The Lawyers Journal

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Part of The Lawyers Journal

Title: The Lawyers Journal
Issue Date: Volume. XIX (No. 10) October 31, 1954
Year: 1954
Language: English
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extracted text: MANILA, PHILIPPINES I VOLUME XIX OCTOBER 31, 1954 NUMB-ER 10 VICENTE J. FRANCISCO Editor and Publisher LOPE E. ADRIANO RODOLFO J. ·FRANCISCO Assistant Editors ADELA OCA.1\ll'O Business Manager RICARDO J. FRANCISCO Assistant Businesa Manaeet THE LAWYERS J OURNAL is published monthly by Sen. Vicente J. Francisco, former delega.te to the Constitutional Convention, practising attorney and President of the Francisco College (formerly :1-'rancisco Law School>. SUBSCRIPTION AND AD. VERTIBING RATES: Subscription: P18:00 for one yeiir; Pl0.00 for 6 months. Advertising: Full page - r1os.oo; Half page - P65.oo; EDITORIAL ........ .... ................ . ...... . ......... . SUPREME COURT - G. R, No. L-7910 <OCAMPO ET ALS . VS. THE SECRETARY OF JUSTICE ET ALS.> Memorandum for Petitioners . ·~. Memorandum for Respondents •.. ... . , . . •, , . OPINIONS OF THE SECRETARY OF JUSTICE : Opinion No. 152 . Opinion No. 129 ......... . SUPREMJ<: COURT DECISIONS: ...... /s~kh~~er18& ~~~i.a~~d ~;u~~~~s~!;~ie~:;~; of ·n~~~~·.:..:. ·j~~ti~~ P~b1~· : Roque vs. Delgado - Chief J ustice Paras . ... .. . .•.. . ..•.. . ....• , . Magallanes vs. Court ot Appeals - Chief J ustice Paras .. • Bagalay va, Ursal - Justice Padilla ... . , . , ....... , •. , . , , , , .. , • , , , . , Palamine et als., Zagado et al&. - Justice Bengzon , .. , . , , •• , , •.. , , National Organization o! Laborera and Employees vs. Judge Roldan et als, - Justice Montemayor , , , • , , , • , , , , •• , ...•. , • .. Casillan vs . Vda. De Espartero - Justice A . Reyes • , , , , ••• , , , , , , , De Jesua va. Belarmino et als - Justice Bautista Angelo , . , • , , , ••. .. Vafio vs, J udgP. Alo - Justice Labrador . , , , , ......• ,., , , • .. , , , , , .. People of the Philippines vs. Samaniego - Justice Concepcion , •• , , , S. N. Picomell &: Co . vs, Cordova - Justice J, B. L. Reyes •. .. .•. ·Lobrin va. Singer Sewing Machine Co. - Justice Tuason . , . , .. . .. , . Rosete vs. Provincial Sheriff of Zambales - Justice Bautista Angelo . . Roque vs. Judge Encarnacion - Justice L:i.brador • , •• , •• , • , .• •••• , , Padilla vs. De Jesus - J ustice Bautista Angelo •• , •••• , , ••.. , , •••. In Re: Will and Testamer.t of Abadia - Juatice Montemayor . . • , ••• . Uy vs. Rodriguez ~ J u1tice Labrador , .' . . .... .... ... . ....... ... . . DECISION OF THE COURT OF INDUSTRIAL RELATIONS : La Mallorca Local 101 vs . La Mallorca Taxi - Judge Lanting . . ••.. . REPUBLIC ACTS: No . 1198 . . . .....••.• . .. .• , • .... , .. , •• , , .••• , , . , No. 1080 ... . .... , . . . . . . •........ , • , FRANCISCO COLLEGE <Law Faculty & Law Curriculum> ... , •• , ••• . One-fourth page - P45.00; One-eight page - P35.00; Oneaixteenth page P25.00 Entered aa second clrui:s mail matter at the Post Office. BUSINESS OFFICE: 1192 Ta.ft Avenue, Manila. 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Public Corporation Public Officers Pl23.60 154.50 30.90 61.80 61.80 35.45 8.25 25.75 - 28.00 10.30 12.60 25.75 15.45 8.25 12.35 15.45 9.30 12.40 12.35 6.20 10.30 8.25 6.20 10.30 10.SO 8.75 6.20 10.30 8.25 10.50 8.25 8.25 51.50 5.50 10.30 10.30 12.50 5.45 6.45 6.45 6.45 10.30 6.45 8.25 6.45 5.45 5.45 p 30.90 41.20 51.50 51.50 25.75. 25.75 25.75 NOTE: Prices are 11ubjeet to change wifhout notice. For provincial orders, additional Pl.20 per book is charged for mailing and handling expenses. EDITORIAL FAITH IN OUR COURTS OF JUSTICE In our last issue, we commended Judge Narvasa for upholding the principle of the independence of the judiciary, by sentencing Taruc in accordance with what his conscience dictated to be the law applicable to the case, regardless of the public clamour demanding a higher penalty. We then expressed the view that Judge Narvasa's deci~ion was a healthy sign that fortified our faith in our courts of justice. That faith is further strengthened by the order issued recently by the Hon. Jesus P. Morfe. District Judge of the Court of First Instance of Pangasinan, citing a party litigant to appear and show cause why he should not be punished for contempt for having sought the aid of the Presidential Complaints and Action Committee (PCAC) to intervene in his casf!. The order of Judge Morfe is, in our opinion, not merely an assertion of the constitutional principle of separation of powers, but is also a reaffirmation of the time honored principle of judicial independence. A-::. everyone knows, the PCAC is an agency newly created by the Chief Executive and designed to look into complaints brought. to its attention by. private individuals or organizations. While we do not question the right of any citizen to seek redress for his grievances, we cannot but view with grave concern the act of a litigant in asking the PCAC, an executive agency, to intervene in his case pending trial before the courts of justice. As Judge Morfe has rightly put it, such an act raises an issue whether "under the principle of separation of powers in th'e Republic, a litigant who has chosen to seek relief thru the Courts may enlist the good offices of the PCAC regarding the proceedings of his case pending consideration there." The principle of separation of powers constitutes one of the basic features of our government. The functions of our government are divided into the three branchesexecutive, legislative and judicial. Each branch is coordinate and co-equal with and independent of the other branches. Within the framework of our system, persons entrusted with power in any one of the branches should not be permitted to encroach upon the powers confided to the other branches. We are not unaware of the fact that separation of powers does not mean absolute independence of one branch from the other. To a certain extent there is interdependence between the different branches. Thus, the President is empowered to appoint judges, whose appointment must be confirmed by the Conimissioµ on Appointments created by the Congres.s. The Secretary of Justice is vested with the power of administrative supervision over the lower courts. The President may, upon the recommendation of the Supreme Court, suspend or remove a judge for valid cause. Notwithstanding these interdependent relations, we cannot but view with alarm any act that may tend to discredit the judiciary or undermine the judicial indf',.. pendence. That act of a litigant in soliciting the intervention of an executive agency in a case pending before the courts of. justi:!~, be it done in good faith, certainly discredits the judiciary. Besides, it sets a dangerous precedent which may seriously affect the principle of judicial independence. We are fortunate to have in this country judges who, as zealous believers and exponents of the principle of judicial independence, would not r.ountenance an act which would permit any other branch of the government or agency thereof to influence, directly or indirectly, judicial proceedings. Judge Morfe's contempt order could not have · been inspired by any other than his honest belief hat any litigant seeking the intervention of the PCAC undermines the prestige of the courts and destroys the very foundation of the independence of the judiciary. If we want democracy to survive in this country, we should strengthen the faith of our people not only in the Executive Branch or in the offices and agencies under the direct supervision of the Executive Branch, but also in the Legislative and in our Courts. Faith in one branch of the Government alone would be very detrimental to the other two branches. It would speU a deathkne11 to our democratic institutions. · At this juncture, we would like to repeat the warning sounded a few years ago by Chief Justice Moran who said that if "x x x our constitutional form of government is to survive and the fundamental rights of the people are to prevail, there must be support and respect for the judiciary on the part of the people and the government, and it must be kept firm and strong ~o that it may withstand the most severe assaults of passion or malevolence and thus preserve sacred and inviolate those rights and liberties without which life is not worth living." October 31, 1954 - THE LA WYERS JOURNAL 477 SUPREME COURT OF THE PHILIPPINES G.R. No. lr7910 FELICISIMO OCAMPO, DEMETRIO ENCARNACION, I ROMAN CAMPOS, GA VINO S. ABAYA, ENHIQUE MAGLANOC, MAXIMO ABARO, ROMAN IBAREZ, LUIS N. DE LEON, ELADIO LEARO, and JOSE BONTON Memorandum for Petit.loners (Contin11cd from September l ssne) IF REPUBLIC ACT NO. 1186 REALLY ABOLISHES THE OFFICE OF THE PETITIONEHS, THEN SECTION 53 OF SAID ACT IS UNCONSTITUTIONAL BECAUSE IT TERMINATES THE TERM OF JUDICIA L OFFICE IN VIOLATION OF SECTION 9 OF ARTICLE VIII OF THE CONSTITUTION. "The powET that creates can destroy. '' The Solicitor General contends that offices crec.ted by the lCgisJature m:i.y be aholishcd by th~ legi~lature because "the power that ci·eates can destroy." Our answf::r to this argument i~ that it is precisely for this reason-that the legislature may abolish any office created by it-that the Constitution, having in mind . that the main function of the courts and thr reason for its existence is to administer justice----justice whi.::h is the greatest interest of man on earth-thought it wise not to place the court on the same foGtin<; as any other office created by the legislature which may be abolished any time at the pleasure of the legislature. To this end, and to prevent the abolition c;>f courts for the eYil purpose of simply shortening (Jr terminating the office of the judge, the Constitution secures the tenure of office '}f the judges by providing that the members of the Supreme Court and judges 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. A question vrimae impression is. The question as to whether the Legislature may abolish courts and thereby terminate the tenure of office of i:tcumbent judges has Mt yet been decided by our Supreme Court. This is the first time that it h9.s to decide this issue squarely, and no doubt its decision will go down in the history of our judicial institutions. There is a case brought to the Supreme Court in 1915 i.n which the validity of Act No. 2347 reorganizing courts in the Philippines was raised. It was claimed that said Act was i:".valid because it abolished the Courts of First Inst<mce created by Act No. 136 passed by the Philippine Commission in 1901, and removed the judges appointed under Act No. 136 to preside over the courts created therehy. Act No, 2347 provirled in Section 7 thereof that the Judges of the Courts of First Instance, Judges-at-Large, and Judges of the Courts of Land Registration should vacate their positions on the date when sai<i Act went into effect, and that the Governor-General, with the advice and consent of the Philippine Commission, should make new appointment., of Judges of the Courts of First Instance and Auxiliary Judges in accordance with the provi!'inns of said Act. One of the reasons advanced by the Supreme Court in holding the validity of said Act was that neither in Act No. 136 nor in the Constitution of the Philippines wa:.. there any provision which f ixerl the time during which the Judg~s of the Courts of First Insl.ii.nce of the Islands were entitled to hold such office. We quote: "Neither in Act No. 136, the law organizi,ng the courts of justice in the Philippines Islands, nor in the Act of July 1, 1902, the constitutional law or Constitution of the Philippines, is thet·e any provision which fixes '.>r indicates the time during which the judges of the Courts of First Instance of the Islands are entitled to hold such office, the former Act merely stating in its section 48 that the judge appointed by the Philippine Commission shall hold office during its pleasure.'' (Conchada vs. Director of Prisons, 31 Phil. 94.) Following the reasoning of this Supreme Court above quotcJ, we have it that if in the Philippine Bill, which was th~n the Con.!<tituI THE SECRETARY OF JUSTICE, THE SOLICITOR GENERAL, THE CHIEF ACCOUNTING OFFICER, AND JUDICIAL OFFICER, COURTS, FINANCE ANJ) STATISTICS DIVISION, DEPARTMENT OF JUSTICJ<; Memorandum t0;r Respondent. <Cotlfinued from Se7Jtember Issue) Incidentally, the long quotation (pp. 55-86, Francisco) is the disscutiug opinion of Justice Sn.odgruss fp. 89, Francisco) in the above case nf McCulley \'S. State, supra The majority opinion penned by Justice McA\istcr held - "x x x Construing these sections of the constitution, this court hel<l: Cl) That the legislature has the constitutional poweT to abolish particufar eirmiit and chancery courts, and. t<'.l require the papers and reoords therein to be transferred to other courts, and the pending causes to which they are transferred. The power to ordair. and establish frrm time to time circuit and chancery courts includes the power tv abolish e:ciflting courts, and fo increase and diminish the number. (2) The judge's right to his full term and his full salary is not dependent alone npnn his good conduct, but also upon the contingency that the legislature may for the public good, in ordaining and establishing the courts, from time to time consider his office unMC<'?SSary and abolish it. The exercise of this vower by the legislature is not such an interference with the independence of the judge or 'ft!ith his tenure of office as can be complained of. When the court or courts over which a judge presidf's is abc\i.;;hed, the office of the fudge is extinguished and his salary ceases. x x x" <53 S.W. 134, ~t p. 140) The concurring opinion of Justice Wilkes held -" 'x x x If the legislature had the power to enact the law, it must be either because the ordaining and establishing of courts is a le3itimate /egi:;latii•e pvwer, necessarily involving the power to abolish as well as to ordnin and establish, and that the constitution has placed no restrict-ion upon the exercise of this power inconsistent with the action of the legislature in the present ca<;e, or becausc ihe constitution, either expressly or by necessa1·y implication, has- " vested in the legislature the power to ordain and e.;;tablish courts, and that this power carries with it the power of abolishing e.risting courts. It is maintained by the attorney general and counsel for the ;;tate that the act in questi.on is constitutional and valid on both of these grounds, while the counsel for the relators insist that the two courts abolished b:r the act were so guarded and protected by the constitution that, in the exercise of its power to ordain and establish courts, thi!!;'9 two courts could not be abolished.• The court proceeds to discu.-;s the que-;tions involved in a manner at once exhaustive and able, and arrives at a conclusion that the acts were valid and constitutional. x :< x" (53 S.W. at pp. 145-146.) The quotation on pp. 22-23. in Atty. Francisco's Memo as "answer Gf the Solicitor General" is an immaterial citation from the Answer in the Zandueta case, and is not quoted from th<:> answer of tht> undersigned Solicitor General in this case. Counsel for petitioners claim that Republic Act No. 1186 •>n· ly abolished the classification of the judges not theic:" office Cp. 2t3, Francisco). Our answer is best expressed in the explicit provbion <'f Section 3, Rt>public Act No. 1186 which abolished the positior. ... or offices of Judges-at--Larg<" nnd Cadastral Judges and repeal&l SE'ction 53 of Republic Act No. 296. 'l'he district judges were not covered by said Republic Act No. 1186, Petitioners were not nmoved from their offices - Counsel for petitioners claim that the effect cf Republic Act. No. 1186 is t'l remove the petitioners Judges-at-Lal'ge g,nd Cc.d11stral Judges from office and repeatedly used the term "to legis.THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS CCont-inued) tion of the Philippines, there 11ad been a provision securing the tenure of the office of rhe judges as in our presf'nt Constitution, the Supreme Court would not have upheld the validity of the Act in question which in reorgnnizing the Courts of First Instance in the Philippines vacated the cffice of the incumbent judges, The ph1·ase "may from time to time" in the A111erica,n Constitution not incorpornb:d in the Philippine Constitution. The Constitution of the United States provides: "The judicial power ()f the United States, shall be ''ested in One Supreme Court, and in !'luch inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their office during good behavior, and shall, at stated times, receive for their ser· vices, a compensation which sh'.11\ not be dimimshed during their continuance in office.!' <Sec .· 1, Art. III.) Our Constitution, which was patterned after the Americ2n Constitution, provides the following: "The judicial power shall be vt:sied in one Supreme Court an<l in such il1ferior courts us may be established by law." <Sec. 1, Art. VIII.) "The members of the Supreme Court and all judges of inferi.or courts shall hold office during good behavior, until they reach the age of seventy years, or bt!come incapacitated to <lischarge the duties of their offic'e. They shall J"cceive such compensation ss may be fixed by law, which sliall not be diminished during their continuance in oifice." CSe('. 9, Ibid.) Comparing the provision of our Constitution above qootecl. with th!lt of the American Constitution, it will be noticed that while the American Constitution gives :he Congress the power to establish inferior courts from time to time, such is not however thti power that our Constitution grants our Congresa. Why did not our Constitution say; "such inferiClr courts as may from time to time be established by law"? l\f.'ly it not be because the sole intention of the Constitution was merely to create t:. judicia1·y in tho Philippines under the system of government established by the Constitution in lieu of that which existed under the Commonwealth Act; a judiciary that could be said to breathe life from the Constitution itself instead of from prior organic laws? If the intention of the Constitution was that after the judicial system in the Philippines has been created by the Constitution and the Congress,-thc Congress by creating the inferior courts-the Congress shall ~till have the power to establish from time to time inferior courts --would not the Constitution have inserted the phrase from time to time in the prO\'isirm granting th~ Congress the power to estnbJish inferio~ courts, as ~he American Constitution does? Be that as it may, we contend that the power of the C:>ngress lo abolish courts, if at all, it may be implied f1om its power to establish them, must necessarily recognize limitations or restriction:--. Different schoofa of thought. The Americ:in courts are divided on the question of whethe!" the legislature may al;>olish a court n.nd terminate the tenure of office of the judge of such coUl't. Some American courts hold that the legislature may abolish a court because it h'.ls the power to create the same; that such power to abolish a court may be exercised without any restriction at all; and that when a court is abolished any unexpired term of the judge of such court is abolished also. Among the American decisions maintaining such thf'ory is the CherokP.e County v. Savage (32 So. 2d, 803; sec Lawyers Jo urnal of July 31, 1954, p. 360). The other theory is that although the legislature may abolish a court because it has the power to create the same, it cannot however abolish a court when its effect is to terminate the tenur(l of the office of the judge of such court, because t.lie tenure of office of the incumbent judge is protected by the Constitution. 1\IEMORANDUM FOR RESPONDENTS (Continued) late them vut" (p. 40, Francisco), by legislating Qut judges (p. 15, Sebastian) ; Gover11ment's view would legislate them out of office • p. 70, Salazar), to remove "members d the Judiciary by legislative action" (p. 42, Francisco). Our answer is that there is no such removal, because the offices or positions of Judges-at-Large and Cadastral Judges were abolished. In the case of Manalang vs. Quitoriano, 50 O.G· 2515 (p, 18 of Respondents' Answer), peti· tilmers assailed as illegal the designation of respondent as Acting Commissioner of the service as "equivalent to removal of the petitioner from office without just cause." This Honorable Court held that"This pretense can not be sustained. To begin with, petitioner has never been Commissioner of the National Employment Service and, hence, he could n-:Jt have been, and has not been, removed therefrom. Secondly, to remove an officer is to (lUSt hi11t from office before the expiration of his term. A removal implies that the office exists after the ouster . Such is not the case of petitioner herein, for Republic Act No. 761 expreS!!lly 1ibolished the Placement Bureau, and, by implication, the office o( director thereof, which, obviously, caml()t exist without said Bureau. By the abolition of the latter and of said office, the 1·ight thereto of its inc1imb,mt, petitioner herein, was necessarily extinguished thereby. Accoi·dingly, the constitutional mand'.l.tc to the effect that 'no officer or empLoyee in the civil service <lha!I be removed or suspended except for caUse as provided by law' (Art. XII, Sec. 4, Phil. Const.), is not in point, for there has been neithe.r a removal nor a suspen!!ion of petitioner M:mahng, but an abolirion of his former office of Director of the Placement Bureau, wl1ich, admittedly, is within the power of Congress to undertake b11 le9islatfo11·" (pp. 2517-2518, underscoring supplied.) The Vfl1Ver of Congress to abolish stat11tory co1trts - Under the second proposition in lhe memorandum of Atty. Francisco, he mentions three schools of thought (p. 52, Francisco> , namely: l. Theory of absolute and unrestricted power of the Legis-lature to abolish courts, (p, 54, Francisco.\; 2. The Legislature may abolish courts provided it is not motivated by bad faith, (p. 86, Francisco); and 3. The Legislature -does not have the power tf' abolish courts when the intent is to terminate office of the incumbent jmlges. <p. BG, Francisco) Counsel for petitioners argue that the established independence of 1he Judiciary and the tenure of office is "a limitation upon the power of the Legislature to abolish courts" (p. 88, Francisco). Our position is that the power of Congress to abolish inferior courts is expressly granted by Article VIII, Section 1 of the Constituiivn, which reads: "ARTICLE VIII, SECTION 1.- The Judicial Power shall be vested in one Supreme Court and in such inferior courts as may be establi;;hed by law." - While the Constitution equally provides for the judicial tenure of office under Article VIII, Section 9, such tenure only lasts ''during their continuance in office and their compensation as may be fixed by law" (pp. 38-40, Respondents' Answer). The statement that the power of Congress over statutory courts is "a general legislative ,,ower and must be considered as circumscribed by the s7iecific c:mstitutional limitatinn" that a judge has definite tenure Cp, 4, Sebastian) cannot be legally correct, because both provisions proclaim basic fundamental principles, which must be harmonized, The concct theory was enunciated by Justice Laurel in his concurring opinion in the case of Zandueta vs. De la Costa, 66 Phil. 615. "x .x x I have a very serious doubt as to whether the petitioner, -- on the hypothesis that the que~tion involved is his security of tenure under the Constitution - c:>uld by acquiescence or consent be precluded from raising a question of pubOctober 31, 1954 THE LA WYERS JOURNAL 479 MEMORANDUM FOR PETITIONERS <Coutf.nued> Among the decisions holding such theory is Commonwealth v. Gamble '62 Pa. 343; see Lawyer.'! Journal, ibid.) Tlwre is an intermediate theory, which holds that the office of the judge may be abolished by the abolition of the court provided "the office was abolished in good faith. If immediately after the office is abolished another office is created with substantially the same duties and a different individual is appoinb>d, or if it othenvise appears thAt the office was abolished for personal .or political reasons, the courts will interfere." <Garvey v. Lowell, 199 Mass. 47, 8[) N.E. 192, 127 A.S.R. 468; State v. Eduards, 40 Mont. 287, 106 Pac. 695, 19 R.C.L. 236l. Such doctrine is quoted in the decision of the Supreme Court in the case of Bl"illo vs. Enage, G.R. No. L-7115, March 30, 1954. That same doctrine is alluded to in the answer of the Solicitor General which we quote: "* * • As the nrw wurt differs in its organization and jurisdiction from the old, we have no power to say that the abolition of thP court was a S<'heme to turn this man out of office • * *. The act in question is therefore valid." <Wenzler 11s. People, 58 N. Y. 516.) The same doctrine has been aJlplied in the folbwing case: "Appellant conten<ls that the act of 1935 <House" Bill No. 91) is unconstitutional as colorable legislation, passt>d to dil'place him as county judge 01 cl1airman. lnnsmuch as he was not county judge at the ti111e of the pnssage of this act, t!int feature of the attack on it may be dismissed. The office of county chairman was expressly abolished by i,a;<l act. The act creating that office was repealed. The officp of county judgP was created. If the form and structure of the governmental agency created by the act were substantially diff~rent from that of chairman, then said act is valid. At least two change-; arc mad!.: which go to the organic constitution of the offic~ of county judge: Cl) The term ~f <'ffice is changed from one year t<' eight years, and C2l the counl·y judge is to be elected by the people instead of by the quarterly county court. The 6'f'cond of these is clearly fundamental. Haggard v. Gallien, 157 Tenn, 269, 3 S." W. <2d> 364; Holland v. Parker, Hi9 Tenn. :ms, 17 s. w. <2d> 926. " The chnnges made being material and fundamental, it follows that the ::ict is not open t<J the cbjection t.hat it is cclorable legislation adopted to displuce appellant as chairman. Cocrfs. in determining the validity of a statute, cannot inquire int.:i the conduct and motives attributable to memberi' of the General Assembly. Peay v. Nolan, 157 Tenn. 222, 7 S. W. t2d> 810, 60 A. L. R. 408; State v. Linds::;y, 103 Tenn. 625, 53 S. W. 950. [Joseph A. Caldwell, Appt., v. W. D. Lyon et al., 16b Tenn . 607, 80 s. w. \2d> 80. )" Which of these three theories must be adhered to for the benefit of our Republic, which, being young, will likely have to suffer most of the time the onset of political tempf.'::ts? With due i·espect to the wisdom nnd statc3manship of the members of +;he highest com-t of the land, we be~ to state that it is the second theory that slwuld be followed. This theory is more in consonance with reason and tends to protect--not to destroy-the independence of the ju<liciary, which is justly regarded in a great measm-e .e.s the "citadel of the public justice and the public security", in the words of Alexander Hamilton. The thflOT1J of absolute and unrestricted power of the lcgislatwre fo abolish courts. We believe that this theory is unsound because it destroys the independence of the judiciary and the legislature may abuse such power without redress. The arguments of Chief Justice Snodgrass in the case of McCulley v. State, 53 S. W. 134, which have been condensed hereunder*, constitute the best refutation to such theory-· "We come to the question and proceed t..o its considerntion with the elaboration it deserves, for the question is one of the most important that ever arose for final decision in this state and upon * In the original memoraudum theoe argumenu were transcribed ¥Ub•tim. MEMORANDUM FOR RESPONDENTS CContinued> lie interest. Security of trnure is certainly not a personal privile,7e of m1y pal"tic11lar judge. x x x" "The petitioner in his vigorous and impl.'<ssioned plea ai;ks us t0 vindicate the independence of the judiciary and uph.olrl the rnnstitutional mandate relative to the security of tenure of judy , s, embodied in section 9 of Article VIII of the Constitution . He claims that 'Commonwealth Act No. 145 is unconstitutivnal because the regrouping of' the provinces into nine judicial disfricts as therein providr~d for was effected Uy the National Assembly without C(lmtitutional authvrity.' Upon the other hand, the Solicitor-General directs our attention to the power of the legislature over courts inferior t.o the Supreme Court, conferred by section 1 of Article VIII cf the Consti~u tion. I think the constitutiomil issue thus sqi..;a.rely presented should be met courageously by the court, xx x." <p. 625 . ) "x x x Section 2, Article VIII of the Const:tution vest~ in the National Assembly the power to define, prescribe and apportion the jurisdiction of the various courts, subject to C{'rtain limitation!'! in the case of the Supreme Court. It is admitted that section 9 of the same article of the Constitution provides for the security of tepure of ali the judges. The prmciples embodied in these two sections of the same article of the Constituf.!i>n m1.:.st be coordinnred and harmonized . A mere enunciation uf a principle will n<Jt drcide actual casei; and controversies of every sort." (Justice Holmes in Lochner vs. New York, 198 l!-S., 45; Law. ed., 037.) "I am not insensible to thtJ argument that the National AssE:mbly may abuse its power and move deliberately to defeat the ccmstitutional provision guaranteeing security of tenur~ to all judgPs. But, is this the case"! One need not shar<:: the view of Story, Miller and Tuck~r on the one hand, or the opinion of Cooley, Watson and Baldwin 1m the other, to realize tJtat the application of a legal or constitutional principle is necessarily factual and circumstantia l and that fixity of principl1' 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 provisi.::in regarding security of judicial tenure is palpable and plain, and that legislative power of reorga.nizatirm may be sought to cloak an unco?tstitutional rind fWil purpose. When a case of that kind arises, it will be the time to ma.kc the hammer fall s.nd heavily. But not untili then. I am sati;;fied that, as to the particular point hi::rl! discussed, the purpose was the fulfillment r ~f what was considered a greaf; public need by the legislativ(' department and that Commonwealth Act No. 145 was not e'iacled purpo~·ely to affect adversely the tenure of judges or of a11y particular judi7e. Under these circumstances, I am for snstaining the power of the legislative. clepa"'"lmcnt under the Constitution. -" x x" (pp. 626627,) Unless the legislative power of abolishing statutory oourts is exercised "to cloak L.n unconstitutional and E:V!I purpose," or more sp,..._ cifically "to affect adve!'sely the tenure of judges or of any particular judg-e," tho:! power to legislate on inferior courts must be sns· tuined. In fact, the tenure o..if judicial office must yield to the power of Congress to alte1· or abolis!i inferior courts. "A constitufronal provir:;ion I.hat judges of a certain cc,urt shall hold their offices for five years must yield to another provision that the legislat1t1"e may alter or abolish the (;ourt, and lherefore the legislature may reduce the number of judges by fixing an P.nd to the terms of certain of th0 m although within five years afte1· they took office." <Quoted or. p. 37 of Respondents' Answer.) "x x x If the framers of the Constitution intended to leave it to the legislature to establish and abolish courts as the public necessities demancled, this was not qualified or limited by the cla1rne rtll to the judge's term of office. To so hold would be to allow the clause as to the length of the· judge's term to ovei·throw the other clause, whereas we oonstrue thi' provision that the judge's t~rm shall be eight years to be upon the assumption 480 THE LA WYERS JOU RN AL October 31, 1954 MEMOHANDUM FOlt PETITIONERS <Continued) its determination hangs not only the independence but the existence of the judicial department of the state government, x x x Our government, state and national, is divided into three distinct and independent departments - legislative, executive and judicial. x x x Our constitution, after providing that 'all power is inherent in the people' proceeded to declare how the people would have it exerci!':ed, to distribute into departments and to vest in it such as the 1ieople wished each to exercise and to put upon each the limitation which was deemed essential to confine it within the scope of the authority the people vested and beyond which they intend to restrain, x x x \Vhile, it is sometimes said that the legislature is omnipotent and its authority unlimited except when restrained by the Federal or state constitution, this is only sub modo true generally in the cases in which it has been uttered but it is wholly inaccurate when given the gener!ll application to which its formulation would lead. All that is meant by it is that the legislatur£>s of states of the Union, a s legislative representatives of the people, have ail legislative powt'r, not expressly or by necessary implication limited . Smith 't.'. Normant, 5 Yer,q. 272, 273. x x x " In 1875 it was held that, thcugh true in theory that circuit courts and chancery courts must be maintained, it was .not s.-> in fact, - th£> legislature could :ibolish any it chose. State ex 1 el. Coleman v. Campbell, 3 Tenn. Cas. 355. Of course, if it could abolish any, it could abolish all, a.s it was not anJ is not preten::le<l t.luct any one or more of them enj')yed A special immunity from lf-gislative control. This case was based upon the theory that the power to establish involved necessarily the pnwer to abolish, - A theory wholly inconsistent with lhe constitutional provision for the establishment and continuance of the circuit and chancery court system; for, if one or both is 'established,' it can and 'shall' exist 01· have jurisdiction vested in it under the constitution, and thus be kept. alive and preserved against legisl.:itive power, as a part of the court system, as a constitutional comt; but, if the power to establish includes the power to destroy, such cannot be the rt>sult, an"d there is no protection to either l!ircuit or chanct>ry court system thus recognized and' attempted to be preserved and protected hy the constitution. "That the conclusion of the court in the afore-cited case of State ex rel. Coleman v. Camp~ll. 3 Tenn. C.is, 355, is so incorrect, not to say transparently erroneous, as tc hi" perfectly demonstrRble, appears from the simpl~st statement, If the legislature must preserve circuit and chanc::?ry courts, .:rnd yet may abolish them; if it is true also, :is it constitutionally is, that it may also establish other inferior courts, and vest in them such jt•risdiction aa it chooses, - why could it not abolisl- all circuit and chancery courts, and then establish other inferior courts in whom it might vest all inferior jurisdiction? Who would say, and what k.ut the ccnstitution could say, how many, if any, circuit courtil or how many chancery courts, if any, it should preserve? Ii. i" so clear that the power to establish does not include, as aga;nst this preservative provision of the constitution, the pcwer to destroy any or all of them, that it is wonderful to us that the contrary vi£>w could havt> ever prevailed for a moment, To say nothing of the provisions which make constitutionally the term of all the judges of all these courts eight years, and prevent changing their salaries dur ing tht' the time for which they were elected, it seems sc. manifest that the power to destroy one or all those cou!'t.s when created, is against the preservative clause of the constitution respecting the circuit and chanc<.!ry courts, as only need suggec:.tion tu demonstrate its nonexistence. If the legislature can abolish one, it can abolish all. WhiC'h shall it re-estabEsh, and how can it be required to re-establish, any one of them, if so, which, especially in view of its power to establish other inferior courts and vest them with any jurisdiction it pleases? It is a vain thing to say it can abolish as it pleases, but must retain or recreate the same tribunals. The concession of the power to abolish one, coupl£>d with the declaration of constituti.->nal necessity for the retention of the system, which the court holds in that case must be done, is a patent impmcticability, not to say absurdity. MEMORANDUM FOR RESPONDENTS (Continued) that the conrt continues to exist; x x x" (McCulley vs. State, 53 S·W, 134.) The co11lention of petitioners is predicated mainly in the case of Commonwealth vs. Gamble, 62 Pa. 343 (p. 102, Francisco; p. 61, Sa.l:n:ar), But the act involved in said case was to "deprive a single.l jud,qr, only of his office.'' "The act displaces Judge Gamble as the presiding judge, and ap]Joints Judge White an<l his law associate to hold the co1irts therein. If such a thing can be done in one district, it may be done in all, and thus, not only would the independence of the judiciary be desti·oyed, but the judiciary, as a co--0rdinate branch of the government, be essentially am~ihilated." <See Lawyers' Journal of J uly, 1954, p. 363.) Admittedly, Republic Act No. 1186 was not enacted to single out any particular judge Ol" particular judges. lt applied to all positions of Judges-at-large and Cadastrnl Judges. If the ten petitioners had been appointed as District J udges like the other 23 Judges-at-large and Cadastral Judges, whose positions had been abolished, they would not have complained against Republic Act No. 1186. In fact, this case would never have been filed. But petitioners were not appointed by the President in the exercise of his sole prerogative of executive appointment. Hence, the complaint of the petitioners should be directed not so much against Congress in abolishing the positions of Judges-at-large and Cadastral Judges, but more so, and in particular, against the Chief Executive in not having appointed them as District Judges. (1>. 20, Respondents' Answer) Moreover, the case of Commonwealth vs. Gamble, supra, which is inapplicable to the instant case, because it singled out a judge, was not followed in the case of Aikman vs. Edwards, 30 L .R.A. 149, 42 Pac. 366, wherein the Supreme Court of Kansas discussed the decision of Commonwealth vs. Gamble, and held that-"x x x It is contended that the judicial department is coordinate with and independent of the legislative, and that, if the right of the legislature to dest·roy a judicial district, and thereby l1Jgislate a judge out of office, is rccogrfr~ed, the iTidependence of the judiciary is destroyed, and the legislative will become dominant over the judicial department of the government. In support of this contention it must be conceded that cases closely in point, decided by eminent courts, are cited. Amo11g the strongest m.ay be 11'tentioned Com. v. Gamble, 62 Pa. 343, 1 Am. Rep. 422; State v. Friedley, 135 Ind. 119, 21 L.R.A. 634; People v. Dubois, 23 Ill. 547; and State v. Messmore, 14 Wis. 177. We have carefully weighed and considered these authorities, and recognize their full force. While the reasoning of courts in these cases is appiicable t.o the one now under consideration, we may remark that in each of the cases mentioned the court had under consideration an act of legislatnre which would deprive n singled judge only of his o!fice, if valid. In this case the legislature had under consideration the rearrangement of the judicial districts covering a large part of the state. Notwithstanding our g!'eat respect for the tribunals by which these cases were decided, and the force of the reasoning by which their decisions are supported, we are constrained· to give a different construction to the provisions of our own Constitution. The provisions in article 3 of that instrument, so far as they affect the matter under consideration, are as follows: "'Sec. 1. The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other conrts inferior to the supreme court as may be provided by law. And all courts of record shall have a seal to be used in the authentication of all p1·ocess'.'' (at p, 369) "x x x The question we now have t~ consider is whethe!' this purpose has been accomplished without any violation of the constitutional restrictions. The argument on behalf of the plaintiff, and the reasoning of the courts in the authorities sustaining his contention, may, perhaps, be divided into two main proOctober 31, 1954 THE LA WYERS JOURNAL 481 MEMORANDUM FOR PETITIONERS <Continued> "The only argument for the preservation of the system is i.ts constitutional establishment over -'nd against the power of the le· gislature to abolish it, when established, during the existence of any term. It is not a question of trusting the legislature not to do it; it is a Question of its power to do it, against the positive provision that these courts must exist by the presE:rvative clause vesting in them the jurisdiction when created. No other conclusion meets this difficulty, and '!10 argument has been made or could be made which obviates it. We would just as well say it must exist, but may not exist, as tn assert tl1e p1·oposition, contended for, or put two and two together, and say they shall not make four, as to assert that. the ccnstitution preserves this iiystem of courts against the powe1· of the legislature, and then ~ay it may destroy it by destroying the court severally or in tolo. The pl'inciple herein contended for was conceded by the same court which decided the Coleman Case, h.nd dill that case was in 'p'.lrt adhered to in State ex rel. Hal.~ey v. Gaines, 2 Lea, 316, 319. In that case it was conceded <page 326) that an act abolishing a circuit with intent to destroy a judge would be void. This concession can mean nothing else than that an act destroying a judge by abolishing a circuit or division would be void, becauSe it has been before and has repeatedly since been decided that the personal motive or intent of the legislature in passing an act cannot be inquired into, end, as the only intent which can be considered is the legal one determined by the effect of the act, if that effect is to destroy the judge the intent appears, and the act void. If this is not 30, the concession is meaningless and misleading, not to say frivolous. For almost the same reasons are the other infrrior judges protected from legislative interference. They are to be men of the same age, the same term of service, with the same unchangeable compensation, and elected by the same voter11 in the same district or circuit whe!'e they serve. Const. art. 6, § 4. 'l'o this conclusion this court came in the case of State v. Leonard, 86 Tenn. 485, 'i S. W. 453, !1nd 'Ve 11sed language there whid1 we thought could by no possibility be misconstrued. In this .::onnection we said: 'The constitution, in fixing the terms of the judges of inferior courts, elected by the people, at eight years, inter.ded not only to make the judiciary independent, and there!Jy secure tc the people the corresponding consequent advfintages of courts free from intnferE:nce and control, and removed from all nrcessity lf being subservient to any power of the state, but intr:nded al'>!' to prevent constant and frequent experimenting wit.h court systems, than which nothing could be more injurious or vexatious to tt.e i,:ublic. It was intended, when ~hE: legislature established an inferior cc;urt, that it should exist such a length of time as would ~ve opportunity for mature observation and app=-eciation of its benefits or disadvantages, and that the extent of its dura'..ion might discourage such changes as were not the result of most mature consideration. Realizing th&t a change, if made i!o as to oonstitute an infet·lor court, would fix that court in the system for c.ight }drs, a legislature would properly consider and maturely settle the question as 00 the propriety ~nd desirability of such change or addition to our system: and oonscious of the impropriety at1d the hazard of leaving th-:i judicial department of the: government at the mercy and whim of eacl1 reci..rring legislaturE: itself e]('rted but for two years, the framers of the constitution wisely guarded against these evils by the section rl'ferred to. Properly construed and enforced, it is effectual for that purpose. Disl'eg.:uded ot impaired by such inter pretation as leaves it to exisi in fvrm without force (II' rnb;;tance, and we have all the evils and confusior. of insecure, changing, and dependent courts; frequent and constar.t experimenting wit.h systemi:; providPd in haste, trit:d in doubt, and abolished before their merits or demerits are understood. It would be mortifying reflection that our organic lawmakers intended any such result in their avowed effort to make a government of three distinst and 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 and inapt in phraseology adopted as to have accomplished it. Wher.. a court whose judge is elected by the people of one or more counties in a district or circuit is MEMORANDUM FOR RESPONDENTS <Conth.w;d) .\• ·\ positions : One, that it was the general purpose of the framers of tl'.e Constitution to protect the judicial department from Jegi3lative interference; the other, that they intended to insure to U:e judge a tenure of office for the f11ll term for which he was elected; the one being necessary for the preservation of the :ndependence and intes-rity of the judicial branch of the gove; nment in the administration .of justice between litigants, and the other to preserve the individual right of the judge to his office. That the constitution intends to secure to the judiciary as an independent co-01·dinate branch of the government is conceded on all hands, and that the district courts are an important part of the judicial system is beyond question. It is contended that, because the Constitution provides for district courts, and fixes the term of the judges, and prescribes the mode of their removal from office, their position is fixed, and is as safe from legislative interference as that of the justices of this court; that both are constitutional officers, in exactly the same sense, and to exactly the same extent. But it will be noticed that under the provisions of the Constitution above quoted the judicial power is vested, not merely in supreme and district courts, but in probate ·courts, justices of the peace, and such othe1· courts, inferior to the supreme court, <ts the legislature may see fit to create. x x x" (at p. 368.) "x x x The case of district judges and justices of the peace is different in this important particular: that the number of judicial districts and therefore the number of district judges, as well as the number of justices of the peace, depend on legislative discretion. x x x." (at p. 368) "We think prior decisions of this court have construed our Constitution and announced the principles decisive of this case. In the case of Devision of Howard Coimty, 15 Kan. 94, it was held that 'the legi.'llature has the po'!Ver to itbolish counties and county organizations whenever it becomes necessary for them to do so in changing county lines or in creating new counties.' Re Hinkle, 31 Kan. 712, decides: 'The legislature has the power to abolish or destroy a municipal township, and when the toll'nship in rt-boli11l1ed or rlestroyed, the town.'lhip officers must r10 with it.' The doctrine of this case is reaffirmed in Re Wood, 34 Kan. 645. In the case of State v. Hamilton, 40 Kan. ::S23, it was said: 'There is no constitutional rest1·iction upon the power of the legislature to 1 iboli11h mur.icipal and county organizations, and the exi11te1<ce of the 11ower i.~ not di.~puterl and cannot br: doubted.' x x x." (at p. 368) "x x x To allow the legislature, while making one new district, to legislate the judge of an old district out of office, and provide for the appointment or election of two new judges, would clearly be vicious in the principle, and this is the class of legislation which falls within the constitutional inhibition. But to prohibit the legislature from abolishing a district which had been improvidently established, and thereby vacate the of· /ice of a judge, is anothe~ and altogether differeJJt thing, which the Constitution does not, in express terms, prohibit. While the independence and integrity of courts in the exercise of all the powers confided in them by the Constitution should be firmly maintained, jealousy of encroachments on judicial power must not blind us to the just power of the legislature in determining within constitutional limits the number of courts required by the public exigencies, and the kind and extent of the jurisdiction and functions to be discharged by <!ach. We think the legislature has the power to ubolish as well as to create, to diminish as well as to increas<J, the numbe·r of judicial districts. We might say, in this connection, that the plaintiff in this case does not claim any vested right in an office, and that no question is presented by the record before us as to the right of the legislature to deprive a district judge of, the compensation allowed him by law. x x x (at p. 369) "x x x The great fallacy, as we view the case, in the ar482 THE LAWYERS JOURNAL October 31, 1954 :MEMORANDUM FOR P E\l.1'zi..IONERS (Continued) constituted by the legislature, and an election had, and the officer commissioned and qualified, it is no.t ih: the power of the legislature to tnke from him the term df' eight years by devolving them intact upon another, or otherwise. If it can abolish in this way the office ')f county judge, it can abolish the office of any inferior judge, as ail are protected, by the clause of the constitution referred to \article 5). For the honor of the framers of C•Ul' constitution, the best interests of our people, the independence of the judiciary, and the security :::nd order of our court system against rash and constant experiments of legislation, it afford'i us much satisfaction to give the constitution its plain, natural, and unobscure effect, to invalidate legislation l•f this character, and to be able to say that nvthing as yet decided by our court stands as an obstacle in the way of our doing so. But, If there were, it would afford us pleasure to remove it.' State v. Leonard, 86 Tenn. 485, 7 S. W. 453. x x x Giving the constitution tJ,j~ ~onstruction harmonizes the entire section quoted, makes the judiciary department in fact, and not merely in fiction, independ~nt, and harmonizes all the other cases before and since on this suhject. See Smith v. Normant, 5 Yerg. 271; Pope v. Phifer, a Heisk. 682; State v. McKee, 8 Lea, 24; Cross v. Mercer., 16 Lea, 4S6; State v. l\laloeny, 92 Tenn. 68, 20 S. W. 419; State v. Cummins, 99 Tenn. 67 4, 42 S. W. 880. " It should be noted here that all the cases in this court h'?ve g'One upon the thevry, generally recognized in the American courts, that when the legislature makes or creates an office without a tenure, or indepmdent!y of co:1.>tilutional provision, it can abolish i i or change its tenure or its compensation at pleasure, but that when it creatE's a cunstitutional office <that is, one directed or authorhed under the constitution or recognized by it, and fo!" which the constitution has pro\'idcd a tenure) the legislature can not abolish the office, abridge its term, or destrl.ly its substantial functions er emoluments. 12 Am. & Eng. Enc. Law, pp. 18, 19. x x :t "Nothing i!'= better settled in this state at this time than thi~ proposition. It is equally settled that the legislature may, as in the sheriff's ease wE. held <Stat"' v. Guniminsl, diminich or increase the duties; and in the case of circuit, chirncery, and other edablished inferio1 eourts, it may diminish or merease the jurisdiction, enlarge :)r contract the territory of their work, but it cannot destroy eithe:- the officer or the office in toto. And it cannot, therefore, abolish a circuit or chancery division, because that would destroy the judge. The line must be drawn somewhere. We undertook to draw it in the Cummins Case. x x x There must be a line - a reasonable line - drawn somewhere, which riermitted the law to regulate the office, but recognized and continued its constitution;'!.} existence. We drew the only one possible. It applies in the same way to th<! judges. The constitution is ever more specific as to them, frl' it directs the vesting of jurisdiction, and requires a fixed territory for service and an unchangeable cc.mpensation. The rule is the a:ime, - must necessarily be the same. Legislation may increase or diminish the jurisdiction of constitutional judges. It may add territory or take it away, but it cannot take all jurisdiction of constitutional judges. It may add territory or take it away, but it canuot take all jurisdiction or all territory away. Enough must be left to preserve the substantial jurisdiction and functions of the office. Nothing less than this is reasonable to the law. Nothing more is agreeable to the constitution. To show how clear this is from another standpoint, we consider what appears in the constitution as to the supreme court, and our construction of it. The constitution says our jurisdiction shall be eppC'llate only, 'under such restrictions and regulations as may be from time to time prescribed by law.' Article 6, f; 2. Under this clause we have recognized the right of the lf'gislature to take from us and confer on other courts (notably the court of chancery appeals) certain jurisdiction. But we did not mean - the COn3titution could not mean-that the legislature could take it all :!way. If so, there need be no supreme court. Here, too, the line must be drawn. We must have jurisdiction. The legislature may reasonably limit. It cannot, therefore, de~:MEMORANDUM' FOR RESPONDENTS (Continued) gument in favor of the plaintiff, and in the cases cited by him, is that the rights of the particular individual who chances to be elected judge are looked upon as paramo1mt and superior to the rights of the public. The correct view is that a public officer, no matter what the department of the government in which he serves is a public servant. A district judge is provided to aid in the administration of the laws. While it is right that the public should deal fustly with him, his individual rights are by no means of primary importance. x x x." (at p. 369 (Underlining supplied.) The debates during the Constitutional Convention on the J udiciary will reveal the reason for the judicial tenure as prohibiting the Constitution to single out judges"x x x MR. JOVEN. Granting that there is a provision insuring fixed tenure of office, and granting also that there i::i a provision in the Constitution assuring that once appointed the justice of the court, will at least have a fixed compensation which cannot be reduced by the Legislature, but by leaving the creation or the e::cistence of the com·t of appeals in the hands of the Legislature, suppose the National Legislatm·e will abolish the courts of appeals becau.se it is at its mercy. "Will not the abolition of the court of appeals have the effect of nullifying those provisions regarding fixed tenure of office and fixed compensation? If the office does not e::cist, naturally that is one means of getting Yid of the incumbent, and will not that fact affect the i1idependence of the judiciary, affecting the administration of justice? "MR. LAUREL. I desire to invite the attention of the gentleman from llocos Sur to the very able dissertation of Alexander Hamilton in a series of articles, especially No. 86, on the Federal Judiciary, in regard to the extent and limitation of that provision with regard to the good behavior of justices and judges. In the first place, I will commence by saying that if the argument is that we should insert a court of appeals in this constitution in ol'der to tie up the hands of the National Assembly, well, there is no reason why if you want to carry your argument to its logical conclusion, why include only the court of appeals and not include the courts of first instance and other inferior courts? "As regards the other point raised by the gentleman from llocos Sur which bl'ings rather a very delicate question, I do not want tl.l be quoted as author for this, but simply to the extent of ljUOting the statement of l\Ir. Alexander Hamilton in regard to the provisions as to the tenure of office of judges dming good behavior. The po.npose, according to him, of inserting that provision in the Federal Constitution of the United States is not to tie up entirely the hands of Congress or the Assembly in our case, from trying to reNganize the judicial system in case of emergency or in case of a sudden necessity. The purpose of this provision is not to permit the Executive or anybody under the Federal Government to single out judges who are persona non grata to him because he is in power, and give rise to the retention of those who are probably not as capable as those who are being singled out. That is the point in the dissertation of Alexande1· Hamilton, so that the point of doubt raised by Your Honor would not happen to a situation where in case of an economic collapse or an economic bankruptcy, the Federal Government may not take the necessary measures. I would even go further by saying that under the police power of the State which is not stated in the Constitution but which is inherent in every sovereignty, the Government of the Philippines that we shall establish may adopt th~ necessary measures calculated to safeguard the supreme and paramount interest of the people and the nation, with or without the Constitution as an inherent attribute of sovereignty." (Debates on the J udiciary in the Constitutional Convention, Lawyers' League Jour nal, Vol. III, No. 10, pp. 558-559 ; underlining supplied.) October 31, 1954 THE LAWYERS J01Jl\NAL 483 MEMORANDUM l<'OR PETITIONERS <Continued> troy. IC so, it can destroy this court. The Cummins Case declares the sound principle on which all constitutional offices must be sustained, and upon it the courts with all others. x x x See rases cited in 1·eference to 12 Am. & Eng. Enc. Law, pp. 18, 19 from many stat~s; and see, especially, Com. v. Gamble <Pa.) l Am. Rep. 422; Reid v. Smoulter, 128 Pa. St. 324, 18 At!. 445, L.R.A. 517; Fant. v. Gibbs, 54 Miss. 39G; State v. Frit:!<lley (Ind. Sup.) 34 N.E. 872, il L.R.A. 634; Foster v. Hones, 52 Am. Rep. 688; People v. Dubois. 23 Ill. 498; Attorney General ''· Jochim CMich.> 58 N.W. 611, 23 LR.A. 703; State v. Messmore, 14 Wis. 177; Ex parte Meredith lVe.) 36 Am. R<?p. 778; Hoke v. Henderson, 25 Am. Dec. 677; King v. Hunter ~N. C.> 6 Ant. Rep. 754; State v. Douglass CWil.) 7 Am. Rep. 89 and nCtte; 7 Lawson, Rights, Rem. & Prac . 3817, note; Throop, Pub. Off. § 19, 20. "As supposed to the contrary of this great weight of authority, four cases are cited. They are Aikman v. Edwards <Kan. Sup.) 42 Pac. 366; Crozier v. Lyons, 72 Iowa, 401, 34 N, W. 1~6; Board v. Mattox, 30 Ark. 566; Hoke v. Henderson, 25 Am. Dec. 677. "In the case of Aikman v. Edwards <Kan. Sup.) 42 Pac. 366, the question as to the power of the legislature to interfere with a judicial tenure of office was not involved. x x x The sole question beforE the court was whether the legislature, by statute. had the power under the constitution to abolish a judicial circuit by transferring the counties composing it to another circuit. The act in question abolished four districts by transferring their jurisdiction to other districts. As is shown in the opinion of the court, this was done upon economical grourids, and to dispense with e.xtra\'agant and useless courts. The fact that under tht!se circumstances the legislature reserved to the judges of the abolished courts their salaries for their full terms of ·lffice furnishes the evidence that the legislature considered that this act would be unconstitutional unless such reservation was made. The constitution referred to in thi11 case provided that judges should hold their offices for . n term of four years. x x x "The case of CrOzier v .Lynns, 72 Iowa, 401, S4 N. W. 186. has no bearing upon the question in the case at bar. The constitution of Iowa (1857> provided that the judicial power should be vested in a supreme court, district court, and such ct.her courts inferior to the supreme cc.urt as the general assembly may from time to time establish, It. further provided for a fixed tnm of office as k> the judges of the supreme court and district court, and for an undiminished compensation during the term for which they were elected. It further provi<led for the reorganization by the legislature of judicial districts, and an increase of judges of the supreme court, but that this should be done so as not to remove a judge of said court from office. As to infericr courts which were not embraced in the classes of courts before named, said constitution contained no provision for a fixed tenure of office, nor for an undiminished compensation during continuance in office, r.or any prohibition against removal from office. In law, the pro1'.ibition in said constitution against removal from office of one class, the judges conferred the implied power to remove the other class, the judges of the inferior courts constituting said class. It will be seen from said constitution that the class of courts designated in the same as 'inferior courts' were intended to be creatures of the legislature, subject to its will, and for this reason nc. constitutional limitations were thrown around such courts. It is obvious from the terms ot said constitution that no question of the legislative intereference with a constitutional tenure of office arose in said case. 7 Hough, Am. Const. <Iowa Const. l p. 382, art. 5. "The case of Board v. Mattox, 30 Ark. 566, was grounded upon express provisions of the Arkansas constitution, and is not in point x x x." In this case an inferior court was abolished by an act of the legislature, and the judge of the court instituted a mandrunus proceeding to compel the payment of his salary, The court, holding adversely to the contention, said: "Where the court is abolished, as was the case in this instance, there was no longer an office to fill, no officer, no service to render, and no fees due." It MEMORANDUM FOR RESPONDENTS <Co1ttin.ut:d) Hypothetical law reducing membeTship of the Supreme CmtTt would not apply to the case at bar - Counsel for petitioners apparently followed the remarks of Prof. Aruego during the last minutes of the oral argument held on August IO, 1954, when he expressed the opinion that a law reducing the membership of the number of this Honorable Court from 11 to 7 would be constitutional under Art. VIII, section 4, which provides: "SEC. 4. The Supreme Court shall be composed of a Chief Justice and ten Associate J ustices and may sit either in bane or in two divisions unless otherwise provided by law;" but unconstitutional under Art. VIII, Section 9 of the Constitutinn which provides for judicial tenure of office. Such statement directed at this Hon. Supreme Court partakes of an "ad hominem" argument. And we do not believe that a law can be both constitutional and unconstitutional at the same time. Counsel for petitioners following the same argument submit that a law reducing the number of this Honorable Supreme Court from 11 to 7 by eliminating the four youngest members in point of service or the four oldest members (p. 9, Sebastian); or if Congress should increase the membership of the Supreme Court to 15 and after the 4 additional justices are commissioned, the numher is again reduced to 11 (p. 70, Salazar), the reduction would be unconstitutional as violative of judicial tenure of office. We may agree to the conclusion that such a law i·educing the membership of this Honorable Supreme Court from 11 to 7 by eliminating the 4 oldest or the 4 youngest members would be unconstitutional, but the reason would be that such a hypothetical act would single out 4 definite justices of this Honorable Court, and in the words of J ustice Laurel, such a law would be "enacted purposely to affect adversely the tenure" of justices or of particular justices (or judges) and thereby "cloak an unconstitutional and evil purpose" (Zandueta vs, de la Costa, 66 Phil. 615, at p. 627). Prof. Aruego drawing a parallel to the instant law, Rep. Act No. 1186 which abolished the positions of judges-at-large and cadastral judges, expressed his opinion that such a law would be constitutional because Congress has the power to organize, abolish and reduce statutory courts, but unconstitutional insofar as it would deprive the petitioners of their tenure of office. We disagree w1tn the opinion of Prof. Aruego as to the invalidity of Rep. Act No. 1186, because the law does not single out any specific or particular judges. Rather, it abolished all the existing positions or offices of j udges-at-large and cadastral judges· The law is gl!nernl. It 9'."~ not enacted to affect adversely the tenure of any particular judge. It was not a cloak to cover an unconstitutional or evil purpose. Such an hypothetical law if applicable to the Supreme Court and intended to deprive the four oldest or four youngest members of this Honorable Tribunal of their judicial tenure of office would be invalid under the principle enunciated in the case of Commonwealth vs. Gamble, 62 Pa. 343. However, Republic Act No. 1181) abolishin(t' all the positions of judges-at-large and cadastral judges is valid and constitutional under th!! principles enunciated in the cases of Cherokee County vs. Savage, 32 S. ed. 803; McCulley vs. State, 58 S. W. 134; Aikman vs. Edwards, 42 Pac. 366, and the other Philippine decisions cited in the Answer of respondents (pp. 9-19), and restated in this Reply Memorandum (pp. 5-9) re: thorities upholding the abolition of judgship. Alleged purpose to legislatti petitioners out of office - In our Answer (pp. 24·27), we cited authorities to the effect"Courts will not institute any inquiry into the motives of the legislative department" (Downy vs. State, p. 24 of Answer); "With the motives that dictated the Legislatures in either case the courts are not concerned." (People vs. Luce, p. i4 of Answer); 484 TH& LA WYERS JOURNAL October 31, 1954 MEMOHANDUM FOR PETITIONERS <Continued) will be seen that said constitution {that of Arkansas) expressly conferred upon the legislature the power to abolish inferior courts. The constitutional limitation upon the legislature, that it should not interfere with the term of office of a judge, is to be construed in connection with the provision conferring the power to abolish. This limitation was construed by the court, that while the office existed, only during this time the term of office ~hould not be interfered with. It is therefore evident that the court based its conclusion upon the theory that said limitation did not control the provision conferring the express power to abolish, and that the limitation was subordinate to this provision. So, therefore, the case is grounded on an express constitutional provision conferring upon the legislature the power of abolition ; that power of abolition necessarily carrying with it the power of deprivation of office. The case of Hoke v. Henderson, 25 Am. Dec. 677, involved the tenure of office of a clerk, - an office recognized by the constitution of the state, but as to which there was no tenure of office prescribed in that instrument, such tenure being left to the will of the legislature. In other words, the ruling in this case is applicable only to offices which are subject to legislative will, and not to offices the tenures of which are constitutionally defined. · The case itself expressly declares that the legislature is powerless to interfere with officers the tenure of which is constitutionally prescribed· "Having shown that the two Tennessee cases (out of line \Vith former and subsequent cases on the same principle) directly against the ll<1lding in Pope"· Phifer, 3 Hcisk, 682, repudiated by three cases since, precisely in point CState v. Ridley, State "· LeClnard, Sta~e v. Cummins), never should have been car.trolling I wish to present th<' original question against the merit of these opinious, per se, and in this connection I would refer first to their inherent wan( of weight by reason of the fallacious doctrine upon which they are re5ted. It is, first the assumption that 'whatever the legislature could establish it could destroy.' The authorities alrl"ady cite.d and quotations made wholly overh:rn this assumption. It 1s cl"'ar that when a thing is established by the legislature, and exist::; or:ly by virtue of ihat authority, the authority may be withdrawn and the thing itself destrClyed . It is equally ckar in reason, and we think we have demonstrated it to be so in authority, that when it is established by virtue of constitutional direction, and to exist and take power and duration, with unchangeable salary, from the constitution, it is embedded in the constitution and beyond legis· lative control. x x x The second fallacy upon which it was based was the lack of independence of the judicial department. The republican form of government which we in common with other states had adopted in theory embraced three independent departments, - the legislature, executive and judicial - each supreme in its QWn sphere and independent of the others. This theory had been assumed to be correct, and this condition of independence actually existing in fact, from the adoption of our earliest constitutior.." The theory that the legislature may abolish courtB provided it is not motivated by bad faith nor intended to turn the judges out of office. This theory is less objectionable than the first one but is subject to the objection that it makes the intent of the legislature subject to inquiry on the part of the courts. The authorities are in conflict as to whether courts may inquire as to the motive and intent of the legislature in passing a law. The theory that the legislatuu does not have the power to abolish courts when the intent or effect thereof is to terminate the office of the incumbent judges. We now proceed to give the reasons why this theory is, among the three, the most sound and the most in consonance with the spirit of the Constitution. MEMORANDUM: I•'OH RESPONDENTS <Contfoued) "The discretion being conceded and the power admitted, the expediency of the legislative will, or the motives which may actuate that will in a given case, is not a fit or allowable subject of inquiry or investigation" (Bruce vs. Fox, p. 25 of Answer); "Courts may not review questions of legislative policy" (p. 26 of Answer); ''The judiciary is not th<> respository of remedies for all pQ!itical or social ills" (Vera vs. Avelino, p. 26 of Answer) . In the case of McCulley vs. State, 53 S.W. 134, the Court said"The exercise of this power by the Legislature is not such interference over the independence of the judge, or with his tenure of office, as can be properly complained of. The power may be possibly exercised without good cause, but in such case the courts can furnish no remedy." (at p. 136) "An act cannot be annulled because it violates the best public policy, or does violence to some natural equity, or interferes with the inherent rights of a citizen, nor upon the idea that it is opposed to . some spirit of the constitution not expressed in its words, nor because it is contrary to the genius of a free people; and hence the wisdom, policy, and desirability of such acts are matters addressed to the general assembly, and must rest upon the intelligence, patriotism, and wisdom of that body, and not upon the judgment of this court." (concurring opinion of J. Wilkes, at p. 144) But counsel for petitioners insist that the purpose of Republic Act No. 1186 was "to weed out undesirable judges" (quoting Congressman Tolentino, p. 18, Sebastian). The statement of personal opinion by one Congressman is not the will of Congress. In fact Congressman Francisco who was the sponsor of the measure on the floor of Congress stated"MR. FRANCISCO. Mr. Speaker, the bill now under consideration is House Bill No. 1961 amending the Judiciary Act of 1948. The main feature of the measure is the abolition of the positions of cadastral judges and judges·at-large and the cre.:ltion in lieu thereof of the posit.ion of auxiliary district judges." "MR. FRANCISCO. The purpose of the law is clearly stated in the explanatory note. The purpose of the law is twofold: First, in order to remedy the backlog of cases, we propose to increase the number of judges. Secondly, in order to do away with the abuses of the past, we propose to limit the power of the , Secretary of Justice to transfer a judge from Jolo to Batanes or from Batanes to Jolo, with a view to avoid political interference. Now, if I may be permitted to ask the gentleman from Ilocos Norte, does he believe that his interpretation of the Constitution is correct?" (Lawyers Journal, July, 1954, pp. 325-326) Respondents' Answer submitted that good reasons of public interest justify the exercise of the governmental powers of the Legislative and Executive departments (pp. 27-36), among which, to stop the obnoxious practice of "rigodon de jueces" (p. 31), to prevent the Sec. of J ustice from handpicking judges to try specific cases (p. 32) and eventually to strengthen and fortify the independence of the judiciary (p. 35 of Respondents' Answer). Counsel for petitioners cite the opinion of Secretary of Justice, Hon. Pedro Tuason, that the bill would be unconstitutional in so far as it would affect the tenure of the incumbent judges (p. 132, FrandscC1; p. 24 Sebastian), and sl>J.te that the undersigned Solicitor General should follow the "opinion of his Chief" (p. 132, Francisco). Secretary Tuason merely expressed his personal opinion. According to Atty. Salazar, counsel of the petitioners, the concurring opinion of Mr. Justice Laurel in the Zandueta ~s. de los Costa, 66 Phil. 615, "cannot be accepted as controlling" (p. 86, Salazar). October 31, 1954 THE LAWYERS J01)RNAL 485 MEMOHANDUM FOR PETITIONERS <Continued) Supposing a constitution gives the Legislature the power to establish inferior courts but is silent as to the tenure of office of the judges; may the Legislature, after it has established such courts, abolish the same? The respondents will undoubtedly answer the question in the affirmative, invoking the principle that offices created by the Legislature may be abolished by the Legislature and that the power that creates can destroy. Now, supposing said constitution is amended by inserting therein a provision to the effect that judges of such courts shall hold office during good behavior; what would be the answer of the respondents to the question of whether the Legislature may abolish such courts and terminate the office of the judges? Without doubt they will give the same answer, that is, that the Legislature may abolish these courts because the power to create them carries with it the power to destroy. If that were so, what then is the difference behveen giving the Legislature the power to establish inferior courts without the constitutional guarantee of tenure of office of the judges, and giving the Legislature such power but securing at the same time in the Constitution the tenure of office of such judges? If with or without a provision in the Constitution gua:ranteelng the tenure of office of a judge, the Legislature may without restriction abolish any court created by it, what then is this provision regarding security of tenure for? Is it conceivable that this provision was inserted in the Constitution for no purpose or effe<:t? Since no sensible man would think that the provision guaranteeing the tenure of office was inserted in the Constitution without any purpose at all, and that a constitution without such provision has the same effect as a constitution containing the same, with regard to the power of Legislature to terminate the office of a judge by abolishing his court, we have to conclude that such provision places a limitation upon the power of the Legislature to abolish courts. In other words, the unrestricted power of the Legislature to abolish courts created by it, when the constitution does not guarantee th.e tenure of office of the judges of said courts, becomes restricted when the constitution guarantees and protects the tenure of office of the judges of the courts created by the Legislature. The second reason why we say that the second theory is the most sound among the three is because the provision of the Constitution securing the tenure of office of the judges has for its object and effect to establish the complete independence of the judiciary, not only in its operation among the people, but as against possible encroachment by the other coordinate branches of the government. On this score, we can do no better than to quote the pronouncements of some of the most eminent American justices on the matter, which we arranged in the form of syllabi. McCulley v. State, 102 Tenn., 509, 53 So. 184, Dissenting Opinion of C. J. Snodgrass. POWER OF CREATING AND ABOLISHING JUDGES; ENGLISH THEORY. - The power of creating or abolishing judges never did, and does not now, abide in the parliament of England. The English theory was that the king was the judge in England. Later this kingly power was delcgnted by him to others appointed. by him. They existed with him (subject to his powei· of l'\"'rno\·al), and officially died with him, if not before removed. Yet, later, on reeommendation of the king, the last feature was changed by act of parliament, and the tenure of the office of each incumbent was extended beyond the death of the king; and the office was ultimately held during good behavior, which, of course, meant during lifr, if not forfeited by misconduct. But still to this was added a right of of remov:\I by the king upon what was termed an "address" of both houses of parliament, and which, it is said, was made in the form of a resolution. DEPENDENT JUDGES. - It will be remembered by all students of history that the course of dependent judges rendered truculent by control, and made infamous by subservience, had created for the English people a more insupportable condition of legal tyranny and authorized oppression than bad ever iound ex.istence in the MEMORANDUM FOR RESPONDENTS <Continued) How then can counsel for petitioners argue that Secretary Tuason's personal opinion should be controlling? Former judicia111 laws required incumbents to vacateProf. Enrique M. Fernando in his oral argument mentioned Act No. 2347 and Act No. 4007 and both Acts required the incumbent judges to vacate their positions. We quote the pertinent provisions of said Acts. "Sec. 7. Of the appointment of the judges and auxiliary judges of Courts of First Instance. - The district judges appointed by the Governor-General, with the advice and consent of the Philippine Commission t-0 serve, subject to the provisions of sections eight and nine hereof until they have reached the age of sixty-five years: Provided, That no person shall be appointed to said positions unless he has practiced law in these Islands or in the United States for a period, of not less than five years or has held during a like period, within the Philippine Islands or within the United States an office requiring a lawyer's diploma as an indispensable requisite: Provided further, That before asSuming such judicial office he shall qualify as a member of the bar of the Supreme Court of the Philippine Islands if he has not already done so; And provided, further, That the present judges of Cottrts of First Instance, judges-at-large, and judges of the Conrt of Land Registration vacate their positions on the taking effect of this Art,, and the Governor-General, with the advice and consent of the Phili1>pine Commission, Ehall make new appointments of judges in accordance with the provisions of this Act, taking into account, in making seid appointments, the services rendered by the present judges." (Act No. 2347, £>nacted February 28, 1914; underlining supplied.) "Sec. 41. All the present Secretaries and Undersecretaries of Department, except the Secretary of Public Instructions, the judges and auxiliary judges of first instance, the Public Service and Associate Public Service Commissioners, and the chiefs and assistant chiefs of bureaus and offices, except the Insular Auditor, the Deputy Insular Audit-Or, and those detailed from the United States Government, shall vacate their respective positions on the taking effect of this Act, and the GovernorGencral shall, with the consent of the Philippine Senate, make new appoint.mr.nl:< of Secretaries and Undersecretaries of Department, judges and judges·at-large of first instance, Public Service and Associate Public Service Commissioners, and chiefs and assistant chiefs of bureaus and offices. in accordance with existing law as modified by this Act : Provided, That in the making of such appointments the services rendered by the present incumbents shall be taken into account." (Act No. 4007, approved December 5, 1932) The judicial incumbents, including judges-at-large and cadastral judges, were required to vacate their positions upon the effectivity of said Acts. There was no question raised as to the constitutionality of said legislative Acts. And both Acts required new appointments. The claim of counsel for petitioners that under Rep. Act No. 1186, which abolished the po.;itions of jndgc-s-at-large and cadastral judges - "no new appointment will be necessary" (p. 134, Francisco) - can not be correct, because Rep. Act No. 1186 abolished all the positions of Judges-at-large and Cadastral judges, and petitioners were not District judges. Another counsel of petitioners states - "of course they also could have been extended new appointments as district judges by the President, the same to be confirmed by the Commission on Appointments (p. 21, Sebastian). But certainly petitioners were not entitled t-0 automatic appointment as District judges. Petitioners could not be automatically appointed District judgesCounsel for petitioners remind us that in the original Laurel 486 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS (Continnrd) widest usurpation of p1·etenders or the most abominable license of established despots. This, among all the grievances which caused rc\•olution and advanced the cause of freedom there, and gave it absolutely here, was the result of such disregard of popular rights and liberties by dependent creatures of the crown called "judges." COMPLAINTS OF THE AMERICAN COLONIES. - It is to be remembered that one of the complaints of the American colonies against the injustice of the king was that: "He has obstructed the administration of justice by refusing his assent to Jaws for the establishment of judiciary powers. He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries." INDEPENDENT JUDICIARY; HOW SECURED. - An independent judiciary in an independent govemment the tenure was for life or (what may be the same thing, and must be, to a faithful and irreproachable official) during good behavior, and there was a provision against decreasing judi~ial salaries. , / INTENDl\1ENT OF TENURE OF OFFICE PROVISION CLEARLY ESTABLISHED IN THE LIGHT OF HISTORY OF THE UNITED STATES. - "That the tenure of office·provisi'Jns of the constitution were expressly intended to secure the term of office and the judges of the office during the tenure, subject alone to the defined grant of power of removal is firmly establlshed in the light of history, and the conditi011s which Jed to the establishment of -our federal and state forms of go\•ernment. When we look to thesC', we find the full import of the framers of our organic law 'hammered and crystallized' in the few brief words which defined and secure judicial independence by a fixed tenure of office, and an undiminished compensation during that tenure. The struggle for judicial independence has been a long and eventful one. • • • Judicial independence was intended to be secured by the provision that 'the judges of both the supreme court and inferior courts shall holfl their offices during good behavior, and shall at stated times receive for their services a compensation, which shall not be diminished during their continuation in office.' (Const. U.S. art. 3, sec. 1.)* • t After the formation of the constitution it was submitted to the respective conventions of the states for adoption. The records of the debates in some of these conventions have been preserved. These debates establish beyond controversy that said clause of the federal constitution was intended to put the tenure of cffice of the entire federal judiciary beyond any legislative interference whatever, except by impeachment. • • •" REASONS FOR ADOPTING THE JUDICIAL TENURE OF OFFICE CLAUSE. - According to the debates in states conventions: Massachusetts Convention. - Mr. Tacker: "' • • The inde· pe.ndence of judge,~ is one of the favorable circumstances to publ;c, liberty, for when tlu;,y become the slaves of a venal, corrupt cowrt, and the hirelings of tyranny, all vroperty is precarious and personal security at an end." Connecticut Convention. - Mr. Elsworth, a Member of the Federal Convention: ''This constitution defines the extent of the powers of the general government. If the general legislature should at any time overlap its limits, the judicial department is a constitutional check If the United States go beyond their powers, - if they make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, - if they make the law which is a usurpation upon the general govern· ment, - the law is void; and upright, independent judges will declare it to be so.'' Virginia Convention. - Edmond Randolf, a member of the Fede1·al Convention: - ''* * * If congress wish to aggrandiie themselves by oppressing the people, the judiciary must first be corrupted." MEi\10RANDUl\I FOR RESPONDENTS <Continued) bill there was a provision for the automatic reappointment of the judges-at·large and cadastral judges into district judges (See. 5 of Bill No. 170, p. 12, Sebastian), but said provision of the bill was eliminated in the final law, Rep, Act No. 1186. The reason, we submit, was the realization that such a provision would be unconstitutional as constituting "legislative appointment" (pp. 21-22 of Answer), and therefore an interference with the sole power of exclusive prerogative of the Executive to appoint. <p. 23 of Answer) In fact petitioners' positions as judges-at-large and cadastral judges are tainted with unconstitutionality (p. 28 of Answer), be-cause they violate the spirit, if not the letter of Art. VIII, sec. 7 of the Constitution which provides : "No judge appointed for a particular district shall be de· signaled or transfel'l'ed to another district without the ap· proval of the Siipreme Coiirt. The Congress shall by law detennine the residence of judges of inferior courts." The l'eply uf pt!titioner!I to respondents' answer did not traverse, much less discuss this constitutional issue. The scanty discussion of this issue by counsel for petitioners (pp.· 128-131, Francisco; pp. 10-11, Salazar; none by Sebastian) would reveal the weakness of petitioners' position on this new point raised by the undersigned counsel for respondents. The fact that this issue was never raised before or the constitutionality of the positions of J u<lges·at-large and Cadastral J udges have been taken for granted cannot estop the l'espondents from raising this new nnd vital issue. Certainly the fact that such judges had no permanent residence as required by Art. VIII, Sec. 7, and could furthermore be designated from prov· ince to pl'Ovince at the sole will or discretion of the Department Head (Sec. 53 of Rep. Act No. 296) does violence to said sec. 7 of Art. VII I, which prohibits the transfer of a judge "without the approval of the Supreme Court". If therefore the positions of such judges-at·large and cadastral judges were tainted with constitution· al infirmity from their very existence, petitioners can hardly hav{! any ri~ht o:· pC'rSonality to question the validity of Sc::ction 3 of Republic Act No. 1186, which abolished such positions whose crea· tion and continuance are of doubtful constitutional validity, and expressly repealed Section 53 of Republic Act No. 296. Republic Act No. 1186 cannot be given p1·ospective effect onlyCounsel for petitioners suggest that Section 3 of Republic Act No. 1186 should operate prospectively (Francisco, p. 147; Salazar, p. 30). This suggestion however cannot be adopted in view of the express provision of Section 3 of Republic Act No. 1186, which we quote again: "All the existing positions of Judges-at-1arge and Cadastral Judges are abolished, and section fifty-three of Republic Act Numbered Two hundred and ninety-six is hereby repealed.'' (Underscoring supplied.) The law abolishes "all existing positions," and expressly repeals Section 53 of Republic Act No. 296. If the power of Congress to abolish statutory courts is a·dmitted, and the exercise thereof is <'Onstitutional, provided the law does not single out any particular judge or judges, even if the incumbents are deprived of their of· fices, which are clearly abolished, the law must be given the effect it openly expresses and the interpretation it clearly deserves. Counsel for petitioners express the fear that "all judge:1 of District Courts could thus be legislated out" <Sebastian, p . 26), and would thus demolish the indeprndence of the judiciary, w}.ich "will henceforth be a myth" CSehas1fa.n, p. 20). The fact is tJiat Republic Act No. 1186 has not abolished any district judge. But if Congress should see fit fur public interest. to !'educe or abolish some Courts of First Instance, we would still maintain that such exel'cise of Legislative power would be valid and constitutionc.l within the framework of our Constitution, provided such a law would not sfr1gle out any particular judge or judges. In the !lame <Continued on next page) October 31, 1954 THE LA WYERS JOURNAL 487 MEMORANDUM FOR PETITIONERS <Continued) Mr. Pendleton: - "• • • 'Vhenever, in any country of the world, the judges are independent, the liberty and property are securP." Mr. John Marshall: - "• • • If a law be exercised tyrannic31ly in Virginia, to what can you trust? To your judiciary? What security have you for justice? Their Independence." Mr. Henry: - "• • • The judiciary are the sole protection against a tyranical execution of the laws. But if by this system we loss our judiciary, and they cannot help us, we must sit down quietly and be oppressed." North Carolina Convention. - Mr. Steele : - "• • • If the Congress makes laws inconsistent with the constitution, independent judgeS will not uphold them, nor will the people obey them." It is clear from these debates that the constitution was considered as intending that the tenure of office and salaries of judges should not be disturbed during good behavior, and that a breach of the condition of good behavior should only be considered by means of an impeachment .. According to Hamilton : "According to the plan of the convention, all the judges who may be appointed by the United States are to hold their offices during good behavior, which is conformable to the most approved of the state constitutions, - among the rest, that of this state. The standard of good behavior for the continuance in office of the judicial-magistracy is certainly one of the most valuable of the modern improvements in the practice of government. • • • And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws. Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution, because it will be least in capacity to annoy or injure them. The executive not only dispens0 es the honors, but holds the sword, of the community. The legislature not only commands . the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence O\!er either the sword or the purse, no direction either of the strength of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgment, an<l. must ultimately depend upon the aid of the executive for the ef. ficacious exercise even of this faculty. This simple view of the matter suggests several important consequences. It proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power, that it can never attack with success either of the other two, and that all possible care is requisite MEMORANDUM FOR RESPONDENTS (Continued from page 487) way that a superior court, like the Court of Appeals, was creP.ted, al>olished and then recreated <pp. 11-12 of Respondents' Answ"r' . Conclusion: The undersigned counsel for respondents is as much interesteJ as counsel for petitioners in maintaining and pregerving an independent judiciary. In fact, we want to further strengthen and fortify the independence of the juriici:i.ry (pp. 35-36 of Respond'2'nt s' Answer). This is one reason why we justify the abolition of jud'l:t!l!at-large and cada,:;tral judges i..s expressly provided by Section :i c.f Republic Act No. 1186. PRAYER WHEREFORE, the prayer contained in respondents' Answer dated July 20, 1954, is hereby resr-ectfully reiterated. Manila, September 4, 1954. AMBROSIO PADILLA Solicitor General to enable it to defrnd itself against their attack. It proves, in the last place, that as liberty can have nothing to fear from the judicia1·y alone, but would have everything to fear from its union with either of the other departments; that as all the effects of su~h a union must ensue from the dependence of the former on the lattt!r, notwithstanding a nominal and appareut separation; that as from the natural feebleiiess of the judiciary it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; that as nothing can contribute so must to its firmness and independence as permanency in office, - this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and in a great measure as the citadel of the public justice and of the public security. The complete independence of courts of justice is pecul iarly essential in a limited constitution. If, then, the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to lhat independent spirit in the judges which must be essential to the faithful performance of so ardous a duty. This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humors which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves, and which, though they speedily give place to better information and a more deliberate reflection, have a tendency in the meantime to occasion dangerous innovations in the government and serious oppressions of the minor party in the community; for it is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution where the legislative invasions of it h::i.d been instigated by a major voice of the community." According to Cooley: "This constitution provided that 'judges should hold their office during their good behavior.' Article 5, sec. 2. The meaning of these words is to be interpreted in the light of the history and conditions preceding the formation of the constitution. So interpreted, it seems beyond controversy that this f•rovision was intended to secure to the judges a tenure of office safe from any legislative interference or abridgment, direct or indirect, except for cause for which the judge might become responsible by breaching the condition of good behavior, this being provided for by impeachment." (Cooley, Const. Lim., 6th ed., p. 80.) - Ar.cording to Tucker: "To give them the courage and the firmness to do it, the judges ought to be confident of the security of their salaries and station. The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence. It tends also to secure a succession of learned men on the bench, who, in consequence of a certain, undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station." (1 Kent, Comm., pp. 294-295.) "This absolute independetice of the judiciary, both of the executive and the legislative departments, which I contend is to be found both in the letter and spirit of our constitutions, is not less necessary to the liberty and security of the citizen and his property in a republican government than in a monarchy. Such an independence can never be perfectly attained but by a constitutional tenure of office, equally independent of the frowns and smiles of the other branches of the government. And herein consists one of the greatest excellencies of our constitution, - that no individual can be oppressed whilst this branch of the government remains independent and uncorrupt; it being a necessary check upon the en· croachments or usurpation of power by eithe,r of the other. And as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches, who have the custody of the purse f.!.nd the sword of the confederacy, .and as nothing can contribute so much to its firmness or independence as permanency in office, this quality therefore may 488 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS <Continued> be justly regarded as an indispensable ingredient in the constitution, and in a great measure as the citadel of the republic, justice and the public security." (1 Tuck. Bl. Comm. Append. 354, 860.) -According to Story: "The reasons in favor of the independence 0f the judiciary npply with the augmented force to republics, and especiallr to such as possess a written constitution, with defined powers and limited rights. It is obvious that, under such circumstances, if the tenure of office of the judges jg not permanent, they wil! soon be rendered odious, not because they do wrong, but because they refuse to dD wrong; and they will be made to glve way tc. others who shall become more pliant tools of the leading demagogues of t.lw day. There can be nc security for the minority, in a free government, except through the judicial department. In the next place, the indcpendenct> of the judiciary is indispensable to secure the 1ieoplt: against the intentional as well as unintentional usurpations of the executive and legislative departments. It has been obserVed with great sagacity that power is perpetually stealing from the many to the few, and the tendency oi the legislative department to absorb all the other powers ..if the government has always been dwelt upon by statesmen and patriots as a general truth, confirmed by all human experiCnce. • • • In a monarchy the judges, in the performance of their duties with uprightness and impartiality, will always have the support of some of the departments of the government, or at least of the people. In republics they may sometimes find the other departments combined in hostility against the judicial, and even the people, for a while, under the influence of party spirit and turbulent factions, ready to abandon them to their fate. Few men possess the firmness to resist the torrent of popular opinion, or the content to sacrifice present ease and public favor in order to earn the slow rewards of a conscientious discharge of duty, the sure that distant gratitude of the people, and the severe but enlightened award of posterity. The considerations above stated lead to the conclusion that in i·epublics there are in reality stronger reasons for an independent tenure of office by the judges - a tenure during good behavior - than in monarchy. · Indeed, a republic with a limited constitution, and yet without a judiciary sufficiently independent to check ueurpation, to protect public liberty, and to enforce private rights, would be as visionary and absurd as to society organized without any restraints of law. In human governments there are but two controlling powers, - the power of arms and the power of laws. If the latter are not enforced by a judiciary above all fear and above all reproach, the former must prevail, and thus lead to the triumph of military over civil constitutions. The framers of the constitution, with profound wisdom, laid the corner stone of our national republic in the permanent independence of judicial establishment. Upon this pl)int their vote was unanimous. The main security relied on to check an irregular or uncon:>titutional measure, either of tho executi,·e or the legislative: department, was, as we have seP.n, the ju· cliciary. To have made the judges, therefore, removable at tho pleasure of the president and congress, would have been a virtual surrender to them of the custody and appointment of the guardians of the constitution. It would have been placing the keys of the citadel in the possession of those against whose assaults the people were most strenuously endeavoring to guard themselves. 1t would be holding out a temptation to the president and congress, whf'nevcr they were resisted in any of their measures, to secure a perfect irres11onsibility by removing those judges from office who should dare to oppose their will. Such a power would have been a signal proof of a solicitude to erect defenses around the constitution fo~· the sole purpose of surrendering them into the possession of tho::;c whose acts they were intended to guard against. Under such circumstances, it might well have been asked where could resort be had to redress grievances or to overthrow usurpation. . It is almost unnecessary to add that, although the constitution has with so Se· dulous a oare endeavored to guard the judicial department from the overwhelming influence or power of the other coordinate departments of the government, it has not conferred upon them any inviolability or irresponsibility for an abuse of their authority. On the contrary, for any corrupt violation or omission of the high trust confided to the judges they are liable to be impeached, as we have already seen, and, upon conviction, removed from office. Thus, on the one hand a pure and independent administration of public justice simply provided for, and on the other hand an urgent responsibility secured for fidelity to the people." (Story, Const. Sec. 1610, 1612-1614, 1619, 1621, 1624, 1628, 1635.) TENURE OF OFFICE CLAUSE CAN NOT BE ABRIDGED OR LIMITED BY THE CLAUSE GRANTING THE LEGISLATURE THE POWER TO ESTABLISH SUPERIOR AND INFERIOR COURTS. - This constitution (of 1796) provided that judges should " hold their offices during their good behavior." Ar· ticle 5, Sec. 2. The meaning of these words is to be interpreted in the light of the hi::;tory and oonditions preceding the formation of the constitution. So interpreted, it seems beyond controversy that this provision was intended to secure to the judges a tenure of office safe from any legislative interfere11cc or abridgment direct or indirect except for causes for which the judge might become responsible by breaching the condition of good behavior; this being provided for by impeachment. Cooley, Const. Lim (6th Ed.) p. 80. It is evident ·that the judicial tenure of office provided for in the constitution of 1796 was modeled after the federal constitution, and was int~nded to bear the same meaning and construction. ·Under these conditions, and with these preceding events in the knowledge of the convention, it seems wholly unreasonable to suppose this tenure of office clause was intended to be in any way abridged or limited by the clause in said constitution providing that the judicial power of the state "shall be vested in such superior and inferior courts of law and equity as the legislature shall from time to time direct and establish." Article 5, Sec. 1. The convention of 1896 framed an organic law (said by Jefferson to be "the least imperfect and most republican" of any then framed) to govern a free people. Its every intent and purpose must have been to erect every barrier to oppression, and to provide every possible safeguard . for the protection of the people. With the dangers which attended a judiciary dependent u pon the king, and the protest of the Declaration of Independence, in its knowledge, it seems incredible that this convention intended to submit judicial independence to abridgment and destruction by legislative will; thus transferring dominion from an executive power to n legislative power, - a change from one to many masters. The authority of said convention given to the legislature to "direct and establish courts," viewed in the light of hist-Ory, could not have been intended to permit the destruction of the judicial tenure expressed in terms, and thus by a mere implication permit the power to interfere with judicial independence by the abolition of courts. (McCulley v. State, 102 Tenn. 509.) Commonwealth v. Gamble (62 Pa. 343) CONSTITUTIONAL LAW; TENURE OF J UDGES FIXED BY THE CONSTITUTION. - The respondent judge, having been elected and subsequently commissioned as president judge of the 29th district, took the oath of office and entered upon the performance of his duties as judge of sai<l court. The tenure of the office was, by the constitution, to continue for 10 years, on the only condition that he would ~o long "behave himself well." Held: Having taken the office and entered upon the performance of his duties, its duratiun was assured to him by the constitution for the full period mentioned, subject to be terminated only by death, resignation or breach of the condition, which breach could not be legislatively determined, but only by the trial before the senate on article of impeachment duly preferred, or, in the case the breach amounted to total disqualification, perhaps by address of 2/3 of each branch of the legislature. These are the ordained _constitutional remedies in such cases and there can be no others. TENURE AND COMPENSATION OF JUDGES; OBJECT.The constitutional provision regarding tenure of office and the other requiring that adequate compensation shall be provided by law for the judges, which shall not be diminished during the continuance of October 31, 1954 THE LAWYERS JOURNAL 489 MEMORANDUM FOR PETITIONERS <Continued> his office, not only give the protection but inviolability to the tenure of judicial office, by any but the constitutional mode referred to. Their object and effect were, undoubtedly, to establish the complete independence of the judiciary, not only in its operation among the people, but as against possible encroachment by the other coordinated branches of the government. REASON FOR PROTECTING THE JUDICIARY. - Possessing neither the power of the purse nor the sword, as the executive and the legislative branches, may be said to do, the judiciary was by far the weakest branch of the government; and as its operations were necessarily to affect individual interests in the community, it was obviously proper, in order to secure its independence against the action of the other branches more liable to be swayed by im · pulse, or operated upon by individual, party or sectional influence, to protect it by express constitutional barriers; and it was so done. INDEPENDENCE OF THE JUDGES. - The independence of the judges is equally requisite to guard the constitution and rights of individuals from the effect of those ill-humors which the acts of designing men, or the influence of particular conjunctures, sometimes create among the people themselves, and which, althOugh they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and severe oppression of the minor party in the community. (Commonwealth v. Mann, 5 W. & S. 408.) AN INDEPENDENT JUDICIARY MUST BE A CARDINAL PRINCIPLE. - An independent judiciary must ever be a cardinal principle of constitutional government. It was adopted in forming the federal constitution, both in regard to the express tenure of the office, and in providing a fixed compensation, undiminishable during the continuance of the office. And so in every state in the union this independence is secured, during the tenure of the office, hr constitutional provisions, and judges are made secure from interference from any quarters, with the exercise of their jurisdiction and powers, excepting in the modes prescribed in the several constitutions. These provisions were not the result of a wise philosophy or farseeing policy, merely. They i·esulted, rather from severe trials - experience - in the country from which we have largely derived our laws and many of our principles of liberty. History has preserved numerous melancholy examples of the want of a judiciary independent by law, before it was accomplished in England. UNCONSTITUTIONALITY OF LEGIRLATION ABOLISHING A JUDICIAL DISTRICT. - The judicial office is created by the constitution, and so is its tenure, and the compensation is protected by it when once fixed by the legislature. The amenability of the judges is also provided for, and this excludes all other modes. Thus is independence supposed and intended ~o be secured by the constitution. It must follow, therefore, that any legislation which impinges on the feature of the constitution is invalid. Not only was the judiciary thus made independent, but, as a co-ordinate branch of the government, its protection and existence were sup~ to be completely assured. ID.; ID. - Could the principle of the independence of the judiciary and, at the same time, its integrity as a coordinate branch of the government, have been more effectually assailed than by the passage of the act repealing the twenty-ninth judicial district, and its transfer bodily to another district and to other judges? Even if the commission might, for compensation, endure after all power and every duty under it had ceased - a result I do not admit - the act was not less destructive of the principle of independence with which it was the purpose of the framers of the constitution to invest the judges. What could be more destructive to all independence of action of a judge than the momentary liability, during the recurring sessions Of the legislature, to be dismissed from the exercise of the functions of his office by the repeal or abolition of his judicial district? If, all the while, he must be conscious that he exercises the powers and authority conferred by his commission only by the forbearance of the legislature, although it might be possible that independence of action might still exist, it would be an exception; as a rule, it wOuld be a myth. Such a state of things would follow a rule, the result of affirming the constitutionality of the act in question, would be utterly subversive of the independence of the judiciary, and destructive of it as a co-ordinate branch of government. The case of the twenty-ninth district this year might become that of any, or half, the other twenty-eight districts next year, for reason quite as legitimate as those operating to procure iti. repeal. Establish this power in the legislature, and it will be as eaS)', as it will be common, for powerful corporations and influential citizens to move the legislature to repeal districts, and supersede judges who may not be agreeable to their wishes and interests, 3nd transfer their business to other jurisdictions supposed to be more favorably inclined. This would be destructive of all that is valuable in the judicial office, and preservative alone of those evil qualities which flow from a subverted and subservient judiciary. ID. - I think in this state there has never been known a more palpable and direct blow at one coordinate branch of the government by the others, or one .so destructive of th<! uses for which it was established, as is contained in this act, though undesigned, we must believe. If there were no special reasons for holding it unc6nstitutional, these general views would require it so to be held. TENURE OF OFFICE CANNOT BE TERMINATED BY LEGISLATIVE ACTION. - The constitution, after providing for the election and commissioning of judges, fixes the tenure of their offices, by providing that the " president judges of the several courts of common pleas, and of such other courts as are or shall be established by law, and other judges i·equired to be learned in the law, shall hold their offices for the term of ten years, if they shall so long behave themselves well." Judge Gamble's commission had nine and two-thirds years to run, when the act in question was passed. By the express terms of the condition it was inviolable, by any authority for any other cause, during the period, than a breach of the condition, in the commission, for good behavior ; and, as already said, that could be redressed only by impeachment, or an address by the legislature. This is the mode fixed and ordained by the constitution, and is utterly incapable of being supplied or supplemented, directly or indirectly, by legislative action. THE JUDICIAL OFFICE IS INCAPABLE OF ANY LIMITATION BUT TH_.\T ATTACHED TO IT. - This is a constitutional grant of the right to exercise the powers and authority belonging to the office of president judge, and is incapable of any limitation but that attached to it. If this were not so, and it might be changed by legislative action, then would the authority of the constitution be subject and subordinate to legislative authority - a position not to be entertained for a single moment, especially when it is remembered that what the constitution itself ordains is so much of the sovereign power withheld from the legislative power. ID. : POWER TO REORGANIZE COURTS. - The aggregate of the duties of a judge in any given district may be materially diminished by a division of his district, or by the election of an assistant. But that grows out of a power to reorganize or regulate the courts - a power not withheld by the constitution, leaving the authority and jurisdiction pertaining to the office intact; and is quite a different thing from taking them away in toto. Their extent may, it is admitted, be changed, increased or diminished by a reorganization of the courts. This is an express provision of the constitution, and a condition to which the office is necessarily subject. With these exceptions, no other legislative interference is legal or constitutional. ID.; PROHIBITION IMPLIED IN THE GRANT AND TENURE OF OFFICE. - The grant and tenure of the office of judge are fixed by the constitution, and are necessarily an implied prohibition of all interference with it, in these particulars, by any other authority. 490 THE LA WYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS <Continued) ID.; THE OFFICE AND TENURE OF OFFICE ARE INSEPARABLE AND THE LEGISLATURE CANNOT TAKF: THf..;1\I AWAY DURING THE LIFETIME OF THE COMi\IISSION. - The constitution ordains that the office of president judge shall continue for ten ye.us, and this fixes inevitably the duration of the authority and powers which constitute it an office. They are inseparable; and it establishes that the legislature, by an ordinary act of legislation, cannot take them away during the life-time of the .commission. ID.; ID. ;-If the legislature could blot out a district, it could limit the duration of the commission granted to a Jess period titan len years, if it might so choose. That, it cannot Sl!o1ten the tenure of the office of a judge, as fixed by t.he constitution, is certain, and this ought to establish that it enn pass no act to do by indirection that which may not be done directly. ID. ; ID.-The net displaces . J udge Gamble as the prC'sidC>nt judge, and appqints Judge White and his law associate to hold th.;: courts therein. If such a thing can be done in one district, it may be done in all, and thus, not only would the independence of the judiciary be destroyed, but the judiciary as a co-ordinate branch of th-:! governmf'nt, be essentially annihilated. Sl..!J..W v. Leonard, RG Tenn. 485, 7 S. lV. 453. / CONSTITUTIONAL LAW; CONSTITUTIONAL TENURE -OF OFFICE CANNOT BE TERMI NATED BY THE LEGISLATURE. -Acts. Tenn. 1887, c. 84, repealf'd Acts Tenn . 1885, c. 71, under which defend&nt had been duly elected to the office of county jud.~f' t.f Marshall county, and conferred the power and duties incidf'':'lt to it on the chairman of the county court . H eld: That thb aet could not deprive dC'fondant of office for the remainder of the term for which he was elected, under Const. Tenn. art. 6, providing that the terms of office of the judges of such !r.!erior courts as the legislature from time to time shall establish shall be eight yeai:.s. IBID.; IBID.-The act of 1887 did not attempt to abolish or diminish the powC'rs .and duties appertaining to the officC>. It sim· ply repealed .<>o much of the act as applies to Marshall county, <i:.n· ether county having had a similar chance made in its court system bv the same act) and undertook to re-establish the office of chai~an of the county court after thi: first Monday in April, 18R7, und to vest in these officers all lh{: rights, privilrges, jurisdiction, duties, and powers pertaining to the officers as established and e'll;ercised by the count.y judge. If this legislation had merely named the defendant, :md by name and tit!~ removed him from the pcsi+ tion, and given it to another, it would not have more directly ac· complished the purpose actually effected, if this be valid. IBID.; PURPOSE OF THE CONSTITUTION IN FIXING THE TERMS OF JUDGES.- The constitution in fixing the terms of ~ he judges of inferior courts elected by the people at £.-ight years intended not only to meke' the judici~.ry independent, and thereby secure to thf' people t.he cor:esponding consequent advantages of courts free from interfereuce and control, and rernDved from all necessity of being constant and f:-equent experimenting with county systems, than which nothing could be more injurious or vexatious to the public. It was intended when the legislature established an inferior court that it should exist such a length of time as would give O"!)portunit.y for mature observation and appreciation of its benefits or disadvantages, and that the extent of its durebility might discourage such changes as were not the result of most mature consideration. IBID.; THE CONSTITUTION' GUARDED THE JUDICJAL DEP AR TM ENT 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 ur addition to our system ; and, conscious of the impropriety and the hazard of leaving the judicial department. of th!! v.overnment at the mercy and whim of each renewing legislatureitself elected for but two years,--the framers of the constitution wisely guarded against these f'vils by the 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 the evils and confusion of insecure, changing, and dependent courts, frequent and constant experime11ting with ·systems provided in haste, tried in doubt, and abolished before their merits or demerits were understood. It would be a mortifying reflection that our organic law maker intended any such result in their advanced efforts to make a goYernment of three distinct independent departments; and still more humiliating, if we were driven to the conclt:sion that, while they did not intend it, they had been so weak or in~pt, in the phraseology adopted, a!' to have accomplished it. Neither the intent nor the l3nguag<" of the constitution employed to express it for· tunately bears any such construction. IBID. ; JUDGES ENTITLED TO THE PROTECTION AGAINST UNCONSTITUTIONAL LEGISLATION DEPRIVING 'fHEM OF THEIR OFFICE.-Whcn the court whose judge is elected by the people of one or more oounties in c\istrict or circuit is com'tituted by the legislature, and an election had, and the officer commissioned and qualified, it is !lOt in the p.:>wer of the legislature to take from him the powers and emoluments of office durjng the term of eight years by devolving these inti:.ct upon ano~her, or otherwise. The court so constituted, and judge elected, in this mstance, was under the authority to establish 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 the constitution as such, :;gainst unconstitutional legislation to deprive him of his office. IBID.; THE CASE AT BAR DISTINGUISHED FROM STA'l'E V. CAMPBELL AND STATE V. GAINES. - It is is argued, however, that thio. act of removal is the zame as the act ab0lishing a circuit court, with all its powers and jurisdiction, from the con>:cqurnces of which it has been held hy this court a circuit judge would be deprived of office. State v. Campbell, <M.S.J; State v. Ga:nes, 2 Lea, 316. The act construed in these cases w:i.s one abolishing the Second circuit court of S!-.1.'lby county,-the First and Second . AR one was enough to do the hui.iness of the county, or supposed to be, thf' legislatun: abolished this court, leaving the entire business of both courts to be done by th• first; thPrP.ufter to be styled .;The Circuit O>urt of Shelby County." It was held in the cases referred to that 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 understood as assenting to the conclusion reached in those cases, (to the reasoning of which we do not sub-scribe) and whieh 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 presents no such question 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 cas~. Here the court was left as it existed, except the change made in ils official head. He was simply remov<?d 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 suid in the act of 1875, as in the act now being construed, that the office {)f the ju<lge of the Second circuit court shot:ld be abolished, and that the court should remain, with like jurisdiction and duties, hut these should he exercised by :.tnother officer, leaving the Firat circuit court also existing with its original jurisdiction and duties only,-that such would have been cieclared v_ oid. Nor can it be <liubted that if the legislature 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 p.residing judge, such act would be void. If this were not true, the legislature, at its next or any subsequent session, might pass a law setting out the October 31, 1954 THE LA WYERS JOURNAL 491 MEMOHANDUM FOR PETITIONERS (Continued) circuits and chancery divisions by numbers, and declaring that the office of judge of each be abolished. IBID. ; CONSTITUTIONAL TEST.-lt is nc argument in answer to this to say that the lcgislnture 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 restraint imposed, 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 protected or not protected by the clause of the constitution 1·eferred to. IBID.; THE INDEPENDENCE OF THE JUDICIARY MUST BE GUARDED AGAINST RASH AND CONSTANT EXPERI· MENTS OF LEGISLATION.-For the hon0r of the framers of the Constitution, 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 offer s us much satisfaction to give the constitution its plain, rational, and unobscure 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. But if there were, it would c.fford us pleasure to overrule it. State, ex f'el. Gibson 'ti. Friedle11 21 L. R. A., 634 CONSTITUTIONAL LAW; THE LEGISLATURE CANNOT LEGISLATE OUT A JUDGE.- The Constitution of Indiana provides that the circuit courts shall each consist of one judge, that the state shall, from time to time, be divided into judicial circuits, a judge for each circuit shall be elected by the voters thereof. He shall reside within his circuit and hold his office for a term of six years, if he so long behave well. The Constitution 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 yE.are: Held: It seems beyond the power of the legislature to legislate 9. 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. The authors c.f our constitution well understood the long struggle for many years previous to secure the independence of the judiciuy and the tenure of office of the judges; hence th<? Constitutic.n divides the powers of the state government into three distinct co-ordinate departments, carefully excluding any control of one over another. If the les:isIature, by a special act, may remove one judge or cne prosecutin~ attorney, it may remove any and all such officials in the state. and hence they wculd be at the mercy of any legislature whose ~mity or ill·will they may have incurred. ID.; LEGISLATURE CANNOT TRANSFER THE ENTIRE CIRCUIT OF ONE J UDGE AND ATTACH lT TO ANOTHER CIRCUIT.-If the general assembly can transfer bodily the entire territory which constitutes the locality in which the judg.-: or prosecuting attorney :may lawfully exercise the functions and dutiPs of his office, and attach that territory to another circuit, then it can strip the incumbents of their respective offices as effectually as it is pcssible to do so by any words that can be used. It is, il"I fact, as m11ch 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. It is not tn be assumed that the framers of the constitution builded it so unwiPely as to se,•ure 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 year.!!, If he so long behave well, and by the same organic law intend~d that the general assembly might remove him, at it.> will, from the exercise of all the privileges and duties pcrtainin,e thereto, with· out a hearing, without a conviction :for misconduct, under the guii,:e of "from time to time dividing the state into judicial circuits." ID.; LIMITATIONS OF THE LEGISLATIVE POWER TO fJIVIDF. THE STATE INTO CIRCUITS.- The division of the state bto judici1"1 circuits may be exercised by the legislature, where the act does not legislate judges and J)l'osecutors out of their respective cffices, but nut otherwise. The general assembly may add to, or may take from the territory constituting a circuit. It may create new circuits. It may abolish a. ci;cuit, if the act be made to take effect at, and not before the expiration of the terms of office of the judge and prosecutor of such -:::ffice, as constituted, at the time of the act. The genel'al assembly ha!' ~he power, 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 cnly to the restrictions that t-he legislature cannot, by any legislation, abridge the official terms of either cf such officers, nor deprive either of them of a judicial circuit, wherein he may serve out th& constitutional term fer which he was elected . State ex 'rel, v. L?°nk, Sup. Ct. of Tenn., Jan. 15, 1948, 111 S. W. 2d 1024. CONSTITUTIONAL LAW; ABOLITION OF COURT OPE&. ATES 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 whicl' authorized estublishment of ''.inferior courts." Terms of all judges, including judges of infel'ior courts, are fixed by the Constitution at 8 years, and their tenure cannot be impaired except where Legislature finds it necessary to redistribute business of courts for 1mrposes of economy and efficiency, and, when such rearrangement r~ sults in abolition .uf the tribunal, it operates to vacate office of judg(' who presid('d over such tribunal. AN ACT WHICH ABOLISHED THE OFFICE OF JUDGE BUT DID NOT ABOLISH COURT OVER WHICH THE JUDGE PRESIDED IS UNCONSTITU·rIONAL.- Where cr.;.mty judge for Stewart county was elected and C•)mmissioned according to law, an act which abolished the office and repealed act which created it, but which did not abolish court over which judge presided, was an unconstitutional exercise of legislative power. State 11, Ma/>ry, Sup. Ct. of Tenn., Nor>. 20, 1953, 178 S. H'. 2d 379. CONSTITUTIONAL LAW; ACT PURPORTJNG TO ABOIJSH OFFICE OP COUNTY .JUDGE INVALID.-Private Act purport· ing to abolish the office of County J udge by repealing the private act creating the court and undertaking to creatu and establish a new county court of Clay County and naming a chairman thereof was invalid as an attempt to defeat the right of the judge thereto elected and holdi:-!g office in accordance with the existing law. IBID.; A JUDGE CANNOT BE LEGISLATED OUT OF OF. FICE.-We cannot close our eyes to the palpable effort to legis-late the relator l3ailey out of office ond substitute in his place and stead anothel' person who is designated in another private act to p('rform the same official duties. Chapter 53 of the Private Acts of 1943 purports to abolish the office of County Judge by repeal. iJ1g the act that created it. Eight days after 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 county judge under the act which was sought to be repealed . The jurisdiction was the same in all respects. IBID.; LEGISLATURE CANNOT REMOVE A JUDGE BY ABOLISHING THE OFFICE.-The legislature cannot remove a county judge by abolishing the office and devolving the duties upon a chairman of the county oourt. IBID.; DISTINCTION BE'l'WEEN STATUTES JNEFFEC· TIVE 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, snd statutes that accomplish removal by abolishing the tribunal and transferring its business to another, was made clear by Mr. J ustice Wilkes in Judges Cases, 102 Trnn . 509 560, 53 S. W. 134, 146, 46 LR.A. 567. 492 THE I~AWYERS JOURNAL October :n, 1954 MEMORANDUM FOR PETITIONERS <Continued) In Re Opinion of the Justices, Supreme Judicial Court of Massa. chusetts, A11ril 15, 1930; 271 Mass. 575, 171 N. E. 237. CONSTITUTIONAL LAW; 'fENURE OF OFF'ICE DURING GOOD BEHAVIOR-The tenure ot office during good behavior imports not only the length of the term but also the extent of ser· vice. When n constitution has made definite provision covering & particular subject, that provision is exclusive and final. It must be accepted unequivocally. It can neither be abridged nor incre:i.sed by any or all of the departments of the government. Commonwealth v. Sheatz, 77 All. 547, CONSTITUTIONAL TENURE OF OFFICE.-When the Cons· titution fixes the duration of a term, it is not in the power of the le· gislature either to extend or abolish it. The legislature has no power to enact a law which, in its effect, would create n vacancy. The case of State 11. Noble, 118 Ind. 350, 4 L. R. A. 101, fully establishes the independence of the judiciary. The legislature cantlllt extend or abridge the term of an office. the tenure of which is fixed by the constitution. In State v. Johnston, 101 Ind 223. it is decided by the court that the general assembly has thf' power, at its di:!cretion, . to divide a judicial circuit, at any time, during the terms cf office of the judge and prosecuting sittorney of such circuit, subject only to the restrictions that the legislatur~ cannot, by any legislation, abridge the official terms of either of such officers, nor deprive eithn of them of a judicial circuit, whe1·ein he may serve out thf' con· stitutional tenn for which he was 1:lected. In Hohe 1!8. Henderson CN.C.J 25 Am. Dec. 704, note 1, it i!' suld: "It is without the power of the legislature to indirectly abolish the office by adding the circuit of the incumbent to anofoer thf'n existing, and this even if it be wi!hin the power of the legislRt.llr? ti') create new or alter old circuits, for that power must be so exr"!r· cised as to leave the incumbent his office. "But if the constitution provides for the durntion of an of· fice, the legislature has no power, even for the purpose of chang· ing the beginning of the term, to alter its duration." In People vs. Dubois, 23 111. 547, the supreme court of lllinois holds that although the creation uf new judicial districts was ex· pressly authorized by the constitution, yet no ne·.v districts could bf! created by which the judge in commission could be deprived of a right to exercise the fuuctions of his office during the con· tinuance of his commission. The court says: "The question is, Can the legislature expel the circuit judge from his office by creat· ing a new district taking from him the territory which constituted hi~ district? The bare reading of the constitution must convince t'Very one that it was intended to prohibit such a proceeding." To vacate the office of a district judge already elected by the people, and 'serving, by an act increasing the number of judges, would clearly be, in effect, the removal of a judge from office wht;n his office was not destroyed. To allow the legislature, while making one llE:W district, to legislate the judge of an old district out of office, and provide for the appointment or election of two new judges, would clearly be vicious in principle, and this is the clnss of legislation which fails withm the constitutional inhibition. Aikman v. Edwards, 42 Pac. 366. "However, we lay no stress upon this lt'gislative dechration, furthe!' t.han as it shows what the General Assembly understood what the Constitution meant. For the term of of· fice of circuit judge being, as we have seen, fixed by the pr. gamt' law, 11nd beyond the control of the Legislature, no enactment that they might indulge in would cause the term to end a day sooner or a day later. All that portion of the third section of tht act above ~uoted, which prescribes the duration of the term, and the election, may therefore be stricken out as superfluous; these matters being regulated by the Conet.itution and general laws of the state." State v. Cothem, 127 S. W, 260. The term of office is four years; this being a constitutional provision it is beyond legislative change. It is g, fixed quantity." State ex rel Goodin v. Thoman, 10 Kan. 191, cited in 74 Neb. 188, 104 N.W. 197, p. 202. Wilson v. Shaw, 188 N.W. 940. Where a city has been reincorporated, but its name, identity, and territorial limits remain the ~ame, a justice of the peace cannot be legislated out of office by the new charter's provision reducing the number of justices, when the Constitution provides that a justice shall hold his office for four years and until his successor is elected and qualified. Gratopp v, Van Eps (1897> 113 .Uich. 590, 71 N.W. 1080. AU the authorities above quoted show conclusively that as long as a court exists the office of the judge also exist.s. Am! this is SCt because a ~ourt cannot be established without clothing it with jUI"isdiction, which is the office of the judge. That is why it was said that a court cannot exist without jurisdiction and judge. And that if the court is stripped of its jurisdiction and the judge is taken away, the court will be a nonentity. Before proceeding to discuss the third proposition that we set forth in this memorandum . (page 41>, shall answer the argumenti. which the Solicitor General advanced in his reply and at the hearing of this case. As to the argument that the action of the petitioners is predicated on the fact that they were not appointed district judges. The Solicitor General has been harping that "if petitioners were appointed to the new district courts, this petition would never have been filed". {p. 20, Answer). Certainly, had the petitioners continued as judges of the Courts of First Instance, under the name of district judges, they would not haYe filed this action. Why? Because of the elementary rule that one who has not sustained nny injury as a result of the cnfotcement of a law cannot impugn the Yalidity of the same. CPeoplc vs. Vera, 65 Phil. 56>. May we remind the learned counsel for the respondents thst Republic Act No. 1186 has not created any new district courts? As to the a""gument that the Supreme Court cannot inquir• as to the intent and pitrposf of the Congress in f>"'OViding in the Act the abolition of the position of judgt!e·atlarge and cadast-ral judges. The Solicitor General predicated this proposition on the prin· ciple of separation of powers. But it is the Solicitor General him~elf who advanced the theory that the purpose of the Act is to Lrush aside the obnoxious practice of rigodon de juecez which we C:eny. We contend that the real purpose of the Act is to legislate out the judges-at·large and cadastral judges and in support of our contcmtion we have cited tl1e speech of the Majority Floor Leader o[ the House, who was one of iht. authors and sp(msors of the bill, in which he publicly acknowledgt-d that the main purpose of the bill is to weed out undesirable judges. Mr. Cooley, in his work on Constitutional Limitations C2d Ed . ., p. 65), says: "'When the inquiry is directed to ascertaining tl1e mii;"chief designated to be remedied or the purpose sought to be accomplished by a "P:nticular proviaion, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory. ·• The Supreme Court has held that. "courts ·can avail themselves cf tlle actual proceedings of the legislative body to assist in the construction of & statute of doubtful import." (Palanca vs. City o: Manila, 41 Phil. f25). Section S of Republic Act No. 1186 is of doubtful import be. October 31, 1954 THE LAWYERS JOURNAL 493 MEMORANDUM FOR PETITIONERS (Contimied> cause it provides that the position of judges-at-large and cadastl'al judges are abolished but the Act itself did not abolish any of the Court:; of First Instance, the exercise of jurisdiction of which w'ls \ested by the Constitution and the Judiciary Act of 1948 in the judges •If First Instance who are the district jurlges, judgcs-atlnrge and cadastral judges. We rf'peat: the powt.r to try and decide civil and criminal cases as prEscribed in the Judiciary Act of 1948 constitutes the office of these judges and when they exercise such jurisdiction, they discharge the functions ,,f their office. As to the argument that tfic latv providing that Jt1dgrs-at-Larg11 and Cadastral J11dg'l!I may b, designated by the Secretary of Justice to any di!ltrict or province to hold co1trt is unconstitutional. It is contended by the Solicitor General that. rnch a provision oi Jaw is unoonstitutional because it violates Article VIII, Section 7, of the Constitu1ion, which provic!es: "No juditc appointed for a particular district shall be designated or transferred to another district without the upproval of the Supreme Court." This promisition is arlvanccd to justify thP abolition of the p()Sitions of Judges-at-Large and Cac!astral Judges. It is not difficult to !"ee how fallacious this argument 1s. Since 1914 we have had judges without permanent statiotls. They were called "Auxiliary Judges" of Courts of First Instance and, at first, numbered seven. CSee Act No. 2347, Section 4). In 1916 the Administrati\•e Code was passed and the provision rl'gurding the positions of seven Auxiliary Judges of First Instance was maintained CAct No. 2657, Section 152>. On March 10, 1917, the Revised Administrative Code <Act No. 2711) was passed, and provided: "Sec. 157. J iulges-at-1.orge.-In addition to the judges mentioned in section 1me hundred and fifty-four hneof, as amended, there sh:>.IJ also be appointed five judges who shall not ~ assigned permanentlr to any judicial district and who .'!hall render duty in such districts, or provinces as may, from time to time; be designated by the Department Head." On March 17, 1923, Act No. 3107, amending Section 157 of the Revised Administrative Code, was passed, increasing the number of Auxiliary Judges from se\'en to fifteen. On March 1, 1933, Act No. 4007 was approved, amending the Revis'!d Administrative Code without touching the provision regarding Auxiliary Judges. The Constitution was approved by the Constitutional Convention on February 8, 1935. As may be seen, at the time of the drafting ot the Constitution, there had already been in this country for many years before, judges with permanent stations called "Judges of First Instance" and judges-at-large known as "Auxiliary Judges." Tht: constitutional Convention did not consider obnoxious the existC !lCe uf J udges-at-Large who could be transferred from one p1·ovince to another, upon the directic:n of the Secretary of Justice, to try cases. What the Constituticnal Convention considered obnoxious was the transfer from one province to another of Judges of First Instance with permanent stations, that is, the District Judges. And in order to stop such practice, which was then known as rigodon de jueces, it provided in the Constitution that "no judge appointed for a particular district {that is, District Judee> shall be designated or transferred to another district without the approval of the Supreme Court." It is evident, therefore, that this provision of the Constitution refers to District Judges or jud~es appointed for particular districts . How, then, can the Solicitor General serio1,_1sly contend that the provision of the Judiciary Act of 1948 regarding Judge,;..at-Large and Cadastral Judges, who can be transferred from one province to another by the Secretary of Justice in the public interest, is violative of Article VIII, Section 7, of the Constitution? There may be instances when it becomes necessary for the court to indulge in presumptions in order to know what the members of the Constitutional Convention had in mind when they drafted a particular provision of the Constitution. Thus, in the Krivenko case, the Court said: "At the time the Constitution was adopted, lands of the public domain were classified in our laws and jurisprudence into agricultural, mineral; and timber, and that the term 'public agricultural lands' was construed as referring to those lands that were not timber or mineral, and as including residential lands. It may safely be presumed, therefore, that what the members of the Constitutional Convention had in mind when they drafted the Constitution was this well-known classification and its technical meaning then prevailing." (Krivenko v. Register of Deeds, City of Manila, G.R. No. L-630, Vol. 12, Lawyer's Journal, p. 577.) In the present case we need not presume, as in the aforecited case of Krivenko, what the Constitutional Convention had in mind, when it drafted Section 7 of Article VIII because the text itself of the provision makes direct and exclusive reference to "judges appointed for a particular district," who are named by the Revised Administrative Code of 1917 as "District Judges." As to the provision in the Act converting the Judges-at-f.,arge and Cadastral Judges to District Judges would constitute a legislative appointment, Secretary of Justice Tuason expressed the opinion at the hearing on House Bill No. 1960 that there should be a proviso in the Act that the actual J udges-at-Large and Cadastral Judges should continue as district judges. "MR. VELOSO (I). But suppose the bill as now proposed intends to abolish the judges-at-large and cadastral judges, would you think that this bill is unconstitutional? SEC. TUASON. Well, that is why I say, - in order to prevent the bill from being unconstitutional, the abolition must contain the proviso that these judges are not to be ousted, they are not to be re-appointed but they are to continue as district judges and their districts are to be determined by somebody or by the Department of Justice." (Transcript of hearing on Murch 17, Hl54 of the Com1nittee on Judi.ciary, House of Re· presentatiues.) Now comes the Solicitor General saying that his Chief (Art. 83, Revised Administrative Code) is wrong, because such a provision would constitute legislative appointment and therefore unconstitutional. He is seconded by our so-called constitutionalists. We sincerely believe, however, that the Secretary oi Justice was right. Let us see the argument of the Solicitor General. ''Had the Congress inserted in Republic Act No. 1186 a provision that the judgesat-large and cadastral judges will continue as district judges, that would constitute a legislative appointment which would be unconstitutional because it is the ex-elusive prerogative of the Executive to make appointments." He cites the case of Springer v. Government of the Philippine Islands, 277 U.S. 189. We submit that the ruling in said case does not argue against the opinion of the Secretary of Justice. In said case the validity of a Jaw creating a voting committee or board composed of the Governor-Genernl, the Senate President, and the Speaker of the House c.f Representatives was questioned. The function of the committee was to exercise the voting power of the Philippine Government as owner of some of the shares in certain business corporations. The Supreme Court held that the law was invalid, because it not only created a committee, which was an office, btit also filled it. The specification of the persons to constitute the board was in fact a legislative appointment. In the case at bar the Act in question does not create a new office. This is so because said Act did not establish any new dis494 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUl\:I FOR PETITIONERS <Cont~nued) trict nor create new Courts of First Instance. Had the Act established new judicial districts and new Courts of First Instance, then we can say that the Act has created new judicial offices for which the judges who will discharge the judicial functions in said Courts must be appointed. But, we repeat, the Act did not create any new judicial office for, are not the Courts of Fil"st Instance created under the Judiciary Act of l!l48 and to exercise the jurisdiction of which the petitioners were appointed, the same Courts of First Instance now existing under Hepublic Act No. 1186? Would the Solicitor General say that the present Courts of First Instance are not the same Courts of First Instance created by the Judiciary Act of 1948 and in which the petitioner-judges were exercising thei1· iudicial functions? Since they are the same Courts of First Instance and the jurisdiction that the petitioners would exercise, if they were made district judges, is the same, no 'new appointments will be necessary, as held in several cases, among which are the following: (1) State v. Manrey, 16 S.W. (2d) 809. (2) State v. Caldwell, 23 So. (2d) 855. (3) Amos v. Mathews {State ex rel. Davis, v. Carlton), 99 Fla. 1, 126 So. 308. (4) Singleton v. Knott, IOI Fla. 1077, 138 So. 71. (5) Whitaker v. Parson, 86 So. 247. (6) Shoemaker vs. United States, 147 U.S. 282, 37 Law. Ed., 170. State v. ft!anrey, 16 S.W. {2d) 809. In 1924 respondent Judge l'o'fanrey was elected to the office of Judge of the 9th Judicial District of Texas for a term of four years, that being the term fixed by the Constitution. When Judge Manrey was elected in 1924 the said 9th judicial district was corn.posed of the counties of Hardin, Liberty, Montgomery, San Jacinto and Polk, and the 75th Judicial District was then composed of the counties of Hardin, Chambers, Montgomery, Liberty and Tyler. In 1925 the Legislature of Texas enacted a statute reorganizing the 75th. 9th and 80th judicial districts. By Section 1 of said Act the 9th judicial district was reorganized so as to be composed of the counties of Polk, San Jacinto. Montgomery and Waller. By Section 2 of said Act the 75th district is reorganized so as to be composed of the counties of Hardin, Liberty, T yler and Chambers. By Section 3 of the Act the 80th district is left as it already was, except that Waller County was removed from the 80th district. It was traced, by Section 1, in the 9th district. Thus it will be seen that by the terms of the new Act the territory of the 9th district was changed by taking two counties, Hardin and Liberty, out of it, and by adding one county thereto, Waller. The territory of the 75th district. was changed by taking one county, Montgomery, out of it, and no counties were added. The only change made in the territory of the 80th district was that Waller county was removed therefrom. Section 5 of said act reads as follows: "The present judges of the Ninth and Sevent~-Fifth Judicial Districts as the same now exists, shall remain the district judges of their respective districts as reorganized under the provisions of this Act, and shall hold their offices until the next general election and until their successors arc appointed or elected and duly qualified, and they shall i·eceive the same compensation as is now, or may hereafter be provided by law for district judges, and a vacancy in either of said offices shall be filled as is now, or may hereafter be provided by law, and the present judge of the district court for the Eightieth Judicial district shall hold his office until his term expires and until his successor is elected and qualified, and a judge of said court shall hereafter be elected at the time and in the manner provided by law by the qualified voters of Harris County." It appears that, notwithstanding the fact that Judge Manrey had been elected in 1924 for a full four-year term as Judge of the 9th judicial district, he again announced himself a candidate for said office in 1926, on account or' the prnvisions of Section 5, supr<i, which provides that the judge of the 9th district shall hold his office until the next general election, etc., and caused his i1ame to be placed on the official ballot, and received the highest number of votes at the 1926 general election for said office. It appears also that in 1928 Judge l\lanrey and Judge McCall were both candidates for the Democratic nomination for said office at the general primary election of the Democratic Party in 1928, and Judge McCall received the highest number of votes and was declared the Democratic nominee. No contest of this election was had, and Judge McCall's name was printed on the official ballot of the November, 1928, general election as a Democratic candidate, and he receiYed the highest number of votes cast in said general election for said office. · On November 6, 1928 Judge Manrcy filed a suit against Judge McCall, claiming that Judge McCall was not entitled to receive a commission to the 9th Judicial District. The question raised was whether the Legislature in creating new judicial districts may appoint judges of previously existing districts to act until appointments of successors at next general election. HELD: We have carefully read and examined the act of the 39th Legislature in question, being chapter 166, General Laws of said Legislature, p. 378. An examination of said act as a whole, including the caption, the body of the act, and the emergency clause, shows clearly that the Legislature did not create any new judicial districts in said act. The act is just exactly what its caption shows it to be-an act to reorganize, not to abolish, said districts, by doing the things shown in the act. If the act operates so as to create a new district, then it created a new office, and the part of section 5 thereof which attempted to appoint Judge l\lanrey as judge thereof by legislative action was nu\! and void, as it is not a legislative power to appoint district judges. Such is an .::xecutive power and is so expressly by the plain terms of our Constitution. State v. Gillette's Estate (Tex. Com. App.) IO S.W. (2d) 984; State v. Valentine (Tex. Civ. App.) 198 S.W. 1006 (writ ref.). However, as above stated, we do not think that the act created new districts at all, but merely reorganized the old districts. It is provided by section 7 of article 5 of the Texas state Constitution that: "The state shall be divided into as many judicial districts as may now or hereafter be provided by law, which may be increased or diminished by Jaw. For each district there shall be elected by the qualified voters thereof, at a general election, a judge, who shall be a citizen . .. who shall hold his office for a pe1·iod of four years .. If the Legislature created no new district, and did not abolish the Ninth district then it follows that Judge Manrey having been elected judge of the N inth district in November, 1924 at the general election of that year, for a four-year term, was entitled to such full four-year term under the Constitution and that the part of section 5 of the act of 1925 which attempted to shorten the term and cause a new election in 1926 for such office was in plain violation of the exptess provision of our Constitution above quoted and is null and void. However, this does not affect the validity of the balanc~ of the act. It follows from what we have said that there is no doubt under the Constitution and laws of this state Judge Manrey October 31, 1954 THE LAWYERS JOURNAL 495 MEMORANDUM F'OR PETITIONERS (Continued) was duly and constitutionally elected judge of said Ninth dis· trict in 1924 for a full four.year term, and that, said district not having been abolished, he was entitled to serve out said full term. State v. Caldwell, 28 So. (2d) 855. The Legislature of 1945 of the State of Florida enacted. C_hap,: ter 22821 creating the "Florida State Improvement CQl"Ylm1ss1on, hereafter called the "Commission," and defining its powers an.d duties. On petition of the Attorney General quo warmnto was d1· rected to respondents as members of the Commission, commanding them to show cause why they should not be ousted from office and enjoining them from further exercising the duties imposed on them as such. It is contended that Chapter 22821 is void and uncon· stitutional because it d<.>signates the chairman of the State Road Department as a member of the Commission and in so doing. trenches on the power of the Governor to appoint and suspend officers for designated causes, contrary to Section 27, Article III, of the Con· stitution. "This question is answered contrary to the contention of relator in Whitaker v. Parsons, 80 Fla. 352, 86 So . . 247, Amos v. Mathews (State ex rel. Davis v. Carlton), 99 Fla. 1, 126 So. 308, and Singleton v. Knott, 101 Fla. 1077, 138 So. 71, the gist of the holding in all these cases being that State and .county offices may be created and the duties of the holders defmed by statute or the Constitution. These cases are also authority for the doctrine that the legislature may impose additional powers and duties on both constitutional and statutory officers so long as such duties are not inconsistent with their duties imposed by the Constitution. This court has accordingly approved the rule that the legislature may nmke an e:x:isting officer the mem· beT of another and differsnt board by enlarging his duties. If the chairman of the Road Department should be suspended as such, he would likewise be suspended as a member of \he Commission." WhitakeT v. Parsons, 86 So. 247. HELD: The Legislature, having all the law·making power of the state that is not withhdd hy the Constitution, may prescribe duties to be performed by officers expressly provided for by the Constitution, in addition to the duties of those officers that are defined in the Constitution, where not forbidden by the organic Jaw; and the Constitution does not withhold from the Legislature the power to prescribe additional duties to be per· formed by the state treasurer, or others of "the administrative officers of the executive department," that are not inconsistent with their duties as defined by the Constitution; and such du· ties may be to act as members of boards or commissions in conjunction with other officers who are provided for by statutethe commissions issued to constitutional officers being sufficient to cover any duties imposed upon them by law. In such cases the incumbent does not "hold or perform the functions of more than one office under the government of this state at the same time," within the meaning and purpose of that quoted provision of the Constitution. In providing (section 1, c. 7345, Acts of 1917) that "there is hereby created and established a board to be known and designated as the state live stock sanitary board, which shall be composed of the commissioner of agriculture, the superintendent of public instruction, the state treasurer, and two other members who shall be appointed by the Governor," the statute merely authorizes the appointment of two officers by the Gov· ernor, and imposes duties upon the three state officers who, with the two officers appointed, constitute the state board, with designated duties. This does not create new offices for the three state officials. It adds new administrative duties to existing administrative offices. The duties imposed are not in consistent with the duties defined in the Constitution. ... when a statute provides that stated officers shall con· stitute a board with administrative functions, no new offices are thereby created, but new duties are imposed upon officers already in commission. Shoemaker vs. United States, 147 U.S. 282, 37 Law. Ed. 170. There are several features that are pointed to as invalidat· ing the Act. The first " is foun~ in the provision appointing two members of the park commission, and the argument is, that while Congress may create an office, it cannot appoint the of· ficer; that the officer can only be appointed by the President with approval of the Senate; and that the Act itself defines these park commissioners to be public officers, because it pres· cribes that three of them are to be civilians, to be nominated by the President and confirmed by the Senate. This, it is said, is equivalent to a declaration by Congress that the three so. sent to the Senate are "officers," because the Constitution provides only for the nomination of "officers" to be sent to the Senate for confirmation; and that it hence follows that the other two are likewise "officers," whose appointment should have been made by the President and confirmed by the Senate. HELD: As the two persons whose eligibility is questioned were at the time of the passage of the Act and of their action under it officers of the United States who had been therefore appointed by the President and confirmed by the Senate, we do not think that, because additional duties, germane to the offices already held by them, were devolved upon them by the Act, it was ne· cessary that they should be again appointed by the President and confirmed by the Senate. It cannot be doubted, and it haR frequently been the case, that Congress may increase the power and duties of an existing office without thereby rendering it necessary that the incumbent should be again nominated and appointed. As to whether the Legislature ha11 the power to increase or di· minish the mimber of Justices of the Supreme Court. During the oral argument one of the Justices propounded the following question to the Solicitor General: If the Legislature can abolish the positions of Judges·at.Large and Cadastral Judges, don't you think that it can also increase or reduce the number of Justices of the Supreme Court at its pleasure? The answer of the Solicitor General, if we remember well, is that the legislature cannot do that because the members of the Supreme Court are constitutional officers. We do not agree to this. Article VIII, Section 40, of the Constitution reads as follows: "The Supreme Court shall be com· posed of a Chief Justice and ten Associate Justices and may either sit in bane or in two divisions unless otherwise provided by law." The undersigned, who was then the Chairman of the Committee on Judiciary of the Constitutional Convention, explained that the words "unless otherwise prnvided by Jaw" referred to the number of Justices to compose the Supreme Court as well as their sitting in bane or in two divisions. This appears in the record of the Con· stitutional Convention. We take this occasion to explain why this is so. During the proceedings in the Constitutional Convention, the Supreme Court was interested in the creation of the Court of Appeals in order to remove the congestion of cases in the Supreme Court, for according to the Justices, such situation would always exist unless an intermediate appellate court was created. The Chief Justice securerl a commitment from President Quezon that such court would be created in the Constitution. However, the plan of the Chairn1an of the Committee on Judiciary was to increase the number of the members of the Supreme Court to twenty.four, dividing it into civil and criminal divisions like the Supreme Court of Spain. So he was opposed to the creation of the Court of Appea'.ls. President Quezon then invited the members of the judiciary to a conference in his 496 THE LAWYERS JOURNAL October 31, 1954 MEMORANDUM FOR PETITIONERS (Continued> house. In the conference there were present on the part of the Constitutional Convention its President, Delegate Recto, Delegate Briones, and the Chairman of the Committee on Judiciary. On the part of the Supreme Court were present Justices Avancefta, Imperial and Abad Santos. President Quezon asked the Chairman his reasons for opposing the creation of the Court of Appeals. After expressing his reasons, and the justices having likewise given theirs, President Quezon decided to leave the question entirely in the hands of the Convention. The Convention rejected the creation of the Court of Appeals, leaving to the discretion of the Legislature the creation of the same. The reason advanced was that, since the Court of Appeals was to be established for the fi rst time in this country by way of experiment, the same must be created by the Legislature so that in case the e.xperiment fails, the Court of Appeals may be abolished by law and the congestion of cases in the Supreme Court may be i·emedied by increasing the number of its Justices. Such is the history of the provision of the Constitution that unless otherwise provided by law, the Supreme Court shall be composed of a Chief Justice and ten Associate Justices. Now we come to the question propounded to the Solicitor General. If the provisions of Republic Act No. 1186 abolishing Judgesat-Large and Cadastral Judges is constitutional, then the Legislature may at any time decrease the number of Justices from eleven to sev('n and add four more JustiN!b to the Court of AppealS, or may increase the number of Justices of the Supreme Court to sixteen, for example, and later on abolish the positions of the additional justices as it pleases. In other words, the position of the members of the judiciary, from the Justices of the Supreme Court down to the .Justices of Peace, will be at the mercy of the Legislature. We repeat in this connection what Chief Justice Snodgrass said: "It is no argument in answer to this to say that the Le· gislature will not do this. It is not a question of what they will do that we are now considering; it is a riuestion of constitutional power, · of what it can. The question as to how such power is granted, or what restraint imposed, cannot be determined on the probability or improbability of its exercise." -IIITO AVOID HOLDING SECTION 53 OF SAID ACT UNCONSTITUTIONAL ON THE GROUND THAT IT I NFRINGES THE CONSTITUTIONAL PROVISION GUARANTEEING THE TENURE OF JUDICIAL OFFICE, THIS COURT MAY DECLARE THAT SAID ACT OPERATES PROSPECTIVELY. This proposition is discussed in the Memorandum of Attorney Salazar. - IVIF THIS COURT .W ILL DECLARE THAT REPUBLIC ACT NO. 1186 HAS ABOLISHED THE OFFICE OF THE PETITIONERS AND HAS TERMINATED THEIR TERMS OF OFFICE, AND WILL FURTHER DECLARE THAT SAID ACT IS CONSTITUTIONAL, THEN THE CONSTITUTIONAL PROVISION GUARANTEEING THE TENURE OF JUDICIAL OFFICE WOULD BE A MYTH AND NO MEMBER OF THE JUDICIARY, FROM THE JUSTICES OF THE SUPREME COURT TO THE JUDGES OF THE JUSTICE OF THE PEACE COURTS, WOULD BE SECURE IN THEIR OFFICE WHICH, IN THE LAST ANALYSIS, WOULD BE AT THE MERCY OF THE CONGRESS. This proposition is discussed in the Memorandum of Attorney Sebastian. CONCLUSION It cannot be gainsaid that the removal of the judges by the Congress has considerably affected the prestige of the judiciary. No political party has ever remained--or can hope to remain-in power forever. After some future general election, another political party which will succeed the party in power may do what the present 1mrty has done, that is, eliminate judges of the past administration arl'd place in their stead new judges belonging to the winning party. It is the general belief that the elimination of some judges by the present Congress was motivated by political expediency and this impression is bolstered by what appeared in the newspapers in connection with the appointment of the new judges. Take, for instance, what appeared .in the Manifo Times of July 28, 1954 (page 5, column 5). It reads: "A number of appointments in the judiciary will be opposed by commission members, especially those from the House who had vigorously protested the appointments' on the ground that they had not been consulted, and that such appointments failed to conform with a principle laid down by the party regarding party loyalty." The Evening News of July 24, Hl54, page 23, first column, carries the following under the heading of "8 Judges Bypassed": "The Judiciary committee of the commission on appointments today decided to bypass the appointments of eight district judges named by President Magsaysay on the ground that their qualifications do not conform with the new standards agreed upon in a Malacafiang caucus. "This was disclosed by Senate :Majority Floor~leader Cipriano P. Primicias who admitted that one of the criteria for judges set forth at the Palace meeting was loyalty to the Nacionalista party. "Primicias would not divulge the names of the eight judges 'for obvious reasons'." This corroborates to some extent the observations made by Senator Paredes in his speech during the deliberations of Senate Bill No. 170, pertinent parts of which are reproduced hereunder. ''Senator Laurel, as a member of the Supreme Court, has laid the rule that should be followed, and I believe it is only proper to bring his ruling bt'f'lre the attention ,1f this Senate. In the celebrated case of Zandueta cited here this morning, it was helci by Ju:otice Laurel that a reorganization that deprives a judge of his office is not necessarily unconstitutional. But any reorganization may become unconstitutional if the circumstances are :.:uch as' to i-how that the intention of the reorganization ls to put out a member of the judicia1·y by legislation· I will not charge anybody with any hidden intention or improper motives in this bill, but if the question is ever presented to the Supl'eme Court by any judge who may be affected by the provisions of this bill which I suppose will be approved this afternoon, I feel, Mr. President, that if the circumstances - preceding, coetaneous and subsequent to the approval of the bill- are p1·esented to the Supreme Court, the constitutionality 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 be little question about the constitutionality of the bill, but otherwise, the bill is unconstitutional. "Let us now, Mr. President, examine the circumstances attending this reorganization, and then ask ourselves whether or not our protestations of good motives are likely to be given credence by the courts. For the last seven years, the administration was controlled by the Liberal Party. The Nacionalista Party being then in the minority, had always been complaining against the acts of the Liberal Party administration. Right or wrong, there were alleged irregularities committed and which were the subject of attacks and complaints on the part of the members of the minority pal'ty, then the Nacionalista Pal'ty. The Judiciary was not free from these attacks and from these charges of irregularities. The Judiciary was also accused of having become a tool of the Chief Executive in the dispensation of justice. Comments were made, attacks were freely hurled during the campaigns against members of the Judiciary or the way in which the members of the Judiciary performed their duties. Main subject of attacks was the frequency with which the Secretary of Justice assigned judges to try specific cases October 31, 1954 THE LAWYERS JOURNAL 497 498 MEMORANDUM ~'OR PETITIONERS <Continued> and attributing to this action the ulterior motive of securing the conviction or the acquittal of the accused in criminal cases. Since the elections and after the new administration was installed into office, what did we notice in the matter of changing employees and reorganizing? In the Executive D_epart~ent, not only have the high officials had to present t~e1r 1·es1g_nation out of propriety, but even those who were holding techmcal positions and who ordinarily would not be affected by changes in the leadership of the government, 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 to. "And that was not enough. In the provinces changes were made. I will not now say that legislat ive violations were made, changes were made in the Executive Department, gov~rnors, mayors, councilNs, board members were changed from Liberals to Nacionalista. There seems to be a craze of changing personnel, ousting all the Liberals, all those who belong to the. Lib~ral party, and putting in their places members of the Nac10nalista Party. Very natural, that was to be expected. For so. many years has the Nacionalista Party been deprived of the opportunity to control the government, and this being the first opportunity of the Nacionalistas, it is only natural that they should wish to place their own men in order to be able to carry . out their promises. They did not have confidence in the members of the Liberal Party. It was their right and privilege and duty to themselves, I should say, to bring new men to carry :)•.?t their policies. " Mr. President, this was done, not only in the executive and also the elective positions. In the Department of Foreign Affairs, soon after the assumption to office, the Secretary announced publicly 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 members of the Foreign Service started, all with the end in view of removing incumbent Liberals. "The same was done in the bureaus. Chief of Bureaus were asked to resign. Some of them did, others did not, but finally had to give up their place in favor of new ones, all belonging to the Nacionalista Party. This series of similar acts following the same standard will help discover the intention of this judiciary reorganization bill. "As to the Judiciary, there is no way of laying off the judges. The judges cannot be asked simply to resign because the Constitution protects them. There is a need to follow a different course if we want to change those who, during the former regime or administration, were suspected to being a tool of the Executive. A teorganization to get rid of them would be a most convenient course. x x x x x x "If I may resume now, in the judiciary, there is an nbsolutp impossibility of asking any body to resign if he does not want to, because he is protected by the Constitution. That will be presented to the Supreme Court. N<Jw, as for other coetaneom; circumstances. What was don<> in the matter of the appropriJtion law in order to facilitate legislating out some of the employees, civil service men? L•Jmp 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 distinguishf!d gentlemen cf the majClrity and also joir..ed by a few members of the minority, saw fit to oppose that objectionable move, or at least s~w fit to act in such a way as to avoid any posibility of suspicion. But other facts will als<' be brought up, Mr. President, which will add to the series of circumstances that will be used hy those who may question the law, to change the Senate with ulterior motives. What are thos,. facts, Mr. President? I was told right this afternoon, when I was on the floor of the Lower House, that no less than the floor leader of the majority stated that one of the purposes of the bill is to get rid of the judges that are no good. This is on record. With such a conf(ossion, how can we say to the Supreme Court, in all sincerity, that our intentions are purely to serve the judiciary. The SecrE:tary of Justice is even quoted as having said that five or six judges will be affected. Take those circumstances into consid~ration, Mr· President, and again the other side will say, "What was the purpose of the reorganization, the evident purpose of the reorganization?" It has been said, first, to equalize, give the same rank, jurisdiction and salary to all judges. The same rank can be accomplished now if we only rn.ise the salary of the lower judges. The cadastra! judge will have the same jurisdiction as the district judge if he is assigned to try all kinds of c.ases. By admini:;trative order, he can have the same rank, although not the same salary and the same name. The auxiliary judges now have the same privileges as a district judge P.xcept the salary. 1f that is the reason for the bill, why not simply raise the salary of these judges so that they may have the same rank as the others. Second alleged motive: To avoid the possibility of these judges being used and assigned from one district to another as they had nllegedly been used and assigned in the pRst, to try special cases and to follow the wishes of the administration. I wish to pay I\ tribute of a<lllliration to the gentlemen of 'the majority for having said that that is their purpose. I believ~d that is the purpose of the gt:ntlemen who authored the bill and sponsored the bill, Senator Laurel. But, Mr. President, that same purpose can be accomplished by simply amending the law, by simply providing that the Secretary of Justice shall net do this het·~after without the consent of the affected judgt> and the Supreme Court. 'fhat would have been a remedy. So, we cannot allege that as the reason for the amendment. Now, what is the other possible and alleged reason? To give all judges the rnme name. Mr. President, I believe this is too childish a reason for a wholesale reorganization of the judiciary. "These being the circumst<".nces, I would ask the gentll'men of the Senate to kindly consider whether our protestation of clean conscience and clear motives are net outbalanced by the preceding snd coetaneou.; circumstances, and whether or not, if we approve this bill we will have any chance of having it sustained by the Supreme Court. It is only the Supreme Omrt which can restore the prestige of out courts and make. the people realize that under our republican form of government the independence of our judiciary can never be destroyed or impaired. The Legislature, though possessing a larger share of power, no more represents the imvcreignty of the people than either the executive or the judicial department. ThP judiciary derives its authority from the same high source as the Executive and the Legislature. The framP.rs of our Constitution have incorporated therein certain permanent and eternal principles, :ind erected an independent judici=Lry as "the depoRitory and interpreter, the guardian and the priest •)f the articles of freedom." It lias been said that of all the contrivances 0f human wisdom, this invention of an independent judiCiary affords the surest guarantee and the amplest safeguard to personal liberty and the rights of individuals. We, tl1erefore, pray that, for the sanctity of the Constitution, the paramount interest of our people, and the in<lependence of the judiciary, this H-morable Court declare: Cl> that Section 3 of Republic Act No. 1186 is unconstitutional insofar :is it legislates out the petitioner;;-judges, and (2) that the petitioners are entitled to continue exercising their judicial functions in the Courts of First Instance of the Philippines in accordance with the Judiciary Act of 1948. Manila, Philippines, AU.gust 21, 1954. VICENTE J .l<'RANCISCO One of the AttoMJeys for the Petitioners 200-205 Samanillo Bldg., Escolta, Manila THE LAWYERS JOURNAL October 31, 1954 OPINIONS OF THvsECRETARY OF JUSTICE OPINION NO. 152 / (On the qu.estfon as to whether cnufe oils which will be imported by Caltex (l'iiilippines), Inc., 1 in accordance with the terms of the 11etrolewm refining concession yranted to it by the Government of the Philippines on June 20, 1958, 1111der lhe Petroleum Act of 1949 CRep. Act No. 387) may be imported free of customs duty undeT ATticle 103 of the Pefroleum Act.~ 2nd Indorscmeut J une 28, 1954 Respedfully returned to the Honorable, the Secretary of Finance, thru the Honorable, the Ex<'cutive Secretarr, Office of lhe President, Malacafinng, Manila. This is in connection with the imposition of customs duties on thr crude oilt< which will be impor~ed by Caltex (PhillppinesJ, Incorporated, in accordance with the terms of the pdroleum refining concession granted to it by the Government of the Philippines O!l June 20, 1~53, under the Petroleum Act of 1949 <Republic Act No. S87J. The crude oils to be imported will not be SC1ld as such but will be refined m the petrofoum refinery of said company into f!llsoline, kerosene, diesel, and fuel oils. Opinion is requested on whet~cr said crude oils mny be imported free of customs duty under Article 108 C'f the Pctrelcnm Act which provides: "ART. lO:l. Customs duties. - During the first five years following tl1e granting of any concession, the concessionaire may impc..rt free of customs duty, all equipmf>nt, machinery, materials, instruments, supplies nnd accf>ssorie:::. "No exemption shall be allowed_ on goods imported by thf' concessionaire for his personal use or that of any others; nor for sale or for re-export ; x .x x." The Philippine Tariff Act oC 1!109, ag amend"d by Republic Act No. 571, howe\•er, imposes customs duties on "mineral oils. crude ryr refined"' [Sec. 8, subsectic;n 22 (a)]. The ab<we-mentioned Tariff A~t is a law of general 1.1.pplication enacted to raise revenues for the government, and !he provision thereof imposing customs duties on mineral oils is a broad provision covering i~portations of mineral oils in general. On the other hand, the Petroleum Act deals with a special subject, anrl Article 103 thereof is a special provision limited to impurtations by petroleum concessionaires. It is a settled rule of statutory construction that a special or specific provision prevail:,; over a general or broad provision :rnd that the latter u11erates only upon such cases as are not included in the former. Jn ot~er words, the i::pecial or specific act and the general or broad law stand together, the one as the law of a particular case and the other as the general rule. Thus, the special or specific provision is often referred to as an e:xception to the general .Jr broad provision C50 Am. Jur. 562-563). Therefore, Article 103 of the Petroleum Act may be consiclered appiicable to importarions by petroleum concessionaires, us an exception to the abovementioued provision of the Philippine Tariff Act. The next que£tion, then, is, are crude oil materials within the purview vf said provision of thP. Petroleum Act? The word "material" refers to the substance matter which rnters into the making of the finished product. Thus, it has been held that the word "material" as used in a tax statute relating lo spirituous liq<Iors means the raw C'l' original material from which the liquor is produced. <U.S. v. Teebrook, Fed. Cas. 33; Pendleten v. Franklin, 7 NY 108). Crude oil has been defined by the P,etroleum Act as ":>il in its natural state before the same has been refined or otherwise treated, b·ut excluding water and foreign substances". [Art. 2<b> J. Crude oil is therefore the substance matter or raw materfal from which petroleum is refined. And a refining concession grants to the concessionaire the right to mauufacture or refine petroleum or to extract its derivatives <Art. 10\dJ R.A. 387>. It follows that crude oil is a ''material" which the refining concessionaire must have to use in the exercise of the right grant(>d to it under a refining concession. It is, therefore, within thP. scope of the first paragraph of the abow-quoted Article 103. And such crude oils are not such goods as are mentioned in the scoond paragraph of the same article. For it is obvious that the crude oils in question are not being imported for the pe-;·sonal use of the concessionaire or of other persons. Moreover, while it is true that after such crude oils will have been refined, the finished product will ultlmately be acid, it is alSD true that the phrase "nor for sale or for export" refers to imported articles to be sold or re-exported in the same condition in which they were impo~ted. The undersigned is therefore of the opinion th;;it the crude oils which will be imported by the Caltex (Philippinesi, Incorporated, and which will be used as materials in its petroleum refinery m:iy enter free of customs duty within the first five years following the grant of its concession. <SGD.> PEDRO TUASON Sec::etary of J ustice OPI NION NO. 129 (On the question as to ;whether or not the action taken by the E:r:port Control Committee in disapproving applications to ezport Tire bran abroad allegedl?J upon the Tecomm.endntion of the DiTector of .4.nimal lnclwHn•y is le,t;al.) The Executive Officer Export Control Committee Office of the President l\falacaiiang, Manila S i r : This is in reply to your request for opinion as to the legality of the action taken by the Export Control Committee in disapproving applications to export rice bran abroad allegedly upon the recommendation of the Director of Animnl Industry. The Export Control Law CRepublic Act No. 613, as i·evived ancl nmended by Republic Act No. 824) makes it unlawful for any person, association or corporation to export or re-export to any point out::::ide the Philippines machineries and their spare parts, scrap metals, medicines, foodstuffs, abaca seedlings, gasoline, oil, lubricants and military equipment f"r supplies suitable for military use without a permit from the President (Section 1). It authorizes the President of the Philippines to control, curtail, regulate and/or prohibit the exportation or re-exportation of such materials, goods and things abo\·e enumerated and kl issue rules and regulations as may be necessary to c!lny out the provisions of the statute <Section 3>. Executive Order No. 453, series of 1951, as amended by Executive Order No. 482, same series, and revived by Executive OrJer No. 526, series of 1952, issued by the President pursuant to the power conferred upon him by Section 3 of the Exp.wt Control Law, lists under separate categories the different articles absolutely banned from exportation or re-exportation and those which may be exported ~r re-exported under certain conditi.c11s (Annexes A, B and C, Ex. Order No. 453, as amended). Commodities not listed are not governed by the said Executive O.rder <Section 11>. I have carefully examined the articles and commodities listed in Annexes A, B, and C to Executive Order No. 453, as amended, and rice bran i& not one of them. 'rhis being so, and since commo-lCtmtinued on page 527) October 31, 1954 THE LAWYERS JOURNAL 499 SUPREME COURT DECISIONS Jose De Leon, et al., Pe.titioner1.1, vs. Asuncion Soriano, et al., Respondents, G. R. No. L.-7648, 1954, Montemayo1", J. / JUDGMENT; EXECUTION OF JUDGMENT PENDING APPEAL, NOTWITHSTANDING THE FILING OF SUPERSEDEAS BOND BY APPELLANTS. - A and her natural children had an amicable settlement according to which the latter would deliver to A more than 1,000 cavanes of rice from 1~43, until the latter's death. The children defaulted in the delivery of the rice as provided for in the agreement by not making full delivery. A filed an action against them for the payment d the value of the deficiencies of 3,400 cavanes of palay, corresponding to the years 1944, 1945 and 1946. On November 7, 1950 judgment was rendered in favor of A; on J anuary 15, 1951, judgment was executed, nnd A received the cash in satisfaction of the judgment in 1952. In the meantime, the children had been defauJting in their pnlay deliveries from 1947 up. A filed another action in September 1950 to recover the value of their deficiencies. Judgment was rendered by the Bulacan court on December 3, 1953, again in favor of A. Defendants appealed. In order to stay the order of execution, defendants filed a supersrdeas bond in the sum of P30,000. 00, but A insi~tfid on execution. Notwithstanding the filing of the supersedeas bond as required by the Court, said court issued a second speCial order dated March 18, 1954, ordering the immediate execution of the judgment and requiring A t(l file a bond of P50,000. Defendants filed a petition for certiorari to set aside the special order of March 18, 1954, on grounds of abuse of discretion and excess of jurisdiction. By this time, A was alrearly 75 yean old, sickly and without relatives &nd heirs and without any mean<:: of support. HELV: (1) Even after the filing of a supersedeas bond by an appellant, intended to stay executicn, the trial court may in its discretion stU! disregard said supersedeas bond and (lrder immedi11.te t>xecution provided that there arc special and compelling reasons justifying immediate execution. (2) There are speC"ial cases and occasions where the surrounding circumstances are such as to point to and lead to immediate execution. We admit that such special cases and occasions are rare, but in our opinion the present case is one of them. A's nt'ed of and rig-ht to immediate cxccutio~ of the decision in her favor amply satisfy the requirement of a paramount and compelling reason of urgency and justice, outweighing the :security offf-.red by the supersedeas bond, because she is already 70 year£ old. sickly, without any close relatives and heirs, and without a!ly means of support. J1w.n R. IAu:ag, Jou P. de Leon, and Manuel V. San Jose, for thP. Petitioners. Vicente J. Francisco, for the Respondents. DE CIS IO N MONTEMAYOR, J.: Briefly stated, the facts in the cr se are as follows. When Dr . Felix de Leon and Asuncion Soriano married, they were more than well-to-do, and during their marriage, with the fruits of tl1eir individual properties and their joint efforts, they acquired valuable properties so that when Dr. De Lem\ died in 1940, he left exttnsive properties, including ricelands in the pro\"inces of Bulacan and N'.lcva Ecija, listed in his name. To the couple no children wer<' born, but the husband had three acknowledged natural childr('n named Jose, Cecilio, and Albina, all surnamed DE LEON. As surviving spouse, Asunci(m, initiated intestate proceedings for the settlement of the estate of her deceased husband under Special Proceedings No. 58390 of the C.ourt of First Instance of Manila and she asked that 11he be appointed administratrix. She also asked that some of the properties included in the inventory filed by thP. special administrator as properties of Felix de Leon, be rleclared as her paraphernal prnpHty and the rest as conjugal property. Thi? three natural children abovementioned opptJsed the petition, claimi11g all the properties listed in the inventory as belonging exclusively t(l their father. The parties - Asuncion on one side and the natural children on the other - finally came to an amicable settlement "in deference to the memory of Dr. Felix de Leon, and with the v_ if'.w k expediting the final distribution of 'his estate." The ~greement was marked Exhibit "F" and we reproduce the pertinent portfons thereof: "WHEREAS, the PARTY OF THE FIRST PART is !he surviving :;;pouse and the PARTIES OF THE SECOND PART are the acknowledged natural children of Dr. Felix de Leon wJ-.o died in Manila on November 28, 1940; "WHEREAS, the estate of the deceased Dr. Felix de Leon is now the subject of intestate proceedings, numbered Sp. Proc. No. 58390 of the Court of First Instance of Manila; " WHEREAS, the PARTY OF THE FIRST PART filed a petiticm dnted May 31, 1941 asking that ce1tain properties in the ssid inventory be declared her paraphei-nal properties aml ns such be ~xcluded therefrc,m, which petition was opposed by the PARTIES OF THE SECOND PART in their pleading dated J une 9, 1941; "WHEREAS, the parties hereto, in deference to the memory of Dr. Felix de Leon, and with a view to expediting the final distribution of his estate, have agreed to settle the exi~ting differences between them under the terms and conditions hereinafter contained, the parties hereto have agreed, each with the other, as follows: "That Dofia Asuncion Soriano 'will receive as her share in the conjugal partnership with the deceased Felix de Leon and in full satisfaction of her right, interest or participation she now has or may hereafter have in the properties acquired by the deceased during his marriage to Asuncion Soriano: ta) 'A parcel of land, situated in the City of Manila which was mortgaged f.or P9,000.00 and which the children of the deceased Felix de Leon assumed the obligation to release and cancel the mortgage; Cb) 'At the end of each agricultural year, by which shall be understood for the purposes of this agreement the month of March of every year, the following amounts of palay shall be given to the PARTY OF THE FIRST PART by the PARTIES OF THE SECOND PART in the month of March of the current year 1943, one thousand two hundred 0,200) cavanes of palay tmacan); in the month Of March of 1944, one thousand four hundred 0,400) cavanes of palay {macan); in the month of March, 1945, one thousand five hundred 0,500) cavanes of palay (macan); and in the month of March of 1946 and every succeeding year thereafter, one thDusand six hundred Cl,600) cavanes of palay (macan). Delivery of the palay shall be made in the warehouse required by the government, or if there be none such, at the warehouse to be selected by the PARTY OF THE FIRST PART, in San Miguel, Bulacan, free from the cost of hauling, transportation, and from any and all taxes or charges. "It is expressly stipulated that this an'nual payme11t of palay shall cease upon the death of the PARTY OF THE FIRST PART and shall Mt be transmissible to her heirs or to any other person. ' tc > 'The residue of the entire estate of the deceased shall 500 THE LAWYERS JOURNAL October 31, 1954 pass to the children of the deceased De Leon." Because the De Leon children defaulted in the delivery of the palay as provided for in the agreement or rather did not make full dl'Jivery, as for instance, instead of delivering all the 1,400 cavanes of palay in March 1944, they gave only 700 cavans; in 1945 they delivered only 200 instead of 1,500 cavans; and in 1946 they gave Asuncion only 200 cavans of palay instead of 1,600, Asuncion filed an action against them, Civil Case No. 135 of the Court of First Instance of Bulacan, for the payment of the value of the deficiencies of 3.400 cavanes of palay corresponding to said three years. The three defendants therein admitted their short deliveries but alleged as special defense that the deficiencies were caused by force majeure occasioned by Huk depredations, floods, and crop failure, and th::it the parties intended that the palay to be delivered yearly be harvested from tl1e ricelands in Bulacan, and consequently, the failure of the Bulacan ricelands to produce the yearly amounts nf palay agreed upon absolved them from any \iabillty. The Bulacan C<'Urt on August 16, 1947, rendered judgment in favor of ASuncion 2.nd against the defendants, holding t\1at the obligation imposed upon the defendants to make yearly deJi,,eries of palay was a generic one and was Mt excused by force majeure. On appeal to the Court of Appeals, the decision was affirmed on the same grounds. We quote a part of the decision of the sairl Court of Appeals: "We find the above-mentioned contention of the defendantsappellants untenable. Exhibit "E'' clearly calls for the deli.very of certain number of cavans of palay of the macan class, which are undoubtedly indeterminate or generic thing. The claim that the above-mentioned stipulations contained in agreement Exhibit "F" converted defendants' undertaking into a specific obligation to deliver palay that would be produced by the ricelands of Felix de Leon in San Miguel, Bulacan, is unwarranted. The aforesaid stipulations simply refer to the time, place and manner of payment. There is nothing in the agreement from which such pretended real intent of the parties may be deduced or inferred xx x." (Decision of the Court of Appeals.) Defendants again appealed to this Tribunal which on August 24, 1950, affirmed the decisions of the trial court and the Coul't of Appeals on the same grounds. Because of defendants' motions for reconsideration and later their opposition to the execution of the final judgment, it was only on November 7, 1950, that the trial court ordered the execution thereof, and because of defendants' motion for reconsideration it was only on J anuary 15, 1951, when the judgmt:nt was executed, and we understand Asuncion received the cash in satisfaction of the judgment only in the year 1952. Jn the meantime, the De Leon children had again been defaulting in their pti.lay deliveries from 1947 up. Thus, in March 1947 they deliTf'1·ed only 600, leaving a balance of 1000 cavans; in March Hl48 they delive!'ed only 500, with a ddiciency of 1100 cavans; in Marci: 1949 there was a deficiency of 800 cavans; and in March 1950 the delivery of valay was short by !JOO cavans. To recover the value of these deficiencies as well as the amount of palay for t.very yC'ar after 1950, she (Asuncion) filed another action in September l~fiO in the same Bulacan court, Civil Ca11c No. 488. While said case was pending the De Leon children continued in their default and short deliveries; as for instance, for the year 1951, they delivered only 800, leaving a balance of 800 ca vans; in 1952 they delivered 800, with a deficiency of 800 cavans. After hearing, judgment was rendered by t.he Bulacan court on December 3, 1953, the dispositive part thereof reading as follows: " IN VIEW OP THE FOREGOING, the Court renders judgment in favor of the plaintiff a.nd orders the defendants: (l) To ;>ay the plaintiff t.he amount of P60,450.00, corresponding to th2 price of 5,400 cavanes of palay that the defendants failerl to deliver in 1947, 1948, 1949, 1950, 1951, and 1952, and to deliver to her 1,000 cavanes of palay corresponding to the short delivery in 1953; (2) To pay the plaintiff as dam~gcs interest at 6% on r12,ooo.oo from October 10, 1947; on Pll,000.00 from December 8, 1948; on Pll,880.00 from December 8, 1949; on 1"9,450.00 from September 4, 1950; on P8,560.00 from October 2, 1952; and on P8,560.00 from October 2, 1952, up to the .:iate of payment; CSJ To pay further to the plaintiff twenty percent C20%) of the total amount of plaintiff's l'ec0ve1y excepting Lhe intere!;ts as damages in the form of attorney's fees; The def"!ndants are also hereby ordered to deliver to the plaintiff 1,600 cavanes of palay in the month of March 1954 and every month of March of the succeeding years during the lifetime of the plaintiff, and to pay also the costs of this suit." In Civil Case No. 488, the defendants De LC!ons put up the same defense, namely, that it was the intention of the parties that the pulay to be delivered by them yearly to Asuncion was to come from the ricelands in Bulacan, and that because of failure of said ricelands to produce palay sufficient to cover the deliveries agreed up•m, due to force majeure caused hy H uk trouble and crop failure, they were excusC!t.l or absolved from the full fulfillment of their obJ;gation. The trial court in its decision eaid that this was the s;i.me Q~fense rind issue put up and raised in Civil Case No. 135 in 1946, und that because of the final decision in that case by the trial CC'urt, affirmed by the Court of Appeals and reaffirmed by the Suprf'me Court, the present defendants in Civil Case No. 488, in the words of the trial court at·e "foreclosed from putting up this defense of force majeure in crop failure on the principle of estoppel by or conclusiveness of judgment." Defendants have appealed frc·m that decision. However, pending the pt<rfection of their apJlf'al, plaintiff Asuncion petitioned for th€ execution of the judgment pending appeal on the ground that the appeal wus frivolous, int.ended rnly for purposes of delay. Over the opposition of thC' defendants the trio.I court issued a special order dated February 12, 1954, accepting the reasons given by Asuncion in her petition as good and sufficient grounds for execution, and granting the petition unless the defenda11t.c put up a supers<?deas bond · in the sum of P3U,OOO.OO. As11nci011 moved for the reconsider"Ltion of the order insisting on execution. The defendants fiiecl the corresponding 1mpersedeas bond. After the filing of sever&! pleadings and a prolonged discussion of the lcg-.n!ity and propriety of executing the judgment pending appeal, notwithstanding the filing of the supersedeas bond as required by the court in its special order. said court issued a second special orJ,.,r elated l\farch 18, 1954, ordering the immediate execution of the judgment in spitE' of the filing of the supersedeas bm1d, but requiring plaintiff Asuncion to file a bond in the sum of P50,000. 00, which .;;he did. To give some idea of the reason promptin,t the trial cou-i:t in ordering immediate execution we quote a paragraph of its order, to wit: "Therefore, in conclusion this Court is of the opinion and so hold that the fact that the uppeal is frivolous and intended for the purpose of delay, and cor>sidering that the hernin plaintiff is an old woman of 75 years, sickly and without any means of living, are all in the opinion of the Court strong grounds to justify the execution of the judgment in spite of the supersedeas bond, because the right of the plaintiff to live and to pursuC' her happiness are paramount rights which outweigh the security offered by the supersedeas bond." Claiming that the appeal is not frivolous and that there is no good reason for ordering immediate (:Xecution of the judgment pending uppeal b~cause the appel\ee has the security of their supersedeas bond; but that on the other hand a premature execution wonld cfluse irreparable damage to them (appellants) should they finally win the case because said execution would mean the sale of extensive prope;ties of the appellants, the latter have filed the present petition for certiorari to set aside the special order of March 18, 1954, nn grounds of abuse of discretion and excess of jurisdiction. Petitioners invoke the provisions of Rule, 39, Section 2, which for purposes of ready reference, we reproduce below: October 31, 1954 THE LA WYERS JOURNAL 501 "SEC. 2. Execution discretWnary. - Before expiration of the time of appeal, execution may issue, in the discretion of the wurt, on motion of the prevailing party with notice to the adverse party, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter,the special order shall be included therein. Exeeution issued before the expiration of the time to appeal may be stayed upon the approval by the court of a sufficient supersedeas bond filed by the appellant, conditioned for the performance of the judgment or order appealed from in case it be affirmed wholly or in part." They lay stress on the last sentence, particularly that phrase referring to stay of execution, whose provision, in their opinion is mandator} ir. the sense that upon the approval by the court of the supersedeas bond filed by appellants, the court has no choice and must stay execution. We are favored with able briefa and memoranda filed by counsels for both parties, and after a careful study and consideration of the authorities and arguments contained in them, we have arrived at the conclusion that even after the fili11g of a supersedeas bond by an appellant, intended to stay execution, the trial court may in its (liscretion still disregard said supe'!"Sedeas bond and order immediate execution provided that there are special and compelling reasons justifying immediate execution. In the case of Caragao vs. Maceren, promulgated on October 17, 1952, this Court said: "The general rule is thJl.i the execution of judgment is staycrl by the perfection of an appf::b.l . While provisions al°e inserted in the rules to forestall cases in which an executed judgment is reversed on appeal, the execution of the judgment is the exception, not the rule. And n.n exccutfon may issue only 'upon good i·casons stated in the vrder'. The ground for the granting of the execution must be good ground <Aguilos vs. Barrios, 22 Phil. 285). It follows that when the Court has alr0ady granted stay of execution, upon the adverse partly filing 'a supersedeas bond, the circmnsta.nces justifying exe<:ution in !;!J!te of the supersedeas bond must be paramount; they should outweigh the security offered by the 81tpersedeas bond. In this case only compelling rea.son.s of ttrgency or justice can justify the execution." From the above quoted ruling one may gather that there are special cases and occasions where the surrounding circumstances are such as to point to and lead to immediate execution. We admit that such special cases and occasions are rare, but in our opinion the present case is one of them. Asuncion's need of and right to immediate execution of the decisicn in her favor amply satisfy the requirement of a paramount and cr.mpelling reason of m·gency an:l justice, outweighing the security offered by the supersedeas loncl. Without necessarily· anticipating the result of the appeal which involves, according to the trial court, the same issue raised and decided in Civil Case No . 135 between the same parties, one rr:ight venture to speculate and to say that as between the parties appel19.Pts: and appel\ee, the odds are a little against the former. First, appellants have to convince the appellate court or courts that althoui;rh nothing is said in the agreement between the parties <Exhibit. Fl ah<)ut the palay which the defendant£ undertook to deliver ywrly, as coming from the ricelands of Dr. de Leon in the proYince of Bulacan, still, that was the intention of the parties, this, in Rpite> of the fact that the courts, trial and appellate, including this Tribunal, in Civil Case No. 135 ha,·e finally interpreted said agrf'eml!nt and decided against tl1em; and secondly, and equally 1mporiant, they ntust convince the appellate court or courts that they (appel· )ants) may again raise this same question or issue before the courts in this case, involving as it does, the same parties. Because of this, the trial court in ordering immediate execution, considered the appeal frivolous and made for purposes of delay, which reasons we held in the case of Sawit et al. vs. Rodas, 73 Phil. 310 to be go.>:i reasons for ordel'ing execution pending appeal. Now, to justify e.'l:ecution in :.pite the filing of the supersedeas bond required by the trial court, we find added, weighty reasons, (,.1e of which is that if the execntion of the judgment is to await the final decision of the case by the appellate court or courts, considering the age and state of health of appellee Asuncion Soriano, even if !'.he won thf:: case eventually, she may not be 3live by then to rnjoy her winnings. It will be remembered that Asuncion obtained a judgment in the Bulacan court in 1947 ordering the herein defendants to pay to her the value of the deficiencies in palay deliveries !or 1944, 1£145, and 1946, but that judgmLnt was not finally satisfied in cash until 1952, that is to say, a period of about five years after the judgtr1ent of the trial court i~ 1947. According to counsel for respondent Asun:::ion this was due to the numerous motions f('lr reconsiderations and written oppcsition~ of the defendants therein which he considered dilatory tactics. Petitioners De Leon in this case have appealed from the decision in favor of Asuncion in Civil Case No. 488. Considering the fact that the decision appealed from involves questions of fiict such as the value of palay in the yeare 1947, 1948 up to March 1953, the appeal may have gone tc. the Court of Appeals, and it is not improbable that the case may further be appealed to this Tribunal. And if what happened in Civil Case No. 135, as regards the interval of about five years between the trial court's judgment in 1947 anri the satisfaction thereof in 1952, is any indication, Asuncion may yet have to wait about four or five years before this case is finally terminated. And she is afraid that considering her delicate health and her age <she is now 75 years old> she mi;,y not live that long. We fully agree with her and her counsel. She is nearing the end of life's span. Of course, it is to be hoped that she may have many more years to live; but we all know that man's hopes and wishes on that point have little, if any effect. If we examine the contents of the agreement <Exhibit F> par· ticularly the period of time within which the palay deliveries are to be made, we will notice that it is only during Asuncion's life time. Says the agreement - "it is expressly stipulated that this annual payment of palay shall cease upon the death of the PARTY OF THE FIRST PART <Asuncion);" it further says that the right to said palay deliveries "shall not be transmissible to her heirs or to any other person." Clearly, the right is peculiarly personal, only for Asuncion, and only as long as she lived. In other words, the palay was intended in the nature of a life pension for her main· tenance, support and enjoyment, and if that was the intention of the parties, it is evident that said purposes would be frustrated and the benefit to Asuncion intended would be futile and unavailing, if the palay deliveries are too long delayed and are to be deferred until after final decision of this case, which may be after her death. The case is not unlike that of a judgment for support and education of children. The money or property adjudged for support and education should and must be given presently and without delay because if it had to await the final judgment, thP. children may in the meantime have suffered because of lack of food or have missed and lost years in school because of lack of funds. One cannot delay the payment of such funds for support and education for the rea!':on that if paid long afterwards, however much the accumulated amount, its payment cannot cure the evil and repair the damage caused . The children with such belated payment for SUP· pc.rt and education cannot as gluttons eat voraciously and unwisely, afterwards, to make up for the years of hunger and starvation . Neither may they enroll in several classes and schools and take up numerous subjects all at once to make up for the years they missed school, due to non-payment of the funds when needed. Neither can one say that it is perfectly fair and to delay the satisfaction of the judgment in favor of Asuncion even after her death because her heirs will inherit it anyway, because it is a fact that she has n. ; direct heirs and she is living all alone without any near relatives. All these circumstances combine and make up a compelling and paramount reason to warrant immediate execution of the judgment despite the filing of the supersrdeas bond. Far better that respondent-plaintiff Asuncion be allowed and granted the opportunity to receive and enjoy the palay she is entitled to under the agreement as interpreted by the courta, now, even at the inconvnience of 502 THE LAWYERS JOURNAL October 31, 1954 petitioners-defendants, but with the security of the P50,000-bond, than that she be required to await final judgment which may yet take a few years, and ,wh.ich for her may come too late. In the f~regoing considerations as to the necessity of immediate execution of the judgment, we have in mind and refer only to that part of the dedsion <paragraphs 1 and 2 of the dispositive Ji&rl) regarding the value of the palay not delivered from 1947 to 1952, inclusive; the palay or the value thereof OOM'Csponding to the deficiencies in March 1953 and March 1954, and for the years thereafter, including the interest . mentioned in paragraph 2. With respect to attorney's fees, as to the propriety of whose award and the amount thereof, has yet to be passed upon by the appellate courtl or courts, we feel that it should await the final decision in this crse. In view of the foregoing, the petition for certiorari is denied in part as regards execution of paragraphs 1 and 2 of the dispositive part of the trial court's decision, and as mentioned herein; it is in part granted as regards the payment of attorney's fees. No costs. The writ of preliminary injunction heretof<1re issm•d i<1 dissolved. Paras, C.J., Pablo, Bengzon, Padilla, Alez Reyes, Juuo, Cmcepcion, J.B.L. Reyes, J.J., concur, Bauti!Jta Anuelo o.nd Labrador, J .J., did not take part. n Smith, Bell & Co., Ltd., Petitioner vs. Register of Deeds of Davao, Respondent, No. L-7084, October 27, 1954, Pablo, J. CONSTITUTIONAL LAW; LEASE OF PRIVATE PROPERTIES TO ALIENS. - The Constitution and the Civil COde of the Philippines do not prohibit the lease of private properties to aliens for a period which does not exceed 99 years. The oontract, the registration of which is the object of litigaEm, lastB 25 years only cxtendable for another 25 years; it does nbt reach 99 years. Therefore, it is in accordance with law an1 is valid. Ross, Selph, Carrascoso & Janda for Petitioner. Patrocinio Vega Quintain for Respondent. DECISION PABLO, M., La recurrente pide una orden perentoria contra el Registrador de Titulos de il4 ciudad de Davao para que registre el <.'ontrato de arrentlamiento otorgado a su favor por la Atlantic Gulf & Pacific Co. of Manila. Los hechos son los siguientes: La rerurrentc es una corporaci6n extranjera, organizada ·de acuerdo con las !eyes de Filipinas, con oficinas en Manila. En 9 de junio de 1953 la Atlantic Gulf & Pacific Co. of Manila, una corporaci6n organizada de acucrdo con las ]eyes de West Vi1·ginia, Estados Unidos de America, con licencia para negociar en Filipinas, di6 en arrcndamiento a las recurrente el Lote No. 1241 del catastro de Davao. La claUsula de la escritura pertinente al caso cs de\ tenor siguiento: "2. That the term of this lease shall be twenty five (25) years from the date hereof, subject to renewal or extension for another twenty-five (25) years, under such terms and conditions as the parties hereto may theretipon mutually agree. For the purposes of such renewal or extension, the LESSEE shall !lO convey in writing to the LBSSOR at least ninety t90) d<tyS before the expiration of the lease." En 13 de julio del mismo ai'io la recur rente, por media de su abogado, present6 la escritura de a rrendamientll para su inscripci6n al Registrador de Tltulos de Davao, el cual cxpres6 sus dudas acerca de la procedencia de! registro, teniendo en cuenta la circular No. 189 de la Oficina General de Registro de Ter renos; y si la reeurrente insistia en el registro, dicho registrador elevaria el asunto en consulta a la 4.a sala de! J uzgado de P rimera Instancia de Manila. El abogado de la recurrente, creyendo que tardaria mucho tiempo un3 consulta al juzgado, acudi6 a la Oficina General de Registro de Terrenos, cuyo jefe, el Sr. Enrique Altav3s, resolviendo la consult&, expidi6 el siguiente dictamen: "With reference to your Jetter of the 13th insta nt, inquiring as to whether or not the Register of Deeds of Davao was justified in refusing the registration of the lease. agreement over a parcel of land executed by Atlantic, Gulf & Pacific Co. <American owned) in favor of your client. Smith, Bell & Co., Ltd ., an alien corporation, for a period of 25 years with option to renew for another 25 years, I have the honor tll quote hereunder the dispositive portion of the resolution of the Court of First Instance 0£ Manila. 4th Branch, to Con•rnlta No . 136 of the Register of Deeds of Camarines Sur, as follows: "After a careful study of the facts stated in the abnvementioned transcribed consulta, the undersigned is of the opinion that, until otherwise fixed by a superior authority, twenty.five years is a reasonable period of duration for the lease of a private agricultural land in favor of an alien qualified to acquire and llllld such r ight, which has been recognized by the Supreme Court in its decision in the case of Krivenko vs. The Register of Deeds of Manila.' "In view thereof, the Register of Deeds of Davao, was justified in refusing the registration of the aforesaid lease as it is in contravention of the said resolution o! the Court which has been circularized to all Registers of Deeds in our Cfrcular No. 139 dated May 6, 1952." El jefc de la Ofina General de Registro de Terrenos funda au opini6n en una circular del Secretario de Justicia, que en parte dice asl: "since it is ownership by aliens which is prescribed, the t"st in determining the reasonableness of the period should be whether the lease in effect amounts to a c.onferment of dominion on the lessee" so that 'the period of the lease should not be of "such a duration as to vest in the lessee the possession and enjoyment of land with the permanency which proprietorship ordinarily gives." Fund:indose en el p:irrafo 6 del articulo 1491, relacionado con el articulo 1646 del C6digo Civil d~ Filipinas, algunos contienden que los extranjeros quc no pueden coniprar bienes inmuebles por dispod - ci6n constitucional CKrivenko contra Director de Terrenos) tampoco pueden obtenerlos en arrendamiento. En nuestra opini6n, la contenci6n carece de base por varias razones. Para saber el alcance de estos tres articulos del nuevo C6digo Civil, investiguemos la raz6n por que fueron adoptados. Dichos articulos dicen asi: "ART. 1646, The persons disqualified to buy referred to in articles 1490 and 1491, are also disqlialified to become lessees of the things mentioned therein. "ART. 1490. The husband a nd the wife cannot sell property to each other, except: (1) When a separat ion of property was agreed upon in1 tho marriage settltmients; or (2) When there has been a judicial separation of property <in accordance with the provisions of Chapter VI, Title III, of this book> unde.r article 191. "ART. 1491. The following persons cannot acquire by pur· chase, even at a public or judicial auction, either in person or through the mediation of another: <U The guardian or PROTUTOR, the property of the person 9r persons who may be under his guardianship; <2J Agents, the property whose administration or ule may have been entrusted to them, unless the consent of tM principal has been given ; ~. aubrn1Adn1 eon adictoncs a l Codill'O Civil a nticuo. 1 09 Que HUlll •mt re pare nteei1 *'" tu •u1tltuldu 7 lu Que utan en letrae mayu.culu eon lu paneo 1uprlmida1. October 31, 1954 THE LAWYERS JOURNAL 603 (8 ) Executors and administrat<ns, the property of t;he estate under administrahon; (4) Public officers and employees, the property of thr State or of any subdivision thereof, or of any uovernment owned or controlled corporation, or of PUBLIC institution, the administration of which has been intrusted to them >, this provision shall apply to judges and uovernment experts who, in any manner whatsoever, take part in the sale; (5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers <of such courtsl and employees connected with the adminisf,ration of justice, the property and rights in litigation or levied upon on execution before the court within whose jurisdiction ,,or territory they exercise their respective functions; this piohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be thP object of any litigation in which they may take part by virt-UP of their profeesion. ACTIONS BETWEEN CO-HEIRS CONCEHNING THE HEREDITARY PROPERTY, ASSIGNMENT IN PAYMENT OF DEBTS, OR TO SECURE THE PROPERTY OF SUCll PERSONS, SHALL BE EXCLUDED FROM THIS RULE. (6) . . Any others specially disqualified by lmo. l,Por que se prohibe la venta de bienes cntre marido y mujt.!r? Para impedir cl fraude: evitar la simulaci6n de venta, o que se ejnv1 indebida influcncia en el ,otorgamiento de la misma en perjuicio dP tcrceros . La prohibici6n <le los cinco casos de! articulo 1491 se funda en principios de moralidad: El tutor, albacea o administrador no debc aprovecharse de la confianza depositada en el, comprando los bienes de la tutela, del albaceazgo o de la administraci6n. Los agentes no dcben tomar ventaja de su relaci6n fiduciarla con el mandante, adquiriendo en compra la propiedad de! mandante, a m~nos qt1e liste lo haya consentido. Los funeionarios ptlblicos no <l<'ben aprovccharse de las venta'jas que les proporciona su cargo pa1 a comprnr los bienes confiados a ellos para beneficio de! ptlblico. Los magistrados, jueccs, fiscalcs, escribanos y otros empleados relacionados con la arlministraci6n de justicla tampoco dehen hacer uso indcbido de su cargo para adquirir los terrenos en lit igio en su respcctiva jurisdicci6n. l. Se reficre cl pirrafo 6 del articulo 1491 a todas las persanas Y a todos los bienes en general, o solamente a ciertas personas que tienen relaci6n fideicomisaria con Joa bienes cuya adquisici6n por compra se prohibe? Crccmos que no se refiere a todas las personas en general, nacionales o extranjeros, sino solamente a aquellas per· sonas a quienes, por _las relaciones cspeciales que tiencn con los bienes, no debe permitirse comprarlos. Y por eso dice: "Any others srJccially disqualified by law." "It is a general rule of statutory construction that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applyiIJg only to perscns or things of the same general kind or class as those specifically mentioned. "This rule is commonly called the 'ejusdem generis' rul ~, because it teaches us that broad and comprehensive expres•=ions in an act, such as 'and all others,' or 'any others,' are usually to be restricted to persons or things 'of the same kind' or class with those specially named in the preceding words. It is of very frequent use and application in the interpretation of stat utes . "Illustrations and Applications "The rule of 'ejusdem gencris' is properly a pplied to a statute exempting from taxativn certain enumcrnted kinds of property and 'other articles,' the general term being strictly confined to the similitude of those specifically named.•• <Black on Interpretation of Laws, 2nd Ed. , 203.) Por eso el articulo 1646 dice que las personas descuaHficadaa parn CX>mprar de acuerdo con los artieulos 1490 .v 1491 est3.n tambii!n inhabilitadas para obtener en arrendamirnto.ias cosa{i mencion11.d11.s alli (of the things mentioned therein). Los miembros de la CC1misi6n Codificad~ra y del Congreso saben al dedillo la prohibicion constitucional y el asunt.o de Krivenko. Si su intencion hubiera sido prohibir el arrendamiento a las personas descualifieadas para comprar ter,fenos. el articulr 146 se hubiese redactada en esta forma : "The persons disqualified to buy 2.gricultural lands, according to the Constitution, are also disqualified to become lessees of the same. " l,Por que se adopt6 el a rticulo 1646? P' la analogia que exi11tf' ent-re el oontrato de venta y el de a rren<la11J1ento: Se transmite en el uno el dominio y en el otro el goce o uSc; ·de la cosa. Es verdad quc hay similitud entre uno y otro; pero es s6lo aparente, superfici::i.1. El arrendatario tiene al parecer los mismos derechos que el dueii.o; per.o entre uno y otro existe una diferencia muy importante, sustancial, en cuanto al dominio. El arrendador no tiene la posesi6r. de la cosa, pero conserva la propiedad, el dominio; el arrendatario goza de! uso de! inmueble n~da m:is: no ejerce el derecho dominical. El extranjero que compra un terreno se hace dueii.o, ejerce dominio sobre el mismo; pero el que obtiene arrendamiento no c~nsigue mils que la posesi6n o uso del terreno; no cxiste el peligro de que un arrendatario se convicrta en duefi.o de! tcrreno; el dominir lo conserva el a rrendador. Un arrcndamienlo por cincuenta ai'i.o' n-:i concecie posesion permanente que ponga en peligro la seguridad de! territorio; la posesi6n s6lo ticne la duraci6n estipulada por medio del contrato . La base sabre que descansa la prohibici6n constituciona! dP venta a extranjeros es la necesidad de conservar el dominio sobrc. el patrimonio nacional; la Asamblea Constituyente queria retener en manos de los nacionalcs el dominio sobre Joa terrenos de propiPdad privada para no poner en peligro l3 integridad de la naci6n. Jmaginese por un momento la situaci6n de Filipinas si el 70% de la propicdad inmueblc estuviera bajo el dominio de los extranjeros Parte de la poblaci6n tcndrfn quc remontarse o vivir en balsas sobr<! los inmundos esteros, lagos o mares. Habria una poblaei6n flotante como en Hongkong. Los naturalcs en dicha colonia, en vez de vivir en casas, nacen, viven y mueren en "sampanes"; por falta de alberguc, muchos dut!rmen tiritando dC! firio en las acercas de edi ficio~ extranjeros. La isla era de los chinos; pero hoy, apenas se puede contar con los declos a los chinM que conservan dominio sobre terrenos. Mientras los extranjeros prosperan y viven en la abundancia, los naturales se arrastran en la miseria, ni siquiera tienen ur. palmo de tierra en donde caer muertes. Ofuscados por el brillo de! oro, sc desprendieron de sus terrenos sin percatarse de que mas tarde las monedas se escaparfan de sus manos como aves de pa· so. Y todo porque no han tenido la provisi6n clc conservar la pro-. piedad bajo su dominio. Prohibir el anendamiento de bienes inmuebles en Filipmas por extranjeros es impedir ques sws dueiios perciban el beneficio cortt&pondiente. No tcnemos esta<li.:;ticas a la vista; pero no es ex!lgerado dccir quc mas de un 50% de las fincas comereiales en las ciude.des de Filipinas estiin, mediante arrendamiento, ocupadas por extranjeros. Si se prohibiera el arrendamiento de inmuebles a extranjeros, qucdarian vacantes muchos. No es dificil calcular el daii.o que causaria ta! prohibici6n. El articulo 1, Titulo XIII de la Constituci6n, dispone: "Pertenecen al E stndo todos los terrenos agrfcolas, madereros y mineros del dominio ptlblico, las aguas, los minera!es, c! carb6n, el petr6!eo y otros aceites minerales, todas las fuentes de energia potencial y cualesquiera otros recursos naturales de Filipinas; y su disposici6n, explotaci6n, desarrolo o aprQvC'chamicnto se limitanin a los ciudadanos filipinos, o a las corpo!"'J.· ciones o nsociaciones, de cuyo capital, en un Sesenta por ciento, por lo menos, fueren dueiios dichos ciudadanos, con sujeci6n a cualf'&· quier derecho, privilegio, arrendamiento o conccsi6n que u.istie504 THE LAWYERS JOURNAL Oct.obe.r 31, 1954 ren reapecto a dichos recursos naturales en la fecha de la inaugu- that "save in casea of hereditary 1uccesai.on, no private agricultral raci6n de! Gobiemo que se establece bajo esta Conetitucion. Con land shall be transferud or asaigned e.xcept to individual&, eorporaexcepci6n de los terrenos agricolas de! dominio piiblic'l, no ser8.n tions, or associations qualified to acquire or hold lands of the public enajenados los recursos naturales, y no se otorgarii ninguna doznain in the Philippines,'' licencia, concjsi6n ~ arrendamiento _para la explotacl6n, desar- Article 1646 of the new Civil Code pTOvides that the persons rollo o aprovecham1ento de cualesqu1era recursos naturales, por disqualified to buy rderred in articles 1490 and 1491 are also di•un periodo mayor de veinti-cinco aii.os, prorrogable por otros qualified to becorfie lessees of the things mentioned therein; and ;~:~i<'~:~·ie~:~e:~a:::c~;:: 00~108~:°r:ec;:;;;~:~~:sd: a:i~:: ~:~ article 1491, parlgraph C6>, disqualifies from acquiring by purchue, industriales, que no, sean la p~ducci6n de _energia, _rr~pecto a ~~e;!~it~:n to o!~:r:e:;;i:lle;ud~.::~i~~ :;r~:;~~hti ,;11>th~ c:~: ~:~::a~~~.~.l uso provechoso podra ser la med1da y el !Jm1te de la at ba_r: _the Y petitioner, , a:n alien corpora~ion, ~ks to register a 1 lease m its favor of a }Qt m Davao. Applied strictly, paragraph (6) Si la Constitur.ion no proh.~. el arrcndamiento de terrciios piihiico::: ; of a~icle :4_91 may :Vasily refer to all persons in general, who A ciudadanos extranjeros J."f}or que el Congreso va a prohibirles, por •'are disqualified by any law, and not merely to those who have medic del C6digo Civil nuevo, el arrendamiento de Jos bienes de Ia confidential relations with the propaty to be purchased. If para~ propiedad privada? J,Para que los propietarios no reciba.n la rent.& graph <6> simply provides "and others," the principle of ejU$dem df! sus fincas? El arrendamiento de terrenos pUblicos fomenta su generis would apply . As the petitioner is disqualified Crom ac.quiring deaarrollo y Jos mejora. Si se limitase su arrendamient<> solamente private agricultural land <which includes residential Jandl not only a los naturales, la mejora seria Jr::nta. Tenemos: un ejemplo: El by a law but by the Constitution which is more than a law, it cannot :irea ganada al m.'.\l' <Port Area) d<> Manila y Cebii :;e da en arren- hold in lease the lot in question. Even so, I concur in this decision, damiento a cualquiera persona por 99 aiios, y al expirar el plazo, because it in effect is in conformity with my dissent in the K.rivenko toda la mejora. sr conviertc l!n pl"opiedad de! E stado. Con este case . sistPma de arrendamierito muchar; mejora11 se han hecho en al krea y al cabo de! tiinnino g:mar8 el gobierno las: mejoras hlccha~ sin invertir un solo centime. Otr<l: En la ciudad de CebU, los extran· jeMs !:OnRtrnyen edificios de concrelzl en lot.es arrendados y al r:..bo de diez afios las mejoras se convierten en pr-opiedad de los duefios dP. dichos lotes. De suponer ci:. que Jos congresistas y senadorf!: ('.f'buanos en particular y los miembros del Congreso en general tP.nlan conocimiento de todo esto; cl Congreso no podia haber proSe concede el recurso. · III Honorable Marciano Roqite, Etc., Petitioners, 11s. Pablo Delgado, ct al., Respondents, No. L-6770, AugU3t 31, 1954, Paras, C.J. hibido cl anendamiento a extranjeros de bienes inmuebles. Ello 1. INJUNCTIONS; APPEALS: DISCRETION OF TRIAL COURT retardaria la mejOra de! area ganada al mar y de los terrcnos de pro- TO RESTORE WRIT PENVING APPEAL OR JN ANTICIpiedad privada en CebU, una ciudad comp)etamente arrasada por la l1ltima guerra. En Zamboanga, Cagay8n de Oro y Davao exi:i1ten tambil!r. e~ rmcios <para pier) disponibles p3.r.:1. arrendamiento. El contrato de venta o arrendamit:nto de terreno con tihilo Torrens no obliJ!a a te1·ceraa personas, a n1enos que estC inscrito; s6lo obliga a las partes contrat.antcs. Por eso, come medid~ llf' 11recauci6n, se ordena su inscripci6n. El articulo 193 de la Ley No. 2711 y el art.iculo 57 de la Ley PATION OF APPEAL. - Under section 4, Rule S9 of the Rules of Court, when an appeal is taken from a judgment g~nt ing, dissolving or denying an injunction, the trial court, in ita discretion, may make an order suspending, modifying, restoring, or granting such injunction during the pendency of thP appeal, Although this provision speaks of an appeal being taken and of tlle pendency •Jf the appeal, the court may restore the injunction before an appeal has actually been taken, Aa a matter of fact, there is authority to the effect that tlle trial court may restore a preliminary injunction in anticipatilln of an appeal. de Registro d~ Torrcnos, disponen que es deber de! Registracior de 2 Tltulo inscribir todas las escriturns relativas a terrenos registrados · cuanrlo la ley exige o permite su registro. La obligaci6n de! UPiristrador de Titulo de inscribir un contrato de arrendamiento es ministerial, <67 Phil., 222. ) ACTIONS; PARTIES: SEPARATION OF PARTY WHO 18 A GOVERNMENT OPFICER; DISMISSAL IF NO SUBSTITUTION IS MADE. - Another reason why the preaent petition was dismi~sed, is that alfoough the petitioner bad ceased 00 hold the office in virtue of which he instituted the petition, no substitution was made in ac<·ordance with section 18 of Rule S of the Rules of Court. Y, por Ultimo, el articulo 1643 de! Codigo Civil de Fi\ipinas dispone en parte lo siguiente: "x x x However, no lease for mou than ninety-nine years · sh'lll be valid ." El contrato, cuyo registro es hoy objeto de litigio, solamcnte dura 2fi afio11, prorrogable en utt·oiz 25: no llega a 99 a!ios. Por tanto, estil de acuerdo con la Jey, es valido: solamente es nulo el arr.:mdnmiento por miis de 99 arios. Se ordena al Registrador de Titulos de la ciudad de Davao quc r<'gistrc el contrato de arrendami.::nto otorgado por la Atlantic Gulf & Pncific Co. a fnvor de la recurrente. Bengzon, Jugo, Bautista Angelo, Concepci6n y J, B. L. Re>Jf'.~, MM., cstiln conformes. Padilla 11 Monte·mayor, Miii., estan confonnes con el resulkido. PARAS,C.J., concurring: In t.he case of Alexander A, Krivenko v11 . Regieter of Deeds, City of Mnnila, 44 0, G. <2> 471, this Court <at least the majority> held that aliens nre disqualified from acquiring private agricultural land which i11cludes pl"ivnte residential land. This ruling was liascd on section 5 of Article XIII of the Constitution, provirling Fir:Jt Assistant Solicitor General Ruperto Kap1inan, Jr. and Solicitor Pacifico P. de Cast.ro for petitioners. Amador E. Gomez for respondents. DECISIO N PARAS, C.J.: On September 6, 1952, the Acting Executive Secretary iaaued an order for the closure of a cockpit known as "Bagong Sabungan" located in barrio Calica, municip'llity of Sta . Cruz, province of Laguna, being only some 500 meters from the Seventh Day Adventiat Church, in violation of E:xP.cutive Order No. 318, series of 1941. On November 21, 1952, Pablo Delgado, Eugenio Zamora and Pio Manalo filed in the Court of First Instance of Laguna a petition for certiorari and prohibition, Civil Case No. 9616, against Hon . .Mar-ciano Roque as Acting Executive Secrc.tary, Hon. M, Clliptt? u Provincial Governor of Laguna, and Patricio Robeque as Municipal Secretary of Sta . Cruz, Laguna, praying for ·the issuance of a writ of preliminary injunction · restraining said respondenta from carrying l)llt the order of closure abo\·c mentfoned. On Nc;vembcr 22, Octolier 31, 1954 THE LAWYERS JOURNAL 606 1952, J udge Nicasio Yatco issued the corresponding writ. On March 6, 1953, a decision waii rendered in Civil Case No. 9616, dismissing the pE:tition for certiorari and prohibition and dissolving the writ of preliminary injunction. On April 23, 1953, the petitioners in Civil Case No. 9616 filed a motion, praying that under the pr.ov:i· sion of Rule 39, Secti.on 4, of the Rulea of Court, the writ of preliminary injunction issued on November 22, 1952, be restored, and on June 1, 1953, Judge Yatco ~ranted the motion in the following order: "Acting upon the motion filed by Atty. Amador Gomez under date of April 23, 1953 and after hearing both counsel Atty. Gomez and Assistant Provincial Fiscal Mr. Nestor Alam pay on the matter, and the consiclcr:\ti.on of the facts and the circumstances surrounding the case, tl1e Court, in consideration of Rule 39, Section 4, of the Rules of Court, makes use of its discretion in ordering the suspension of the dissolution of the injunction during the pendency .of the appeal of the judgment rendered by this Court in its decision of March 6, 1953, by thereby reinstating the writ of preliminary injunction pending appeal. The Court further took into consideration the importance of the case and the tense situation of the contending parties, at this stag<' of the proceedings. The Executive Secretary and all other authorities concerned are hereby instructed to abide by this Order, made effective upon receipt hereof, for t.he maintenance of the status quo." The First Assistant Solicitor General, in representation of t he Acting Executive Secretary, filed an urgent motion for reconsideration dated June 3, 1953, which was denied by J udge Yatco on J une 11, 1958. On June 26, 1953', Hon. Marciano Roque, Acting Executive Secretary, through the First Assistant Solicitor General, instituted in this Court the present petition for certiorari with preliminary injunction against Pablo Delgado, Eugenio Zamora, Pio Manalo and Judge Nicasio Yatco of the Court of First Instance of Laguna, for the annulment of the order of June 1, 1953, issued in Civil Case No. 9616. It is contended for the petitioner that the respondent Judge that the location of the ooclcpit is in open violation of Edecutivo! Order No. 318, and in subsequently restoring the writ of preliminary injunction that would allow the continued operation of said coc=kpit. It is significant that, under section 4 of Rule 39, the respondent J udge is \•ested with the discretion to restore the preliminary injunt-tion; and when we consider that the order of June. I, 1953, took into account "the facts and the circumstances surrounding t he case," as well as ''the importance of the case and the tense situation of the contending parties, at this stag-e .of the proceedings,'' in addition to the fact that in his 01·der of June 11, 1953, denying the motion for reconsideration filed by the First Assistant Solicitor Genera.I on June 3, the respondent Judge expressly stated that he acted "on tbe basis of the new facts and circumstances registered on record on the date of the huring" of the petitic\,n of April 23 filed by the petitioners in Civil Case No. 9616, w~ are not prepared to hold that the respondent Ju<lge had acted with grave abuse of discretion. The allegation in the herein petition that the petitioner was not notified of the hearing of the petition of April 23, is n.ow of no moment, since the petitioner, through counsel, had filed a motion for the reconsideration of the order of June 1, 1953. Ancther reason. though technical, why the presE'nt petition sh"nld b(! dismissed, il' that althoug-h the petitioner, Hon. Marcio.n" Roque. had ceased to hold the office in virtue of which he instihlU!d th(! petition, no substituti:m has been made in accordance with section IS, Rule 3, of the Rules of Court. Wherefore, thf' petiti.on is hereby denied, and it is so ordered without costs. Pablo, Padilla, A. Reyes, Ba11ti'sta Angelo, Conccpcion, Bcngz01t, Montemayor, J1tgo, Lahrndor and J B. L. RP11es, J.J .. IV f'tiderico Ma,fJnllanes, et al., Petitioners, vs. HonarabU Court of Appeals, et al., Respondents, No. L-6851, Septembe.r 16, 19Q4, Paras, C.J. :~:;i~n~i~~c::::ew~!~setho: :::::etl~~~to~:n; t~:ce;:i~r 0~ac;re~:~~:;; 1. PA'rERNJTY AND FILIATION; SUCCESSION; NATURAL injunction was issued, there was no pending nppeal. It appears, ;~i~~g~~ ,%~~R~~~~~!t:.~~~~~:~:i~tGl~!n:~~n~:i~ ~:::"~~. ~~~~. i~t ~~=s ~:t~~:;sl:a~~:g~p:~a:.3jn 1~::i•r f~~:~e!;edC~v~~ edged are Mt entitled to inherit under article 840 of the old p('al, the petitioners therein would in effect assail •.he correctness Civil Code. of the decision in said case. Section 4 of Rule 39 provides that 2. ID.; ID.: ID.; ACTION FOR COMPULSORY RECOGNJ. "the trial court, however, in its discretion, when an appeal is h.ken TION MUST BE BROUGHT WITHIN FOUR YEARS AFTER from a judgment granting, dissolving or denying an injunction, may make an order suspending, modifying, restoring, or granting i::uch injunction during the pendency of the appeal, upon such terms as to bond or otherwise as it may consider p1·oper for the security of the rights of the adverse party." Although this provision speaks o{ an appeal being taken and of the pendency of the appeal, we cannot see any differeiice, for all practical purposes, between the period when appeal has been taken and the period during which DEATH OF NATURAL l<,A'fHER. - The action for compul!lory recognition muf:t be instituted within four years after t~E' death of the natural father. ViCl'ttte Castro~mevo, Jr. for pctitit:.ner Diosdado Caringalao for respondents. DECISION ~:ta~~:~~ ~:Y abem~~;::c~~fd, r:~~c~h:e ~!h a~~~~~·itt;e t~u~~;':~~e!~ PARAS, C.J.: that the trial court may restore a preliminary injunction in anti- Jn Ci\·il Case No. 1264. of the Court of First lnstan<'c of cipation .of an appeal. <Louisvillf' & N. R. Co. et al. v. United States et al., 227 Fed. 278.) It is also argued for the petitioner that at t.hc time the order of June 1, 1953, was issued by the respondent Judge, the act sought lo be cnjoil1cd Imel all'eady been performed, the cockpit in quest;vn having been actually closed on May 24 and 31, 1958. In answer to this argument, it may be recalleJ that as early as April 23, 1953, the petitior.ers in Civil Case No. 9616 filed a petition to suspend the cfocision of March 6, 1ff53 and to restore the preliminary injunction previously issued, which petition was not resolved until June 1, l!l58, with the result that, if there was any closure, it shoulc! be deemed to be without prejudice to the action the respondent Ju3ge would take on said 1 ietition dnted April 23. Iloilo, l\Iaximo Magallanes, ct al., plaintiffs vs. Federico rafagallft.nes, et 111., defendants, a decision was rendered on May 28, 1951, with the following dispositive part: "In view of the foregoing considerations, the Court f ;nd'> that the preponder.rmce of evidence is that the above pro-perties are of Justo Magallanes and that both plaintiffs and defendants are the legal heiu of Justo Magallanes, therefore, they should share proportionately in the properties in question. Each child of Justo Magallanes from both wiYes is entitled to 1/7 of the undivided share o( the land in question. Inasmuch as t.he plaintiffs paid P-220.00 for the mortgages aa: shown in Exhibits D and C, the other heirs are obliged to reimburse proportionately the said amount .of P220 .. 00 to the plaintiffs.'• Another contention of the petitioner is that the respondent Upon appeal by tlle defendants to the Court or Appeals, the Judge was inccnsistent in holding in his decision of March 6, 1953, latter Court rendered on April 22, l!l53, n deeision the disposi ~h-e 50G THE LA W'YERS JOURNAL Octobe.r 31, 1954 part of which reads as follows; "Wherefore, the decision appealed from is hereby modified in the sense that each of the plaintiffs shall participate in the proportion subject of litig:ition in the proportion of one.half (1/2) of the share that corresponds to each of the defendants. The latt~r are further sentenced to pay jointly and severally to plaintiffs 11:aid sum of f'220.00 that they spent for the redemption of thl: parcels 'lf !and under Tax Declawtions Nos. 21719 CExh. D) and 2153 <Exh. G>. In the meantime th:s is not done, the properties ment,ioned in Exhibits D and G wi'I answer for the payment of this sentence. Without pronounce· ments as to costs." Not M.tisfied with the decil~ion of the Court of Appeals, the defendants have filed the present petition for its review on certiorari. The findings l)f fact of the Court of Appeals upon which itlil decision rests, quoted verbatim, art? as follows : "(a) That t he properties under litigation were not of Damiana Tupin but of her husband, the late Justo Magallanes; "lb) That plaintiffs Maximo, Gaspar, Baltazar and Bienvenido, surnamed MagallaMs, had redeemed from their vendees a retro Filomeno Gallo and Soledad Canto <Exh . D> and Jose Capanang CExh. G> the parcels l)f land under Tax 21719 :ind 2153 mentioned in said exhibits and paid for such 1·edemptions the sums of fl00.00 and P120.00, respectively; " (c) That Enrica Tagaduar, alleged mother of the plain· tiffs, did not marry Justo Mngallanes in the year 1918 after the death of his first wife Damiana Tupia occurred in 1915. We arrived at t his conclusion not only because Justo's s!ster Alejn Maga\lanes positively declared 'that until the death of my hr.other (Justo) he was never married again,' but also because Magallanes himself declared in various documents that he executed in his lifetime and up to 1938, that he was. a widower CExhs, B, C and I>, and although it is true that in 1939 his civil status appearing on Exhibit F is that of 'married' <without stating to whom he was married thenl, it does not follow, even if the statement of such status was not due to a clerical error, that he was preci£ely married to Enrica Tagaduar who did not f•)·etend that she married him between 1936 and 1938, but in 1918. Plaintiffs-appellees state that according t('I our jurisprudence: 'A man or woman who are living in marital relations, under the same roof, are presumed to be legli.imate spouses, united by virtue of a legal marriage contract, and this presumption can only be rebutted by sufficient ccntrary e\.·idence .' <U.S . vs. Uri et al., 34 Phil. 653; U.S. vs. Villafuerte, 4 Phil. 5591. but this doctrine only establishes a presumption that in the case at bar was rebutted by the testimony of Aleja Magallanes and by documents executed by Justo Magallanes himself. In this case it is not a matter of imagining what might have happened to the plaintiffs, as the trial court does without adequate support in th~ record. Furthermore, and even considering that tlle plaintiffs are the natural children of J usto Magallanes and that sometime between 1936 and 1939 Justo Magallanes married Emica Tagaduar, such marriage could not have the effect of automatically legitimizing the children both prior to the marriage, because (IUr Civil Code provides: ' Art. 121 Children sl1all be considered as legitimized by a subsequent marriage only when they have been acknowledged by the parents before or after the celebra. tion thereof.' and the record fails to adequately show that such acknowledgment ever took place. "(d) Thal the plaintiffs are the natural <"hildren of the late Justo Magallanes by Enrica Tagaduar. The defendant. do not deny their status as such and it can be inferred from the reeords that they enjoyed such status during the lifetime of their deceased father." Petitioners' main contentiop is that the Court of Appeals ern!d in holding that the respondenta Maximo, Gaspar, Baltazar and Bienvenido Magallanes, 3.S mere natural children of the deceased J usto Magallanes, without having been legally acknowledged, are entitled to inherit under article 840 of the old Civil Code, which reads as follows: "When the testator leaves legitimate children or descendants, and also natural children, legally acknowledged, each of the latter shall be entitled to one.half of the portion pertaining to each of legitimate children who have not received any betterment, provided that it may be included within the freely disposable portion, from which it must be taken, after the burial and funeral expenses have been paid. "The legitimate children may pay the portion pertaining to the 11atural ones in cash, or in other property of the estate, at a fair valuation ." Petitioners' contention is tenable. We are bound by the finding of the Court of Appeals in its decision that said respondents are the natural children of Justo Magallanes, that the petitioners do not deny their status as such, and that it can be inferred from the 'records that they enjoyed such status during the lifetime of their deceased father. Nonetheless, we are also bound by its finding that t he record fails to adequately show that said respondents were ever acknowledged as such natural children. Under Article 840 of the old Civil Code, above (!Ul)ied, the natural children entitled to inherit are those legally acknowledged. In the case of Briz vs. Briz, 4!> Phil. 763, the following pronouncement was made: "x x x the actual attainment of the status of !l legally recognized natural child is a condition precedent to the realization of any rights which may pertain to such child in the character of heir. In the case before us, assuming that the plaintiff has been in the uninterrupted possession of the status of natural child, she is undoubtedly tmtitled to • enforce legal recognition; but this does not in itself make bin a legally recognized natural child." It being a fact, conclusive in this instance, that tllere was no requisite acknowledgement, the respondents' right to inherit cannot be sustained. The respondents cannot demand thnt this suit be considered a complex action for compulsory recognition and partition, under the authority ':lf Briz vs. Briz, supra, :ind Lopez vs . Lapez, 68 Phil. 2?.7, for the 1·eason that the action was not instituted within the four years following the death of the alleged natural father lArt. 187, old Civil Code; Art. 285, New Civil Code>. According W th" decision of the Ccurt of Appeals, the father, J usto Magallanel!, died in 1943, and the present action was instituted seven yeen: later in 1950. Wherefore, the decision of the Court of Appe3ls is hereb~· rnotified by eliminating therefrom the ruling that the respondents Maximo, Gaspar, Baltazar and Bienvenido Magallanes are entitled to inherit from the deceased Juste Magallanes in the proportion of one half of the share that corresponds to each of the petitioners Federico. Fe,min and Angel Magallanes. So ordered without co<1h. Pablo, Bll?f.gzun, Padilla, Montemayor, A. Reyea, Jugo, Bautista 1ll1gtlo, Concc.pcion and J.B. L. Ret1ca, JJ., concur. v Tomas Bagalay, Plaintiff-Appellant, '118. Genaro U-rsal, Defendant· Appellee, Nu. I.-6445, July 29, 1954, Padilla, J. DAMAGES; CLAIM FOR DAMAGES UNDER ARTICLE 27 01'., THE CIVTL CODE; PARTY ENTITLED TO DAMAGES ONLY WHEN PUBLIC SEHYANT REFUSES OR NEGLECTS TO PERFORM HIS OFFICIAL DUTY WITHOUT CAUSE. - Article 27 of the Civil Code which authorizes the filing of an action for damages contemplates a relusal or neglect withGut Oclober 31, 1954 THE LA WYERS JOURNAL 607 just cause by a public servant or employee to perform his of· ficial duty which causes material suffering or moral lou. In the cue at bar, plaintiff is not entitled to moral damages because the defendant did not refuse nor did he neglect to perform his official duty but on the contrary he performed it. Numo:1riano G. Estenzo for plaintiff and appellant. Cit11 Fiac1J,l Joae L. Abad a11d First Assistant Cit,y Fiscal Hono· rato Garciano for defendant and appellee. DECISION PAD ILLA, J .: An action was brought to recover moral damages in the sum cf Pl0,000 and P2,500 for attorney's fees and costs. For cause Gf action the plaintiff alleges that the defendant, in his capacit.y att City Assesor of Cebu, wrote and mailed to him a Jetter by which he was informed that he was delinquent in the payment of realty tax from 1947 to l!JSl on a parcel of land assessed at Pl,800, amounting to P98. 45 including penalties, and that unless the same be paid on 9 May 1952 the real property would be advertised for sale to satisfy the tax and penalty due and expenses of the auction sale; that the letter caused him mental anguish, fright, serious anxiety, moral shock und social humiliation; besmirched his !"eputation; ,.,-ounded his feelings, all of which the plaintiff fairly e~timates to be Pl0,000. A motion tci dismiss the complaint on the ground that it does not state a cause of :tction was grented. A motion fo:c reconsideration of the order of 1limsissal was denie<l. Hence tl\is appeal. Laying aside the other unimportant point as to whether the l<'tter was addressed lo Tomns Bo.calay and not to thP plaintiff sur· named Bagalay and grnnting that it was addressed and mailed to the latter, still the fact$! pleaded in the complaint, 11dmitting them to be true, do not rntitle him to recc,·er the amount of morn.I damages he claims to have suffered as a result of the writing and mailing of the letter by the defendant in his official capacity and receipt thereof by the plaintiff because the former has done nothing more thait to write and mail the letter There is no allegation in the com4 plaint that the amount due for the realty tax and penalty reft>rred to in the defendant's letter complained of had been paid by the rlainti{f. Article 27 of the Civil Code which authorizes the filing of an action for damages, relied upon by the plaintiff, contemplates a refusal or neglect without just cause by a public servant or employee to perform his official duty which causes materiul suffering or moral loss. The provisions of the article mvoked by the plaintiff ju not lend support to his claim and contention, because the defendant did not refuse nor did he neglect to perform his official duty but on the con~rary he performPd it. All the moni.l damages the plaintiff claims he has suffered are but the product of oversensitiveness. The order appealed from is affirmed, with cost.s against the plaintiff. ParM, Pablo, Bf'ng.zon, Montemayor, A. R eyeB, Jugo, Bauti~ tn A7igelo, Labrador, Concepcion und J. f!. L. Reyes, J.J., concur. VI Pio S. Palamine. Sulpicio Udarbe, Alfonso Sagado, Hipolito E7· cli1Je, freneu &1tlit1l, Melecw Damatriny, and LltdhMo Baloc, Pet·itioncrs, vs. Rodrigo Zagado, Metrano Palamine, Brigido Canales, Dominador Acodo, G:utlberto Saforte::a, Respondents, G. R. No. L--6901, March 6, 1!:154, Bengzon, J. ADMINISTRATIVE LAW; REMOVAL OR DISMISSAL OF CHIEF AND MEMBERS OF' POLICE FORCE OF A MUNICIPALITY. - The chief and members of the police force of s municipality cannot be dismissed simply in accordance "with the new policy of the present administration," without charging and proving uny of the legal causes specifically provided in Republic Act 657. Tarladn. Pelaez & Tsshank.se for petitioners. Prot:inriul F'i1ual Pedro D. /lflllttndez for respondents. DECISION BENGZON, J.: The petitioners were on .June 12, 1953, the chid and membE-" of the police force of Salay, Misamia 01·iental. On that date tht>y were removed from the service Dy the respondent Rodrigo Zap.do as. the Acting mayor of the same municipality. The other re• pondents are the persona subsequPntly appointed to the positions thus vacated. This litigation was instituted without unnecessary delay, to test tbe validity of such removals and appointments, the pditionen contending they were illegal, because contrary to the provision,_ of 6ection l, Republic Act No. 557, which reads in part as follows: "Members of the provincio.1 guards, city police and munici· pal police shall not be removed and, except in cases of resign•tion, P.hall not ·be discharged except for misconduct or incompetency, dishonesty, disloyalty to the Philippine Government, sPrious irregularities in the performance of their duties, and violation of law or duty, x x x" There is no question that on June 12, 1958 each of the pl!titionera received from the respondent Rodrigo Zagado a letter of dismi.c;sal couched in these terms: "I have the honor to inform you that according to th<! new policy of the present administration, your s1::rvices as Municipal Police, this municipality will terminate at the opening of the ~ffice hour in the morning of June 18, 1958, and in view hereof, you arc hereby respectfully adviseri to tender your resignation effective immediately upon receipt of this letter." There is also no question that on June 14, 1958 said respondent appointed the other respondents to the vacant positions, which the latter assumed in due course and presently occupy. The respondents' answer, without denying the letters of dismissal, alleges that Acting Mayor Zagado had dismissed the petitioners ''with legal cause and justification" and that "charges have been preferred against the said petitioners". What thal legal cause is, the pleading does not disclose. What the preferred charges were, we do not know . Whether they are charges of the kind that justify investigation and dismissal, rPs. pondents do not £ay. And when the controversy came up for hearing, none appeared for respondents to enlighten the court on such charges or the outcome thereof. Hence, as the record now stands, the petitioners appear to have been dismissed simply in accordance "with the new policy of the r:resent administration" as avowed in the letters of dism:asal. Pr.)bably that is the "legal cause" alleged by respondents. But they forget and disnigard Republic Act 557, inasmuch ns no miscorJuct or incompetency, dishonesty, disloyalty to the Government, serinus irregularity in the performance cf duty or violation of law has bee'I charged and proven against t;he petitioners. The Legielature in said statute hlls wisely expr~ssed its desire that membership in the police force shall not be forfeited thru changes of administration, or fluctuatkms of "policy", or causcg other than those it has specific4 ally mf'ntioned. Reinstatement is clearly in order1. Wherefore, judgment is hereby rendered in favor of the petit:on4 ers, commanding the respondent Acting Mayor Rodrigo Zagado to reinstate them to their respective positions, and orderinJ? tho other t·cspondents to vac11.te their places. Costs against respondents. So {lrdered. Paras, CJ., Pablo, PadUla, Montemayor, A. Re-vu, Jugo, Bau· tista Angelo, Lal1rador, Concllpciori, and DWJ.-no, JJ., concur. Petitioners rllinstated. I Mlulon tt al "•· 0.1 Ro.arlo. G. R. No. J,..'7U. f'lob. H. UU : Ma nlM!l "· 0. Ill Futnte, 48 Of. r.u .. 4~29. 508 THE LAWYERS JOURNAL October St, 1954 VII Nntfonal Organization of LabMera and Employees < NOLE), Petitioners, V B, Arunio Roldan, Atodeato Castillo, and Juan Lanting, Judges of Court of Industrial Relations; Rizal Cement Co., Inc., Ru pomlents, No. L-6888, Au(IU8 t 31, 1954, .Montemayar, J. EMPLOYRR AND EMPLOYEE; DISMISSAL FROM EMPLOYMENT AFTER EMPLOYEE HAD BEEN ACQUITTED IN CRIMINAL CASE. - Thi." acquittal of an employff in a criminal case is no bar to the Court of Industrial Relations, after proper hearing, n1aking its own finQings, including the finding that the same employee was guilty of acts inimical to the interests of his employer and justifying loss of con· fidence in him by said employer, thereby warranting his dismissal or the refusal of the company to reinstate him. Enage, Beltran and Ramon T. Garcia for petitioner. Bausa & Ampil for respondent Rizal Cement Co., Inc. DECISION MONTEMAYOR, J.: This is a petition to review on certiorari the order of the c,nrt of Industrial Relations CCIRJ dated January 5, 1953, signed by an associate Judge thereof, and the resolution of March 30, 1953, signed by the majority of the Judges thereof, denying the motil)n for reconsideration. The facts .in the case are not disputed and only questions of law as we understand the petition are involved in this appeal. Prior to March 12, 1952, the Rizal Cement Co., Inc ., a corporation, had a factory and a compound in Binafigonan, Rizal, where cement was being manufactured. Over 200 employees were working in said factory . Most, if not all of them, belonged to the Natiolfal Organization af Laborers & Employees CNOLEJ, a labor union of which Tarcilo Rivas was the President and Alberto Tolentino a member. On March 12, 1952, because of the supposed failure of the cement company to grant certain demands of the laborers, such as increase in salaries, vacation leave and accrued leave with pay, a strike was declared. The strikers numbering about 200, working in three shifts .Jf about seventy men, maintained a picket line near and a1X>und the compound of the cement company and for their convenience a big tent was put up with cots in it where the strikers and their leaders could rest or sleep between ahifts. The following day the cement company filed a petition with the CIR praying that the strikers be ordered to go back to I.heir work, and that the strike be declared illegal. At the suggestion of the CIR, an amended petition docketed as Case 676-V<3J was filed on March 15th by including as party-respondent the NOLE, and the case was set for h~aring on March 18th. On that date a temporary settlement wa!'l arrived at between the cement company and the strikers to the effect that the former granted to the laborers a 7% general increase in their salaries or wages and fifteen days sick and fifteen days vacation leaves with pay, and shortly before March 20th all the strikers returned to work and with the exception of Rivas and Tolentino were admitted by the cement company. The reason for the non-admission of Rivas and Tolentino was that they had in the meantime been charged with illegal posl'lession of hand grenades found under one of the cots inside the tent of the strikers, in a criminal case before the Court of First Instance of Riial. In July 1952, Rivas and Tolentino were acquitted by the Rizal Court of the charges of illegal possession of hand grenades, and armed with this judgment of acquittal, the two men through their union NOLE, filed an urgent motion in the CIR docketed as Case 676-V(6), praying for their reinstatement with the cement company, with backpay. The cement company op)losed the motion. The two cases 676-V<S> and 676-V(5) were heard jointly by the CIR, after ::i;~t i~ r;:~v7!w:d~ingle order, that of January 5, 1958, now Despite the judgment of acquittal of Rivas and Tolentino on the ground that their guilt had not been established to the satisfaction of the trial court, or in other words, that their guilt had not beeJ:a proven beyond reasonable doubt, the CIR made ita own finding u to the relation or connection of Rivas and Tolentino with t.ht three hand grenades in question, resulting in the CIR being convinced that these three hand grenades were illegally posseaaed and intended to be used by Rivas and Tolentino to blast the blasting cap and dynamite storage or magazine of the cement factory within the compound, in relation with the strike . Instead of making a resume of the findings of fact of the CIR and because by law and by established jurisprudence we may not disturb or modify said findings except where there is complete a bsence of evidence to suppor t the same, we are reproducing that part of the order appt>aled f rom containing said findings, including the dispositive part thereof : "On March 12, 1952, a strike was declared by the workers of petitioner in its factory at Binafigonan, Rizal; that due to said strike, the Armed Forces of the Philippines sent a group of soldiers to maintain peace and order therein. Among th~ soldiers are Sgt. Angel Huab of the Army and Sgt. Edilberlo Buluran of the Constabulary. On March 16, 1952, at about 6:00 o'clock in the morning, Sgt. Huab saw Alberto Tolentino inside the tent occupied by the strikers, picking up three hand grenades and putting them inside a paper bag. Sgt. Huab got scared when he saw 'folentino walk out of the tent with the hand grenades. At this instant, Sgt. Huab ordered a policeman of the petitioner tu overtake and stop Tolentino which was dor.e. Thereupon, Sgt. Huab questioned Tolentino who readily admitted that he was carrying said hand grenades which were in a paper bai because he was ordered by Tarcilo Rivas to blast the dynamite storage of the Rizal Cement Rectory . Sgt . Huab, being a member of the Army, without authority to investigat.! the case or cases of this nature, brought Tolentino inside the i:omvound of petitioner and there surrendered him with the hand fZTenades to Sgt . Edilberto Buluran of the PC. On the strength of the statement of Tolentino implicating Tarcilo Rivas in c:onnection with the hand grenades, Sgt. Bulurnn brought the two <TolentinD and Rivas) to the PC Headquarters in Pasig, Rizal. for fut"ther investigation. "At the PC Headquarters of Rizal, Rivas and Tolentino were investigat£:d by Sgt. Bulurun, Lt. Del Rosario and Lt. Ver. Antonio Antiporda, admittedly the adviser or liaison man or tht union t.o which Rivas and Tol<'.!ntino belong, i .e. , the Federation cf Free Workers tPFWJ, was also inve11tigated by the PC officers on March 16, 1952. The three of them, Antiporda, Rivas and T<>lentino, then gave separate written statements to the PC investigating officers which, on March 17, 1952, were sworn to by tad1 of them in the p1 esence of each other and in the presence of the attesting witnesses before Nicanor P. NiClllns, Provincial Fiscal of Rizal, at the latter's office at Pas1g1 Rizal, Exhibits "AA-VC3l", "CC-VHll ", and FF-V <Sl " , respectively. The statement of Antonio Antiporda is not disputed. Neither is there any dispute as regards the correctness and veracity of the written confession of Tarcilo Rivas who admitted to the Court that he signed the same voluntarily. "Respondt-nt NOLE, howe\"er, endea vored to show that Exhibit "PF-V<S>", wh!ch is the statement of Alberto Tolentino, was signed by him under duress . Tolentino stated during the hearing that he signed said document because Sgt. Buluran was swinging up and down liis revolver . Tolentino admitted, however, that Sgt. Buluran did not say or hint t hat he would hurt him <Tolentino) if he did not sign said statement. Tolen· tine's demeanor :m the witness stand, coupled with the uncontradicted i.:vidence tha t he swore to and signed his writtPn atatement before the Provincial Fiscal after the latter read to him said statement in the presence not only of Antipord~ but also of Tarcilo Rivas, Lt. Ver and the attesting witnesses, show1 that his <Tolentino's) statcm<'.!nt was given voluntarily. The written statement of Antiporda, who was not presented even if only to explain or deny the same, supports also this finding of the Court . Besides, there is no reason, and no motive was 11hown, why Sgt. Buluran '>f the PC shOuld threaten Tolentino to sign said statement . October 31, 1954 THE LAWYERS JOURNAL 509 510 "Tolentino admitted in his written statement, Exhibit "FF-V C3)" that when he was arrested on the morning of March 16, 1952, he was on his way to f'Xecute the order given to him by Tarcilo Rivas, President of NOLE, to blast the dynamite ritorage of the pditioner compan)', But when Tolentino took the witness stal!d, he stated that he was on his way to throw said hand grenades into the sea, in obedience to the order of Tarcilo Rivas, 'rhe Court is at a loss to comprehend this excuse of Tolentino, It was not explained why, instead of passing along the trail leading to the sea, Tolentino followed a path that brought him right into the edgE: of the compound where he was stopped in the direction of the dynamite and blasting cap storage of the petitioner's factory , Why did he not inform the Police, the Philippine Constabulary or the Army who were there for security purposes, particularly Sgt, Huab of the Anny, who was only 5 to 15 meters away from where he picked up the hand grenades? Furthermore, this testimony of Toh:ntino that he was ordered by Rivas to throw the hand grenades into the sea runs counter to the written statement of Tarcilo Rivas <Exh, "AA-VC3J''). "Tarcilo Rivas also endeavored to extricate himself from his written statement, Exhibit "AA-V(3J". Rivas categoric;\lly stated that he ordered 'folentiuo to "Urrender the hand gr~nvd.es to the Philippine Constabulary. This cannot be true· because Tolentino woe apprehended 300 meters away from the tent. and, according to Rivas himself, eight or nine soldiers were around the place besides Sgt. Huab who was only 5 to 15 meters away from the tent. But Rivas claims that perhaps Tolentino did not hear his directive, Exhibit "AA-VC3)". The Court cannot accept this claim of Rivas, because if this were true, Rivas could have easily told the Anny and PC soldiers about the hand grenades inside the tent if he was afraid to pick them up instead of ordering Tolentino to pick and surrender them ti.I the PC, Again, Rivas should have called Tolentino back when the former saw Tolentino walhd towards the dynamite storage of petitioner and away from the soldiers, if his instructions WC're really to 1mrrender the hand grenades to the soldiers. What Rivas nnd Tolentino failed to do an; the most naturn.l things that anyone in tlieir place would have done under the circumstances, to be consistent with their pretensions. What is more strange is thl\t, apparently, none of the two hundred striking workers of the petitioner who occupied, used and had control of the tent in shifts of seventy (70), noticed who placed the hand grenades and their existence under a cot inside the tent until the morning of March 16, 1952, when Rivas told Tolentino to pick them up. "In passing, it may be c;tated that the hand grenades were brought to the Q:iurt and, acrording to the testimony of Lt. Ver, they are live and unexploded and that they are not c! the army type as they show signs of having been buried for some time. "The rea!::on why Rivas and Tolentino did not report to the PC and/or A rill)' soldiel's the existence of the hand grenades inside the trnt is obvirrns. fhe directive of Rivas, according to the written statement of Tolentino, to blast the dynamite storai:rc, coupled with the fact that he <Tolentino) was apprehended at the edge of the compound in the direction of the dynamite storage with the Jit.nd grenades in his possession, show very clearly the plan to blast said dynamite storage o{ the compnny in order to compel it to recognize the respondent NOLE. ·'Indeed, lt was only by acts independent of their own voluntary de~istence that they were prevented from consumating their plan to blast and destroy the dynamite and blasting cap storage of the company by means of the hand g!·em1des. This Court and the Supreme Court, in a number of cases, have he!d that when the purpose of a strike is to c:rnse destruction of property and/or the means employed to uphold and maintain it is unlawful. the strike is illegal. "lN VIEW OF ALL FOREGOING CONSIDERATJOSS. the Court believes and so holds, that the strike declared en Mareh 12, 1952, by the workerg of the Rimi Cement Comp2.11y tn its factory at Rinafigonan, Rizal, is illegal. As a consequ<'ntt. although ihe strike was voted for and approved by thoe wor'i'Pn only Tarcilo Rivas and Alberto Tolentino, who committed act3 Inimical to the interest of theic employer, should be held re.'lpcnsible for the illegal strike and, therefore, their petition !or reinstatement should be, as it is hEreby, denied." The main legal question involved in the present appeal, which we are called upon to determine is, whether or not the Rizal Court judgment of acquittal of Rivas and Tolentino of' t.he charge"' of' iliegal p'lssession of hand grenades bound the CIR and barred it from holding its own hearing in Casf' 676-VCS>, thereafter making its own findings, including the finding that the tv.•o men had illeg.il possession of said hand grenades because with them they intcndt:d, even attempted to blast the dynamite storage of the cement company, tlwir employer, which would have been an act of sabotage, and in finally declaring said two employees ineligible and unworthy of reinstatement in their posts abandoned by them when they went on strikr,. Jn the case of National Labor Union vs. Standard Vacuum Oil Co., 40 O.C. 3503, this Tribunal said that - "The conviction of an employee in a criminal case is not indispensable to warrant his dismissal by his employer. If the Court of Industrial Relations finds that there is sufficient evidence to show that the employee has been guilty of a breach of trust, or that the employer has ample reason to dismiss such employee x x x. It is not necessary for said court to find that an employee has been guilty of a crime beyond reasonable doubt in order to authorize hi:> ciismissal." By a parity of reasoning, we hold lhat the acquittal of an employee in a criminal case is no bar to the CTR, after proper hearing, findini:r the same employee guilty of nets inimical to the interests of his employer $lnd justifying Joss of confidence in him by said employer, tht>r<'b? warranting his dismissal or the refusal of L he company to reinstate him. The reason for this is not difficult to see. Tl-e r-vidence required by law to establish guilt and to warrant conviction in a criminal case, substantially differ from the evidence necessary to establish responsibility or liability in a civil or non-criminal case. The difference is in the amount and weight of evidence and also in degree. In a criminal case, the evidence or proof must be beyond reasonable doubt while in a civil ur non-criminal case, it is merPly fffeponderancc of evidence. In further support of this principle we may refer to Article 29 of the new Civil Code (Republic Act 386) , .. ,hich provides that when the accused in a criminal case IS acqui~teJ on the ground of reasonable doubt, a civil action for damages for ~he same act or omission may be institcted where only a preponderance of evidence is necessary to establish liability. From all this, it i!'I clear that. the CIR was justified in denying the petit ion of Rivas and Tolentino for reinstatement iu the cement comp1my bccaupr, of their illegal possession of hand grenades intended by them for purpmes of sabotage in connection with the stl'ike on March 16, 1952. The second question involved iii whelhH or not the strike declared c.n March 12, 19."i2, maintained up to about March 20th when the l-'trikers, with the exception of Rivas and Tolentino, returned to wol'k and were admitted by the cement company, wns legal. The majority of the Justices of this Cou1t ar~ not inclmed to puss upon a11d determine this question for the re&son, that among others, it seems to be moot . It will be remembered that as n result of the slrike and evidl.'ntly to induce the strikers to return to work the cPment compnny had granted a general increase of 7'.( in th,.ir v.:ages as well as 15 days vacation leave and 15 days sick leave, with pay, which grants 01· conces:iions still obtain and undoubtedly will continue. Moreover, as may be seen f'rom the dispositive part ('f the order of the CIR of J anuary 6, 1958, although the CIR declared tht> strike illegal, nevertheless it held Rivas and Tolentino as the only two responsible for the said illegal strike. The inference ia that the rest of the strikers now working with' the cement cc.mpany and enjoying the concession granted them will not be held responsible THE LAWYERS JOURNAL October 31, 195·1 for the illegal strike, and that said strike cannot in any way affect their present status as laborers or any demands by them either pe:nding or future. With this understanding, we decline to pass upon the legality or illegality of the str ike declared on March 12, 1952, against the cement company, regarding the same as immaterial, if not moot. ln view of the foregoing, the order appealed from is hereby affirmed, with costs . Po,ms, C.J., Pablo, Bengzon, Padilla, A le:t Reyes, Bautista Angelo, Jugo, Labr<ulor, Conc11pcio11 and J.B. L. Reyes, J.J., concur. VIII Urbano Casillan, Pe!itior.er-Appellee, vs. Francisca "£'. Vda. De Espartero, et al., Oppositor-Appelants, No. L-6902, S eptember 16, 1954, RP,yes, A., J. LAND REGISTRATION; JURISDICTION OF LAND REGISTRATION COliP.T TO ORDER RECONVEYANCB · OF PROPERTY ERRONEOUSLY" REGISTERED IN ANOTHER'S NAME; REMEDY OF LANDOWNER. - The Court of Ffrst lnstance, in tht exercise of its jurisdiction as a land registration court, has no authority to order a 1·econveyance or a property erroneously registered in another's name. The remedy of the landowner in such a caflc should the time allowed for the 1·eopcning of the decree have ah·eady expired - is to bring an Ol'dinary action in the ordinary courts of justice for reconveyance, or for damages if the property has passed into the harld-; of an innocent purchaser for value. Mamt6l G. Ah·a.rado for the oppositors and appellants. Manuel G. Manzano for petitioner and appcllee. DECISION REYES, A., J.: On December 19, 1950, Urbano Casillan filed a verified petition in the Court of First Instance vf Cagayan in Cadastral Case Ncr . 26, Hecord No. 2, G.L.R . 0. No. 1390, alleging that he wl!:; the owner of Lot No. 13SO, filed a clai.m therefor in said case and paid all cadastral costs, but that by mi:stdi::e title was issued to Victorino Espartero, who never possessed or laid claim to t he said lot. Petitioner, therefor, prayed that "jn the interest of equity and unde!" Section 112 of Act 496," the oourt order the heirs of Vict.(lrino Espartero - the latter having already died - to reconvey the lot to the petitioner, or merely urder the correction of the certificate of title by substituting his name for that of Victo1·ino Espartero ns registered owner . Opposing the petition, the heirs of Victorino Espartero filed a motion to dismiss on the ground, among others, that section 112 of Act 496 did nC't authorize th2 reconveyance or substitution sought by petitioner; but the court declued the section applicable. And having found, after hearing, that !he lot belonged to petitioner and that title thereto was issued in the name of Victorino Espartero as a consequence of a clerical cnor in the preparation of the decree of registration, the court ordered the reconveyance prayed for. Prom this order, oppositors have appealed to this Court and or.e of the questions raised is that section 112 of Act 496 did not authorize the lower court to order such reconveyance. Stated another w:iy, appellants' position is that the Court of F'irst Instun..:t, in the exercise of it:; jurisdiction as a land re£"istrntion court, had no authority tCI order a reconveyance in the present cuse. The appeal thus rutses a qu~stion of jurisdiction. In view of um· decision in the case of Director of Lands vs. Hegistcr of Deeds et a l. , 49 Off. Gaz., No. 3, p. 935, appellants' contention must be upheld . In th!lt case, the court of land registration had confirmed title in the G<ivcrnm£nt of the Philippine Islands a nd the certificate of title put in the name of the Republic of the Philippines. Acting on the µeti tion, the Court of F irst Iuhncc of Rizal issued the order pra yed for on the authority of sec:tion 112 of the Land Registration Act . But upon appeal to this Conrt, the Ol'der was reversed, this Court holding that the lower court, llS a land court, had no jurisdiction to issue such ordE:r, u the section ciUd did not apply to the c&.se. Elaborating on the att1pe of said section, this Court said: "Roughly, section 112, on which the Director of Lands relics and the order is planted, authorizes, in our opinion, only alterations which do not impair rights recorded in the decree, or alterations which, if they do prejudice such rights, are consented to by all the parties concerned, or alterations to correct obvious mistakes. By the very fact of its inddeasibillty, the Court of Land Registration after one yea r loses its com· petence to revoke or modify in a substantial manner a decree against the objection of any oi the parties adversely affectf'd. Section 112 itself givt s notice lhat it 'shall r.ot be constr ued to give the court authority to open the original decree of registration,' and section 38, which sanctions the opening of a decree within one year from the date of its entry, for fraud, provides that after that period 'every decree or certificate of title h~sued in accordance with this_ section shall be incont rovertible' . "Under the guise of correcting clerical errors, the procedure here followed and the appf'aled ordt!r were virtual revision and nullification of generation-old decree and certificate of title. Such procedure and such order str ike at the very foundation Clf the Torrens System of land recording laid and consecrated by the emphatic provisions of section 38 and 112 of the Lnnd Regis· tration Act, supra. In consorrnnce with the universally-recognized principles which undt!rlie Act No. 49G, the court may not, even if it is convinced that a clerical mistake was nmde, recall a certificate of title after the lupse of neurly 30 years from the date of its issuance, against the vigoi-ous objection of its holder. As was said in a similar but much weaker case than this CGovernment vs. J udge, {;tc ., 57 Phil., 500) ; 'To hold the.t the substitution of the name of a person, by subsequent rtec!"«', for the name or another person to whom a certificate of title was issued (five years before> in pursuance of a decree, effocts only a correction of a clerical error and that the cou1t had jurisdiction to do it, requires a greater stretch of the imagination than is permissible in a ccurt of justice.' 1Syllabus.l It should be Mticed that in that case, as in this case, the later decree 'was based on the hypothesis that the decree of MRy 14, 1925, contained a clerical erl"or and that the court had jul'isdiction to correct such erl"or in the manner afor<!said'. "The sole remedy of the land owner whose property has been wrongfully or erroneously registered in another's namf' is, after one year from the date of the decree, not to set aside the decree, as was done in the instant case, but, resnecting the decref' as inccntrovertible and no longer open to t·eview. t? bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages." In line with the ruling laid down in the case cited, the order herein appealed from must be, as it is hereby, revoked, without prejudice to the filing of an ordinary actiOn in the ordinary e<iurts of justice for reeonveyancc, or for damages if the property has passed into the hands of an innocent purchaser for value. Without costs. Paras, Pnblo, Bengzon, Padilla, llt011temoyor, J ugo, 8a11tista Angelo, Co11ceycion, and J.B. L. R f11/eB. J.J., concur . IX Josefa De Jesus, Pilar De JefllU and Dolores De Jen1.•, Pla.i7ttilfs-A'Ppellants, vs. Santos Belarmino and T eodora Ochoa V e Ju.lia1t.0. !Jefflndan·ts-Appellees, G. R. N o. L-6fi65, J tnte 30, 1954, Boutirla to a parcel of land situated in Ma labon, Rizal, but the correspontling decree and certificate of title were issued, not in the name of the Philippine Government, but in that of the municipality of ltfalabon. Years a fter, lhc Di rcclflr of Lands filed in the originai land registration case n JJCtition fo r an -order to liave the error corrected I. Angelo, J. · SALES; VENDEE WITH ACTUAL OR CON STRUCTIVE Octobc!" 31, 1954 THE LAWYERS JOURNAL KNOWLEDGE OF MISTAKE IN AREA OF LAND BOUGHT, NOT PURCHASER IN GOOD FAITH. - Where the triangular portion of the lot bought by plaintiffs' prede~ssors-in interest was errone.ously included in the lot bought by one of the defendants, and the latter, having actual or constructive knowledge of such mistake, never claimed any right of ownership or of possession of said portion until after the issuance of the certificate of title in their favor, they can not claim to be purchaser in good faith of the portion in question even if they had paid the consideration therefor with the sanction of the Bureau of Lands. 2. COMPLAINTS; DISMISSAL BY MOTION; SUFFICIENCY OF MOTION, TESTED BY ALLEGATIONS OF FACTS IN COMPLAINT; TEST OF SUFFICIENCY OF FACTS ALLEGED TO CONSTITUTE CAUSE OF ACTION. - Where the complaint was dismissed not because of any evidence presented by the parties, or as a result of the trial on the merits, but merely on a motion to di~miss filed by the defendants, ~he 1mfficiency of the mution should be tested on the strenght of the allegations of facts contained in the coinplaint, and on no other. If these allegations show a cause of action, c-r furnish sufficient basis by which t.he complaint can be maiILtained, the complaint should not be dismis.sed regardless of the defenses that may be averred by the defendants. The test of the sufficiency of the facts alleged m a complaint, to constitute a cause of action, is whether or not, admitting the facts alleged, the court could render a valid judgment in accordance with the prayer of said complaint. Nicolas Belmonte and Delfin A.prccio for plaintiffs and appellants. Ang11/. V. Sancli'°'z and Conrado T. Santos for defendants and appellee1'. DECISION BAUTISTA ANGELO, J.: Plaintiffs brought. this action in the Court of First Jn~tance of Laguna to recover a parcel of land containing an area (If 7 ,396 sq. m. claimed to have been erroneously included in Transfer Certificate of Title No. T-129 of the land records of said province issued in the name of defendant Santos Belarmino. The principal allegations of thp complaint, as amended, are as follows : On July 1, 1910, the Bureau of lands sold to Timoteo Villegas Lot No. 400 of the Calamba Estate containing an area of 83,579 sq. m. situated in barrio Parian, Calamba, Laguna, at a price payable in 20 annual installments. Since then, Villegas has been in possession of said lot. On January 11, 1915, Villegas sold his right and interest in Gaid lot to Petrona Quintero by virtue of a certifkatP of sale which waf. duly approved by the Bureau of Lands. The purchaae price of the lot was paid in full on September 30, 1931. Petrona Quintero died in 1933 leaving as heirs her <faughters Josefa de Jesus r.nd Pilar de Jesus and her granddaughter Dolores de Jes us, who bc>came the owners by ~uccession of the lot. These heirs are now the plaintiffs herein. Santos Relarmino, one of the defenrtants herein, also pi;rchased from t!1e Bureau of Lands en :nstsllment basis !! portion of thE> same estate known as Lot No. ll211 containing an area o! 61,378 sq, m., which was adjoining Lot No. 400 purchased by Timoteo Villegas. When the cadastral survey of the propc>rty covered by the Calamba Estate was ordered, a r elocation was made of Lot No. 400 and Lot No. 3211 with the result that the latter was subdivided mto Lot No. 8211-N, Lot No. 4639, :md Lot No. 4640, but !n maKing the subdivision n triangular portion with an area of 7,896 sq. m. which originally formed part of Lot No. 400 was erroneously included in the plan and description of Lot No. 4639. Said t.riangular portion was not part of the lot sold by the Bureau of Lands to Suntos Belarmino but. of the lot s:.ld by said Bureau to Timoteo Villegas. Without any judicial prooeedings or court order, the Registe~ 1.1! Deeds of Laguna issued Transfer Certificate of Title S o. T-129 covering the lot originali)' bought !rorD the Bureau of Lands by Santos B<:larmino which, as abow stated, errone.lusly included the triangular portion referred tc.. in the prtteding paragraph. an<i said transfer certificate of title was iASUed in the name of Sa:i.tos Belarmino as to 21,776 sq. m. 11.nd of Epifania Amaterio as to 8,000 sq. m. When thE> two lots mentioned above were sold by the B11reau of Lands to Timoteo Villegas and S.mtos Belarmino as above stated, the Government did not have any certificate of title specifically covering said lots, its only title lx>ing Original Certificate of Title No. 245 which covers t he Calantba Estate, so when Transfer Certificate of Title No . T-129 was issued to Santos Belarmino and Epifania Am::i.torio, the Bureau of Lands did not rely on any title other than Certificate of Title No. 245 covering the Calamba Estate. When Epifania Amatorio dieci, her interest was inherited by Teodora Ochoa de Juliano, who is now in actual possession of the portion of 8,000 sq . m. which waa inherited b)' her, but defenc!ant Santos Belarmino is in possession of the portion adjoining the triangular portion now in question and he alone claims right to said triangular portion. Santos Belarmino and his co-defendant Teodora Ochoa de Juliano never exercised any right of ownership nor possession over said triangular portion because the same had always been in the continuous, open, public, notorious, and adverse possession of th~ predecessors-in-interest of the plaint iffs a s ex· elusive owners thereof. The compl:iint further alleges that the herein defendants, or their predecessors-in~interest, know all the time that the tr iangular portion in question was not part of the lot sold by the Bureau of Lands to Santos Belarmino, but on the contrary they know that said portion always formed part of the land sold to the predecessora-in-interest of the plaintiffs, and that dcfendant Santos Belar mino nenr claimed any interest in said portion except Eometime in March, 1952 when said defendant claimed for the first. time that said portion was included in the certificate of title issued in his favor by the Regi!lter of Deeds. Because of the error above pointed out, plaintiffs pray that they be declared as owners of the triangular portion above adverted to and that Certificate of Title No. T-129 issued in favor of Santos Belarmino be rectified by excluding therefrom said triangular portion. And making the Director of Lands as part'y defendant, plaintiff also prny that he be ordered to take the necessa ry steps to have a certificate of title issued in their favor covering the lot originally purchased by their predecessors-in-interest, since the purchase pr icE> thereof had been paid in full, and in the event that the triangular portion in dispute be not included in said title, the Director of Lands be nrdered to pay to the plaintiffs the amount of P7,396 as vnluc thereof, plus the costs of action. Defendant Santos Belarmino filed a motion to Jismiss alleging in substance thnl, assuming that u por1ion Jf the land owned or occupied by plaintiffs predecessor,,;-in-intcrest was erroneously in· eluded in the title issued to the deff::ndants when the latter buught a portion of the Calamba Estate 0"''1led by the Government, the Cefcndants should not be blamed for that mistake thern being no showing tlrnt they were instrumental or a n accomplice in the rommission of th:it misti.kc, aside from th<! fact that the title issued to them as grantees :Jf public land is as indefeasible or inccmtrovertible as&. titlr· issued under the Land Regirtration Law. The lower cc•urt uphold this contention and in :'In order issued on October 30, 1952, it held that the complaint does n'>t state a cause of action because the defo::ndants are holders of a certificate of title issued by t he Government a.nd as such they should be con· sidered as third parties who acquired the property in good faith and for considf'ration. 11.nd so it dismissed the complaint without pronouncement as to costs. Plaintiffs have taken the present appeal. It is ou:- opinion that the complaint, as ::imended, contain facts sufficient to constitute a cause of action or to sen-e aio basla f nr gr :uiting the relief prayed for by t he plaintiffs. A cursory readb12 THE LAWYERS JOURNAL October 31, 1954 TION BY COURT OR ADVERSE PARTY. - It ia the abeolute prerogative of the plaintiff to d 1 oose the theory upon which he predicates hi! right of action, or the pa rties he desire. to 1ue, without dictation or imposition by the court or the adverse party. Jf he makes a mistake in the choice of his r ight of action; or m that of the parties against whom he seeks to enforce it, that iii his own concern as he alone iruffers therefrom. ing of the complaint will Rhow that both Timoteo VHlegas, predecessor-in-interest of £he plaintiffs and Santos Belarmino, one of the defenrlp.nts, JJUrchased from the Rureau of Lands two Jots each, the former Lot No. 400 cnntaining 1>.n area of 83,579 sq . m. , snd the latter Lot No. 3211 containing an area of 61,578 sq. m.; that Lot No. 400 included the triar.gula1· portion now in question, and not Lot No. 3211, and that si.r.ce the date of it.I:! salf' to Timoteo Villegas, the latter had been in possession of Lot No. 400, :~. mcluding the triangular portion; that, in a re-survey made of those ID.; JD.; I D.; REMEDY OF OFFICERS SUED WHO DESIRF. TO IMPLEAD MEl!lHERS OF UNREGISTERED COFPORA· TION-THIRD PARTY COMPLAINT. - Where the plaintiff sue<l the officers alone, and the latter desire to implead the memberi.i of the unregistereJ corporation and m'.lke them equally responsible in the action, their remedy is by means of a third party complaint, in accord!lnce with Rule l:l of the Rules of Court. But they can not, crimpel the plaintiff to choose his defendants. He may Mt, at his own expense, be fo rced to implead any one who, under adverse 1iarty's theory, is to answer for the defendants' liability. Neither may the court compel him to furnish the means which defendants may avoid or mitigate their liability. lots in accordance with the cadastral law, Lot No. 3211 was subdivided into lots 3211-N, 4639, and 4640; that the original area of Lot No. 3211 was 61,578 sq. m., but after its subdivision into three lots, their total area was increased to 67,808 sq. tn., or a difference of 6,230 sq. m., with the result that the arl!a of Lot No. 400 became 76,591 sq. m. instead of its original area of 83,579 sq. m.; that defendant!:! know all the time that. the trlan gular portion in question was included in the sale made way back in 1910 by the Bureau of Lands to Timeoteo Villegas and not in th(, salP made in the same year by said Bureau to Santos · Belarmino, a s they likewise well knew that the lot bought by Timoteo Villegas, including the triangular portion, had always bc~n in continuous, open, public, notorious, and adverse possession of the plain- 4. tiffs and their predecessors-in-interest as exclusive owners. ID.; ID.; ID. ; ID.; I NDISPENSABLE PARTY AND PARTY JOINTLY OR ULTIMATELY RESPONSIBLE FOR OBLIGATION WHICH IS SUBJECT OF ACTION, DISTINGUISHED. -Where the complaint .specifically alleged that the defendants, purporting to be the president and general manager of an unregi!'\tered corporation, entered into the contract by themselves, the presence of the members of the association is not essential to the final determination of the issue presented, the evident intent of the complaint being to make the officers directly responsible. <Article 287, Code 'Jf Commerce, supra). The alleged responsibility of the m«rnhcrs for the contract to the officers, who acted as their agents, is not in issue and need not be determined in the action to fix the responsibility of the officers to plaintiff's intestate, hence said members are not indispensable in the action instituted. The foregoing facts unmistakably show: tll that the lot bought by plaintiffs' predecessors-in-interest included tl1e triangular rmrtion in dii;pute; <2) that said triangular portion was erroneously included in the lot bought by Santos Belarmino in a re-survey inade by the Bureau of Lands years later; <3) that defendants knew, or had actual or coJLstructivc knowkdge, of such mistake; and (4) de-fendants never claimed any right •if ownership or of pos:;ession of said portion until after the issuance of the title issued to them in Hli>2. Under these facts, it is obvious that defendant!: cannot claim to be purchasers in good faith of the J:M)rtion in que:stion Pven if they had paid the cOnsider:iticr. therefor with the sanction of the Bureau of Lands. (Cui & Joven v, Henson, 51 Phil, 606; Legarda & Prieto, 31 Phil. 590; Angeles v . Samia, 66 Phil. 444. ) It should be borne in mind that the complaint was dismissed not because of any evidence presented by the parties, or as a result of the trial i:m the merits, but merely on a motion dismii;s filed by the defendants. Such being the case, the sufficiency of the motion should be tested on the strength of the allegations of facts contained in the complaint, and on no other, If these allegations show a cause of action, or furnish sufficient basis by which the complaint cn.n be maintained, the Ci!mplaint should not be dismissed regardless of the defenses that may be averred by the defendants. It has been said that the test of the sufficiency of the facts alleged in a complaint, to constitute a cause of action, is whether or not, 3dmitting the fats alleged, the court could render a ve.lid judgment in accordance with the prayer of said complaint. <Paninsan v. Costales, 28 Phil. 487; Blny v, Batangas Transportation Co., 45 0. G. Supp. to No. 9, p. 1,) In our opinion, the allegations of the instant complaint are of this nature, and so the lower court enecl in dismissing it. Wherefore, tht- order appeakd from is set aside, The Court orders that this case be remanded tC" the lower court for further procecdingE, without pronounct-ment as to costs. pa,,·as, Pablo, Be11,r1zon, Paclilla, Montemayor, A. Reyes, J1t90, Labrador and Coneepcio11, J.J. x Teodoro Vallo, Petitio11er, vs. Hipolito Alo, as Judge of the Court oj First lnstancf! of Bohol, Pedro Dumadag and Esmenio Jumarnuy, Ne.~po~tdtmts, G. R. No. T...-7220, July SO, 1954, Labrador, J. 1. PARTIES; IMPLEADING OF REAL PARTIES, APPLICABLE TO PAHTIBS PLAINTIFF ONLY. - The rule requiring real parties to be impleaded is apph<.able to partieF- plaintiffs, not to parties defendant. :l.. ID.; ID. ; PLAINTFF CAN CHOOSE CAUSE OF ACTION AND PAHTIES HE DESIRES TO SUE WITHOUT IMPOSIRoque R. Lwipo for the petitioner. Victoria:no Tirlll for the respondents. DECISION LABRADOR, J.: Petitioner instituted this acti.in of certiorari to reverse an order of the Court of First Instanr.l: of Bohol refusing to admit hi! fourth amended complaint. The record discloses the following facts and circumstances ns a backg round for the petition: Around the yPar 1947 respondents herein Pedro Dumadag and Esmenio Jumamuy, purporting to be the president and general manager, respectively, of an unregistered corporation or association denominated APHA Cinematographic Shows, Inc., leased certRin theatrical eqmpments from the late .Jose Vaiio at an agreed monthly rental of P200. Jose Vaiio having died, his administrator, the pr& sent petitioner, filed an action in the Court of First Instance of Bohol for the return of the theatricel equipments and the payment of the agreed rentals. The -original complaint was filed in September, 1947. Upon the filing of this complaint tl>e association wa9 dissolved. Counsel for the defl'ndnnts below, respondents her~in, appears to have insisted that all the members of the association should be made parties defendants, but petitioner was not inclined lo do so. On J r.nuary 28, 1953, the court ordered petitioner'! •:ounsel to submit a fourth amended complaint. This complaint in part alleges: 2. That in or about Felm.:ary 1947, defendant pur porting to be the µresident and gt:ncral manager respectivP]y of the so-called "APRA" Cinematographic Shows Inc., leased from the late J ose Vniio, the aforementic>ncd Theatrical Equipment,. at an ngr<!l:d monthly rental of 1'\VO HUNDRED (200.00) PESOS, and that he <J ose Vaf10) shall PliY the expenl'es in the in•t.allat.ion, for the same shall be returned on' his demand. ; S. That said Theatrical Equipments mentioned in paraOctober 31, 1954 THE 1.AWYERS JOURNAL· 618 graph 1, harl been completely installed at the beginning of the month of 1''ebruary, 1947, at the " APBA" building Calape, Rohol. and since then the said 11how house beiUn its operation; 4. That up9n inquiry, the JJlaintiff was informed and so allege that the "APBA" Cinematographic Shows Inc., has never been registered, hence Dumadag anrl J umamuy who acted as the president and general manager respectively are the once made a s party defendants: Plaintiff did not include the members of the unregistered corpvration as p:irtics defendants. an<'l so they were not summoned. On September 14, Ul53, the court ti quo entered the order complaint>d of, which is as follows: The aseociation represented by defendants Pedro Dumadag and Esmenio Jumamuy, is not included a3 party clefendant in the fourth amended complaint. It is a legal requirement that any act!on should be brought against thr, real party in interest. In view of the opposition fi led by the defendants PedrO" Dumadag and Esmenio JumamuY, the court denies the admission of plaintiff's fourth amended complaint dated February 17, 1953, and objected to on the date of the trial. The fourth amended complaint <paragraph 2, supra) allegt>s that defendants, purporting to l:e tht: president and general manager of the unrcg-istered corporation, leased the theatrical equipments fr(lm the plaintiff, petitioner herein. Said defendants, according to the complaint, did not enter intc thr. contract in the name ·or on behalf of the corporation; consequently, the law applicable ls Article 287 of the Code of Commerce, which provides; of an action. The members <'f the unregistered corpon.tion could be responsible for the rental of the equipments jointli with thcir officers. But the complaint specifical.ly alleges th:it SAid office.rs entered into the contract by themselves, hence the presence of the members is not essential to the final determination of the iuue presented, the evident intent of the complaint being to make the officers directly responsible. CArticle 287, Cc-de cif Commerce.. supra.) The alleged responsibility of the members of the corporation for the contrict to the officers, who acted as their agents, is pot in issue and need not be determined in the action to fix the responsibility (If the officers to plaintiff's intestate, hence said members are not indispensable in the action instituted. WC! find that the trial court abused its discretion in refusing to admit plaintiff's fourth amend('d -:omplaint. The writ prayed for is hereby granted, the order e<1mplained of reversed, and the complaint ordered admitted, and th£ court a q1to is hereby directed to proceed thereon according to the rules. With costs against respondents Pedro Dumadag and Esmenio Jumamuy . Paras, Pablo, Beng=ou., Padilla, Montemayor, Ale~ Reyn, Jugo, Bautistri Angelo, Concepcio11 and J. B. L. Reye$, J.J., concur XI The People of the Philippines, Plaintiff-Appellee, vs. Ant0'1'lio Samaniego y Yoimg alias S11 Liong Bok alias Tony, Defendrint· .A_ ppellant, No. L-6085, Jnne 11, 1954, Concepcion, J. The People of the Philippines, Plaintiff-A ppellec, vs. Ong fnf1 alias Cre.~encio Ong, and Alfredo Torres y Sagaysay, Defendant.1ppellant, No. L-6086, June 11, 1954, Co:ncepcion, J. Art. 287. A contract entered into by the facl:(lr in his own name shall bind him directly to the person with whom it was made; but if the transaction was made for the account of the 1. principal, the other contracting party may bring his action either against the factor or against the principal. EVIDENCE; "RES I NTER ALIOS ACTA". - The testimonies of peace officers for the prosecution in other criminal cas<>s which were dismissed upon the ground that the confessions obtained by them, in connecti-.n with those cases, wC>re tainted with irregul:lrities are res mter alios acta and are not admissible The oppositicn of the responde:"lts to the admission of the fourth amended complaint is procedural in nature, i.e., that notwithstand· lng the fact that the APBA was not registered, all its members should be included as parties defendants as provided in section 15 oi Rule 3 of the Rules of Court. The trial court was of the opinion , ~n evidence. Y. JD.; ID.; ALIBI. - The uncorroborated testimony of one of the appellants that he was toick at home, when the offense charged was committed, cannot offset the J)()Sitive testimony of witnesses who saw him near the scene of th.:: crime. that the inclusion of the members was necessary as it considC'red them as "real parties in interest." In this respect, the trial court committed an error as the rule requiring real parties to be im· pleaded is applicable to parties plaintiffs, not to parties defendants. 3 · ID. ; CRIMINAL PROCEDURE; NEW TRIAL; NEWLY DI SCOVERED EVIDENCE. - Where the alleged newly discovered evidence merely tends to corroborate appellants' alibi to the effect that they were not present at the scene of the crime and could not have participated in its commission, the motion for new trial should be denied. It is the absolute prerogative of the plaintiff to choose the theory upon which he predicates his right of action, or the parties he desires to sue without dictation or imposition by the court or the adverse party. Tf he makes a mi!'takc in the choice of his ~!g~~r~!c:c:!~";h~; ii; 1~:at0;! ~::c~:.;ti:: ~~a:i~~ew;:;;e:ae t~::~~ 4. ID.; ID.; ID.; EVIDENCE INSUFFICIENT TO OFFSET THAT FOH THE PROSECUTION WHICH HAS BEEN POSITIVELY ESTABLISHED. - The testimony of the new witness for the appellants to the effect that they were the authors of the crime charged and that no other persons could have committed it can not offset the positive testimonies of two unbiased witnesses for tl'ie prosecution that they have st>en the appellants at the place of the occurrence at about the time of th~ perpetration of the offense charged, testimonies which were partly corroborated by one or the appellants himself. from. Granting that the members of the unregistered corporation may be held responsible, partly or wholly, for the agreement enter· ed into by the officers who acted for the corporation, the fact remains that the plaintiff in the case at bar chose not to implcad them, suing the officers alone. If the officers desire to implead them nnd make them equally responsible in the action, their remedy is by means of n third party complaint, in accordance with Ru!~ 12 of the Rules of Court. But they con not compel the plaintiff to choose his defendants. He may not, at his own expense, be forced to implead any one who, under adverse party's theory, is to answer for the defendants' liability. Neither may the court compel him to furnish the means by which defendants may J.void or mitigate their liability. This was in effect. what counsel for respondents wanted to compel the petitioner to do, and which the court wns persuaded to do force the plaintiff to include the members of the unregistered corporation a& parties defendants and when plaintiff refused to do so, it registered his fourth amended complaint. The court's or<ler, in so for a:. it demands the inclu<iion of the members of the unregistered corporation, has evidently been induced by a confusion between an indispensable party and o. party jointly or ultimatC>ly respom.ible for the obligation which is ~he subjE:ct Si:cto S, J. Carlos, Guillermo S. Santos, Eleuterio S. Abad, and Constantino B. A costa for the defendants and appellants. Gaudencio C. Cabacungan for defendant Antonio Samaniego. Solicitor General ,111an R. Liwag :ind Assistant Solicitor Gen6"'a/ Francisco Carreon for the plaintiff and appellee. DECISION CONCEPCION, J.: Un April 28, ) 950, at about 11 :00 p.m., the dead body of Ong Tin H11i wns found gagged and blindfolded in the Oxford Shoe 61'1 THE LAWYERS JOURNAL October 31, 195.i Emporium, at No. 329 Carriedo Street, Manila, where he wae working, with his wrist. tied and a cord around his neck. The medical examiner found, on said body, the following: "Lacerations, auricular and occipital arteries and vein11. Lacerations, superficial, cerebral veins, basal portion, brain. Marked congestion and edema, lungs, bilateral. Old pleural adhesions, lungs, right. Congestion, spleen. Congestion, pancreas. Congestion, kidneys, bilateral. Hemorrhages, diffuse, huhdural and subarachnoid, specially base, brain. Fracture, cribiform plate, ethmoid bone of cranium. Wounds, lacerated, multi!lle CZ> forehead. Wounds, lacerated, temporal region, left. Wound, lacerated. splitting, extermalacar, pinna, left. Wounds, (2) lacerated, with extensive, contusion, scalp, posterior occfpital region, head, left. Wounds, iaCerated, multiple <2> extensive, scalp, with contusion hematoma, occipital-parietail region, posterior head, right. Tight-gag, mouth, and tight blind fold (piece of cloth), face. Strangulation by cord, neck. Tight cord around both forearms and wrist joints. Cause of Death: Asphyxia and diffuse subarachnoid hemorrhage specially over the base of the brain due to suffocation by tight gagging of the mouth and whole face with cloth, and multiple laceration injuries by blows on the head and face:" <Appellants' brief, p. 31>. The peace officers who investigated the matter were tipped that Ong ·Tin Hui had an enemy by the name of Go Tay, whose brother-in-law, ·Ong Ing, had the reputation of being a tough guy and was unemployed. Upon questioning, Ong Ing, who, sometime later on, was seen loitering 11round Carriedo Street, stated that, at about the time of the occurrence, he had seen Alfredo Tones, one Antonio Tan and a Filipino whose name he did not know, coming from the Oxford Shoe store'. Hence, Alfredo Torres, whose whereabouts were located with the assistance of Ong Ing, ~·11.s nrrest~d. Upon investigation, Torres, in turn, declared that Ong Ing had participated in the commission of the crime. When Ong Ing and Alfredo Torres were made to face one another, they mutually recriminated und incriminated each other. Moreovet, Torres, Ong Ing alias Cresencio Ong nnd Go Tay made their res)Jective statements in wdting, Exhibits X, W and Y, implicatin<? one Tony. Upon examination of the pictures of police characters in the files of th<' Police Department, Ong Ing and Torres identified the picture of one bearing the name of Antonio Tan, as that of Tony. Antonio Tan turned out to be known, also, as Antonio Stt.maniego, alias Sy Liong Tok, who, on June 15, 1930, was arrested in Mnpirac. Naga, Cnmnrines Sill·, where he went late in May, 1950. Upon being questioned by the police, Samaniego rleclared substantially, that he was merely posted, as guard, at the door of the Oxft.Jrd Shoe Emporium, during the commission of the crime charged, and that thereafter, he received from Alf1.:do Torres a certain sum of money as his share of the loot. Samaniego, likewise signed the statement Exhibit CC. As a consequence, three criminal cases for robbery and homicide were instituted in the Court of First Instance of Manila, namely: Case No. 12734, against Ong Ing and Alfredo Torrt's y Sagaysay; Case No. 12941, against Antonio Samaniego; and Case No. 13031, ngninst Ang- Tu alias Go Tay. After entering a plea of "not guilty," which was subsequently withdrawn, Ong Ing was allowed to plead, in lieu thereof, and, after bemg carefully Informed by the court of the serious nature of the charge and uf the poqible consequences of his contemplated step, did plead, "guilty," with the understanding that he would introduce evidence on the pruentt of some ruitigating circumlrtances. Upon the presentation of aaid evidence, Ong Ing was sentenced t.o life imprisonment, with th• accessory penalties prescribed by Jaw, to indemnify the heirs o! th• deceased Ong Tin Hui in the sum of !"5,000, without subsidiary imprisonment in case of insolvency, end to pay one-half of the costs - which sentence is now being served by him. In due courae., the Court of First Instance subsequently rendered a decision convicting Alfredo 'Dorres and AnWnio Samaniego, as principal and as accomplice, respectively, of the crime charged, and sentencing the former to life imprisr.nment, and the latter to an indeterminate penalty ranging trom 8 yP.ars and 1 day of prisiOTt mayor to 14 years, 8 months snd 1 day of reclusion temporal, with tht acces~ory penalties provided-by law and to jointly and severally indemnify the heirs of the deceased Ong Tin Hui in the sum of !"5,000 and the Oxford Shoe Emporium in the sum of !"104, and, Alfredo Torres to pay one-half of thf! coEts in case No. 12734, and Antonio Samaniego the costs in case No. 12941, and acquitting Ang Tu alia.r Go Tay upon the ground of insufficiency of evidr.nce, with costs de oficio in casr No. 13031. Torres and Samaniego have appealed from said decision. It is not disputed that the Oxford Shoe Emporium was burglarized and Ong Tin Hui killed therein by the thieves in the Eivening of April 28, Hl50. The only question for determination in this case Dre: CH . whether appellants f.nmed part of the group that perpetrated the offense, and <2> in the affirmative case, the nature of their participation therein. The evidence thereon consists of the following: Ca> Ong Ing, alia..r Cresencio Ong, testified that, pursuant to instructions of Ang Tu, alias Go Tay, who begged him to look for thugs to kill Ong Tin Hui, he <Ong Ing) sought appellants hereit1; that Ong Ing gave Samaniego thE: sun\ of f200, which had come from Ang Tu; that, upon hearing of the latter's plan, Samani<!go remarked that Ong Tin Hui should really be killed, he being his cSamaniego's) creditor; that both nppellants agreed to go t.o tho> Oxford Shoe Emporium in the eve11ing of April 28, 1960; that on the way thereto, said evening, Samsni<'go suggested t.he advisability of finding a good excuse to knock at the door, in order that his companions could enter the store; tlrnt upon arrival thereat, Samaniego knocked at the door, which was CJpencd by Ong Tin Hui; that, thereupon, TC'rres. anothf!r Filipino and one Chinese, whose name was not given, entered the store; that the unnamed Filipino expressed the wish to go to the toilet, for which reason Ong Tin Hui led him to said place; that, thereupon, the former struck the latter, from behind, with a piece of wood; that To1Tes tied the hands of Ong Tin Hui, whom Torres and the other Filipino drngged to the kitchen; that when Torres aud his companions left the store, they stated that Ong Tin Hui was dead already; and that, soon later, they went to the house of Tones at Grace Park, where the loot of M04 was divided. Cb> Nazario Aquino and Apolinario Ablaza, watchman and inspector, respectively, of the PAMA Special Watchmen Agency, dP.clared that, on April 28, 1950, between 10:00 and 11:00 p.m., Aquino saw Torres at Baz.ar 61 in Carriedo Street, whereas Ablau met said appellant near the Alcazar Building, in the same street; that Aquino cbatted with Torres, who said that soon he could buy whatever. he needed, for he would gt>t his backpay; that Torres WIUI perspiring and his hair was ruffled when Ablaza saw him; that, that evening, Aquino, likewise, saw appellant Samaniego, wiilt four companions, at the corner of Carriedo and P. Gomez streets, and this was admitted by Samaniego; and that Samaniego greeted him on that occasion. Cc> In his extrajudicial statement <Exhibit C>, Torres declared that, pursue.nt to a previous understanding, he, Samaniego. Ong Ing, and others gathered at the Cliners Restaurant, where it wu agreed that Torres would disuade the 8pecial watchm~n from patroling the vicinity of the Oxford Shoe Emporium; that Samaniego knocked at its door at about 10:45 p.m.; that while Samaniego and Torres October 311 1954. THE LAWYERS JOURNAL ''" atood on guard outside, Ong Ing, the unnamed Filipino, and another Chinaman, entered the store; that after leaving the store, the group proceeded to the house of Torres, where the st.olcn money was divided; and that the blood stains found in his trousers and coat (Exhibits Mand N J, must have been caused by the umiamed Filipin"l, who had blood in his hands. Cd) Detective Lieutenant Enrique Morales and Detective Corporal Jose Sto. Tomas, testified that upon investigation, Samaniego i;tated that he was merely posted at the door of the Oxford Shoe Emporium during the occurrence. (e) In his extrajudicial confession <Exhibit CC), Saman;E-go declared that he h:id known Ong Tin Hui since August 1949, beC3t1Se the Oxford Emporium wac; behind the store where said appellant used to. wcrk; that he was not im.irle the Oxford Shoe Emporium, but merely stood on guard at its door when tl1e crime was committed; that Ong Ing gave him P200, which came from Ang Tu, in order to induce Jijm to kill Ong Tin Hui; and that, after the occurrence, he received !'23 or P-24 as his share of the loot. · (f) In his extrajudicial statement lExhibits W and AA), OngIng said that, in addition to agreeing to participate in the commission of the crime, Samaniego hsd suggested that it be perpetrated on a Friday; that it was Samaniego who knocked at the · door of the Oxford Shoe Emporium in :irder that his cor.1panions could enter the store; and that Torres was one of those who particinated in the commission of the crime charged. (g) Jn Exhibits X and DB, the extrajudicial confessions of Torres, stated that besides knocking at the door of the Oxford SCoe Emporium, Samaniego received P26 as his share of the stolen money. Torres likewise identified Samaniego's pieture, Exhibit, J. lh) The sales book Exhibit S, and the cash slip booklet anrl cash slips of the Oxford Shoe Emporium (Exhibits S, T, T-1 to T-16, U and U-1 to U-1:3), show that the sales made in said store on April 28, amounted, at least, to f'104.00, thus corroborating the foregoing evidence on the amount of money taken from said store and divided among th9sc who perpetrated the offense charged. Appellants ckim that the nforemcntioned statements were St:curcd from them by members 'lf the police department thr'lugh duress. In the language, however, of His Honor, the Trial Judge, this pretense cannot be sustained, for: "First, the written statements of Torres and Samaniego, taken by question and answer, are too rich in details which only they themselves could furni sh. It will be readily seen that in thdr respective statements each of these two defendants attemnted as best he could to minimize the gravity of his participation in the crime. This is specially true in the case of Samaniego - the morP intelligent of the two - who had finished tl1e second y~ar course in Commerce. If really the Police office:rs tort1trcd the two defendants and manufactured their statements, the cou1·\. has no doubt 'tl1nt the responsibility of the latter would have been placed in black and white in their respective statements. "Second, anothe1· proof of weight against the claim of torture is the case of defendant Go T::iy alias Ang Tu alias Kiko. The known theory of the police ia that Go Tay was the instig11.tor of the crime. In the eyes <;f the police, he was the whale; Torres and Samaniego, compared to Go Tay, were but mere winnows . A written statem(lnt of Go Tay (Exhibit Y) was taken. The statement Exhibit Y reflects all that Go Tay reRllv stated to the investigator. Go Tay said so in court. No inculpntory answer appears therein. This shows that. the police officers did not inject into that statement facts which would bring about the conviction of this principal defendant. Yet, when Go Tay afterwards changed his mind and refused to sign the stutement, no force was exerted against him - lt remained unsigned. "Thirrl, in t11e ease of Torres, he himself stated in court Wint he did not sign a- document pt·esented to him whenever hf' did not WRnt to. (Tr. pp. 1077-1079). "Fourth, in the case of Samaniego, the court observed that he speaks Tagalog rather fluently. <Tr. p. 1309> . He re.ada and writes English. He can not say that he did not know the contents of his own statement, because if he reads English and he speaks Tagalog, undoubtedly he oould read Tagalog words." <Decision, pp. 50-51, appellants' brief>. lBrief of the Solicitor General, pp. 10-11 •. Appellants insist that the testimonies of Lieutenant Morales an1'. Detectives Sto. Tomas, Walker, Alday and Gorospe, to the that said statements were made freely and \"oluntarily, do not deserve crf'dence, said pe'lce officers having testified for the prosecution In other criminal cases which were e\'entually dismissed upon the irround that the confessions obtained by them, in connection with these cases, were tainted with irregularities. But, the evidence sought to be introduced by the defense, in support of its aforementioned pretense, was not :'ldmittcd by the lower court, and the ruling thereof is not assailed in appellants' brief. At any rate, what those witnesses did or said in relation to other cases is Tes inter alias acta and, as such, irrelevant to the case at bar. Appellants have set up their respective alibis. Torres said that he was sick at home, when the offense charged was committed. Obviously, his uncorroborated testimony cannot offset the incriminating evidence already adver_ted to, particularly considering the positive testimony of Aquino and Ablaza, who saw him at Carriedo Street, near the scene of the occurrence, at about the time of the perpetration of the crime. As regards Samaniego's alibi, we fully agree with the view of the lower court thereon, which we quote from the :lecisior. appealed from: "Weaker still is the alibi of dC'fendant Samaniego. Samaniego testified in court that he went to Quiapo Church at around 8:30 in the evening of April 28, 1950; that after a few minctes there he went out and passed by Calle Carriedo; tfiat he then proceeded to Avenida Rizal where he purchased a newspaper and thereafter went to Cine Capitol; and that ho! left the show before 11 o'clock in the evening. This admission of Samaniego by itself alone is sufficient w overcome his defense of al1hi. The reason is t.hat he could ht.VE: been in the sc.cnc of the crime at the time of the commission thereof." <Appellants' brief, p. 50>. It is clear from the foregoing that the lower court hM not erred in rejecting said alibis and in convicting appellants herein as above stated. - In a motion filed before this Court, during the pendency of the present appeal, appellants pray for a new trial upon the grounrl of newly discovered evidence consisting of the testimony of Narci"o de la Cruz and Enrique Mojica, whose joint affidavit is attacht>d to said motion a.:> Annex C. Affiants declare therein th11.t they a .. e ~erving sentences, De la Cruz, of imprisonment for 20 years, for tht. crime of robbery with homicirl.e, and Mojica of imprisonment £0r l'l years. for robbery; that they nae the assasins of Ang Tin Tiui; that n'l other persons have com•'l\!tted said crime; and foat C:ey perpetrated the eame at the insti,t!'ation of Ong Tu alias Go Tav Upon careful consideration of said motion for new trial, we are clearly of the opinion, and so hold, that the same should be, aa it is hereby, denied, for: 1l The allegedly newly discovered evidence is merely corroborative of appellants' alibis. It :nerely tries to strengthen appellants• evidence to the effect that they were not present af the scene of the crime and could not h~vP partiC'ipated, therefore, in its rommhisiou. 2) Even if introduced in evidence, the testimony of Narci!o Dt la Cruz and Enrique Mojica would not, in all probability, affect the result of the case. Considering the source of said tcstimon}· ; the fact that the presence of appellants at the place of the occurrence, at about the time of the perpetration of the offense chargpd, h'.'!..s been positively estabilshed by the testimony of two unbiased witr.esses, Nazario Aquino and Apolinario Ablaia, who were partly corroborated by the testimony o! appellant Samaniegc; and the circumstance that, credence .:annot be given to the ter.timony of THE LAWYERS JOURNAL October 31, 19S. sa1d affianh without asrominq that Ong Ing had pleaded guilty of, and is willingly serving sentence for, a crime he had not cozr.mitte.J, 1he allegedly newly discovered evidence is, to our mind, insufficient 11.J effect the evidence for the prJsccution, or even to create 11 rt'aEonable doubt •'.>n appellants' guilt. Moreover, as we said in eas" G. R. No. L-5849, entitled "Peo1,Je vs. Buluran," decided Ma} 24, 1954: "x x x for some time now this Court has been receiving, in connections with cr iminal ~kSP.I! pt-nding before it, a num~1 of motions for new trial, simil!lr to the one under con3ideratir.m, based U!JOn affidavits of pm1or.us - either se1'Ving sentenct11 Clike Torio and Lao) or merely under preventive detentiPn, pending final disposition of the charges against them - who, in a sudden display of conc~rn for the dictates of their conscience - to which they consistently turned deaf ears in the past - assume responsibility for crimes of which .others have been found guilty by competent courtlil. Although one might, at first, be impressed by said affidavits - particularly if resvrt thereto had not become so frequent as to be no longer an uncommon occurrence - it is not difficult, .on second thought, to realize how desperate men - such as those already adverted to - could be induced, or could even offer, to make such affidavit.!, for a monetary consideration, which would be of some help to the usual!y needy family of the affiants. At any rate, the risks they assume thereby are, in many cases, purely theoretical, not only because of the possibility, if not probability, of establishing <in connection with the crime for which respMsibility is assumed) a legitima~ alibi - in some cases it may be proven positiYely that the affiants cculd not have committed s~id offenses, because they wer~ actually confined in prison at the time of tht> iccurrcnce - bat, also, because the evidence alr~ady introduced hy the prosecution may be too strong to be offset by a reproduction on the witness stand of the contents of said affidavits." Wherefore, the deciskm appealed from is hereby affirmed, the same being in accordance with the facts and the Jaw, with cost11 against the app21lanta. IT IS SO ORDERED. Paras, CJ., and Pablo, J., XII S. N . Picornell & Co., Plainti{f-Appellee, vs. Jose M. Cordova, Dl;!fendunt-Appellant, G. R. No. L-6338, August 11, 1954, J. B. L. Reyes, J. 1. JUDGMENTS; WHEN JUDGMENT BECOMES FINAL: PERIOD OF LIMITATIONS BEGINS FROM DATE OF ENTRY OF FINAL JUDGMENT. - An appealed judgment of a Court of First Instance in an original prewar case does not become fina l until it is affirmed by the Court of Appeals, precisely beca1ose of the appeal interposed therein; hence the period of limitation does not begin to run until after the Court of Appeals denies the motion to reconsider and final judgment is entered (old Civil Code Art. 1971; new Civil Code Art. 1152). 2. ACTIONS; ACTION TO REVIVE JUDGMENT, WHEN BARRED BY PERIOD OF LIMIT A TIO NS. - In this case. from the date the final judgment was entered until the present proceedings were commenced on January 16, 1950, less than ten years have elapsed, so that the action to revive the judgment has not yet become barred (sec. 43, Act 190; 31 Am, Jur. p. 486). 3. ID.; DEFENSES; MORATORIUM ACT, NO LONGER A DEFENSE. - Republic Act No. 342, known as the Moratorium Act, having been declared unconstitutional, by this Court in Rutter vs. Esteban (49 Off. Gaz., No, 5, p. 1807), it may no longer be invoked as a defense. FutgenC"io V ega for defendant and appellant. Ross, Selph, Carrascoso & Janda and Delfin L. Gonzales fol" plaintiff and appellee. DECI S IO N REYES, J. B. L., J.: This is an appeal from the judgment rendered on Novem~r 15, 1950, by the Court of First Instance of Manila in it.a Civil Cue No. 10116, reviving a prewar judgment (Civil Case No. 51265) a1r· ainst the defendant-appellant J ose M. Cordo"a and se.nteneing him to pay the plaintiff-apµellee the sum of Pl2,060.63, plus interest thereon at the legal rate from May 27, 1941, until full payment; with the proviso that the judgment shall not be enforced until the expiration of the moratorium period fixed by Republic Act 342. The material facts are as follows: In Civil Case No. 51265 of the Court of First Instance of Manila, the appellant J ose M. Cordova was sentenced on March 4, 1039, to pay the firm of Hair & Picornell the amount of P12,715.41 plus interest at the legal ratfi from May 4, 1937 and costs (Exh. B). Cordova appealed to the Court of Appeals, where the dedsion of the Court of First Instance was affirmed on December 27, 1940 (CA-GR No. 5471) (Exh. C). A motion for reconsideration was denied on F ebruary 7, 1941, and the parties were notified thereof on February 11, 1941 (Exh. D). Thereafter, the judgment became final and executory. Execution was issued; several properties of the defendant were levied upon and sold, and the proceeds app" lied in partial satisfaction of the judgment, but there remained an unpaid balance of Pt 2,0G0.63 (Exh. E, F, G). Subsequently, the interest of Hair & Picornell in the judgment was assigned to appellee S. W. Pieornell & Co. <Exh. HL The latter, on January 16, 1950, commenced the present action (No. 10115) to revive the judgment in case No. 51265; but Cordova defended on two grounds : (1) that the action had prescribed; and (2) that the action against him was not maintainable in view of the provisions of sec. 2, of Republic Act No. 342, since he (Cordova) had filed a claim with the Philippine War Damage Commission, bearing No. 978113 (Exh. 1). Both defenses were disallowed by the Court of First Instance, which rendered judgment as described in the first paragraph of this decision. Cordova duly appealed to the Court of Appeals, but the latter certified the case to this Court, as involving only questions of law. Clearly, the appeal is without merit. The judgment of the Court of First Instance in the original prewar case, No. 51265, did not become final until it was affirmed by the Court of Appeals, precisely because of the appeal interposed by appellant Cordova; hence the period of limitation did not begin to run until final judgment was entered, after the Court of Appeals had denied Cordova's motion to reconsider on February 7, 1941 (old Civil Code Art. 1971; new Civil Code Art. 1152) . From the latter date until the present proceedings were commenced on January 16, 1950, Jess than ten years have elapsed, so that the action to revive the judgment has not yet become barred (Sec. 43, Act 190; 31 Am. Jur. s. 846). As to the defense based on the Mortttorium Act, R. A. No. 342, our decision in Rutter vs. Esteban (1953), 49 0. G. (No. 5) p. 1807, declaring the continued operation of said Act to be unconstitutional, is conclusive, that it may no -longer be invoked as a defense. Wherefore, the decision appealed from is affirmed, except as to the proviso suspending execution of the judgment until eight years after the settlement of appellant's war damage claim. Said condtion is hereby annulled and set aside, in accordance with our ruling in the Rutter case. Paras, Pablo, Beng:;on., Padilla, Montemay&r, Ale:i: R~oa, Jugo, Rautistn An.gtlo, Labrador and Cc:mccpcion, J.J., concur. XIII Brigido Lolwin., Plaintiff and AppdlH, vi. Sif'tger Sttwing Mrr chin~ Company, Defe-ndcnt and Appellant, No. 5751, Nat1ttmbtor 15, 1940, Tu.aaon, J. WORKMEN'S COMPENSATION ACT, SECTION 6; INTERPRETATION; INJURED EMPLOYEE CANNOT RECOVER October 81, 1964 THE LAWYERS JOURNAL 617 BOTH DAMAGES AND COMPENSATION; HIGHT OF ELECTION; EFFECT OF ELECTION.-Under section 6 of the Workmen's Compensation Act, "an employee injured under circumstances as to affored him '4 r:ght to compensation as agg.ind his employer, and also to impose a liability in damages on a third person, has a rig"ht to d ect whether he will seek compensation or damages ; he cannot recover hoth damages ~n<i compensation, cannot elect to take compensation and als~ t1> bring an action against a. third person, and cannot proceed concurrently at common la·.v for damages and under the compensation act for compensatinn. It has broadly been stat .. d that when a binding election is made, it is final." William P. Mueller for appellant. Tomas P. Pun!mniban for app~Jlee. DECISION TUASON, J.: On and prior to December 4, 1937, Brigido Lobrin, plaintiffappellt!e, was employed by Singer Sewing Machine Company, d;;:fe.ndant-appellant, as assistant supervising agent with official station in the Province of Nueva Ecija and with a salary of P30 n wt:ek, plus P7.50 weekly for traveling expenses. On the abo\ementioned <lute. while plaintiff was traveling in the performance of his duties on a Rural Transit jitney bus owned by the Bachrach Motor Company, Inc., that vehiclt: collided with a freight truck, as a result of which plaintiff sustained injuries and was taken ~o the provincial hospital of Nueva Ecija by William H . Beedle, plaintiff's immediate superior· As there was no X-Rny apparatus ir that hospital, plaintiff transferred to the Philippine General Hospital on December 11, 1937. During his stay in the latter hospital and for sometime during his convalescence outside, defendant paid plaintiff his salary, the total amount thus paid being P570. In the meantime, under date ryf February 10, 1938, plaintiff rl'<'eived from the Bachrach Motor Company, Inc., P2,000 "in full 3ettle-· ment of all claims and demands, and rights of act.ion which" he might have against th9.t firm, and in consideration thereof released the Bachrach Motor Company "from all obligations now existing or that may hereafter arise in my favor by reason of the said damages and injuries by me sustained." Subsequently plaintiff brought thiii action against Singer Sewing Machine Company and was awarded a total compensation of !'1,772.82 besi<les P2,286.96 for medical and hospital expenses, or a total of P4,059.78 from which wt<re deducted the P570 which plaintiff had received from defendant as wages and the P2,000 paid him by the Bachrach Motor Company. Defendant.-nppellant resisted payment in the court below on var~ ious gt·ounds, one of which, now reiterated in this instance, is that "the settlement made by, plaintiff with the Bachrach Motor Company, Inc., for all damages suffered, released defendant from any liability for payment of compensr:tion." This defense, from our view of it, disposes of the whole case, Section 6 of the Workmen's Compensation Act: "Sec. 6. Liability of third person. - In case an employee euffo,!rS an injury for which compc1 1sation is due under this Act by any other person besides his employer, it shall be optional with such in· jured employee either to claim compensation from his employer, under thi!> Act, or sue such other person for damages, in accordance with law; and in csse compensation is claimed and ailowed in accordance with this Act, the employer who paid such compensation -01' was found liable to pay the same., shall succeed the injmed employee to the right of recovering from such person what he paid; Prov!ded, that in case the employer recovers from such third person damages in C.'l':ccss of those paid or allowed under this Act, such excess shall be delivered to the injured employee. or any oilier person entitled thereto, after deduction of the exrirnses of the employer and th<? costs of the proceedings. The sum paid by the employer for compensation or the amount of compensation to which the employee or his dependents Bl'f' entitled under Ule provisions of Ule Act, shall not be admissible as evidence in any damage suit or action." Referring to prnvision11 like thcn!, 71 C. J . 1533, 1534, says tha':. ''an employee injured under such circumstances as to afford him a right to compensation as against his employer, and also to impose a liability in damages on a third person, has n righl to elect whether he will seek compensation or damages; he cannot elect to take compensation and also to bring an action against a third pe.rson, and cannot proceed concurrently at common Jaw for damages and under the compensation act for compensation. It l1as bro:tdly been stated that when a binding election is made, it is final." On page 928 of the same work and volume, it is said that "an employee, by his election to take damages without action and to release the third person, exercises his option to proceed against the third person, 2.nd his claim for compensation is bart"i!d." Commenting on section 6 of t l1e E nglish Compensation Act of 1906, after which ours is modelled, Labatt says in his treaties ou Ma~ter and Servant : "The acceptance of payments by the injured workman from a person other than the employer, who was alleged to be liable for negligence, although such liability is not admitted, precludes the workman, under section 6, sub-section 1, from obtaining compensation from the employer.'' (5 Labatt."s Master nnd Servant. 2nd E~ ition, p· 5441.) Plaintiff-appe.llee makes tlte point that "the third party agRinst whom the plaintiff may exercise the option granted under section G of the Workmen's Compensation Act" is the driver of the freight truck. He argues that the Bachrach Motor Company, ·1nc., paid plaintiff P2,000 "not necessarily because the said company was guilty of causing injuries to the plaintiff, but because, whether or not guilty, it is liable for operating as a common carrier, to passengers sustaining injuries while on board any of its passenger t rucks, although the injuries would not have been sustained were it not for the negligence or wron~ul acts of another pnrty. '' This contention cannot be sustained. To start with, Deedle's testimony that plaintiff told him the chauffeur of the Rural Transit jitney was going too fast, thus blaming that driver, was not d£>nied. Counsel's statement in his brief and memorandum that the operator of the freight truck has been prosecuted and convicted find11 no support whatsoever in the evidence. Even if it were true that the freight truck dri,1 er was to blame for the accident, and that the Bachrach Motor Company was liable regardless of whether or not it was free from negligence - a point. which we need not attempt to decide-still that company clearly falls within the meaning of "other person" as this term is used in section G of the Workmen's Compensation Act. The reason for this is that the Bachrach Motor Company's liability arose out of thP same accident that produced the defendant's liability, and that thP employee can reCO\'er either damages or compensation, but not both. If defendant had the right to be subrogated to plaintiff's right of action against the Bachracl1 Motor Company, p!!lintiff by electing to accept a settlement from that company has closed the door to defendant to proceed against it, and under the d1;clrine of cstoppel by election, should be precluded from now nsserting, to deff'ndant's prejudice, a position inconsistent with that taken b1· him bf>!'!lrC. Plaintiff insinuates that defendants can still go a fter the driver of the freight truck, but he ignores the fact that cnm if this driver could be held linble fo r plaintiff's injuries, that sai1 ! driver is in all probability insolvent . Plaintiff has not been prejudiced by his electfon to seek dameges instead of compensation. The amounts he has already received ore more than he would have been entitled to as compensation un· der the Workmen's Compensation Act. For his C\•idence is insuf· f icient to prove. that he paid Dr. Abuel and. Dr. Abuel's wirlow rl,500 . He has not shown the nature and quantum of Dr. Abuel's services. His own evidence seems to exclude the possibility that the. services rendered by Dr· Abuel were worth Pl,500. He was 618 THE LAWYERS JOURNAL October 31, 19S-t confined in the Philippine General Hospital for only eighteen days and, acc.ording to Exhibit B-8, he underwent only two minor operations, one on December 13, 1937, and one on February 19, 1938. In other words, if plaintiff had choosen to sue defendant for compensation, an action which would have subrogated defendant into plaintiff's right of action against the Bachrach Motor Company· or any other person responsible for his injuries, such compensation would have been less than the amount he has actually received from both the Bachrach Motor Company and the defendant, namely P2,570. Upon all the foregoing consideratiDn, the appealed decision is reversed and the action dismissed, with costs against plaintiff-appellee. Bengzon, Padilla, Lopn Vito. and Alez Reyes, J.J., concur Judgment revet' Bed. XIV Gliceria Rosete, Plaintiff-Appeltec, vs. Provincial Sheriff of Zambales, Simplicio Yap and Corazon Yap, DefendantsAppellants. G. R. No. L-6335, July 31, 1954, Bautista Angelo, J. EXECUTION; REDEMPTION BY WIFE OF CONJUGAL PROPERTY SOLD ON EXECUTION; REDEEMED PROPERTY BECOMES PARAPHERNAL. - Inasmuch as the wife redeemed two parcels of land belonging to the conjugal partnership which were sold on execution, with money obtained by her. from her fathElr. th" t:wo parcels of land has become paraphemal and as such is beyond the reach of further execution. (Section 23 of Rule 39; .l Moran, Comments on the Rules of Court, 1952 ed., pp. 841-842; article 1596, old Civil Code; Hepfner vs. Orton, 12 Pac., 486; Taylor vs. Taylor, 92 So., 109; Malone vs. Nelson, 167 So., 714.) She has acquired it by right of redemption as successor in interest of her husband. It has ceased to be the property of the judgment debtor. It ca~ no longer therefore be the subject of execution under a judgment exlusively iiffecting the personal liability of the latter. Ricardo N. Agbunag for the defendants and appellee. Jorge A. Pascita for the plaintiff and appellee. DECISION BAUTISTA ANGELO, J.: In Criminal Case No. 2897 for murder of the Court of First Instance of Zambales, Epifania Fularon was convicted and sentenced to indemnify the heirs of the victim in the amount of f'2,000. On February 10, 1949, to satisfy said indemnity, a writ of execution was issued and the sheriff levied upon four parcels of land belonging to the conjugal partnership of Epifanio Fularon and Gliceria Rosete. These parcels of land were sold at public auction as required by the rules for the sum of !'1,385.00, leaving an unsatisfied balance of P739.34. On March 8, 1950, Gliceria Rosete redeemed two of the four parcels of land which were sold at public auction for the sum of r"879.80, the sheriff having executed in her favor the corresponding deed of repurchase. On April 10, 1950, an alias execution was issued to satisfy the balance of the indemnity and the sheriff levied upon the tv.•o parcels of land which were redeemed by Gliceria Rosete and set a date for their sale. Prior to the arrival of this date, however, Gliceria Rosete filed a case for injunction to rest.min the sheriff from car~ rying out the SD.le praying at the same time for a writ of preli~ minary injunction. This writ was issued upon the filing of the requisite bond but was later dissolved upon a motion filed by defendants who put up a counter-bond. The dissolution of the injunction enabled the sheriff to carry out the sale as orginally scheduled and the property was sold to one Raymundo de Jesus for the sum of P'970. This dC\•elopment pram.pt... ed the plaintiff to amend her complaint by praying thuein, among other things, that the sale carried out by the sheriff be declared null and void. After due trial, wherein the parties practically agreed on the material facts pertinent to the issue, the court rendered decision declaring the sale null and void. The defendants appealed, and the case was certified to this Court on the plea that the appeal involves purely questions af law. The question to be decided is whether the sale made by the sheriff on May 9, 1950 of the two parcels of land which were redeemed by Gliceria Rosete in the exercise of her right c,f redemption is valid it appearing that they formed part of the four parcels of land belonging to the conjugal partnership which were originally sold to satisfy the same judgment of indemnity awarded in the criminal case. The lower court declared the sale null and void on the strength of the ruling laid down in the case of Lichauco v. Olegario, 43 Phil. 540, and this finding is now disputed by thP appellants. In the case above adYerted to, Lichauco obtained a judgment against Olegario for the sum of '"72,766.37. To satisfy this judgment, certain real estate belonging to Olegurio was levied in execution and at the sale Lich"auco bid for it for the sum of r"l0,000. Olegario, on the same day, sold his right of redemption to h.is cousin Dalmacio. Later, Lichauco asked for an alias writ of execution and the sheriff proceeded with the sale of the right of redemption of Olegario whereas Lichauco himself bid for the sum of r"l0,000. As Lichauco failed to register the sale owing to the fact that the sale executed by Olegario in favor of his cousin was already recorded, Lichauco brought the matter to court to test the \•alidity of the latter sale. One of the issues raised was, "Whether or not Faustino Lichauco, as an execution creditor and purchaser at the auction in question was entitled, after his judgment had thus been executed but not wholly satisfied, to have it executed again by levying upon the right of redemption over said properties." The court ruled that this cannot be done for it would i·ender nugatory the means secured by law to an execution debtor to avoid the sale of his property made at an auction under execution. Said this Court: "We, therefore, find that the plaintiff, as a judgment creditor, was not, and is not, entitled, after an execution has been levied upon the real properties in question by virtue of the judgment in his favor, to have another execution levied upon the same prope1-ties by virtue of the same judgment to reach the right of i·edemption which the execution debtor and his privies retained over them." Inasmuch as the Lichauco case refers to the levy and sale of the right of redemption belonging to a judgment debtor and not to the levy of the very property which has been the subject of execution for the satisfaction of the same judgment, it is now contended that it cannot be considered as a precedent in the present ~ase for here the second levy was effected on the same property subject of the original execution. But this argument falls on it! own weight when we consider ihe following conclusion of the court, "x x x what we wish to declare is that a judgment by virtue of which a property is sold at public auction can have no furth.11r 11f{ecC on such property." (Underlining supplied) Nevertheless, when this case came up for discussion some mem· bers of the Court expressed doubt as to the applicability of the Lichauco case considering that it does not decide squarely whether the same property may be levied on an alias execution if it is reacquired by the judgment debtor in the exercise of his right of redemption, and as on this matter the requisite majority could not be obtained the inquiry turned to another issue which for pur· poses of this case is sufficient to decide the controversy. The issue is: Since it appears that pla.intilf redee.med the two parcels of land in question with money obtained by her from her father, has the property become paraphemal and u such ia October 31, 1954 THE LAWYERS JOURNAL 519 beyond the reach of further execution! ment of marriages by summary proceedings. We are of the opinion that the queation should be answered in 2. the affirmative for the following reasons: (a) Gliceria Rosete, ID.; ID.; ABSENCE OF GENUINE ISSUE DOES NOT JUSTIFY MISINTERPRETATION OF RULES OR VIOLA· TION OF POLICY. - The Rules of Court expresaly prohibit annulment of marriages without actual trial <section 10, Rule 85). The mere fact that no genuine issue was presented cannot justify a misrepresentation of the rule or a violation of th~ avowed poJjcy of the State. the wife, redeemed the property, not in behalf of her husband, but as successor in interest in the whole or part of the property, it being then conjugal. The term "successor in interest" appearing in subdivision (a), Section 23, Rule 39, includes, according to Chief Justice Moran, "one who succeeds to the interest of the debtor by operation of law" or "the wife as regards her husband's homestead by reason of the fact that some portion of her husband's title passes to her (Comments on the Rules of Court, 1952 ed., Vol. 1, pp. 841-842); and (b) a property is deemed to belong exclusively to the wife (1) when acquired by her by right of redemption, and (2) with money belonging exclusively to hn (Article 1396, old Civil Code). The interest which a wife has in conjugal property in this jurisdiction may be likened to that of a wife in a homestead. in American juribdiction. That interest is known as "inchoate right of dower", or a "contingent inte1·est.11 By virtue of this inchoate right, a wife has a right of redemption of a homestead as succcasor in interest of her husband. Thus, in Hepfner v. Urten, 12 Pac., 486, it was held that by the declaration of homestead by the husband of the property sold a portion of his title passed to his wife, and "she had the right of 1·esidence thereon with him and the family during their joint lives, with some rights in case she should survive him. She had a right of redemption as his snccessor in interest." (Underlning supplied) In Taylor v. Taylor, 92 So., 109, where a mortgage was executed on a homestead and the husband refused to pay the indebtedness, it was held that "the wife's 'inchoate right of dower', which is more than a responsibility and may well be denominated a contingent interest, was a sufficient interest in the lands to confer the right of equitable redemption under the mortgage." And in Malone v. Nelson, et al., 167 So., 714, it was declared that "the right of the wife to redeem is rested upon her interest - inchoate right of dower - a right subject to a mone-' tary valuation." These authorities have persuasive effect consider· ing the source of our' rule on the matter. The property in question has therefore become the exclusive property of t he plaintiff. She has acquired it by right of redemption as successo1· in interest of her husband. It has ceased to be the property of the judgment debtor. It can no longer therefore be the subject of execution under a judgment exclusively affecting the personal liability of the latter. The conclusion reached by the lower court on this matter is therefore not wa!'l'anted by law. Wherefore, the decision appealed from is modified as follows: the sale of the two parcels of land executed by the sheriff on May 9, 1950 in favor of Raymundo de Jesus for f970.00 is hereby declared null and void, and the deed of repurchase executed by the sheriff in favor of the plaintiff on !\larch 8, 1950 is hereby revived and maintained. The rest of the decision is declared without effect. No pronuoncement ·as to costs. Paras, Bc11gzon, Padilla, Montemayor, Alex Reyes, Jugo, Labrador, Concepcion and J. B. L. Reyes, JJ., concur. Pablo, J.: took no part. xv Asuncion Roque, Petitioner, vs. Hon. Demetrio B. E.'ncarnncion as J11dge of the Court of First lustanc1J of Manila, and Francisco Reuss, R6spondents, No. L-6505, Aiigust 23, 1954, Labrador, J. 1. SUMMARY JUDGMENTS; ACTION FOR ANNULMENT OF MARRIAGE CANNOT BE DECIDED BY SUMMARY JUDGMENT PROCEEDING. - A counterclaim seeking to and'ul defendant's marriage to plaintiff, although not denied or resisted by the latter, cannot be decided by summary judgment proceeding - first, because such action is not one to "recover upon a claim" or "to obtain a declaratory relief," and se<:ond, because it is the avowed policy of the State to prohibit annul· J. C. Orendain, Canuto Pefianco, Jr. & Luz Tonlerill.a3 for petitioner . Celestino L. dt> Dios and Jose S. Atienza for respondent.a. DECISION LABRADOR, J.: In Civil Case No. 16787 of the Court of First Instance of Manila, entitled Asuncion Roque Reyes vs. Francisco Reyes, plaintiff, petitioner herein, alleges that she married defendant in Novembt'r, 1943, and that out of their marri::ige two children were born; that during the marriage plaintiff acquired certain personal and real pl'Operties which produce a monthly income of 1"3,530; that defendant committed concubinage with . a woman named Elena Ebarle, and in 19:>2 he attempted to take away her life, giving her blows and attempting to strangle her. She, therefore, prays for Ca> legal separation, Cb> legal custody .:>f tlie children, Cc) liquidation of the conjugal property, and Cd> alimony and support for the children. In his answer, the defendant admits their marriage, claiming, however, that it took place in February, 1944, but he denies the alleged concubinage by him and the alleged income of the properties, or the squandering of the same. He presented a counterclaim, alleging that plaintiff was already a married woman when she contracted the marriage with him, having been married with one Policarpio Ba yore since February 19, 1930; that she fraudulently represented herself as single, without inpediment to contract marriage; that she has been squandering money obtained from him, trying to acquire property in her own name, etc. He prays for Ca) the annulment of his maniage to plaintiff, Cb) custody of the children, and Cc) damages in the amount of 1"30,000. Her answer to the counterclaim is one mainly of denials. As to the express allegetion contained in the counterclaim that plaintiff is a married woman at the time of their marriage, plaintiff makes this denial: 6. That the plaintiff denies specifically each s.nd e\'ery allegation averred in paragraph 6 of the counterclaim, the truth being that said Policarpio Bayore (plaintiff's husband) has been absent for 14 consecutive years. On October 21, 1952, defend<int filed a motion for summary judgment, opposition to which was filed by plaintiff on the ground that an action for annulment can not be a ground for summary judgment. In support of the motion for summary judgment, the desposition of Policarpio Payore, former husband of the plaintiff, was submitted. A supposed certified copy of his marriage to plaintiff was identified by Bayore at the time of the taking of his deposition. Plaintiff did not present any affida\'it, deposition, or document to support his objection. Without much ado, the trial judge granted the motion for summary judgment, immediately rendering a decision (a) declaring plaintiff's marriage to defendant null and void ab rnitio, CbJ declaring that plaintiff concealed her true status and awarding the custody of the children to defendant, and (c) declaring plaintiff's rights to the conjugal properties forfeited in favor of their children, although granting the custody of the smaller child to plaintiff. The petitioner seeks to annul the judgmtmt on the ground that the trial court had no jurisdic!-ion to render a summary judgment in the action to annul the marriage, and on the furlher ground that there were real issues of fact raised in the pleadings, as she believed t hat her husband was already dead at the time of her marriage to defendant, etc. The plaintiff does not deny the foct that she was married 520 THE LA WYERS JOURNAL October 31, 1954 to Policarpio Bayore in the year 1930, and that the latter is alive and the marriage still subsisting. May this counterclaim be decided by the summa ry judgment proceedings? Vur answer must be in the negative, first, because an action to annul marriage is not an action to "recover upon a claim" or "to obtain a declaratory relief," and, second, because it is the a\·owed policy of the State to prohibit. annulment of marriages by summary proceedings. An action "to rl:cover upon a claim" means an action to recover a debt or liquid'.!.ted demJind !::r money. Thi.i is the restricted application of the rule in jurisdictions where the proceedin!;' has been adopted. In Virginia this proceeding is limited to actilns "to recover money"; in Connecticut, New Jersey, and New York, to recover a debt or liquidated demand; in Michigan, for an amount arising out of contract, judgment, qr statute; in Columbia, to recover sums of money arisin~ e:r contra.du; in Illinois, for the payment of money; in Delaware, to sums for the payment of money, .>r recovery of book accounts, or foreign judgments; and in England, in actions upon bills and pr(}missory notes, etc. <Yale Law Journal, Vol. 38, p. 423.> In federal courts the proceeding ha ~ been used in patent, copyright, and trade mark cases, and in cases arising upon statutes or un· disputed contracts or instruments. (See cases cited in I Morar.. 719·726, rev. 1952 ed.) The fundamental policy of the State, which is predominantly Catholic and considers manikge as indissoluble <there is no divorce under the Civil Code of the Philippines), is to be cautious and stri"ct. in granting annulment of marriages (Articles 68 and 101, Civil Code of the Philippines). Pursuant tn this policy, the Rules of Court expressly prohibits annulment of marriages without actual trial <Section 10, Rule 35). The mere fact that no genuine issue was presented, and we desire to expedite the dispatch of the case, can not justify a misinterpretation of the rule we have adopted or a violation of the avowed policy of the State. We find that the trial court committed an error in annulling the marriage of plaintiff to defendant in a summary judgment proceeding without the formality of a trial. The trial court's error is not, however, limited to this. In spite of the fact that a genuine issue of fact was raised by plaintiff's pretense that she entered the marriage in good faith, this issue was ignored and the court declared her rights to properties e>btained during the marriage forfeited, and the custody of one of the children denied to her. These constitute an abuse of judicial discretion amounting to excei:s of Jurisdiction, properly the subject of a proceeding by certiorari. The judgment entered in the case is hereby annulled, and the lower court ordered to proceed in the case according to the Rules. Parae, Pablo, Bengzon, Pu.ditla, MtintemayM", A. Rsyea, Jugo, lJatdista Angelo, Concepcion and J.B.L. Reyes, J.J., conocur. XVI Nfoanor Padilla, Plaintif/-Appellee, vs. Andres De Juits, Pablo De Jssits, Josefa De Je1ms, Doroteo Celis, Jr., Natividad De Jesus, Romeo Morales and Manuel De Jelfl.ts, Defendants-Apellant11, No. LGOOS, .41tg1rnt 81, Hl54, Bautista Angelo, J. EJECTMENT; JURISDICTION; EXISTENCE OF ANOTHER ACTION TO ANNUL MORTGAGE OF THE PROPERTY DOES NOT DEPRIVE THE MUNICIPAL COURT TO TRY CASE OF EJECTMENT.-The circumstance that there is pending in the court of first instance a case in which defendants arc seeking the annulment of lhe deed of mortgage of the property in question, executed by their father without their knowledge and consent, cannot and does not deprive the municipal court of its jurisdiction to try the ejectment case filed against them by the plaintiff, in the light of the tact averred in the complaint for ejectment, 4.nd supported by evidence, that plaintiff is the exclusive owner of the property in question, having purchased it at an auction sale in 1948. Macario Guevarm for defendants and appellants. Padilla, Carlos & Fernando for plantiff and appcllee. DECISION BAUTISTA ANGELO, J .: On August 24, 1950, plaintiff filed an action for ejectment in the Municipal Court of Manila against defendants to recover the possession of a parcel of land located at Paco, Manila. On September 7, 1950, defendants filed a motion to dismiss on the grounds, (1) that there is another case pending in the Court of First Instance of Manila between the same parties and over the same subject-matter; (3) that the claim suught by plaintiff has been condoned; nnd C3) that the ·court has no jurisdiction over the subject-matter of the action. Plaintiff fil ed an opposition to this motion but the same was denied. On November 27, 1950, defendants filed their answer setting up certain special defenses and a counterclaim. Plaintiff filed a n10tion to dismiss the counterclaim, to which defendants filed a written opposition. After the reception of the evidence, the c.ourt rendered judgment ordering the defendants to vacate the property involved and to pay the plaintiff a monthly rental of r100 from October, 1949 up to the time the defendants shall have vacated the property, and the costs of action. On June 2, 1951, defendants filed a motion for reconsideration and the same having been denied, they brought the case on appeal to the Court of First Instance where they filed another motion to dis~ miss based on the .rnme grounds set forth in the municipal court. This motion was also denied for lack of merit. On August 14, 1951, defendants filed their answer wherein they reiterated the same special defenses and counterclaim they set up in the municipal court. Plaintiff moved to dismiss the counterclaim, and this motion was granted . When the case was called for hearing on March 14, 1982, defendants moved for postponement on the ground that their principal wit· ness could not be present.. Counsel for the plaintiff objected to the postponement. However, the parties agreed to hear the testimony of one L . G.-Marquez, an expert witness for the plaintiff, who testi· fied and was cross-examined by counsel for the defendants. Thereafter, upon agreement of the parties, the continuation of the hearing was set for March 24, 1952. When the case was called for the continuation of the hearing on said date, neither the defendants, nor their counsel, appeared, whereupon the court allowed U1e plaintiff to present his evidence, and on March 15, 1952, it rendered decision ordering defendants to vacate the pro~rty and to pay 11 monthly rental of P200 from Octo!>er. 1940 until the time they shall have actually surrendered the property, with costs. On April 14, 1952, defendants filed a motion for reconsideration and new trial, accompanied by affidavits of merits, on the ground that their failure to a ppear on March 24, 1952 was due to "mistake and excusable negligence" as provided for in Section 1 (a), Rule 87, of the Rules of Court. And when this motion was denied, defendants took the case directly to this Couri imputing three errors to the lower court. October Sl, 1964. THE LAWYERS JOURNAL 521 Defendants contend that t he municipal court has no jurisdiction to entertain the case because, in their answer, they averred that, l:mg before the filing of the present cast of ejectment, they l:ad filed against the plaintiff in the Court of First Instance of Manila a case in which they seek the annulment of the deed of mortgage executed by Roman de Jesus, their father, without their knowledge and consent, on a property which belonged to the spouses Roman de Jesua and Maria Angeles, and that, inasmuch as the annulment case, wherein the ownership of the property is in issue, is still pending determination, the municipal court has no jurisdiction over the ejectment case upon the theory that the same cannot be deter· mined without first pausing upon the question of ownership of the property. Thia contention cannot be s•1stained in t.he light of the hcts averred in the complaint which appear supported by the evidence submitted by the plaintiff. These facts show that the plaintiff is the exclusive owner of the property in question having purchased· it at the auction sale carried out by the sheriff sometime in October, 1948, and that because of the failure of the mortgagor, or his succt:sors in interest, to redeem it within the period of redemption, the Register of Deeds of Manila issued Transfer Certificate of Title No. 23590 in favor of the plaintiff. The facts also show that after plaintiff had become the owner of the property he found the de· fendants occupying it without having entered into a contract of lease with him, or having made any arrangement for its occupan: cy, or without paying any rental therefor, and for this reason, he filed this ejectment case against them before the municipal court. These facts clearly show that this case comes within the jurisdiction of the municipal court. The circumstance that there is pending in the court of first instance a case in which defendants al'C! claiming one-half of the property as heirs of the deceased wifo of the mortgagor cannot and does not deprive the mUnicipal court of it8 jurisdiction. The most that could be doJJe in the light of . the present situation is to suspend the trial of the ejectment case pending final determiriation of th£> annulment case, but the pPndency of the latter cannot have the effect of removing the former from the jurisdiction of the municipal court. This case may be likened to that of Fulgencio v. Natividad, 45 0. G. No. 9, 3794, decided on February 14, 1948, in which petitioner pleaded that, before the complaint for detainer was filed against him, he had brought an action in the proper court to compel the respondents to resell to him the lot and the house erected thereon upor.. payment of the purclrnse price, and, therefore, the case does not come within the jurisdiction of the municipal court. In overruling- this plea, this Court said: "Granting tha~ petiti011er has the right to repurchase the property, he cannot invoke it until after the competent court shall have rendered judgment as prayed fo1· by him. Hence the allegation in the detainer case that he had brought an action in the p1·oper court to compel the resale to him of the lot and the house erected thereon, did not raise the question of title to tl1e property and for that reason did not remove t he case from the jurisdiction of the municipal court. As already stated, t he plea of another pending action to compel the resale to the petitioner of the property involved in the detainer case is an admission that the title thereto is not vested in him. Such being the case, the municipal court had jurisdiction to ~ry and decide the detainer case." A different consideration, however. should be made in connection with the second issue to the effect that the lower court erred Jn denying the motion for reconsideration of the defendants notwithstanding the explanation given by U1em of their failure to appear at the continuation of the trial and the affidavits of merit attached to the motion showing unmistakably that such failure was due to "mistake and excusable t\ea-liirence" and not for purposes <>f delay . It should be recalled that when this ease waa called for hearing on March 14, 1952, counsel for defendanU! moved for postponement on the ground that their principal witness was sick and could not appear. Counsel for the plaintiff objected to the postponement. However, the parties agreed to hear the testimony of one L. G. Marquez, a witness for the plaintiff, who testified and was crossexamined by counsel for defendants. Thereafter, upon agreement of the parties, the continuation Qf the hearing was set for March 24, 1952. And when the case was called for continuation on that date, neither defendants, nor their counsel, appeared. Ne,·ertheless, the court allowed the plaintiff to present his evidence, and thereafter rendered decision accordingly. But when, days after, defendants filed a motion for reconsideration explaining that their failure to appe!l.r was due to "mistake and excusable negligence" of their counsel, supporting their claim with the requisite affidavits of merit, the court curtly denied the motion. We believe that, in the light of the circumstances of the case, the court did not act properly when it denied said motion for reconsideration considering the explanation given by defendants and their counsel in their affidavits of merit. This is what counsel says in his affidavit: · "That upon moticn of the ur.dersigned a ffiant, the Honorable Judge Higinio Macadaeg postpom. -d the hearing of sei<l case on March 24, 1952, but the under· sigb.ed affiant in noting the date of the postponement on his diary or memorandum, committed an honest mistake by noting it down opposite March 25, 1952, instead of March 24, 1952, consequently he was not able to appear in court on the proper date, and so with the defendants, as they were of the belief that the hearing was on March 25, 1952 and not on March 24, 1952." And these facts also appear in the affidavits subscribed to by the defendants. These facts, which are not contradicted, constitute in our opinion a proper ground for a new trial under s~tion 1 (a), Rule 37, for, no doubt, they contsitute "mistake or excusable negligence which ordinary prudence could not have guarded against and by rt:ason of which such aggrieved party has probably been impaired in his rights." This is more so considering that, according to the answer, defendants have a meritorious defense. Wherefo1·e, the decision appealed from is reversed. It is ordered that this case be remanded to the lower court for a new trial with the understanding that the new trial should await the final termination of th~ annulment case pending in the Court of First Instance of Manila (Civil Case No. 11267), without pronouncement as to costs. Partis, Beng::o11, Montemayor, Jugo and Pablo, J.J., concur. Concepcion and Padilla, J.J., took no part. LABRADOR, J., dissenting: I dissent. The land subject of the action appears to have been conjugal property of the deceased Roman de J esus and his wife, whose successors in interest are the defendants-appellants. The deceased Roman de Jesus mortgaged the propert).' to plaintiff-appellee, it is true, but the mortgage affected only his undivided one-half share in the property. The action by the defendants-appellants to annul the mortgage over 'their undivided one-half share necessarily involved both title to the property and the right to the possession thereof. The present action of plaintiff-appellee really and actually, under the cireumstances, in· volves or should involve both the title and the right to possession. The action by the defendants-appellants to annul the mortgage over their share bars the present action, therefore. And 011 the iRSUe really involved is title, the municipal court which entertain· 622 THE LAWYERS JOURNAL October 31, 1954 ed the action of unlawful detainer has no jurisdiction. The action should, therefore, be dismissed on two grounds, lack of jurisdiction Dnd ()endency of a nothe1 aclion between the same pa1 ties over the same cause. Nothing can be gained by the continuation of the case in the court below. XVII In re: W ill and Te!fl,at11-c.it of the dece.ited Rei>erend Sancho Aba.-dfo. Sc verina A. Vda. De Enriqu.ez, et al., Petitione-rs-Appellees, vs. Miguel A badia, et al., Oppositiors-Appellants, No. L-7188, August !), 1954, Montemayor, J. I. WILLS; PROBATE OF WILL; VALIDITY OF WILL AS TO FORM DEPENDS UPON LAW IN FOP.CE AT TIME OF EXECUTION; TITLE OF LEGATEES AND DEVISEES UNDER WILL VESTS FROM TIME OF EXECUTION. - Thcvalidity of a will as to form is to he judged not by the }aw in forct: at the time of the testator's death or at thE: time the r;upposed will is presented iu court for probate or when th" petition is decided by the court hut at the time the instrumen! was executed. One reason in support of the rule is that although the will operates upon :ind after the death of the testator, the wishes of the testator nbout the dispositiG'ln of his ~state among his heirs and among the legatees is given solemn expression at the time the wil! is executed, and in reality, the legacy or bequest then becomes a completed act. 2. ID.; EXECUTION OF WILLS; LAW SUBSEQUENTLY PASSED, ADDING NEW REQUIREMENTS AS TO EXECUTION OF WILLS; FAJLVHF: TO OBSERVE FORMAL REQUIREMENTS A'r TIME OF EXECUTION INVALIDATES WILL; HEIRS I NHERIT BY INTESTATE SUCCESSION; LEGISLATURE CAN NOT VALIDATE VOID WILLS. - From the day of the death of the testator, if he leaves a wi-ll, the title of the legatees and devisees under it becomes a ves!cd right, protecti:!d under the due process clause of the Constitution against a subsequent chan.~t; in the statute adding new legal requirements of execution of wills, which would invalidate l'Uch will. By parity of reasoning, when one executes a will which is invalid for failure to observe and follow the legal reqliirements at the time of its execution then upon his death he should bt> regarded and declared as having died intestate, and his heirn will then inhl'rit by intestate succession, and no subs<::quent law with more liberal requirements or which dispenses with such requirement!" as to execution should be allowed to validate a defecti\"e will and thereby divest the heirs of their . vested rights in the estate by intestate succession. The general rule is that the Le~slature can not validate void wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). Manriel A. Zosa, Luis H. Lri.do11ga, Mariario A. Zosa and B. G. Advinrnla for Op11csitors and Appellants. C. 1fo. la Viclorfo for Petitinncrs and Appellees. DECIS I ON MONTEMAYOR, J.: On September 6, 1!123, Father SANCHO ABADIA, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu, he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacue. He left properties estimated at fS,000 in \'a\ue. On October 2, 1946, one A:'ldres En1 ·iquez, one of the legn.tees in Exhibit "A", filed a petition for its probate in the Court of First InsUmce of Cebu. Some cousins and nephews who would inherit the est.&.te of the dettased if he left no will, filed opposition, During the hearing one of the attesting witneasea, the other two being dead, testified without contradiction that in his presence and in the presence of his two co-witnesses, Father Sancho Wl"Ote out in longhand Exhibit "A" in Spanish which the testator spoke Dnd understood; that he (testator> signed on the left hand margin of the front page of each of the three folios or sheets of which the document is composed, and numbered the same with Arabic numerals, and finally signed his name at the end of his writing at the last page, all this, in the presence of the three attesting witnesses afteT telling that it was his last will and that the said three witnesses signed their names on the last page after the attestation clause in his presence and in the presence of each other. The opposiU>rs did not submit any evidence. The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the handwriting of the testator and that although at the tin1e it was executed and at the time or the testator's death, holographic wills were not permitted by law still, because at the time of the hearing and when the case was to bP decided the new Civil C.Ode w1s already in force, which Code permitted the execution of holographic wills, under a liberal "iew, and to carry out the intentiori of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated Janua ry 24, 1952, admitted .to probate Exhibit "A'', as the Last Will and Testament c.f Father Sancho Abadia. The oppositors are appPaling from that decision; and because only questions of law are involved in the appeal, the case was certified to us by the Court of Appeals. The new Civil Code <Republic Act No. 386) under Art . 810 thereof provides that a person may execute a ho1.ogra phic will which must be entirely written, dated and signed by the testa tor himself and need not be witnessed. It is a fact, however, that at the t ime that Exhibit "A" was executed in 1923 and at the time that Father Abadia died in 1943, holographic will were not permitted, a nd the Jaw at the time imposed rertain requirements for the execution of wills, such as numbering correlativ(>ly each page (not folio or sheet> in letters and signing on the left hand margin by the testaWr and by the three attesting witnesses, requirements which were not complied with in Exhibit "A" because the back pages of the fi rst two folios of the will were not signed by any one, not even by the te11tator and were not numbered, :;.nd as to the three front pages, they were signed only by the testator. Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41 Phil. 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand margin of every page, said : "x x x. This defect is radical and totally vitiates the testament. It is not enough ihat the signatures guaranteeing authenticity should appear upon two folios or leaves; three pflges having been written on, the a uthenticity of all three of t!1em should be goaranteed by the signature of the alleged testatrix and her witnesses." And in the case of Aspe v. Prieto, 46 Phil . 700, re>fer rins- to the same requirement, this Court declared: "1"rom an e.'l':amination of thr: document in question, It ap~ pears that the- left margins of the six pages of the document are signed only by Ventura Pl'ieto. The noncompliance with section 2 of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left margin of each of the five pages of the document alleg-ed to be the will of Ventura Prieto, is a fa tal defect that constitutes an obstacle to its probate." What is the law to apply to the probate of Exh. "A"! !fay we a pply the provisions of the new Civil Code which now allows hologrnphic wills, like Exhibit "A" which pro0 visions were irwohd by the appel\ce-petitioner and applied by the lower court! But October 31, 1954 THE I.A\VYERS JOURNAL 623 Article 795 of this same new Civil Code expressly provides: "The validity of a will as to its form depends upon the observan<:f' of the law in forcP at the time it ls made." The above provision iR but an expression or statement of the weight of authority to the effect that the validity of a will is to be judged not by the law in force at the time of the testator's death or at the time the supposed will is presented in court for probate or when the petition ts decided by the court but at the time the instrument was executed. One reason in support of the rule is that although the will operates upon and a fter the death of thp testator. the wishes of the testator nbout the disposition of his estate among his heirs and among the legatees is given solemn expression at the time the will is executed, and in reality, the legacy or bequest then becomes a completed act. This rulini; has been laid down by this Court in the case of In re will of Riosa, 39 Phil. 23. It is a wholesome doctrine and shoulci be followed, Of course, there is the view that the intention of ~he testator should be the ruling and controlling factor and that all adcqi.iate remedies and interpretations should be resorteoi to in order to rarry out said intention, and that when r.tatutes passed after the execution of the 'Yill and after the death of the testator Jessen the formalities required by Jaw for the ex~cution of wills, said sub;;eql;cnt <>tcltutes should be applied so as to validate wills defectively execute1l according to the law in force at the time of execution. However, .we should not forget that from the tlay of the death of the testator, if he leaves a will, the title of the legatees and devisees under 1t becomes a vested rig-ht, protected under the due procc;ss clause of the constitution against a subsequent change in the statute adding new legal ·requirm.;,cnts of execution of wills which woulrl invalidate such a will. By parity of reasoning, when one execute.'! a will which is invalid for failur':! to observe and follow the leJ!al requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate, and his heirs will then inherit by intestate succession, and no subse<pent law with more liberal requirements or which dispenses with such requirements as to execution should be allowed to validate a defective will and thereby diveat the heirs of their vested r-ights in the e!:tate by intestnte succession. The general rule is that the Legislature can not validate said wills (57 Am. Jur., Wills, Sec. 231, pp. 192-193). In view of the foregoing, the order appealed from h; revc1·sed, and Exhibit "A" is denied probate. With costs. Paras, C.J., Pablo, Bengzon, Padilla, Alex Reyes, Jugo Bautista. Angelo, Labrador, Concepcion, and J, B. L. Reyes, J.J., concur, "VIII Antonio Uy, PetitioneT·Appellant, vs. Jose Rodrigue::, Mayor of the City of Cebn, RCspondent-Appellee. G. R. No. L-6772, July 30, 1954, LabmdoT, J. ADMINIST.RATIVE LAW; PUBLIC OFFICERS; CIVIL SETIVICE I.AW; REMOVAL OF DETECTIVES. - The ousted detective states that he is not a civil service eligible but that it does not appear from the record that his appointment as member of the detective force was temporary in character 0r for periods of three month$l merely, and that he had been reappointed every three months until his separation now in ques-· tion. The Mayo1· of Cebu claims that s::i.id detective's position Is primarily confidential and, therefore, Executive Order No. 264, series of 1940, of the President of the Philippines is applicable to the petitioner; that detectives in the City of Cebu pertain to the "detective service," which is distinct from tht> city police force and, thcrefirc, the provisions of Republic Act No. 557, which require investigation prior to dismissal of a member of the city police force, are not, applicable. Held: The above-ment.ioned circumstances, in addition to the fact that said detective was promoted as senior detective inspector, show thnt his appointment is not in n temporary capacity. He may not, therefore, be dismissed or removed except in accordance with the provisions of Republic Act No. 557. (Palamine \.-S. Zapada, April 1954 Gaz., p. 1566; Mission vs. Del Rosario, April 1954 Gaz., p. 1571; Abella vs. Rodriguez, L-6867, June 29, 1954.) Fernando S. Rid.: and Emilia A. Math~ for thE' petitioner and appellant. Jose L. Abad and Quirico del MaT for the respondent and appellee. DECISION LABRADOR, J.: This is an appeal from a judgment of the Court of First Instance of Cebu dismissing the petition for mandamus instituted in that court by Antonio Uy against Jose Rodriguez, mayor of the City of Cebu. Petitioner Antonio Uy was appointed deputy inspector of the detective force, police department, of the City of Cebu on J uly 1, 1946. On July 1, 1947, he was promoted to the position of senior detective inspector. He held this position from that date until September 5, 1952, when the respondent city mayor dispensed with his services on the grOund that he can no longer repose his trust and confidence in him. Upon receiving this notice of dismissal, petitioner requested the mayor to reinstate him, but the latter refuSed to do so. Hence, this action of mandamus. The court a quo held that the position held by the petitioner is primarily confidential and, therefore, Executive Order No. 264, seriei:: of 1940, of the President of the Philippines is applicable to thfl. petitioner; that detectives in the City of Cebu pertain to the "detective service," ,•;hich is distinct from th~ city police force and, therefore, the provisions of R~public Act No. 557, which require investigation prior to the dismissal of a member of the city police force, are not applicable. The question raised in this special civil action has already been decided squarely by us in the cases of Palonnine, et al vs. Zapada, et al, G. R. No. L-6901, promulgated March 15, 1954; Mission, et al vs. Del Rosario, G. R. No. L-6754, promulgnted February 26, 1954 i and Abella vs. Rodriguez, G. R. No. L-6867, promulgated June 29, 1954. In said cases, we have held that a mPmber of the detective force of Cebu City is a member of the police department of said city and may not be removed except in accordance with the provisions of Republic Act No. 557. The statement· submitted by the petitioner shows that he is not a civil service eligible, but neither does it appear from the record that his appointment as member of the detective force was temporary in character or for periods of three months merely, and that he had been reappointed every three months until his separation. These circumstances, in addition to the fact that he was promoted as senior detective inspector, show that his appointment is not in a temporary capacity. He may not, therefore, be dismissed or re· moved except in accordance '".ith the provisions of existing law. The judgment appealed from is hereby re\!crsed, and the respondent city mayor is ordered to reinstate the petitioner to his former position of senior detective inspector in the detective force of the City of Cebu, with right to arrears in sa.lary from the time of his separation to the date of his reinstatement. Without costs. In the m.atter of the lut will •nd IHl•mtnl of J oH Vello, dtetHed. Teodoro V•llo, P etitioner and Apptll•nt, "'' P .. V•llo, \ ' d•. De Gnee•. ti aJ., Oppo•ltor• and Appelleu, G. R. No. L-'303, June st, UH. (L. J .. p. 4'8, Sept. 30, 1954.l In the above-mentioned cue, Pedro ~. LutPO'I na.me ahould have •Pll"'ll~ u 11, .. yer for the P<"tiUonen •nd 11.PP<"ll•ntl> ln.t..ad o( bl1 b~r Roaue R. Lu1PO and hl• former partner. Vl«nle L. •'aelnar, who bandll'd the e .. In the !lnffr cOlTI. and lost !~. On a 1•11eal to tke Supreme Cou!"t. AtlJ', P ed.-o Re. Lu.l)O t<lok over sod won the.,...,, 524 THE LAWYERS JOURNAL October 31, 1954 DECISION OF THE COURT OF INDUSTRIAL RELATIONS La Mallorca Local l 01, Petitioner, vs. La Mall<wca Tazi, Re· spondent, Cm1e No. 4-ULP, October 3, 1953, Lanti11g, J. 1. COURT OF INDUSTR1AL RELATIONS; UNPAIR LAROR PRACTICE; NATURE OF UNFAIR LABOR PRACTICE PROCEF:DINGS. - An unfair labor practice proceedings under Section 5 <>f' Republic Act No . 875 is not a criminal action. The underlying purpose :Jf proceedings under this section nf the Act is the effectuation and rireservation of industrial harmony. Acccrdingly, it has been held that while complaint proceedings may in given cases result in incidental relief or benefit to individual employees, the proceedings are intrinsic-a lly of a public nature. The proceedings are no\'el in our j ·nidical syst~m, having been comparatively recently created by the original Act. They have neither dependence upon nor r elation to either the substantive or adjective aspects of the common law. They do nt>t r:onstitute litigation in the sense that litigation, as it is generally conceived, ir> an action be. tween individual litigants for damages or other private redress. 2. ID· ; ID.; SUFFICIENCY OF THE COMPLAINT. - The sole function of the complaint is to advise the respondent of the charges constituting unfair labor practices 11s defined in the Act, that he may have due notice and a full opportunity for hearing thereon. The Act does not require the particulnrit y of pleading of an indictment '"Ir information, or the elemcnb of a cause like a declaration 3t law or a bill in CflUity. All that is required in a valid complaint before the Board is that there be a pbin statement Or the things claimed to c0nstitutc ~n unfair labor practice that respondent may be put upon his v/" defense. 3. ID.; ID.; EFFECT OF DEFECTIVE COMPLAINT. - W hen a complaint does not fairly apprise the respondents of the acts allegedly constituting unfair labor practice and of all other issues they are required to meet, such defect should not be a sufficient reason to dismiss or quash the complaint; at most, it could serve as ground for a motion for bill of particular:>.. 4. I D.; ID.; IMPOSITION OF PENALTIES. - In the event of a finding by this Court in an unfair labor practice case initi'1ted under section 5, that any perscn has engaged or is engaging in unfair- labor practice, only the remi:!dies and l·eliefs providC'd in said SE'ction may be granted. In such case, t~is Court should not and can not at the same time impose the penalties prescribf>d in section 25. On the other hand, in case the imposition of the penalties prescribed in section 25 is sought, a criminal complaint or information must be filed and the requirements of ~ue process as tc· procedure and t:vidcnce in ordiI?:iry criminal ca~e'l must be observed. 8. C. Gonzales & Acty. Prosecutor E.~tanislao /lfaralit for petitioner. Manuel Chan for respondents. ORDER This concerns a motion of respondent seeking to dismiss or quash the complaint filed by the Acting Prosecutor of this CJurt dated August 15, 1953 against _ the La Mallorca Taxi for unfair labor practice. Th<> grounds in support of said motion are as follows: ·•i. The complaint, which is a crimin:tl action, has not been brought in the name of the real party i11 :nterest, that is, the People of the Philippines; 2. The respondent is a juridical person, and a juridical person caru1ot be made a defendant in u criminal action; 3. The allegation!! of the complaint are vague, uncerhin and fails to inform the respondf'nt of the nature and caus1.. of the accusation against it; ;md 4. The procedure prescribed by Republic Act 875 for the hearing or tl'iul of ,·iolation uf the provisions of the same, that is, by Section 5 thneof, in rdation to Section 2b of the said Act, is unconstitutional and void.'' The first three grounds are all wholly based on the pttmi9e that the complaint filed in this case is a criminal complaint and that consequently the present action before this Court is a criminal action. An examination of this premise is therefore necessary. First of all, the complaint itself stales that it was brought "pursuant to Section 5(b) of Republic Act No. 875." Said section 5(b) provides: "(b) The Court shall observe the following procedure without resort to mediation and conciliation as provided in Section four of Commonwealth Act numbered One Hundred and Three, as amended, or to any pre-trial procedure. Whenever it is charged by an offended party or his representative that any person has engaged or is engaging in any such unfair labo1· practice, the Court or any agency or agent design:lted by the Court must investigate such charge and shall have the power to issue and cause to be served upon such person a complaint, stating the charges in that respect and containing a notice of hearing before the Court or a member thereof, or before a designated Hearing Examiner, at the time and place fixed therein not less than five nor more than ten days after serving the said complaint. The pet·son complained of shall have the right to file an answer to the complaint and to appear in person or otherwise (but if the Court shall so request, the nppearance shnll be personal) and give testimony at the place and time fi xed in the complaint. In the discretion of the Court, a member, thereof or a Hearing Examiner, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding, the rules of evidence prevailing in Courts of law or equity shall not be controlling and it is the spirit and intention of this Act that the Court and its members and Hearing Examiners shall use evel'y and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure. In rendering its decisions, the Cou1·t shall not be bound solely by the evidence presented during the hearing but may avail itself of all other means such as (but nbt limited to) ocular inspections and questioning well-informed persons which results must be made a part of the record. In the proceedings before the Court or a Hearing Examiner thereof, the parties shall not be required to be represented by legal counsel and it shall be the duty and obligation of t he Court or Hearing Examiner to examine and cross-examine witnesses on behu.lf of the parties and to assist in the orderly presentation of the evidence." Paragraph 4 or the complaint all~es "thu.t by the acts described in paragraph three (3) above, respondents and/or its agents have engaged and are- engaging in unfair labor practice within the mean· ing of Section 4(a), sub-section 1 of Republic Act No. 875." The provisions referred to reads as follows: "Sec. 4. Unfair Labor Practice.(a) it shall be unfair labor practice for an employer: ( 1) To interfere with, restrain or coerce employees in the exercise of their rights guarnateed in section three; Section 5(b) of Republic Act No. 875 was borrowed substantially from Section lO(b) of the National Labor Relations Act of the United States which, as originally enacted, reads: "SEC. JO(b) Whenever it is charged that any person has engaged in or in engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have powel' to issue and cause to be served upon such person u. complaint stating the charges in that respect, and containing a notice of hearing be.fore lhe Board or a member thereof, or before a designated agent or agency, at a place therein fixed not less than five days after the serving of said complaint. Any such complaint pl&)' be amended by the member, agent, or agency conducting the hearing or th@ Board in its discretion at any lime prior to the issuance of an October 31, 1!154 THE I.A WYERS JOURNAL order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place o.nd time fixed in the complaint. In the discretion of thP member, agent or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding the mies of evidence prevailing in courts of law or equity shall not be controlling." Commenting on the above-quoted provision, Rothenberg, in his book entitled "Labor Relations," has the following to say: "The underlying purpose of proceedings under this section of the Act is the effectuation and preservation of industrial harmony. Accol'dingly, it has been held that while complaint proceedings may in given cases result in incidental relief or benefit to individual employees, the proceedings are intrinsically of a public nature. The proceedings are novel in our juridical system, having been comparatively recently created by the original Act. They have neither dependence upon nor relation to either the substantive Ol' adjective aspects of the common law. They do not constitute 'litigation' in the sense that litigation, aa it is generally conceived, is an action between individual litigants for damages or other private redress in which the right of Jury trial obtains." (p. 560J As to the sufficiency of a complaint filed pursuant to this provision, the Sixth Circuit Court of Appeals says: "The sole function of the complaint is to advise the respondent of the charges constituting unfair labor practices as defineci in the Act, that he mr.y have due notice and a full opportunity for hearing thereon. The Act does not require the particularity of pleading of an indictment or information, or the elements of a cause like a declaration at Jaw or a bi!! in equity. All that is requisite in a valid complaint before the Board is that there be a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense." (NLRB v. Piqua Munising Wood' Products Comp:rnY,, 109 F<2d) 552, cited in Teller's Labor Disputes and Collective Bargaining, Vol. 2. p. 1005). The above is sufficient to dispose of respondent's contention that rho instant proceeding is a criminal action and hence the Court considers th1i first three grnunds of respondent's motion to dismi!';!i as not well taken. What remains for the Court to consider is the fourth ground, It is our opinion that the procedure prescribeci in section [ for the hearing of unfair labor practke cases docs not violate the constitutionnl 1·equirement of due process· As stated earlier, Section 5(b) of our law was copied from section 10{b) of the National L&bor Relations Act, nnd in overrding the contention that this Act was lacking in due prucess of law, the United States Supreme Court declai·ed: "We construe the procedural provisions as affording acl1iqmtte opportunity to secure judicial protection against nrbitn1ry action in accordance with the. well-settled rules applicable to administrutive agencies set up by Congress to aid in the enforcement of valid legislation." <Jones and Laughlin Steei Corporation vs. National Labor Relations &ard, 301 USO 1'he Court notes, howe\•er, that what respondent objects to is the procedure prescl'ibed in section 5 in relation to section 25. This is evident from the wording of the fourth ground quoted at the Jx... ginning and the statement on page I2 of the motion to the effect that "Section 5 und 25, insofar as they complem1mt: each other, arc null and void." Jn <lffect it is respondent's -zontention Uint sC'ction 25 is inseparable from section U because any finding or decision of this Court in an action or proceeding brought under section 5 to the effect that one of the unfair labor practices enumerated in section 4 has been committed will Hutonv1tically require the imposition of the penalties iirovided in section 25. The C.ourt dcE:s not subscribe to such a \•iew. lice ~1~s!~ea~~r:tl'i~:~1~:j ::~::~~dc~~t, n::u;l~:vi~~:~y u;:!~~~e~a:~. ~:a~: assumption in not correct.. In the £eCOnd place, the first paragraph of section 25 is applicable only to persons who violate section ! and the commission of any of the acta of unfair labor practice enumer1tted in section 4 is not necessarily also a violation of section 3. In the third place, a close eJ(amination of these two aed iona will show that they are not inseparably intertwined but on the contrary can stand alone and independently of each other. Consequently, the irnposition oi the penalties provided by section 25 is not mandatnry 1~1 proceedingi; brought under section 5. It is our opinion that in the l.vent of a finding by tlai11 Court in an unfair labor practice case mitiated under section 5, that any pcn;on has engaged or is engaging i:i unfair labor practice, only the i·emedies and reliefs provided in said section may be granted. In such case, this Court should not and cannot at the same tim(. impose the penalties prescribed in section 25. On the other hand, in case the imposition and penalties prescribed in section 25 is sought, a criminal complaint or information must be filed a nd the requirements of due process as to procedure and evidence in ordinary criminal cases must be observed. As to the sufficiency of the complaint filed in this case, the Court is satisfied that it conforms substantially tc> their requirPmrnts of due process. At any rate, when a complaint does not fairly apprise the respondents '>f the acts alledgely constituting unfair labor practice and of· all other issued they are required to meet, such defect shouid not be a sufficient reason to dismiss or quash the complaint; at most, it could serve as ground for a motion for bill of particulars. IN VIEW OF ALL THE FOREGOING, the motion under consideral;ion shoulcl be, as it is hereby, denied. SO ORDERED. Manila, Philippines, October 3, 1953. {$GD.) JUA N L. LANTING As. 'foetate J u.dge Re public or the Phillppinea ~p n rtme nt of Public Works 11nd Commun ic11lions BUREAU Of' POSTS MANILA SWORN STATEMENT 1Re11uirl'd by Act 26801 The umlcrsig ned. VICENTE J, FRANCISCO e<litorf1nn nruti ng l'ditor/hUllnest man11ger/ owner / r>ubli1her. of THE LAWYERS JOURNAL (title o f publkatlonl. p ublished once 11 month (frequcncy of issue). in ENGLISH AND SPANISH C111n¥U•irt• In which r>rinled). nt 1190 Tnft A\•enue, Mnnil11 (office of 1>ublie.tlon) • ..rt.,r havin Jt been duly s worn in nceordnnec with lnw, he reby submit.I th" followin1t 1ta1"ment <>f ownershi11. rn11nn)!'.Cm<' nt. ci rcu!ntion, d e . . which ia reQuirW by Act 25SO, 111 amended by Commonw~ nlth Act No. 201: Po.t·Offke Addreu 1190 Tftft Avenue, Ma nila 1190 Tnft Avenue, Mnnl111 1190 Taft A•·enue, Mani la 1190 Ta ft A\enue. Manila 11 90 Tdt Avenue. Mulla !05 Don A. Rocet Ave., Queion Cl\J' 11 90 'l'llft A\•enue, M1tnil1< If publication Is owned by n corPOrnt ion , 1tockho lder1 owning one percent or more of the totnl nmount of at04'ka: NONE NONE · ·n~~;,i,;.;1d~~~: · ;..;~~tU~~;;~: · ;.~ · ·~lh .... r. · .;.,cu~it; · i.'0'1d~~; · ·~.;.~';~~· · ~~~· · ~; · ~~·t· · ~; more of totnl nmnunt of ""curity : NONE NONE · ·1·,; ·~~.-.; ·~r ',j~;°1~· ~~L1i~~i;~~·: ~~·~·r~;..; .. · 0nu n;~; ·~r · ~~1~ie·.· ·1;;;~·t:.d' ~·~.i ·~;·.~~·1~i~ · ~; < •nch iu u ~ during the rroccdin1r m <'nlh of , ......................... 19 .• • I. Sent to 1 >aid •ub!!Cribera .. • : . . . . ....... . 2. Sent to nthe ra thnn 1 •11id sub11eribers , .. In cue of Pllhlicntlon othe r than daily. total numher of co1 1\u r>rintt><I •11d drcu!nted of lhe 1 111t Issue dated Aua u ot SI. 1954. I. Se nt to vnid 1uh•c rihc,r1 . . . . . . • . . . . . . . . 3.~00 2. Sc nttoothera thnnpnid sub&crlbcrt. 100 1S1:1d.l VICENTE J . FRANCISCO ISl1tnaturel OWNJ:ll AND PU llLl!'.trE I< ITille of dultrn•tlonl Subocribed a nd zworn lo before me thl1 1 day of October. 1954 Al M•nlla ti... nffln nt exhih!tlng Illa n ~ai d<>n"" Cu1if!cftt" No. A-0195i31 l&11UHI 111 Q. C .• Morch 28, 1954. Doe. No. 807 P alj'.f: No. E! Book I Serio of !9S4 RICARDO J . FRANCISCO Notary P ublic Until Dec. SI. 1954 ( NOTE): Thit form i1 uem pt from the Pf\J'ntent of dorull'M!ll~'"J' stamp lu. li26 THE LAWYERS JOURNAL October 31, l!l54 DECISION OF THE COURT OF INDUSTRIAL RELATIONS La Mallorca Local JOl, Petitioner, vs. La Mallorca Taxi, Respo11dent, CaRe No. 4-ULP, Octobe-r 3, 1953, Lanti11g, J. 1. COURT OF IN DUSTRIAL RELATIONS; UN1'~AIR LAP:OR PRACTICE; NATURE OF UNFAIR LABOR .t'RACTICE PROCEEDINGS. - An unfair labor practice proceedings under Section 5 of Republic Act No . 875 is not a crimiul'l.I action. The und<.?rlying purpose of i;rvceedings undex this 1:1ection nf the Act is the effectuation and rireservation of industrial harmony. Accordingly, it has been held that while complaint proceedings may in given cases result in incidental relief or benefit to individual employees, the proceedings are intrinsi<'alJy of a public nature. The proceedings are novel in our j·Jridical system, having been comparatively recently created by the original Act. They have neither depenc!ence upon nor relation to either the substantive or adjective aspects of the common luw. They do Mt r:onstitute litigation in the sense that litigation, a s it is generally conceived, iii an action between individual litigants for damages or other private redress. 2. ID·; ID.; SUFFICIENCY OF THE COMPLAINT, -- The sole function of the complaint is to advise the respondent of the charges constituting unfair labor practices 'lS defin-cd in the Act, that he may have due notice and a full opportunity for hearing thereon. The Act does not require the particulnrity of pleading of an indictment nr information, or the element~ of a cause like a declaration :it law or a bill in equity. -All that is required in a valid complaint before the Board is that there be a pbin statement Or the things claimed to c0nstitute ~n unfair labor practice that respondent may be put upon his V ~~fense. 3. ID.; ID.; EFFECT OF DEFECTIVE COMPLAINT. - When a complaint does not fairly apprise the respondents of the acts allegedly com:tituting unfair labor practice und of all other issues they are required to meet, such defect should not be a sufficient reason to dismiss or quash the complaint; at most, 'it could serve as ~ound for a motion for bill of particular:>;. 4. ID.; ID.; IMPOSITION OF PENALTIES. - In the event of a finding by this Court in an unfair labor practice case initi.ited under section 5, that any perscn has engaged or is engaging in unfair- labor practice, only the remedies and l'eliefs providf'd in said section may be granted, In such case, tr.is Court should not and can not at the same time impose the penalties prescri~d in section 25. On the other hand, in case the imposition of ~he penalties prescribed in section 25 is sought, a criminal complaint or information must be filed and the requirements of ~ue process as t<· procedure and t:vidcnce in ordir..::i.ry criminal ca£E''> must be observed. B. C. Gonzales & Actg. Prosecntor Estanislao Maralit for petitioner. Manuel Chan for respondents. ORDER This concerns a motion of respondent seekin!(" to dismiss or quash the compluint filed by the Acting Prosecutor of this CJurt dnted August 15, 1953 against _ the La Mallorca Taxi for unfair labor practice. Thf' grounds in support of said motion are as follows: ''l. The complaint, which is a crimin:il action, has not been brought in the name of the real party iu :nterest, that is, the People of the Philippines; 2. The respondent is a juridical person, and a juridical per son cannot be made a defendant in a criminal action; 3. The a llegation~ of the complaint are vague, uncert•lin and fails to inform t he respond<'nt of the naturE' and caust. of the accusation against it ; amt 4 . The JH·ocedure prescribed by Republic Act 875 for the hearing or trial of violation of the provisions elf the same, thnt i!I, by Section 5 thereof, in relation to Sc.ction 25 of the said Act, is unconstitutional a ud void." The first three grounds are all wholly based on the premi..se that the complaint filed in this case is a criminal complaint and that consequently the present action before this Court is a criminal n.ction. An examination of this premise is therefore necessary. First of all, the complaint itself states that it was brought "pursuant to Section 5(b) of Republic Act No. 875." Said section 5(b) provides: "(b) The Court shall observe the following procedure without resort to mediation and conciliation as provided in SecLion four of Commonwealth Act numbered One Hundred and Three, as amended, or to any pre-t rial procedure. Whenever it is charged by an offended party or his representative that any person has engaged or is engaging in a ny such unfair labor practice, the Court or any agency or agent designated by the Court must investigate such chal'ge and shall have the power to issue and cause to be served upon such person a complaint, stating the charges in that respect and containing a notice of hearing before the Court or a member thel'eof, or before n designated Hear ing Examiner, at the time and place fixed therein not less than five nor more than ten days after serving the said complaint. The p·erson complained of shall have the right to file an answer to the complaint and to a ppear in person or otherwise (but if the Court shall so request, the appearance shall be personal) and give testimony at the place and time fixed in the complaint. In the discretion of the Court, a mem· her, thereof or a Hearing Examine1-, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding, the rules of evidence prevailing in Courts of law ol' equity shall not be controlling and it is the spirit and intention of this Act that the Comt and its members and Hearing Examiners shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law or procedure. In rendering its decisions, the Court shall not be bound solely by the evidence presented during the hearing but niay avail itself of all other means such as (but not limited to) ocular inspections and questioning well-informed persons which results must be made a part of the record. I n the proceedings before the Court or a Hear ing Examiner thereof, t he parties shall not be required to be represented by legal counsel and it shall be the duty and obligation of the Court or Hearing Examiner to examine and cross-examine witnesses on behalf of the parties and to assist in the orderly presentation of the e\•idence." Paragraph 4 of the complaint allc $ es "that by t.he acts described in paragraph three (3) above, respondents and/or its agents have engaged and are- engaging in unfa ir labor practice within the mean· ing of Section 4(a) , sub-section 1 of Republic Act No. 875." The provisions referred to i·eads as follows : "Sec. 4. Unfair Labor Practice.(a) it shall be unfair labor practice for an employer: ( 1) To interfere wit.h, restrain or coerce employees in the exel·cise of their rights guarnateed in section three ; Section 5(b) of Republic Act No. 875 was borrowed substantially from Section lO (b) of the National Labor Relations Act of the United States which, as originally enacted, reads: " SEC. lO(b) Whenever it is charged that any person has engaged in or in engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Boord for such purposes, shall have powe1· to issue and cause to be served upon such person a complaint stating the charges in that res· pect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed not less than five days a!ter the serving of said complaint. Any such complaint. may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an October 31, 1954 TH E LA WYERS JOURNAL 625 order based t hereon. The person so complained of shall have the r ight to file an anirwer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of thf' member, agent or agency conducting the hearing or the Board, any other person may be allowed to intervene in the said proceeding and to present testimony. In any such proceeding the rules of evidence prevailing in courts of law or equity shall not be controlling." Comment ing on the above-quoted provision, Rothenberg, in his book entitled " Labor Relations," has the following to say : "The underlying purpose of proceedings under this section of the Act is the effectuation and preservation of industrial har mony. Accordingly, it has been held that while compla int proceedings may in given cases result in incidental relief or benefit to individual employees, the proceedings a re intrinsically of a public nature. The proceedings a re novel in our juridical system, having been comparntively recently created by the original Act. They have neither dependence upon nor r elation to either the substantive or adjective aspects of the common law. They do not constitute 'litigation' in t he sense that litigation, aR it iR generally conceived, is a n action between individual litigants for damages or other private redress in which the r ight of J ury trial obtains." (p. 560J As to the sufficiency of a complaint filed pursuant to this provision, the Sixth Circuit Court of Appeals sa ys : "The sole function of the complaint is to advise the r~ spondent of thr. charges constituting unfair labor practices as defined in the Act, that he mr.y have due notice and a fu ll opportunity for hearing thereon. The Act does not require the particularity of pleading of an indictment or information, or the elements of a cause like a declaration at law or a bi!! in equity. All that is requisite in a valid complaint before the Board is that there ht> a plain statement of the things claimed to constitute an unfair labor practice that respondent may be put upon his defense." <NLRB v. P iqua Munising Wood' Products Company, 109 F C2dl 552, cited in Teller's Labor Disputes and CollectiVe Bargaining, Vol. 2. p. 1005). The above is sufficient to dispose of respondent's contention t.hat the inst::i.nt proceeding is a criminal action and hence the Court considers the first three grounds ~f respondent's motion to dismiss as not well taken. W hat remains for the Court to consider is the fourth ground . It is our opinion that the procedure prescribeci in section [ for the hearing of unfair labor practk e cases does not violate the constitutional requirement of due process· As stated earlier, Section 5 (b) of our law was co11ied from section lO<bJ of the National J_i..bor RelatiO llli Act, and in overn:ling the contention that this Act was lacking in du<.' process of law, the United States Supreme Court declared: "We construe the procedural provisions as affording ad~ quate oppo1-tunity to secure judicial protection against 11rbitnu·y action in accordance with the well-settled rules applicable to admi111strative agencies set up by Congress to aid in the enforcement of valid legislation." (J ones and Laughlin Steei Corporation vs. National Labor Relations & 3.rd, 301 U8I> The Court notes, however, that what respondent objects to is the procedure prescribed in section 5 in relation to sect ion 25. This is evident from t he wording of the fourth g round quoted at the ht-ginning and the statement on page 12 of the motion to the effect, that "Section 5 und 25, insofar as they complemenl; each other, are null and void." Jn effect it is respondent's :ontention that section 25 is inseparable from section 5 because any fi nding or decision of this Court in an nction or proceeding brought under section 5 to tJ1c effect that one of the unfair labor prnctices enumerated in section 4 has been committed will autom'1tically require UJe imposition of the penalties provided in section 25 . The Court dcE:s not subscribe to such a view . . Jn the fi n1t placP, J"espondent assumes that unfair labor practice cases arc criminal nctions but, ns previously ).lointed out, such assumption in not correct.. ln the E:tCOnd place, the first paragraph of section 25 is applicable only to persons who violate section :! and the commission of any of the act& of unfair labor practice enumerated in section 4 is not necessarily also a violation of section S, ln the third place, a close e..r:amination of these two sections will Mow that they are not inseparably intertwined but on the contrary can rtand alone and independently of each other. Consequently, the imposit ion of the penalties provided hy section 25 is not mandaY,ry i:l proceedin~ brought under section 5. It is our opinion that in the €.Vent of a finding by tliia Court in an unfair labor practice case mitiateci under section 5, that Rn y per.son has engaged or is engaging i:i unfair labor practice, only the i·emedies and reliefs provided in said section may be granted. In such case, this Court should not and cannot at the same tim£. impose the penalties prescribed in section 25. On the other hand, in case the imposition and penalties prescribed in section 25 is sought, a cr iminal complaint or information must be filed and the requirements of due process :is to procedure and evidence in ordinary criminal cases must be observed. As to the sufficiency of the complaint filed in this case, the Court is s!ltisfied that it cnnforms substantially tC' their requil'f'ments of due process. At any rate, when a compla int does not fairly apprise the respondents l)f the acts alledgely constituting unfair labor practice and ot all other issued they are required to meet, such defect shouid not be a sufficient reason to dismis.'I or quash the complaint ; at most, it could serve as ground for a motion for bill of particulars . IN VI EW 0F ALL THE FOREGOING, the motion under considera~ion should be, as it is hereby, denied. SO ORDERED. Manila, Philippines, October 3, 1953. <SGD.> JUA N L . LANTING A s11ocrnte Judge Republic of the Philippines D<!pnrtmc nt of Public Worh nnd Commun icatio n• BUREA U OF P OSTS MAN ILA SWORN STATEMENT IRc<1uirW by Act 26801 The umlersigned . VICENTE J . FRANCISCO editor(1na n n~dng !'ditor/bu1lneu m11n11ger/ owoer/ r>ubli1her. of TH E; LAWYERS J OURNA L ltltle o f publlcatlonl, puhli$hed once n month (freQ.ucncy of iuueJ. in ENGU SH AND SPANISH (hintruall'.e in which printed), nt 1190 Tflft A•·enue , Mnnlln (orfi.,., of 1 mblic&t lon) . after hll.vinll' been duly s wMn in nccordnnce with lnw. hen!by aubmil.a the follow!nlf 1tatune nt of ownel"'!hip, mn n nl!"c m~ nt, clrcul ntion. de . . which Is re<1uired by Act 2~80. al a~nd · e<I hy Commonwenlth Act No. 201: E<litor VICENTE J . FRANC ISCO Mnnn11:ing Editor V. J . FR ANCISCO Du•ineu Mnnajl.'er A. OCAMPO Owner VICENTE J. FR,\NCISCO P ublisher V. J . FRANCISCO P rinlt;r CA PITOL PUB. HO USE , INC. O rfice of 1 mblic11tio n P o1t· OHite Add rus 1190 Tnft Avenue, Ma nila 1190 l'dt Ave ,.ue, Ma nila 1190 Tuft A•·enue. Ma nila 11 90 Ta ft A•enue. Ma nila 11 90 Ta ft Annue. M11nltn 106 Don A. Rocu Ave., Qunon CltJ 1190 Taft Avenue. l'ofil nl!& Ir puhlic11tlon i! owned by a corporotion , 1tockholden owning one percent or mo1"<! of the to\il.I a mount of stocks : NONE . "R~ ~;1i,;..j ;1~;~ : . ;,; ~rt·~~g;,;~," . ~~. ·~th·c·; . ;.,cu~it; · i,',."1d~ ~;' ·,;~~·I ~ ~· '~~~ · ·~~' ~~·l. ~; more of tolnl nm<>unt of ""curily : NONE · ·1~ -~~.:e: -~i ·.i~i1~ · ~~·b1 i;~t;~·n·.· ~~~~~~·e· ·nun;i,.:; ·~i · ~~l,i~.· ·1;;;~;t;.d. ~·~.i ·~1,.:,~·1~t;d · ~f ~a~ h issue during the r roooding m<'nlh o f . .. .•...........•......• 19 ..•• : I. Sent lo pa id sub9criben .. . . • .. . . . . • . .. 2. Sent to ntheu than p,.id !ub.icriben. In CllM! of publ kntion other tha n dnily, totnl nu mber of coplu rrinted and clreulnted of the !111t i11ue dnted August SI. 19H . I. Sent to p11 id 1ub•crib<.rs ................. S,200 2. Sent to othen thnn 1 1nid 1ub1edbert , . 100 ISl!'d.) VICENTE J . FRANCISCO !Sllfn•lu~l OWNER AN!) PURL l ~HEk <Titl .. ofde•lirn11tionl Subscribed and 1worn to be fo~ me t hi1 1 d11y of Cktober, 1964 11t ?•fanll• the affh1nt u:hibitlng his n~1idcn~e Certi ficate No. A·0196731 1 .. u(>(I <ll Q. C., Oil Mnn::h 28, 1954. Doc. No. 307 ::: ro . 63 Serle1 of 195~ RICARDO J . FRANCISCO Nol&ry Publlc Until I~. SI. 1964 (NOT!:;): Thi• fo rm i• nem t>t from the PAJ'rnent of doeurnent!lry ..:a.mp Ill.I'. 526 TH E LAWYEHS J OURNAL October 31, 1954 REPUBLIC ACTS REPUBLIC ACT NO. 1198 AN ACT CHEATING . THE OFFICE OF STATE ATTORNEYS IN THE DEPARTMENT OF JUSTICE AND DEFINING ITS POWERS AND DUTIES AND AUTHORIZING THE APPROPRIATION OF FUNDS THEREFOR. 8t' it enacted by the Senale and Houst of Representatives of the Phili'PTJines in Congress assembled; SECTION 1. There shall be in the Department of J ustice an Office of State Attorneys composed of on(' chief, two assistant chiefs and sixteen state attorneys whose tc1 m of office shall expire on the thirty-first day of December, nineteen hundred and fifty-seven. The Chief of the OWce shall receive a salary of twelve thousand pesos 7Jc-r annum, and shall have the rank of Solicitor General. He sh:i!l he assisted by tw') Assii;tant Chief Attorneys who shall each receive a salary of nini; thousand pesos per aiznum and sixteen State Att.orncys who shall o,'!ach receive a s:l.lat·y of eight thousand !)esos per annum. The Chi('f anrl Assistant Chiefs of the Office of State Attornev~ and the sixteen State Attorneys shall be appointed by the Preside~t of the Philippines with the concurrence of the Commission on Appointment!-!. No one shall be appointed as Chief or Assistant Chief of the Ofricc of State Attorneys unless he has had at least ten years of trial court practice, and as State Attorney unless he has had at ll<ast five years of trial court practice in the Philippines; and appointment may take into account equitable representation of provinces in the Office, considering for this purpose the representation the provinces now already have in the offices of the provincial fiscals. SEC. 2. The Chief and Assistant Chiefs of the Office of State Attorneys and thP State Attorneys shall havp the same powers as the provincial or city fiscal as provided for by the Jaw: Provided, That the State Attornt!y shall only assist. or collaborate with tht! provmcial fiscal or city attorney unless otherwise expres~\y directed and authorizt!d by the Secretary of Justice. In a\J cases involving crimes cognizable by the Court of First Instance, no complaint or information shall be filed without first giving the accused a chance to be heard in a preliminary investigation, Wht!re such accused shall be i;uhpoenaed and appears before thf'I investigating state attorney with the right to cross-examine the complainant and his witnesses. The preliminary investigation shall be held at the capital of the province where the crime was oommitted. The State Attorney shall certify under oath in the information to be filed by him that the defendant was given a chance to appear on his behalf or by counsel: Provided, however, That when a prehmi1iary investigation has already been conducted by thP Justice of the Pt!ace or the Provincial or City Fiscal and where such official has found at least a 1irima facie case, the State Attorney may not conduct another preliminary investigation. To this end, the Stat" Attorney may summon witnesses and require them to appear and tes tify under oath before him and/or issue 1mbpoena ditces tccztm. The attendance of absent or recalcitrant witnesses who may be sumn.oned or whose testimony may be required by the State Attorneys under the authority herein oonfe~Tcd shall be enforced by proper process upo11 application to the corresponding Court of First Instance. In the invPstigation of ci·iminal cases, any State Attorney shall be e11titled to request the assislance of any law enforcement or investigation agency of the government. The Chief of the Office of State Attorneys and the State AttoYneys shall perform such othei· duties n;; in the interest of the public service may be assigned tC' them from tim<' to time by the Set!retary of J ustice. SEC. 3. The Office or State Attorneys shall be provided with such subordinate personnel as may be authorized by the appropriation law. SBC. 4. Upon the organization of the Office of State Attorneys, the Prosecution Di\liSion in the Department of Justice shall be deemed abolished and its properties, furniture, equipment and records shall be transferred to the Office of State Attorneys. SEC, 6. There is hereby authorized to be appropriated, out of any funds of the National Treasury not otherwise appropriated, the. sum of three hundred thousand pesos for the salaries of the State Attorneys and their personnel and maintenance elf the Office. SEC, 6. This Act shall take effect upon its approval. Approved, August 28, 1954. REPUBLIC ACT NO. 1080 AN ACT DECLARING THE BAR AND BOARD EXAMINATIONS AS CIVIL SERVICE EXAMINATIONS. Be it enat:"ted by the Senat.e and House of Representatives of the Philippines in Congress cssembled: SECTION 1. The bar examinations and the examinations given l;y the various boards of examiners of the Government are declared as civil service examinations, and shall, for purposes of appointment tr. positions in the classified service the duties of which involve knowJ. edge of the respective professions, except positions requiring highly specialized knowledge not covered by the nrdinary board examinationa, be considered as equivalent to the first grade regular examination given by the Bureau of Civil Service if the profession requires at least four years of study in college and the person l1as practiced his professiDn for at least hvo years, and as equii•al<'nt to the second grade regular examination if the provision requires less than !our years of college study. SEC. 2. 'l'he Commissioner of Civil Service shall be furnished by the CIP.rk 0f the Supreme Court and the Secretary of lhe Board of Examiners a list of the successful candidates in the respl?(:five bar or board examinations with their general averages, and preference shall be given to those cbtaining the highest ratings in making appointments: Provided, That for those who have already passed the corresponding bar or board examinations, the eligibility shall be deemed to commence from the approval of this Act. SEC. 3. The Commissioner of Civil Service shall promulgate the rules and regulatiDns to implement the provisions of this Act. SEC. 4. The benefits granted under this Act shall not prescn"'be, the provisions of civil service law or regulations notwithstanding. SEC. 5. This Act shall take P .ffcct upon its approval. Approved, June 15, 1954, OPINION NO. 129 . (Continued from vage 499) ditir::s not included in the list are nut governed by the cited presidential decree <Section 11) , it is believed that the exportation of rice bran may net be controlled or restricted by the Export Control Committee. The need for the conservation of rice bran for local consumJ1tion underscored by the Direct-Or of Animal Industry as essential to the campaign for increased production of pouh ry and livestock d0es not supply legal basis for the Export Control Committee to control nr restrict its exportation. Necessily does not create power. Neither docs it afford legal ju<;tification for the exercise of a power vested in some other authority. The President, not the Export Control Committee, is the authority designated by statute to implement and carry out the policy expressed in the Export Control L11w and the Committee, as thereby created, mercJy usista the PresidPnt in its execution and nes to it that the rules and regulation!; issued thereunder 1\r~ observed and carried out. lf there is such an urgent need for restricting or controlling the ex1 mrtation of ricr. bran, the remedy lies in the President who may 11rohibit or regulate its exportation thru the issuance of the aprropriate amendatory executi\·.:: order. But until then, it is my opinion that rice bran may be exported even without applying for n permit from the President. Respectfully, PEi>RO TUASON Secretary of Justice October 31, 1964 THE LAWYERS JOURNAL 527 628 FRANCISCO COLLEGE (2nd Semester, 1954-1955) LAW FACULTY PRESIDENT VICENTE J . F RANCISCO ... Dean HON. PROCESO E . SEBASTIAN - Vice-Drnn; former Senator; former Ambnssador; former J udge of the CFI; former Associate J ustice of the Court lf Appeals. ProfeGsor of _ Partnership. HON. JOSE P. BENGZON - former Secretary of Justice. Professor of Criminal Law <Book II). HON . DIONISIO DE LEON -- Associate Justice of the Court of Appeals. Professor ,,_.f Criminal Procedure . HON . P01'ENCIANO PECSON - former Judge of the CFI; former Associate J ustice of t he Court of Appeals. Professor of Evidence . HON. J ACINTO BORJA - LL.M· <Columbia Univ.); D.C.L 1UST): Member, undtfea~d UP Debate Team that tnured tht world in 1927 CUSA & Europe.); Membei-, Bar of the Supreme Court of the USA; Chief, European and African Affairs, Department of Foreign Affairs; forme'I' Governor of Bohol. Professor of Con<>titutional Law.. J UDGE NICASIO YATCO - Judge, CFI, Quezon City . Professcr of Special Proceedings and Legal Forms. JUDGE FELICISIMO OCAMPO - Judge, CFI, Manila; furmer Prov. Fiscal, NE; Professor of Criminal Procedure & Evidence Review and Practice Court TJJ . JUDGE ANASTACIO TEODORO - former Judge, CFI . Profess.::ir of Legal Argumentation and Brief Making. DR. JORGE COQUIA - LL.B. <UP); LL.M. & S.J .D. <Ca°tholic Univ. of America) Practising Attorney; Faculty Member, G~aduate School of Law; Professor of Jurisprudence. ATTY. AMADO G. SALAZAR - Ll.B. <UP); Practising Attorney; Professor of Administrative & Election Laws an<l Politic!'.! Law Review. ATTY. LF.ONARDO A BOLA - Practising Attorney ; Professor of Civil Law Review CProperty; Will<.! & Suc,ces ... ion; Obligations and Contracts). ATTY. ALFONSO FELIX, Jr. - Practising Attorney; Professor of Mercantile Law Review. ATTY. PAULINO MARQUEZ - Reporter, Supreme Court of the Philippines ; Profe~sor of Civil Pr0cedure Review. ATTY. ALBERTO J. FRANCISCO - Practising Attornry: Profossor of Obli~tions & Contracts and Civil Law Review (Persons & -Family Reh:tions). ATTY. J OSE J. TORRES - Practising Attorney; B.S.C.; CPA; LL.l\L; Post-graduate course in NC'w York University (SpeciaHzed in Taxation); formerly with the Bureau o! Internal Revenue ati Senior Examine:- (12 years); Tax Commltant, Meer, Meer and Meer Law Offices. Profes.wr of Taxation. ATTY. ARSENIO MARTINEZ - PH . B. <UP>; Ll.B. <UP ) ; M.A.B.A. CNU); Specio.l Attorney, Crurt of Industrial Relations; Professor of Transportation Laws. ATTY . PASCUAL BAU1'ISTA - Chief, Petroleum Land J. Admini.!¢ration Division, Bure:lu of Mines. Pr..:ifessor of Laws on Natural Resources. ATTY. ABRAHAM SARMIENTO - Practising Attorney; ProfessoJ" of Credit Transactions. LAW CURRICULUM First Year Criminal Law <Book Ill <3) . . . Hon. Jose P. Bengwn Obligations and Contracts <5) .... Atty. A. Francisco Roman Law II (2) ....• Atty· C. Padua I~egal History <2) ............• Atty. A. Orendain Natural Law < 2> ............... . Atty. Rod. Francisco Second Y ear Const.itutional Law (3) ........•. . Hon. Jacir.to Borja Credit Transaetions C3l .•..•....• Atty. A. Sarmirnlo Mercantile Law (2) . . Atty. M. Cardenas Negctiable l nstrument.s Law (2) . .. Atty. R. Mabanta, J ... Laws on Natural Resources (2) ... Atty. Pascual Bautista Criminal Procedure (2) . Hon. Dionisio de Leon Partnership (21 . Vice-Dean p . Sebastian (t61nporary ) Third YeruSpecial Proceedings <2> Evjjence f3) •rransportation & Publ:c ..• Judge Nicasio Yatco Hon. Potenciano Pecson SP.r.vice Laws (2) .. Atty. A. Martinez Jurisprudence (21 , , Dr. J orge Coquia Legal Forms (1) ............... . Judge Nies.sic Yatco Legal Argumentation & Brief Making (2) .. Judge Anastacio Teotl:oro Administrative & ElC>etion Laws (3 ) ......•...• Atty. A. Salazar Tax&tion (2) .. Atty. Jose L. Torres Po11rth Y ear CIVIL LAW REVIEW: <a) Persons & Fu.mily Relations (1) (b) Property; Wills & Succession; Obliga.... Atty. A. Francisco tions and Contracts <4) Atty. I,. Abela Mercantile Law Review ( 4) ..... • Atty. A. Felix, Jr. REMEDIAL LAW REVIEW: (al Civil Proceciure (2) ...... Atty. P. Marquez <bl Criminal Prccedure & Evidence (2) .......•.. .• J udge F. Ocampo Political Law Review (8) .••• , • Atty. A. Salazar Practice Court III (1 ) . . •... . ... Judge F. Ocampo Advanced Trial Technique (2) .. Dean V. J . Francisco ATTY. ROMA N MABANTA, 'J r. - Practising Attol'lley; tt>ok special graduate studies in Commercial Lsw at the Columhia Law School <1930-51) and in Harvard Law Sch%1 <1951-1952). Professor of Negotiable Instruments Law. ATTY. MANUEL CARDENAS - PraC'tising Attorney; Prafessor of Mercantile Law. ATTY . CEF'ERINO PADUA - Practising Attorney; Editor, Pasay Times; Professor of Roman Law JI . ATTY. ANTONIO ORENDAIN - B.S. in Journalism <FEU>; LL.B. (FEUt; former Press Assistant, Malacai'iang; Professor of L<?gal History. ATTY. RODOLFO FRANCISCO - LI. B. <F.LS>; A.saistant Attorney, Francisco Law Officea; Instructor of Natural Law. THE LAWYERS JOURNAJ, October 31, 19M Lawyer's (/)iARdo111J ADRIANO, LOPE E. R-201 Sllftl11nillo Blda-.• Tel. 3-33-64 ,lGPALO. JOSE S. 150 Upt.nto, Sampaloc, Manll111 Tel. S-24-!12 ANTONIO, ROMAN B. !02 Samanillo Bldit .• Manila 'l'al.2-92-09 ANZURES, Dr. PABLO · La.,.:rer Medico-Le11al Expert Tel. 3.7g.49 Rm. 404 Burke Bldg., Escoll.6 Santa Meaa Blvd., corner Soeie110, Manila Tel. 6-~3..116 BANICO. HERMlNIO 8 . R-20 1 Samnnillo Bldir., Manila Tai. 3.35.54 CARDENAS, JOSE PEREZ 405 Avilea, Manila T~ I . 6·71-811 DACAYO, LEON P. Suite 429. Fourth Floor Wm. Ll Yao Bldg .. Manila S94 Oambanir Ext .. Manila DALUPAN 6 SANCHEZ R-314 Reirlna Dldir., E1eolt11, M1mila T11. S-27-:>7 DALMACION. ALBERTO L. &-201 Sam-.nillo BLdr .. Manua Tel. S-U-U FERNANDEZ J R., ESTANISLAO A. 308 Samanmo Bld2' .. Manila Dial: Tel: 2·92-09 Call: 4326 FRANCISCO. ALBERTO J. R.-201 Samanillo Blda' •• Man..ila Tel. J-ll-64 FRANCISCO, RICARDO 1. R-201 Sa.manilla Blda" .• Manlla Tel. S-3S-64 FRANCISCO, RODOLFO J. 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QUISUllBlNG & SALAZAR LAW OFFlCF.S 5th Floor, Trade 1tnd Co.mme"'e Bide". 123 Juan Luna, Manila Telephonu: 2-15-89 6 !-93-26 SAN JUAN, AFRICA, YIUGlJl:'Z 6 B~EDri:rO Suite 226 Rel'.lna Bldl'. .. 2nd Jo'loar Eocolt.a, Manila. Tel. 1-28-60 SANTOS, J OSE T. DE LOS. SANTOS CIRIACO T. OE LOS Suite• 202-206 Pedro Cn11 Bld,g, '26 Evangeli1ta, Manila Tel. 3-3'-"9 SORIANO. MANUEL A. Q, Soriano La..,. Offlcn Suite 409 Se.manillo Did&". Eacolta, Manila TENZA. l!USEO M. Sult.. No. 409, Samanlllo Did&. Etcolta.. Manila Tel. 1-'5-19 -qoNDS ~.KINDS IWILO Atty. TIRSO EZPELETA Branch Manager SAN FDO., PAMPANGA Mr. GREGORIO T. CASTRO Branch Manager CALAPAN, OR. MINDORO Mr. ANDREJ::. T . FORTUS Branch Manager INSURANCE FIRE, PERSONAL ACCIDENT y & Fidelity Co., Inc. Dr. PRECIOSO S. PElilA GENERAL MANAGER PJa.za Sta. Cruz, Corner Ongpin, Manila TEL. 3-98-80 * BRANCHES: BACOWD Mr. MARIO S. VILLANUEVA BranCh Man'ager CEBU CITY, CEBU Mr. ANTOLIN A. JARIOL Branch Manager LAOAG, !LOCOS NORTE Dr. PABLO J, RAVAL Branch Manager NAGA Mr. FRANCISCO IMPERIAL Bran<!h MaMgtr LUCENA, QUEZON Atty. FELIPE T. LOPEZ Branch Manager BUTUAN CITY, AGUSAN Mr. SILVESTRE M. OSJN Branch Manager YOUR PROTECTION IS OUR BUSINESS. IF WE CAN BE OF SERVICE, JUST CALL US •• ALL KINDS OF INSURANCE (NON-LIFE): * Fire * Marine * Casualty * Workinen's Compensation, etc. ALL FORMS OF BONDS : * Judicial * Surety * Fidelity, etc. SECURITY INSURANCE & S.URETY UNDERWRITERS, INC. Main Office: Branch Office : R-208-209 Cu Unjieng Bldg., 838 Ilaya, Manila Escolta-T. Pinpin, Manila Tel. 2-83-67 Tel. 3-93-75 Atty. Eulalio F. Legaspi Atty. David F. Alegre Pres. & Gen. Mgr. Branch Manager Inquiries promptly attended to. Are your pleadings safe, accurate and impressive? PHOTOSTAT your ANNEXES and EXHIBITS . .. through our fast, modern, self-developing PHOTOSTATIC MACHINE ... All work in strict confidence, flO negatives used. Also offering WHITE. 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