Luzon Stevedoring Co., Inc., and Visayan Stevedore Transportation Co., Petitioners, vs. The Public Service Commission and the Philippine Ship-owners Association, Respondents, G. R. No. L-5458, September 16, 1953 [Supreme Court Decisions]

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Title: Luzon Stevedoring Co., Inc., and Visayan Stevedore Transportation Co., Petitioners, vs. The Public Service Commission and the Philippine Ship-owners Association, Respondents, G. R. No. L-5458, September 16, 1953 [Supreme Court Decisions]
Language: English
Source: The Lawyers Journal XIX (6) June 30, 1954
Year: 1954
Subject: Transportation -- Law and legislation -- Philippines
Rights
Fulltext: CAnnex 3.) The only question for detern1ination in the case a.t bar is whether or r.ot r espondent JuJge had, in the worJs of pEJiti'lner herein <par. 10 of the petition), " exceeded his nu1·J10rity when he issued the <'l"dcr of April 11, 1953" < Annex EJ, directing the ])rovincial sheriff "to sell at public auction whatever rights, interest ancJ participation the deJen,fants ma y have on the propcrt~· levied upon x x x the proceeds thereof to be applied in satisfaction of the judgment rendered in this case." Petitioner maintains the affirmative, upon the ground that "said partnership being in the hands !)f a receiver, the same n the properties thereof cannot be reached by execution.'' (Par. 10 of the petition.) This pretense is untenable lor the exemption from attachment, garnishment or sale undCr execution of prC1perties under 1·eceivership is not absolute. Such properties may not. be levied upon "except by leave of the Court appointing the reccivilr" (4 Am. Jur. 808; 45 Am. Jur. 132). This is a mere consequence of the theory t hat "a receivership operates to protl!ct the receiver against interference, without the consent of t he r.ourt p.ppointing him, with his cust<1dy and possession of the propert.y subject to the receivership" (45 Am. J ur. 132; underscoring supplied). Hence, "it has been held x x x that real estate in the custody of a receiver can he levied upon and sold under execution, pfovided only that the act1tal ·.'.>ossession of the receiver is not interfered wit.h" t45 An1. Jur. l ;i3-134, citi11g Albany City Bank v. Schermerhorn, 9 Paige [NY] 872, 38 Am. Dec. 551). The reason is that "orily a n~ceiver's possession of property subject to receivership x x x is entitled to protection x x x aga.inst interference" C45 Am. Jur. 134: see, also, 75 C.J.S. 75!)). Then, agaiu, the interference cnjr1ined is that resulting from orders or processes of a court "other" than that wl:ich a1 1poi!lted tlie receiver (45 Am. Jur. 136), the rule being predicated upon the need of preventing "unseemly conflicts between courts whose jurisdiction embraces the !':ame subjects and persons'' (45 Am. Jur. 137>. Thus, m Cu Unjieng c Hijos ' '8. Mabalacat Sugar Co . . (58 Phil. 439, 441); this Court said: "The fact ·that the mortgaged properties a re in the hands of a receiver appointed Ly the court which tried the foreclosure suit docs not prevent the s:wne court from ordering the sale of the aforesaid mortg.9.ged properties, inasmuch as although the said properties are in ciistodia legis by virtue of the conflict of jurisdiction therein because the court that ordered the sale thereof is the same which ordered that they be placed under receivenhip.'' public convenience in question placed in the hands of a Te.. cciver, appointed the receiver who was to take <'harge thereof, and ordered the receiver thus appointed to sell said certifica!es. Jn accordance with the a.fore-cited doctrine. said Court of F irst Instance of Tays.bas had jurisdiction to order said sale.'' For this reason, respondents maintain t.hat petitioner is not entitled to the relief sought, the garnishment and the sale under cx1·cution complained of, having been ordC'l"ed, n'lt only by the .same court of First Instance of Negros Occidental which had j urisdiction over the receivers.hip, but, also, by the aame Judye, res.. pondent Jose Teodoro, Sr., who appointed the receive.r At .any rate, the receivership in case No. 2371 is limited to the "po:;session'' and administrati'ln "of the Cilwma House dominated :rnd popularly known as Eden Theater" C Anncx 3>. This is not necessarily a receivership of the partnel"ship in question. Rut, even if it w;.ere, neither s11id possession by the receiver, nur the administrntfon of the Eden 'Theater are affected by the order complained of <Annex E), t he same being directed, not against the partncr.;.ii.ip or its propcrti'!s, but against those of Gorgonio Pandes, particularly, "whatever rights, interest and participation" he "h'.1.s or might have" in said partnership. This right, interest or participation, if any, i3 a pl"Operty of Gm·gonio Fandes, separate and distinct from the properties of the partne.rship, which has a personality of its own, distinct from that of its partners, and, certainly, of said Gorgonio Pandes C Arts. 44 and 1768, Civil Code of the Philippines>. Such property, if any, of the latter, is not under receivership. The receiver had no authority to take i~ under his custody and, in fact, never had it in his possession or under his administration. Consequently, it is not iu cu.stodia legis and is subject to levy, even without the permission of the c6urt appointing the receiver. In view of the foregoing, tho petition is hereby dismissed, with costs against the petitioner. IT IS SO ORDERED. Pnras, Pablo, Bcngzon, Mo11tcmayor, Reyes, J1 1go, Bautista. • A ngelo 1:md Labrador, J .J . , concur. Mr. Justice Padilla did not take part. xxx Lu:on Stevedorin9 Co., Inc., llnd V isayrrn Stet•edore Tra?isporta. tion Co., Petitioners, vs. The Puhlic Se1·vicc Commission and the Phil. imiine Shipo1vnc,·s Associotion, R.!npomlents, G. R. Nu. L-5458, September Hi, 1953, 'l'uazon, J. This view was reiterated .:md applied in Orlanes & Banaag Trans. Co. vs. Asiatic Petr'lleum Co. (p. I .), Ltd. and Laguna- 1 . Tayabas Bus Co. C59 Phil. 433, 439), in the followi1 1g language: PUBLIC SERVICE LAW; WHAT CONSTITUTES PUBLIC SERVICE OR PUBLIC UTILITY . - It is not 11ecessa1·y, nnder Sec. 13(b) of the Public Ser1ice Law (Commonwealth Act No. 146) that one holds himself ont as serving or willing to se!"V"e the public in order to be considered public. In Luzon Brokerage Co. v . Public Service Commi!!Sion, 40 0 . G. , 7th Supplement, p. 271, this Court declared th9.t "Act 454 is ciPar in including in the definition of public s~rvice that which is rendere-d for compensation, although limited <>Y.ciusively to th~ customers of the petitioner." 308 "The appellants contend that inasmuch as the certificates of public convenience in question were in the hands and under the control of a judicial receiver and, thetefore, in cu...-. todia legis, the Court of Firs~ Instance of Tayabas had no jurisdiction to order the sale thereof and, -::onsequently, the sale made by the sheriff of the City of Manila. to the Asiatic Pet roleum Company CP.I.), Ltd., and the assignment for the latter of its rights in favor o.f the Laguna-Tayabas Bus Com- 2 . pany are null and void. "In the case of Cu Unjie11g e Hijos vs. 1'fobalncat Suga.r Co. (58 Phil., 439), which was decided on September 22, 1933, this court held that the court, which ordered the placing of t.he mortgaged property in the hands of a receiver in a foreclosure proceeding, has jurisdiction to order the sale of said property at public auction even before the termination of the r eceivership. " In the case under consideration, it was the sa.me Court of F irst Instance of Tayabas, which ordered the certificates of JBJD ; JnlD. - In the United States where, it is said, that there is no fixed definition of what constitutes public service or public utility, it is also held that it is not always 11ecess9.ry, in ord£'r to be a public service, that an organization be dedieated to public use, i.e., ready and willing to serve the public afi a class. It is only necessary that it must in some way be impressed with a public interest; and whether the operation of a given business is a public utility depend~ upon whether or not the service rendered by it is a public character and of public consequence and concern . <51 C. J. 5.) Thus, a business may be affected with public interest anQ regulated for public good although not under any duty to serve the public (43 Am. Jur. 572 .) THE LAWYERS JOURNAL June 30, 1954 3. PUBLIC SERVICE COMMISSION; APPOINTMENT OF A COMMISSIONER TO TAKE EVIDENCE. - Objection to the appointment of a commissioner to tuke evidence can not be m::ide for the first time after decision was rendered, for such objection must be deemed waived. Pe·rkins, Ponce Enrile & Conh·erns for petitioners. A. H. Aspi/ii;m, O:uet<t, Roxas, L icha11co & Picu,-::u and Jua.n H. P(l11/i110 for respondents. DECISION TUASON. J: Petitioners apply for review of a decision of tlte Public Service Commission l'estraining them "from further operating their watercraft to transport goods fer hire or compensation between points in the Philippines until the rntcs they pro11ose to charge npproved by th iii Commission." The facts arc summarized by the Commission as fellow's: "x x x respondents are corporations duly organized and existing ur.der the laws of the Philippines, mainly engaged in the stevedoring or lighterage and harbor towage business. At the same time, they a rc engaged in' interisfand service which consists of hauling cargoes such as sugar, oil, fertilizer and other commercial ccimmodities which are loaded in their barges and towed by their tugboats from Manila . to various points in the Visayan Islands, particularly in the provinces of Negros Occidental and Capiz, and from said places to Manila. For this service respundents charged freightage on a unit price with rates ranging from PO.SO to P0.62-112 per bag or picul of sugar loaded or on a unit price per ton in the case of fertilizer or sand. There is no fixed route in the transportation of these cargoes, the same being left at the indication of th~ owner or shipper of the goods. The barge and the tugboats are manned by the crew of respondents and, in case of damage to the goods in transit caused by the negligence of said crews, respondents are liable therefor. The service for which respondents charge frcightage covers the hauling or carriage of the goods from the point of embarkation to the point of disemba.rkation eitht:r in Manila or in any point in the Visayan Islands, as the case may be. ''The evidence also sufficiently establishes that respondents are regularly engaged in this hauling business serving a limited portion of the public. Respondent Luz:>n Stevedoring Co., Inc. has among its regular customers the Sa..n Miguel Glass Factory, PRATRA, Shell Co. of P .I., Ltd., Stnndard Oil Co. of New Ymk and Philippine-Hawaiian; while rc>spondent Visayan Stevedore Transportation Co. has among· its regular customers the Insular Lumber, Shell Company, Ltd., Kim Kee Chua Yu & Co. , PRATRA and Luzon Merchandising Corp. During the perio.d from January, 1949 and up to the present, respondent Luzon Stevedoring Co. , Inc. has been rendering to PRATRA l'egularly and an many occasions such service by carrying fertilizer from Manila to various points in the province of Negros Occidental and Capiz, such 2s Hinigaran, Sila.y, Fabrica, Marayo, Mambaquid, Victorias and Pilar, and on the return trip sugar was loaded from sr1id provinces to M:inila. For these services, as evidenced by Exhibits A, A-1, A-2, A-3 and A-4, respondent Luzon Stevedoring Co., Inc. charged PRATRA at the rate of f'0.60 per picul or bag of sugar and, according to l\lr. Mauricio Rodriguez, Chief of the division in charge of sugar and fertilizer of the PRATRA, for the transportation of fertilizer, this respondent charged Pl2.00 per metric ton. During practically the same period, respondent Visayan Stevedore Transportation Co. transported in its barges and towed by its tugboats sug::i.r for Kim Kee Chua Yu & Co. coming from Victorias, Marayo and Pilar to Manile, and. for Luzon Merchandizing Corp., from Hinigaran, Bacolod, Marayo and Vieto!·ias to Manila. For such service respondent Visayan Stevedore Transportation Co, charged Kim Kee Chua Yu & Co. i<Jr freightage f'0.60 per picul or bag as sho)vn in Exhibits C, C-1, C-2, C-3, C-4, C-5, C.6, C.7 and C-8, and Luzon Merchandisin~ Corp . was a!so charged for the same service and a t the same rate as shown in Exhibits B, B-1 and B-2." It wan upon these findings that '...he Commission made the order now sought to be reviewed, upon complaint of the Philippine Shipowners' Association charging that the then respondents \\'ere engaged in the transportation of cargo in the Philippines for hire or comr.ensation without authority or approval of the Commission, having adopted, fixed and collected freight charges at the rate of f'0.60 per bag or picul, parEcularly sugar, loaded and transported in their lighters and towed by thei1· tugboats between different points in the province or Negros Occidental and Mar1ila, which said rates resulted in ruinous competition with complainant. Section 13 (b) of th<' Publir Service Law (Commonwealth Act No. 146) defines public service t hus: "The term 'public service' includes every person that now cir hereafter may own, operate, manage, or control in the Philippines, for hire or compensation, with general or limited clientele, whether permanent, occasional or accidental, and dOnf' for general business pur poses any common carrier, 1·ailroad, street railway, traction railway, subway, motor vehicle, either for freight or passenger, or both, with or without fixed route and whatever may be its classification, freight or carrier service of any class, e.xpress ser\!ice, steamboat, or i-:teamship line, pontines, ferries, and small water craft, engaged in the transportation of passengers a.nd freight, shipyard, marine railway, marine repair shop, warehouse, wha rf or dock, ice plant, icerefrigeration plant, canal, irrigation system, sewerage, gas, elt:ctric light, heat and power, water supply and power, petroleum, sewerage system, telephone, wire or wireless telephone, wire or wireless telegraph system and broadcasting radio stations." It is not necessary, under Sec. 13(b) of the Public Service Law <Commonwealth Act No. 146), that one holds himself out as serving or willing to serve the public in onler to be considered public service . . In Luzon Brokcrnge Co. v. Public Service Commission, 40 O.G., 7th Supplement, p. 271, this Court declared that "Act 454 is clear in including in the definition of a public service that which is rendered for compensation, although limited exclusively to the customers of th« petitioner." I n that case, the Luzon Brokerage Company, a rustoms broker, ha.cl been receiving, depositing and delivering goods discharged from ships at the pier to its customers. As here, the L .<zon Brokerage was then rendering transportation service for compensation to a limited clientele, not to the public at lal'ge. In the United States where, it is said, there is no fixed definition oi what constitutes public service or public utility, it is also held that it is not always necessary, in order to be a public service, that an organization be dedicated to public use, i.e., ready and willing to serve the public as a class. It is only necessary that it must in some way be impressed with a public interest; and whether the 01ieration of a given business is a public utility depends upon whether or not the service 1·endered · by it is of a public character and of public consequence and concern . (51 C. J. 5. ) Thus, a business may be affected with public interest and regulated for public good althought not under any duty to serve the public. (43 Am. Jur. 572.) It can scarcely be denied that the contracts between the owners of the barges and the owners of the cargo at bar were ordinary contracts of transportation and not of lease. Petitioners' watercraft wa.s manned entirely by crews in their employ and puyroll, and th'"e operation of the said craft was under their direction and control, the customers assuming no responsibility for the goods handled on the barges. The great preponderance of the evidence contradicts the a5sertion that there was any physical or Symbolic conveyance of the possession of the tugboats and barges to the shippers. Whether the agreements were written or \!crba.l, the manner of payment of freight charges, the question who loaded and unloaded the cargo, ihe propriety of the admission of certain receipts in evidence, etc ., June 30, 1954 THE LAWYERS JOURNAL 309 to all of which the parties have given much attention - these are matters of form which do not alter the essential nature of the i·elationship of the parties to the transactions a.s revealed by the fundamental facts of record, It is contended that 1'if the Public Service Act were to be construed in such a manner as to include private lease contracts, said law would be unconstitutional," seemingly implying that, to prevent the law from being in contravention of the Constitution, it should be so read as to embrace only those persons and co:npanies that are in fact engaged in public service" with it.s corresponding qualification of ari offer to serve indi:.criminately th~ public." It has been already shown that the petitioners' lighters and tugboats were not leased, but used to carry goods for compensation at a fixed nte for a fixed weight. At the very least, they were hired, hired in the sense that the ·shippers did not have direction, control, and maintenance thereof, which is a characteristic feature cf lease. On the SC<'!ond proposition, the Public Service Commissiori has, in our judgment, interpreted the law in accordance with legislative intent. Commonwealth Act No. 14G declares in unequivocal language that an enterprise of any of the kinds therein enumerated is a public service if conducted for hire or compensation eyen if the operator deals only with a portion of the public or limited clientele. It hns been seen that public utility, even where the term is not defined by statute, is not determined by the number of pe9plc actually served. Nor does the mr-re fact that service is rendered only under contract prevent a company from being a public utility. l43 Am. Jur. 573.) On the other hand, casual or inddental service de\·oid of public character and interest, it must be a<lmitted, is not brought within the category of public utility. The demarkation line is not susceptible of exact description or definition, eueh case being governed by its peculiar circumstances. "It is impossible to lay down any general rule on the subject whether the rendel'ing of incidental service to members of the public by an individual or corporation whose principal business is of 3 different nature coristitute such person a public utility. ln thf! result reached, the cases arc in conflict, as the question involved depends on such factors as the extent of service, whether such person or company has held himself or itself out as xeady to serve lhE: publie or a portion of the public generally, or in other ways conducted himself or itself as a public utility. In s.:veral cases, it has bei?n held that the incidental service rendered to others consti~ tuted such person or corporation a public utility, but in other cases, a contrary decision has been reached.'' C43 Am. Jur. 573.) The transportation service which wss the subject of complaint was not casual ·.)r incidental. It has been carried on regularly for years a.t almost uniform rates of charges. Although the number of the petitioners' customers was limited, the value of goods transported was not inconsiderable. Petitioners did not have the same customers all tbc time embraced in the complaint, and there was no reason to believe that they would not accept, and there was nothing to prevent them from accepting, new custome1·s that might be willing to avail of their service to the extent of their capacity. Upon the well-established facts as applied to the plain letter of Ce>nunonwealth Act No. 146, we are of the opinion that· the Public Service Commission's order does not invade private rights of J.>rOpe1-ty or contract. In at least one respect, the business complained of was a. matter of public concern. The Public Service Law was ~nacted not only tC' protect the public against unreasonable charges and poor, inefficient service, but also to prevent ruinous competition. That, we Ycnture to say, is the main purpose in bringing under the jurisdiction of the Public Service Commission motor vehicles, vther means of transportation, icti plants, etc., which cater to a limited portion of the public under private agreemer.ts. To the 'extent that such agreements may tend to wreck or impair the financial stability and efficiency of public utilities who do offer service to the public in reneral, they a.re affected with public intc1·est and come within the p(llicc power of the state to regulate. Just as the legislature may not "declare a company or enterprise to be a public utility when it is not inherently such," a public utility may not evade control and supervision of its op~ration by the government by selecting its customers under the guise of private transactions. For the rest, the constitutionality of Commonwealth Act No. 14G was upheld, implicity in Luzon Brokerage Company v. Public Service Commission, supra, and explicitly in Pangaeinan Transportation Co. v. Public Service ~mmission, 70 Phil. 221. Were there serious doubts, the c~urts should still be 1·eluctant to invalidate the Public Service I .aw or any provision thereof. Although the legislature can not, by its mere dcclsrn.tion, make something a public utility which is not in fact such, "the public policy of the state as announced by the legislature will be given due weight, and the determination of the legislature that a particular business is subject to the regulatory power, because the public welfare is dependent upon its proper conduct and regulation, will not lightly be disrega rded by the courts." (51 C. J. 5. ) The objection to the designntivn of Attorney Asvillera as commissioner to take the evidence was tardy. It was made for the first time after decision was rendered, following a prolonged hearing in which the petitioners c1·oss-examined the complainant's witnesse!\ and presented their own eVidence. The point is procedural, not jurisdictional, and may be waived by expressed consent or acquiescence. So it was held in Everret Steamship Corporation v. Chua Hiong, G. R. N.J. L-2933, and La Paz Ice l'lant and Cold Storage Co. v. Comision de Utilidades Publicas ct al., G. R. No. L-4053. Upon the foregoing considerations, the appealed order of the Public Service Commission is affirmed, with costs against the 1;etitioners. Paras, Pablo, Bnigwn, Padilla, Montemayor, Reyes, Jugo; Bautista Angelo nnd Labrndor, J.J., concur. CERTAIN VEXATIOUS QUESTION . CC011ti1111ed fro'm pnge ::!70) in Tan Hi v. Republic, G.R. No. L-3354, decided on January 25, 1951, the Supreme Court cited a previous decision of said Court which denied the application on the ground that "the applJcant for 11aturnliration had nin!' child1·en all enrolled in the Philippine schools e.xeept one, a minor because she lh-c frc1n infancy in China, where she W2.S enrolled in an English school in Amoy." From this decision of the Cc.urt it appears in bold rdief that if in an ordinury naturalization case the non-enrollment of a child bccau&c she is studying in her native country is a ground for rejecting an application for naturaliz:itivn, it results by inference that childn:n of mothers marrying Filipine> citizenil, much less cannot bt!comc citiZf'llS of the Philippines for that matter. CONCLUSION AND RECOMMENDATION TO PART II Any other interpretation to the contrary, like the three Opinions ,,f the Secretary of Justice hcrcinabove referred to, would lead to injustic.:i, inequity, and even absurd i·esults, which, perforce, must be ave>ided, for it would give i·ise to incong1·uous possibilities whnein full-blooded aliens with no interest or background on our socio.I, l)Olitica.l, and economic way of life could otherwise be Filipino citizens merely on papers contrary to the spirit of ·)Ul' ConsUtution and laws on the matter. . On the whole, therefore, whether the children ef the foreign woman a1·e legitimate or illegitimate, and whether the mother is a divorcee, or not, and on the ussumption that such mmor children have already citizenship of their own, such 'citizenship which the Municipal Law of the country of their birth has conferred upon them, be allowed to continue the same citir:enship--4. suggestion or a course which would tend to reduce conflict'i.ng problems of citizenship in the future. 310 THE LAWYERS JOURNAL June 30, 1954
pages: 308-310