Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-1800 January 27, 1948

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, petitioner,
vs.
VALERIANO E. FUGOSO, Mayor of City of Manila, respondent.

Ramon Diokno for petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor for respondent.

FERIA, J.:

This is an action of mandamus instituted by the petitoner, Cipriano Primicias, a campaig manager of
the Coalesced Minority Parties against Valeraino Fugoso, as Mayor of the City of Manila, to compel
the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for redress to grievances on the
groun that the respondent refused to grant such permit. Due to urgency of the case, this Court, after
mature deliberation, issued a writ of mandamus, as prayed for in the petition of November 15, 1947,
without prejudice to writing later an extended and reasoned decision.

The right of freedom of speech and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by the
Constitutions of democratic countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that
it shall not be injurious to the equal enjoyment of others having equal rights, not injurious to the
rights of the community or society. The power to regulate the exercise of such and other
constitutional rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. This sovereign police power is exercised by the government through its
legislative branch by the enactment of laws regulating those and other constitutional and civil rights,
and it may be delegated to political subdivisions, such as towns, municipalities, and cities authorizing
their legislative bodies, called municipal and city councils to enact ordinances for the purpose.

The Philippine legislature has delegated the exercise of the police power to the Municipal Board of
the City of Manila, which according to section 2439 of the Administrative Code is the legislative body
of the City. Section 2444 of the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of riots, affrays,
disturbances, and disorderly assemblies, (u) to regulate the use of streets, avenues ... parks,
cemeteries and other public places" and "for the abatement of nuances in the same," and "(ee) to
enact all ordinances it may deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort, convenience, and general
welfare of the city and its inhabitants."

Under the above delegated power, the Municipal Board of the City of Manila, enacted sections 844
and 1119. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace,
and section 1262 of the same Revised Ordinance penalizes as a misdemeanor, "any act, in any
public place, meeting, or procession, tending to disturb the peace or excite a riot; or collect with
other persons in a body or crowd for any unlawful purpose; or disturb or disquiet any congregation
engaged in any lawful assembly." And section 1119 provides the following:

"SEC. 1119 Free for use of public — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, that the holding of athletic games, sports, or exercise during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade
or procession."

As there is no express and separate provision in the Revised Ordinance of the City regulating the
holding of public meeting or assembly at any street or public places, the provisions of saif section
1119 regarding the holding of any parade or procession in any street or public paces may be applied
by analogy to meeting and assembly in any street or public places.

Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is
vested with unregulated discretion to grant or refuse, to grant permit for the holding of a lawful
assembly or meeting, parade, or procession in the streets and other public places of the City of
Manila; and the other is that the applicant has the right to a permit which shall be granted by the
Mayor, subject only to the latter's reasonable discretion to determine or specify the streets or public
places to be used for the purpose, with the view to prevent confusion by overlapping, to secure
convenient use of the streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the second
construction, that is construe the provisions of the said ordinance to mean that it does not confer
upon the Mayor the power to refuse to grant the permit, but only the discretion, in issuing the permit,
to determine or specify the streets or public places where the parade or procession may pass or the
meeting may be held.

Our conclusions find support in the decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P.L. Chap. 145, section 2, providing that
"no parade or procession upon any ground abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the select men of the town or from licensing committee,"
was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board
unfetted discretion to refuse to grant the license, and held valid. And the Supreme Court of the
United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the
State Supreme Court, held that " a statute requiring pewrsons using the public streets for a parade
or procession to procure a special license therefor from the local authorities is not an
unconstitutional abridgement of the rights of assembly or a freedom of speech and press, where, as
the statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration, the time, place, and manner of the parade and procession,
with a view to conserving the public convenience and of affording an opportunity to provide proper
policing and are not invested with arbitrary discretion to issue or refuse license, ... ."

We can not adopt the alternative construction or constru the ordinance under consideration as
conferring upon the Mayor power to grant or refuse to grant the permit, which would be tantamount
to authorizing him to prohibit the use of the streets and other public places for holding of meetings,
parades or processions, because such a construction would make the ordinance invalid and void or
violative of the constitutional limitations. As the Municipal Boards is empowered only to regulate the
use of streets, parks, and the other public places, and the word "regulate," as used in section 2444
of the Revised Administrative Code, means and includes the power to control, to govern, and to
restrain, but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong
Sing vs. City of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power that it
does not have. Besides, the powers and duties of the Mayor as the Chief Executive of the City are
executive and one of them is "to comply with and enforce and give the necessary orders for the
faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised
Administrative Code), the ligislative police power of the Municipal Board to enact ordinances
regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets
and other public places, can not be delgated to the Mayor or any other officer by conferring upon him
unregulated discretion or without laying down rules to guide and control his action by which its
impartial execution can be secured or partiality and oppression prevented.

In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that, under
Rev. ST. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the use of public
streets, the council has no power to ordain that no processions shall be allowed upon the streets
until a permit shall be obtained from the superintendent of police, leaving the issuance of such
permits to his discretion, since the powers conferred on the council cannot be delegated by them.

The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84 Wis., 585; 54 N.W., 1104,
held the following:

"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md., 217, were also,
in substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under it,
when there was nothing in the ordinance to guide or cintrol his action, and it was held void
because "it lays down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or nonaction may
proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other
improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment's consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void." ... In the exercise of police power, the council may, in its
discretion, regulate the exercise of such rights in a reasonable manner, but can not suppress
them, directly or indirectly, by attempting to commit the power of doing so to the mayor or
any other officer. The discretion with which the council is vested is a legal discretion, to be
exercised within the limits of the law, and not a discretion to transcend it or to confer upon
any city officer and arbitrary authority, making him in its exercise a petty tyrant."

In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that "no person or persons,
or associations or organizations shall march, parade, ride or drive, in ou upon or through the public
streets of the City of Grand Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held by the Supreme Court
of Michigan to be unreasonable and void. Said Supreme Court in the course of the decision held:

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as it
is not plainly unconstitutional, as only conferring such power over the subjects referred to as
will enable the city to keep order, and suppress mischief, in accordance with the limitations
and conditions required by the rights of the people themselves, as secured by the principles
of law, which cannot be less careful of private rights under the constitution than under the
common law."

"It is quite possible that some things have a greater tendency to produce danger and
disorder in cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogther can be granted at all. . . . ."

"It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day or
reasonable hours at night, with banners and other paraphernalia, and with music of various
kinds. These processions for political, religious, and social demonstrations are resorted to for
the express purpose of keeping unity of feeling and enthusiasm, and frequently to produce
some effect on the public mind by the spectacle of union and numbers. They are a natural
product and exponent of common aims, and valuable factors in furthering them. ... When
people assemble in riotous mobs, and move for purposes opposed to private or public
security, they become unlawful, and their members and abettors become punishable. . . ."

"It is only when political, religious, social, or other demonstrations create public disturbances,
or operate as a nuisance, or create or manifestly threaten some tangible public or private
mischief, that the law interferes."

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and thier courses, to an
unregulated official discretion, when the whole matter, if regualted at all, must be permanent,
legal provisions, operating generally and impartially."

In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city ordinance
which made it unlawful for any person, society or club, or association of any kind, to parade any of
the streets, with flags, banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The appellants were members of
the Salvation Army, and were prosecuted for a violation of the ordinance, and the court in holding
the ordinance invalid said, "Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their enforcement to rest on
official discretion ... Ever since the landing of the Pilgrims from the Mayflower the right to assemble
and worship accordingto the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights
of a free people. The spirit of our free institutions allows great latitude in public parades and
emonstrations whether religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes in politics or religion,
and permit like parades of those whose nations do. When men in authority are permitted in their
discretion to exercise power so arbitrary, liberty is subverted, and the spirit of of our free institutions
violated. ... Where the granting of the permit is left to the unregulated discretion of a small body of
city eldermen, the ordinance cannot be other than partial and discriminating in its practical operation.
The law abhors partiality and discrimination. ... (19 L.R.A., p. 861)

In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme Court of
Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City of Walsenburg,
which provides: "That it shall be unlawful for any person or persons or association to use the street
of the City of Walsenburg, Colorado for any parade, procession or assemblage without first obtaining
a permit from the Chief of Police of the City of Walsenburg so to do," held the following:

"[1] The power of municipalities, under our state law, to regulate the use of public streets is
conceded. "35 C.S.A., chapter 163, section 10, subparagraph 7. "The privilege of a citizen of
the United States to use the streets ... may be regulated in the interest of all; it is not
absolute, but relative, and must be excercised in subordination to the general, be abridged or
denied." Hague, Mayor vs. Committee for Industrial Organization, 307 U.S., 496, 516; 59 S.
Ct., 954, 964; 83 Law, ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox vs. New Hampshire, 312 U.S., 569; 61 S.
Ct., 762, 765; 85 Law, ed. 1049; 133 A.L.R., 1936, in which the following appears; "The
authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good order
upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of all,
it cannot be disregarded by the attempted excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
excercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovellvs. Criffin, 303 U.S., 444, 451;58
S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague vs. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437];
Scheneider vs. State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306, 307; 60 S. Ct.,
900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of the municipal corporation to say who
shall, who shall not, be accorded the privilege of parading on its public streets. No standard
of regulation is even remotely suggested. Moreover, under the ordinance as drawn, the chief
of police may for any reason which he may entertain arbitrarily deny this privelege to any
group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054, said:

"In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for Industrial Organization, 307 U.
S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring the obtaining of
a permit for a public assembly in or upon the public streets, highways, public parks, or public
buildings of the city and authorizing the director of public safety, for the purpose of preventing riots,
disturbances, or disorderly assemblage, to refuse to issue a permit when after investigation of all the
facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a
permit, is not a valid exercise of the police power. Said Court in the course of its opinion in support of
the conclusion said:

". . . Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent 'riots, disturbances or disorderly assemblage.' It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of views
on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which provides
that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes,
cannot be cited as an authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by the Municipal Board
requiring licenses or permits to be issued by the Mayor, such as those found in Chapters 40 to 87 of
the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent
from the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in
constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated
by that department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of streets
and other public places has been delegated or rather conferred by the Legislature upon the
Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that
the Legislature has not, in the same breath, conferred upon the Mayor in section 2434 (m) the same
power, specially if we take into account that its exercise may be in conflict with the exercise of the
same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has conferred,
upon the Mayor the power to grant or refuse licenses and permits of all classes, independent from
ordinances enacted by the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding, such
grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other
public places for processions, parades, or meetings, would be null and void, for the same reasons
stated in the decisions in the cases above quoted, specially in Willis Cox vs. New Hampshire, supra,
wherein the question involved was also the validity of a similar statute of New Hamsphire. Because
the same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer are
applicable to a law or statute that confers unlimited power to any officer either of the municipal or
state governments. Under our democratic system of government no such unlimited power may be
validly granted to any officer of the government, except perhaps in cases of national emergency. As
stated in State ex rel. Garrabad vs. Dering, supra, "The discretion with which the council is vested is
a legal discretion to be exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a petty tyrant."

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code
apparently in support of the decision in the case of Evangelista vs. Earnshaw, 57 Phil., 255- 261, but
evidently the quotation of said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for the decision rendered.
The popular meeting or assemblage intended to be held therein by the Communist Party of the
Philippines was clearly an unlawful one, and therefore the Mayor of the City of Manila had no power
to grant the permit applied for. On the contrary, had the meeting been held, it was his duty to have
the promoters thereof prosecuted for violation of section 844, which is punishable as misdemeanor
by section 1262 of the Revised Ordinances of the City of Manila. For, according to the decision, "the
doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist
Party of the Philippines, and the speeches uttered, delivered, and made by its members in the public
meetings or gatherings, as above stated, are highly seditious, in that they suggest and incite
rebelious conspiracies and disturb and obstruct the lawful authorities in their duty."

The reason alleged by the respondent in his defense for refusing the permit is, "that there is a
reasonable ground to believe, basing upon previous utterances and upon the fact that passions,
specially on the part of the losing groups, remains bitter and high, that similar speeches will be
delivered tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of public
order." As the request of the petition was for a permit "to hold a peaceful public meeting," and there
is no denial of that fact or any doubt that it was to be a lawful assemblage, the reason given for the
refusal of the permit can not be given any consideration. As stated in the portion of the decision in
Hague vs. Committee on Industrial Organization, supra, "It does not make comfort and convenience
in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse
the permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary suppression of
free expression of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we make our own, said by Mr.
Justice Brandeis in his concurring opinion in Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the bondage
of irrational fears. To justify suppression of free speech there must be reasonable ground to
fear that serious evil will result if free speech is practiced. There must be reasonable ground
to believe that the danger apprehended is imminent. There must be reasonable ground to
believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
 of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney vs. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no reasonable
objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for, the respondent is
ordered to issue the corresponding permit, as requested. So ordered.

Moran, C. J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions

PARAS, J., concurring:

The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774, section 4,
amending section 2434, paragraph (m) of the Revised Administrative Code, the Mayor has
discretion to grant or deny the petition to hold the meeting. (See Evangelista vs. Earnshaw, 57 Phil.,
255.) And, in the case of U. S. vs. Apurado, 7 Phil., 422, 426, this Court said:

"It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and
snare and the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor."

The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the
House of Representatives; he was the chief campaigner of the said party in the last elections. As the
petition comes from a responsible party, in contrast to Evangelista's Communist Party which was
considered subversive, I believe that the fear which caused the Mayor to deny it was not well
founded and his action was accordingly far from being a sound exercise of his discretion.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this
application forhabeas corpus submits for decision. While hardly to be expected to be met with in
this modern epoch of triumphant democracy, yet, after all, the cause presents no great difficulty
if there is kept in the forefront of our minds the basic principles of popular government, and if we
give expression to the paramount purpose for which the courts, as an independent power of
such a government, were constituted. The primary question is — Shall the judiciary permit a
government of the men instead of a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove
profitable reading for other departments of the government, the facts are these: The Mayor of
the city of Manila, Justo Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a number of years in
the city of Manila, closed. Between October 16 and October 25, 1918, the women were kept
confined to their houses in the district by the police. Presumably, during this period, the city
authorities quietly perfected arrangements with the Bureau of Labor for sending the women to
Davao, Mindanao, as laborers; with some government office for the use of the coastguard
cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers. At any rate,
about midnight of October 25, the police, acting pursuant to orders from the chief of police,
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the
houses, hustled some 170 inmates into patrol wagons, and placed them aboard the steamers
that awaited their arrival. The women were given no opportunity to collect their belongings, and
apparently were under the impression that they were being taken to a police station for an
investigation. They had no knowledge that they were destined for a life in Mindanao. They had
not been asked if they wished to depart from that region and had neither directly nor indirectly
given their consent to the deportation. The involuntary guests were received on board the
steamers by a representative of the Bureau of Labor and a detachment of Constabulary
soldiers. The two steamers with their unwilling passengers sailed for Davao during the night of
October 25.

The vessels reached their destination at Davao on October 29. The women were landed and
receipted for as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano
Yñigo and Rafael Castillo. The governor and the hacendero Yñigo, who appear as parties in the
case, had no previous notification that the women were prostitutes who had been expelled from
the city of Manila. The further happenings to these women and the serious charges growing out
of alleged ill-treatment are of public interest, but are not essential to the disposition of this case.
Suffice it to say, generally, that some of the women married, others assumed more or less
clandestine relations with men, others went to work in different capacities, others assumed a life
unknown and disappeared, and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in
to Davao, the attorney for the relatives and friends of a considerable number of the deportees
presented an application forhabeas corpus to a member of the Supreme Court. Subsequently,
the application, through stipulation of the parties, was made to include all of the women who
were sent away from Manila to Davao and, as the same questions concerned them all, the
application will be considered as including them. The application set forth the salient facts,
which need not be repeated, and alleged that the women were illegally restrained of their liberty
by Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, and by certain unknown parties. The writ was made returnable before the full court. The
city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts relative to
sequestration and deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been begun in the Court of
First Instance for Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their jurisdiction did not
extend beyond the boundaries of the city of Manila. According to an exhibit attached to the
answer of the fiscal, the 170 women were destined to be laborers, at good salaries, on
the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted, in answer to
question of a member of the court, that these women had been sent out of Manila without their
consent. The court awarded the writ, in an order of November 4, that directed Justo Lukban,
Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Francisco
Sales, governor of the province of Davao, and Feliciano Yñigo, an hacendero of Davao, to bring
before the court the persons therein named, alleged to be deprived of their liberty, on December
2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense.
On motion of counsel for petitioners, their testimony was taken before the clerk of the Supreme
Court sitting as commissioners. On the day named in the order, December 2nd, 1918, none of
the persons in whose behalf the writ was issued were produced in court by the respondents. It
has been shown that three of those who had been able to come back to Manila through their
own efforts, were notified by the police and the secret service to appear before the court. The
fiscal appeared, repeated the facts more comprehensively, reiterated the stand taken by him
when pleading to the original petition copied a telegram from the Mayor of the city of Manila to
the provincial governor of Davao and the answer thereto, and telegrams that had passed
between the Director of Labor and the attorney for that Bureau then in Davao, and offered
certain affidavits showing that the women were contained with their life in Mindanao and did not
wish to return to Manila. Respondents Sales answered alleging that it was not possible to fulfill
the order of the Supreme Court because the women had never been under his control, because
they were at liberty in the Province of Davao, and because they had married or signed contracts
as laborers. Respondent Yñigo answered alleging that he did not have any of the women under
his control and that therefore it was impossible for him to obey the mandate. The court, after
due deliberation, on December 10, 1918, promulgated a second order, which related that the
respondents had not complied with the original order to the satisfaction of the court nor
explained their failure to do so, and therefore directed that those of the women not in Manila be
brought before the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13,
1919, unless the women should, in written statements voluntarily made before the judge of first
instance of Davao or the clerk of that court, renounce the right, or unless the respondents
should demonstrate some other legal motives that made compliance impossible. It was further
stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain
detectives and policemen, and of the provincial governor of Davao, was taken before the clerk
of the Supreme Court sitting as commissioner and the clerk of the Court of First Instance of
Davao acting in the same capacity. On January 13, 1919, the respondents technically presented
before the Court the women who had returned to the city through their own efforts and eight
others who had been brought to Manila by the respondents. Attorneys for the respondents, by
their returns, once again recounted the facts and further endeavored to account for all of the
persons involved in the habeas corpus. In substance, it was stated that the respondents,
through their representatives and agents, had succeeded in bringing from Davao with their
consent eight women; that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation fee, renounced the right through sworn
statements; that fifty-nine had already returned to Manila by other means, and that despite all
efforts to find them twenty-six could not be located. Both counsel for petitioners and the city
fiscal were permitted to submit memoranda. The first formally asked the court to find Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose
Rodriguez and Fernando Ordax, members of the police force of the city of Manila, Feliciano
Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau of Labor, and
Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal requested that
the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas
corpus in the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were
isolated from society, and then at night, without their consent and without any opportunity to
consult with friends or to defend their rights, were forcibly hustled on board steamers for
transportation to regions unknown. Despite the feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case is shown by the mere fact that the presence of
the police and the constabulary was deemed necessary and that these officers of the law chose
the shades of night to cloak their secret and stealthy acts. Indeed, this is a fact impossible to
refute and practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law
did the Mayor and the Chief of Police presume to act in deporting by duress these persons from
Manila to another distant locality within the Philippine Islands? We turn to the statutes and we
find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of
congress. The Governor-General can order the eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippine Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the conviction and punishment by a court of justice
of any person who is a common prostitute. Act No. 899 authorizes the return of any citizen of
the United States, who may have been convicted of vagrancy, to the homeland. New York and
other States have statutes providing for the commitment to the House of Refuge of women
convicted of being common prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is
done pursuant to some law or order. But one can search in vain for any law, order, or regulation,
which even hints at the right of the Mayor of the city of Manila or the chief of police of that city to
force citizens of the Philippine Islands — and these women despite their being in a sense lepers
of society are nevertheless not chattels but Philippine citizens protected by the same
constitutional guaranties as are other citizens — to change their domicile from Manila to another
locality. On the contrary, Philippine penal law specifically punishes any public officer who, not
being expressly authorized by law or regulation, compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to
be found in the Bill of Rights of the Constitution. Under the American constitutional system,
liberty of abode is a principle so deeply imbedded in jurisprudence and considered so
elementary in nature as not even to require a constitutional sanction. Even the Governor-
General of the Philippine Islands, even the President of the United States, who has often been
said to exercise more power than any king or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore, has the executive of a municipality, who acts
within a sphere of delegated powers. If the mayor and the chief of police could, at their mere
behest or even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other municipalities of the
Philippines have the same privilege. If these officials can take to themselves such power, then
any other official can do the same. And if any official can exercise the power, then all persons
would have just as much right to do so. And if a prostitute could be sent against her wishes and
under no law from one locality to another within the country, then officialdom can hold the same
club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken,
or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or
exiled, or any other wise destroyed; nor will we pass upon him nor condemn him, but by lawful
judgment of his peers or by the law of the land. We will sell to no man, we will not deny or defer
to any man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at
Large, 7.) No official, no matter how high, is above the law. The courts are the forum which
functionate to safeguard individual liberty and to punish official transgressors. "The law," said
Justice Miller, delivering the opinion of the Supreme Court of the United States, "is the only
supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise of the authority which it gives."
(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same
high tribunal in another case, "that one man may be compelled to hold his life, or the means of
living, or any material right essential to the enjoyment of life, at the mere will of another, seems
to be intolerable in any country where freedom prevails, as being the essence of slavery itself."
(Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this explains the motive in issuing the writ
of habeas corpus, and makes clear why we said in the very beginning that the primary question
was whether the courts should permit a government of men or a government of laws to be
established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The remedies of the
citizen are three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never
intended effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general

character in force in the Philippines who shall banish any person to a place more than
two hundred kilometers distant from his domicile, except it be by virtue of the judgment
of a court, shall be punished by a fine of not less than three hundred and twenty-five and
not more than three thousand two hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile
or residence shall suffer the penalty of destierro and a fine of not less than six hundred
and twenty-five and not more than six thousand two hundred and fifty pesetas. (Art.
211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find
that any public officer has violated this provision of law, these prosecutors will institute and
press a criminal prosecution just as vigorously as they have defended the same official in this
action. Nevertheless, that the act may be a crime and that the persons guilty thereof can be
proceeded against, is no bar to the instant proceedings. To quote the words of Judge Cooley in
a case which will later be referred to — "It would be a monstrous anomaly in the law if to an
application by one unlawfully confined, ta be restored to his liberty, it could be a sufficient
answer that the confinement was a crime, and therefore might be continued indefinitely until the
guilty party was tried and punished therefor by the slow process of criminal procedure." (In the
matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and
exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. Any further rights of the parties are left
untouched by decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific
objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the
person in question are not restrained of their liberty by respondents. It was finally suggested that
the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city
limits and that perforce they could not bring the women from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives
and friends of the deportees. The way the expulsion was conducted by the city officials made it
impossible for the women to sign a petition for habeas corpus. It was consequently proper for
the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code
of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it
the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the
court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no
application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in
court.
The fiscal next contended that the writ should have been asked for in the Court of First Instance
of Davao or should have been made returnable before that court. It is a general rule of good
practice that, to avoid unnecessary expense and inconvenience, petitions for habeas
corpus should be presented to the nearest judge of the court of first instance. But this is not a
hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any
judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec.
79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the
Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is
dependent on the particular circumstances. In this instance it was not shown that the Court of
First Instance of Davao was in session, or that the women had any means by which to advance
their plea before that court. On the other hand, it was shown that the petitioners with their
attorneys, and the two original respondents with their attorney, were in Manila; it was shown that
the case involved parties situated in different parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken cognizance of and decided immediately by the
appellate court. The failure of the superior court to consider the application and then to grant the
writ would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of
police did not extend beyond the city limits. At first blush, this is a tenable position. On closer
examination, acceptance of such dictum is found to be perversive of the first principles of the
writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of habeas corpus is to inquire into all manner of
involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them over to other
parties, who deposited them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned. Placed in Davao without either
money or personal belongings, they were prevented from exercising the liberty of going when
and where they pleased. The restraint of liberty which began in Manila continued until the
aggrieved parties were returned to Manila and released or until they freely and truly waived his
right.

Consider for a moment what an agreement with such a defense would mean. The chief
executive of any municipality in the Philippines could forcibly and illegally take a private citizen
and place him beyond the boundaries of the municipality, and then, when called upon to defend
his official action, could calmly fold his hands and claim that the person was under no restraint
and that he, the official, had no jurisdiction over this other municipality. We believe the true
principle should be that, if the respondent is within the jurisdiction of the court and has it in his
power to obey the order of the court and thus to undo the wrong that he has inflicted, he should
be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with
the custody of a person before the application for the writ is no reason why the writ should not
issue. If the mayor and the chief of police, acting under no authority of law, could deport these
women from the city of Manila to Davao, the same officials must necessarily have the same
means to return them from Davao to Manila. The respondents, within the reach of process, may
not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile
and to avow the act with impunity in the courts, while the person who has lost her birthright of
liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any
analogous case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to
whether or not a writ ofhabeas corpus would issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State a minor child under guardianship in the State,
who has been and continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the question presented the court was equally divided.
Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley,
J., one of the most distinguished American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was
predicated to a large extent on his conception of the English decisions, and since, as will
hereafter appear, the English courts have taken a contrary view, only the following eloquent
passages from the opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present
writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a
half have been expended upon the Magna Charta, and rivers of blood shed for its
establishment; after its many confirmations, until Coke could declare in his speech on
the petition of right that "Magna Charta was such a fellow that he will have no
sovereign," and after the extension of its benefits and securities by the petition of right,
bill of rights and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be determined
without delay, that the legislature may apply the proper remedy, as I can not doubt they
would, on the subject being brought to their notice. . . .

The second proposition — that the statutory provisions are confined to the case of
imprisonment within the state — seems to me to be based upon a misconception as to
the source of our jurisdiction. It was never the case in England that the court of king's
bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes
were not passed to give the right, but to compel the observance of rights which existed. .
..

The important fact to be observed in regard to the mode of procedure upon this writ is,
that it is directed to and served upon, not the person confined, but his jailor. It does not
reach the former except through the latter. The officer or person who serves it does not
unbar the prison doors, and set the prisoner free, but the court relieves him by
compelling the oppressor to release his constraint. The whole force of the writ is spent
upon the respondent, and if he fails to obey it, the means to be resorted to for the
purposes of compulsion are fine and imprisonment. This is the ordinary mode of
affording relief, and if any other means are resorted to, they are only auxiliary to those
which are usual. The place of confinement is, therefore, not important to the relief, if the
 guilty party is within reach of process, so that by the power of the court he can be
compelled to release his grasp. The difficulty of affording redress is not increased by the
confinement being beyond the limits of the state, except as greater distance may affect
it. The important question is, where the power of control exercised? And I am aware of
no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken
out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench
Division upon the application of the mother and her husband directing the defendant to produce
the child. The judge at chambers gave defendant until a certain date to produce the child, but he
did not do so. His return stated that the child before the issuance of the writ had been handed
over by him to another; that it was no longer in his custody or control, and that it was impossible
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord
Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at
the Royal Courts of Justice immediately after the receipt of the writ, together with the
cause of her being taken and detained. That is a command to bring the child before the
judge and must be obeyed, unless some lawful reason can be shown to excuse the
nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had
no longer power to produce the child, that might be an answer; but in the absence of any
lawful reason he is bound to produce the child, and, if he does not, he is in contempt of
the Court for not obeying the writ without lawful excuse. Many efforts have been made in
argument to shift the question of contempt to some anterior period for the purpose of
showing that what was done at some time prior to the writ cannot be a contempt. But the
question is not as to what was done before the issue of the writ. The question is whether
there has been a contempt in disobeying the writ it was issued by not producing the child
in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See
also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.],
233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to
the defendant to have before the circuit court of the District of Columbia three colored persons,
with the cause of their detention. Davis, in his return to the writ, stated on oath that he had
purchased the negroes as slaves in the city of Washington; that, as he believed, they were
removed beyond the District of Columbia before the service of the writ of habeas corpus, and
that they were then beyond his control and out of his custody. The evidence tended to show that
Davis had removed the negroes because he suspected they would apply for a writ of habeas
corpus. The court held the return to be evasive and insufficient, and that Davis was bound to
produce the negroes, and Davis being present in court, and refusing to produce them, ordered
that he be committed to the custody of the marshall until he should produce the negroes, or be
otherwise discharged in due course of law. The court afterwards ordered that Davis be released
upon the production of two of the negroes, for one of the negroes had run away and been
lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly
[1883], 111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the
respondents constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the
Supreme Court awarding the writ of habeas corpus, and if it be found that they did not, whether
the contempt should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were thus given ample time,
practically one month, to comply with the writ. As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November before sending a telegram to the provincial
governor of Davao. According to the response of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao women who desired to return to Manila, but who
should not be permitted to do so because of having contracted debts. The half-hearted effort
naturally resulted in none of the parties in question being brought before the court on the day
named.

For the respondents to have fulfilled the court's order, three optional courses were open: (1)
They could have produced the bodies of the persons according to the command of the writ; or
(2) they could have shown by affidavit that on account of sickness or infirmity those persons
could not safely be brought before the court; or (3) they could have presented affidavits to show
that the parties in question or their attorney waived the right to be present. (Code of Criminal
Procedure, sec. 87.) They did not produce the bodies of the persons in whose behalf the writ
was granted; they did not show impossibility of performance; and they did not present writings
that waived the right to be present by those interested. Instead a few stereotyped affidavits
purporting to show that the women were contended with their life in Davao, some of which have
since been repudiated by the signers, were appended to the return. That through ordinary
diligence a considerable number of the women, at least sixty, could have been brought back to
Manila is demonstrated to be found in the municipality of Davao, and that about this number
either returned at their own expense or were produced at the second hearing by the
respondents.

The court, at the time the return to its first order was made, would have been warranted
summarily in finding the respondents guilty of contempt of court, and in sending them to jail until
they obeyed the order. Their excuses for the non-production of the persons were far from
sufficient. The, authorities cited herein pertaining to somewhat similar facts all tend to indicate
with what exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's case,
supra, the Magistrate in referring to an earlier decision of the Court, said: "We thought that,
having brought about that state of things by his own illegal act, he must take the consequences;
and we said that he was bound to use every effort to get the child back; that he must do much
more than write letters for the purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that mortal man could do in the matter;
and that the court would only accept clear proof of an absolute impossibility by way of excuse."
In other words, the return did not show that every possible effort to produce the women was
made by the respondents. That the court forebore at this time to take drastic action was
because it did not wish to see presented to the public gaze the spectacle of a clash between
executive officials and the judiciary, and because it desired to give the respondents another
chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading of the record
might reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any wrong is now being perpetrated
in Davao, it should receive an executive investigation. If any particular individual is still
restrained of her liberty, it can be made the object of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it,
nothing further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of
the city of Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and
Fernando Ordax, members of the police force of the city of Manila, Modesto Joaquin, the
attorney for the Bureau of Labor, Feliciano Yñigo, anhacendero of Davao, and Anacleto Diaz,
Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on
the vindictive principle. Only occasionally should the court invoke its inherent power in order to
retain that respect without which the administration of justice must falter or fail. Nevertheless
when one is commanded to produce a certain person and does not do so, and does not offer a
valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of
contempt, and must order him either imprisoned or fined. An officer's failure to produce the body
of a person in obedience to a writ of habeas corpus when he has power to do so, is a contempt
committed in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson [1888],
99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections,
we cannot say that any of the respondents, with the possible exception of the first named, has
flatly disobeyed the court by acting in opposition to its authority. Respondents Hohmann,
Rodriguez, Ordax, and Joaquin only followed the orders of their chiefs, and while, under the law
of public officers, this does not exonerate them entirely, it is nevertheless a powerful mitigating
circumstance. The hacendero Yñigo appears to have been drawn into the case through a
misconstruction by counsel of telegraphic communications. The city fiscal, Anacleto Diaz, would
seem to have done no more than to fulfill his duty as the legal representative of the city
government. Finding him innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and done, as far as this record
discloses, the official who was primarily responsible for the unlawful deportation, who ordered
the police to accomplish the same, who made arrangements for the steamers and the
constabulary, who conducted the negotiations with the Bureau of Labor, and who later, as the
head of the city government, had it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city of Manila. His intention to suppress
the social evil was commendable. His methods were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties aggrieved as much as P400 each, which would reach
to many thousands of pesos, and in addition to deal with him as for a contempt. Some members
of the court are inclined to this stern view. It would also be possible to find that since respondent
Lukban did comply substantially with the second order of the court, he has purged his contempt
of the first order. Some members of the court are inclined to this merciful view. Between the two
extremes appears to lie the correct finding. The failure of respondent Lukban to obey the first
mandate of the court tended to belittle and embarrass the administration of justice to such an
extent that his later activity may be considered only as extenuating his conduct. A nominal fine
will at once command such respect without being unduly oppressive — such an amount is
P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found in contempt of court and shall pay into the office
of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike from the record the Replica al Memorandum de
los Recurridos of January 25, 1919, is granted. Costs shall be taxed against respondents. So
ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope
that this decision may serve to bulwark the fortifications of an orderly government of laws and to
protect individual liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of
the habeas corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a
great number of women of various ages, inmates of the houses of prostitution situated in
Gardenia Street, district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public
houses of prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when
more than one hundred and fifty women were assembled and placed aboard a steamer and
transported to Davao, considering that the existence of the said houses of prostitution has been
tolerated for so long a time, it is undeniable that the mayor of the city, in proceeding in the
manner shown, acted without authority of any legal provision which constitutes an exception to
the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying
with the order of the mayor of the city; neither do we believe in the necessity of taking them to
the distant district of Davao. The said governmental authority, in carrying out his intention to
suppress the segregated district or the community formed by those women in Gardenia Street,
could have obliged the said women to return to their former residences in this city or in the
provinces, without the necessity of transporting them to Mindanao; hence the said official is
obliged to bring back the women who are still in Davao so that they may return to the places in
which they lived prior to their becoming inmates of certain houses in Gardenia Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find
any apparent disobedience and marked absence of respect in the steps taken by the mayor of
the city and his subordinates, if we take into account the difficulties encountered in bringing the
said women who were free at Davao and presenting them before this court within the time fixed,
inasmuch as it does not appear that the said women were living together in a given place. It was
not because they were really detained, but because on the first days there were no houses in
which they could live with a relative independent from one another, and as a proof that they
were free a number of them returned to Manila and the others succeeded in living separate from
their companions who continued living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether
he has acted in good or bad faith in proceeding to dissolve the said community of prostitutes
and to oblige them to change their domicile, it is necessary to consider not only the rights and
interests of the said women and especially of the patrons who have been directing and
conducting such a reproachable enterprise and shameful business in one of the suburbs of this
city, but also the rights and interests of the very numerous people of Manila where relatively a
few transients accidentally and for some days reside, the inhabitants thereof being more than
three hundred thousand (300,000) who can not, with indifference and without repugnance, live
in the same place with so many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality
are to be taken into account, it is not possible to sustain that it is legal and permissible to
establish a house of pandering or prostitution in the midst of an enlightened population, for,
although there were no positive laws prohibiting the existence of such houses within a district of
Manila, the dictates of common sense and dictates of conscience of its inhabitants are sufficient
to warrant the public administration, acting correctly, in exercising the inevitable duty of ordering
the closing and abandonment of a house of prostitution ostensibly open to the public, and of
obliging the inmates thereof to leave it, although such a house is inhabited by its true owner who
invokes in his behalf the protection of the constitutional law guaranteeing his liberty, his
individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot
invoke in his favor the constitutional law which guarantees his liberty and individual rights,
should the administrative authority order his hospitalization, reclusion, or concentration in a
certain island or distant point in order to free from contagious the great majority of the
inhabitants of the country who fortunately do not have such diseases. The same reasons exist
or stand good with respect to the unfortunate women dedicated to prostitution, and such
reasons become stronger because the first persons named have contracted their diseases
without their knowledge and even against their will, whereas the unfortunate prostitutes
voluntarily adopted such manner of living and spontaneously accepted all its consequences,
knowing positively that their constant intercourse with men of all classes, notwithstanding the
cleanliness and precaution which they are wont to adopt, gives way to the spread or
multiplication of the disease known as syphilis, a venereal disease, which, although it
constitutes a secret disease among men and women, is still prejudicial to the human species in
the same degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest, typhoid, and
other contagious diseases which produce great mortality and very serious prejudice to poor
humanity.

If a young woman, instead of engaging in an occupation or works suitable to her sex, which can
give her sufficient remuneration for her subsistence, prefers to put herself under the will of
another woman who is usually older than she is and who is the manager or owner of a house of
prostitution, or spontaneously dedicates herself to this shameful profession, it is undeniable that
she voluntarily and with her own knowledge renounces her liberty and individual rights
guaranteed by the Constitution, because it is evident that she can not join the society of decent
women nor can she expect to get the same respect that is due to the latter, nor is it possible for
her to live within the community or society with the same liberty and rights enjoyed by every
citizen. Considering her dishonorable conduct and life, she should therefore be comprised within
that class which is always subject to the police and sanitary regulations conducive to the
maintenance of public decency and morality and to the conservation of public health, and for
this reason it should not permitted that the unfortunate women dedicated to prostitution evade
the just orders and resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those
who have been worrying so much about the prejudice resulting from a governmental measure,
which being a very drastic remedy may be considered arbitrary, have failed to consider with due
reflection the interests of the inhabitants of this city in general and particularly the duties and
responsibilities weighing upon the authorities which administer and govern it; they have
forgotten that many of those who criticize and censure the mayor are fathers of families and are
in duty bound to take care of their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the
abnormal life they assumed, were obliged to change their residence not by a private citizen but
by the mayor of the city who is directly responsible for the conservation of public health and
social morality, the latter could take the step he had taken, availing himself of the services of the
police in good faith and only with the purpose of protecting the immense majority of the
population from the social evils and diseases which the houses of prostitution situated in
Gardenia Street have been producing, which houses have been constituting for years a true
center for the propagation of general diseases and other evils derived therefrom. Hence, in
ordering the dissolution and abandonment of the said houses of prostitution and the change of
the domicile of the inmates thereof, the mayor did not in bad faith violate the constitutional laws
which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women
petitioners do not absolutely enjoy the said liberty and rights, the exercise of which they have
voluntarily renounced in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative
authorities similar measures, more or less rigorous, respecting prostitutes, considering them
prejudicial to the people, although it is true that in the execution of such measures more
humane and less drastic procedures, fortiter in re et suaviter in forma, have been adopted, but
such procedures have always had in view the ultimate object of the Government for the sake of
the community, that is, putting an end to the living together in a certain place of women
dedicated to prostitution and changing their domicile, with the problematical hope that they
adopt another manner of living which is better and more useful to themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban
is obliged to take back and restore the said women who are at present found in Davao, and who
desire to return to their former respective residences, not in Gardenia Street, Sampaloc District,
with the exception of the prostitutes who should expressly make known to the clerk of court their
preference to reside in Davao, which manifestation must be made under oath. This resolution
must be transmitted to the mayor within the shortest time possible for its due compliance. The
costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed,
according to the same decision, by Justo Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal fine of P100.

In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco
Sales, and Feliciano Yñigo to present the persons named in the writ before the court on
December 2, 1918. The order was dated November 4, 1918. The respondents were thus
given ample time, practically one month, to comply with the writ. As far as the record
disclosed, the mayor of the city of Manila waited until the 21st of November before
sending a telegram to the provincial governor of Davao. According to the response of the
Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to do so
because of having contracted debts. The half-hearted effort naturally resulted in none of
the parties in question being brought before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the
respondents, for the purpose of complying with the order of the court, could have, (1) produced
the bodies of the persons according to the command of the writ; (2) shown by affidavits that on
account of sickness or infirmity the said women could not safely be brought before this court;
and (3) presented affidavits to show that the parties in question or their lawyers waived their
right to be present. According to the same decision, the said respondents ". . . did not produce
the bodies of the persons in whose behalf the writ was granted; did not show impossibility of
performance; and did not present writings, that waived the right to be present by those
interested. Instead, a few stereotyped affidavits purporting to show that the women were
contented with their life in Davao, some of which have since been repudiated by the signers,
were appended to the return. That through ordinary diligence a considerable number of the
women, at least sixty, could have been brought back to Manila is demonstrated by the fact that
during this time they were easily to be found in the municipality of Davao, and that about this
number either returned at their own expense or were produced at the second hearing by the
respondents."
The majority opinion also recognized that, "That court, at the time the return to its first order was
made, would have been warranted summarily in finding the respondent guilty of contempt of
court, and in sending them to jail until they obeyed the order. Their excuses for the non
production of the persons were far from sufficient." To corroborate this, the majority decision
cites the case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and added
"that the return did not show that every possible effort to produce the women was made by the
respondents."

When the said return by the respondents was made to this court in banc and the case
discussed, my opinion was that Mayor Lukban should have been immediately punished for
contempt. Nevertheless, a second order referred to in the decision was issued on December 10,
1918, requiring the respondents to produce before the court, on January 13, 1919, the women
who were not in Manila, unless they could show that it was impossible to comply with the said
order on the two grounds previously mentioned. With respect to this second order, the same
decision has the following to say:

In response to the second order of the court, the respondents appear to have become
more zealous and to have shown a better spirit. Agents were dispatched to Mindanao,
placards were posted, the constabulary and the municipal police joined in rounding up
the women, and a steamer with free transportation to Manila was provided. While
charges and countercharges in such a bitterly contested case are to be expected, and
while a critical reading of the record might reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of
the issuance of the first order on November 4th till the 21st of the same month before taking the
first step for compliance with the mandate of the said order; he waited till the 21st of November,
as the decision says, before he sent a telegram to the provincial governor o f Davao and
naturally this half-hearted effort, as is so qualified in the decision, resulted in that none of the
women appeared before this court on December 2nd. Thus, the said order was not complied
with, and in addition to this noncompliance there was the circumstances that seven of the said
women having returned to Manila at their own expense before the said second day of
December and being in the antechamber of the court room, which fact was known to Chief of
Police Hohmann, who was then present at the trial and to the attorney for the respondents, were
not produced before the court by the respondents nor did the latter show any effort to present
them, in spite of the fact that their attention was called to this particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents,
on January 13th, the day fixed for the protection of the women before this court, presented
technically the seven (7) women above-mentioned who had returned to the city at their own
expense and the other eight (8) women whom the respondents themselves brought to Manila,
alleging moreover that their agents and subordinates succeeded in bringing them from Davao
with their consent; that in Davao they found eighty-one (81) women who, when asked if they
desired to return to Manila with free transportation, renounced such a right, as is shown in the
affidavits presented by the respondents to this effect; that, through other means, fifty-nine (59)
women have already returned to Manila, but notwithstanding the efforts made to find them it
was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the
one hundred and eighty-one (181) women who, as has been previously said, have been illegally
detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their
will, only eight (8) have been brought to Manila and presented before this court by the
respondents in compliance with the said two orders. Fifty-nine (59) of them have returned to
Manila through other means not furnished by the respondents, twenty-six of whom were brought
by the attorney for the petitioners, Mendoza, on his return from Davao. The said attorney paid
out of his own pocket the transportation of the said twenty-six women. Adding to these numbers
the other seven (7) women who returned to this city at their own expense before January 13 we
have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the
allegation by the respondents in their first answer at the trial of December 2, 1918, giving as one
of the reasons for their inability to present any of the said women that the latter were content
with their life in Mindanao and did not desire to return to Manila; and, on the other hand, that the
respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and
principal in all that refers to the compliance with the orders issued by this court, could bring
before December 2nd, the date of the first hearing of the case, as well as before January 13th,
the date fixed for the compliance with the second order, if not the seventy-four (74) women
already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the
majority decision, inasmuch as the said respondent could count upon the aid of the
Constabulary forces and the municipal police, and had transportation facilities for the purpose.
But the said respondent mayor brought only eight (8) of the women before this court on January
13th. This fact can not, in my judgment, with due respect to the majority opinion, justify the
conclusion that the said respondent has substantially complied with the second order of this
court, but on the other hand demonstrates that he had not complied with the mandate of this
court in its first and second orders; that neither of the said orders has been complied with by the
respondent Justo Lukban, Mayor of the city of Manila, who is, according to the majority decision,
principally responsible for the contempt, to which conclusion I agree. The conduct of the said
respondent with respect to the second order confirms the contempt committed by non-
compliance with the first order and constitutes a new contempt because of non-compliance with
the second, because of the production of only eight (8) of the one hundred and eighty-one (181)
women who have been illegally detained by virtue of his order and transported to Davao against
their will, committing the twenty-six (26) women who could not be found in Davao, demonstrates
in my opinion that, notwithstanding the nature of the case which deals with the remedy
of habeas corpus, presented by the petitioners and involving the question whether they should
or not be granted their liberty, the respondent has not given due attention to the same nor has
he made any effort to comply with the second order. In other words, he has disobeyed the said
two orders; has despised the authority of this court; has failed to give the respect due to justice;
and lastly, he has created and placed obstacles to the administration of justice in the
said habeas corpus proceeding, thus preventing, because of his notorious disobedience, the
resolution of the said proceeding with the promptness which the nature of the same required.

Contempt of court has been defined as a despising of the authority, justice, or dignity of
the court; and he is guilty of contempt whose conduct is such as tends to bring the
authority and administration of the law into disrespect or disregard. . . ." (Ruling Case
Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes
contempt, unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6,
p. 502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct

or attempt to obstruct the service of legal process. If a person hinders or prevents the
 service of process by deceiving the officer or circumventing him by any means, the result
is the same as though he had obstructed by some direct means. (Ruling Case Law, vol.
6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing
respect for the law and for the means it has provided in civilized communities for
establishing justice, since true respect never comes in that way, it is apparent
nevertheless that the power to enforce decorum in the courts and obedience to their
orders and just measures is so essentially a part of the life of the courts that it would be
difficult to conceive of their usefulness or efficiency as existing without it. Therefore it
may be said generally that where due respect for the courts as ministers of the law is
wanting, a necessity arises for the use of compulsion, not, however, so much to excite
individual respect as to compel obedience or to remove an unlawful or unwarranted
interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised
from the earliest times. In England it has been exerted when the contempt consisted of
scandalizing the sovereign or his ministers, the law-making power, or the courts. In the
American states the power to punish for contempt, so far as the executive department
and the ministers of state are concerned, and in some degree so far as the legislative
department is concerned, is obsolete, but it has been almost universally preserved so far
as regards the judicial department. The power which the courts have of vindicating their
own authority is a necessary incident to every court of justice, whether of record or not;
and the authority for issuing attachments in a proper case for contempts out of court, it
has been declared, stands upon the same immemorial usage as supports the whole
fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of
the prestige of the authority of the court which issued the said orders, which loss might have
been caused by noncompliance with the same orders on the part of the respondent Justo
Lukban; the damages which might have been suffered by some of the women illegally detained,
in view of the fact that they were not brought to Manila by the respondents to be presented
before the court and of the further fact that some of them were obliged to come to this city at
their own expense while still others were brought to Manila by the attorney for the petitioners,
who paid out of his own pocket the transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the said petitioners and which
was due to the fact that the said orders were not opportunately and duly obeyed and complied
with, are circumstances which should be taken into account in imposing upon the respondent
Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which,
according to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding
P1,000 or imprisonment not exceeding months, or both such fine and imprisonment. In the
imposition of the penalty, there should also be taken into consideration the special circumstance
that the contempt was committed by a public authority, the mayor of the city of Manila, the first
executive authority of the city, and consequently, the person obliged to be the first in giving an
example of obedience and respect for the laws and the valid and just orders of the duly
constituted authorities as well as for the orders emanating from the courts of justice, and in
giving help and aid to the said courts in order that justice may be administered with promptness
and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500), and all the
costs should be charged against him. Lastly, I believe it to be my duty to state here that the
records of this proceeding should be transmitted to the Attorney-General in order that, after a
study of the same and deduction from the testimony which he may deem necessary, and the
proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the corresponding informations for the prosecution and
punishment of the crimes which have been committed on the occasion when the illegal
detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and
Chief of Police Anton Hohmann, and also of those crimes committed by reason of the same
detention and while the women were in Davao. This will be one of the means whereby the just
hope expressed in the majority decision will be realized, that is, that in the Philippine Islands
there should exist a government of laws and not a government of men and that this decision
may serve to bulwark the fortifications of an orderly Government of laws and to protect
individual liberty from illegal encroachments.