil'd in nine learned and venerable men, but the Court consists of nll who have miniskred in it's Temple, the dead as w.:11 as the living. Its voice is the voi~e of Past imcl Prl<sent. Ih: fur.ction is Th1tr. and Righteousness, the ancient word for Justice. I'. does r.ot rule. It merely affirms the will of th<! people in the inst.rument wN::h they uttered to preserve their rights over against all power:> ~of th~ government. It does not veto acts of the Congress: It deckrf\s only when those acts transgress the limits set upon the ·powers of the Congress by the people in their Constituticm. 'J'his !Ind no more. It does not pass on the wisdom of legislation. It does not determine economic questions. It has· n~ ea.rthly power. Congress has the purse, the President is Commander-in-Chief of t'he Army and Navy, and the Executive of the> Republic. The Supreme Court has neither puree ncor $word. It cannot even defend itself against criticism. Its dE:crees prevail only by reason of the spiritual appeal of Jushce in the human heart. Beautiful to behold is the fact that now for 150 years without other aid, such has been the capacity of the American people for Justice, such their native feeling for its proccsf!:cs, that in all seasons and evl'nts, in war and peace, in poverty und proi:perity, in the day of small things a.nd t.1ie day of great things, whether agreeing or disugreeing, they have exalted this Court; they havP kept it above politics; they have protected it against all who would tl'ar it down; they have upheld i\: age.inst all wito would bring it low; they have accepted its deciswns as the ultimate ciE:i:2:-mination C'f contrnversie8, civil or criminal, in high or low e6tate, in life and in death. On the other hand, it has never failed t'1em. It ha8 stood betwE:en them and all who would imp~ir their rights. It has succored rich and poor with equal hand. It has vindicated freedom of speech and of the press. The:: humbl1:1 ex~slave has fou'!ld refuge in its precincts against the power of mighty States ; and St'.ltes have found by means of it their rightful place in the l;nion the fathers brought foith. It }\as guarc~ed the rights of the people, it has preserved the rights of the St&tes, it has maintained the i·ights anci the powers of the Union - and an without purse, REASONS FOR THE PRESIDENT'S .. <Continued frr>m page 377> The more thoroughly the President's plan is debated the more clearly will its merits appea1·. It meets legitimatl: need. Tt is reasonable, it is moderate, it is direct, it is ccnstituthmal. It works cut our problems within the framework of our iustoric institu. tions and it guides us to a clear path away from our i;resent difficulties. The envious and the malicious m~y challenge the integrity of the President and the purity of his motives, )>Ut the only apt)etasy of which he could be guilty would be to break faith with thl' people who trust him to carry on. 378 THE LA WYERS JOURNAL August SI, 1954 DEBATE ON SENATE BILL NO. 170 AMENDING OR REPEALING CERTAIN SECTIONS OF THE JUDICIARY ACT OF 1948 May 5, 1954 - 11:00 A.M. SENATOn PRIJl.'IICIAS. Mr. President, I now ask for immt>diate consideratfon of Senate Dill No. 170, the amendment-s to t.hc Judiciary Act. PRESIDENT. Consideration of Senate Bill No. 170 is in 01·der. SENATOR PRIMICIAS. The sponsor of the measure, Mr. President, is the distinguished Chairman of the Cvmmittee of Justite, the gi<ntleman from Batangas, Si:;nator Laurel. I Mk that he bf' recognized. PRESIDF.NT. The gentleman from Batangas has the floor. SENATOR LAUREL. Mr. President and gen!kmen of the Senate: Senate Bill No. 170 which is now the bill submitted for the ccnsiderat:ion of this Honorable Body, Is the 1·esult of what might be considered a compilation of the different measures submitted to the Committee on Justice, and to a Yery great extent, incurporatcs ~ea­ tures taken from the reorganizaifon bill submitted by Senat.:ir M:abanag as well as the recommendations made by th~ Department or Justice and likewise the recommendations at one time made by As.. sociate Justice Ramon Diokno, now deceased. Sen&te Bill No, 170 is not a complete reorganization t1f the judiciary, but in the opin'.on d the Committee on Justice incor110rates what might be called-the principal features which need to be incorporated in a legislative measure in order to improve the present organization of the judiciary as well as certain reaturei; of fundamental character which must be inserted in the 1:1ew reorganization measure. I atr. goinir to refer to the principal features which we have incorporated in this bill. The first' has reference, Mr. President, to the increase of the salaries or thP, Chief Justice and Associate Justices of the Surreme Court and the Chief or the Presiding Justlct. and Associate. Justices of the Comt cf Appeals and ~lso the judges of the cou~ts of first instance. '.J'his feature of the bill is not a new one because, as the m..:mbcrs of this body will reeall, last yea1· we approved the Senate bill concurred in by the HousP of Representatives providing for the increase of the salaries of the Justices of the Supreme Court and the Justices of t,,e Court of A ppee.ls and the judg(!s of the courts of first inste.!'.ce, That bill, however, was THE SUPREME COURT .. . without patronage, without propaganda, without force; but not with.out Power - not without: th~ power in it .'lnd in ourselves which makes for Righteousness, Our forefathers hrought it forth, our fathers have preserved it for us; snd we now will m:i.intain it for ourselves, our ehildren and our children's children. And what is this ·Constitution of t:he United States? It is the cht?.rter of the national existence and stability; and ii. is more. It is the charter of the powers given to the Republic, of the powers reserved to the States, of the inali~nable rights in th<' people. h' is their instrument. They made it.. They maJf' i~ not just to c~nstitute a government, but also to preserYe their rights - the bl{:ssings of liberty to ourselves and our po~terity. They know i'hat any sufficient government would become Etronger than any one of themselves. They crc>etcd 3 government, nnd gave it power - so much and no more - and they 81\Serted rights in States wJ•ich they could control, rights in themselves singly aud a.s a whole which none could violate. They set up a Court to deelare the m<'!tes and bounds 0£ i..'hu powers they were vesting. and made it independent, to define, to d('(:lare, and to sffirm thl.' powers they were holding to themselves, or to their States, The Constitution is no device th block the Jlet~ple's progress. IL is the device of the people to preserve themselves, their St3te11, their local self government, their in:i.lienable rignts, their homes, and \..'he future of their children. The people made it and only they can changti it - and only in the way they providerl. Let \'etoed by the chief exeeutive then on the gi.ound that the bill w:i.s unconsl'itutional because t.he hill treated of various matt~rs and these matters are not mentioned or referred to in the title ~f the bill. So that the veto by the former chief executivf' \Vas based more vn a technical grotmri than on anylhiug else :md it seems tha.t even the former exeeutive was not opposed to the aug. mentation or increases of the salaries of the Justices of the Supreme Court and of the Justices of l'he Court of Appeals :md the judges of the court.!. of first instance. lt is hopc1l that we have eliminated even the technical objection of the former chief executive, and that is the re-:ison why the increase is heing i·eiterated in this measure which is practically a rep1·oduction of the 'oill which was vetoed by the former chief executive. That is one feature, and It is not necessary for me to argue in ravor of the increase because this Honorable Dody having already ap;iroved the increase in last: year's session, I suppose, unless conditions have changed or opinions hnve changed, this Body will likewise approve what it had approved last year. The second feature oi this reorganization bill is the abolition of judges at large and cadastral j udges. The reas,m for th~ abolition is, first/to make the organization of courts vf general juriSdici'ion which are the courts of first instance mi:.re simple. In othl!r worris there will only be one kiT!d of judges of courts of fir~t instance and thP.se judges are the district judges of courts of first in~tance. While probably in the past there might have been a ne<Xl for the appointment.' of cedastral judges and, perhaps, judge!l at large, or even at one time, auxiliary judges it seems that conditions have changed now, and even the cadastral judges do not <levote their time exlusively· to the hearing and tl'ial of cada!li'ra.i cases. With th:? conditions having changed and in view of the fact that nil these different judges, whether C:istrict judges, judges at: large, or cadastral judges, all belong to the sa.me category, namely, they are judges of courts of fir!lt instance, it would be more · simple in the plan of judicial re.organization to make all these judges district judge!l. So that in orcier to implement this provision which is intended to simplify our judicial organizai'i<'H, we provide for the a.bso-rption of the judgea at large and the cadastral judges by considei:ing them as judges or the district to be distrib'.lted and c.thers denounce it; let others criticii-c it; the people will preserYe it as the charter of their libertiei::, their right's, their votes, their democracy, their place in the life of their Republic. It £tands between them and the possibility of a dictator. ThC!y require eYery public officer to take solemn oath to maintain .:lnd support it,, They give fto man power save upon this oath. Sometimes we forget; sometimes impatience ove1·ccme!I our bet.. ter judgment. But at last we remember. Down in our hearts •.ve know that so long as the Constitution stands, the Republic wW stnnd; so long as the Constitution stands, our rights are secure cur homes are our own and none may make us :1fraid. It restri.ins the over-reaching hand of power. It stop;; the army on the Chreshold of the cabin. It aSS-Orts the dignity ol man, his pli.ce in the earth and the freedom of his soul. Congress is mighty, but the Constitution is mightier. Presidents are powerful, but the Constitution is more powerful. Courts nr~ grea\:, but the Constitution i!l greater. Laws are str~ng, but the Constitution is stronger. And it is so because the Constitution is the expressed will of all of the p.?ople, the supreme law of the land, to he nltered only by· themselves, and therefore the living soul of demOCl·acy. The Court and the Constitution: - They st.-ind to fall to~ gether. The Constitution creates the Court', and the Court de. clares and maintains the Constitution, To weaken one is to weakrn the other. Tc. destroy one is to destroy the ot.'her. Tc weakrin either is to wc:>.ken the foundations of our° Republic; to destroy either is to destroy the Republic. August 31, 1954 THE LAWYERS JOURNAL 379 / assigned to the different judicbl dislricts which -we have increased, as another feature of the ·reorganization, from !:ixteen judicial districts to thirty-three judicial districts. This is ::t logical prop'.>sal, hecause having' provided for the abolition of cadas,, t:ral judges and judges at Jarg<! and converting them intc district judges, we have to assign them to thf' different judicial dislri,cts and the assignment would be made by the Secrdary of Justice with the approval of the Supreme Court. Another feature of i'his judicial reorganization i~ the increase of judicial districts from 16 to 33 as I have indicated. It has been suggested that we increase the number of judges of first inst'ance. We are not increasing the number of judges of first instance. We h;.i.ve the same number of judges, around 107 or thereabouts. First, in thlo' inte1·est of economy; because after a careful study and after presenting the tabulaVed statemeut which is made a part vf the e>.planatory note to Senate Bi!l 170, your Committtee has 1·eached the conclusion that with the proper ~pportionment and assignment of all t!he judges of districts these 107 or thereabouts number of judges if properly assigned and made to work in tht: diffcrenl districts, would do away with the nt:cP.~sity of increasing th~ number of judges of first instance. That is the reason, Mr. President und Gentlemen of the Senate, why in one of the sectfons here we have increased the number of judges for the different judicial districts, and tha.t is also the reason why we have inci:e=i.sed ~e judicial distri:::ts from lG to 33.,. Now, Mr. President, there is t'.not.'her feature in this reorganizxtion bill which I have f<wgotten to state. Under this bill, we ar~ curtailirg the powers of . the Secretary of J ustice in the transfer or assignment of judgl:S not c·nly from one district to another, but also from one province t.b tinother province within the district. Formerly there was a compla.int - and, I think, well taken - that as the judges-at-large nnd t.'he cadastral judges have no judicial districts, and as the Judiciary Act of 1948 permitted the transfer or assignment of these judges who have no districts, from one district to ~nother, without the intervent.fon of the Supreme Court, we have had quite a number of cases; but there was what we call handpicking of judges to try special cases or cases political in character perhaps; thaf from the point of view of the administration, would bdter be hied by these judges-at-large or cadastral judges specifil'a.lly transferred from one province to nnother for the specific purpose. Now, with the abolition of l'he judges-at·large o:inO the cadastral judges and with each judge of the Court of First Instance h.!tving his own district, then the technical ground thnt these judges l·efore ha•·c no districts, the judges-at-large and the cadastral judges, could no longer be invoked because all the judges arf:: district judges and therefore fall within the prohibition of the Constitution tliat no judge of a regular district shall be transferred from one district: to another without the approval of the Supreme Court. We have gone further than th'lt, and although this prob'.l.bly is tiot the time to complain against th~ policy of the present admi· nistration, we have gone further in t.'he prohibition with rdercnce t~ the trnnsfor of judges. from one district to another, Mr. P~es­ ident, but as I have indiceted, we prohibit in this bill the tra.ns1 fer of judges from one province to anoi'her province within the district without the approval of th~ Supreme Cou:·t. x x x Now, unless the Senate is i·eady to consider amendments, pHsonally, I would prefer that we postpone the consideration of this mf'asurP unt'il tomorrow, to give way to the SHies of amendments that it seems the members of this Body would like to propose. MOCION DE APLAZAMIENTO SENATOR PRIMICIAS. Mr. President, in vif::w cf the bet thRt some members ha.ve amendments to make to this bill, I ask that furthe1· consideration of the same be pc.stponed untH f-.omor1·ow to enable said member!! to o::ubmit their amendments in propn form. THE PRESlDENT. Is there :my objection on the part of the Senate to posCpone fui:ther consideration of this 1-ill until tomorrow, in ordP-r that everybody could subnlit his respective amrndments? CSile11ceJ The Chair hears none. The m"tion is approved. CONSIDERACION DEL SENATE BILL NO. 170 ICONTINUACION) May 13, 1954 -11:25 A.M. SEN ATOR PRIMICIAS. Mr. President, I mo\·e for the resumption of the consideration of Senate Bill No. 170, the Judiciary Bill. Tlie distinguished gclltleman from Batangas, Senator Laurel, was the sponsu~ of the measure. EL SEN, LAUREL CONTINUA SU PONC:NCIA THE PRESIDENT. The gentleman from Batangas has the floor. SENATOR LAUREL. Mr. President, I have very little tc. add to the explanation that I offered in sponsodng Senntc Bill No. 170 providing for an amendment and revision of certain sections of the Judiciary Act of 1!148. As I stated before, several mea· sures were presented in connection with the Judiciary Act of 1948 .:md I understand that a few days ago the lowe1· House just approved a measun on the same subject, although not exactl'Y identical as to certain points with reference to the reorganization of thC' Judiciary Act of 1948. It is not necessary for me, Mr. President, to repeat what I have stated before regarding the importance of the judiciary particularly with reference to the maintenance of the faith and confidence of 11ur people in the administration of justice. It is sufficient for me to state that faith in the &dininistration ~f ju:;;tice is only po!lsible if the judicial deJ>artrnent is manned by men who arc competent, willing to wotk and actually work. We also have in the Committee on Justice !levcral measures the most importa.nt of which probably is the one presented by the distinguished gentleman from La Union from which bill we culler! or tc,ok certuin important features in order not to do awa;y with but merely to postpqne the consideration of matters which involve details with refcren.ce to the proposed Hmendment to the Judiciary Act of 1948. The former Justice of the Supreme Court., now <ieceased Don Ramon Diokno, has nlrn suggested certain amendments, n'.nd as I said, just a day c..r so ago, the House ot Reµr.,)sentatives likewise presented amendments to the judiciary act. But, Mr. Prc:>sident, as the members of this body . well know, your Committee on Justice had centered the amendments around, I think, four important points, the first referring to the increase of compensation of the members of the judiciary from t he Supreme Court to judges of the courts of first instance, increa3ing the salary of the chief justice from P16,000 to 1'21,000 per annum and the associate justices from P15,000 to 1"20,000 per annum, nnd the Presiding Justice of the Court of Appeals from Pl3,000 tt> !'16.00() per annum and the associate members from P12.000 to P'15,000 per anuum, and 1'1so the salary of judges of the courts of first instance from Pl0,000 to !'12,000 p~r annum. That is the first point touched upon in this bill, namely, foe increase of the salaries of the chief and associate justices of the Supreme Court and th!! presiding justice and the associate justices ?f the Court of Appeals and the judges of the courts of first instance. The second feature which is in;portant to mention in this connection has fa do with tfie redistricting of judicial districts by increasing' the number of. judges in the different Judicial districts without, however increasing the number of the judgc:>s of the courts of first in~ta..nce. And the original hill which your humble sr.rvant sponsored the other day m C<l..iperation with the Deµartment of Just.ice, incorporated in the explanatory note a tabulated stat~­ ment based on the number ?f cases pending in the different courts of first instance of the districts not disposed of, believing that for the purpose of dc:>termining the number of judges of the courts of first instance for the different judicial districts, it would perhaps be a good idea tp send more judges to those districts where there are more pending cases undisposed of. Ho"'.ever, IJS th.:: members of this body will recall, at the suggestion of the distinguisl1ed gentleman from Quezon, another basis of classification or distribution was made. This time the basis is the number of docketed cases in the differ~nt courts of first instance; and, Mr. President, that is now the basis of the apportionment and assignment 'of the dif380 THE LA WYERS JOU.RNAL August 31, 1954 ferent judicial districts which al'e now, as I understand and if I ter now which has reference to the prohibition of the t?"ansfer remember correctly because I don't have the bill in my hand, S3 or as:;ignm'=nt ol judges from nne .:listrict to another under the ciistricts, so that while the districts under this mt:isure have bee1i Constitution. And I was going to say, Mr. President, under the increa11ed, as I think, from sixteen or thereabouts to thirty-three, Constitution no transfer or assignment can be made of a regular the number of judges in all the different districtd by and large judge of a district from his di:;;trict to another judicial district remains the same because not all districts have been increased without the approval of the Supreme Court. Thnt was the law, on the basis suggested by the distinguished gentleman from Que- thJ.t is still the law. But as we had experienced before !.here were zon. That is, we have increased not only the judges but by and j}'dgcs in districts, that is to say, cadastral judges and judges-at... Jorge as I have indicated, the number of judges as~igned to thej:uge, who haYe no districts nnd therefore the Secretary of Jusdiffercnt districts without increasing the actual number of judges ;ylc may take advantage of this point in the Constitution in cerof the courts of first instance which, I understand and if I rt.mem;;,r~~in cnses by transferring cadastral judges and judges-at.large ber corre<:tly, is around 107. That is the actual number of judges frnm the places they were assign~d to for the purpose of trying speci. of first instance including of course the cadastral judges and judq-ea- fie cases in other districts where the powers-that-be are interested at-large and the j uJges of fir&t instance occupying pcrmam.nt nnd in securing effeetive action, whether of conviction or acquittal, in regular appointments in the different d_ istricts. This is the second criminal cases. And that is the reason, Mr. Senator why as one fe~ture of this bill. of the features of this bill we are abolishing cadastr~I judges and The third feature is the general end a.lmost complete prohibition regarding the transfer or assignment of judges from one '.listrict to unother without the approval of the Supr~me Court. Mr. Pi·esident, I desire to invit<? attention to the fact that undr.r the Constitution judges of first instance of regular district cnnnot be tt·nnsfcrrcd l'r assigned from me district to another without the l:.pproval of the Supreme Comt. But even under the provision of / ~he Constitution prohibiting ::;uch i;,ssignment and tranSf<>r there wt!re cadsstral judges and judges-at-large who naturally have no ,....dist.rids and, therefore whose assignment and transfer could bl'! dfectunted ftom one district to nnother apparently withot:t vi.l)\ating the Constitution, giving rise to what we have complained against in the past, namely, the practice of handpicking judge~ for the purpose of trying specific cases In which influential officials might be interested for the purpose of insuring certain definite results in connection 'vith the trial of such cases. SENATOR ZULUETA. Mr. Pr<>sident. will the gentleman yield? THE PRESIDENT. ThP gentleman may yield if he wishes. SgNATOR LAUHEL. I will be ve!'y happy to yield to the distinguished gentleman from Jloilo. SENATOR ZULUETA. I want to know from the gentleman from Batangas whether when we approved the Co:.1stitution there were already carlastral judges? SENATOR LAUREL. Mr. President, this idea of the class.. ification of judges of first instance, if the gentleman will allow me tn take a little more time, ii; not new. You will ren1ember we have auxiliary judges before. We do not have them now. We call them judges-at.large, we c:i.11 them cadastral judges. These cadastra.l judges i>xisted even before the Constitution because one of the prcpondMant policies of the American administration then was to give emphasis to the Jii;position of land cases givini riae to what we call cadastral survey in the different provinces and municipalities and, thei'efore, the necessity of cree.ting thi11 special position which is known as cadastral judges, as part and parcel of what we nad established as our judicial system. Is that clear to . the Sena.tor? SENATOR ZULUETA. I still doubt if it was the real intention of our Constitutional Convention to approve a law protecting the immov?.bility of judges by giving the Supreme Court the authority to transfer judges from on,. district to t:.nothcr. Di·n't you believe, Mr. Senator, that we are not prol2Cting ci>da!:ltrnl judges by transfering them from one place to anc.ther? Jf that is the case, Mr. Senator, why are we not proposing to make ca. dastral judges .also district judges? SENATOR LAUREL. That is ihe foutth point I will take up. I am just enumerating fc1· thtt information cf thia Honore.hie !ifod[hi~hem::~~!. chai"g~sen~·hic!:i wt~1~r~n!~::~:u~~izc0b~p!~:a~i~~a!; judges, then I mentioned t~rcdistricting and the increase of judicial distric~s anci the dishict judges without increasing the number of judges of first instance 11nd then I am referring to this matjudges..at..large. We are establishing just district judges, but that is n point that I propose to take up later, perhaps the last point, in my explanation of the impcrtunce and the capital point of the bill th:it is now submitted to this Honorable Body for consideration. SENATOR ZULUETA. Then Mr. Senator, for your Honor nnd for everybody, is it not a good 1101icy to maintain the immovability of judges, whether they arc regular or cadastrnl judges? AcC'ording to Your Honor, !n this bill, you are creating cadnstTal judges too. SENATOR LAUREL. Only, so that all of them will come Under the p1·ohibition of the Constit.ution that none of them can be transferred from one district to another judicial district without the appmvat of the Supreme Court. SENATOR ZULUETA. I thank you for the assurance. SENATOR LAUREL. We are following the pattern Of the law in th~ protection of the immovability of the regular judges by creating district cadastral judges. That is one of the results. Iii addition thP Secreta.ry of Justice can no lon6'!T mobilize an}'· E:l)-called cadastrai judges and judges-&t...large for the purpose of tr}·ing spC'cific cases in other parts of the archipelago. SENATOR ZULUETA. nut how about the cadastrnl judge~! SENATOR LAUREL. The district. cadastra.1 judges will tn• those cases and the jurisdiction will, of course, fatl under the corresponding judges of the district. In a given district the1·e may be many judges, for instance, in the district of Cebu, Cavite, Rizal and Palawan we may have three or four judges. So, at the ba.sis of these nun1ber of cases that al'iSe from year to yea1, there will be district judges assigned to th<.! different districts. In that district you will find judges ready to take care of those cr1~e'I without opening the way for the Secretary of Justice to pick judges to try those cases. SENATflR ZULUETA. That means, Mr. Senator, that we arc r.liminating the judges.at-large. SENATOR LAUREL. We want a.s far ae possible to eliminate judges..at·large, tSENATOR ZULUETA. " rhat is only what I want to know. ~ SENATOR LAUREL. (Continuing.) Mr. President, the hand-Picking vf ju~gcs is a bad practice, it is not conducive to the proper administration of justice, and if it is conducive at all to anything it is ct1nducive to the absolute loss of confidence of the people in' the administration of jm;tice, and if we are fair to ourselves and just to ourselves, the remedy is in our hands then - we should clvse the door to anything thdt would give to tile Secretary of Justice or even to ourse\ve11 the power to handpick a judge for the purpose of trying our political enemies, for all we know, bf-cause that is not justice. The administration of justice must take its ordinary course because justice has been pictured as p, beautiful lady who is supposed to be blind, who is supposed to k.11ow 'the merits and demerits of the case, btlt is not supposed to see the parties. It is supposed to do justice and decide chses on August 31, 1954 THE LAWYERS JOURNAL d81 the basis of their own merits. If I am correct, Mr. President, in inserting in our law a provision which would make the hand1iicking of judges impossible, then the fourth fea.tme wh:ch I have mentioned, I think, is essential to the improvement of the administration of justice and therefore should be approved in thut respect. Now, Mr. President, this is quite important, - the fourth featun• is quite important and I want to confess, Mr. President, that having been at one time a humble mPmber of the judicia1·y and now a member of the legal profession, I ha,1 e had my own difficulties in trying to remedy a 3ituatiun in order nol to be accused ~f having served as a political iustrumcnt for the purpose of asking certain people in the judiciary, p11rticularly because it is of the essence of a good judicial system that the judges should remain in office during good behavior 01· fot· life, and then one of the conditions for tl1e stability of judicial institutions is the p-:!rmancnt office or stability of judicial positions, and that is why they call this the security of tenure. Not only the judges must be secure in their position, but they must be secure in their. compensation. Not only must .they· be secure in their position lln.:l compensation but they ml1st be secure in their official station, and that is the reason why it is more difficult and more so under this bill to transfer a. judge of First Instance frum one district to another, making all judges con1e under the prohibition of the Constitution t.hat these judges can only be transferred from one district to another With the approval of the Suprcmt': Court. And not only is the security of tenure and security of compensation and security of official compensation, as for as it is practicable to do so, imporbmt, but there are other guarantees and general principles intended t:-0 surround the members of the judiciary who have lost essential security and guarantee tha.t would make the judiciary an independent, courageous and fearless instrumentality of the g"Overnment in order to promote the welfare and establish permanent.. ly the faith of our people in the just and equal administration of la.w in our beloved country. Mr. President, the reason why I have prepared the draft which is the four important innovations in the law is the following: As I look back to the fact and study the historical development of the administra\.'ion of jtl'stice in our counh'y since the inauguration of the Philippine Commission which enacted the original Act 136, generally known as the First Organic Law in the Philippines affecting the establishment of the judiciary, and as I watched the dcvelopml:!nt of the law in its progress and in its growth up to the time we reached the period when we were permitted to draft our own Constitution, I notice that in establishing courts of general jurisdiction, which are the Courts of First Instance, after the classification and gradation of the differE:nt kinds of courts established in our country, while I realize that in those days probably it W'lS conceivable to disintegrate and provide for the different classifica· tions with reference fu the Court of First Instance, I must be frank, Mr. President, to confess that now in this state, considering the fact that we are now in the position to establish a judicial system which is responsive to our needs and it is t.'he result of our own experience as a free people in this country that when we establish a court of general jurisdiction, such as the Court of First Instance, we should not establish any classificatfon or any gradation. The Court of First Instance and a judge of the Court of First Instance must be a judge of the Court of First Instance with the same compensation, with the same dignity and honor, wii'h the same category. And there will no longer be established in this country a system where a cadastral judge recei\•es PS,400 a. year and a judge· at-large receives f'9,000 and a judge of the district receives Pl0,000. If they are judges of First Instance, then they should be treat'ed the same way because they are judges of the same jurisdiction. You cannot classify the capacity of people in the judiciary by simply calling them judge-at-large or cadastral judges. In point of fact if I may be allowed to say so, I know even of cerl!ain judges-at· large and cadastral judges who are better than certain district judges. If I am correct in that statement, then why do we classify the same group of judges? Why? - after making this classification, the Supreme Court, \.'he Court of Appeals, the judges of First Instance - we make another classification of cadastral judges, auxiliary judges and judges-at-large. And now we come to the municipal judge or justice of the peace court. Therefore, Mr. President, rationally and scientifically speaking, from the science of law and legislation, I believe that there should be only one classifical'ion and one nomenclature for judges of First Instance with the i;ame degree, with the same category, with the same rank, with the same' honor and with the same privileges and the same compensation, and t.'hat is the Court of First Instance. That is my first plea for abolishing the judges-at-large and the auxiliary judges. In my second reason, Mr. President, I have almost hesitated. When we approved the Constitution in the Constitutional Convention, some of whose members are now members of this honornble body, when we approved that prohibition with l'Cference to assignment and transfer of judges from one district to another, we never thought that some people would make use of the technical met.hod of excluding the judges-at-large and the cadastral judges, so that while the powers were prohibited from transferring a judge of a judicial dis· trict from one district to another, they could do what they want:ed with reference to the judges-at-lari,-e and the cadastral judges. And ' in order to be consistent and rationalize the philosophy which we have adopt:ed through this measure, we will not give any effect, not even for our partymen in this goven1ment, to transfer these cadastral and auxiliary judges for purposes purely political. If I were to be a partymen, if i wel'e to get up on this occasion as purely a partymen, why should I deprive the Secretary of Justice who is a Nacionalista of certain powers? Someday we mighC have to do what other people did in the past. Someday we might need to make use of oppression in order to win an election. But, Mr. President, I got up to speak to you all, gentlemen of the Senate, not as a Nacionalista, because I wane to establish a system here that would work honestly, efficiently and well and a credit to our people, a system of judicial organization that would serve the great and paramount purpose not of my party whose interest undoubtedly is secondary, but to promote and enhance and prot.'ect and c.onserve their faith in the integrity and the impartiality of the administration of justice in the Philippines. That is the second reason. And fo1· this and more, I can keep on explaining the great purpose. That: is why I had to apologize, Mr. P1·esident, to Senator Mabanag when I just picked up certain features which if we could only approve, these features alone, without attending to details, then we shall be happy and in my opinion we shall have succeeded in having grasped the fundament'al principles which are basic, which are essential and which are "ital if we were to have a system of administration of justice which is to last, to last not for any given party, hut a system that will secure and guarantee the int.'erest of all litigants, of all lawyers anJ of all the people at large. This is among the reasons, Mr. President, why almost in the last paragraph of the provision I proposed the abolition of the position of judges at largf' and cadastral judges. I said that I hm·e to emphasize this point because I shall appear perhaps, we shall all appear before the verdict of history, accused of having impaired and affected the tenure of office, the security of tenure of these people. But I have ¥n,y humble way studied very carefully the constitutional nnd legal problems involved, and I have reached the conclusion that t.'he judges at large and the cadastral judges, as well as the judges of districts of first instance, ar·e legislative courts and not constitutional courts. The Constitul'ion provides, Mr. President, that the judicial power, under Article VIII, Section 1, shall be vested in one Supreme Court and such inferior courts as may be established by law. This, verbatim, or literal, is what the Constitution provides in its Section 1 of Article VIII. In ot.'her words, there is only, insofa1· as the Constitution is concerned, one Constitutional court, and that is the Supreme Court. Insofar, therefore, as the Constitution says, there shall be one Supreme Court. That is final. There cannot be two, there cannot be none. There must be one Supreme Court. How many inferior courts? The Constitution does not say, and wisely enough, Mr. President. I am happy to testify to the meaning of this portion of the Constitution. Happily enough, the Constitution leaves the determination of the inferior courts and the apportionment of their jurisdiction and the like to Congress. This is what I mean wh~n I say that these inferior courts are Jegisla382 THE LAWYERS JOURNAL August Sl, 1954 tive courts, and if they are legislative coUrts, while we should safc:guard against impairing the security of tenure and compen;;ation a~ Jong as the office is there, in o~ur w:ork and in our obligation to give our people a good and efficient overnment and therefore in the exercise of our powers to reor izc this government to serve our people, we can abolish positions which are not Constitutional. And I emphasize this point, Mr. President, because I know that this is a bold step on my part and I shall probably have to appear and defend my attitude, and I might just as well express my views &o that I can refer to them in my public utterance.'!. SENATOR SUMULONG. Mr. President-, may I interrupt the gentleman for a few question? I should like to clarify this point about the effect of this bill on the incumbt!nt judges of the courts of first instance. THE PRESIDENT. The gentleman may yield if he so desires. SENATOR LAUREL. Gladly. SENATOR SlJMULONG. Now, I understand Your ilcnor to say that this bill, if approved, would abolish the positions of judges at large and cadastral judges and that in the opinion of Your Honor that would be within the constitutional powers of Congress because those positions are legislative and not constitutional in character. I can say that I am (;ntirely in accord with the gentleman from Batangas in abolishing the positions or judges at lii.rge to avoid the pernicious practice of allowing the Department of Justice to assign special judges for specific cases. But what is the effect of this bill, if approved, on district judgc:s, will they need new appointments in order to continue as such district judges? SENATOR LAUREL. If they are in one district and they are assigned to another district, I think they will need new appointments because I think, once a judge in one district, he cannot be a judge in any other district without being appointed anew. That has been decided by our Supreme Court and that is still n good law. SENATOR SUM:ULONG. Let us take a concrete example. Suppose somebody is now a district judge, say in Pasig, Court of First Instance of Rizal. If we approve this bill, will that judge there continue to be a district judge in the Court of First Instance of Rizal without need of a new appointment or a new confirmation? SENATOR LAUREL. Suppose you have the same district, because if there is u reorganization of these districts you have to have new appointments-.let us take Rizal. We have not changed the district. This second disti·ict has the same district judges, Are you going to reappoint them when you have not touched them? SENATOR LAUREL. I don't think so. I am respom;ible for that because I thought that in order to elevate to some degree the standa~d of our judges, it might. be a good idea that before one can be appointed judge to the court of first instance, he must have had ten years of law practice or service equivalent to law practice. But, of course, this is a new law. These people are already here on the basis of their previous qualification of five years. I don't think that we can make the law have a retroactive effect by applying it to judges holding their respective positions according to their former qualifications. ·That is my humble opinion. SENATOR SUMULONG. But does Your Honor have any objection if, for purposes of clarity, to remove doubts on the matter, we approve a proviso that those who are now district juciges shall continue to be such judges without the need of any new confirmation or appointment in their respective districts? SENATOR LAUREL. Although it is not necessary in this bill, anything that will make our position certain and anything that will make the expression of our view and ideas effectively clear, I would favor, so that I will welcome any clarification on that point. SENATOR SU.MULONG. Now, turning to this matter of judges at large and cadastral judges whose positions we are going to abolish under this bill, if they are not extended appointments as district judges, will they be entitled to any gratuity under auy law? SENATOR LAUREL. That will depend on whether they have satisried the requirements of the Osmeiia Act or some other law in order that they may be entitled to the beRefits of those Jaws, in point of age or in point of service, for instance. SENATOR SUMULONG. Has the Senator inquired as to how many of these cadastral judA·es and judges at large will be affected adversely and would be left without any resource, retirement pay or gratuity if we approve this bill? SENATOR LAUREL. I have made quite an inquiry, Mr. Senator, and I secured a complete list or the Jlames and the records of services, and I even went further-I asked the Secretary of Justice who amongst them he would like to recommend and how many would he leave out if he wel·e to rkci1.le this case, beeause 1 do not want to makf\ people miserable. They will hate me or blame me. 1'hey will say: "I am jobless because Senator Laurel abolished my position." So I don't want to ha\·e enemies, not even political enemies. I am tired of having enemies. I want to live in peace new with people. And according to him there are very few, probably just around six. SENATOR SUMULONG. So that only six will be without But if your plan is to transfer a judge of the distl'ict of Rizal, let ....!!!Y' · us. say, to Pa~lpa~ga, ·instead or. making him a judge of thl'! dis- - SEN ATOR LAUREL. I am not: nssuring-please do not mistr1ct where Rizal is, you make him a judge o( the district where understand me--1 am not making a positive statement about the Pampanga is, it is my humble opinion that you need a new appoint- number of those who will be kicked out. I don't know. But I ment. want to satisfy my own conscience that I did not do anything SENATOR SUMULONG. In other words, even if we approve this bill, a district judge can continue to be a district judge of the same district, provided his territorial jurisdiction has not been changed by this bill. SENATOR LAUREL. I think so. SENATOR SUMULONG. But I notice, Your Honor - I am looking at the corrected copy, I don't know about the original copy -that we are changing also in this bill the qualifications of t:he judges of the court~ of first instance-instead of five years of \ practice and five years residence in the Philippines, we are making it ten. Now when we change the qualifications of the district judges, does not Your Honor t hink that that might affect the tenure of the incumbent district judges? unjust. But out of thirty-three, more or less around six are on tab. SENATOR SUMULONG. That is exactly the same feeling that I am entertaining, Your Hvuor, that if we are going to abolish tht> positions of tht!Se judgC>s, at least, W<' should consider also what would be the future of those whos(' positions will be abolished. That is why I am asking, as from Your Honor's own words I heard Yuur Honor s'.ly that there me cadastral judges and judges-at-large who arc more competent than the district judges, and following that same thought, I thought that we should inquire what will happen with these judges, especially those who are competent and who are efficient. SENATOR LAUREL. Mr. s~m:.tor, I would also give you an expression of what had occurred in my mind in connection \vith August 31, 1954 THE LA WYERS JOURNAL 383 thlO!se cadastral judges and judges at large if we make them ipso facto district judges under this bill. The first difficulty is this. A name was mentioned who was no good and 011e who ought not to be in the judiciary because his reputation is so bad, and as a cadastral judge, he gets fS,400. Now you make him judge of the court of first instance. You promote him from PS,400 to Pt0,000, and then we promote the judges of the district with another promotion of two thousand pesos. Then you give him an increase of salary of four thousand pei;:os. That is the first observation, and the second observation is I think the obsel'\'ation made by the gentleman from Quezon, Senator Tafiada. He asked Ille how we can automatically conve1t them into district judges because, he said, that needed legislative action. A judge is a judge made only by an appointment of the President and confirmed by the Commission on Appointments, and he suggested that the first thing for me to do even if I became unpopular is to absorb them, make them all judges. Then I could not answer the observation of the distinguished gentleman from Quezon. Here is a judge known to me as a bad one, almost known by everybody, and still you give him a promotion of four thousand pesos. It is not simply right to promote a bad judge. On the other hand, there is that legal and eonstitutior.al aspect raised by Senator Tafiada. How can we convert them into district judges by simply enacting a law without executive appointment? And so I swore to the legality and constitutionality of the legislation abolishing this position. Not that Wt' were discriminatinl?. It is not my purpose, it is not with a Ill.ck of intC'ntion, it is not hatred, political or any character, which caused us to abolish this position. We abolished all these positions because we believe that the interest of our country and the interest of the pe-0ple demand that we take such action on the part or Congress. I am revealing the mental process even when we were discussing this measure with the members of the Committee on Justice. SENATOR SUMULONG. I am complet&.ly in accord with the opinion of Senator Tafiada that if we abolish the positions o.f judges at large and cadastral judges we cannot provide in this bill that a former judge-at-large and former cadastral judge would not be district judges without new appointment because that will be encroaching upon the powers of the Executive and the Commission on Appoinbnents. But I was thinking that if we are going to abolish the positions or judges at large and ca<lastral judges and some of them will not be appoinh•d district judges perhaps it woulcl be fair also to provide some sort of i·rtirement pay for those who will not be reappointed. SENATOR LAUREL. Many of them will be able to take advantage of some benefits. But I did not study thl\t article. They will have to take advantage of any retirement benefits they Rl'C entitled to. SENATOR SUMUI..iONG. Because if they arc not entitled \o retirement under our general laws, they cannot receive any gratuity and they would think there is injustice or malice beii1g committed against them. SENATOR LAUREL. We will take c-.i.re of those cases ir. \-he same manner we provided for the retirement of Justice Moran and some of those people who have left their positions to accept other government positions. I think we will take care of them. SENATOR PERALTA. Mr. President, will thf! gentleman yield to a few questions? THE PRESIDENT. The gentleman from Batangas may yield if he wishes. SENATOR LAUREL. Gladly. SENATOH PERALTA. It is in the role of a humble student of law that I have stood up to ask some questions to the foremost authority on Constitutional Law, SENATOR LAUREL. Thank you, Mr. Senator, I do not deserve it. SENATOR PERALTA. I am somewhat worried until I he'trd the gentleman from Batangas raise the doctrine of the independence of the judiciary. I was wondel'ing whether the gentleman from Batangas stated a fact when he said that only thirty men will ho affected by this bill. While it is only true there were only 33 judges at large and cadastral judges, yet under the same principle that the gentleman enunciated tl1at infe.rior courts may be abolished by the congressional action we are indirectly threatening the tenure o( office of the justices of the court of appeals, judges of the court of first instance and all judges of the peace, and I was wondering whether the gentleman from Batangas does not agree with me that this is an indirect manner of threatening all these members of our judiciary by abolishing now thll offices of judges at large and cadastral judges implying that should certain members of the court of appeals be, by popular acclamation, deemed as what the gentleman from Batangas said "crooks" that we would abolish also the court of appeals. Now, would not the gentleman agree with me that this is an indirect way of threatening the independence of the judiciary? SENATOR LAUREL . . Mr. President, this very same argument was raised some years ago, I think it was 1938, because I happened to be in the supreme bench at the time, when the legialalure enacted Act 4007 providing for the reorganization of the ji.idiciary, and I think that was the second time the legislature reorganized the judiciary after Act 136 of the Philippine Commission which had been in force up to the time of the enactment of Act 4007. And then thereafter, that was the question involved in that case, the Commonwealth enacted Act 145 reorganizing again the judiciary particularly with reference to the district and one of the cases raised in that connection was the case of Sixto de la Costa who was appointed in lieu of Judge Francisco Zandueta as a result of that reorganization because whereas, Mr. President, the fourth district then occupied by Judge Zandueta was the U1·anch corresponding to the district of Manila, when it was reorganized another province was added which was Palawan which became a separate and distinct district and De la Costa was appointed there. There was a quo warranto proceedings on the ground that it impaired the tenure of office and the same argument was made. If you destroy one branch of one court on the theory that it is a legislative court then you ean destroy all legislative courts, then you have nothing left except the Supreme Court. I i·emember, Mr. President, that that same argument was bro\lght up and yet -;here were many things tliat arc inconceivable that we can imagir.e. We can imagine the suppression of the court of appeals, the suppression of the court of first instance, the suppression of the municipal courts and all court~ and there will be no courts at all except the Supreme Court. But you must give some leeway, some allowance to the sense of fairness. The < 1ucstion is one of legal powers. Hence, the legislature has the power to i·eorganize the judiciary, and if it finds it necessary, lo suppress the Court of Appeals. It could be suppressed. We did it at one time to improve the administi·ation of . justice, and we permitted transfer of the appeals directly from the Court of Appeals to the Supreme Court, and there was a time when there was no Court of Appeals at all. Considering our duty to gin our people a system of administration of justice that will give them faith and confidence and hope, if we find it necessary to abolish the judges-at-large and the cadastral judges, could we or could we not? If we could, whether we have the legal power and whether we are justified in taking that action. Why not? As a patriotic Filipino you will share the glory of this body in having done something in exe1·cising the legal power, which you are proud and happy to exercise with the other honorable members of this bodf. SENATOR PERALTA. I remember very well the case of Zandueta versus De la Costa wherein the geritleman from Batangas was an Associate Justice of the Supreme Court and he gave THE LA WYEUS JOURNAL August 31, HI04 a concurring opinion on the result. I remember also that his decision in that case, evading the issue as to whether the Congress or National Assembly then may abolish what the gentleman from Batangas calls legislative court. And I do remember one of the constitutional authorities on the law and on the subject whom 1 revere, my esteemed professor, Dean Since in the College of Law, stating that in his opinion, in order to protect the tenure of office of judges, it is of doubtful constitutionality if the National Assembly or the Congress may abolish such inferior courts because of that constit utional provision uncle!" section 9 of Article VIII of our Constitution guaranteeing the tenure of office of members or the judiciary. I remember also that t.he gentleman from Batangas, then Justice, in his concurring opinion, made the distinction as to when the abolition of a certain court limiting the tenure ".lf office, and when the abolition of courts was a matter of general policy. SEN ATOR LAUREL. Right. SENATOR PERALTA. No~v, in this case do I understand that it is the intention of the gentleman from Batangas that the abolition of courts is a matter of general public policy? SENATOR LAUREL. Yes, in a way. Exactly, tl~ere is nothing, as I said in the beginning. We arc not motivated or prompted by any feeling that is personal, or we are not desirous to promote hatred or animosity through the passage of this law. We simply feel that these judges-at-large and cadastral judges should be suppressed, and all the judges should become judges of the Court of First Instance. SENATOR PERALTA. Here, Mr. President, 1 have listened very carefully and very attentively to the distinguished gentleman from Batangas, and he gave two reasons, to my recollection, as to why he deemed it necessary to abolish the cadastral judges and the judges-at-large. SENATOR PERALTA. Yes. In other words, I plead with the gentleman from Batangas that in addition to those two reasons that he gave, we can amend the law without necessarily abolishing the positions of judges*at-large and cadastral judges, Can we not do so? SENATOR LAUHEL. By keeping the positions you can ex· tend the Constitution to them, of course. but that does not rationalize and harmonize in establishing a uniform system. And then another thing, Mr. Senator, for the purpose of the record. I did not make any reference to any undesirable or any crook or any* thing. I was simply referring in my answer to the gentleman from Hizal that in a case whel'e a judge of the Court of First Jnstance is no good, probably it would be unreasonable to reappoint him. That is a matter that lies in the discretion of the President. But I am not launching any attack against any judge or accusation against anybody. So far as I am concerned. and the members or the Committee and the members of the Senate. including the Senator, that if we approve this bill, we are not prnm11teJ by any feeling of hatred or animosity against any of these judges who will probably be affected. SENATOR PERALTA. I would like, of course, to believe that in all sincerity. The point that I am driving at is, that the gentleman from Batangas do.es not believe in amending the present Judiciary Act, in order to carry out the first two reasons that he gave, that we do not necessarily have to abolish the position of judges-at-large and cadastral judges. SENATOR LAUREL. That is true, Mr. Senator. In that bill which we passed last year and which was vetoed by President Quirino, we included thP. transfer of judges·at-large and cadastral judges, but that would not make our judiciary system uniform because we have to make the classifications of judges of Court of First Instance and the judges-at-large and the cadastral judges which, I think, is not scientific nor advisable. SENATOR LAUREL. The only two reasons that I am able SENATOR PERALTA. Mr. President, I would like to rest:rve to remember. my turn to speak against the bill. SENATOR PERALTA. I shall enumerate them in order that the gentleman from Batangas may correct me, if I am mistaken. The gentleman from Batangas believes that there should only be one classification of courts and judges of First Instance. With that I have no quarrel. The gentleman from Batangas is more experienced than .I and he is in a position to judge what kind of courts we should have in this country. SENATOR LAUREL. Thank you. But it does not mean that I am more brilliant than the gentleman. SENATOR PERALTA. Now, the second reason that he gave is that there should prevail a certain type of judges to try certain cases, and for political · reasons. With that again 1 am in utmost sympathy. But there is a third reason and it is in response to the question of the gentleman from Rizal wherein he stated that one reason for the abolition of the judges-at-large and cadastral Judge is because of t.he presence of certain undesirable elements, and he stated specifically one cadaitral judge who, by popular acclamat ion, may be dubbed as rather an inefficient judge, and it is for that reason that it is better to abolish all judges·at*large and ca. dastral .judges in order that that man may not be reappointed. Now, analyzing the first two, does not the gentleman agree that the first two reasons may be subserved without necessarily abolish· ing the ~osition sof judges-at-large and cadastt-al judges? In other words, can we not put up an amendment in the judicie.ry law that hereafter, judges-at-large and cadastral judges may not be assigned to try special cases outside of their official jurisdiction? May we not do that? SENATOR LAUREL. Yes, but you don't make them district judges. In other words, you will have to classify them as eadastral judges or judges-at-large. THE PRESIDENT. Let the record show. SENATOR LAUREL. Mr. President, unless there are questions or remarks I do not want to delay the opportunity of anyor.e who wants to make use of the floor. SENATOR PRIMICIAS. Mr. President, will the gentleman yield? THE PRESIDENT. The gentleman may yield, if he 110 desires. SENATOR LAUREL. With plcnrmre. SENATOR PRIMICIAS. I would like to make particular re· ference now to that provision of the Constitution in Article VIII, Section 9, referred to just a moment ago by the Gentleman from Tarlac which has reference to the security of tenure of office. Section 9 of Article VIII reads as follows: "The members of the Supre~e Court and al! judge" s of inferior courts shall hold office during good behavior, until they reach the age of seventy years, or become incapacitated to discharge the duties of their office." Now, it seems from the questions of the gentleman from Tarlac that he has serious doubts as to whether or not this provision of the Constitution is violated if the positions of judges-at.large and cadastral judges are abolished because by so doing the present judges.at-large and cadastral judges are custed from office. What is your opinion on this matter, gentleman from Batangas? SENATOR LAUREL_v4'iy humlile opinion, Mr. President, is that the congress or the legislative department may exercise its legislative powers and one of these legislative powers which is ne* cessarily implied, which is inherent, is the control over public offices. We can create and abolish public offices, increase their compensation, make the function of different offices into one or August 81, 1954 THE LAWYERS JOURNAL 385 into various other offices. In other words, do anything and everything that Congress, the legislative department, wants to do with reference to public offices, except one limitation and condition, except as to constitutional offices. SENATOR PRIMICIAS. Now, does Your Honor agree with the recent opinion of the Supreme Court in the case of Manalang versus Quitoriano, et. al., recently decided about two weeks ago in Baguio, wherein the Supreme Court said, and I am quoting now from a clipping appearing in a Manila press: "Removal implies the office exists after the ouster. Such is not the case of herein petitioner, for Republic Act No, 761 expressly abolished the Placement Bureau and by implication the office of the director thereof which obviously cannot exist without said bureau. By abolition of the latter and of the said office, the right thereto of this incumbent petitioner herein was necessarily extinguished the1·eby." There are other considerations, but the gist is that according to the Supreme Court, in this case there can be no illegal ouster if the office no longer exists and there can only be illegal removal or violation of security of tenure where the office continues to exist after the alleged ouster. And this particular decision or' the Supreme Court may be applicable in the case of judges-at-large and the cadastral judges if we abolish their positions expl'essly and they find themselves out of office. SENATOR LAUREL. Mr. President, I have no doubt that that decision is correct, and just the other way or what they call : "sensu contrari.'' the reverse. The Supreme Court I think is also correct in the case of Brillo ' 'ersus Enaje because almost the same question with a different twist in the law is involved, because Tacloban was converted into a city, they made it into a city, and there was a justice of the peace of the municipality of Tacloban . Now, when they converted it into a city, they appointed a new justice of the peace although there was already a justice of the peace there since 1937, Enage, but they changed him and appointed another. The Supreme Court · said, "No, you cannot do that; there was no more office." Well, no more, the office has been abolished. In other words, if there has been an express legislation saying that there will be no more municipal judge but instead somebody else or the auxiliary judge is hereby created or some other arrangement was made, it would have been a different story, but the position not having been abolished because it was the stune position of judge except that you changed the name, perhaps the same territory of Tacloban except that instead of calling it a municipality, you call it a city, it is the same judge, the same judge should continue as a municipal judge, and that was, I understand, the l'uling of the Supreme Court. In other words, in that case there was abolition. No question. In this case there was no abolition and therefore no other fellow should leave. SENATOR PRIMICIAS. May I ask Your Honnr now to profound Section 7, Article VIII, which has reference to appointment cf judges of inferior courts to particular districts, which judges would be transferred to another district without the consent of the Supreme Court? Your Honor was one of the leading members of the Convention and I understand had a leading vital role in drafting the provision of the Constitution relative to J udiciary. At the time that that provision was approved by the Convention, Your Honor was then aware of a vicious practice being observed at the time, of transferring one judge from one district to another, creating what was then vulgarly called ''rigodon de jueces" and which provoked the decision of the Supreme Court in the case of Borromeo versus Mariano. SENATOR LAUREL. There are many instances, but I do not want to make reference to them. Historically the old "El Renacimiento" case which was tried by Judge Bentley, they wanted to suppress the name and kill the paper because the "El Renacimien· to" was a nationalistic paper always crying for independence and attacking Worcester in that famous article written by our "paisano' from Batangas, "Aves de Rapiiia," and there was a suit and they wanted a judge to insure the destruction of the paper "El Renacimiento," and they got it. They appointed a judge, not from Manila, through some arrangement with the Secretary of Justice, they secured an American judge and they succeeded in destroying it. And that was not the only instance. Recently, you know, even our esteemed colleague here in the Senate, was assigned a judge. Well, I do not want to make l'f!ference. I want, if it were possiblE, for the wound to heal because what this country needs is integration, what this country needs is solidification in common interests and common desires, to sene not so much the interests of our party, but the common interests of our people, but you know, the Gentleman knows, and every lawyer knows what hap11ened in the past, which we do not want to repeat, and precisely that is why we arc t rying to correct that. SENATOR PRIMICIAS. I agree entirely with the gentleman from Batangas that we should not i·eopen old wounds, but at the same time, if we consider legislation of this nature, it would be wise to be guided by the lessons of history. SENATOR LAUREL. I have a list of those cases. SENATOR PRIMICIAS. I wanted only to get from the Gentleman from Batangas what were the reasons why this provision was inserted in the Constitution at the time, and I got my answer. Now, does not Your Honor, considering all thefle reasons and motives behind the insertion by the constitutional convention of that provision in the Constitution, believe that the creation subsequently of the positions of judges-at-large and cadastral judges, who coulr.I be transfP.rred from one district to another at the pleasure of the Chief Executive without the consent of the Supr£me Conrt, was u violation of the spirit at least of the r-rovision vf our Constitution and which later on would deprive u3 cf the proper administ-ration of justice which was envisaged at that time? v--$ ENATOR LAUREL. Mr. President, S1:ndu1· Primidas is correct. And it is, I dare say, one of tl1e com;::es that ~ave rise to •he almost complete destruction of the faii:h and confidence of the 11eople in the administration o! justice in this country. SENATOR PRIMICIAS. And if w~ conect now that violation, at least in spirit, of the provision of cur Constitution lly abolishing the positions of these judges who can be transferred like pawns on a chessboard at the mercy of the Chief Executivie in order to take cognizance of cases to prosecute 1 101itieal enemies, r.ow that we are in power, we do not want to exercise that power 1.>ecause we want to restore the permanency of judges so that they may no longe1· be removed from their districts, does that ''iolate the spirit of the Constitution or does that further the spirit of the Constitu. tion? SENATOR LAUREL. That does not \•iolate the Constitution. It is in consonance and in harmony with the spirit o! the Constitution, that gives it life. New is the opportunity. Senator Primicias is correct. And in taking advantage of that opportunity, we a1·e inviting all the membera of all the political parties to join us in this great endeavor and, perchance, in the near future share in the great glory of this great undertaking which we have began this noon. SENATOR PRIMICIAS. And now, Mr. President, the Na· cionalista Party is in power together with the help of the Democratic Party. These judge,s..at-large and cadastral judges are now within our power, through the Secretary of Justice, to transfer from one district to another. It is a tremendous weapon for political purpose, and yet the gentleman from Batangas is championing this bill giving up this power in order to make real the independence of the judiciary in the administration of justice. I think the gentleman from Batangas deserves all the honor and the praise that our people could bestow upon him for his statements here. SEN ATOR LAUREL. I am profoundly grateful, Mr. Pres3SG THE LA WYERS JOURNAL August 31, l~:i4 ident, for those laudatory remarks made by the distinguished gentleman from Pangasinan, Senator Primicias. DISCURSO EN CONTRA, DEL SEN. PERALTA SENATOR PERALTA. Mr. President. THE PRESIDENT. Gentleman from Tarlac. SENATOR PERALTA. J\.lr. President, I was going to vote for the original bill because that bill did not in any sense threaten the independence of the members of the judiciary. However, J\.fr. President, when the Committee on Judiciary of this chamber changed its mind after a p('riod of about ten days, finally decided that they would abolish the posirions of judges-at-large and cadastral judges, I felt it my duty to stand up, humble as my voice may be, in order to restate my position on what I believe is the meaning of the Constitution on the independence of the judiciary. It is denied, and yet hoveririg in the background is the real reason for this reorganization, namely, the charge that some of these judges-at.large and some of these cadastral judges are incompetent to hold their office, and the only way of getting rid of them is by abolishing all the positions, reappointing the good · ones and leaving out the bad ones. But, Mr. President, our Constitution and our laws at present state a procedure of how we can get rid of the bad ones, because it is not fair, Mr. President, by gossip \lnd by rumor to convict a judge of being a bad judge. That judge, if he is accused of being a bad judge, has every right like any other person accused of a crime to meet his accusers face to face, crossexamine them and before a competent court or tribunal, which Is the Supreme Court, dare the accusers to prove the charge that he is a bad judge. It is so easy, Mr. President, to smear the character of a man by gossip and by rumor, making cowardly accusa· tions in private that a man is a bad judge, that he does not know the law, or that he accepts bribes. But, Mr. President, accusation by gossip and by rumor, conviction by gossip and by rumo'r, i!' not the kind of justice that is guaranteed to us by the Constitution. And if in order to get rid of bad judges, we have to abolish all the positions of judges-at-large and judges of cadastral courts, where shall we e1~d ? SoC1ner or later, somebody will prop~se: "Let us abolish all the positions of district judges of first instance, because there are two or three bad judges there and we cannot get: rid of them except by abolishing all these positions of judges of first instance, reorganizing the judiciary under the guise of public policy; then, let us reappoint the good ones and leave out the bad ones." That is the theory. But, Mr. President, in the light of practical politics - and the trouble with this country is that ther.: is too much politics ·-, unless you are a good Nacionalista, Mr. President, you probably will not be reappointed as judge of first instar.ce or unless you know how to kiss the hand of the powers that be. I am told t:lmt this judiciary bill ~bolishing the positions of judges at large t.nd cadastral judges is for public policy. Public policy? I was told two good reasons why there should not be any more judges-at.large and cadastral judges. But those good reasons, Mr. President, can be enforced by a little amendment to the judiciary act like what we did last year, and it would not result in the abolition of positions of judges-at-large and cadastral judges. Why am I so worried about thirty-three men? It is not thirty-three men that I am worried about. It is the principle, Mr. President, that if a certain judge antagonizes a powerful man in this government, he runs the risk of having his position abolished under the guise of the socalled, alleged, public policy; when in truth and in fact the real i·eason is t:hat this judge has been convicted of nothing more than by mere gossip or rumor of incompetence, or for the mon:: congent reason that he antagonized a powerful official. Whether founded or unfounded, nobody will ever know, unless that judge meets his uccufJers face to face before his peers in the land. /Now, Mr. President, what is the reason why Section 9 of Article VIII of our Constitution was placed? Is it a dead letter? That article states: "The members of the Supreme Court and all judges of inferior courts shall hold office during good behavior, etc. et<:." Notice, Mr. President, that in this section judges of inferior cou1·ts are placed in the same footing and side by side wit:h members of the Supreme Court and mentioned in the same breath; and both members of the Supreme Court and judges of inferior courts have the same rights under this same article and the same section is the source of their constitutional rights. Mr. President, if we try to pass ' a law now stating that the term of the justices of the peace shall be limited to ten years, Mr. President, that law is cleuly void and unconstitutional. Why? Because, Mr. President, this article states that all judges of inferior courts shall hold office during i:,rood behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office. In other words, Mr. President, we cannot limit the tenure of their office because what is prohibited by express direction cannot be done by indirect means. ~s argued, l\fr. President, that we can abolish the office; that it is inherent in Congress to create and abolish all kinds of offices except constitutional offices. But, Mr. President, that is subject to one express limitation, that such abolition of offices shall not coni'ravene any provision of the Constitution of the Philippines. And I maintain, Mr. President, when we abolish the position of judge of any inferior court for the expr<!SS purpose of limiting the tenure of judges, then, Mr. Pr<!sident, we run counter to Section 9 of the Constitution which guamntees i'he tenure of office of the judiciary whether they belong to ~he Supreme Court or whether they belong to inferior courts. Now, Mr. President, certain cases have been alluded to here: The cases of Zandueta vs. De la Cosca, the cases of Brillo vs. Enage, and this last case which involves former Director Manalang. I submit, Mr. President, that in the case of Zandueta vs. De la Costa only Justice Laurel in his concurring opinion upheld the theory that we may abolish inferior courts. The rest of the Supreme Court evaded i'hat issue and merely refused to issue quo warranto simply because Judge Zandueta was held in estoppel. In other word.;, inasmuch as Judge Zandueta had assumed another office incompatible with his office as Judge of Court of First Instance, Judge Zandueta could no longer question the constitutionality of the law under which he held his office. In the case of Brillo vs. Enage cited here, J\.Ir. PresidenC, said decision was penned by Justice Ra· mon Diokno of revered memory but who, probably by coincidence, always agreed with the top·brains of the Nacionalista Party in political cases. And in his ratio decidendi Justice Diokno cited the case of Zandueta vs. De la Costa using that case as authority and doctrine t'hat Congress may abolish inferior courts. The case of Zandueta vs. De la Costa never sustained such doctrine. Only one Justice of the Supreme Court upheld that doctrine that Congress may abolish inferior courts. The case of Zandueta vs. De la Costa in fact made no such ruling. And I submit that in spit'e of all the learned experience of Justice Diokno he was wrong in citing such a precedent because in the case of Zandueta vs. De la Costa the Supreme Court did not uphold that doctrine that the Congress may abolish i'he inferior courts. It should not be stated here, Mr. President, that Congress has the authority to abolish inferior courts because that is not the doctrine in this country. It is only a statement of one learned justice and such st'atements have been challenged by equally distinguished constitutional lawyers and there is no decision of the Supreme Court that I have been able to discover expressly stating that the Congress may abolish inferior courts. Now, I am afraid, Mr. PresidenV, that i~ we pass this bill, its constitutionality will be challenged in the Supreme Court. It will have to be because this is a doctrine, Mr. President, which underlies the whole theory of democracy that the Judici.ary shall be free and independent. One may not limit their t'enu1·e of office except for those reasons enumerated in the Constitution which are rroo:t beAu1,rust 81, 1954 THE LAWYERS JOURNAL 387 havior, incapacity to continue in office or until they reach the age of 70. Those are the only three reasons why a judge, whether a member of the Supreme CouIT or of an inferior court, may be relllOVf!d from office, and if those are the only three reasons, Mr. President, stated by our Constitution, I plead that inclusio unfos est e:rcfosio alteriits. What makes this bill very mischievous is not because there will be 33 men out of jobs. We have thrown ou~ men from work but such did not involve doctrines and theories which underlie the very substance of democracy. When we challenge the independence of the judiciary, we challenge democracy's very foundation. It is hinted here, l\Ir. President, that there are six doubtful men who arc at presene judges-at-large and who may not be reappointed. Mr. President, it is better to bear with such six doubtful men than to destroy the very essence of the independence of the judiciary because, Mr. President, as every man knows in this country we take politics ilio much at heart. What is to prevent the insinuation - many of us here are lawyers - that if some powerful members of Congress are disappointed in some very big cases, especially when they refer to very big cases, what is to prevent the insinuation from circulating among the people that the l'eal reason why a judicial office has been abolished is because that powerful member had been disappointed in losing the case. And human as we are, Mr. President, sometimes when a lawyer loses an important case, he begins circulating around, "Maybe, because that judge was fixed." That is human. I have heard those kinds of stories l'!irculat<!d by a disappointed lawyer who loses an important case, and who starts <'!irculating t'he rumor that "that judge must have been fixed - must have been bribed." Or, also, he is grossly ignorant of the law, Repeat that often enough and people will start to believe. But if those are t.rue, Mr. President, why do not these people who accuse these judges, go t'o the Supreme Court and make their s.ccusations in public so that these judges may defend themselves, instead of having their character assassinated in public markets and other places? That is why, Mr. President, it is not for these thirtythree men i'hat I plead today - I do not know most of these men - probably I know only one or two judges-at-large - at most three. I do not know the rest of these men, I do not probably know their names and their recOrds, but I do know, Mr. President, that once we start threai'ening members of inferior courts, Mr. President, there is hardly any limit to what we may threaten later on. Suppose, for example, Mr. President, that some powerful members were losing a case before the Court of Appeals? Very soon, Mr. President, there will be rumors circulating thaC those members of the Court of Appeals are grossly ignorant, or, they must have been fixed. This kind of charader assassination will sooner or later circulate and pretty soon somebody in the halls of Congress will say, "Let us abolish the Court of Appeals on the ground of public policy." Le~ us create another court, which we shall call a court of appellate jurisdiction. Instead of putting there eleven men, let us put twenty,one in order that t'here will be more Nacionalistas employed for judicial jobs. Now, Mr, President, I do not mind even a Nacionalista, pl'Ovided that he is really competent, and I say there are many competent Nacionalistas who can be justices of the Supreme Court and justices of the Court of Appeals, judges in the Court of First Instance, and justices of the peace courts. There are many, competent Nacionalista Party members who would honor me even if I only shake their hands. But:, Mr. President, that is not the proper way of giving them jobs - To abolish positions of men who have do!lf' nothing wrong in order that new positions will be created and given to these worthy members of the majority party. That is not the correct procedure and if we follow such a procedure, Mr. President, sooner or later we will no longer be a democracy, We will follow the doctrines of Communise Russia, Mr. President, where only party members may hold important offices. Mr. President, there is one more argument which I would like to leave in the minds of my colleagUes in this chamber. I merely would like to quote Justice Laurel himself when he made a con. current opinion in the case of Zandueta vs. De la Costa, which appears on p. 626, Vol. 66, Phil. Reports, 1938. I quote: "I am not insensible to the argumen~ that the National Assembly may abuse its power and move deliberately to defeat the constitutional provision guaranteeing security of tenure to all judges, But, is this the case? One need not share the view of St'ory, Miller and Tucke.r on the one hand, or the opinion of Cooley, Watson and Baldwin on the other, to realize that the application of a legal or constitutional principle is necessarily factual and circumstantial a nd t hat fixity of principle is the rigidity of the dead and the unprogressive. I do say, and emphatically, however, that cases may arise where the violation of the constitutional provision regarding security of judicial tenure is palpable and plain, and that legislative power of reorganization may be sought to cloak an unconst'itu. tional and evil purpose. When a case of that kind arises, it will be the time to make the hammer fall and heavily." Now, Mr. President, I use those very same words of Justice Laurel, "Let the hammer fa\J and heavily" because, Mr. President, under the guise of reorganization, security of judicial t'enure is violated and such security violated in plain and palpable terms. I thank you, Mr. President. SENATOR PRIMICIAS. Mr. President, I ask for a suspen· sion of the consideration of this bill until this afternoon. EL PRESIDENTE, Hay alguna objeci6n a la moci6n? tSilencio.) La Mesa no oye ninguna. Queda aprobada. CONSIDERACION DEL $. NO. 170 (ContinuaciOn) SENATOR PRIMICIAS. Mr. President, I now ask that we resume consideration of Senate Bill No. 170, the Judiciary Act. THE ACTING PRESIDENT. Continuation of the consideration of Senate Bill No. 170 is in order. SENATOR PRIMICIAS. Mr. President, the distinguished Minority Floor Leader woulld like to be heard on tliis measure, and I ask that he be i·ecognized. EL PRESIDENTE lNTERlNO. Caballero por Abra. MANIFEST ACIONES DEL SEN. PAREDES SENATOR PAREDES. Mr. Pr~sident, gentlemen of the Senate : Far be it from my intention to engage in a debate on this very important bill. I have such a high respect for the < .pinion of our distinguished coUeagUe, Senator Laurel, that I will 11ay without hesitation that whatever opinion I have on legal mattni! and whatever I say here this afternoon should not be construed ur op. posing his views but only as a compliance with the duty that I bt>lieve I owe to the Senate - to state some reasons which in my opinion might endanger the bill if ever ih constitutionality i1 brought before the court. · There cannot be any quarrel, Mr. President, on ihe proposition that Congress has the absolute right to reorganizf- not only the executive departments, but all other dt::partments r:f the g1Jvern~ mcnt. Neither can there be any question that the Congress may change the jurisdiction of the courts, enlarge or rt>duce its territorial jurisdiction or its jurisdiction as to the cas<>s that may be tried by them, It can also be granted that a reorganization that affects the tenure of office of the present incumbents of the judiciary may be constitutional or unconstitutional according to the motive. behind the reorganization. Senator Laurel, as a member of the Supreme Court, has laid tho rule that should be followed, and I believe it is only proper to bring his ruling before the attention of ·this Senate. In the celebrnted case of Zandueta cited here this morning, it W9.! held by Justice Laurel that a reorganization that deprive a judge of his 388 THE LA WYERS JOURNAL August 31, 1954 c•ffice is not necessarily unconstitutional. But an!' reorgauizrition may become unconstitutional if the circumstances :ire such as to show that the intention of the reorganization is to put olJt a member of the judiciary by legislation, I will not ~harge anybody with any hiddc:n intention or improper motives in this bill, but it the question is ever presented to the Supreme Court by anl judgt> who may be ~ffected by tht: i;rovisions of this bi!; whicl• ] sup. pose will be approved this afternoon, I feel, Mr. President, that if the circumstances - preceding, coetaneous and subsequent to the approval of the bill - are presented to the Supreme Court, the constitutione.Jity of the bill will be seriously endangered. If the motives of the Congress in reorganizing are simply public policy, public welfare, public service, and the prestige or the protection of the judiciary and the members thereof, there can he little question about the constitutionality of the bill, but otherwise, the bill ia un. constitutional. Let us now, Mr. President, examine the circumstances attend. ing this reorganization, and then ask ourselves whether or nut our protestations of good motives a.re likely to be given credence ,by the courts. For the last seven years, the administration was controllrd by the Libernl Party. The Nacionalista Party being then in thP minority, had always been complaining against the u.cts of the Liberal Party administration. Right or wrong, there were alleged irregularities committed and which were the subject of uttacks and complaints on the part of the members or the minr,rity party, then the Nacionalista Party. The J udiciary was not free fr<.Jm these attacks and from these charges or inegularities. The Judiciary was also accused of having become a. tool of the Chief Executiw in the dispensation or justice. Comments were madt:, attaf:ks were freely hurled during the campaigns ag:i.inst members of the Judiciary or the way in which the members of the Jurlidary f.ierformed their duties. Main subject <'f attacks was the frequency with which the Secretary of Justice assigned judges to try specific cases and attributing to this action the ulterior motive ot eecurmg the eouvictir.n or the acquittal of t.he accused in criminal cases. Sinre the elections and after the new admi11istration wa'! instal11od into office, what did we notice in the matter of changing employees and reorganizing' In the Executive Department, not only have 'the high officials had to present their resignation out of propri1:ty, but even those who weie holding technical positions and who ordinarily would not be affected by changes in the leadership of the govern. ment, had to resign, and I say ''had to" because they were asked to resign, or else So they did resign one by one. They quit their positions, because they were asked lo. And that was not enough. In the province~ changes were made, I will not now say that legislative violations were made, changes were made in the Executive Department, governors, mayors, councilors, board members were changed from Liberals to Na. cionalista. There seems to he a craze of chilnging personnel, ousting all the Liberal~, all those who belong to the Liberal party, and putting in their places members of the Nacionalista Party. VHy natural, that was to be expected. For so many rears has the N<.icionalista Party been deprived of the opportunitunity to control the government, and this being the first opportunity of the Nacionalistas, it is only naural that they should wish to place their own men in order to be able to carry out their promises. They did not have confiden•~e in the members of the Lib. eral Party. It was their right and privilege and dut)- to them. selves, I should say, to bring new men to carry out their policies. Mr. President, this was done, not only in the executive and E-lso the elective positions. In the Department of Foreign Affairs, soon after the assumption to offir.e, the Secretary announced pub. licly and openly that all the members of the Department of Foreign Affairs should resign notwithstanding the fact that there is a law protecting them, the tenure of their office being assured on good behavior. Then investigations against membP.rs of the Fo... reign Scrvicr started, all with the end in view of removing incumbent Liberals. The same wa.s done in the bureaus. Chiefs of Bureaus were asked to resign. Some o1 thf'.rr did othP.rs did nr,t, but finally had to give up their place in favor o! new ones, all belonging to the Nacionalista Party. This ;:eries of similar act.i follo.,. .. ing the same standard will help discnver the intention of this judiciary reorgani1.a.tion bill. As to the Judiciary, there is no way of laying off t.hc judge.9 The judges cannot be asked simply to resign becauiie the Constitution protects thrm. TherP. is a need to follow a different course it we want to change those who, during the former regime or ad. ministration, were suspected to bdng a tool of the Executive. A reorganizatio11 to get rid of them would be a most co1wenient toi:rs"' SENATOR PRIMICIAS : Mr. President, will the GPn•Jeman yield? THE PRESIDENT. The Gentleman may yield, if he Sl' Cesires. SENATOR PAREDES. With pleasure. SENATOR PRIMICIAS. I regret to have to interrupt d.e distinguished Minority Floor Leader, but I wanted to ask him a few questions on the Department uf Foreign Affairs. SENATOR PAREDES. Yes, si1·. SENATOR PRIMICIAS. upon his stattn1ent "!.hat ni:my were asked to resign and those who did not resign were inve:1tiq-atP.c1. SENATOR PAREDES. I apply that to the cfocr branches r:of the Executive. In the Depa1·tment of Foreign Affairs, I say thnt there was a public statement that the members of thf: foreifPl ser\'iee should resign. SENATOH PRIMICIAS. N11, sir; I am not r-oferring now to public statements, but W actual acts allegedly committed hy thP Department of Foreigr. Affairs. Is it not a fact, Gentleman from Abra, thnt only those occupying mini!Oteriu.l positions voluntarily resigned, and no one was asked to resign in the Department of Foreign Affairs. SENATORS PAREDES. I uuderstand that has been the case, tut I also know, hecause I have !"ead in the newspapers, thnt there havt! been public s:l<!.tcmcnts made by the Secretary of Foreign Ai. foirs saying that in his opinion any mE:mber of the Foreign Ser. vice shcuM. resign because, acco1 ding to him, they must hz.ve the , ubsolute confidence of the Chief of the Department. SENATOR PRIMICIAS. I do not know if he actually made that statement or not. I have no means to verify if he actually made that statement, but we must be concerned not with alleged state. ments which might more or less be true, but with actual acts committed. Now, is it not true, •\ctually until now, that there are ministers who have actually resigned, tencle~·ed their resignations, but their resign:i.tions are not yet accepted and they are continuing in the foreign service? SENATOR PAREDES. I think you are right, Your Honor. SENATOR PHIMICIAS. Now, us regards some foreign affairs officers in the consular Rcrvice, I understand that there are two consular offie(:rs who are being investigated in the whole consular corps. Is it not true that tl1esfl consular officers a.rl) beingo invcstigated for electioneering act.ivities, because th<"Y actually aban· doned their posts and cume to th<' Philippines and r:lectione<'rPd? SENATOR PAREDES ." I do not know the reason for their being investigate,!. SENATOR PRIMICIAS. Dut then: is no member of the consular corps who did not come to the Philippines to campaign who is being investigated. SENATOH PAREDES. 1 do not know about that. SENATOR PRIMICIAS. Well, I was interested in e.ski!ig these questions because Your Honor ha.:> made a sweeping statement that t.fficers in the foreign service were either asked 00 resign and that if they did not resign they were actually iuvestigated. I want to set th2 record straight that the sweeping statement is not in sel'ord:>.ncc with facts. SENATOR PAREDES. If I am 'not mistaken, what I said and what I am going to say is in the executive departAugust 31, 1954 THE LAWYERS JOURNAL 389 rncnt, ami then I singled out the foreign service - that even in the fcreign service, tl1c secretary annumced that · <!veryonc thould 1 ·1::.c;:gn. SENATOR l'IRMICIAS. Now, aetua.lly, the members of the cr.msular corps did not resign. They were not asked to re!!lgn. SEKATOR PAREDES. Maybe not. SENATO!~ PRIMICIAS. Now, regarding the judiciary, Your Honor has just made a statement that after reorganizing the exl cutive department, and as Your Honor has said, the Nacionalista Party which had made a commitment to the people had the right to do so. So, they have attt!mpted to reorganize the foreign af. fairs department in spite of the law t.hat :!.Ssures the security of tenure and which, as I have just stated, is not conect as a sweeping statement. Your Honor now refers to the judiciary, and t.hat the Nacionalista Party decided on reorganizing the judiciary in order to control again the judiciary. SENATOR PAREDES. Pardon me, I am not chargii~e any. body with bad intentions. I am Simply presenting the circumstanr.cs in order later to conclude with a question. Now, under the circumstances, would the Supreme Court, in case these facts :in, pre. sented to it, belie\'C what we said here about a clear conscience and pure motives. or will the Supreme Court take a different view? If they take a different view, the bill will be considered unc1..nstitu· tional. SENATOR PRIMICIAS. Now, I wculd like to ask a quesiwn to the distinguished minority f\l)()r ieader. I am sure his statements en the floor, in cn.se this question is elevated to the Sunreme Court, would be cited in the Suprf'me Court, and 1 would Jil:e to have him on the record. As a mat.ter of constitutional powt-r, legnl power, granted by thC' Constitution, is Your Hon;.ir of the belief that Congress hns the power to ,·corg·anize inferior courts, not the Supreme Court, but inferior courts, abolish position:> in the inferior cc.urts, or create new courts? SENATOH PAREDES. l have ~tarted my brief statement recognizing these principles and these rights, and 1 e\·en went to the extent of saying' th2.t we can Jegb:late out in some respect But if our legislation goes to such an extent that it may be construed as being motivated by a desire to get rid of judges rather than the good of the service, then our action goes beyond the limit. That is what I was saying. I am trying now to show the ci1·cum"~tance.'> preceding and attending the t>resentation of this bill so as to conclude with lhc question that I would like to propound. SENATOR PRIMICIAS. Your Honor is then of the opinion that the answer to the question depends upon the motive. If th~ motive i!< praiseworthy, the action would be perfectly legal. SENATOR PAREDES. Yes. SENATOR PRIMICIAS . But if the motive is purely ),c.litical, there is serious doubt as to its validity. SENATOR PAREDES. Exactly. That is why I agree with you. SENATOR PRIMICIAS. But as a matter of academic 'JUestion, ii respective of the motives, and I suppose this matter must be decided on legal or constitutional grounds SENATOR PAREDES. And the surrounding circumstances. SENATOR PRIMICIAS. Suppose we consider the matter tiure. ly from the academic point of view. SENATOR PAREDES. Then there is no qur.stlon, from the academic point .Jf view, that this bill is constituiional. But as Justice Laurel said in his decisions in interpreting the Constitu. tion, we should apply the Constitution with the particular circumstances of a given ease. SENATOR PRIMICIAS. Your Honor then is of the belief that in view of the series of circumstances that Your Honor has just. mentioned, the Supreme Court might doubt the motivi;s behind the approval of this bill if converted into law? SENATOR PAREDES. Not those circumstances only, but other circumstances that I was about to mention, and I will say, with all these circumstances, even in a. criminal case, there is sufficient ground to conclude guilt. SENATOR PRIMICIAS. Does Your Honor aho believe that in judging these motives one should take into account the fact that because of the creation of the positions of Judges at large 'lnd cadastral judges, who might be transferred and who were ;i.ctually tr:rnsferred from one district to rmot.her irrespective ot' the needs of tht.> service, a serious situation has arisen destroying the faith and confidence of the people in the adminif:tratfon of justice, which sit. uation must be remedif'd by the new p::-.1-ty which has assumed power in order to restore the faith and confidence of the p"'ople? SENATOn PAREDES. Y~s, I agree with you that thtti might be necesi:.ary. SENATOR PHIMICIAS. Thank you very much. SENATOR PAHEDES. Now, Mr. President, again J wish to clarify my position. I am not charging anybody with bad or ultnior motives. On the contrary, I believe that evel'y member of Congress ii: moved by the best oi intentions in voting for this bill. But I am simply presenti.ng coetaneous circumstances that will naturally be brought before. the Supl'eme Court if the case ii> ever presented there, and which coetaneous circumstances may outbalance the presumption that we are complying with !>Ur dutie3 faithfully. It may outbalance the presumption that our motives, as we 'say, are good. If I may resume now, in the judiciary, there is an dbsolute impossibility of asking any body to resign if he docs not want to, because he is protected by the Constitution. That will be presented to the Supreme Court. Now, as for other coetaneous circumstances. What wa.s done in the matter of the appropriation Jaw in order to facilitate legislating out some of the employees, civil service men? Lump sum appropriations were requested for certain offices, but which were not granted by the Senate because the Senate, I am proud to say, represented by the distinguished gentlemen of the majority and also joined by a few members of the mir.ority, saw fit to oppose that objectionable move, or at least saw fit to act in such a way as to avoid any possibility of suspicion. But other facto will also be brought up, Mr. President, which will add to the series of circumstances t.hat will be used by those who may question the law, to change the S"'11ate with ulterior motives. What are those facts, Mr. President? I wai; told right this aft:.nnC'on, when I was on the {Joor of the Lower House, that no less than the floor leader of the majority stoted that one of the pu:·poses c,f the bill is to get rid of the judges that a!'e no good. This is on record. With ~uch a confession, how can we say to the Supreme Court, in all sincerity, that our intentions are purely to serve the judiciary. The Secretary of Justice is even quoted as ha.vii;g said that five or six judges will be affected. Take those circumstances into consideration, Mr. President, and again the other side wil! say, "What was the purpose of the reorganization, the evident. purpose of the reorganization?" It has been said, ffrsf, to e<1ualize, give the same rank, jurisdiction and salary to all judges. That same rank can be accomplished now if we only rnise the salary of the lower judges. The cadastra.I judge will have the same jurisdic· tion as the district judge if he is assigned to try all kinds of cases. By administrative order, he can have the same rank, although not the same salary and t.he same na.me. The auxiliary judges now have the same privileges as a district judge except the salary. If that is the reaso)\ for the bill, why not simply taise the salary of these judges so that they may ha.ve the same rank as the nthers. S11cond al/t!ged motive: To avoid the possibility of these judges being used and assigned from one district to another as they had allegedly been used and assigned in the past, to fry special cases and to follow the wishes of the administration. I wish to pay a tribute of admiration to the gentlemen of the majority for having said that that is their purpose. I believed ihat is the pur11ose of the gentlemen who authored the bill and sponsored the bill, Senator Laurel. But, Mr. President, that same purpos~ can be accomplished by simply amending the law, by simply providing that the Secretary of Justice shall not do this hereafter without th" ccnsent uf the 390 THE LAWYERS .JOURNAL August 31, 1954 affected judge and the Supreme Court. That wouliJ have been a remedy. So, we cannot allege that a.s the reason for the amendment. Now, what is the other possible and alleged reason? To give all judges the same name. Mr. President, I believe this is too childish a reason for a wholesale reorganization of the judiciary. These being the circumstances, I would ask the gentfom€'n of the Senate to kindly consider whether our protestation of clean conscience and cleaL· motives are not outbalanced by the preceding ,.and coetanc.ous circumrtances, and whcthe1· or not if we a11 prove ( this bill we will ha,•e any chance of having it sustain<.!d hy the Supreme Court. There is one part of l11e bill that may be the source of injustice in its application. I refer to the proviso that all auxiliuy judges and all eadastral judges will vacate their offices upon approval of this bill. Now, that is an actual deprivation of these people's position. But this may create a sil\iation that may be cited as depal'ting from the avowed good intention of the law, There is a district judge, fo1· instance, in Rizal, and there is the district: of Manila where there are several cadastral judges. Suppose that this bill is approved, all judges, the second and third class, should ·vacate their positions and wait for a new appointment. In the case of l~1e district judge of Rizal, he will not ha,•e to be reappointed. So, he r{;)nains as a j1~clgc of Rizal. But the cadastr9.! judge who has to get new appointment in 01·der to continue in the judiciary, is appointed to Manila. Result: the one in Rizal who has been serving for years as district judge will not be brought to Manila because he remains in his disl'rict, while the cadastral judge in the district has the opportunity to come and in fact comes to Manila. SENATOR TA:RADA. Mr. President, will the gentleman yield on this pvint? THE ACTING PRESIDENT. The genl1eman may yield if he so desires. SENATOR PAREDES. Gladly. SENATOR TA:A'ADA. I regret that I cannot see the point of the distinguished gentleman from Abra because there is nothing in the bill, Mr. Senator, which would prevent the President fr~m promoting the judge. who is occupying a court in the disl'rict of the province of Rizal, to a court here in Manila. Thel'efore, the basis of the argument of the distinguished Senator will not be there. SENATOR PAREDES. Except for this consideration, that the questfon of appointment is so ticklish a matter that the ap1iointing power tries to avoid difficulties. By not removing anybody from his place, he has less headaches, Just let him stay where he is and get a new one. He will only ha,·e one problem. IC he 1·emoves him, there will be another headache to find his successor. So, the best thing is to t·etain him where he is. SENATOR TARADA. But there is no provision which prevents the PresidenC from exercising his appointing power. As the bill is drafted, there is nothing to prevent the President from promoting district judges who may be in the district of Pangasinan 01· Rizal. The chances are that he may lose his place if the appointment is not: confirmed here, but the result is that on account of the reorganization law he would have to be placed in jeopardy of losing his place. SENADOR PAREDES. But in the case of the judge-at-large who, according to you, may be promoted to the court here in Manila, he may also lose his job. It is not a question of losing his job that I am presenting now here, bu~ whether these judges in the province, because of the operation of this bill, are deprh·ed of the opportunity to be promoted to better courts. SENATOR TARADA. Thank you. SENATOR PAREDES. As I said to the gentleman from Quezon, the dist.'rict judges take the risk or are placed in danger of losing their positions, while the judges-at-large and the cadastral judges lose definitely their positions unless they are reappointed and their reappointment confirmed. And that is the possible result. With t'his statement, Mr. President, without any intention to oppose the bill as you gentlemen believe, but simply to point out that the circumstance I have mentioned may be more than sufficient to counterbalance or outbalance the protestatfons of our clean conscience and clear motives, I wish to conclude. The statements made by the Floor Leader of the majority in the lower house are too definite for any doubt. You know your moti\•es. You will answer for t'he bill. You are the overwhelming majority. You will vote for this bill, of course, notwithstanding eur (t?l\rs that the same will not serve a good purpose. SENATOR DELGADO. Mr. President, will the gentlf'mnn yield? THE PRESIDENT. The gentleman may yiled if he wisltes. SENATOR PAREDES . Gladly. SENATOR DELGADO. I understood from the gentleme!1 that he is assuming that Che motives both of the members .11· the majority of the Senate and the lower house as well as that of the Executive are of the very best. Is that correct? SENATOR PAREDES. Yes, Mr. Senator. SENATOR DELGADO. Ii Your Honor assumes that not'hi11i:r but the very best of motive has induced the majority of the Se1~ate and of the Lowel' House and also the Executive in the pai:sage of the bill, may we not assume also that the Chief Executive will only eliminate the judges who should Or. eliminated and keep and promote those who are deserving of promotion? SENATOR PAREDES. Which comes to prove my t11eory that this bill will be used to get rid of some who are supposed not to be good. SENATOR DELGADO. Will Your Honor be agreeable to l'emove those who should be removed? SENATOR PAREDES. Yes. SENATOR DELGADO. And those that should be promoted should be promoted? SENATOR PAREDES. Absolutely, but follow the constitutional and legal procedure. If they should be removed, why not! bring charges against them, And if you cannot bring charges because you have no sufficient cause for t·emoval, why do you remove them by this law? SENATOR DELGADO. If you assume that the bad judges will be removed, as long as the undesirable ones are removed and the desirable ones ue retained or promoted, what is the difference? SENATOR PAREDES. May I ask you a question in answer to yours. If we know that: somebody kills someone, but you cannot prove it, will you vote to send him to the gallows? SENATOR DELGADO. You assume the good faith of the Chief Executive? SENATOR PAREDES. I do assume. SENATOR DELGADO. That he wili not do anything that is not justified by the circumstances and t'hat, therefore, only undesirable ones will be removed and the desirable ones will be not only preserved but even promoted to higher positions? I thank you. SENATOR PAREDES. I assume and I accept and I will fight to defend the p1·oposition that the Chief Executive and everyone here are acl'ing with good intentions. But, Mr. President, we will not be the justices of the Supreme Court and our protestations may be outbalanced by the circumstances that I have mentioned. Mr. President, not all that should be in jail are in jail, and not all that! are in jail should be there, simply because human justice has its limitations, and courts have to decide according to the proofs and according to the opinion of the justices. So, I comply with my duty by presenting these modest observations of mine to the consideration of the majority, If you decide to approve the bill, I will try to do my best to help you perfect it, if it has any defects that may be conected. But I hope you will think twice before you approve the bill in the way it is. EDITOR'S NOTE: - The Lawyers Jo11rnal has received numerous requests from the members of the bar to have the pleadings and memoranda in the "Judges' case" <Felicisimo Ocampo, et al. vs. Sec1·eta,y-y of Justice, et al., G. R. No. L-7910) published. Due to space limitations and in view of the unusual length of the pleadings filed, the /fl1unal regrets that it can not publish them. However, the Journal will publish in the next issue, the respective memo1·anda submitted by the attorneys for the petiticiners.judges, and the Solicito1· General. Aug·ust 31, Hl54 ·rHE LA WYERS JOURNAL 391 STATEMENTS OF SECRETARY OF JUSTICE TUASON THE STATEMENTS OF SECRETARY OF JUSTICE TUASON MADE DURING THE PUBLIC HEARING OF THE COMMITTEE ON JUDICIARY OF THE HOUSE OF REPRESENTATIVES HELD AT THE SESSION HALL ON MARCH 17, 1954, BEFORE HONOHABLE AUGUSTO FRANCISCO; CHAIRMAN; DOMINGO VELOSO, VICE-CHAIRMAN; RODOLFO GANZUN, MARIO RENGZON, JOSE R. NUGUID, ROGACIANO MERCADO, GUILLERMO SANCHI::Z, ISIDRO C. KINTANAR, MEMBEHS. THE CHAIRMAN. The hearing is de<:Iared open . 9:25 a.m.) <It was In order to avoid your having to come here on subsequent dates, we would like you to consider one of the bills presented during the last few days, namely: House Bill No. 1632 introduced by the Speaker, Congre.'3Sman Corpus, and The chairman of the ·Com.. mittee on Judiciary with reference to the abolition of the positions of auxiliary judges, judges.at-large, and cadastral judges and the creation of positions of auxiliary district judges, Me.y we request the Secretary of Justice to testify and give his comment o~ this bill? SECRETARY TUASON. Yes, Mr. Chairman. MR. ABOGADO. I would like to find out the opinion of "the Secretary on House Bill No. 1632 regarding the abolition of the judges-at-large and cadastral jurlges. Is he in favor of that? SEC. TUASON. I am in favor of that, because as I aaid, judges should be equal in rank . They do the same kind of work. MR. ABOGADO. I understand that there are thirty-three (33> judges that will be affected by the approval of this Bill. Now, what will be your recommendation in order to protect these judges. at-large and cadastl'al judges who are performing their duties properly and efficiently? SEC. TUASON. Well, I think that these judges cannot be removed. They ce.nnot be legislated out, If the positions of judges-at-large and cadastral judges are abolished, these judges will have to be appointed to thc districts. MR. ABOGADO. So, upon apflrOval of this bill, those judge~at-large and cadastra.l judges will have to be reappointed as district judges? SEC. TUASON. Yes, because they cannot be removed in my opinion. MR. AROGADO. Thank you, Mr. Chairman. THE CHAIRMAN. Eve~ if the position is abolished'? SEC. TUASON. Even if thf' pdsitions are abolished, because the positions are not abolished; only the names of the positions P.re changed. The posit ions are therC'. As a matter of fact, the positions are increased. l\lR. BENGZON. Mr. Secretary, would you recommend a provision in this bill which would make possible the removal of these judges who are inefficient? SEC. TUASON. I would, if that could be done. Unfortunately, under the constitution, we cannot do it because the constitution provides the causes for removal Cif judges. TUE CHAIRMAN. Mr. Secretary, do you remember the organization act approved during the time of Ex-President Quezon, wherein judges had to be reappointed? SEC. TUASON. I doubt the constitutionality of that law, and I think that the constitutionality of that law was challenged in the case of Zandueta. versus de la Costa. In that case, as I remember, Zandueta's removal was sustained not hecause t._e law was declared constitutional but because he voluntarily abided by the questioned provision. MR. BENGZON. Don't you think this would be a good chance to eliminate inefficient judges? SEC. TUASON. That would be a good chance, but as I say, the constitution is in the way, because the tenure cf office is prc<;cribed by the constitution, and it would be nullified, it would be a dead letter if the Congress at any time can say: "All positions of judges are hereby abolished and all judges are hereby declared out of office." MH. BENGZON. In your opinion, Mr. Secretary, is there no way to remedy this situation by which lhese inefficient jud'!'ell may be eliminated? WHAT A WELLKNOWN ORATOR ONCE SAID ON THE DANGERS OF MIXING POLITICS WITH THE JUDICIARY The year wa11 1934, the place was the old Manila Grand OJl<'rn 1-huse on Hizi..1 AvP.nuc. The occasion was the First Inter.University Oratvrical Contest and the prize-winning oration was entitled: "For an Independent Judiciary. '' From the winniug orator's masterpiece, the following appeared: "The fate of our judges should not be left to rise and fall with the galling insolence to whkh 1iolitical parties are suLjected. The fountain of justice should not be polluted and poisoned wit.h the 'pestilential breath of faction.' Prostrate your judges at the feet of p~rty ar.d you break ciown the mounds which hold the protective embankment against the dashing torrents and waves of political passions and excitement. l\lake their tenure and comp~nsation dependent upon the mercy of the Legislature and you destroy that without which justice is a mockery and popular government a farce.'' <PrtJl011.ged applause.) "Courts should be the ready asylum, nay the indestructible cotta11, of the people's rights and liherties, They should be tl1e trusted guardians of individual securities and immunities, The present members of the constitutional convention should ei::pecially guard against legislative domination and encroachment," <More applause.> ''In a republic that is ours ·- ours to live, to honor and to defend - I envisage the day when il can safely and truly be said that if the right of the most humble citizen is trampled upon, indig_ r.ant of the wrong, he will demand the protection of our tribunals ar.d, safe, in the shadows of their win~s. will laugh his oppressors to scorn." (Very prolongetl appfrmse.> That was the year 1934. And it was merely an inter-unive1·sity oratorical contest. Today, 20 years later, the orator who delivered that prize-winning piece, for which he was awarded a gold medal and his university a trophy, would have created a sensation if he had stood up in the last session of Congress and delivered the same speech while the controversial bill l'evamping the judici~ry was under consideration. As a result of that bill, now a law, over 30 judges-at-large and cadastral magistrates, supposed to hold office for life and during good behaviour, were "reorganized." out of their jobs. Some were reappointed, Eleven were left out in the cold. The eleven "revampees" were all appointees of the past administration. But the orator who won a gold medal in 1934 for his moving speech on the sanctity of the judiciary did not repeat his prizewinning oration of 20 years ago. Then he was merely a university student orating for an audience. Today, he is Speaker of the House of Representatives. The prize-winning orator Was Jose B. Laurel, Jr. CB11llseye, August 23, 1954) 302 THE LA WYERS JOURNAL August SI, 1954 8EC. TUASON. None, <>Xcept the filing of charges for in. the Supreme Court &nd ask it to order the corl'esponding office or C"fficien('y, bec:i.u~c gross incfficie>ncy is one of the causes of remO\'al. the Budget Commissionel' or whoever the official maybe, to provide THE CHAIHMAN. Which is hard to prove or establis:h. Mr. Secretary, would you favor the presenting of charges against judges who <!.re not only inefficient but have engaged in electioneering acti\'ities and have allowed themselves to be ui:cd as tools, with the final 1·esu!ts in the loss of confidence by the people in the judiciary? SEC. TUASON. Well, clectioneeri11g is a \'iolation of law, and not only do I favor the fi ling llf charges bnt I ha\'e hired lawyers to prosecute ::i.nd asked public-spirited people to come forward, get evidence and file those charges, and in some cases I have taken a hand in the fit:n~ of tl1ose chargPs. MR. VELOSO (J). Mr. Secretary, I undei·stand frem you that should the positions of judges-at-large are abolished, th.:' judges cannot be ousted, is that right? SEC. TUASON . Yes. !\ffi. VELOSO <Il. Now, they may be re-appointed, to district judges, but suppose the Commission of Appointments do not confirm their .appointme11ts, what would be the status of those juditrs? Recause this is a new appointment. SEC. TUASON. Well, that is what I mean to say that i:uch law ~!1ould not require new app".Jintment to be confirmed by the Senate, beer.use if such a requirement were made, such requirement would be \'a lid. The President could even refuse to appoint them, and they might be put out before reaching first base yet. But as I say, that would not be legal. I don't believe it would De legal and those judges could i·efuse any such appointment in order not to run the risk of being turned down. "'No. I am not appointed as :iuxiliary judge. I am a judge-aUa1·ge," they can say. ''I want to remain as judge-at-large," and any provision to the contrary notwithstanding. Now, if the law should provide that all these judges shall be<:ome district judges and their districts are to· be determined by the President or by the Secretary of Justice, 01· :inybody, that wou1d be all right. MR. VELOSO. (J ). But suppose th~ bill as now proposed intends to abolish the judges-atw large and cadastral judges, would you think that this bill is unconstitutional? SEC. TUASON . Well, that is why I say - in order to 1n·event the bill from being unconstitutional, the abolition must contain the proviso tha.t these judges al'e not to be ousted, the~· a1·e not to be re-appointed but they are to continue as ~listrict judges and their districts are tf> be determined by somebody or by the Deparhmmt of J ustice. MR. VELOSO (J ). So, pl'actically, we are not here abolishing the judg~s.at-large and cad astral jud~es . sr;c. TUASON. No, we are not &bolishing. Only the 1w·m111 m·e o.bolisl.ed bul not the position. We a.re not abolishing the tenure of office vf these veople. MH. VELOSO (I). Suppose there is no proviso as you h:we ;-lated? SEC . TUASON. If there is no such proviso the measure would be unconstitutional if its purpose or effect is to legislate judges out. MR. RENGZON. l\lr. Secretai·y, I have just. heard your opinion here that even if these cadaslral judges are converted i:ito district judges, still they may 1·emain and may not be eliminated even if they are inefficient. Su!1posing Congl'eSs d('(!ms it fit to strike out from the budget the salary corresponding to an inefficient judge, do you think he can still remain? SEC. TUASON. The Congress cannot do indi1 ·ectly what it cannot do directly. If the salary of a judge is eliminated from the budget, I think it would be the right of that Judge to go to money fo1· the se.lary of that judge. THE CHAIRMAN. May Congress be ordered hy the Sup1·eme Court to appropriate funds for the salary of a judge whose sala1·y has been eliminated from the budget? SEC. TUASON. It is not the Congress that the Supreme Court would order. It is the budget Commissioner or whoever has the money. The Conifress does not hold the money. The Treasurer or somebody else does. THE CHAIRMAN. Rut it is illeg·al for the President, I mean the Treasurer of the Philippines, to pay out funds unless be is authorized by law. How may the SuJH"CITif> Court order the Treasurer tf> do so? SF:C. TUA SON . It is not illegal if it is ordered by the Sup1·eme Cou1t which previously C:ecidi!!'. that it is in accordance with the constitutio11. It is the act of Con~ress that is illegal. After all, 1t is the Supreme Court that ha.s the last word in that case. l\fR. BENGZON. Now, the 11osition is there but there is no money as there is no law permitting the appropriation of that money, may the Auditoi: General, the Budget Commissioner, or the Treasurer disburse from thi:? public funds witl1out ::iclion by Congress'! SEC. TUASON. Thal is what I said a while ago. The Supreme Court could protect the tenure of office of that particula1· judge by demanding from the officer who holds the money, to appropriate money to pay him that amount, and he cannot say that Congress has not appropriated, be<cause the Court would say that the failure of the Congress to appropriate, if intentional, is unl'Onstitutional, 2.nd if it is an oversight, it ean be disregarded. MH. BENGZON. In other words, J\11·. Seoreta1·y, it is yow· co11sidered opinion, even on the matter of the salary of ::ueh official, th::it he will be paid hi;; salary? Because it is possible, rtfr. Secretal'y, that lhis situation may ai·ise, so we wa11t to get your · legal opinion on this point, beduse it seems to me that this is the sense of Congress: to weed out the inefficient judges. SEC . TUASON. I wish \'OU could do that in order to eliminate those who are L"eally not. dcse1·ving, but unfortunately, the constitution is very positin• and very stl'Ong in that 1 ·espe<'t. MR. BENGZON. Let us take an extreme case. Let us suppose that Congress should desire to abolish and eliminate al! items fol' salaries of justices of lhe Supreme Court., what would hapren? SEC. TUASON . They could not do that because that will be interfering with the functions and abolishing another branch of the government which under the constitution, can not he done. MR. BENGZON. But supposi11;_~ there is no money appro. p1·iated, tl.erefore, they may be ading without compensation. SEC. TUASON . No; pl'obably not, t.:!cause if that were allowed, then thr:y could legislate out the ent-ire Supreme C{lurt by not' appropriating salaries. MR. BENGZON. But there is a pl'ovision in the constitution which says that no money should be paid out of public funds exce11t in pursuance of luw. SEC. TUA SON. That is true, but that is subject to some qualification. Iu that case, as I said, the Supreme Court would step in and sey, "No." When the Supreme Court orders the Trf!a~urer to pay the salary of such judge, the Supreme Court does not orde~· those officials tC" vivlate the law or do something against the law. As a matter nf fact, the Court can say: "You should pay this because the constitution says that you ~hould do it. If there is no law, then there is somethlng above the law and it is the constitution. The comtitui.ion says that if the legislature ..\ug-ust 31, 1954 TH E LAWYBHS JOURNAL 393 fails to make any appropriation for this man who, under the con~­ t.itution, should stay in his office fo1· life, then, it is my duty undl'-r the constitution to tell )·ou to pay this man his salary a.s fong as there is money from whil'!h that salary can bi? taken." MR. BENGZON. Supposing, Mr. Secretary, that the Au<litol' General will say that he would not pay because there is no appropriation for the judge's salary prc.'vided by Congrvss? SEC . TUASON, Well, they will go tCl jail for contempt of court and he will have to stay in jail until he pays the salary of that man. When the Supreme Court speaks, that is the last word s.nd that is the thing to be obeyed and not what the Presi<lent or the Congress tell~ them. MR. BENGZON. Thank you, Mr. Secretn1·y. MR. VELOSO cm. Mr. Sec1·etary, I agree t.hat the tenurC' uf office of judges is e.xplicitly provided in the constitution, but are you aware that the1·e is also that power ')f Congress to incrC<1.se the number of jud~es, in the same ma.nner that it can al1!0 decrease the number of judges of courts Oi first instance? SEC. TUASON . Congress can increase, but it cannot <lecrea~e if by <lecl'easing it would legislate out or put out of office judges who have already been aypointed an<l who havtl already· qualified, MR. VELOSO <D>. Don't you believe that that would be defeating the right 'or authority of Congress to incl'ease the number 9 f personnd that it sees fit to be 1irovided in the budget? SEC. TUASON. Well, I don't think so because it could not happen, if the reason is that there is no money, that the government of the Phili1iJ.1ines does not have money to pay the salaries of the judges. MP.. VELOSO <m. Now, I think I remember tlu•t there was u. time when the members of the Supreme Court have been increased and there was also a time when their number was decreased, What was the reason why the questior. 1~f constitutionality was not raised when their number was decreased'? SEC . TUASON, Well, I am glad you asked me that question. The Cong1·ess can increase the number of the members of the Supreme Court s!ly to eleven. Now, none of the eleven justices can be removed or can be put out of office because of lack of money. The Congress can reduce that number but not while all those eleven justices are there. It must wait until some of them resign and then say that the number of justices in the Supreme Court shall be like that number. And what I said with respect to Justices of the Supreme Cou1t ;pplies also with equal force in the case of judges of court of first instance, You can reduce the judges of court of fil'st instance, or number of districts for that matter, but only according to the number of judgt:s existing. You cannot reduce the number of judges if by doing so you have to eliminate or oust some of the judges. MR. VEL0$0. Ir. other w:>rds, y~.u are concerned with protecting the interests of judges -:>nee they :ire appointed, but are you not i·ather limiting the '90Wer of Congress lo legislate out h)' sh·iking out the item corresponding to a judge who has been abusive? Because that is the only way by which we can wipe out unnr.cessuy eleme-nts in the judici11ry, SEC. TUASON. \Veil, I am 1.nly exp1·essing my opinion ns to the extent 3.nd intent of the constitution. What I say is that under the constitution, those things cannot be done. If there are judges that are unfit for· one reason or another to stay in office, the cnly remedy, according to the constitution, is to file chariei;. against them and iet them bC! i·emoved for cause. MR. VELOSO. Without considering your opinion as correct, don't you l:elieve that will be a limitation by the judiciary or the Supreme Court on the legislatfre powers of Congress to pass over the number of offices in a<'COl'dance with its will? Bethat is also a constitutional mandate to Congress. SEC. TUASON . Well, the powers of the Supreme Courl are defined by thf' constitution and so with the powers of Congress. At least, the constitution places .a, restriction on the power of Congress in certain re8pects. 1 beg to disagree with you whC>n you say that the 11ower of Congress is abMlute or exclusi,·e 01· something of that import, beciiuse the power of Congress with respect to judges is not absolute. It is restricted by the constitution itself and that restriction is that the Congress cannot by dircet or indirect legislation remove any judge contrary to the tenure of office of judges. MR. VELOSO. We don''· believe that Congress can be limited by a mere opinion of the Supreme Court or even the President if it chooses to eliminate one position as we have- done in the pai;.t in many instances. SEC. TUASON. Yes, but t~is powel' is subject to the system of check and balances and subjed to certain provisions of the constitution. There is no branch of the government that has absolute power. All powers arc defined .'.l.nd are limited by the constitution. MR. VELOSO. You mean to s:iy, Mr. Secretary, that after the Pl'esidrnt hllfl .!:submitted tl1e ;\ppropriation for the Depa1·tmcnt of Justice, CongTesc will just accept what has been so provi.'.led by the Prc:;idcnt? SEC. TUASON. No, by no means . I don't: intend to make that inference. It depends upon the nature of the item. The 'legislature can modify or reduce the l;udgct submitted by the President. Whal I mean to say is that Congress cannot aboli!<h a po.<>ition of judi.:-e or cannot indirectly abolish that position by elimi· nating the item for salaries of that judge~ because the constitution provides that surh judge should hold office until he 1·e&ches 70 years of age. MR. VELOSO. What would hsppen in this contingency wherein the RC!public fails to i·ealize it.ii projected income for a definile fiscal ye:i.r and Congl'ess should see it fit to adjust its income to its exJlenses a.nd it shall reduce the number of jud~es?: Would you still limit the action of Congress just because these 11eop\e are so provided with definite tenure of office or are occupying a position of such nature that it cannot be legisbted out? SEC . TUASON. In that case, it would be necessary to reduce items but I am afraid you can suppress the salary of the Secretary of Justice but not the salaries of thl! judges, b~ause the Slo!cretary of Justice is not officially provided by the constitution and you can do away with it as you please, a.nd eliminate his position. MR. VELOSO. l\h. Secretary, I h!lve one more question . Actually, we have 16 judicial districts. SupJlOSe we reduce the number of judicial districts, because this is within the competency of the power of Cong1·ess, we reduce the number to 12 from 16, and thereby l'C'ducing the number of judges in accordance with the wishes Clf Congress because it believes that the country cannot maintain IG districts. Taking this as an example only, would you still insist that these people who :i.re affected cannot be legislated out? SEC. TUASON. Well, I think that unless there is rcu.lly no money to pay the numbC!1' of judges n~w existing, I am afte.id that Congress will have to content itself with accommodati11g all the judges in lhe 16 judicial districts within the 12 judicial districts and wait until some of ihem resign or die, Not until then can the Congress 1 ·t<dU<'C the number of judges. MR. VELOSO, Thank ycu, Mr. Secretary. THE CHAIHMAN. Wet.hank you very much, !\Ir. Seeretary for coming here . SEC. TUASON. Thank you too. I was anxious to come here becP.nse I thought I might be :.:ble to say £omething that will erase the misgivingl!_ that ~ight exist With reference to the proposed legislation. I hope I have accomplished tha.t. MR, CHAIP.MAN. 1 can assur" you 'that you l1ave, Mr. Secretary. Thank you again. 394 'I'Hf.; J ... AWYERS JOUP.NAL August 31, 1954 AMERICAN DECISIONS STATE v. LEONARD (86 Tenn. 485, 7 S.W. 453) have accomplished it. Neither the intent nor the language of the constitution employed to express it fortunately bears any such construction. 1. CONSTITUTIONAL LAW; CONSTITUTIONAL TENURE OF OFFICE CANNOT BE TERMINATED BY THE LEGISLA~ 'rURE. - Acts Tenn. 1887, c, 84, repealed Acts Tenn. 1885, c. 71, under which defendant had been duly elected to the office of county judge of Marshall county, and conferred the power and duties incident to it on the chairman of the county court. Held: That i.'his act could not deprive defendant of office for the remainder of the term for which he was elected, under Const. Tenn. art. 6, proviciing that the terms of office of the judges of such inferior courts as the legislature from time to tim(' shall establish i:hall be eight: years. 5. IBID.; JUDGES ENTITLED TO THE PROTECTION AGAINST UNCONSTITUTIONAL LEGISLATION DEPRIVING THEM OF THEIR OFFICE. - When the court whose judge is elecl'ed by the people 0£. one or more counties in district or circuit is constituted by the leg"isleture, and an election had, and the officer commissioned and qualified, it is not in the power of the legislature to take from him the powers and emoluments of office during the term of eighl' years by devolving these intact upon another, or otherwise. The court so constituted, and judge elected, in this instance, was under the authority to esl'ablish inferior courts already quoted. The incumbent of the office was a judicial officer of this state, (State v. Gleen, 7 Heisk, 486; State v. McKey, 8 Lea, 24) and is entitled to the protection of l'he constitution as such, against unconstitutional legislation to deprive him of his office. 2. IBID.; IBID. - The act of 1887 did not attempt to i.>.bolish or diminish the powers and dut ir<s appertaining to the office. It simply repealed so much of the act as applies to Marshall county, (an.other county having had a similar chance made in G. it's court system by the same act) and undertook to re-establish the office of chairman of the county court after the first Monday in April, 1887, and to vest in these officers all the rights, privileges, jurisdiction, duties, and powers pertaining to the officer as established and exercised by the coum.'y judge. If this legisl9.tion had merely named the defendant, and by name and title removed him from the position, and given it to another, it would not have more directly accomplished the purpose act'ually effected, if this be valid. ;;. IBID.; PURPOSE OF THE CONSTITUTION IN FIXING THE TERMS OF JUDGES. - The constitution in fixing the terms of the judges of inferior courts elected by the people at eight years intended not only to make the judiciary independent, and thereby secure to the people the corresponding consequent advantages of courts free from interference and control, ind removed from all necessity of being subservient to any power in the state, bui. intended also to prevent constant and frequent' experimenting with county systems, than which nothing could be more injurious or vexatious to the public. It was int'ended when the legislature established an inferior court that it should exist such a length of time as would give opportunity for mature observation and appreciation of h's benefits or disadvantages, and that the extent of its durability might discourage such changes as were not the result of most mature consideration. 4. IBID.; THE CONSTITUTION GUARDED THE JUDiqAL DEPARTMENT AGAINST BEING AT THE MERCY AND WHIM OF EACH RENEWING LEGISLATURE. - Realizing that' a change, if made, to constitute an inferior court, would fix that court in the system of eight years, a legislature would ' · properly consider and maturely settle the question as to the propriety and desirability of such change or addition to our system; and, conscious of the impropriety and the hazard of leaving the judicial department of the government at the mercy and whim of each renewing legislature - itself elected for but two years, - the framers of the constitution wisely guarded against these evils by l'he section referred to. Properly construed and enforced it is effectual for that purpose. Disregarded or impaired by such interpretation as leaves it to exist in form, without force or substance, and we have all t he evils and confusion of insecure, changing, and dependent courts, fre. quem: and constant experimenting with systems provided in haste, tried in doubt, and abolished before their merits or de· merits were understood. It would be a mortifying reflection that our organic Jaw makers intended any such result in their 8. advanced efforts to make a government of three dist'inct independent departments; and still more humiliating, if we were driven to the conclusion that, while they did not intend it, they had been so weak or inapt, in l'hfl phraseology adopted, as to IBID.; THE CASE AT BAR DISTINGUISHED FROM STATE V. CAMPBELL AND STATE V. GAINES. - It is 1 lrgued, hov.evcr, that this ~ct of removal is the same as t'he act abolishing a circuit court, with all its powers and jurisdiction, from the conseqmmccs of which it has been held by this c.uurt & circuit judge would be deprived of office. [State v. Campbell, CM. S.); State v. Gaines, 2 Lea, 316]. The act construed in these cases was one abolishing the Second circuit court on Shelby county, - the First and Second. As one was enough to do the busin(SS of the county, or supposed to be, the legis· lature abolished this court, leaving the enl'ire business of both courts to be done by the first; thereafter to be styled "The Circuit Court of Shelby County." It was held in the cases referred to thal' the legislature might abolish a circuit court, held for a circuit or given territory, and that when the court was abolished the office of judge thereof terminated. Without desiring to be understbod as assenting to the conclusion reached in those cases, <to the reasoning of which we do not subscribe) and which conclusions, we may remark in passing, were reached by a divided cou1t, and against the weight of many opinions in other states, it is sufficient to say that the case here presents no such quest'ion as that determined there. The act of 1875 construed had abolished the court. It did not leave the court with all its powers, jurisdiction, rights, and privileges intact, and devolve them upon another, as in this case. Here the court was left' as it existed, except the change made in its official ht!ad. He was simply removed by the operation of the act, if it could take effect according to its terms, and another put in his place. IBID.; IBID. - It cannot be doubted that, if the legislature had said in the act of 1875, as in the act now being construeJ, that the office of the judge of the Second circuit court should be abolished, and that \.'he court should remain, with like ju~ risdietion and duties, but these should be exercised by another officer, leaving the Fir.St circuit court also existing with its original jurisdiction and duties only, - that such would have been declared void. Nor can it be doubi'ed that if the legis~ lature should now declare that the office of a given circuit is hereby abolished, leaving the circuit and its court machinery as it, except the removal of the presiding judge, such act would be void. If this were not true, the legislal'ure, at its next or any subsequent session, might pass a law setting out the circuit;; and chancery divisions by numbers, and declaring that the office of judge of each be abolished. IBID. ; CONSTITUTIONAL TEST.-It is-no argument in answer to this to say l'hat the legislature will not do this. It is not a question of what they will do that we are now considering; it is a question of constitutional power of what it can do. The question as to how such power is granted, or resfrainV imposed, August 31, H'54 THE LAWYERS JOURNAL 895 cannot be determined on the probability or improbability of its exercise. If it can abolish in this way the office of county judge, it can abolish the office of any inferior judge, as all are alike pi.:otected or not prol'ected .bY the clause of the consti· tution referred to. ~). IBID.; THE INDEPENDENCE. OF THE JUDICIARY MUST BE CUAHDED AGAINST RASH AND CONSTANT EXPERIMENTS OF LEGISLATION. - For the honor of the framers of tbe constitution, the best interests of our people, the independence of the judiciary, and the securii'y and order of our court system against rash and constant experiments of legislation, it offers us much satisfaction to give the constitution its plain, rat'i.onal) and unobscure effect! to invalidate legisla· tion of this character, and be able to say that nothing .::i.s yet decided by our comt stands as a precedent in the way of our doing so. But if there were, it would afford us pleasure to overrule }t. DECISION S,NODGRASS, J. By an ict approved 30th of March, 1885, the legislature created the office of county judge for Marshall county. Acts 1885, p. 128. The defendant, Leonard, was duly appointed, commissioned, and qualified to fill said office, and entered upon the discharge of its duties. Subsequently, at ·the August election, 1886, he was elected to the position by vote of the people of the county, for the constitutfonal term, and was again commis· sioned and qualified, and continued to perform the duties 0£ the office, without objection or interference, until the present bill was filed by the sta~ on relation of D. C. Orr, to restrain him from so acting upon the ground that the act, in so far as it authorized the appointment of judge, had been repealed by an act of the legislature approved March 14, 1887, and the powers and duties of the office devolved upon i1le chairman of the county court to be elected to such position, and consequently Sought in this proceedln'g to assert his authority, and to restrain defendant from inter· fering with him or from ·the usuqmtion of such power. A demurrer was overruled, the bill answered, and on final hearing t'he ch'ancellor-sustained the, bill, and defendant appealed. The question therefore is whether the legislature has power to terminate the office of a judge elected under a constitutional Jaw, a_ nd for a consi'i~utional term of eight years, within that term, lepvi1w the co:1rt ~\'ith itS jurjsdicfrin in existence and unimpaired, by simply transfening the duties of the office upon another official, niimely, the chairman of the county court. In the act of 1885 creating the Office of count'y judge, all the powers and jurisdiction vested in a chairman of the county court was vested in the county judge, (section 4, p. 129) and all the rights, powers, and jurisdiction that are conferred by existing law upon county judges, (section 3, p. 129). In t'he passage of this law the legis. laturc acted under its constitutional authority to create originally, or by amendment of our existing court system, an inferior court. The first section of Article 6 of t'he state constitution provides "that the judicial power of this state shall be vested in one :;upremc court. and sitch circuit, chancery, and other inferior courts as the legislature shall from time to time ordain and est'ablish, in the judges thereof, and in justices of the peace." The fourth section of the same article provides, -among other things, that the judges of sUch inferior courts shall be elected by the qualified vot'es of the district or circuit to · which they are to be assigned, and that their term of office shall be eight years. In the first section of the a·ci.: of 1885 the term of the office is fixed at four years; but this is clearly a misprint or clerical error, for the next section, providing for the election of the judge after the first, :fixes the "Period of eight years. This, however, is an immaterial matter. The act. being otherwise v3lid, t'he eoTistitution would regulate \:he term, although a different term was intentionally fixed; and the judge, being duly elected, would hold for eight years, - the constitutional term. 1'he qu<'stion is, can the legislature subsequent1y, and within the term, deprive him of the office by devolving its powers and duties. upon another? '.fhe act of 1887 did not attempt to abolish or diminish the powers and duties appertaining to t'he office. It simply repealed so much of the a.ct as applies to Marshall county, (another county having had a similar chance made in its court system by the same act,) and undertook to re-establish the office of chairman of l'he county court after the first Monday in April, 1887, and to vest in these officers all the rights, privileges, jurisdiction, duties, and powers" pertaining to the officer as established and exercised by the county judge." If this legislation had merely 11amed the defendant, and by name and title removed him from l'he position, iind gi,•en it to another, it would not have more di· l'cctly accomplished the purpose actually effected, if this be valid. The constitution in fixing the terms of the jud.ires of inferior cout"ts elected by the people at eight years intended not only to make the judiciary independent, and thereby secure to the people the cor· responding consequent advantages of courts free from interference and control, and removed from all necessity of being subservient ro any power in the state, but intended also to prevent eonst<\nt and fre<!uent experimenting with county systems, than which no thing could be lllOl'C' injurious o.n vexatious to the public. It was intended when the legislature established an inferior court that it r..liould exist such a length of time as would give opportunity for ma· ture observation and appl'eciation of its benefits or disadvantages, and that the extent of its durability might discourage such changes as were not the result ~f most mature consideral'ion. Realizing that a change, if made, to constitute an inferior court, would fix that court in the system of eight years, a legislature would vroperly consider and maturely settle the question as to the propriety and desirability of such change or addition to our system; and, conscious of the impropriety and the hazard of leaving the judicial department of the government at the mercy and whim of each renewing legislature - itself elected for but two years, - 1,'he framers of the constitution wisely guarded against these evils by the section referred to. Prnperly construed and enforced it is effectual for that purpose. Disregarded or impaired by such inter· pretation as leaves it to exist in form, without force or substance, and we have all the evils and confusion of insecure, changing, and dependent courts, frequent and constant experimenting with sys- . Cems pro,•i<led in haste, tried in doubt, and abolished before their merits or demerits were understood. It would be a mortifying reflection that our organic law makers intended any such result in their advanced effort to make a government of three distinct independent departmem's; and still more humiliating, if we were driven to the conclusion that, while they did not intend it, they had been so weak or inapt, in the phraseology adopted, as to have accom· plished it. Neither the intent nor the language of the constitution employed to express it fortunately bears any such construction. When the courts whose judge is elected by the people of one or mol'e cou:itics in district or circuit is constii'uted by the legislatu1·e, and an election had, and the officer commissioned and qua. lified, it is not .in the power of the legislature to take from him the powers and emoluments of office during the term of eight: years by devolving these intact upon another, or otherwise. The court so corlstituted, and judge elected, in this instance, was under the authority t'o establish inferior courts already quoted. The incumbent of the office was a jitdicial officer of this state, CState v. Glenn, 7 Heisk, 486; St-ate v. l\IcKey, 8 Lea, 24) and is entitled to the protection of the constii.\ltion as such, against unconstitutional legislation to deprive him of his office. It is argued, hc.wevcr, that this act of removal is the same as the act abolishing a circuit court.', with all its powers :md juris· diction, from the coni::equences of which it has been held by this court .::i. circuit judge would ~ deprived of office. (State v. Campbell, {l\l.S.); Statf' v. Gaines, 2 Lea, 316). The act construed in these ca:;es was 01•e aholishing the Second circuit court of Shelby count'y, - the First a11d Second. As one .was enough to do the rusiP.ess of the county, or supposed to be, the legislature abolished this court, leaving the entire business of both courts to be done by the First; thereafter to be styled "The Circuit Court: of Shelby Count~·." It was held in the cases referred to that the legislature THB LAWYlmS JOURNAL August 31, 19ii4 might abolisl1 a cil'cuit court, held for a circuit or given Cerritory, and that when the court was abolished the office of judge thereof terminated. Without desiring to be understood as assenting to the conclusion reached in \'hose cases, (to. the reasoning of which we do not subscribe,) and which conclusions, we may remark in passing, were reached by a divided court, and against the weight of many opinions in other states, it is sufficient to say that the case here Jll'esents no such question as that determined l'here. /fhe act of 1875 construed had abolished the court. It did not leave the long struggle for many years previous to secure the independence of the judiciary and the tenure of office of the judges; hence the Consti~ution divides the powers of the state government into three distinct co-ordinate departments, carefully excluding any control of one over anothel'. If the legislature, by a special act, may remove one judge or one prosecuting attorney, it may remove any and all such officials in t'he state, and hence they would be at the mercy of any legislature whose enmity or i\lwill they may have incurred. ::~rtd:~;~eal!h~t:1 puo;::11·s~~~~;!:~.ic:i:nin r~~~!\:sne~ p~:~:g;~e i:~:c1~~ 2 . ID.; LEGISLATURE CANNOT TRANSFER THE ENTIRE CIRCUIT OF ONE JUDGE AND ATTACH IT TO ANOTHER CIRCUIT. - If the general assembly can transfer bodily the entire territory which constitutes the localit.'y in which the judge or prosecuting attorney may lawfully exercise the functions and duties of his office, and attach that territory t'o another circuit, then it can strip the incumbents of their respective offices as effectually as it is possible i'o do so by any words that can be used. It i,s, in fact, . as much a removal of the judge and prosecutor so deprived of all territory as would be a judgment of a supreme court removing either of them from his trust. J;: is not to be assumed that the framers of the constitution builded it so unwisely as to secure to a judge an office and its tenure, and the right to exercise all its prerogatives within a defined locality for a period of six years, if he so long behave well, and by the same organic law int:ended that the general assembly might remove him, at its will, from the exercise of all the privileges and duties pertaining thereto, without a hearing, without a conviction fo1· misconduct, under the guise of "from time to time dividing. the state intb judicial circuits." was left as it existed, except the change made in its official head. He was simply removed by the operation of the act, if it could take effect according to its terms, and another put in his place. I~ cannot be doubted that, if the legislature had said in the act of 1875, as in the act now being construed, that the office of the judge of the Second circuit court should be abolished, and that the court should remain, with like jurisdiction and duties, but that: these should be exercised ·by another officer, leaving the First circuit court also existing with ifs original jurisdiction and duties only, - that such would have been declared void. Nor can iC be doubted that if the legislature should now declare that the office of a given circuit is hereby abolished, leaving the circu·it and its court machine1·y as is, except the r£:mo\•al of the presiding jurige, such act: would be void. If this were not there, the legislature, at its next 6r any subsequent session, might pass a law setting out the circuits and chancery divisions by numbers, and declaring that the office of judge of each be abolished. It is no argument in answer to this to say that t'he legislature will not do this. It is net a question of what they will do that we are now considering; it is a question Of const~tutional power of what it can do. The question as to how such power is ~1·anted, or restn:.int imposed, cannot be determined on foe pro. bability or improbability of it's exercise. If it can abolish in this way the office of county judge, it can abolish the office of :my inferior judge, as all are alike protected or not protected by the clause of the constitution referred to. For the honor of the framers of the Consfitution, 'the best interests of our people, the independence of the judiciary, and the security and . order of our court system against rash and constant experiments of legislation, it offers us much satisfaction to give the constitution it's plain, rational, and unobscrue effect to invalidate legislation of this character, and be able to say that nothing as yet decided by our court stands as. a precedent in the way of our doing so. Rut if there were, it would afford us pleasure to overrule it. The decree is reversed, and bill dismissed with costs. II STATE, ex rel. GIBSON v. FRIEDLEY 21 L. R. A., 634 l. CONSTITUTIONAL LAW; THE LEGISLATURE CANNOT LEGISLATE OUT A JUDGE. - The Constitution of Indiana provides t'hat the circuit courts shall each consist of one judge, that the state shall, from time to time, be divided inCo judicial circuits, a judge for each circuit shall be elected by tho! ·.·oters thereof. He shall reside within his circuit and hold his office for a term of six years, if he so long behave well. The Constitut.fon likewise provides that there shall be elected, in each judicial circuit, by the voters thereof, a prosecuting attorney, who shall hold his office for three years. Held:At .seems beyond the power of the legislature to ll'gi'l11:1.te a judge and prosecuting attorney out of office, and if the legislature cannot by a direct act deprive them of their offices neither can it do so by the indirec;: mode of abolishing their ID.; LIMITATIONS OF THE LEGISLATIVE POWER ·ro DIVIDE THE S1'ATE INTO CIRCUITS.-The division of the state into judicial circuits may be exercised by the legislature, whP.re the act does not legislate judges and prosecutors out of thei1· respective oftices, but not otherwise. The general assembly may add to, or may l'ake from the territory constituting a circuit. It may create new circuits. It may abolish a circuit, / if the act be made to ta.ke effect at, !ln.d not before the expiration of the terms of office of the judge and prosecul'or of such office, as constituted, at the time of the act. The general assembly has the power, at its discretion, to divide a judicial circuit, at any t.~me, during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the restrictions that the Jc1i1;ii:Jature cannot, by any legislation, abridge the official terms of eii'her of such officers, nor deprive either of them of a judicial circuit, wherein he may serve out the constitutional term for which he was elected. DECISION DAILEY, J., delivered the opinion of the court: On the 28th day of August, 1893, i!he relato1· filed an information in the Jefferson circuit court against the appellee Friedley. By the information, it is averred that the relator is a judge of the fourth judicial circuit of t'lie state of Indiana, and that said appellee has usurped and intruded into said office and detains the same from him, although he has demanded possession thereof, and judgment is prayed that the relator may be awarded the possession of said office and all other proper relief. To this information the appellee, in the court: below, filed his answer, pleading especially the authority by virtue of which he holds the possession of said office as judge, as against the said t·elator. To this answer the appellant filed his demurrer, which was overruled, and exception being reserved to the decision of the court. There upon the appellanC filed his ·reply, to which the appellee demurred, the de-murrer being sustained and an exception reserved on the part of the appellant. The appellant standing by the reply and declining to plead further, judgment was rendered in favor Of the defendant, from which the relator prosecutes this appeal. The errors assigned circuit. The authors of our constitution well understood the in this courC are as follows: August 31, 195~ THE LAWYERS JOURNAL 397 1. 'l'hat the answer of the appellee, William T. l"riedley, in the court below, did not state facts su{ficient to constitute a cause of defense. 2. That the court below erred in ovenuling \'he demuner to said appelle's answer. 3. That the court below erred in sustaining lhe demurrer to appellant's reply. It is not disputed that, on the 4th day of March, 1893, Clark county alone consti\.'uted the fourth judicial circuit of the state of Indiana. Elliott's supp. par. 263. And the statute in force provided that the terms of court in said fourth judicial circuit should be held as follows: "On the first Monday in February, the third Monday in April, t.11e first Monday in September and the third Monday in November of each year," tb remain in session while the business of the court required. Acts 1891, p. 68. And at said date the county of Jefferson alone constituted the fifth judicial circuit of the state of Indiana, and it was provided by law that the terms of coun: in said fifth judicial circuit should be held as follows: "On the first Monday in January, the first Monday in April, the first Monday · in September. and the first Monday in November of each year;" said terms to continue in session as long as t.'he business of the court required. On the 4th day of March, 1893, the legislature of Indiana approved an act, which purports to abolish the fifth judicial Circuit and annex territory heretofore constituting t'he fifth judicial circuit, :md change of time of holding the courts in the countries of Clark and Jefferson. The act will be found in the Acts of 1893, on page 359, and is entitled "An act Defining \.'he Fourth Judicial Circuit of the ·State of Indiana, Fixing the Times of Holding Courts in Said Circuit, Prescribing the Limits of the Terms thereof, Providing for the Judge thereof, and Abolishing the Fifth Judicial Circuit of t'he St.ate of Indiana, and Repealing All Laws in Con· flict therewith." Ii will be observed that this title has no reference to or mention nf courts in the fifth judicial circuit. The first s~tion reads as follows: "Be it enact'ed by the general assembly of the state of Indiana, that on and after the first day of August, 1893, thC! fifth judicial circuit of the state of Indiana, which is now constituted of the county of Jefferson, shall be abolished." The second section provides t'hat on and after the first day of August, 1893, the counties of Clark and J efferson shall constitute the fourth judicial circuit of the state of Indiana, as the same is now constituted, shall be the judge of the fourth judicial circuit: of the state of Indiana, as thereafter constituted by this act, and until his successor is elected and qualified. This proceeding was instituted as a frienc\ly one, with a \'iew to testing l'he following question!>: l. What is the legal effect of the Act of March 4, 1893, in view of the !act that the act abolishes the appelle's entire circuit, the term for which he was elect.'ed and qualified not having eXJlired? 2. If the Act of March 4, 1893, is unconstitutional or inoperative in so far as it undertakes to abolish the term for which appellee was elected, viz., from October 22, 1891, to October 22, 1897, will the same still have i'he effect of changing the terms of com·t in the counties of Clark and Jefferson? At t.he time the Act of 1893 was approved, the relator, George H. D. Gibson, was the sole judge of the fourth judicial circuit, and the appellee, William T. Friedley, was the sole judge of the fifth judicial circui~. The appellee ha\'ing declined to recognize the validity of the last-mentioned act of the legislature upon the ground th.at the same is unconstitutional and void, or, at any rate, is inoperative, has conl'inued in possession of said office and in the discharge of the duties thereof in the county of Jefferson, and has declined to surrender the same to the relator. The first question that naturally arises is as to the alleged error of i.~e court on overruling the demurrer to appellee's answer; but as the questions attempted to be raised in all the as>.ignments of error are the same, they may be <lisposed of t.ogether. The answer, omitting the caption and purely formal parts, reads thus: "The said defendant: hereby enters his appearance to the above action, waives the issuing and service of llrocess herein, and for answer to said inf01mution and complaint, says that he, said defendant, is a bona fide resident .of Jefferson county, Indiana, and has been for more than thirty years last past; that he is now fifty-eight.' years old, and has been a voter and elector of said county aforesaid for the last thirty years or more, and during nil of said time he has been eligible to be voted for, and to be elected t.o the office of circuit judge of the fifth judicial circuit of the staCe of Indiana, and eligible to take and hold said office; that prior to the general election of November, 1884, the fifth judicial circuit was composed of the counties of Jefferson and Switzerland, and so continued until February 4, 1891, when Switzerland, Ohio, and Dearborn counties were erected into the fifth judicial circuit; ThaC on the 28th day of February,_ 1889, the county of Clark alone was created the fourth judicial circuit, and the relator was elected circuit judge of said fourtl] judicial circuit by the electors of Clark county alone, on the-day of November. 1892; that this defendant was duly and legally elected circuiC judge of the fifth judicial '7ircuit on the 4th day of November, 1884, for the term which was to commence on the 22nd day of October, 1885; that he was duly commissioned for said term, qualified and entered upon the discharge of the duties of said judge as aforesaid, and served the full term t'hereof; that he was again a candidate for election to said office of circuit judge of said fifth judicial circuit, at the general election held November, 1890, and had no opposition, and was the only pen:on voted for to fill said office; that there were cast 2894 votes in Jefferson county, and 2100 votes in Switzerland count)' for Judge of the fifth judicial circuit of Indiana, at said election, and he received all of said votes so cast, and was duly elected circuit judR"e of said fifth judicial circuit of Indiana, at said election, fur the term of six years, commencing October 22, 1891, and ending Odober 22, 1897; that said dPfendant accepted said ofCice and comn1ission, and took th(' oath of office, which is indorsed on his commission, ~.nd a certified cony thereof was forwarded to the secretary of state, and by !iim filed in his llffice. to wit, Nov .... , 1890; that at the expiration of defendant's first term, he enh:red upon the discharge of the duties 'Jf tlw office aforesaid, :lnd has tl'ied to discharge th<> duties of said trust to the best of his skill and ability; that: he accepted said office in good faith, and entered into the possession of it peace~bly and as a matter of right, and has not forfeited, surrendered, nor resignf'd the same, but is si.'ill acting in the capacity as aforesaid. And he says that, at all timPs, he has discharged said duties of cil'cuit judge as aforesaid, within the bonds of Jefferson county, Jndiana, since it alone has been created into a circuit, and that at no time has he al'tempted to exercise any of the duties of the judge of the Clark circuit court <..the fourth judicial circuit) since the relator has been jurlge as aforesaid. The defendant further avers that by an act appro\·ed March 4, 1893, the legislature attempted t'o abolish the fifth judicial circuit aforesaid, and consolidated Jef·ferson and Clark counties into the fourth judicial circuit, and pro,·idcd that thP judgC> of the fou1·til judiC'ial cil'<'uit Cof Clark county) should diS<.'harge the duties or circuit judge in t.he cit·cuit court attempted to be formed by said act, <to wit. in the C'lUnties of Jefferson 2nd Clark:) And they further provided that said act shoulrl. not go in\'o effect until the first day of August, 1893. The defendant avers that said legislatur~ uttel'iy failed to provide by said act any circuit or county for defendant, in which he could exercise the functions of said office of circuit judye, or in which he could discharge the duties thereof, and attempt'ed by said act to deprivC> him of hi!!! vested right to said office and its functions, in violation of the constitutional rights of the defendant, THE LA WYF.HS JOURNAL August Sl, 1964 which he had by virtue of said election, commission, and acceptance of said office and constitutional guarantees in reference thereto. The defendant says that: the sole and only cause of complaint which the relator has against the defendant is, that the defendant has exercised the duties of circuit judge within Jefferson county Conly) since the first day of August, 1893, claiming t'hat such duties in said court devolve upon him, relator, by virtue of said Act of March 4, 1893, and said actions of this defendant arc the same wrongful and unlawful acts of usurpation and intrusion into relat:or's office complaineci of, und none other. The defendant says t.hat tis to all other matters in said infonnation and complaint, not controverted in this f."H'llgrapll of U1e f!.nswer, hC' denies. He further says that sri.id relator is assuming that he is the proper person to discharge ihe duties of circuit judge within J efferson county, Indiana, and that defendant is not, and that by reason of said assumption, a cloud has been cast: upon the title of defendant to said office and the functions th<!rcof. Wherefore, he askerl that the relator take nothing by this action; that said Act of March 4, 1893, be declared and ruljudged void; that defendant's title to said office be quieted to him, and for all other proper relief as may be equitable and just." In order to determine t-he sufficiency or insufficiency of this answer, an inquiry is involved as to what is the legal t>ffect- of t he afore1'aid Act: of Mal'ch 4, 1893. It is conceded by thC appellant that., unless thP. said act was a valid and legal enactment, and became operative from and after the 1st of August, 1893, the relator's claim to the office of judge, in so far as Jefferson county is _ concerned, is not well founded. On the contrary, iC is conceded by the ~ppellee that his title to the office of judge of said court is based upon his previous election thereto, and the claim upon his part that the Act of March 4, 1893, is unconsi'itutional, or at least that the same is inoperative during the term for which he was elected. The judge and prosecuting attorney are constitutional officers. They are also designated in the organic law, and are neither stat'c nor county officers. The Constitution, (art. 3, Rev. Stat. 1881, par. 96) separates into three departments the powers of the state government as follows: legislative, executive, including ad· ministrative, and the judicial. Article 7 of the Const'itution, <Rev. Stat. 1881, par. 161,) vests the whole judicial power of the state in the supreme court, in circuit courts and in such other courts as the general assembly may es\'ablish. Section 168, Rev. Stat. 1881 , provides that the circuits courts shall each consist of one judge. Section 169, Rev. Stat. 1881, is as follows: "The state shall, from time to t ime, he divided into judicial circuits, and a judge for each circuit shall be elected by i'he voters thereof. He shall reside within his circuit, and shall hold his office for the term of six (6) years, if he so long behave well." Section 171, Rev. Stat. 1881, reads: "There shall be elected, ir. each judicial circuit, by the voters thereof, a prosecuting attorney, who shall hold his office for two (2) years.'' Section 172, Rev. Sta~ 1881, reads : "Any judge or prosecuting attorney who shall have been convicted of corruption or other high crime, may; on information in the name of the state, be removed from office by the supreme court!' Section 173 provides that the compensat:ion of the judges of the supreme court or circuit courts shall not be diminished during their continuance in office. The first section of the act in controversy abolishes in express terms the fifth judicial circuit of this state, which circuit: the section itself declares to he composed of the county of J efferson alone; ne-cessat'ily having a judge to preside over its courts, and a prosecuting attorney to 1 irosecute the pleas of tlte sl!ate therein. The other four sections are builded upon the validity of the first section. If :~:ti!~r:ta::c~ii:;w~: ~;i~~11~s~:~:I ~;~n:0~~~ ~:~~r a!~ ~~: ~e~:~ lature to legislate a judge and prosecuting attorney out of office, and if the legislature cannot by a direct act: deprive them of their offices, :neither can it do so by the indirect mode of abolishing their circuit. Section 17i, s11pra, which pr".lvides that judges and prC'-> fecuting attorneys may be removed from office by "conviction for conuption or other high crime," defines a plan which in itself involves a trial, a hearing by the accused, a day in court, and then the removal <'II information in the name of the state may be adjudged by the Supreme court. Thii; r.ection, however, providci;, t hat 1\ removal may be effected in such othe1· manner as m~y be: provided by law . But the state has thus far failed to pro,•ide any other manner than the constitutional mode. The legislature, under this latter clause, we think, has t he power t'o pm11ide for the removal of judges and prosecuting attorneys in some additional or other manner than that prescribed in this constitutional section. It could only do so, however, by enacting a gen· era! law applicable to all judges and. all prosecuting attorneys, and to be valid must provide for a trial, and muse give to the accused a day in court, an opportunity to be heard and make defense, or the act would be unconstitutional for the failure to give the accused such opportunity and right. This clause does not aut'hoxize the legislature to enact a law, removing the judge or prosecutor from office, at its will, without giving him a day in court, Sect.ion 169, i:upru, is the only authority that can be found on which to base the legislative right of remo\'al. Rut to give the first clause of that section such construction would nullify that part of \'he same section which provides that the judge of a circuit, when elected, shall hold his office for a term of six years, if he so long behave well. To eonstrup this section to mean ~hat the legiidature can, at its own will, abolish the circuit, and thus legislate the judge and prosecuting attorney out 'of office, in addition to being in direct conflict wit'h the other provisions of our organic Jaw, would also put the official life of every judge and every prosecuting attorney ·of the state at the mercy of the legislature. It would subject the judiciary to the legislative power, and ui.'terly destroy all judicial independence, Judges and prnsecutors would be at the whim or ~~c~~i~1~: ~~~h::at~;s 0~~d c::~~;::~~:ti::1/nu!~:~:t!:~urt~eof10:f; struggle for many years previous to secure the independence of the judiciary and the tenure of office of the judges; hence section 90, supra, was enacted, dividing the powers of the state govern· ment into three distinct co-ordinat'e departments, carefully excluding a ny control of one over another. If the legislature, by a speci1\l act, may remove one judge or one prosecuting attorney, it may re- , move any nnd all such officials in the state, and hence they would be at i.'he mercy of any legislature whose enmity or ill-will they may have incuned. The office of circuit judge, as well as prosecuting attorney is a public trust, committed by the public to an individual the duties and functions of which he is bound to perform for the benefit of the public, and enti\'les him to exercise all the duties and functions of the office, and to take the fees and emoluments belor.ging to it. 2 Bovier, Law. Diet. title, Office. "Officers are required to exercise the functions which belong to their respective offices. The neglect t9 do so m2y in some r,aso.;s subjects the offender to an indictment. 1 Yeates, 519." There cnn be no such thing us a11 office without responsive duties and functions to be performed by the officer. It is not the mere riRM to receive an annu~ compensation without the exercise of any corresponding duties. '1f the genernl assembly can transfer bodily the entire l'erritory \i1hich constitutes the locality in which the judge or prosecuting attorney may lawfully exe:rcisc t he fnncti0ns und duties of his office, and attach t.hat territory to another d rcuit, then iC can strip the incumbents of their respective offices as effectually as it is possible to so do by any words that can be used. It is, in fact, as much a removal of t.he judge and prosecutor so deprived of all ~erritory as would be a. judgment of a supreme court remo\•ing either of them from his tl'ust. IC is not to be assumed that the framers of t.he constitution builded it so unwisely as to secure to a judge an office and its tenure, and the right t'o exercise all its prl;'rogatives within a defined locality for a perifld of six years, if he so long behave well, and by the same organic law intended that the general assembly might remove him, at its will, from the exercise of all t'he privileges and dtrties pertaining thereto, without a hearing, without a conviction for misconduct, under tho August 31, 1954 THB LA WYF.RS JOURNAL 899 guise or "from time to time dividing the state into judicial circuits." :s<ich division may be exercised by the legislature, where the ac~ does not legislate judges and prosecutors out o( their respective offices, but not otherwise. The general assembly may add to, or may take from the territory constituting a circuit. It may abolish a circuit, if the act be made to Cake effect at, and not before, the expiration of the terms of office of the judge and prosecutor of such office, as constituted, at the time of the act. This act abolishes the circuit on und after the first day of August, 1893, and therP.fore must be effecCual to abolish the circuit and the offices on the day named, or not at all. As stated, the ::ifficf:s of jurlge and prosecuting attorney of the fifth judicial circuit expire on the 22nd day of October, 1897, and to abolish the circuit, iC must be by law to take effect on the date last named. These positi• )ns '-TC in line with the authorities. 'l'he judges and prosecuting attorneys are noC state, county, or township officers. They are constitutional officers. State \', Tucker, 46 Ind. 359. The case of State v. Noble, UR Ind. 350, 4 L. R. A. 101, fully establishes the independence. of ~he judiciary. 'l'he legislatui·e cannot extend or abridge the term of an office. the tenure of which is fixed by the cons~itution. Howard v. Stnte. 10 Ind. 99, In State v. J0Jmst011, 101 Ind. 223, which was also an infonnation in the nature of a quo warranto filed by the appellant's relater, Howard, against the appellee, it is decided by the court that the 2'eneral assembly has t11e )lower, at its discretion, to divide a judicial circuit, at any time, during the terms of office of the judge and prosecuting attorney of such circuit, subject only to the re~tric­ tions that the le2'islai'ure cannot, by any legislation, abridge the official terms of either of such officers, nor deprive either of them of ' a judicial circuit. wherein he may serve out the constitutional te1·m for which he was _ elected. This ruling is upon the theory that: it' is declared and ordained otherwise in section 9 of article 7 Of the State Constitution, section 169, s-u1>ra. Jn Hoke v. Henderson (N.C.) 25 Am, Dec, 704, 1wte 1, it is said : "h: is without the power of the legislature to indirectly abolish the office by adding the circuit of the incumbent to another then existing. and this even if it be within the power of the legislature to create new or alter old circui~. for that powe1· must be so exercised as to leave the incumbent his office." That the framel'S of the constitution intended that there should be no abridgment of t'he term of office as fixed by fundamental law, is indicated also by section 176. Rev. Stat. 1881, as follows: "No person elected to any judicial office shall, durin~ the term for which he shall have been elected, be elitrible to any office of trust or profit under the state other than a judicial office." This section appears, in t'erms, to guarantee! to a judicial officer his term as fixed by the constitution. People v. Bull. 46 N, Y. 57 Am. Rep. 302; People v. McKinney, 52 N. Y. 374, 378. "But if the com;titution provides for the duration of an office, l'he legislature has no ·power, e\'en for the purpose of changing the beginning of the term. to alter its duration. Where the constitution has created an office and fixed its term, and has also declared the grounds and mode for removal of an incumbent be!ore the expiration of his term, the legislat'ure has no power to remove or suspend the officer for any other reason or in any other mode." 7 Lawson, Rights, Rem. & Pr. p. 5970, par. 3797. Judges of circuit courts can anly be removed from office by the ordained constitutional provisions. Lowe v. Com. 3 Met!. (Ky.) 2~7. The constitutional provision in respect to tl11! terms and t1:nure Cit office (except as to dul'ation or length of terms) and commissions cf judges and the power of the legislat.'urr, to create new judiciai districts are substantially the same in Pel111sylvania ns in this state. The constitutional provision in the former state wus construed in Com. v. Gamble, 52 Pa. 343. In the opinion, People vs_. Dubois, 23 Ill. 547, is cited, in which the supreme court of lllinois holds that although the creat.'ion of new judicial districts was expressly authorized by the constitution, yet no new districts could be created by which the judge in commission could be deprived of a right to exercise 1..'he functions of his office during the continuance of his commission. The court says: "The question is, can the legislature ex11el the circuit judge from his office hy creating a new district taking from him the territory which constituted his district? The bare reading of the constitution must convince every one that it was intended to prohibit such a proceeding." See also State v. Messmore, 14 Wis. 163. In Com'. v, Gamble, supra, the following propositions are established: "A judge having been elected and commissioned, is by the constitution to continue in office ten years, if he shall beha\•e himself well; its duration is assured to him, subject to be determined only by death, resignation, 01· breach of condition. Such breach cannot be dcCermined by the legislature. but only on trial by the senatfo. on impeachment, or, in case the breach amounted ~o total dic;qualification, perhaps by address of two thirds of each branch of the legislature. A legislative act which empinges on the tenure of judgeit is invalid. The power and jurisdiction of a judge const:itute the office, are of the essence of it, and inseparable from it. The grant of power is incapv.ble of any limitation but that attached to it. The aggregate amount of the duties of a judge in any district may be diminished by the division of his district. Constit:utional grants imply a prohibition of any limit-ation or restriction by legislative autho1·ity." In the last-named case, the reasoning is so clear and strong thal we copy the following extracts therefrom: "The Pennsylvania ' legislature established t.1ie twenty·ninth judicial district by the Act of the 28th o( February, 1868, under which James Gamble was elected and commissioned president judge of the district. By an act passed March 16, 1869, the former act· was repealed and t.he district was abolished The powers, authority, and ju. risdiction of an office are insepara'ble from il:. The legislature may diminish the aggregate amount of the duties Of ·the judge but must leave the authority· and jurisdiction pertaining to the office intact . . I see not how, for anot.'her reason, that the commission of a president judge could exist after the total abolition of his dis· trict. Every judge is elected in and for a district, defined and fixed ' by law, and then he is commissioned, and is 'required by the consti· tution to reside within the district. It seems to me it would be a logical conclusion to hold that, if no district exists to which the judge would be bound to reside, that there -could not ·exist a commission for any 1rnrpose. This I think would be the inevitable deduction from such premises, and it: would therefore follow, that if the legislature could blot out a district, it could limit the duration of Uie commission grnnted to a less period than ten years, if it might so choose. That it: cannot shorten the tenure of the office of a judge, as fixed by the constitution, is certain and this ought to establish tl1ut it -can pisH no act to do by indirection that which may not be doiie direcCly." "Notwithstanding the constitutional provisions i-efet1·ed to, the · legislature- has not only attempted, by the act of the assembly in question, to· expel Judge Gamble from his district, but, in fact, has appointed other judges t'o hold the courts therein, who were heither elected nor commissioned for that purpose. • The legislature hac, undeniably, by this act of assembly, assumed the power of appojntment and removal of the judge ~or the dist'rict. The act displaces Jud,qe Gamble as the president judge, and appoints Judge White and his law associate to hold the court therein. If such a thing can be done in one district, it can be done in all, anQ. thus not only would the independence of the judiciary be destroyed, but the judiciary as a coordinai'e branch of the gvvernment be essentially snnihilated." Applying this reasoning and these fundamental principles to the case under consideration we do not see how the constitutionality of the Acl! of March 4, 1893, can be upheld, as much as we may desire to do so, it being in the interest of economy and retrenchment in public expeditures. But it is enough for this case to say that it was not in force to abolish the fifi'h judicial circuit, not being abolished by the act, is not attached to and made a part of the fourth judicial circuit. The provisions' of the Act of March 4, 1898, changing the t'E!rius of court and the times of holding the 400 THF. LAWYERS JOURN.AL August 31, 1954 same in the counties of Clark and Jeffttson are so interwoven with and dependent upon the other provisions therein that they do not have the effect of changing the terms of court or the t.'imes of holding the same, as provided by law prior to March 4, 1893. In other words, the terms of court and times of holding the same as fixed by the act in question were not intended for the counties of Clark and Jefferson as constituting separate judicial circuits; but were intended for them when both these counties constituted the fourt'h judicial circuit as provided by the act, Judgment affirmed. Ill STATE V. MABRY Supreme Court of Tennessee, Nov. 20, 1943 (178 s.w. 2d 379) l. CONSTITUTIONAL LAW; ACT PURPORTING TO ABOLISH OFFICE OF COUNTY JUDGE INVALID. - Private Act purporl~ng to abolish the office of County Judge by repealing the private act creatin'g the court and undertaking to create and establish a new county court of Clay County and naming a chairman thereof was invalid as an att'empt to defe~t the right of the judge thereto elected and holding office in accordance with the existing law. ~. IBID.; A JUDGE CANNOT BF. LEGISLATED OUT OF .OFFICE. - We cannot close our eyes to the palpable effort to legislate the relater Bailey out of office and substiCute in his place and stead another person who is designated in another private act to pc,rform same official duties. Chapter 53 of the Private Acts of 1943 purports to abolish t.'he office of County Judge by repealing the act that created it. Eight days aftet the repealing act was approved by the Governor the Re-Districting Act was passed in which defendant: Mabry was named as "Chairman of the County Court." The duties of this office were identical with that of coWlty judge under the act which was sought to 'be repealed. The jurisdiction was the same in all respect!. ~· · IBID.; LEGISLATtJRE CANNOT REMOVE A JUDGE BY ABOLISHING THE OFFICE. - The legislature canntit remove a county judge by abolishing the office and devolving the duties upon a chairman of the county court. 4. IBID.; DISTINCTION BETWEEN STATUTE INEFFECTIVE TO REMOVE A JUDGE FROM OFFICE AND STATUTES THAT ACCOMPLISH REMOVAL BY ABOLISHING THE TRIBUNAL. - The distinction between statutes ineffective to remove a judge from office, and statul'es that accomplish removal by abolishing the tribunal and transferring its business to another was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 S.W. 134, 1_ 46, 46 L.R.A. 567. DECISION NEIL, Justice. The rf!!ator J, B. Bailey was re~ularly elected to the office of County Judge of Clay County at the general elect:ion in August, 1942, for a term of eight years. A ce11ificatc of election was accordingly issued to him by the County Election Commissioners. He qualified by giving bond and taking the oath of office. No qu~stion is made as to his qualifications. The office t-0 which re· lator was elected and now holds was created by the General Assembly of this state under Chapter 145 of the Private Acts of 1903. The act prescribed the duties and the jurisdiction of said count'y judge and fixed the salary of the incumbent. It appears that the term of office of relator will not expire until September 1, 1950. The Legislature in January, 1943, passed an act, being Chapter 53 of the Private Acts of 1943, which purports to repeal Chapte1· 145 of the Private Acts of 1903 and to abolish the office of County Judge ·or Clay Comity. At the same session of said Legislatur~ there was enacted Chapter 283 of the Private Acts of 1943, called the Re-Dist'ricting Act, which undertook to abolish the Count.y Court of Clay County and to create and establish a new County Court for said county. The act named the defendant C. J. Mabry as chainnan of said court. The original bill in this case was filed by the relater attacking the const'itutionality of the 1943 act ·upon the ground that said act was unconstitutional and void as it violated certain provisions of the Com;titution of this state. The original bill was filed against defendant C. J. Mabry. The prayers of the bill were that Chapt:er 53 of the Private Acts of 1943 be deela1·ed unconstitutional and void; that an injunction be immediately issued enjoining the defendant from acting or interfering with complainant: in the performance of his official duties as County Judge of said county; that at the hearing the injunction be made perpetual. The defendant filed a demunct· to the bill upon the following grounds: U) that: chapter 53 of the Private Acts of 1943 was a valid and constitutional act and abolished the office of County Judge, now held by the complainant; (2) that the Re·Districting Act, Chapter 283 of the Private Acts of 1943, abolished t.'he County Court of Clay County and created an established a new county cour t for said county, and named the defendant as chairman of , said court in the bill; and that therefore t'he office of county judge was abolished and a new office of County Chairman was created: <3) that because of the two acts, viz., chapter 53 and chapter 283, the complainant had no right to maintain t'his suit and no right to restrain the defendant from acting as County Chairman of Clay County. The cause was heard before the Chancellor, at chambers, by agreement of the parties, upon the demurrer of defendant and mot.'ion to hear same and dissolve the injunction therefore issued upon the fiat of the Chancellor. The Chancellor took the case under advisement and shortly thereafter overruled all the grounds of the . demurrer, holding that chapter 53 of the Private Acts of 1948 was unconstitutfonal and void, and declined to dissolve the injunction. He granted a discretionary appeal from the decree. The defendant duly perfected his appeal and has assigned the following errors: (1) The Chancellor erred in overruling the first ground of defendant's demurrer, which is as follows: " The bill shows on its face that Chapter 53 of the Private Acts of Tennessee of 1943, repealing Chapt'er 145 of the Private Acts of Tennessee of 1903, is a valid and constitutional enactment, and that the effect of said chapter 53 of the Priv"ate Acts of 1943 is to abolish the office of County Judge in Clay County, so t.'hat it results that t.he relater can no longer hold said office which is now non-existent." <2> The chancellor erred in overruling the second ground of the defendant's demuner, which is as follows: "The bill shows on its face that Chapter 283 of the PrivaCe Acts of 1943, which redistricted Clay County, created and established a new County Court in Clay County, named a Count'y Chairman to preside over said County Court to perform and discharge the duties imposed upon a County Chairman by the general law until the next regular meeting of ~he County Court, is a valid and constitn· i'ional enactment repealing by its express terms all laws or parts of Jaws in conflict therewith; and also 1·epealing by implication the Act creating the office of County Judge of Clay County, Tennessee; so that it results that the relater under the t'erms 11.ml provisions of said Act is no longer the County Judge of Clay County in that a new County Court for Clay County has been created t:o be presided over by a County Chairman." (3) The Chancellor erred in overruling· the third ground "If Augu!'t 31, l95"4 THE LAWYERS JOURNAL .;oJ the defendant's demurrer, which is as follows: "That in view of the foregoing and the allegations of the bill incorporating by reference the several private Acts of Tennessee in question, defondant has no right to maintain this suit and no right to i·estrain the defendant from performing his duties t1s County Chairman of Clay County, Tennessee." (4) The Chancellor erred in holding that chapter 53 of the Private Acts of 1943 is unconsi'itutional and void. (5) The Chancellor erred in holding that the office of County Judge of Clay County, Tennessee was abolished by Chapter 283 of Pdvate Acts of 1943, and that the defendant has no authority or right to act as Chairman of \.'he County Court of Clay County under the terms and provisions of said act. (6) The Chancellor erred in overruling the defendant's de· murrer and in O\'erru\ing and disallowing the dde11dant's motion to dissolve the writ of injunction. It appears from the record that Chap1.!ei· 53 of the Private Acts of 1948 was passed on January 20, 1943, and approved by the Governor on January 27, 1943; that the Re-Districting Act. Chapter 283 of the Private Acts of 1943, was passed on .February 8 1943 The latter act abolished all 1.'.he civil districts of Clay County·_ four in number - and set up and established eight civil districts in the country. The act named the justices of l'he peace and also the constables for each civil district. Now the only pOr· tion of this act which directly affects the relater in i'he discharge of his duties as county judge is Section 5 of the act, which named C. J. Mabry to serve as Chairman of the County Court until the next regular meei.~ing of the Quarterly County Court, his salary being fixed at $100.00 per month. The complainant does not attack the constitutionality of the aforesaid Re-Districting Act. It is in· sisted, however, thae the defendant Mabry has no legal authority to act as a Chairman of the County Court, "or in any way to in· terfere with him in the performance of his official duties as County Judge." It is the contention of counsel for dependant Mabry that! the Re-Districting Act repeals all laws and parts of laws in con~ flict therewith and abolishes the existing County Court of Clay County and establishes an entirely new County Comt of said coun· ty. Able counsel for the defendant have sought to make a distinc· tion between the instant case and other cases decided by this Court, particularly State v. Leonard, 86 Tenn. 485, 7 S.W. 453, Stat'e ex rel. v. Link, 172 Tenn. 258, 111 S.W. 2d 1024, and State ex rel. v. Lindsay, 103 Tenn. 625·636, 53 S.W. 950. Passing to the consideration of the question now before us, we act that created it. Eight days after the i·cpealing act was approved by the Governor the Re-Districting Aci! was passed in which defendant Mabry was named as "Chairman of the County Court." The duties of this office were identical with that of county judge under the act which sought to be repealed. The jurisdict'ion was the same in all respects. We think the case of State v. Link, 172 Tenn. 258, 262, 111 S.W. 2d 1024, 1025, is directly in point and controlling in the instant case. In that case the office of Couni'y Judge of Stewart County was abolished by the Private Acts of 1937, c. 643. In a bill brought to test the constil'utionality of the act it was alleged that it was a valid act and "it became the duty of the Quart!erly Court under the general statute to elect a chair· man of the County Court to succeed the defendant." This act was held to be invalid. The Court, speaking through Mr. Justice Cook, says: "Public office cannot thus be transferred by statute from one official to anol'her. Acklen v. Thompson, 122 Tenn. 43, 55, 126 S.W. 730, 135 Am. St. Rep. 851; State ex rel. v. Morris, 136 Tenn. 157, 161, 189 s.w. 67. "The Legislature cannot remove a county judge by abolishing the office and devolving the duties upon a chairman of the county court. State v. Leonard, 86 Tenn. 485, 7 S.W. 453. The distinction between statutes ineffective to i·emove a judge from office, and transferring its business to another, was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 S.W. 134, 1,46, 46 L.R.A. 567." Now it is clearly to he seen t'hat the only difference between the Link case and the instant case is that the Legislature abolished Link's office and left it to the Quarterly County Court to elect his successor under t'he general law, whereas, in the instant case, the Legislature abolished relator Bailey's office and in a separate act created eight civil districts in Clay County instead of the four old districts, named the justices of the peace and constables for said district's, and C. J. Mabry, who was to take over the duties of County Judge. We fail to see any distinction whatever that merits serious consideration. Adhering as we do to our former decisions, we hold that Chapter 53 of the Private Acts of 1943 is unconstit\ttional and void. The assignments of error are overruled and the decree of the Chan· cellor is affirmed. IV STATE EX REL. V. LINK Supreme Court of Tenn. Jan. 15, 1938 hold that the County Court is a constitul'ional court and cannot be abolished by legislative enactment. Prescott v. Duncan, 126 Tenn. l. 106, 126, 127, 148 S.W. 229. This Court has clearly made a dis· tinction between Chancellors, Circuit Judges, and County Jurlg{:s, holding that! in the interest of economy the two former may be abolished, but that the office of County Judge cannot be abolished during the term of the office. See the Judges' Cases, 102 ~Pnn . 111 s.w. 2d 1024 CONSTITIONAL LAW; ABOLITION OF COliRT OPEHATES TO VACATE OFFICE OF JUDGE. - The power to create the office of county judges or judge of other inferior courts was conferred on General Assembly by constitutional provision which authorized establishment of "inferior courts." Terms of all judges, including judges of inferior courts, are fixed by the Consl'itution at 8 years, and their tenure cannot be impaired except where Legislature finds it necessary to redistribute business of courts for purposes of economy and efficiency, and, when such rearrangement results in abolition of the tribunal, it operate's to vacate office of judge who presided over such tribunal. 509, 543, 545, 53 s.w. 134. In the Redistricting Cases, 111 Tenn. 234, 235, 80 S.\V. 750, the court used the following language : "The constitul!iona\ term of office, where there can be only one incumbent in a county, as in the case of the county register, the circuit court clerk, the sheriff and the county judge, cannot be 2. shortened, nor can the incumbent of such constil\ttional offices be deprived of his office, during his term, by the legislature. The sheriff can not be deprived of a substantial part of his powers and functions.'' AN ACT WHICH ABOLISHED TRE OFFICE OF JUDGE BUT DID NOT ABOLISH COURT OVER WHICH THE JUDGF. PRESIDED IS UNCONSTITUTIONAL.~ Where county judge for S~wart· county was elected and commissioned according to law, an act which abolished the office and repealed act which created it, but which did not abolish co.urt over which judge presided, was an unconstitutional exercise of legislative power. DE CJ SI ON We cannot close our eyes to the pal1Jable effort to legi!-:llltc t'he rehtor Bailey out of office and substitute in his r-l'lce and stead another person who is designated in another private act to perfonu the same official d'J\'ies. Chapter 53 of the Private Acts of 1943 purports to abolish the office of County Judge by t·epealing the COOK, Justice. 40'.? THE LAWYERS JOURNAL August 31, 1964 This appeal involves the validity of a private act of 1937, designed to abolish the office of count.'y judge in Stewart county. By ch=ipter 3, Private Acts of 1921, th~ office of county judge was created for Stewart county. In arldition to the ordinary duties of chairmnn of the county court, the act, section 6, subd. 3 as amended by chapter 454, Private Acts of l!J33. clothed the county judge with the authority and jurisdiction of a justice of the peace and with authorii'y to grant writs of habeas corpus, injunctions, and attachments. At the August election, 1934, the defendant, N. A. Link, was elected and subsequently commissioned county judge for the term of eight years and was exercising the powers and performing the dut'ies of the office when the Legislature passed chapter 643, Pri· vate Acts of 1937, under a caption which reads: "An Act to abolish the Office of County Judge of Stewart County, Tennessee, and to repeal Chapter Number Three of the Private Acts of \he General Assembly of Tennessee for 1921, passed January 12, 1921, and approved January 12, 1921, entitled 'An Act tb create the Office of County Judge of Stewart County, to iix his Salary and to define his Duties and Jurisdiction'." Section 1 under this caJltion declared the office abolished, nnd section 2, that the Act of 1921 was repealed. After passage of the act, the defendant refused to vacate \'he office. and the bill, in the nature of quo warranto, was filed to remove him. It was alleged in the bill that the act is constiL'utional and effective to remove the defendant from office, and that it be· came the duty of the quarterly court, under gt>neral st!atutes, to elect a chairman of the count~· C'OUrt to succeed the defendant. But, it is said in the bill that the justices of \'he peace of the county refused to eled a chairman by a vote of nineteen to two and that defendant continued to hold \.!he office and exercise the powers conferred by the Act of 1921. The prayer of the bill was for injunction to restrain defendant from acting as judge, and for a declaration that the Act of 1937 j9 valid. The chancellor . was of the opinion \'.hat the act is unconstitu· tional and dismissed the bill upon defendant's demurrer. Relators appealed and assigned errors, through which it is insisted that the act was a valid exercise of legislative power and that the defendant should be enjoined from acting as county judge. The rnlat'ors rely upon cases which sustain local legislation affecting counties in their governmental capacity, as in Haggard v. Gallien, 157 Tfmn. 269, 8 S.W. 2d. 364, and Rolland v. Parker, 159 Tenn. 306, 17 S.W. 2d 92G; and upon c:i ses which sustain acts which abolish state anJ county offices, as in State ex rel. \·. Morris, 136 Tenn., 1 57, 189 S.W. 67, anci Houf;c , .. C:r:>vt'lin~, 147 T('nn. 589, 2.iO S.W. 357. The principles underlying those cases are not applicable. The power to creat'(' the office of CQunty judge or judge of other in· forior courts was C ( nfe.rred upon the general assembly by article 6, section 1, of the Constil.ution, authorizing the establishment of in· ferior courts. County courts pr~sided over by a county judge are inferior courts within t'he meaning of t-he Constitution. State v. Maloney, 92 Tenn. 62, 20 S.W. 419; Scott v. Nashville Bridge Co., 143 Tenn. 86 122, 223 S.W. 844 ; Whitchc:.id v. Clark, ]41; Ti!nn. 660, 670, 244. s.w. 479. Terms of all judges, including judges of inferior courts, arc fixed by the Constitution, article 6, sec. 4, at eight years, and their tenure cannot be impaired except where the Legislature may find it' necessary to redistribute the business of the courts for purposes of economy and efficiency. When in such instances the rearrange-ment results in the abolition of the tribunal, it operates to vacate the office of the judge who presided over the abolished tribunal. The county court of Siewart county, over which the defendant presided as county judge, was not abolished, but the act if given effect would remove the judge from office, deprive him of its emolu. ments, leave the court in existence, and transfer its jurisdict'ion tf) u ('hairmun of t.he county court tu be elected from year to yeal' under Code, sec. 10202. That is to say, the office would be transferred from the county judge to a chairman of the county court, another county judge unde1· a different name. Code, secs. 763, 10202 ct seq.; Johnson v. Brice, 112 Tenn. 59, 68, 83 S.W. 791; Malone v. Williams, 118 Tenn. 390, 479 103 S.W. 798, 121 Am. St. Rep. 1002 ; Murray v. State, 115 Tenn. 303, 89 S.W. 101, 5 A:n. Cas. 687; St'ate ex rel. v. Howard, 139 Tenn. 73, 77, 201 S.W. 139. Public office cannot thus be transferred by statute from one office to another. Acklen v. Thompson, 122 Tenn. 43, 55, 126 S. W. 130, 135 Am. St. Rep. 851; State ex rel. v. Morris, 136 Tenn. 157, 161, 189 s.w. 67. The Legislature cannot l·emove a county judge by abolishing the office and devolving the duties upon a chairman of \'he county courts. State v. Leonard, 86 Tenn. 485, 7 S.W. 453. The distinction between statutes ineffective to remove a judge from office, and sta· tutes that accomplish removal by abolishing t~e tribunal and transferring its business to another, was made clear by Mr. Justice Wilkes in Judges' Cases, 102 Tenn. 509, 560, 53 $.W. 134, 146, 46 L.R.A. 567. After referl'ing to the opinion in State \'. Leonard, supra, and quoting from it, the opinion prnceeds: "The Leonard Cai>e applies only to a county judge, where only one can exisC in a count:,<, and where his functions and duties can· not be devolved upon another, and is different from cases involving circuit, chancery, or other judicial officers, who preside over a system of courts common to the whole state. ln the former class of cases the jurisdiction and business of the abolished court must necessarily go to a judge created especially by t'he legislature to receive them. In the latter class judges are judges for the state at large, and the transfer is not of jurisdiction but of business, not to a judge specially created, but t'o a judge already elected by the people, and clothed with authority and jurisdiction to act.'' The decree of the chancellor is without error. AFFIRMED. v IN RE OPINION OF THE JUSTICES Supreme Judicial Court of Massachusetts, April 15, 1930 (271 Mass. 575, 171 N.E. 237> CONSTITUTIONAL LAW; TENURE OF OFFICE DURING GOOD BEHAVIOR. - The tenure of office during good behavior imports not only !'he length of term but also the exi'ent of service. When a constitution has made definite provision covering a particular subject, that provision is exclusive and final. It must be accepted um. '<l.uivocally. It can neit'her be abridged nor increased b)' any or all of the depntments of the government. OP I NION As a 1iart of t.his comprehensive grant of power the General Court may, according to its conceptions of the requirements of i'he general welfare, regulate and limit and change and transfer from one to another the civil and criminal jurisdiction of those courts. It may abolish existing courts, except i'he Supreme Judicial Court, and erect others in their place and in its wisdom distribute among them jurisdiction of all justiciable matters subordinate to the one court established by the Constitution. It may settle and increase or diminish the salaries of the judges of courts so erected. The amplitude of this legislative control over such courts, however, is bounded by other provif'lions of the Constitution. Commonwealth v. Leach, 246 Mass 464, 470-471, 141 N.E. 801, 317, 128 N.E. 429; Opinion of the Justices, 8 Cush. 584. Commonwealth v. Hawkes, 123 Mass. 525, 528-529. This granC of power to the General Court to erect and constitute courts, broad as it is: does not include the tenure of the judges of such courts. That is fixed by the Consti. tution itself. It is provided by pare 2, c. 3, art. 1 of the Constitu· tion that "all judicial officers, duly appointed, commissioned and August 31, 1954 THE LAWYERS JOURNAL SUPREME COURT DECICIONS Ri:uil Surety 4t lniiurancc Co., Plab1Uff-Appellee, vs. Marciano de fa Paz, et al., Defendanfa-Apµella11t.<; and Appellees. lllarciano de lrz P•1z 1.rnd D<Jminuo /,eon<•r, Defet;d1mts-Avpellm1ti;, G. R. No. L-6463, May 26, 1954, Paras, C.J. .:i. ID.; lD.; IO.; PUBLIC INSTRUMENT; DA1'E IN BODY IS DATE OF ACKNOWLEDGMENT BY REFERENCE. - Where an instrume1~t is dated in the body, and said date is referred to in the notarial acknowledgment, the. dat'e of the latter is deemed to be the date appearing in the body of the instrument. 1. ORLIGATIONS AND CONTP.ACTS; PREFERENCE OF CREDITS; INSOLVENCY. - Wh~rc thf' debtor is msolvcnt, article lL Hl24 of thf' old Civil Code is not applicable, since it iF. considered repealed insofar as it referred to cases of bankruptcy ID.; ID.; ID.; CREDIT EVIDENCED BY PUBLIC INSTRUMENT NEED NOT BE REDUCED TO JUDGMENT. - A credi~ evidenced by a pub\.ic instrument, though not reduced to a judgment, is entitled to priority, because article 1924 of the Civil Code distinguishes credits evidenced by a final judgment. and estates of deceased persons. 2. ID.; ID.; LAW ON ATTACHMENT AND LAW ON PREFERENCE OF CREDITS APPLIED TOGETHER. - The law on attachment and the law on preference 'lf credits under 7 · article 1924 o{ the Civil Code had heretofore berm applied· hand ID.; ID.; ID.: ID.: PREFERENCE UNDER PUBLIC INSTRUMENT NOT LOST BY REDUCTION THEREOF INTO JUDGMENT. - The preference under :i public instrument is not los\' by the mere fact that the credit ,is made the subject of a subsequent judicial action and judgment. in hand. 3. ID.; ID.; ID.; AMUSEMENT 'fAXES, SUPERIOR LIEN.The claim of t'he Colleetor of Jnternal Revenue for amusement taxes on the theater insured, constitutes a lien sure.riot to all 8 · C1ther charges or liens, not only on the theater itself but: also upon all property rights therein, including the insurance proceeds. ID.; ID.; ID.; FINAL JUDGMENT; ABSENCE OF STAY OF EXECUTION. - A judgment upon which execution has not been staytd under the provisirms of section 14 of Act 190, is enlit'led to the preference prc.vided for in article lfl24 of the Ci\'il r.ode. 4. ID.; ID.; ORDER OF PREFERENC~ UNDER Al~TICLE 1924 OF CIVIL CODE. - The order of preference under ar- fl. tide 1924, 1mragraph 3, of the Civil Code, is, first, in favor ID.; ID.; ID.; PHEFERENCE DUE TO NOTICE OF ATTACHMEN'l' OR GARNISHMENT. - A credit ma.de the subject of notice of attnchm.ent or garnishment is entit!('d t9 preferenee as of the dat'e of said notice, subjeet only to the priority of rredits provided for by article 1924 of the old Civil Code. of credits evidenced by a puhlic inst:rument and, secondly, in favor of credits evidenced by a final judgmen~, should they have been the subject of litigatil•U, the preference among the two kinds of credits being determined by priority of dat'es, sworn, shall hold th~ir offices during good behavior, excepting such concerning whom there is different provision made in this constitution: provided nevertheless, the governor, with consent: of the council, may remove them upon the address of both houses of the legislature; ··and [according to Amendment 58 1·atified and adopted No\'ember 5, 1918) provided also that the governor, with the consent: of the council, may afte1· due notice and hei-.rini; retire them because of advanced age or mental or physical disability. Such retirement shall be subject to any provisions made by law as to pensions or allowances 1iayable to such officers upon their vohmtary retirement." The exception mentioned relates to justices of the peace and has no bearing unon the present question. The tenul'e of office of judges as thus settled by the Constitution is imperative and final. It ·cannot be enlarged, limited, modified, altered or in any way affected by the General Court. In conformity iO this provision of the Constitution the commissions of judges of the courts named in the prnposed bill state in substa11ce that the appointee is to hold said trust during his good behavior therein unless sooner removed therefrom in the manner prnvide1l in the Constit'ulion. The provision as to the tenure of all judges of the United States, both of the SUJ!l"eme and of the inferior cou1·ts, in art. 3, sec. 1 of the Constitution of the Unil:ed States, is in the same words as those in e. 3, art. I of the Constitution of this Commonwealth, viz., that they "shall hold their offices during good behaviOl'." Respecting such inferior courts of t'he United States, it was said in Ex parte Bakelite Corp., 276 U.S. 438 at page 44!:1 S. Ct. 411, 412, 73 L. Ed. 789: "They * * * have judges who hold office during good behavior, with no power in Congress to prnvide otherwise." The inevitable effect of the part of sec. 4 of the proposed bill touchin~ compulsory retirement of cert'ain judges is to make something else than good behavior an element in judicial service. It is no e\'idence whatever of evil behavior or of want of good bchaviol' to pass the ag·e of tlu·ee scores and t€n. Age and good behavior are ·,Jnrd.::.ted subjects. Ther€ is no connection between the two. And yet, under the proposed bill the compulsion of Ju.df-time service &r.d half-time pay for judges of the designated courts arises when the age of seventy comes, regardless-of e\·ery other circumstance or cons>der;ttion. 'l'cnurc of office during good behavior imports not only the length of the term but also the extent: of service. The Constitution in this particular means that judges "shall hold their offices during good behavior," not that they shall hold half of their offices after a ce1·tain age and such other fractional part as some ot~1er person may determine. The Constitution itself, in the words already quoted, makes two provisions to i·elieve the judicial service of judges no ionger competent to render efficic-nt service. It contains a specifi(; clause in art. 58 of the Amendments affording the means of retiring a judge "because of advanced age or mental or physical disability." The proposed bill adds another and diverse method to the same end. It would deprive such judge against his will of the right to render full-time service for full-time pay That is beyond the pO\\'er of the legislative depai'lmt'llt of government. When the Constitution has made definite provision ~overing a particular subject, t'hat pre.vision i!": exclusive and final. It must be accepted unec:uivoca]. J~'· It can neither be abridged nor be inc1·eased by any or all of the d<.!Jlartl'H'nts :-if go,•e1nment. It is our opinion th:.1t the provisions of the bill concerning permissive retirement of t'he judges of the serveral courts are not in conflict with the Constitution, but that · all its provisions for compulsory retirement and for compulsory or voluntary retirement of the chief or presiding judges are in conflict wil'h part 2, c. 3, art. I, as amended by a1·t. 58 of the Amendment~ of the Con!>titution. 4114 THE LAWYERS JOURNAL August ;H, !!Hi-I A:nelito R. M1tf.uc for the plaintiff and appe1lce. Tolentino & Garcia for the defendant and appellant. Padilla, Ca,.los & Fcn1and(l for the defendant' a.nd appellf\nt D. Leonor. F. A. Rodrigo for the interplcader-appellee Pa11o Roman. Soliciun· G1mcml for the Colfoctor of Internal Revenue. Ta.njuatco & Del Rosario for the appellees Jose Santos and D. Nepomuceno. Alfonso G. Espinosa for S. D. Yfligo. DECISION PARAS, C.J.: On March 22, 1950, the plaintiff Rizal Surety and Insurance Company filed a complaint in l'he Court of First Instance of Manila, alleging that the sum of P20,000.00 was due and payable to the Federal Films, Inc., as proceeds of fire insurance coveri.ng a theater situci.ted in Marikina, Rizal, which was destroyed by fire on February 1, 1947; that as several creditors of t'he insured, namely, Marciano de la Paz, Domingo Leonor, Jose Santos and Dominador Nepomuceno, Pablo Roman, Serapion D. Yliigo, and the Collector of Internal Revenue, were claiming said proceeds from th" plaintiff, the latter had no means o! knowing definitely the order of preference among t'hc various claimants; ancl praying that said creditors, named defendants in the complaint. be ordered to ir.terplead and litigate their conflicting claims, and that the ·sum of P2C,OOO.OO be ordered paid to t'he court for delivery to the proper parties, afte1· deducting the costs of the suit. After t.he defendants had filed their respective miswers, the Court of First Instance of Manila rendered a decision the dispositive part of which reads as foll owe: "WHEREFORE, judgment is hereby rendered in favor of the defendants, and the plaintiff is ordered to pay s?.id de. fendant's out of the P20,000.00 minus the ·costs in Its favor, in the following order: first, the Collector (lf Internal Rs. venue to be paid the sum of PS,216.08; seconci, Jose Santos and Dominador· Nepomuceno to be paid the sum of Pl0,000.00; third, the defendant: Pablo Roman to be paid the sum of P9,000.00, with six per centum interest per annum from the date of the filing of complaint in Civil Case No. 73256 a.nd his costs in said case out of the remaining balance; fourth, tbe defendant Domingo E. Leonor to be paid the Furn of '20,000, with interest of six per centum per annum from the date of the filjng of l'he complaint in Civil Case Na. 1749, should there be any balance; and fifth, the defendant Marciano de la. Paz to be paid the sum o! P6,001.50 with interest of six per centum from February 5, 1947, the elate of the demand, plus P545.00 as costs and Sheriff's fees should there Oy any balance left." From this judgme~t. which applied section 315 of the National Internal Revenue Code and article 1924, paragraph 3, of the Clld Civil Code, the defendants Marciano de la Pa.z and Domingo Leonor appealed. Briefly the contention of appellant: Marciano de la Paz is that his claim for P6,001.50 :;hould enjoy first priority, because on February 5, 1947, he caused to be garnished the proceeds in question, said garnishment being prior to all other liens. The a.ppellant Domingo Leonor in ~urn contends that his claim for !"2,300.00 is superior, except with regards to the tax lien of the Collector of Internal Revenue, because it is evidenced by a public document d~ted July 19, 1946, in addition to the fact that he garnished the disputed insurance proceeds on February 17, 1947. Incidentally it Is insisted for both appellants that, where priority of attachment ie involved, art'icle 1924 of the Civil Code is not applicable. Appellant de la Paz further argues that article 1924 may be invoked only when there is a showing of the debtor's insolvency. In the first place, we may point out that, where i'he debtor waF insolvent, article 1924 was held not app~icable, since it w&S considered repealed insofar as it referred to cases of bankrupt'Cy ar.d estates of deceased persons. (Peterson vs. Newberry et al., 6 Phil. 260.> In the second place, we find that the law on attachment and the l&w on preference of credit's under article 1924 of the Civil Code had been applied by this Court hand in hand, as may be gleaned from the following pronouncements in the case of Kuenzl& & Streiff vs. Villanueva, 41 Phil. 611, 614-615: "In other wordS, the question for considel'ation is whether an att:achment levied on specific property gives to the at. taching creditor a lien or a. right to a preference in the nature of a lien, superior to the statutory right to a preference which is recognized in arCicle · 1924 of the Civil Code in favor of the owner of an after-acquired judgment. "In a long and unbroken Hne of decisions, running through our reports from the first volume down to the last, we have uniformly and steadfastly sustained and 1·ecognized the statutory preferences created by the provisions of title 17 of the Civil Code, save only in so far as they have been expressly or by necessary implication repealed or modified b:r Acts of the Commission or \'he Legislature. "Upon full consideration of the provisions of the new Code of Civil Proc°"dure by virtue of which levies of attachments are authorized, and of the circumstances under which that Code was enacted by a co~mission the majorit'y of whose members were Amcriean lawyers, we are satisfied that it Wl!.S the intention of the legislature to give an attaching creditor a lien or at least a right in the nature of a lien in the at\'ached prop~rty; but we see no reason whatever for holding that this lie11, or right in t'he nature of & lien, rises superior to any statutury prdc1ences with which the property is affected at the lim(' ci its attachment." We shall t~acrcfore proceed to determine the order of preference herein, in the li~ht of priority both t.y reason of attachment!:' and l:y reason of :i.rtide 1924 of thti Civil Code, subject however to the superior hen of the Collector of lnt'ernal Revenue in virtue of section 315 of the National Iutern::i.l Revenue Code which provides as fol'.nws: "Every internal revenue tax on property or in any business or occupation, and <:!very tax on resources and receipts, and uny increment to any of t'hem incident to delinquency, shall constituute a lien superior to all other charges or liens not only on the property itself upon which such tax may be imposed but als•i upon the prnpcn'y used in any business or occupation upon which tax is imposed and upon all property rights therein" We arc of 1he opinion that the trial court correctly ordered i.'hat the claim of the Collector of lntcrna.I Revenue be paid first. Said claim being for amusement faxes on the theater insured, const.itutes a lien superior to all other charges or liens not only on tile theater it'self but also upon all property rights therein, including the insurance proceeds. Under article 1924, paragraph 3, of the Civil Code, the order of preference is, first, in favor of credits evidenced by a public instrument, and, secondly, in' favor of credits evidenced by a final judgment, should they have been \'he subject of litig-ation, the preference among the two kinds of credits being determined by priority of dates. The trial court was also ~urrect in placing the claim of Josi' Santos and Dominador Nepomuceno second in the list: of creditors, hecause their credit is evidenced br a public document dated May 23, Hl4G. Appellants, with appellee Pablo Roman, v.rguc that ,;aid document cannot be classified as public, because its acknowledgment is nO\: dated. This contention is not tenable, since nn exumination of the instrument shows that the body is dated at J\lanila on J\foy 23, 1946, a.:id iu the acknowledgment the following appears: "Witness my hand and official seal in t'he date and 1.Jac ~d above mentioned.'' This i·ecital logically refers to the date and ,,lace Sfl~cificd in the preccdill~ body of 'the document. There is no pobt in the observation that l'he credit of Santos and Ne· August 31, 1954 THE LA WYERS JOURNAL 405 pomuceno, not being reduced to a judgment, should not be entitled to any prefert:nce binding against the Federal Films, Inc., which is not a party hereto, because article 1924 of the Civil Code al'! a matter of fact distinguishes credits evidenced by a public docu.. ment from those evidenced by a judgment. At any rate, in so far as the absence in this case of the common debtor is concerned, a.11 t'he defendants arc on equal footing. The next in preference, in ou1· opinion, is the credit of appel. lant Domingo Leonor because, although he caused a notice of garnishment to be served upon the plaintiff on February 17, 1947, or subsequent to the notice of garnislunent! of appellant Marciano de le. Paz on February 5, 1947, the former's credit is none the less evidenced by a public instrument dnted July 19, 1946, duly presented as exhibit. Preference cluimcd under e. nublic document ls not lost by the mere fact that the credit is mad~ the subject of a subsequent judicial action and jnclgment. Even appellee Pablo Roman admits this proposition. The next preferred credit is that of defendant-11ppellee Pablo Homan, evidenced by a judgment which became final on September 26, 1946. !\! is contended on the part of appellant Domingo Leonor that said judgment was not yet final then, because an appeal was taken therefrom to the Supreme Court which resolved it in favor of appellee Pablo Roman only on fl-lay 27, 1947. However, as correctly obset'Ved by counsel for the lat'l:er, the judgment 'of September 26, 1946, was not appealed, and the petition filed before the Supreme Court wa.s one for certiorari against order of the trial courC dismissing the appeal; and, indeed, two writs of execution had been issued during the pendency of the certiorari proceeding, one on December 24, 1946, and anothe1· on January 9, 1947. In l\.kl\Iicking vs. Lichauco, 27 Phil. 386, it was held that "a judgment upon which execution has not been stayed, under the provi. sions of section 144 of Act No. 190, is entitled to the preference provided for in article 1924 of the Civil Code." The remaining credit to be paid is that or appella.nt Marciano de la Paz, whose notice of garnishment was served on the plaintiff of February 5, 1947, the appealed decision being correc~ on this phase of the case. Serapion D. Yiiigo failed to present any evidence in support of his claim. 1t being understood that the various claime.nta sl1ould be paid in the order indicai.'ed in this decision, and that none of them is entitled tc receive any interest <as the plaintiff.appellee cannot be deemed as having defaulted in paying out the insurance pro.. ceeds in question), t'he appealed judgment, as thus modified, is · hereby affirmed. So ordered without costs. Pablo, Bengzon, Montemayor, Reye.~. Jugo, Baittista A n"elo, Lnbrador and Concepcion, J.J., co·ncur. II · Republic of the Philippines, Plaintiff-Appellant, vs. Jose Leon Gonzales, et al., Defendant-Appellants, G. R. No. L-4918, May 14, 1954, Bengzon, J. J. CONSTITUTIONAL LAW; EMINENT DOMAIN; JUST COMPENSATION, HOW DETERMINED. -- In determining just compensation or the fair market value of the property subject of expropriation proceedings, evidence is competent of bona fide sales of other nearby parcels at times sufficiently near to the proceedings to exclude general changes 0£ values due to new conditions in the vicinity. 2. ID.; ID.; ID.; RESALE TO INDIVIDUALS. - Whether, in expropriations for resale to individuals, a more liberal interpretation of "just compensation" ahould be adopted, quaere. 3. ID.; ID.; ENTRY OF PLAINTIFF UPON DEPOSITING VALUE; OWNER ENTITLED TO JNTEREST. - In condemnation proceedings the owner of the land is entitled to interest, on the amount awarded, from the time the plaintiff takes possession of the property. Angel M. Tesr.>ro, Ramirez & Ortigas, Alberto V. Cruz, Guillermo B. Ilagan, FUemon 1. Alma:::an and F&rtunato de Leon for defendants and appellants. Solicitor General Pompeyo Dia::: and Solicitor Antonio A. Torres for the plaintiff and appellant. DECISION BENGZON, J.: In January 1947, in the Court of First Instance of Rizal, the Hepublic !:tarted this proceedings uuder Com. Act No. 539 Ior the purpose of expropriating an extensive tract of land - over 87 hectares - for resale to the tenants thereof. Situated within the l\.laysilo Estate, Caloocan, and originally cove1·ed by 1'ransfer Certificate of Title No. 35486 the p1·operty is now represented by seven Transfer Certificates of Title, numbered and owned respectivley: 1373 by Jose Leon Gonzalez; 13'78 by Juan F. Gonzalez; 1369 by Maria C. Gonzalez-Hilario; 1372 by Concepcion A. Gonzalez-Virata; 1370 by Consuelo Gonzale7,-Precilla; 1371 by Francisco Felipe Gonzalez; and 1374 by Jose Leon Gonzalez, et al. Eight kilometers north of Plaza Santa Cruz, l.7 kilometers east of Rizal avenue, and 2 kilometers above Highway 54, the estate is bounded by the Araneta Institute property, the Victoneta Inc., the Balintawak Estate Subdivision, the Seventh Day Adventists' land, and the Piedad Est.ate. It lies within the sites of the University of the Philippines and the Capitol and within the field of expansion of the City of Manila. All the defendants at first opposed the compulsory sale; but subsequently they waived the objection, recognizing the social-justice aims of the Government, (there were about two-hundred tenants) and agreed to the designation of commissioner to determine the reasonable market value of the property to be taken. Wherefore, in June 1948, the court appointed the following commissioners: Atty. Erasmo R. Cruz, recommended by defendants, Assistant Fiscnl Sugueco, suggested by plaintiff, nnd Depul'y Ch:rk Benito Macrohon, selected by the judge. In the performance of their duties, the Commissioners received oral and documentary evidence, inspected the premises, and there- ' after submitted one majority report, plus one minority report by Commissioner SugUeco. The first divided the property into two parts: one portion previously occupied by the U. S. Army with roads, playground, water and sewerage system, and valued at 5 pesos per sq.m.; and another consisting of rolling lands and :rice fields priced at fifteen centavos per sq.m. The report thereby fixed !"1.75 per sq.m. as the average compensation for the entire estate. On the other hand Sugueco's minority opinion rated the whole parcel at ten centavos per square meter only. The two reports provoked objections from both side.1, whose oppositions were seasonably filed in writing. On !\.lay 6, 1949, obeying orders of the trial judge, Clerk of Court Severo Abellera repaired to the pl'Cmises, made inquiries, and reported afterwards that the realty was fairly worth Pl.90 per square meter. Then on March 29, 1950, the Hon. Gabino Abaya, Judge, rendered his decision appraising the estate at Pl.50 per square meter. It should be explained, in thi's connection, that all defendants agreed the entire property should be evaluated as a whole, for the purpose of facilitating the award. The parties petitioned for reconsideration. Denial thereof motivated this appeal both by the plaintiff and by the defendants, The plaintiff, in a series of assignments reaches the conclusion, and submits the proposition, that "there is no reliable standard for determining the reasonable worth of the defendants' land except the tax declaration Exh. B which puts its value at P28,850.00 x x x. Taking into account, however, that the assessed value is usually lower by 1/3 of 1/2 of the ·real market value, the defendants should be given an additional SO% of P28,850 or PS,655.00." Such position is clearly untenable. The declaration was made 406 THE LA WYERS JOURNAL August 31, 1954 in Hl27; and this Court can take judicial notice of the upward trend of values, particularly of lands in or near Manila. As a matter of fact, the revised assessment in Hl48 valued the entire property at f'366,150 i.e., 0.42 per sq.m.-which is more than ten times the 1947 assessment. And in its motion for reconsideration .!'ubmitted to the lower court, piaintiff im'oked, as ''index of value" of the land, the sale made to Francisco R. Aguinaldo, one month before the expropriation, at one peso per sq.m. - thus giving the lot in question a total value of P871,982.00. Another piece of evidence, indicati\•e of prices in the vicinity, is Exh. M showing the Seventh Day Adventists purchased in 1927, at the rate of !"0.25 per sq.m., a big lot adjoining the land to be expropriated. Aftel" twenty years the prices should be much higher, Yet the Government insists in compensating herein defendants at the mte of 0.04 per sq.m. Obviously unmeritorious contention. Now :.:s to the defendants' appl'al. Although they took the ''iew - in the court below that the land value could be reasonably fixed at !'1.75 per sq.m., ( 1) the defendants here maintain they should be compensated at the rate of !"'2.50 per sq.m. They quote with approval His Honor's summary of their own evidence as follows: "On November 28, 1945, Lorenzo Buenaventura .bought and paid at P2 per square meter a lot which is almost adjoining the lands in question - it being separated only by a street called Sta. Quitoria (Exl1. "2"); that on July 29, 1949, the Balintawak Estate Inc, sold to Narciso T. Re}'es a parcel of land at the rate of f"P2.84. per square meter (Exh. "3-K"); that on December 29, 1946, Concepcion Andrea Gonzalez sold to Francisco R. Aguinaldo a portion of the property in question at Pl per square meter (Exh. "3-L"> ; that on No,·ember lS, 1947, Jose l\t. Rato sold to the Araneta Institute of Agriculture 373, 377 (3,730) square meters at the rate of fl and Pl.60 per square meter (Exh. "3-N"); that on May 14, 1948, Ambrosio Pablo and Sons sold to Cromwell Cosmetic Export Company 20,764 square meters at the rate of P2.50 per square meter (Exh. "3-0"); that on November 14, 1947, the Manila Golf Club sold .to the Ayala & Company 367,817 square meters at the rate of Pl.08 per square meter (Exh. "3-P"); that on April 26, 1948, Ayala & Company sold to J, M. Tuazon & Company the property describe<\ in Exh. ''3-P" at the rnte o[ P2.50 per square meter ; Julian Encarnacion, secretary of the Balintawak Estate Inc. subdivision, which adjoins the propel'ty in question, declared that the lots of said subdivision, are sold from P'6 to P'l2 per square meter in cash and from P9 to Pl5 per squa1·e meter by installment." And they rely principally on the prices in Exhibits 3-K, 3-0 and 3-Q lx>cause they "were sufficiently near in point of time with the date of condemnation proceedings" to rellect true land values in the locality. However such Exhibits cannot be taken as conclusive valuation. In Exh. :l-K, the parcel •vas purchased from the Ralintawak Esbte Inc. a real el!tate subdivision corporation. Prices in realty subdivisions are necessarily higher, because of improvements therein, such as roads, bridges, curbs etc. The sale in Exh, 3-0, though exhibiting a higher \•aluation, cannot be literally followed because it refers to a much smaller lot on the provincial highway. The prices in 3-Q of the Manila Golf Club, refer to a lot nearer Manila by a kilometer. Hence defendants-appellants' demand for f'2.50 per square meter may not be upheld. Now having foU11d plaintiff's proposition as unreasonable, and defendants' claim for P2.50 as unfounded, we may proceed to examine whether the trial court's detennination of the market value should be modified, on the basis of the evidence of record. It is needless to repeat that the Government, in eminent domain proceedings, must pay just compensation or the fair market value, that such value represents the price which the property will bring when offered for sale by one who desires, but is not obliged, to sell and is boug-ht by one who is under no imperative necessity of having it <2) and that in determining such value, evidence is competent of bona fide sales of other nearby parcels at times sufficiently near to the proceedings to exclude general changes of values due to new conditions in the vicinity (3). Parenthetically, in expr~priations like this - for the benefit of other individuals, not directly benefiting the public - it might be interesting to inquire whethet· a more liberal interpretation of "just compensation" should be adopted in f'avor of the owner who i.~ ctnnpefled to part with his private property for lhe exclusive benefit of a fev,., Consider that like other eminent domain proceedings, this does not directly benefit him as a part of the "public." However, this is unnecessary, for the record yields sufficient elements of decision to make a just and equitable award. The majority commissioners (4), rejecting the plaintiff's evidence, took into account the bona fide sales of nearby parcels and, aided by personal knowledge they gained thru inspection, anived at the conclusion that the reasonable market value of the entire properly was Pl.7fi per s(iuare mete!'. The dissenting commissioner's r~port, b:i3ccl mainly on t:he 1027 assessment ' 'alues, 1>roved too conservative to be of any help. The Clerk of Court was specially instructed to make a new assessment, in view of conflicting reports and the objections of the parties. This officer after conducting an ocular inspection of the place and gathering information from people residing in the vicinity recommended PI.90 per sq. m. after hearing the parties, thr. trial judge, in his discretion, esiimated that under the circumstances, one peso and fifty centa\'OS per square meter was reasonuble compensation for the hacienda. We ha\'e not been shown \\'herein the trial judge abused his discretion in reducing the prices recommended by the court's re- · ferees. Two purchase-and-sale transact-ions in 1947, about neighboring realty may shed favorable light upon His Honor's valuation. In Aug. 1947 Jose Ma. Rato sold to Victoneta Inc. 581,872 sq.m. of adjoining land at 0.85 sq.m. (Exh. 3-M). In July 1947 Jose Ma. Rato sold to Araneta Institute of Agriculture four parcels of land totalling 373,377 sq.m, adjoining the land sold by Exh. 3-M at prices ranging from Pl.DO to f'l.60 per sq.m. No improvements were included in both sales. These two parcels, being sufficiently large and located within the vicinity may afford some adequate bases of comparison. It is unimportant that the sales were cons1munated several months after these proceedings had begun, because unlike other eminent domain proceedings for public use - roads, bl'idges, canals, markets etc. - these do not tend to inflate prices of adjoining properties. These two sales were made by a Spanial'd residing in Madrid, thru a local agent. He was' obviously anxious to liquidate his affairs here, as shown by the circumstance that in two months he disposed of two sizable parcels of real estate. Such disposition and such absence must have given him a natural disadvantage in the bargaining, so that a discount of 10 or 20 per cent was not improbable. The topographical features of Rato's land do not appear. It probably is agricultural - sold to an agricultural institute. On the other hand, the defendants' hacienda is mostly high ground, rolling hills (p. 206 Record on Appeal) which, subdivided into residential lots, would command higher prices: (2) Manlla Railroad Co. v. Alan 36 Phil. 500; Mani11< ,Railroad Co. v. Calif{rlhan 40 Phil. 326. (3} Manila Railro1<d Co. •·· Velaaquu 32 Phil. 286. (4) One of them l'Jlpointed by the tourt, and therefore pruumab!y impartial. August Sl, 1954 THE LAW·YERS JOURNAI, 40i Another thing: whereas defendants' land is served by Reparo Street, the Victoneta Inc. lot does not enjoy that advantage (Exh. 3) . But most significant is the admitted fact that one-third of defendants' land has permanent improvements, made by the U. S. Army, r.onsisting of good paved roads, playgrounds, water system, sewerage, and general levelling of the land suitable for residential lots (p. 214 Record on Appeal) together with electric installations and buildings (p. 206 Record on Appeal). Considering the above circumstances, in relation to the price of P'2.50 paid for the Manila Golf Club by J, M. Tuason & Co., we do not feel justified to declare that the price of Pl.50 is excessive. Neither is it too low, Two defendants, at least, admitted it was just and reasonable (p. 274 Record on Appeal). Wherefore, on the question of just compensation, the trial judge's assessment has to be ap.proved. Yet there is one point on which defendants' appeal should be heeded. The Government deposited P20,850 and entered the premises by virtue of a couit order, under Act No. 2826. The Rural Progress Administration took possession on or about Jar\. 25, Hl47. Defendants lost the control and use of their property as of that date. Their counsel now claim legal interest on the amount of compensation; and the plaintiff agrees, as it has to. In Ph.ilippine Railway v. Solon 13 Phil. 34 we held that in condemnation proceedings "the owner of the land is entitled to interest, on the amount awarded, from the time the plaintiff takes possession of the property." Another assignment of error of the defendants is that the lower court failed to make the plaintiff pay the costs. The plaintiff appellee acknowledges this, in view of section 13, Rule 69. The last part of the section is not applicable, because the plaintiff appealed and lost. Wherefore the <lecision of the court a quo will be affirmed as to the value to be paid by the plaintiff for the expropriated land. It is of course understood that the money already deposited and taken by defendants should be discounted. Said decision, however, will be modified by awarding interest to defendants at six per cent from Jan. 25, 1947 until the date of payment. Costs will be chargeable to the plaintiff. So ordered Paras, Pabfo, Montemayor, Reye!!, Jugo, Bautista Angelo, L,1lrador and Conce7Jcion, J.J. III Ex-Meralco Employees Tran.11portatio11. Co., Inc., PetitionerAppellant, vs. Republic of the Philippines, Respondent-Appellee, G. R. No, L-5953, May 26, 1954, Jugo, J. MASTER AND SERVANT; MASTER'S LIABILITY Fon DAMAGES CAUSED BY HIS SERVANT IS DIRECT AND NOT SUBSIDIARY. - The liability of a master for dama~es caused by his employee or agent in a business enterprise is primary and direct and not subsidiary. Subsidiary liability of the employer takes place only when the action is brought under the provisions of the Revised Penal Code. DECISION JUGO, J., On July 26, 1951, the Republic of the Philippines, represented by the Solicitor General, filed in the Municipal Court of the City of Manila {Civil Case No. 16716 of said court), a complaint against the corporation, known as Ex-Meralco Employees Transportation Company, Inc., for the recovery of damages in the sum of Fl,332.17, alleging that: " x x x the plaintiff is the owner of a Ford Service Truck bearing Plate No. T.P.1.-875 assigned for the use of one of its instrumentalities, the Bureau of Telecommunications, Manila: "That on January 10, 1951, while plaintiff's service truck was at full stop near a safety island in the mfi:ldle of Espaiia _Boulevard, it was bumped by a passenger truck bearing Plate No. T.P.U.-5112 belonging to and operated by the defendant corporation and driven by defendant's employee one 'Pakia Adona' who fled immediately after the collision." The defendant corporation filed the following answer; "What actually happened was that while the defendant's bus was heading toward Quiapo along the Espaiia Avenue, all of a sudden, the plaintiff's service truck, without making any sign on the part of its driver, unexpectedly, and instantly swerved to the left toward the front of defendant's bus for a U turn at the safety island at the intel'section of Espafia and Miguelin streets, without first taking necessary precaution, and violating thru street traffic 1·ules and disregarding the stream of vehicles flowing !!long the thru Espaiia street or avenue, so sudden and swift and without clear distance that to evade t.he collision was physically and materially impossible on the part of the defendant's driver, although the latter tried to evade it, in vain, by immediately applying the brakes and at the same time Swerving to the ll'ft as to swerve it to the right was impossible and fatal to the plaintiff's truck, so that the collision was absolutely due to the fault, recklessness, and omission of thru street traffic rules on the part solely of the plaintiff's driver, and without any fault on the part of the driver of the defendant; and defendant's driver fled due to threat of bodily harm shown by plaintiff's personnel on the spot." On the date set for the trial, the defendant's (herein petitioner's) counsel objected to the trial because, as he alleged, there were sufficient ground for the dismissal of the complaint. On January 16, 1952, he filed a formal motion to dismiss on the ground that "the plaintiff's complaint was without any cause of action as the driver concerned had not as yet been adjudged liable for the damages, if any, complained of." The motion was denied. The defendant (Petitioner herein) filed in the Court of First Instance of Manila a petition for certiorari and preliminary injunction, praying said court to annul the order of the municipal court denying the dismissal of the case for the reason that the I utter acted in excl'SS or abuse of <liscretion. The Court of First Instance denied the petition for certiorari in the following language: ·· x x x The facts alleged by the petitioner in its petition, and admitted by the respondents in their answer, cannot be the basis for the issuance of a writ of certiorari against the respondents, as prayed ' for by the petitioner, because it is within the power and jurisdiction of the respondent Judge to hear and decide Civil Case No. 16716 of the Municipal Court of the Citr of Manila, and that the said respondent Judge committed no abuse of discretion or excess of jurisdiction in denying petitioner's motion for the dismissal of said case." The above order of the Court of First Instance is correct. The remedy of the petitioner should be a regular appeal filed in due time to the Court of First Instance. The ground that the complaint did not state facts sufficient to constitute a cause of action is not jurisdictional. The allegation that a criminal information should have been filed previously against the driver is, besides not being jurisdietional, untenable ;'or the reason that the liability of a master for damages caused by his employe,e or . agent in a business enterprise is primary and direct and not subsidiary. Subsidiary liability of the employer takes place only when the action 408 THE LAWYERS JOURNAL August 31, 1954 is brought under the provisions of the Revised Per.al Code. In view of the foregoing, the decision appealed from the Court of First Instance is affirmed, with costs against the petitioner. IT IS SO ORDERED. Paras, Bengzon, Reyes, Labr11dor, Pablo, Monte11111yo-r, Bautista Angelo a.n4 Concepcion, J.J., concur. IV SihJest·re M. Pirnsalan, et al., Plaintiffs-Appellant•, vs. The Mu.nicipul Board of the City of Ma11ila, et al., Defendants-Appellants, G. R. No. lr4817, Ma11 26, 1954, Reyes, J. Ii. TAXATION; LEGISLATIVE DEPARTMENT DETERMINES WHAT ENTITIES SHOULD BE EMPOWERED TO J?i.1POSE OCCUPATION TAX.-It is not for the courts to judge what particular cities or f!\Unicipalities should be empowered to impose occupation taxes in addition to those imposed by the National Government. That matter is peculiarly within the domain of the political departments and the courts would do well not to encroach upon it. 2. ID.; DOUBLE TAXATION.·-Thel'e is no double taxation where one tax is imposed by the state and the other is imposed by the city, it being widely recognized that there is nothing !nlu;rently obnoxious in the requirement that license fees or taxes be exacted with respect to the same occupation, calling or activity by both the state and the political subdivisions thereof. <Citing 1 Cooley on Taxation, 4th ed., p. 492 and 51 Am Jur., 341.) Cala11og and AlafTiz for the plaintiffs and appellants. City FUcal Euge11io Angeles and Assistant Fiscal Eulogio S. Serrano for the defendants and appellants DECISION REYES, J.: This suit was commenced in the Court of First Instance of M'nila by two lawyers, a medical practitioner, a public accountant, a dental surgeon and a pharmacist, purportedly "in their own behalf and in behalf of other professionals practicing in the city of Manila who n1ay desire to join it." Object of the suit is the annulment of Ordinance No. 3398 of the city of Manila together with the provision of the Manila charter authorizing it and the refund of taxes collected under the ordinance but paid under protest. The ordinance in question, which was approved by the muni· cipal board of the city of Manila on July 25, 1950, imposes a municipal occupation tax on persons exercising various professions in the city and penalizes non-payment of the tax "by a fine of not more than two hundred pesos or by imprisonment of not more than six months, or by both such fine and imprisonment in the discretion of the court." Among the professions taxed were those to which plaintiffs belong. The ordinance was enacted pursuant to paragraph (1) of section 18 of the Revised Charter of the city of Manila (as amended by Republic Act No. 409), which empowers the Municipal Board of said city to impose a municipal occupation tax, not to exceed P50.00 per annum, on persons engaged in the "·arious professions above referred to. Having already paid their occupation tax under section 201 of the National Internal Revenue Code, plaintiffs, upon being required to pay the additional tax prescribed in the ordinance, paid the same under protest and then brought the present suit for the purpose already stated. The lower court upheld the ¥alidity of the provision of law authorizing the enactment of the ordinance but declared the ordinance itself illegal and void on the ground that the penalty therein provided for non-payment of the tax was not legally authorized, From this decision both parties appealed to this Court, and the only question they have presented for our determination is whether this ruling is correct or not, for though the decision is silent on the refund of taxes paid plaintiffs make no assignment of error on this point. To begin with defendants' appeal, we find that the lower r.ourt was in error in saying that the imposition of the penalty provided for in the ordinance was without the authority of law. The last paragraph (kk) of the very section that authorizes the enactment of this tax ordinance .<section 18 of the Manila Charter) in express terms also empowers the Municipal Board "to fiz penalties for the violation of ordinances 1vhich shall not e::rceed to (sic) tu10 hundred pesos fine or si::r months' imprisonment, or both welt fine and imprisonment, for a single offense." Hence, the pronouncement below that the ordinance in question is illegal and void because it imposes a penalty not authorized by law is clearly without basis. As to plaintiffs' appeal, the contention in substance is that this ordinance and the law authorizing it constitute class legislation, are unjust and oppressive, and authorize what amounts to double taxation. In raising the hue and cry of ''class legislation," the burden of plaintiffs' complaint is not that the professions to which they respectively belong have f>een singled out for the imposition of this municipal occupation tax; and in any event, the Legislature may, in its discretion, select what occupations shall be taxed, and in the · exercise of that discretion it may tax all, or it may select for taxation certain classes and leave the others untaxed. (Cooley on Taxation, Vol. 4, 4th ed., pp. 3393-3395.l Plaintiffs' complaint is that while the law has authorized the city of Manila to impose the said tax, it has withheld that authority from other chartered cities, not to mention municipalities. We do not think it is for the courts to judge what particular dtles or municipalitie~ should be empowered to impose occupation taxes in addition to those im· posed by the National Government. That matter is peculiarly within the domain of the political departments and the courts would do well not to encroach upon it. Moreover, as the seat of , the National Government and with a population and \•olume of trade many times that of any other Philippine city or municipality, Manila, no doubt, offers a more lucrative field for the practice of the professions, so that it is but fair that the professionals in Ma· niln be made to pay a higher occupation tax than their brethren in the provinces. Plaintiffs brand the ordinance unjust and oppressive because they say that it creates discrimination within a class in that while professionals with offices in Manila have to pay the tax, outsiders who have no offices in the city but practice their profession therein are not subject to the tax. Plaintiffs make a distinction that is not found in the ordinance. The ordinance imposes the tax upon every person "exercising" or "pursuing" - in the city of Manila naturally - anyone of the occupationi:i named, but does not say that such person must have his office in Manila. What constitutes exercise or pursuit of a profession in the city is a mat-ter !or judicial determination. The argument against 'double taxation may not be invoked where one tax is imposed by the state and the other is imposed by the city (1 Cooley on Taxation, 4th ed., p. 492), it being widely recognized that there is nothing inherently obnoxious in the requirement that license fees or taxes be exacted with respect to the same occupation, calling or activity by both the state and the political subdivisions thereof. (51 Am. Jur., 341.) In view of the foregoing, the judgment appealed from is reversed in so far as it declares Ordinance No. 3398 of the city of Manila illegal and void and affirmed in so far as it upholds the validity of the provision of the Manila chart~r authorizing it. With costs against plaintiffs-appellants. Pablo, Reng::on, ltlontemayor, Jugo, Baittista Angelo, Labrador and Concepcivn, JJ., concur. · Padilla, J., did not take part. August 31, 1954 THE LA WYl::P.S JOURNAJ, 409 PARAS, C.J., dissenting: l am constrained to dissent from the decision of the majorit; upon the ground that the Municipal Board of Manila cannot outlaw 3. what Congress of the Philippines has already authorized. The plaintiffs-appellants - two lawyers, a physician, an accountant, a dentist and a pharmacist - had already paid the occupation tax under section 201 of the National Internal Revenue Code and are ther;eby duly licensed to practice their respective professions throughout the Philippines; and yet they had been required to pay another occupation tax under Ordinance No. 3398 for practising the stage of perfection, it became rescinded when plaintiff withdrew from his part in the transaction. ID.; ID.; AMBIGUITY IN A CONTRACT OF SALE. - Where the receipt merely recited the fact of receipt of the i'wo checks without ment.ioning the purpose for which they were delivered. it cannot he said l'hat the checks were delivered as adv3n,•e pa)'ment of the <>.Qnsideration of the sRle of the lands in question Such ambiguity shall be construed against the party who had drafted the receipt in view of thi: rule that an obscure r.lause in a ccim'ract can not favor the one who has caused the obscurity. in the City of Manila. This is a glaring example of contradiction - the license granted by the National Government is in effect 4. withdrawn by the City in case of non-payment of the tax under ID.; ID.; CONSENT OF CO-OWNERS INDISPENSABLE. - Where the lands subject of the contract of .:1ale a.re owned pro-i11divfao by the defendants, the consent of each co-owner to the terms of t'he sale is indispensable. the ordinance. If it be argued that the national occupation tax is collected to allow the professional residing in Manila to pursue his calliilg in other places in the Philippines, it should then be exacted only from professionals practising simultaneously in and outside 5· ~1:i~~~1c~~ORNC~~sgAi:~i~E 0~~- ~ !~e:.~~~eE~ :~~~ of Manila. At any rate, we are confronted with the fol.lowing situation: Whereas the professionali. elsC'where pay only one occnpation tax, in the City of Manila they have to pay two, although all are on equal footing insofar as opportunities for earning money out of their pursuits are concerned. The statenient that practice in Manila is more lucrative than in the provinces, may be true perhaps with reference only to a limited few, but certainly not to the general mass of practitioners in any field. Again, provincial residents who have occasional or isolated practice in Manila may have to pay the city tax. This obvious discrimination or lack of uniformity cannot be brushed aside or justified by any trite pronouncement that double taxation is legitimate or that legislation may validly affect certain classes. My position is that a professional who had paid the occupation tax under the National Internal Revenue Code should be allowed to practice in Manila. even without paying the similar tax imposed by Ordinance No. 3398. The City cannot give what said professional already has. I would not say that this Ordinal}ce, enacted by the Municipal Board pursuant to paragraph 1 of Section 18 of the Revi.sed Charter of Manila, as amended by Republic Act No. 409, empowering the Board to impose a municipal occupation tax not to exceed P50.00 per annum, is invalid; but that only one tax, either under the Jnternal Revenue Code or under Ordinance No. 8398, shDuld be imposed upon a practitioner in Manila. v Fort1inato Halili, Plaintiff.Aypellee, vs. Maria Lloret and Ricardo Gon:ales Lloret, Admi1ii11trator of the lnt~state Estate of F'rancisco A. G011zale11, Defendants-Appellants, G. R. No. L-6806, M..,,y 26, 1954, Bautista Angelo, J. 1. OBLIGATIONS AND CONTRACTS; SALE OF PROPERTIES SUBJECT TO JUDICIAL ADMINISTRATIOI'll; SALE WITH. OUT APPROVAL OF COURT CANNOT SERVE AS BASIS FOR ACTION OF SPECIFIC l'ERFORMANCE. - The sale of properties subject to judicial administ'ration can not have any valid effect until it is approved by the court. Where the terms that were made to appe.o.r in the docunient: of sale differ substantially from the conditions prescribed m the authorization given by the court tor the sale of the properties, the do. cument cannot have any binding effect upon parties nor serve as basis for an action for specific performance in the absence of judicial approval. 2. ID.; ID.; RESCISSION OF CONTRACT OF SALE. - Plaintiff's attitude in suspending the payment of the two check11 issued in favor of the defendants, in view of the latter's refusal to sign the documents of !'tale, clearly indicatt:S t'hat th~ understanding between the parties was merely in the stagt: of negotiation for otherwise the plaintiff could :.1ot have withdrawn legally from a trans~ction which had ripened into a. consummated contract. And even if the trnnsaction had reached fendants had received the check representing 1he valui: of the purchase price of the lands in question and had deposited the same in his current .account and thC' transaction was c:o.lled off, the mere offer to return thP money ca.nnot i·dieve him from liability. His duty was to consign the amount in court and his failure to do so. makeR him answerable therefor t'o the plaintiff. M. G. Bustos for the plaintiff and appellee. Diok110 and Diokno for the defendant and appei'ant. DECISION BAUTISTA ANGELO, J.: This is an action brought by pk.intiff against the defendants to compel the latter to execute a deed of sale of '!ertain Jlfl.reds of land described in the complaint, and to recover the sum of P50,00C as damages. The lower court decided the case in favor of the- plainl'iff, and the case is :now Defore us bec:iu!;e it involves an amount which is beyond the jurisdiction of the Court of Appeals. The evidence for the plaintiff discloses the following facts: The six parcels of land subject: of the present action were owned pro.iw:lit•iso by Maria Lloret. and the estate of Fr:mcisco A. Gonzales, of which Ricardo Gonzales Lloret is foe judicial administrator. On Ma.y 8, 1944, the judicial administrator filed a motion in the intesCate proceeding!! praying for authority U. 11ell the said parcels of land for a price of not less than Pl00,000, to which Maria Lloret and the other heirs of the ei;tate gave t'heir conformity. The court granted the motion as requested. Plaintiff became interested in the purchase of said parcels of la.nd and to this effect he sought the services uf Atty. Te::ifilo Sauce who rea~ dily agreed to serve him and took steps to negotiate the sale of said lands in his behalf. Sauco dealt cm the mattf!r with Ricardo Gonzales Lloret. After several interviews whereh! they discussl:d the terms uf the sale, especially the price, Gonza.les Lloret told 82.uco that if plaintiff would agree to pa.y the sum of P200,000 for the lands, he may agree to carry out the transaction. Sauco broached the matter t'o plaifltifC who thereupon agreed to the proposition, 11.nd so, on June 17, 1944, Sauce went to see Gonz:lles Lloret in his office in Menila wherein, according lo Sauce it was agreed between them, among other t'hings, that the lands would be sold to the plaintiff for the :mm o( 1"200,000 and that, afteT the execution of the sale, t'he plaintiff would in turn rfsell to Ricardo Gcnzales Lloret one nf the parcels of land belonging to the estate for an undisclosed amount. It was .1lso agreed upon that since t'he lands subject of the sale were then in litigation between the estate and one Ambrosio Valero, the deed of sale would include a clause to the effect that, if by March, 1945, the vendors wculd be unable to deliver to the purch~,ser the possession of the lands peacefully and without e"ncumbrance, said land! would be !!ubstituted by others belonging to the estate, of equal area, va.lue, and conditions. It was likewise ag·eeed upon that Sauce would prepare the necessary documeiita, as in fact he did in the same office of Gonzales Lloret. 410 THE LA WYERS JOURNAL August 31, 1954 After preparing the documents, Sauco gave an account tl"I the plaint~ff of the result of hiR negotiatione, n:'ld having signified his conformity thereto, plaintiff gave to Sv.ueo two checks, C'n(l for the sum of Pl00,000 drawn agcinst the Philippine National Dank in fnvor of Maria Llorl't <Exhibit B), and nnot'her for t!le same amount drawn against the Philippine Trust Co. in favor of Ricardo Gonzales Lloret. Wilh these check~, Sauco rcturMtf on the same date to the office of Gonzales Llorct to consummate the transe.ction, but e.s Maria Lloret was not then present, Gonzales Lloret told Sauco t:hat he could leave the documents with him a1 he would take care of havin~ them signed by hi·: mother, Marin, and that he could return the next Monday, June 19, to grt them which by t!hen would be signed and ratified before a notary pubEc. Since Sauco was then in a. hurry to return to Malolos, l!nd besides he had confidence in Gonzales Lloret, who was his friend, tht: former agreed and left the two checks with the latter. But' before receiving the checks, Gonzoles Lloret issued a receipt therefor, which was marked Exhibit A. Of t:his de,·elopment, Sauco informed the plaintiff in the afb•rnoon of the same day, emphasizina- the fact that he would return to the office of Gom:nlcs' Lloret to get the documents •.m June 19. SP.uco, however, was not able to ret:urn as was the understanding because he fell sick, a"ld apprehensive .lf such failure, plaint.iff went on t.he next day, June 20, to the Philippine National Bank to inquire whether the check he had issued in favor of Maria Lloret had already been collected, and having been informed in the affirmative, he next wf'nt to the Philippine Trust Cn. to make thP. sume inquiry with regard to the other ch·?Clt he issued against said bank in favnr of Ricardo Gon1.ales Lloret, and. when he was informed that die i:ame had not yet been collected, he suspended its payment informing the bank that, should the party conct>rned execu\'c the deed of sale for which it hart been issued, he would reissue the check. The bank accordingly suspended the payment of the check r.s requested. On the occasion ot a visii which plaintiff paid to Sauco in Malolos, the latter handed over Co him the receipt Exhibit A with the request that, in view of his sickness, he take charge of getiing the deed of sale from Gonzales Llc..ret. Plaintiff tried tc.. do so, liut when he int.ei-viewed Gonzales Lloret, the latter refused to give him but with Sauco intimating that he would just wait until the la.tter recover from his sickness. When Sauco got well he tried to renew his dealing with Gonzales Lloret in an attempt to get from him the documents duly signed and ratified before a notary public, but t.'he latter at first ga\•e excuses for his inability to do hi! part as agreed upon until he fim1lly said that hP could not carry out the agreement in view of the fact: that he had received other better offers for the purchase of the lands among them one for the sum of !"300,000, plus a vehicle cr..lled dokar with it':> corresponding horse. This attitude was taken by t"ne pleintiff u a refusal t.:i sign the deed of i;r..le and so he institutt:d the preSf"nt action making as party defendant! Maria Lloret and her F.on Ricardo G,mzalcs Lloret. Ricardo Gonzales Lloret denied t'.hat a definite understandin4 had ever been reached between him and the plaintiff or his rer::resentative relative to the sale of the lands in question. He tea.. tified t'hat thl' document! marked Exhibits D and D-1 do not represenC the agreement which, according to Teofilo Sauco, wr.s concluded between tliem, intimating the !laid documents were already p1·epared when Sauco went to his office l'o take up with him the matter relative to the sale on June 17, 1944; that Sa.uco, on that occasion, had already with him the t.'wo checks referred to in the receipt Exhibit A, who insisted in leaving them with him because he was in a hurry to return to Ma.lo!os, and so he accept'ed them by way of deposit and deposited them in his current accc.unt with the Philippine National Bank in order thaC they may not be lost; and that sometime in the morning of the succeeding Monday, June 19, a messenger of the Philippine National Bank came to see him to return the ch ... ck issued in his favor against the Philippine Trust Co. with the information that t'he same had not been honored by the bank for the reason that the plaint'i:Cf had suspended its payment, which uct he interpreted as an indication thaC the plaintiff had decided to call off !he negotia.tion. In other words, according to Gonzales Lloret, when plaintiff suspended the payment of the tw.'.> checks on June 19, 1944, as in fact one of them had been actually suspended because it: had not yet been actually collccte.d from the Philippine Trust Co., the understanding he had with Teofila Sauce. regarding ~h" sale did not pass t.'he stage of mere negotiation, and, as such, it did not produce any legal relation by which the defendants could b1• compelled to carry out the sale as now pretended by plantiff in his complaint. After a careful examina"tion -0f the evidence presented by bot'h parties, both testimonial and documentary, we are persuaded to uphold thl' contention of the defendants fo1· the following reasons : l. Accordi11g to Teofib Sauco, representative of plaintiff, his r.greement with defendant Gonzales Lloret was thaC the price of the lands subject of the sale would be P200,000 so much so that he delivcrtd to said defendant two ch€cks in t.'he amount of Pl00,000 t:ach issued in favor of each defendant against tw.:i banking institutions. On thf' other hand, in the document Exhibit.! D, which is claimed to be the one drawn up ly Sauco in the very office of defendant Gonzale!! I.Joret and which, according to Sauco, cont&ined t.'he precise terms and conditions that were agreed upon between them, the umount which appears therein as the conside~ ration of the sale is PlQ0,000. Thia discrepancy, which d(){'s not nppenr sufficiently explained in the record, lends cogency to tlw claim of Cnnzalcs Llc..rct that when Sauco went to his -0ffiee to discuss the tram;action, he had already with him t'he document Exhibit D with t.he expectation that defendants might be prevailed upon t'o accept the terms therein contained, or with the intention cf leaving the do1~ument with Gonzales Lloret for his perusal and for such alteration or amendment he may desire to introduce therein in accordance with his interest. 2. But'h plaintiff and the defendants knew well that the propm.·ties were rnbject to judicial administra.tion and that the sale could have no valid effect until it merits the approval of t.'he court, St' much sc that before the lands were opened for negotiation the judicial administrnl'or, with the conformity of the. heirs, secm·ed from the court an authorization to that effect, and yet, ' as will be stat.'cd elsewhere, the tf.rms that were mude 1'> 3.ppear in the document Exhibit D differ substantially fron. the cor.ditionio prescribed in the nuthorization ~iven by the court, which indicat:es that sai:I document cannot have any Nnding effect upon the parties nor serve as basis for an action ior specific performance, as now prel'cnded by the plaintiff, in the absence of such judicial u11proval. 3. It is n fact duly established r.nd admitted by the parties that the plo.intiff .suspended the payment of t.'he two checks of Pl00,000 E>ach on June 19, 1944 br .Tuue 20 according to plaintiff) in view of the failure of defendants to sign the documents, Exhibits D and D-1 which were delivered to them by Teofilo Sauco, and in fact plaintiff succeeded in stopplr:g the paynumt of one of them, or the check issued against the Philippine Trust Co. This attitude of the plaintiff clearly indicates that l'he understanding between the parties was merely in the st.age of negotiation for 01.'herwise the plaintiff could not have withd1·awn legally from a trans. action which had ripened irrto a consummated contr~ct. And even if the transaction had reached the stage of perfection, we may say that it became rescinded when plaintiff withdrew from hi!I part in t.'he transaction. 4. It should be recalled that when Sauco handed over to defendant Gonzales Lloret the two checks referred to above, thP. lr..tter was made ro sign a recei::it therefor, which was ma1·ked Exhibit A. This receipt was prepared by Sauco himself, and it mc_.rely recited the fact of the receipt of the two checks, without: mentioning the purpose for which the checks wert.i delivered. If it i!I true t:hat those checks were delivered as advance payment of the consideration of the sale referred to "in the contract Exhibit D, no reason is seen why n" mer:tion of that fact: was made iu the receipt. This ambiguity canMt but at·gue :igainst th" pretcm.;;e of Sauco who drafted the receipt' in view of the rule that an obscure clause in a contract cannot favor the one who has caused August 31, 1954 THE LAWYERS JOURNAL 411 the obscurity <Article 1288, Old Civil Code.> 5. One of the documents turned over by Sauco t'o defendant Gonzales Lloret is Exhibit D-1 which represents <;he resale by the plaintiff tc the latter of one of the parcels of land originally included in the sale contained in the document Exhibit D, and, according to Sauco, said document Exhibit D-1 was deliver<::d tO defendant Gonzales Lloret for ratification before a notary public. An examination of said document Exhibit D-1 will reveal that it contains many blank spaces intended to be fjlled out later an, and the same does not bear the signature of the plaintiff. This indicates that said document Exhibit D-1 was but a mere draft and corroborates the stat'ement of Grmzales Lloret that it was given to him, together with the document Exhibit D, merely for his p~ rusnl and possible amendment or alteration. And 6. II! should be noted that the lands subjt.'Ct of negotiation were ·owned pro-indiviso by Maria Lloret and the !!State of Fran· cisco A. Gonzales, and in that negotiation defendant Gonzales Lloret was merely acting in his capacity as judicial administra\.-Or. Being a co-owner of the lands, the consent of Maria Llo1'et to the "terms of the sale is evidently indispensable, and yet there is nothing in the evidence to show that she has ever been contacted in connection with the sale, nor is there any proof that Gonzales Lloret had been authorized to conduct negot'iations in her behalf. What the record shows was that Gonzaler. Lloret would tii.ke up the matte1 '{ith Maria Lloret' on the date subsequent to that when tne two documents were delivered by Sauco to him {June 17, 1944), but this never materialized because of the unexprcted sickness of Tt0ofi10 Suuco. ht:re is that: which refen to the delivery by Sauco to Gonzales Lloret of the check in the amount of !"100,000 drawn against the l'hilippine National Bank which Lloret deposited in his current account - with i'hat institution. According to the evidence, when the transaction was called off because of the failu»e of Sauco to appear on the date set for his isst conference with Lbret, t'he latter attempted to rdurn t'he said amount to Sauco on August 2, 1944 who declined lo accept it on the pretext t'hat he had another buyer who war. willing to purchu~E. the lands for the !IUm of 1'300,000 and that if that sale w~re carried out: Lloret could just deduct that amount from the purchase price. That offer to return, in our opinion, cannot have the effect of r£lieving Lloret from liability. His duty was to consign it in coul't as rt!quired hy law, His failure to do so makes him answerable therefor to tht> plaintiff which he is now on duty bound t'o pay subject to adjustment under the Ballentyne Scale of Values. Wherefore, th1~ decision appeal(ld from ls reversed, without pronouncement as to costs. Defendant Ricudo Gonzales Lloret is ordered to pay to the plaintiff the sum of !"100,000 which should be adjusted in accordance with the Ballentyne Scale of Values. Pards, Pablo, 801gzon, Jl.t.nter,1a11or, Reyes, Jugo, Labrado.and Conce7icion, J.J. concur. VI Marlit1a Qidzana~ Plai11t1'fl and Appellee, vs. Gaudencio Reduoerio and Jose/it Postrado, Defendante and Appellants, G. R. No. L-6220, May 7, 1954, Labrador, J. Let \lS now examine the terms of the authorization given by 1 . the court relative to the sale of the lands in qurdion, and see if OBLIGATION AND CONTRACTS; ACTIONABLE DOCUMENT; ABSENCE OF LEGAL PROVISIO'.N GOVERNING IT. - An ag"reement whereby the obligors bound themselves to pay their indebtedness on a day Stipulated, and to deliver a mortgage ,,;n a prope1·ty 0f theirs in case thl'y failed to pay t.'he debt on the day fixed, is valid and binding and effective upon the parties. lt is not contrary to law ~r public policy, and notwithstanding the absence of any legal provision at the time it was ent'ered into governing it, as the pa1·ties had freely and volunhnily entered into it, the1·e is no ;rr..:iund or reason why it should not be given effect. the same had been observed in lhc preparatfrm of the deed 11f sa.le Exhibit D. Let ' us note, at the outset, that the authorization of the court refers to the sale of certain parcels of land of an ares of 20 hectares situated in the barrio of Sabang, municipality of Ba.liuag, province of Bulo.can, for a price of not less than !"100,000, wit:h the exprcs::: condition that the encumbranr.e affecting tba.se lands would first be paid. Am:.Jyzing now the terms appearing in the docum~nt Exhibit D, we find that among the lands included in the sale are lands situated in the banio of San Roqm~. This is a variatfon of the terms of the judicial authorization. The document Exhibit D also stipulates that the sale would be free from 2• any encumbrance, with the exception of the s.um of !"30,000 which ID.: FACULTATIVE OBLIGATION, ENFORCEABLE IMMEDIATELY. - The obligations entered into by the pt.rt:if\,. is what is known as a facultative obligation. It is not provided by the old Spanish Civil Code; it is a new right which should be declared effective at once, in conso1iance with thu provisions of article 2258 of the Civil Code of the Philippines. is indebted to Ambrosio Valero, but: said document likewise stipulates that the possession of the lands sold should be delivered to the purchaser sometime in March of the next year and that' if this could not 00 done the lands would be substitutl!d by others of t.'he sa.me area and value, belonging to the estate of Francisco A. Gonzales. This is an onerous con<iition which does not appear in the authorization of the court. Of course, this is an eventuality which the plaintiff wanted t'o forestall in view of the fact that the lands subject of the sale were thEn pending Jitiiation between S<1mson and Amante for the defendants and appellan~s. Sabino Palomares for the plaintiff and appellee. DECISION the estate ind Ambrosio Valero, bul: this is no justification for departing from the p~ecise term;; contained in the authorization LABRADOR, J.: of the court. And we find, finally, that' the aut·horization calls This is an appeal to this Court from a decision rendered by for the sale of six parcels of land belonging to the estata, but in tho Court of First Instance or Marinduque, wherein the defendants.. the document as drawn up by Sauco it appears thal: only five upriellan~ are ordered to pay the plaintiff-appelll!e the sum of imrcels would be sold to the plaintiff, 1rnd the other parcel to Ri- rus0.00, with interest from the time of the filing c.f the complainr, cardo Gonze.les Lloret. Undoub1edlr, this cannot: legally h done und from an order of the same court denying a motion of the defor, a~ we know, the law prohibits that a land subject of adminis- fendants-appellants for thE: rcconsiderntfon of the judgment on tration be sold to its judicial administrator. the ~round that they wl!re- deprived of their day in court. The foregoing discrepancies hetwEen the conditions appearing in the document Exhibit D and the terms cont'ained in the authoriz&tion of the court, plus the incongruencies and unexplained circumstances we heve pointed out above, clearly give an idea tha~ all that had taken place between Sauco and defendant Gonzales Lloret was but mere planning or negotiation t'o be threshed out between them in the conference they expected to have on June 19, 1944 but which unfortunately was not: carried out in view of the illness of Teofilo Sauco. Such being the case, it 11.lgically follows that action of the plaintiff has no legal basis. Before closing, one circumstance which should be mentioned The action was originally instituted in the justice of the peace court of Sta. Cruz, Marinduq•Je, and the same is based on an actionable document at'tached to the complaint, signed by the defendant~-appellants on October 4, 1948 and cont'aining the following pertinent. provisions: Na alang-alang sa aming ?llahigpit na pangangails.ngan ay kaming magasawa ay lum:i.pit kay Ginling Martina. Quizana, balo, at naninirahan sa Hupi, Sta. Cruz, Marinduque, at kami ay umuta.ng sa kanya ng halagang Limang Daan at Limang Pung Piso (P550.00), Salaping-. umiiral dito ·sa Filipinas na a.min~ tinanggnp na husto at walnng kulang sa kanya sa condicion 412 THE LAWYERS JOURNAL August 31, 1954 na. ang ha.lagang aming inutang ay ibabalik o babayaran na .. min sa ka11ya sa katapusan ng buwan ng Encro, taong 1949. Pinagkasunduan din naming magasawa na saka.ling hlndi kami makabayad sa taning 11a panahon ay a.mbtg ipifrenda o isasangla sa kanya ang isa naming pafagay na niogan 1rn lugar nang Cororocho, barrio ng Ralogo, municipio ng Santa Cruz, lalawigang l\larinduque, kapu!uang Filipiuas at ito ay nalilibot ng · mga kahangauang summmnod: Sa Norte - Dalmacio Constantino Sa Est:~ - Catalina Reforma Sa Sur - Dionisio A,rioln. ~a Weste -- Reodoro Ric:unora na nat,;tala sa g-obierno ~a ilalin1 ng Dedaracion No. nasa pangabn ko, Josefa Postra.dv. The def~md&nts-appellants admit the execution of the documC'nt, but claim, as special defense, that since t'hc 31st of January, 1949 they offered to pledge the land specified in the ttgrecment and transfer possession the1·eof to the plaintiff-a.ppellee, but that the latter refused said offer. Judgment having been rendered by the justice of the peace court of Sta. Cruz, the de!endanl's-1:1.ppellarits appealed to the Court of First !ni;tance. Tr. that court they reil'erated the defense that they presE-nted in the justice of the peace court. Tht: case was set for hearing in the Court of First Instance on August 16, 1951. As ea.1·ly as J uly 30 counsel for the defendants-appellants presented an "Urgent Motion for Continu. ance," alleging t.'hat on the day set for the hearing <Augusi 16, 1951), they would appear in the hearing of two criminal cases previously set for trial before they i·eceived notice of the hearing on the aforesaid date. The motion was submitted on August 2, and was set for hearing on August 4. This m:>tiun was not act:ed upon until the day of the trial. {;n the date of the trial thP court denied the deiendants-appellants' motic..n for cont'inuancc, and aftc,. hearing the evidence for the plaintiff, in the abstnce of thr. de. frndants-a11pellar.ts and their ccunse1, nmdered the deci&ion appealed from. Defend.:mtS-appelb.nrs, upon receivinf copy 'Jf .the decision, fikd a motion for reconsideration, 1irayinJ that the dttl. sion be set aside on the ground that sufficient time in advnnce was given to the court to pass upon their motion tor c1,.ntinunnce, bot that the same W~'! not passed upon. This motion for reconsidera.. tion was denied. The main question 1·aised in this appeal is the nature and l'ffect of the actionable document ment.'ioned above. The trial court evidently ignored the i;erond part of defendants...appellants's writ.. ten obligation, and enforced its last first part, which fixed payment on January 31. 1949. The plaintiff-appellee, for his part, claims that this part of the written cbligatfon is uot binding upon him for the reason that he did not Eign the agreement, and that even if Jt were so the defendants...apy;ellants did not execute the document! as agrE'ed upon, but, according to their t..nswer, demanded the plaintiff-app.ellee to do so. This last contention of the plain. tiff-appellee is due tO a loose language in the answer filed with lht;i Court of First Inst'ance. But llpon careful scrutiny, it will bo seen that what the de!endants.appellants wanted to allege is that they l.'.hemtP]ve!I hud offered to execute the document oi mC'rtgagC' l'.nd deliver the Emme to the plaintiff. appellee, but that the latter refusl'!d to have it t!Xecute<i uuless an addit.~qnal security was furnished. Thus the answer 1·eads: 5. That immediatC'ly aftc1· the duE! date of the loan Annn "A" c;f thC' complaint, thP defcnrl(mts made ejforts to ezecut11 th,• neces.itlrv documcntl' ol morfyp1gP a ~rl io delive'f the sa'1'e to the plaintiff, in compl1'ance with the term.s and conditiom1 thereof, but the plaintiff refu~ed to execute the proper docu. ments and insisted on anol'her portion of de!(!ndants' J11nd RS additional flecurity for the eaid loan; <UnderscorinK ours> Jn our opinion it is not true that defendants..apJl(.llants hod not offered to execu\!e the dead of mLrtgaire. The other reason adduced by the plaintiff.appellee for claiming that the agreement was nut Oinding upon him also desenes Geant considerution. When plaintiff. appellee received the document, without any C'bjec.tion on his part to the paragraph thereof in which the obligors offered to delivsr a mortgage on a propert.'y of theirs in ca.<ie \!hey failed to pay the de.ht on the day stipulated, he thereby accepted the s:iid condition of the agreement. The accept.. ance by him of the written obligation without objection and pro. test, and the fact t'hat he kc>pt it and based his action then:on, are concrete and positive proof that he agreed and consented to all its terms. including the paragraph on the const'itution of the mortga~e. The decisive question at issue, therefore, is whether the recond (> Urt of the written obligation, i11 which t.'he obli-sors agreed &nd promised t'l deliver a mortgage over the parcel ,Jf land described therein, upon their failure to pay the debt on a date specified in i'he prf'ceding paragraph, is ve.Jid and binding and effective upon the plaintiff-appellee, the creditor. This second part of the obliga.. lion In {]Uestion is what is known in law as a facultativ~ obligation, defined in Articlr. 1206 of the Civil Code of the Philippinf's, which provides: Art. 1206. When only om:; pl'estation has been agreed upon, but the obligor may l't uder another in substitution, the obligation is c~lkd fa.cuh.'ative. This is a new provision and is not found in the vld Spanish Civil Code, which was the one· In force at the time of the execution of the agreemem'. There is nothing in the agreement which would argul! against it3 enforcement It is not l!ontrary to law or public morals c..r public policy, nn<l notwith~tanding t'1e abs!:!nce of any legal provision at the time it was entered into governing it, as the parties had freely and voluntarily entered into it, there is no ground or r£·asun why it sh<.1uld not bl' given effrct. It is a new right which should be declared effeetive at oncf', in consonance with t-he pr<.1· visions of Article 2253 of the Civil Code of the Philippines, t'hus: Art. 225S. x x x. But lf a right should be declared for the first time in this Code, it shall be effectivt: at once, even though t'he act or event wl1ich gives rise thereto may have been done or may have occurred under the prior legislation, . provided said new right does not prejudice or impair any vested or acquired right, of the same origin. In view of our favorable resolution on the important question raised by the defendants-appellants on this appeal, it becomes un. necessary to consider the oth~1· qut:sti•m of pl'occdure raised by them. For the foregoing considerations, the judgment appealed from is hereby reversed, and in accordunce with the provisions of the writ~n obliga.tior., the ca~e is h~reby remanded to the Court of First Instance, iu which court the defendants-appellants shall prest=nt a duly executed deed of mortgage over the property described in thf' written oNigation, with a period af payment to be agreed upon by the parties with the approval of the court. Without cost.s. Paras. Pablo, Bengzon, Montemayor, Jugo, Bautista Angelo and Concepcion, J,J., concur. Vil Cfotildc Mejia Vda. de Alfafara, Petitioner.Appellant, vs. P/,acido Mapa, in his capacity a.o; Secretary of Agriculture and Natural Rrsourccs, Benita Compana, et al., Respondents.Appellus, G. R. No. L-7042, May 28, 1954, Bautista An,r1elo, J. 1. PUBLIC LAND LAW, DISPUSl'l'ION OF Pt:'BLIC LANDS; DIRECT9R OF LANDS CAN NOT DISPOSE LAND WITHIN THE FOREST ZONE. - Whe:re the land covered by th11 homestead application of petitioner was still wit'hin the forest zone ~r uud.!r the jurisdiction of the Bureau of Forestry, the Direct'lr of Lands h'.ld no jurisdiction t'o dispo~e of ::ia1d land under the provisions of the Public L·and Law and the peti. tioner acquired no right to the land. 2. ID.; ID.; EFFECT OF CONTRACT OF LANDLOJtD AND TENANT EXECUTED IN GOOD FAITH. - l!:ven if the per. mit gram:cd to petitioner's dece~scd husband oy the Bureau of August 81, l954 THE LA WYERS JOURNAL 413 Forestry to poss1::ss the land and work it out for his benefit waf!I against the law and as such could have no legal effect. yet v:here he had acted t'hereon in good faith honestly believing that his possession of th<' land was legal, and had entered into a contTactual relation cf landlord and tenant wit'h the respondents in good faith, the contract had produced as a ne.cei::sal'y consequence the relat:ion of landlord and tenant; therPforc, his widc.w should be given the preference to apply !or the land for homestead purposes. 3. ID.; DECISIO?i RENDERED BY DIRECTOR 01•' LANDS AND APPROVED BY THE SECRETARY OF AGHICULTliRE ANO NATURAL HESOlTRCES, CONCLUSIVE EXCEPTIONS. - The doctrine that "a decision rmdered by the Director of Lands and approved by the Secretary of Agricult'ure and Natural Resources, upon a question of fact is conclusive and not subject to be rt'viewed by the courts, in the absence of a showing that such decision was rendered in consequence of fraud, imposition, or mistake, other than error of judgmenC in estimating the value or effect of evidence" does not apply to a Jecision of the Director of Lands which has been revoked by the Secretary of Agriculture and Natural Resources. Even if there is unanimity in the decision, still the doctrine would not apply if the conclusions rirawn by the Secretary from the facts foun dare erroneous or not wo.rranred by law. · Maria.)•O M. Florido for t-he petitioner and appellant. Abundio A. 11ldemita for respondents and appellees Benito Camp:ma, et al. Assid'tant Solkitor General Guillermo E. Torres and Solicit<J1· Jaime de los Angeles for respondent and appeilee Placido J\.fapa. DECISION BAUTISTA ANGELO, J.: This is a petition for certiorari filed in i'he Court of First Instance of Cchu in which p11titioner seek'J to nullify a rtecision rendered by the Secretary of Agriculture and Natural Re.sources in D.A.N.R. Case .No. 224 concerning lot No. 741 of t'he Carciir cadastre on the ground that he acted in excess of his jurisdiction or with grav1:: abuse of discretion. It appe11.rs that pet'itioner a.nd respondents filed separately with the Bureau of Lands an application claiming as homestt':d lot No. 741 of the Carcar Cadastre. After an .i.nvestigatfon ~on­ ducted in accordance with the rules and regul.;.tions of said Bureau, a decision was rendered in favcr of petitioner thereby givinR" couree t'o her application and c.verru!ing the application and protests of respondents. In due course, respondents appealed to the Secretary of Agriculture and Natural Resources, who reversed the decisi'ln of the Director of La11ds. And her mot'ion for reconsidcre.tion having been denied, petitioner interposed the present petition for certiorari. Responrtcnts in t.'heir answer alleged that, under Section S of the Public Land Law, the Secretary of Agriculture and Natural fli?som·ces is the t'xecutive officer charged with the duty to carry out the provisions of said law relative to the administration and disposition of the lands of the i;ublic domain in the Philippines; that the deci~ion which is uow disputed by petitioner was rendered after a formal investigatfon conducted in accordance with the rules and regulations of the Department of Agriculture and Natural Resources and on the basis of the evidence adduced therein and, i'herefor{', said Secretary has not abused his discretion in rendering 1t; and that the decision of the Secretary of Agriculture and Natural Resc.urces on the matter is conclusive and not subject to review by th~ courts, in the absence of a showing that it was rendered in consequence of fraud, iinpositfon, or mista.ke other than an error of judgnu·nt in estimating the value or effect of the evidence presented, citing in support of this contcnt'ion the case of Ortua vs. Singson Encarnacion, 59 Phil., 440. The lower court, after the rcc~11tion of the evidence, upheld the conhmtion of respondents, iu1d dismissed the petition, whereupon petitioner took the case on appeal to the Court of Appeals. The case, however, was certified to 1his Court on t.'1e ground that the appeal involves purely questi,ins of law. The facts of this case as fouPd by the Director of Lands are: By virtue of an application filed by Maximo Alfafa.ra, t'he Bureau of Forestry grantP.d him a permit en February 1, 1923, by virtue of which he was authorized to construct and maintain a fishpond within lot' No. 741 of the Carcar cadastre. Said 11ermitt{'e constructed fishpond dikes along the side of the li>.nd facing General Luna street and running parallel to the river. Sailli dikes werr? destroyed by the flood which occurred in the same year. In Hl26, the permittec abandoned the idea of converting the land into a fishpond and, instead, he decided to convert it into a ricefield. To this effect, the permittce l!ntered into an agreement: with res. pondente whereby the latter would convert' the land into a. Ticefield <·n condition that they would take for themselves the harvests for i'he first. three years and thereafter the crop would be divided share and share alike between thC' pcrmittee and thP. respondents. In 1930, the permittel! ceded his rights and interests in t11e land to his son, Catalino Alfafara, who continued improving the sa.me by constructing more rict> paddies and planting nipa palms along its border. Having converted the Jund into a ricefield, Catalino Alfafara fifod a homestead application therefor in his name while at the same time continuing the same arrangement with respondf'nts as share croppers. ·Upon the death of Catalino Alfafara in 1945, the respondents, after the barvest in 1946, began asserting their own righr over tl1e land and rt•fuscd t.c1 giv~ the share car. responding to Catalino Alfafara to his widow, the herein petitioner. The claim of res(londt'nts that they improved the land in t'heir own right :ind not with permissiun of petitioner's predecessors-ininterest, was not given credence by the Bureau of Lands, for its agents found, not only from the evidence presented, but u.lso from t:hcir ocular inspection, that the land has been under the rightful possession of Maximo AlfaCara since 192::1, and that r1::spondents were only able to work thereon upon his permission on a !hare basis. By virtue of these findings of the Director of Lands, the homestead application of petitioner w11s given due course. On appeal however to the Secrr?tary of Agriculture and Natural Resources, this official revl!r">ed the decision of th(; Director of Lands invoking the ruling long (lb!::erved hy his dt::pJ.rtnwnt' in connection with the disposition of public lands which are formerly within tht:: forest zone or under the jurisdiction of the Bureau of Forestry. He held t1iat neither petitioner nor any of her predecessors-in-interest had acquired any right under the homestead application filed by each inasmuch as the land covered by thLm was still within the foresC zone when applied for and that, for that reason, the Director of Land:i had no jurisdiction to dispose of said land under the provisions of the Public Land Law. He likewisP. held that, inasmuch as the Alfafaras have not est'ablished any right to the la.nd at the time they entered .into t'he contract with rr?s1,ondents to work on the land on a share basis, t'he relf,_ tion of landlMd and cropper between them did not legally exist and u such did not produce any legal effect. Consequently, --h~ heldlhe Alfafaras cannor be considP.rcd as landlords of respondents, and b£:tween ~ actual occupant of 3.n agricultural la11d which is rclf'?.sed from the forest zone ·and C'ertified as dispcsable under the Public Land Law, and an applicant whose application expired prior to its ccrt.Hicaticn, the actual oecupr.nt is given 1ireferential right thereto over the applicant. The rulin£ above adverted to reads as follows: "It is the rule in this jul'isdiction which has been followed consistent.1y in the dis11osition ~f forest land which have been declared agriculturfll lands that occupation flf a forest land prio1· to the certification of the Dil'ector of 1'\lrestry \'hat the sRme is rf!!ensed from the forest zone and is disposable un<ler the provisions of the Public LRnd Law · does not confer upon the occupa.nt thereof the right of preference thereto under the said law. In t-lie snme manner, this office does not givc and does not recognize any right of preference i~ favor of homestead whose applications were filed prior to the certification that' the 414 THE LAWYERS JOUTINAL August 31, 1954 land covered thereby has already been released from the forest zone and .is disposable under the provisions of the Public Land Law. In other wo1·ds, pl'ioL· to t.'he certification by the Bun'au of Forestry that a parcel of forest land is aheady released from th~ forest .zone and is disposable under the p1·ovisions ot· the Public Land Law, this Department does riot recogni.ze any right of preference in favor of either the actual occupant thereof. or any homestead applicant therefor. The reason for t.'his is that any permit or license issued by the Bureau of Forestry for a parcel of fo1·est land can not bind the Bureau of Lands to recogni.ze any rif?ht ir. favor of the Public Land Law; and any homestead application filed prior to the certifi. cati .. .m by t'he Director of Forestry is ineffective and subject to rejedion. Frnm the time, however, that a parcel of fore~t land is released from the forest .zone and certified as disposable under the provisions of the Public Land Law, t.'he occupntion of the actual occupant becomes effective and is re. cognized by the Public Land Lu.w under Section 95 thereof. Also the homestead application filed prior tb the certification by tf)e Director of Forestty will becomf' eHr.ctive from the date of th11 certification. if th9 same hn.d M~ been rejected prior to such certification. But, between rhe actual occupant of ::i parcel of agricultural Jami and an applicant therefor whose application was filed prior to its certifi<'ati9n as such by i'he Dil'ector of Forestry, this Of£ice always rec!lgnizeS the preferential right thereto of the actual occupant thereof. In a Jong line of decisions in appealed cases, this Office alwa)'S recoirnizes the preferential right t'hereto of Ute actuhl occu.. pant thereof. In a fong Jin(\ of decisions in appealed cases, this Office always maintains that agricultural lands already and actually occupied and cultiYated cannot: be applied for under the homestead !aw t!XC!>pt by the actual occupant tl.:i.':!rt!· of.'" (Vicente Rui.z et al. '" H. A. (New), Mariano Ba. Mtm. cao, Isabela, City of Za.mbonnga, de.clsion dat:cd April 13, 1949 and order dated July 22, 1949.J The que.nion now to bo determined is: Has the Secretary of Agriculture and Natural Resourcef: abused his discretion in ·re. versing the decision of the Direct~r of Land:)? A~ the outset, it should be stated that the findings of fact made by the Director of Lands Jiad been substam:ally upheld by the Secret:i.ry of Agriculture and Natural Resour.:es. Th~y only differ on the conclusions derived therefrom and on the effect upon them of t.'he law regarding thP. disposition of public lands which formf'rly were within the fon>.s:t %one or under the juriRdic.. tion of the Bureau of Forestry. Thus, the first question dt:cidl!d by the Secretary of Agricui. l.'ure and Natural Resources is: Has petitiont:r nr any of her predecessors.in.interest acquired any right to the land under the provisions of the Public Land Law? Ar.d the Secretary, following the nllng aboYe stated, answ~red in the nega.i.he. His reasoning follows: '·Neither Clotilde Mejia Vda. de Alfafara nor any of her pred2cessors.in.interest could ~cquire any right under the home. stead application filed by each of them inasmuch as i.'he land co. vered thereby WF.s still within the forest zone and tha.t for that l"f'ason, the Direct:or of Lands had no jurisdiction to dispose of t.aid land under the provi~ions of the Public Land Law." To this we agree, for it appears that the land was released from the forest zone only on August 10, 1949, and the permit' granted to Mri.itimr> Alfafara to possess the land for the purposes of homeste::1d was in 192.'l. And with regard to CRtalino Alfafara, his son, his ap. plication was filed only in 1930. The second question decided by the Secretar... is: What: is the legal effect of the contractual relation of landlord and temmt <'Xif:ting between i.'he Alfafaras and the respondents? The answe.,. ~f the Secret.ary is: ''Considering that none of th~ Alfafara~ has e!ltablished any right \vhatsoever to the land in questinn at: th11 time the contractual relath.in bt!ga.n, this office ts of the opinion .:!.nrl so holds t'hat the relation of landlord and cropper cm1ld not and did not produce any legal effect hr.cause the supposed. land!ordf., thr- Alfafaras, have no title or right to the land in question under the provisions of the Public Land Law. In other words, t.Me of. !ice cannot see how any of the Alfafaras could be considered landlord of the claimants on the land in question when none of tl:~m has any right over said land ur.der the Public Land Law." With this conclusion we disagree. Even in the supposition t.'hat the P<'rmit granted to Maximo Alfahra by the BurPau of Forestry to possess the land and work it out for his benefit be against the law and as such can have no legal effect, the fact however is that Maximo Alfafara has act:ed therec·n in govd faith honestly believing that his posses3ion of the land was legal and was given to him under and by virtuP of the authodty of the la.w. Likewise, it cannot: be reasonably disputed that when Maxim<' Alfafara entered into a contract with the respondents for the con. Yersion of the land into a ricPfield with the understandiug that the respondents, as a rewnrd for their service, woul:I get for them. selves .-i-11 the h~uvcsts for the first three years, and th~rcafter the han•ests woud be divided bchwen them and Maximo Alfafara share and i>hare alike, both Alfafara and respondents have acted in good faith in the honest belief th11.t what they were doing was legal and in pursuance of the po?rmit granted to Alfafara under the authority of the le.w. Having entered into that contractual relation in good faith no other conclusion con be drawn than that such contract has produced as a necessary consequence the relation of landlord and tcna.nt "° much so that "i:he reEpondeut<; worked the land only on· thP basis of such understanding. And this relation continued not only when Maximo Alfafara assigned his right under the permit to his sc.n Catalino, bi:t also when the Jatte1· died znd his widow, the herein petitioner, took over and ' continued possesl'ing the land as successor.in-interest of her hus. band. And it was only in 1946, after the death of Catalino Alfafara, that respondents got wise and, taking advantage of the helplessness of his widow, coveted the land and decided to assume the right over it by filing their own application with Burt0au of Lands. Such a conduct cannot be .ea.id as one done in i;-ood faith, and, In our opiniou, cannot be a basie for a grant of public land under the ruling invoked by the Secretary of Agriculture aud Na. tural Resources. The possession therefore of the land by respondents should be • considered as that of a t:enant and in this sense that possession cannot benefit them but their lanrllord, the widow, in contcmpJa. lion of the rule. As such, the widow should be given the preferf':nce fu app!y for the land for homf'!stead put·poses. We are not unmindful of the doctrine laid d'.>wn in the case <·f Ortua v!I. Singson Enca.rnacio11, 09 Phil., 440, to the effect that the decision rendered by the !Jirectcr of La.nds and approved by t'h~ Secretary of Agriculture and Natural Resuurces, upon a question of fact is conclusive and not subj..-ct to bE revfowed by the courts, i!l the absence of a showing that such decision was rendered in consequence of fraud, imposition, or mistake, other 1!11an error of judgment tn estimating the value or effect of evidence." But we hold thn.t this doctrine does not' apply here because we :ire not concerned with a decision of th<' Director of l .ands which was approved by the Secretary of Agricultu1·e and Natural Resources, hut: one which has been re\•oked. 'l'r.e philosophy behind this ruling is that if the decision of the Directer of Lands on a question of fact is ct•ncurred in by the Secretary of Agricultur~ and Natural Hesourccs, it beromes conc!Usive upon the court's upon the theory that the subject h.o.s been thoM\.ighly weighed and discussed a.nd it must be given faith and credit, but not so when \.'here is a disagreem<'nt. And even if there i:, unanimity in the deci~ion, still we believe that t.'he doctrine would not apply if the conclusions drawn by the Secretary from the fa.cts found are erroneous or not warranted by law. These cvnclusions can still be the subject of judicial review. These are questicins of l&w that: are reserved to the courts to determine, as can be inferred from the following ruling laid down in the same case of Ortua: "There is, however,. anot~er side to the case. IC certainly was not intended bf the le~islative body to remove from thl' jurisdiction .:if courts all right to review decisions of the Bureau of Lands, for to do so would be to attempt something which could not be done legally. Giring force· to all possible intendment:s regarding the facts as found by the Director of Lands, AugUst 31, 1954 THE L.'\.WYF.i!S JOURNAl~ 415 yet so much of the decision of the Director of Landa as re. lates to a question of law is in no sense conclusive upon the c.om·ts, but is subject to r eview. In other w<.1rds, :i.ny acl'ion of the Director of Lands whfrh is based upon a misconsh neA removal implies that the office exists after the ouster. Such is no\: the case of petitioner ~erein, for Republic Act No. 761 expressly abolished the Placement Bureau and, by implication, the office o.f director thereof, which petitioner held. tion o! the Jaw can be correct<!d by the c'>urts." <Shepley v. Cowan (1876], 91 U.S., 330; Moore '" Robbins (1878], 96 U.S. 3. 530; ·Marquez vs. Frisbie [1879], 101 U.S., 473; Black v. JackCONSTITUTION_.\L LAW; ABOLITION OF BUREAU EX. TINGUISHES RIGHT OF INCUMBENT TO THE OFFICE OF DIRECTOR THEREOF; NO VIOLATION OF CONSTITUTIONAL MANDATE ON CIVIL SERVICE. - Where the law expressly abolished t~e Placement Bureau, by implica. tion, the office of direcCor thtoreOf, which cannol exist without said Bureau, is deemed abolished. By the i1bolitio11 of said Bure:i.u and of the office of its director, tho right thereto of petitioner w:i.s necessarily extinguished thereby, There bc·ing no removal or suspension of the petitioner, but r.bolition of his form~r offic~ of Director of the Placement Bureau, which is within the !JOWer of Congress to underl'ake by legislation, the: constitutional mandate to the effect that "no officer or emplo)'·ee in the civil service shall be removed or suspended except' for cause as 1irovided by law" is not violated. son {1900], 177 U.S., 349; Johnson v. Riddle, supra .) Wherefore, the decision :i.ppcaled from is reversed. ThE: court sets a.side the decision of the Secretary of Agriculture and Natural Resources dated Se11tember 15, y949 as well as his order dated January 3, 1950, reaffirming eaid d~i1'ion. Thf' court i~vives the decision of t'he Director c,f Lands dated March 18, 1948 end orders that it be given due course. No pronouncement as to costs Bengz<m, .Montemayor, Jugo, Labrador and Concepcion, J.J., conMr. Justice Alex. Reyes took no pal't. PARAS, C.J. , dissent'ing: 4. ID.; ID.; TRANSFER OF QUALIFIED PERSONNEL FROM ONE OFFICE TO ANOTHER. - Where the law abolishing the l'lacement Bureau explicitly provided for the transfer, amon2' others, of the· qualified p~rsonnel of the lati:er to the National Employment Service, such transfer co:motes th2t the National Employment Service is different: and Jisti11ct from the Placement Bureau, for a thing may be transf,'ned only from one place to another, not t<' the same place. Had Congrf'ss Intended the National Employment Service to be a mere am. plification or enlargement of the Placement Bureau, the law would have directed the retention of the "qualified personnel" of l'he latter, not theii· transfer to the former. It is true that Maximo Alfafara was granted on F:ebruary 1, 1923, a permit to construct and mamtain a fishpond within lot No. 741 of the Carcnr cadasCre, but it nevertheless appears that said permit was cancelled in 1P26 after said fishpond was destroyed by a typhoon. In said year, Maximo Alfafara induced the -respondent Benita Campnna, et al. to convert the former fishpond into a riceland, t.'he agreement h-1ing that the crops for the first three years would be for said respondents and that thereafter the crops would be divided equally bdween the former and the latter. According t.o the findings of t.'he Secretary of Agriculture and Natural Resource.s, not contradicted in any way by those of the Director of Ltmds, M:axin10 Alfe.fara and his SUct'.essorS-in-interest 5. ID.; ID.; NECESSITY OF NEW A"PPOINTMENT; EFFECT 11ever worked on the land or spent, anyt'hing for the impt'ovements ON RIGHT OF INCUMBENT TO THE OFFICE. - Where, thereon. The question tha.t arises is, after the land was declared as it is :i.dmittcd by petitioner, there is necessity of appointing available for homestead purposes by certification of the Director Commissioner of the Nati<:n'a! Employment Service, it follows of Forestry in 1949, or Jong after the permit of Alfafara had been tha~ he does not hold or occupy the latter's item, inasmuch as cancelled, whether the Alfafaras should be preferr.:d to those who the right thereto may be ac(]uired only by appointment. :;!::~~ ';.~~=;:r:n c!~:e!a~:· h~~~te:n~he r~;:tce~l:t::tho:ri~~s t~er:~t: 6. ID,; SCOPE OF TERM "QUALIFIED PERSONNEL". - tinue holding th'-! land. Yet, he was given for several years one If the Director of the Placement Bureau were includ~d in the halC of the crop harvested by the respondents who took over the phrnse "qualified personnel" and, as a. consequence, he autoJand in good faith and could already occupy it in their own right. matically became Commissioner of the National· Employment ~f :~~ :~~~}t:!;;:;::::,::;;:',::~::Y1~~~'.p~~:;:~;;;~!:~::]!:!: :15::~:::~~~:,::!~[:!~~~~t~::,:rE:,:";~: i:T,'!~;·:;:~: 1 ,f their priority to the portion of the land actually held by t.hem "qualified personnel" of the Placement Buurea.u "upon th as a homestead. 1t apptia.rs, however, t'hat there were occ-.iptmts organization of the Service." which connotes that the new of other portions of the lot who did not apply for hQmesteads, with office would be established at some future tir.i€. In common the res'.llt that said pcrt'ions may be awarded to the A!fafaras parlance, the word "personnel" is used generally to refer to if they are still entitled thereto under the law. the subordinnte officials '>r dP.rical employees of an office or enterprise, not to the managers, directors or heads thereof. I vote for the affirmance of t:he appealed dP.cision. Concurro con esta disidencia. (Flo.) G1dllermo F. Pablo VIII Luis Manalang, Petition~r. vs. Aurelio Quitoriano, Emiliano Morabe, Znsimo fJ. Linafo, and Molmmad de Venan.cfo, Respondents, G. R. No. L. 6898, April 30, 1954, Concepcion J. 1. LAW ON PUBLIC OFFICERS; REMOVAL OF PUBLIC OFFICERS. - Where the petitioner has never beon commissioner of the National Employment Service, he could not have been, and h:\s not been, removed t'hel'efrom. 2. ID.; lD.; ABOLITION OF OFFICE. - To 1·emove an officer is to oust him from his office i;efore the expiration of his term. 7. ID.; PUBLIC OFFICERS; POWER OF CONGRESS TO APPOINT COl\IMISSIONER OF NATIONAL EMPLOYMEN'f SERVICE; APPOINTING POWER EXCLUSIVE PREROGATIVE OF PRESIDENT; LIMIT A TIO NS ON POWER TO APPOINT. - Congress can not, either appoint the Commissioner of the Service, or impose upon the President the duty to appoint eny particular person to said office. The appointing power is the exclusive prerogative of the President, upon which no limitations m:i.y be imposed by Congress, except those' l'esult'ing from the need of securing the concurrence of the Commission on Appointments and !tom tho? ex('rcise of the limited legislative power t'o prescribe the qualifications to a given apµointlve office. 8. ID.; ID.; RECORD OF PUBLIC SERVANT DOES NOT GRANT COURT POWER TO VEST IN .ffJM LEGAL TITLE; DUTY OF COURT. - Petitioner's r€cord as a public servant - no matter hc,w impressive it may be as an ur&ument in favor of his consideration for appointment either '.IS Commissioner or as Deputy Commissioner of the Nat.'ional Employn1tnt Ser416 THE LA WYERS JOURNAL August 31, 1954 vice - is a matter which should be addressed to the appointing powei-, fo the exercise of ifs " sound judgment ar\d dlscreiiOn, and - dofis nof stiff ice to " gr3nt the ·coUrt, -whose · dtitY is merely t(" apply t-he Jaw, the power to vest in him a legal title which he does not have. Lufa Jlfcmalaiig in his ·owii behalf. , Solicitor Get1eral Jua11 [,iwag and Assistant Solwito,. General Francisco Carre<111 for the Respondents. DECISION CONCEPCION, J.; Petitioner Luis Manalang contests, by quo warra:<ito proceedingi-;, the title of the incumbent Commissioner of the Nationt.i Bmµloyment Service, and seeks t'o take possession of said officl! as the perso:i allegedly mtitlerl thereto. The original respondent was Aurelio Quitorianv, who, at the time of the filing of the petition <August: 4, 1953l, held !'aid office, which he assumed on July 1, 1953, by virtue of a tlesignatior madf', in his favor, as Acting Commissioner of the Natio1:al Employment Service, by the Office of the President' of the Ph1iippines. Subsequently, or on October 22, 1953, petiti('lner includ2d, as rupond'°nts, emiliano Morabe, who, on Septenw<>r 11, 1953, was d%ignated A<"ting Commissioner of National Employml'nt Servici:!, and Zosimo G. Lina to, \'he Cotlecting. Disbm·sing and Property Officer of said Natfonal Employnvmt Service - hereinaf!er referred to, I'or the s ke o': brevity, as the Service - in order to restrain him from pe.yirig, to respondent Morabe, th~ salary of i.he Commissioner of said Service. Still la.l'er, or on January 21, 1954, l\fohamad de Yenuncio, viho wf!s drsignated Acting Commissioner o! said Service, and assumed said office, on January 11 and 13, res11ectively, of the same year, was included as respondent. It appears that, prior to July 1, 1953, and for some time prior thereto, petiticllJer Luis Manalang, was Director of the Placement Bureau, an office created by Executive Order No. 392, d=.ted December 31, Hl5U (46 Off. Gaz. No. 12, pp. 5{)13, 5920-5921), avowedly pursuant to the powers V"estcd in the President by Republic Act No. 422. Ort June 20, 1952, Republic Act ~o. 761, 12nth1ed "An Act To "Provide For the Organization Of A National Employment Service," was approved and })(:came effecth-e. Section 1 thereof partly provides: "x x x In order t.'o ensure the best possible organization of the employment market as an integral part of the national program for the achievement and maintenance of maximum employment and the development and use of produ..:iive r1:som·ces, thm·e is hereby established a national system of free pubiic employment office.<:" to be known ?.!! the Natic.nal Employment Service, hereinafter referred t.'o 2s the ServicP., ThP. Service shall be under the executive supervision and control of the Department of Laber, and shall have a chief who shall b? known as the Commissioner (If th( National Employment Service hereinafter 1·eferred to as C<"'mmissioner. Sa.id Commissioner shall be appointed by the President of the Philippines with the ctmsent of the Commission on Appointments and shall l"eccive compensation at the rate of nine thousand pesos per annum. A Deputy Commissioner shall also be appointed by thf' Preside~t of the Philippines with the consent of the Commission on Appointments and shall receive compensa.tion at the rate of seven thousand two hu,,!1-dred pesos per annum." On June 1, 1953, the then Sec?"etary of Labor, Jose Figuuer:ts, recommended the appointment of petitioner Luis Manalang as Commissioner of lhe Service. On June 29, 1953, re<:1po:ident Aurelio Qui\'oriano, then Acting Secreta~·y uf Labor, made a simi:ar recom~ mendation in favor of Manalang, upon the ground that " he is best qualified" and "lvyal to service and &dministratio:i. 0 S:iid Acting Secreta1y of Labor even informed Manalang that he would pr?bably be appointed to the office in question. However, on July 1, 1953. Quitoriano wa3 the one designa.ted anJ sworn in, as Acting Commissioner of the Service. Such designation of Quitoriano - like the subsequent designation, first, of Emiliano Morahc, and, then, of Mohamad de Venancio - is now assailed by Manalang as "illegal" and ···•equivalent to removal of the petil'ioner from offi<'e without caUse." · ·· · This pretense can not be sustained. To begin with, petitioner has never hP-en Commissioner of the National Employment: Service and, hence, he could not have been, and has not been, removed therefrom. Secondly, to remove an officer is to oust him from office before the expiration of his term. A removal implies that 1.'he office exists after the oustel". Such is not the case of petitioner hc·rein, for Rcpuhlic Act No· . 761 expressly abolished the Placement Bureau, and, by implication, the office of director thereof, which, obviously, cannot exist without sa.id Bureau. By the abolit.ion of the latter and of said office, the right theret:o of its incumbent, petitioner herein, was necessarily ex:inguished thereby. According!~·. Hie co11stit11tion~I mandate to the effect tha~ "no officer or employee in the civil service shall be remov1:d or suspended except for cause as provid«d by l:.w" <Art -XII. Sec. 4, Phil. Conflt. ), is not: in point, for there has been neither a removal nor a suspension of pctit:.mer l\lanabng, but an abolition of his former office of Director of the Plucement Bureau, which. admitt'edly, is within the power of Congres~ to undertake by legislation. It is argut:d, however, in petitfoncr's memora'ldum, that "x x x there is no abolition but: only fading away of the title Placement Bureau and all its functions are. continued by thr National Employment Servi<'P l:iecanse the twv titles cannot coexist. The seemingly additional duties we-re only brought about by the additional facilities like the district offices, Employment Service Advisory Co'J.ncils. etc." The question whether or not Republic Act. Ne. 761 abclished the Placement Bureau is rme of le~isla1ive intent:, &bout which there can bo no controversy whatsoever, in view of the exµlicit declaration in the second paragraph of Section 1 of said Act reading: "Upon the orga.nizatfon of the service, the existing Place. ment Bur12au and the existin!! Emrloyment Office in the Comm1s1-::>n of Social Welfare shall be abolished, and all the files, H•ccrds, supplies, equipment, qualified pe1sonnel and unexpendC?d balances of appropriations of said Bureau and Commissicn pertaining tu said bureau or office shall thereupon be transferred t'o the Service." lUnJerscoring supplied.) Incidentally, this transfer connotes that the National Employment Service is different and distinct from the Placement BurPau, ior a thinq may be transferred only from one plac:! to another, nnt to the same place. Had Congress i:1t.ended t'he National Employment Service to be a mere amplification or enlargement of the Placement Bureau, Republic Act No. 761 would have directed the retention of \.~te "qualified personnel" of the latter, not their transfer to the former. Indeed, the Service includes, not only tho functions pertaining to the former Employment Office in the Commission of Social Welfar<', apart from other powers, not pertaining \.O either office, enumerated in Section 4 of Republic Act No. 761. Again, if the absorption by the Service of the dutiea of the Placement: Bureau, sufficed to justify the conclusion that the former and the latter are identical, then the Employment Office in the Com. mission of Sociel Welfare, would logically be entitl<:d to make the same claim. At any ra~e. any Possible doubt, on this point, is dispelled by the fact that, in his sponsorship speech, on the bill which Inter bec::ime RC!public Act No. 761, Senator Magalona said: . . "Como ya he dicho al caballero de Rizal, esta es una nueva ofi.cina que 1.~cne su esfera de accicn distinta de la de cualquiera de la;; d:visianes de la Oficina de Trabajo. Adcmas, come he dicho, es muy importante la crcacion de esta oficina, porque con e'la se trata de buscar remedio para esos dot millone.s de desempleados filipinos que hay ahora." lVol. 111, Congressional Recocd, Senate, No. 56, April 2~, l952; underscoring supplied.) 1t is next urged -in petitioner's rnemoranduum "that t'he item of National Employment ServicE' Commissioner ia nol· new and is ocrupied by the petitioner" and t:hat the petitioner is· entitled to said A11gust 31, 1954 T THE" LAWYERS JOURNAL 417 office "automatically by operation of law," in view of the above quoted provision of Section 1 of Republic Act No. 761, relative to t'he transfer to the service of the "qualified pcrsvnnel" of the Placement Bureau and of the Employment Office in the Commission of Social Welfare, This contention is inconsistent with the very allegations of petitioner's pleadings. Thus, in paragraph 11 of his petition, it is alleged "that incrensing the item and elaborating the title of a civil servant, although 11ecessitaHng a ntw appo·int:nie11t, does not mean the ousting of the incumbent or declaring the it~m vacant." In paragraph 12 of the same pleading, petitioner averred that "on or about June 25, 1953, two days before the departure of President Quirino to Raltimore, petitioner wrote a confidential memorandum to his Excellency reminding him of the necessity of appointing anew the petitfoner a.s head of the National Employment Service." Having thus admitted - and correctly - that he needed a new appointme11t as Commissioner 'Of the National Employment Service, it: follows that petitioner does not hold - or, in his own words, occupy - the latter's item, inasmuch as the right thereto may be acquired only by appointment. What is more, Republic Act No. 761 1·equires specifically that' said appointment be ma.de by the President of the Philippines "with the consent of the Commis~ion on Appointments." How could the President and the Commission on Appoint. ments perform t'hese acts if the Director of the Placement Bureau automatically became Commissioner nf the National Employment Service? Neither may petitioner profit by the provision of the second paragraph of Section 1 of Republic Act: No. 761, concerning the transfer to the Service of the "qualified perso.1nel" of the Pia.cement Bureau and of the Employment Office in the Commission of Social Welfare, because: 1. Said transfer shall be effected only "upon t:hc organization" of the National Employment Service, which does n.:>t take pluc.:i until after the appointment of, at least:, the commissioner thereof. If the Director of the Placement Bureau were included in the phrase "qualified persnnnel" and, as a consequence, he automatically became C(lmmissioner of t he. Service, the latter would have become org1i.nized simultaneously with the approval of Republic Act No. 761, and the same would not have conditioned the aforementioned transfer "upon the organization '>f the Service," which eonnot:es that the new office would be established at some future time. Indeed, in common parlance, the word "personnel" is used ger1erally to refer to the subordinate officials ;)f clerical employees of an office or enterprise, not' to the managers, directors or heads thereof. 2. If "qualified personnel" included the heads of the offices affected by the establishment of the Service, then it would, also, include the chief of the Employment Office in the Commission of Social Welfare, who, following petitioner's line of a•gument, would, like petiCioner herein, be, also, a Commissioner of the National Employment Service. The i·esult would be that we would have either two commissioners of said Service or a Commission thereof consisting of two persons - instead of a Connnissiner - and neithe1· alternative is countenanced by Republic Act No. 761. 3. Congress can not, either nppoint the Commissioner of the Service, or impose upon the President t'he duty to appoint any particular person to said office, The appointing power is the exclusive prerogative of the President, upon which no limitations may be imposed by Congress, except those resu\Cing from the need of securing the concunence of the Commission on Appointments and from the exercise of the limited legislative yower to prescribe the qualifications t'.o a given appointive office. Petitioner alleges in paragraph 2 of his petition, which has been admitted by the respondents: ''That he started as clerk in 1918 in the Bureau of Labor by reason of his civil eervice second gr~de eligibility; t'hat he was appointed public de~ender, lncharge of the Pampanga Agency, in 1937 likewise, as a result of hh1 civil service public defender eligibility and has successively held the positions of Chief of Social Improvement Division, Senior Assistant in the Office of the Secretary of Labor, Chief of t'he Wage Claims Division, Attorney of Labor Oncharge of Civil Cases), Chief of the Administrative Division, Chief of the Labor Inspection Division and Director of the Placement Bureau, also under the Department of Labor." The many years spent by petitioner in the service of the Government have noC escaped the attention of the Court. For this reason, we have even considered whether or 'not he should be held entitled to the position of Deputy Commissioner of the National Employment Service, which carries a compensation of P7,200.00 per annum, ident'ical to that of Director of the Placement Bureau. However, it is our considered opinion that we can not make said finding, not only because the office of Depufy Commissioner of the National Employment Service is beyond the pale of the issues raised in this proceedings, which are limited to the position of Commissioner of said Service, but, also, because the reason militating against: petitioner's claim to the latter position, apply equally to that of Deputy Commissioner, At: any rate, petitioner's record as a public servant - no matter how impressive it may be as an argument in favor of his consideration for appointment either as Commissioner or as Deputy Commissioner of the Service - b a matter which should be addressed ti> t'he appointing power, ih the exercise of Its sound judgment a.nd discretion, and does not suffica to grant the Court, whose duty is merely to apply the law, the pnwer to vest in him a legal t'itle .which he does not have. WHEREFORE, the petition is hereby dismissed and the writ prayed for denied, without cost.'s. Pablo, Bengzon, Reyes, Jugo, Bautista Angelo nnd Labrador, J.J .. concur. Mr. Justice Padilla did not take part. M:ONTEMA YOR,J. concurring: I fully concur in the learned opinion of Mr. Justice Concepcion. Its legal consideration$ and conclusions are based on and supported by the !av.: which sometimes is harsh Cdura lexJ, as it now has turned out to be with respecr to petitioner. Considering all the circumstances surrounding this case, I am cnnvinced, and froni what I could gather from the discussion during our deliberations, even my 1·espected colleagues or many of them, a.gree wii'h me that all the equities are with the petiticner. He fully and truly deserved a high and important office in the National Employment Service. Not only did he, for many years, prepare himself for the special and technical service to direct or assist direct t'he functions nnd activities of the National Employment Service, by his previous training and experience, hut: the Government itself prepared him for said service by sending him abroad to study and observe social legislation and employment, and later on his return even had him assist in the drafting of the very legisfotion that: abolished his office of Director of Placement Bureau and created the National Employment Service. There is eve;y reason to believe t'hat at the time, petitioner was intended to he&d the new office or at least, be one of its chief officials, and he was given that understanding and expectation. Unfortunately, howe\•er, thru a quirk of Fate and at the lost hour, he was not appointed. Result - he lost his chance; and what is worse, he lost his civil servic!'. post which wsi; abolished, a.II thru no fault on his part. This short concurring opinion is never intended to embarrass or serve as a reflection on the appointing power, par~icularly the present administration, which is not to blame. If a suitable post, preferably in his line, could be found for Peti.tioner, a wrong would be righted, the harshness of the law softened a.nd tempered, and t'he 1riterests of justice and equity served. Chief Justice Paras and Justke Brmti4ta Angelo, concur. 418 THE LAWYERS JOURNAL 'August 31, 1954 IX Fulg~11cio Veua a1Ul Lerm Gellffda, Plaintifj11.Appdlecs, vs. The Municipal Bot1rd of the City of lloilo et af., etc., D1Jfendants Appellants, G. R. No. L-6765, Ma,y 12, 1954, Concepcion, J. 1. MUNICIPAL CORPORATIONS; POWERS AND DUTIES OF; POWERS STRICTLY CONSTRUED. - Municipal corporations in the Philippines are mere creatures of Ccng~·ess. As such, said corporations have only such powers as tlle legislative department may have deemed fit to grant them. By rer.son o( tlie limited JlOwers of local g(lvcrnments and thP nature thnt:vf, said powers a.re to be construf-d strictly and "any doubt or ambiguity arising out of the terms used in grunting" s:i.icl powers "must be resolved agninst the municipalit'y," 2. ID.; POWERS AND DUTIES OF THE MUNICIPAL BOARD OF THE CITY OF ILOILO. - Section 21 of Comn1onwealth Act No. 158, creating the chartr.r of the City of lloilo, limits t'he power of the Municipal Board to regulate "any bu&iness or occupc.tion"; obviously, the 1,1se ct a street, road or highWay hr a motor vehicle is neither a. business nor an occupation. S. ID.; POWER TO INSPECT l\IOTOR VEHICLES; COMMONWEALTH ACT NO. 158 SUBJECT TO LIMITATIONS OF' ACT _ NO. 3992.-Ac_ t No. 3992. as amended by Repul:ilic Act No. 587, grants the Di1·ector of Public Works, among others, the pcw"r to determine whether a motor vehicle is in such a condition a!I to be safe for its passengers and the public in general . Considering the general t'em;r of the prevision!! of 11aid At't, as· well as those of the Charter of the City of lloilo, Congress did not intend to clothe the fatter wit'h authority to impose certain requirements - in addition to those p1·ovided in Act No. 39!'12, as a.mended - as a condition precedent \'o the use of motor vehicles within the limits of the City of lloi\o. Filemon Ret1•treccion for the defendants and appel~ants. I~1ds G. Hofilmia for the plaintiffs and appellees. DECISION CONCEPCION, J.: This is an aeti.on for a declaru\.'ory relief (under Rule 66 of the Rules of Court> to test the validity of Municipal Ordinance No. 35 of the City of lloilo, enacted on July 12, 1951, which provides: ··section 1. No motor vehicles, whether for public or private usa, with the exception of those owned and operR.ted by the Republic of the Philippines, the Provinces of Iloilo, Capiz and Antique, and the municipalil.'ies thereto appertaining, the City of Iloilo, and those new motor vehicl<'s offered for sale by dealers, but not used for transportation purposes by such dealers. shall use any street, road or highw:i.y within the territorial limits of the City of Iloilo without being provided with certificate issued by the Traffic Division of the Police Depa.rt\nent of this City, • stating that said vehicle 'has been inspected by said Traffic Division, and found to be provid-2d with safe brakes and appurte. nances making the use of the same travel wortlly and safe for passengers and pedestrians alike. The certificate shall be at .. tached or posted in a conspicucu1; place in th~ corresponding motor vehicl~, preferably on th<! wir.dshield glas:i facing the frC'nt. "Section 2. All owners and/or C1peralor,;; of the motor vehicles hereinabove mentioned must submit his motor vehicles for insnection by the Traffic Division of l'he Police Dl!partment of this City within ten days upcn acquisition of the same from the origins.I owner, and witllin the period from January 1 to February 28, and from July 1 to August' 30 of each year if tne same has previously been mspected and certific:d tv be trave! worthy by said Traffic Division. "Section 3. For the services rendered by the Traffic Division in the inspection and certification of any motor vehicle the owner or flperator of tht> samt> shall pay to the City Treasurer a f~e as follows: "For every automobile, jc<'p, or station wagon for ---~...... ~00 "For evury truck per semester 5. 00 "For ev<'ry motorcycle per semester 1. Of• "Provided, however, that no more than twv inspection fF:es shall be charged within one year an·d all other inspections on the same vehicle shall be free of charge. "Section 4. All motor vehicles coming from outside of thto territorial limits of thi.! City lor the first time shall immediately repPrt fot inspection to the Tratfic Division, and l'he payment of the required fee may be made within ten day9 from the date of said inspection, and the issuar.ce of the certifica\.'e shall not be delayed for non-nayment when and if said motor vehicles are found to be travel worthy and a sufficient personal OOnd f(lr the payment of tile required foe is fiJ:ed with and accepted by the Chief of Police or his authorized agent. "Section 5. Failure to cvmply with the provisions of this ordinance shall be punished with a fine not less than \.'en pesos (Pl0.00) but not more than two hundred 1iesos <P200.00) or an imprisonment not excC'eding £ix <6> months or both fine a.nd imprisonment at t'he discretion ".lf the court." "ScC'tion 6. This or<linanc~ shall take effe~~ upon approval.'' <pp. 12-15, Record on Appeal.) The cai::e was commenc~d in tht> Court of First lnst:mce of lloilo by Fulgencio Vega and LC::on Gellada, who own motor vehicles and are affected hy the enforcement' of s:iid ordinance. They question the validity th~reof upon the i?round that the Municipa.l Board of the City of llcih - · which wns made defendant, in addit'ion to the City Mayor - h::.s no authority to prc-muigr..te it . 0:1 motion of the 'plaintiffs, and without objection on l'he part of the defendants, the case was submitt1::d for decision on the pleadings, the only issue raised thHein being one purely of law. Thereafter, said court, presided o\·er by H~norable Qucrubc l\1akalint.al, then Judge, rende1ed judgment: for the p'aintiffs. Hence, this appeal, taken by the jefendants, who maintain thnt the municipal Bo~rd of the City of lloil•J is em. 11owered to pass 01·dinance in question, under section 21 of its charter Commonw~rn.lth Act No. 158. The provisions tbereof relied upon by appella.nts read: "SEC.. 21. Gener'll 71ow.::1·s nnd duties of the Baard. - Except as otherwise provided by law, and subject to the con- ' ditions and limi\.'ations thereof, the Municipal Board shall have the following legislative powers: "taa> To eni;ct all ordinances it may deem necessary and pl.'oper for the sanitation and snfety, the furtherance of t.he prospf'rit'y and the promotion of the morality, peace, good order, comfort, convenience, and general welfare of the city and it!! inhabitants, and such otht>rs as may be necessary to carry into effect and discharge the powJ?rs and duties conferred by tbis charter; and to fix penalties for the violation of oJ"dinances, which shall not exceed a fine of two hundred pesos. or six months' imprisonment, or bot'h such fine and imprisonment, for each offense. ''!cc) To regulate any business or occupation and to require license from persons engaged in the same or who exercise privileges in the city, by requiring them to secure a permit for o. license at the rate fixed by t'he Municipal Board, and to prescribe the conditions under Which said permits for licenses may be revoked." The forcgPing paragraph (cc) is limited, however, to the power to regulate "any business or occupation" whereas, obviously, the u~e of a st'l.'ect, road or highway by a motor vehicle is neither a. t.usii~t:ss nor an occupation. Hence, it is clear that said paragraph {cc) i~ not in point. As regards paragraph laa), the same is a counterpart of section 2238 of the Revised Administrat~ve Code, otherwise known as the "General Wdfare Clause" for regularly organized municipalities. In the case of People vs. Esguerra et al. {45 Off. Gaz. 4949), it was t.eld t' at a municipal council may not valid~y enact an or,!inance "piohibiting," among other things, l'he manufacture, productfon, aalr:, barter, giving or possession of intoxicating liquoL·, the power of August 31, 1954 THE LA WYERS JOURNAL 419 said body being limited, by section 2242(g) of the Revised Administrative Code, to the "regulation" - which does not include the "prohibition" - of said acts, and that the police power ander the general welfare clause does not amplify said authority or remove the limifution thus imposed by spr:cific provision of law. Under Commonwealth Act No. 158, the authority of the Municipal Board of the Cit.'y of lioilo in relation to motor vehicles, is found in subdivision (m) of section 21 of said Act which grants said board the power "(m) To t'ax motor and other vehicles, notwithstanding provisions to the contrary conta.inl;!d in Act Numbered Thirtrnine hundred and ninety-two, and draft animals not paying any national tax: Provided, however, That all automobiles and trur.ks belonging to the National Government, and also automobiles or trucks not regularly kept in the City of Iloilo shall be exempt from such tax." This power of taxation is distinct and different from the police power, under which, appellants claim, the ordinance in question was allegedly approved. Moreover, said Commonwealth Act No. 158 explicitly empowers the Municipal Beard of the City of Iloilo to require inspection and to charge fees therefor in rert'a.in specified case1. Thus, 1aid section 21 authorizes said board: "(n) To regulate the method of using steam engmcs anrt boilers, other than marine or belonging to the Federal or National Government: to provide for the inspection thereof, and a reasonable fee for such inspection, and to regulate n.nd fix the fees for the licenses of the engineers engaged in operating th~ <Underscoring supplied.> "(s) To regulate the inspection, weighing, and measuring of brick, coal, lumber, and :>ther articles of merchandise. "Ct') x x x to provide for the inspection of, fix the: licPnse fees for and regulate the openings in the same for the laying of gas, water, sewer, and other pipes, the building a.nd repair of tunnels, sewers, and drains, and all structure .. in and unaer the same, and the erecting of poles and the stringing of wires thnein; xx x. · "(w) To regulate, insvect, and provide measures preventing any discrimination or the exclusion of any race or races in or from any institution, establishmenr, or service open to the public within the city limits or in the se.le and supply of gas or electricity, or in the telephone and street.railway service; to fix and regulate charg1::s therefor where the same have nn; been fixed by laws of the National Assembly; to -regulate and proVide f.r tJu iupection of all gas, electric, telephone, and street-railway conduits, mains, meters, and other apparatus, and provide for the cor.dem!lation, substitution or removal of the same when defective or dangerou,s." Among these cases, the inspection of motor vehicles and the collection of fees therefor is not included. Consequently, the power to authorize same must be considered denied under the principle ex. pressio uniu.s est ezclusio alterius. Indeed, the powers enumerat'ed in said section 21 of Cemmonwealth Act No. 158, including, therefore, the police power under the 1reneral welfare clause therein incorporated, are granted "except aa otherwise provided by law and subjed to t'he conditions and limitations thereof." In this connection, section 70(b) of Act No. 3992, as amended by section 17 of Republic Act No. 587, positively ordains thaC: "No other taxes or fees than those prescribed in thi'i Act shall be imposed for the registrt:tion or operation or on the ownership of any motor vehicle, or for the exercise of the profession of chauffeur, by any municipal corporation, the p1·0visions of any city charter b the contra1·y notwithstanding: Provided, howe1ier, That any provir.dal board, city or municipal council or board, or other cor11pttf'nt authority may exact and collect such real'!onable and equitable toll fees for the use of such bridges and ferries, within their respecth·e jurisdictions, as may be authorized and ap;H'oved by the Secretary of Public Works and Communications, and also for the US\! of such public roads, as may be authorized by the President of the Philippines upon recommendation of the Sect·etary of Public Works and Communications, but in none of these cases, shall any toll fees N! charged or collected until and unless the approved schedule of tolls shall have been posted legibly in a conspicuous place at such t:oll station." The qualification "the provi.!lion:i of any city charter to the contrary notwithstanding" leaves no room for doubt that t.'he provisions of Commonwealth Act No. 158, and its general welfare clam~e, u11.der section 21Caa), are subject to limitations thus imposed by Act No. 3992, a.s amended by R12.public Act No. 587. This wnstniction becomes even more imperative when we consicier that, pursuant to said Act No. 3992, "No' mot:or vehicle shall be used or operated on, or upnn any public highway of the Philippine Islands unless the same is properly 1egistered for the current year in accordance with the previsions of this Act" <Sec. 5[a]), and that section 4 of the s:i,me Act: place& the Director of Public Works "in charge of the administr.ation" of its provisions, and grants him, among others, the power "<hl x x x at any time t:o examine and inspect any motor vehicle, in order to determine whether the same is unsightly, unsafe, overloaded, improperly marked or equipped, or otherwise 1m/it ti) be operated because r:if possible danger to the ch.<mffeur, Co the passengers, or the public; or because of fl"ssible excessive danmge to the highways, bridges or culverts." <See. 5, Act No. 3992.> Thus, the power to determine whether a motor vehicle is in such a condiifon as to be safe for its passengers and the public in general, is vesterl by Act No. 3!Hl2 in the Director oi Public Works. Considering the general tenor of the provisions of said Act, as well as those of the charter of the City of Iloilo, we are not: pre11ared to hold tha.t Congress intended to clothe the latter wtt:h authllrity to impose certain r-?quirements - in addition to those provided in Aet' No. 3992, as amended - as .'\ cor.dition precedent to tl.e use of motor vehicles within the limits of t'he City of Ikilo. lt is even harder to believe that the latter w:l.s sought to b~ invented wit'h authority to (Jrdain that! the police department of lloilo shall check whether an offic~r of the Nation'!ll Govunment, namely the !Jirector of Publi<" Works, has complied with his duty to t:est the mechanical )Jroficiency of the safety devices of motor vehicles, on which the latter is supposed to be better qualified. Municipal corporations in the Philippines are mne creatures of Congress. As such, said corporations have only such powers as the legislative department may have deemed fit to gr;:.nt them. By reason of the limited powers of local governments and t'he natur~ thereof, said powers a.re to be construed strictly and "any doubt or embiguity arising out of the term used in grani:ir:~" said powers "must be resolved against the municipality. xx x (Cu Unjieng vs. Patstone, 42 Phil., pp. 818: 830; Pacific Commercial Co. ,.:.;. Romualdez, 49 Phil., pp. 917, 924; Batangas Transp0rtation Co. vs. Provincial Treasurer of BaCanga.s, 52 Phil., pp. 190, 196; B<tldwin n. Coty Council, :>3 Ala., p. 437; Statt' vs. Smith, 31 Iowa, p. 493; 39 Am. J nr., pp. 68, 72-73) ." Cic::ird vs. The City Council ')f Baguio and Thf' City of Baguio, 46 Off. Gaz., Supplement No. 11, pp. 320, 323.) Accordingly, the lower court did not err in declaring that the ordinar.ce in quesfion is ultra vires. WHEREFORF~. the decision 11ppealed from is hereby affirmed, without special pronouncement a.s to costs. IT IS SO ORDERED. Parwi, Pa.blo, Bengzon, Montemayor, Reyes, Jugo , B.iuti.sta Angelo and Labrad<>r, J.J., concur. Afr. Just~c Padilla did not take iiart. 420 THE LA WYERS JOURNAL August 31, 1954 x Rehabilitation Finance Corporation, Petitioner, 'Vt. The Honorable Court of Appeu-ls, Estelito Madrid and Jesus Anduiza, RtspOndents, G. R. No. L-5942, May 14, 1954, Concepcion, J, 1. OBLIGATION AND CONTRACTS; PROMISSORY NOTE PAYABLE IN INSTALLMENT. - Where the makers of the promissory note promised to pay the obligation evidenced thereby "on or he/ore October 31, 1951," although t'he full amount of said obligation was not demandable prior to October 31, 1!151, in view of the provision of the note relative to the payment in ten annual installments, the makers or debtor11 Wtte entitled to make a comp!rte setl1emcnt of the obligation at any time before said date. 2. ID.; RIGHT OF CREDITOR. -- The Bank, as creditor, has no other right than to cxacC payment, after which the Qbliga.tion in question, as reg!lrds 'lsid creditor, and, hence, the latter's status and rights as such, become aut'omatical\y extinguished. 3. ID.; PAYMENTS MADE BY THIRD PERSONS. - Unde.r article 1158 of the Civil Code of Spain, which was in force in the Philippines when the payments under consideration were made, "pa.ymerit may be made by any person, whether he has an interest: in the performance of the obligation or not, and whether the payment is known and approved by the debtor or whether he is unaware of it." 4. ID.; ID.; PAYMENTS MADE AGAINST WILL OF DEBTOR. -The provision that the payor "may only recover from the debtor insofar as t.1le payment has been beneficial to him," when made against his express will, is a. defense that may be availed of only by the debtor, not by the Bank-eredito1·, for it affects solely the rights of t.11e former. Besides, in order that the rights of the payor may be subject to said limitation, the debtor must oppose t:he payments before or at the time the same were made, not subsequently thereto. 5. ID.; ID.; EFFECTS OF PAYMENT DETERMINED AT THE TIME IT WAS MADE; RIGHTS ACQUIRED BY PAYOR DEPEND UPbN LAW. - The effeds of payment must be determined at the time it: was made and the rights acquired by the payor should not be dl'!'eudent upon, or subject to modification~ by, subsequent unilateral acts or omissions of t'he debtor. The question whether the payments were beneficial or not to the debtor, depends upon t'he law, not upon his will. Si.xto de la Costa for the petitioner. Zacarias Gutierrez f,f>'ra for the respondent Jesus de Anduiza. DECISION CONCEP<;:ION, J.: This is a.n appeal by cert'iorari, taken by the Rehabilitation Finance Corporation, hereinafter referred to as the Bank, from a decision of the Court of Appeals. The pertinent facts are set forth in said decision, from which we quote: ''On October 31, 1941, Jesus de Anduiza and Quintana Cano executed the following promissory note - Pl3,800.00 Lega.spi, All.Jay, October 11, 1941 On or before October 31, 1951 for value received, I/wt!, jointly and severally, promise to pa}' the AGRICULTURAL AND INDUSTRIAL BANK, or order, at its of. fice at Manila or Agenoy at: Legaspi, Alba.y, Philippines, the sum of THIRTEEN THOUSAND EIGHT HUNDRED PESOS CP'13,800.00>, Philippine currency, ·,vith interest at the rate of six per centum (6%), per annum, from the date het·eof until paid. Payments of t.'he principal and the corresponding interest arc to tw made in ten <10 yrs.) equal Annual installments of Pl,874.98 each in accordance with the following schedule of amorti1ations: All unpaid inst:allments shall bear interest at tht: rate of six per centum (6%), per annum. <Sgd.> QUINTANA CANO \Sgd.) JESUS DE ANDUIZA Mortgagor Mortgagor" CExhlbit ·'C") Mortgagors Anduiza 9nd Cano failed to pay the yeart} amortizations that fall due on October 31, 1942 and 1943. As plaintiff Estelito Madrid, who was at the outbreak of the last war the manager of the • branch office of the National Abaca and other Fiber Corporation in Sorsogon, and who temporarily lived in the house of Jesus de Anduiza in said province during the Japanese OCC\.l~ation, learned of the lat.ter's failure to pay the aforesaid amortizations due the creditor Agricultural and Industrial Bank, he went to its central office in Manila on October, 1944, and offered t.o pay the indebtedness of Jesus de Anduiza. Accordingly, he paid on October 23, 1944, f'7,3'14.83 for the principal, and P2,265.17 for the interest, or a t'otal of !"10.000.00 <Exh. 'A'), thereby lea.ving a balance of P6,425.17 which was likewise 9aid on October 30th of the same year <Exh. 0 B'L Alleging that dl?'fendant Jesus de Anduiza has failed to pay the plaintiff in the amounC of Pl6,425.l 7 inspite of demands therefore, and that defendant Agricuultura.l and Induatrial Bank (now R.F.C .) refused to cancel the mortgage executed by said Anduiza. Est:elito Madrid instituted the present action on Juiy 3, 1948, in the Court of First Instance of Manila, praying for judgment <a) declaring as paid the indebtedness amounting to P16,425.17 of Jesus de Andui:ta. to the Agricult:ural and Industrial Bank; <b) ordering the Agricultural and Industrial Bank (now R.F.C.) to release the properties mortgaged to it and to execute the corresponding cancellation of the mortgage; (c) condemning defendant! Jesus de Anduiza to pay plaintiff the amount of !'16,425.17, with legal interest from the filing of the complcint until complet:ely paid, declaring such oblig<ition a preferred lien over Anduiza's properties which plaintiff freed from the mortgage, and sentencing the defendants to pay \.'he plaintiff the sum of 1"2,000.00 as da.: mages and the costs, withaut prejudice to conceding him other remedies just and equitable. On July 14, 1948, defendant Agricultural and Industrial Bank <now R.F.C.) filed its answer, alleging that the loan of Pl3,800.00 had not become due and demandable in October, 1944, as the same was payable in ten years at !'1,874.98 annually; that up to October 30, 1944, plaintiff delivered the total sum of Pl6,425.l 7 lh the Agricultural and Industrial Bank and which accepted the same as deposit pending- proof of the existence of Jesus de Anduiza's authority and approval which plaintiff promised to present; that' it was agreed that if plaintiff could n.Jt prove said authcrity the deposit will be annulled; and that the Agriculi.\ual and Industrial Bank and it1 successor the Rehabilitation Finance Corporation cannot release the properties mortgaged because defendant Anduiza refused t!o ;;,pprove, authorize or recognize sa.id deposit made by plaintiff. It is further averred, as special defense, that the amount of Pl6,425.p, in view of the refusal of defend.int Jesus de Anduiza to apprmtc and authorize same for payment of his loan, was declared null and void by Executive Order No. 49 of June 6, 1945; that on June 4, 1948, defendant Anduiza personally came to the office of the Rehabilitation Finance Corporation, apprising it that he did not: authorize the plaintiff to pay for his loan with the Agricultural and Industrial Bank; and that on June 4, 1948, he paid t.'he sum of P-2,000.00 on account of his loan and interest in arrears.. Defendant Agricultural and Industrial Bank (now R.F'C. l therefore prayed (1) to dismiss the complaint and tO declare plaintiff's deposit in the sum of rl6,425.17 null and void in accordance with the provisions of Executive Order No. 49, series of 1945; (2) to concede to defendant Agricult:unl and Industrial Bank such other legal remedies which may be justified in the premises; and C3> tn order plaintiff to pay the costs. August 31, 1954 THE LA WYERS JOURNAL Defendant Jes us de Anduiza filed his answer on August' 9, 1948, with special defenses and counterclaim, alleging that when plaintiff paid the total :imount of P16,425.17 to the Agricultural and lndust:rial Bank his indebtedness thereto was not yet due and demandable; that the payment was made without his knowledge and consent; that the Agricultural and Indu.st'rial Bank did not accept the amount of !"16,425.17 from Estelito Madrid as payment of his loan but as mere deposit to be ,applied later as payment. in the event he would approve the same; that said deposit ·..r.is declared null and void by Executive Order No. 49 of June 6, 1945; that on Jmie 4, 1948, he personally informed the officials of the Rehabilit:llfon Finance Corporation that he did not authorize the plaintiff to pay the AgrlcuJtura.1 and Industrial Bank for his loan; and that on the same date he paid the corporation the swn of P2,000.00 on accowil! of his loan and the interest in arrears. On June 20, 1949, the trial court rendered in favor of the plaint-iff a judgment which was set aside later on upon motion of counsel for the Rehabilitation Finance Corporation on June 28t!h, in which it was alleged that his failure to appear at the hearing on June 9, 1949, was due to a misunderstanding. Consequently, and after defendant corporation had introduced ita evidence, the court on August 11, 1949, rendered decision dismissing plaintiff's complaint without pronouncement as to costs. On or about September 7, 1949, defendant Jesus de 4\nduiza filed an amended answer which the trial court, upon considering the same as well as his eo-defendant's opposition t:hereto, denied its admission on September 20, 1949. The motion for new trial filed by defendant Anduiza and plaintiff Estelito Madrid was likewise denied for la.ck cf merit on the same date, September 20th. Consequently, plaintiff Estelito Madrid and defendant Jesus de Anduizc brought this case to this Ccurt by way of appeal, x x x." (pp. 1-6, Decision, C.A.l Upon the foregoing facts, the Court of Appeals rendered the aforement.'ioned decision, the dispositive part of which reads as follows: ''WHEREFORE, the judgment appealed from is hereby reversed, directing the Rehabilitation Finance Corporation, successor in interest of the Agricultural :ind lnd'..lstrial :Bank, to cancel tlte mortgage executed by Jesus de Anduiza. and Quintana Cano in favor of said bank; and ordering Jesus de Anduiza t.o pay plaintiff Estelito Madrid the amount of 1"16,425.17 without pronouncement as to costs." (pp. 17-18, idem. l The Bank assails said decision of t'he Court of Appeals upon the ground that payments by respondent Estelito Madrid had been made agai~st "the express will of Anduiza and over the objection of the Bank; that the ~atter accepted said payments, subject to the condition that a written instrument, signed by Anduiza, authorizing the same, would be submitted by Madrid, who has not! done so; that the paynients in question were made by Ma.cl.rid in the name of Anduiza and, therefore, through misrepresentation and wil..'hout good faith; that said payments were not beneficial to Anduiza; and that the obligat'ion in question was 11ot fully due and demandable at the time of the payments aforementioned. At the outset, it: should be noted that the makers of the pro... missory note quoted above promi~d to pay the obligation evidE-nced thereby •·on or before October 31, Hl51.'' Although the full amowit: of said obligation was not demandable prior to October 31, 1951, in view of the provision of the note relative to the payment in ten <10) annual installments, it is clear, therefore, that the makers or debtors were entitled to make a comple~ settlement: of the obligation at any time bef01'6 said date. With reference t:o the other arguments of petitioner herein, Article 1158 of the Civil Code of Spain, which was in force in the Philippines at the time of the payments under consideration and of the institution of the present. case <JuJy 3, 1948), reads: "Payment may be made by any person, whether he ha.i. an interest in the performance of the obligatiol' or not, and whether the payriienl is kuown ::ind approved by the uebtor 01 whether he is unaware of it. "One who makes a payrnt>nt for the account of anothe1 may recover from the debtor the amount of the payment, un. less i~ wa.s made against his express will. "In the latter case he ~an recover from the debtor on))· in so far as the payment ·has been beneficial to him." It is clear therefrom that respondent Madrid was ent~tled to pay the obligation of Anduiza irrespective of the latter's will or that of die Bank, and even over the objection of dthcr or both. Ccmmenting on said Article 1158, Manresa says: "Si cs amplio el principio deelarado en el art. 1158 por raz6n de las personas a que se cxtiende, no lo cs menos por la ausencia de restricciones basadaa E.n la voluntad del deudor. La primera parte de dicho a.rticulo parece limitar la posibili. dtd del pago por un tercero a Joe casos en que el deudor eonozca y apruebe tal hecho o lo ignore. Pero hs dos pirrafos siguicnt'es exticnden tal posibilidad al caso en que el deudor desapruebe el pago y aun se oponga a que lo verifiquen, pues. to que determinando la. ley los efectos, si bien parciales, limitados, que un pago hCcho en tales C•.mdiciones puede producir contra cl mismo deudor que a tl se opuso, es claro que al atribuirlt tales efeetos le atribuyc plena eficacia respecto de! acreaJor, que 110 esta autorizado para hace-r oposici011 alguna. "Menos duda aU.n puedo ofrecer la validez <lei pago, conociendolo el deuder y omitiendo exprcsar su conformidad; hipOtcsis menos extrema que la anterior, y en la cual puede verse incluso una aproba.cion tacita, aprobacion quc autoriza, incluso la subrogaciOn misma del tercero, segun veremos al hablar de la novacicin. "Tenernos, por tanto, que sea cual fuere la situaciOn en que este' o se coloque el deudor respec& del pago hecho por un terttro, no irnpide a e'ste verificarlo con eficacia respecto del acreedor, y aUn ta.mbicn respecto de aquill mismo, segun se expresa lucgo. "La jurisprudencia, confirmando el sentid.:i de la ley, ha venido a declarar tambie'n que no es neccsario para el 11ago el concurso del deudor; asi vienen a estableccrlo la scntencis de 4 de .Novicmbre de 1897, que ratifica los j)l-eceptos contcnidos en cl a.rt. 1158 yen el siguicnte, y la de 5 de Abril de 1913, declarativa de que, sicndo el pago de una deuda e} medio mlls directo de extinguir la oblif!'acicin, aclo quc mejora la situaciOn del prestatario, juede realizarlo cualqui'."ra aun contr«diciencfolo o ig11-0rd11dolo aquel. En la jurisprudencia hipotecaria hay una resolucici'n de la DirecciOn general de los Regist'ros de 22 de Marzo de 1893, nmy explicfta c im1iortante, en las cual se dcclara respccto de esta cucstiOn que 'el pago es un acto jur,dico ta.n independiente dtf deudor, que puedc ser firme y valedero hecho por tcrcera persona que no tenga interCs en la obligaci6'n, y aUn cuando el deudor Jo ignore tot'almente, segUn cl art. 1158 de] COdigo civil'; que 'de csC' principio legal se deduce qur, no cabe reputar nulo el pago de una obligaciOn porque faltc el consentimiento del deudoi, ni menos estimar nula. la escritura en que el pago constc, por carecer de la firma de este'; que 'en ese modo de extinguirse las obligaciones, lo verdadcramente capital es la voluntad dcl acrccdor, y asi 1o ha ent!endido el articuki 82 de la ley Hipotecaria, al no cxigir pa..ra la cancclaciOn de las hipotecas mis quc cl conscntimiento de aquel en cuyo favor se hallen conatituldas'; y por ultimo, que 'aunque cl art. 27 de la ley de! Notariado exige bajo pena do nulidad quc se firmen las escrituras, se r efiere a los que en clla.s interviencn en calidad de otorgantcs, denominaciOn que en los actos unilakrnles cuadra t.o.n &!Io al que en vi rtud de los mismos queda obligado' . "No ha sido menos cxplfoita y fundada la jurisprudcncia en cuanto a decla.rar que tampoco £l «creedor 1medc impedir vi'tlidaniente el pa.go M.clw por UIL tcrcero, declariCndosc en la sentencia de 4 de Novicmbre de 18!:17, a que aiites &e hizo referencia, que ni estos preceptos que comentamos, ni Joa demas de csta 422 THE LAWYERS JOURNAJ, August :n, 1954 seccion o de otros luga res de! C6digo, aplicables a la mat'erii.., 'ni el a.rt . 1161 de la ley Proccsal, requieren el consentimiento dC?l acreedor para la eficacia del pago y para la consiguiente subrogaciO'n, 11orq1'e su derecho, que no va mt!:; alla del cumplimi~nto <le las oblioa.ciC1ne11, se acabct o e::x:tingue con. el pago' . Pudiera creerse que la doctrina de dicha sentencia era opuesta a la deo la DirecciOn, que antes hemos transcrito, y que est'a reconoc(a la facultad del acreedor para conSentir o impedir el pago; pero lcjos de ser as{ no hay contradicci6n, limit:lndose dicho Centro directivo a exponer el evideni:e requisito de que para Jos efec:tos del registro no puedcn considerarse extinguidos los derechos del acreedor sin que e'ste intervenga en al pago, pero esto no e::x:cliJye q1i.e los le pueda imponer la admi.tio"n de eate contra su voluntad." <8 Mamesa, 4th ed. , pp . 242-243; underscoring supplied.) This is in line wi\.'h the view of Mucius Scaevola, which is ss follows: "En efecto; el unico drreclw del acreedor en las obligaciones t:s el de que se le pague. No puede, por lo tanto, oponerse a que la obligaci6n le sea cumplida por una persona distinta del deudor. Por otra parte, el deudor queda libre de su compromiso desde el momento en que el credito esta satisfecho, puesto quc a partir de entonces, nada se dehe. Podran, pues, discutirse los efectm: del pago hecho por una tercera persona en cuanto a la relac1on que de es~o se deduzca para lo sucesivo cntt-e el tercero 11 el deudor; pero negar que la deuda queda liberada, desatado el vinculo, perdida en el acreedor la facultad de reclama r ii insubsistente sobre el deudor el pago de su compromiso seria de todo punto ~merario. "Lo presumible es que tenga interes en el cumplimiento de la obligaciOn quien trata de snstituirse al deudor en el pago; es natural !a defensa de los intereses propios, y poco corrient:e y poco acostumbrado, que por purn generosidad, se satisfaga la deuda de otros sin algun beneficio por pa rte del que de estas rnanera procedc. En este sontirlo, el fiador, que es, si no un deoudor principal, deudor al fin, puesto que ha enlazado sus interes'es, con su cuenta y razon, a los de la persona obligada, y se ha comprometido siibsidiariamentc con ella al pago de lo que se debia, se adelantara muchas veces, por dislintos motivos a pagar la deuda, teniendo en ello propio y legitimo beneficio. A pa rte del interes juridico, motivos parti<'ulares de otro orden, que implican un genero cualquiera de provecho, pueden mover t:ambien el animo de una tercera persona para sustituirse en el lugar de! deudor. .. Pero ni siquiera se necesita que es to suceda. Laa doctrinaa ju,{dfoas han permitido que haga el pago cualquiera per30fttl., tenga o no interes en el cumplimiento de la obligaciOn, segun expresamente det'ermina el art. 1158 del CO digo. Es de 1>uponer el intere's, naturalmente, por lo que decimos m8s ar riba; pero la Icy se reconoce sin facultades para entrar en este terreno, y obediciendo a las meras consideraciones jurfdicas de la satisfi!cciOn del compromiso por la entrega de la cosa o prestaciO'n de! hecho y de la libera.ciO n consiguiente de! deudor, prescinde del genera de motivos interesados o desinteresados, incluso de mera liberalidad, que hayan pedido producir la determincion de la tercera persona que ofrece al acreedor la realizaciOn del compromiso. " Y no para en esto ; sino que el mismo art. 1158 esta.blece que Podra hacer el pago cualquiera persona, ya lo conozca o lo apruebe, ya lo ignore el deudor. Anticip3ndose, adem3s, a la pregunCa de lo que sucederi en cl caso de que el deudor lo conozca y no lo apruebe, afiade a continuaciOn que el que pague por cuenta de otro podra reclam3r del deudor lo que hubiese pa(!:ado, a no haberlo hecho contra su expresa voluntad. Es lo que se decia. en la ya citada ley de ]>a.rtUfas: 'aunque el deudor lo supiese 11 lo contradijese' . "Ahora bi en ; en al gun caso de estos, podr& el acreedor negarse a recibir la deuda? Yo lumws dicko que no. Su derecho se reduce en todo caso a pedir y a recibir lo que se le debe. Es indiferente para el la cualitls.d de la persona que llega a au prcscncia, poniendo en sus manos el he<:ho o lo cosa que son debidas. Habra ocasiones en que, por motivos de lndole particular, el acrcedor se sienta ccntrariado en r(!cibir la presentaci6n de un tercero. El prestamista, por ejemplo, que crea. haberse asegurado el disfrute pcrpctuo de las rentas de su deudor. ae vera amargamente sorprendido con el pago hecho por un tercero, que da al traste de esta manera en un segundo con las risueiias esperanzas de toda la vida. :Motivos de esfe orden, y tam bi en otras veces algunos mas el<?vaJ.os, impulsaran al acreedor a resistir el pago de lo que se le debe. Sin embargo, el derecho no ha podido tomar en cucnta nini;una de talcs consideraciones, con las que sc iria en definitiva. contra el principio de haber de aceptarse todo aqucllo que resulte favorable para el deudor. Por Io tanfu en caso de resistencia, el tercero que ofrece el pago tendr:i dereclio a consignor la cosa debida como si fuese el deudor mismo, dando a la. consignaciO n cuantos efectos le estan asignadoe por la ley:" <19 Soaevola, pp. 881-88~ ; underscoring supplied.> The opinion of Sanchez Roman is couched in the following language: "Los terccros extrafios a la obligaci6n pueden pagar, ign0ra"ndolo el deudor, sabiindolo y no contradicie'ndolo o sabii'ndolo y con.tradiciCndolo. En el primer ca.so existe una gestion de negocios; en el segundo, un mandato eacito; y en el tercero, se produce una cesiOn de credito, x x x." '"En el caso de pago hecho por un tercero, el acreedor n.o puede negarse a recibirlo, y cualquiera resistencia le constituira en la responsabilidad de la mora accipiendi. Cierto que esta. no es regla exprcsa de ley ni de jurisprudencia, pero es buena doctrina de Derecho cientifico, generalizada entre los escritores, y de la cu al dice Goyen a, con razor,: La ley no puede pennitir que el acreedor se obst'ine maliciosa.mente en conservar la facultad de atonnentar a su deudor, que un hijo no pueda extinguir la obligaciOn de su padre, ni esta la de su hijo o su amigo, o un hombre benefico la de un desgraciado ausente. Y no se diga que el tercero no tiene mis que entregar el dinero aJ deudor ' para que haga directamente el pago; pues en el caso de ausencia esto cs imposible, y en otras ocnsiones la delicadeza fru1\.'raria las miras del hombre bienhechor." (4 Sanchez Homan, 259-260; underscoring supplied.) It may not be amiss to add that, contrary to petitioner's pretense, the payments in question were not made against the objection either of Anduiza or of the Bank. And although, later on, the former questioned the validity of the payments, subsequently, he impliedly, but clearly, acquiesced therein, for he joined Madrid in his appeal from i'he decision of the Court of First Instance of Manila, referred to above. Similarly, the receipts issued by the Bank acknowledging .said payments without qualification, belie its alleged objection thereto. The Bank merely demanded a signed statemc mt: of Anduiza sanctioning said payments, as a condition precedent , not to its ae. ceptance, which had already been made, but to the execution of the deed of cancellation of the mortgage constituted in favor of said institution. Needless to 11ay, this condit.'ion was null and void, for, as pointed out above, the Bank, as creditor, had no other right tha.n to exact payment, after which the obligation in question, as rega.rds said creditor, and, hence, the latter's status and rights as such, become aUtomatically extinguished. Two consequences flow from the foregoing, namely: 1) ThE' good or bad faith of the payor is immaterial to thE' issue before us . Besides, the exercise of a right , vested by law without any qualification, can hardly be legally considered as tainted with bad faith. Again, according to Sanchez Roman ''para que el pa.go hecho por el tercero cxtinga la obligaciO'n, es preciso qiu ae realice a nOmbre del dendor ." (4 Sanchez Roman, 260 .) Accordingly, the circumstance that payment by Madrid had been effected in the name of Anduiza, upon which the Bauk relies in support of its aforesaid allegation of bad fait.h, does not prove the existence of the latter. August 31, 1954 THE LA WYERS JOURNAL 423 The above pl,oto, a Journal exclusive, shows the Supreme Court~ during the hearing of the "Judg~s' case" (Felicisimo Ocampo, et al. vs. The Secretary of Justice, ct al., G. R. No. L-7910) . At issue is the constitutionality of Section 3 of Republic Act No. 1186 which abolished the positions of judges-at-large and cadastral judges. l'en judges-at-Ia1·ge and cadastral judges who were eased out of the judiciary in virtue of this provision alleged violation of the constitutional guarantee of judicial tenure, Shown standing at the extreme right is former Senator Vicente J. F1·ancisco, chief c,ounsel for the ten judges, as he pleaded the cause of judicial independence and the inviolability of judicial tenure. The former senator contended that the office of judgesat-large and cadastral judges is the exercise vf jurisdiction in Courts of First Instance throughout t.he country. Since, he argued, REpublic Act No. 1186 maintalned all the Courts of First Instance established under the Judiciary Act of 1948, the office of judges-at. large and cadastral judges still exists and consequently, the ouster of the ten judges amounted to their removal from office, in violation of the constitutional guarantee of tenure of judicial office. Other lawyers who appeared for the judges were former Ambassador Proceso Sebastian who maintained that Republic Act No. 1186 ''virtually convicted the ten judges before the bar of pu})lic 2) The Rank can not invoke the provision that the payor "may only recover from the debtor insofar as the payment has been beneficial to him," when made igainst his express will. This is a defense that may be availed of by the debtor, not by the Bank, for its affects solely the rights of the former. At any rate, in order that the rights of the pa.yer may be subject to said liMitation, the debtor must oppose the payments before or at the time the same were made, not subsequently thereto. "Entendemos como evident.e, que los preceptos de! art. 1158 que comentamos, y las distintas hipOtesis que establece, giran sobre la base de que la oposici&n del deudor al po;go ha de mos. trarse con anteriorida.d a la realizaci6n de cste pues de ser aqui!lla posterior, no cabe estimar verdadera y eficaz oposiciOn de buena fe, ya que en el caso de que antes hubiera conocido el proyecto de 'pago, habrla en RU silencio una aproba.ciOn tilcita que ahtorizaria incluso la subrogacion del tercero, y si lo habta ignorado antes de realizarse, se cstari"a en la .;itua.cion distinta prevista y regulada en los dos primeros p3rrafos del articulo 1158 yen el i159." <8 Manresa, 4th ed., pp. 248-249.> SUPREME COURT HEARS "JUDGES' CASE" opinion without due process," and Professor Amado G. Salazar of the Francisco College Law Faculty who stressed the limitations on the power of Cong:·css to abolish judicial offices. Congressmen Ferdinand Marcos, Diosdado Macapagal and Cornelio Villareal, as amici curiae, deplored the political motives which they alleged brought about the enactment of the controversial Act. On the other hand, Solicitvr General Ambrosio Padilla who appeared in behalf of the respondents, upheld the constitutionality of the law, invoking the right of Congress to abolish courts as corollary to its power of creating the same. He argued that the Act in question was intended to put an ~nd to "rigocion de jueces," or the practice of arbitrary assignments of judges from one province to another. Other members of the bar who argued before the Court were ex-Justice of the Court of Appeals Mariano de la Rosa and Attorneys Mariano Nicomedes and Abelardo Subido. • LA'h to R ii:hl: Justic1; Ilautiota Ani:telo, Justice Alex Reyes. Ju1tice Sabino Padilla. Ju•tice Guillermo F. P;1.blo, Chief Justice Ricardo Paras, Justice Cesar Bengzon, J ustice Marcelino Montemayor, Justice }'ernando Jul!"o, Ju s~ice Al~io Labrador an<! Juatice J. B. L. Reye.. Not seen in th.e picture is Just1c" Roberto Concepcion. Indeed, it is only fair that '.;he effects of said payment be determined at the time it was made, and that the rights then acquired by tht payor be not dependent ·upon, or subje:t to modification by, st:bsequent unil11teral acts or omissions of t'he debtor. At any rate, the theory that Anduiza had. not been benefited by the payments in ·question is predicated solely upon his original refusal t'o acknowledge thC" validity of said payments. Obviously, howevt?r, the question whether the same were beneficial or not to Anduiza, depends upon the law, not upon his will. Moreover, if his former enimosity towards Madrid sufficed to negate the beneficial effects of the payments under consideration, the subsequent change of front of Anduiza, would constil'ute an admission and proof of said beneficial effects. Being in confo;mity with Jaw, the decision appealed from is hereby affirmed, therefore, in toto. Paras, Pablo, BITTtgzon, Montemayor, Reyes, Jugo and Bautista Angelo, J.J., concur. Mr. Justice Padilla. did not ta.lee part. Mr. Justice Labrador did not take part. 124 ,\\ THE LAWYERS .JOURNAL August 31, 1954 MISSING PAGE/PAGES

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1954

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