Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-30264 March 12, 1929

MANILA RAILROAD COMPANY, plaintiff-appellee,

vs.
INSULAR COLLECTOR OF CUSTOMS, defendant-appellant.

Attorney-General Jaranilla for appellant.

Jose C. Abrew for appellee.

MALCOLM, J.:

The question involved in this appeal is the following: How should dust shields be classified for the purposes of the
tariff, under paragraph 141 or under paragraph 197 of section 8 of the Tariff Law of 1909? These paragraphs placed
in parallel columns for purposes of comparison read:

141. Manufactures of wool not otherwise provided for, forty per centum ad valorem

197. Vehicles for use on railways and tramways, and detached parts thereof, ten per centum ad valorem.

Dust shields are manufactured of wool and hair mixed. The component material of chief value is the wool. They are
used by the Manila Railroad Company on all of its railway wagons. The purpose of the dust shield is to cover the
axle box in order to protect from dust the oil deposited therein which serves to lubricate the bearings of the wheel.
"Dust guard," which is the same as "dust shield," is defined in the work Car Builders' Cyclopedia of American
Practice, 10th ed., 1922, p. 41, as follows: "A this piece of wood, leather, felt, asbestos or other material inserted in
the dust guard chamber at the back of a journal box, and fitting closely around the dust guard bearing of the axle. Its
purpose is to exclude dust and to prevent the escape of oil and waste. Sometimes called axle packing or box
packing."

Based on these facts, it was the decision of the Insular Collector of Customs that dust shields should be classified
as "manufactures of wool, not otherwise provided for." That decision is entitled to our respect. The burden is upon
the importer to overcome the presumption of a legal collection of duties by proof that their exaction was unlawful.
The question to be decided is not whether the Collector was wrong but whether the importer was right. (Erhardt vs.
Schroeder [1894], 155 U. S., 124; Behn, Meyer & Co. vs. Collector of Customs [1913], 26 Phil., 647.) On the other
hand, His Honor, Judge Simplicio del Rosario, took an opposite view, overruled the decision of the Collector of
Customs, and held that dust shields should be classified as "detached parts" of vehicles for the use on railways.
This impartial finding is also entitled to our respect. It is the general rule in the interpretation of statutes levying taxes
or duties not to extend their provisions beyond the clear import of the language used. In every case of doubt, such
statutes are construed most strongly against the Government and in favor of the citizen, because burdens are not to
be imposed, nor presumed to be imposed, beyond what the statutes expressly and clearly import. (U. S. vs.
Wigglesworth [1842], 2 Story, 369; Froehlich & Kuttner vs. Collector of Customs [1911], 18 Phil., 461.)

There are present two fundamental considerations which guide the way out of the legal dilemma. The first is by
taking into account the purpose of the article and then acknowledging that it is in reality used as a detached part or
railways vehicles. The second point is that paragraph 141 is a general provision while paragraph 197 is a special
provision. Where there is in the same statute a particular enactment and also a general one which is embraced in
the former, the particular enactment must be operative, and the general enactment must be taken to effect only such
cases within its general language as are not within the provisions of the particular enactment (25 R. C. L., p. 1010,
citing numerous cases).

We conclude that the trial judge was correct in classifying dust shields under paragraph 197 of section 8 of the Tariff
Law of 1909, and in refusing to classify them under paragraph 141 of the same section of the law. Accordingly, the
judgment appealed from will be affirmed in its entirety, without special taxation of costs in either instance.

Johnson, Street, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23800 December 21, 1965

POLICARPIO ALMEDA, plaintiff-appellant,

vs.
JULIAN FLORENTINO, defendant-appellee.

Policarpo Almeda in his own behalf.

Mariano V. Ampil, Jr. for defendant-appellee.

REYES, J.B.L., J.:

Appeal from a decision of the Court of First Instance of Pasay City in Sp. Civil Case No. 2462-P dismissing the Quo
Warranto proceedings instituted by petitioner appellant Policarpo Almeda against respondent appellee Julian
Florentino. Both parties claim title to the position of Secretary to the Municipal Board of Pasay City.

The background of the litigation is the following:

Republic Act No. 183, the charter of Pasay (formerly Rizal) City (enacted June 21, 1947), provides in its section 12
that:

SEC. 12. Constitution and organization of the Municipal Board — Compensation of members thereof. — The
Municipal Board shall be the legislative body of the city and shall be composed of one Mayor, who shall be
its presiding officer, the Vice-Mayor, who shall be ex-officio councilor when not acting as Mayor, and seven
councilors, who shall be elected at large by popular vote during every election for provincial and municipal
officials in conformity with the provisions of the Election Code. In case of sickness, absence, suspension or
temporary disability of any member of the Board, or if necessary to maintain a quorum, the President of the
Philippines may appoint a temporary substitute who shall possess all the rights and perform all the duties of
a member of the Board until the return to duty of the regular incumbent.

If any member of the Municipal Board should be a candidate for office in any election, he shall be
disqualified to act with the Board in the discharge of the duties conferred upon it relative to election matters,
and in such case the other members of the Board shall discharge said duties without his assistance, or they
may choose some disinterested elector of the city to act with the Board in such matters in his stead.

The members of the Municipal Board shall receive ten pesos for each day of attendance of the session of
the Board.

Section 14, paragraph 1, of Republic Act 183, in turn, provides:

SEC. 14. Appointment, salary and duties of Secretary of Board. —The Board hall have a secretary who shall
be appointed by it to serve during the term of office of the members thereof. The compensation of the
secretary shall be fixed by ordinance approved by the Secretary of the Interior, at not exceeding three
thousand six hundred pesos per annum. A vacancy in the office of the secretary shall be filled temporarily
for the unexpired term in like manner.

On June 18, 1960, Republic Act No. 2709 amended section 12 of Republic Act 183 (Pasay City Charter) to make it
read as follows:

SEC. 12. Constitution and organization of the Municipal Board — Compensation of members thereof. — The
Municipal Board shall be the legislative body of the city and shall be composed of the Vice-Mayor, who shall
be its presiding officer, and ten councilors who shall be elected at large by popular vote during every election
for provincial and municipal officials in conformity with the provisions of the Election Code. In case of
sickness, absence, suspension or temporary disability of any member of the Board or if necessary to
maintain a quorum, the President of the Philippines may appoint a temporary substitute who shall possess
all the rights and perform all the duties of a member of the Board until the return to duty of the regular
incumbent.

The Vice-Mayor shall appoint all the employees of the Board who may be suspended or removed in
accordance with law, and shall approve the payroll of the said employees.
 "If any member of the Municipal Board should be a candidate for office in any election, he shall be
disqualified to act with the Board in the discharge of the duties conferred upon it relative to election matters,
and in such case the other members of the Board shall discharge said duties without his assistance, or they
may choose some disinterested elector or the city to act with the Board in such matters in his stead.

The members of the Municipal Board shall receive a compensation for four thousand eight hundred pesos
each per annum."

On the strength of paragraph 2 of section 12 of the Pasay City Charter, as amended, the Vice-Mayor of Pasay City
appointed appellant Almeda, as secretary of the Municipal Board of said City, on January 1, 1964. The very next
day, the Board refused to recognize appellant as its secretary, and in turn appointed respondent-appellee Julian
Florentino to the position, purportedly under section 14 of the City Charter. Hence, the quo warranto proceeding,
that raised in the trial court, and here, one lone issue: which law applies on the matter of the appointment of the
Secretary of the Municipal Board of Pasay City, the amendatory Republic Act No. 2709 or the original charter,
Republic Act 183?

Almeda's contention is that the amendatory act vesting appointment of "all the employees of the (Municipal) Board"
in the Vice-Mayor, being the later act, should apply to the Board Secretary; but his claim was rejected by the court
below, on the ground that the general appointing power of the Vice-Mayor must be construed as not including that of
the Board secretary, which is provided for in a separate section.

We find that the petition for quo warranto was correctly dismissed. There is nothing in Rep. Act 2709 that indicates
any intention on the part of the Legislature to repeal, alter, or modify in any way the provisions of section 14 of the
Pasay City charter (Rep. Act No. 183) regarding the appointment of its secretary by the Municipal Board. The power
of appointment of Board employees is conferred upon the vice-mayor by section 1 of Republic Act 2709; but the
preamble of said section expressly recites that it is an amendment to section 12 of the Pasay charter, and no other.
Because repeals by implication are not favored, unless it is manifest that the legislature so intended (U.S. vs.
Palacio, 33 Phil. 216; Lichauco vs. Apostol, 44 Phil. 138); and since courts are duty bound to adopt a construction
that will give effect to every part of a statute, if at all possible, following the maxim "ut magis valeat quam pereat"
("that construction [is to be] sought which gives effect to the whole of the statute-its every word", Tamayo vs. Gsell,
35 Phil. 953, 980), there is no alternative but to interpret the charter as the lower court has done, i.e., limiting the
power of the Vice-Mayor under section 12 (as amended) to the appointment of all the employees of the Board other
than the Secretary, who is to be appointed by the Board itself, as specifically prescribed by section 14 of the Pasay
city charter.

WHEREFORE, the decision appealed from is hereby affirmed, with costs against the appellant.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-5955 September 19, 1952

JOSE L. LAXAMANA, petitioner,

vs.
JOSE T. BALTAZAR, respondent.

Gerardo S. Limlingan and Jose L. Baltazar for petitioner.

Macapagal, Punzalan and Yabut for respondent.
Ramon Duterte and Pedro Lopez as amici curiae.

BENGZON, J.:

When in July 1952 the mayor of Sexmoan, Pampanga, was suspended, the vice-mayor Jose T. Salazar, assumed
office as mayor by virtue of section 2195 of the Revised Administrative Code. However, the provincial governor,
acting under section 21 (a) of the Revised Election Code (R.A. 180), with the consent of the provincial board
appointed Jose L. Laxamana, as mayor of Sexmoan, who immediately took the corresponding official oath.

Result: this quo warranto proceeding, based solely on the petitioner's proposition that the section first mentioned
has been repealed by the subsequent provision of the Revised Election Code.

If there was such repeal, this petition should be granted, and Laxamana declared the lawful mayor of Sexmoan.
Otherwise it must be denied.1

The two statutory provisions read as follows:

SEC. 2195. — Temporary disability of the mayor. Upon the occasion of the absence, suspension, or other
temporary disability of the Mayor, his duties shall be discharged by the Vice-Mayor, or if there be no Vice-
Mayor, by the councilor who at the last general election received the highest number of votes.

SEC. 21 (a). Vacancy in elective provincial, city or municipal office. — Whenever a temporary vacancy in
any elective local office occurs, the same shall be filled by appointment by the President if it is a provincial or
city office, and by the provincial governor, with the consent of the Provincial Board, if it is a municipal office.
(R.A. 180, the Revised Election Code.

SEC. 21 (a) — The portion relating to municipal offices — was taken from section 2180 of the Revised
Administrative Code, which partly provided:

SEC. 2180. Vacancies in municipal office. — (a) In case of a temporary vacancy in any municipal office, the
same shall be filled by appointment by the provincial governor, with the consent of the provincial board.

(b) In case of a permanent vacancy in any municipal office, the same shall be filled by appointment by the
provincial board, except in case of a municipal president, in which the permanent vacancy shall be filled by
the municipal vice-president. . . .

It will be seen that under this section, when the office of municipal president (now mayor) become permanently
vacant the vice-president stepped into the office. The section omitted reference to temporary vacancy of such office
because section 2195 governed that contingency. In this regard sections 2180 and 2195 supplemented each other.
Paragraph (a) of section 2180 applied to municipal offices in general, other than that of the municipal president.

Under the Revised Administrative Code, — specially the two sections indicated — there was no doubt in
Government circles that when the municipal president was suspended from office, the vice-president took his place.

Temporary vacancy in office of municipal president. — Paragraph (a) of this section (2180) should be
construed to cover only municipal offices other than the office of president. Section 2195 of the
Administrative Code should be applied in case of the absence, suspension, or other temporary disability of
the municipal president. (Op. Atty. Gen. Sept. 21, 1917; Ins. Aud. Oct. 23, 1927.) (Araneta, Administrative
Code Vol. IV p. 2838)
 Municipal president cannot designate acting president. — There is no provision of law expressly or implied
authorizing the municipal president to designate any person to act in his stead during his temporary absence
or disability. From the provision of section 2195 of the code, it is clear that the vice-president or, if there be
no vice-president, the councilor who at the last general election received the highest number of votes,
should automatically (without any formal designation) discharge the duties of the president. (Op. Ins. Aud.
March 2, 1926) (Araneta Administrative Code Vol. IV, p. 2839)

Now it is reasonable to assume that the incorporation of the above section 2180 into the Revised Election Law as
section 21 (a) did not have the effect of enlarging its scope,2 to supersede or repeal section 2195, what with the
presumption against implied repeals.3 "Where a statute has received a contemporaneous and practical interpretation
and the statute as interpreted is re-enacted, the practical interpretation is accorded greater weight than it ordinarily
receives, and is regarded as presumptively the correct interpretation of the law. The rule here is based upon the
theory that the legislature is acquainted with the contemporaneous interpretation of a statute, especially when made
by an administrative body or executive officers charged with the duty of administering or enforcing the law, and
therefore impliedly adopts the interpretation upon re-enactment." (Sutherland Statutory Construction, sec. 5109.)

Indeed, even disregarding their origin, the allegedly conflicting sections, could be interpreted in the light of the
principle of statutory construction that when a general and a particular provision are inconsistent the latter is
paramount to the former (sec. 288, Act 190). In other words, section 2195 referring particularly to vacancy in the
office of mayor, must prevail over the general terms of section 21 (a) as to vacancies of municipal (local) offices.
Otherwise stated, section 2195 may be deemed an exception to or qualification of the latter.4 "Where one statute
deals with a subject in general terms, and another deals with a part of the same subject in a more detailed way, the
two should be harmonized if possible; but if there is any conflict, the latter will prevail, regardless of whether it was
passed prior to the general statute." (Sutherland Statutory Construction, sec. 5204)

In a recent decision,5 we had occasion to pass on a similar situation — repeal by subsequent general provision of a
prior special provision — and we said,:

It is well-settled that a special and local statute, providing for a particular case or class of cases, is not
repealed by a subsequent statute, general in its terms, provisions and application, unless the intent to repeal
or alter is manifest, although the terms of the general act are broad enough to include the cases embraced
in the special law. . . . It is a canon of statutory construction that a later statute, general in its terms and not
expressly repealing a prior special statute, will ordinarily not affect the special provisions, of such earlier
statute. (Steamboat Company vs. Collector, 18 Wall. (U.S.), 478; Cass County vs. Gillett, 100 U.S. 585;
Minnesota vs. Hitchcock, 185 U.S. 373, 396.)

Where there are two statutes, the earlier special and the later general — the terms of the general brood
enough to include the matter provided for in the special — the fact that one is special and the other is
general creates a presumption that the special is to be considered as remaining an exception to the general,
one as a general law of the land, the other as the law of a particular case. (State vs. Stoll, 17 Wall. (U.S.)
425)

In fact even after the Revised Election Code was enacted, the Department of the Interior and the office of executive
Secretary who are charged with the supervision of provincial and municipal governments have "consistently held
that in case of the suspension or other temporary disability of the mayor, the vice-mayor shall, by operation of law,
assume the office of the mayor, and if the vice-mayor is not available, the said office shall be discharged by the first
councilor." (Annex 5 of the answer.)

Needless to say, the contemporaneous construction placed upon the statute by the executive officers charged with
its execution deserves great weight in the courts.6

Consequently it is our ruling that when the mayor of a municipality is suspended, absent or temporarily unable, his
duties should be discharged by the vice-mayor in accordance with sec. 2195 of the Revised Administrative Code.

This quo warranto petition is dismissed with costs. So ordered. 1âwphïl.nêt

Paras, C.J., Pablo, Padilla, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-21516 April 29, 1966

BUTUAN SAWMILL, INC., petitioner-appellee,

vs.
CITY OF BUTUAN, ET AL., respondents-appellants.

Ricardo S. Castillo, for respondents-appellants.

David G. Nitafan, for petitioner-appellee.

REYES, J.B.L., J.:

Direct appeal on questions of law from a decision of the Court of First Instance of Agusan, in its Special Civil Case
No. 152, declaring as unconstitutional and ultra vires Ordinances Nos. 7, 11, 131, and 148 of the herein respondent-
appellant City of Butuan "in so far as they impose a 2% tax on the gross sales or receipts of the business of electric
light, heat and power of the petitioner (appellee) Butuan Sawmill, Inc." and annulling Ordinance No. 104, also of the
said city, as unconstitutional, arbitrary, unreasonable and oppressive. The decision was rendered on a petition for
declaratory relief.

The petitioner-appellee, Butuan Sawmill, Inc. was granted a legislative franchise, Republic Act No. 399, approved
on 18 June 1949, for an electric light, heat and power system at Butuan and Cabadbaran, Agusan, subject to the
terms and conditions established in Act 3636, as amended by Commonwealth Act No. 132 and the Constitution. It
was also issued a certificate of public convenience and necessity by the Public Service Commission on 18 March
1954.

Ordinance No. 7, which took effect on 1 October 1950, imposes a tax of 2% on the gross sales or receipts of any
business operated in the city, payable monthly within the first 20 days of the following month, and provides penalties
for violation thereof. This ordinance was amended on 14 December 1950 by Ordinance No. 11, by enumerating the
kinds of businesses required to pay the tax, and further amended by Ordinance No. 131, enacted on 16 May 1961,
by modifying the penal provision, and still further amended by Ordinance No. 148, approved on 11 June 1962, by
including within the coverage of taxable businesses "Those engaged in the business of electric light, heat and power
(sic) ... " (Rec. on Appeal, pp. 116-131).

Ordinance No. 104, enacted on 13 April 1960, makes it unlawful, and provides a penalty of fine and imprisonment —

for any person, firm or entity to cut or disconnect electric wire or wires connecting the electric power plant of
any franchise holder or electricity supplying current with any consumer in the City of Butuan without the
consent of the said consumer except in cases of fire and/or when there is a clear and positive danger to the
lives and properties of the residents of the community, or upon order by the proper authorities. (Rec. on
App., pp. 133-134).

The stand of the respondents-appellants is that the franchise of the

petitioner-appellee is subject to "amendment, alteration or repeal by the National Assembly ...", as per Section 12 of
Act 3636, as amended; that the city is empowered under its charter (Republic Act 523, approved on 15 June 1950)
to "provide for the levy and collection of taxes for general and special purposes"; and that its taxing power was
enlarged and extended by the Local Autonomy Law, Republic Act 2264, which was approved on 19 June 1959; and
that all said statutory enactments gave the city the authority to impose the 2% tax on the gross sales or receipts of
the business of electric light, heat and power of the Butuan Sawmill, Inc.

The petitioner-appellee, Butuan Sawmill, Inc., on the other hand, disputes the constitutionality of the taxing
ordinance, as amended, as one that impairs the obligation of contract, its franchise being a contract, and deprives it
of property without due process of law; it maintains that the said ordinances are ultra vires and void.1äw phï1.ñët

Examination of the laws involved shows that the inclusion of the franchised business of the Butuan Sawmill, Inc. by
the City of Butuan within the coverage of the questioned taxing ordinances is beyond the broad power of taxation of
the city under its charter; nor can the power therein granted be taken as an authority delegated to the city to amend
or alter the franchise, since its charter did not expressly nor specifically provide any such power. Be it noted that the
franchise was granted by act of the legislature on 18 June 1949 while the city's charter was approved on 15 June
1950.
 Where there are two statutes, the earlier special and the later general — the terms of the general broad
enough to include the matter provided for in the special — the fact that one is special and the other is
general creates a presumption that the special is to be considered as remaining an exception to the general,
one as a general law of the land, the other as the law of a particular case. (State vs. Stoll, 17 Wall. [U.S.],
425) (Manila Railroad Co. vs. Rafferty, 40 Phil. 224)

The Local Autonomy Act did not authorize the City of Butuan to tax the franchised business of the petitioner-
appellee. Its pertinent provision states:

Any provision of law to the contrary notwithstanding, all chartered cities ... shall have authority to impose
municipal license taxes or fees upon persons engaged in any occupation or business ... Provided, however,
That no city, municipality or municipal district may levy or impose any of the following:

xxx xxx xxx

(d) Taxes on persons operating waterworks, irrigation and other public utilities except electric light, heat and
power.

xxx xxx xxx

(j) Taxes of any kind on banks, insurance companies, and persons paying franchise tax.

xxx xxx xxx

(Sec. 2, Republic Act 2264) (Emphasis supplied)

The argument of the appellant city is that, under subparagraph (d) of the above-quoted provision, the business of
electric light, heat and power, being an exception to those which it cannot tax (like waterworks and irrigation), is
within the city's taxing power. This argument is untenable, because (1) subparagraph (j) of the same section
specifically withholds the imposition of taxes on persons paying franchise tax (like appellee herein), and (2) the city's
interpretation of the provision would result in double taxation against the business of the appellee because the
internal revenue code already imposes a franchise tax. The logical construction of section 2(d) of Republic Act 2264,
that would not nullify section 2(j) of the same Act, is that the local government may only tax electric light and power
utilities that are not subject to franchise taxes, unless the franchise itself authorizes additional taxation by cities or
municipalities.

The passage of ordinance No. 104, which prohibits the disconnection of any electrical wire connected to any
consumer's building with the power plant, without the consent of the consumer; except in case of fire, clear and
positive danger to the residents, or order of the authorities, is an unwarranted exercise of power for the general
welfare. In effect, the ordinance compels the electric company to keep supplying electric current to a customer even
if the latter does not pay the bills therefor, and to that extent deprives the company of its property without due
process. It is no answer to the objection that the company is not prevented from resorting to the courts for the
collection of unpaid bills; for unless the supply of electricity is stopped, the bills will keep mounting during the
pendency of the case, and the company will be unable to stop litigating. How the general welfare would be promoted
under the ordinance has neither been explained nor justified; in fact, the respondents spare no bones in asserting
that the ordinance was directed against the petitioner in protest against its allegedly inefficient service. But the
general welfare clause was not intended to vent the ire of the complaining consumers against the franchise holder,
because the legislature has specifically lodged jurisdiction, supervision and control over public services and their
franchise in the Public Service Commission and not in the City of Butuan.

For the foregoing reasons, the appealed decision is hereby affirmed in the result. Costs against appellant City of
Butuan.

Bengzon, C.J., Bautista Angelo, Concepcion, Barrera, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez,
JJ., concur.
Dizon, J., is on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-28067 March 10, 1928

BASILIA ARAYATA, plaintiff-appellant,

vs.
FLORENTINO JOYA, ET AL., defendants-appellants.

Emiliano T. Tirona and Andres R. Faustino for plaintiff-appellant.

Fidel Ibanez for defendants-appellants.

VILLA-REAL, J.:

In this instance both parties have appealed from the judgment of the Court of First Instance of Cavite, the dispositive
part of which, as amended, is as follows;

Wherefore, the testamentary clauses and dispositions made by the late Cecilio Joya concerning one-half of
the property left by the deceased and pertaining to the plaintiff, are hereby declared void in so far as they
infringe upon said plaintiff's right, as being contrary to law; the certificate of sale of lot No. 1058, Exhibit 9,
executed by the deceased in favor of defendant Florentino Joya is null and void, and the plaintiff is hereby
declared the sole and exclusive owner of said lots, or such portions thereof or their value, as the plaintiff
may be entitled to as a result of the liquidation of the testamentary estate; and each and every one of the
defendants, Florentino and Pablo Joya, Asuncion Bobadilla, and Delfin and Felicisima Blancaflor, are hereby
ordered to deliver lots Nos. 1031, 1058, 1086, 1153, and 2352 to the administrator of the estate of the
deceased in order that he may proceed to the liquidation, partition and distribution of the latter's estate in
accordance with the law and this judgment, as soon as it becomes final and executory, the Director of Lands
being hereby ordered to cancel the certificates of transfer of said lots Nos. 1031, 1058, 1086, 1153 and 2352
registered in the name of said defendants, Florentino Joya on his own behalf and that of Pablo Joya,
Felicisimo Joya, Asuncion Bobadilla, Delfin and Felicisima Blancaflor, with the costs of the action against the
defendants. So ordered.

In support of her appeal, plaintiff-appellant assigns the following alleged errors as committed by the trial court in its
decision, to wit: (1) The lower court erred in declaring the plaintiff owner of only one-half of lots Nos. 1031, 1058,
1086, 1153, and 2352, as conjugal property possessed with the deceased Cecilio Joya, instead of holding her to be
the absolute and exclusive owner of said lots, in accordance with section 16 of Act No. 1120; (2) the lower court
erred in not holding the document of sale of lot No. 547, Exhibit 10, fraudulent, (3) the lower court erred in amending
its judgment of December 17, 1926, thereby exempting the defendants from the obligation to pay plaintiff the
products of the lots in question, from the year 1920 until their restitution; (4) the lower court erred in amending its
judgment rendered on December 17, 1926, ordering the delivery of all the lots in question to the administrator of the
estate of the deceased Cecilio Joya, in order that he might proceed to the liquidation and distribution of the latter's
estate in accordance with the law and its judgment; (5) the lower court erred in not passing upon petition contained
in the complaint to the effect that defendant, Florentino Joya, who was appointed administrator of the estate of the
deceased Cecilio Joya in case No. 1241, be relieved from such duty; (6) the lower court erred in denying plaintiff's
motion for a new trial.

The defendants-appellants, in turn, assign the following alleged errors as committed by the trial court in its decision,
to wit: (1) The trial court erred in annulling the clauses and provisions of the decedent Cecilio Joya's will, Exhibit Y,
with respect to one-half of the property left by said decedent; (2) the trial court erred in holding the certificate of sale
of lot No. 1058, exhibit 9, executed by the deceased Cecilio Joya in favor of defendant Florentino Joya, to be null
and void; (3) the trial court erred in finding that when plaintiff signed the agreement of partition, Exhibit 7, she was
unaware of the contents of the same, and that said agreement of partition has not become legally effective as
against the plaintiff; (4) the trial court erred in holding it to be a fact admitted by both parties that lots 1153 and 2352
were not donated by Pedro Tiongco to Cecilio Joya, the corresponding certificates of transfer by donation, Exhibits F
and G, notwithstanding; (5) the trial court erred in giving more credit to the testimony of the plaintiff Basilia Arayata
than to that of the defendant Florentino Joya; (6) the trial court erred in admitting plaintiff's Exhibits J, M, N and N-1;
(7) the trial court erred in ordering each and every one of the defendants, Florentino, Feliciano and Pablo Joya,
Asuncion Bobadilla Delfin and Feliciana Blancaflor to deliver lots Nos. 1031, 1038, 1086, 1153 and 2352 to the
administrator of the estate of the deceased Cecilio Joya in order that he might proceed with the liquidation, partition,
and distribution of the said deceased's estate in accordance with the decision rendered in this case by said trial
court; (8) the trial court erred in holding plaintiff to be sole and exclusive owner of the lots question, or such portions
thereof, or their value as may be due her as a result of said liquidation.
The following are the pertinent and controverted facts necessary for the decision of this case:

Cecilio Joya, during his lifetime, inherited from his deceased parents the right of lease to six lots of the friar lands at
Santa Crus de Malabon, municipality of Tanza, Province of Cavite. On June 4, 1906, Cecilio Joya married the herein
plaintiff, Basilia Arayata. When the Insular Government acquired the said land, Cecilio Joya continued his lease in
accordance with the provisions of the Act of Congress of July 1, 1902 and Act No. 1120 of the Philippine
Commission. While married to the herein plaintiff-appellant, Cecilio Joya purchase the lots he had been leasing, on
installments, from the Government, under said Act No. 1120, which were designated as lots Nos. 1031 (Exhibit C),
1058 (Exhibit D), 1086 (Exhibit E), 1153 (Exhibit F), 2352 (Exhibit G) and 547 (Exhibit H). as the number of lots
which a purchaser could acquire under the law was limited, lots Nos. 1153 and 2352 were excluded and put up for
sale. In order not to lose them, Cecilio Joya had Pedro Tiongco buy them, supplying him with the necessary funds.
Subsequently, Pedro Tiongco transferred his right to said lots to Cecilio Joya by donation, as appears from Exhibits
F and G. These transfers were approved by the Director of Lands and noted in the proper registry book. On April 24
1919, Cecilio Joya conveyed his right to lot No. 1058 to Florentino Joya consideration of the sum of P2,000 said
conveyance having been approved by the Director of Lands and registered in the proper registry book (Exhibit 9).
On May 11, 1919, Cecilio Joya conveyed his right to lot No. 547 to Marcelina Joya and Francisco Joya in
consideration of the sum of P450, conveyance having been approved by the Director of Lands and registered in the
proper registry book (Exhibit 10). On April 27, 1919, Cecilio Joya executed a will devising lot No. 1058 to Florentino
Joya, lot No. 1086 to Pablo Joya, lot No. 1031 to Delfin and Felicisima Blancaflor, lot No. 1153 to the brothers
Agustin and Pedro Joya, lot No. 2352 to Feliciano and Asuncion Bobadilla, and lot No. 547 (Exhibit Y) to Marcelina
and Francisca Joya. At the time of his death, Cecilio Joya had not yet completed the payment of the price of the lots
mentioned above to the Insular Government. All the lots in question except lot No. 547, are in the possession of the
defendants, who enjoy their products. On May 10, 1920 lots Nos. 2352, 1086, 1153 and 1031, were transferred to
Florentino Joya as administrator of the estate of the deceased Cecilio Joya. (Exhibits 3, 4, 5 and 6.)

On May 26, 1919, Cecilio Joya died, and on June 9, 1919, his executor, the herein defendant Florentino Joya,
presented said will for probate to the Court of First Instance of Cavite, which was probated after the proper
proceedings. In March, 1920, in the course of the testamentary proceedings, the executor Florentino Joya presented
an alleged agreement of partition by the legatees, which agreement was disapproved by the court in view of the
herein plaintiff's opposition, who alleged that her signature had been obtained by fraud.

The questions to be determined in this appeal are purely legal, and, briefly,, are as follows: (1) Were Cecilio Joya's
conveyances of his interest in lot No. 1958 to Florentino Joya and in No. 547 to the sisters Marcelina and Francisca
Joya fraudulent? (2) Were Cecilio Joya's legacies of lots Nos. 1031, 1086, 1153 and 2352 to the other defendants
null and void? (3) Has the plaintiff-appellant, as the surviving spouse, exclusive right to all the lots in question? (4) In
case she has, is she entitled to the possession and products thereof?

As to the first question, the pertinent part of section 16 of Act No. 1120 says the following:

SEC. 16. . . . In case the holder of the certificate shall have his interest in the land before having complied
with all the conditions thereof, the purchaser from the holder of the certificate shall be entitled to all the rights
of the holder of the certificate upon presenting his assignment to the Chief of the Bureau of Public Lands for
registration.

It will be seen that the holder of a certificate off sale of friar has a right to sell his interest therein, even before having
fully paid the purchase price and upon presentation of the certificate of transfer to the Chief of the Bureau of Public
Lands for registration, he is subrogated to all the rights of the holder of the certificate.

The evidence shows that during his lifetime Cecilio Joya conveyed his interest in lot No. 1058 to Florentino Joya for
the sum of P2,000, said conveyance having been approved by the Director of Lands, and registered in the proper
register book of said office. (Exhibit 9.) His right to lot No. 547 was also conveyed by Cecilio Joya to Marcelina and
Francisca Joya during his lifetime, said transfer having been approved by the Director of Lands, and registered in
the proper book in the Bureau of Public Lands. (Exhibit 10.) Said conveyance having been made in accordance with
the provisions of the law, Florentino Joya on the one hand, and Marcelina and Francisca Joya on the other, were
subrogated to all of Cecilio Joya's rights to said lots, and there is nothing in the record to show conclusively that said
conveyances were fraudulently obtained. The fact that the testator included said lots in his will and disposed of them
in the form of legacies in favor of said persons, does not in itself show the existence of any fraud. At most, it may be
held as an act of ratification.

In regard to the second and third questions, that is, whether or not the legacies are null and void, and the plaintiff-
appellant, as the surviving spouse, is entitled exclusively to the lots in question, the pertinent part of said section 16
of Act No. 1120 provides as follows:

SEC. 16. In the event of the death of a holder of a certificate the issuance of which is provided for in section
twelve hereof, prior to the execution of a deed by the Government to any purchaser, his widow shall be
entitled to receive a deed of the land stated in the certificate upon showing that she has complied with the
requirements of law for the purchase of the same.
In the case of Jocson vs. Soriano, as administrator of the intestate estate of Silvestre Estacion (45 Phil., 375), this
court, interpreting the above-quoted legal provision, laid down the following doctrine:

FRIAR ESTATE LANDS; RIGHTS OF THE WIDOW OF THE PURCHASER AFTER THE DEATH OF THE
LATTER. — Under the provisions of section 16 of Act No. 1120, the widow of a purchaser of a parcel of land
belonging to the Friar Estate, purchased by the Government, after the death of her husband (the purchaser),
is entitled to have a patent issued to her of the lands purchased, upon a proper showing that she has
completed the payment of the purchase price. The right granted to the original settlers of the friar estate
lands to purchase the parcel occupied by them at the time of the purchase by the Government, is a right
conceded by the Government, analogous to the homestead laws. A homestead privilege does not terminate
on the husband's death, but is transferred to his widow and his family. A homestead selected by the
husband in his lifetime vests absolute in his surviving wife, and her rights are governed by the law in force at
the time of the death of her husband. Neither does she lose said right by a second marriage upon the death
of her husband, the purchaser. She may continue to occupy the whole of the homestead.

We have seen, in discussing and solving the first question, that the holder of a certificate of sale of friar lands, who
has not fully paid the purchase price may transfer and convey his rights, but that the transferee or grantee is not
subrogated to all the transferor's right until the transfer has been approved by the Director of Lands and registered
in the registry book in the Bureau of Public Lands. In other words, in order that a transfer of the rights of a holder of
a certificate of sale of friar lands may be legally effective, it is necessary that a formal certificate of transfer be drawn
up and submitted to the Chief of the Bureau of Public Lands for his approval and registration. The law authorizes no
other way of transferring the rights of a holder of a certificate of sale of friar lands. It provides, however, that in case
of the death of said holder, the surviving spouse shall be entitled to receive the title to the land, upon compliance
with the requirements of the law. If, as it was held in the aforecited case of Jocson vs. Soriano, the right conferred
by Act No. 1120 on the holder of a certificate of sale of friar lands in similar to that conferred on the holder of a
"homestead," and if the latter has no right to dispose of said certificate by will to the prejudice of his surviving
spouse and for his children (29 C. J., 930, par. 342), then by analogy, the holder of a certificate of sale of friar lands
cannot dispose of his rights to said lands by will to the prejudice of his widow and children.

The provisions of the Civil Code referring to conjugal property cannot be applied in this case, as was done by the
trial court, because the law regulating the acquisition, disposition, and transmission of rights to the friar lands
acquired by the Insular Government, lays down rules in conflict with the aforesaid provisions of the Civil Code; and
as the said Code is of a general character, while Act No. 1120 is a special law, the latter should prevail.

With respect to the fourth question raised, namely, whether or not the herein plaintiff-appellant is entitled to the
possession and the products of the friar lands acquired by the Insular Government, which, by virtue of the law, pass
exclusively to the surviving spouse upon compliance of the legal requirements, the answer must be in the
affirmative. The defendants, who are in possession of the said lands, cannot invoke the provisions of the Civil Code
relative to possession in good faith, inasmuch as the principle on which the right of a holder in good faith is based is
the belief that his possession is with just title under claim of ownership.

While a deceased heirs or legatees acquire the ownership of the property given them in the will and may taken
possession of their respective portions upon the death of their predecessor, yet upon the appointment of an
administrator, the latter, by virtue of his appointment, acquires a right to the possession of the property of estate,
subject to the orders of the court, unless he consents to the heirs continuing in possession thereof. But such
consent does not, however, relieve the administrator of all responsibility for the management of the same and its
fruits; because until the judicial partition is made, said property continues to belong to the testamentary estate.
(Pimentel vs. Palanca, 5 Phil., 436; Fernandez vs. Tria, 22 Phil., 603.)

Being a matter of law, the defendants-appellants cannot plead ignorance of the fact that until a judicial partition of
the property left by Cecilio Joya is made, said property belongs to the lather's estate and it together with its
products, is subject to the payment of the testator's debts, if any. Only after judicial partition has been made do they
acquire the title to their respective legacies, if the latter are valid. (Santos vs. Roman Catholic Bishop of Nueva
Caceres, 45 Phil., 895.)

We have seen that the legacies given by Cecilio Joya to the defendants were void. If the lands, which are the
subject matter of said legacies and which are in the possession of the defendants, still belong to Cecilio Joya's
estate, because no judicial partition has as yet been made of the property he left, which is subject, together with its
fruits, to the payment of his debts, said defendants cannot invoke the provisions of the Civil Code with respect to
possession in good faith insofar as the fruits are concerned; because even when the legacies are valid they
acquired only when the latter judicially assigned to them in the final partition, and because, while said lands are
under administration, the administrator is obliged to render an account of his management of the same and the
products thereof.

In conclusion, them we hold that the defendants are not entitled to the possession of the lands in question or their
products, and they are bound to return them to the herein plaintiff-appellant, after deducting the necessary expenses
for cultivation and preservation. (Art 453, Civil Code.)
Summarizing all that has been said above, we find:

1. That Cecilio Joya's transfers during his lifetime of lot No. 1058 to Florentino Joya and lot No. 547 to the
sisters Marcelina and Francisca Joya, with the approval of the Director of Lands, are bona fide, and
therefore legal and valid.

2. That Cecilio Joya's legacies in his will of lot No. 1031 to Delfin and Felicisima Blancaflor, lot No. 1086 to
Pablo Joya, lot No. 1152 to the brothers Agustin and Pedro Joya, and lot No. 2352 to Feliciano and
Asuncion Bobadilla are null and void, being contrary to the provisions of section 16 of Act No. 1120 which
grants his widow, the herein plaintiff-appellant the ownership of the lands purchased and not transferred by
him during his lifetime, provided that she complies with the legal requirements for the purchase of the same.

3. The plaintiff-appellant is entitled to the exclusive ownership and possession of the aforementioned lots
Nos. 1031, 1086, 1153, and 2352 and to their fruits, after deducting the necessary expenses of preservation,
cultivation and production.

For the foregoing, the judgment appealed from is modified, and it is ordered that Feliciano and Pablo Joya,
Asuncion Bobadilla, Delfin and Felicisima Blancaflor return lots Nos. 1031, 1086, 1153, and 2352 to the plaintiff-
appellant, Basilia Arayata, together with their products, or the latter's equivalent in cash from the year 1920 until
their restitution, deducting the necessary expenses of cultivation, preservation, and production. Without any special
pronouncement as to costs, it is so ordered.

Johnson, Malcolm, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P. Burgos
Avenue, Manila, within a "loading and unloading" zone, waiting for a jeepney to take him down town. After waiting
for about five minutes, he managed to hail a jeepney that came along to a stop. As he stepped down from the curb
to board the jeepney, and took a few steps, he fell inside an uncovered and unlighted catch basin or manhole on P.
Burgos Avenue. Due to the fall, his head hit the rim of the manhole breaking his eyeglasses and causing broken
pieces thereof to pierce his left eyelid. As blood flowed therefrom, impairing his vision, several persons came to his
assistance and pulled him out of the manhole. One of them brought Teotico to the Philippine General Hospital,
where his injuries were treated, after which he was taken home. In addition to the lacerated wound in his left upper
eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the upper lip apart from an
abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus injections
administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor
P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a complaint
— which was, subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city
health officer, city treasurer and chief of police. As stated in the decision of the trial court, and quoted with approval
by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the
University of the East. He held responsible positions in various business firms like the Philippine
Merchandising Co., the A.U. Valencia and Co., the Silver Swan Manufacturing Company and the Sincere
Packing Corporation. He was also associated with several civic organizations such as the Wack Wack Golf
Club, the Chamber of Commerce of the Philippines, Y's Men Club of Manila and the Knights of Rizal. As a
result of the incident, plaintiff was prevented from engaging in his customary occupation for twenty days.
Plaintiff has lost a daily income of about P50.00 during his incapacity to work. Because of the incident, he
was subjected to humiliation and ridicule by his business associates and friends. During the period of his
treatment, plaintiff was under constant fear and anxiety for the welfare of his minor children since he was
their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel the sum of
P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain
Section, Office of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin
at the corner of P. Burgos and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered
on the same day (Exhibit 4); that again the iron cover of the same catch basin was reported missing on
January 30, 1958, but the said cover was replaced the next day (Exhibit 5); that the Office of the City
Engineer never received any report to the effect that the catchbasin in question was not covered between
January 25 and 29, 1968; that it has always been a policy of the said office, which is charged with the duty
of installation, repair and care of storm drains in the City of Manila, that whenever a report is received from
whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by
immediately replacing the missing cover or covering the catchbasin with steel matting that because of the
lucrative scrap iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office
of the City Engineer has filed complaints in court resulting from theft of said iron covers; that in order to
prevent such thefts, the city government has changed the position and layout of catchbasins in the City by
constructing them under the sidewalks with concrete cement covers and openings on the side of the gutter;
and that these changes had been undertaken by the city from time to time whenever funds were available.
After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining
the theory of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila
is concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the
City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409
(Charter of the City of Manila) reading:

The city shall not be liable or held for damages or injuries to persons or property arising from the failure of
the Mayor, the Municipal Board, or any other city officer, to enforce the provisions of this chapter, or any
other law or ordinance, or from negligence of said Mayor, Municipal Board, or other officers while enforcing
or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any
person by reason of defective conditions of road, streets, bridges, public buildings, and other public works
under their control or supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law,
intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire
Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial
application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as
regards the subject-matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule
regulating the liability of the City of Manila for: "damages or injury to persons or property arising from the failure of"
city officers "to enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city
"Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions." Upon the other
hand, Article 2189 of the Civil Code constitutes a particular prescription making "provinces, cities and municipalities
. . . liable for damages for the death of, or injury suffered by any person by reason" — specifically — "of
the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the
object thereof, whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action
is based upon the alleged defective condition of a road, said Article 2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving
him took place in a national highway; and 2) because the City of Manila has not been negligent in connection
therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City.
Moreover, Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the
defective condition of a street which is "under the supervision and control" of the City. In its answer to the amended
complaint, the City, in turn, alleged that "the streets aforementioned were and have been constantly kept in good
condition and regularly inspected and the storm drains and manholes thereof covered by the defendant City and the
officers concerned" who "have been ever vigilant and zealous in the performance of their respective functions and
duties as imposed upon them by law." Thus, the City had, in effect, admitted that P. Burgos Avenue was and
is under its control and supervision.

Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its
motion for reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of
fact, which had not been put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less
after the rendition of the decision of the appellate court, in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that
the defective roads or streets belong to the province, city or municipality from which responsibility is exacted. What
said article requires is that the province, city or municipality have either "control or supervision" over said street or
road. Even if P. Burgos Avenue were, therefore, a national highway, this circumstance would not necessarily detract
from its "control or supervision" by the City of Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

xxx xxx xxx

 (x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and
to regulate the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other
public places; to provide for lighting, cleaning, and sprinkling of streets and public places; . . . to provide for
the inspection of, fix the license fees for and regulate the openings in the same for the laying of gas, water,
sewer and other pipes, the building and repair of tunnels, sewers, and drains, and all structures in and under
the same and the erecting of poles and the stringing of wires therein; to provide for and regulate cross-
works, curbs, and gutters therein, . . . to regulate traffic and sales upon the streets and other public places;
to provide for the abatement of nuisances in the same and punish the authors or owners thereof; to provide
for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to prohibit and
regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the
streets and public places, or frighten horses or other animals; to regulate the speed of horses and other
animals, motor and other vehicles, cars, and locomotives within the limits of the city; to regulate the
lights used on all vehicles, cars, and locomotives; . . . to provide for and change the location, grade, and
crossing of railroads, and compel any such railroad to raise or lower its tracks to conform to such provisions
or changes; and to require railroad companies to fence their property, or any part thereof, to provide suitable
protection against injury to persons or property, and to construct and repair ditches, drains, sewers, and
culverts along and under their tracks, so that the natural drainage of the streets and adjacent property shall
not be obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113,
dated May 2, 1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway
funds and the giving of aid to provinces, chartered cities and municipalities in the construction of roads and streets
within their respective boundaries, and Executive Order No. 113 merely implements the provisions of said Republic
Act No. 917, concerning the disposition and appropriation of the highway funds. Moreover, it provides that "the
construction, maintenance and improvement of national primary, national secondary and national aid provincial and
city roads shall be accomplished by the Highway District Engineers and Highway City Engineers under the
supervision of the Commissioner of Public Highways and shall be financed from such appropriations as may be
authorized by the Republic of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of
Manila and whether the latter is guilty of negligence, in connection with the maintenance of said road, which were
decided by the Court of Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not
subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila.
It is so ordered.
1äwphï1.ñët

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
 EN BANC

[G.R. No. 127116. April 8, 1997]

ALEX L. DAVID, in his own behalf as Barangay Chairman of Barangay 77, Zone 7, Kalookan City and as
President of the LIGA NG MGA BARANGAY SA PILIPINAS, petitioner, vs. COMMISSION ON
ELECTIONS, THE HONORABLE SECRETARY, Department of Interior and Local Government, and
THE HONORABLE SECRETARY, Department of Budget and Management, respondents.

[G.R. No. 128039. April 8, 1997]

LIGA NG MGA BARANGAY QUEZON CITY CHAPTER, Represented by BONIFACIO M. RILLON, petitioner,
vs. COMMISSION ON ELECTIONS and DEPARTMENT OF BUDGET AND
MANAGEMENT, respondents.

DECISION
PANGANIBAN, J.:

The two petitions before us raise a common question: How long is the term of office of barangay chairmen and
other barangay officials who were elected to their respective offices on the second Monday of May 1994? Is it three
years, as provided by RA 7160 (the Local Government Code) or five years, as contained in RA 6679? Contending
that their term is five years, petitioners ask this Court to order the cancellation of the scheduled barangay election
this coming May 12, 1997 and to reset it to the second Monday of May, 1999.

The Antecedents

G.R. No. 127116

In his capacity as barangay chairman of Barangay 77, Zone 7, Kalookan City and as president of the Liga ng
mga Barangay sa Pilipinas, Petitioner Alex L. David filed on December 2, 1996 a petition for prohibition docketed in
this Court as G.R. No. 127116, under Rule 65 of the Rules of Court, to prohibit the holding of the barangay election
scheduled on the second Monday of May 1997. On January 14, 1997, the Court resolved to require the respondents
to comment on the petition within a non-extendible period of fifteen days ending on January 29, 1997.
On January 29, 1997, the Solicitor General filed his four-page Comment siding with petitioner and praying that
the election scheduled on May 12, 1997 be held in abeyance.Respondent Commission on Elections filed a separate
Comment, dated February 1, 1997 opposing the petition. On February 11, 1997, the Court issued a Resolution
giving due course to the petition and requiring the parties to file simultaneous memoranda within a non-extendible
period of twenty days from notice. It also requested former Senator Aquilino Q. Pimentel, Jr.[1]to act as amicus
curiae and to file a memorandum also within a non-extendible period of twenty days. It noted but did not grant
petitioners Urgent Motion for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction dated
January 31, 1997 (as well as his Urgent Ex-Parte Second Motion to the same effect, dated March 6,
1997). Accordingly, the parties filed their respective memoranda. The Petition for Leave to Intervene filed on March
17, 1997 by Punong Barangay Rodson F. Mayor was denied as it would just unduly delay the resolution of the case,
his interest like those of all other barangay officials being already adequately represented by Petitioner David who
filed this petition as president of the Liga ng mga Barangay sa Pilipinas.

G.R. No. 128039

On February 20, 1997, Petitioner Liga ng mga Barangay Quezon City Chapter represented by its president
Bonifacio M. Rillon filed a petition, docketed as G.R. No. 128039, to seek a judicial review by certiorari to declare as
unconstitutional:

1. Section 43(c) of R.A. 7160 which reads as follows:

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years,
which shall begin after the regular election of barangay officials on the second Monday of May 1994.

2. COMELEC Resolution Nos. 2880 and 2887 fixing the date of the holding of the barangay elections on May 12,
1997 and other activities related thereto;

3. The budgetary appropriation of P400 million contained in Republic Act No. 8250 otherwise known as the General
Appropriations Act of 1997 intended to defray the costs and expenses in holding the 1997 barangay elections;[2]

Comelec Resolution 2880,[3] promulgated on December 27, 1996 and referred to above, adopted a Calendar of
Activities and List and Periods of Certain Prohibited Acts for the May 12, 1997 Barangay Elections. On the other
hand, Comelec Resolution 2887 promulgated on February 5, 1997 moved certain dates fixed in Resolution 2880.[4]
Acting on the petition, the Court on February 25, 1997 required respondents to submit their comment thereon
within a non-extendible period of ten days ending on March 7, 1997. The Court further resolved to consolidate the
two cases inasmuch as they raised basically the same issue. Respondent Commission filed its Comment on March
6, 1997[5] and the Solicitor General, in representation of the other respondent, filed his on March 6, 1997. Petitioners
Urgent Omnibus Motion for oral argument and temporary restraining order was noted but not granted. The petition
was deemed submitted for resolution by the Court without need of memoranda.

The Issues

Both petitions though worded differently raise the same ultimate issue: How long is the term of office of
barangay officials?
Petitioners[6] contend that under Sec. 2 of Republic Act No. 6653, approved on May 6, 1988, (t)he term of office
of barangay officials shall be for five (5) years x x x. This is reiterated in Republic Act No. 6679, approved on
November 4, 1988, which reset the barangay elections from the second Monday of November 1988 to March 28,
1989 and provided in Sec. 1 thereof that such five-year term shall begin on the first day of May 1989 and ending on
the thirty-first day of May 1994. Petitioners further aver[7] that although Sec. 43 of RA 7160 reduced the term of
office of all local elective officials to three years, such reduction does not apply to barangay officials because (1) RA
6679 is a special law applicable only to barangays while RA 7160 is a general law which applies to all other local
government units; (2) RA 7160 does not expressly or impliedly repeal RA 6679 insofar as the term of barangay
officials is concerned; (3) while Sec. 8 of Article X of the 1987 Constitution fixes the term of elective local officials at
three years, the same provision states that the term of barangay officials shall be determined by law;and (4) thus, it
follows that the constitutional intention is to grant barangay officials any term, except three years; otherwise, there
would be no rhyme or reason for the framers of the Constitution to except barangay officials from the three year
term found in Sec. 8 (of) Article X of the Constitution. Petitioners conclude (1) that the Commission on Elections
committed grave abuse of discretion when it promulgated Resolution Nos. 2880 and 2887 because it substituted its
own will for that of the legislative and usurped the judicial function x x x by interpreting the conflicting provisions of
Sec. 1 of RA 6679 and Sec. 43 (c) of RA 7160; and (2) that the appropriation of P400 million in the General
Appropriation Act of 1997 (RA 8250) to be used in the conduct of the barangay elections on May 12, 1997 is itself
unconstitutional and a waste of public funds.
The Solicitor General agrees with petitioners, arguing that RA 6679 was not repealed by RA 7160 and thus he
believes that the holding of the barangay elections (o)n the second Monday of May 1997 is without sufficient legal
basis.
Respondent Commission on Elections, through Chairman Bernardo P. Pardo, defends its assailed Resolutions
and maintains that the repealing clause of RA 7160 includes all laws, whether general or special, inconsistent with
the provisions of the Local Government Code, citing this Courts dictum in Paras vs. Comelec[8] that the next regular
election involving the barangay office is barely seven (7) months away, the same having been scheduled in May
1997. Furthermore, RA 8250 (the General Appropriations Act for 1997) and RA 8189 (providing for a general
registration of voters) both indicate that Congress considered that the barangay elections shall take place in May,
1997, as provided for in RA 7160, Sec. 43 (c).[9] Besides, petitioners cannot claim a term of more than three years
since they were elected under the aegis of the Local Government Code of 1991 which prescribes a term of only
three years. Finally, Respondent Comelec denies the charge of grave abuse of discretion stating that the question
presented x x x is a purely legal one involving no exercise of an act without or in excess of jurisdiction or with grave
abuse of discretion.[10]
As amicus curiae, former Senator Aquilino Q. Pimentel, Jr. urges the Court to deny the petitions because (1)
the Local Autonomy Code repealed both RA 6679 and 6653 not only by implication but by design as well; (2) the
legislative intent is to shorten the term of barangay officials to three years; (3) the barangay officials should not have
a term longer than that of their administrative superiors, the city and municipal mayors; and (4) barangay officials
are estopped from contesting the applicability of the three-year term provided by the Local Government Code as
they were elected under the provisions of said Code.
 From the foregoing discussions of the parties, the Court believes that the issues can be condensed into three,
as follows:
1. Which law governs the term of office of barangay officials: RA 7160 or RA 6679?
2. Is RA 7160 insofar as it shortened such term to only three years constitutional?
3. Are petitioners estopped from claiming a term other than that provided under RA 7160?

The Courts Ruling

The petitions are devoid of merit.

Brief Historical Background of Barangay Elections

For a clear understanding of the issues, it is necessary to delve briefly into the history of barangay elections.
As a unit of government, the barangay antedated the Spanish conquest of the Philippines. The word barangay
is derived from the Malay balangay, a boat which transported them (the Malays) to these shores.[11] Quoting from
Juan de Plasencia, a Franciscan missionary in 1577, Historian Conrado Benitez[12] wrote that the barangay was
ruled by a dato who exercised absolute powers of government. While the Spaniards kept the barangay as the basic
structure of government, they stripped the dato or rajah of his powers.[13] Instead, power was centralized nationally
in the governor general and locally in the encomiendero and later, in the alcalde mayor and
the gobernadorcillo. The dato or rajah was much later renamed cabeza de barangay, who was elected by the local
citizens possessing property. The position degenerated from a title of honor to that of a mere government
employee. Only the poor who needed a salary, no matter how low, accepted the post.[14]
After the Americans colonized the Philippines, the barangays became known as barrios. [15] For some time, the
laws governing barrio governments were found in the Revised Administrative Code of 1916 and later in the Revised
Administrative Code of 1917.[16] Barrios were granted autonomy by the original Barrio Charter, RA 2370, and
formally recognized as quasi-municipal corporations[17] by the Revised Barrio Charter, RA 3590. During the martial
law regime, barrios were declared or renamed barangays -- a reversion really to their pre-Spanish names -- by PD.
No. 86 and PD No. 557. Their basic organization and functions under RA 3590, which was expressly adopted as the
Barangay Charter, were retained. However, the titles of the officials were changed to barangay captain, barangay
councilman, barangay secretary and barangay treasurer.
Pursuant to Sec. 6 of Batas Pambansa Blg. 222,[18] a Punong Barangay (Barangay Captain) and six Kagawads
ng Sangguniang Barangay (Barangay Councilmen), who shall constitute the presiding officer and members of the
Sangguniang Barangay (Barangay Council) respectively were first elected on May 17, 1982. They had a term of six
years which began on June 7, 1982.
The Local Government Code of 1983[19] also fixed the term of office of local elective officials at six
years.[20] Under this Code, the chief officials of the barangay were the punong barangay, six elective sangguniang
barangay members, the kabataang barangay chairman, a barangay secretary and a barangay treasurer.[21]
B.P. Blg. 881, the Omnibus Election Code,[22] reiterated that barangay officials shall hold office for six years,
and stated that their election was to be held on the second Monday of May nineteen hundred and eighty eight and
on the same day every six years thereafter.[23]
This election scheduled by B.P. Blg. 881 on the second Monday of May 1988 was reset to the second Monday
of November 1988 and every five years thereafter[24] by RA 6653. Under this law, the term of office of the barangay
officials was cut to five years[25] and the punong barangay was to be chosen from among themselves by seven
kagawads, who in turn were to be elected at large by the barangay electorate.[26]
But the election date set by RA 6653 on the second Monday of November 1988 was again postponed and reset
to March 28, 1989 by RA 6679,[27] and the term of office of barangay officials was to begin on May 1, 1989 and to
end on May 31, 1994. RA 6679 further provided that there shall be held a regular election of barangay officials on
the second Monday of May 1994 and on the same day every five (5) years thereafter. Their term shall be for five
years x x x.[28] Significantly, the manner of election of the punong barangay was changed. Sec. 5 of said law
ordained that while the seven kagawads were to be elected by the registered voters of the barangay, (t)he candidate
who obtains the highest number of votes shall be the punong barangay and in the event of a tie, there shall be a
drawing of lots under the supervision of the Commission on Elections.
Under the Local Government Code of 1991, RA 7160,[29] several provisions concerning barangay officials were
introduced:

(1) The term of office was reduced to three years, as follows:

SEC. 43. Term of Office. --

xxxxxxxxx

(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years,
which shall begin after the regular election of barangay officials on the second Monday of May, 1994 (Underscoring
supplied.)

(2) The composition of the Sangguniang Barangay and the manner of electing its officials were altered, inter alia, the
barangay chairman was to be elected directly by the electorate, as follows:

SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong barangay, seven (7)
sanggunian barangay members, the sanggunian kabataan chairman, a barangay secretary and a barangay
treasurer.

xxxxxxxxx

SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of the barangay, shall be composed of
the punong barangay as presiding officer, and the seven (7) regular sanguniang barangay members elected at large
and the sanguniang kabataan chairman as members.

SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x x by the qualified voters
in the barangay. (Underscoring supplied.)

Pursuant to the foregoing mandates of the Local Autonomy Code, the qualified barangay voters actually
voted for one punong barangay and seven (7) kagawads during the barangay elections held on May 9, 1994. In
other words, the punong barangay was elected directly and separately by the electorate, and not by the seven (7)
kagawads from among themselves.

The First Issue: Clear Legislative Intent and Design to Limit Term to Three Years
In light of the foregoing brief historical background, the intent and design of the legislature to limit the term of
barangay officials to only three (3) years as provided under the Local Government Code emerges as bright as the
sunlight. The cardinal rule in the interpretation of all laws is to ascertain and give effect to the intent of the
law.[30] And three years is the obvious intent.
First. RA 7160, the Local Government Code, was enacted later than RA 6679. It is basic that in case of an
irreconciliable conflict between two laws of different vintages, the later enactment prevails.[31] Legis posteriores
priores contrarias abrogant. The rationale is simple: a later law repeals an earlier one because it is the later
legislative will. It is to be presumed that the lawmakers knew the older law and intended to change it. In enacting the
older law, the legislators could not have known the newer one and hence could not have intended to change what
they did not know. Under the Civil Code, laws are repealed only by subsequent ones --[32] and not the other way
around.
Under Sec. 43-c of RA 7160, the term of office of barangay officials was fixed at three (3) years which shall
begin after the regular election of barangay officials on the second Monday of May 1994. This provision is clearly
inconsistent with and repugnant to Sec. 1 of RA 6679 which states that such term shall be for five years. Note that
both laws refer to the same officials who were elected on the second Monday of May 1994.
Second. RA 6679 requires the barangay voters to elect seven kagawads and the candidate obtaining the
highest number of votes shall automatically be the punong barangay. RA 6653 empowers the seven elected
barangay kagawads to select the punong barangay from among themselves. On the other hand, the Local
Autonomy Code mandates a direct vote on the barangay chairman by the entire barangay electorate, separately
from the seven kagawads. Hence, under the Code, voters elect eight barangay officials, namely, the punong
barangay plus the seven kagawads. Under both RA 6679 and 6653, they vote for only seven kagawads, and not for
the barangay chairman.
Third. During the barangay elections held on May 9, 1994 (second Monday), the voters actually and directly
elected one punong barangay and seven kagawads. If we agree with the thesis of petitioners, it follows that all the
punong barangays were elected illegally and thus, Petitioner Alex David cannot claim to be a validly elected
barangay chairman, much less president of the national league of barangays which he purports to represent in this
petition. It then necessarily follows also that he is not the real party-in-interest and on that ground, his petition should
be summarily dismissed.
Fourth. In enacting the general appropriations act of 1997,[33] Congress appropriated the amount of P400
million to cover expenses for the holding of barangay elections this year.Likewise, under Sec. 7 of RA 8189,
Congress ordained that a general registration of voters shall be held immediately after the barangay elections in
1997. These are clear and express contemporaneous statements of Congress that barangay officials shall be
elected this May, in accordance with Sec. 43-c of RA 7160.
Fifth. In Paras vs. Comelec,[34] this Court said that the next regular election involving the barangay office
concerned is barely seven (7) months away, the same having been scheduled in May, 1997. This judicial decision,
per Article 8 of the Civil Code, is now a part of the legal system of the Philippines.
Sixth. Petitioners pompously claim that RA 6679, being a special law, should prevail over RA 7160, an alleged
general law pursuant to the doctrine of generalia specialibus non derogant. Petitioners are wrong. RA 7160 is a
codified set of laws that specifically applies to local government units. It specifically and definitively provides in its
Sec. 43-c that the term of office of barangay officials x x x shall be for three years. It is a special provision that
applies only to the term of barangay officials who were elected on the second Monday of May 1994.With such
particularity, the provision cannot be deemed a general law. Petitioner may be correct in alleging that RA 6679 is a
special law, but they are incorrect in stating (without however giving the reasons therefor) that RA 7160 is
necessarily a general law.[35] It is a special law insofar as it governs the term of office of barangay officials. In its
repealing clause,[36] RA 7160 states that all general and special laws x x x which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly. There being a clear repugnance and
incompatibility between the two specific provisions, they cannot stand together. The later law, RA 7160, should thus
prevail in accordance with its repealing clause. When a subsequent law encompasses entirely the subject matter of
the former enactments, the latter is deemed repealed.[37]

The Second Issue: Three-Year Term Not Repugnant to Constitution

Sec. 8, Article X of the Constitution states:

SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years, and no such official shall serve for more than three consecutive terms.Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected.

Petitioner Liga ng mga Barangay Quezon City Chapter posits that by excepting barangay officials whose term
shall be determined by law from the general provision fixing the term of elective local officials at three years, the
Constitution thereby impliedly prohibits Congress from legislating a three-year term for such officers. We find this
theory rather novel but nonetheless logically and legally flawed.
Undoubtedly, the Constitution did not expressly prohibit Congress from fixing any term of office for barangay
officials. It merely left the determination of such term to the lawmaking body, without any specific limitation or
prohibition, thereby leaving to the lawmakers full discretion to fix such term in accordance with the exigencies of
public service. It must be remembered that every law has in its favor the presumption of constitutionality.[38] For a
law to be nullified, it must be shown that there is a clear and unequivocal (not just implied) breach of the
Constitution.[39] To strike down a law as unconstitutional, there must be a clear and unequivocal showing that what
the fundamental law prohibits, the statute permits.[40] The petitioners have miserably failed to discharge this burden
and to show clearly the unconstitutionality they aver.
There is absolutely no doubt in our mind that Sec. 43-c of RA 7160 is constitutional. Sec. 8, Article X of the
Constitution -- limiting the term of all elective local officials to three years, except that of barangay officials which
shall be determined by law -- was an amendment proposed by Constitutional Commissioner (now Supreme Court
Justice) Hilario G. Davide, Jr.According to Fr. Joaquin G. Bernas, S.J., the amendment was readily accepted without
much discussion and formally approved. Indeed, a search into the Record of the Constitutional Commission yielded
only a few pages[41] of actual deliberations, the portions pertinent to the Constitutional Commissions intent being the
following:
MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of the office of barangay
officials as provided for?
MR. DAVIDE. As may be determined by law.
MR. NOLLEDO. As provided for in the Local Government Code?
MR. DAVIDE. Yes.
xxxxxxxxx
THE PRESIDENT. Is there any other comment? Is there any objection to this proposed new section as
submitted by Commissioner Davide and accepted by the Committee?
MR. RODRIGO. Madam President, does this prohibition to serve for more than three consecutive terms apply
to barangay officials?
 MR. DAVIDE. Madam President, the voting that we had on the terms of office did not include the barangay
officials because it was then the stand of the Chairman of the Committee on Local Governments that the
term of barangay officials must be determined by law. So it is now for the law to determine whether the
restriction on the number of reelections will be included in the Local Government Code.
MR. RODRIGO. So that is up to Congress to decide.
MR. DAVIDE. Yes.
MR. RODRIGO. I just wanted that clear in the record.
Although the discussions in the Constitutional Commission were very brief, they nonetheless provide the exact
answer to the main issue. To the question at issue here on how long the term of barangay officials is, the answer of
the Commission was simple, clear and quick: As may be determined by law; more precisely, (a)s provided for in the
Local Autonomy Code. And the Local Autonomy Code, in its Sec. 43-c, limits their term to three years.

The Third Issue: Petitioners Estopped From Challenging Their Three-Year Terms

We have already shown that constitutionally, statutorily, logically, historically and commonsensically, the
petitions are completely devoid of merit. And we could have ended our Decision right here. But there is one last
point why petitioners have no moral ascendancy for their dubious claim to a longer term of office: the equities of
their own petition militate against them. As pointed out by Amicus Curiae Pimentel,[42] petitioners are barred by
estoppel from pursuing their petitions.
Respondent Commission on Elections submitted as Annex A of its memorandum, [43] a machine copy of the
certificate of candidacy of Petitioner Alex L. David in the May 9, 1994 barangay elections, the authenticity of which
was not denied by said petitioner. In said certificate of candidacy, he expressly stated under oath that he was
announcing his candidacy for the office of punong barangay for Barangay 77, Zone 7 of Kalookan City and that he
was eligible for said office. The Comelec also submitted as Annex B[44] to its said memorandum, a certified
statement of the votes obtained by the candidates in said elections, thus:
BARANGAY 77
CERTIFIED LIST OF CANDIDATES
VOTES OBTAINED

May 9, 1994 BARANGAY ELECTIONS

PUNONG BARANGAY VOTES OBTAINED

1. DAVID, ALEX L. 112

KAGAWAD

1. Magalona, Ruben 150

2. Quinto, Nelson L. 130
3. Ramon, Dolores Z. 120
4. Dela Pena, Roberto T. 115
5. Castillo, Luciana 114
6. Lorico, Amy A. 107
7. Valencia, Arnold 102
8. Ang, Jose 97
9. Dequilla, Teresita D. 58
10.Primavera, Marcelina 52

If, as claimed by petitioners, the applicable law is RA 6679, then (1) Petitioner David should not have run and
could not have been elected chairman of his barangay because under RA 6679, there was to be no direct election
for the punong barangay; the kagawad candidate who obtained the highest number of votes was to be automatically
elected barangay chairman; (2) thus, applying said law, the punong barangay should have been Ruben Magalona,
who obtained the highest number of votes among the kagawads -- 150, which was much more than Davids 112; (3)
the electorate should have elected only seven kagawads and not one punong barangay plus seven kagawads.
In other words, following petitioners own theory, the election of Petitioner David as well as all the barangay
chairmen of the two Liga petitioners was illegal.
The sum total of these absurdities in petitioners theory is that barangay officials are estopped from asking for
any term other than that which they ran for and were elected to, under the law governing their very claim to such
offices: namely, RA 7160, the Local Government Code. Petitioners belated claim of ignorance as to what law
governed their election to office in 1994 is unacceptable because under Art. 3 of the Civil Code, (i)gnorance of the
law excuses no one from compliance therewith.

Epilogue

It is obvious that these two petitions must fail. The Constitution and the laws do not support them. Extant
jurisprudence militates against them. Reason and common sense reject them.Equity and morality abhor them. They
are subtle but nonetheless self-serving propositions to lengthen governance without a mandate from the
governed. In a democracy, elected leaders can legally and morally justify their reign only by obtaining the voluntary
consent of the electorate. In this case however, petitioners propose to extend their terms not by seeking the
peoplesvote but by faulty legal argumentation. This Court cannot and will not grant its imprimatur to such untenable
proposition. If they want to continue serving, they must get a new mandate in the elections scheduled on May 12,
1997.
WHEREFORE, the petitions are DENIED for being completely devoid of merit.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan, Mendoza,
Francisco, and Torres, Jr., JJ., concur.
Vitug, J., concurs except that on the matter of estoppel he reserved his vote.
Hermosisima, Jr., J., on leave.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9144 March 27, 1915

THE UNITED STATES, plaintiff-appellee,

vs.
VENANCIO DE GUZMAN (alias CACALASAN), defendant-appellant.

Bernabe de Guzman for appellant.

Office of the Solicitor-General Harvey for appellee.

CARSON, J.:

Venancio de Guzman, the defendant and appellant in this case, was convicted in the court below of the crime
of asesinato (murder) and sentenced to life imprisonment.

The evidence of record leaves no room for doubt that, on the day and at place mentioned in the information, De
Guzman, who was walking through a field with Pedro and Serapio Macarling and Rufino Garin, deceased, struck the
latter on the head, knocked him down and held him on the ground while Pedro Macarling stabbed him to death.
There is and there can be no question as to his guilt of the crime of which he was convicted in the court below, the
only question raised on this appeal being his right to exemption from prosecution for the crime thus committed, on
the ground that a former information, charging the same offense, had been dismissed as to him in order that he
might testify as a witness for the prosecution.

It appears that some time prior to the trial of the case at bar an information was duly filed charging De Guzman,
jointly with the two Macarlings, with the murder of Guzman entered into an agreement with the fiscal under the terms
of which he promised to appear and testify as a witness for the Government at the trial of his coaccused, and to tell
the truth as to all that occurred, provided the information was dismissed as to him and he himself was not brought to
trial. With the consent of the court, and in pursuance of this agreement, he was not arraigned nor brought to trial,
and the information was dismissed as to him. One of his coaccused pleaded guilty and the other not guilty, and
thereafter the case came on for trial. after several witnesses had been called, De Guzman was placed on the
witness stand, and denied all knowledge of the murder. He denied that he had ever said anything implicating his
coaccused, and swore that a statement made by him before a justice of the peace was false, and that it had been
made through fear of certain police officer. Question by the court developed that he had made still another
statement to one Natnat, implication his coaccused, but he swore that statement had also been made through fear;
and repudiating all former statements made by him, he declared that they were false, and had been procured by the
prosecuting officials of the Government by the use of improper and illegal methods.

The Solicitor-General, relying on the provisions of sections 34, 35 and 365 of General orders No. 58, recommends
the discharge of the appellant, and that he be set at liberty forthwith, adding in the concluding paragraph of his brief
that, although such action would result "in a palpable misdismissal and expressly bars a future prosecution" for the
crime charged in the information which was dismissed as to him. We do not think so, and hold that, it conclusively
appearing that appellant failed to carry out his agreement with the fiscal, and had knowingly and falsely testified at
the trial of his coaccused, and that he fraudulently secured the dismissal of the former information, the state was
wholly within its rights in bringing him to trial, and convicting and sentencing him for the crime with which he was
charged in the former information.

Section 34, 35, and 36 of General orders No. 58, upon which counsel for defense and the Solicitor-General rely, are
as follows:

SEC. 34. When two or more persons shall be included in the same charge, the court, at any time before the
defendants have entered upon their defense or upon the application of the counsel of the Government, may
direct any defendant to be discharged, that he may be a witness for the United States.

SEC. 35. When tow or more persons shall be included in the same charge, and the court shall be of opinion
in respect to a particular defendant that there is not sufficient evidence to put him on his defense, it must
order him to be discharged before the evidence is closed, that he may be a witness for his codefendant.

SEC. 36. The order indicated in sections thirty-four and thirty-five shall amount to an acquittal of the
defendant discharged, and shall be a bar to future prosecution for the same offense.
These sections constitute a part of the notably short, compact and concise military order issued April 23, 1900,
which prescribed, in very summary terms, the procedure to be followed in criminal cases in the various courts of the
Islands authorized to administer justice under American Sovereignty, and which continues in force, with a few
amendments, to the present day. We have frequently held that, for the proper construction and application of the
terms and provisions of legislative enactment's which have been borrowed from or of times essential to review the
legislative history of such enactments and to find an authoritative guide for their interpretation and application in the
decision of American and English courts of last resort construing and applying similar legislation in those countries.
(Kepner vs. U.S., 195 U.S., 100; 11 Phil. Rep., 669; Serra vs. Mortiga, 204 U.S., 470; 11 Phil. Rep., 762;
Alzua vs.Johnson, 21 Phil. Rep., 308.) Indeed it is a general rule of statutory construction that courts may take
judicial notice of the original and history of the statutes which they are called upon to construe and administer, and
of the facts which affect their derivation, validity and operation (2 Lewis Sutherland on Statutory Construction, sec.
309). This author in section 456, citing numerous cases in support of the doctrine, says also that:

Where the meaning of a statute or any statutory provision is not plain, a court is warranted in availing itself of
all legitimate aids to ascertain the true intention; and among them are some extraneous facts. The object
sought to be accomplished exercises a potent influence in determining the meaning of not only the principal
but also the minor provisions of a statute. To ascertain it fully the court will be greatly assisted by knowing,
and it is permitted to consider, the mischief intended to be removed or suppressed, or the necessity of any
kind which induced the enactment. If the statute has been in force for a long period it may be useful to know
what was the contemporary construction; its practical construction; the sense of the legal profession in
regard to it; the course and usages of business which it will affect.

The dismissal of complaints or informations as to one of several persons charged with the commission of an offense
in order that he may used as witness against his coaccused, and the making of agreements whereby quickly
persons are sometimes assured of exemption from criminal prosecution on condition that they testify against their
coparticipants in the commission of a crime, would appear to have been authorized under the provisions of General
Orders No. 58, as a necessary incident to the supplanting of the old system of criminal procedure with a system
borrowed, in large part, from English and American precedents. This, doubtless, as a result of the emphasis placed
by the new system on the presumption of innocence in favor of an accused persons, on the requirement that the
Government must establish its case beyond a reasonable doubt before the accused is called upon to defend
himself, on the prohibitions against compelling an accused persons to be a witness against himself, and against the
drawing of inferences of guilt from the silence of the accused. Experience, under English and American procedural
methods, has shown that without the aid of informers testifying against their coparticipants in crime, many guilty
parties would escape, where the facts which would sustain a conviction are known only to the guilty persons
themselves. Indeed, we do not doubt that the making of such agreements as the one under consideration would be
held to have authorized under the new system of criminal procedure upon the authority of American and English
precedents, even had it not been expressly recognized and provided for in General orders No. 58.

In the Whiskey Cases (9 Otto, 594; 25 L. ed., 399), we find an interesting history of the original and growth of the
practice under consideration. It there appears that aciently, under the common law of England, the criminal could
not interpose such an agreement with the state as a plea in bar to the prosecution for the offense with which he was
charged, but that the faithful performance of the agreement entitled him to an equitable rights to a recommendation
to executive clemency. In more recent times, however, the practice has been quite generally recognized by statutory
enactment in many jurisdiction, and under the statutes the faithful performance of the agreement is held to be a
complete bar to a subsequent prosecution of the criminal. A search of the year books shows but few cases in which
a defendant, after making an agreement with the prosecution to testify what he knows about the commission of the
crime, failed go comply with his promise. In the discussion of the general subject, however, there is much dicta to
the effect that the criminal must act in good faith and testify fully and fairly as to what he knows concerning the
crime, in order to claim immunity. (The Whiskey Cases, supra; Rex vs. Rudd, Crowp., 331, as quoted in 41 N.J.L.,
17; 4 Blackstone's Com., 330.)

The question arose in Texas under a statute providing that: "The attorney representing the State may at any time
under the rules provided in article 37 dismiss a prosecution as to one or more defendants indicated with others, and
the person so discharged may be introduced as a witness by either party." (Texas Code crim. Proc., art 709.)

Article 37 provides that when a district attorney desires to dismiss a case he shall file a written statement, setting not
occur without the permission of the presiding judge, who shall be satisfied that the reasons so stated are good and
sufficient to allow such dismissal. These statutory provisions, as will be seen, are not widely dissimilar from our own,
though we have no provision requiring a written statement of the reasons for dismissal to accompany motions of this
nature, a feature nevertheless which might well be adopted by the trial courts without the necessity for statutory
enactment. In Ex parte Greenhaw (41 Tex. Crim. R., 278), the court touched upon the question of the obligation of
the accused to keep faith with the State under such an agreement and said: "I can find no case in which the
question has been directly presented as to the terms of this character of contract; I think, however, it may be fairly
deduced from the authorities that the state or Sovereign can contract with the accomplice upon the following terms
only: In consideration that he shall testify fully and fairly as to all he knows in regard to the guilt of his associates in
the particular case in which the contract is made, that he will receive immunity from punishment as to such case. . . .
Again, it is agreed that there must be a compliance with the terms of the contract on the part of the accomplice
before he can claim immunity. . . . so it follows, if the accomplice testifies corruptly or falsely he cannot claim
immunity."

In the later case of Goodwin vs. State (158 S. W., 274), the supreme court of Texas had the question of good faith
on the part of the informer directly presented to it. The defendant had been jointly indicted with one Butler for
adultery. She agreed with the prosecuting officer that if he would dismiss the case against her she would testify fully
on the trial of her codefendant. The case was thereupon dismissed as to her, but when her codefendant was tried
she refused to testify against him fully. She contended that the State was bound by its agreement, and that she
could not thereafter be prosecuted. The supreme court, in sustaining the court's refusal to consider her discharge as
a plea in abatement, said: "If she had carried out her agreement with the State and testified fully as she agreed on
the trial of Butler then the States would have been bound by said agreement, and could not thereafter have
prosecuted her. But certainly the State was not found by its agreement unless she carried out her agreement with it.
As shown above she refused to do so."

The Texas statute is silent, as is our own, as to the consequence of bad faith on the part of the accused, and yet, as
we have seen, the Texas court held that a discharge of this kind, secured in bad faith, did not exempt the informer
from prosecution unless he keeps faith with the Government.

The more common form of the statutory declaration of this practice appears to be at permit any person accused of
crime to testify concerning it at the request of the prosecuting officer, with the understanding that when a person has
so testified he shall done in connection with such crime. This is the method adopted in various immunity clauses in
Acts of Congress (see Act of Feb. 25, 1903, 32 Star., 854, 903, 904, c. 775), with a proviso that persons committing
perjury, when so called upon to testify, may be punished therefor. (For a discussion of his history and an
enumeration of these laws, see U.S. vs. Swift, 186 Fed., 1002.)

The constitution of Oklahoma, however, contains the following provision which, like our own statute, has no proviso
authorizing a prosecution: "Any person having acknowledge or possession of facts that tend to establish the guilt of
any other person or corporation charged with an offense against the laws of the State shall not be excused from
giving testimony or producing evidence, when legally called upon so to do, on the ground that it may tend to
incriminate him under the laws of the State; but no person shall be prosecuted or subjected to any penalty or
forfeiture for on account of any transaction, matter, or thing concerning which he may so testify or produce
evidence."

In discussing the effect of the failure of a defendant to keep faith with the Government when called upon to testify
against his codefendants under this constitutional provision, the supreme court of that State recently said: "In this
respect our immunity clause differs from the statute of Wisconsin, which reserves the right of prosecution for perjury
committed in the giving of such testimony. Touching this reservation the supreme court of Wisconsin, in the case
of State vs. Murphy (128 Wis., 201), in discussing the question as to whether or not under this statute a witness
could only secure immunity when he had testified to the truth, said: 'The statute itself, however, refutes any such
meaning, for it expressly reserves the right to prosecute for perjury "in giving such testimony."'

The same reservation is contained in the Acts of Congress granting immunity. See United States Comp. St.
1901, p. 3173 (Act Feb. 11, 1893, c. 83 27 Stat., 443). If Congress had thought that a person who testified
falsely in answer to question of an incriminating character would be subject to prosecution for perjury, why
the necessity for this reservation? We have no such reservation in our constitutional provision; and, as
before said, if we should follow the precedents, when the witness does not speak the truth, the State would
be left without redress, although the witness had violated the purpose and spirit of the constitution. We
cannot believe that it was the purpose of the intelligent and just-loving of Oklahoma, when they voted for the
adoption of the constitution, to grant immunity to any man, based upon a lie, or, in other words, that they
intended that the commission of perjury should atone for an offense already committed. It is a familiar rule of
common law, common sense, and common justice that a legal right cannot be based upon fraud. We
therefore hold that the witness who claims immunity on account of self-incriminatory testimony which he had
been compelled to give must act in good faith with the State, and must make truthful replies to the question
which are propounded to him, and which he had been compelled to answer, and that any material
concealment or suppression of the truth on his part will deprive him of the immunity provided by the
constitution; and the witness must testify to something which, if true, would tend to criminate him. This
immunity is only granted to those who earn it by testifying in good faith. In our judgment any other
construction would be an insult to and a libel upon the intelligence of the people of Oklahoma, an outrage on
law, and a prostitution of justice. (Scribner vs. State, 132 Pac., 933, 940.)

From a review of the history and development of the practice under consideration, and reasoning along the line of
the above cited, we are all agreed that the failure of the accused in the case at bar, faithfully and honestly to carry
out his undertaking to appear as a witness and to tell the truth at the trial of his coaccused, deprived him of the right
to plead his former dismissal as a bar to his prosecution in the case now before us.

We have found considerable difficulty however in coming to an agreement as to the precise scope of the rule thus
adopted. All are agreed that in the absence of the above cited provisions of section 36 of General Orders No. 58,
which provides that an order discharging one of two or more accused persons that he may be a witness for the
prosecution "shall amount to an acquittal of the defendant thus discharged and shall be a bar to further prosecution
for the same offense," a corrupt and fraudulent agreement, or an agreement not faithfully with by the accused would
be no bar to further prosecution. Some of the members of the court are of opinion that notwithstanding this
provision, such agreements are always vitiated by the failure of the accused to testify honestly and faithfully, it
matters not whether the accused is discharged at or before the trial, other members of the court, of whom the writer
of this opinion is one, are inclined to believe that while the general rule as held by the majority is applicable in all
cases where the agreement is made and the order of discharge is entered before the trial actually begins, it is
limited and restricted by the provisions of section 36, and that in any case wherein an accused person is thus
discharged after he has entered on trial, the discharge amounts to an acquittal and bar a further prosecution. This
on the assumption (questioned by various members of the court) that sections 34, 35 and 36 purport only to deal
with, and do in fact deal only with incidents of "the trial," and declare merely what the procedure shall being cases of
such discharges after the trial has begun.

But however this may be, we are all agreed that in the case at bar, in which the order discharging defendant was
made before the trial began, appellant was not entitled to have the order of discharge held to amount to an acquittal
or a bar to further prosecution.

We find no errors in the proceedings prejudicial to the substantial rights of the accused, and the judgment convicting
and sentencing him should therefore be affirmed, with the costs of this instance against him. So ordered.

Arellano, C.J., and Torres, J., concur.

Araullo, J., dissents.

Separate Opinions

TRENT, J., concurring:

I concur.

In view, however, of the dissenting opinion, which seems to challenge the findings of fact set forth in the majority
opinion, it might be well to state the result of a careful examination of the record in this regard.

The evidence as to the guilt of the accused of the crime of murder of which he was convicted is conclusive, beyond
a reasonable doubt. It consists of clear, definite, competent, and incontrovertible evidence as to the three separate
confessions of guilt by the accused wherein he set forth in detail the circumstances under which he, together with
Pedro and Serapio Macarling, for and in consideration of a promise of fifty pesos, assassinated Rufino Garin,
deceased. These confessions were corroborated by the testimony of a number of witnesses, and leave no room for
the shadow of a doubt as to the truth and accuracy of the finding in the majority opinion, "that on the day and at the
place mentioned in the information. De Guzman, who was walking through a field with Pedro and Serapio Macarling
and Rufino Garin, deceased, struck the latter on the head, knocked him down and held him on the ground while
Pedro Macarling stabbed him to death."

In the majority opinion the court says; "It appears that some time prior to the trial of the case at bar, an information
was duly filed charging De Guzman, that before the former case came on for trial De Guzman entered into an
agreement with the fiscal, under the terms of which he promised to appear and testify as a witness for the
Government at the trial of his coaccused, and to tell the truth as to all that occurred, provided the information was
dismissed as to him and he himself was not brought to trial. With the consent of the court, and in pursuance to this
agreement, he was not arraigned or brought to trial, and the information was dismissed as to him. One of his
coaccused pleaded guilty and the other not guilty, and thereafter the case come on for trial. After several witnesses
had been called, De Guzman was placed on the witness stand, and denied all knowledge of the murder. he denied
that he had ever said anything implication his coaccused, and swore that a statement made by him before a justice
of the peace was false, and that it had been made through fear of certain police officers. Questions by the court
developed that he had made still another statement to one Natnat, implicating his coaccused, but he swore that
statement had also been made through fear; and repudiating all former statements made by him, he declared that
they were false, and had been procured by the prosecuting officials of the Government by the use of improper and
illegal methods."

With regard to this citation the writer of the dissenting opinion says: "The contention that I am making in regard to
this case and the foundation of may dissent is that there is not a word or syllable of evidence in the record to support
a single fact set forth in the foregoing quotation, except the fact that the accused in this case was discharged to be
used as a witness for the prosecution in a prior case."
I do not think that this criticism is supported by the record. I find on page 2 of the original record in the court below
the following note entered by direction of the court: "At this point the attorney for the accused asked the court to
dismiss the case and acquit the accused because of the fact that he had been discharged from the former complaint
and under section No. 34 of General Orders No. 58 and that under order or section No. 36 of the same general
order No. 58 his discharge amounts to an acquittal and bars the present prosecution for the same offense. The court
understands that section No. 36 is for the purpose of avoiding that the accused be put twice in jeopardy. In the case
at bar the accused was excluded from the complaint before he had answered whether he was guilty or not and
before any witness had declared in the case. The court understands that jeopardy had not at that time attached,
and, therefore, he denies the motion."

I find on page 20 of the record the following:

The FISCAL. Government rests.

Mr. BERNABE DE GUZMAN (attorney for defense). I offer in evidence the description of notes of the
evidence taken in case No. 3983 first case against the same accused with three others, in which it appears
a motion for the prosecution asking for the exclusion of the accused who will be utilized as a witness for the
prosecution.

The COURT. Claim will be admitted as asked for by the attorney.

In the decision filed with the record in the court below I find the following:

This accused in the same Venancio de Guzman who was charged with the crime of "asesinato" together
with Antonio Soriano, Serapio Macarling, and Pedro Macarling in criminal case No. 3983 of this court. When
that case was called for trial and before the accused Venancio de Guzman had been required to plead, the
fiscal asked the court to dismiss the case against Venancio de Guzman under the circumstances set out in
the first paragraph of the decision in the case which is as follows:

When this case was called for trial the accused, Antonio Soriano, plead not guilty; Serapio Macarling plead
guilty, and Pedro Macarling plead not guilty. Venancio de Guzman was not required to plead as under an
agreement with the fiscal and Sr. Monserrat, an attorney assisting the prosecution, that he would state the
whole truth, as upon his statement and promise they expected to secure the conviction of Antonio Soriano
the prosecution asked that he be excluded from the complaint. The court then granted this petition of the
fiscal, also under the same understanding and agreement as the fiscal had been under as per his statement
to the court; but after several of the witnesses had been presented the witness Venancio de Guzman was
called, he denied that he had ever said anything to anyone implicating Antonio Soriano and said that his
statement made before the justice of the peace was untrue, that he only made it through fear of the
Constabulary. After the court questioned him he admitted he had made some statement implicating Antonio
Soriano to Diego Natnat, but stated that he did that through fear and knowing what he was stating, and
stating now that all those statements implicating Antonio Soriano were untrue. The fiscal has stated that he
was deceived by the statement of Venancio de Guzman to him as to what his declaration would be on the
witness stand and under that agreement or deception practiced by Venancio de Guzman he asked that the
case be dismissed as regards to him but now desires that the case be reinstated. Therefore the court orders
the fiscal to file a new complaint against Venancio de Guzman, summon the witness and set a day for its
hearing.

The attorney who was representing the four accused in said case No. 3983, attorney Mr. E. S. Smith, has
asked permission of the court to be relieved from further part in the agreement with the fiscal, having been
misled by former statements of Venancio de Guzman. The court therefore relieved Mr. Smith and as the
said Venancio de Guzman stated he would not employ another attorney the court appointed Mr. Bernabe his
defensor de oficio' to defend the present case.

I think that these citation from the record of this case in the court below clearly and conclusively establish that the
record of the former case No. 3983 was before the trial judge when he rendered his decision in this case, and that
record was submitted by the accused himself, in support of his plea in bar. The record of the former case was the
best evidence, and indeed the only competent evidence of the alleged fact upon which the accused set up his plea
in bar. It may be admitted that the language of the record is somewhat informal and lacking in technical precision,
but unless we are to look only to the form and not the substance, and unless we are to demand an unreasonably
high degree of technical precision in the annotation in the record of incidents occurring in trial courts. there can be
no manner of doubt that the accused himself at the trial in this case offered the record of the former case in support
of his plea in bar, and also in support of his claim that his former discharge amounted to an acquittal and barred the
prosecution of the present case.

With the record of the former case before him, the trial judge declined to dismiss the information on the grounds set
forth in his opinion. In the opinion he sets forth the about cited extract from the decision entered in the former case,
which contains a relation of all the material facts touching the proceedings in the former case necessary to sustain
the conclusions of the court below and of this court as to the lack of sufficient grounds for his contentions in support
of his plea of double jeopardy and his prayer for the dismissal of the information.

It may be admitted that the original record of the former case should have been brought here on appeal; and
doubtless the necessary orders for that purpose would have been issued in response to a request to that effect by
any interested party. But the only object of the introduction of the record by the accused was to establish his claim
that the information in the former case had been discharged as to him under the circumstances set forth in section
34 of General Orders No. 58; and the extract from the former decision cited in the opinion filed in this case sets forth
just what these circumstances were, and the facts above set forth were not challenged or controverted by the
accused who himself offered the record in support of his plea.

Counsel's opinion of the lower court's findings of fact in regard to the sole defense offered by the accused may be
gathered from the following quotations from his brief on this appeal; "In the trail of the present case, the attorney for
the defendant Venancio de Guzman waived the preliminary investigation and asked the court to dismiss the case,
based upon the exclusion of this defendant in case No. 3983, which, according to section 36 of General Orders No.
58, is equivalent to an acquittal.

xxx xxx xxx

The fiscal was deceived as to what the accused promised to testify in the first case; let him be charged with
whatever legal crime may be proper; but there is no reason why he should again be accused of the same
crime.

Thus it will be seen that both the court below and the defendant's counsel agree upon the nature of the evidence
which was introduced by the offer of the latter, recorded on page 20 of the record. Not the slightest criticism is
offered by the defendant's counsel concerning the findings of facts by the court below relative to the special defense
under the provisions of sections 34-36 of General Orders No. 58. The case has been submitted to this Supreme
Court for review by both parties upon the theory that the comment contained in the judgment below upon the
evidence introduced by the accused in support of his plea in bar was a true resume thereof. Unless we hold that no
evidence at all was submitted to the trial court in support of the defendant's plea, it is difficult to perceive upon what
ground part of the court's findings upon the point may be accepted and the remainder rejected. if that part of the
court's findings which relates to the dismissal of the information against the accused in the former case be accepted,
why not, in the absence of any objection, accept the other part relating to the circumstances leading up to and
subsequent to the dismissal?

In the absence of any objection on the part of the accused, this court accepted the relating of facts set forth in the
opinion of the trial judge as a correct report of the incident relied upon by counsel for the appellant in support of his
contention that the trial court erred in construing these facts as it did. Under all these circumstances and bearing in
mind that the accused substantially admits the truth and accuracy of the relation of the facts set forth in the opinion
of the trial court, how can it be maintained "that there is not a word or syllable in the record" to support the facts as
to the incident on which this court, as well as the court below, relied in disposing of the contentions of the accused?
By presenting the record of the former case without raising any question as to the truth and accuracy of the relation
of the incidents of the former trial, the accused clearly consented to be bound thereby and, in truth, admitted the
correctness of that record in this regard.

Nor do I consider, with the evidence of the defendant's fraud upon the state's prosecuting officer and upon the trial
court admitted, that the accused was at any time or in any way misled by the interposition of this fraud to nullify the
effect of the proceedings taken under the provisions of sections 34-36 of General Orders No. 58. No one could have
been better apprised of the fact of his deceit than the defendant himself, and he was apprised also of the use which
the Government intended to make of his duplicity. This is shown from that part of the judgment of the court wherein
it stated: "Therefore, the court orders the fiscal to file a new complaint against Venancio de Guzman, to summon
witnesses, and to set a day for its hearing."

This shows that the court's sole reason for disregarding the dismissal granted the accused was due to his failure to
keep faith with the Government. With knowledge of his own fraud and of the use which the Government intended to
make of it, can it be said with reason that the accused was surprised by the turn of affairs? Here again there is no
complaint on the part of the accused. He has not objected to the consideration of his fraud. He has not objected to
its being considered in determining the efficacy of his plea under the provisions of sections 34-36 of General Orders
No. 58. Both are established by the most satisfactory kind of evidence, the unquestioned findings of the court which
tried the case.

MORELAND, J., dissenting:

The decision of the court states: "It appears that some time prior to the trial of the case at bar, an information was
duly filed charging De Guzman, jointly with the two Macarlings, with the murder of Garin; that before the former case
came on for trial De Guzman entered into an agreement with the fiscal, under the terms of which he promised to
appear and testify as a witness for the Government at the trial of his coaccused, and to tell the truth as to all that
occurred, provided the information was dismissed as to him and he himself was not brought to trial. With the
consent of the court, and in pursuance of this agreement, he was not arraigned nor brought to trial, and the
information was dismissed as to him. One of his coaccused pleaded guilty and the other not guilty, and thereafter
the case came on for trial. After several witnesses had been called, De Guzman was placed on the witness stand,
and denied all knowledge of the murder. He denied that he had ever said anything implicating his coaccused, and
swore that a statement made by him before a justice of the peace was false and that it had been made through fear
of certain police officers. Questions by the court developed that he had made still another statement to one Natnat,
implicating his coaccused, but he swore that statement had also been made through fear; and repudiating all former
statements made by him, he declared that they were false, and had been procured by the prosecuting officials of the
Government by the use of improper and illegal methods."

The contention which I am making in regard to this case and the foundation of my dissent is that there is not a word
or syllable of evidence in the record to purport a single fact set forth in the foregoing quotation, except the fact that
the accused in this case was discharged to be used as a witness for the prosecution in a prior case. As to the
balance of the statement, the record is devoid of evidence to support a fact found therein, although the fact
presented by the statement form the sole basis upon which the court founds its decision in this case, namely, that
the defendant can be tried after the case against him has been dismissed and he has been discharged under
sections 34 and 36 of the Code of Criminal Procedure.

The fact that the case was so dismissed and the accused discharged is admitted by the prosecution. (See brief of
the Solicitor-General in this court.) The defendant pleaded it, and the truth of the plea was in effect admitted in the
court below by the prosecuting attorney and is here by the Solicitor-General, and was found as a fact by the trial
court. The sole reason for a dismissal of that plea was that the release of accused wads obtained by fraud as stated
in the prevailing opinion already quoted. All there is in the record in this case which, in any manner, refers to the
alleged fraud and misrepresentation as set out in the quotation is the opinion of the trial court convicting the
accused, dictated in this very case, in which he purports to give the history of the case leading up to the discharge of
the defendant to be used as a witness for the prosecution. As I have said, the facts thus stated in the opinion of the
trial court relative to the alleged fraud and deceit, which have been taken and accepted as true by this court in
deciding this case and are the sole basis of its decision, are not supported by a scintilla of evidence in the record.

Of course, under section 34 and 36 of the Code, quoted in the prevailing opinion, the discharged of the defendant to
be used as a witness for the Government is a bar to a subsequent prosecution with respect to the same charge.
This court seeks to escape that bar, the effect and efficacy of which is admitted, by setting forth that the discharge of
the accused under those sections was attained by false and fraudulent representations and deceit on his part; that
the dismissal of the case against him was obtained solely by that methods and that, therefore, the bar ought not to
stand. The whole basis of the refusal of the court to follow sections 34 and 36 in this case is that there was a fraud
committed by the accused on the Government and that, in law, nobody can take anything by fraud.

Let us suppose that the accused did commit a fraud on the Government and that he represented that he would tell
the truth in the trial against his companions and that, upon that representation, he obtained his discharge; that later
he refused to tell the truth about the matter and denied all knowledge of his companions' guilt. Let us suppose all
this. What must the Government do to get the matter properly before the court? if the defendant sets up his former
discharge and the corresponding privileges conceded under sections 34 and 36 as bar to the action against him,
and the Government desires to destroy the virtue of that plea, what must it do? Why, just the same as any other
litigant when he wishes to deny or avoid what his adversary has pleaded. He brings the matter to an issue either by
denying the plea or by affirmatively alleging new matter which, if true, avoids it. When the Government, in reply to a
plea in bar under sections 34 and 36, cries fraud and deceits, should it not be required to allege the facts
constituting that fraud and deceit and tender an issue with respect thereto, and thus give the accused an opportunity
to meet the allegation? Moreover, when the Government alleges fraud, is it not its duty to prove it? Where a statute
permits the defendant to plea in bar a former judgment of acquittal and he sustains that plea by evidence or
admission, and the Government, desiring to avoid the effects of that plea, alleges as a defense to that plea that the
defendant obtained that acquittal by fraud and deceit, is it not the business of the Government to prove that
allegation by competent and relevant evidence? Unquestionably so. The Government cannot deprive an individual
of the benefits of sections 34 and 36 of the Code of criminal Procedure by naked allegations. Mere allegations of
fraud have no effect; they must be proved to produce results.

It is clear, therefore, that, even according to the theory of the prevailing opinion, the plea of former acquittal as a bar
is conclusive until the Government shows by evidence that acquittal was obtained by fraud and deceit. As I have
before stated, there is not a single word of evidence anywhere in the record upon that subject. The court has
assumed every fact it has found against the defendant. Not one of them is proved. Without facts, without evidence,
without support or basis of any kind, it has overruled and set aside the judgment of dismissal in favor of this
defendant rendered on a former trial, and wiped out the plea founded thereon by virtue of the sections referred to.
Has the record in the case against the Macarlings, the one in which the defendant was discharged, been offered in
evidence in this case? Has the prosecuting attorney been sworn and has he testified what the alleged fraudulent
representations were, who made them and how he was imposed upon and deceived by them? Has the private
prosecutor been sworn relative to the same matter? Or accused's own counsel who, the trial court says, was also
deceived? Has the court testified and informed us how he was wheedled into dismissing the case against the
accused by reason of his false representations and deceit? Has any documentary evidence been offered or has any
witness declared with respect to the fraud alleged to have been committed upon the Government by this defendant?
Not a single document has been presented, not a single witness has testified to a single fact relative to the fraud
alleged to have been perpetrated against the Government. The only evidence offered by the prosecution in this case
was (1) the testimony of Brigido Serafica, Francisco de Aquino, Manuel Garcia, Diego Natnat, Blandina Garin,
Liberato Garin, Gabriel Prado and Lorenzo Llamas, all of whom testified in the case at bar with respect to the guilt of
the defendant of the crime charged; and (2) a statement made by the accused to the justice of the peace when he
was arrested, which was evidently admitted on the theory that it was a confession of guilt as to the crime for the
commission of which he was then under arrest. None of the evidence relates in any way to the fraud which it is
alleged the defendant committed against the Government. Not only is there no evidence in the record supporting the
charge of fraud and misrepresentation made by this court in the prevailing opinion, and not only was there no
evidence to that effect in the court below, but there was never even an allegation of fraud made during the trial. No
issue was tendered to the accused on that subject. When the defendant entered the plea in bar the prosecuting
attorney, as well as the court, admitted it. The prosecuting attorney offered no allegations opposed to this plea, no
pleading on that subject was filed by him or anyone else with the trial court, and no issue was ever framed or
tendered on the subject, either expressly or impliedly. On the contrary, the refusal to allow — that is, the dismissal of
— the plea was expressly placed on wholly different grounds. On page 2 of the evidence appears the following:

The COURT. At this point the attorney for the accused asked the court to dismiss the case and acquit the
accused because of the fact that he had been discharged from the former complaint and under section. No
34 of General Orders No. 58 and that under section No. 36 of the same General Order No. 58 his discharge
amounts to an acquittal and bars the present prosecution for the same offense. The court understands that
section No. 36 is for the purpose of avoiding that the accused be put twice in jeopardy. In the case at bar the
accused was excluded from the complaint before he had answered whether he was guilty or not and before
any witness had declared in the case. The court understands that jeopardy had not at that time attached,
and, therefore, he denies the motion.

As clearly appears from this, there was no defense to the validity of defendant's plea upon the ground that he had
obtained his discharge by fraud and deceit. The refusal to recognize the plea was based solely upon the ground that
he had not been placed in jeopardy in the first trial and that, therefore, the plea in bar was without value, the trial
court understanding that the question of jeopardy, and not of bar under sections 34 and 36, was raised by the plea.
At that time it had not occurred to the judge or to the Government to assert the proposition that the defendant had
obtained his discharge by fraud and deceit. The cause went to trial upon the merits, the prosecution presented its
witnesses and rested its case. The charge of fraud not having occurred either to the judge or to the Government, no
allegation to that effect had been made by the Government and, of course, no evidence was introduced with regard
to it. Fraud was not made an issue in the cause, was not even an element in the case, was not mentioned or even
thought of by anybody and, of course, no evidence was offered to sustain it. from one end to the other of the record
in the Court of First Instance there is no allegation, or intimation of an allegation, of fraud, and throughout the whole
record there is not a scintilla of evidence relating thereto.

The first intimation of fraud of any kind or character was made after the trial was completed. It is fraud in the opinion
of the judge convicting the accused. I repeat that, up to that point, there is not only evidence whatever relative to
fraud and deceit practiced by the defendant, but there is not even an allegation or an intimation that he ever
practiced any. The court said on that subject in its opinion finding the accused guilty of murder:

As in the present case the accused Venancio de Guzman in the case No. 3983 deceived his own attorney,
the fiscal and the court, by his statements, and then, when on the witness stand, denied all these statements
and the testimony resulted in the acquittal of the accused Antonio Soriano when it was sought and expected
to result in his conviction. He practiced deception on the fiscal, did not attempt to comply with his agreement
and therefore cannot complaint if the fiscal has instituted a new complaint against him; nor can he claim the
protection of former jeopardy since jeopardy had not attached when the complaint against him was
dismissed. Nor was his declaration as a witness in said case. No. 3983 necessary to the conviction of those
two accused, Pedro Macarling and Serapio Macarling, nor has it been used against him in any in the present
case.

Let us again recall that throughout this whole case there had not been even an allegation of fraud against the
accused and no evidence whatever sustaining such a charge. No one had ever claimed that the accused had
"deceived his own attorney, the fiscal, and the court," that "when on the witness stand" he had "denied all these
statements," that "he practiced deception on the fiscal and did not attempt to comply with his agreement." These
things were utterly unheard of during the trial. What, then, must have been the surprise of the accused to read in the
decision of the court, after all opportunity to defend himself upon that charge had passed, the statement that his plea
was disallowed because he had obtained it by false and fraudulent representations. It is too late for the accused to
defend himself against charges which appear for the first time in the decision convicting him. He is utterly helpless
when the opinion goes outside of the record and bases the conviction upon charges never before formulated. If such
things can occur, the accused has no possibility of defending himself. If is not enough to urge, if it can be urged, that
the trial court had the right to take judicial notice of its own records, because there had been presented no allegation
and there had been framed no issue with respect of which this record could have been evidence. Before there can
be evidence there must be an issue. Moreover, if the accused had been notified that he was being charged with
fraud and deceit and thereby deprived of the benefits of sections 34 and 36, he would have had the opportunity, as
he would have had the right, to meet the allegations and evidence presented by the prosecution by making counter
allegations himself and presenting evidence in his own behalf; and while, for the sake of argument, it may be
conceded that the Court of first Instance had the right to take judicial notice of a previous record, that does not
lessen the gravity of the error committed against the rights of the accused, because he had a right to be heard upon
the issue with respect to which the court took judicial notice of this record and to present his own proofs with respect
thereto.

The finding in the opinion of the trial court that the accused had obtained his discharge by false and fraudulent
representations and deceit was a complete surprise. No allegation to that effect had been made; no evidence to
support it had been offered. Upon that subject he has not had his day in court. No issue has been tendered him
relative to that matter, no evidence has been offered against him on that subject and he has had no opportunity to
offer evidence in his own behalf. He has been deprived of his rights without due process of law.

The concurring opinion attempts, by argument, to sustain the opinion of the court. In doing so several errors of fact
have, in my opinion, been committed and various conclusions drawn which, according to my view of the case, do
not follow from the premises presented. Much of the concurring opinion strives to show that the decision of the court
is based on evidence which was introduced during the trial, but which it is admitted, is not found in the record of the
trial court or in the record on this appeal. The result was to anticipate the argument of the dissenting opinion that
there was not a fact in the record which supported the fundamental basis of the decision that the accused was not
entitled to the advantages of sections 34 and 36 for the reason that he had obtained his discharge in the former
case by fraud and deceit. Passing for the moment the attempt made, not only in the opinion of the court but in the
concurring opinion as well, to treat and use as facts proved the statements of the trial court made in its judgment of
conviction in case No. 3983 as well as in this case, a method of obtaining facts for the conviction of an accused
which is sanctioned by no authority that I can find, I note, in the first place, that the concurring opinion, to establish
the proposition that there is evidence showing the fraud which the accused is charged in that opinion and the
opinion of this court with having committed in obtaining his release, quotes from page 20 of the record in this case
as follows:

The FISCAL. Government rests.

Mr. BERNABE DE GUZMAN (attorney for defense). I offer in evidence the description (transcript) of notes of
the evidence taken in case No. 3983 first case against the same accused with three others, in which (it)
appears a motion for (of) the prosecution asking for the exclusion of the accused who will (to) be utilized as
a witness for the prosecution.

The COURT. Claim will be admitted as asked for by the attorney.

In addition to this the concurring opinion quotes from the judgment of the trial court in case No. 3983 and in this
case convicting the accused for the purpose of setting forth what is claimed to be the evidence which was before the
court when it made the decision in this case. There is claim that the court took judicial notice of any records or that it
had the right to. The sole contention is that there is evidence in the record showing fraud and deceit and that the
accused himself introduced it, and it is upon the evidence which it is alleged the accused himself produced that the
claim is based that there was evidence of fraud and deceit in the record in the court below and here upon which are
based the findings quoted; and it is to substantiate this claim that the concurring opinion cites the part of the record
above set out, which, it is claimed, proves the assertion. Upon that quotation from the record, then, rests the whole
contention that there was evidence before the trial court supporting the finding that the accused obtained his
discharged by fraud and deceit. From this record is drawn the following conclusions, among other: "I think that these
citations from the record of this case in the court below clearly and conclusively establish that the record of the
former case No. 3983 was before the trial judge when he rendered his decision in this case, and that record was
submitted by the accused himself, in support of his plea in bar."

And: ". . . there can be no manner of doubt that the accused himself at the trial in this case offered the record of the
former case in support of his plea in bar, and also in support of his claim that his former discharge amounted to an
acquittal and barred the prosecution of the present case."

And: "With the record of the former case before him," etc.

It is clear from the face of the concurring opinion itself, so far as it refers to this particular point, that the writer
thereof fell into error, not only of fact but of conclusion. According to the quotation which the concurring opinion itself
contains, all that is claimed is that the accused offered in evidence the "notes of the evidence" taken in case No.
3983. Assuming that they were offered and received in evidence, does that justify the conclusion that the record of
cause No. 3983 was introduced in evidence? Is there no difference between "notes of the evidence" and the record
of the case? Is there not something in the record of a case besides "notes of the evidence?" and is it not a long jump
from the "notes of the evidence" to the whole record of a criminal case? This error is carried throughout the entire
discussion and is repeated and reiterated. The record of case No. 3983 was not offered in evidence by anybody,
was not received in evidence by the court, was not make a part of the record in the trial court, or of the record on
appeal, and has not been assumed to have been in evidence by anybody except this court. The only exhibit in the
case in the one listed by the clerk of the trial court who made up the record and sent it to this court (section 48 Code
Crim. Proc.), and that is Exhibit A, introduced by the prosecution itself, consisting of a statement made by the
accused before the justice of the peace at the time of his arrest and to which I have already referred in this opinion.
There is not another exhibit in the case; and other exhibit was, at any time, received by the trial court. It having been
erroneously assumed that the record in case No. 3983 was offered in evidence, and the opinions in this case being
based wholly upon that assumption, and that assumption being without foundation, there can be but one result.

But there is another error; and that is the assumption that the "notes of the evidence" offered by the accused were in
fact received in evidence by the court, were part of its record, and were property before it in its consideration of the
case. In the first place, as matter of fact, the part of the record offered was not received in evidence, and, in the
second place, it was not necessary that it be received, as the fact which its introduction would establish was, in
effect, admitted by everybody. As I have already was, in this opinion, the plea of the accused that he had been
discharged in the former case (No. 3983) to be a witness for the Government, and the facts upon which it was
based, were admitted by the prosecuting attorney, by the court on the trial, and by the Attorney-General in this court
on this appeal. No one at any point in the case has ever denied or even questioned either the plea or the facts upon
which it was based. They were always undisputed and uncontradicted. As I have already stated, the instant that the
plea was made, and that was at the beginning of the trial, the court, with the acquiescence of all parties, assumed to
be true the facts upon which it was based and then and there finally determined the question raised by the plea,
held it bad and rejected it. He based his rejection of the plea, not on the ground that the accused had ground that
the accused had not been in jeopardy. The court could have made no decision as to the efficacy of the plea if the
fact on which it was based had not been admitted, as no evidence had been offered to prove the plea and there was
no evidence before the court on that subject.

The attorney for the accused, however, in spite of the fact that it appears to have been admitted by everybody that
the accused had been released on a former charge to be witness for the Government, nevertheless offered in
evidence so much of the record as would show that fact. This offer again developed the fact that it was admitted that
he had been so released. This is shown by the quotation found in the concurring opinion, taken from page 20 of the
record. The court did not receive in evidence that portion of the record reffered by the accused but, on the contrary,
assured the accused that his claim that he had been so discharged was admitted as he asserted it. That this is the
case is clear from the quotation referred to. When that portion of the record was offered is received in evidence and
marked exhibit so and so," as a court would naturally say if it had received the evidence offered. On the contrary,
there is not a word which shows that it was received in evidence or that it was marked as an exhibit. The language
of the court used at the time does not warrant the statement that it was received and the fact that it was not made an
exhibit, was never referred to in the court below, never became a part of the record in that court, was not physically
before that court, is not a part of the record on this appeal, is not physically before this court, and is not referred to
by the attorneys who argued the case, is clear proof, unless it is entirely immaterial, that it was not received in
evidence and that the court never intended to receive it. On the other hand, the language used by the court when
the evidence was offered, namely, "claim will be admitted as asked for by the attorney," shows that the claim of the
accused that he had been released on a former occasion, and to sustain which he was offering that portion of the
record, would be admitted. That being the case, there was no necessity for receiving that portion of the record
offered; and, as a matter of fact, it never was received and never was, physically or otherwise, a part of the record in
that court and is not a part of the record here.

The third error in the concurring opinion is connected somewhat with the error first pointed out, namely, that of
assuming that because the "notes of the evidence" were offered as evidence, the whole record became a part of the
evidence in the case. That error consists in assuming that, even though the portion of the record in the previous
case offered by the attorney for the accused had been received in evidence and had been made a part of the record
in this case as made up by the trial court, it would have included all of the evidence taken in case No. 3983. It
should be noted that the only evidence taken in case No. 3983 offered by counsel for the accused was those "notes
of the evidence . . . in which appears a motion for the prosecution asking for the exclusion of the accused to be
utilized as a witness for the prosecution." The accused did not offer all of the evidence taken in case No. 3983.
None of the evidence was competent, relevant, namely, that he had been discharged under a former indictment
charging the same crime with which he was charged in the case in which he entered the plea. What Tom, Dick and
Harry may have testified to in case No. 3983 relative to the guilt of the persons there on trial would be of no
consequence in establishing defendant's plea in bar. What he was required to prove was that he had been before
charged with the same crime that he then stood charged with, that others were charged with him in the same
information, that upon the motion of the Government he had been released from that charge in order to be a witness
for the Government. Those are the only facts that the defendant had to prove to sustain his plea. His offer, therefore,
was only of so much of the stenographer's notes as showed the fact that he had been legally offer, so far as the
evidence in case No. 3983 was concerned as that was all that was material. We cannot assume, as the concurring
opinion assumes, and as we must assume if we are to hold that the evidence referred to was really received in
evidence, that the defendant offered incompetent, irrelevant and immaterial evidence, that the Government failed to
object to it, and that the court admitted it. The only part of the record in case No. 3983 which defendant offered was
that which showed that he had been discharged. He did not offer all the evidence in that case or any other portion of
the evidence of that case; and what he did offer was not received by the court or made a part of the record.

Even if all the evidence in case No. 3983 had been admitted, as claimed it would not have been sufficient to prove
defendant's plea. It would have been necessary, in addition, to prove that the crime with which he stood charged in
cause No. 3983 was the same crime with which he was charged in the case in which the plea was offered, that, in
cause No. 3983, he was charged jointly with others, and that, on motion of the Government, he was discharged in
that case to be used a a witness for the Government. None of these facts were proved, nor did defendant offer to
prove any of them, except one. They were all admitted, in effect; and he was under no obligation to prove them
when even the court itself without objection of any kind from anybody assumed their existence. They have been
assumed to be true in every step of the proceedings since that time; and in this court one of the first to admit the
existence of those facts, although there was not a particle of evidence in the record establishing them, was the
Attorney-General on this appeal.

The fourth error committed in the concurring opinion is found in the assumption that, even if the whole record in
case No. 3983 had been introduced in evidence by the defendant, it would have proved defendant's fraud in
obtaining his discharge, and would, therefore, have avoided the force of the plea. This conclusion, drawn by the
concurring opinion as well as the prevailing opinion (although the record in No. 3983 is not here and no one has
seen it), does not at all follow. Apart from the statement made in the opinion of the court in that case, it nowhere
appears in the record in case No. 3983, so far as is known, that the Government was deceived or defrauded by the
defendant, unless the inference of fraud and the resulting deception may be drawn from the fact that the defendant
may not have testified in favor of the Government. I do not know whether that fact appears in the record in case No.
3983, because, as I have stated, no part of that record is here. All that I know about it I gather from what the trial
court has said in its opinion. But even if it does appear in that case that the defendant did not testify in favor of the
Government, that does not prove that he deceived the officials of the Government, It cannot be assumed from the
mere fact that a witness did not testify to anything that aided the Government that he was guilty of willfully deceiving
the Government or of deliberately practicing deceit on its officials. So far as the statement of the court shows, as
made in its opinion in case no. 3983, what the accused did as a witness was to deny that he had ever made any
statements unfavorable to his coaccused. He testified to nothing that affected the Government's case in any way. All
that happened was that the accused failed to testify in any sense, either for or against the Government. From that
fact alone it cannot be assumed that he committed a fraud by reason of which the Government lost its case against
the other accused. As I have said before, no one testified, either in this case or in case No. 3983, what the
agreement of the accused was with the Government officials. Neither the prosecuting attorney nor the private
prosecutor was put on the stand to prove how he was to testify, or the nature and terms of the agreement under
which he was discharged. Neither of those persons has testified that he was deceived by the accused, or that he
was induced to obtain the discharge of the accused by fraud and deceit. Neither in case No. 3983 nor in the case at
bar is there a syllable or evidence showing that the accused in any way deceived the Government or its officials or
that he in any way or to any extent obtained his discharged by fraud and deceit. All that there is in the record of
either case is the statement made by the court, without a particle of evidence of record to sustain it, that the accused
obtained his discharge by fraud. The court itself, in its opinion, admits that nobody testified to facts constituting fraud
when it says that "the fiscal has stated that he was deceived by the statement of Venancio de Guzman to him as to
what his declaration would be on the witness stand." The mere statement of the prosecuting attorney to the court is
not evidence against anybody. He was not sworn as a witness, was not put on the stand as a witness for any party,
was not examined under oath, and no opportunity was given the accused or his counsel to cross-examine him. The
mere statement of the court in its opinion in case No. 3983 cannot, as I have before stated, be used to prove, in the
case at bar, the existence of facts stated therein. In other words, a court cannot make a record in a criminal case by
incorporating in its opinion all of the facts which ought to appear in that record. Records in criminal cases are not
made in that way.

It seems to me clear, therefore, that even if the record in case No. 3983 were before the trial court and this court, it
would not prove the fact that the accused committed fraud against the Government and that he obtained, by that
means, his discharge in case No. 3983. The conclusion of the concurring opinion that the fraud is proved from the
record of case No. 3983 is, therefore, erroneous — erroneous in two ways, first, it assumes that the record is here,
and, second, it assumes what it would prove if it were.

While there is much comment in the concurring opinion on the necessity of the elimination of technicalities and of
looking at the substance and not the form, I find nothing on the injustice of depriving a person of his statutory rights
without notice of the grounds upon which it is proposed to do so. Here was an accused who entered a plea the facts
supporting which were admitted on all hands. that plea, as admitted, was sufficient, under section 34 and 36 of the
Code of Criminal procedure, to bar the action in which the plea was made and to require the immediate discharge of
the accused from custody. The only possible way of defeating that plea and destroying the efficacy thereof was for
the Government to prove that the former discharge had been obtained by false and fraudulent representations and
deceit and that it was, therefore, of no legal force or value. Now, if it was, therefore, of the Government to make that
defense to the plea, was not the accused entitled to know it? Was he not, as matter of plain justice, entitled to know
that the Government intended to destroy the force and value of his plea by claiming that it had been obtained by
false and fraudulent representations? Was it not the duty of the Government, as one of the litigants in a court of
justice, to give the accused some notice of what it was going to do? I pass over without comment the position taken
in the concurring opinion that, inasmuch as the accused knew better than any one else of the fraud that he had
committed, it was not necessary for the Government to give him notice of its intention it, it is duty of a party to an
action to uniform his adversary of the nature of his claim or defense so as to afford a fair opportunity to meet it. In
what part of the record in this case has the Government done this thing? At what point and when in the trial of this
case did it notify the accused that it proposed to destroy his plea by claiming that he had obtained it by fraud and
deceit? Where did they tender him an issue upon that point? Nowhere and at no time was he notified nor did he
have the slightest knowledge that an attempt was to be made to destroy his plea on that ground. Not only can we
assert without hesitation that no such notice was given him, but we can declare that the Government did not intend
to give him such notice. This is clearly shown from the fact that the Government did not offer a syllable of evidence
during the trial to show that the accused had obtained his discharge by fraud and deceit. It seems to me
extraordinary that it can be claimed that it can avoid defendant's plea by alleging fraud at this time, when,
throughout the trial, it did not offer a word of evidence to establish it. Where in the record does it appear that the
prosecution offered a syllable of evidence to show that the accused committed fraud? Not only has the Government
not offered evidence of that character, but no other entity or person has offered any. Throughout the record there is
not a word of evidence on the subject. Has anyone testified to any fact showing fraud or deceit? Has the prosecuting
attorney testified as to what his agreement with the accused was? Has he shown that the accused deceived him?
Has the private prosecutor been sworn on the same subject? Has the judge himself testified that the accused
deceived him? Has any documentary evidence been offered to show the nature of the agreement or the fact of
fraud? To all of these questions: No. No one ever testified to the nature of the agreement that the accused made
with the Government; no one has testified that the Government officials were deceived; and nobody has testified to
any fact which would warrant the conclusion that the accused obtained his discharge by fraud and deceit.

The concurring opinion says: "It may be admitted that the language of the record is somewhat informal and lacking
in technical precision, but unless we are to look only to the form and not the substance, and unless we are to
demand an unreasonably high degree of technical precision in the annotation in the record of incidents occurring in
trial courts, etc., etc." I do not see the force of the expression "the language of the record is somewhat information
and lacking in technical precision." it is not formality or language that I complain of; it is the absence of evidence.
Nor do I understand what the concurring opinion means by "unless we are to demand an unreasonably high degree
of technical precision in the annotation in the record of incidents occurring in trial courts, etc., etc., etc.," If by that
language the writer means to commend the failure to prove and, therefore, to insert in the record, elements which
are essential to the conviction of the accused, or, if the writer proposes to ask the trial as well as the Supreme Court
to convict upon a record from which are missing the most essential and necessary parts, then I do not agree with
the proposition asserted. I do not consider it technical to require the Government to state its case against an
accused, I do not regard it technical to require the Government to prove its case against an accused. I do not regard
it as technical to require a record on appeal to contain the evidence upon which the accused was convicted and the
grounds upon which the court based its judgment. That the Supreme Court has not heretofore regarded these
requirements as technical is shown by its decisions.

In the case shown of United States vs. Quilatan (4 Phil. Rep., 481), the record did not contain the evidence taken
during the trial of the cause. With respect to that defect the court said: "When defendants appeal in criminal cases,
the entire record, including all of the proof, must be sent to this court, in accordance with the provisions of section
48. . . . this cause is hereby ordered to be returned to the clerk of the Court of First Instance of the Province of
Ambos Camarines, with directions to the Court of First instance of said province to proceed to a new trial against the
defendant."

Section 48 of the Code of Criminal Procedure referred to in the case just cited provides: "Upon an appeal being
taken, the clerk or judge of the court with whom the notice of appeal shall have been filed must, within five days after
the filing of the notice, transmit to the clerk of the court to which the appeal is taken the complete record in the case
together with the notice of the appeal," etc.

In the case of United States vs. Tan (4 Phil. rep., 625), it appeared that only a part of the evidence taken in the case
was sent up on appeal. The record being thus incomplete, the Solicitor-General made a motion that the appeal be
dismissed on the ground that the record in the appellate court did not contain the testimony of Alipio Gimano and
Claudio Casiguan and contained only a part of the testimony of Leoncio Dapitan, and that it was the duty of the
appellant to furnish a complete record. Resolving the question presented by the motion the court said: "The record
itself furnishes intrinsic evidence that the facts stated in the motion of the Solicitor-general are true, and it appears
that two witnesses testified at the trial in the court below whose testimony is not contained in the record before us,
and it also appears that a copy of their testimony can not be obtained so as to complete the record."

The court then cited section 48 of the Code of Criminal Procedure and continued: "It is thus made the duty of the
Government to cause a record to be kept of the proceedings in a criminal cause in the Court of First Instance, and
to cause that record to be transmitted to this court. This rule is, of course, radically different from the rule which
prevails in civil causes, and is also radically different from the rule which prevails in probably most of the United
States.

xxx xxx xxx

 Upon an appeal to this court in a criminal cause we are required to examine the evidence and to enter the
judgment which ought to be entered. This can not be done unless we have before us all the evidence in the
case. In this case we have not all of that evidence, and it can not be obtained. The only thing that can be
done is to reverse the judgment and direct a new trial.

In the case of United States vs. Hollis (5 Phil. Rep., 531), a certain document was introduced in evidence by the
prosecution and marked Exhibit 2. This exhibit was not made a part the court said. "This document, Exhibit 2, does
not now appear in the record in this court. it has been lost; where or in what manner we are unable to say; they is no
positive proof that it was ever received by the clerk of this court. Whereas this document furnishes the principal
evidence in the cause against the defendant, and whereas it is necessary for this court to have the said document in
order that it may ascertain for itself whether the alleged indorsement is a forgery or not, we are unable to reach a
decision in the case without it and therefore hereby order the said cause to be returned to the inferior court for a new
trial."

In the case of United States vs. Dacanay (6 Phil. Rep., 367), the court said: "We do not have before us, therefore,
the evidence which was presented in the trial court. In accordance with the decisions in the cases of United States
vs. Pablo Tan (4 Phil. Rep., 625); United States vs. Hollis (5 Phil. Rep., 526); and United States vs. Quinlatan (4
Phil. Rep., 481), the judgment must be reversed as a new trial ordered."

In the case of United States vs. Talbanos (6 Phil. Rep., 541), the defendant pleaded guilty. In that case a dissent
was written by judge Carson, who is the writer of the opinion for the court in the present case, in which he said: "On
the other hand, if, as appears from the record and the judgment of the trial court further testimony was taken upon
which the judge exercised his discretion in imposing the death penalty, then all this evidence should be before us
when we are called upon to review the judgment of the court below. We are charged with the duty of examining the
record for the purpose of correcting error both of law and of fact, and this court has repeatedly held that it will not
affirm a judgment in a criminal case unless all the testimony taken at the trial is brought before it on appeal.
(U.S., vs. Pablo Tan, 4 Phil. Rep., 625; U.S. vs. Hollis, 5 Phil Rep., 526; and U.S. vs. Quilatan, 4 Phil. rep., 481.)"

The case of United States vs. Tan Yak (25 Phil. Rep., 116), was a deportation case in which the defendant
appealed from an order of deportation issued by the Court of First Instance of Zamboanga. To that cause, although
in no sense a criminal case, was applied the rule laid down by the decisions above cited.

The decision in that case, also written by Judge Carson, says; "The Solicitor-General in his brief admits or rather
asserts "that no notes of the testimony were taken in the court below," and we are satisfied not only from his
admission, but from a careful review of the whole record brought before us, that if any testimony was in fact taken, it
was not reduced to writing, and that it cannot therefore be certified to this court for review in accordance with the
practice in this jurisdiction."

For these reasons the court reversal the decision and returned the case for a new trial, holding that it was illegal for
this court to convict a defendant in a criminal case unless all of the evidence taken at the trial was before us in the
record; and that the appeal in a deportation case being the same as in a criminal case (according to the doctrine laid
down in the same case), the court had no authority to act until the record was complete.

It is the unchallenged doctrine, therefore, in this jurisdiction (or was until the present decision was written ) that the
Supreme Court cannot legally convict in criminal action without having before it the entire record, including all of the
evidence upon which the trial court acted in its conviction of the accused. It is also the unchallenged doctrine (or
was before the opinion in this case was written) that it is the duty of the Government, when an appeal is taken in a
criminal case, to make up a complete record of the trial, including the evidence on which the trial court based its
judgment of conviction. Heretofore, whenever the record, in a criminal case, has been found by this court to be in
any way incomplete, the judgment of conviction has been reversed and a new trial ordered. We have even gone so
far, as we have seen, as to apply this doctrine to deportation cases also; and it is now the rule that, in such cases,
the Government of the Philippine Islands must itself, at its own expense, make up the record on appeal.

These cases, and the doctrine therein laid down bring us to the fifth error of the concurring opinion (also an error of
the majority opinion), which consists in the insistence of those opinions that the accuse be convicted on a record
which both opinions admit to be incomplete and not to contain, so far as the plea of the accused is concerned, the
most important of all the testimony taken during the trial of the cause. Certain it is, if the previous decisions of this
court mean anything, that the accused ought to have a new trial, or at least a correction and perfection of the record,
inasmuch as, according to the claim of the concurring opinion, and necessarily of the majority opinion also, the most
important evidence relative to the plea of the accused which it is claimed was before the trial court and upon which it
based its decision is not a part of the record on appeal and is, therefore, not before this court. In spite of the decision
referred to, however, the accused in convicted on an incomplete record, from which, according to the contention of
the concurring as well as the majority opinion, is omitted the most important part of the evidence taken in the court
below.

In view of these decisions and the condition of the record on appeal, I am unable to find justification for the decision
in this case.
The concurring opinion seeks to demonstrate that the decision of the court is well founded, and, to do this, it
attempts to show that there was evidence introduced in the court below which, if here, would support it. But no
allusion is made to the proposition that, for such evidence to be of any value for that purpose on appeal, it is
necessary that it be in the record before this court. The fact that such evidence was introduced on the trial, if it is a
fact, is of no consequence when the case arrives in the Supreme Court. To be worth anything the evidence must be
in the record. Evidence which is introduced on the trial but left in the court below, that is, not brought up on appeal,
is valueless, and can produced no effect in this court. That this is so is the unchallenged doctrine of this court as laid
down in the decisions cited and is the statutory law of the country as found in section 48 of the Code of criminal
Procedure. It is undisputed, as it is a physical fact and appears instantly and conclusively on examining the record
on this appeal, that the evidence to which the concurring opinion alludes as that which supports the opinion of the
court is not in the record on this appeal. The record on this appeal consists only of the information, warrant of arrest,
return, arraignment and plea of the accused, the evidence, including Exhibit A of the prosecution already referred to,
which is simply a statement made by the accused when brought before the justice of the peace at the time of his
arrest, the judgment of conviction and sentence, and the notice of appeal. This is all that the record in this court
contains. Neither the record in case No. 3983, nor any part thereof, nor the 'notes of the evidence" in that case,
referred to in the quotation in the concurring opinion, is in the record in this court, nor are they before this court in
any form or manner. Now, let us take into consideration these two facts, namely, that (1) no part of the record of
case No. 3983 is before this court and (2) the fact that it is the uniform doctrine of this court that an accused cannot
be convicted by this court when the record does not contain all of the evidence taken in the court below, or when the
record is in any manner incomplete, and then let us ask ourselves the question: How can the conviction of the
accused be justified on this record? And of what materiality is the claim that "in the absence of any objection on the
part of the accused, this court accepted the relation of facts set forth in the opinion of the trial judge as a correct
report of the incident relied upon by counsel for the appellant in support of his contention that the trial court erred in
construing these facts as it did" and "if that part of the court's findings which relates to the dismissal of the
information against the accused in the former case be accepted, why not, in the absence of any objection, accept
the other part relating to the circumstances leading up to and subsequent to the dismissal?" These statements
ignore, in my humble opinion, the rule laid down in the cases cited. It is of no consequence what the trial court puts
in its judgment of conviction. The supreme Court is trial court, i.e., it tries cases de novo on the record,
(Serra vs.Mortiga, 204 U.S., 4790; 11 Phil. Rep., 762; Kepner vs. United States, 195 U.S., 100; 11 Phil. Rep., 669)
and as such must have evidence, proved facts, and not the opinion of a trial court as to what the fact are. It cannot
convict on the mere say so of trial court. It cannot abdicate its functions as a court which decides on evidence and
permit a trial court to exercise those functions for it. It has no right to accept the findings of fact of the trial court in
criminal case as the real facts established by the evidence. This court has steadily and uniformly held that
it must have the evidence before it before it can discharge its duty according to justice and the law. (See cases
cited.) Yet, in full view of these decisions, the accused is convicted of murder and is sent to penal servitude for life
upon a record which was not sufficient to sustain a conviction for homicide in United States vs. Quilatan, or
brigandage in United States vs. Tan, or forgery in United States vs. Hollis, or to deport a Chinaman in United States
vs. Tan Yak. Even admitting the widest claims of the concurring opinion, namely, that the record of case No. 3983
was introduced in evidence in the trial court, all admit that such record is not a part of the record on this
appeal. Does not that fact alone preclude a conviction on the record as it stands? According to the decisions of this
court, upon which all men accused of crime have a right to rely in defending themselves, must not the accused have
a new trial, or must not the record be made complete before his life is closed like a book? What is there about this
case which requires the judges of this court to treat it differently from other cases in like condition? Why should
Venancio de Guzman be convicted of murder on a record which was not sufficient to deport Tan Yak? Why should
he be sent to prison for life on a record that this court held was too defective to permit the conviction of Hollis for
forgery?

The statement and claim made by the concurring opinion that the record of case NO. 3983 was considered by the
trial court with the consent of the accused is equally without foundation with the statement already referred to "that
the record of the former case No. 3983 was before the trial judge when he rendered his decision in this case, and
that the record was submitted by the accused himself," and that "the facts above set forth were not challenged or
controverted by the accused who himself offered the record in support of his plea." These statements, as we have
seen, are disproved by the quotation from the record as made in the opinion itself. But, aside from that, the claim is,
I believe, without merit when we consider the object to be gained by getting the record of case No. 3983 before the
trial court and his court. That object is to obtain facts which will show fraud and deceit on the part of the accused in
obtaining his discharge in that case, and thus sustain the decision of this court in that regard. But such object is
seen to be impossible of attainment when we recall that there was no question of fraud raised by the Government,
or by anybody else for that matter, throughout the trial of the case; and the reasoning is seen to be specious and
groundless when we call to mind the fact, which stands out in this case as clear as the sun at noonday, that it is
legally impossible that fraud or deceit be an issue or even a question in this case. If fraud is not and cannot be a
question in this case, what justification can there be for being a conviction upon it and especially for attempting to
get into the record evidence to establish fraud? It is futile to insist on there being evidence of fraud in the record
when there is no issue or question of fraud in the case. That no such question or issue can be in the case is beyond
dispute. As I have already observed, the Government did not raise that question or present that issue at any time
during the trial and introduced no evidence whatever in relation thereto. The accused had no notice at any stage of
the trial that question was in the case and no issue was ever created in respect thereto. But, in addition to this proof
that no such question was in the case, we have the fact that the possibility of such a question being in the case was
eliminated at the very beginning of the trial by the court dismissing defendant's plea on the ground that he had not
been in jeopardy in case No. 3983 and thereby wiping the plea and everything in connection with it entirely from the
case, so far as that trial was concerned. At the opening of the trial the accused made the plea of former discharge
and asked to have the case against him dismissed on that ground. The court held the plea bad on the ground that
the accused had not been in jeopardy in the former case. That holding eliminated from the case, so far as the
Government was concerned, the plea and everything connected with it. Thereafter, so far as the Government was
concerned, it was not an issue, was not a question in the case, and no evidence could be introduced concerning it,
no decision could be based upon it and nothing could be done further unless the court reversed its first ruling with
regard to it. Until reversed that was conclusive. It being in favor of the Government and entirely destroying the plea
itself, the Government could do nothing more. it is evidence that, if a special defense set up in an answer is
dismissed on demurrer or stricken out or disallowed on motion, no evidence to sustain that defense is admissible on
the trial. So, when the special defense urged in this case, viz, the plea in bar, was stricken out or disallowed on
motion, no evidence to sustain or destroy it was admissible on the trial. The next question to be raised was one in
this court on appeal to determine whether the action of the trial court overruling and dismissing the plea was correct.

It being evidence that the plea was destroyed and wiped out of the case by the decision of the court dismissing it,
where is the point of the attempt to show a destruction of the plea on the trial by obtained by fraud and deceit? And
to what purpose is the argument of the concurring opinion that there was evidence introduced during the trial to
destroy the plea? The plea, so far as that particular trial was concerned, was destroyed and wiped out by the
decision of the court upon it; and that decision was made before the trial began. Now, if the plea was destroyed and
wiped entirely out of the case before the trial began, what possible purpose could there be in trying to destroy it after
the trial began? The plea having been annihilated before the trial, could not be a question during the trial, as it was
not in existence; and the talk about evidence having been introduced to destroy it is, it seems to me, without point.
Until the trial court reversed its own ruling on the plea, neither the plea nor anything in connection with it could have
been a question in the case during the trial. That decision eliminated the plea from the case and it remained so and
will remain so, as this court does not reverse that decision. I believe the court unanimous in the belief that the trial
court erred in dismissing the plea upon the ground of former jeopardy, as former jeopardy had nothing to do with the
question raised by the plea.

What has already been said disposes of the contention that "the case has been submitted to this Supreme Court for
review by both parties upon the theory that the comment contained in the judgment below upon the evidence
introduced by the accused in support of his plea in bar was a true resume thereof." In my judgment, the remarks in
question about the "theory" of the case have no real foundation How could the theory of the case be such as stated?
The accused was charged with murder. Before the trial began he filed a plea in bar based on a former discharge
under the same information. The facts upon which the plea was based were admitted and, therefore, no evidence
was offered or received to prove them. The Government made no reply of fraud to the plea or the facts; offered no
defense of fraud; made no allegation of fraud; said and did nothing which even hinted at fraud. On the contrary, it
took the position that the plea was bad, erroneously assuming that the plea was "once in jeopardy" under section 24
of the Code of Criminal Procedure instead of plea in bar under section 34 and 36 thereof; and that it should be
dismissed, as, according to the admitted facts, the accused had not been in jeopardy in the former case (No 3983).
The court took the Government's view of it and disallowed the plea. Not one word of fraud, not a hint of it. The plea
having been eliminated from the case, the trial began on the merits. Now, on that trial, with the plea out of the case
completely, can it be contended that evidence of fraud on the part of the accused in obtaining his discharged was
admissible? or that such fraud was an element or an issue in the case? or that such fraud was the "theory" of the
case? or that the "accused himself introduced evidence" of his own fraud? The plea being out of the case entirely,
no one thought of fraud. What would have been the use of raising the question of fraud to kill a plea which
was already dead, having been completely killed by the theory of "once in jeopardy?" And yet, in the face of this, it is
urged that "the case has been submitted to this Supreme Court . . . upon the theory that the comment contained in
the judgment below," showing fraud and deceit, "was a true resume thereof." The accused appealed from the
judgment of conviction and the order overruling and dismissing his plea, on the ground that they were both
erroneous. On such an appeal how can the issue of fraud arise and how can the "theory" of the case be fraud and
deceit?

It is urged in the concurring opinion that counsel for the defense, in his brief, in this court admitted that the accused
had deceived the court, and it quotes from the brief to substantiate that claim. As is seen from reading the part
quoted and especially the context, the statement was made in an argumentive way and without any intent or
expectation that it would be taken as an admission that his client had deceived the Government. The language itself
is ambiguous and it cannot be said with certainty whether the idea intended to be conveyed is that the prosecuting
attorney deceived himself or that he was deceived with or without the fault of the accused. The brief is in Spanish,
and better sense would be given to the language by putting the first sentence in the conditional. It would then read,
in substance: "If the fiscal was deceived by the accused as to what he would testify in the case, let him charge the
accused with the crime which his fraudulent acts constituted but do not let him be prosecuted over again for the
same crime." As will be seen from a careful reading of the quotation, the version I have given makes better sense
than the translation in the concurring opinion. Besides, it will not readily be assumed that counsel, in a murder case,
has admitted the guilt of the accused or has conceded a fact which deprives the case of his client of all virtue.

It is also urged that the accused made no objection to the consideration by the court of the charge of fraud against
him. This claim is, in my judgment, specious. The accused is here claiming that the action against him is barred by
the fact that he had been previously discharged upon an indictment charging him with the same offense and that
such discharge constituted an acquittal. Yet it is claimed by the concurring opinion that he does not object to the
assumption by the Government, without proof, of facts which will absolutely destroy the defense which he is making.
But even if it be well based, what is the result? If the question is put, Why did not the accused object in the court
below to the use by the Government of such facts? the simple answer is that never throughout the trial did the
Government allege or claim that the accused had committed a fraud against it and had obtained his discharge by
that means. If the further question be asked, Why did he not make an objection in this court? the answer is, in the
first place, such an objection was inherent in the nature of his defense and it was not necessary, in order to bring it
to the attention of this court, to make it specially; in the second place, the Attorney-General, the accredited
representative of the Government, filed a brief in this court to the effect that the accused was entitled to be acquitted
on his plea and that it made no difference whether he had deceived the Government into his discharge or not. There
was never any contention in this court by anybody that the accused could be convicted in this case. Both his
attorney and the attorney for the Government were agreed upon the proposition that his discharge in the former
case was a bar and that he should be acquitted. This fact may have induced the attorney for the defense not to urge
separately and with force and vigor all of the points which his client was entitled to have urged on the hearing.
Enough was presented by him, however, to require this court to determine the case on the merits without attempting
to extract from the defendant's brief doubtful admissions for the purpose of convicting him of murder, or interpolate
into the record matters which were not put there on the trial.

I again assert that it is my opinion that there is no evidence in the record in this case to sustain the fundamental
basis of the decision of this court, that the accused obtained his discharge in case No. 3983 by false and fraudulent
representations and deceit.

The proposition that the Government may withdraw its agreement with an accused, set aside its order dismissing
the case against him, that is, its judgment of acquittal, and try him upon the same charge, on the ground, not that he
has not testified to the truth, but that he has not testified as he had agreed with the Government officials, or that he
did not testify as they expected him to, I do not now stop to discuss at length. I believe, however, that in order to
leave the matter open, I should suggest, with the Solicitor-General, who recommends that the accused be
discharged on the ground that sections 34 and 36 are absolutely conclusive of this case, that "section 36 is
unconditional; it is not made dependent upon the fact whether or not the defendant discharged had entered his plea,
whether witnesses had been examined, whether the party discharged deceived the fiscal or his own attorney, or
whether his evidence was useful to the prosecution or otherwise. If section 36 is too broad and 'gives too much
leeway to practice fraud on the prosecuting attorney and the court' it becomes the duty of the legislative branch of
the Government to amend it; it is not a function of the courts to add to or to take from the plain and unambiguous
language of the law. . . . The law does not make the discharge referred to in section 34 operative as a contract
between the fiscal and the party discharged. It plainly says that the court may direct any defendant to be discharged
that he may be a witness for the United States, and that such order shall amount to an acquittal of the defendant
discharged and shall be a bar to a future prosecution for the same offense."

I also believe it my duty to suggest that the makers of the Code of Criminal Procedure knew thoroughly the
conditions in this country relative to the administration of justice and that the power of public prosecutors to make
the acquittal of the accused depend upon how he testifies is one of the most powerful inducements to corruption and
most effective agencies of fraud and perjury that could be placed in his hands. It is dangerous enough to permits
public prosecutors to make agreements with criminals to testify against their fellow in consideration of granting
them absolute immunity, that is, immunity which can never be revoked; but when to that power is added the right of
public prosecutors to withdraw that immunity when the witness does not testify to suit their purpose, in other words,
when public prosecutors are permitted to make the immunity of the accused depend upon the kind of testimony he
gives, there is presented a condition which is full of danger.

Knowing so thoroughly the condition existing in this country, it would seem, from the language of section 36, that the
makers of the code in which that section is found intended to use language so clear, explicit and powerful as to
place its meaning beyond the pale of discussion. Section 36 uses two of the strongest words known to the language
of the law in describing the efforts of the dismissal of the case against the accused for the purpose of using him as a
witness for the Government. It provides, first, that the discharge "shall amount to an acquittal of the defendant
discharged" and, second, "shall be a bar to future prosecution for the same offense." Stronger and more explicit
language it is impossible to use and I call attention to it not be considered lightly nor deprived easily of its
signification.

I do not desire, however, to express an opinion upon this phase of the case. That the accused should be acquitted
upon the other branch of the case already discussed at length is so clear and undoubted that I have not given this
branch sufficient attention to warrant a deliberate opinion.

For these reasons I dissent.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-15045 January 20, 1961

IN RE: PETITION FOR EXEMPTION FROM COVERAGE BY THE SOCIAL SECURITY SYSTEM. ROMAN
CATHOLIC ARCHBISHOP OF MANILA, petitioner-appellant,
vs.
SOCIAL SECURITY COMMISSION, respondent-appellee.

Feria, Manglapus and Associates for petitioner-appellant.

Legal Staff, Social Security System and Solicitor General for respondent-appellee.

GUTIERREZ DAVID, J.:

On September 1, 1958, the Roman Catholic Archbishop of Manila, thru counsel, filed with the Social Security
Commission a request that "Catholic Charities, and all religious and charitable institutions and/or organizations,
which are directly or indirectly, wholly or partially, operated by the Roman Catholic Archbishop of Manila," be
exempted from compulsory coverage of Republic Act No. 1161, as amended, otherwise known as the Social
Security Law of 1954. The request was based on the claim that the said Act is a labor law and does not cover
religious and charitable institutions but is limited to businesses and activities organized for profit. Acting upon the
recommendation of its Legal Staff, the Social Security Commission in its Resolution No. 572, series of 1958, denied
the request. The Roman Catholic Archbishop of Manila, reiterating its arguments and raising constitutional
objections, requested for reconsideration of the resolution. The request, however, was denied by the Commission in
its Resolution No. 767, series of 1958; hence, this appeal taken in pursuance of section 5(c) of Republic Act No.
1161, as amended.

Section 9 of the Social Security Law, as amended, provides that coverage "in the System shall be compulsory upon
all members between the age of sixteen and sixty rears inclusive, if they have been for at least six months a the
service of an employer who is a member of the System, Provided, that the Commission may not compel any
employer to become member of the System unless he shall have been in operation for at least two years and has at
the time of admission, if admitted for membership during the first year of the System's operation at least fifty
employees, and if admitted for membership the following year of operation and thereafter, at least six employees x x
x." The term employer" as used in the law is defined as any person, natural or juridical, domestic or foreign, who
carries in the Philippines any trade, business, industry, undertaking, or activity of any kind and uses the services of
another person who is under his orders as regards the employment, except the Government and any of its political
subdivisions, branches or instrumentalities, including corporations owned or controlled by the Government" (par. [c],
see. 8), while an "employee" refers to "any person who performs services for an 'employer' in which either or both
mental and physical efforts are used and who receives compensation for such services" (par. [d], see. 8).
"Employment", according to paragraph [i] of said section 8, covers any service performed by an employer except
those expressly enumerated thereunder, like employment under the Government, or any of its political subdivisions,
branches or instrumentalities including corporations owned and controlled by the Government, domestic service in a
private home, employment purely casual, etc.

From the above legal provisions, it is apparent that the coverage of the Social Security Law is predicated on the
existence of an employer-employee relationship of more or less permanent nature and extends to employment of all
kinds except those expressly excluded.

Appellant contends that the term "employer" as defined in the law should — following the principle of ejusdem
generis — be limited to those who carry on "undertakings or activities which have the element of profit or gain, or
which are pursued for profit or gain," because the phrase ,activity of any kind" in the definition is preceded by the
words "any trade, business, industry, undertaking." The contention cannot be sustained. The rule ejusdem
generis applies only where there is uncertainty. It is not controlling where the plain purpose and intent of the
Legislature would thereby be hindered and defeated. (Grosjean vs. American Paints Works [La], 160 So. 449). In
the case at bar, the definition of the term "employer" is, we think, sufficiently comprehensive as to include religious
and charitable institutions or entities not organized for profit, like herein appellant, within its meaning. This is made
more evident by the fact that it contains an exception in which said institutions or entities are not included. And,
certainly, had the Legislature really intended to limit the operation of the law to entities organized for profit or gain, it
would not have defined an "employer" in such a way as to include the Government and yet make an express
exception of it.

It is significant to note that when Republic Act No. 1161 was enacted, services performed in the employ of
institutions organized for religious or charitable purposes were by express provisions of said Act excluded from
coverage thereof (sec. 8, par. [j] subpars. 7 and 8). That portion of the law, however, has been deleted by express
provision of Republic Act No. 1792, which took effect in 1957. This is clear indication that the Legislature intended to
include charitable and religious institutions within the scope of the law.

In support of its contention that the Social Security Law was intended to cover only employment for profit or gain,
appellant also cites the discussions of the Senate, portions of which were quoted in its brief. There is, however,
nothing whatsoever in those discussions touching upon the question of whether the law should be limited to
organizations for profit or gain. Of course, the said discussions dwelt at length upon the need of a law to meet the
problems of industrializing society and upon the plight of an employer who fails to make a profit. But this is readily
explained by the fact that the majority of those to be affected by the operation of the law are corporations and
industries which are established primarily for profit or gain.

Appellant further argues that the Social Security Law is a labor law and, consequently, following the rule laid down in
the case of Boy Scouts of the Philippines vs. Araos (G.R. No. L-10091, January 29, 1958) and other cases1, applies
only to industry and occupation for purposes of profit and gain. The cases cited, however, are not in point, for the
reason that the law therein involved expressly limits its application either to commercial, industrial, or agricultural
establishments, or enterprises. .

Upon the other hand, the Social Security Law was enacted pursuant to the "policy of the Republic of the Philippines
to develop, establish gradually and perfect a social security system which shall be suitable to the needs of the
people throughout the Philippines and shall provide protection to employees against the hazards of disability,
sickness, old age and death." (See. 2, Republic Act No. 1161, as amended.) Such enactment is a legitimate
exercise of the police power. It affords protection to labor, especially to working women and minors, and is in full
accord with the constitutional provisions on the "promotion of social justice to insure the well-being and economic
security of all the people." Being in fact a social legislation, compatible with the policy of the Church to ameliorate
living conditions of the working class, appellant cannot arbitrarily delimit the extent of its provisions to relations
between capital and labor in industry and agriculture.

There is no merit in the claim that the inclusion of religious organizations under the coverage of the Social Security
Law violates the constitutional prohibition against the application of public funds for the use, benefit or support of
any priest who might be employed by appellant. The funds contributed to the System created by the law are not
public funds, but funds belonging to the members which are merely held in trust by the Government. At any rate,
assuming that said funds are impressed with the character of public funds, their payment as retirement death or
disability benefits would not constitute a violation of the cited provisions of the Constitution, since such payment
shall be made to the priest not because he is a priest but because he is an employee.

Neither may it be validly argued that the enforcement of the Social Security Law impairs appellant's right to
disseminate religious information. All that is required of appellant is to make monthly contributions to the System for
covered employees in its employ. These contributions, contrary to appellant's contention, are not in the nature of
taxes on employment." Together with the contributions imposed upon the employees and the Government, they are
intended for the protection of said employees against the hazards of disability, sickness, old age and death in line
with the constitutional mandate to promote social justice to insure the well-being and economic security of all the
people.

IN VIEW OF THE FOREGOING, Resolutions Nos. 572 kind 767, series of 1958, of the Social Security Commission
are hereby affirmed. So ordered with costs against appellant.

Paras, C.J., Padilla, Bautista Angelo, Paredes and Dizon, JJ., concur.
Concepcion, Reyes, J.B.L. and Barrera, JJ., concur in the result.
Bengzon, J., reserves his vote.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-49439 June 29, 1983

NATIONAL HOUSING AUTHORITY, petitioner,

vs.
HONORABLE PASTOR P. REYES, in his capacity as Presiding Judge (on detail), Court of Agrarian
Relations, Seventh Regional District, Branch II, Cavite City, QUIRINO AUSTRIA and LUCIANO
AUSTRIA, respondents.

Lazaro, Aldana & Tan Law Office for petitioner.

Jacinto Dominguez for private respondent.

Natividad Dizon for respondent Judge.

FERNANDO, C.J.:

The undisputed fact that in this certiorari proceeding against respondent Judge for failure to comply with the
provision of the Presidential Decrees as to the amount to be paid by petitioner to entitle it to a writ of possession in
an expropriation proceeding, no question was raised as to their validity, calls for the grant of the remedy sought.

The controversy started with the filing of a complaint with the then Court of Agrarian Relations, Seventh Regional
District, Branch II, Cavite City, against private respondents, for the expropriation, pursuant to Presidential Decree
No. 757, of a parcel of land, with an area of 25,000 square meters, owned and registered in the name of respondent
Quirino Austria, and needed for the expansion of the Dasmariñas Resettlement Project.1 Then came from petitioner
about a year later a motion for the issuance of a writ of possession. 2 Petitioner was able to secure an order placing
it in possession.3Thereafter, private respondent Quirino Austria filed a Motion to Withdraw Deposit in the amount of
P6,600.00, a sum which was equivalent to the value of the property assessed for taxation purposes and which was
deposited by petitioner pursuant to Presidential Decree No. 42 .4 There was an Opposition to the Motion to
Withdraw Deposit by petitioner, citing Section 92 of Presidential Decree No. 464 which states: "Basis for payment of
just compensation in expropriation proceedings. In determining such compensation when private property is
acquired by the government for public use, the same shall not exceed the market value declared by the owner or
administrator or anyone having legal interest in the property, or such market value as determined by the assessor,
whichever is lower." 5Petitioner's submission is that the owner's declaration at P1,400.00 which is lower than the
assessor's assessment, is the just compensation for the respondents' property, respondents thus being precluded
from withdrawing any amount more than P1,400.00.6 Respondent Judge, however, issued an order dated July 13,
1978 which, according to petitioner, is clearly contrary to the letter and spirit of the aforecited laws. 7 There was a
Motion for Reconsideration dated July 21, 1978. 8Its basis is the provision in Presidential Decree No. 1224: "In the
determination of just compensation for such private lands and improvement to be expropriated, the government
shall choose between the value of the real property and improvements thereon as declared by the owner or
administrator thereof or the market value determined by the City or provincial assessor, whichever is lower, at the
time of the filing of the expropriation complaint. "9 It was then submitted that under the aforequoted statutory
provision, the owner's declared market value at P1,400.00 which is lower than that fixed by the assessor is the just
compensation of respondent Quirino Austria's property sought to be expropriated. The motion for reconsideration
was denied for lack of merit. Hence, this petition.

On January 4, 1979, the Court issued the following resolution: "Considering the allegations contained, the issues
raised and the arguments adduced in the petition for certiorari and mandamus with preliminary injunction with prayer
for a restraining order, the Court Resolved without giving due course to the petition to require the respondents to
comment, not to file a motion to dismiss, within ten (10) days from notice. The Court further Resolved to issue a
temporary restraining order, effective as of this date and continuing until otherwise ordered by the Court." 10 The
comment was thereafter submitted by private respondents Quirino Austria and Luciano Austria.

Private respondents stress that while there may be basis for the allegation that respondent Judge did not follow
Presidential Decree No. 76 as amended by Presidential Decree No. 464, as further amended by Presidential Decree
Nos. 794, 1224 and 1259, the matter is still subject to his final disposition, he having been vested with the original
and competent authority to exercise his judicial discretion in the light of the constitutional provisions. 11 There was a
comment likewise submitted by counsel on behalf of respondent Judge but again, there was no question raised as
to the validity of the aforementioned Decrees. Such comments were considered as answers. The case was
originally submitted to the Second Division, and in a resolution of February 21, 1979, it referred this case to the
Court en banc.

Under the state of the pleadings as submitted to this Court, it is evident why, as noted at the outset, certiorari lies.

1. One of the basic postulates in constitutional law is the presumption of validity of legislative or executive acts.
In Angara v. Electoral Commission 12 the leading case on the subject until now, Justice Laurel, in speaking of
judicial review, made clear that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency of
legislation."13 His landmark opinion continues: "More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and legislative departments of the government. "14 As
pointed out in Ermita-Malate Hotel & Motel Operators Association, Inc. v. City Mayor of Manila:15 "Primarily what
calls for a reversal of such a decision is the absence of any evidence to offset the presumption of validity that
attaches to a challenged statute or ordinance. As was expressed categorically by Justice Malcolm: "The
presumption is all in favor of validity ..."16 As of this stage in this particular case, there is a failure to challenge the
validity of such legislation. Both public and private respondents in their comments considered as answers raised no
such constitutional question. Even for it, therefore, as of this stage of litigation, and under the conceded facts, there
should be a recognition that the law as it stands must be applied. The Decree having spoken so clearly and
unequivocally calls for obedience. It is repeating a common place to state that on a matter where the applicable law
speaks in no uncertain language, the Court has no choice except to yield to its command.

2. Nor is there any choice for petitioner National Housing Authority for precisely it was created for the laudable
purpose of "urban land reform." 17 The first whereas clause speaks of the "magnitude of the housing problem of the
country" which "has grown into such proportions that only a purposeful, determined, organized mass housing
development program can meet the needs of Filipino families" for decent housing. 18 Moreover, the Presidential
Decree is mandated by the Constitution which requires the State to "establish, maintain, and ensure adequate social
services in the field of ... housing ..." as well as "to guarantee the enjoyment of the people of a decent standard of
living." 19 The very first section of the Decree speaks of the following: "Pursuant to the mandate of the New
Constitution, there shall be developed a comprehensive and integrated housing program which shall embrace,
among others, housing development and resettlement, sources and schemes of financing, and delineation of
government and private sector participation. The program shall specify the priorities and targets in accordance with
the integrated national human settlements plan prepared by the Human Settlements Commission. "20 In view of the
urgency of the housing problem the various decrees mentioned earlier were issued for the purpose of assuring that
the government would be in a financial position to cope with such basic human need which in the Philippines, under
the welfare state concept, and according to the express language of the Constitution, is an obligation cast upon the
State. The memorandum for petitioner submitted by Government Corporate Counsel, now likewise the Presidential
Legal Assistant, Justice Manuel M. Lazaro, pursues the matter further in prose impressed with force and clarity:
"The issue in this petition for certiorari and mandamus involves the application of a rule introduced by P.D. No. 76
and reiterated in subsequent decrees that not only promotes social justice but also ends the baneful and one-sided
practice abetted by the collusive acquiescence of government officials and employees, of under declaring properties
for the purpose of taxation but ballooning the price thereof when the same properties are to be acquired by the
government for public purposes. Put to the test, therefore, is the power of the government to introduce rationality in
the laws and to discourage a deceitful practice that is not only ruinous to the government coffers but also
undermines its efforts at awakening a democratic responsiveness of the citizenry toward good government and its
economic and social programs. The courts should recognize that the rule introduced by P.D. No. 76 and reiterated
in subsequent decrees does not upset the established concepts of justice or the constitutional provision on just
compensation for, precisely, the owner is allowed to make his own valuation of his property."21

WHEREFORE, the writ of certiorari is granted and the order of respondent Judge of July 13, 1978 is hereby nullified
and set aside. The restraining order issued by this Court on January 4, 1979 is hereby made permanent. The case
is remanded to the lower court for further action conformably to law and to the above opinion. No costs.

Concepcion Jr., Guerrero, Abad Santos, Plana, Escolin, Relova and Gutierrez, Jr., JJ., concur.

Makasiar, J., concurs in the result.

Teehankee, J., Aquino, J., De Castor, J., took no part.

Melencio-Herrera and Vasquez, JJ., are on leave.

 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-38736 May 21, 1984

FELIPE G. TAC-AN, petitioner,

vs.
HONORABLE COURT OF APPEALS and ELEUTERIO ACOPIADO, MAXIMINO ACOPIADO, the SPOUSES
JESUS PAGHASIAN and PILAR LIBETARIO, respondents.

Liliano B. Neri for petitioner.

Vic T. Lacaya for private respondents.

ABAD SANTOS, J.:

The petitioner, Felipe G. Tac-An, is a lawyer whose services were engaged by the brothers Eleuterio Acopiado and
Maximino Acopiado who were accused of frustrated murder and theft of large cattle before the Municipal Court of
New Piñan, Zamboanga del Norte in March, 1960.

On April 4, 1960, Tac-An caused a document entitled, "Deed of Quitclaim" to be thumb-marked by the Acopiado
brothers whereby for the sum of P1,200.00 representing his fees as their lawyer in the criminal cases, they
conveyed to him a parcel of land with an area of three hectares. The document was acknowledged before Notary
Public Pacifico Cimafranca on the same date who explained its contents to the Acopiados.

On April 6, 1960, or two days after the execution of the deed, the Acopiados told Tac-An that they were terminating
his services because their wives and parents did not agree that the land be given to pay for his services. They also
said that they had hired another lawyer, a relative, to defend them. But Tac-An continued to represent them.

In the case for frustrated murder, the Acopiados were acquitted. The cases for theft of large cattle were dismissed
due to the desistance of the complainants.

On April 2, 1961, Eleuterio sold his share of the land previously conveyed to Tac-An to Jesus Paghasian and Pilar
Libetario but the latter did not take possession thereof.

In June, 1964, Tac-An appointed Irineo Villejo, a barrio captain, as his overseer in the land. On July 2, 1964, Tac-An
also secured the approval of the Provincial Governor of Zamboanga del Norte to the Deed of Quitclaim. And on
October 7, 1964, Tac-An filed a complaint against the Acopiado brothers, Paghasian and Libetario in the CFI of
Zamboanga del Norte. He prayed that he be declared the owner of the land; that the sale made in favor of
Paghasian and owner Libetario be annulled; and that he be paid damages, attorney's fees, etc.

The Court of First Instance decided in favor of Tac-An whereupon the Acopiados, et al. appealed to the Court of
Appeals.

The Court of Appeals voided the transfer of the land to Tac-An but held that for his services in the criminal cases he
was entitled to the agreed upon amount of P1,200.00. The judgment of the Court of Appeals reads as follows:

WHEREFORE, the judgment appealed from is hereby reversed and set aside. In lieu thereof,
another one is rendered ordering the defendants Acopiados to pay the plaintiff the sum of P1,200.00
with interest at a legal rate from the date of the finality of this judgment until full payment thereof. No
pronouncement as to costs. (Rollo, pp. 40-41.)

Petitioner Tac-An prays that the decision of the Court of Appeals be set aside and that the decision of the Court of
First Instance be upheld instead.

The petition is not impressed with merit.

The Court of Appeals found as a fact that the Acopiado brothers fully understood the tenor of the Deed of Quitclaim
which they executed. But the Court of Appeals also found as a fact that the Acopiado brothers are Non-Christians,
more specifically Subanons, and that each is married to a Subanon. And because they are Non-Christians, the
Court of Appeals applied Section 145 of the Administrative Code of Mindanao and Sulu which reads as follows:

Sec. 145. Contracts with Non-Christians requisites. -- Save and except contracts of sale or barter of
personal property and contracts of personal service comprehended in chapter seventeen hereof no
contract or agreement shall be made in the Department by any person with any Moro or other non-
Christian tribe or portion thereof the Department or with any individual Moro or other non-Christian
inhabitants of the same for the payment or delivery of money or other things of value in present or in
prospective, or in the manner affecting or relating to any real property, unless such contract or
agreement be executed and approved as follows:

xxx xxx xxx

(b) It shall be executed before a judge of a court of record, justice or auxilliary justice of the peace, or
notary public, and shall bear the approval of the provincial governor wherein the same was executed
or his representative duly authorized in writing for such purpose, indorsed upon it.

It should be stated that under Section 146 of the same Code, contracts or agreements made in violation of Sec. 145
shall be "null and void."

It should be recalled that on July 2, 1964, Tac-An secured the approval of the Provincial Governor of Zamboanga
del Norte to the Deed of Quitclaim and that should have satisfied the requirement of Sec. 145 of the Administrative
Code for Mindanao and Sulu. But it appears that on April 12, 1965, while Tac-An's suit was pending in the trial court,
the Governor of Zamboanga del Norte revoked his approval for the reasons stated therein.

The petitioner now asserts that the revocation of the approval which had been given by the Provincial Governor has
no legal effect and cannot affect his right to the land which had already vested. But as Justice Conrado M. Vasquez,
with Justices Mateo Canonoy and Ameurfina M. Herrera concurring, said:

The approval by Provincial Governor Felipe Azcuna appearing on the face of the Deed of Quitclaim
(Exh. "E ") made on July 2, 1964 may no longer be relied upon by the plaintiff in view of the
revocation thereof by the same official on April 12, 1965 (Exh. 4). The revocation was based on the
ground that the signature of Governor Azcuna was obtained thru a false representation to the effect
that the alleged transaction was legal and voluntary when in truth and in fact, as found out later, the
said parcel of land was the subject matter of a court litigation; and, moreover, the non-Christian
vendors were not brought before him for interrogation, confirmation or ratification of the alleged deed
of quitclaim. The fact that the revocation was made after the filing of instant action on October 10,
1964 does not vitiate the aforesaid action of the Provincial Governor. Significantly, no attempt was
made to disprove the truth of the reasons stated in the certificate of revocation (Exh. 4). (Rollo, p.
37.)

The petitioner also argues that the Administrative Code of Mindanao and Sulu was repealed on June 19, 1965 by
Republic Act No, 4252, hence the approval of the Provincial Governor became unnecessary. Suffice it to say that at
times material to the case, i.e. when the Deed of Quitclaim was executed, when the approval by the Provincial
Governor was given and when the approval was revoked, Sections 145 and 146 of the Administrative Code of
Mindanao and Sulu were in full force and effect and since they were substantive in nature the repealing statute
cannot be given retroactive effect. It should also be stated that the land in question must be presumed to be
conjugal in nature and since the spouses of the Acopiado brothers did not consent to its transfer to the petitioner,
the transaction was at least voidable.

WHEREFORE finding the petition to be lacking in merit, the same is hereby dismissed with costs against the
petitioner.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Guerrero, and De Castro, JJ., concur.

Escolin, J., took no part.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-31711 September 30, 1971

ANTONIO J. VILLEGAS as Mayor of the City of Manila and MANUEL D. LAPID, petitioners-appellants,
vs.
ABELARDO SUBIDO as Civil Service Commissioner, EDUARDO Z. ROMUALDEZ as Secretary of Finance,
JOSE R. GLORIA as Acting Asst. City Treasurer of Manila, and HON. CONRADO M. VASQUEZ as Presiding
Judge of Branch V, Court of First Instance of Manila, respondents-appellees.

Gregorio A. Ejercito and Restituto R. Villanueva for petitioners-appellants.

Office of the Solicitor General Felix Q. Antonio, Acting Assistant Solicitor General Hector C. Fule and Solicitor
Santiago M. Kapunan for respondents-appellees.

FERNANDO, J.:

Petitioner Antonio J. Villegas, in this appeal from a decision of the lower court dismissing a special civil action for
prohibition, quo warranto and mandamus would lay claim as the Mayor of the City of Manila to the power of
appointment of the Assistant City Treasurer to which office the other petitioner, Manuel D. Lapid, was by him named
even if under its Charter1 such a prerogative is expressly vested in the President of the Philippines.2 He would invoke
a provision in the Decentralization Act to the effect that all "other employees, except teachers, paid out of provincial,
city or municipal general funds, and other local funds shall, subject to civil service law, rules and regulations, be
appointed by the provincial governor, city or municipal mayor upon recommendation of the office head
concerned."3 He is not deterred by the rather general and in explicit character of such statutory language as he
contends for a construction rather generous, if not latitudinarian, in scope purportedly in consonance with the
avowed purpose of the Act of enlarging boundaries of local autonomy. Respondent Abelardo Subido, who was
proceeded against as Commissioner of the Civil Service,4 takes a stand diametrically opposite not only because
there is no legal basis for such a claim in the light of what is expressly ordained in the City Charter but also because
such an interpretation of the provision related upon would disregard the well-settled doctrine that implied repeals are
not favored. The lower court, in a well-written decision by the Honorable Conrado M. Vasquez, accepted such a
view. After a careful study of the matter, we cannot discern any error. We affirm.

The facts as found by the lower court follows: "In a letter dated June 3, 1968, respondent Eduardo Z. Romualdez,
Secretary of Finance, authorized respondent Jose R. Gloria of the Office of the City Treasurer of Manila to assume
the duties of Assistant City Treasurer effective June 1, 1968, vice Felino Fineza who retired from the government
service on May 31, 1968. In administrative Order No. 40, series of 1968, dated June 17, 1968, petitioner Antonio J.
Villegas, Mayor of the City of Manila, directed respondent Gloria to desist and refrain from exercising the duties and
functions of the Assistant City Treasurer,' on the ground that respondent Romualdez "is not empowered to make
such designation." On January 1, 1969, Mayor Villegas, appointed petitioner Manuel D. Lapid, chief of the cash
division of the Office of the City Treasurer of Manila, as Assistant City Treasurer. In a 1st endorsement dated
February 14, 1969, respondent Abelardo Subido, Commissioner of Civil Service disapproved the appointment of
Lapid, basing his action, on an opinion of the Secretary of Justice dated September 19, 1968 to the effect that the
appointment of Assistant Provincial Treasurers is still governed by Section 2088 (A) of the Revised Administrative
Code, and not by Section 4 of the Decentralization Law, Republic Act No. 5185."5

Thereafter on February 25, 1969, to quote anew from the appealed decision: "Mayor Villegas and Manuel D. Lapid
filed the instant petition for prohibition, quo warranto and mandamus, with application for writ of preliminary
injunction, praying that judgment be rendered to declare illegal and void ab initio the authorization given by
respondent Romualdez to respondent Gloria to assume the duties of assistant city treasurer of Manila, and that a
writ of mandamus be issued to respondent Commissioner of Civil Service Subido commanding him to approve the
appointment of petitioner Lapid to the said office in accordance with the civil Service Rules." 6 It was not until the
filing of the petition that respondent Jose R. Gloria was nominated by the President of the Philippines to the position
of Assistant City treasurer of Manila and thereafter duly confirmed. After the case was submitted for judgment on the
pleadings and the documentary exhibits stipulated by the parties, the court rendered its decision on August 4, 1969
dismissing the petition. Hence this appeal by way of certiorari.
With this Tribunal, as with the court below, the decisive question is the applicable law. The Charter of the City of
Manila, enacted in 1949, in express terms did confer on the President of the Philippines, with the consent of the
Commission on Appointments, the power to appoint the Assistant City Treasurer.7 On the other hand, support for the
petition is premised on the expansive interpretation that would be accorded the general provisions found in the
Decentralization Act of 1967 to the effect that it is a city mayor who has the power to appoint all other employees
paid out of city or local funds subject to civil service law, rules and regulations.8

It is understandable why the choice for the lower court was not difficult to make. What has been so clearly ordained
in the Charter is controlling. It survives in the face of the assertion that the additional power granted local officials to
appoint employees paid out of local funds would suffice to transfer such authority to petitioner Mayor. A perusal of
the words of the statute, even if far from searching would not justify such an interpretation. This is all more evident,
considering the fidelity manifested by this Court to the doctrine that looks with less than favor on implied appeals.
The decision now on appeal, to repeat, must be affirmed.

1. The inherent weakness of the contention of petitioner Mayor that would seize upon the vesting of the appointing
power of all other "employees" except teachers paid out of local funds to justify his choice of petitioner Manuel D.
Lapid as Assistant City Treasurer is readily disclosed. The Revised Administrative Code distinguishes one in that
category from an "officer" to designate those "whose duties, not being of a clerical or manual nature, may be
considered to involve the exercise of discretion in the performance of the function of government, whether such
duties are precisely defined by law or not."9 Clearly, the Assistant and City Treasurer is an officer, not an employee.
Then, too, Section 4 of the Decentralization Act relied upon by petitioner City Mayor specifically enumerates, the
officials and their assistants whom he can appoint, specifically excluding therefrom city treasurers.10 The expansive
interpretation contended for is thus unwarranted.

Nor is the case strengthened for petitioner City Mayor by the invocation of Pineda v. Claudio.11 It is not to be denied
that in the opinion of the Court, penned by Justice Castro, undue interference with the power and prerogatives of a
local executive is sought to be avoided, considering his primary responsibility for efficient governmental
administration. What is not to be ignored though is that such a principle was announced in connection with the
appointment of a department head, the chief of police, who necessarily must enjoy the fullest confidence of the local
executive, one moreover whose appointment is expressly vested in the city mayor. The principle therein announced
does not extend as far as the choice of an assistant city treasurer whose functions do not require that much degree
of confidence, not to mention the specific grant of such authority to the President. Equally unavailing then is Villegas
v. Subido,12 where this Court, through the then Justice Capistrano, recognized that the choice of who the city legal
officer should be rests solely on the city mayor, such an office requiring as it does the highest degree of confidence.
It bears repeating that the situation in the case before us is of a different category. The decision appealed from,
then, is not to be impugned as a failure to abide by controlling pronouncements of this Tribunal.

2. Much less is reversal of the lower court decision justified on the plea that the aforesaid provision in the
Decentralization Act had the effect of repealing what is specifically ordained in the city charter. It has been the
constant holding of this Court that repeals by duplication are not favored and will not be so declared unless it be
manifest that the legislature so intended. Such a doctrine goes as far back as United States v. Reyes, a 1908
decision.13 It is necessary then before such a repeal is deemed to exist that it be shown that the statutes or statutory
provisions deal with the same subject matter and that the latter be inconsistent with the former.14 There must be a
showing of repugnancy clear and convincing in character. The language used in the latter statute must be such as
to render it irreconcilable with what had been formerly enacted. An inconsistency that falls short of that standard
does not suffice. What is needed is a manifest indication of the legislative purpose to repeal. 15

More specifically, a subsequent statute, general in character as to its terms and application, is not to be construed
as repealing a special or specific enactment, unless the legislative purpose to do so is manifest. This is so even if
the provisions of the latter are sufficiently comprehensive to include what was set forth in the special act. This
principle has likewise been consistently applied in decisions of this Court from Manila Railroad Co. v.
Rafferty,16decided as far back as 1919. A citation from an opinion of Justice Tuason is illuminating. Thus: "From
another angle the presumption against repeal is stronger. A special law is not regarded as having been amended or
repealed by a general law unless the intent to repeal or alter is manifest. Generalia specialibus non derogant. And
this is true although the terms of the general act are broad enough to include the matter in the special statute. ... At
any rate, in the event harmony between provisions of this type in the same law or in two laws is impossible, the
specific provision controls unless the statute, considered in its entirety, indicates a contrary intention upon the part of
the legislature. ... A general law is one which embraces a class of subjects or places and does not omit any subject
or place naturally belonging to such class while a special act is one which relates to particular persons or things of a
class. 17

WHEREFORE, the lower court decision of August 4, 1969 is affirmed. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Castro, Barredo, Villamor and Makasiar, JJ., concur.

Dizon and Teehankee, JJ., took no part