1
G.R. No. L-10255 August 6, 1915
THE UNITED STATES, plaintiff-appellant,
vs.
SILVESTRE POMPEYA, defendant-appellee.
Office of the Solicitor-General Corpus for appellant.
Lawrence, Ross and Block for appellee.
JOHNSON, J.:
On the 1st day of June, 1914, the acting prosecuting attorney
of the Province of Iloilo presented the following complaint in
the Court of First Instance of said province: "The undersigned
fiscal charges Silvestre Pompeya with violation of the municipal
ordinance of Iloilo, on the subject of patrol duty, Executive
Order No. 1, series of 1914, based on section 40 (m) of the
Municipal Code, in the following manner:
"That on or about March 20 of the current year, 1914, in the
jurisdiction of the municipality of Iloilo, Province of Iloilo,
Philippine Islands, the said accused did willfully, illegally, and
criminally and without justifiable motive fail to render service
on patrol duty; an act performed in violation of the law.
"That for this violation the said accused was sentenced by the
justice of the peace of Iloilo to a fine of P2 and payment of the
costs of the trial, from which judgment said accused appealed
to the Court of First Instance.".
Upon said complaint the defendant was duly arraigned .Upon
arraignment he presented the following demurrer: "The
defendant, through his undersigned attorneys, demurs to the
complaint filed in this case on the ground that the acts charged
therein do not constitute a crime.".
In support of said demurrer, the defendant presented the
following argument: "The municipal ordinance alleged to be
violated is unconstitutional because it is repugnant to the
Organic Act of the Philippines, which guarantees the liberty of
the citizens.".
Upon issues thus presented, the Honorable J. s .Powell, judge,
on he 22nd day of August, 1914, after hearing the arguments of
the respective parties, sustained said demurrer and ordered
the dismissal of said complaint and the cancellation of the bond
theretofore given, with costs de oficio.
From the order sustaining the demurrer of the lower court, the
prosecuting attorney appealed to this court.
It appears from the demurrer that the defendant claims that
the facts stated in the complaint are not sufficient to constitute
a cause of action. In his argument in support of said demurrer
it appears that the real basis of said demurrer was the fact that
2
the ordinance upon which said complaint was based was
unconstitutional, for the reason that it was contrary to the
provisions of the Philippine Bill which guarantees liberty to the
citizens of the Philippine Islands.
In this court the only question argued by the Attorney-General
is whether or not the ordinance upon which said complaint was
based (paragraph "m" of section 40 of the Municipal Code)
which was adopted in accordance with the provisions of Act No.
1309 is constitutional. Section 40 of Act No. 82 (the Municipal
Code) relates to the power of municipal councils. Act No. 1309
amends said section (section 40, paragraph "m") which reads
as follows: "(m) With the approval of the provincial governor,
when a province or municipality is infested with ladrones or
outlaws (the municipal council is empowered):
"1. To authorize the municipal president to require able-bodied
male residents of the municipality, between the ages of
eighteen and fifty years, to assist, for a period not exceeding
five days in any one month, in apprehending ladrones, robbers,
and other lawbreakers and suspicious characters, and to act as
patrols for the protection of the municipality, not exceeding
one day in each week. The failure, refusal, or neglect of any
such able-bodied man to render promptly the service thus
required shall be punishable by a fine not exceeding one
hundred pesos or by imprisonment for not more than three
months, or by both such fine and imprisonment, in the
discretion of the court: Provided, That nothing herein
contained shall authorize the municipal president to require
such service of officers or men of the Army of Navy of the
United States, civil employees of the United States
Government, officers and employees of the Insular
Government, or the officers or servants of companies or
individuals engaged in the business of common carriers on sea
or land, or priests, ministers of the gospel, physicians,
practicantes, druggists or practicantes de farmacia, actually
engaged in business, or lawyers when actually engaged in court
proceedings.".
Said Act No. 1309 contains some other provisions which are not
important in the consideration of the present case.
The question which we have to consider is whether or not the
facts stated in the complaint are sufficient to show (a) a cause
of action under the said law; and (b) whether or not said law is
in violation of the provisions of the Philippine Bill in depriving
citizens of their rights therein guaranteed.
We deem it advisable to consider the second question first.
It becomes important to ascertain the real purpose of said Act
(No. 1309) in order to know whether it covers a subject upon
which the United States Philippine Commission could legislate.
A reading of said Act discloses (1) that it is an amendment of
the general law (Act No. 82) for the organization of municipal
government; (2) that it is amendment of section 40 of said Act
3
No. 82, by adding thereto paragraph "m;" (3) that said section
40 enumerates some of the powers conferred upon the
municipal council; (4) that said amendment confers upon the
council additional powers. The amendment empowers the
municipal council, by ordinance, to authorize the president: (a)
To require able-bodied male residents of the municipality,
between the ages of 18 and 55 [50], to assist, for a period not
exceeding five days in any month, in apprehending ladrones,
robbers, and other lawbreakers and suspicious characters, and
to act as patrols for the protection of the municipality, not
exceeding one day each week; (b) To require each householder
to report certain facts, enumerated in said amendment.
The specific purpose of said amendment is to require each able-
bodied male resident of the municipality, between the ages of
18 and 55 [50], as well as each householder when so required
by the president, to assist in the maintenance of peace and
good order in the community, by apprehending ladrones, etc.,
as well as by giving information of the existence of such persons
in the locality. The amendment contains a punishment for
those who may be called upon for such service, and who refuse
to render the same.
Is there anything in the law, organic or otherwise, in force in the
Philippine Islands, which prohibits the central Government, or
any governmental entity connected therewith, from adopting
or enacting rules and regulations for the maintenance of peace
and good government? May not the people be called upon,
when necessary, to assist, in any reasonable way, to rid the
state and each community thereof, of disturbing elements? Do
not individuals whose rights are protected by the Government,
owe some duty to such, in protecting it against lawbreakers,
and the disturbers of the quiet and peace? Are the sacred rights
of the individual violated when he is called upon to render
assistance for the protection of his protector, the Government,
whether it be the local or general government? Does the
protection of the individual, the home, and the family, in
civilized communities, under established government, depend
solely and alone upon the individual? Does not the individual
owe something to his neighbor, in return for the protection
which the law afford him against encroachment upon his rights,
by those who might be inclined so to do? To answer these
questions in the negative would, we believe, admit that the
individual, in organized governments, in civilized society, where
men are governed by law, does not enjoy the protection
afforded to the individual by men in their primitive relations.
If tradition may be relied upon, the primitive man, living in his
tribal relations before the days of constitutions and states,
enjoyed the security and assurance of assistance from his
fellows when his quiet and peace were violated by
malhechores. Even under the feudal system, a system of land
holdings by the Teutonic nations of Europe in the eleventh,
twelfth, and thirteenth centuries, the feudal lord exercised the
right to call upon all his vassals of a certain age to assist in the
protection of their individual and collective rights. (Book 2,
4
Cooley's Blackstone's Commentaries, 44; 3 Kent's
Commentaries, 487; Hall, Middle Ages; Maine, Ancient Law;
Guizot, history of Civilization; Stubbs' Constitutional History of
England; Chisholm vs. Georgia, 2 Dall .(U. S.), 419; DePeyster vs.
Michael, 6 N. Y., 467.) Each vassal was obliged to render
individual assistance in return for the protection afforded by all.
The feudal system was carried in to Britain by William the
Conqueror in the year 1085 with all of is ancient customs and
usages.
we find in the days of the "hundreds," which meant a division
of the state occupied by one hundred free men, the individual
was liable to render service for the protection of all. (Book 3,
Cooley's Blackstone's Commentaries, 160, 245, 293, 411.) In
these "hundreds" the individual "hundredor," in case of the
commission of a crime within the county or by one of the
"hundredors," as against another "hundred," was obliged to
join the "hue and cry" (hutesium et clamor) in the pursuit of the
felon. This purely customary ancient obligation was later made
obligatory by statute. (Book 4, Cooley's Blackstone's
Commentaries, 294; 3 Edward I., Chapter 9; 4 Edward I.,
Chapter 2; 13 Edward I., Chapters 1 and 4.).
Later the statute provided and directed: "That from
thenceforth every county shall be so well kept, that,
immediately upon robberies and feloniously committed, fresh
suit shall be made from town (pueblo) to town, and from
county to county; and that "hue and cry" shall be raised upon
the felons, and they keep the town (pueblo) shall follow with
"hue and cry," with all the town (pueblo), and the towns
(pueblos) near; and so "hue and cry" shall be made from town
(pueblo) to town, until they be taken and delivered to the
sheriff.".
Said statue further provided that in case the "hundred" failed
to join the "hue and cry" that it should be liable for the damages
done by the malhechores. Later, by statue (27th Elizabeth,
chapter 13) it was provided that no "hue and cry" would be
sufficient unless it was made with both horsemen and footmen.
The "hue and cry" might be raised by a justice of the peace, or
by any peace officer, or by any private person who knew of the
commission of the crime.
This ancient obligation of the individual to assist in the
protection of the peace and good order of his community is still
recognized in all well-organized governments in the "posse
comitatus" (power of the county, poder del condado). (Book 1
Cooley's Blackstone's Commentaries, 343; Book 4, 122.) Under
this power, those persons in the state, county, or town who
were charged with the maintenance of peace and good order
were bound, ex oficio, to pursue and to take all persons who
had violated the law. For that purpose they might command all
the male inhabitants of a certain age to assist them. This power
is called "posse comitatus" (power of the county). This was a
right well recognized at common law. Act No. 1309 is a
5
statutory recognition of such common-law right. Said Act
attempts simply to designate the cases and the method when
and by which the people of the town (pueblo) may be called
upon to render assistance for the protection of the public and
the preservation of peace and order. It is an exercise of the
police power of the state. Is there anything in the organic or
statutory law prohibiting the United States Philippine
Commission from adopting the provisions contained in said Act
No. 1309?
While the statement has its exceptions, we believe, generally
speaking, that the United States Commission, and now the
Philippine Legislature, may legislate and adopt laws upon all
subjects not expressly prohibited by the Organic Law (Act of
congress of July 1, 1902) or expressly reserved to Congress.
Congress did not attempt to say to the Philippine Legislature
what laws it might adopt. Congress contended itself by
expressly indicating what laws the Legislature should not adopt,
with the requirement that all laws adopted should be reported
to it, and with the implied reservation of the right to nullify such
laws as might not meet with its approval.
Considering the Organic Act (Act of Congress of July 1, 1902) as
the real constitution of the United States Government in the
Philippine Islands, and its inhibitions upon the power of the
Legislature, we believe an analogy may be drawn relating to the
difference between the Constitution of the United States and
the constitution of the different States, with reference to what
laws may be adopted by the different States. While the
statement needs much explanation, the general rule is that
Congress has authority to legislate only upon the questions
expressly stated in the Constitution of the United States, while
the state legislature may legislate upon all questions, not
expressly conferred upon Congress, nor prohibited in its
constitution. In other words, an examination of the
Constitution of the United States discloses the subject matter
upon which Congress may legislate, while examination of the
constitutions of the different States must be made for the
purpose of ascertaining upon what subjects the state
legislature can not legislate. Stating the rule in another way —
the Constitution of the United States permits Congress to
legislate upon the following subjects; the constitutions of the
States prohibit the state legislature from legislating upon the
following subjects. Generally, then, the legislature of a State
any adopt laws upon any question not expressly delegated to
Congress by the Constitution of the United States or prohibited
by the constitution of the particular State.
We think that is the rule which should be applied to the
Philippine Legislature. The Philippine Legislature has power to
legislate upon all subjects affecting the people of the Philippine
Islands which has not been delegated to Congress or expressly
prohibited by said Organic Act. (Gaspar vs. Molina, 5 Phil. Rep.,
197; U.S., vs. Bull, 15 Phil. Rep., 7.)
6
The right or power conferred upon the municipalities by Act No.
1309 falls within the police power of the state (U.S .vs. Ling Su
Fan, 10 Phil. Rep., 104.) Police power of the state has been
variously defined. It has been defined as the power of the
government, inherent in every sovereign, and cannot be
limited; (License Cases, 5 How. (U.S.), 483). The power vested
in the legislature to make such laws as they shall judge to be for
the good of the state and its subjects. (Commonwealth vs.
Alger, 7 Cush. (Mass.), 53, 85). The power to govern men and
things, extending to the protection of the lives, limbs, health,
comfort, and quiet of all persons, and the protection of all
property within the state. (Thorpe vs. Rutland, etc., Co., 27 Vt.,
140, 149.) The authority to establish such rules and regulations
for the conduct of all persons as may be conducive to the public
interest. (People vs. Budd., 117 N.Y., 1, 14; U.S., vs. Ling Su Fan,
supra.) Blackstone, in his valuable commentaries on the
common laws, defines police power as "the defenses,
regulations, and domestic order of the country, whereby the
inhabitants of a state, like members of a well-governed family,
are bound to conform their general behaviour to the rules of
propriety, good neighborhood, and good manners, and to be
decent, industrious, and inoffensive in their respective
stations." (4 Blackstone's Co., 162.)
The police power of the state may be said to embrace the whole
system of internal regulation, by which the state seeks not only
to preserve public order and to prevent offenses against the
state, but also to establish, for the intercourse of citizen with
citizen, those rules of good manners and good neighborhood,
which are calculated to prevent a conflict of rights, and to
insure to each the uninterrupted enjoyment of his own, so far
as is reasonably consistent, with a like enjoyment of the rights
of others. The police power of the state includes not only the
public health and safety, but also the public welfare, protection
against impositions, and generally the public's best best
interest. It so extensive and all pervading, that the courts refuse
to lay down a general rule defining it, but decide each specific
case on its merits. (Harding vs. People, 32 L.R.A., 445.)
The police power of the state has been exercised in controlling
and regulating private business, even to the extent of the
destruction of the property of private persons, when the use of
such property became a nuisance to the public health and
convenience. (Slaughter House Cases, 16 Wal (U.S.), 36
Minnesota vs. Barber, 136 U.S., 313; Powell vs. Pennsylvania,
127 U.S., 678; Walling vs. People, 166 U.S., 446; U.S. vs. Ling Su
Fan, 10 Phil. Rep., 104.)
We are of the opinion, and so hold, that the power exercised
under the provisions of Act No. 1309 falls within the police
power of the state and that the state was fully authorized and
justified in conferring the same upon the municipalities of the
Philippine Islands and that, therefore, the provisions of said Act
are constitutional and not in violation nor in derogation of the
rights of the persons affected thereby.
7
With reference to the first question presented by the appeal,
relating to the sufficiency of the complaint, it will be noted that
Act No. 1309 authorized the municipal governments to
establish ordinances requiring (a) all able bodied male
residents, between the the ages of 18 and 55 [50], and (b) all
householders, under certain conditions, to do certain things.
It will also be noted that the law authorizing the president of
the municipality to call upon persons, imposes certain
conditions as prerequisites: (1) The person called upon to
render such services must be an able-bodied male resident of
the municipality; (2) he must be between the ages of 18 and 55
[50], and (3) certain conditions must exist requiring the services
of such persons.
It will not contended that a nonresident of the municipality
would be liable for his refusal to obey the call of the president;
neither can it be logically contended that one under the age of
18 or over the age of 55 [50] would incur the penalty of the law
by his refusal to obey the command of the president.
Moreover, the persons liable for the service mentioned in the
law cannot be called upon at the mere whim or caprice of the
president. There must be some just and reasonable ground, at
least sufficient in the mind of a reasonable man, before the
president can call upon the the persons for the service
mentioned in the law. The law does not apply to all persons.
The law does not apply to every condition. The law applies to
special persons and special conditions.
A complaint based upon such a law, in order to be free from
objection under a demurrer, must show that the person
charged belongs to the class of persons to which the law is
applicable. For example, under the Opium Law, certain persons
are punishable criminally for having opium in their possession.
All possessors of opium are not liable under the law. A
complaint, therefore, charging a person with the possession of
opium, without alleging that he did not belong to the class
which are permitted to possess it, would be objectionable
under a demurrer, because all persons are not liable. The
complaint must show that the one charged wit the possession
of the opium was not one of the persons who might legally
possess opium. Suppose, for another example, that there was
a law providing that all persons who performed manual labor
on Sunday should be punished, with a provision that if such
labor should be performed out of necessity, the person
performing it would not be liable. In such a case, in the
complaint, in order to show a good cause of action , it would be
necessary to allege that the labor was not performed under
necessity. In other words, the complaint, in order to be free
from objection raised by a demurrer, must show that the
person accused of the crime, in the absence of proof, is
punishable under the law. One who performed labor under
necessity would not be liable. The complaints, in the foregoing
examples, in the absence of an allegation which showed that
the party accused did not belong to the exempted class, would
not be good. In the absence of such negations, the courts would
8

be unable to impose the penalty of the law, because,

perchance, the defendant might belong to the exempt class.
The complaint, in a criminal case, must state every fact
necessary to make out an offense. (U.S. vs. Cook, 17 Wall.
(U.S.), 168.) The complaint must show, on its face that, if the
facts alleged are true, an offense has been committed. It must
state explicitly and directly every fact and circumstance
necessary to constitute an offense. If the statute exempts
certain persons, or classes of persons, from liability, then the
complaint should show that the person charged does not
belong to that class.

Even admitting all of the facts in the complaint in the present

case, the court would be unable to impose the punishment
provided for by law, because it does not show (a) that the
defendant was a male citizen of the municipality; (b) that he
was an able-bodied citizen; (c) that he was not under 18 years
of age nor over 55 [50]; nor (d) that conditions existed which
justified the president of the municipality in calling upon him
for the services mentioned in the law.

For all of the foregoing reasons, the judgment of the lower

court is hereby affirmed, with costs. So ordered.
9
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation
Commissioner; HON. JUAN PONCE ENRILE, in his capacity as
Minister of National Defense; HON. ALFREDO L. JUINIO, in his
capacity as Minister Of Public Works, Transportation and
Communications; and HON: BALTAZAR AQUINO, in his capacity
as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor
General Ruben E. Agpalo and Solicitor Amado D. Aquino for
respondents.
FERNANDO, J.:
The validity of a letter of Instruction 1 providing for an early
seaming device for motor vehicles is assailed in this prohibition
proceeding as being violative of the constitutional guarantee of
due process and, insofar as the rules and regulations for its
implementation are concerned, for transgressing the
fundamental principle of non- delegation of legislative power.
The Letter of Instruction is stigmatized by petitioner who is
possessed of the requisite standing, as being arbitrary and
oppressive. A temporary restraining order as issued and
respondents Romeo F. Edu, Land Transportation Commissioner
Juan Ponce Enrile, Minister of National Defense; Alfredo L.
Juinio, Minister of Public Works, Transportation and
Communications; and Baltazar Aquino, Minister of Public
Highways; were to answer. That they did in a pleading
submitted by Solicitor General Estelito P. Mendoza. 2
Impressed with a highly persuasive quality, it makes devoid
clear that the imputation of a constitutional infirmity is devoid
of justification The Letter of Instruction on is a valid police
power measure. Nor could the implementing rules and
regulations issued by respondent Edu be considered as
10
amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No.
229 of President Marcos, issued on December 2, 1974, reads in
full: "[Whereas], statistics show that one of the major causes of
fatal or serious accidents in land transportation is the presence
of disabled, stalled or parked motor vehicles along streets or
highways without any appropriate early warning device to
signal approaching motorists of their presence; [Whereas], the
hazards posed by such obstructions to traffic have been
recognized by international bodies concerned with traffic
safety, the 1968 Vienna Convention on Road Signs and Signals
and the United Nations Organization (U.N.); [Whereas], the said
Vienna Convention which was ratified by the Philippine
Government under P.D. No. 207, recommended the enactment
of local legislation for the installation of road safety signs and
devices; [Now, therefore, I, Ferdinand E. Marcos], President of
the Philippines, in the interest of safety on all streets and
highways, including expressways or limited access roads, do
hereby direct: 1. That all owners, users or drivers of motor
vehicles shall have at all times in their motor vehicles at least
one (1) pair of early warning device consisting of triangular,
collapsible reflectorized plates in red and yellow colors at least
15 cms. at the base and 40 cms. at the sides. 2. Whenever any
motor vehicle is stalled or disabled or is parked for thirty (30)
minutes or more on any street or highway, including
expressways or limited access roads, the owner, user or driver
thereof shall cause the warning device mentioned herein to be
installed at least four meters away to the front and rear of the
motor vehicle staged, disabled or parked. 3. The Land
Transportation Commissioner shall cause Reflectorized
Triangular Early Warning Devices, as herein described, to be
prepared and issued to registered owners of motor vehicles,
except motorcycles and trailers, charging for each piece not
more than 15 % of the acquisition cost. He shall also
promulgate such rules and regulations as are appropriate to
effectively implement this order. 4. All hereby concerned shall
closely coordinate and take such measures as are necessary or
appropriate to carry into effect then instruction. 3 Thereafter,
on November 15, 1976, it was amended by Letter of Instruction
No. 479 in this wise. "Paragraph 3 of Letter of Instruction No.
229 is hereby amended to read as follows: 3. The Land
transportation Commissioner shall require every motor vehicle
owner to procure from any and present at the registration of
his vehicle, one pair of a reflectorized early warning device, as
d bed of any brand or make chosen by mid motor vehicle . The
Land Transportation Commissioner shall also promulgate such
rule and regulations as are appropriate to effectively
implement this order.'" 4 There was issued accordingly, by
respondent Edu, the implementing rules and regulations on
December 10, 1976. 5 They were not enforced as President
Marcos on January 25, 1977, ordered a six-month period of
suspension insofar as the installation of early warning device as
a pre-registration requirement for motor vehicle was
concerned. 6 Then on June 30, 1978, another Letter of
11
Instruction 7 the lifting of such suspension and directed the
immediate implementation of Letter of Instruction No. 229 as
amended. 8 It was not until August 29, 1978 that respondent
Edu issued Memorandum Circular No. 32, worded thus: "In
pursuance of Letter of Instruction No. 716, dated June 30, 1978,
the implementation of Letter of Instruction No. 229, as
amended by Letter of Instructions No. 479, requiring the use of
Early Warning Devices (EWD) on motor vehicle, the following
rules and regulations are hereby issued: 1. LTC Administrative
Order No. 1, dated December 10, 1976; shall now be
implemented provided that the device may come from
whatever source and that it shall have substantially complied
with the EWD specifications contained in Section 2 of said
administrative order; 2. In order to insure that every motor
vehicle , except motorcycles, is equipped with the device, a pair
of serially numbered stickers, to be issued free of charge by this
Commission, shall be attached to each EWD. The EWD. serial
number shall be indicated on the registration certificate and
official receipt of payment of current registration fees of the
motor vehicle concerned. All Orders, Circulars, and
Memoranda in conflict herewith are hereby superseded, This
Order shall take effect immediately. 9 It was for immediate
implementation by respondent Alfredo L. Juinio, as Minister of
Public Works, transportation, and Communications. 10
Petitioner, after setting forth that he "is the owner of a
Volkswagen Beetle Car, Model 13035, already properly
equipped when it came out from the assembly lines with
blinking lights fore and aft, which could very well serve as an
early warning device in case of the emergencies mentioned in
Letter of Instructions No. 229, as amended, as well as the
implementing rules and regulations in Administrative Order No.
1 issued by the land transportation Commission," 11 alleged
that said Letter of Instruction No. 229, as amended, "clearly
violates the provisions and delegation of police power, [sic] * *
*: " For him they are "oppressive, unreasonable, arbitrary,
confiscatory, nay unconstitutional and contrary to the precepts
of our compassionate New Society." 12 He contended that they
are "infected with arbitrariness because it is harsh, cruel and
unconscionable to the motoring public;" 13 are "one-sided,
onerous and patently illegal and immoral because [they] will
make manufacturers and dealers instant millionaires at the
expense of car owners who are compelled to buy a set of the
so-called early warning device at the rate of P 56.00 to P72.00
per set." 14 are unlawful and unconstitutional and contrary to
the precepts of a compassionate New Society [as being]
compulsory and confiscatory on the part of the motorists who
could very well provide a practical alternative road safety
device, or a better substitute to the specified set of EWD's." 15
He therefore prayed for a judgment both the assailed Letters of
Instructions and Memorandum Circular void and
unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on
October 19, 1978: "L-49112 (Leovillo C. Agustin v. Hon. Romeo
F. Edu, etc., et al.) — Considering the allegations contained, the
12
issues raised and the arguments adduced in the petition for
prohibition with writ of p prohibitory and/or mandatory
injunction, the Court Resolved to (require) the respondents to
file an answer thereto within ton (10) days from notice and not
to move to dismiss the petition. The Court further Resolved to
[issue] a [temporary restraining order] effective as of this date
and continuing until otherwise ordered by this Court.16
Two motions for extension were filed by the Office of the
Solicitor General and granted. Then on November 15, 1978, he
Answer for respondents was submitted. After admitting the
factual allegations and stating that they lacked knowledge or
information sufficient to form a belief as to petitioner owning a
Volkswagen Beetle car," they "specifically deny the allegations
and stating they lacked knowledge or information sufficient to
form a belief as to petitioner owning a Volkswagen Beetle Car,
17 they specifically deny the allegations in paragraphs X and XI
(including its subparagraphs 1, 2, 3, 4) of Petition to the effect
that Letter of Instruction No. 229 as amended by Letters of
Instructions Nos. 479 and 716 as well as Land transportation
Commission Administrative Order No. 1 and its Memorandum
Circular No. 32 violates the constitutional provisions on due
process of law, equal protection of law and undue delegation
of police power, and that the same are likewise oppressive,
arbitrary, confiscatory, one-sided, onerous, immoral
unreasonable and illegal the truth being that said allegations
are without legal and factual basis and for the reasons alleged
in the Special and Affirmative Defenses of this Answer."18
Unlike petitioner who contented himself with a rhetorical
recital of his litany of grievances and merely invoked the
sacramental phrases of constitutional litigation, the Answer, in
demonstrating that the assailed Letter of Instruction was a valid
exercise of the police power and implementing rules and
regulations of respondent Edu not susceptible to the charge
that there was unlawful delegation of legislative power, there
was in the portion captioned Special and Affirmative Defenses,
a citation of what respondents believed to be the authoritative
decisions of this Tribunal calling for application. They are
Calalang v. Williams, 19 Morfe v. Mutuc, 20 and Edu v. Ericta.
21 Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs,
and signals, of which the Philippines was a signatory and which
was duly ratified. 22 Solicitor General Mendoza took pains to
refute in detail, in language calm and dispassionate, the
vigorous, at times intemperate, accusation of petitioner that
the assailed Letter of Instruction and the implementing rules
and regulations cannot survive the test of rigorous scrutiny. To
repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision,
the issues being clearly joined. As noted at the outset, it is far
from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the
exercise of the police power. That is conceded by petitioner and
is the main reliance of respondents. It is the submission of the
13
former, however, that while embraced in such a category, it has
offended against the due process and equal protection
safeguards of the Constitution, although the latter point was
mentioned only in passing. The broad and expansive scope of
the police power which was originally Identified by Chief Justice
Taney of the American Supreme Court in an 1847 decision as
"nothing more or less than the powers of government inherent
in every sovereignty" 23 was stressed in the aforementioned
case of Edu v. Ericta thus: "Justice Laurel, in the first leading
decision after the Constitution came into force, Calalang v.
Williams, Identified police power with state authority to enact
legislation that may interfere with personal liberty or property
in order to promote the general welfare. Persons and property
could thus 'be subjected to all kinds of restraints and burdens
in order to we the general comfort, health and prosperity of the
state.' Shortly after independence in 1948, Primicias v. Fugoso
reiterated the doctrine, such a competence being referred to as
'the power to prescribe regulations to promote the health,
morals, peace, education, good order or safety, and general
welfare of the people. The concept was set forth in negative
terms by Justice Malcolm in a pre-Commonwealth decision as
'that inherent and plenary power in the State which enables it
to prohibit all things hurtful to the comfort, safety and welfare
of society. In that sense it could be hardly distinguishable as
noted by this Court in Morfe v. Mutuc with the totality of
legislative power. It is in the above sense the greatest and most
powerful at. tribute of government. It is, to quote Justice
Malcolm anew, 'the most essential, insistent, and at least table
powers, I extending as Justice Holmes aptly pointed out 'to all
the great public needs.' Its scope, ever-expanding to meet the
exigencies of the times, even to anticipate the future where it
could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuring
the greatest benefits. In the language of Justice Cardozo:
'Needs that were narrow or parochial in the past may be
interwoven in the present with the well-being of the nation.
What is critical or urgent changes with the time.' The police
power is thus a dynamic agency, suitably vague and far from
precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government
limitations to safeguard constitutional rights did not intend
thereby to enable an individual citizen or a group of citizens to
obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order,
and welfare." 24
2. It was thus a heavy burden to be shouldered by petitioner,
compounded by the fact that the particular police power
measure challenged was clearly intended to promote public
safety. It would be a rare occurrence indeed for this Court to
invalidate a legislative or executive act of that character. None
has been called to our attention, an indication of its being non-
existent. The latest decision in point, Edu v. Ericta, sustained
the validity of the Reflector Law, 25 an enactment conceived
with the same end in view. Calalang v. Williams found nothing
objectionable in a statute, the purpose of which was: "To
14
promote safe transit upon, and. avoid obstruction on roads and
streets designated as national roads * * *. 26 As a matter of
fact, the first law sought to be nullified after the effectivity of
the 1935 Constitution, the National Defense Act, 27 with
petitioner failing in his quest, was likewise prompted by the
imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of
Instruction and the implementing rules and regulations
becomes even more apparent considering his failure to lay the
necessary factual foundation to rebut the presumption of
validity. So it was held in Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila. 28 The
rationale was clearly set forth in an excerpt from a decision of
Justice Branders of the American Supreme Court, quoted in the
opinion: "The statute here questioned deals with a subject
clearly within the scope of the police power. We are asked to
declare it void on the ground that the specific method of
regulation prescribed is unreasonable and hence deprives the
plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this
character, the presumption of constitutionality must prevail in
the absence of some factual foundation of record in
overthrowing the statute. 29
4. Nor did the Solicitor General as he very well could, rely solely
on such rebutted presumption of validity. As was pointed out
in his Answer "The President certainly had in his possession the
necessary statistical information and data at the time he issued
said letter of instructions, and such factual foundation cannot
be defeated by petitioner's naked assertion that early warning
devices 'are not too vital to the prevention of nighttime
vehicular accidents' because allegedly only 390 or 1.5 per cent
of the supposed 26,000 motor vehicle accidents that in 1976
involved rear-end collisions (p. 12 of petition). Petitioner's
statistics is not backed up by demonstrable data on record. As
aptly stated by this Honorable Court: Further: "It admits of no
doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the
statute or ordinance is void on its face, which is not the case
here"' * * *. But even as g the verity of petitioner's statistics, is
that not reason enough to require the installation of early
warning devices to prevent another 390 rear-end collisions that
could mean the death of 390 or more Filipinos and the deaths
that could likewise result from head-on or frontal collisions
with stalled vehicles?" 30 It is quite manifest then that the
issuance of such Letter of Instruction is encased in the armor of
prior, careful study by the Executive Department. To set it aside
for alleged repugnancy to the due process clause is to give
sanction to conjectural claims that exceeded even the broadest
permissible limits of a pleader's well known penchant for
exaggeration.
5. The rather wild and fantastic nature of the charge of
oppressiveness of this Letter of Instruction was exposed in the
Answer of the Solicitor General thus: "Such early warning
15
device requirement is not an expensive redundancy, nor
oppressive, for car owners whose cars are already equipped
with 1) blinking lights in the fore and aft of said motor vehicles,'
2) "battery-powered blinking lights inside motor vehicles," 3)
"built-in reflectorized tapes on front and rear bumpers of
motor vehicles," or 4) "well-lighted two (2) petroleum lamps
(the Kinke) * * * because: Being universal among the signatory
countries to the said 1968 Vienna Conventions, and visible even
under adverse conditions at a distance of at least 400 meters,
any motorist from this country or from any part of the world,
who sees a reflectorized rectangular early seaming device
installed on the roads, highways or expressways, will conclude,
without thinking, that somewhere along the travelled portion
of that road, highway, or expressway, there is a motor vehicle
which is stationary, stalled or disabled which obstructs or
endangers passing traffic. On the other hand, a motorist who
sees any of the aforementioned other built in warning devices
or the petroleum lamps will not immediately get adequate
advance warning because he will still think what that blinking
light is all about. Is it an emergency vehicle? Is it a law
enforcement car? Is it an ambulance? Such confusion or
uncertainty in the mind of the motorist will thus increase,
rather than decrease, the danger of collision. 31
6. Nor did the other extravagant assertions of constitutional
deficiency go unrefuted in the Answer of the Solicitor General
"There is nothing in the questioned Letter of Instruction No.
229, as amended, or in Administrative Order No. 1, which
requires or compels motor vehicle owners to purchase the early
warning device prescribed thereby. All that is required is for
motor vehicle owners concerned like petitioner, to equip their
motor vehicles with a pair of this early warning device in
question, procuring or obtaining the same from whatever
source. In fact, with a little of industry and practical ingenuity,
motor vehicle owners can even personally make or produce this
early warning device so long as the same substantially conforms
with the specifications laid down in said letter of instruction
and administrative order. Accordingly the early warning device
requirement can neither be oppressive, onerous, immoral, nor
confiscatory, much less does it make manufacturers and
dealers of said devices 'instant millionaires at the expense of
car owners' as petitioner so sweepingly concludes * * *.
Petitioner's fear that with the early warning device
requirement 'a more subtle racket may be committed by those
called upon to enforce it * * * is an unfounded speculation.
Besides, that unscrupulous officials may try to enforce said
requirement in an unreasonable manner or to an unreasonable
degree, does not render the same illegal or immoral where, as
in the instant case, the challenged Letter of Instruction No. 229
and implementing order disclose none of the constitutional
defects alleged against it.32
7 It does appear clearly that petitioner's objection to this Letter
of Instruction is not premised on lack of power, the justification
for a finding of unconstitutionality, but on the pessimistic, not
to say negative, view he entertains as to its wisdom. That
16
approach, it put it at its mildest, is distinguished, if that is the
appropriate word, by its unorthodoxy. It bears repeating "that
this Court, in the language of Justice Laurel, 'does not pass upon
questions of wisdom justice or expediency of legislation.' As
expressed by Justice Tuason: 'It is not the province of the courts
to supervise legislation and keep it within the bounds of
propriety and common sense. That is primarily and exclusively
a legislative concern.' There can be no possible objection then
to the observation of Justice Montemayor. 'As long as laws do
not violate any Constitutional provision, the Courts merely
interpret and apply them regardless of whether or not they are
wise or salutary. For they, according to Justice Labrador, 'are
not supposed to override legitimate policy and * * * never
inquire into the wisdom of the law.' It is thus settled, to
paraphrase Chief Justice Concepcion in Gonzales v. Commission
on Elections, that only congressional power or competence, not
the wisdom of the action taken, may be the basis for declaring
a statute invalid. This is as it ought to be. The principle of
separation of powers has in the main wisely allocated the
respective authority of each department and confined its
jurisdiction to such a sphere. There would then be intrusion not
allowable under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of law, as
there ought to be, the last offender should be courts of justice,
to which rightly litigants submit their controversy precisely to
maintain unimpaired the supremacy of legal norms and
prescriptions. The attack on the validity of the challenged
provision likewise insofar as there may be objections, even if
valid and cogent on is wisdom cannot be sustained. 33
8. The alleged infringement of the fundamental principle of
non-delegation of legislative power is equally without any
support well-settled legal doctrines. Had petitioner taken the
trouble to acquaint himself with authoritative pronouncements
from this Tribunal, he would not have the temerity to make
such an assertion. An exempt from the aforecited decision of
Edu v. Ericta sheds light on the matter: "To avoid the taint of
unlawful delegation, there must be a standard, which implies
at the very least that the legislature itself determines matters
of principle and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to repel A standard
thus defines legislative policy, marks its maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. It is the criterion by which legislative purpose may be
carried out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations. The standard
may be either express or implied. If the former, the non-
delegation objection is easily met. The standard though does
not have to be spelled out specifically. It could be implied from
the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety.
What is sought to be attained as in Calalang v. Williams is "safe
transit upon the roads.' This is to adhere to the recognition
17
given expression by Justice Laurel in a decision announced not
too long after the Constitution came into force and effect that
the principle of non-delegation "has been made to adapt itself
to the complexities of modern governments, giving rise to the
adoption, within certain limits, of the principle of "subordinate
legislation" not only in the United States and England but in
practically all modern governments.' He continued:
'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and
the increased difficulty of administering the laws, there is a
constantly growing tendency toward the delegation of greater
powers by the legislature and toward the approval of the
practice by the courts.' Consistency with the conceptual
approach requires the reminder that what is delegated is
authority non-legislative in character, the completeness of the
statute when it leaves the hands of Congress being assumed."
34
9. The conclusion reached by this Court that this petition must
be dismissed is reinforced by this consideration. The petition
itself quoted these two whereas clauses of the assailed Letter
of Instruction: "[Whereas], the hazards posed by such
obstructions to traffic have been recognized by international
bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations
Organization (U.N.); [Whereas], the said Vionna Convention,
which was ratified by the Philippine Government under P.D. No.
207, recommended the enactment of local legislation for the
installation of road safety signs and devices; * * * " 35 It cannot
be disputed then that this Declaration of Principle found in the
Constitution possesses relevance: "The Philippines * * * adopts
the generally accepted principles of international law as part of
the law of the land * * *." 36 The 1968 Vienna Convention on
Road Signs and Signals is impressed with such a character. It is
not for this country to repudiate a commitment to which it had
pledged its word. The concept of Pacta sunt servanda stands in
the way of such an attitude, which is, moreover, at war with the
principle of international morality.
10. That is about all that needs be said. The rather court
reference to equal protection did not even elicit any attempt
on the Part of Petitioner to substantiate in a manner clear,
positive, and categorical why such a casual observation should
be taken seriously. In no case is there a more appropriate
occasion for insistence on what was referred to as "the general
rule" in Santiago v. Far Eastern Broadcasting Co., 37 namely,
"that the constitutionality of a law wig not be considered unless
the point is specially pleaded, insisted upon, and adequately
argued." 38 "Equal protection" is not a talismanic formula at
the mere invocation of which a party to a lawsuit can rightfully
expect that success will crown his efforts. The law is anything
but that.
WHEREFORE, this petition is dismissed. The restraining order is
lifted. This decision is immediately executory. No costs.
18

G.R. No. L-9651 August 4, 1915

THE UNITED STATES, Plaintiff-Appellee, vs. DOMINADOR

GOMEZ JESUS, Defendant-Appellant.

Recarado Ma. Calvo for appellant.

Office of the Solicitor-General Corpus for appellee.

JOHNSON, J.:

On the 17th day of July, 1913, C.A. Sobral, assistant prosecuting

attorney of the city of Manila, presented a complaint in the
Court of First Instance of said city, charging the defendant with
the crime of practicing medicine without a license, in violation
of section 8 of Act No. 310 of the Philippine Commission. The
complaint alleged:

That in, during, and between the months of January, 1911 and
June, 1913, in the city of Manila, Philippine Islands, the said
Dominador Gomez Jesus having been suspended from the
practice of medicine on or about August 28, 1909, by the Board
of Medical Examiners, in accordance with the provisions of
section 8 of said Act No. 310, and while his license as a physician
and surgeon was revoked by the said Board of Medical
19
Examiners, did then and there willfully, unlawfully, and
feloniously treat, operate upon, prescribe, and advise for the
physical ailments of one Margarita Dolores and other persons,
for a fee, and presented himself by means of signs, cards,
advertisements, and otherwise as a physician and surgeon, duly
admitted, empowered, and allowed to practice medicine, in the
city of Manila, Philippine Islands, when in truth and in fact as
the said Dominador Gomez Jesus well knew, he was not
allowed to practice medicine in any way in the city of Manila,
or anywhere in the Philippine Islands, for a fee, and when, as
he well knew, the rendering of medical and surgical services by
him to the said Margarita Dolores and other persons in the city
of Manila was for a fee, and not in a case of emergency, or in
the administration of family remedies, or through a call in
consultation with other duly admitted physicians or surgeons."
On the 22nd day of July, 1913, the defendant appeared and
demurred to the complaint, upon the following grounds: (1)
That the complaint was not in the form required by law; (2) that
the facts in said complaint did not constitute a crime; (3) that
the complaint itself contains allegations which in truth would
constitute a justification or legal exemption for the
accused."chanrobles virtual law library
After hearing the arguments for the defense and the
prosecution on said demurrer, the Honorable Jose C. Abreu, in
very interesting opinion in which he discusses fully said
demurrer, reached the conclusion that the complaint was
sufficient, and overruled said
demurrer.chanroblesvirtualawlibrary chanrobles virtual law
library
On the 26th day of August, 1913, the defendant was duly
arraigned and pleaded not guilty. The cause was brought on for
trial before the Honorable George N. Hurd, on the 9th of
September, 1913.chanroblesvirtualawlibrary chanrobles virtual
law library
After hearing the evidence, the said judge, in a very interesting
and well-reasoned opinion, found the defendant guilty as
charged in the complaint, and sentenced him to pay a fine of
P200, with subsidiary imprisonment in case of failure to pay the
same or any part thereof, and to pay the costs. From that
sentence the defendant appealed to this court and made the
following assignments of error:
I. The court erred in declaring that the provisions of section 8 of
Act No. 310 are not in conflict with the provisions of the
Philippine Bill enacted by the Congress of the United States on
July 1, 1902.chanroblesvirtualawlibrary chanrobles virtual law
library
II. The court likewise erred in declaring to be valid and effective
that portion of section 8 of Act No. 310 which empowers the
Board of Medical Examiners to revoke the certificate of a
physician who may have been convicted of any offense
20

involving immoral or dishonorable conduct or for The facts disclosed by the record are as follows:chanrobles
unprofessional conduct.chanroblesvirtualawlibrary chanrobles virtual law library
virtual law library
1. That some time prior to the 28th day of August, 1909, the
III. The court likewise erred in considering to be final the defendant had been admitted, or had been licensed to
decision of the Board of Medical Examiners revoking the practiced medicine in the Philippine
certificate of the herein defendant, notwithstanding the appeal Islands.chanroblesvirtualawlibrary chanrobles virtual law
carried to the Board of Health and not yet heard and finally library
decided thereby as section 8 of Act No. 310
provides.chanroblesvirtualawlibrary chanrobles virtual law 2. That some time prior to the said 28th day of August, 1909,
library the defendant had been accused, arrested, tried, and found
guilty of a violation of the Opium
IV. The court also erred in sustaining the objection of the Law.chanroblesvirtualawlibrary chanrobles virtual law library
prosecution to the evidence adduced by the defense tending to
demonstrate that the defendant's certificate as doctor of 3. That in the month of August, 1909, the defendant was cited
medicine represents a value greater than to appear before the "Board of Medical Examiners for the
P600.chanroblesvirtualawlibrary chanrobles virtual law library Philippine Islands," to show cause why his license to practice
medicine should not be revoked, in accordance with the
V. The court likewise erred in holding that the "Hotel provisions of section 8 of Act No.
Quirurgico" is Doctor Gomez himself and that such institution 310.chanroblesvirtualawlibrary chanrobles virtual law library
exists only to cloak the violation of the law by the
defendant.chanroblesvirtualawlibrary chanrobles virtual law 4. That on the date set, the Board proceeded to make an
library investigation of the question of the revocation of the license of
the defendant to practice medicine, based upon the fact that
VI. The court erred, finally, in sentencing the defendant to pay he had been theretofore convicted of an "offense involving
a fine of P200 or, in default thereof, to suffer subsidiary immoral or dishonorable conduct."chanrobles virtual law
imprisonment and to pay the costs of the trial. library
21
5. That after the conclusion of said investigation, the Board
reached the conclusion (a) that the defendant had been guilty
of an "offensive involving immoral or dishonorable conduct;"
and (b) adopted a resolution revoking his license to practice
medicine.chanroblesvirtualawlibrary chanrobles virtual law
library
6. That the defendant was duly notified of the action of said
Board.chanroblesvirtualawlibrary chanrobles virtual law library
7. That later the defendant appealed to the Director of Health,
which appeal was finally withdrawn by
him.chanroblesvirtualawlibrary chanrobles virtual law library
8. That later, and after the license of the defendant to practice
medicine had been revoked, he did practice medicine in the
Philippine Islands by treating, operating upon, prescribing he
charged a fee, and that said treating, operating, and prescribing
medicine for said various persons were not in cases of
emergency, or in the administration of family
remedies.chanroblesvirtualawlibrary chanrobles virtual law
library
9. That the defendant is not a medical officer of the United
States Army, the United States Navy, the United States Marine
Hospital Service, nor a physician or surgeon from other
countries called in consultation, nor a medical student,
practicing medicine under the direct supervision of a preceptor
who is a registered doctor of
medicine.chanroblesvirtualawlibrary chanrobles virtual law
library
Upon the foregoing facts, the lower court imposed the fine
indicated above.chanroblesvirtualawlibrary chanrobles virtual
law library
The appellant, in support of his first assignment of error, argues
that section 8 of said Act No. 310 is in conflict with the
provisions of the Philippine Bill (Act of Congress of July 1, 1902),
and is, therefore, void. Act No. 310, among other things,
provides:chanrobles virtual law library
1. (a) For the creation of "A Board of Medical Examiners for the
Philippine Islands." (b) That said Board shall examine
candidates desiring to practice medicine in the Philippine
Islands, and to issue a certificate of registration to such persons
who are found to be qualified, in accordance with the
provisions of said law, to practice medicine,
etc.chanroblesvirtualawlibrary chanrobles virtual law library
2. That after the 1st of March, 1902, it shall be unlawful for any
person to practice medicine, surgery, etc., in any of its branches
in the Philippine Islands, unless he hold such certificate of
registration.chanroblesvirtualawlibrary chanrobles virtual law
library
22
3. That said Board of Medical Examiners may refuse to issue
such certificate of registration to any individual convicted by a
court of competent jurisdiction of any offense involving
immoral or dishonorable conduct.chanroblesvirtualawlibrary
chanrobles virtual law library
4. That said Board might revoke any certificate of registration
theretofore granted to any person in case he should be
convicted of any offense involving immoral or dishonorable
conduct, or for unprofessional
conduct.chanroblesvirtualawlibrary chanrobles virtual law
library
5. That any person shall be regarded as practicing medicine,
who shall treat, operate upon, prescribe, or advise for any
physical ailment of another for a fee, or who shall represent
himself, by means of signs, cards, advertisements, or
otherwise, as a physician or
surgeon.chanroblesvirtualawlibrary chanrobles virtual law
library
6. That said law did not apply to the rendering of services in
case of emergency or the administration of family remedies, or
to medical officers of the United States Army, of the United
States Navy, or of the United States Marine Hospital Service, or
to a physician or surgeon of other countries called in
consultation, or to a medical student, practicing under the
supervision of a preceptor who is a registered doctor of
medicine.chanroblesvirtualawlibrary chanrobles virtual law
library
It is the power of the Board of Medical Examiners to revoke a
license, once granted, to which the appellant especially directs
his argument, in support of his contention that said Act is in
conflict with the said Act of
Congress.chanroblesvirtualawlibrary chanrobles virtual law
library
Section 8 of Act No. 310 provides: "The Board of Medical
Examiners may refuse to issue any of the certificates provided
for therein [in this Act] to an individual convicted by a court of
competent jurisdiction of any offense involving immoral or
dishonorable conduct. In case of such refusal, the reason
therefor shall be stated to the applicant in writing. The Board
may also revoke any such certificate for like cause, or for
unprofessional conduct, after due notice to the person holding
the certificate, and a hearing, subject to an appeal to the Board
of Health for the Philippine Islands, the decision of which shall
be final."chanrobles virtual law library
That part of the Act of Congress upon which the appellant relies
to show that Act No. 310 is void is paragraph 1 of section 5. Said
paragraph reads as follows: "That no law shall be enacted in
said Islands which shall deprive any person of life, liberty, or
property without due process of law, or deny to any person
23
therein the equal protection of the laws."chanrobles virtual law
library
The appellants gives three reasons why section 8 of Act No. 310
is void. They are: (a) That the provisions of section 8 of Act No.
310 deprive the herein defendant of his rights or property
without due process of law. (b) That the power to revoke the
certificate of a doctor of medicine resides solely in the Courts
of First Instance and the Supreme Court of the Philippine
Islands. (c) That the power granted to the Board of Medical
Examiners to revoke the certificate of a physician has been
repealed by section 88 of the Philippine
Bill.chanroblesvirtualawlibrary chanrobles virtual law library
While the assignments of error present various questions, the
real questions presented are three:chanrobles virtual law
library
1. The right of the state to require of those who desire to
practice medicine and surgery, etc., certain standards of
morality and general and special scholarship, as a prerequisite
said professions.chanroblesvirtualawlibrary chanrobles virtual
law library
2. The right of the state to revoke such a license, once granted;
andchanrobles virtual law library
3. The right of the state to punish, by fine or imprisonment, or
both, those attempt to practice the professions of medicine,
surgery, etc., without a license, and in violation of the
law.chanroblesvirtualawlibrary chanrobles virtual law library
The appellant argues, in support of his right assignment of
error:chanrobles virtual law library
1. That section 8 of Act No. 310 is null and void because it
deprives him of a right or of property, without due process of
law;chanrobles virtual law library
2. That the Board of Medical Examiners had no authority or
right to revoke his license; that right, if any exists of all, belongs
to the courts, andchanrobles virtual law library
3. That said section 8 has been repealed by section 88 of the
Act of Congress of July 1, 1902 (The Philippine
Bill).chanroblesvirtualawlibrary chanrobles virtual law library
Generally speaking, with reference to the general and inherent
power of the state, we think the following propositions are so
well established that they no longer admit of dispute or
discussion:chanrobles virtual law library
1. The state has general power to enact such laws, in relation
to persons and property within its borders, as may promote
public health, public morals, public safety, and the general
24
prosperity and welfare of its inhabitants. (New York City vs.
Miln, 11 Pet. (U.S.), 102, 139; Passenger Cases, 7 How. (U.S.),
283, 423; Slaughterhouse House Cases, 16 Wall., 36, 62; Beer
Co. vs. Mass., 97 U.S., 25; Mugler vs. Kansas, 123 U.S., 623; Dent
vs. W. Virginia, 129 U.S., 114 (25 W. Va., 1); Hawker vs. N.Y., 170
U.S., 189; Case vs. .Board of Health, 24 Phil. Rep.,
250.)chanrobles virtual law library
2. To make reasonable provision for determining the
qualifications of those engaging in the practice of medicine and
surgery, and punishing those who attempt to engage therein in
defiance of such provisions. (Dent vs. W. Virginia, 129 U.S., 114
(25 W. Va., 1); Hawker vs. N.Y., 170 U.S., 189; Reetz vs.
Michigan, 188 U.S., 505; State vs. Webster, 150 Ind.,
607.)chanrobles virtual law library
This power of the state is generally denominated the police
power. It has been held that the state cannot be deprived of its
right to exercise this power. The police power and the right to
exercise its constitute the very foundation, or at least one of
the corner stones, of the state. For the state to deprive itself or
permit itself to be deprived of the right to enact laws to
promote the general prosperity and welfare of its inhabitants,
and promote public health, public morals, and public safety,
would be to destroy the very purpose and objects of the state.
No legislature can bargain away the public health, public safety,
or the public morals. The people themselves cannot do it, much
less their servants. Governments are organized with a view to
the preservation of these things. They cannot deprive
themselves of the power to provide for them. (Stone vs.
Mississippi, 101 U.S., 814, 816.)chanrobles virtual law library
It has been held that a constitutional prohibition upon State
laws impairing the obligation of contracts does not restrict the
power of the State to protect the public health, public morals,
or public safety, as the one or the other may be involved in the
execution of such contracts. Rights and privileges arising from
contracts with a State are subject to regulations for the
protection of the public health, the public morals, and the
public safety, in the same sense and to the same extent as are
all contracts and all property, whether owned by natural
persons or corporations. (New Orleans Gas Light Co. Louisiana
Light Co., 115 U.S., 650, 672.)chanrobles virtual law library
In order to enforce the police power of the state, it may, under
certain conditions, become necessary to deprive its citizens of
property and of a right providing for the continuance of
property, when the property or the exercise of the right may
tend to destroy the public health, the public morals, the public
safety, and the general welfare and prosperity of its
inhabitants. For example, a tannery, a slaughterhouse, or a
fertilizing establishment may be located in such proximity to
the residence portion of a city as to become a menace to the
public health and the welfare of the inhabitants. In such a case
the discontinuance or the removal of such institutions may be
ordered, under the police power of the state, even though it
25
amounts to depriving persons of their private property.
(Slaughter House Cases, 16 Wal., 36, 62; Fertilizing co. vs. Hyde
Park, 97 U.S., 659.)chanrobles virtual law library
Mr. Chancellor Kent, in his valuable commentaries, in
discussing the police power (2 Kent's Commentaries, 340) says:
"Unwholesome trades, slaughterhouses, operations offensive
to the senses, the deposit of powder, the application of steam
power to the propelling of cars, the building with combustible
materials, and the burial of the dead may all be interdicted by
law, in the midst of dense masses of population, on the general
and rational principle that every person ought so to use his
property as not to injure his neighbors, and that private
interests must be made subservient to the general interest of
the community."chanrobles virtual law library
This power is called the police power of the state.
(Commonwealth vs. Alger, 7 Cush. (Mass.), 53, 84.) The police
power is so extensive and so comprehensive that the courts
have refused to give it an exact definition; neither have they
attempted to define its limitations. Upon the police power of
the state depends the security of social order, the life and
health of the citizens, the comfort of an existence in a thickly
populated community, the enjoyment of private and social life,
and the beneficial use of property. It extends to the protection
of the lives, limbs, health, comfort, and quiet of all persons and
the protection of all property within the state. Persons and
property are subjected to all kinds of restraints and burdens, in
order to secure the general comfort, health, and prosperity of
the state. (Thorpe vs. Rutland & B.R. Co., 27 Vt., 140, 149; New
York City vs. Miln, 11 Pet. (U.S.), 102; Slaughter House Cases,
16, Wall., 36, 62.)chanrobles virtual law library
Neither will it be denied that the owner of a building, which, by
reason of its decayed condition, becomes a menace to public
safety, may be ordered to destroy the same, and thus be
deprived of his property. He may be ordered to repair or
destroy it. Private property, under the police power, may be
destroyed to prevent the spread of a conflagration in order to
save lives and property. The existence of bawdy houses which
tends to greatly affect the morals of the people of a community
may be destroyed or may be removed. A manufacturing plant,
so located in a thickly settled community as to greatly disturb
the peace and comfort of the inhabitants, may be ordered
closed or removed. The state, under its police power, may
regulate or prohibit the manufacture and sale of intoxicating
liquors as a beverage within its borders. Such a law may destroy
the established business of thousands of its inhabitants.
(Mugler vs. Kansas, 123 U.S., 623; License Cases, 5 How., 504.)
If any state deems that the retailing or trafficking in ardent
spirits is injurious to its citizens and calculated to produce
idleness, vice, or debauchery, there is nothing in the
Constitution of the United States to prevent it from regulating
and restricting such traffic, or from prohibiting it altogether, if
it think proper. The state may even declare that buildings
where intoxicating liquors are distilled or sold shall be a
26
nuisance and ordered destroyed. (Mugler vs. Kansas, 123 U.S.,
623.) The state may regulate its domestic commerce, contracts,
the transmission of estates, real and personal, and act upon all
internal matters which relate to its moral and political welfare.
Over these subjects federal governments exercise no power.
The acknowledged police power of the state extends even to
the destruction of property. A nuisance may be abated.
Everything prejudicial to the health or morals of a city may be
removed. (Licenses Cases, 5 How., 504; Beer Co. vs. Mass., 97
U.S., 25, 33; Foster vs. Kansas, 112 U.S., 201, 206; Case vs. Board
of Health, 24 Phil. Rep., 250; Mugler vs. Kansas, 123 U.S.,
623.)chanrobles virtual law library
The police power of state extends to the protection of the lives,
limbs, health, comfort, and quiet of all persons, and the
protection of all property within its borders. Under the general
police power of the state, persons and property are subjected
to all kinds of restrictions and burdens in order to secure the
general health, comfort, and prosperity of all. This power, or
the right to exercise it, as need may require, cannot be
bargained away by the state. (Case vs. Board of Health, supra.)
Even liberty itself, the greatest of all rights, is not unrestricted
license to act according to one's own will. It is only freedom
from restraint under conditions essential to the quiet
enjoyment of the same right by others. (Case vs. Board of
Health, supra; Holden vs. Hardy, 169 U.S., 366, 395.)chanrobles
virtual law library
It is as much for the interest of the state that public health
should be preserved as that life should be made secure. With
this end in view, quarantine laws have been enacted in most, if
not all, civilized states. Insane asylums, public hospitals,
institutions for the care and education of the blind have been
established, and special measures taken for the exclusion of
infected cattle, rags, and decayed fruit. States have enacted
laws limiting the hours during which women and children shall
be employed in factories. (Case vs. Board of Health,
supra.)chanrobles virtual law library
The present is not the first case which has been presented to
the courts relating to the right of the state to regulate the
practice of medicine and surgery, and to define the conditions
under which such practice may be continued and to revoke the
license granted to exercise such professions. Legislation or
statutory regulations, similar to the one which we are now
discussing, have been adopted in practically every one of the
States of the Union. The constitutionality of such legislation has
been questioned in practically all of States where such
legislation exists. Such statutes have been uniformly sustained.
(State vs. Webster, 150 Ind., 607, 616; Dent vs. W. Virginia, 25
W .Va., 1 (129 U.S., 114); Ex parte Frazer, 54 Cal., 94; Harding
vs. People, 10 Colo., 387; People vs. Blue Mountain Joe, 129 Ill.,
370; State vs. Mosher, 78 Iowa, 321; Iowa Eclectic Medical
College vs. Schrader, 87 Iowa, 659 (20 L.R.A., 355); Driscoll vs.
Commonwealth, 93 Ky., 393; Hewitt vs. Charier, 16 Pick.
(Mass.), 353; Reetz vs. Michigan, 188 U.S., 505; People vs.
27
Phippin, 70 Mich., 6; State vs. State Medical Examining Board,
32 Minn., 324; State vs. Fleischer, 41 Minn., 69; State vs. District
Court, 13 Mont., 370; Gee Wo vs. State, 36 Neb., 241; State vs.
Van Doran, 109 N.C., 864; State vs. Randolph, 23 Ore.,
74.)chanrobles virtual law library
The constitutionality of similar legislation, regulating the
practice of dentistry, has been presented in many of the States,
and has been sustained. (Wilkins vs. State, 113 Ind., 514; Gosnel
vs. State, 52 Ark., 228; State vs. Vanderluis, 42 Minn., 129; State
vs. Creditor, 44 Kansas, 565.)chanrobles virtual law library
So also have similar statutory regulations been sustained
affecting the practice of pharmacy. (Hildreth vs. Crawford, 65
Iowa, 339; People vs. Moorman, 86 Mich., 433; State vs.
Forcier, 65 N.H., 42.)chanrobles virtual law library
Various States have attempted to regulate by statute the trade
of plumbing, of horseshoeing, as well as that of engineering.
Even the trade of barbering is subject to statutory regulation in
some States, because it has relation to the health of the people.
(Singer vs. State, 72 Md., 464; People vs. Warden, 144 N.Y., 529;
Smith vs. Alabama, 124 U.S., 465.)chanrobles virtual law library
Legislation analogous to that under discussion has also been
adopted in various States relating to the practice of the
profession of law. The constitutionality of such legislation has
been uniformly sustained. (State vs. Gazlay, 5 Ohio, 14;
Goldwaite vs. City Council, 50 Ala., 486; Cohen vs. Wright, 22
Cal., 293; Ex parte Yale, 24 Cal., 241.)chanrobles virtual law
library
In every case where the constitutionality of similar statutes has
been questioned, it has been held that it is within the power of
the legislature to prescribe the qualifications for the practice of
professions or trades which affect the public welfare, the public
health, the public morals, and the public safety, and to regulate
or control such professions or trades, even to the point of
revoking such right altogether.chanroblesvirtualawlibrary
chanrobles virtual law library
The trade of plumbing vitally affects the health of the people.
The lives of thousands of people may depend upon the result
of the work of an engineer. The property and life of citizens of
the state may depend upon the advice of a lawyer, and no
profession or trade is more directly connected with the health
and comfort of the people than that of a physician and surgeon.
The practice of medicine and surgery is a vocation which very
nearly concerns the comfort, health, and life of every person in
the land. Physicians and surgeons have committed to their care
most important interests, and it is of almost imperious
necessity that only persons possessing skill and knowledge shall
be permitted to practice medicine and surgery. For centuries
the law has required physicians to possess and exercise skill and
learning. Courts have not hesitated to punish those who have
caused damages for lack of such skill and learning. The
28
requirement of the Philippine Legislature that those who may
engage in such professions shall be possessed of both
knowledge and skill before entering the same is no new
principle of law. It is an exercise of the right of the state, under
its police power, which has been recognized for centuries. No
one can doubt the great importance to the community that
health, life, and limb should be protected and not be left in the
hands of ignorant pretenders, and that the services of
reputable, skilled and learned men should be secured to
them.chanroblesvirtualawlibrary chanrobles virtual law library
In the case of Dent vs. W. Virginia (129 U.S., 114), the late Mr.
Justice Field, speaking for the court, said: "It is undoubtedly the
right of every citizen [of the United States] to follow any lawful
calling, business, or profession he may choose, subject only to
such restrictions as are imposed upon all persons of like age,
sex and conditions. This right may in many aspects be
considered as a distinguishing feature of our republican
institutions. Here all vocations are open to everyone on like
conditions. All may be pursued as sources of livelihood, some
requiring years of study and great learning for their successful
prosecution. The interest, or, as it is sometimes termed, the
estate acquired in them - that is, the right to continue their
prosecution - is often of great value to the possessors, and
cannot be arbitrarily taken from them, any more than their real
or personal property can be thus taken. But there is no arbitrary
deprivation of such right when its exercise is not permitted
because of a failure to comply with conditions imposed by the
state for the prosecution of society. The power (police power)
of the state to provide for the general welfare of its people
authorizes it to prescribe all such regulations as in its judgment
will secure, or tend to secure, them against the consequences
of ignorance and incapacity as well as of deception and fraud.
As one means to this end, it has been the practice of different
States, from the time immemorial, to exact in many pursuits
(professions or trades) a certain degree of skill and learning
upon which the community may confidently rely, their
possession being generally ascertained upon an examination of
parties by competent persons, or inferred from a certificate to
them in the form of a diploma or license from an institutions
established for instruction on the subjects, scientific and
otherwise, with which such pursuits have to deal. ... Few
professions require more careful preparation by one who seeks
to enter it than that of medicine. It has to deal with all those
subtle and mysterious influences upon which health and life
depend and requires not only a knowledge of the properties of
vegetables and mineral substances, but of the human body in
all its complicated parts and their relation to each other, as well
as their influence upon the mind. The physician must be able to
detect readily the presence of disease, and prescribe
appropriate remedies for its removal. Everyone may have
occasion to consult him, but comparatively few can judge of the
qualifications of learning and skill which he possesses. Reliance
must be placed upon the assurance given by his license, issued
by authority competent to judge in that respect, that he
possesses the requisite qualifications. Due consideration,
29
therefore, for the protection of society may well induce the
state to exclude from practice those who have not such a
license, or who are found, upon examination, not to be fully
qualified. The same reasons which control in imposing
conditions, upon compliance with which the physician is
allowed to practice in the first instance, may call for further
conditions as new modes of treating disease are discovered, or
a more thorough acquaintance is obtained of the remedial
properties of vegetables and mineral substances, or a more
accurate knowledge is acquired of the human system, and of
the agencies by which it is affected. ... We perceive nothing in
the statute which indicates an intentions of the legislature to
deprive one of any of his rights. No one has a right to practice
medicine without having the necessary qualifications of
learning and skill; and the statute only requires that whoever
assumes, by offering to the community his services as a
physician, that he possesses such learning and skill, shall
present evidence of it by a certificate or license from a body
designated by the state as competent to judge of his
qualifications."chanrobles virtual law library
The appellant contends, however, that the Legislature
exceeded its authority in conferring upon the Board of Medical
Examiners the right to revoke his license. He contends that the
right to revoke it rests in the judicial department of the
Government; that the courts only are possessed of the right, if
the right exists, to revoke his license and to deprive him of his
right to practice his profession of medicine and surgery. It will
be remembered that the law conferred upon the Board the
right to grant the certificate, as well sa the right to revoke it,
subject to the right of appeal to the Director of Health. While,
in some respects, the power exercised by the Board is quasi
judicial, the action of the Board is not judicial, any more than
the action of a board appointed to determine the qualifications
of applicants for admission to the bar, nor that of a board
appointed to pass upon the qualifications of applicants to be
admitted to the profession of teaching. In many of the States of
the Union, no one can engage in the trade of barbering, or
horseshoeing, without passing an examination before a board
specially appointed for that purpose. States have deemed it
wiser to place such power and discretion in boards composed
of men especially qualified, by reason of their learning and
scientific knowledge, rather than in the
courts.chanroblesvirtualawlibrary chanrobles virtual law library
It is contended that the law provides no appeal from the
decision of the board to the courts, and is, for that reason, null
and void. A law is not necessarily invalid, if it provides a remedy
for those affected thereby, simply because it does not provides
for an appeal to the courts. Due process of law is not necessarily
judicial process. (Murray's Lessee vs. Hoboken Land etc. Co., 18
How. (U.S.), 372; Davidson vs. New Orleans, 96 U.S., 97; Ex
parte Wall, 107 U.S., 265, 289; Dreyer vs. Illinois, 187 U.S., 71,
83; Reetz vs. Michigan, 188 U.S., 505.) Indeed, it not
infrequently happens that a full discharge of the duties
conferred upon boards and commissions or officers of a purely
30
ministerial character requires them to consider and to finally
determine questions of a purely legal character. The legislature
may confer upon persons, boards, officers, and commissions
the right to finally decide may questions affecting various
interest of the people of the state. If a remedy is granted, the
law will be valid, even though no appeal to the courts is
provided. The right of appeal is a purely statutory right; it is not
an inherent right. The right to appeal was not at common law,
and it is not now, a necessary element of due process of law.
(McKane vs. Durston, 153 U.S., 684, 687; Reetz vs. Michigan,
188 U.S., 505, 508.)chanrobles virtual law library
The objection that the statute confers judicial power upon the
Board of Medical Examiners is not well founded. The law
provided for an appeal to the Director of Health. Many
executive officers, even those who are are regarded as purely
ministerial officers, act judicially in the determination of facts
in the performance of their duties, and in so doing "they do not
exercise judicial power," as that phrase is commonly used, and
as it is used in the Organic Act in conferring judicial power upon
specified courts. The powers conferred upon the Board of
Medical Examiners are in no wise different in character, in this
respect, from those exercised by those of examiners of
candidates to teach in our public schools, or by tax assessors,
or boards of equalization, in the determination for the purposes
of taxation, the value of property. The ascertainment and
determination of the qualifications to practice medicine, by a
board appointed for that purpose, composed of experts, is not
the exercise of a power which appropriately belongs to the
judicial department of the Government. The same is true with
reference to the power conferred upon such a board to revoke
a license, for the reasons given in the law. (People vs.
Hasbrouck, 11 Utah, 291; Reetz vs. Michigan 188 U.S., 505,
507.)chanrobles virtual law library
The appellant further argues and contends that the present law
is repealed by section 88 of the Act of Congress of July 1, 1902.
We think from the foregoing argument we have shown that
there is nothing in said Act of Congress which is inconsistent
with the provisions of Act No. 310, under consideration, and
that it is not repealed.chanroblesvirtualawlibrary chanrobles
virtual law library
What has been said, we think also answers the argument of the
appellant in support of his second, third, and fourth
assignments of error. It may be well, however, to observe in
relation to the third assignment that the appellant cannot
object to the decision of the Board, when he himself, after his
appeal, voluntarily withdrew it.chanroblesvirtualawlibrary
chanrobles virtual law library
With reference to the fifth assignment of error, the record
shows, beyond question, that the appellant had personally
engaged in the practice of medicine and surgery, in clear
contravention of the law, without being authorized so to do. It
is a matter of little importance whether the appellant practiced
31

medicine and surgery as the "Hotel Quirurgico" or not. The

record shows that he personally and illegally engaged in the
practice of medicine. The poor sick patients who called him for
medical assistance certainly did not believe or think that they
were calling the "Hotel Quirurgico." They believed that they
were being treated by the appellant. So
ordered.chanroblesvirtualawlibrary chanrobles virtual law
library

For all of the foregoing reasons the sentence of the lower court
is hereby affirmed, with costs.

G.R. No. L-24693 July 31, 1967

32
ERMITA-MALATE HOTEL AND MOTEL OPERATORS
ASSOCIATION, INC., HOTEL DEL MAR INC. and GO CHIU,
petitioners-appellees,
vs.
THE HONORABLE CITY MAYOR OF MANILA, respondent-
appellant.
VICTOR ALABANZA, intervenor-appellee.
Panganiban, Abad and Associates Law Office for respondent-
appellant.
J. M. Aruego, Tenchavez and Associates for intervenor-
appellee.
FERNANDO, J.:
The principal question in this appeal from a judgment of the
lower court in an action for prohibition is whether Ordinance
No. 4760 of the City of Manila is violative of the due process
clause. The lower court held that it is and adjudged it
"unconstitutional, and, therefore, null and void." For reasons to
be more specifically set forth, such judgment must be reversed,
there being a failure of the requisite showing to sustain an
attack against its validity.
The petition for prohibition against Ordinance No. 4760 was
filed on July 5, 1963 by the petitioners, Ermita-Malate Hotel and
Motel Operators Association, one of its members, Hotel del
Mar Inc., and a certain Go Chiu, who is "the president and
general manager of the second petitioner" against the
respondent Mayor of the City of Manila who was sued in his
capacity as such "charged with the general power and duty to
enforce ordinances of the City of Manila and to give the
necessary orders for the faithful execution and enforcement of
such ordinances." (par. 1). It was alleged that the petitioner
non-stock corporation is dedicated to the promotion and
protection of the interest of its eighteen (18) members
"operating hotels and motels, characterized as legitimate
businesses duly licensed by both national and city authorities,
regularly paying taxes, employing and giving livelihood to not
less than 2,500 person and representing an investment of more
than P3 million."1 (par. 2). It was then alleged that on June 13,
1963, the Municipal Board of the City of Manila enacted
Ordinance No. 4760, approved on June 14, 1963 by the then
Vice-Mayor Herminio Astorga, who was at the time acting as
Mayor of the City of Manila. (par. 3).
After which the alleged grievances against the ordinance were
set forth in detail. There was the assertion of its being beyond
the powers of the Municipal Board of the City of Manila to
enact insofar as it would regulate motels, on the ground that in
the revised charter of the City of Manila or in any other law, no
reference is made to motels; that Section 1 of the challenged
ordinance is unconstitutional and void for being unreasonable
and violative of due process insofar as it would impose
P6,000.00 fee per annum for first class motels and P4,500.00
for second class motels; that the provision in the same section
33
which would require the owner, manager, keeper or duly
authorized representative of a hotel, motel, or lodging house to
refrain from entertaining or accepting any guest or customer or
letting any room or other quarter to any person or persons
without his filling up the prescribed form in a lobby open to
public view at all times and in his presence, wherein the
surname, given name and middle name, the date of birth, the
address, the occupation, the sex, the nationality, the length of
stay and the number of companions in the room, if any, with
the name, relationship, age and sex would be specified, with
data furnished as to his residence certificate as well as his
passport number, if any, coupled with a certification that a
person signing such form has personally filled it up and affixed
his signature in the presence of such owner, manager, keeper
or duly authorized representative, with such registration forms
and records kept and bound together, it also being provided
that the premises and facilities of such hotels, motels and
lodging houses would be open for inspection either by the City
Mayor, or the Chief of Police, or their duly authorized
representatives is unconstitutional and void again on due
process grounds, not only for being arbitrary, unreasonable or
oppressive but also for being vague, indefinite and uncertain,
and likewise for the alleged invasion of the right to privacy and
the guaranty against self-incrimination; that Section 2 of the
challenged ordinance classifying motels into two classes and
requiring the maintenance of certain minimum facilities in first
class motels such as a telephone in each room, a dining room
or, restaurant and laundry similarly offends against the due
process clause for being arbitrary, unreasonable and
oppressive, a conclusion which applies to the portion of the
ordinance requiring second class motels to have a dining room;
that the provision of Section 2 of the challenged ordinance
prohibiting a person less than 18 years old from being accepted
in such hotels, motels, lodging houses, tavern or common inn
unless accompanied by parents or a lawful guardian and
making it unlawful for the owner, manager, keeper or duly
authorized representative of such establishments to lease any
room or portion thereof more than twice every 24 hours, runs
counter to the due process guaranty for lack of certainty and
for its unreasonable, arbitrary and oppressive character; and
that insofar as the penalty provided for in Section 4 of the
challenged ordinance for a subsequent conviction would, cause
the automatic cancellation of the license of the offended party,
in effect causing the destruction of the business and loss of its
investments, there is once again a transgression of the due
process clause.
There was a plea for the issuance of preliminary injunction and
for a final judgment declaring the above ordinance null and void
and unenforceable. The lower court on July 6, 1963 issued a
writ of preliminary injunction ordering respondent Mayor to
refrain from enforcing said Ordinance No. 4760 from and after
July 8, 1963.
In the a answer filed on August 3, 1963, there was an admission
of the personal circumstances regarding the respondent Mayor
34
and of the fact that petitioners are licensed to engage in the
hotel or motel business in the City of Manila, of the provisions
of the cited Ordinance but a denial of its alleged nullity,
whether on statutory or constitutional grounds. After setting
forth that the petition did fail to state a cause of action and that
the challenged ordinance bears a reasonable relation, to a
proper purpose, which is to curb immorality, a valid and proper
exercise of the police power and that only the guests or
customers not before the court could complain of the alleged
invasion of the right to privacy and the guaranty against self
incrimination, with the assertion that the issuance of the
preliminary injunction ex parte was contrary to law, respondent
Mayor prayed for, its dissolution and the dismissal of the
petition.
Instead of evidence being offered by both parties, there was
submitted a stipulation of facts dated September 28, 1964,
which reads:
1. That the petitioners Ermita-Malate Hotel and Motel
Operators Association, Inc. and Hotel del Mar Inc. are duly
organized and existing under the laws of the Philippines, both
with offices in the City of Manila, while the petitioner Go Chin
is the president and general manager of Hotel del Mar Inc., and
the intervenor Victor Alabanza is a resident of Baguio City, all
having the capacity to sue and be sued;
2. That the respondent Mayor is the duly elected and
incumbent City Mayor and chief executive of the City of Manila
charged with the general power and duty to enforce ordinances
of the City of Manila and to give the necessary orders for the
faithful execution and enforcement of such ordinances;
3. That the petitioners are duly licensed to engage in the
business of operating hotels and motels in Malate and Ermita
districts in Manila;
4. That on June 13, 1963, the Municipal Board of the City of
Manila enacted Ordinance No. 4760, which was approved on
June 14, 1963, by Vice-Mayor Herminio Astorga, then the acting
City Mayor of Manila, in the absence of the respondent regular
City Mayor, amending sections 661, 662, 668-a, 668-b and 669
of the compilation of the ordinances of the City of Manila
besides inserting therein three new sections. This ordinance is
similar to the one vetoed by the respondent Mayor (Annex A)
for the reasons stated in its 4th Indorsement dated February
15, 1963 (Annex B);
5. That the explanatory note signed by then Councilor Herminio
Astorga was submitted with the proposed ordinance (now
Ordinance 4760) to the Municipal Board, copy of which is
attached hereto as Annex C;
6. That the City of Manila derived in 1963 an annual income of
P101,904.05 from license fees paid by the 105 hotels and
35
motels (including herein petitioners) operating in the City of
Manila.1äwphï1.ñët
Thereafter came a memorandum for respondent on January
22, 1965, wherein stress was laid on the presumption of the
validity of the challenged ordinance, the burden of showing its
lack of conformity to the Constitution resting on the party who
assails it, citing not only U.S. v. Salaveria, but likewise applicable
American authorities. Such a memorandum likewise refuted
point by point the arguments advanced by petitioners against
its validity. Then barely two weeks later, on February 4, 1965,
the memorandum for petitioners was filed reiterating in detail
what was set forth in the petition, with citations of what they
considered to be applicable American authorities and praying
for a judgment declaring the challenged ordinance "null and
void and unenforceable" and making permanent the writ of
preliminary injunction issued.
After referring to the motels and hotels, which are members of
the petitioners association, and referring to the alleged
constitutional questions raised by the party, the lower court
observed: "The only remaining issue here being purely a
question of law, the parties, with the nod of the Court, agreed
to file memoranda and thereafter, to submit the case for
decision of the Court." It does appear obvious then that without
any evidence submitted by the parties, the decision passed
upon the alleged infirmity on constitutional grounds of the
challenged ordinance, dismissing as is undoubtedly right and
proper the untenable objection on the alleged lack of authority
of the City of Manila to regulate motels, and came to the
conclusion that "the challenged Ordinance No. 4760 of the City
of Manila, would be unconstitutional and, therefore, null and
void." It made permanent the preliminary injunction issued
against respondent Mayor and his agents "to restrain him from
enforcing the ordinance in question." Hence this appeal.
As noted at the outset, the judgment must be reversed. A
decent regard for constitutional doctrines of a fundamental
character ought to have admonished the lower court against
such a sweeping condemnation of the challenged ordinance. Its
decision cannot be allowed to stand, consistently with what has
hitherto been the accepted standards of constitutional
adjudication, in both procedural and substantive aspects.
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 x x x . The action of the elected
representatives of the people cannot be lightly set aside. The
councilors must, in the very nature of things, be familiar with
the necessities of their particular municipality and with all the
facts and circumstances which surround the subject and
necessitate action. The local legislative body, by enacting the
ordinance, has in effect given notice that the regulations are
essential to the well being of the people x x x . The Judiciary
36
should not lightly set aside legislative action when there is not
a clear invasion of personal or property rights under the guise
of police regulation.2
It admits of no doubt therefore that there being a presumption
of validity, the necessity for evidence to rebut it is unavoidable,
unless the statute or ordinance is void on its face which is not
the case here. The principle has been nowhere better
expressed than in the leading case of O'Gorman & Young v.
Hartford Fire Insurance Co.,3 where the American Supreme
Court through Justice Brandeis tersely and succinctly summed
up the matter thus: The statute here questioned deals with a
subject clearly within the scope of the police power. We are
asked to declare it void on the ground that the specific method
of regulation prescribed is unreasonable and hence deprives
the plaintiff of due process of law. As underlying questions of
fact may condition the constitutionality of legislation of this
character, the resumption of constitutionality must prevail in
the absence of some factual foundation of record for
overthrowing the statute." No such factual foundation being
laid in the present case, the lower court deciding the matter on
the pleadings and the stipulation of facts, the presumption of
validity must prevail and the judgment against the ordinance
set aside.
Nor may petitioners assert with plausibility that on its face the
ordinance is fatally defective as being repugnant to the due
process clause of the Constitution. The mantle of protection
associated with the due process guaranty does not cover
petitioners. This particular manifestation of a police power
measure being specifically aimed to safeguard public morals is
immune from such imputation of nullity resting purely on
conjecture and unsupported by anything of substance. To hold
otherwise would be to unduly restrict and narrow the scope of
police power which has been properly characterized as the
most essential, insistent and the least limitable of powers,4
extending as it does "to all the great public needs."5 It would
be, to paraphrase another leading decision, to destroy the very
purpose of the state if it could be deprived or allowed itself to
be deprived of its competence to promote public health, public
morals, public safety and the genera welfare.6 Negatively put,
police power is "that inherent and plenary power in the State
which enables it to prohibit all that is hurt full to the comfort,
safety, and welfare of society.7
There is no question but that the challenged ordinance was
precisely enacted to minimize certain practices hurtful to public
morals. The explanatory note of the Councilor Herminio
Astorga included as annex to the stipulation of facts, speaks of
the alarming increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to the existence of
motels, which "provide a necessary atmosphere for clandestine
entry, presence and exit" and thus become the "ideal haven for
prostitutes and thrill-seekers." The challenged ordinance then
proposes to check the clandestine harboring of transients and
guests of these establishments by requiring these transients
37
and guests to fill up a registration form, prepared for the
purpose, in a lobby open to public view at all times, and by
introducing several other amendatory provisions calculated to
shatter the privacy that characterizes the registration of
transients and guests." Moreover, the increase in the licensed
fees was intended to discourage "establishments of the kind
from operating for purpose other than legal" and at the same
time, to increase "the income of the city government." It would
appear therefore that the stipulation of facts, far from
sustaining any attack against the validity of the ordinance,
argues eloquently for it.
It is a fact worth noting that this Court has invariably stamped
with the seal of its approval, ordinances punishing vagrancy and
classifying a pimp or procurer as a vagrant;8 provide a license
tax for and regulating the maintenance or operation of public
dance halls;9 prohibiting gambling;10 prohibiting jueteng;11
and monte;12 prohibiting playing of panguingui on days other
than Sundays or legal holidays;13 prohibiting the operation of
pinball machines;14 and prohibiting any person from keeping,
conducting or maintaining an opium joint or visiting a place
where opium is smoked or otherwise used,15 all of which are
intended to protect public morals.
On the legislative organs of the government, whether national
or local, primarily rest the exercise of the police power, which,
it cannot be too often emphasized, is the power to prescribe
regulations to promote the health, morals, peace, good order,
safety and general welfare of the people. In view of the
requirements of due process, equal protection and other
applicable constitutional guaranties however, the exercise of
such police power insofar as it may affect the life, liberty or
property of any person is subject to judicial inquiry. Where such
exercise of police power may be considered as either
capricious, whimsical, unjust or unreasonable, a denial of due
process or a violation of any other applicable constitutional
guaranty may call for correction by the courts.
We are thus led to considering the insistent, almost shrill tone,
in which the objection is raised to the question of due
process.16 There is no controlling and precise definition of due
process. It furnishes though a standard to which the
governmental action should conform in order that deprivation
of life, liberty or property, in each appropriate case, be valid.
What then is the standard of due process which must exist both
as a procedural and a substantive requisite to free the
challenged ordinance, or any governmental action for that
matter, from the imputation of legal infirmity sufficient to spell
its doom? It is responsiveness to the supremacy of reason,
obedience to the dictates of justice. Negatively put,
arbitrariness is ruled out and unfairness avoided. To satisfy the
due process requirement, official action, to paraphrase
Cardozo, must not outrun the bounds of reason and result in
sheer oppression. Due process is thus hostile to any official
action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness. It is the embodiment
38
of the sporting idea of fair play.17 It exacts fealty "to those
strivings for justice" and judges the act of officialdom of
whatever branch "in the light of reason drawn from
considerations of fairness that reflect [democratic] traditions of
legal and political thought."18 It is not a narrow or "technical
conception with fixed content unrelated to time, place and
circumstances,"19 decisions based on such a clause requiring a
"close and perceptive inquiry into fundamental principles of
our society."20 Questions of due process are not to be treated
narrowly or pedantically in slavery to form or phrases.21
It would thus be an affront to reason to stigmatize an ordinance
enacted precisely to meet what a municipal lawmaking body
considers an evil of rather serious proportion an arbitrary and
capricious exercise of authority. It would seem that what
should be deemed unreasonable and what would amount to an
abdication of the power to govern is inaction in the face of an
admitted deterioration of the state of public morals. To be
more specific, the Municipal Board of the City of Manila felt the
need for a remedial measure. It provided it with the enactment
of the challenged ordinance. A strong case must be found in the
records, and, as has been set forth, none is even attempted
here to attach to an ordinance of such character the taint of
nullity for an alleged failure to meet the due process
requirement. Nor does it lend any semblance even of deceptive
plausibility to petitioners' indictment of Ordinance No. 4760 on
due process grounds to single out such features as the
increased fees for motels and hotels, the curtailment of the
area of freedom to contract, and, in certain particulars, its
alleged vagueness.
Admittedly there was a decided increase of the annual license
fees provided for by the challenged ordinance for hotels and
motels, 150% for the former and over 200% for the latter, first-
class motels being required to pay a P6,000 annual fee and
second-class motels, P4,500 yearly. It has been the settled law
however, as far back as 1922 that municipal license fees could
be classified into those imposed for regulating occupations or
regular enterprises, for the regulation or restriction of non-
useful occupations or enterprises and for revenue purposes
only.22 As was explained more in detail in the above Cu Unjieng
case: (2) Licenses for non-useful occupations are also incidental
to the police power and the right to exact a fee may be implied
from the power to license and regulate, but in fixing amount of
the license fees the municipal corporations are allowed a much
wider discretion in this class of cases than in the former, and
aside from applying the well-known legal principle that
municipal ordinances must not be unreasonable, oppressive, or
tyrannical, courts have, as a general rule, declined to interfere
with such discretion. The desirability of imposing restraint upon
the number of persons who might otherwise engage in non-
useful enterprises is, of course, generally an important factor in
the determination of the amount of this kind of license fee.
Hence license fees clearly in the nature of privilege taxes for
revenue have frequently been upheld, especially in of licenses
39
for the sale of liquors. In fact, in the latter cases the fees have
rarely been declared unreasonable.23
Moreover in the equally leading case of Lutz v. Araneta24 this
Court affirmed the doctrine earlier announced by the American
Supreme Court that taxation may be made to implement the
state's police power. Only the other day, this Court had
occasion to affirm that the broad taxing authority conferred by
the Local Autonomy Act of 1959 to cities and municipalities is
sufficiently plenary to cover a wide range of subjects with the
only limitation that the tax so levied is for public purposes, just
and uniform.25
As a matter of fact, even without reference to the wide latitude
enjoyed by the City of Manila in imposing licenses for revenue,
it has been explicitly held in one case that "much discretion is
given to municipal corporations in determining the amount,"
here the license fee of the operator of a massage clinic, even if
it were viewed purely as a police power measure.26 The
discussion of this particular matter may fitly close with this
pertinent citation from another decision of significance: "It is
urged on behalf of the plaintiffs-appellees that the
enforcement of the ordinance could deprive them of their
lawful occupation and means of livelihood because they can
not rent stalls in the public markets. But it appears that
plaintiffs are also dealers in refrigerated or cold storage meat,
the sale of which outside the city markets under certain
conditions is permitted x x x . And surely, the mere fact, that
some individuals in the community may be deprived of their
present business or a particular mode of earning a living cannot
prevent the exercise of the police power. As was said in a case,
persons licensed to pursue occupations which may in the public
need and interest be affected by the exercise of the police
power embark in these occupations subject to the
disadvantages which may result from the legal exercise of that
power."27
Nor does the restriction on the freedom to contract, insofar as
the challenged ordinance makes it unlawful for the owner,
manager, keeper or duly authorized representative of any
hotel, motel, lodging house, tavern, common inn or the like, to
lease or rent room or portion thereof more than twice every 24
hours, with a proviso that in all cases full payment shall be
charged, call for a different conclusion. Again, such a limitation
cannot be viewed as a transgression against the command of
due process. It is neither unreasonable nor arbitrary. Precisely
it was intended to curb the opportunity for the immoral or
illegitimate use to which such premises could be, and,
according to the explanatory note, are being devoted. How
could it then be arbitrary or oppressive when there appears a
correspondence between the undeniable existence of an
undesirable situation and the legislative attempt at correction.
Moreover, petitioners cannot be unaware that every regulation
of conduct amounts to curtailment of liberty which as pointed
out by Justice Malcolm cannot be absolute. Thus: "One thought
which runs through all these different conceptions of liberty is
40
plainly apparent. It is this: 'Liberty' as understood in
democracies, is not license; it is 'liberty regulated by law.'
Implied in the term is restraint by law for the good of the
individual and for the greater good of the peace and order of
society and the general well-being. No man can do exactly as
he pleases. Every man must renounce unbridled license. The
right of the individual is necessarily subject to reasonable
restraint by general law for the common good x x x The liberty
of the citizen may be restrained in the interest of the public
health, or of the public order and safety, or otherwise within
the proper scope of the police power."28
A similar observation was made by Justice Laurel: "Public
welfare, then, lies at the bottom of the enactment of said law,
and the state in order to promote the general welfare may
interfere with personal liberty, with property, and with
business and occupations. Persons and property may be
subjected to all kinds of restraints and burdens, in order to
secure the general comfort, health, and prosperity of the state
x x x To this fundamental aim of our Government the rights of
the individual are subordinated. Liberty is a blessing without
which life is a misery, but liberty should not be made to prevail
over authority because then society will fall into anarchy.
Neither should authority be made to prevail over liberty
because then the individual will fall into slavery. The citizen
should achieve the required balance of liberty and authority in
his mind through education and personal discipline, so that
there may be established the resultant equilibrium, which
means peace and order and happiness for all.29
It is noteworthy that the only decision of this Court nullifying
legislation because of undue deprivation of freedom to
contract, People v. Pomar,30 no longer "retains its virtuality as
a living principle. The policy of laissez faire has to some extent
given way to the assumption by the government of the right of
intervention even in contractual relations affected with public
interest.31 What may be stressed sufficiently is that if the
liberty involved were freedom of the mind or the person, the
standard for the validity of governmental acts is much more
rigorous and exacting, but where the liberty curtailed affects at
the most rights of property, the permissible scope of regulatory
measure is wider.32 How justify then the allegation of a denial
of due process?
Lastly, there is the attempt to impugn the ordinance on another
due process ground by invoking the principles of vagueness or
uncertainty. It would appear from a recital in the petition itself
that what seems to be the gravamen of the alleged grievance is
that the provisions are too detailed and specific rather than
vague or uncertain. Petitioners, however, point to the
requirement that a guest should give the name, relationship,
age and sex of the companion or companions as indefinite and
uncertain in view of the necessity for determining whether the
companion or companions referred to are those arriving with
the customer or guest at the time of the registry or entering the
41

room With him at about the same time or coming at any uninterruptedly adhered to by this Court compels a reversal of
indefinite time later to join him; a proviso in one of its sections the appealed decision.
which cast doubt as to whether the maintenance of a
restaurant in a motel is dependent upon the discretion of its Wherefore, the judgment of the lower court is reversed and the
owners or operators; another proviso which from their injunction issued lifted forthwith. With costs.
standpoint would require a guess as to whether the "full rate of
payment" to be charged for every such lease thereof means a
full day's or merely a half-day's rate. It may be asked, do these
allegations suffice to render the ordinance void on its face for
alleged vagueness or uncertainty? To ask the question is to
answer it. From Connally v. General Construction Co.33 to
Adderley v. Florida,34 the principle has been consistently
upheld that what makes a statute susceptible to such a charge
is an enactment either forbidding or requiring the doing of an
act that men of common intelligence must necessarily guess at
its meaning and differ as to its application. Is this the situation
before us? A citation from Justice Holmes would prove
illuminating: "We agree to all the generalities about not
supplying criminal laws with what they omit but there is no
canon against using common sense in construing laws as saying
what they obviously mean."35

That is all then that this case presents. As it stands, with all due
allowance for the arguments pressed with such vigor and
determination, the attack against the validity of the challenged
ordinance cannot be considered a success. Far from it. Respect
for constitutional law principles so uniformly held and so
42

274 U.S. 200

ERROR TO THE SUPREME COURT OF APPEALS

OF THE STATE OF VIRGINIA

Syllabus

1. The Virginia statute providing for the sexual sterilization of

inmates of institutions supported by the State who shall be
found to be afflicted with an hereditary form of insanity or
imbecility, is within the power of the State under the
Fourteenth Amendment. P. 274 U. S. 207.

2. Failure to extend the provision to persons outside the

institutions named does not render it obnoxious to the Equal
Protection Clause. P. 274 U. S. 208.
U.S. Supreme Court
Buck v. Bell, 274 U.S. 200 (1927) 143 Va. 310, affirmed.
Buck v. Bell
ERROR to a judgment of the Supreme Court of Appeals of the
No. 292 State of Virginia which affirmed a judgment ordering

Argued April 22, 1927 Page 274 U. S. 201

Decided May 2, 1927

43
the Superintendent of the State Colony of Epileptics and Feeble
Minded to perform the operation of salpingectomy on Carrie
Buck, the plaintiff in error.
Page 274 U. S. 205
Mr. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error to review a judgment of the Supreme
Court of Appeals of the State of Virginia affirming a judgment
of the Circuit Court of Amherst County by which the defendant
in error, the superintendent of the State Colony for Epileptics
and Feeble Minded, was ordered to perform the operation of
salpingectomy upon Carrie Buck, the plaintiff in error, for the
purpose of making her sterile. 143 Va. 310. The case comes
here upon the contention that the statute authorizing the
judgment is void under the Fourteenth Amendment as denying
to the plaintiff in error due process of law and the equal
protection of the laws.
Carrie Buck is a feeble minded white woman who was
committed to the State Colony above mentioned in due form.
She is the daughter of a feeble minded mother in the same
institution, and the mother of an illegitimate feeble minded
child. She was eighteen years old at the time of the trial of her
case in the Circuit Court, in the latter part of 1924. An Act of
Virginia, approved March 20, 1924, recites that the health of
the patient and the welfare of society may be promoted in
certain cases by the sterilization of mental defectives, under
careful safeguard, &c.; that the sterilization may be effected in
males by vasectomy and in females by salpingectomy, without
serious pain or substantial danger to life; that the
Commonwealth is supporting in various institutions many
defective persons who, if now discharged, would become
Page 274 U. S. 206
a menace, but, if incapable of procreating, might be discharged
with safety and become self-supporting with benefit to
themselves and to society, and that experience has shown that
heredity plays an important part in the transmission of insanity,
imbecility, &c. The statute then enacts that, whenever the
superintendent of certain institutions, including the above-
named State Colony, shall be of opinion that it is for the best
interests of the patients and of society that an inmate under his
care should be sexually sterilized, he may have the operation
performed upon any patient afflicted with hereditary forms of
insanity, imbecility, &c., on complying with the very careful
provisions by which the act protects the patients from possible
abuse.
The superintendent first presents a petition to the special
board of directors of his hospital or colony, stating the facts and
the grounds for his opinion, verified by affidavit. Notice of the
petition and of the time and place of the hearing in the
institution is to be served upon the inmate, and also upon his
44
guardian, and if there is no guardian, the superintendent is to
apply to the Circuit Court of the County to appoint one. If the
inmate is a minor, notice also is to be given to his parents, if
any, with a copy of the petition. The board is to see to it that
the inmate may attend the hearings if desired by him or his
guardian. The evidence is all to be reduced to writing, and, after
the board has made its order for or against the operation, the
superintendent, or the inmate, or his guardian, may appeal to
the Circuit Court of the County. The Circuit Court may consider
the record of the board and the evidence before it and such
other admissible evidence as may be offered, and may affirm,
revise, or reverse the order of the board and enter such order
as it deems just. Finally any party may apply to the Supreme
Court of Appeals, which, if it grants the appeal, is to hear the
case upon the record of the trial
Page 274 U. S. 207
in the Circuit Court, and may enter such order as it thinks the
Circuit Court should have entered. There can be no doubt that,
so far as procedure is concerned, the rights of the patient are
most carefully considered, and, as every step in this case was
taken in scrupulous compliance with the statute and after
months of observation, there is no doubt that, in that respect,
the plaintiff in error has had due process of law.
The attack is not upon the procedure, but upon the substantive
law. It seems to be contended that in no circumstances could
such an order be justified. It certainly is contended that the
order cannot be justified upon the existing grounds. The
judgment finds the facts that have been recited, and that Carrie
Buck
"is the probable potential parent of socially inadequate
offspring, likewise afflicted, that she may be sexually sterilized
without detriment to her general health, and that her welfare
and that of society will be promoted by her sterilization,"
and thereupon makes the order. In view of the general
declarations of the legislature and the specific findings of the
Court, obviously we cannot say as matter of law that the
grounds do not exist, and, if they exist, they justify the result.
We have seen more than once that the public welfare may call
upon the best citizens for their lives. It would be strange if it
could not call upon those who already sap the strength of the
State for these lesser sacrifices, often not felt to be such by
those concerned, in order to prevent our being swamped with
incompetence. It is better for all the world if, instead of waiting
to execute degenerate offspring for crime or to let them starve
for their imbecility, society can prevent those who are
manifestly unfit from continuing their kind. The principle that
sustains compulsory vaccination is broad enough to cover
cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.
S. 11. Three generations of imbeciles are enough.
Page 274 U. S. 208
45

makes no guarantees or warranties that the annotations are

But, it is said, however it might be if this reasoning were applied accurate or reflect the current state of law, and no annotation
generally, it fails when it is confined to the small number who is intended to be, nor should it be construed as, legal advice.
are in the institutions named and is not applied to the Contacting Justia or any attorney through this site, via web
multitudes outside. It is the usual last resort of constitutional form, email, or otherwise, does not create an attorney-client
arguments to point out shortcomings of this sort. But the relationship.
answer is that the law does all that is needed when it does all
that it can, indicates a policy, applies it to all within the lines,
and seeks to bring within the lines all similarly situated so far
and so fast as its means allow. Of course, so far as the
operations enable those who otherwise must be kept confined
to be returned to the world, and thus open the asylum to
others, the equality aimed at will be more nearly reached.

Judgment affirmed.

MR. JUSTICE BUTLER dissents.

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46

ROYAL L. RUTTER, plaintiff-appellant,

vs.
PLACIDO J. ESTEBAN, defendant-appellee.

Susano A. Velasquez for appellant.

Teodoro R. Dominguez for appellee.

BAUTISTA ANGELO, J.:

On August 20, 1941, Royal L. Rutter sold to Placido J.Esteban

two parcels of land situated in the city of Manila for the sum of
P9,600 of which P4,800 were paid outright, and the balance of
P4,800 was made payable as follows: P2,400 on or before
August 7, 1942, and P2,400 on or before August 27, 1943, with
interest at the rate of 7 percent per annum.

To secure the payment of said balance of P4,800, a first

mortgage over the same parcels of land has been constituted
in favor of the plaintiff. The deed of sale having been registered,
a new title was issued in favor of Placido J.Esteban with a
mortgage duly annotated on the back thereof.

Placido J. Esteban failed to pay the two installments as agreed

upon, as well as the interest that had accrued there-on, and so
on August 2, 1949, Royal L. Rutter instituted this action in the
Court of First Instance of Manila to recover the balance due, the
G.R. No. L-3708 May 18, 1953 interest due thereon, and the attorney's fees stipulated in the
47
contract. The complaint also contains a prayer for sale of the
properties mortgaged in accordance with law.
Placido J. Esteban admitted the averments of the complaint,
but set up a defense the moratorium clause embodied in
Republic Act No. 342. He claims that this is a prewar obligation
contracted on August 20, 1941; that he is a war sufferer, having
filed his claim with the Philippine War Damage Commission for
the losses he had suffered as a consequence of the last war; and
that under section 2 of said Republic Act No. 342, payment of
his obligation cannot be enforced until after the lapse of eight
years from the settlement of his claim by the Philippine War
Damage Commission, and this period has not yet expired.
After a motion for summary judgment has been presented by
the defendant, and the requisite evidence submitted covering
the relevant facts, the court rendered judgment dismissing the
complaint holding that the obligation which plaintiff seeks to
enforce is not yet demandable under the moratorium law.
Plaintiff filed a motion for reconsideration wherein he raised for
the first time the constitutionality of the moratorium law, but
the motion was denied. Hence this appeal.
The only question to be determined hinges on the validity of
Republic Act No. 342 which was approved by Congress on July
26, 1948. It is claimed that this act if declared applicable to the
present case is unconstitutional being violative of the
constitutional provision forbidding the impairement of the
obligation of contracts (Article III, section 1, Constitution of the
Philippines).
Section 2 of Republic Act No. 342 provides that all debts and
other monetary obligations contracted before December 8,
1941, any provision in the contract creating the same or any
subsequent aggreement affecting such obligation to the
contrary notwithstanding, shall not due and demandable for a
period of eight (8) years from and after settlement of the war
damage claim of the debtor by the Philippine War Damage
Commission; and section 3 of said Act provides that should the
provision of section 2 be declared void and unenforceable, then
as regards the obligation affected thereby, the provisions of
Executive Order No. 25 dated November 18, 1944, as amended
by Executive Order No. 32, dated March 10, 1945, relative to
debt moratorium, shall continue to be in force and effect, any
contract affecting the same to the contrary notwithstanding,
until subsequently repealed or amended by a legislative
enactment. It thus clearly appears in said Act that the
nullification of its provisions will have the effect of reviving the
previous moratorium orders issued by the President of the
Philippines.
Statutes declaring a moratorium on the enforcement of
monetary obligations are not of recent enactment. These
moratorium laws are not new. "For some 1,400 years western
civilization has made use of extraordinary devices for saving the
credit structure, devices generally known as moratoria. The
48
moratorium is postponement of fulfillment of obligations
decreed by the state through the medium of the courts or the
legislature. Its essence is the application of the sovereign
power" (58 C.J. S., p. 1208 footnote 87). In the United States,
may state legislatures have adopted moratorium laws "during
times of financial distress, especially when incident to, or
caused by, a war" (41 C.J., p.213). Thus, such laws "were passed
by many state legislatures at the time of the civil war
suspending the rights of creditors for a definite and reasonable
time, . . . whether they suspend the right of action or make
dilatory the remedy" (12 C.J., p 1078). The laws were declared
constitutional. However, some courts have also declared that
"such statutes are void as to contracts made before their
passage where the suspension of remedied prescribed is
indefinite or unreasonable in duration" (12C.J., 1078). The true
test, therefore, of the constitutionality of the moratorium
statute lies in the determination of the period of a suspension
of the remedy. It is required that such suspension be definite
and reasonable, otherwise it would be violative of the
constitution.
One of the arguments advanced against the validity of the
moratorium law is the fact that it impairs the obligation of
contracts which is prohibited by the Constitution. This
argument, however does not now hold water. While this may
be conceded, it is however justified as a valid exercise by the
State of its police power. The leading case on the matter is
Home Building and Loan Association vs. Blaisdell, 290 U. S., 398,
decide by the Supreme Court of the United States on January 8,
1934. Here appellant contested the validity of charter 339 of
the laws of Minnesota of 1993, approved April 13, 1933, called
the Minnesota Mortgage Moratorium Law, as being repugnant
to the contract clause of the Federal Constitution. The statute
was sustained by the Supreme Court of Minnesota as an
emergency measure. "Although coceding that the obligations
of the mortgage contract was impaired, the court decided that
what it thus described as an impairment was, notwithstanding
the contract clause of the Federal Constitution, within the
police power of the State as that power was called into exercise
by the public economic emergency which the legislative had
found to exist". This theory was up-held by the Supreme Court.
Speaking through Chief Justice Hughes, the court made the
following pronouncements:
Not only is the constitutional provision qualified by the
measure of control which the State retains over remedial
processes, but the State also continues to possess authority to
safeguard the vital interest of its people. It does not matter that
legislation appropriate to that end "has the result of modifying
or abrogating contracts already in effect." . . . . Not only are
existing laws read into contracts in order to fix obligations as
between the parties, but the reservation of essential attributes
of sovereign power is also read into contracts as a postulate of
the legal order. The policy of protecting contracts against
impairement presupposes the maintenance of a government
by virtue of which contractual relations are worthwhile a
49
government which retains adequate authority to secure the
peace and good order of society. This principle of harmonizing
the constitutional prohibition with the necessary residuum of
state power has had progressive recognition in the decision of
this Court.
xxx xxx xxx
The economic interests of the State may justify the exercise of
its continuing and dominant protective power notwithstanding
interference with contracts. . . .
xxx xxx xxx
Similarly, where the protective power of the State is exercised
in a manner otherwise appropriate in the regulation of a
business it is no objection that the performance of existing
contracts may be frustrated by the prohibition of injurious
practices. . . .
. . . . The question is not whether the legislative action affects
contracts incidentally, or directly or indirectly, but whether the
legislation is addressed to a legitimate end and the measures
taken are reasonable and appropriate to that end.
xxx xxx xxx
Undoubtedly, whatever is reserved of state power must be
consistent with the fair intent of the constitutional limitation of
that power. The reserved power cannot be construed to
destroy the limitation to be construed so as to destroy the
reserved power in its essential aspects. They must be construed
to harmony with each other. This principle precludes a
construction which would permit the State to adopt as its policy
the repudiation of debts or the destruction of contracts or the
denial of means to enforce them. But it does not follow that
conditions may not arise in which a temporary restraint of
enforcement may be consistent with the spirit and purpose of
the constitutional provision and thus be found to be within the
range of the reserved power of the state to protect the vital
interests of the community. It cannot be maintained that the
constitutional prohibition should be so construed as to prevent
limited and temporary interpositions with respect to the
enforcement of contracts if made necessary by great public
calamity such as fire, flood, or earthquake. See American Land
Co. vs. Zeiss, 219 U.S. 47, 55 L. ed. 82, 31 S. Ct. 200. The
reservation of state power appropriate to such extraordinary
conditions may be deemed to be as much a part of all contracts,
as is the reservation of state power to protect the public
interest in the other situation to which we have referred. And
if state power exists to give temporary relief from the
enforcement of contracts in the present of disasters due to
physical causes such as fire, flood or earthquake, that power
cannot be said to be nonexistent when the urgent public need
50
demanding such relief is produced by other and economic
causes (78 L.ed. 426, 428-429.)
This decision elicited several comments. One came from the
Harvard Law Review. It said: "Forsaking its well-trodden of the
new mortgage moratory laws meet its scrutiny, and in so doing
announced an elastic concept of the contract clause which, if
not newly formulated, at least received such unequivocal
expression that it bids fair to revolutionize a tradition of
constitutional interpretation. . . . The court rested its decision
on the ground that laws altering existing contracts constitute
an impairment within the meaning of the contract clause only
if they are unreasonable in the light of the circumstances
occasioning their enactment. Application of this 'rule of reason
was justified on the theory that all contracts are made subject
to an implied reservation of the protective power of the state,
and that therefore statutes which validly exercise this reserved
power, rather than impairing the obligations of an existing
contract, are comprehended within them" (47 Harvard Law
Review, pp. 660, 661-662).
But the ruling in the Blaisdell case has its limitations which
should not be overlooked in the determination of the extent to
be given to the legislation which attempts to encroach upon the
enforcement of a monetary obligation. It must be noted that
the application of the reserved power of the State to protect
the integrity of the government and the security of the people
should be limited to its proper bounds and must be addressed
to a legitimate purpose. If these bounds are transgressed, there
is no room for the exercise of the power, for the constitutional
inhibition against the impairment of contracts would assert
itself. We can cite instances by which these bounds may be
transgressed. One of them is that the impairment should only
refer to the remedy and not to a substantive right. The State
may postpone the enforcement of the obligation but cannot
destroy it by making the remedy futile (W.B. Worthen Co. vs.
Kavanaugh, 79 L.ed. 1298, 1301-1303). Another limitation
refers to the propriety of the remedy. The rule requires that the
alteration or change that the new legislation desires to write
into an existing contract must not be burdened with restrictions
and conditions that would make the remedy hardly pursuing
(Bronson vs. Kinziel, I How, 311, 317; 46 Har. Law Review, p.
1070). In other words, the Blaisdell case postulates that the
protective power of the State, the police power, may only be
invoked and justified by an emergency, temporary in nature,
and can only be exercised upon reasonable conditions in order
that it may not infringe the constitutional provision against
impairment of contracts (First Trust Co. of Lincoln vs. Smith 277
N.W., pp. 762, 769). As justice Cardozo aptly said, "A different
situation is presented when extensions are so piled up as to
make the remedy a shadow . . . The changes of remedy now
challenged as invalid are to be viewed in combination, with the
cumulative significance that each imparts to all. So viewed they
are seen to be an oppressive and unnecessary destruction of
nearly all the incidents that give attractiveness and value to
collateral security (W.B. Worthen vs. Kavanaugh, 295 U.S. 56,
51
62). In fine, the decision in the Blaisdell case is predicated on
the ground that the laws altering existing contracts will
constitute an impairment of the contract clause of the
Constitution only if they are unreasonable in the light of the
circumstances occasioning their enactment (47 Harvard Law
Review, p. 660).
The question now to be determined is, is the period of eight (8)
years which Republic Act No. 342 grants to debtors of a
monetary obligation contracted before the last global war and
who is a war sufferer with a claim duly approved by the
Philippine War Damage Commission reasonable under the
present circumstances?
It should be noted that Republic Act No. 342 only extends relief
to debtors of prewar obligations who suffered from the ravages
of the last war and who filed a claim for their losses with the
Philippine War Damage Commission. It is therein provided that
said obligation shall not be due and demandable for a period of
eight (8) years from and after settlement of the claim filed by
the debtor with said Commission. The purpose of the law is to
afford to prewar debtors an opportunity to rehabilitate
themselves by giving them a reasonabled time within which to
pay their prewar debts so as to prevent them from being
victimized buy their creditors. While it is admitted in said law
that since liberation conditions have gradually returned to
normal, this is not so with regard to those who have suffered
the ravages of war and so it was therein declared as a policy
that as to them the debt moratorium should be continued in
force (section 1).
But we should not lost sight of the fact that these obligations
had been pending since 1945 as a result of the issuance of
Executive Orders Nos. 25 and 32 and at present their
enforcement is still inhibited because of the enactment of
Republic Act No. 342 and would continue to be unenforceable
during the eight-year period granted to prewar debtors to
afford them an opportunity to rehabilitate themselves, which
in plain languaged means that the creditors would have to
observe a vigil of at least twelve (12) years before they could
effect a liquidation of their investment dating as far back as
1941. This period seems to us unreasonable, if not oppressive.
while the purpose of Congress is plausible, and should be
commended, the relief accorded works injustice to creditors
who are practically left at the mercy of the debtors. Their hope
to effect collection becomes extremely remote, more so if the
credits are unsecured. And the injustice is more patent when,
under the law, the debtor is not even required to pay interest
during the operation of the relief, unlike similar statutes in the
United States (Home Building and Loan Association vs. Blaisdell,
supra).
There are at least three cases where the Supreme Court of the
United States declared the moratorium laws violative of the
contract clause of the constitution because the period granted
to debtors as a relief was found unwarranted by the
52
contemplated emergency. One of them is W. B. Worthen Co.
vs. Thomas, 292 U. S., 426-435; 78 L. ed., 1344, 1347. Here the
Legislature of Arkansas passed na act providing for an
exemption, "without limitation as to amount or restriction with
respect to particular circumstances or relations, of all moneys
paid or payable to any resident of the state under any life, sick,
accident or disability insurance policy, from liability for the
payment of the debts of the recipient", and an attempt was
made to apply the statute to debts owing before its approval.
The court held that "such an exemption, applied in the case of
debts owing before the exemption was created by the
legislature, constitutes an unwarranted interference with the
obligation of contracts in violation of the constitutional
provision", and cannot be sustained even as emergency
legislation, because it contains no limitation as to time,
amount, circumstances or need (supra, 292 U. S., pp. 426-432).
The other case is W. B. Worthen vs. Kavanaugh (supra). Here
certain Municipal Improvement Districts organized under the
laws of Arkansas were empowered to issue bonds and to
mortgage benefit assessments as security therefor. One of
these districts acted upon the powers thus conferred. Some of
the bonds were in default for nonpayment of principal and
interest. So an action was brought by the bond-holders to
foreclose the assessment upon the lots of delinquent owners.
These bonds and mortgages were executed under the statutes
then in force. Later the legislature of Arkansas passed three acts
making changes in the remedies available under the former
statutes, which changes were attacked as an unconstitutional
impairment of contracts. The court sustained this view holding
that the "changes in the remedies available for the
enforcement of a mortgage may not, even when the public
welfare is invoked as an excuse, be pressed so far as to cut
down the security of a mortgage without moderation or reason
or in a spirit of oppression. . . . A State is free to regulate the
procedure in its courts even with reference to contracts already
made, and moderate extensions of the time for pleading or for
trial will ordinarily fall within the power so reversed; by a
different situation is presented when extensions are so piled up
to make the remedy a shadow."
The third case is Louisville joint Stock Land Bank vs. Radford,
295 U. S. 555, 79 L. ed 1593. This case presented for decision
the question whether subsection (s) added to section 75 of the
Bankruptcy Act by the Frazier-Lemke Act, June 28, 1934, chap.
869, 48 Stat. at L. 1289 U. S. C. title 11, sec. 203, is consistent
with the Federal Constitution. The court said that it is
unconstitutional if applied to farm mortgages already existing,
holding that "property rights of holders of farm mortgages are
unconstitutionally taken, in violation of the Fifth Amendment,
by a statute (Bankruptcy Act, sec. 75(s) Frazier-Lemke Act of
June 28, 1934, chap. 869, 48 Stat. at L. 1286) applicable only to
debts existing at the time of its enactment which provides that
a farmer whose farm is mortgaged, and who has failed to obtain
the consents necessary to a composition under the Bankruptcy
Act, may, upon being adjudged a bankrupt, if the mortgagee
53
assents, purchase the mortgaged property at its them
appraised value by agreeing to make deferred payments of
stated percentages of the appraised value over a period of six
years, with interests at 1 per cent per annum, or, if the
mortgagee refuses his assent to such purchase, may obtain a
stay of all proceedings for a period of five years, during which
he shall retain possession of all or any part of his property,
under the control of the court, provided he pays a reasonable
rental therefor, and that at the end of five years he may pay
into court the appraised price thereof, or, if a lien holder shall
request a reappraisal by the court, the reappraised price,
whereupon the court shall, by an order, turn over full
possession and title of the property to the debtor, and he may
apply for his discharge."
In addition, we may cite leading state court decisions which
practically involved the same ruling and which reflect the
tendency of the courts towards legislation involving
modification of mortgage or monetary contracts which
contains provisions that are deemed unreasonable or
oppressive. Some of those which may be deemed
representative follows:
1. Pouquette vs. O'Brien, 100 Pac. 2nd series, 979 (1940). The
Supreme Court of Arizona held unconstitutional a 1937 statute
authorizing courts to extend for a period of not longer than two
years all actions or foreclosures of real estate mortgages, and a
1939 statutes authorizing the courts to extend foreclosure
proceedings not later than March 4, 1941.
2. First Trust Joint Stock Land Bank of Chicago vs. Adolph Arp et
al., 283 N.W. 441, 120 A.L.R. 932 (1939). The Supreme Court of
Iowa declared unconstitutional the Moratorium Acts enacted in
1933, 1935 and 1937, providing for extension of the 1933
Moratorium Act covering a period of six years.
3. First Trust Co. of Lincoln vs. Smith et al., 227 N.W. 762 (1938).
The Supreme Court of Nebraska declared unconstitutional the
Nebraska Moratorium Law as reenacted, extending the benefit
of the remedy to a period of six years, as being repugnant to
the contract clause of the Constitution.
4. Milkint vs. McNeely, Clerk of court, et al., 169 S.E. 790 (1933).
The Supreme Court of Appeals of West Virginia declared
unconstitutional certain acts of legislature enacted in 1932,
extending the period of redemption three years beyond the
one-year period then allowed by statute, being an impairment
of contract as to sales made prior to enactment thereof.
5. Haynes vs. Treadway, 65 Pac. 892 (1901). The Supreme Court
of California declared unconstitutional a statute which extends
the right of redemption from six months twelve months being
a substantial impairment of the obligation contracts if applied
to a mortgage already executed.
54
6. Swinburne vs. Mills, 50 Pac. 489 (1879). The Supreme Court
of Washington declared a statute unconstitutional in so far as
it provides that, on a decree for foreclosure of a mortgage
executed before the act was passed, the debtor shall be
entitled to have the order of sale stayed for one year, as being
an impairment of the obligation of contract.
These cases apply with added force in this jurisdiction
considering the conditions no prevailing in our country. We do
not need to go far to appreciate this situation. We can see it
and feel it as we gaze around to observe the wave of
reconstruction and rehabilitation that has swept the country
since liberation thanks to the aid of America and the innate
progressive spirit of our people. This aid and this spirit have
worked wonders in so short a time that it can now be safely
stated that in the main the financial condition of our country
and our people, individually and collectively, has practically
returned to normal notwithstanding occasional reverses
caused by local dissidence and the sporadic disturbance of
peace and order in our midst. Business, industry and agriculture
have picked up and developed at such stride that we can say
that we are now well on the road to recovery and progress. This
is so not only as far as our observation and knowledge are
capable to take note and comprehend but also because of the
official pronouncements made by our Chief Executive in public
addresses and in several messages he submitted to Congress
on the general state of the nation. To bear this out, it would
suffice for us to state some of those public statements which
we deem to be most expressive and representative of the
general situation. We quote:
We have balanced our national budget. We shall again have at
the end of the current fiscal year a sizeable surplus. . . .
We have greatly improved the economic and financial
conditions of the country. Through the Rehabilitation Finance
Corporation, loans amounting to P90,480,136 have been
granted for the recontruction and rehabilitation purposes. . . .
We have set up the Central bank to expand our credit, stabilize
our currency and provide a new source of financing for the
agricultural and industrial development of the nation.
xxx xxx xxx
. . . The commitment thus far made is not only a favorable sign
ushering in finally the implementation of our plans of economic
development, but a significantly successful test of the solvency
of our foreign credit, for it was accepted only after a thorough
examination of our resources and development plans by a
board of economists of international authority (Pres. Quirino's
"State-of-the-Nation" Message of the Joint Session of Congress
on Jan. 24, 1949, 45 Off. Gaz., Ja., 1949).
We have strengthened, . . . our internal and external finances.
Six years ago, we were a country prostrate from the destruction
55
of war. . . . today, we can say that our people not only have
returned to their prewar activities, but . . . have progressed and
prospered far beyond what they ever dreamed of before the
war.
. . . Three years ago the national income stood at four billion
pesos; today it is over seven billion pesos. . . . The government
income has been steadily rising from 60 million pesos in 1946
to approximately 600 million pesos today, also a progress in six
years.
xxx xxx xxx
. . . The ravages of war are fast disappearing, and instead, what
beautiful vistas unfold themselves before our eyes at this
moment in our immediate surroundings. Compare this
beautiful view with that of the past and all that we have
accomplished in scarcely six years of struggle, sacrifice,
determination, and bold decision. (Applause.) We have brought
this nation out of the paralysis of destruction into economic
normalcy and financial stability. . . .
. . . Our external finances have greatly improved, and . . . our
pesos is one of the most stable currencies in the world today.
(Applause.) I repeat, our pesos is one of the most stable
currencies in the world today.
All these find grateful reflection in a better-sheltered, better-
clothed, better-fed, and healthier population that has grown
from 18 million to 20 million in a half dozen years, in a school
enrollment that has doubled since the outbreak of the last war
from less than 2 million to over 4 million young students in the
public schools, and in democratic processes that are gaining in
vigor and permanence with each passing year" (Address of his
Excellency Quirino, President of the Philippines, on the
occasion of the celebration of the sixth anniversary of the
independence of the Philippines, July 4, 1952, Luneta, Manila,
48 Off. Gaz., pp. 3287-3289).
In the face of the foregoing observations, and consistent with
what we believe to be as the only course dictated by justice,
fairness and righteousness, we feel that the only way open to
us under the present circumstances is to declare that the
continued operation and enforcement of Republic Act No. 342
at the present time is unreasonable and oppressive, and should
not be prolonged a minute longer, and, therefore, the same
should be declared null and void and without effect. And what
we say here with respect to said Act also holds true as regards
Executive Orders Nos. 25 and 32, perhaps with greater force
and reason as to the latter, considering that said Orders contain
no limitation whatsoever in point of time as regards the
suspension of the enforcement and effectivity of monetary
obligations. And there is need to make this pronouncement in
view of the revival clause embodied in said Act if and when it is
declared unconstitutional or invalid.
56

Wherefore, the decision appealed from will be reversed,

without pronouncement as to costs.

Judgment is hereby rendered ordering the defendant to pay the

plaintiff the sum of P4,800 with interest thereon at the rate of
7 per cent annum from August 27, 1942, until its full payment,
plus 12 per cent as attorney's fees. Failure to pay this judgment
as stated, the properties mortgaged will be sold at public
auction and the proceeds applied to its payment in accordance
with law. So ordered.

G.R. No. L-5060 January 26, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LUIS TORIBIO, defendant-appellant.

Rodriguez & Del Rosario, for appellant.

57
Attorney-General Villamor, for appellee.
CARSON, J.:
The evidence of record fully sustains the findings of the trial
court that the appellant slaughtered or caused to be
slaughtered for human consumption, the carabao described in
the information, without a permit from the municipal treasure
of the municipality wherein it was slaughtered, in violation of
the provisions of sections 30 and 33 of Act No. 1147, an Act
regulating the registration, branding, and slaughter of large
cattle.
It appears that in the town of Carmen, in the Province of Bohol,
wherein the animal was slaughtered there is no municipal
slaughterhouse, and counsel for appellant contends that under
such circumstances the provisions of Act No. 1147 do not
prohibit nor penalize the slaughter of large cattle without a
permit of the municipal treasure. Sections 30, 31, 32, and 33 of
the Act are as follows:
SEC. 30. No large cattle shall be slaughtered or killed for food at
the municipal slaughterhouse except upon permit secured
from the municipal treasure. Before issuing the permit for the
slaughter of large cattle for human consumption, the municipal
treasurer shall require for branded cattle the production of the
original certificate of ownership and certificates of transfer
showing title in the person applying for the permit, and for
unbranded cattle such evidence as may satisfy said treasurer as
to the ownership of the animals for which permit to slaughter
has been requested.
SEC. 31. No permit to slaughter has been carabaos shall be
granted by the municipal treasurer unless such animals are
unfit for agricultural work or for draft purposes, and in no event
shall a permit be given to slaughter for food any animal of any
kind which is not fit for human consumption.
SEC. 32. The municipal treasurer shall keep a record of all
permits for slaughter issued by him, and such record shall show
the name and residence of the owner, and the class, sex, age,
brands, knots of radiated hair commonly know as remolinos or
cowlicks, and other marks of identification of the animal for the
slaughter of which permit is issued and the date on which such
permit is issued. Names of owners shall be alphabetically
arranged in the record, together with date of permit.
A copy of the record of permits granted for slaughter shall be
forwarded monthly to the provincial treasurer, who shall file
and properly index the same under the name of the owner,
together with date of permit.
SEC. 33. Any person slaughtering or causing to be slaughtered
for human consumption or killing for food at the municipal
slaughterhouse any large cattle except upon permit duly
secured from the municipal treasurer, shall be punished by a
58
fine of not less than ten nor more than five hundred pesos,
Philippine currency, or by imprisonment for not less than one
month nor more than six months, or by both such fine and
imprisonment, in the discretion of the court.
It is contended that the proper construction of the language of
these provisions limits the prohibition contained in section 30
and the penalty imposed in section 33 to cases (1) of slaughter
of large cattle for human consumption in a municipal slaughter
without a permit duly secured from the municipal treasurer,
and (2) cases of killing of large cattle for food in a municipal
slaughterhouse without a permit duly secured from the
municipal treasurer; and it is urged that the municipality of
Carmen not being provided with a municipal slaughterhouse,
neither the prohibition nor the penalty is applicable to cases of
slaughter of large cattle without a permit in that municipality.
We are of opinion, however, that the prohibition contained in
section 30 refers (1) to the slaughter of large cattle for human
consumption, anywhere, without a permit duly secured from
the municipal treasurer, and (2) expressly and specifically to the
killing for food of large cattle at a municipal slaughterhouse
without such permit; and that the penalty provided in section
33 applies generally to the slaughter of large cattle for human
consumption, anywhere, without a permit duly secured from
the municipal treasurer, and specifically to the killing for food
of large cattle at a municipal slaughterhouse without such
permit.
It may be admitted at once, that the pertinent language of
those sections taken by itself and examined apart from the
context fairly admits of two constructions: one whereby the
phrase "at the municipal slaughterhouse" may be taken as
limiting and restricting both the word "slaughtered" and the
words "killed for food" in section 30, and the words
"slaughtering or causing to be slaughtered for human
consumption" and the words "killing for food" in section 33;
and the other whereby the phrase "at the municipal
slaughterhouse" may be taken as limiting and restricting merely
the words "killed for food" and "killing for food" as used in
those sections. But upon a reading of the whole Act, and
keeping in mind the manifest and expressed purpose and
object of its enactment, it is very clear that the latter
construction is that which should be adopted.
The Act primarily seeks to protect the "large cattle" of the
Philippine Islands against theft and to make easy the recovery
and return of such cattle to their proper owners when lost,
strayed, or stolen. To this end it provides an elaborate and
compulsory system for the separate branding and registry of
ownership of all such cattle throughout the Islands, whereby
owners are enabled readily and easily to establish their title; it
prohibits and invalidates all transfers of large cattle
unaccompanied by certificates of transfer issued by the proper
officer in the municipality where the contract of sale is made;
and it provides also for the disposition of thieves or persons
59
unlawfully in possession, so as to protect the rights of the true
owners. All this, manifestly, in order to make it difficult for any
one but the rightful owner of such cattle to retain them in his
possession or to dispose of them to others. But the usefulness
of this elaborate and compulsory system of identification,
resting as it does on the official registry of the brands and marks
on each separate animal throughout the Islands, would be
largely impaired, if not totally destroyed, if such animals were
requiring proof of ownership and the production of certificates
of registry by the person slaughtering or causing them to be
slaughtered, and this especially if the animals were slaughtered
privately or in a clandestine manner outside of a municipal
slaughterhouse. Hence, as it would appear, sections 30 and 33
prohibit and penalize the slaughter for human consumption or
killing for food at a municipal slaughterhouse of such animals
without a permit issued by the municipal treasurer, and section
32 provides for the keeping of detailed records of all such
permits in the office of the municipal and also of the provincial
treasurer.
If, however, the construction be placed on these sections which
is contended for by the appellant, it will readily be seen that all
these carefully worked out provisions for the registry and
record of the brands and marks of identification of all large
cattle in the Islands would prove in large part abortion, since
thieves and persons unlawfully in possession of such cattle, and
naturally would, evade the provisions of the law by slaughtering
them outside of municipal slaughterhouses, and thus enjoy the
fruits of their wrongdoing without exposing themselves to the
danger of detection incident to the bringing of the animals to
the public slaughterhouse, where the brands and other
identification marks might be scrutinized and proof of
ownership required.
Where the language of a statute is fairly susceptible of two or
more constructions, that construction should be adopted which
will most tend to give effect to the manifest intent of the
lawmaker and promote the object for which the statute was
enacted, and a construction should be rejected which would
tend to render abortive other provisions of the statute and to
defeat the object which the legislator sought to attain by its
enactment. We are of opinion, therefore, that sections 30 and
33 of the Act prohibit and penalize the slaughtering or causing
to be slaughtered for human consumption of large cattle at any
place without the permit provided for in section 30.
It is not essential that an explanation be found for the express
prohibition in these sections of the "killing for food at a
municipal slaughterhouse" of such animals, despite the fact
that this prohibition is clearly included in the general
prohibition of the slaughter of such animals for human
consumption anywhere; but it is not improbable that the
requirement for the issue of a permit in such cases was
expressly and specifically mentioned out of superabundance of
precaution, and to avoid all possibility of misunderstanding in
the event that some of the municipalities should be disposed to
60
modify or vary the general provisions of the law by the passage
of local ordinances or regulations for the control of municipal
slaughterhouse.
Similar reasoning applied to the specific provisions of section
31 of the Act leads to the same conclusion. One of the
secondary purposes of the law, as set out in that section, is to
prevent the slaughter for food of carabaos fit for agricultural
and draft purposes, and of all animals unfit for human
consumption. A construction which would limit the
prohibitions and penalties prescribed in the statute to the
killing of such animals in municipal slaughterhouses, leaving
unprohibited and unpenalized their slaughter outside of such
establishments, so manifestly tends to defeat the purpose and
object of the legislator, that unless imperatively demanded by
the language of the statute it should be rejected; and, as we
have already indicated, the language of the statute is clearly
susceptible of the construction which we have placed upon it,
which tends to make effective the provisions of this as well as
all the other sections of the Act.
It appears that the defendant did in fact apply for a permit to
slaughter his carabao, and that it was denied him on the ground
that the animal was not unfit "for agricultural work or for draft
purposes." Counsel for appellant contends that the statute, in
so far as it undertakes to penalize the slaughter of carabaos for
human consumption as food, without first obtaining a permit
which can not be procured in the event that the animal is not
unfit "for agricultural work or draft purposes," is
unconstitutional and in violation of the terms of section 5 of the
Philippine Bill (Act of Congress, July 1, 1902), which provides
that "no law shall be enacted which shall deprive any person of
life, liberty, or property without due process of law."
It is not quite clear from the argument of counsel whether his
contention is that this provision of the statute constitutes a
taking of property for public use in the exercise of the right of
eminent domain without providing for the compensation of the
owners, or that it is an undue and unauthorized exercise of the
police power of the State. But whatever may be the basis of his
contention, we are of opinion, appropriating, with necessary
modifications understood, the language of that great jurist,
Chief Justice Shaw (in the case of Com. vs. Tewksbury, 11 Met.,
55, where the question involved was the constitutionality of a
statute prohibiting and penalizing the taking or carrying away
by any person, including the owner, of any stones, gravel, or
sand, from any of the beaches in the town of Chesea,) that the
law in question "is not a taking of the property for public use,
within the meaning of the constitution, but is a just and
legitimate exercise of the power of the legislature to regulate
and restrain such particular use of the property as would be
inconsistent with or injurious to the rights of the public. All
property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights of others or
greatly impair the public rights and interest of the community."
61
It may be conceded that the benificial use and exclusive
enjoyment of the property of all carabao owners in these
Islands is to a greater or less degree interfered with by the
provisions of the statute; and that, without inquiring what
quantum of interest thus passes from the owners of such cattle,
it is an interest the deprivation of which detracts from their
right and authority, and in some degree interferes with their
exclusive possession and control of their property, so that if the
regulations in question were enacted for purely private
purpose, the statute, in so far as these regulations are
concerned, would be a violation of the provisions of the
Philippine Bill relied on be appellant; but we are satisfied that
it is not such a taking, such an interference with the right and
title of the owners, as is involved in the exercise by the State of
the right of eminent domain, so as to entitle these owners to
compensation, and that it is no more than "a just restrain of an
injurious private use of the property, which the legislature had
authority to impose."
In the case of Com. vs. Alger (7 Cush., 53, 84), wherein the
doctrine laid down in Com. vs. Tewksbury (supra) was reviewed
and affirmed, the same eminent jurist who wrote the former
opinion, in distinguishing the exercise of the right of eminent
domain from the exercise of the sovereign police powers of the
State, said:
We think it is settled principle, growing out of the nature of
well-ordered civil society, that every holder of property,
however absolute and unqualified may be his title, holds it
under the implied liability that his use of it may be so regulated
that is shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor
injurious to the rights of the community. . . . Rights of property,
like all other social and conventional rights, are subject to such
reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restrain and
regulations establish by law, as the legislature, under the
governing and controlling power vested in them by the
constitution, may think necessary and expedient.
This is very different from the right of eminent domain, the
right of a government to take and appropriate private property
to public use, whenever the public exigency requires it; which
can be done only on condition of providing a reasonable
compensation therefor. The power we allude to is rather the
police power, the power vested in the legislature by the
constitution, to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances,
either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare
of the commonwealth, and of the subjects of the same.
It is much easier to perceive and realize the existence and
sources of this power than to mark its boundaries or prescribe
limits to its exercise.
62
Applying these principles, we are opinion that the restrain
placed by the law on the slaughter for human consumption of
carabaos fit for agricultural work and draft purpose is not an
appropriation of property interests to a "public use," and is not,
therefore, within the principle of the exercise by the State of
the right of eminent domain. It is fact a mere restriction or
limitation upon a private use, which the legislature deemed to
be determental to the public welfare. And we think that an
examination of the general provisions of the statute in relation
to the public interest which it seeks to safeguard and the public
necessities for which it provides, leaves no room for doubt that
the limitations and restraints imposed upon the exercise of
rights of ownership by the particular provisions of the statute
under consideration were imposed not for private purposes
but, strictly, in the promotion of the "general welfare" and "the
public interest" in the exercise of the sovereign police power
which every State possesses for the general public welfare and
which "reaches to every species of property within the
commonwealth."
For several years prior to the enactment of the statute a
virulent contagious or infectious disease had threatened the
total extinction of carabaos in these Islands, in many sections
sweeping away seventy, eighty, and in some cases as much as
ninety and even one hundred per cent of these animals.
Agriculture being the principal occupation of the people, and
the carabao being the work animal almost exclusively in use in
the fields as well as for draft purposes, the ravages of the
disease with which they were infected struck an almost vital
blow at the material welfare of the country. large areas of
productive land lay waste for years, and the production of rice,
the staple food of the inhabitants of the Islands, fell off to such
an extent that the impoverished people were compelled to
spend many millions of pesos in its importation,
notwithstanding the fact that with sufficient work animals to
cultivate the fields the arable rice lands of the country could
easily be made to produce a supply more that sufficient for its
own needs. The drain upon the resources of the Islands was
such that famine soon began to make itself felt, hope sank in
the breast of the people, and in many provinces the energies of
the breadwinners seemed to be paralyzed by the apparently
hopeless struggle for existence with which they were
confronted.
To meet these conditions, large sums of money were expended
by the Government in relieving the immediate needs of the
starving people, three millions of dollars were voted by the
Congress of the United States as a relief or famine fund, public
works were undertaken to furnish employment in the provinces
where the need was most pressing, and every effort made to
alleviate the suffering incident to the widespread failure of the
crops throughout the Islands, due in large measure to the lack
of animals fit for agricultural work and draft purposes.
Such measures, however, could only temporarily relieve the
situation, because in an agricultural community material
63
progress and permanent prosperity could hardly be hoped for
in the absence of the work animals upon which such a
community must necessarily rely for the cultivation of the fields
and the transportation of the products of the fields to market.
Accordingly efforts were made by the Government to increase
the supply of these animals by importation, but, as appears
from the official reports on this subject, hope for the future
depended largely on the conservation of those animals which
had been spared from the ravages of the diseased, and their
redistribution throughout the Islands where the need for them
was greatest.
At large expense, the services of experts were employed, with
a view to the discovery and applications of preventive and
curative remedies, and it is hoped that these measures have
proved in some degree successful in protecting the present
inadequate supply of large cattle, and that the gradual increase
and redistribution of these animals throughout the
Archipelago, in response to the operation of the laws of supply
and demand, will ultimately results in practically relieving those
sections which suffered most by the loss of their work animals.
As was to be expected under such conditions, the price of
carabaos rapidly increase from the three to five fold or more,
and it may fairly be presumed that even if the conservative
measures now adopted prove entirely successful, the scant
supply will keep the price of these animals at a high figure until
the natural increase shall have more nearly equalized the
supply to the demand.
Coincident with and probably intimately connected with this
sudden rise in the price of cattle, the crime of cattle stealing
became extremely prevalent throughout the Islands,
necessitating the enactment of a special law penalizing with the
severest penalties the theft of carabaos and other personal
property by roving bands; and it must be assumed from the
legislative authority found that the general welfare of the
Islands necessitated the enactment of special and somewhat
burdensome provisions for the branding and registration of
large cattle, and supervision and restriction of their slaughter
for food. It will hardly be questioned that the provisions of the
statute touching the branding and registration of such cattle,
and prohibiting and penalizing the slaughter of diseased cattle
for food were enacted in the due and proper exercise of the
police power of the State; and we are of opinion that, under all
the circumstances, the provision of the statute prohibiting and
penalizing the slaughter for human consumption of carabaos fit
for work were in like manner enacted in the due and proper
exercise of that power, justified by the exigent necessities of
existing conditions, and the right of the State to protect itself
against the overwhelming disaster incident to the further
reduction of the supply of animals fit for agricultural work or
draft purposes.
64
It is, we think, a fact of common knowledge in these Islands,
and disclosed by the official reports and records of the
administrative and legislative departments of the Government,
that not merely the material welfare and future prosperity of
this agricultural community were threatened by the ravages of
the disease which swept away the work animals during the
years prior to the enactment of the law under consideration,
but that the very life and existence of the inhabitants of these
Islands as a civilized people would be more or less imperiled by
the continued destruction of large cattle by disease or
otherwise. Confronted by such conditions, there can be no
doubt of the right of the Legislature to adopt reasonable
measures for the preservation of work animals, even to the
extent of prohibiting and penalizing what would, under
ordinary conditions, be a perfectly legitimate and proper
exercise of rights of ownership and control of the private
property of the citizen. The police power rests upon necessity
and the right of self-protection and if ever the invasion of
private property by police regulation can be justified, we think
that the reasonable restriction placed upon the use of carabaos
by the provision of the law under discussion must be held to be
authorized as a reasonable and proper exercise of that power.
As stated by Mr. Justice Brown in his opinion in the case of
Lawton vs. Steele (152 U.S., 133, 136):
The extent and limits of what is known as the police power have
been a fruitful subject of discussion in the appellate courts of
nearly every State in the Union. It is universally conceded to
include everything essential to the public safely, health, and
morals, and to justify the destruction or abatement, by
summary proceedings, of whatever may be regarded as a public
nuisance. Under this power it has been held that the State may
order the destruction of a house falling to decay or otherwise
endangering the lives of passers-by; the demolition of such as
are in the path of a conflagration; the slaughter of diseased
cattle; the destruction of decayed or unwholesome food; the
prohibition of wooden buildings in cities; the regulation of
railways and other means of public conveyance, and of
interments in burial grounds; the restriction of objectionable
trades to certain localities; the compulsary vaccination of
children; the confinement of the insane or those afficted with
contagious deceases; the restraint of vagrants, beggars, and
habitual drunkards; the suppression of obscene publications
and houses of ill fame; and the prohibition of gambling houses
and places where intoxicating liquors are sold. Beyond this,
however, the State may interfere wherever the public interests
demand it, and in this particular a large discretion is necessarily
vested in the legislature to determine, not only what the
interests of the public require, but what measures are
necessary for the protection of such interests. (Barbier vs.
Connolly, 113 U. S., 27; Kidd vs. Pearson, 128 U. S., 1.) To justify
the State in thus interposing its authority in behalf of the public,
it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and, second, that the means are reasonably
65
necessary for the accomplishment of the purpose, and not
unduly oppressive upon individuals. The legislature may not,
under the guise of protecting the public interests, arbitrarily
interfere with private business, or impose unusual and
unnecessary restrictions upon lawful occupations. In other
words, its determination as to what is a proper exercise of its
police powers is not final or conclusive, but is subject to the
supervision of the court.
From what has been said, we think it is clear that the enactment
of the provisions of the statute under consideration was
required by "the interests of the public generally, as
distinguished from those of a particular class;" and that the
prohibition of the slaughter of carabaos for human
consumption, so long as these animals are fit for agricultural
work or draft purposes was a "reasonably necessary" limitation
on private ownership, to protect the community from the loss
of the services of such animals by their slaughter by
improvident owners, tempted either by greed of momentary
gain, or by a desire to enjoy the luxury of animal food, even
when by so doing the productive power of the community may
be measurably and dangerously affected.
Chief Justice Redfield, in Thorpe vs. Rutland & Burlington R. R.
Co. (27 Vt., 140), said (p. 149) that by this "general police power
of the State, persons and property are subjected to all kinds of
restraints and burdens, in order to secure the general comfort,
health, and prosperity of the State; of the perfect right in the
legislature to do which no question ever was, or, upon
acknowledge and general principles, ever can be made, so far
as natural persons are concerned."
And Cooley in his "Constitutional Limitations" (6th ed., p. 738)
says:
It would be quite impossible to enumerate all the instances in
which the police power is or may be exercised, because the
various cases in which the exercise by one individual of his
rights may conflict with a similar exercise by others, or may be
detrimental to the public order or safety, are infinite in number
and in variety. And there are other cases where it becomes
necessary for the public authorities to interfere with the control
by individuals of their property, and even to destroy it, where
the owners themselves have fully observed all their duties to
their fellows and to the State, but where, nevertheless, some
controlling public necessity demands the interference or
destruction. A strong instance of this description is where it
becomes necessary to take, use, or destroy the private property
of individuals to prevent the spreading of a fire, the ravages of
a pestilence, the advance of a hostile army, or any other great
public calamity. Here the individual is in no degree in fault, but
his interest must yield to that "necessity" which "knows no
law." The establishment of limits within the denser portions of
cities and villages within which buildings constructed of
inflammable materials shall not be erected or repaired may
also, in some cases, be equivalent to a destruction of private
66

property; but regulations for this purpose have been sustained
notwithstanding this result. Wharf lines may also be
established for the general good, even though they prevent the
owners of water-fronts from building out on soil which
constitutes private property. And, whenever the legislature
deem it necessary to the protection of a harbor to forbid the
removal of stones, gravel, or sand from the beach, they may
establish regulations to that effect under penalties, and make
them applicable to the owners of the soil equally with other
persons. Such regulations are only "a just restraint of an
injurious use of property, which the legislature have authority"
to impose.
proper exercise of that power is not in violation of the terms of
section 5 of the Philippine Bill, which provide that "no law shall
be enacted which shall deprive any person of life, liberty, or
property without due process of law," a provision which itself
is adopted from the Constitution of the United States, and is
found in substance in the constitution of most if not all of the
States of the Union.
The judgment of conviction and the sentence imposed by the
trial court should be affirmed with the costs of this instance
against the appellant. So ordered.

So a particular use of property may sometimes be forbidden,

where, by a change of circumstances, and without the fault of
the power, that which was once lawful, proper, and
unobjectionable has now become a public nuisance,
endangering the public health or the public safety. Milldams are
sometimes destroyed upon this grounds; and churchyards
which prove, in the advance of urban population, to be
detrimental to the public health, or in danger of becoming so,
are liable to be closed against further use for cemetery
purposes.

These citations from some of the highest judicial and text-book

authorities in the United States clearly indicate the wide scope
and extent which has there been given to the doctrine us in our
opinion that the provision of the statute in question being a
67

of the airport passed directly over respondents' property at 83

feet, which was 67 feet above the house, 63 feet above the barn
and 18 feet above the highest tree. It was used 4% of the time
in taking off and 7% of the time in landing. The Government
leased the use of the airport for a term of one month
commencing June 1, 1942, with a provision for renewals until
June 30, 1967, or six months after the end of the national
emergency, whichever was earlier. Various military aircraft of
the United States used the airport. They frequently came so
U.S. Supreme Court close to respondents' property that they barely missed the tops
United States v. Causby, 328 U.S. 256 (1946) of trees, the noise was startling, and the glare from their
United States v. Causby landing lights lighted the place up brightly at night. This
destroyed the use of the property as a chicken farm and caused
No. 630 loss of sleep, nervousness, and fright on the part of
respondents. They sued in the Court of Claims to recover for an
Argued May 1, 1946 alleged taking of their property and for damages to their
poultry business. The Court of Claims found that the
Decided May 27, 1946 Government had taken an easement over respondents'
property, and that the value of the property destroyed and the
328 U.S. 256 easement taken was $2,000; but it made no finding as to the
precise nature or duration of the easement.

CERTIORARI TO THE COURT OF CLAIMS Held:

Syllabus 1. A servitude has been imposed upon the land for which
respondents are entitled to compensation under the Fifth
Respondents owned a dwelling and a chicken farm near a Amendment. Pp. 328 U. S. 260-267.
municipal airport. The safe path of glide to one of the runways
68
(a) The common law doctrine that ownership of land extends
to the periphery of the universe has no place in the modern
world. Pp. 328 U. S. 260-261.
(b) The air above the minimum safe altitude of flight prescribed
by the Civil Aeronautics Authority is a public highway and part
of the public domain, as declared by Congress in the Air
Commerce Act of 1926, as amended by the Civil Aeronautics Act
of 1938. Pp. 328 U. S. 260-261, 328 U. S. 266.
(c) Flights below that altitude are not within the navigable air
space which Congress placed within the public domain, even
though they are within the path of glide approved by the Civil
Aeronautics Authority. Pp. 328 U. S. 263-264.
Page 328 U. S. 257
(d) Flights of aircraft over private land which are so low and
frequent as to be a direct and immediate interference with the
enjoyment and use of the land are as much an appropriation of
the use of the land as a more conventional entry upon it. Pp.
328 U. S. 261-262, 328 U. S. 264-267.
2. Since there was a taking of private property for public use,
the claim was "founded upon the Constitution," within the
meaning of § 141(1) of the Judicial Code, and the Court of
Claims had jurisdiction to hear and determine it. P. 328 U. S.
267.
3. Since the court's findings of fact contain no precise
description of the nature or duration of the easement taken,
the judgment is reversed, and the cause is remanded to the
Court of Claims so that it may make the necessary findings. Pp.
328 U. S. 267-268.
(a) An accurate description of the easement taken is essential,
since that interest vests in the United States. P. 328 U. S. 267.
(b) Findings of fact on every "material issue" are a statutory
requirement, and a deficiency in the findings cannot be
rectified by statements in the opinion. Pp. 328 U. S. 267-268.
(c) A conjecture in lieu of a conclusion from evidence would not
be a proper foundation for liability of the United States. P. 328
U. S. 268.
104 Ct.Cls. 342, 60 F.Supp. 751, reversed and remanded.
The Court of Claims granted respondents a judgment for the
value of property destroyed and damage to their property
resulting from the taking of an easement over their property by
low-flying military aircraft of the United States, but failed to
include in its findings of fact a specific description of the nature
or duration of the easement. 104 Ct.Cls. 342, 60 F.Supp. 751.
This Court granted certiorari. 327 U.S. 775. Reversed and
remanded, p. 328 U. S. 268.
69
Page 328 U. S. 258
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
This is a case of first impression. The problem presented is
whether respondents' property was taken within the meaning
of the Fifth Amendment by frequent and regular flights of army
and navy aircraft over respondents' land at low altitudes. The
Court of Claims held that there was a taking, and entered
judgment for respondent, one judge dissenting. 60 F.Supp. 751.
The case is here on a petition for a writ of certiorari which we
granted because of the importance of the question presented.
Respondents own 2.8 acres near an airport outside of
Greensboro, North Carolina. It has on it a dwelling house, and
also various outbuildings which were mainly used for raising
chickens. The end of the airport's northwest-southeast runway
is 2,220 feet from respondents' barn and 2,275 feet from their
house. The path of glide to this runway passes directly over the
property -- which is 100 feet wide and 1,200 feet long. The 30
to 1 safe glide angle [Footnote 1] approved by the Civil
Aeronautics Authority [Footnote 2] passes over this property at
83 feet, which is 67 feet above the house, 63 feet above the
barn and 18 feet above the highest tree. [Footnote 3] The use
by the United States of this airport is pursuant to a lease
executed in May, 1942, for a term commencing June 1, 1942
and ending June 30, 1942, with a provision for renewals until
June 30, 1967, or six
Page 328 U. S. 259
months after the end of the national emergency, whichever is
the earlier.
Various aircraft of the United States use this airport -- bombers,
transports, and fighters. The direction of the prevailing wind
determines when a particular runway is used. The northwest-
southeast runway in question is used about four percent of the
time in taking off and about seven percent of the time in
landing. Since the United States began operations in May, 1942,
its four-motored heavy bombers, other planes of the heavier
type, and its fighter planes have frequently passed over
respondents' land buildings in considerable numbers and
rather close together. They come close enough at times to
appear barely to miss the tops of the trees, and at times so close
to the tops of the trees as to blow the old leaves off. The noise
is startling. And, at night, the glare from the planes brightly
lights up the place. As a result of the noise, respondents had to
give up their chicken business. As many as six to ten of their
chickens were killed in one day by flying into the walls from
fright. The total chickens lost in that manner was about 150.
Production also fell off. The result was the destruction of the
use of the property as a commercial chicken farm. Respondents
are frequently deprived of their sleep, and the family has
70
become nervous and frightened. Although there have been no
airplane accidents on respondents' property, there have been
several accidents near the airport and close to respondents'
place. These are the essential facts found by the Court of
Claims. On the basis of these facts, it found that respondents'
property had depreciated in value. It held that the United
States had taken an easement over the property on June 1,
1942, and that the value of the property destroyed and the
easement taken was $2,000.
Page 328 U. S. 260
I. The United States relies on the Air Commerce Act of 1926, 44
Stat. 568, 49 U.S.C. § 171 et seq., as amended by the Civil
Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401 et seq.
Under those statutes, the United States has "complete and
exclusive national sovereignty in the air space" over this
country. 49 U.S.C. § 176(a). They grant any citizen of the United
States "a public right of freedom of transit in air commerce
[Footnote 4] through the navigable air space of the United
States." 49 U.S.C. § 403. And "navigable air space" is defined as
"airspace above the minimum safe altitudes of flight prescribed
by the Civil Aeronautics Authority." 49 U.S.C. § 180. And it is
provided that "such navigable airspace shall be subject to a
public right of freedom of interstate and foreign air navigation."
Id. It is therefore argued that, since these flights were within
the minimum safe altitudes of flight which had been prescribed,
they were an exercise of the declared right of travel through
the airspace. The United States concludes that, when flights are
made within the navigable airspace without any physical
invasion of the property of the landowners, there has been no
taking of property. It says that, at most, there was merely
incidental damage occurring as a consequence of authorized air
navigation. It also argues that the landowner does not own
superadjacent airspace which he has not subjected to
possession by the erection of structures or other occupancy.
Moreover, it is argued that, even if the United States took
airspace owned by respondents, no compensable damage was
shown. Any damages are said to be merely consequential for
which no compensation may be obtained under the Fifth
Amendment.
It is ancient doctrine that at common law ownership of the land
extended to the periphery of the universe -- cujus
Page 328 U. S. 261
est solum ejus est usque and coelum. [Footnote 5] But that
doctrine has no place in the modern world. The air is a public
highway, as Congress has declared. Were that not true, every
transcontinental flight would subject the operator to countless
trespass suits. Common sense revolts at the idea. To recognize
such private claims to the airspace would clog these highways,
seriously interfere with their control and development in the
public interest, and transfer into private ownership that to
which only the public has a just claim.
71
But that general principle does not control the present case. For
the United States conceded on oral argument that, if the flights
over respondents' property rendered it uninhabitable, there
would be a taking compensable under the Fifth Amendment. It
is the owner's loss, not the taker's gain, which is the measure
of the value of the property taken. United States v. Miller, 317
U. S. 369. Market value fairly determined is the normal measure
of the recovery. Id. And that value may reflect the use to which
the land could readily be converted, as well as the existing use.
United States v. Powelson, 319 U. S. 266, 319 U. S. 275, and
cases cited. If, by reason of the frequency and altitude of the
flights, respondents could not use this land for any purpose,
their loss would be complete. [Footnote 6] It would be as
complete as if the United States had entered upon the surface
of the land and taken exclusive possession of it.
We agree that, in those circumstances, there would be a taking.
Though it would be only an easement of flight
Page 328 U. S. 262
which was taken, that easement, if permanent and not merely
temporary, normally would be the equivalent of a fee interest.
It would be a definite exercise of complete dominion and
control over the surface of the land. The fact that the planes
never touched the surface would be as irrelevant as the
absence in this day of the feudal livery of seisin on the transfer
of real estate. The owner's right to possess and exploit the land
-- that is to say, his beneficial ownership of it -- would be
destroyed. It would not be a case of incidental damages arising
from a legalized nuisance, such as was involved in Richards v.
Washington Terminal Co., 233 U. S. 546. In that case, property
owners whose lands adjoined a railroad line were denied
recovery for damages resulting from the noise, vibrations,
smoke, and the like, incidental to the operations of the trains.
In the supposed case, the line of flight is over the land. And the
land is appropriated as directly and completely as if it were
used for the runways themselves.
There is no material difference between the supposed case and
the present one, except that, here, enjoyment and use of the
land are not completely destroyed. But that does not seem to
us to be controlling. The path of glide for airplanes might
reduce a valuable factory site to grazing land, an orchard to a
vegetable patch, a residential section to a wheat field. Some
value would remain. But the use of the airspace immediately
above the land would limit the utility of the land and cause a
diminution in its value. [Footnote 7] That was the philosophy of
Portsmouth Harbor Land & Hotel Co. v.
Page 328 U. S. 263
United States, 260 U. S. 327. In that case, the petition alleged
that the United States erected a fort on nearby land,
established a battery and a fire control station there, and fired
72
guns over petitioner's land. The Court, speaking through Mr.
Justice Holmes, reversed the Court of Claims which dismissed
the petition on a demurrer, holding that "the specific facts set
forth would warrant a finding that a servitude has been
imposed." [Footnote 8] 260 U.S. at 260 U. S. 330. And see Delta
Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245. Cf. United States
v. 357.25 Acres of Land, 55 F.Supp. 461.
The fact that the path of glide taken by the planes was that
approved by the Civil Aeronautics Authority does not change
the result. The navigable airspace which Congress has placed in
the public domain is "airspace above the minimum safe
altitudes of flight prescribed by the Civil Aeronautics
Authority." 49 U.S.C. § 180. If that agency prescribed 83 feet as
the minimum safe altitude, then we would have presented the
question of the validity of the regulation. But nothing of the sort
has been done. The path of glide governs the method of
operating -- of landing or taking off. The altitude required for
that operation is not the minimum safe altitude of flight which
is the downward reach of the navigable airspace. The minimum
prescribed by the authority is 500 feet during the day and 1000
feet at night for air carriers (Civil Air Regulations, Pt. 61, §§
61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and
from 300 to 1000 feet for
Page 328 U. S. 264
other aircraft depending on the type of plane and the character
of the terrain. Id., Pt. 60, §§ 60.350-60.3505,
Fed.Reg.Cum.Supp., supra. Hence, the flights in question were
not within the navigable airspace which Congress placed within
the public domain. If any airspace needed for landing or taking
off were included, flights which were so close to the land as to
render it uninhabitable would be immune. But the United
States concedes, as we have said, that, in that event, there
would be a taking. Thus, it is apparent that the path of glide is
not the minimum safe altitude of flight within the meaning of
the statute. The Civil Aeronautics Authority has, of course, the
power to prescribe air traffic rules. But Congress has defined
navigable airspace only in terms of one of them -- the minimum
safe altitudes of flight.
We have said that the airspace is a public highway. Yet it is
obvious that, if the landowner is to have full enjoyment of the
land, he must have exclusive control of the immediate reaches
of the enveloping atmosphere. Otherwise buildings could not
be erected, trees could not be planted, and even fences could
not be run. The principle is recognized when the law gives a
remedy in case overhanging structures are erected on adjoining
land. [Footnote 9] The landowner owns at least as much of the
space above the ground as the can occupy or use in connection
with the land. See Hinman v. Pacific Air Transport, 84 F.2d 755.
The fact that he does not occupy it in a physical sense -- by the
erection of buildings and the like -- is not material. As we have
said, the flight of airplanes, which skim the surface but do not
73
touch it, is as much an appropriation of the use of the land as a
more conventional entry upon it. We would not doubt that, if
the United States erected
Page 328 U. S. 265
an elevated railway over respondents' land at the precise
altitude where its planes now fly, there would be a partial
taking, even though none of the supports of the structure
rested on the land. [Footnote 10] The reason is that there
would be an intrusion so immediate and direct as to subtract
from the owner's full enjoyment of the property and to limit his
exploitation of it. While the owner does not in any physical
manner occupy that stratum of airspace or make use of it in the
conventional sense, he does use it in somewhat the same sense
that space left between buildings for the purpose of light and
air is used. The superadjacent airspace at this low altitude is so
close to the land that continuous invasions of it affect the use
of the surface of the land itself. We think that the landowner,
as an incident to his ownership, has a claim to it, and that
invasions of it are in the same category as invasions of the
surface. [Footnote 11]
In this case, as in Portsmouth Harbor Land & Hotel Co. v. United
States, supra, the damages were not merely consequential.
They were the product of a direct invasion of respondents'
domain.
Page 328 U. S. 266
As stated in United States v. Cress, 243 U. S. 316, 243 U. S. 328,
". . . it is the character of the invasion, not the amount of
damage resulting from it, so long as the damage is substantial,
that determines the question whether it is a taking."
We said in United States v. Powelson, supra, p. 319 U. S. 279,
that, while the meaning of "property" as used in the Fifth
Amendment was a federal question, "it will normally obtain its
content by reference to local law." If we look to North Carolina
law, we reach the same result. Sovereignty in the airspace rests
in the State "except where granted to and assumed by the
United States." Gen.Stats.1943, § 63-11. The flight of aircraft is
lawful
"unless at such a low altitude as to interfere with the then
existing use to which the land or water, or the space over the
land or water, is put by the owner, or unless so conducted as to
be imminently dangerous to persons or property lawfully on
the land or water beneath."
Id., § 63-13. Subject to that right of flight, "ownership of the
space above the lands and waters of this State is declared to be
vested in the several owners of the surface beneath." Id., § 63-
12. Our holding that there was an invasion of respondents'
property is thus not inconsistent with the local law governing a
74
landowner's claim to the immediate reaches of the
superadjacent airspace.
The airplane is part of the modern environment of life, and the
inconveniences which it causes are normally not compensable
under the Fifth Amendment. The airspace, apart from the
immediate reaches above the land, is part of the public domain.
We need not determine at this time what those precise limits
are. Flights over private land are not a taking, unless they are
so low and so frequent as to be a direct and immediate
interference with the enjoyment and use of the land. We need
not speculate on that phase of the present case. For the
findings of the Court
Page 328 U. S. 267
of Claims plainly establish that there was a diminution in value
of the property, and that the frequent, low-level flights were
the direct and immediate cause. We agree with the Court of
Claims that a servitude has been imposed upon the land.
II. By § 145(1) of the Judicial Code, 28 U.S.C. § 250(1), the Court
of Claims has jurisdiction to hear and determine
"All claims (except for pensions) founded upon the Constitution
of the United States or . . . upon any contract, express or
implied, with the Government of the United States."
We need not decide whether repeated trespasses might give
rise to an implied contract. Cf. Portsmouth Harbor Land & Hotel
Co. v. United States, supra. If there is a taking, the claim is
"founded upon the Constitution," and within the jurisdiction of
the Court of Claims to hear and determine. See Hollister v.
Benedict & Burnham Mfg. Co., 113 U. S. 59, 113 U. S. 67; Hurley
v. Kincaid, 285 U. S. 95, 285 U. S. 104; Yearsley v. W. A. Ross
Construction Co., 309 U. S. 18, 309 U. S. 21. Thus, the
jurisdiction of the Court of Claims in this case is clear.
III. The Court of Claims held, as we have noted, that an
easement was taken. But the findings of fact contain no precise
description as to its nature. It is not described in terms of
frequency of flight, permissible altitude, or type of airplane. Nor
is there a finding as to whether the easement taken was
temporary or permanent. Yet an accurate description of the
property taken is essential, since that interest vests in the
United States. United States v. Cress, supra, 243 U. S. 328-329,
and cases cited. It is true that the Court of Claims stated in its
opinion that the easement taken was permanent. But the
deficiency in findings cannot be rectified by statements in the
opinion. United States v. Esnault-Pelterie, 299 U. S. 201, 299 U.
S. 205-206; United States v. Seminole Nation, 299 U. S. 417, 299
U. S. 422. Findings of fact on every "material issue" are a
statutory
Page 328 U. S. 268
75
requirement. 53 Stat. 752, 28 U.S.C. § 288. The importance of
findings of fact based on evidence is emphasized here by the
Court of Claims' treatment of the nature of the easement. It
stated in its opinion that the easement was permanent because
the United States "no doubt intended to make some sort of
arrangement whereby it could use the airport for its military
planes whenever it had occasion to do so." That sounds more
like conjecture, rather than a conclusion from evidence, and if
so, it would not be a proper foundation for liability of the
United States. We do not stop to examine the evidence to
determine whether it would support such a finding, if made. For
that is not our function. United States v. Esnault-Pelterie, supra,
p. 299 U. S. 206.
Since on this record it is not clear whether the easement taken
is a permanent or a temporary one, it would be premature for
us to consider whether the amount of the award made by the
Court of Claims was proper.
The judgment is reversed, and the cause is remanded to the
Court of Claims so that it may make the necessary findings in
conformity with this opinion.
Reversed.
U.S. Supreme Court
United States v. Caltex, Inc., 344 U.S. 149 (1952)
United States v. Caltex (Philippines), Inc.
No. 16
Argued October 20, 1952
Decided December 8, 1952
344 U.S. 149
CERTIORARI TO THE COURT OF CLAIMS
Syllabus
In the circumstances of this case, the wartime destruction of
private property by the Army to prevent its imminent capture
and use by an advancing enemy did not entitle the owner to
compensation under the Fifth Amendment. Pp. 344 U. S. 150-
156.
(a) Whether or not the principle laid down in United States v.
Pacific R. Co., 120 U. S. 227, was dictum when enunciated, this
Court holds that it is the law today. Pp. 344 U. S. 153-154.
(b) Mitchell v. Harmony, 13 How. 115, and United States v.
Russell, 13 Wall. 623, distinguished. Pp. 344 U. S. 152-153.
(c) A different result is not required by the fact that the Army
exercised "deliberation" in singling out this property, in
76
"requisitioning" it from its owners, and in exercising "control"
over it before destroying it, nor by the fact that the destruction
was effected prior to withdrawal. Pp. 154-155.
120 Ct.Cl. 518, 100 F.Supp. 970, reversed.
In a suit to recover compensation under the Fifth Amendment
for property destroyed by the Army in wartime to prevent its
use by the enemy, the Court of Claims gave judgment for the
plaintiffs. 120 Ct.Cl. 518, 100 F.Supp. 970. This Court granted
certiorari. 343 U.S. 955. Reversed, p. 344 U. S. 156.
Page 344 U. S. 150
MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.
Each of the respondent oil companies owned terminal facilities
in the Pandacan district of Manila at the time of the Japanese
attack upon Pearl Harbor. These were used to receive, handle
and store petroleum products from incoming ships and to
release them for further distribution throughout the Philippine
Islands. Wharves, rail and automotive equipment, pumps,
pipelines, storage tanks, and warehouses were included in the
property on hand at the outbreak of the war, as well as a
normal supply of petroleum products.
News of the Pearl Harbor attack reached Manila early in the
morning of December 8, 1941. On the same day, enemy air
attacks were mounted against our forces in the Philippines, and
thereafter the enemy launched his amphibious assault.
On December 12, 1941, the United States Army, through its
Chief Quartermaster, stationed a control officer at the
terminals. Operations continued at respondents' plants, but
distribution of the petroleum products for civilian use was
severely restricted. A major share of the existing supplies was
requisitioned by the Army.
The military situation in the Philippines grew worse. In the face
of the Japanese advance, the Commanding General, on
December 23, 1941, ordered the withdrawal of all troops on
Luzon to the Bataan Peninsula. On December 25, 1941, he
declared Manila to be an open city. On that same day, the Chief
Engineer on the staff of the Commanding General addressed to
each of the oil companies letters stating that the Pandacan oil
deposits "are requisitioned by the U.S. Army." The letters
further stated: "Any action deemed necessary for the
destruction of this property will be handled by the U.S. Army."
An engineer in the employ of one of the companies
Page 344 U. S. 151
was commissioned a first lieutenant in the Army Corps of
Engineers to facilitate this design.
77
On December 26, he received orders to prepare the facilities
for demolition. On December 27, 1941, while enemy planes
were bombing the area, this officer met with representatives of
the companies. The orders of the Chief Engineer had been
transmitted to the companies. Letters from the Deputy Chief of
Staff, by command of General MacArthur, also had been sent
to each of the oil companies, directing the destruction of all
remaining petroleum products and the vital parts of the plants.
Plans were laid to carry out these instructions, to expedite the
removal of products which might still be of use to the troops in
the field, and to lay a demolition network about the terminals.
The representatives of Caltex were given, at their insistence, a
penciled receipt for all the terminal facilities and stocks of
Caltex.
At 5:40 p.m., December 31, 1941, while Japanese troops were
entering Manila, Army personnel completed a successful
demolition. All unused petroleum products were destroyed,
and the facilities were rendered useless to the enemy. The
enemy was deprived of a valuable logistic weapon.
After the war, respondents demanded compensation for all of
the property which had been used or destroyed by the Army.
The Government paid for the petroleum stocks and
transportation equipment which were either used or destroyed
by the Army, but it refused to compensate respondents for the
destruction of the Pandacan terminal facilities. Claiming a
constitutional right under the Fifth Amendment [Footnote 1] to
just compensation for these terminal facilities, respondents
sued in the Court of Claims. Recovery was allowed. 120 Ct.Cl.
518, 100 F.Supp.
Page 344 U. S. 152
970. We granted certiorari to review this judgment. 343 U.S.
955.
As reflected in the findings of the Court of Claims, there were
two rather distinct phases of Army operations in the Pandacan
District in December, 1941. While the military exercised
considerable control over the business operations of
respondents' terminals during the period between December
12 and December 26, there was not, according to the findings
below, an assumption of actual physical or proprietary
dominion over them during this period. [Footnote 2] Bound by
these findings, respondents do not now question the holding of
the Court of Claims that, prior to December 27, there was no
seizure for which just compensation must be paid.
Accordingly, it is the legal significance of the events that
occurred between December 27 and December 31 which
concerns us. Respondents concede that the Army had a right to
destroy the installations. But they insist that the destruction
created a right in themselves to exact fair compensation from
the United States for what was destroyed.
78
The argument draws heavily from statements by this Court in
Mitchell v. Harmony, 13 How. 115 (1852), and United States v.
Russell, 13 Wall. 623 (1871). We agree that the opinions lend
some support to respondents' view. [Footnote 3]
Page 344 U. S. 153
But the language in those two cases is far broader than the
holdings. Both cases involved equipment which had been
impressed by the Army for subsequent use by the Army. In
neither was the Army's purpose limited, as it was in this case,
to the sole objective of destroying property of strategic value
to prevent the enemy from using it to wage war the more
successfully.
A close reading of the Mitchell and Russell cases shows that
they are not precedent to establish a compensable taking in this
case. Nor do those cases exhaust all that has been said by this
Court on the subject. In United States v. Pacific R. Co., 120 U. S.
227 (1887), Justice Field, speaking for a unanimous Court,
discussed the question at length. That case involved bridges
which had been destroyed during the war between the states
by a retreating Northern Army to impede the advance of the
Confederate Army. [Footnote 4] Though the point was not
directly involved, the Court raised the question of whether this
act constituted a compensable taking by the United States, and
answered it in the negative:
"The destruction or injury of private property in battle, or in the
bombardment of cities and towns, and in many other ways in
the war, had to be borne by the sufferers alone, as one of its
consequences. Whatever would embarrass or impede the
advance
Page 344 U. S. 154
of the enemy, as the breaking up of roads or the burning of
bridges, or would cripple and defeat him, as destroying his
means of subsistence, were lawfully ordered by the
commanding general. Indeed, it was his imperative duty to
direct their destruction. The necessities of the war called for
and justified this. The safety of the state in such cases overrides
all considerations of private loss. [Footnote 5]"
It may be true that this language also went beyond the precise
questions at issue. But the principles expressed were neither
novel nor startling, for the common law had long recognized
that, in times of imminent peril -- such as when fire threatened
a whole community -- the sovereign could, with immunity,
destroy the property of a few that the property of many and
the lives of many more could be saved. [Footnote 6] And what
was said in the Pacific Railroad case was later made the basis
for the holding in Juragua Iron Co. v. United States, 212 U. S.
297, where recovery was denied to the owners of a factory
which had been destroyed by American soldiers in the field in
79
Cuba because it was thought that the structure housed the
germs of a contagious disease.
Therefore, whether or not the principle laid down by Justice
Field was dictum when he enunicated it, we hold that it is law
today. In our view, it must govern in this case. Respondents and
the majority of the Court of Claims, arguing to the contrary,
have placed great emphasis on the fact that the Army exercised
"deliberation" in singling out this property, in "requisitioning" it
from its owners, and in exercising "control" over it before
devastating it. We need not labor over these labels; it may be
Page 344 U. S. 155
that they describe adequately what was done, but they do not
show the legal consequences of what was done. The
"requisition" involved in this case was no more than an order
to evacuate the premises which were slated for demolition. The
"deliberation" behind the order was no more than a design to
prevent the enemy from realizing any strategic value from an
area which he was soon to capture.
Had the Army hesitated, had the facilities only been destroyed
after retreat, respondents would certainly have no claims to
compensation. The Army did not hesitate. It is doubtful that any
concern over the legal niceties of the situation entered into the
decision to destroy the plants promptly, while there was yet
time to destroy them thoroughly. [Footnote 7] Nor do we think
it legally significant that the destruction was effected prior to
withdrawal. The short of the matter is that this property, due
to the fortunes of war, had become a potential weapon of great
significance to the invader. It was destroyed, not appropriated
for subsequent use. It was destroyed that the United States
might better and sooner destroy the enemy.
The terse language of the Fifth Amendment is no
comprehensive promise that the United States will make whole
all who suffer from every ravage and burden of war. This Court
has long recognized that, in wartime, many losses must be
attributed solely to the fortunes of war,
Page 344 U. S. 156
and not to the sovereign. [Footnote 8] No rigid rules can be laid
down to distinguish compensable losses from noncompensable
losses. Each case must be judged on its own facts. But the
general principles laid down in the Pacific Railroad case seem
especially applicable here. Viewed realistically, then, the
destruction of respondents' terminals by a trained team of
engineers in the face of their impending seizure by the enemy
was no different than the destruction of the bridges in the
Pacific Railroad case. Adhering to the principles of that case, we
conclude that the court below erred in holding that
respondents have a constitutional right to compensation on the
claims presented to this Court.
80

Reversed.

G.R. No. L-2089 October 31, 1949

JUSTA G. GUIDO, Petitioner, vs. RURAL PROGRESS

ADMINISTRATION, c/o FAUSTINO AGUILAR, Manager, Rural
Progress Administration, Respondent.

Guillermo B. Guevara for petitioner.

Luis M. Kasilag and Lorenzo B. Vizconde for respondent

TUASON, J.: chanrobles virtual law library

This a petition for prohibition to prevent the Rural Progress

Administration and Judge Oscar Castelo of the Court of First
Instance of Rizal from proceeding with the expropriation of the
petitioner Justa G. Guido's land, two adjoining lots, part
commercial, with a combined area of 22,655 square meters,
situated in Maypajo, Caloocan, Rizal, just outside the north
Manila boundary, on the main street running from this city to
the north. Four grounds are adduced in support of the petition,
to wit:

(1) That the respondent RPA (Rural Progress Administration)

acted without jurisdiction or corporate power in filling the
81
expropriation complaint and has no authority to negotiate with
the RFC a loan of P100,000 to be used as part payment of the
value of the land.chanroblesvirtualawlibrary chanrobles virtual
law library
(2) That the land sought to be expropriated is commercial and
therefore excluded within the purview of the provisions of Act
539.chanroblesvirtualawlibrary chanrobles virtual law library
(3) That majority of the tenants have entered with the
petitioner valid contracts for lease, or option to buy at an
agreed price, and expropriation would impair those existing
obligation of contract.chanroblesvirtualawlibrary chanrobles
virtual law library
(4) That respondent Judge erred in fixing the provisional value
of the land at P118,780 only and in ordering its delivery to the
respondent RPA.
We will take up only ground No. 2. Our conclusion on this
branch of the case will make superfluous a decision on the
other questions raised.chanroblesvirtualawlibrary chanrobles
virtual law library
Sections 1 and 2 of Commonwealth Act No. 539, copied
verbatim, are as follows:
SECTION 1. The President of the Philippines is authorized to
acquire private lands or any interest therein, through purchaser
or farms for resale at reasonable prices and under such
conditions as he may fix to their bona fide tenants or occupants
or to private individuals who will work the lands themselves
and who are qualified to acquire and own lands in the
Philippines.chanroblesvirtualawlibrary chanrobles virtual law
library
SEC. 2. The President may designated any department, bureau,
office, or instrumentality of the National Government, or he
may organize a new agency to carry out the objectives of this
Act. For this purpose, the agency so created or designated shall
be considered a public corporation.
The National Assembly approved this enactment on the
authority of section 4 of Article XIII of the Constitution which,
copied verbatim, is as follows:
The Congress may authorize, upon payment of just
compensation, the expropriation of lands to be subdivided into
small lots and conveyed at cost to individuals.
What lands does this provision have in view? Does it
comprehend all lands regardless of their location, nature and
area? The answer is to be found in the explanatory statement
of Delegate Miguel Cuaderno, member of the Constitutional
Convention who was the author or sponsor of the above-
82
quoted provision. In this speech, which was entitled "Large
Estates and Trust in Perpetuity" and is transcribed in full in
Aruego's "The Framing of the Philippine Constitution," Mr.
Cuaderno said:
There has been an impairment of public tranquility, and to be
sure a continuous of it, because of the existence of these
conflicts. In our folklore the oppression and exploitation of the
tenants are vividly referred to; their sufferings at the hand of
the landlords are emotionally pictured in our drama; and even
in the native movies and talkies of today, this theme of
economic slavery has been touched upon. In official documents
these same conflicts are narrated and exhaustively explained as
a threat to social order and stability.chanroblesvirtualawlibrary
chanrobles virtual law library
But we should go to Rizal inspiration and illumination in this
problem of this conflicts between landlords and tenants. The
national hero and his family were persecuted because of these
same conflicts in Calamba, and Rizal himself met a martyr's
death because of his exposal of the cause of the tenant class,
because he would not close his eyes to oppression and
persecution with his own people as
victims.chanroblesvirtualawlibrary chanrobles virtual law
library
I ask you, gentlemen of the Convention, knowing this as you do
and feeling deeply as you must feel a regret over the
immolation of the hero's life, would you not write in the
Constitution the provision on large estates and trust in
perpetuity, so that you would be the very instrument of
Providence to complete the labors of Rizal to insure domestic
tranquility for the masses of our people?chanrobles virtual law
library
If we are to be true to our trust, if it is our purpose in drafting
our constitution to insure domestic tranquility and to provide
for the well-being of our people, we cannot, we must fail to
prohibit the ownership of large estates, to make it the duty of
the government to break up existing large estates, and to
provide for their acquisition by purchase or through
expropriation and sale to their occupants, as has been provided
in the Constitutions of Mexico and Jugoslavia.
No amendment was offered and there was no debate.
According to Dean Aruego, Mr. Cuaderno's resolution was
readily and totally approved by the Convention. Mr. Cuaderno's
speech therefore may be taken as embodying the intention of
the framers of the organic law, and Act No. 539 should be
construed in a manner consonant with that intention. It is to be
presumed that the National Assembly did not intend to go
beyond the constitutional scope of its
powers.chanroblesvirtualawlibrary chanrobles virtual law
library
83
There are indeed powerful considerations, aside from the
intrinsic meaning of section 4 of Article XIII of the Constitution,
for interpreting Act No. 539 in a restrictive sense. Carried to
extremes, this Act would be subversive of the Philippine
political and social structure. It would be in derogation of
individual rights and the time-honored constitutional
guarantee that no private property of law. The protection
against deprivation of property without due process for public
use without just compensation occupies the forefront positions
(paragraph 1 and 2) in the Bill for private use relieves the owner
of his property without due process of law; and the prohibition
that "private property should not be taken for public use
without just compensation" (Section 1 [par. 2], Article III, of the
Constitution) forbids necessary implication the appropriation
of private property for private uses (29 C.J.S., 819). It has been
truly said that the assertion of the right on the part of the
legislature to take the property of and citizen and transfer it to
another, even for a full compensation, when the public interest
is not promoted thereby, is claiming a despotic power, and one
inconsistent with very just principle and fundamental maxim of
a free government. (29 C.J.S., 820.)chanrobles virtual law
library
Hand in hand with the announced principle, herein invoked,
that "the promotion of social justice to insure the well-being
and economic security of all the people should be the concern
of the state," is a declaration, with which the former should be
reconciled, that "the Philippines is a Republican state" created
to secure to the Filipino people "the blessings of independence
under a regime of justice, liberty and democracy." Democracy,
as a way of life enshrined in the Constitution, embraces as its
necessary components freedom of conscience, freedom of
expression, and freedom in the pursuit of happiness. Along with
these freedoms are included economic freedom and freedom
of enterprise within reasonable bounds and under proper
control. In paving the way for the breaking up of existing large
estates, trust in perpetuity, feudalism, and their concomitant
evils, the Constitution did not propose to destroy or undermine
the property right or to advocate equal distribution of wealth
or to authorize of what is in excess of one's personal needs and
the giving of it to another. Evincing much concern for the
protection of property, the Constitution distinctly recognize the
preferred position which real estate has occupied in law for
ages. Property is bound up with every aspects of social life in a
democracy as democracy is conceived in the Constitution. The
Constitution owned in reasonable quantities and used
legitimately, plays in the stimulation to economic effort and the
formation and growth of a social middle class that is said to be
the bulwark of democracy and the backbone of every
progressive and happy country.chanroblesvirtualawlibrary
chanrobles virtual law library
The promotion of social justice ordained by the Constitution
does not supply paramount basis for untrammeled
expropriation of private land by the Rural Progress
Administration or any other government instrumentality. Social
84
justice does not champion division of property or equality of
economic status; what it and the Constitution do guaranty are
equality of opportunity, equality of political rights, equality
before the law, equality between values given and received on
the basis of efforts exerted in their production. As applied to
metropolitan centers, especially Manila, in relation to housing
problems, it is a command to devise, among other social
measures, ways and means for the elimination of slums,
shambles, shacks, and house that are dilapidated,
overcrowded, without ventilation. light and sanitation facilities,
and for the construction in their place of decent dwellings for
the poor and the destitute. As will presently be shown,
condemnation of blighted urban areas bears direct relation to
public safety health, and/or morals, and is legal. In reality,
section 4 of Article XIII of the Constitution is in harmony with
the Bill of Rights. Without that provision the right of eminent
domain, inherent in the government, may be exercised to
acquire large tracts of land as a means reasonably calculated to
solve serious economic and social problem. As Mr. Aruego says
"the primary reason" for Mr. Cuaderno's recommendation was
"to remove all doubts as to the power of the government to
expropriation the then existing landed estates to be distributed
at costs to the tenant-dwellers thereof in the event that in the
future it would seem such expropriation necessary to the
solution of agrarian problems therein."chanrobles virtual law
library
In a broad sense, expropriation of large estates, trusts in
perpetuity, and land that embraces a whole town, or a large
section of a town or city, bears direct relation to the public
welfare. The size of the land expropriated, the large number of
people benefited, and the extent of social and economic reform
secured by the condemnation, clothes the expropriation with
public interest and public use. The expropriation in such cases
tends to abolish economic slavery, feudalistic practices, and
other evils inimical to community prosperity and contentment
and public peace and order. Although courts are not in
agreement as to the tests to be applied in determining whether
the use is public or not, some go far in the direction of a liberal
construction as to hold that public advantage, and to authorize
the exercise of the power of eminent domain to promote such
public benefit, etc., especially where the interest involved are
considerable magnitude. (29 C.J.S., 823, 824. See also People of
Puerto Rico vs. Eastern Sugar Associates, 156 Fed. [2nd], 316.)
In some instances, slumsites have been acquired by
condemnation. The highest court of New York States has ruled
that slum clearance and reaction of houses for low-income
families were public purposes for which New York City Housing
authorities could exercise the power of condemnation. And this
decision was followed by similar ones in other states. The
underlying reasons for these decisions are that the destruction
of congested areas and insanitary dwellings diminishes the
potentialities of epidemic, crime and waste, prevents the
spread of crime and diseases to unaffected areas, enhances the
physical and moral value of the surrounding communities, and
85
promotes the safety and welfare of the public in general.
(Murray vs. La Guardia, 52 N.E. [2nd], 884; General
Development Coop. vs. City of Detroit, 33 N.W. [2ND], 919;
Weizner vs. Stichman, 64 N.Y.S. [2nd], 50.) But it will be noted
that in all these case and others of similar nature extensive
areas were involved and numerous people and the general
public benefited by the action
taken.chanroblesvirtualawlibrary chanrobles virtual law library
The condemnation of a small property in behalf of 10, 20 or 50
persons and their families does not inure to the benefit of the
public to a degree sufficient to give the use public character.
The expropriation proceedings at bar have been instituted for
the economic relief of a few families devoid of any
consideration of public health, public peace and order, or other
public advantage. What is proposed to be done is to take
plaintiff's property, which for all we know she acquired by
sweat and sacrifice for her and her family's security, and sell it
at cost to a few lessees who refuse to pay the stipulated rent or
leave the premises.chanroblesvirtualawlibrary chanrobles
virtual law library
No fixed line of demarcation between what taking is for public
use and what is not can be made; each case has to be judge
according to its peculiar circumstances. It suffices to say for the
purpose of this decision that the case under consideration is far
wanting in those elements which make for public convenience
or public use. It is patterned upon an ideology far removed from
that consecrated in our system of government and embraced
by the majority of the citizens of this country. If upheld, this
case would open the gates to more oppressive expropriations.
If this expropriation be constitutional, we see no reason why a
10-, 15-, or 25-hectare farm land might not be expropriated and
subdivided, and sold to those who want to own a portion of it.
To make the analogy closer, we find no reason why the Rural
Progress Administration could not take by condemnation an
urban lot containing an area of 1,000 or 2,000 square meters
for subdivision into tiny lots for resale to its occupants or those
who want to build thereon.chanroblesvirtualawlibrary
chanrobles virtual law library
The petition is granted without special findings as to costs.
G.R. No. L-24740 July 30, 1979
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
CELESTINO C. JUAN and ANA TANSECO JUAN, defendants-
appellants.
Celestino C. Juan &, Associates for appellants.
Solicitor General's Office for the appellee.
MAKASIAR, J.:1äwphï1.ñët
86
Appeal by defendants-appellants from the decision dated
September 28, 1964 of the Court of First Instance of La Union
in Civil Case No. 1835 for the expropriation of 338.7480
hectares of land owned by spouses Celestino C. Juan and Ana
Tanseco as the site for the La Union Regional Agricultural
School, directing the plaintiff Republic of the Philippines
totêñ.£îhqwâ£
... pay the legal owners Celestino C. Juan and Ana Tanseco the
amount of P190,000.00 which is the just and reasonable
compensation that the Court rules in this case in favor of the
defendants; and it appearing that on May 7, 1963, P100,000.00
had already been paid, it is therefore ordered that upon this
decision becoming final the balance of P90,000.00 plus interest
of 6% from May 4, 1963 shall be paid to defendants Celestino
C. Juan and Ana Tanseco," aside from the costs of the suit.
Defendants-appellants are the registered owners of two (2)
adjoining parcels of land located at Barrio Sapilang, Bacnotan,
La Union with an aggregate area of 3,387,480 square meters or
338.7480 hectares, more or less, and covered by Original
Certificate of Title No. 0-420 issued on April 14, 1959 (pp, 9-14,
46-47, ROA; Vol. 1, rec.).
Pursuant to the authorization issued on March 15, 1963 by the
President of the Philippines through the Executive Secretary (p
15, ROA), the Solicitor General filed on April 8, 1963 the
complaint for expropriation of the aforesaid parcels of land to
be used as the site of the La Union Agricultural School, which
was to be established by authority of Republic Act 2692 (pp. 9-
20, 43 ROA, Vol. I, rec.).
Before the institution of the expropriation proceedings Victor
Luis, who was appointed principal of the proposed school,
recommended the property of defendants as the school site.
Thereafter, together with Mrs. Avelina L. Osias, he negotiated
with the defendants for the purchase of their property (pp. 85-
87, ROA, Vol. 1, rec.). On January 25, 1963, he wrote a letter to
defendant Celestino Juan, thus:têñ.£îhqwâ£
... Feelers have come to you to inquire about the price that you
would be willing to sell your land. Mrs, Pacita Gonzales and the
undersigned came to you personally and you informed us
verbally your least price of P170,000.00 which you explained to
us is very reasonable.
May I request your kindness to confirm the above price in
writing, as your offer as the selling price of your above-
mentioned land in order that there will be an official record or
basis in negotiating with authorities concerned in the purchase
of your land as school site. (pp. 43-44, ROA, Vol. I, rec.).
Defendant Celestino Juan replied on January 28,
1963.têñ.£îhqwâ£
87
... that the selling price of my land is P170,000.00 net to me
exclusive of the amount of my obligation to the China Banking
Corporation where the property is mortgaged.
The condition of the sale is at least P90,000.00 down and the
balance within a period of one (1) year. Title to the property will
be transferred to you immediately provided that an annotation
of the remaining balance of the price be accordingly made in
the new title.
I wish, however, to tell you that presently there are no less than
23 tenants in the land and they are harvesting or about to
harvest their tobacco crops. In justice to them, they should be
allowed to finish harvesting their crops before they are finally
ejected.
It is with deep regret that I cannot part with the land at a lesser
price. There are 3 parties at least aside from you who are
interested to buy the land. One of them is ready to sign the
contract for a price of P200,000.00 payable in cash or at least a
period of ten (10) days. This party, through an understanding
with a certain bank can mortgage the property for P350,000.00.
As you see, if the primary consideration is money alone, then,
if I am a smart, I should mortgage the land myself. It should be
noted, and I have all the records with me, that I have applied
for a loan with the Development Bank of the Philippines in the
amount of P4,102,000.00 principally to establish a dairy farm
and mortgaging only as collateral the said land. From the
conversation with said bank, it seems to me that the same
would be favorably considered if not for P4,000,000.00 at least
P1,000,000.00.
Kindly confirm your acceptance of the terms of this letter as I
can hold the land for a period of ten (10) days. (pp. 382-384,
ROA).
After receipt of the aforequoted letter, Mr. Luis consulted his
office in Manila (p. 86, ROA, Vol. I, rec.) as well as the provincial
officials of La Union and the municipal officials of Bacnotan (pp.
86,174, ROA, Vol. I, rec.).
In an order dated April 15, 1963, the trial court authorized the
Government to enter and take immediate possession of the
property after depositing the amount of P90,793.70 with the
provincial treasurer of La Union as provisional value (p. 20,
ROA, Vol. I, rec.),
Defendants on April 24, 1963 filed their "Urgent Motion for
Reconsideration and/or to Lift Writ of Possession" questioning
among others, the propriety and correctness of Resolution No.
13, series of 1962, of the Provincial Appraisal Committee and
pointing out that "the fair and reasonable market value ...
should be at least fifty centavos (P0.50) per square meter of
P5,000.00 per hectare" and prayed that the complaint for
expropriation be dismissed for lack of jurisdiction; to set aside
the order dated April 15, 1963 and instead order plaintiff to
88
deposit the amount of P300,000.00 as provisional value; and to
set aside the writ of possession dated April 16, 1963 until the
court has decided the issue of jurisdiction and/or until plaintiff
has deposited the amount of P300,000.00 as provisional value
of the property (pp. 22-32, ROA, Vol. I, rec.). On the same date,
the lower court lifted the writ of possession until further orders.
Acting on the aforesaid motion on April 26, 1963, the lower
court found the expropriation proceedings in order and the
provisional value made by the Provincial Appraisal Committee
inadequate and ordered the plaintiff Republic of the Philippines
to deposit the amount of P100,000.00 as provisional value until
the true valuation of the lots can be determined in accordance
with law and further directed "that for the best interest of the
defendants whose improvements may be vandalized for lack of
protection, let the writ be effected without prejudice to the
final determination of the true value of the property to be
determined in due course" and forthwith ordered the issuance
of the writ of possession after the deposit by plaintiff of the
amount of P100,000.00 is made (p. 45, ROA, Vol. I, rec.).
On May 4, 1963, plaintiff Republic of the Philippines took
possession and occupied the lots under expropriation (p. 86,
ROA, Vol. I, rec.) and deposited on May 7, 1963 the amount of
P100,000.00 which the appellants withdrew that same day.
On May 7, 1963, defendants filed two simultaneous pleadings:
motion for reconsideration of the provisional value on the
ground that the value fixed by the court is still inadequate; and
a motion to dismiss which likewise embodied defendants'
answer to the complaint for expropriation (pp. 46-66, ROA, Vol.
I, rec.).
In an order dated June 13, 1963, the court denied the motion
to dismiss of defendants for lack of merit (p. 66, ROA, Vol. I,
rec.).
In order dated January 8, 1964, the trial court directed the
condemnation of the property,têñ.£îhqwâ£
it appearing that the plaintiff has already deposited the amount
of P100,000.00 the provisional value of the property sought to
be condemned, which amount has already been withdrawn by
the defendants and the property accordingly turned over to the
Republic of the Philippines for the use of the La Union
Agricultural School, ..." (pp. 66-67, ROA, emphasis supplied).
and appointed as commissioners of appraisal (1) Atty. Rogelio
Balagot, for the lower court and as chairman; (2) Atty. Eufemio
Molina, for the plaintiff; and (3) Atty. Pablito M. Rojas, for the
defendants (pp. 4, 67-68, ROA, Vol. I, rec.).
For a period of three days, these commissioners in the presence
of the parties, conducted an extensive ocular inspection and
physical investigation of the property, after which they held
protracted hearings until June 2, 1964, wherein both parties
89
were given full opportunity to present their respective
positions with voluminous documentary and oral evidence (p.
4, ROA, Vol. I, rec.).
On June 29, 1964, Atty. Eufemio Molina, commissioner for
plaintiff, filed his report dated June 25, 1964 (pp. 69-78, ROA,
Vol. I, rec.) recommendingtêñ.£îhqwâ£
... that the value of the land of defendants to be taken as the
site of the La Union Agricultural School at Sapilang, Bacnotan,
La Union, be fixed at P135,000.00. which amount is the meeting
point between the government's offer of P100,000.00 and the
defendants' price of P170,000.00.
Atty. Pablito M. Rojas, commissioner for the defendants, in his
report of July 13, 1964, recommendedtêñ.£îhqwâ£
... as the price of the land to be paid by the plaintiff to the
defendants the amount of P1,407,856.00 the same to bear
interest at the legal rate from the date of possession by the
plaintiff to the date the amount is actually paid.
Commissioner Rogelio F. Balagot for the court and chairman
recommended:têñ.£îhqwâ£
... that the just compensation to be paid the defendants
landowners be the following:
Value of the Land.........................................................................
P1,044,163.70
Value of
Improvements..................................................................
1,712.60
Total Amount................................................................
P1,045,876.30
That the balance of P945,876.30 (deducting P100,000.00, the
amount paid as provisional value) earn legal interest (6%) until
fully paid.
Defendants-appellants filed their objection to the reports of
Commissioners Rojas, Balagot and Molina, claiming that the
true value of the land is P1,736,208.32 or P1,693,740.00 (pp.
284, 374, ROA, Vol. 1. rec.).
On September 4, 1964, defendants filed a petition entitled
"Petition to Submit Case for Decision" without any hearing on
the reports (p. 378, ROA, Vol, I, rec.)
On September 28, 1964, the lower court rendered its decision
(pp. 380- 426, ROA, Vol. I, rec.).
A motion for reconsideration was filed by defendants on
October 26, 1964 (pp. 426-508, ROA. Vol. I, rec.), but the same
90
was denied by the Court in an order dated May 10, 1965 (pp.
509-514, ROA. Vol. I, rec.).
I dictated in pre-war days. Plaintiff delivered to defendants
Under their first assignment of error, appellants contend that
the propriety of the expropriation and the manner in which it
was conducted were in dispute throughout the proceedings in
the trial court and that they never waived their objections
thereto; that the conditions precedent as provided for by
Executive Order No. 132, series of 1937, as amended, were not
complied with, for no proper and valid negotiation to purchase
the lots or to have it donated to the Government was
undertaken by the State before the institution of the
expropriation case in court; and that the resolution of the
Appraisal Committee which was the basis of the amount
alleged in the complaint as the fair market value of the lots to
be expropriated was null and void, having been adopted
contrary to legal requirements (pp. 24-46, Appellants' Brief: p.
11. Vol. II. rec.). The same points were raised by the appellants
in their motion for reconsideration of the lower court's main
decision and the trial court in its order of May 10, 1965
correctly overruled them, stating that:têñ.£îhqwâ£
Movants start by bringing to the front the alleged lack of
negotiations between plaintiff and defendants for the
acquisition of the 338 hectares belonging to the latter. Non-
compliance with Executive Order No. 132 is mentioned
repeatedly by the defendants as vitiating this case. It is even
hinted that the best resolution for this case would be to dismiss
it because plaintiff failed to comply with said Executive Order
through this Court P100,000.00 as part of the fair and just
compensation that the defendants are entitled. On May 7,
1963, such amount was received by defendants and plaintiff
started developing the area and constructing the buildings
needed for the La Union Agricultural School. This school is now
in operation; and it would certainly be the most disturbing step
for the regularity of the functions of the Government to dismiss
the case, compelling the plaintiff to remove all buildings in the
land that once belonged to the defendants and return the
property to them. Besides, interpreting with fair liberality the
pre-war Executive Order No. 132, the court shall now state that
for the purpose of negotiations with the land owners the letter
of January 5, 1963 received by the defendants and the latter's
reply of January 28, 1963 are clear and sufficient compliance
with the tenor and spirit of said Executive Order. The court,
therefore, rejects any request that this case having been filed
without sufficient compliance with said administrative
procedures the whole proceeding shall have to be dismissed.
This cannot be done." (pp. 511-512, ROA, Vol. I, rec.).
To begin with, it must be emphasized that plaintiff-appellee in
this instant case is the Republic of the Philippines which is
exercising its right of eminent domain inherent in it as a body
sovereign. In the exercise of his sovereign right the state is not
91
subject to any limitation other than those imposed by the
Constitution which are: first, the taking must be for a public use;
secondly, the payment of just compensation must be made;
and thirdly, due process must be observed in the taking.
Beyond these conditions, the exercise by the State of its right
of eminent domain is subject to no restraint. Section 64(h) of
the Revised Administrative Code confers upon the Chief
Executive the power to determine when it is necessary or
advantageous to exercise the power of eminent domain in
behalf of the Republic of the Philippines and to direct the
Solicitor General to cause the filing of the appropriate
condemnation proceedings in court. By this grant, the
executive authorities may then decide whether the power will
be invoked and to what extent (see pp. 87-89, Political Law of
the Philippines, Tañ;ada and Carreon, 1962 ed., citing Visayan
Refining Co. v. Camus, 40 Phil. 550).
Appellants in making their first assignment of error are under
the wrong impression that the provisions of Executive Order
No. 132 are conditions precedent to the valid exercise of the
State of its right of eminent domain. As a whole, Executive
Order No. 132 is purely an administrative procedure confined
within the executive department of the government designed
merely to govern and regulate the taking of private properties
for public use which may either be by voluntary sale or by
donation in favor of the government. Nothing is provided in
said executive order expressly or impliedly making the
procedures therein enumerated as conditions precedent to the
valid exercise by the government of the right of eminent
domain by filing the proper action in court. As stated, Executive
Order No. 132 was intended merely to govern the taking of
private property short of judicial action either by purchase or
donation. Being so, the same cannot limit or circumscribe the
sovereign and inherent right of the State to expropriate private
property through the Courts.
Moreover, there has been substantial compliance with the
requirements of Executive Order No. 132; because negotiations
for the purchase of the parcels were conducted between Victor
Luis, the principal of the proposed agricultural school, and Mrs.
Avelina L. Osias on one hand, and the defendants-appellants on
the other, which did not result in a voluntary sale by the
defendants-appellants for lack of agreement on the just
compensation for the parcels.
Paragraph (a) of Executive Order No. 132 provides that
negotiations shall be conducted by the "Director of Public
works, city or district engineer, or other officials concerned ...
The last term can comprehend the principal of the proposed
agricultural institution.
Furthermore, the unqualified withdrawal by appellant of the
amount of P100,000.00 deposited in court by the plaintiff as
provisional value of the lots subject of expropriation,
constituted recognition on their part of the right of the
92

government to expropriate the lots, (Republic v. Pasicolan, May Appellants are entitled to receive only the value of what they
31, 1961, 2 SCRA 626). have been deprived of, and no more; because to award them
less, would be unjust to them, and to award them more, would
If the unconditional withdrawal of the amount deposited as be unjust to the public (27 Am. Jur., 2nd s 266, footnote 17 pp.
provisional value precludes the defendants-appellants from 52- 53).
questioning the right of the plaintiff to expropriate, it must
necessarily follow that said withdrawal also estops defendants- The three commissioners appointed by the trial court to
appellants from raising any objection to the manner and determine the fair market value of the lots did not reach a
propriety of the exercise by the plaintiff of the right of consensus as to the classification of the land, the allocation of
expropriation (18 American Jurisprudence 634-635, Francisco's areas as to each class, and the fair market value of each class of
The Revised Rules of Court in the Philippines, Vol. IV-B, pp. 411- land.
412).
Commissioner Rogelio F. Balagot found and recommended as
There can be no debate that due process was observed in the follows:
instant case. Likewise, education is public use or public
purpose. Republic Act No. 2692 expressly authorizes the 1. Irrigated Riceland
establishment of the La Union Regional Agricultural School
within the Province of La Union and the acquisition of a suitable 70
site therefor. The inadvertent omission of the term Regional in
the complaint for expropriation could not nullify the P8,500.00
expropriation of the lands of defendants-appellants. Such error
in the complaint does not amend the law and can easily be P595,000.00
corrected without affecting the validity of the proceedings.
2. Upland Rice
II
66
The valuation of the lots must be fair and just, not only to the
owner but also to the taxpayers who are to pay for it. 3,500.00
93

231,000.00 338.7480 has.

3. Orchard Land

52.0785 1,044,163.70

1,200.00 and, after adding to the above amount the sum of P1,712.00,
representing improvements, finally recommended the amount
50,494.20 of P1,045,876.30 less P100,000.00 earlier withdrawn by
appellants, to earn legal interest until fully paid (pp. 271-282,
4. Pasture Land ROA, Vol. I, rec.) Commissioner Pablito M. Rojas appraised the
land as follows:
90.6695
Commissioner Pablito M. Rojas appraised the land as follows:
1,000.00
Land Classification
90,669.50
Total
5. Forestland
Market
70
Total
1,000.00

77,000.00
Hectares
TOTAL
94

Value sq. meter Pasture Land

Market Value 95.6695

Irrigated Palay Land 10

65.0000 92,669.50

P1.00 Forestry Compound

P650,000.00 8.0000

Upland Palay 30

66.0000 95,000.00

0.30 Forest Land

198,000.00 65.0000

Orchard 15

38.0785 97,500.00

25 Barrio Compound

98,200.00 4.0000
95
.50
20,000.00
TOTAL
338.7480
1,171,369.50
and after considering some factors, like the fact that the lots
are titled, said commissioner finally recommended "the
amount of P1,407,856.00, the same to bear interest at the legal
rate from the date of possession by the plaintiff to the date the
amount is actually paid" (pp. 160-166, ROA, Vol. I, rec.).
Commissioner Eufemio Molina adopted the following
classification and allocation:têñ.£îhqwâ£
(a) With respect to Lot No. 1 (Exh. "B"), into —têñ.£îhqwâ£
1. Unirrigated riceland with an area of 120,000 sq. meters.
2. Upland rice with an area of 85,000 sq. meters.
3. Pasture land with area of 2,801,695 sq. meters.
(b) With respect to Lot No. 2 (Exh. 'B-l') , into-têñ.£îhqwâ£
1. Unirrigated riceland with an area of 120,000 sq. meters,
2. Upland rice with an area of 85,000 sq. meters.
3. Pasture land with an area of 175,785 sq. meters.
and making a mass valuation of the entire two lots,
recommended the amount of P135,000.00 by taking into
consideration the amount which to him is the price the
government is willing to pay: P100,000.00 (actually the
provisional value deposited by the government to take
possession of the lots); P170,000.00 which according to him is
the amount for which the defendants are willing to part with
their lots (actually P190,000.00 including the bank mortgage
liability of the land) and also the fact that the lots in question
were acquired by tile defendants in 1957 for the amount of only
P50,000.00 fro 'm Felipe Nebrija and his children (pp, 71- 78,
ROA, Vol. 1, rec.).
Before the filing of the complaint, a Provincial Appraisal
Committee composed of Provincial Assessor Ramon Zandueta
as chairman, and as members, Provincial Highway District
Engineer( Oscar Data and Provincial Auditor Gabino Ferrer, was
constituted. On November 16, 1962, this committee conducted
an ocular inspection of the property, and on the same day,
96

submitted its Resolution No. 13, Exhibit A, which classified P200,000.00

defendant's property as follows:têñ.£îhqwâ£
2. 20 hectares riceland
60 hectares riceland at P800.00 per hectare .I.................
P48,000.00 20,000.00

278.7480 hectares pasture land at P150.00 per hectare 60,000.00

...41,812.20têñ.£îhqwâ£
3. 80 hectares pasture land
TOTAL................................................................ 189,812.20
40,000.00
(p. 135, ROA, Vol. I. rec.). The aforesaid resolution was rejected
as having been done in haste (pp. 135-136, ROA, Vol. I, rec.). 80,000.00

According to Provincial Assessor Zandueta, the amount of 4. 120 hectares fruit trees
P89,812.20 is the assessed value of the property, which
assessed value is the appraised value in expropriation cases (p. 60,000.00
141, ROA, Vol. I, rec.).
120,000.00
La Union Agriculturist Pio A. Tadina was requested by Provincial
Assessor Ramon Zandueta to appraise the property. Pursuant 5. 72 hectares 2nd growth forest
to said request, Mr. Tadina went to the property thrice and
thereafter submitted his classification and valuation, as follows: 78,000.00

1. 40 hectares riceland 156,000.00

P60,000.00 TOTAL
97

P258,000.00
4 Kasuy P2 ea.
P616,000.00
8.00
(p. 145, ROA, Vol. I, rec.).
12 bamboos (heavy) P0.30 ea.
When the complaint was filed, the improvements on the
property consisted of the following: 3.60

20 mango (bearing) P30 ea. 1 bamboo (light) P0.10 ea.

P800.00 0.10

21 coconut (bearing) P5 ea. 1 breadfruit P5 ea.

105.00 5.00

4 coconut (non-bearing) P2 ea. 1 jackfruit P4 ea.

8.00 4.00

4 caimito (star apple) P8 ea. 1 guayabano P1 ea.

32.00 1.00

2 Chesa P5 ea. 6 orange (non-bearing) P1 ea.

10.00 6.00
98
TOTAL
P982.70
(pp. 16-17, ROA, Vol. I, rec.).
Mr. Luis Victor, principal of the La Union Regional Agricultural
School, testified that there were around 30 fruit-bearing mango
trees, once coconut fruit-bearing trees and banana plants (p.
139, ROA, Vol. I, rec.).
Both Attys. Pablito M. Rojas and Rogelio Balagot,
commissioners representing respectively the defendants-
appellants and the trial court, agreed that the value of the
improvements on the property was then P1,712.60 (pp. 163,
280-281, ROA, Vol. I, rec.).têñ.£îhqwâ£
... Starting from the town proper of Bacnotan, one can reach
the property by passing through the barrios of Cabaroan,
Sayoan, Salincob, Casiaman and finally Sapilang. The place is
about 2.5 kilometers north of the Poblacion along the National
Highway up to the so-called Cabaroan junction. From this
junction is about a 2-kilometer feeder road going eastward.
And from this lateral road is an unsurfaced road of
approximately 1.5 kilometers leading to the site of the
Agricutural School. However, before the school took possession
of the land on May 4, 1963, the place was not accessible at all
by any motor vehicles, and that the only means was to hike over
rice paddies, trails and creeks.
Topographically, the property of defendant is situated on a high
elevation. It consists of mountains and hills forming a semi-
circle, and sloping on the sides towards an elongated portion or
valley like depression which is level and developed into
ridefields. Because of its high elevation or location, the climate
of the place is healthful, temperate and especially invigorating
when one is near or within the vicinity of the waterfall or spring.
The climate is of the kind which the Weather Bureau would call
the Type I climate; that is, the place has two distinct seasons, a
dry season from December to June, when there are light rains
or no rains at all and wet season, from June to December, when
rains are abundant, heavy and frequent. The soil to the place is
good. It has a luxurient vegetation.
The property as per Original Certificate of Title No. 0-420 (Exh.
'9-f') is divided into 2 lots; Lot No. 1 has an area of 3,006,695
square meters and covered by Tax Declaration No. 33043 (Exh.
'b'); and Lot No. 2 which is under Tax Declaration No. 33043
(Exh. 'B-l') has an area of 380,785 square meters, making a total
land area of 338,7480 hectares, with an assessed value of
P42,120.00.
Aside from the waterfall or spring within the property, there
are also fruit trees, scattered bamboo groves, banana trees in
patches, forest area, upland and pasture land. The bamboo and
99
banana lands, however, cannot properly be considered as such
because the land upon which they grow is not planted
principally for such growth. The improvements on the forestry
area have been introduced by the government, notably the
Reforestation Administration of the Department of Agriculture
and Natural Resources. (Exh "D" and Exh. "I"). The other
improvements on the land have been itemized in the complaint
filed before the Court. (pp. 69-71, ROA, Vol. I, rec.).
The foregoing findings do not appear to be disputed.
Defendant-appellant Celestino Juan himself, stated in his letter
of January 28, 1963 that his property is worth P190,000.00
(including his bank loan), which he later increased to
P300,000.00 in his motion for reconsideration filed on April 24,
1963. It should be recalled that over three months earlier,
appellant Celestino Juan, in his letter dated January 2, 1963 to
the Provincial Appraisal Committee, evaluated his property at
approximately P329,374.00, stating that he spent P15,000.00
for survey P5,000.00 for registration and P20,000.00 for
bulldozing and levelling; that 60 hectares are first class which
should be worth P3,000.00 per hectare; and that the remaining
portion of 278.748 hectares should command at least P500.00
per hectare (pp. 35-37, ROA, Vol. I. rec.).
The last evaluation in the amount of P300,000.00 judicially
given by the defendants-appellants is a declaration and
admission binding on them (Sec. 22, Rule 130, Revised Rules of
Court), there being no showing that they were laboring under
an error of fact. No compelling reason has been advanced to
justify their being relieved from the binding effects of such
admission. As We ruled in the Republic of the Philippines versus
Narciso [99 Phil. 1031 (1956)], "the owners' valuation of the
property may not be binding on the Government or the Court,
but it should at least set a ceiling price for the compensation to
be awarded. Moreover, the prices to be considered are those
at the beginning of the expropriation, not the increased values
brought about by the improvements and actuations of the
Government after occupying the premises" (Re-affirmed in R.P.
v. PNB, April 12,1961, 1 SCRA 957-963).
When the defendants-appellants withdrew in 1963 the
P100,000.00 deposited by the government, they already
obtained a clear profit of P10,000.00 on their alleged
investment of P90,000.00 consisting of P50,000.00, the price
they allegedly paid for the property in 1957, and P40,000.00
allegedly representing expenses for levelling, surveying and
securing their Torrens title of the property from 1957 to 1959.
The balance of P392,000.00 — consisting of P200,000.00 and
interest of P192,000.00 at 6% annually for 16 years from May
4, 1963 to 1979 — is all profit, even during times of inflation.
From 1957 until May 4, 1963, when the government took
possession of the property, the defendants-appellants paid
realty taxes on the basis of their tax assessment of only
P42,120.00 (P89,812.20 according to Provincial Assessor
Zandueta [p. 141, ROA, Vol. I, rec.]). Atty. Pablito M. Roxas and
100
Atty. Rogelio Balago, appraisal commissioners respectively for
appellants and the trial court, conceded that the value of the
improvements was only P1,712.00 in 1963. To give them more
than a million pesos — about P1,111,360.00 — on the basis of
the appraisal of P616,000.00 by provincial agriculturist Pio
Tadina, including interest for 16 years at 6% per annum, would
be to mulct the tax-paying public, as the said amount is over ten
times or over 1000% on their alleged original investment of
P90,000.00 from 1957, to 1959. Precisely, in their reply dated
January 28, 1963, their selling price was only P170,000.00 net
to them, exclusive of their bank debt of P20,000.00.
The appraisal of Provincial Agriculturist Pio Tadina, Chief
Agricultural Appraiser Rafael T. David of the DBP, Commissioner
Balagot and Commissioner Rojas, respectively, in the amount
of P616,000.000, P1,006,400.00, P1,044,163.70, and
P1,171,369.50, is patently extravagant, considering that the
property was bough in 1957 (1956 as claimed by appellants [pp.
112, 126, Appellants' Brie])) for P50,000.00 only and the value
of the improvements did not exceed P1,712.60 as of May 4,
1963, when the government took possession. It is doubtful that
the property would increase in value over 6 times or over 10
times or by over 600% or over 1,000% in six years, from 1957
to 1963, with the expenses for surviving, securing the Torrens
title over and bulldozing said property amounting to not more
than P40,000.00, already included in the computation (p. 36,
ROA, Vol.. I, rec.).
It should be emphasized that the property is about 6 kilometers
from the poblaciosion of Bacnotan; that on May 4, 1963, when
the government took possession of the same, it was not
accessible at all by any motor vehicle and can only be reached
by hiking through rice paddies, trails; and creeks; that it was not
fully developed: and that it was then assessed at P42,120.00
(P89,812.20 according to Provincial Assessor Zandueta),
although it has a waterfall or- spring,
According to Commissioner Molina, the property has 24
hectares of Unirrigated rice land and 17 hectares dedicated to
upland rice with the greater portion of 297.748 hectares as
pasture land (pp, 71-72, ROA, Vol. I, rec.). Pio Tadina reported
that 60 hectares are riceland, 80 hectares pasture land 120
hectares with fruit trees and 78 hectares second growth forest
(p. 146, ROA, Vol. I. rec.). According to Rafael 'I. David,, who was
requested by appellant Juan to make an appraisal (p. 145, ROA,
Vol. I. rec.), 70 hectares are riceland, 66 hectares for upland
rice, 38.0785 hectares for orchard, 90.6695 hectares pasture
land, 5 hectares forestry compound, 65 hectares forest land
and 4 hectares barrio compound (p. 150, ROA, Vol. I, rec.).
Even under the classification of Commissioners Balagot and
Rojas, as aforestated, about 50% of the property is not
improved by man nor dedicated to agriculture, for about 95
hectares are pasture land and 70 hectares are forest land.
101
The sales of farm lots in the vicinity of the property in question
from April, 1959 to May 14, 1962 (pp. 74-75, 152-153, 156-157,
ROA, Vol. I, rec.), do not provide an adequate basis for appraisal
of the property of defendants-appellants; because such sales
involved very small developed areas of less than a hectare each,
which small lots usually command better prices within the
reach f the ordinary buyer. The instant case involves the
condemnation of over 338 hectares.
III
It is argued that appellants judicial admission of P300,000.00 as
the provisional value of their lots, should not bind them,
because said admission refers only to the provisional value of
the said lots and not as an admission of the actual - fair and just
- value of the lots. The provisional value fixed by the Court
pursuant to Section 2 of Rule 67 of the Rules of Court, is the
provisional value that does not bind the land-owners. But when
the landowner himself fixes the provisional value, he should
abide thereby in obedience to the rule that admissions in
pleadings bind the party making them.
Section 2 of Rule 67, New Rules of Court reads:têñ.£îhqwâ£
Entry of plaintiff upon depositing value with the National or
Provincial Treasurer — Upon the filing of the complaint or at
any time thereafter the plaintiff shall have the right to take or
enter upon the possession of the real or personal property
involved if he deposits with the National or Provincial Treasurer
its value, as provisionality and promptly ascertained and fixed
by the Court having jurisdiction of the proceedings, to be held
by such treasurer subject to the orders and final disposition o)f
the court...
Rule 69, Section 3 of the Old Rules of Court under which the
present case was filed contained a similar provision. (See also
Visayan Refining Co. v. Camus. 40 Phil. 550-556 [1919] and
Manila Railroad Co. v. Paredes (31 Phil. 118-142 [1915]).
For emphasis, We repeat that the price of P300,000.00 was the
provisional value fixed not by the trial court, but by the
defendants-appellants as owners in their motion for
reconsideration filed on April 24, 1963. The provisional value
fixed by the trial court in its order of April 15, 1963, was only
P90,793.70, the reconsideration of which the owners sought
from the trial court. In its order of April 26, 1963, the trial court
fixed the provisional value of P100,000.00. The trial court, in its
challenged decision of September 28, 1964, finally fixed the
value at P190,000.00, which is still more than double the
alleged capital investment of P90,000.00 allegedly paid by the
owners for the purchase of the property, levelling and expenses
for survey and titling of the property from 1957 to 1959. In his
own letter of January 28, 1963, where he fixed his selling price
at P170,000.00 net to him (plus P20,000.00 bank mortgage on
the property), defendant-appellant Celestino, Juan stated that
the best offer he had for the property was only P200,000.00.
102
While it may be true that the value provisionally fixed by the
trial court "... does not necessarily represent the true and
correct value of the land ..." it is equally true that the said
amount provisionally fixed may yet turn out to be the true and
correct value of the lots approximating the "just compensation"
requirement of the Constitution. In fact, the same may also turn
out to be more than the true and correct value of the property
condemned by the government (see 27 AM JUR 2nd 111,
footnote 16).
Furthermore, it can be justifiably inferred that when appellants
themselves proposed on April 24, 1963 the amount of
P300,000.00 as the provisional value of their lots, they were
referring actually to the highest value their lots could command
at that time, notwithstanding their very speculative and
extravagant claim in the same pleading (where they made the
P300,000.00 proposal) that the "fair market value of (the)
property should at least be fifty centavos . . per square meter
or P5,000.00 per hectare.
Consider the following circumstances: têñ.£îhqwâ£
1. In his reply dated January 28,1963 to the letter of Mr. Victor
Luis, appellant Juan stated that the selling price of his land was
"P170,000.00 net to me exclusive of the amount of my
obligation to the China Banking Corporation where the
property is mortgaged", or P190,000.00 including the
mortgaged debt of P20,000.00 (pp. 382-384, ROA).
2. Appellants-spouses acquired the lots in 1956 (as claimed by
appellants) or 1957 (as stated in the decision of the trial court)
from Felipe Nebrija and his children for only P50,000.00.
3. The lots in question were taxed on the basis of an assessment
of only P42,120.00.
4. In his letter dated January 2, 1963 to the Provincial Appraisal
Committee, appellant Celestino Juan evaluated his lots at
approximately P319,374.00.
As a matter of fact, appellant should be bound by his
P190,000.00 admission. In the light of the above-mentioned
circumstances, the said amount of P190,000.00 is already just
and reasonable.
Appellants' claim that they were forced to make the
P190,000.00 offer because they were then under a pressing
need for money to defray expenses in connection with certain
criminal case involving appellant Ana to settle said cases, can
hardly invite belief; because (1) appellant Celestino Juan did not
aver this alleged urgent need for money in his letter of January
28, 1963, and (2) notwithstanding appellant Juan's claim in that
same letter of January 28, 1963 that an interested buyer of the
said lots was "ready to sign the contract for a price of
103
P200,000.00 payable in cash or at least a period of ten (10)
days," appellant did not dispose of the same to said interested
buyer, despite the lapse of ten days — during which he could
have had the money — from the receipt by Victor Luis of said
letter. Moreover, the same letter belies his alleged dire need
for money to settle the alleged criminal cases against his wife
for he stated therein that he had then a pending DBP loan
application for P4,102,000.00 for a dairy farm, and that by
reason of his connection with DBP officials, his application
would be favorably considered for P1,000,000.00 with the
expropriated property as collateral together with the dairy
farm equipment, facilities and stock.
Being a lawyer, appellant Celestino Juan knew that the
reputation of his wife and for that matter his family would be
better protected and preserved by her acquittal after trial than
by settlement of the case (see pp. 107-108, Appellants' brief).
Compromise of a criminal case, other than a private offense,
does not remove the criminal liability and the concomitant
stigma. Settlement of a criminal case, unlike acquittal, will not
stop the people from talking about the guilt of the accused
therein.
Of course "judicial or non-judicial admissions made by
condemnees as to the value of their properties that are to be
expropriated should not be deemed conclusive if such admitted
value be unjust, because the Constitution imperatively requires
the payment of 'just compensation'". But in the instant case, it
could hardly be said that the amount of P300,000.00 is unjust
to the appellants. The delay in the payment is compensated by
the liability for 6% .interest per annum, covering sixteen (16)
years — from 1963 to 1979 — on the balance of P200,000.00
(on May 7, 1963, appellants withdrew the P100,000.00 deposit)
amounting to P192,000.00. The total balance due appellants
would be P392,000.00. The total payment to them then would
be P492,000.00. Beyond this price, the value would be
excessive and unjust to the State and the taxpayer (27 Am. Jur.
2d 52-53 § 266, footnote 17).
It must be pointed out that the most reliable pieces of evidence
in the records relative to the just compensation to be paid
herein appellants are those hereinbefore enumerated, namely,
appellants' own evaluation in 1963, the acquisition cost the tax
assessment. This is so because the Committee failed to arrive
at an acceptable valuation, not to mention the fact that the
individual reports of the commissioners of the Appraisal
Committee did not undergo the indispensable requirement of
hearing before the trial court. It must be herein stressed that
almost all the evidence enumerated earlier are in the nature of
admissions by the owner, which kind of evidence under existing
jurisprudence occupies a preferred position in the realm of
proof of just compensation and valuation in eminent domain.
Even the purchase price of P50,000.00 paid in 1956 or 1957 by
appellants for the lots sought to be condemned in 1963 is
generally held admissible as evidence of the lots' fair market
104
value, unless such purchase is too remote in point of time from
the condemnation proceedings or more special consideration
induced the sale at less than the true market value (29-A C.J.S.
1203-04).
Similarly, the assessed valuation of land made by tax assessors
when required by the law, and the owner's own valuation may
be considered together with other proofs in the determination
of the just value of the lots condemned (29-A C.J.S. 1201-1202).
As aforestated, appellants paid realty taxes on the property on
the basis of an assessed valuation of only P42,120.00, with
improvements worth only P1,712.00. On January 28, 1963,
appellants' offer was P190,000.00, then P300,000.00 on April
24, 1963, as provisional value, after extravagantly claiming that
the property is worth the fantabulous price of at least
P5,000.00 per hectare or a total of P1,693,040.00. Not even the
irrigated rice lands along the national highway in Nueva Ecija,
the home province of appellants, could command that price to
P5,000.00 per hectare in 1963. And the lands in the case at bar
are in La Union, hilly, and away from the national highway
without direct access to any feeder road.
In our jurisdiction, the statement of the value of his property by
the owner in the tax declaration shall, since 1940 under C.A. No.
530, constitute prima facie evidence of the real value of the
property in expropriation proceedings by the Government and
its instrumentalities.
In short, it could therefore be said — taking into consideration
the acquisition cost of P50,000.00 in 1956 or 1957 of the lots
subject matter of the case, the alleged cost of P40,000.00 for
levelling, surveying and titling thereof from 1957 to 1959, the
assessed value as well as the tax declarations of the appellants
with respect to these lots of only P42,120.00, the
improvements worth P1,712.00 in 1963, and the several
admissions or estimates made by the appellants with respect
to the value of the lots ranging from P190,000.00 to
P319.374.00 to P300,000.00 to P1,693,040.00 (P5,000.00 per
hectare)—that the amount of P300,000.00 is just to appellants,
not to mention that in addition to said amount a considerable
interest of P192,000.00 for 16 years (1963-1979) would be paid
on the unpaid balance of P200,000.00 from May 4, 1963 by the
Government, or a grand total of P492.000.00, which is over five
(5) times or over 500% their capital investment of P90,000.00
from 1956 to 1959. Anything beyond this amount is grossly
excessive and patently unjust to the government and the
taxpaying public (29 Am. Jur.2d 52-53 § 266, footnote 17).
It cannot be seriously claimed by appellants that the
declarations of value of the lots in Exhibits B and B-1 were not
made by them (pp. 346-347, ROA), considering that said tax
declarations were made only after the title over the lots was
obtained by appellants. Exhibits B and B-1 clearly indicate that
appellants and no one else made the said declarations (p. 182,
ROA).
105
Likewise, the valuation of Agriculturist Tadina should not be
accorded too much weight for the following reasons:
têñ.£îhqwâ£
1. His valuation report is based purely on his own estimate and
opinion: hence in his letter to Atty. Ramon Zandueta which
embodied his evaluation, he therein stated that "... You will
note hereunder the technical analysis of the undersigned with
regards to the area under consideration as a personal opinion
..."
2. The factors he considered in evaluating the lots in question
could hardly justify this valuation in the amount of
P616,000.00. Hence: "The 80 hectares of pasture land if
properly grazed and managed is capable of maintaining no less
than 400 heads of cattle. The 120 hectares of fruit trees is
suitably adapted to cacao, coffee, bananas, mangoes.
pineapple, citrus, avocado, rambutan, lanzones, The 78 second
growth forest if only planted to "alnos Mirando" a Japanese
kind of forest tree will also increase the volume of spring water
for irrigation purposes ... The second growth forest land has
been evaluated higher than the pasture and fruit tree lands
because forest lands do not only conserve soil erosion and soil
fertility but also provide organic matter for the irrigated
riceland. It will also conserve and promote the development of
spring besides the value of the, trees and other forest by-
products which are now available as sources of income (pp.39-
42,ROA).
3. Tadina is not "an experienced and competent appraiser" in
the field of eminent domain or expropriation cases. When
cross-examined by the Fiscal of the Province of La Union, he
declared that the appraisal he made for the property in
Damortis, La Union, and that in Aringay was only with respect
to its adaptability and suitability for agriculture and not for
purposes of determining the fair and reasonable value (tsn, pp.
505-506, pp. 201, 202, ROA; see also pp. 108-109. ROA). His
appointment as Chairman of the Appraisal Committee for
public lands in La Union did not qualify him as an "experienced
and competent appraiser" in expropriation cases; because
lands involved therein are public lands and the appraisal or
determination of the fair market value of said lots are not for
purposes of expropriation cases (p. 202, ROA). Neither would
his participation in the Poro Point expropriation add to his
qualifications as an appraiser in expropriation cases, because
he was merely therein consulted (p. 202. ROA).
4. His classifications were made by estimates and not by actual
measurements (tsn, p. 514; p. 204, ROA).
That the land "had potential for conversion into subdivision"
should not be considered in the valuation of the lots in
question; because (1) the records of the case do not show
conclusive evidence as to the subdivision potentiality of the
106
lots; and (2) as held in Manila Electric Co. v. Tuason,
"agricultural land should be appraised as such and not as
potential building site" (60 Phil. 663 [1934], reiterated in the
case of The Municipal Government of Sagay v. Jison, et al., 104
Phil. 1026, 1033 [1958]).
Republic vs. Castelvi lends no support to appellants' position;
because in the Castelvi case, there was a finding by this Court
that "... the lands in question had ceased to be devoted to the
production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had
actually taken steps to convert their lands into residential
subdivisions even before the Republic filed the complaint for
eminent domain (p. 355, 58 SCRA).
As already noted above, the individual valuations made by the
three commissioners are of little value, if at all; because the
same were irregularly prepared, not to mention the fact that
the same were not subjected to the indispensable hearing
requirement before the trial court — wherein the
commissioners could have been cross-examined on their
respective reports, the bases thereof, how they reached their
conclusions, and their qualifications, and related matters-vital
to the credibility, or lack of it, of their valuations.
It is urged that, because the value of the peso at the time of the
taking in 1963 by the government of the lots of appellants and
the value of the peso today when the just compensation to be
awarded to appellants is to be paid, are no longer the same,
this factor should be considered in the determination of the
final award to be given; and that even if WE consider appellants
as having judicially admitted the amount of P300,000.00 as the
price of their property, the doubling of this sum at this time is
justified.
Actually, under this proposition, the amount to be doubled
shou1d only be the balance of P200,000.00, for appellants had
,withdrawn and made use of the P100,000.00 deposited by the
government at the inception of this case.
It is of course true that the value of the peso in 1963 and at
present is no longer the same. But this does not justify US in
considering that factor nor in doubling the amount judicially
admitted by appellants; because such contingency is already
well-taken care of by the interest to be awarded to appellants.
For that is the true role or nature of interest in expropriation
cases; because said interest is not contractual in nature nor
based on delict or quasi-delict, but one that "runs as a matter
of law and follows as a matter of course from the right of the
landowner to be placed in as good a position as money can
accomplish, as of the date of the taking" (30 CJS 230). Stated
otherwise: "Where the payment of compensation does not
accompany the taking of property for public use but is
postponed to a later date, the owner of the property is
ordinarily entitled to the award of an additional sum which will
compensate for delay (cases cited) or which will, in other
107
words, produce the full equivalent of the value of the property
paid contemporaneously with the taking" (29-A CJS 762). Under
this view, the interest awarded is deemed part of the just
compensation required to be paid to the owner (27 Am. Jur,
112). This appears to be prevailing view in the United States. As
aptly and clearly explained in one American case:têñ.£îhqwâ£
Article 1 § 18 of the Constitution of the State of Oregon,
provides in part as follow: 'Private Property shall not be taken
for public use ... without just cornpansation.' The Fifth
Amendment to the Constitution of the United States contains
substantially the same provision, 'nor shall private property be
taken for public use, without just compensation.' In construing
this Identical language of the Federal Constitution the Supreme
Court of the United States holds as follows: lt is settled by the
decision of this court that just compensation is the value of the
property taken at the time of the taking (citing cases). And, if
the taking precedes the payment of compensation, the owner
is entitled to such addition to the value at the time of the taking
as will produce the full equivalent of such value paid
contemporaneously. Interest at a proper rate is a good
measure of the amount to be added' (numerous cases cited
omitted). In these cases and others, the proper rate of interest
is held to be the legal rate of interest prevailing in the
jurisdiction where the land is located. The Supreme Court of
West Virginia holds on the authority of these decisions and also
of Dohany vs. Rogers, 281, U.S. 362, 50 SGt. 299. 74 L.Ed 904,
68 ALR434, that denial of the right of interest would be a
violation of the fourteenth Amendment to the Federal
Constitution, Simons v. Dillon, 119 W. VA 284,193 S.E. 331, 113
A.L.R. 787. The following texts are authority for the allowance
of such interest as part of the damages sustained by the owner
of the land. Nichols on Eminent Domain 653, § 216 (3d ed.);
Lewis, Eminent Domain (3d ed.) 1320, § 742; 18 AM JUR.,
Eminent Domain, § 272 [State vs. Deal, 233 P 2d 242, 251-252,
emphasis supplied].
This view is also well-discussed by JAHR in his book, Eminent
Domain — Valuation and Procedure (1953 ed.), Chapter XXVIII
— Payment of Compensation, pp. 286-301; and by ORGEL in his
book, Valuation Under Eminent Domain, Vol. I (1953 ed.) on the
subject of interest as part of just compensation and as a penalty
for delay in payment (Sec. 5, pp. 19-33).
In this jurisdiction, a study of the cases decided by this Court
with respect to the award of interest to the condemnee where
there is a gap of time between the taking and the payment,
shows that We tend to follow the view just discussed. The first
case-it would appear-where the question of interest arose in
this jurisdiction was the Philippine Railway Co. vs. Solon,
February 20, 1909, 13 Phil. 35-45. The two issues taken there in
connection with interest were: (1) From what time should
interest be reckoned, from time of the taking possession of the
property by the government or from judgment of the trial
court; and (2) whether on appeal, appellant-condemnee is
entitled to interest during the pendency of the appeal. In
108
disposing of the issues, the Court, relving heavily on American
jurisprudence, appears to treat interest as part of just
compensation and as an additional amount sufficient to place
the owner "in as good a position as money can accomplish, as
of the date of the taking." Thus, the Court declared:
têñ.£îhqwâ£
It remains to consider what interest the defendant is entitled
to from named date. It appears from the record that
thecompany opposed the confirmation of the award. Its
objections were so far successful that the court reduced the
amount awarded by the commissioners. The owner was
compelled to appeal and in his appeal has been so far successful
as to reverse the action of the the court below. Under these
circumstances we think he is entitled to interest on the award
until the final determination of this proceeding. What the result
would be if he had failed in his appeal, we do not decide. The
interest thus allowed will be interest upon the amount awarded
by the commissioners from the 2nd day of February, 1907, until
payment (13 Phil. 40-44, emphasis supplied).
The Solon case thereafter became the basis of award of interest
on expropriation cases like Philippine Railway v. Duran, 33 Phil.
159 [1916]; Manila Railroad Co. v. Alano, 36 Phil. 501 [1917];
Manila Railroad Co. v. Attorney General, 41 Phil. 177 [1920];
Alejo v. Provincial Government of Cavite, 54 Phil. 304 1930];
Tayabas v. Perez, 66 Phil. 470 [1938]; Republic v. Gonzales, 94
Phil. 957 [1954]; Republic v. Lara, 96 Phil. 172 [1954]; Phil.
Executive Commission v. Estacio, 98 Phil. 219 [1956]; Republic
of the Philippines v. Deleste, 46 al., 99 Phil. 1035 [1956]
Republic v. Garcellano, 103 Phil. 237 [1958]; Yaptinchay, 108
Phil. 1053 [1960]; Republic v. Tayengco, 19 SCRA 900
[1967],and many others, until the matter of payment of
interest became an established part of every case where taking
and payment were not contemporaneously made.
And finally, We confirmed our adherence to the prevailing view
in the United States when in the case of Urtula vs. Republic,
January 31, 1968, 222 SCRA 477, 480), We declared, through
Mr. Justice J.B.L. Reyes, that: têñ.£îhqwâ£
... Said interest is not contractual, nor based on delict or quasi-
delict, but one that— têñ.£îhqwâ£
runs as a matter of law and follows as a matter of course from
the right of the landowner to be placed in as good a position as
money can accomplish, as of the date of the taking'" (C.J.S. 230;
see also Castelvi case, supra, and Republic v. Nable-Lichauco,
14 SCRA 682).
In this connection, it must be pointed out that the judicial
notice taken by this Court in the Castelvi case (supra, 363) "...
of the fact that the value of the Philippine peso has
considerably gone down since the year 1959," was premised
not on the par value of the peso to the dollar, but on the
109
dollarpeso exchange rates at the time of the taking of the lots
and at the time of the payment thereof.
In the case of Manuel & Co. vs. CB (38 SCRA. 533-542 [1971]),
We distinguished between par value of the peso and the dollar-
peso exchange rate. The par value of the peso to the dollar-two
pesos to one dollar-is fixed by law and remains intact (see 48,
R.A. 265, 1948; Sec. 6, CA No. 699, 1945). Hence, while there
was a change of the exchange rate, the par value of the peso as
established by law remains unchanged.
Such par value can only be altered by the President of the
Philippines upon proposal of the Monetary Board with five
members concurring and approved by Congress (Sec. 49[3] RA
No. 265).
On the other hand, the rate of exchange or exchange rate is the
"price, or the indication of the price, at which one can sell or
buy with one's own domestic currency a foreign currency unit.
Normally, the rate is deterniined by the law of supply and
demand for a particular currency" (38 SCRA 533-542).
It is submitted that the Castelvi doctrine on the value of our
peso is of doubtful legality, considered in the context of the
Central Bank case, above discussed. In effect, the Castelvi ruling
has devalued our peso; a case of devaluation by judicial fiat.
In the light of the foregoing, the de facto devaluation of our
peso should not be taken into account in the final
determination of the value of the lots, subject matter of the
case.
In the 1970 case of Dizon-Rivera v. Dizon (33 SCRA 554-557
[1970]), WE ruled against appellants and held that the decrease
in the purchasing value of the Philippine peso provides no legal
basis or justification for completing their legitime with real
properties of the estate instead of being paid in cash, reasoning
thus: têñ.£îhqwâ£
Neither may the appellants legally insist on their legitime being
completed with real properties of the estate instead of being
paid in cash, per the approved project of partition. The
properties are not available for the purpose, as the testatrix
had specifically partitioned and distributed them to her heirs,
and the heirs are called upon, as far as feasible to comply with
and give effect to the intention of the testatrix as solemnized in
her will, by implementing her manifest wish of transmitting the
real properties intact to her named beneficiaries, principally
the executrix-appellee. The appraisal report of the properties
of the estate as filed by the commissioner appointed by the
lower court was approved in toto upon joint petition of the
parties, and hence, there cannot be said to be any question-and
none is presented-as to fairness of the valuation thereof or that
the legitimate of the heirs in terms of cash has been
understated. The plaint of oppositors that the purchasing value
110
of the Philippine peso has greatly declined since the testatrix
death in January, 1961 provides no legal basis of justification
for overturning the wishes and intent of the testatrix. The
transmission of rights to the succession are transmitted from
the moment of death of the decedent (Article 777, and
accordingly, the value thereof must be reckoned as of then, as
otherwise, estates would never be settled if there were to be a
revaluation with every subsequent flucluation in the values of
the currency and properties of the estate. There is evidence in
the record that prior to November 25, 1964, one of the
oppositors, Bernardita, accepted the suin of P50,000.00 on
account of her inheritance, which, per the parties'
manifestation, "does not in any way affect the adjudication
made to her in the projects of partition." The payment in cash
by way of making the proper adjustments in order to meet the
requirements of the law on non-impairment of legitimes as well
as to give effect to the last will of the testatrix has invariably
been availed of and sanctioned see Articles 955, 1080 and 1104,
Civil Code). That her co-oppositors would receive their cash
differentials only now when the value of the currency has
declined further, whereas they could have received them
earlier, like Bernardita, at the time of approval of the project of
partition and when the peso's purchasing value was higher, is
due to their own decision of pursuing the present appeal
(emphasis supplied).
Additional distinction between the present case and the
Castelvi case:
The proceedings before the commissioners and before the trial
court in the Castelvi case were all in accordance with the
provisions of the rules, while this is not so in the present case;
because the commissioner's herein did not turn out a valid
report, as the commissioners made their own and separate
reports and no consensus was reached by them on the
classification of the lots, allocation of areas to each class, and
the fair market value of each class and the lots as a whole.
Furtherinore, no hearing on the reports of the commissioners
was made by the trial court in the case at bar, because of the
motion of the herein appellants to submit the same without
any (hearing).
The finding of the trial court, which was sustained by this Court,
that the lots involved in the Castelvi case were residential, was
supported by and based on the factual findings of the
commissioners, who were unanimous thereon, and the
Provincial Appraisal Committee of Pampanga (58 SCRA 356-
359): while in the present case no one among the
commissioners classified the lots or any portion thereof as
residential or one with residential/subdivision potentiality.
With respect to Provincial Board Resolution No. 13 on the
report of the Provincial Appraisal Committee of La Union, the
same was disregarded tor having been passed in haste.
In the present case, commissioner Balagot classified the two
lots into irrigated riceland, upland riceland, orchard land,
111
pasture land and forest land, Commissioner Rojas similarly
classified the lands as above, but adding thereto forestry
compound and barrio compound; while Commissioner Molina
classified the lots into unirrigated riceland, upland riceland and
pasture land. It cannot be seriously claimed that the lots
involved in the present case is suitable as, or have potentials
tor conversion into, a residential subdivision simply because a
4-hectare area of the same was considered by a member of the
provincial appraisal committee as residential. In fact, said 4-
hectare area was reflected in the Provincial Appraisal
Committee Report, Resolution 13 (Exh. A) as grazing land, not
as a residential one (see pp. 138, 173, ROA; pp. 67, 143,
Appellants' Brief). Furthermore, none among the
commissioners believed the testimony of the said member on
that point as no one among them classified the lots or any
portion thereof as residential. The fact that the tenants of
appellants previously occupied the said area and constructed
houses thereon, does not convert the whole area or the portion
thus occupied into a residential one. The residential nature of
the lot is not determined alone by the presence or absence of
houses thereon (Republic v. Garcia, 91 Phil. 46 [1952]). The
determination of the true nature of a lot must take into
consideration, among other things, the location topography,
kind of soil fertility or productivity, and surroundings of the lot
(Manila Railroad Co. Caligsihan, 40 Phil. 326 [1919]; Republic v.
Garcia, supra: Republic v. Lara, 50 O.G. 5778 [1954]). Indeed,
the evidence relied upon by this Court in concluding that the
lots involved in the Castelvi case are residential and not
agricultural, shows that: têñ.£îhqwâ£
... Castelvi broached the Idea of subdividing her land into
residential lots as early as July 11, 1965 in her letter to the Chief
of Staff of the Armed Forces of the Philippines (Exh. 5-Castelvi).
As a matter of fact, the layout of the subdivision plan was
tentatively approved by the National Planning Commission on
September 7, 1956. (Exh. 8-Castelvi). The land of Castelvi had
not been devoted to agriculture since 1974 when it was leased
to the Philippine Army. In 1957 said land was classified as
residential, and taxes based on its classification as residential
had been paid since then (Exh. 13-Castelvi). The location of the
Castelvi land justifies its suitability fora residential subdivision.
As found by the trial court, "It is at the left side and the entrance
of the Basa Air Base and bounded on two sides by roads (Exh.
13-Castelvi; paragraphs 1 and 2, Exh. 12-Castelvi), the
poblacion (of Floridablanca,) the municipal building, and the
Pampanga Sugar Mills are close by. The barrio schoolhouse and
chapel are also near (Tsn., Nov. 23, 1960, p. 68).
The land of Toledo-Gozun (Lot 1-B and Lot 3) are practically of
the same condition as the land of Castelvi. They are also
contiguous to the Basa Air Base, and are along the road. These
lands are near the barrio school house, the barrio Chapel, the
Pampanga Sugar Mills, and the Poblacion of Floridablanca
(Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of fact, regarding
Lot 1-B, it had already been surveyed and subdivided, and its
112
conversion into a residential subdivision was tentatively by the
National Planning Commission on July 8, 1959 Exhs. 5 and 6-
Toledo-Gozun). As early as June, 1958, no less than 32 men
connected with the Philippine Air Force among them
commissioned, officers, non-commissioned officers, and
enlisted men had requested Mr. and Mrs. Joaquin D. Gozun to
open a subdivision on their lands in question (Exhs, 8, 8-A to 8-
ZZ-Toledo-Gozun)" (58 SCRA 357, emphasis supplied).
In the present case, there is no evidence in the record
warranting a conclusion that the parcels involved have
potentials for conversion into a residential subdivision. On the
contrary, the location, topography and the use to which the lots
involved were, devoted at the time of the filing of expropriation
proceedings in the lower court, indicate that they have none. In
his report, Commissioner Molina described the location and
topography of the lots as follows: têñ.£îhqwâ£
... Starting from the town propwer of Bacnotan, one can reach
the property by passing through the barrios of Cabaroan,
Sayoan, Salincob, Casianan and finally Sapilang. The place is
about 2.5 kilometers north of the the Poblacion along the
National Highway up to the so-called Cabaroan junction. From
this junction is about a 2-kilometer feeder road going eastward.
And from this lateral road is an unsurfaced road of
approximately 1.5 kilometers leading to the site of the
Agricultural School. However, before the school took
possession of the land on May 4, 1963, the place was not
accessible at all by any motor vehicles, and that the only means
was to hike over paddies, trails and creeks.
Topographically, the property of defendants is situated on a
high elevation. It consists of mountains and hills forming a semi-
circle, and sloping on the sides towards an elongated portion of
valley-like depression which is level and developed into
ricefields. Because of its high elevation or location, the climate
of the place ishealthful, temperate and especially invigorating
when one is near or within the vicinity of the waterfall or spring.
The climate is of the kind which the Weather Bureau would call
the Type I climate; that is, the place has two distinct reasons, a
dry season from December to June, when there are light rains
or no raisn at all, and wet season, from June to December,
when rains are abundant, heavy and frequent. The soil of the
place is good. It has a luxuriant vegetation (pp. 69-70, ROA,
emphasis supplied).
The presence of the houses of twenty-three (23) tenants in a 4-
hectare area at the time the government took possession of the
lots herein involved, is not sufficient proof of that portion's
potentialitv for conversion into a residential subdivision, much
less of the whole parcel of about 338 hectares. There was no
evidence that the houses of the tenants were there constructed
because of its residential nature. In all likelihood, the tenants
were forced by necessity to construct their Rouses therein to
be close to their respective tobacco farms. The fact that under
the leasehold system of land tenure, a tenant is allotted a
113

portion for his dwelling does not render the entire landholding
no longer agricultural and thereby convert the same into a
residential land.

WHEREFORE, THE JUDGMENT APPEALED FROM IS HEREBY

MODIFIED AND THE PLAINTIFFAPPELLEE REPUBLIC OF THE
PHILIPPINES IS HEREBY DIRECTED TO PAY THE
DEFENDANTSAPPELLANTS CELESTINO C. JUAN AND ANA
TANSECO THE SUM OF TWO HUNDRED THOUSAND
(P200,000.00) PESOS, WITH INTEREST AT THE LEGAL RATE OF
SIX PERCENT (6%) PER ANNUM FROM MAY 1, 1963. NO COSTS.

G.R. Nos. L-21633-34 June 29, 1967

COMMISSIONER OF INTERNAL REVENUE and COMMISSIONER

OF CUSTOMS, petitioners,
vs.
BOTELHO SHIPPING CORPORATION and GENERAL SHIPPING
CO., INC., respondents.

Office of the Solicitor General Arturo A. Alafriz, Assistant

Solicitor General Felicisimo R. Rosete and F. Malate, Jr. for
petitioners.
Claudio Teehankee and Leocadio de Asis for respondents.

CONCEPCION, C.J.:
114
Appeal by the Government from a decision of the Court of Tax
Appeals, reversing of the decisions of the Commissioner of
Internal Revenue and the Commissioner of Customs, in Cases
No. 956 and 957 of said Court, holding Botelho Shipping
Corporation and General Shipping Co., Inc. — hereinafter
referred to collectively as the Buyers — liable for the payment
of the sum of P483,433.00 and P494,824.00, respectively, as
compensating taxes on the vessels "M/S Maria Rosello" and
"M/S General Lim."
On August 30, 1960, the Reparations Commission of the
Philippines — hereinafter referred to as the Commission — and
Botelho Shipping Corporation — hereinafter referred to as
Botelho — entered into a "Contract of Conditional Purchase
and Sale of Reparations Goods," whereby the former agreed to
sell to Botelho for P6,798,888.88 the vessel "M/S Maria
Rosello," procured by the Commission from Japan, pursuant to
the provisions of the Philippine-Japanese Reparations
Agreement of May 9, 1956. On September 19, 1960, the
Commission signed a similar contract with General Shipping
Co., Inc. — hereinafter referred to as General Shipping — for
the sale thereto of "M/S General Lim" at the price of
P6,951,666.66. Both agreements, couched in identical terms,
except as to price, stipulated that:
a) The Reparations Commission "retains title to and ownership
of the above described vessel until it is fully paid for." (Exh. "A",
p. 2, both cases)
b) The stipulated purchase price of the M/S MARIA ROSELLO
was to be paid by Botelho to the Commission under a deferred
payment plan in 10 equal yearly installments of P717,333.49,
bearing 3% interest per annum, beginning August 31, 1962 and
August 31 of every year thereafter until the year 1972, while
the purchase price of the M/S GENERAL LIM was to be paid by
General Shipping to the Commission under a deferred payment
plan in 10 equal yearly installments of P723,132.68, bearing 3%
interest per annum beginning September 30 of every year until
the year 1972. (Exhs. 9, p. 4 and A-2, both cases) (See
Respondents' brief, p. 4.)
Delivered in Japan to its respective buyers, acting on behalf of
the Commission, the vessels, upon their departure from Tokyo,
on the maiden trip thereof to the Philippines, were issued, by
the Philippine Vice-Consul in said city, provisional certificates of
Philippine registry in the name of the Commission, so that the
vessels could proceed to the Philippines and secure therein the
respective final registration document.
Upon arrival at the port of Manila, the Buyer filed the
corresponding applications for registration of the vessels, but,
the Bureau of Customs placed the same under custody and
refused to give due course to said applications, unless the
115
aforementioned sums of P483,433 and P494,824 be paid as
compensating tax. As the Commissioner of Customs refused to
reconsider the stand taken by his office, the Buyers
simultaneously filed with the Court of Tax Appeals their
respective petitions for review, against the Commissioner of
Customs and the Commissioner of Internal Revenue —
hereinafter referred to collectively as Appellants — with urgent
motion for suspension of the collection of said tax. After a joint
hearing on this motion, the same was, on October 31, 1960,
granted by the Tax Court, upon the sum of a P500,000.00 bond
by each one of the Buyers.
On June 17, 1961, while these cases were pending trial in said
Court, Republic Act No. 3079 amended Republic Act No. 1789
— the Original Reparations Act, under which the
aforementioned contracts with the Buyers had been executed
— by exempting buyers of reparations goods acquired from the
Commission, from liability for the compensating tax. Moreover,
section 20 of Republic Act No. 3079, provides:
x x x This Act shall take effect upon its approval, except that the
amendment contained in Section seven hereof relating to the
requirements of procurement orders including the
requirement of down payment by private applicant end-users
shall not apply to procurement orders already duty issued and
verified at the time of the passage of this amendatory Act, and
except further that the amendment contained in Section ten
relating to the insurance of the reparations goods by the end-
users upon delivery shall apply also to goods covered by
contracts already entered into by the Commission and end-user
prior to the approval of this amendatory Act as well as goods
already delivered to the end-user, and except further that the
amendments contained in Sections eleven and twelve hereof
relating to the terms of installment payments on capital goods
disposed of to private parties, and the execution of a
performance bond before delivery of reparations goods, shall
not apply to contracts for the utilization of reparations goods
already entered into by the Commission and the end-users
prior to the approval of this amendatory Act: Provided, That
any end-user may apply for the renovation of his utilization
contract with the Commission in order to avail of any provision
of this amendatory Act which is more favorable to an applicant
end-user than has heretofore been granted in like manner and
to the same extent as an end-user filing his application after the
approval of this amendatory Act, and the Commission may
agree to such renovation on condition that the end-user shall
voluntarily assume all the new obligations provided for in this
amendatory Act.
Invoking the provisions of this section 20, the Buyers applied,
therefore, for the renovation of their utilizations contracts with
the Commission, which granted the application, and, then, filed
with the Tax Court, their supplemental petitions for review.
Subsequently, the parties submitted Stipulations of Fact and,
after a joint trial, at which they introduced additional evidence,
said Court rendered the appealed decision, reversing the
116
decisions herein Appellants, and declared said Buyers exempt
from the compensating tax sought to be assessed against the
vessels aforementioned. Hence, these appeals by the
Government G.R. No. L-21633 refers to the case as regards
"M/S Maria Rosello," whereas "M/S General Lim" is the subject-
matter of G.R. No. L-21634.
It seems clear that, under Republic Act No. 1789 — pursuant to
which the contracts of Conditional Purchase and Sale in
question had been executed — the vessels "M/S Maria Rosello"
and "M/S General Lim" were subject to compensating tax.
Indeed, Section 14 of said Act provides that "reparations goods
obtained by private parties shall be exempt only from the
payment of customs duties, consular fees and the special
import tax." Although this Section was amended by R.A. No.
3079, to include the compensating tax" among the exemptions
enumerated therein, such amendment took place, not only
after the contracts involved in these appeals had been
perfected and partly consummated, but, also, after the
corresponding compensating tax had become due and
payment thereof demanded by Appellants herein. It is,
moreover, obvious that said additional exemption should not
and cannot be given retroactive operation, in the absence of a
manifest intent of Congress to do this effect. The issue in the
cases at bar hinges on whether or not such intent is clear.
Appellants maintain the negative, upon the ground that a tax
exemption must be clear and explicit; that there is no express
provision for the retroactivity of the exemption, established by
Republic Act No. 3079, from the compensating tax; that the
favorable provisions, which are referred to in section 20
thereof, cannot include the exemption from compensating tax;
and, that Congress could not have intended any retroactive
exemption, considering that the result thereof would be
prejudicial to the Government.
The inherent weakness of the last ground becomes manifest
when we consider that, if true, there could be no tax exemption
of any kind whatsoever, even if Congress should wish to create
one, because every such exemption implies a waiver of the
right to collect what otherwise would be due to the
Government, and, in this sense, is prejudicial thereto. In fact,
however, tax exemptions may and do exist, such as the one
prescribed in section 14 of Republic Act No. 1789, as amended
by Republic Act No. 3079, which, by the way, is "clear and
explicit," thus, meeting the first ground of appellant's
contention. It may not be amiss to add that no tax exemption
— like any other legal exemption or exception — is given
without any reason therefor. In much the same way as other
statutory commands, its avowed purpose is some public
benefit or interest, which the law-making body considers
sufficient to offset the monetary loss entitled in the grant of the
exemption. Indeed, section 20 of Republic Act No. 3079 exacts
a valuable consideration for the retroactivity of its favorable
provisions, namely, the voluntary assumption, by the end-user
117
who bought reparations goods prior to June 17, 1961 of "all the
new obligations provided for in" said Act.
The argument adduced in support of the third ground is that
the view adopted by the Tax Court would operate to grant
exemption to particular persons, the Buyers herein. It should
be noted, however, that there is no constitutional injunction
against granting tax exemptions to particular persons. In fact, it
is not unusual to grant legislative franchises to specific
individuals or entities, conferring tax exemptions thereto. What
the fundamental law forbids is the denial of equal protection,
such as through unreasonable discrimination or
classification.1äwphï1.ñët
Furthermore, Section 14 of the Law on Reparations, as
amended, exempts from the compensating tax, not particular
persons, but persons belonging to a particular class. Indeed,
appellants do not assail the constitutionality of said section 14,
insofar as it grants exemptions to end-users who, after the
approval of Republic Act No. 3079, on June 17, 1961, purchased
reparations goods procured by the Commission. From the
viewpoint of Constitutional Law, especially the equal protection
clause, there is no difference between the grant of exemption
to said end-users, and the extension of the grant to those
whose contracts of purchase and sale mere made before said
date, under Republic Act No. 1789.
It is true that Republic Act No. 3079 does not explicitly declare
that those who purchased reparations goods prior to June 17,
1961, are exempt from the compensating tax. It does not say
so, because they do not really enjoy such exemption, unless
they comply with the proviso in Section 20 of said Act, by
applying for the renovation of their respective utilization
contracts, "in order to avail of any provision of the Amendatory
Act which is more favorable" to the applicant. In other words,
it is manifest, from the language of said section 20, that the
same intended to give such buyers the opportunity to be
treated "in like manner and to the same extent as an end-user
filing his application after this approval of this Amendatory
Act." Like the "most-favored-nation-clause" in international
agreements, the aforementioned section 20 thus seeks, not to
discriminate or to create an exemption or exception, but to
abolish the discrimination, exemption or exception that would
otherwise result, in favor of the end-user who bought after
June 17, 1961 and against one who bought prior thereto.
Indeed, it is difficult to find a substantial justification for the
distinction between the one and the other. As correctly held by
the Tax Court in Philippine Ace Lines, Inc. v. Commissioner of
Internal Revenue (C.T.A. Nos. 964 and 984, January 25, 1963),
and reiterated in the cases under consideration:
x x x In providing that the favorable provision of Republic Act
No. 3079 shall be available to applicants for renovation of their
utilization contracts, on condition that said applicants shall
voluntarily assume all the new obligations provided in the new
118

law, the law intends to place persons who acquired reparations

goods before the enactment of the amendatory Act on the
same footing as those who acquire reparations goods after its
enactment. This is so because of the provision that once an
application for renovation of a utilization contract has been
approved, the favorable provisions of said Act shall be available
to the applicant "in like manner and to the same extent, as an
end-user filing his application alter the approval of this
amendatory Act." To deny exemption from compensating tax
to one whose utilization contract has been renovated, while
granting the exemption to one who files an application for
acquisition of reparations goods after the approval of the new
law, would be contrary to the express mandate of the new law,
that they both be subject to the same privileges in like manner
and to the same extent. It would be manifest distortion of the
literal meaning and purpose of the new law.

Wherefore, the appealed decision of the Court of Tax Appeals

is hereby affirmed in toto, without any pronouncement as to
costs. It is so ordered
119
G.R. No. L-7859 December 22, 1955
WALTER LUTZ, as Judicial Administrator of the Intestate Estate
of the deceased Antonio Jayme Ledesma, plaintiff-appellant,
vs.
J. ANTONIO ARANETA, as the Collector of Internal Revenue,
defendant-appellee.
Ernesto J. Gonzaga for appellant.
Office of the Solicitor General Ambrosio Padilla, First Assistant
Solicitor General Guillermo E. Torres and Solicitor Felicisimo R.
Rosete for appellee.
REYES, J.B L., J.:
This case was initiated in the Court of First Instance of Negros
Occidental to test the legality of the taxes imposed by
Commonwealth Act No. 567, otherwise known as the Sugar
Adjustment Act.
Promulgated in 1940, the law in question opens (section 1) with
a declaration of emergency, due to the threat to our industry
by the imminent imposition of export taxes upon sugar as
provided in the Tydings-McDuffe Act, and the "eventual loss of
its preferential position in the United States market";
wherefore, the national policy was expressed "to obtain a
readjustment of the benefits derived from the sugar industry
by the component elements thereof" and "to stabilize the sugar
industry so as to prepare it for the eventuality of the loss of its
preferential position in the United States market and the
imposition of the export taxes."
In section 2, Commonwealth Act 567 provides for an increase
of the existing tax on the manufacture of sugar, on a graduated
basis, on each picul of sugar manufactured; while section 3
levies on owners or persons in control of lands devoted to the
cultivation of sugar cane and ceded to others for a
consideration, on lease or otherwise —
a tax equivalent to the difference between the money value of
the rental or consideration collected and the amount
representing 12 per centum of the assessed value of such land.
According to section 6 of the law —
SEC. 6. All collections made under this Act shall accrue to a
special fund in the Philippine Treasury, to be known as the
'Sugar Adjustment and Stabilization Fund,' and shall be paid out
only for any or all of the following purposes or to attain any or
all of the following objectives, as may be provided by law.
First, to place the sugar industry in a position to maintain itself,
despite the gradual loss of the preferntial position of the
Philippine sugar in the United States market, and ultimately to
insure its continued existence notwithstanding the loss of that
120
market and the consequent necessity of meeting competition
in the free markets of the world;
Second, to readjust the benefits derived from the sugar
industry by all of the component elements thereof — the mill,
the landowner, the planter of the sugar cane, and the laborers
in the factory and in the field — so that all might continue
profitably to engage therein;lawphi1.net
Third, to limit the production of sugar to areas more
economically suited to the production thereof; and
Fourth, to afford labor employed in the industry a living wage
and to improve their living and working conditions: Provided,
That the President of the Philippines may, until the adjourment
of the next regular session of the National Assembly, make the
necessary disbursements from the fund herein created (1) for
the establishment and operation of sugar experiment station or
stations and the undertaking of researchers (a) to increase the
recoveries of the centrifugal sugar factories with the view of
reducing manufacturing costs, (b) to produce and propagate
higher yielding varieties of sugar cane more adaptable to
different district conditions in the Philippines, (c) to lower the
costs of raising sugar cane, (d) to improve the buying quality of
denatured alcohol from molasses for motor fuel, (e) to
determine the possibility of utilizing the other by-products of
the industry, (f) to determine what crop or crops are suitable
for rotation and for the utilization of excess cane lands, and (g)
on other problems the solution of which would help
rehabilitate and stabilize the industry, and (2) for the
improvement of living and working conditions in sugar mills and
sugar plantations, authorizing him to organize the necessary
agency or agencies to take charge of the expenditure and
allocation of said funds to carry out the purpose hereinbefore
enumerated, and, likewise, authorizing the disbursement from
the fund herein created of the necessary amount or amounts
needed for salaries, wages, travelling expenses, equipment,
and other sundry expenses of said agency or agencies.
Plaintiff, Walter Lutz, in his capacity as Judicial Administrator of
the Intestate Estate of Antonio Jayme Ledesma, seeks to
recover from the Collector of Internal Revenue the sum of
P14,666.40 paid by the estate as taxes, under section 3 of the
Act, for the crop years 1948-1949 and 1949-1950; alleging that
such tax is unconstitutional and void, being levied for the aid
and support of the sugar industry exclusively, which in
plaintiff's opinion is not a public purpose for which a tax may
be constitutioally levied. The action having been dismissed by
the Court of First Instance, the plaintifs appealed the case
directly to this Court (Judiciary Act, section 17).
The basic defect in the plaintiff's position is his assumption that
the tax provided for in Commonwealth Act No. 567 is a pure
exercise of the taxing power. Analysis of the Act, and
particularly of section 6 (heretofore quoted in full), will show
that the tax is levied with a regulatory purpose, to provide
121
means for the rehabilitation and stabilization of the threatened
sugar industry. In other words, the act is primarily an exercise
of the police power.
This Court can take judicial notice of the fact that sugar
production is one of the great industries of our nation, sugar
occupying a leading position among its export products; that it
gives employment to thousands of laborers in fields and
factories; that it is a great source of the state's wealth, is one of
the important sources of foreign exchange needed by our
government, and is thus pivotal in the plans of a regime
committed to a policy of currency stability. Its promotion,
protection and advancement, therefore redounds greatly to
the general welfare. Hence it was competent for the legislature
to find that the general welfare demanded that the sugar
industry should be stabilized in turn; and in the wide field of its
police power, the lawmaking body could provide that the
distribution of benefits therefrom be readjusted among its
components to enable it to resist the added strain of the
increase in taxes that it had to sustain (Sligh vs. Kirkwood, 237
U. S. 52, 59 L. Ed. 835; Johnson vs. State ex rel. Marey, 99 Fla.
1311, 128 So. 853; Maxcy Inc. vs. Mayo, 103 Fla. 552, 139 So.
121).
As stated in Johnson vs. State ex rel. Marey, with reference to
the citrus industry in Florida —
The protection of a large industry constituting one of the great
sources of the state's wealth and therefore directly or indirectly
affecting the welfare of so great a portion of the population of
the State is affected to such an extent by public interests as to
be within the police power of the sovereign. (128 Sp. 857).
Once it is conceded, as it must, that the protection and
promotion of the sugar industry is a matter of public concern,
it follows that the Legislature may determine within reasonable
bounds what is necessary for its protection and expedient for
its promotion. Here, the legislative discretion must be allowed
fully play, subject only to the test of reasonableness; and it is
not contended that the means provided in section 6 of the law
(above quoted) bear no relation to the objective pursued or are
oppressive in character. If objective and methods are alike
constitutionally valid, no reason is seen why the state may not
levy taxes to raise funds for their prosecution and attainment.
Taxation may be made the implement of the state's police
power (Great Atl. & Pac. Tea Co. vs. Grosjean, 301 U. S. 412, 81
L. Ed. 1193; U. S. vs. Butler, 297 U. S. 1, 80 L. Ed. 477; M'Culloch
vs. Maryland, 4 Wheat. 316, 4 L. Ed. 579).
That the tax to be levied should burden the sugar producers
themselves can hardly be a ground of complaint; indeed, it
appears rational that the tax be obtained precisely from those
who are to be benefited from the expenditure of the funds
derived from it. At any rate, it is inherent in the power to tax
that a state be free to select the subjects of taxation, and it has
122

been repeatedly held that "inequalities which result from a expenditure of tax money for private purposes, (compare
singling out of one particular class for taxation, or exemption Everson vs. Board of Education, 91 L. Ed. 472, 168 ALR 1392,
infringe no constitutional limitation" (Carmichael vs. Southern 1400).
Coal & Coke Co., 301 U. S. 495, 81 L. Ed. 1245, citing numerous
authorities, at p. 1251). The decision appealed from is affirmed, with costs against
appellant. So ordered.
From the point of view we have taken it appears of no moment
that the funds raised under the Sugar Stabilization Act, now in
question, should be exclusively spent in aid of the sugar
industry, since it is that very enterprise that is being protected.
It may be that other industries are also in need of similar
protection; that the legislature is not required by the
Constitution to adhere to a policy of "all or none." As ruled in
Minnesota ex rel. Pearson vs. Probate Court, 309 U. S. 270, 84
L. Ed. 744, "if the law presumably hits the evil where it is most
felt, it is not to be overthrown because there are other
instances to which it might have been applied;" and that "the
legislative authority, exerted within its proper field, need not
embrace all the evils within its reach" (N. L. R. B. vs. Jones &
Laughlin Steel Corp. 301 U. S. 1, 81 L. Ed. 893).

Even from the standpoint that the Act is a pure tax measure, it
cannot be said that the devotion of tax money to experimental
stations to seek increase of efficiency in sugar production,
utilization of by-products and solution of allied problems, as
well as to the improvements of living and working conditions in
sugar mills or plantations, without any part of such money
being channeled directly to private persons, constitutes
123
G.R. Nos. L-19824, L-19825 and 19826 July 9, 1966
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
BACOLOD-MURCIA MILLING CO., INC., MA-AO SUGAR CENTRAL
CO., INC., and TALISAY-SILAY MILLING COMPANY, defendants-
appellants.
Meer, Meer and Meer, Enrique M. Fernando and Emma
Quisumbing-Fernando for defendants-appellants.
Office of the Solicitor General Antonio P. Barredo, Assistant
Solicitor General Antonio Torres and Solicitor Ceferino Padua,
for plaintiff-appellee.
REGALA, J.:
This is a joint appeal by three sugar centrals, Bacolod Murcia
Milling Co., Inc., Ma-ao Sugar Central Co., Inc., and Talisay-Silay
Milling Co., sister companies under one controlling ownership
and management, from a decision of the Court of First Instance
of Manila finding them liable for special assessments under
Section 15 of Republic Act No. 632.
Republic Act No. 632 is the charter of the Philippine Sugar
Institute, Philsugin for short, a semi-public corporation created
for the following purposes and objectives:
(a) To conduct research work for the sugar industry in all its
phases, either agricultural or industrial, for the purpose of
introducing into the sugar industry such practices or processes
that will reduce the cost of production, increase and improve
the industrialization of the by-products of sugar cane, and
achieve greater efficiency in the industry;
(b) To improve existing methods of raising sugar cane and of
sugar manufacturing;
(c) To insure a permanent, sufficient and balanced production
of sugar and its by-products for local consumption and
exportation;
(d) To establish and maintain such balanced relation between
production and consumption of sugar and its by-products, and
such marketing conditions therefor, as well insure stabilized
prices at a level sufficient to cover the cost of production plus a
reasonable profit;
124
(e) To promote the effective merchandising of sugar and its by-
products in the domestic and foreign markets so that those
engaged in the sugar industry will be placed on a basis of
economic security; and
(f) To improve the living and economic conditions of laborers
engaged in the sugar industry by the gradual and effective
correction of the inequalities existing in the industry. (Section
2, Rep. Act 632)
To realize and achieve these ends, Sections 15 and 16 of the
aforementioned law provide:
Sec. 15. Capitalization. — To raise the necessary funds to carry
out the provisions of this Act and the purposes of the
corporation, there shall be levied on the annual sugar
production a tax of TEN CENTAVOS [P0.10] per picul of sugar to
be collected for a period of five (5) years beginning the crop
year 1951-1952. The amount shall be borne by the sugar cane
planters and the sugar centrals in the proportion of their
corresponding milling share, and said levy shall constitute a lien
on their sugar quedans and/or warehouse receipts.
Sec. 16. Special Fund. — The proceeds of the foregoing levy
shall be set aside to constitute a special fund to be known as
the "Sugar Research and Stabilization Fund," which shall be
available exclusively for the use of the corporation. All the
income and receipts derived from the special fund herein
created shall accrue to, and form part of the said fund to be
available solely for the use of the corporation.
The specific and general powers of the Philsugin are set forth in
Section 8 of the same law, to wit:
Sec. 3. Specific and General Powers. — For carrying out the
purposes mentioned in the preceding section, the PHILSUGIN
shall have the following powers:
(a) To establish, keep, maintain and operate, or help establish,
keep, maintain, and operate one central experiment station
and such number of regional experiment stations in any part of
the Philippines as may be necessary to undertake extensive
research in sugar cane culture and manufacture, including
studies as to the feasibility of merchandising sugar cane farms,
the control and eradication of pests, the selected and
propagation of high-yielding varieties of sugar cane suited to
Philippine climatic conditions, and such other pertinent studies
as will be useful in adjusting the sugar industry to a position
independent of existing trade preference in the American
market;
(b) To purchase such machinery, materials, equipment and
supplies as may be necessary to prosecute successfully such
researches and experimental work;
125
(c) To explore and expand the domestic and foreign markets for
sugar and its by-products to assure mutual benefits to
consumers and producers, and to promote and maintain a
sufficient general production of sugar and its by-products by an
efficient coordination of the component elements of the sugar
industry of the country;
(d) To buy, sell, assign, own, operate, rent or lease, subject to
existing laws, machineries, equipment, materials, merchant
vessels, rails, railroad lines, and any other means of
transportation, warehouses, buildings, and any other
equipment and material to the production, manufacture,
handling, transportation and warehousing of sugar and its by-
products;
(e) To grant loans, on reasonable terms, to planters when it
deems such loans advisable;
(f) To enter, make and execute contracts of any kind as may be
necessary or incidental to the attainment of its purposes with
any person, firm, or public or private corporation, with the
Government of the Philippines or of the United States, or any
state, territory, or persons therefor, or with any foreign
government and, in general, to do everything directly or
indirectly necessary or incidental to, or in furtherance of, the
purposes of the corporation;
(g) To do all such other things, transact all such business and
perform such functions directly or indirectly necessary,
incidental or conducive to the attainment of the purposes of
the corporation; and
(h) Generally, to exercise all the powers of a Corporation under
the Corporation Law insofar as they are not inconsistent with
the provisions of this Act.
The facts of this case bearing relevance to the issue under
consideration, as recited by the lower court and accepted by
the appellants, are the following:
x x x during the 5 crop years mentioned in the law, namely
1951-1952, 1952-1953, 1953-1954, 1954-1955 and 1955-1956,
defendant Bacolod-Murcia Milling Co., Inc., has paid
P267,468.00 but left an unpaid balance of P216,070.50;
defendant Ma-ao Sugar Central Co., Inc., has paid P117,613.44
but left unpaid balance of P235,800.20; defendant Talisay-Silay
Milling Company has paid P251,812.43 but left unpaid balance
of P208,193.74; and defendant Central Azucarera del Danao
made a payment of P49,897.78 but left unpaid balance of
P48,059.77. There is no question regarding the correctness of
the amounts paid and the amounts that remain unpaid.
From the evidence presented, on which there is no controversy,
it was disclosed that on September 3, 1951, the Philippine
Sugar Institute, known as the PHILSUGIN for short, acquired the
126
Insular Sugar Refinery for a total consideration of
P3,070,909.60 payable, in accordance with the deed of sale
Exhibit A, in 3 installments from the process of the sugar tax to
be collected, under Republic Act 632. The evidence further
discloses that the operation of the Insular Sugar Refinery for the
years, 1954, 1955, 1956 and 1957 was disastrous in the sense
that PHILSUGIN incurred tremendous losses as shown by an
examination of the statements of income and expenses marked
Exhibits 5, 6, 7 and 8. Through the testimony of Mr. Cenon Flor
Cruz, former acting general manager of PHILSUGIN and at
present technical consultant of said entity, presented by the
defendants as witnesses, it has been shown that the operation
of the Insular Sugar Refinery has consumed 70% of the thinking
time and effort of the PHILSUGIN management. x x x .
Contending that the purchase of the Insular Sugar Refinery with
money from the Philsugin Fund was not authorized by Republic
Act 632 and that the continued operation of the said refinery
was inimical to their interests, the appellants refused to
continue with their contributions to the said fund. They
maintained that their obligation to contribute or pay to the said
Fund subsists only to the limit and extent that they are
benefited by such contributions since Republic Act 632 is not a
revenue measure but an Act which establishes a "Special
assessments." Adverting to the finding of the lower court that
proceeds of the said Fund had been used or applied to absorb
the "tremendous losses" incurred by Philsugin in its "disastrous
operation" of the said refinery, the appellants herein argue that
they should not only be released from their obligation to pay
the said assessment but be refunded, besides, of all that they
might have previously paid thereunder.
The appellants' thesis is simply to the effect that the "10
centavos per picul of sugar" authorized to be collected under
Sec. 15 of Republic 632 is a special assessment. As such, the
proceeds thereof may be devoted only to the specific purpose
for which the assessment was authorized, a special assessment
being a levy upon property predicated on the doctrine that the
property against which it is levied derives some special benefit
from the improvement. It is not a tax measure intended to raise
revenues for the Government. Consequently, once it has been
determined that no benefit accrues or inures to the property
owners paying the assessment, or that the proceeds from the
said assessment are being misapplied to the prejudice of those
against whom it has been levied, then the authority to insist on
the payment of the said assessment ceases.
On the other hand, the lower court adjudged the appellants
herein liable under the aforementioned law, Republic Act 632,
upon the following considerations:
First, Subsection d) of Section 3 of Republic Act 632 authorizes
Philsugin to buy and operate machineries, equipment,
merchant vessels, etc., and any other equipment and material
for the production, manufacture, handling, transportation and
127
warehousing of sugar and its by-products. It was, therefore,
authorized to purchase and operate a sugar refinery.
Secondly, the corporate powers of the Philsugin are vested in
and exercised by a board of directors composed of 5 members,
3 of whom shall be appointed upon recommendation of the
National Federation of Sugar Cane Planters and 2 upon
recommendation of the Philippine Sugar Association. (Sec. 4,
Rep. Act 632). It has not been shown that this particular
provision was not observed in this case. Therefore, the
appellants herein may not rightly claim that there had been a
misapplication of the Philsugin funds when the same was used
to procure the Insular Sugar Refinery because the decision to
purchase the said refinery was made by a board in which the
applicants were fully and duly represented, the appellants
being members of the Philippine Sugar Association.
Thirdly, all financial transactions of the Philsugin are audited by
the General Auditing Office, which must be presumed to have
passed upon the legality and prudence of the disbursements of
the Fund. Additionally, other offices of the Government review
such transactions as reflected in the annual report obliged of
the Philsugin to prepare. Among those offices are the Office of
the President of the Philippines, the Administrator of Economic
Coordination and the Presiding Officers of the two chambers of
Congress. With all these safeguards against any imprudent or
unauthorized expenditure of Philsugin Funds, the acquisition of
the Insular Sugar Refinery must be upheld in its legality and
propriety.
Fourthly, it would be dangerous to sanction the unilateral
refusal of the appellants herein to continue with their
contribution to the Fund for that conduct is no different "from
the case of an ordinary taxpayer who refuses to pay his taxes
on the ground that the money is being misappropriated by
Government officials." This is taking the law into their own
hands.
Against the above ruling of the trial court, the appellants
contend:
First. It is fallacious to argue that no mismanagement or abuse
of corporate power could have been committed by Philsugin
solely because its charter incorporates so many devices or
safeguards to preclude such abuse. This reasoning of the lower
court does not reconcile with that actually happened in this
case.
Besides, the appellants contend that the issue on hand is not
whether Philsugin abused or not its powers when it purchased
the Insular Sugar Refinery. The issue, rather, is whether
Philsugin had any power or authority at all to acquire the said
refinery. The appellants deny that Philsugin is possessed of any
such authority because what it is empowered to purchase is not
a "sugar refinery but a central experiment station or perhaps at
128
the most a sugar central to be used for that purpose." (Sec. 3[a],
Rep. Act 632) For this distinction, the appellants cite the case of
Collector vs. Ledesma, G.R. No. L-12158, May 27, 1959, in which
this Court ruled that —
We are of the opinion that a "sugar central," as that term is
used in Section 189, applies to "a large mill that makes sugar
out of the cane brought from a wide surrounding territory," or
a sugar mill which manufactures sugar for a number of
plantations. The term "sugar central" could not have been
intended by Congress to refer to all sugar mills or sugar
factories as contended by respondent. If respondent's
interpretation is to be followed, even sugar mills run by animal
power (trapiche) would be considered sugar central. We do not
think Congress ever intended to place owners of (trapiches) in
the same category as operators of sugar centrals.
That sugar mills are not the same as sugar centrals may also be
gleaned from Commonwealth Act No. 470 (Assessment Law). In
prescribing the principle governing valuation and assessment of
real property. Section 4 of said Act provides —
"Machinery permanently used or in stalled in sugar centrals,
mills, or refineries shall be assessed."
This clearly indicates that "Sugar centrals" are not the same as
"sugar mills" or "sugar refineries."
Second. The appellants' refusal to continue paying the
assessment under Republic Act 632 may not rightly be equated
with a taxpayer's refusal to pay his ordinary taxes precisely
because there is a substantial distinction between a "special
assessment" and an ordinary tax. The purpose of the former is
to finance the improvement of particular properties, with the
benefits of the improvement accruing or inuring to the owners
thereof who, after all, pay the assessment. The purpose of an
ordinary tax, on the other hand, is to provide the Government
with revenues needed for the financing of state affairs. Thus,
while the refusal of a citizen to pay his ordinary taxes may not
indeed be sanctioned because it would impair government
functions, the same would not hold true in the case of a refusal
to comply with a special assessment.
Third. Upon a host of decisions of the United States Supreme
Court, the imposition or collection of a special assessment upon
property owners who receive no benefit from such assessment
amounts to a denial of due process. Thus, in the case of
Norwood vs. Baer, 172 US 269, the ruling was laid down that —
As already indicated, the principle underlying special
assessments to meet the cost of public improvements is that
the property upon which they are imposed is peculiarly
benefited, and therefore, the panels do not, in fact, pay
anything in excess of what they received by reason of such
improvement.
129
unless a corresponding benefit is realized by the property
owner, the exaction of a special assessment would be
"manifestly unfair" (Seattle vs. Kelleher 195 U.S. 351) and
"palpably arbitrary or plain abuse" (Gast Realty Investment Co.
vs. Schneider Granite Co., 240 U.S. 57). In other words, the
assessment is violative of the due process guarantee of the
constitution (Memphis vs. Charleston Ry v. Pace, 282 U.S. 241).
We find for the appellee.
The nature of a "special assessment" similar to the case at bar
has already been discussed and explained by this Court in the
case of Lutz vs. Araneta, 98 Phil. 148. For in this Lutz case,
Commonwealth Act 567, otherwise known as the Sugar
Adjustment Act, levies on owners or persons in control of lands
devoted to the cultivation of sugar cane and ceded to others for
a consideration, on lease or otherwise —
a tax equivalent to the difference between the money value of
the rental or consideration collected and the amount
representing 12 per centum of the assessed value of such land.
(Sec. 3).1äwphï1.ñët
Under Section 6 of the said law, Commonwealth Act 567, all
collections made thereunder "shall accrue to a special fund in
the Philippine Treasury, to be known as the 'Sugar Adjustment
and Stabilization Fund,' and shall be paid out only for any or all
of the following purposes or to attain any or all of the following
objectives, as may be provided by law." It then proceeds to
enumerate the said purposes, among which are "to place the
sugar industry in a position to maintain itself; ... to readjust the
benefits derived from the sugar industry ... so that all might
continue profitably to engage therein; to limit the production
of sugar to areas more economically suited to the production
thereof; and to afford laborers employed in the industry a living
wage and to improve their living and working conditions.
The plaintiff in the above case, Walter Lutz, contended that the
aforementioned tax or special assessment was unconstitutional
because it was being "levied for the aid and support of the sugar
industry exclusively," and therefore, not for a public purpose.
In rejecting the theory advanced by the said plaintiff, this Court
said:
The basic defect in the plaintiff's position in his assumption that
the tax provided for in Commonwealth Act No. 567 is a pure
exercise of the taxing power. Analysis of the Act, and
particularly Section 6, will show that the tax is levied with a
regulatory purpose, to provide means for the rehabilitation and
stabilization of the threatened sugar industry. In other words,
the act is primarily an exercise of the police power.
This Court can take judicial notice of the fact that sugar
production is one of the great industries of our nation, sugar
occupying a leading position among its export products; that it
gives employment to thousands of laborers in fields and
130
factories; that it is a great source of the state's wealth, is one,
of the important sources to foreign exchange needed by our
government, and is thus pivotal in the plans of a regime
committed to a policy of currency stability. Its promotion,
protection and advancement, therefore redounds greatly to
the general welfare. Hence, it was competent for the
Legislature to find that the general welfare demanded that the
sugar industry should be stabilized in turn; and in the wide field
of its police power, the law-making body could provide that the
distribution of benefits therefrom be readjusted among its
components, to enable it to resist the added strain of the
increase in taxes that it had to sustain (Sligh vs. Kirkwood, 237
U.S. 52, 59 L. Ed. 835; Johnson vs. State ex rel. Marey, 99 Fla.
1311, 128 So. 853; Marcy Inc. vs. Mayo, 103 Fla. 552, 139 So.
121)
As stated in Johnson vs. State ex rel. Marcy, with reference to
the citrus industry in Florida —
"The protection of a large industry constituting one of the great
source of the state's wealth and therefore directly or indirectly
affecting the welfare of so great a portion of the population of
the State is affected to such an extent by public interests as to
be within the police power of the sovereign." (128 So. 857).
Once it is conceded, as it must that the protection and
promotion of the sugar industry is a matter of public concern,
it follows that the Legislature may determine within reasonable
bounds what is necessary for its protection and expedient for
its promotion. Here, the legislative discretion must be allowed
full play, subject only to the test of reasonableness; and it is not
contended that the means provided in Section 6 of the law
(above quoted) bear no relation to the objective pursued or are
oppressive in character. If objective and methods are alike
constitutionally valid, no reason is seen why the state may not
levy taxes to raise funds for their prosecution and attainment.
Taxation may be made the implement of the state's police
power. (Great Atl. & Pac. Tea Co. vs. Grosjean, 301 U.S. 412, 81
L. Ed. 1193; U.S. vs. Butler, 297 U.S. 1, 80 L. Ed. 477; M'cullock
vs. Maryland, 4 Wheat. 316, 4 L. Ed. 579).
On the authority of the above case, then, We hold that the
special assessment at bar may be considered as similarly as the
above, that is, that the levy for the Philsugin Fund is not so
much an exercise of the power of taxation, nor the imposition
of a special assessment, but, the exercise of the police power
for the general welfare of the entire country. It is, therefore, an
exercise of a sovereign power which no private citizen may
lawfully resist.
Besides, under Section 2(a) of the charter, the Philsugin is
authorized "to conduct research work for the sugar industry in
all its phases, either agricultural or industrial, for the purpose
of introducing into the sugar industry such practices or
processes that will reduce the cost of production, ..., and
achieve greater efficiency in the industry." This provision, first
131

of all, more than justifies the acquisition of the refinery in

question. The case dispute that the operation of a sugar In view of all the foregoing, the decision appealed from is
refinery is a phase of sugar production and that from such hereby affirmed, with costs.
operation may be learned methods of reducing the cost of
sugar manufactured no less than it may afford the opportunity
to discover the more effective means of achieving progress in
the industry. Philsugin's experience alone of running a refinery
is a gain to the entire industry. That the operation resulted in a
financial loss is by no means an index that the industry did not
profit therefrom, as other farms of a different nature may have
been realized. Thus, from its financially unsuccessful venture,
the Philsugin could very well have advanced in its appreciation
of the problems of management faced by sugar centrals. It
could have understood more clearly the difficulties of
marketing sugar products. It could have known with better
intimacy the precise area of the industry in need of the more
help from the government. The view of the appellants herein,
therefore, that they were not benefited by the unsuccessful
operation of the refinery in question is not entirely accurate.

Furthermore, Section 2(a) specifies a field of research which,

indeed, would be difficult to carry out save through the actual
operation of a refinery. Quite obviously, the most practical or
realistic approach to the problem of what "practices or
processes" might most effectively cut the cost of production is
to experiment on production itself. And yet, how can such an
experiment be carried out without the tools, which is all that a
refinery is?
132

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR.

JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES
SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR.
SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B.
ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF
THE PHILIPPINES represented by FRANKLIN M. DRILON m his
capacity as SENATE PRESIDENT and HOUSE OF
REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR.
in his capacity as SPEAKER OF THE HOUSE, Respondents.

x-----------------------x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S.

ALCANTARA, Petitioner,
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE
PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR., in
his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES,
Respondents.

x-----------------------x
G.R. No. 208566 November 19, 2013
G.R. No. 209251
133

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque
Former Provincial Board Member -Province of Marinduque,
Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY
FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
DECISION
PERLAS-BERNABE, J.:
"Experience is the oracle of truth."1
-James Madison
Before the Court are consolidated petitions2 taken under Rule
65 of the Rules of Court, all of which assail the constitutionality
of the Pork Barrel System. Due to the complexity of the subject
matter, the Court shall heretofore discuss the system‘s
conceptual underpinnings before detailing the particulars of
the constitutional challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English origin.3
Historically, its usage may be traced to the degrading ritual of
rolling out a barrel stuffed with pork to a multitude of black
slaves who would cast their famished bodies into the porcine
feast to assuage their hunger with morsels coming from the
generosity of their well-fed master.4 This practice was later
compared to the actions of American legislators in trying to
direct federal budgets in favor of their districts.5 While the
advent of refrigeration has made the actual pork barrel
obsolete, it persists in reference to political bills that "bring
home the bacon" to a legislator‘s district and constituents.6 In
a more technical sense, "Pork Barrel" refers to an appropriation
of government spending meant for localized projects and
secured solely or primarily to bring money to a representative's
district.7 Some scholars on the subject further use it to refer to
legislative control of local appropriations.8
In the Philippines, "Pork Barrel" has been commonly referred
to as lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage
would evolve in reference to certain funds of the Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,10 or the Public Works Act of 1922, is considered11 as
the earliest form of "Congressional Pork Barrel" in the
134
Philippines since the utilization of the funds appropriated
therein were subjected to post-enactment legislator approval.
Particularly, in the area of fund release, Section 312 provides
that the sums appropriated for certain public works projects13
"shall be distributed x x x subject to the approval of a joint
committee elected by the Senate and the House of
Representatives. "The committee from each House may also
authorize one of its members to approve the distribution made
by the Secretary of Commerce and Communications."14 Also,
in the area of fund realignment, the same section provides that
the said secretary, "with the approval of said joint committee,
or of the authorized members thereof, may, for the purposes
of said distribution, transfer unexpended portions of any item
of appropriation under this Act to any other item hereunder."
In 1950, it has been documented15 that post-enactment
legislator participation broadened from the areas of fund
release and realignment to the area of project identification.
During that year, the mechanics of the public works act was
modified to the extent that the discretion of choosing projects
was transferred from the Secretary of Commerce and
Communications to legislators. "For the first time, the law
carried a list of projects selected by Members of Congress, they
‘being the representatives of the people, either on their own
account or by consultation with local officials or civil
leaders.‘"16 During this period, the pork barrel process
commenced with local government councils, civil groups, and
individuals appealing to Congressmen or Senators for projects.
Petitions that were accommodated formed part of a legislator‘s
allocation, and the amount each legislator would eventually get
is determined in a caucus convened by the majority. The
amount was then integrated into the administration bill
prepared by the Department of Public Works and
Communications. Thereafter, the Senate and the House of
Representatives added their own provisions to the bill until it
was signed into law by the President – the Public Works Act.17
In the 1960‘s, however, pork barrel legislation reportedly
ceased in view of the stalemate between the House of
Representatives and the Senate.18
B. Martial Law Era (1972-1986).
While the previous" Congressional Pork Barrel" was apparently
discontinued in 1972 after Martial Law was declared, an era
when "one man controlled the legislature,"19 the reprieve was
only temporary. By 1982, the Batasang Pambansa had already
introduced a new item in the General Appropriations Act (GAA)
called the" Support for Local Development Projects" (SLDP)
under the article on "National Aid to Local Government Units".
Based on reports,20 it was under the SLDP that the practice of
giving lump-sum allocations to individual legislators began,
with each assemblyman receiving ₱500,000.00. Thereafter,
assemblymen would communicate their project preferences to
the Ministry of Budget and Management for approval. Then,
the said ministry would release the allocation papers to the
Ministry of Local Governments, which would, in turn, issue the
135
checks to the city or municipal treasurers in the assemblyman‘s
locality. It has been further reported that "Congressional Pork
Barrel" projects under the SLDP also began to cover not only
public works projects, or so- called "hard projects", but also
"soft projects",21 or non-public works projects such as those
which would fall under the categories of, among others,
education, health and livelihood.22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-1992).
After the EDSA People Power Revolution in 1986 and the
restoration of Philippine democracy, "Congressional Pork
Barrel" was revived in the form of the "Mindanao Development
Fund" and the "Visayas Development Fund" which were
created with lump-sum appropriations of ₱480 Million and
₱240 Million, respectively, for the funding of development
projects in the Mindanao and Visayas areas in 1989. It has been
documented23 that the clamor raised by the Senators and the
Luzon legislators for a similar funding, prompted the creation
of the "Countrywide Development Fund" (CDF) which was
integrated into the 1990 GAA24 with an initial funding of ₱2.3
Billion to cover "small local infrastructure and other priority
community projects."
Under the GAAs for the years 1991 and 1992,25 CDF funds
were, with the approval of the President, to be released directly
to the implementing agencies but "subject to the submission of
the required list of projects and activities."Although the GAAs
from 1990 to 1992 were silent as to the amounts of allocations
of the individual legislators, as well as their participation in the
identification of projects, it has been reported26 that by 1992,
Representatives were receiving ₱12.5 Million each in CDF
funds, while Senators were receiving ₱18 Million each, without
any limitation or qualification, and that they could identify any
kind of project, from hard or infrastructure projects such as
roads, bridges, and buildings to "soft projects" such as
textbooks, medicines, and scholarships.27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,28 the GAA explicitly stated that
the release of CDF funds was to be made upon the submission
of the list of projects and activities identified by, among others,
individual legislators. For the first time, the 1993 CDF Article
included an allocation for the Vice-President.29 As such,
Representatives were allocated ₱12.5 Million each in CDF
funds, Senators, ₱18 Million each, and the Vice-President, ₱20
Million.
In 1994,30 1995,31 and 1996,32 the GAAs contained the same
provisions on project identification and fund release as found
in the 1993 CDF Article. In addition, however, the Department
of Budget and Management (DBM) was directed to submit
reports to the Senate Committee on Finance and the House
136
Committee on Appropriations on the releases made from the
funds.33
Under the 199734 CDF Article, Members of Congress and the
Vice-President, in consultation with the implementing agency
concerned, were directed to submit to the DBM the list of 50%
of projects to be funded from their respective CDF allocations
which shall be duly endorsed by (a) the Senate President and
the Chairman of the Committee on Finance, in the case of the
Senate, and (b) the Speaker of the House of Representatives
and the Chairman of the Committee on Appropriations, in the
case of the House of Representatives; while the list for the
remaining 50% was to be submitted within six (6) months
thereafter. The same article also stated that the project list,
which would be published by the DBM,35 "shall be the basis for
the release of funds" and that "no funds appropriated herein
shall be disbursed for projects not included in the list herein
required."
The following year, or in 1998,36 the foregoing provisions
regarding the required lists and endorsements were
reproduced, except that the publication of the project list was
no longer required as the list itself sufficed for the release of
CDF Funds.
The CDF was not, however, the lone form of "Congressional
Pork Barrel" at that time. Other forms of "Congressional Pork
Barrel" were reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in order to
perpetuate the ad ministration‘s political agenda.37 It has been
articulated that since CIs "formed part and parcel of the
budgets of executive departments, they were not easily
identifiable and were thus harder to monitor." Nonetheless,
the lawmakers themselves as well as the finance and budget
officials of the implementing agencies, as well as the DBM,
purportedly knew about the insertions.38 Examples of these
CIs are the Department of Education (DepEd) School Building
Fund, the Congressional Initiative Allocations, the Public Works
Fund, the El Niño Fund, and the Poverty Alleviation Fund.39 The
allocations for the School Building Fund, particularly, ―shall be
made upon prior consultation with the representative of the
legislative district concerned.”40 Similarly, the legislators had
the power to direct how, where and when these appropriations
were to be spent.41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-
2001).
In 1999,42 the CDF was removed in the GAA and replaced by
three (3) separate forms of CIs, namely, the "Food Security
Program Fund,"43 the "Lingap Para Sa Mahihirap Program
Fund,"44 and the "Rural/Urban Development Infrastructure
Program Fund,"45 all of which contained a special provision
requiring "prior consultation" with the Member s of Congress
for the release of the funds.
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It was in the year 200046 that the "Priority Development
Assistance Fund" (PDAF) appeared in the GAA. The requirement
of "prior consultation with the respective Representative of the
District" before PDAF funds were directly released to the
implementing agency concerned was explicitly stated in the
2000 PDAF Article. Moreover, realignment of funds to any
expense category was expressly allowed, with the sole
condition that no amount shall be used to fund personal
services and other personnel benefits.47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of
the 2000 GAA for the year 2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-
2010).
The 200249 PDAF Article was brief and straightforward as it
merely contained a single special provision ordering the release
of the funds directly to the implementing agency or local
government unit concerned, without further qualifications. The
following year, 2003,50 the same single provision was present,
with simply an expansion of purpose and express authority to
realign. Nevertheless, the provisions in the 2003 budgets of the
Department of Public Works and Highways51 (DPWH) and the
DepEd52 required prior consultation with Members of
Congress on the aspects of implementation delegation and
project list submission, respectively. In 2004, the 2003 GAA was
re-enacted.53
In 2005,54 the PDAF Article provided that the PDAF shall be
used "to fund priority programs and projects under the ten
point agenda of the national government and shall be released
directly to the implementing agencies." It also introduced the
program menu concept,55 which is essentially a list of general
programs and implementing agencies from which a particular
PDAF project may be subsequently chosen by the identifying
authority. The 2005 GAA was re-enacted56 in 2006 and hence,
operated on the same bases. In similar regard, the program
menu concept was consistently integrated into the 2007,57
2008,58 2009,59 and 201060 GAAs.
Textually, the PDAF Articles from 2002 to 2010 were silent with
respect to the specific amounts allocated for the individual
legislators, as well as their participation in the proposal and
identification of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the DepEd School
Building Program and the DPWH budget, similar to its
predecessors, explicitly required prior consultation with the
concerned Member of Congress61 anent certain aspects of
project implementation.
Significantly, it was during this era that provisions which
allowed formal participation of non-governmental
organizations (NGO) in the implementation of government
projects were introduced. In the Supplemental Budget for
2006, with respect to the appropriation for school buildings,
NGOs were, by law, encouraged to participate. For such
138
purpose, the law stated that "the amount of at least ₱250
Million of the ₱500 Million allotted for the construction and
completion of school buildings shall be made available to NGOs
including the Federation of Filipino-Chinese Chambers of
Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the
construction of public school buildings x x x."62 The same
allocation was made available to NGOs in the 2007 and 2009
GAAs under the DepEd Budget.63 Also, it was in 2007 that the
Government Procurement Policy Board64 (GPPB) issued
Resolution No. 12-2007 dated June 29, 2007 (GPPB Resolution
12-2007), amending the implementing rules and regulations65
of RA 9184,66 the Government Procurement Reform Act, to
include, as a form of negotiated procurement,67 the procedure
whereby the Procuring Entity68 (the implementing agency)
may enter into a memorandum of agreement with an NGO,
provided that "an appropriation law or ordinance earmarks an
amount to be specifically contracted out to NGOs."69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar to the CDF
Articles, the 201170 PDAF Article included an express
statement on lump-sum amounts allocated for individual
legislators and the Vice-President: Representatives were given
₱70 Million each, broken down into ₱40 Million for "hard
projects" and ₱30 Million for "soft projects"; while ₱200 Million
was given to each Senator as well as the Vice-President, with a
₱100 Million allocation each for "hard" and "soft projects."
Likewise, a provision on realignment of funds was included, but
with the qualification that it may be allowed only once. The
same provision also allowed the Secretaries of Education,
Health, Social Welfare and Development, Interior and Local
Government, Environment and Natural Resources, Energy, and
Public Works and Highways to realign PDAF Funds, with the
further conditions that: (a) realignment is within the same
implementing unit and same project category as the original
project, for infrastructure projects; (b) allotment released has
not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the
legislator concerned.71
In the 201272 and 201373 PDAF Articles, it is stated that the
"identification of projects and/or designation of beneficiaries
shall conform to the priority list, standard or design prepared
by each implementing agency (priority list requirement) x x x."
However, as practiced, it would still be the individual legislator
who would choose and identify the project from the said
priority list.74
Provisions on legislator allocations75 as well as fund
realignment76 were included in the 2012 and 2013 PDAF
Articles; but the allocation for the Vice-President, which was
pegged at ₱200 Million in the 2011 GAA, had been deleted. In
addition, the 2013 PDAF Article now allowed LGUs to be
identified as implementing agencies if they have the technical
139
capability to implement the projects.77 Legislators were also
allowed to identify programs/projects, except for assistance to
indigent patients and scholarships, outside of his legislative
district provided that he secures the written concurrence of the
legislator of the intended outside-district, endorsed by the
Speaker of the House.78 Finally, any realignment of PDAF
funds, modification and revision of project identification, as
well as requests for release of funds, were all required to be
favorably endorsed by the House Committee on Appropriations
and the Senate Committee on Finance, as the case may be.79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated with
lump-sum, discretionary funds of Members of Congress, the
present cases and the recent controversies on the matter have,
however, shown that the term‘s usage has expanded to include
certain funds of the President such as the Malampaya Funds
and the Presidential Social Fund.
On the one hand, the Malampaya Funds was created as a
special fund under Section 880 of Presidential Decree No. (PD)
910,81 issued by then President Ferdinand E. Marcos (Marcos)
on March 22, 1976. In enacting the said law, Marcos recognized
the need to set up a special fund to help intensify, strengthen,
and consolidate government efforts relating to the exploration,
exploitation, and development of indigenous energy resources
vital to economic growth.82 Due to the energy-related
activities of the government in the Malampaya natural gas field
in Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",83 the special fund created under PD 910 has been
currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was created
under Section 12, Title IV84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming Corporation (PAGCOR). PD
1869 was similarly issued by Marcos on July 11, 1983. More
than two (2) years after, he amended PD 1869 and accordingly
issued PD 1993 on October 31, 1985,86 amending Section 1287
of the former law. As it stands, the Presidential Social Fund has
been described as a special funding facility managed and
administered by the Presidential Management Staff through
which the President provides direct assistance to priority
programs and projects not funded under the regular budget. It
is sourced from the share of the government in the aggregate
gross earnings of PAGCOR.88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have
increased tremendously,89 owing in no small part to previous
Presidents who reportedly used the "Pork Barrel" in order to
gain congressional support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel" erupted. Former
Marikina City Representative Romeo Candazo (Candazo), then
an anonymous source, "blew the lid on the huge sums of
140
government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the
kickbacks were ‘SOP‘ (standard operating procedure) among
legislators and ranged from a low 19 percent to a high 52
percent of the cost of each project, which could be anything
from dredging, rip rapping, sphalting, concreting, and
construction of school buildings."92 "Other sources of
kickbacks that Candazo identified were public funds intended
for medicines and textbooks. A few days later, the tale of the
money trail became the banner story of the Philippine Daily
Inquirer issue of August 13, 1996, accompanied by an
illustration of a roasted pig."93 "The publication of the stories,
including those about congressional initiative allocations of
certain lawmakers, including ₱3.6 Billion for a Congressman,
sparked public outrage."94
Thereafter, or in 2004, several concerned citizens sought the
nullification of the PDAF as enacted in the 2004 GAA for being
unconstitutional. Unfortunately, for lack of "any pertinent
evidentiary support that illegal misuse of PDAF in the form of
kickbacks has become a common exercise of unscrupulous
Members of Congress," the petition was dismissed.95
Recently, or in July of the present year, the National Bureau of
Investigation (NBI) began its probe into allegations that "the
government has been defrauded of some ₱10 Billion over the
past 10 years by a syndicate using funds from the pork barrel of
lawmakers and various government agencies for scores of
ghost projects."96 The investigation was spawned by sworn
affidavits of six (6) whistle-blowers who declared that JLN
Corporation – "JLN" standing for Janet Lim Napoles (Napoles) –
had swindled billions of pesos from the public coffers for "ghost
projects" using no fewer than 20 dummy NGOs for an entire
decade. While the NGOs were supposedly the ultimate
recipients of PDAF funds, the whistle-blowers declared that the
money was diverted into Napoles‘ private accounts.97 Thus,
after its investigation on the Napoles controversy, criminal
complaints were filed before the Office of the Ombudsman,
charging five (5) lawmakers for Plunder, and three (3) other
lawmakers for Malversation, Direct Bribery, and Violation of
the Anti-Graft and Corrupt Practices Act. Also recommended to
be charged in the complaints are some of the lawmakers‘ chiefs
-of-staff or representatives, the heads and other officials of
three (3) implementing agencies, and the several presidents of
the NGOs set up by Napoles.98
On August 16, 2013, the Commission on Audit (CoA) released
the results of a three-year audit investigation99 covering the
use of legislators' PDAF from 2007 to 2009, or during the last
three (3) years of the Arroyo administration. The purpose of the
audit was to determine the propriety of releases of funds under
PDAF and the Various Infrastructures including Local Projects
(VILP)100 by the DBM, the application of these funds and the
implementation of projects by the appropriate implementing
agencies and several government-owned-and-controlled
corporations (GOCCs).101 The total releases covered by the
141
audit amounted to ₱8.374 Billion in PDAF and ₱32.664 Billion
in VILP, representing 58% and 32%, respectively, of the total
PDAF and VILP releases that were found to have been made
nationwide during the audit period.102 Accordingly, the Co A‘s
findings contained in its Report No. 2012-03 (CoA Report),
entitled "Priority Development Assistance Fund (PDAF) and
Various Infrastructures including Local Projects (VILP)," were
made public, the highlights of which are as follows:103
● Amounts released for projects identified by a considerable
number of legislators significantly exceeded their respective
allocations.
● Amounts were released for projects outside of legislative
districts of sponsoring members of the Lower House.
● Total VILP releases for the period exceeded the total amount
appropriated under the 2007 to 2009 GAAs.
● Infrastructure projects were constructed on private lots
without these having been turned over to the government.
● Significant amounts were released to implementing agencies
without the latter‘s endorsement and without considering their
mandated functions, administrative and technical capabilities
to implement projects.
● Implementation of most livelihood projects was not
undertaken by the implementing agencies themselves but by
NGOs endorsed by the proponent legislators to which the
Funds were transferred.
● The funds were transferred to the NGOs in spite of the
absence of any appropriation law or ordinance.
● Selection of the NGOs were not compliant with law and
regulations.
● Eighty-Two (82) NGOs entrusted with implementation of
seven hundred seventy two (772) projects amount to ₱6.156
Billion were either found questionable, or submitted
questionable/spurious documents, or failed to liquidate in
whole or in part their utilization of the Funds.
● Procurement by the NGOs, as well as some implementing
agencies, of goods and services reportedly used in the projects
were not compliant with law.
As for the "Presidential Pork Barrel", whistle-blowers alleged
that" at least ₱900 Million from royalties in the operation of the
Malampaya gas project off Palawan province intended for
agrarian reform beneficiaries has gone into a dummy NGO."104
According to incumbent CoA Chairperson Maria Gracia Pulido
Tan (CoA Chairperson), the CoA is, as of this writing, in the
142
process of preparing "one consolidated report" on the
Malampaya Funds.105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA
Report and the Napoles controversy, several petitions were
lodged before the Court similarly seeking that the "Pork Barrel
System" be declared unconstitutional. To recount, the relevant
procedural antecedents in these cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara),
President of the Social Justice Society, filed a Petition for
Prohibition of even date under Rule 65 of the Rules of Court
(Alcantara Petition), seeking that the "Pork Barrel System" be
declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and
Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact
legislation appropriating funds for the "Pork Barrel System," in
whatever form and by whatever name it may be called, and
from approving further releases pursuant thereto.106 The
Alcantara Petition was docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B.
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes
San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas)
filed an Urgent Petition For Certiorari and Prohibition With
Prayer For The Immediate Issuance of Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction dated August
27, 2013 under Rule 65 of the Rules of Court (Belgica Petition),
seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided
for the 2013 PDAF, and the Executive‘s lump-sum, discretionary
funds, such as the Malampaya Funds and the Presidential Social
Fund,107 be declared unconstitutional and null and void for
being acts constituting grave abuse of discretion. Also, they
pray that the Court issue a TRO against respondents Paquito N.
Ochoa, Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De
Leon, in their respective capacities as the incumbent Executive
Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents,
for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the
foregoing respondents to release to the CoA and to the public:
(a) "the complete schedule/list of legislators who have availed
of their PDAF and VILP from the years 2003 to 2013, specifying
the use of the funds, the project or activity and the recipient
entities or individuals, and all pertinent data thereto"; and (b)
"the use of the Executive‘s lump-sum, discretionary funds,
including the proceeds from the x x x Malampaya Funds and
remittances from the PAGCOR x x x from 2003 to 2013,
specifying the x x x project or activity and the recipient entities
or individuals, and all pertinent data thereto."108 Also, they
pray for the "inclusion in budgetary deliberations with the
143
Congress of all presently off-budget, lump-sum, discretionary
funds including, but not limited to, proceeds from the
Malampaya Funds and remittances from the PAGCOR."109 The
Belgica Petition was docketed as G.R. No. 208566.110
Lastly, on September 5, 2013, petitioner Pedrito M.
Nepomuceno (Nepomuceno), filed a Petition dated August 23,
2012 (Nepomuceno Petition), seeking that the PDAF be
declared unconstitutional, and a cease and desist order be
issued restraining President Benigno Simeon S. Aquino III
(President Aquino) and Secretary Abad from releasing such
funds to Members of Congress and, instead, allow their release
to fund priority projects identified and approved by the Local
Development Councils in consultation with the executive
departments, such as the DPWH, the Department of Tourism,
the Department of Health, the Department of Transportation,
and Communication and the National Economic Development
Authority.111 The Nepomuceno Petition was docketed as UDK-
14951.112
On September 10, 2013, the Court issued a Resolution of even
date (a) consolidating all cases; (b) requiring public respondents
to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National
Treasurer, the Executive Secretary, or any of the persons acting
under their authority from releasing (1) the remaining PDAF
allocated to Members of Congress under the GAA of 2013, and
(2) Malampaya Funds under the phrase "for such other
purposes as may be hereafter directed by the President"
pursuant to Section 8 of PD 910 but not for the purpose of
"financing energy resource development and exploitation
programs and projects of the government‖ under the same
provision; and (d) setting the consolidated cases for Oral
Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General
(OSG) filed a Consolidated Comment (Comment) of even date
before the Court, seeking the lifting, or in the alternative, the
partial lifting with respect to educational and medical
assistance purposes, of the Court‘s September 10, 2013 TRO,
and that the consolidated petitions be dismissed for lack of
merit.113
On September 24, 2013, the Court issued a Resolution of even
date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their
respective replies to the Comment: (a) on September 30, 2013,
Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a
Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for
the guidelines to be observed by the parties for the Oral
Arguments scheduled on October 8, 2013. In view of the
144
technicality of the issues material to the present cases,
incumbent Solicitor General Francis H. Jardeleza (Solicitor
General) was directed to bring with him during the Oral
Arguments representative/s from the DBM and Congress who
would be able to competently and completely answer
questions related to, among others, the budgeting process and
its implementation. Further, the CoA Chairperson was
appointed as amicus curiae and thereby requested to appear
before the Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were
conducted. Thereafter, the Court directed the parties to submit
their respective memoranda within a period of seven (7) days,
or until October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral
Arguments, the following are the main issues for the Court‘s
resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated
petitions involve an actual and justiciable controversy; (b) the
issues raised in the consolidated petitions are matters of policy
not subject to judicial review; (c) petitioners have legal standing
to sue; and (d) the Court‘s Decision dated August 19, 1994 in
G.R. Nos. 113105, 113174, 113766, and 113888, entitled
"Philippine Constitution Association v. Enriquez"114
(Philconsa) and Decision dated April 24, 2012 in G.R. No.
164987, entitled "Lawyers Against Monopoly and Poverty v.
Secretary of Budget and Management"115 (LAMP) bar the re-
litigatio n of the issue of constitutionality of the "Pork Barrel
System" under the principles of res judicata and stare decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other
Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles
of/constitutional provisions on (a) separation of powers; (b)
non-delegability of legislative power; (c) checks and balances;
(d) accountability; (e) political dynasties; and (f) local
autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as
may be hereafter directed by the President" under Section 8 of
PD 910,116 relating to the Malampaya Funds, and (b) "to
finance the priority infrastructure development projects and to
finance the restoration of damaged or destroyed facilities due
to calamities, as may be directed and authorized by the Office
of the President of the Philippines" under Section 12 of PD
1869, as amended by PD 1993, relating to the Presidential
145
Social Fund, are unconstitutional insofar as they constitute
undue delegations of legislative power.
These main issues shall be resolved in the order that they have
been stated. In addition, the Court shall also tackle certain
ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is that no question
involving the constitutionality or validity of a law or
governmental act may be heard and decided by the Court
unless there is compliance with the legal requisites for judicial
inquiry,117 namely: (a) there must be an actual case or
controversy calling for the exercise of judicial power; (b) the
person challenging the act must have the standing to question
the validity of the subject act or issuance; (c) the question of
constitutionality must be raised at the earliest opportunity ;
and (d) the issue of constitutionality must be the very lis mota
of the case.118 Of these requisites, case law states that the first
two are the most important119 and, therefore, shall be
discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there
is an actual case or controversy.120 This is embodied in Section
1, Article VIII of the 1987 Constitution which pertinently states
that "judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides
that an actual case or controversy is one which "involves a
conflict of legal rights, an assertion of opposite legal claims,
susceptible of judicial resolution as distinguished from a
hypothetical or abstract difference or dispute.121 In other
words, "there must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence."122 Related to the requirement of an actual
case or controversy is the requirement of "ripeness," meaning
that the questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had
then been accomplished or performed by either branch before
a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to
itself as a result of the challenged action."123 "Withal, courts
will decline to pass upon constitutional issues through advisory
opinions, bereft as they are of authority to resolve hypothetical
or moot questions."124
146
Based on these principles, the Court finds that there exists an
actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied
by the antagonistic positions of the parties on the
constitutionality of the "Pork Barrel System." Also, the
questions in these consolidated cases are ripe for adjudication
since the challenged funds and the provisions allowing for their
utilization – such as the 2013 GAA for the PDAF, PD 910 for the
Malampaya Funds and PD 1869, as amended by PD 1993, for
the Presidential Social Fund – are currently existing and
operational; hence, there exists an immediate or threatened
injury to petitioners as a result of the unconstitutional use of
these public funds.
As for the PDAF, the Court must dispel the notion that the
issues related thereto had been rendered moot and academic
by the reforms undertaken by respondents. A case becomes
moot when there is no more actual controversy between the
parties or no useful purpose can be served in passing upon the
merits.125 Differing from this description, the Court observes
that respondents‘ proposed line-item budgeting scheme would
not terminate the controversy nor diminish the useful purpose
for its resolution since said reform is geared towards the 2014
budget, and not the 2013 PDAF Article which, being a distinct
subject matter, remains legally effective and existing. Neither
will the President‘s declaration that he had already "abolished
the PDAF" render the issues on PDAF moot precisely because
the Executive branch of government has no constitutional
authority to nullify or annul its legal existence. By constitutional
design, the annulment or nullification of a law may be done
either by Congress, through the passage of a repealing law, or
by the Court, through a declaration of unconstitutionality.
Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the
Solicitor General during the Oral Arguments:126
Justice Carpio: The President has taken an oath to faithfully
execute the law,127 correct? Solicitor General Jardeleza: Yes,
Your Honor.
Justice Carpio: And so the President cannot refuse to
implement the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your
Honor. In the case, for example of the PDAF, the President has
a duty to execute the laws but in the face of the outrage over
PDAF, the President was saying, "I am not sure that I will
continue the release of the soft projects," and that started,
Your Honor. Now, whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are
anomalies in the project, he has the power to stop the releases
in the meantime, to investigate, and that is Section 38 of
Chapter 5 of Book 6 of the Revised Administrative Code128 x x
x. So at most the President can suspend, now if the President
147
believes that the PDAF is unconstitutional, can he just refuse to
implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying
to say in the specific case of the PDAF because of the CoA
Report, because of the reported irregularities and this Court
can take judicial notice, even outside, outside of the COA
Report, you have the report of the whistle-blowers, the
President was just exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA
Report, there are anomalies, you stop and investigate, and
prosecute, he has done that. But, does that mean that PDAF has
been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two
(2) cases. Congress passes a law to repeal it, or this Court
declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish
PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and academic‘ principle
is not a magical formula that can automatically dissuade the
Court in resolving a case." The Court will decide cases,
otherwise moot, if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation
and the paramount public interest is involved; third, when the
constitutional issue raised requires formulation of controlling
principles to guide the bench, the bar, and the public; and
fourth, the case is capable of repetition yet evading review.129
The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially allege
grave violations of the Constitution with respect to, inter alia,
the principles of separation of powers, non-delegability of
legislative power, checks and balances, accountability and local
autonomy.
The applicability of the second exception is also apparent from
the nature of the interests involved
– the constitutionality of the very system within which
significant amounts of public funds have been and continue to
be utilized and expended undoubtedly presents a situation of
exceptional character as well as a matter of paramount public
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interest. The present petitions, in fact, have been lodged at a
time when the system‘s flaws have never before been
magnified. To the Court‘s mind, the coalescence of the CoA
Report, the accounts of numerous whistle-blowers, and the
government‘s own recognition that reforms are needed "to
address the reported abuses of the PDAF"130 demonstrates a
prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court
finds petitioners‘ claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the
findings made by the CoA which is the constitutionally-
mandated audit arm of the government. In Delos Santos v.
CoA,131 a recent case wherein the Court upheld the CoA‘s
disallowance of irregularly disbursed PDAF funds, it was
emphasized that:
The COA is endowed with enough latitude to determine,
prevent, and disallow irregular, unnecessary, excessive,
extravagant or unconscionable expenditures of government
funds. It is tasked to be vigilant and conscientious in
safeguarding the proper use of the government's, and
ultimately the people's, property. The exercise of its general
audit power is among the constitutional mechanisms that gives
life to the check and balance system inherent in our form of
government.
It is the general policy of the Court to sustain the decisions of
administrative authorities, especially one which is
constitutionally-created, such as the CoA, not only on the basis
of the doctrine of separation of powers but also for their
presumed expertise in the laws they are entrusted to enforce.
Findings of administrative agencies are accorded not only
respect but also finality when the decision and order are not
tainted with unfairness or arbitrariness that would amount to
grave abuse of discretion. It is only when the CoA has acted
without or in excess of jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, that this
Court entertains a petition questioning its rulings. x x x.
(Emphases supplied)
Thus, if only for the purpose of validating the existence of an
actual and justiciable controversy in these cases, the Court
deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely
due to the practical need for a definitive ruling on the system‘s
constitutionality. As disclosed during the Oral Arguments, the
CoA Chairperson estimates that thousands of notices of
disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed
out that all of these would eventually find their way to the
courts.132 Accordingly, there is a compelling need to formulate
controlling principles relative to the issues raised herein in
order to guide the bench, the bar, and the public, not just for
the expeditious resolution of the anticipated disallowance
149
cases, but more importantly, so that the government may be
guided on how public funds should be utilized in accordance
with constitutional principles.
Finally, the application of the fourth exception is called for by
the recognition that the preparation and passage of the
national budget is, by constitutional imprimatur, an affair of
annual occurrence.133 The relevance of the issues before the
Court does not cease with the passage of a "PDAF -free budget
for 2014."134 The evolution of the "Pork Barrel System," by its
multifarious iterations throughout the course of history, lends
a semblance of truth to petitioners‘ claim that "the same dog
will just resurface wearing a different collar."135 In Sanlakas v.
Executive Secretary,136 the government had already
backtracked on a previous course of action yet the Court used
the "capable of repetition but evading review" exception in
order "to prevent similar questions from re- emerging."137 The
situation similarly holds true to these cases. Indeed, the myriad
of issues underlying the manner in which certain public funds
are spent, if not resolved at this most opportune time, are
capable of repetition and hence, must not evade judicial
review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases
and controversies‖ carries the assurance that "the courts will
not intrude into areas committed to the other branches of
government."138 Essentially, the foregoing limitation is a
restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr,139 applies when there is
found, among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department,"
"a lack of judicially discoverable and manageable standards for
resolving it" or "the impossibility of deciding without an initial
policy determination of a kind clearly for non- judicial
discretion." Cast against this light, respondents submit that the
"the political branches are in the best position not only to
perform budget-related reforms but also to do them in
response to the specific demands of their constituents" and, as
such, "urge the Court not to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not
present political but legal questions which are within its
province to resolve. A political question refers to "those
questions which, under the Constitution, are to be decided by
the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with
issues dependent upon the wisdom, not legality, of a particular
measure."141 The intrinsic constitutionality of the "Pork Barrel
System" is not an issue dependent upon the wisdom of the
political branches of government but rather a legal one which
the Constitution itself has commanded the Court to act upon.
150
Scrutinizing the contours of the system along constitutional
lines is a task that the political branches of government are
incapable of rendering precisely because it is an exercise of
judicial power. More importantly, the present Constitution has
not only vested the Judiciary the right to exercise judicial power
but essentially makes it a duty to proceed therewith. Section 1,
Article VIII of the 1987 Constitution cannot be any clearer: "The
judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law. It includes the duty
of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." In
Estrada v. Desierto,142 the expanded concept of judicial power
under the 1987 Constitution and its effect on the political
question doctrine was explained as follows:143
To a great degree, the 1987 Constitution has narrowed the
reach of the political question doctrine when it expanded the
power of judicial review of this court not only to settle actual
controversies involving rights which are legally demandable
and enforceable but also to determine whether or not there
has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of government. Heretofore, the judiciary has
focused on the "thou shalt not's" of the Constitution directed
against the exercise of its jurisdiction. With the new provision,
however, courts are given a greater prerogative to determine
what it can do to prevent grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did
not just grant the Court power of doing nothing. x x x
(Emphases supplied)
It must also be borne in mind that ― when the judiciary
mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; does not in
reality nullify or invalidate an act of the legislature or the
executive, but only asserts the solemn and sacred obligation
assigned to it by the Constitution."144 To a great extent, the
Court is laudably cognizant of the reforms undertaken by its co-
equal branches of government. But it is by constitutional force
that the Court must faithfully perform its duty. Ultimately, it is
the Court‘s avowed intention that a resolution of these cases
would not arrest or in any manner impede the endeavors of the
two other branches but, in fact, help ensure that the pillars of
change are erected on firm constitutional grounds. After all, it
is in the best interest of the people that each great branch of
government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the
problems of society. For all these reasons, the Court cannot
heed respondents‘ plea for judicial restraint.
C. Locus Standi.
151
"The gist of the question of standing is whether a party alleges
such personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for
illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights
by the operation of statute or ordinance, he has no
standing."145
Petitioners have come before the Court in their respective
capacities as citizen-taxpayers and accordingly, assert that they
"dutifully contribute to the coffers of the National
Treasury."146 Clearly, as taxpayers, they possess the requisite
standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and
continue to be utilized. It is undeniable that petitioners, as
taxpayers, are bound to suffer from the unconstitutional usage
of public funds, if the Court so rules. Invariably, taxpayers have
been allowed to sue where there is a claim that public funds are
illegally disbursed or that public money is being deflected to
any improper purpose, or that public funds are wasted through
the enforcement of an invalid or unconstitutional law,147 as in
these cases.
Moreover, as citizens, petitioners have equally fulfilled the
standing requirement given that the issues they have raised
may be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public
interest."148 The CoA Chairperson‘s statement during the Oral
Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of controls"149
amplifies, in addition to the matters above-discussed, the
seriousness of the issues involved herein. Indeed, of greater
import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute.150
All told, petitioners have sufficient locus standi to file the
instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare
decisis non quieta et movere (or simply, stare decisis which
means "follow past precedents and do not disturb what has
been settled") are general procedural law principles which both
deal with the effects of previous but factually similar
dispositions to subsequent cases. For the cases at bar, the Court
examines the applicability of these principles in relation to its
prior rulings in Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle
states that a judgment on the merits in a previous case
rendered by a court of competent jurisdiction would bind a
subsequent case if, between the first and second actions, there
exists an identity of parties, of subject matter, and of causes of
action.151 This required identity is not, however, attendant
152
hereto since Philconsa and LAMP, respectively involved
constitutional challenges against the 1994 CDF Article and 2004
PDAF Article, whereas the cases at bar call for a broader
constitutional scrutiny of the entire "Pork Barrel System." Also,
the ruling in LAMP is essentially a dismissal based on a
procedural technicality – and, thus, hardly a judgment on the
merits – in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct
releases of funds to the Members of Congress, who actually
spend them according to their sole discretion" or "pertinent
evidentiary support to demonstrate the illegal misuse of PDAF
in the form of kickbacks and has become a common exercise of
unscrupulous Members of Congress." As such, the Court up
held, in view of the presumption of constitutionality accorded
to every law, the 2004 PDAF Article, and saw "no need to review
or reverse the standing pronouncements in the said case."
Hence, for the foregoing reasons, the res judicata principle,
insofar as the Philconsa and LAMP cases are concerned, cannot
apply.
On the other hand, the focal point of stare decisis is the
doctrine created. The principle, entrenched under Article 8152
of the Civil Code, evokes the general rule that, for the sake of
certainty, a conclusion reached in one case should be
doctrinally applied to those that follow if the facts are
substantially the same, even though the parties may be
different. It proceeds from the first principle of justice that,
absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions
relating to the same event have been put forward by the parties
similarly situated as in a previous case litigated and decided by
a competent court, the rule of stare decisis is a bar to any
attempt to re-litigate the same issue.153
Philconsa was the first case where a constitutional challenge
against a Pork Barrel provision, i.e., the 1994 CDF Article, was
resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the
Members of Congress to propose and identify projects and
activities to be funded by the CDF is an encroachment by the
legislature on executive power, since said power in an
appropriation act is in implementation of the law" and that "the
proposal and identification of the projects do not involve the
making of laws or the repeal and amendment thereof, the only
function given to the Congress by the Constitution."154 In
deference to the foregoing submissions, the Court reached the
following main conclusions: one, under the Constitution, the
power of appropriation, or the "power of the purse," belongs
to Congress; two, the power of appropriation carries with it the
power to specify the project or activity to be funded under the
appropriation law and it can be detailed and as broad as
Congress wants it to be; and, three, the proposals and
identifications made by Members of Congress are merely
recommendatory. At once, it is apparent that the Philconsa
resolution was a limited response to a separation of powers
problem, specifically on the propriety of conferring post-
153
enactment identification authority to Members of Congress. On
the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and
PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of
post-enactment measures contained within a particular CDF or
PDAF Article, including not only those related to the area of
project identification but also to the areas of fund release and
realignment. The complexity of the issues and the broader legal
analyses herein warranted may be, therefore, considered as a
powerful countervailing reason against a wholesale application
of the stare decisis principle.
In addition, the Court observes that the Philconsa ruling was
actually riddled with inherent constitutional inconsistencies
which similarly countervail against a full resort to stare decisis.
As may be deduced from the main conclusions of the case,
Philconsa‘s fundamental premise in allowing Members of
Congress to propose and identify of projects would be that the
said identification authority is but an aspect of the power of
appropriation which has been constitutionally lodged in
Congress. From this premise, the contradictions may be easily
seen. If the authority to identify projects is an aspect of
appropriation and the power of appropriation is a form of
legislative power thereby lodged in Congress, then it follows
that: (a) it is Congress which should exercise such authority, and
not its individual Members; (b) such authority must be
exercised within the prescribed procedure of law passage and,
hence, should not be exercised after the GAA has already been
passed; and (c) such authority, as embodied in the GAA, has the
force of law and, hence, cannot be merely recommendatory.
Justice Vitug‘s Concurring Opinion in the same case sums up the
Philconsa quandary in this wise: "Neither would it be
objectionable for Congress, by law, to appropriate funds for
such specific projects as it may be minded; to give that
authority, however, to the individual members of Congress in
whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from
hindsight and current findings on the matter, among others,
the CoA Report, the Court must partially abandon its previous
ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise
that the same was merely recommendatory. This postulate
raises serious constitutional inconsistencies which cannot be
simply excused on the ground that such mechanism is
"imaginative as it is innovative." Moreover, it must be pointed
out that the recent case of Abakada Guro Party List v.
Purisima155 (Abakada) has effectively overturned Philconsa‘s
allowance of post-enactment legislator participation in view of
the separation of powers principle. These constitutional
inconsistencies and the Abakada rule will be discussed in
greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was
dismissed on a procedural technicality and, hence, has not set
any controlling doctrine susceptible of current application to
154
the substantive issues in these cases. In fine, stare decisis would
not apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of
these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as
they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the
"collusion between the Legislative and Executive branches of
government to accumulate lump-sum public funds in their
offices with unchecked discretionary powers to determine its
distribution as political largesse."156 They assert that the
following elements make up the Pork Barrel System: (a) lump-
sum funds are allocated through the appropriations process to
an individual officer; (b) the officer is given sole and broad
discretion in determining how the funds will be used or
expended; (c) the guidelines on how to spend or use the funds
in the appropriation are either vague, overbroad or inexistent;
and (d) projects funded are intended to benefit a definite
constituency in a particular part of the country and to help the
political careers of the disbursing official by yielding rich
patronage benefits.157 They further state that the Pork Barrel
System is comprised of two (2) kinds of discretionary public
funds: first, the Congressional (or Legislative) Pork Barrel,
currently known as the PDAF;158 and, second, the Presidential
(or Executive) Pork Barrel, specifically, the Malampaya Funds
under PD 910 and the Presidential Social Fund under PD 1869,
as amended by PD 1993.159
Considering petitioners‘ submission and in reference to its local
concept and legal history, the Court defines the Pork Barrel
System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System
involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund wherein
legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of
the fund’s utilization through various post-enactment
measures and/or practices. In particular, petitioners consider
the PDAF, as it appears under the 2013 GAA, as Congressional
Pork Barrel since it is, inter alia, a post-enactment measure that
allows individual legislators to wield a collective power;160 and
Second, there is the Presidential Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund which allows
the President to determine the manner of its utilization. For
155
reasons earlier stated,161 the Court shall delimit the use of
such term to refer only to the Malampaya Funds and the
Presidential Social Fund.
With these definitions in mind, the Court shall now proceed to
discuss the substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the
constitutional demarcation of the three fundamental powers of
government. In the celebrated words of Justice Laurel in Angara
v. Electoral Commission,162 it means that the "Constitution has
blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial
departments of the government."163 To the legislative branch
of government, through Congress,164 belongs the power to
make laws; to the executive branch of government, through the
President,165 belongs the power to enforce laws; and to the
judicial branch of government, through the Court,166 belongs
the power to interpret laws. Because the three great powers
have been, by constitutional design, ordained in this respect,
"each department of the government has exclusive cognizance
of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute
or construe the law, the executive has no authority to make or
construe the law, and the judiciary has no power to make or
execute the law."168 The principle of separation of powers and
its concepts of autonomy and independence stem from the
notion that the powers of government must be divided to avoid
concentration of these powers in any one branch; the division,
it is hoped, would avoid any single branch from lording its
power over the other branches or the citizenry.169 To achieve
this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of
independent action in exercising their respective mandates.
Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest
assertions of another or others.170
Broadly speaking, there is a violation of the separation of
powers principle when one branch of government unduly
encroaches on the domain of another. US Supreme Court
decisions instruct that the principle of separation of powers
may be violated in two (2) ways: firstly, "one branch may
interfere impermissibly with the other’s performance of its
constitutionally assigned function";171 and "alternatively, the
doctrine may be violated when one branch assumes a function
that more properly is entrusted to another."172 In other words,
there is a violation of the principle when there is impermissible
(a) interference with and/or (b) assumption of another
department‘s functions.
156
The enforcement of the national budget, as primarily contained
in the GAA, is indisputably a function both constitutionally
assigned and properly entrusted to the Executive branch of
government. In Guingona, Jr. v. Hon. Carague173 (Guingona,
Jr.), the Court explained that the phase of budget execution
"covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans
for individual activities," the "regulation and release of funds"
as well as all "other related activities" that comprise the budget
execution cycle.174 This is rooted in the principle that the
allocation of power in the three principal branches of
government is a grant of all powers inherent in them.175 Thus,
unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and
prerogatives which go into the implementation of the national
budget as provided under the GAA as well as any other
appropriation law.
In view of the foregoing, the Legislative branch of government,
much more any of its members, should not cross over the field
of implementing the national budget since, as earlier stated,
the same is properly the domain of the Executive. Again, in
Guingona, Jr., the Court stated that "Congress enters the
picture when it deliberates or acts on the budget proposals of
the President. Thereafter, Congress, "in the exercise of its own
judgment and wisdom, formulates an appropriation act
precisely following the process established by the Constitution,
which specifies that no money may be paid from the Treasury
except in accordance with an appropriation made by law."
Upon approval and passage of the GAA, Congress‘ law -making
role necessarily comes to an end and from there the Executive‘s
role of implementing the national budget begins. So as not to
blur the constitutional boundaries between them, Congress
must "not concern it self with details for implementation by the
Executive."176
The foregoing cardinal postulates were definitively enunciated
in Abakada where the Court held that "from the moment the
law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the
implementation or enforcement of the law violates the
principle of separation of powers and is thus
unconstitutional."177 It must be clarified, however, that since
the restriction only pertains to "any role in the implementation
or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and
balances that the Constitution itself allows. But it must be made
clear that Congress‘ role must be confined to mere oversight.
Any post-enactment-measure allowing legislator participation
beyond oversight is bereft of any constitutional basis and
hence, tantamount to impermissible interference and/or
assumption of executive functions. As the Court ruled in
Abakada:178
157
Any post-enactment congressional measure x x x should be
limited to scrutiny and investigation.1âwphi1 In particular,
congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any
matter pertaining to their departments and its power of
confirmation; and
(2) investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid
of legislation.
Any action or step beyond that will undermine the separation
of powers guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork
Barrel – among others, the 2013 PDAF Article – "wrecks the
assignment of responsibilities between the political branches"
as it is designed to allow individual legislators to interfere "way
past the time it should have ceased" or, particularly, "after the
GAA is passed."179 They state that the findings and
recommendations in the CoA Report provide "an illustration of
how absolute and definitive the power of legislators wield over
project implementation in complete violation of the
constitutional principle of separation of powers."180 Further,
they point out that the Court in the Philconsa case only allowed
the CDF to exist on the condition that individual legislators
limited their role to recommending projects and not if they
actually dictate their implementation.181
For their part, respondents counter that the separations of
powers principle has not been violated since the President
maintains "ultimate authority to control the execution of the
GAA‖ and that he "retains the final discretion to reject" the
legislators‘ proposals.182 They maintain that the Court, in
Philconsa, "upheld the constitutionality of the power of
members of Congress to propose and identify projects so long
as such proposal and identification are recommendatory."183
As such, they claim that "everything in the Special Provisions [of
the 2013 PDAF Article follows the Philconsa framework, and
hence, remains constitutional."184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature
of all forms of Congressional Pork Barrel would be the authority
of legislators to participate in the post-enactment phases of
project implementation.
At its core, legislators – may it be through project lists,185 prior
consultations186 or program menus187 – have been
158
consistently accorded post-enactment authority to identify the
projects they desire to be funded through various
Congressional Pork Barrel allocations. Under the 2013 PDAF
Article, the statutory authority of legislators to identify projects
post-GAA may be construed from the import of Special
Provisions 1 to 3 as well as the second paragraph of Special
Provision 4. To elucidate, Special Provision 1 embodies the
program menu feature which, as evinced from past PDAF
Articles, allows individual legislators to identify PDAF projects
for as long as the identified project falls under a general
program listed in the said menu. Relatedly, Special Provision 2
provides that the implementing agencies shall, within 90 days
from the GAA is passed, submit to Congress a more detailed
priority list, standard or design prepared and submitted by
implementing agencies from which the legislator may make his
choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the
representative of the district concerned concurs in writing.
Meanwhile, Special Provision 3 clarifies that PDAF projects
refer to "projects to be identified by legislators"188 and
thereunder provides the allocation limit for the total amount of
projects identified by each legislator. Finally, paragraph 2 of
Special Provision 4 requires that any modification and revision
of the project identification "shall be submitted to the House
Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing
special provisions, it cannot be seriously doubted that
legislators have been accorded post-enactment authority to
identify PDAF projects.
Aside from the area of project identification, legislators have
also been accorded post-enactment authority in the areas of
fund release and realignment. Under the 2013 PDAF Article, the
statutory authority of legislators to participate in the area of
fund release through congressional committees is contained in
Special Provision 5 which explicitly states that "all request for
release of funds shall be supported by the documents
prescribed under Special Provision No. 1 and favorably
endorsed by House Committee on Appropriations and the
Senate Committee on Finance, as the case may be"; while their
statutory authority to participate in the area of fund
realignment is contained in: first , paragraph 2, Special
Provision 4189 which explicitly state s, among others, that "any
realignment of funds shall be submitted to the House
Committee on Appropriations and the Senate Committee on
Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be‖ ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the
"Secretaries of Agriculture, Education, Energy, Interior and
Local Government, Labor and Employment, Public Works and
Highways, Social Welfare and Development and Trade and
Industry190 x x x to approve realignment from one
project/scope to another within the allotment received from
this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
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Clearly, these post-enactment measures which govern the
areas of project identification, fund release and fund
realignment are not related to functions of congressional
oversight and, hence, allow legislators to intervene and/or
assume duties that properly belong to the sphere of budget
execution. Indeed, by virtue of the foregoing, legislators have
been, in one form or another, authorized to participate in – as
Guingona, Jr. puts it – "the various operational aspects of
budgeting," including "the evaluation of work and financial
plans for individual activities" and the "regulation and release
of funds" in violation of the separation of powers principle. The
fundamental rule, as categorically articulated in Abakada,
cannot be overstated – from the moment the law becomes
effective, any provision of law that empowers Congress or any
of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional.191 That the said authority
is treated as merely recommendatory in nature does not alter
its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the
law. Towards this end, the Court must therefore abandon its
ruling in Philconsa which sanctioned the conduct of legislator
identification on the guise that the same is merely
recommendatory and, as such, respondents‘ reliance on the
same falters altogether.
Besides, it must be pointed out that respondents have
nonetheless failed to substantiate their position that the
identification authority of legislators is only of
recommendatory import. Quite the contrary, respondents –
through the statements of the Solicitor General during the Oral
Arguments – have admitted that the identification of the
legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting
the indispensability of the said act to the entire budget
execution process:192
Justice Bernabe: Now, without the individual legislator’s
identification of the project, can the PDAF of the legislator be
utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification
of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
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Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if
it is not done and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances
when a project was implemented without the identification by
the individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not
think so but I have no specific examples. I would doubt very
much, Your Honor, because to implement, there is a need for a
SARO and the NCA. And the SARO and the NCA are triggered by
an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your
Honor, is we were replying to a question, "How can a legislator
make sure that he is able to get PDAF Funds?" It is mandatory
in the sense that he must identify, in that sense, Your Honor.
Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds,
only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares
the 2013 PDAF Article as well as all other provisions of law
which similarly allow legislators to wield any form of post-
enactment authority in the implementation or enforcement of
the budget, unrelated to congressional oversight, as violative of
the separation of powers principle and thus unconstitutional.
Corollary thereto, informal practices, through which legislators
have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion
amounting to lack or excess of jurisdiction and, hence,
accorded the same unconstitutional treatment. That such
informal practices do exist and have, in fact, been constantly
observed throughout the years has not been substantially
disputed here. As pointed out by Chief Justice Maria Lourdes
P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of
these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the
DBM and two (2) Houses of Congress, if we enforces the initial
thought that I have, after I had seen the extent of this research
made by my staff, that neither the Executive nor Congress
frontally faced the question of constitutional compatibility of
how they were engineering the budget process. In fact, the
words you have been using, as the three lawyers of the DBM,
and both Houses of Congress has also been using is surprise;
surprised that all of these things are now surfacing. In fact, I
thought that what the 2013 PDAF provisions did was to codify
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in one section all the past practice that had been done since
1991. In a certain sense, we should be thankful that they are all
now in the PDAF Special Provisions. x x x (Emphasis and
underscoring supplied)
Ultimately, legislators cannot exercise powers which they do
not have, whether through formal measures written into the
law or informal practices institutionalized in government
agencies, else the Executive department be deprived of what
the Constitution has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,194
legislative power shall be exclusively exercised by the body to
which the Constitution has conferred the same. In particular,
Section 1, Article VI of the 1987 Constitution states that such
power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on
initiative and referendum.195 Based on this provision, it is clear
that only Congress, acting as a bicameral body, and the people,
through the process of initiative and referendum, may
constitutionally wield legislative power and no other. This
premise embodies the principle of non-delegability of
legislative power, and the only recognized exceptions thereto
would be: (a) delegated legislative power to local governments
which, by immemorial practice, are allowed to legislate on
purely local matters;196 and (b) constitutionally-grafted
exceptions such as the authority of the President to, by law,
exercise powers necessary and proper to carry out a declared
national policy in times of war or other national emergency,197
or fix within specified limits, and subject to such limitations and
restrictions as Congress may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or
imposts within the framework of the national development
program of the Government.198
Notably, the principle of non-delegability should not be
confused as a restriction to delegate rule-making authority to
implementing agencies for the limited purpose of either filling
up the details of the law for its enforcement (supplementary
rule-making) or ascertaining facts to bring the law into actual
operation (contingent rule-making).199 The conceptual
treatment and limitations of delegated rule-making were
explained in the case of People v. Maceren200 as follows:
The grant of the rule-making power to administrative agencies
is a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation"
calculated to promote the public interest are necessary
because of "the growing complexity of modern life, the
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multiplication of the subjects of governmental regulations, and
the increased difficulty of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making
power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted.
The power cannot be extended to amending or expanding the
statutory requirements or to embrace matters not covered by
the statute. Rules that subvert the statute cannot be
sanctioned. (Emphases supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF
Article, insofar as it confers post-enactment identification
authority to individual legislators, violates the principle of non-
delegability since said legislators are effectively allowed to
individually exercise the power of appropriation, which – as
settled in Philconsa – is lodged in Congress.201 That the power
to appropriate must be exercised only through legislation is
clear from Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." To
understand what constitutes an act of appropriation, the Court,
in Bengzon v. Secretary of Justice and Insular Auditor202
(Bengzon), held that the power of appropriation involves (a) the
setting apart by law of a certain sum from the public revenue
for (b) a specified purpose. Essentially, under the 2013 PDAF
Article, individual legislators are given a personal lump-sum
fund from which they are able to dictate (a) how much from
such fund would go to (b) a specific project or beneficiary that
they themselves also determine. As these two (2) acts comprise
the exercise of the power of appropriation as described in
Bengzon, and given that the 2013 PDAF Article authorizes
individual legislators to perform the same, undoubtedly, said
legislators have been conferred the power to legislate which
the Constitution does not, however, allow. Thus, keeping with
the principle of non-delegability of legislative power, the Court
hereby declares the 2013 PDAF Article, as well as all other
forms of Congressional Pork Barrel which contain the similar
legislative identification feature as herein discussed, as
unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are
intended to be kept separate and distinct does not mean that
they are absolutely unrestrained and independent of each
other. The Constitution has also provided for an elaborate
system of checks and balances to secure coordination in the
workings of the various departments of the government.203
163
A prime example of a constitutional check and balance would
be the President’s power to veto an item written into an
appropriation, revenue or tariff bill submitted to him by
Congress for approval through a process known as "bill
presentment." The President‘s item-veto power is found in
Section 27(2), Article VI of the 1987 Constitution which reads as
follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular
item or items in an appropriation, revenue, or tariff bill, but the
veto shall not affect the item or items to which he does not
object.
The presentment of appropriation, revenue or tariff bills to the
President, wherein he may exercise his power of item-veto,
forms part of the "single, finely wrought and exhaustively
considered, procedures" for law-passage as specified under the
Constitution.204 As stated in Abakada, the final step in the law-
making process is the "submission of the bill to the President
for approval. Once approved, it takes effect as law after the
required publication."205
Elaborating on the President‘s item-veto power and its
relevance as a check on the legislature, the Court, in Bengzon,
explained that:206
The former Organic Act and the present Constitution of the
Philippines make the Chief Executive an integral part of the law-
making power. His disapproval of a bill, commonly known as a
veto, is essentially a legislative act. The questions presented to
the mind of the Chief Executive are precisely the same as those
the legislature must determine in passing a bill, except that his
will be a broader point of view.
The Constitution is a limitation upon the power of the
legislative department of the government, but in this respect it
is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief
Executive has the negative power by the constitutional exercise
of which he may defeat the will of the Legislature. It follows
that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be
confined to rules of strict construction or hampered by the
unwise interference of the judiciary. The courts will indulge
every intendment in favor of the constitutionality of a veto in
the same manner as they will presume the constitutionality of
an act as originally passed by the Legislature. (Emphases
supplied)
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The justification for the President‘s item-veto power rests on a
variety of policy goals such as to prevent log-rolling
legislation,207 impose fiscal restrictions on the legislature, as
well as to fortify the executive branch‘s role in the budgetary
process.208 In Immigration and Naturalization Service v.
Chadha, the US Supreme Court characterized the President‘s
item-power as "a salutary check upon the legislative body,
calculated to guard the community against the effects of
factions, precipitancy, or of any impulse unfriendly to the public
good, which may happen to influence a majority of that body";
phrased differently, it is meant to "increase the chances in favor
of the community against the passing of bad laws, through
haste, inadvertence, or design."209
For the President to exercise his item-veto power, it necessarily
follows that there exists a proper "item" which may be the
object of the veto. An item, as defined in the field of
appropriations, pertains to "the particulars, the details, the
distinct and severable parts of the appropriation or of the bill."
In the case of Bengzon v. Secretary of Justice of the Philippine
Islands,210 the US Supreme Court characterized an item of
appropriation as follows:
An item of an appropriation bill obviously means an item which,
in itself, is a specific appropriation of money, not some general
provision of law which happens to be put into an appropriation
bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill,
to ensure that the President may be able to exercise his power
of item veto, must contain "specific appropriations of money"
and not only "general provisions" which provide for parameters
of appropriation.
Further, it is significant to point out that an item of
appropriation must be an item characterized by singular
correspondence – meaning an allocation of a specified singular
amount for a specified singular purpose, otherwise known as a
"line-item."211 This treatment not only allows the item to be
consistent with its definition as a "specific appropriation of
money" but also ensures that the President may discernibly
veto the same. Based on the foregoing formulation, the existing
Calamity Fund, Contingent Fund and the Intelligence Fund,
being appropriations which state a specified amount for a
specific purpose, would then be considered as "line- item"
appropriations which are rightfully subject to item veto.
Likewise, it must be observed that an appropriation may be
validly apportioned into component percentages or values;
however, it is crucial that each percentage or value must be
allocated for its own corresponding purpose for such
component to be considered as a proper line-item. Moreover,
as Justice Carpio correctly pointed out, a valid appropriation
may even have several related purposes that are by accounting
and budgeting practice considered as one purpose, e.g., MOOE
(maintenance and other operating expenses), in which case the
related purposes shall be deemed sufficiently specific for the
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exercise of the President‘s item veto power. Finally, special
purpose funds and discretionary funds would equally square
with the constitutional mechanism of item-veto for as long as
they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that
Section 25(4), Article VI of the 1987 Constitution requires that
the "special appropriations bill shall specify the purpose for
which it is intended, and shall be supported by funds actually
available as certified by the National Treasurer, or t o be raised
by a corresponding revenue proposal therein." Meanwhile,
with respect to discretionary funds, Section 2 5(6), Article VI of
the 1987 Constitution requires that said funds "shall be
disbursed only for public purposes to be supported by
appropriate vouchers and subject to such guidelines as may be
prescribed by law."
In contrast, what beckons constitutional infirmity are
appropriations which merely provide for a singular lump-sum
amount to be tapped as a source of funding for multiple
purposes. Since such appropriation type necessitates the
further determination of both the actual amount to be
expended and the actual purpose of the appropriation which
must still be chosen from the multiple purposes stated in the
law, it cannot be said that the appropriation law already
indicates a "specific appropriation of money‖ and hence,
without a proper line-item which the President may veto. As a
practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he
finds some of its purposes wasteful or undesirable, or
approving the entire appropriation so as not to hinder some of
its legitimate purposes. Finally, it may not be amiss to state that
such arrangement also raises non-delegability issues
considering that the implementing authority would still have to
determine, again, both the actual amount to be expended and
the actual purpose of the appropriation. Since the foregoing
determinations constitute the integral aspects of the power to
appropriate, the implementing authority would, in effect, be
exercising legislative prerogatives in violation of the principle of
non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system
where the PDAF is a lump-sum appropriation, the legislator‘s
identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on."212
Accordingly, they submit that the "item veto power of the
President mandates that appropriations bills adopt line-item
budgeting" and that "Congress cannot choose a mode of
budgeting which effectively renders the constitutionally-given
power of the President useless."213
On the other hand, respondents maintain that the text of the
Constitution envisions a process which is intended to meet the
demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations
166
which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-
grounded.214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only
appears as a collective allocation limit since the said amount
would be further divided among individual legislators who
would then receive personal lump-sum allocations and could,
after the GAA is passed, effectively appropriate PDAF funds
based on their own discretion. As these intermediate
appropriations are made by legislators only after the GAA is
passed and hence, outside of the law, it necessarily means that
the actual items of PDAF appropriation would not have been
written into the General Appropriations Bill and thus
effectuated without veto consideration. This kind of lump-
sum/post-enactment legislative identification budgeting
system fosters the creation of a budget within a budget" which
subverts the prescribed procedure of presentment and
consequently impairs the President‘s power of item veto. As
petitioners aptly point out, the above-described system forces
the President to decide between (a) accepting the entire
₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent
with his national agenda and (b) rejecting the whole PDAF to
the detriment of all other legislators with legitimate
projects.215
Moreover, even without its post-enactment legislative
identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a
prohibited form of lump-sum appropriation above-
characterized. In particular, the lump-sum amount of ₱24.79
Billion would be treated as a mere funding source allotted for
multiple purposes of spending, i.e., scholarships, medical
missions, assistance to indigents, preservation of historical
materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts
and purposes of the appropriation for further determination
and, therefore, does not readily indicate a discernible item
which may be subject to the President‘s power of item veto.
In fact, on the accountability side, the same lump-sum
budgeting scheme has, as the CoA Chairperson relays, "limited
state auditors from obtaining relevant data and information
that would aid in more stringently auditing the utilization of
said Funds."216 Accordingly, she recommends the adoption of
a "line by line budget or amount per proposed program, activity
or project, and per implementing agency."217
Hence, in view of the reasons above-stated, the Court finds the
2013 PDAF Article, as well as all Congressional Pork Barrel Laws
of similar operation, to be unconstitutional. That such
167
budgeting system provides for a greater degree of flexibility to
account for future contingencies cannot be an excuse to defeat
what the Constitution requires. Clearly, the first and essential
truth of the matter is that unconstitutional means do not justify
even commendable ends.218
c. Accountability.
Petitioners further relate that the system under which various
forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking
itself or its Members. In particular, they point out that the
Congressional Pork Barrel "gives each legislator a direct,
financial interest in the smooth, speedy passing of the yearly
budget" which turns them "from fiscalizers" into "financially-
interested partners."219 They also claim that the system has an
effect on re- election as "the PDAF excels in self-perpetuation
of elective officials." Finally, they add that the "PDAF impairs
the power of impeachment" as such "funds are indeed quite
useful, ‘to well, accelerate the decisions of senators.‘"220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust,"
is an overarching reminder that every instrumentality of
government should exercise their official functions only in
accordance with the principles of the Constitution which
embodies the parameters of the people‘s trust. The notion of a
public trust connotes accountability,221 hence, the various
mechanisms in the Constitution which are designed to exact
accountability from public officers.
Among others, an accountability mechanism with which the
proper expenditure of public funds may be checked is the
power of congressional oversight. As mentioned in
Abakada,222 congressional oversight may be performed either
through: (a) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments to
appear before and be heard by either of its Houses on any
matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the
implementation of laws pursuant to the power of Congress to
conduct inquiries in aid of legislation.224
The Court agrees with petitioners that certain features
embedded in some forms of Congressional Pork Barrel, among
others the 2013 PDAF Article, has an effect on congressional
oversight. The fact that individual legislators are given post-
enactment roles in the implementation of the budget makes it
difficult for them to become disinterested "observers" when
scrutinizing, investigating or monitoring the implementation of
the appropriation law. To a certain extent, the conduct of
oversight would be tainted as said legislators, who are vested
with post-enactment authority, would, in effect, be checking on
168
activities in which they themselves participate. Also, it must be
pointed out that this very same concept of post-enactment
authorization runs afoul of Section 14, Article VI of the 1987
Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives
may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise
or special privilege granted by the Government, or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation, or its subsidiary,
during his term of office. He shall not intervene in any matter
before any office of the Government for his pecuniary benefit
or where he may be called upon to act on account of his office.
(Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases
of project implementation – a matter before another office of
government – renders them susceptible to taking undue
advantage of their own office.
The Court, however, cannot completely agree that the same
post-enactment authority and/or the individual legislator‘s
control of his PDAF per se would allow him to perpetuate
himself in office. Indeed, while the Congressional Pork Barrel
and a legislator‘s use thereof may be linked to this area of
interest, the use of his PDAF for re-election purposes is a matter
which must be analyzed based on particular facts and on a case-
to-case basis.
Finally, while the Court accounts for the possibility that the
close operational proximity between legislators and the
Executive department, through the former‘s post-enactment
participation, may affect the process of impeachment, this
matter largely borders on the domain of politics and does not
strictly concern the Pork Barrel System‘s intrinsic
constitutionality. As such, it is an improper subject of judicial
assessment.
In sum, insofar as its post-enactment features dilute
congressional oversight and violate Section 14, Article VI of the
1987 Constitution, thus impairing public accountability, the
2013 PDAF Article and other forms of Congressional Pork Barrel
of similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System
enables politicians who are members of political dynasties to
accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987
Constitution225 which states that:
169
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is
considered as not self-executing due to the qualifying phrase
"as may be defined by law." In this respect, said provision does
not, by and of itself, provide a judicially enforceable
constitutional right but merely specifies guideline for legislative
or executive action.226 Therefore, since there appears to be no
standing law which crystallizes the policy on political dynasties
for enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this
score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to
propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in
Section 25, Article II and Sections 2 and 3, Article X of the 1987
Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local
governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.
Sec. 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative,
and referendum, allocate among the different local
government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and
removal, term, salaries, powers and functions and duties of
local officials, and all other matters relating to the organization
and operation of the local units.
Pursuant thereto, Congress enacted RA 7160,227 otherwise
known as the "Local Government Code of 1991" (LGC), wherein
the policy on local autonomy had been more specifically
explicated as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall
170
provide for a more responsive and accountable local
government structure instituted through a system of
decentralization whereby local government units shall be given
more powers, authority, responsibilities, and resources. The
process of decentralization shall proceed from the National
Government to the local government units.
xxxx
(c) It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in
their respective jurisdictions. (Emphases and underscoring
supplied)
The above-quoted provisions of the Constitution and the LGC
reveal the policy of the State to empower local government
units (LGUs) to develop and ultimately, become self-sustaining
and effective contributors to the national economy. As
explained by the Court in Philippine Gamefowl Commission v.
Intermediate Appellate Court:228
This is as good an occasion as any to stress the commitment of
the Constitution to the policy of local autonomy which is
intended to provide the needed impetus and encouragement
to the development of our local political subdivisions as "self -
reliant communities." In the words of Jefferson, "Municipal
corporations are the small republics from which the great one
derives its strength." The vitalization of local governments will
enable their inhabitants to fully exploit their resources and
more important, imbue them with a deepened sense of
involvement in public affairs as members of the body politic.
This objective could be blunted by undue interference by the
national government in purely local affairs which are best
resolved by the officials and inhabitants of such political units.
The decision we reach today conforms not only to the letter of
the pertinent laws but also to the spirit of the Constitution.229
(Emphases and underscoring supplied)
In the cases at bar, petitioners contend that the Congressional
Pork Barrel goes against the constitutional principles on local
autonomy since it allows district representatives, who are
national officers, to substitute their judgments in utilizing
public funds for local development.230 The Court agrees with
petitioners.
Philconsa described the 1994 CDF as an attempt "to make equal
the unequal" and that "it is also a recognition that individual
members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about
the needs of their respective constituents and the priority to be
given each project."231 Drawing strength from this
pronouncement, previous legislators justified its existence by
stating that "the relatively small projects implemented under
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the Congressional Pork Barrel complement and link the national
development goals to the countryside and grassroots as well as
to depressed areas which are overlooked by central agencies
which are preoccupied with mega-projects.232 Similarly, in his
August 23, 2013 speech on the "abolition" of PDAF and
budgetary reforms, President Aquino mentioned that the
Congressional Pork Barrel was originally established for a
worthy goal, which is to enable the representatives to identify
projects for communities that the LGU concerned cannot
afford.233
Notwithstanding these declarations, the Court, however, finds
an inherent defect in the system which actually belies the
avowed intention of "making equal the unequal." In particular,
the Court observes that the gauge of PDAF and CDF
allocation/division is based solely on the fact of office, without
taking into account the specific interests and peculiarities of the
district the legislator represents. In this regard, the
allocation/division limits are clearly not based on genuine
parameters of equality, wherein economic or geographic
indicators have been taken into consideration. As a result, a
district representative of a highly-urbanized metropolis gets
the same amount of funding as a district representative of a far-
flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what
rouses graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President –
who do not represent any locality, receive funding from the
Congressional Pork Barrel as well. These certainly are anathema
to the Congressional Pork Barrel‘s original intent which is "to
make equal the unequal." Ultimately, the PDAF and CDF had
become personal funds under the effective control of each
legislator and given unto them on the sole account of their
office.
The Court also observes that this concept of legislator control
underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in
setting the direction of economic and social development, and
coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities
whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not
be overridden nor duplicated by individual legislators, who are
national officers that have no law-making authority except only
when acting as a body. The undermining effect on local
autonomy caused by the post-enactment authority conferred
to the latter was succinctly put by petitioners in the following
wise:236
With PDAF, a Congressman can simply bypass the local
development council and initiate projects on his own, and even
take sole credit for its execution. Indeed, this type of
personality-driven project identification has not only
contributed little to the overall development of the district, but
172
has even contributed to "further weakening infrastructure
planning and coordination efforts of the government."
Thus, insofar as individual legislators are authorized to
intervene in purely local matters and thereby subvert genuine
local autonomy, the 2013 PDAF Article as well as all other
similar forms of Congressional Pork Barrel is deemed
unconstitutional.
With this final issue on the Congressional Pork Barrel resolved,
the Court now turns to the substantive issues involving the
Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section
12 of PD1869 (now, amended by PD 1993), which respectively
provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of
public funds from the National Treasury. Petitioners submit
that Section 8 of PD 910 is not an appropriation law since the
"primary and specific‖ purpose of PD 910 is the creation of an
Energy Development Board and Section 8 thereof only created
a Special Fund incidental thereto.237 In similar regard,
petitioners argue that Section 12 of PD 1869 is neither a valid
appropriations law since the allocation of the Presidential
Social Fund is merely incidental to the "primary and specific"
purpose of PD 1869 which is the amendment of the Franchise
and Powers of PAGCOR.238 In view of the foregoing,
petitioners suppose that such funds are being used without any
valid law allowing for their proper appropriation in violation of
Section 29(1), Article VI of the 1987 Constitution which states
that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of
Section 29(1), Article VI of the 1987 Constitution exists when a
provision of law (a) sets apart a determinate or
determinable240 amount of money and (b) allocates the same
for a particular public purpose. These two minimum
designations of amount and purpose stem from the very
definition of the word "appropriation," which means "to allot,
assign, set apart or apply to a particular use or purpose," and
hence, if written into the law, demonstrate that the legislative
intent to appropriate exists. As the Constitution "does not
provide or prescribe any particular form of words or religious
recitals in which an authorization or appropriation by Congress
shall be made, except that it be ‘made by law,‘" an
appropriation law may – according to Philconsa – be "detailed
and as broad as Congress wants it to be" for as long as the
173
intent to appropriate may be gleaned from the same. As held
in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or
prescribes any particular form of words or religious recitals in
which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the
authorization or appropriation under the questioned
presidential decrees. In other words, in terms of time horizons,
an appropriation may be made impliedly (as by past but
subsisting legislations) as well as expressly for the current fiscal
year (as by enactment of laws by the present Congress), just as
said appropriation may be made in general as well as in specific
terms. The Congressional authorization may be embodied in
annual laws, such as a general appropriations act or in special
provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as
the questioned decrees. An appropriation measure is sufficient
if the legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P.
272), whether in the past or in the present. (Emphases and
underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada
v. La Grave:242
To constitute an appropriation there must be money placed in
a fund applicable to the designated purpose. The word
appropriate means to allot, assign, set apart or apply to a
particular use or purpose. An appropriation in the sense of the
constitution means the setting apart a portion of the public
funds for a public purpose. No particular form of words is
necessary for the purpose, if the intention to appropriate is
plainly manifested. (Emphases supplied)
Thus, based on the foregoing, the Court cannot sustain the
argument that the appropriation must be the "primary and
specific" purpose of the law in order for a valid appropriation
law to exist. To reiterate, if a legal provision designates a
determinate or determinable amount of money and allocates
the same for a particular public purpose, then the legislative
intent to appropriate becomes apparent and, hence, already
sufficient to satisfy the requirement of an "appropriation made
by law" under contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all
sources including receipts from service contracts and
agreements such as application and processing fees, signature
bonus, discovery bonus, production bonus; all money collected
from concessionaires, representing unspent work obligations,
fines and penalties under the Petroleum Act of 1949; as well as
the government share representing royalties, rentals,
174
production share on service contracts and similar payments on
the exploration, development and exploitation of energy
resources, shall form part of a Special Fund to be used to
finance energy resource development and exploitation
programs and projects of the government and for such other
purposes as may be hereafter directed by the President.
(Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993, reads:
Sec. 12. Special Condition of Franchise. — After deducting five
(5%) percent as Franchise Tax, the Fifty (50%) percent share of
the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross
earnings be less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority
infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of
the President of the Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned
principles, it may then be concluded that (a) Section 8 of PD
910, which creates a Special Fund comprised of "all fees,
revenues, and receipts of the Energy Development Board from
any and all sources" (a determinable amount) "to be used to
finance energy resource development and exploitation
programs and projects of the government and for such other
purposes as may be hereafter directed by the President" (a
specified public purpose), and (b) Section 12 of PD 1869, as
amended by PD 1993, which similarly sets aside, "after
deducting five (5%) percent as Franchise Tax, the Fifty (50%)
percent share of the Government in the aggregate gross
earnings of PAGCOR, or 60%, if the aggregate gross earnings be
less than ₱150,000,000.00" (also a determinable amount) "to
finance the priority infrastructure development projects and x
x x the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of
the President of the Philippines" (also a specified public
purpose), are legal appropriations under Section 29(1), Article
VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article
cannot be properly deemed as a legal appropriation under the
said constitutional provision precisely because, as earlier
stated, it contains post-enactment measures which effectively
create a system of intermediate appropriations. These
intermediate appropriations are the actual appropriations
meant for enforcement and since they are made by individual
legislators after the GAA is passed, they occur outside the law.
As such, the Court observes that the real appropriation made
under the 2013 PDAF Article is not the ₱24.79 Billion allocated
for the entire PDAF, but rather the post-enactment
determinations made by the individual legislators which are, to
repeat, occurrences outside of the law. Irrefragably, the 2013
PDAF Article does not constitute an "appropriation made by
175
law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability
principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD
910 constitutes an undue delegation of legislative power since
the phrase "and for such other purposes as may be hereafter
directed by the President" gives the President "unbridled
discretion to determine for what purpose the funds will be
used."243 Respondents, on the other hand, urged the Court to
apply the principle of ejusdem generis to the same section and
thus, construe the phrase "and for such other purposes as may
be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and
exploitation programs and projects of the government."244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable
amount for a particular public purpose is sufficient for a legal
appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-
making authority to the Executive245 either for the purpose of
(a) filling up the details of the law for its enforcement, known
as supplementary rule-making, or (b) ascertaining facts to bring
the law into actual operation, referred to as contingent rule-
making.246 There are two (2) fundamental tests to ensure that
the legislative guidelines for delegated rule-making are indeed
adequate. The first test is called the "completeness test." Case
law states that a law is complete when it sets forth therein the
policy to be executed, carried out, or implemented by the
delegate. On the other hand, the second test is called the
"sufficient standard test." Jurisprudence holds that a law lays
down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries
of the delegate‘s authority and prevent the delegation from
running riot.247 To be sufficient, the standard must specify the
limits of the delegate‘s authority, announce the legislative
policy, and identify the conditions under which it is to be
implemented.248
In view of the foregoing, the Court agrees with petitioners that
the phrase "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910
constitutes an undue delegation of legislative power insofar as
it does not lay down a sufficient standard to adequately
determine the limits of the President‘s authority with respect
to the purpose for which the Malampaya Funds may be used.
As it reads, the said phrase gives the President wide latitude to
use the Malampaya Funds for any other purpose he may direct
and, in effect, allows him to unilaterally appropriate public
funds beyond the purview of the law. That the subject phrase
may be confined only to "energy resource development and
exploitation programs and projects of the government" under
176
the principle of ejusdem generis, meaning that the general
word or phrase is to be construed to include – or be restricted
to – things akin to, resembling, or of the same kind or class as
those specifically mentioned,249 is belied by three (3) reasons:
first, the phrase "energy resource development and
exploitation programs and projects of the government" states
a singular and general class and hence, cannot be treated as a
statutory reference of specific things from which the general
phrase "for such other purposes" may be limited; second, the
said phrase also exhausts the class it represents, namely energy
development programs of the government;250 and, third, the
Executive department has, in fact, used the Malampaya Funds
for non-energy related purposes under the subject phrase,
thereby contradicting respondents‘ own position that it is
limited only to "energy resource development and exploitation
programs and projects of the government."251 Thus, while
Section 8 of PD 910 may have passed the completeness test
since the policy of energy development is clearly deducible
from its text, the phrase "and for such other purposes as may
be hereafter directed by the President" under the same
provision of law should nonetheless be stricken down as
unconstitutional as it lies independently unfettered by any
sufficient standard of the delegating law. This notwithstanding,
it must be underscored that the rest of Section 8, insofar as it
allows for the use of the Malampaya Funds "to finance energy
resource development and exploitation programs and projects
of the government," remains legally effective and subsisting.
Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the
Malampaya Funds would be used – as it should be used – only
in accordance with the avowed purpose and intention of PD
910.
As for the Presidential Social Fund, the Court takes judicial
notice of the fact that Section 12 of PD 1869 has already been
amended by PD 1993 which thus moots the parties‘
submissions on the same.252 Nevertheless, since the
amendatory provision may be readily examined under the
current parameters of discussion, the Court proceeds to resolve
its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993,
indicates that the Presidential Social Fund may be used "to first,
finance the priority infrastructure development projects and
second, to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized
by the Office of the President of the Philippines." The Court
finds that while the second indicated purpose adequately
curtails the authority of the President to spend the Presidential
Social Fund only for restoration purposes which arise from
calamities, the first indicated purpose, however, gives him
carte blanche authority to use the same fund for any
infrastructure project he may so determine as a "priority".
Verily, the law does not supply a definition of "priority in
frastructure development projects" and hence, leaves the
President without any guideline to construe the same. To note,
177
the delimitation of a project as one of "infrastructure" is too
broad of a classification since the said term could pertain to any
kind of facility. This may be deduced from its lexicographic
definition as follows: "the underlying framework of a system,
especially public services and facilities (such as highways,
schools, bridges, sewers, and water-systems) needed to
support commerce as well as economic and residential
development."253 In fine, the phrase "to finance the priority
infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision
under Section 8 of PD 910 – it lies independently unfettered by
any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as
amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System
unconstitutional – as the Court did so in the context of its
pronouncements made in this Decision – petitioners equally
pray that the Executive Secretary and/or the DBM be ordered
to release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the
funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);254 and (b) "the use of the Executive‘s lump-
sum, discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from
2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data
thereto"255 (Presidential Pork Use Report). Petitioners‘ prayer
is grounded on Section 28, Article II and Section 7, Article III of
the 1987 Constitution which read as follows:
ARTICLE II
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of
all its transactions involving public interest.
ARTICLE III Sec. 7.
The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The Court denies petitioners‘ submission.
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Case law instructs that the proper remedy to invoke the right
to information is to file a petition for mandamus. As explained
in the case of Legaspi v. Civil Service Commission:256
While the manner of examining public records may be subject
to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary
on the part of said agencies. Certainly, its performance cannot
be made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be
rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant
duty of the State are unequivocably set forth in the
Constitution.
The decisive question on the propriety of the issuance of the
writ of mandamus in this case is, whether the information
sought by the petitioner is within the ambit of the
constitutional guarantee. (Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.257
(Valmonte), it has been clarified that the right to information
does not include the right to compel the preparation of "lists,
abstracts, summaries and the like." In the same case, it was
stressed that it is essential that the "applicant has a well -
defined, clear and certain legal right to the thing demanded and
that it is the imperative duty of defendant to perform the act
required." Hence, without the foregoing substantiations, the
Court cannot grant a particular request for information. The
pertinent portions of Valmonte are hereunder quoted:258
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records,"
the Constitution does not accord them a right to compel
custodians of official records to prepare lists, abstracts,
summaries and the like in their desire to acquire information
on matters of public concern.
It must be stressed that it is essential for a writ of mandamus
to issue that the applicant has a well-defined, clear and certain
legal right to the thing demanded and that it is the imperative
duty of defendant to perform the act required. The
corresponding duty of the respondent to perform the required
act must be clear and specific Lemi v. Valencia, G.R. No. L-
20768, November 29,1968,126 SCRA 203; Ocampo v. Subido,
G.R. No. L-28344, August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there
being no duty on the part of respondent to prepare the list
requested. (Emphases supplied)
179
In these cases, aside from the fact that none of the petitions are
in the nature of mandamus actions, the Court finds that
petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary
and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any
law or administrative issuance which would form the bases of
the latter‘s duty to furnish them with the documents
requested. While petitioners pray that said information be
equally released to the CoA, it must be pointed out that the CoA
has not been impleaded as a party to these cases nor has it filed
any petition before the Court to be allowed access to or to
compel the release of any official document relevant to the
conduct of its audit investigations. While the Court recognizes
that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of
disclosure are properly foisted and so as not to unduly hamper
the equally important interests of the government, it is
constrained to deny petitioners‘ prayer on this score, without
prejudice to a proper mandamus case which they, or even the
CoA, may choose to pursue through a separate petition.
It bears clarification that the Court‘s denial herein should only
cover petitioners‘ plea to be furnished with such schedule/list
and report and not in any way deny them, or the general public,
access to official documents which are already existing and of
public record. Subject to reasonable regulation and absent any
valid statutory prohibition, access to these documents should
not be proscribed. Thus, in Valmonte, while the Court denied
the application for mandamus towards the preparation of the
list requested by petitioners therein, it nonetheless allowed
access to the documents sought for by the latter, subject,
however, to the custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents
evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the
manner and hours of examination, to the end that damage to
or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be
prevented and that the right of other persons entitled to
inspect the records may be insured Legaspi v. Civil Service
Commission, supra at p. 538, quoting Subido v. Ozaeta, 80 Phil.
383, 387. The petition, as to the second and third alternative
acts sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban
who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
180
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional
Deliberations.
Petitioners further seek that the Court "order the inclusion in
budgetary deliberations with the Congress of all presently, off-
budget, lump sum, discretionary funds including but not limited
to, proceeds from the x x x Malampaya Fund, remittances from
the PAGCOR and the PCSO or the Executive‘s Social Funds."260
Suffice it to state that the above-stated relief sought by
petitioners covers a matter which is generally left to the
prerogative of the political branches of government. Hence,
lest the Court itself overreach, it must equally deny their prayer
on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of
Decision.
The final issue to be resolved stems from the interpretation
accorded by the DBM to the concept of released funds. In
response to the Court‘s September 10, 2013 TRO that enjoined
the release of the remaining PDAF allocated for the year 2013,
the DBM issued Circular Letter No. 2013-8 dated September 27,
2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA,
where a Special Allotment Release Order (SARO) has been
issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto
effected by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the
continued implementation and disbursement of PDAF funds as
long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency
concerned prior to the issuance of the Court‘s September 10,
2013 TRO.
Petitioners take issue with the foregoing circular, arguing that
"the issuance of the SARO does not yet involve the release of
funds under the PDAF, as release is only triggered by the
issuance of a Notice of Cash Allocation [(NCA)]."261 As such,
PDAF disbursements, even if covered by an obligated SARO,
should remain enjoined.
For their part, respondents espouse that the subject TRO only
covers "unreleased and unobligated allotments." They explain
that once a SARO has been issued and obligated by the
implementing agency concerned, the PDAF funds covered by
the same are already "beyond the reach of the TRO because
they cannot be considered as ‘remaining PDAF.‘" They conclude
181
that this is a reasonable interpretation of the TRO by the
DBM.262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or
not the Court‘s September 10, 2013 TRO should be lifted is a
matter rendered moot by the present Decision. The
unconstitutionality of the 2013 PDAF Article as declared herein
has the consequential effect of converting the temporary
injunction into a permanent one. Hence, from the
promulgation of this Decision, the release of the remaining
PDAF funds for 2013, among others, is now permanently
enjoined.
The propriety of the DBM‘s interpretation of the concept of
"release" must, nevertheless, be resolved as it has a practical
impact on the execution of the current Decision. In particular,
the Court must resolve the issue of whether or not PDAF funds
covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for
the fundamental reason that funds covered by an obligated
SARO are yet to be "released" under legal contemplation. A
SARO, as defined by the DBM itself in its website, is "aspecific
authority issued to identified agencies to incur obligations not
exceeding a given amount during a specified period for the
purpose indicated. It shall cover expenditures the release of
which is subject to compliance with specific laws or regulations,
or is subject to separate approval or clearance by competent
authority."263
Based on this definition, it may be gleaned that a SARO only
evinces the existence of an obligation and not the directive to
pay. Practically speaking, the SARO does not have the direct
and immediate effect of placing public funds beyond the
control of the disbursing authority. In fact, a SARO may even be
withdrawn under certain circumstances which will prevent the
actual release of funds. On the other hand, the actual release
of funds is brought about by the issuance of the NCA,264 which
is subsequent to the issuance of a SARO. As may be determined
from the statements of the DBM representative during the Oral
Arguments:265
Justice Bernabe: Is the notice of allocation issued
simultaneously with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go
signal for the agencies to obligate or to enter into
commitments. The NCA, Your Honor, is already the go signal to
the treasury for us to be able to pay or to liquidate the amounts
obligated in the SARO; so it comes after. x x x The NCA, Your
182
Honor, is the go signal for the MDS for the authorized
government-disbursing banks to, therefore, pay the payees
depending on the projects or projects covered by the SARO and
the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled
or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there
are instances that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring
supplied)
Thus, unless an NCA has been issued, public funds should not
be treated as funds which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF funds which are only
covered by obligated SAROs, and without any corresponding
NCAs issued, must, at the time of this Decision’s promulgation,
be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even
though already obligated, else the Court sanctions the dealing
of funds coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the
Malampaya Funds which have been obligated but not released
– meaning, those merely covered by a SARO – under the phrase
"and for such other purposes as may be hereafter directed by
the President" pursuant to Section 8 of PD 910; and (b) funds
sourced from the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects"
pursuant to Section 12 of PD 1869, as amended by PD 1993,
which were altogether declared by the Court as
unconstitutional. However, these funds should not be reverted
to the general fund as afore-stated but instead, respectively
remain under the Malampaya Funds and the Presidential Social
Fund to be utilized for their corresponding special purposes not
otherwise declared as unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s
pronouncement anent the unconstitutionality of (a) the 2013
PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the
phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2)
"to finance the priority infrastructure development projects"
under Section 12 of PD 1869, as amended by PD 1993, must
only be treated as prospective in effect in view of the operative
fact doctrine.
183
To explain, the operative fact doctrine exhorts the recognition
that until the judiciary, in an appropriate case, declares the
invalidity of a certain legislative or executive act, such act is
presumed constitutional and thus, entitled to obedience and
respect and should be properly enforced and complied with. As
explained in the recent case of Commissioner of Internal
Revenue v. San Roque Power Corporation,266 the doctrine
merely "reflects awareness that precisely because the judiciary
is the governmental organ which has the final say on whether
or not a legislative or executive measure is valid, a period of
time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It would
be to deprive the law of its quality of fairness and justice then,
if there be no recognition of what had transpired prior to such
adjudication."267 "In the language of an American Supreme
Court decision: ‘The actual existence of a statute, prior to such
a determination of unconstitutionality, is an operative fact and
may have consequences which cannot justly be ignored.‘"268
For these reasons, this Decision should be heretofore applied
prospectively.
Conclusion
The Court renders this Decision to rectify an error which has
persisted in the chronicles of our history. In the final analysis,
the Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules
within which it operates. To recount, insofar as it has allowed
legislators to wield, in varying gradations, non-oversight, post-
enactment authority in vital areas of budget execution, the
system has violated the principle of separation of powers;
insofar as it has conferred unto legislators the power of
appropriation by giving them personal, discretionary funds
from which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of
non-delegability of legislative power ; insofar as it has created
a system of budgeting wherein items are not textualized into
the appropriations bill, it has flouted the prescribed procedure
of presentment and, in the process, denied the President the
power to veto items ; insofar as it has diluted the effectiveness
of congressional oversight by giving legislators a stake in the
affairs of budget execution, an aspect of governance which they
may be called to monitor and scrutinize, the system has equally
impaired public accountability ; insofar as it has authorized
legislators, who are national officers, to intervene in affairs of
purely local nature, despite the existence of capable local
institutions, it has likewise subverted genuine local autonomy ;
and again, insofar as it has conferred to the President the
power to appropriate funds intended by law for energy-related
purposes only to other purposes he may deem fit as well as
other public funds under the broad classification of "priority
infrastructure development projects," it has once more
transgressed the principle of non-delegability.
184
For as long as this nation adheres to the rule of law, any of the
multifarious unconstitutional methods and mechanisms the
Court has herein pointed out should never again be adopted in
any system of governance, by any name or form, by any
semblance or similarity, by any influence or effect.
Disconcerting as it is to think that a system so constitutionally
unsound has monumentally endured, the Court urges the
people and its co-stewards in government to look forward with
the optimism of change and the awareness of the past. At a
time of great civic unrest and vociferous public debate, the
Court fervently hopes that its Decision today, while it may not
purge all the wrongs of society nor bring back what has been
lost, guides this nation to the path forged by the Constitution
so that no one may heretofore detract from its cause nor stray
from its course. After all, this is the Court‘s bounden duty and
no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of the
constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which
authorize/d legislators – whether individually or collectively
organized into committees – to intervene, assume or
participate in any of the various post-enactment stages of the
budget execution, such as but not limited to the areas of project
identification, modification and revision of project
identification, fund release and/or fund realignment, unrelated
to the power of congressional oversight; (c) all legal provisions
of past and present Congressional Pork Barrel Laws, such as the
previous PDAF and CDF Articles and the various Congressional
Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects
which they themselves determine; (d) all informal practices of
similar import and effect, which the Court similarly deems to be
acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other
purposes as may be hereafter directed by the President" under
Section 8 of Presidential Decree No. 910 and (2) "to finance the
priority infrastructure development projects" under Section 12
of Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in
violation of the principle of non-delegability of legislative
power.
Accordingly, the Court‘s temporary injunction dated
September 10, 2013 is hereby declared to be PERMANENT.
Thus, the disbursement/release of the remaining PDAF funds
allocated for the year 2013, as well as for all previous years, and
the funds sourced from (1) the Malampaya Funds under the
phrase "and for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of Presidential
Decree No. 910, and (2) the Presidential Social Fund under the
phrase "to finance the priority infrastructure development
projects" pursuant to Section 12 of Presidential Decree No.
185

1869, as amended by Presidential Decree No. 1993, which are, The Court also DENIES petitioners prayer to order the inclusion
at the time this Decision is promulgated, not covered by Notice of the funds subject of these cases in the budgetary
of Cash Allocations (NCAs) but only by Special Allotment deliberations of Congress as the same is a matter left to the
Release Orders (SAROs), whether obligated or not, are hereby prerogative of the political branches of government.
ENJOINED. The remaining PDAF funds covered by this
permanent injunction shall not be disbursed/released but Finally, the Court hereby DIRECTS all prosecutorial organs of the
instead reverted to the unappropriated surplus of the general government to, within the bounds of reasonable dispatch,
fund, while the funds under the Malampaya Funds and the investigate and accordingly prosecute all government officials
Presidential Social Fund shall remain therein to be utilized for and/or private individuals for possible criminal offenses related
their respective special purposes not otherwise declared as to the irregular, improper and/or unlawful
unconstitutional. disbursement/utilization of all funds under the Pork Barrel
System.
On the other hand, due to improper recourse and lack of proper
substantiation, the Court hereby DENIES petitioners‘ prayer This Decision is immediately executory but prospective in
seeking that the Executive Secretary and/or the Department of effect.
Budget and Management be ordered to provide the public and
the Commission on Audit complete lists/schedules or detailed SO ORDERED.
reports related to the availments and utilization of the funds
subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to
these funds must, however, not be prohibited but merely
subjected to the custodian‘s reasonable regulations or any valid
statutory prohibition on the same. This denial is without
prejudice to a proper mandamus case which they or the
Commission on Audit may choose to pursue through a separate
petition.
186

J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for

petitioner.
Office of the Solicitor General Felix Bautista Angelo, Lorenzo
Sumulong, Lorenzo Tañada, and Vicente J. Francisco for
respondents.

OZAETA, J.:

This is an original petition for habeas corpus to relieve the

petitioner from his confinement in the New Bilibid Prison to
which he has been committed by virtue of a resolution adopted
by the Senate on May 15, 1950, which reads as follows:

Whereas, Jean L. Arnault refused to reveal the name of the

person to whom he gave the P440,000, as well as answer other
pertinent questions related to the said amount; Now,
therefore, be it.

Resolved, that for his refusal to reveal the name of the person
to whom he gave the P440,000 Jean L. Arnault be committed to
the custody of the Sergeant-at-Arms and imprisoned in the
G.R. No. L-3820 July 18, 1950 New Bilibid Prison, Muntinlupa, Rizal, until discharged by
further order of the Senate or by the special committee created
JEAN L. ARNAULT, petitioner, by Senate Resolution No. 8, such discharge to be ordered when
vs. he shall have purged the contempt by revealing to the Senate
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and or to the said special committee the name of the person to
EUSTAQUIO BALAGTAS, Director of Prisons, respondents.
187
whom he gave the P440,000, as well as answer other pertinent
questions in connection therewith.
The facts that gave rise to the adoption of said resolution,
insofar as pertinent here, may be briefly stated as follows:
In the latter part of October, 1949, the Philippine Government,
through the Rural Progress Administration, bought two estates
known as Buenavista and Tambobong for the sums of
P4,500,000 and P500,000, respectively. Of the first sum,
P1,000,000 was paid to Ernest H. Burt, a nonresident American,
thru his attorney-in-fact in the Philippines, the Associated
Estates, Inc., represented by Jean L. Arnault, for alleged interest
of the said Burt in the Buenavista Estate. The second sum of
P500,000 was all paid to the same Ernest H. Burt through his
other attorney-in-fact, the North Manila Development Co., Inc.,
also represented by Jean L. Arnault, for the alleged interest of
the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan
de Dios Hospital. The Philippine Government held a 25-year
lease contract on said estate, with an option to purchase it for
P3,000,000 within the same period of 25 years counted from
January 1, 1939. The occupation Republic of the Philippines
purported to exercise that option by tendering to the owner
the sum of P3,000,000 and, upon its rejection, by depositing it
in court on June 21, 1944, together with the accrued rentals
amounting to P3224,000. Since 1939 the Government has
remained in possession of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the
Buenavista Estate for P5,000,000 to Ernest H. Burt, who made
a down payment of P10,000 only and agreed to pay P5000,000
within one year and the remainder in annual installments of
P500,000 each, with the stipulation that failure on his part to
make any of said payments would cause the forfeiture of his
down payment of P10,000 and would entitle the Hospital to
rescind to sale to him. Aside from the down payment of
P10,000, Burt has made no other payment on account of the
purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine
Trust Company. On May 14, 1946, the Philippine Trust
Company sold estate for the sum of P1,200,000 to Ernest H.
Burt, who paid P10,000 down and promise to pay P90,000
within nine months and the balance of P1,100,000 in ten
successive installments of P110,000 each. The nine-month
period within which to pay the first installment of P90,000
expired on February 14, 1947, without Burt's having paid the
said or any other amount then or afterwards. On September 4,
1947, the Philippine Trust Company sold, conveyed, and
delivered the Tambobong Estate to the Rural Progress
Administration by an absolute deed of sale in consideration of
the sum of P750,000. On February 5, 1948, the Rural Progress
Administration made, under article 1504 of the Civil Code, a
188
notarial demand upon Burt for the resolution and cancellation
of his contract of purchase with the Philippine Trust Company
due to his failure to pay the installment of P90,000 within the
period of nine months. Subsequently the Court of First Instance
of Rizal ordered the cancellation of Burt's certificate of title and
the issuance of a new one in the name of the Rural Progress
Administration, from which order he appealed to the Supreme
Court.1
It was in the face of the antecedents sketched in the last three
preceding paragraphs that the Philippine Government, through
the Secretary of Justice as Chairman of the Board of Directors
of the Rural Progress Administration and as Chairman of the
Board of Directors of the Philippine National Bank, from which
the money was borrowed, accomplished the purchase of the
two estates in the latter part of October, 1949, as stated at the
outset.
On February 27, 1950, the Senate adopted its Resolution No. 8,
which reads as follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO
INVESTIGATE THE BUENAVISTA AND THE TAMBOBONG
ESTATES DEAL.
WHEREAS, it is reported that the Philippine government,
through the Rural Progress Administration, has bought the
Buenavista and the Tambobong Estates for the aggregate sum
of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme
Court dated October 31, 1949, the Buenavista Estate could
have been bought for three million pesos by virtue of a contract
entered into between the San Juan de Dios Hospital and
Philippine Government in 1939;
WHEREAS, it is even alleged that the Philippine Government did
not have to purchase the Buenavista Estate because the
occupation government had made tender of payment in the
amount of three million pesos, Japanese currency, which fact is
believed sufficient to vest title of Ownership in the Republic of
the Philippines pursuant to decisions of the Supreme Court
sustaining the validity of payments made in Japanese military
notes during the occupation;
WHEREAS, it is reported that the Philippine Government did
not have to pay a single centavo for the Tambobong Estate as
it was already practically owned by virtue of a deed of sale from
the Philippine Trust Company dated September 3, 194, for
seven hundred and fifty thousand pesos, and by virtue of the
recission of the contract through which Ernest H. Burt had an
interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is,
created, composed of five members to be appointed by the
189
President of the Senate to investigate the Buenavista and
Tambobong Estate deals. It shall be the duty of the said
Committee to determine whether the said purchase was
honest, valid, and proper and whether the price involved in the
deal was fair and just, the parties responsible therefor, and any
other facts the Committee may deem proper in the premises.
Said Committee shall have the power to conduct public
hearings; issue subpoena or subpoena duces tecum to compel
the attendance of witnesses or the production of documents
before it; and may require any official or employee of any
bureau, office, branch, subdivision, agency, or instrumentality
of the Government to assist or otherwise cooperate with the
Special Committee in the performance of its functions and
duties. Said Committee shall submit its report of findings and
recommendations within two weeks from the adoption of this
Resolution.
The special committee created by the above resolution called
and examined various witnesses, among the most important of
whom was the herein petitioner, Jean L. Arnault. An intriguing
question which the committee sought to resolve was that
involved in the apparent unnecessariness and irregularity of the
Government's paying to Burt the total sum of P1,500,000 for
his alleged interest of only P20,000 in the two estates, which he
seemed to have forfeited anyway long before October, 1949.
The committee sought to determine who were responsible for
and who benefited from the transaction at the expense of the
Government.
Arnault testified that two checks payable to Burt aggregating
P1,500,000 were delivered to him on the afternoon of October
29, 1949; that on the same date he opened a new account in
the name of Ernest H. Burt with the Philippine National Bank in
which he deposited the two checks aggregating P1,500,000;
and that on the same occasion he draw on said account two
checks; one for P500,000, which he transferred to the account
of the Associated Agencies, Inc., with the Philippine National
Bank, and another for P440,000 payable to cash, which he
himself cashed. It was the desire of the committee to
determine the ultimate recipient of this sum of P440,000 that
gave rise to the present case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for
questions involving the disposition of funds, I take the position
that the transactions were legal, that no laws were being
violated, and that all requisites had been complied with. Here
also I acted in a purely functional capacity of representative. I
beg to be excused from making answer which might later be
used against me. I have been assured that it is my constitutional
right to refuse to incriminate myself, and I am certain that the
Honorable Members of this Committee, who, I understand, are
lawyers, will see the justness of my position.
190
At as subsequent session of the committee (March 16) Senator
De Vera, a member of the committee, interrogated him as
follows:
Senator DE VERA. Now these transactions, according to your
own typewritten statement, were legal?
Mr. ARNAULT. I believe so.
Senator DE VERA. And the disposition of that fund involved,
according to your own statement, did not violate any law?
Mr. ARNAULT. I believe so.
xxx xxx xxx
Senator DE VERA. So that if the funds were disposed of in such
a manner that no laws were violated, how is it that when you
were asked by the Committee to tell what steps you took to
have this money delivered to Burt, you refused to answer the
questions, saying that it would incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to
privacy in his dealings with other people.
xxx xxx xxx
Senator DE VERA. Are you afraid to state how the money was
disposed of because you would be incriminated, or you would
be incriminating somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to
dispose of the money that has been paid to me as a result of a
legal transaction without having to account for any use of it.
But when in the same session the chairman of the committee,
Senator Sumulong, interrogated the petitioner, the latter
testified as follows:
The CHAIRMAN. The other check of P440,000 which you also
made on October 29, 1949, is payable to cash; and upon
cashing this P440,000 on October 29, 1949, what did you do
with that amount?
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. The whole amount of P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you
delivered these P440,000 which you cashed on October 29,
1949?
191
Mr. ARNAULT. I don't remember the name; he was a
representative of Burt.
The CHAIRMAN. That representative of Burt to whom you
delivered the P440,000 was a Filipino?
Mr. ARNAULT. I don't know.
The CHAIRMAN. You do not remember the name of that
representative of Burt to whom you delivered this big amount
of P440,000?
Mr. ARNAULT. I am not sure; I do not remember the name.
The CHAIRMAN. That certain person who represented Burt to
whom you delivered the big amount on October 29, 1949, gave
you a receipt for the amount?
Mr. ARNAULT. No.
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person,
representative of Burt, this big amount of P440,000 which
forms part of the P1-½ million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.
The CHAIRMAN. Who gave you the instruction?
Mr. ARNAULT. Burt.
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. No.
The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.
The CHAIRMAN. When did you receive this verbal instruction
from Burt to deliver these P440,000 to a certain person whose
name you do not like to reveal?
Mr. ARNAULT. I have instruction to comply with the request of
the person.
The CHAIRMAN. Now, you said that instruction given to you by
Burt was verbal?
192
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by
Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal
instruction; when Burt was still here in the Philippines?
Mr. ARNAULT. Yes.
The CHAIRMAN. But at that time Burt already knew that he
would receive the money?
Mr. ARNAULT. No.
The CHAIRMAN. In what year was that when Burt while he was
here in the Philippines gave you the verbal instruction?
Mr. ARNAULT. In 1946.
The CHAIRMAN. And what has that certain person done for Burt
to merit receiving these P440,000?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the
verbal instruction why that certain person should receive these
P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big
amount to that certain person without receipt?
Mr. ARNAULT. He told me that a certain person would
represent him and where could I meet him.
The CHAIRMAN. Did Burt know already that certain person as
early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention
in the prosecution of the two cases involving the Buenavista
and Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high
government official?
193

The CHAIRMAN. And how about his family name which

Mr. ARNAULT. No, I do not know. according to your recollection is Spanish; can you remember
the first letter with which that family name begins?
The CHAIRMAN. Why can you not tell us the name of that
certain person? Mr. ARNAULT. S, D or F.

Mr. ARNAULT. Because I am not sure of his name; I cannot The CHAIRMAN. And what was the last letter of the family
remember the name. name?

The CHAIRMAN. When gave that certain person that P440,000 Mr. ARNAULT. I do not know.
on October 29, 1949, you knew already that person?
The CHAIRMAN. Have you seen that person again after you
Mr. ARNAULT. Yes, I have seen him several times. have delivered this P440,000?

The CHAIRMAN. And the name of that certain person is a Mr. ARNAULT. Yes.
Filipino name?
The CHAIRMAN. Several times?
Mr. ARNAULT. I would say Spanish name.
Mr. ARNAULT. Two or three times.
The CHAIRMAN. And how about his Christian name; is it also a
Spanish name? The CHAIRMAN. Here in Manila?

Mr. ARNAULT. I am not sure; I think the initial is J. Mr. ARNAULT. Yes.

The CHAIRMAN. Did he have a middle name? The CHAIRMAN. And in spite of the fact that you met that
person two or three times, you never were able to find out
Mr. ARNAULT. I never knew it. what was his name?
194
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr.
Peralta knows my name; of course, we have not done business.
Lots of people in Manila know me, but they don't know my
name, and I don't know them. They sa{ I am "chiflado" because
I don't know their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of
that certain person? What is his complexion: light, dark or light
brown?
Mr. ARNAULT. He is like the gentleman there (pointing to
Senator Cabili), but smaller. He walks very straight, with
military bearing.
The CHAIRMAN. Do you know the residence of that certain
person to whom you gave the P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that
certain person, you never came to know his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of
the Senate, which approved and read to him the following
resolution:
Be it resolved by the Senate of the Philippines in Session
assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned
for contempt consisting of contumacious acts committed by
him during the investigation conducted by the Special
Committee created by Senate Resolution No. 8 to probe the
Tambobong and Buenavista estates deal of October 21, 1949,
and that the President of the Senate propounded to him the
following interrogatories:
1. What excuse have you for persistently refusing to reveal the
name of the person to whom you gave the P440,000 on
October 29, 1949, a person whose name it is impossible for you
not to remember not only because of the big amount of money
195
you gave to him without receipt, but also by your own
statements you knew him as early as 1946 when General Ernest
H. Burt was still in the Philippines, you made two other
deliveries of money to him without receipt, and the last time
you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for
him a written answer alleging that the questions were
incriminatory in nature and begging leave to be allowed to
stand on his constitutional right not to be compelled to be a
witness against himself. Not satisfied with that written answer
Senator Sumulong, over the objection of counsel for the
petitioner, propounded to the latter the following question:
Sen. SUMULONG. During the investigation, when the
Committee asked you for the name of that person to whom you
gave the P440,000, you said that you can [could] not remember
his name. That was the reason then for refusing to reveal the
name of the person. Now, in the answer that you have just
cited, you are refusing to reveal the name of that person to
whom you gave the P440,000 on the ground that your answer
will be self-incriminating. Now, do I understand from you that
you are abandoning your former claim that you cannot
remember the name of that person, and that your reason now
for your refusal to reveal the name of that person is that your
answer might be self-incriminating? In other words, the
question is this: What is your real reason for refusing to reveal
the name of that person to whom you gave the P440,000: that
you do not remember his name or that your answer would be
self-incriminating?
xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of
procedure that the accused should not be required to testify
unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the
question. The question is very clear. It does not incriminate
him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made
before the Senate Committee on the first, second, and third
hearings to which I was made in my letter to this Senate of May
2, 1950, in which I gave all the reasons that were in my powers
to give, as requested. I cannot change anything in those
statements that I made because they represent the best that I
can do , to the best of my ability.
The PRESIDENT. You are not answering the question. The
answer has nothing to do with the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that
the reason that you gave during the investigation for not
196
revealing the name of the person to whom you gave the
P440,000 is not the same reason that you are now alleging
because during the investigation you told us: "I do not
remember his name." But, now, you are now saying: "My
answer might incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements
that I made at the first, second, and third hearings. I said that I
wanted to be excused from answering the question. I beg to be
excused from making any answer that might be incriminating in
nature. However, in this answer, if the detail of not
remembering the name of the person has not been included, it
is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple
question: Do you remember or not the name of the person to
whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of
that person, how can you say that your answer might be
incriminating? If you do not remember his name, you cannot
answer the question; so how could your answer be self-
incriminating? What do you say to that?
Mr. ARNAULT. This is too complicated for me to explain. Please,
I do not see how to answer those questions. That is why I asked
for a lawyer, so he can help me. I have no means of knowing
what the situation is about. I have been in jail 13 days without
communication with the outside. How could I answer the
question? I have no knowledge of legal procedure or rule, of
which I am completely ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be
answered.
The PRESIDENT. The witness is ordered to answer the question.
It is very clear. It does not incriminate the witness.
xxx xxx xxx
Mr. ARNAULT. I do not remember. I stand on my constitutional
rights. I beg to be excused from making further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent
addressed to the President of the Senate, dated May 2, 1950,
you stated there that you cannot reveal the name of the person
to whom you gave the P440,000 because if he is a public official
you might render yourself liable for prosecution for bribery,
and that if he is a private individual you might render yourself
liable for prosecution for slander. Why did you make those
statements when you cannot even tell us whether that person
to whom you gave the P440,000 is a public official or a private
197
individual ? We are giving you this chance to convince the
Senate that all these allegations of yours that your answers
might incriminate you are given by you honestly or you are just
trying to make a pretext for not revealing the information
desired by the Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The
question is restated and explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer
for me and signed it. That is all I can say how I stand about this
letter. I have no knowledge myself enough to write such a
letter, so I had to secure the help of a lawyer to help me in my
period of distress.
In that same session of the Senate before which the petitioner
was called to show cause why he should not be adjudged guilty
of contempt of the Senate, Senator Sumulong propounded to
the petitioner questions tending to elicit information from him
as to the identity of the person to whom he delivered the
P440,000; but the petitioner refused to reveal it by saying that
he did not remember. The President of the Senate then
propounded to him various questions concerning his past
activities dating as far back as when witness was seven years of
age and ending as recently as the post liberation period, all of
which questions the witness answered satisfactorily. In view
thereof, the President of the Senate also made an attempt to
illicit the desired information from the witness, as follows:
The PRESIDENT. Now I am convinced that you have a good
memory. Answer: Did you deliver the P440,000 as a gift, or of
any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to
that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least
remembrance of the name of that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that
happened a short time ago and, on the other hand, you
remember events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May
15 hereinabove quoted whereby the petitioner was committed
to the custody of the Sergeant-at-Arms and imprisoned until
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"he shall have purged the contempt by revealing to the Senate
or to the aforesaid Special Committee the name of the person
to whom he gave the P440,000, as well as answer other
pertinent questions in connection therewith."
The Senate also adopted on the same date another resolution
(No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8
be empowered and directed to continue its investigation of the
Tambobong and Buenavista Estates deal of October 21, 1949,
more particularly to continue the examination of Jean L.
Arnault regarding the name of the person to whom he gave the
P440,000 and other matters related therewith.
The first session of the Second Congress was adjourned at
midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest
and prolonged consideration because it is the first of its kind to
arise since the Constitution of the Republic of the Philippines
was adopted. For the first time this Court is called upon to
define the power of either House of Congress to punish a
person not a member for contempt; and we are fully conscious
that our pronouncements here will set an important precedent
for the future guidance of all concerned.
Before discussing the specific issues raised by the parties, we
deem it necessary to lay down the general principles of law
which form the background of those issues.
Patterned after the American system, our Constitution vests
the powers of the Government in three independent but
coordinate Departments — Legislative, Executive, and Judicial.
The legislative power is vested in the Congress, which consists
of the Senate and the House of Representatives. (Section 1,
Article VI.) Each house may determine the rules of its
proceedings, punish its Members for disorderly behavior, and,
with the concurrence of two-thirds of all its Members, expel a
Member. (Section 10, Article VI.) The judicial power is vested in
the Supreme Court and in such inferior courts as may be
established by law. (Section 1, Article VIII.) Like the Constitution
of the United States, ours does not contain an express provision
empowering either of the two Houses of Congress to punish
nonmembers for contempt. It may also be noted that whereas
in the United States the legislative power is shared by and
between the Congress of the United States, on the one hand,
and the respective legislatures of the different States, on the
other — the powers not delegated to the United States by the
Constitution nor prohibited by it to States being reserved to the
States, respectively, or to the people — in the Philippines, the
legislative power is vested in the Congress of the Philippines
alone. It may therefore be said that the Congress of the
Philippines has a wider range of legislative field than the
Congress of the United States or any State Legislature. Our form
199
of Government being patterned after the American system —
the framers of our Constitution having drawn largely from
American institutions and practices — we can, in this case,
properly draw also from American precedents in interpreting
analogous provisions of our Constitution, as we have done in
other cases in the past. Although there is no provision in the
Constitution expressly investing either House of Congress with
power to make investigations and exact testimony to the end
that it may exercise its legislative functions as to be implied. In
other words, the power of inquiry — with process to enforce it
— is an essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or effectively
in the absence of information respecting the conditions which
the legislation is intended to effect or change; and where the
legislative body does not itself possess the requisite
information — which is not infrequently true — recourse must
be had to others who do possess it. Experience has shown that
mere requests for such information are often unavailing, and
also that information which is volunteered is not always
accurate or complete; so some means of compulsion is
essential to obtain what is needed. (McGrain vs. Daugherty, 273
U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the
Constitution expressly gives to Congress the power to punish its
Members for disorderly behavior, does not by necessary
implication exclude the power to punish for contempt any
other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed.,
242.) But no person can be punished for contumacy as a
witness before either House, unless his testimony is required in
a matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a
wider range of legislative field than either the Congress of the
United States or a State Legislature, we think it is correct to say
that the field of inquiry into which it may enter is also wider. It
would be difficult to define any limits by which the subject
matter of its inquiry can be bounded. It is not necessary to do
so in this case. Suffice it to say that it must be coextensive with
the range of the legislative power.
In the present case the jurisdiction of the Senate, thru the
Special Committee created by it, to investigate the Buenavista
and Tambobong Estates deal is not challenged by the
petitioner; and we entertain no doubt as to the Senate's
authority to do so and as to the validity of Resolution No. 8
hereinabove quoted. The transaction involved a questionable
and allegedly unnecessary and irregular expenditure of no less
than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies
created by Congress to regulate or even abolish. As a result of
the yet uncompleted investigation, the investigating
committee has recommended and the Senate approved three
bills (1) prohibiting the Secretary of Justice or any other
department head from discharging functions and exercising
powers other than those attached to his own office, without
]previous congressional authorization; (2) prohibiting brothers
200
and near relatives of any President of the Philippines from
intervening directly or indirectly and in whatever capacity in
transactions in which the Government is a party, more
particularly where the decision lies in the hands of executive or
administrative officers who are appointees of the President;
and (3) providing that purchases of the Rural Progress
Administration of big landed estates at a price of P100,000 or
more, shall not become effective without previous
congressional confirmation.2
We shall now consider and pass upon each of the questions
raised by the petitioner in support of his contention that his
commitment is unlawful.
First He contends that the Senate has no power to punish him
for contempt for refusing to reveal the name of the person to
whom he gave the P440,000, because such information is
immaterial to, and will not serve, any intended or purported
legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It
is argued that since the investigating committee has already
rendered its report and has made all its recommendations as to
what legislative measures should be taken pursuant to its
findings, there is no necessity to force the petitioner to give the
information desired other than that mentioned in its report, to
wit: "In justice to Judge Quirino and to Secretary Nepomuceno,
this atmosphere of suspicion that now pervades the public
mind must be dissipated, and it can only be done if appropriate
steps are taken by the Senate to compel Arnault to stop
pretending that he cannot remember the name of the person
to whom he gave the P440,000 and answer the questions which
will definitely establish the identity of that person . . ." Senator
Sumulong, Chairman of the Committee, who appeared and
argued the case for the respondents, denied that that was the
only purpose of the Senate in seeking the information from the
witness. He said that the investigation had not been completed,
because, due to the contumacy of the witness, his committee
had not yet determined the parties responsible for the
anomalous transaction as required by Resolution No. 8; that, by
Resolution No. 16, his committee was empowered and directed
to continue its investigation, more particularly to continue its
examination of the witness regarding the name of the person
to whom he gave the P440,000 and other matters related
therewith; that the bills recommended by his committee had
not been approved by the House and might not be approved
pending the completion of the investigation; and that those
bills were not necessarily all the measures that Congress might
deem it necessary to pass after the investigation is finished.
Once an inquiry is admitted or established to be within the
jurisdiction of a legislative body to make, we think the
investigating committee has the power to require a witness to
answer any question pertinent to that inquiry, subject of course
to his constitutional right against self-incrimination. The
inquiry, to be within the jurisdiction of the legislative body to
make, must be material or necessary to the exercise of a power
201
in it vested by the Constitution, such as to legislate, or to expel
a Member; and every question which the investigator is
empowered to coerce a witness to answer must be material or
pertinent to the subject of the inquiry or investigation. So a
witness may not be coerced to answer a question that
obviously has no relation to the subject of the inquiry. But from
this it does not follow that every question that may be
propounded to a witness must be material to any proposed or
possible legislation. In other words, the materiality of the
question must be determined by its direct relation to any
proposed or possible legislation. The reason is, that the
necessity or lack of necessity for legislative action and the form
and character of the action itself are determined by the sum
total of the information to be gathered as a result of the
investigation, and not by a fraction of such information elicited
from a single question.
In this connection, it is suggested by counsel for the
respondents that the power of the Court is limited to
determining whether the legislative body has jurisdiction to
institute the inquiry or investigation; that once that jurisdiction
is conceded, this Court cannot control the exercise of that
jurisdiction; and it is insinuated, that the ruling of the Senate on
the materiality of the question propounded to the witness is
not subject to review by this Court under the principle of the
separation of powers. We have to qualify this proposition. As
was said by the Court of Appeals of New York: "We are bound
to presume that the action of the legislative body was with a
legitimate object if it is capable of being so construed, and we
have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep.,
49; 2 N.E., 615, quoted with approval by the Supreme Court of
the United States in the said case of McGrain vs. Daugherty, it
is necessary deduction from the decision in Re Chapman, 41 L.
ed., 1154, that where the questions are not pertinent to the
matter under inquiry a witness rightfully may refuse to answer.
So we are of the opinion that where the alleged immateriality
of the information sought by the legislative body from a witness
is relied upon to contest its jurisdiction, the court is in duty
bound to pass upon the contention. The fact that the legislative
body has jurisdiction or the power to make the inquiry would
not preclude judicial intervention to correct a clear abuse of
discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding
paragraphs to the resolution of the issue under consideration,
we find that the question for the refusal to answer which the
petitioner was held in contempt by the Senate is pertinent to
the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not
challenged by the petitioner, requires the Special Committee,
among other things, to determine the parties responsible for
the Buenavista and Tambobong estates deal, and it is obvious
that the name of the person to whom the witness gave the
P440,000 involved in said deal is pertinent to that
determination — it is in fact the very thing sought to be
202
determined. The contention is not that the question is
impertinent to the subject of the inquiry but that it has no
relation or materiality to any proposed legislation. We have
already indicated that it is not necessary for the legislative body
to show that every question propounded to a witness is
material to any proposed or possible legislation; what is
required is that is that it be pertinent to the matter under
inquiry.
It is said that the Senate has already approved the three bills
recommended by the Committee as a result of the
uncompleted investigation and that there is no need for it to
know the name of the person to whom the witness gave the
P440,000. But aside from the fact that those bills have not yet
been approved by the lower house and by the President and
that they may be withdrawn or modified if after the inquiry is
completed they should be found unnecessary or inadequate,
there is nothing to prevent the Congress from approving other
measures it may deem necessary after completing the
investigation. We are not called upon, nor is it within our
province, to determine or imagine what those measures may
be. And our inability to do so is no reason for overruling the
question propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in
point here. The inquiry there in question was conducted under
a resolution of the Senate and related to charges, published in
the press, that senators were yielding to corrupt influences in
considering a tariff bill then before the Senate and were
speculating in stocks the value of which would be affected by
pending amendments to the bill. Chapman, a member of a firm
of stock brokers dealing in the stock of the American Sugar
Refining Company, appeared before the committee in response
to a subpoena and asked, among others, the following
questions:
Had the firm, during the month of March, 1894, bought or sold
any stock or securities, known as sugar stocks, for or in the
interest, directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the
benefit of, or in the interest, directly or indirectly, of any United
Senate senator?
He refused to answer the questions and was prosecuted under
an Act of Congress for contempt of the Senate. Upon being
convicted and sent to jail he petitioned the Supreme Court of
the United States for a writ of habeas corpus. One of the
questions decided by the Supreme Court of the United States
in that case was whether the committee had the right to
compel the witness to answer said questions, and the Court
held that the committee did have such right, saying:
The questions were undoubtedly pertinent to the subject-
matter of the inquiry. The resolution directed the committee to
inquire whether any senator has been, or is, speculating in what
203
are known as sugar stocks during the consideration of the tariff
bill now before the Senate." What the Senate might or might
not do upon the facts when ascertained, we cannot say, nor are
we called upon to inquire whether such ventures might be
defensible, as contended in argument, but is plain that negative
answers would have cleared that body of what the Senate
regarded as offensive imputations, while affirmative answers
might have led to further action on the part of the Senate
within its constitutional powers. (Emphasis supplied.)
It may be contended that the determination of the parties
responsible for the deal is incumbent upon the judicial rather
than upon the legislative branch. But we think there is no basis
in fact or in law for such assumption. The petitioner has not
challenged the validity of Senate Resolution No. 8, and that
resolution expressly requires the committee to determine the
parties responsible for the deal. We are bound to presume that
the Senate has acted in the due performance of its
constitutional function in instituting the inquiry, if the act is
capable of being so construed. On the other hand, there is no
suggestion that the judiciary has instituted an inquiry to
determine the parties responsible for the deal. Under the
circumstances of the case, it appearing that the questioned
transaction was affected by the head of the Department of
Justice himself, it is not reasonable to expect that the Fiscal or
the Court of First Instance of Manila will take the initiative to
investigate and prosecute the parties responsible for the deal
until and unless the Senate shall determined those parties are
and shall taken such measures as may be within its competence
to take the redress the wrong that may have been committed
against the people as a result of the transaction. As we have
said, the transaction involved no less than P5,000,000 of public
funds. That certainly is a matter of a public concern which it is
the duty of the constitutional guardian of the treasury to
investigate.
If the subject of investigation before the committee is within
the range of legitimate legislative inquiry and the proposed
testimony of the witness called relates to that subject,
obedience, to its process may be enforced by the committee by
imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79 S.E., 670; 40
Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed.,
377, relied upon by the petitioner, is not applicable here. In that
case the inquiry instituted by the House of Representatives of
the United States related to a private real-estate pool or
partnership in the District of Columbia. Jay Cook and Company
had had an interest in the pool but become bankrupts, and their
estate was in course of administration in a federal bankruptcy
court in Pennsylvania. The United States was one of their
creditors. The trustee in the bankruptcy proceeding had
effected a settlement of the bankrupts' interest in the pool, and
of course his action was subject to examination and approval or
disapproval by the bankruptcy court. Some of the creditors,
including the United States, were dissatisfied with the
204
settlement. The resolution of the House directed the
Committee "to inquire into the nature and history of said real-
estate pool and the character of said settlement, with the
amount of property involve, in which Jay Cooke and Co. were
interested, and the amount paid or to be paid in said
settlement, with power to send for persons and papers, and
report to this House." The Supreme Court of the United States,
speaking thru Mr. Justice Miller, pointed out that the resolution
contained no suggestion of contemplated legislation; that the
matter was one in respect of which no valid legislation could be
had; that the bankrupts' estate and the trustee's settlement
were still pending in the bankruptcy court; and that the United
States and other creditors were free to press their claims in that
proceeding. And on these grounds the court held that in
undertaking the investigation "the House of Representatives
not only exceeded the limit of its own authority, but assumed a
power which could only be properly exercised by another
branch of the government, because the power was in its nature
clearly judicial." The principles announced and applied in that
case are: that neither House of Congress possesses a "general
power of making inquiry into the private affairs of the citizen";
that the power actually possessed is limited to inquires relating
to matters of which the particular House has jurisdiction, and
in respect of which it rightfully may take other action; that if the
inquiry relates to a matter wherein relief or redress could be
had only by judicial proceeding, it is not within the range of this
power , but must be left to the court, conformably to the
constitutional separation of government powers.
That case differs from the present case in two important
respects: (1) There the court found that the subject of the
inquiry, which related to a private real-estate pool or
partnership, was not within the jurisdiction of either House of
Congress; while here if it is not disputed that the subject of the
inquiry, which relates to a transaction involving a questionable
expenditure by the Government of P5,000,000 of public funds,
is within the jurisdiction of the Senate, (2) There the claim of
the Government as a creditor of Jay Cooke and Company, which
had had an interest in the pool, was pending adjudication by
the court; while here the interposition of the judicial power on
the subject of the inquiry cannot be expected, as we have
pointed out above, until after the Senate shall have determined
who the parties responsible are and shall have taken such
measures as may be within its competence to take to redress
the wrong that may have been committed against the people
as a result of the transaction.
It is interesting to note that the decision in the case of Killbourn
vs. Thompson has evoked strong criticisms from legal scholars.
(See Potts, Power of Legislative Bodies to Punish for Contempt
[1926], 74 U. Pa. L. Rev., 692-699; James L. Land is,
Constitutional Limitations on the Congressional Power of
Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We
quoted the following from Professor Land is' criticism: "Mr.
Justice Miller saw the case purely as an attempt by the House
to secure to the Government certain priority rights as creditor
205
of the bankrupt concern. To him it assumed the character of a
lawsuit between the Government and Jay Cooke and Co., with
the Government, acting through the House, attempting to
override the orderliness of established procedure and thereby
prefer a creditors' bill not before the courts but before
Congress. That bankruptcy proceedings had already been
instituted against Jay Cooke and Co., in a federal court gave
added impetus to such a conception. The House was seeking to
oust a court of prior acquired jurisdiction by an extraordinary
and unwarranted assumption of "judicial power"! The broader
aspect of the investigation had not been disclosed to the Court.
That Jay Cooke and Co.'s indebtedness and the particular funds
in question were only part of the great administrative problem
connected with the use and disposition of public monies, that
the particular failure was of consequence mainly in relation to
the security demanded for all government deposits, that the
facts connected with one such default revealed the possibility
of other and greater maladministration, such considerations
had not been put before the Court. Nor had it been acquainted
with the every-day nature of the particular investigation and
the powers there exerted by the House, powers whose exercise
was customary and familiar in legislative practice. Instead of
assuming the character of an extraordinary judicial proceeding,
the inquiry, place in its proper background, should have been
regarded as a normal and customary part of the legislative
process. Detailed definiteness of legislative purpose was thus
made the demand of the court in Killbourn vs. Thompson. But
investigators cannot foretell the results that may be achieved.
The power of Congress to exercise control over a real-estate
pool is not a matter for abstract speculation but one to be
determined only after an exhaustive examination of the
problem. Relationship, and not their possibilities, determine
the extent of congressional power. Constitutionality depends
upon such disclosures. Their presence, whether determinative
of legislative or judicial power, cannot be relegated to
guesswork. Neither Congress nor the Court can predict, prior to
the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs.
Gordon, 243 U.S., 521; 61. ed., 881. The question there was
whether the House of Representatives exceeded its power in
punishing, as for contempt of its authority, the District Attorney
of the Southern District of New York, who had written,
published, and sent to the chairman of one of its committees
an ill-tempered and irritating letter respecting the action and
purposes of the committee in interfering with the investigation
by the grand jury of alleged illegal activities of a member of the
House of Representatives. Power to make inquires and obtain
evidence by compulsory process was not involved. The court
recognized distinctly that the House of Representatives had
implied power to punish a person not a member for contempt,
but held that its action in this instance was without
constitutional justification. The decision was put on the ground
that the letter, while offensive and vexatious, was not
calculated or likely to affect the House in any of its proceedings
or in the exercise of any of its functions. This brief statement of
206
the facts and the issues decided in that case is sufficient to show
the inapplicability thereof to the present case. There the
contempt involved consisted in the district attorney's writing to
the chairman of the committee an offensive and vexatious
letter, while here the contempt involved consists in the refusal
of the witness to answer questions pertinent to the subject of
an inquiry which the Senate has the power and jurisdiction to
make . But in that case, it was recognized that the House of
Representatives has implied power to punish a person not a
member of contempt. In that respect the case is applicable here
in favor of the Senate's (and not of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate
lacks authority to commit him for contempt for a term beyond
its period of legislative session, which ended on May 18, 1950.
This contention is based on the opinion of Mr. Justice Malcolm,
concurred in by Justices Street and Villa-Real, in the case of
Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it
appears that on October 23, 1929, Candido Lopez assaulted a
member of the House of Representatives while the latter was
going to the hall of the House of Representatives to attend the
session which was then about to begin, as a result of which
assault said representative was unable to attend the sessions
on that day and those of the two days next following by reason
of the threats which Candido Lopez made against him. By the
resolution of the House adopted November 6, 1929, Lopez was
declared guilty of contempt of the House of Representatives
and ordered punished by confinement in Bilibid Prison for a
period of twenty-four hours. That resolution was not complied
with because the session of the House of Representatives
adjourned at midnight on November 8, 1929, and was
reiterated at the next session on September 16, 1930. Lopez
was subsequently arrested, whereupon he applied for the writ
of habeas corpus in the Court of First Instance of Manila, which
denied the application. Upon appeal to the Supreme Court, six
justices voted to grant the writ: Justice Malcolm, Street, and
Villa-real, on the ground that the term of imprisonment meted
out to the petitioner could not legally be extended beyond the
session of the body in which the contempt occurred; and
Justices Johns, Villamor, and Ostrand, on the ground that the
Philippine Legislature had no power to punish for contempt
because it was a creature merely of an Act of the Congress of
the United States and not of a Constitution adopted by the
people. Chief Justice Avanceña, Justice Johnson, and Justice
Romualdez wrote separate opinions, concurring with Justice
Malcolm, Street, and Villa-Real, that the Legislature had
inherent power to punish for contempt but dissenting from the
opinion that the order of commitment could only be executed
during the particular session in which the act of contempt was
committed.
Thus, on the question under consideration, the Court was
equally divided and no decisive pronouncement was made. The
opinion of Mr. Justice Malcolm is based mainly on the following
passage in the case of Anderson vs. Dunn, supra:
207
And although the legislative power continues perpetual, the
legislative body ceases to exist on the moment of its
adjournment or periodical dissolution. It follows that
imprisonment must terminate with that adjournment.
as well as on the following quotation from Marshall vs. Gordon,
supra:
And the essential nature of the power also makes clear the
cogency and application of the two limitations which were
expressly pointed out in Anderson vs. Dunn, supra, that is, that
the power even when applied to subjects which justified its
exercise is limited to imprisonment and such imprisonment
may not be extended beyond the session of the body in which
the contempt occurred.
Interpreting the above quotations, Chief Justice Avanceña held:
From this doctrine it follows, in my judgement, that the
imposition of the penalty is limited to the existence of the
legislative body, which ceases to function upon its final
periodical dissolution. The doctrine refers to its existence and
not to any particular session thereof. This must be so, inasmuch
as the basis of the power to impose such penalty is the right
which the Legislature has to self-preservation, and which right
is enforceable during the existence of the legislative body.
Many causes might be conceived to constitute contempt to the
Legislature, which would continue to be a menace to its
preservation during the existence of the legislative body against
which contempt was committed.
If the basis of the power of the legislature to punish for
contempt exists while the legislative body exercising it is in
session, then that power and the exercise thereof must
perforce continue until the final adjournment and the election
of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by
quotations from Cooley's Constitutional Limitations and from
Jefferson's Manual, is to the same effect. Mr. Justice
Romualdez said: "In my opinion, where as in the case before us,
the members composing the legislative body against which the
contempt was committed have not yet completed their three-
year term, the House may take action against the petitioner
herein."
We note that the quotations from Anderson vs. Dunn and
Marshall vs. Gordon relied upon by Justice Malcolm are obiter
dicta. Anderson vs. Dunn was an action of trespass against the
Sergeant-at-Arms of the House of Representatives of the
United States for assault and battery and false imprisonment.
The plaintiff had been arrested for contempt of the House,
brought before the bar of the House, and reprimanded by the
Speaker, and then discharged from custody. The question as to
the duration of the penalty was not involved in that case. The
question there was "whether the House of Representatives can
208
take cognizance of contempt committed against themselves,
under any circumstances." The court there held that the House
of Representatives had the power to punish for contempt, and
affirmed the judgment of the lower court in favor of the
defendant. In Marshall vs. Gordon, the question presented was
whether the House had the power under the Constitution to
deal with the conduct of the district attorney in writing a
vexatious letter as a contempt of its authority, and to inflict
punishment upon the writer for such contempt as a matter of
legislative power. The court held that the House had no such
power because the writing of the letter did not obstruct the
performance of legislative duty and did not endanger the
preservation of the power of the House to carry out its
legislative authority. Upon that ground alone, and not because
the House had adjourned, the court ordered the discharge of
the petitioner from custody.
The case where the question was squarely decided is McGrain
vs. Daugherty, supra. There it appears that the Senate had
adopted a resolution authorizing and directing a select
committee of five senators to investigate various charges of
misfeasance and nonfeasance in the Department of Justice
after Attorney General Harry M. Daugherty became its
supervising head. In the course of the investigation the
committee caused to be served on Mally S. Daugherty, brother
of Harry M. Daugherty and president of the Midland National
Bank of Washington Court House, Ohio, a subpoena
commanding him to appear before it for the purpose of giving
testimony relating to the subject under consideration. The
witness failed to appear without offering any excuse for his
failure. The committee reported the matter to the Senate and
the latter adopted a resolution, "That the President of the
Senate pro tempore issue his warrant commanding the
Sergeant-at-Arms or his deputy to take into custody the body
of the said M.S. Daugherty wherever found, and to bring the
said M.S. Daugherty before the bar of the Senate, then and
there to answer such questions pertinent to the matter under
inquiry as the Senate may order the President of the Senate pro
tempore to propound; and to keep the said M.S. Daugherty in
custody to await the further order of the Senate." Upon being
arrested, the witness petitioned the federal court in Cincinnati
for a writ of habeas corpus. The federal court granted the writ
and discharged the witness on the ground that the Senate, in
directing the investigation and in ordering the arrest, exceeded
its power under the Constitution. Upon appeal to the Supreme
Court of the United States, one of the contentions of the
witness was that the case ha become moot because the
investigation was ordered and the committee was appointed
during the Sixty-eighth Congress, which expired on March 4,
1926. In overruling the contention, the court said:
. . . The resolution ordering the investigation in terms limited
the committee's authority to the period of the Sixty-eighth
Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such
times and places as it might deem advisable or necessary. It is
209
said in Jefferson's Manual: "Neither House can continue any
portion of itself in any parliamentary function beyond the end
of the session without the consent of the other two branches.
When done, it is by a bill constituting them commissioners for
the particular purpose." But the context shows that the
reference is to the two houses of Parliament when adjourned
by prorogation or dissolution by the King. The rule may be the
same with the House of Representatives whose members are
all elected for the period of a single Congress: but it cannot well
be the same with the Senate, which is a continuing body whose
members are elected for a term of six years and so divided into
classes that the seats of one third only become vacant at the
end of each Congress, two thirds always continuing into the
next Congress, save as vacancies may occur through death or
resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as
a continuing body, may continue its committees through the
recess following the expiration of a Congress;" and, after
quoting the above statement from Jefferson's Manual, he says:
"The Senate, however being a continuing body, gives authority
to its committees during the recess after the expiration of a
Congress." So far as we are advised the select committee
having this investigation in charge has neither made a final
report nor been discharged; nor has been continued by an
affirmative order. Apparently its activities have been
suspended pending the decision of this case. But, be this as it
may, it is certain that the committee may be continued or
revived now by motion to that effect, and if, continued or
revived, will have all its original powers. This being so, and the
Senate being a continuing body, the case cannot be said to have
become moot in the ordinary sense. The situation is
measurably like that in Southern P. Terminal Co. vs. Interstate
Commerce Commission, 219 U. S., 498, 514-516; 55 L. ed., 310,
315, 316; 31 Sup. Ct. Rep., 279, where it was held that a suit to
enjoin the enforcement of an order of the Interstate Commerce
Commission did not become moot through the expiration of
the order where it was capable of repetition by the Commission
and was a matter of public interest. Our judgment may yet be
carried into effect and the investigation proceeded with from
the point at which it apparently was interrupted by reason of
the habeas corpus proceedings. In these circumstances we
think a judgment should be rendered as was done in the case
cited.
What has been said requires that the final order in the District
Court discharging the witness from custody be reversed.
Like the Senate of the United States , the Senate of the
Philippines is a continuing body whose members are elected for
a term of six years and so divided that the seats of only one-
third become vacant every two years, two-thirds always
continuing into the next Congress save as vacancies may occur
thru death or resignation. Members of the House of
Representatives are all elected for a term of four years; so that
the term of every Congress is four years. The Second Congress
210
of the Philippines was constituted on December 30, 1949, and
will expire on December 30, 1953. The resolution of the Senate
committing the Petitioner was adopted during the first session
of the Second Congress, which began on the fourth Monday of
January and ended in May 18, 1950.
Had said resolution of commitment been adopted by the House
of Representatives, we think it could be enforced until the final
adjournment of the last session of the Second Congress in 1953.
We find no sound reason to limit the power of the legislative
body to punish for contempt to the end of every session and
not to the end of the last session terminating the existence of
that body. The very reason for the exercise of the power to
punish for contempt is to enable the legislative body to perform
its constitutional function without impediment or obstruction.
Legislative functions may be and in practice are performed
during recess by duly constituted committees charged with the
duty of performing investigations or conducting hearing
relative to any proposed legislation. To deny to such
committees the power of inquiry with process to enforce it
would be to defeat the very purpose for which that the power
is recognized in the legislative body as an essential and
appropriate auxiliary to is legislative function. It is but logical to
say that the power of self-preservation is coexistent with the
life to be preserved.
But the resolution of commitment here in question was
adopted by the Senate, which is a continuing body and which
does not cease exist upon the periodical dissolution of the
Congress or of the House of Representatives. There is no limit
as to time to the Senate's power to punish for contempt in
cases where that power may constitutionally be exerted as in
the present case.
Mere reflection upon the situation at hand convinces us of the
soundness of this proposition. The Senate has ordered an
investigation of the Buenavista and Tambobong estates deal,
which we have found it is within its competence to make. That
investigation has not been completed because of the refusal of
the petitioner as a witness to answer certain questions
pertinent to the subject of the inquiry. The Senate has
empowered the committee to continue the investigation
during the recess. By refusing to answer the questions, the
witness has obstructed the performance by the Senate of its
legislative function, and the Senate has the power to remove
the obstruction by compelling the witness to answer the
questions thru restraint of his liberty until he shall have
answered them. That power subsists as long as the Senate,
which is a continuing body, persists in performing the particular
legislative function involved. To hold that it may punish the
witness for contempt only during the session in which
investigation was begun, would be to recognize the right of the
Senate to perform its function but at the same time to deny to
it an essential and appropriate means for its performance.
Aside from this, if we should hold that the power to punish for
contempt terminates upon the adjournment of the session, the
211
Senate would have to resume the investigation at the next and
succeeding sessions and repeat the contempt proceedings
against the witness until the investigation is completed-an
absurd, unnecessary, and vexatious procedure, which should
be avoided.
As against the foregoing conclusion it is argued for the
petitioner that the power may be abusively and oppressively
exerted by the Senate which might keep the witness in prison
for life. But we must assume that the Senate will not be
disposed to exert the power beyond its proper bounds. And if,
contrary to this assumption, proper limitations are disregarded,
the portals of this Court are always open to those whose rights
might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self-
incrimination. He contends that he would incriminate himself if
he should reveal the name of the person to whom he gave the
P440,000 if that person be a public official be (witness) might
be accused of bribery, and if that person be a private individual
the latter might accuse him of oral defamation.
The ground upon which the witness' claim is based is too shaky,
in firm, and slippery to afford him safety. At first he told the
Committee that the transactions were legal, that no laws were
violated, and that all requisites had been replied with; but at
the time he begged to be excused from making answers "which
might later be used against me." A little later he explained that
although the transactions were legal he refused to answer
questions concerning them "because it violates the right of a
citizen to privacy in his dealings with other people . . . I simply
stand on my privilege to dispose of the money that has been
paid to me as a result of a legal transaction without having to
account for the use of it." But after being apparently convinced
by the Committee that his position was untenable, the witness
testified that, without securing any receipt, he turned over the
P440,000 to a certain person, a representative of Burt, in
compliance with Burt's verbal instruction made in 1946; that as
far as he know, that certain person had nothing to do with the
negotiations for the settlement of the Buenavista and
Tambobong cases; that he had seen that person several times
before he gave him the P440,000 on October 29, 1949, and that
since then he had seen him again two or three times, the last
time being in December, 1949, in Manila; that the person was
a male, 39 to 40 years of age, between 5 feet, 2 inches and 5
feet, 6 inches in height. Butt the witness would not reveal the
name of that person on these pretexts: " I don't remember the
name; he was a representative of Burt." "I am not sure; I don't
remember the name."
We are satisfied that those answers of the witness to the
important question, what is the name of that person to whom
you gave the P440,000? were obviously false. His insistent claim
before the bar of the Senate that if he should reveal the name
he would incriminate himself, necessarily implied that he knew
212
the name. Moreover, it is unbelievable that he gave the
P440,000 to a person to him unknown.
"Testimony which is obviously false or evasive is equivalent to
a refusal to testify and is punishable as contempt, assuming
that a refusal to testify would be so punishable." (12 Am. Jur.,
sec. 15, Contempt, pp. 399-400.) In the case of Mason vs. U.S.,
61 L. ed., 1198, it appears that Mason was called to testify
before a grand jury engaged in investigating a charge of
gambling against six other men. After stating that he was sitting
at a table with said men when they were arrested, he refused
to answer two questions, claiming so to do might tend to
incriminate him: (1) "Was there a game of cards being played
on this particular evening at the table at which you are sitting?"
(2) "Was there a game of cards being played at another table at
this time?" The foreman of the grand jury reported the matter
to the judge, who ruled "that each and all of said questions are
proper and that the answers thereto would not tend to
incriminate the witness." Mason was again called and refused
to answer the first question propounded to him, but, half
yielding to frustration, he said in response to the second
question: "I don't know." In affirming the conviction for
contempt, the Supreme Court of the United States among
other things said:
In the present case, the witness certainly were not relieved
from answering merely because they declared that so to do
might incriminate them. The wisdom of the rule in this regard
is well illustrated by the enforced answer, "I don't know ," given
by Mason to the second question, after he had refused to reply
under a claim of constitutional privilege.
Since according to the witness himself the transaction was
legal, and that he gave the P440,000 to a representative of Burt
in compliance with the latter's verbal instruction, we find no
basis upon which to sustain his claim that to reveal the name of
that person might incriminate him. There is no conflict of
authorities on the applicable rule, to wit:
Generally, the question whether testimony is privileged is for
the determination of the Court. At least, it is not enough for the
witness to say that the answer will incriminate him. as he is not
the sole judge of his liability. The danger of self-incrimination
must appear reasonable and real to the court, from all the
circumstances, and from the whole case, as well as from his
general conception of the relations of the witness. Upon the
facts thus developed, it is the province of the court to
determine whether a direct answer to a question may
criminate or not. . . . The fact that the testimony of a witness
may tend to show that he has violated the law is not sufficient
to entitle him to claim the protection of the constitutional
provision against self-incrimination, unless he is at the same
time liable to prosecution and punishment for such violation.
The witness cannot assert his privilege by reason of some
fanciful excuse, for protection against an imaginary danger, or
213

to secure immunity to a third person. ( 3 Wharton's Criminal
Evidence, 11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the
facts and circumstances of the case whether the witness is
justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d],
210 [Ill. App., 1939].) A witness is not relieved from answering
merely on his own declaration that an answer might
incriminate him, but rather it is for the trial judge to decide that
question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
that the laws under which he suffers were made for the
security." Paraphrasing and applying that pronouncement
here, the petitioner may not relish the restraint of his liberty
pending the fulfillment by him of his duty, but it is no less
certain that the laws under which his liberty is restrained were
made for his welfare.
From all the foregoing, it follows that the petition must be
denied, and it is so ordered, with costs.

As against witness's inconsistent and unjustified claim to a

constitutional right, is his clear duty as a citizen to give frank,
sincere, and truthful testimony before a competent authority.
The state has the right to exact fulfillment of a citizen's
obligation, consistent of course with his right under the
Constitution. The witness in this case has been vociferous and
militant in claiming constitutional rights and privileges but
patently recreant to his duties and obligations to the
Government which protects those rights under the law. When
a specific right and a specific obligation conflict with each other,
and one is doubtful or uncertain while the other is clear and
imperative, the former must give way to the latter. The right to
life is one of the most sacred that the citizen may claim, and yet
the state may deprive him of it if he violates his corresponding
obligation to respect the life of others. As Mr. Justice Johnson
said in Anderson vs. Dunn: "The wretch beneath the gallows
may repine at the fate which awaits him, and yet it is not certain
214

The petitioner, R. McCulloch Dick, prays for his discharge from

detention by the acting chief of police of the city of Manila, who
took him in custody under authority of an executive order, a
copy of which is set out in the body of this opinion.

A writ of habeas corpus was issued by one of the members of

this court upon the following representations of the
petitioner:jgc:chanrobles.com.ph

"(1) That he is unlawfully restrained of his liberty

"(2) That he is so unlawfully restrained of his liberty by Anton

Hohmann, acting chief of police of the city of Manila.

"(3) That the place where he is so restrained is the city of

Manila, Philippine Islands.

"(4) That the cause of his detention is an order issued by the

[G.R. No. 13862. April 16, 1918 1 ]
In re R. MCCULLOCH DICK.
CARSON, J. :
Governor-General of the Philippine Islands in accordance with
the provisions of section 69 of the Administrative Code (Act No.
2711), a true copy of such order being hereunto annexed,
marked Exhibit A and made a part of this petition, as well as the
proceedings on which said order of deportation was based and
issued, a copy whereof is also attached, marked Exhibit B and
made a part of this petition.
215
"(5) That the said detention and restraint are illegal and that
the illegality thereof consists in this, to
wit:jgc:chanrobles.com.ph
"That the Governor-General of the Philippine Islands had no
authority to issue such order of deportation, and that such
order of deportation is in violation of the Constitution, treaties,
and laws of the United States, and of the Law of Nations, in
force in the Philippine Islands.
"(6) That the petitioner is not restrained of his liberty nor is he
in the custody of an officer under process issued by a court or
magistrate, or by virtue of a judgment or order of a court of
record."cralaw virtua1aw library
The executive order referred to in the petition is couched in the
following terms:jgc:chanrobles.com.ph
"OFFICE OF THE GOVERNOR-GENERAL OF THE PHILIPPINE
ISLANDS.
"To the Chief of Police, city of Manila, or to any peace officer.
"GREETING: Whereas, after an investigation duly conducted in
accordance with the provisions of section 69 of the
Administrative Code (Act No. 2711), it appears that R.
McCulloch Dick is a subject of a foreign power, residing in the
Philippine Islands;
"Whereas it further appears that said R. McCulloch Dick is an
undesirable alien, whose presence in the Philippine Islands is a
menace to the peace and safety of the community;
"Now, therefore, by virtue of the powers in me vested, you are
hereby authorized and ordered to deport said R. McCulloch
Dick to the neighboring Colony of Hongkong, and thereafter to
exclude him from these Islands.
"In testimony whereof I have hereunto set my hand and caused
the seal of the Government of the Philippine Islands to be
affixed.
"Done at the city of Manila this 18th day of March, in the year
of our Lord nineteen hundred and eighteen.
(Sgd.) FRANCIS BURTON HARRISON,
" [SEAL] "Governor-General.
"Served on Mr. Dick at 4 p. m., 18/3/18.
(Sgd.) ’GEORGE SEAVER,
"Chief of Police."
The record of the proceedings had in the course of the
investigation referred to in the executive order is before us, and
216
discloses that a "hearing" was conducted by Colonel D. P.
Quinlan, Inspector General of the Philippine National Guard,
Commissioner, under the following
authority:jgc:chanrobles.com.ph
"OFFICE OF THE GOVERNOR-GENERAL OF THE PHILIPPINE
ISLANDS.
"February 23, 1918.
"SIR: Pursuant to authority vested in me by section sixty-nine of
Act 2711, known as the Administrative Code of 1917, you are
hereby designated as the agent of the Governor-General for the
purpose of investigating and reporting upon charges which
have been preferred against R. McCulloch Dick, the editor and
proprietor of the Philippines Free Press, a periodical published
weekly in the city of Manila, in connection with the publication
of certain articles in that paper which tend to obstruct the
Government of the Philippine Islands in policies inaugurated for
the prosecution of the war between the United States and the
German Empire, and other articles which have tended to create
a feeling of unrest and uneasiness in the community. It is
desired that you submit your report of this investigation to the
Governor-General at the earliest possible date.
Very respectfully.
(Sgd.) FRANCIS BURTON HARRISON,
"Governor-General
"Colonel D. P. QUINLAN,
"Philippine National Guard, Manila."
It further appears that on February 25, 1918, notice in writing
that a hearing would be had in pursuance of the above-cited
executive order on March 1, 1918, was duly served upon, and
accepted by the petitioner; that the petitioner was present at
the hearing, and was heard by himself and counsel; that he
produced witnesses in his own behalf, and was allowed to
cross-examine the opposing witnesses; and that at the
conclusion of the hearing, counsel for the petitioner made the
following statement:jgc:chanrobles.com.ph
"I want to thank the Commissioner for his courtesy throughout
the matter. I am sure that his conduct has been absolutely
impartial, and I have no complaint to make. I don’t know how
the investigation could have been conducted along fairer
broader lines, than it has been conducted, and I am sure that
Colonel Quinlan’s standing as an Army officer will not be at all
prejudiced by anything he has done or what has occurred at this
investigation."cralaw virtua1aw library
217
These summary proceedings were set in motion by a complaint
filed by a number of officers of the National Guard, in the form
of a protest as follows:jgc:chanrobles.com.ph
"Whereas the weekly ’Free Press’ has for sometime been
devoting its columns to a malicious campaign of discredit
against the National Guard and its officials;
"Whereas the National Guard represents one of the most noble
ideals of the Filipino people and one of the most sincere proofs
of the loyalty of this country to the cause of the United States;
"Whereas this campaign of defamation and discredit carried
out by the said weekly, published and edited by Americans,
tends to belittle the National Guard and might in its effects,
create discord between Americans and Filipinos, just at the
moment that the latter have staked its honor and its word with
America in this war;
"Whereas even admitting that in the ranks of the National
Guard there may exist some soldiers who with their actions
dishonor the uniform they wear — which after all occurs in
every human institution even the most sacred — the campaign
of the Free Press could not be considered as an honest one, but
this weekly is in fact pouring distrust and sarcasm of the most
venemous character;
"Whereas the Free Press in reporting certain dishonorable acts
of certain soldiers has not taken the pains to inquire as to the
penalty which the rules apply to those who do not honor the
uniform, thus doing rank injustice to the authorities of the
National Guard and the good name of this organization;
"Whereas the habitual malign conduct of the Free Press in its
campaigns of discredit renders its ratifications to be as
meaningless as its attacks;
"Be it therefore resolved, that an energetic protest be made, as
it is hereby made, admitting of no rectifications, against the
base conduct of the weekly Free Press and to denounce its
attitude before the Government and the entire community of
the Philippines as showing this weekly to be the worst enemy
of the people’s ideals and of the National Guard, in using its
columns to humiliate not only before the eyes of strangers but
of the Filipinos as well, the National Guard in its period of
formation and development.
[Translated from the original in Spanish. ]
The specific charges upon which the investigation was based
will be found in the following copy of the notice served upon
the petitioner at the outset of the proceedings;
"121 ARZOBISPO, MANILA, P. I.,
218
"February 23, 1918.
"Mr. R. MCCULLOCH DICK,
"Editor and proprietor, Philippines Free Press, Manila, P. I
"SIR: The attention of His Excellency the Governor-General of
the Philippine Islands has been called to certain articles
appearing in the Philippines Free Press, a periodical published
in the city of Manila in which you appear as editor and
proprietor. Aside from those matters in your previous issues
relevant to show inclination or intent, the particular matter
which is referred to him as a charge against you is that
contained in articles in the issue of the Press of February
16,1918, in connection with National Guard.
"The specific publications forming the basis of these charges
appear in column 1, on page 1 of the issue of February 16, 1918,
and in the opening paragraph of the second column of page
sixteen of the same issue. The allegation being that the
indictment contained therein is not only a wholesale untruth
but that its publication even in the event of guilt of individuals,
— a condition not proven — the arraignment of a body of
citizens of the Philippine Islands included in its military force, is
without warrant, and also that in view of the fact that the
United States Government is a belligerent in the present war,
and that the Congress of the United States having authorized
the use of this force, your attempt tends not only to bring it into
ridicule but also is an unjust, unlawful, malicious, and
essentially seditious publication, and cannot be considered
other than as prima facie tending to obstruct the Government
of the Philippine Islands in the formation of measures
inaugurated for the prosecution of the war between the United
States and the German Empire, and its policies with respect to
these nations and peoples associated with it in the
performance of the war objects.
"Pursuant to authority vested in His Excellency the Governor-
General of the Philippine Islands, by section 69 of Act 2711,
known as the Administrative Code of 1917, the undersigned has
been designated as the agent of the Governor-General for the
purpose of investigating and reporting upon your conduct and
responsibility in connection with the publication of these
articles, which I am directed to have you consider as forming
the basis of charges lodged against you with the Governor-
General, the publication of which it is charged, that to obstruct
the Government of the Philippine Islands in policies
inaugurated for the prosecution of the war between the United
States and the German Empire, and that these specific
publications with other articles in your paper in criticism of the
allied efforts in prosecution of this war, or the policies of our
associates in this war all of which apparently show that your
interest in publishing the latter articles obstructs the
Government of the United States and tends to create a feeling
of unrest and uneasiness in the community, and marks the
party responsible for the Policies and declarations in your paper
219
as being designatedly hostile to the paramount interests of the
power exercising sovereignty in these Islands and the measures
of the Philippine people inaugurated to support those policies.
"As the procedure prescribed by section sixty-nine of the
Administrative Code is to be observed in this particular case, I
take the liberty of quoting it here in full:jgc:chanrobles.com.ph
"‘SEC. 69. Deportation of subject of a foreign power. — A
subject of a foreign power residing in the Philippine Islands shall
not be deported, expelled, or excluded from said Islands or
repatriated to his own country by the Governor-General except
upon prior investigation, conducted by said executive or his
authorized agent, of the ground upon which such action is
contemplated. In such case the person concerned shall be
informed of the charge or charges against him and he shall be
allowed not less than three days for the preparation of his
defense. He shall also have the right to be heard by himself or
counsel, to produce witnesses in his own behalf, and to cross-
examine the opposing witnesses.’
"I will conduct this hearing in the Office of the Adjutant-General
of the National Guard at 121 Calle Arzobispo of this city, Friday
morning at 9 o’clock, March 1, 1918; said hearing to continue
throughout the day until completed My function, you are
advised, is solely administrative and confined to a hearing of
and a report upon the facts.
(Sgd.) "D. P. Q.,
"DENNIS P. QUINLAN, Colonel and Inspector General,
N. G., P. I."cralaw virtua1aw library
One of the articles, upon which these charges were based
appeared on the first page of the Philippine Free Press of
February 16, 1918, under a striking cartoon giving point to the
contents. It is as follows:jgc:chanrobles.com.ph
"It hasn’t come yet, but it is expected soon, that call of
President Wilson which will incorporate the Philippine National
Guard in the national forces of the United States. And, when it
comes, look out! For it brings with it an increase of the base pay
of a soldier of the Guard from P12 a month to P60 a month, and
clothes and chow, and, my! what chow! The best in the world!
For Uncle Sam thinks nothing too good for his soldier boys.
"And you just watch ’em when the call comes. Talk about a
dearth of patriots for the Guard! Why, the moment the news
gets around that you can get P60 a month and your belly full by
enlisting, just see them come — see them streak for the
recruiting office! Behold the cocinero drops his frying-pan, the
muchacho his dishrag, the cochero his whip, the cargador his
pinga, the escribiente his pen, the farmhand his bolo. See them
hit the high places! For who, after slaving for eight and nine and
ten and fifteen and twenty pesos a month wouldn’t jump at the
220
chance to be a soldier and carry a gun and have a fine and easy
time at pesos sixty! Talk about manna from the skies! Talk
about the world with a fence around it! Talk about heaven on
earth! Talk about Jay Gould and Carnegie and Roths-child and
Rockefeller! Piff!
"Flanders mud, you say, and being blown to pieces with a big
Black Maria? Why, at P60 a month our Juans and Pedros and
Dalmacios will eat Flanders and dance ragtime to the tune of
the Black Marias.
"If ever that call come there is going to be one great and awful
time here. And there is going to be some tall swearing in proud
Castillian. For the market in cocheros and muchachos and
cocineros is going to be tight as a drum and they will simply turn
up their noses disdainfully at anything less than the wages of
the Guard — P60 a month. What ho! the Guard!"
The second article to which specific reference was made by
Colonel Quinlan was published in the editorial column of the
same issue of the Free Press, and is as
follows:jgc:chanrobles.com.ph
"KNOW HOW TO FORAGE.
"If the men of the Philippine National Guard can fight like they
can steal then the Kaiser and his legions had better beat it
before the boys from the Philippine are sent ’over there. The
details of the first case which appeared in the papers have
slipped us now. It was not long thereafter, however, till there
was recorded the Manila Hotel case, where the turkeys kept
disappearing. When the watch was set during the night and the
thief caught — National Guard! Then there was the case of a
candidate for a commission as officer of the Guard. Took off his
coat, he did, to be measured for the physical test. When he
came to put it on again, lo, his watch was gone. Again a
guardsman! The latest testimonial to the Guards’ ability to get
away with things comes from the Carnival! When the cakes
mysteriously disappeared from the Tea Cup Inn on the last
night of the big festival, it was to the tent of the sentries that
the telltale tracks led, and there were found the crumbs of the
midnight feast. Again the Guard! In one of Shakespeare’s plays
there is mention of three soldier rogues in buckram. The guard
is not in buckram, but apparently it has its rogues."cralaw
virtua1aw library
It is agreed on all sides, and expressly admitted by counsel for
the petitioner, that if the Governor-General of the Philippine
Islands has power to deport aliens as an act of state; and if he
has followed the procedure marked out for the exercise of that
power in section 69 of the Administrative Code; and if the
petitioner is a "subject of a foreign power;" this court has no
power to interfere with or to control the action of the
Governor-General in ordering the deportation of the petitioner.
221
If the discretionary power to deport aliens, as an act of state,
has been conferred upon the Governor-General, to be
exercised by him upon his own opinion as to whether the facts
disclosed by an investigation had in accord with section 69 of
the Administrative Code, justify or necessitate deportation in a
particular case, he is the sole and exclusive judge of the
existence of those facts, and no other tribunal is at liberty to
reexamine or to controvert the sufficiency of the evidence on
which he acted. (Martin v. Mott [1827], 12 Wheat., 19, 31.)
Upon both principle and authority the proposition thus stated
is not open to question (Cf. Severino v. The Governor-General
of the Philippine Islands and Provincial Board of Occidental
Negros, 16 Phil. Rep., 366, and cases there cited); and although
it has been suggested that the power of the courts to review
the action of the Chief Executive is subject to further
limitations, we do not deem it necessary to consider or to
determine at this time the precise line of demarcation of
judicial and executive authority in cases such as that now under
consideration, because we are satisfied that the petitioner’s
prayer for discharge from custody must be denied upon the
specific grounds which he himself admits to be sufficient, if they
exist, to deprive us of power to interfere with or to control the
action of the Governor-General in ordering his deportation.
We are of opinion that the Governor-General of the Philippine
Islands has power to deport aliens as an act of state, "upon
prior investigation" conducted in the manner and form
prescribed in section 69 of the Administrative Code; that in
ordering the deportation of the petitioner he followed the
procedure marked out for the exercise of that power in section
69 of the Administrative Code; and that the petitioner is a
"subject of a foreign power" as that term is used in this section
of the code.
We shall take up each of these propositions for consideration
separately, but for convinience, they will be examined in
inverse order.
(1) Petitioner is a "subject of a foreign power" as that term is
used in section 69 of the Administrative Code.
The record discloses and it is expressly admitted that petitioner
was born in Scotland, a subject of His Britannic Majesty the King
of England; that he came to the United States during his
minority; that he declared his intention to renounce his
allegiance to the King of England and to become a citizen of the
United States in the year 1902, in a court of competent
jurisdiction in the State of New York; that not long thereafter
he came to the Philippine Islands and has continued to reside
here ever since; that in the year 1912, after having been denied
an American passport, he secured a British passport from the
British Consul-General in Manila, and travelled under its
protection in the United States and Europe; that on that
occasion he visited his old home in Scotland; and that since
declaring his intention to become a citizen of the United States,
222
in the year 1902, he has taken no further steps looking to his
naturalization other than to maintain his domicile, and to
continue to reside within the territory of the United States.
We are of opinion that any such rights as the petitioner may
have acquired by virtue of the declaration of his intention to
become a citizen, fifteen years ago, have been lost by the lapse
of time without taking any further steps to become naturalized,
and by his acceptance and use of a British passport in the year
1912; and we are of opinion, further, that he did not cease to
be an alien and a subject of a foreign state by virtue of his mere
declaration of intention to become a citizen of the United
States.
It would seem unnecessary to enter upon an extended
discussion of the grounds upon which we rest our conclusions
in this regard, and we content ourselves with some citations of
textbook and other authority which, as we think, sufficiently
dispose of all the contentions of counsel for the petitioner upon
this branch of the case.
"Effect of declaration of intention. — Though mere declaration
of intention in no wise confers citizenship or absolves the party
making it from allegiance to the Government of the country
from which he comes, yet our Secretary of State is authorized
by Act of Congress to issue passports, at his discretion, to
persons who are not fully naturalized in certain cases."
(Hershey’s International Law, pp. 251-2; sec. 1, Act of March 2,
1907.)
The Act of Congress referred to
provides:jgc:chanrobles.com.ph
"Where any person has made a declaration of intention to
become such a citizen as provided by law, and has resided in
the United States for three years, a passport may be issued to
him entitling him to the protection of the Government in any
foreign country: Provided, That such passport shall not be valid
for more than six months and shall not be renewed, and that
such passport shall not entitle the holder to the protection of
this Government in the country of which he was a citizen prior
to making such declaration of intention." (Sec. 1 of Act of March
2, 1907.)
"Clearly, an alien is not naturalized until the order divesting him
of his former nationality and making him a citizen of the United
States has been signed by a judge of a court having jurisdiction."
(26 Ops. Atty. Gen., [1906-1908] 612.)
"A mere ’declaration of intention’ by an alien, under the
naturalization laws of the United States, to become a citizen,
&c., and to renounce all allegiance to a foreign, his natural
sovereign, in a judicial point of view, is not sufficient of itself,
and without being perfected by an actual renunciation, to
223
prevent such alien from being regarded as a ’foreign citizen or
subject,’ . . . ." (Baird v. Byrne [C. C., 1853] Fed. Cas. No. 757.)
"A foreign-born resident of the United States, who has merely
declared his intention to become a citizen, but has never
complied with any other provision of the naturalization laws, is
none the less an alien," although he may have been given the
right to vote by state laws. (City of Minneapolis v. Reum [1893],
56 Fed., 576, 6 C. C. A., 31.)
"A declaration of intention to become a citizen of the United
States does not make one a naturalized citizen." (Creagh v.
Equitable Life Assur. Soc. [C. C., 1898l, 88 Fed., 1; 11 U. S.
Compiled Statutes, 1916, Ann., 14034.)
"An alien’s declaration of his intention to become a citizen of
the United States did not make him a citizen, he never having
taken out his naturalization papers." (Minneapolis v. Reum
[1893], 56 Fed., 576, 578; 6 C. C. A., 31; Wallenburg v. Missouri
Pac. Ry. Co. [C. C., 1908], 159 Fed., 217; In re Polsson, Id., 283;
Dorsey v. Brigham [1898], 52 N. E., 303; 177, Ill., 250; 42 L. R.
A., 809; 69 Am. St. Rep., 228; State v. Collister [1905], 27 Ohio
Cir. Ct. R., 529.)
"Mere declaration of intention does not confer citizenship upon
the declarant. The declaration is merely an expression of
purpose, and has not the effect, either of naturalization or
expatriation. By it the alien simply records his intention to
renounce his present allegiance on becoming a citizen of the
United States. He remains an alien until naturalization is
complete according to our laws." (Lans v. Randall, 4 Dill., 425;
Fed. Cas. No. 8,080; Maloy v. Duden, 25 Fed., 673; Re Moses,
82 Fed., 995.)
x x x
"While the laws of several of the states of the Union extend the
right of suffrage to aliens who have declared their intention to
become citizens of the United States, a State cannot make the
subject of a foreign government a citizen of the United States,
or confer on him the rights and privileges appertaining to such
citizenship.
x x x
"A state may confer on foreign citizens or subjects all the rights
and privileges it has the power to bestow, but when it has done
all this, it has not naturalized them. They are foreign citizens or
subjects still, within the meaning of the Constitution and laws
of the United States. See also Boyd v. Nebraska, 143 U. S., 160;
36 L. ed., 109; 12 Sup. Ct. Rep., 375." (Van Dyne Citizenship of
the U. S., pp. 66-67.)
224
"The provision of the Naturalization Act of June 29 1906, c.
3592, 84, 34 Stat., 596 [U. S. Comp. St. Supp. 1907, p. 421],
requiring a petition for naturalization to be filed not less than
two nor more than seven years after the declaration of
intention is in the nature of a statute of limitation, and since it
contains no language indicating a contrary intention must be so
construed as not to cut off the privilege of aliens who had made
declaration of intention prior to its enactment to become
citizens, but in such cases to give them seven years thereafter
within which to file their petition." (In re Wehrli [D. C., 1907],
157 Fed., 938; Eichhorst v. Lindsay [D. C., 1913~, 209 Fed., 708;
U. S. v. Lengyel [D. C., 1915] , 220 Fed., 720; 5 U. S Compiled
Statutes [1916], 5224.)
Rules governing the granting and issuing of passports to those
who have declared their intention to become citizens of the
United States:jgc:chanrobles.com.ph
"(1) The first section of the Act approved March 2, 1907, ’in
reference to the expatriation of citizens and their protection
abroad,’ provides ’That the Secretary of State shall be
authorized, in his discretion, to issue passports to persons not
citizens of the United States as follows: Where any person has
made a declaration of intention to become such a citizen as
provided by law and has resided in the United States for three
years, a passport may be issued to him entitling him to the
protection of this Government in any foreign country; Provided,
That such passport shall not be valid for more than six months
and shall not be renewed, and that such passport shall not
entitle the holder to the protection of this Government in the
country of which he was a citizen prior to making such
declaration of intention.’
"(2) This section is not intended to confer upon persons who
have only declared their intention to become citizens a general
right to receive passports upon application. Such passports will
be issued only when it is affirmatively shown to the Secretary
of State that some special exigency requires the temporary
absence of the applicant from the United States, and that
without such absence the applicant would be subjected to
special hardship or injury. Under this law passports cannot be
issued to declarants who intend visiting their native lands.
"(3) Such passports will not be issued to those who have made
the declaration of intention and who have failed, through their
own neglect, to complete their intention and secure
naturalization as citizens of the United States; nor to those who
may make the declaration of intention in order to secure
passports and leave the United States, nor shall more than one
such passport be issued to any applicant.
"(4) It is therefore ordered that before a passport shall be
issued to anyone who has made the declaration of intention to
become a citizen of the United States the following facts shall
be established to the satisfaction of the Secretary of
State:jgc:chanrobles.com.ph
225
"(f) That the applicant has not applied for or obtained a
passport from any other Government since he declared his
intention to become a citizen of the United States.
(Sgd.) ’W. J. BRYAN.
"DEPARTMENT OF STATE,
"Washington, June 1, 1915.
"In the case of George Adam v. The United States, No. 4, before
the claims commission under the treaty of Washington of May
8, 1871, it appeared that the claimant, who was born in London
in 1827, emigrated to the United States in 1850, that he had
since continuously resided in the latter country, and that in
1859, he declared his intention to become a citizen of the
United States. The United States demurred to the memorial on
the ground, among others, that the claimant was not a British
subject within the true meaning of the treaty; that the
declaration of intention was, ’of itself,’ ’a complete
renunciation of all claims upon the intervention or protection
of the sovereign’ whose allegiance he had announced his
intention to abjure; that this declaration by the laws of many, if
not all of the United States gave him, of itself, many of the rights
of a citizen; that it certainly put him, so long as he remained in
the United States, under the protection of that Government for
international purposes; that in the case of Koszta it was
asserted by the United States as a sufficient ground for
protection even while abroad; and that it subjected the
claimant, by the laws and usages of the United States, to
conscription and enrollment for military service.
"Counsel for Great Britain replied that the claimant’s
declaration of intention worked ’no change in his status under
the law of nations;’ that the intention so declared might be
abandoned at pleasure; that while it ’might furnish to his
sovereign a sufficient reason to decline interference in his
behalf,’ it ’did not purport to bring him under any new
obligation to the country which he then intended to adopt;’
that the British Government had not declined to protect him,
but on the contrary presented his claim for indemnity; that the
declaration gave him no right ’as a citizen of the United States;’
that the rights which might result under State laws did not
affect his condition as an alien; that he could not so much as
claim from the United States a passport for his protection
abroad; that the case of Koszta was without precedent, and had
been repudiated by the United States itself, so far as it had been
appealed to as recognizing the right of persons by virtue of a
declaration of intention to be considered as citizens of the
United States; that the statute of the United States authorizing
the conscription of such persons did not pretend to change
their allegiance, and gave them no rights or privileges in
consequences of the conscription."cralaw virtua1aw library
226
Similar facts and arguments were presented in other cases. The
commissioners unanimously rendered the following
opinion:jgc:chanrobles.com.ph
"‘The question is raised as to whether in consequence of the
claimants having declared their intention to become citizens of
the United States and to renounce their allegiance to Her
Britannic Majesty they have ceased to be British subjects within
the meaning of the treaty. We are of opinion that
notwithstanding the claimants having expressed their
intention, they still remain British subjects until, the necessary
formalities having been completed, they acted upon the
intention so expressed.’" (See Hale’s Report, 14 Am. and British
Claims Commission, treaty of May 8, 1871; Moore,
International Arbitrations, Vol. 3, pp. 2552-2553.)
By the Act of Congress approved March 2, 1907, the right of
expatriation is expressly declared, and all claims that
naturalized American citizens, with their descendants, continue
to be subjects of foreign states, are "finally disavowed;" and the
Secretary of State is authorized, in his discretion, to issue
passports to certain persons "not citizens of the United States,"
including under certain conditions "any person who has made
a declaration of intention to become such citizens." But the
express disavowal of claims that naturalized citizens continue
to be subjects of foreign states after their naturalization,
considered together with the omission of any such disavowal
as to persons who have merely declared their intention to
become such citizens; and the restrictions and limitations
placed upon the rights and privileges of such persons, especially
the prohibition upon the issuance to them of passports to visit
their native lands, quite clearly disclose the recognition on the
part of Congress of the settled doctrine of International Law
that an alien does not cease to be an alien and a subject of a
foreign state, by the mere declaration of his intention to
become a citizen of the United States. The right of expatriation
is declared in the Act in the following
language:jgc:chanrobles.com.ph
"Whereas the right of expatriation is a natural and inherent
right of all people, indispensable to the enjoyment of the rights
of the life, liberty, and the pursuit of happiness; and whereas in
the recognition of this principle this Government has freely
received emigrants from all nations and invested them with the
rights of citizenship; and whereas it is claimed that such
American citizens, with their descendants, are subjects of
foreign states, owing allegiance to the governments thereof;
and whereas it is necessary to the maintenance of public peace
that this claim of foreign allegiance should be promptly and
finally disavowed: Therefore any declaration, instruction,
opinion, order, or decision of any officer of the United States
which denies, restricts, impairs, or questions the right of
expatriation, is declared inconsistent with the fundamental
principles of the Republic." (United States Compiled Statutes,
1916, vol. 4, pp. 3952-3955.)
227
(2) The procedure marked out in section 69 of the
Administrative Code of 1917, for the exercise by the Governor-
General of the power to deport, has been followed in every
particular in the instant case.
As we understand it, there is no divergence of opinion among
the members of the court as to this proposition Certainly we
have heard none. Extended discussion is therefore
unnecessary.
A cursory examination of the record, or of the admitted facts
set out in the statement of the case at the beginning of this
opinion, will remove all doubt in this regard.
(3) The Governor-General of the Philippine Islands has power
to deport aliens, as an act of state, upon prior investigation
conducted in the manner and form prescribed in section 69 of
the Administrative Code.
Resting our conclusion in this regard upon the provisions of
section 69 of the Administrative Code of 1917, read in the light
of the rulings of the Supreme Court of the United States in the
case of Tiaco v. Forbes (228 U. S., 551), it is not necessary, at
this time, to determine whether, under the various organic acts
of the Philippine Government, the power to deport aliens, as
an act of state, is vested in the Governor-General "by virtue of
his office alone," subject merely to regulation by the Philippine
Legislature; or whether his authority in the premises is derived
wholly from the Philippine Legislature by virtue of a grant of
power, express or implied, in section 69 of the Administrative
Code of 1917; because deportations of aliens by the Governor-
General, as an act of state, upon prior investigation conducted
in the manner and form prescribed in section 69 of the
Administrative Code may properly be regarded as made "under
the combined powers" of the Governor-General and the
Philippine Legislature; authority for such deportations having
been conferred upon the Governor-General, so far as that may
be necessary, by the provisions of that section, as we believe
and shall endeavor to show hereafter.
We may, therefore, dispose of most of the contentions of
counsel for petitioner as to the lack of power of the Governor-
General in the premises, in the very language of the Supreme
Court of the United States in the case of Tiaco v. Forbes (228,
U. S. 549):jgc:chanrobles.com.ph
"The deportation is to be considered as having been ordered by
the Governor-General in pursuance of a statute of the
Philippine Legislature directing it, under their combined
powers, and it is unnecessary to consider whether he had
authority by virtue of his office alone, as declared by the
statute, or whether, if he had not, he had immunity from suit
for such an official act done in good faith. The former matter
now is regulated by a later statute providing for a hearing, etc.
(No. 2113. February 1, 1912.) On the question thus narrowed
the preliminaries are plain. It is admitted that sovereign states
228
have inherent power to deport aliens, and seemingly that
Congress is not deprived of this power by the Constitution of
the United States. (Fong Yue Ting v. United States, 149 U. S.,
698, 707 728; Wong Wing v. United States, 185 U. S., 296, 302,
Turner v. Williams, 194 U. S., 279, 289, 290.) Furthermore, the
very ground to the power in the necessities of public welfare
shows that it may have to be exercised in a summary way
through executive officers. (Fong Yue Ting v. United States,
.supra; United States v. Ju Toy 198 U. S., 253, 263; Moyer v.
Peabody, 212 U. S., 78, 84, 85.) So that the question is narrowed
further to the inquiry whether the Philippine Government can
not do what unquestionably Congress might.
"As Congress is not prevented by the Constitution, the
Philippine Government can not be prevented by the Philippine
Bill of Rights alone. (Act of July 1, 1902, c. 1369, sec. 5; 32 Stat.,
691, 692.) Deporting the plaintiffs was not depriving them of
liberty without due process of law, unless on other grounds the
local government was acting beyond its powers. But the local
government has all civil and judicial power necessary to govern
the Islands. (Act of March 2, 1901, c. 803; 31 Stat., 895, 910; Act
of July 1, 1902, c. 1369, sec. 1; 32 Stat., 691.) The forms are
difrent, but as in Hawaii the proximate source of private rights
is local, whether they spring by inheritance from Spain or are
created by the Philippine Legislature. (See Kawananakos v.
Polyblank, 205 U. S., 349, 354; Perez v. Fernandez, 202 U. S., 80,
91, 92.) It would be strange if a Government so remote should
be held bound to wait for the action of Congress in a matter
that might touch its life unless dealt with at once and on the
spot. On the contrary, we are of opinion that it had the power
as an incident of the self-determination, however, limited,
given to it by the United States.
"By section 86 of the Act of July 1, 1902, all laws passed by the
Philippine Government are to be reported to Congress, which
reserves power to annul them. It is worthy of mention that the
law under consideration was reported to Congress and has not
been annulled. The extension of the Chinese exclusion and
immigration laws to the Philippine Islands has no bearing on the
matter. The right to remain, for instance, under the Act of April
29, 1902, c. 611, section 4; 32 Stat., 176, does not prevail over
a removal as an act of state."cralaw virtua1aw library
The argument for plaintiff in error in the Tiaco v. Forbes case in
the Supreme Court of the United States has been renewed on
this occasion, and we here insert an extract, or summary of the
contentions of counsel for the plaintiff in error in the former
case, as found in the report of that case (228 U. S., 551),
because the disposition of these contentions in the above-cited
opinion of the Supreme Court of the United States relieves us
of the burden of extended discussion of many, if not most, of
the contentions of counsel for the petitioner in this case.
Counsel for the plaintiff in error in the former case contended
fruitlessly that:jgc:chanrobles.com.ph
229
"The Government of the Philippine Islands has no power to
deport aliens.
"The authorities cited on the existence of an inherent power to
deport foreigners sustain the proposition only as to sovereign
states in which that power is inherent as an essential element
of sovereignty. That power does exist inherently in sovereign
states.
"The Philippine Government, however, is not a sovereign
community, at least in an international sense, but a mere
dependency of the United States, limited to the exercise of such
powers only as those with which it is vested by its organic act.
"Since the source of all power in the government of the
Philippine Islands is the Congress of the United States, it must
follow that if it has the power to expel aliens it must have been
granted that power by Congress, either directly or by necessary
implication.
"While Congress may assign to Federal officers, either in the
United States or the Philippine Islands, the power to execute
the provisions of such acts as Congress may pass regulating the
exclusion or expulsion of foreigners from territory subject to
the dominion of the United States, it is at least extremely
doubtful whether it could delegate to the Philippine
Government its sovereign power to exclude aliens.
(Stoutenburgh v. Hennick, 129 U. S., 141.) In any event this
power could only be exercised subject to the limitation of ’the
due-process clause of the Federal Constitution and the
Philippine Bill of Rights.
"Congress has not delegated to the Philippine Government the
power to exclude or expel foreigners.
"The power was not delegated by the President’s instructions
to the Commission of April 7, 1900; the Executive Order of June
21, 1901; the Spooner Amendment; or the Organic Act of July
1, 1902. (See 26 Ops. Atty. Gen., [Dec. 10, 1906], pp. 91, 96;
Ops. Atty. Gen., pp. 534, 541.)
"Congress had already acted.
"Aside from the absence of authority to be found in the Organic
Act of the Philippines conferring the right, Congress, both prior
to and after the passage of the Organic Act, had legislated for
the Philippines regarding the regulation of the admission and
exclusion of foreigners. (See Act of April 29, 1902, making all
the Chinese exclusion laws in force in the United States
applicable to the Philippines; also section 33 of the Immigration
Act of March 3, 1903; section 33 of the present Immigration Act
in force; section 6 of the Act of February 6, 1905.)
"The regulation of the admission or exclusion of all aliens into
or from the Philippine Islands was a subject never entrusted to
the Government or its officers (except to the extent of
230
enforcing the immigration and exclusion laws of the United
States applicable to the Philippines). (In re Allen, 2 Phil. Rep.,
630.)
"The regulation of the conditions under which foreigners may
enter into and reside in the territory of the United States is
incidental to the general and exclusive power vested in
Congress to regulate commerce with foreign nations.
"The Governor-General has no such power.
"There being no power in the Philippine Legislature to legislate
regarding the exclusion of foreigners from the Philippines in the
first instance, their action could not constitute a ratification of
what was done by the Governor-General.
"The deportation of the plaintiffs in error was without due
process of law.
"The subject of the exclusion or expulsion of foreigners from
any portion of the vast domains of the United States is one over
which Congress has complete control.
"Congress would not concede to a dependent community
powers inherent in the United States as a sovereign member of
the family of nations, and powers which the various States of
the Union have essayed in vain to exercise.
"The plaintiffs in error were entitled to maintain their residence
in the Philippines under the Chinese Exclusion Laws and for
these and other reasons their deportation was illegal and
without due process of law."cralaw virtua1aw library
It is urged, however, that since the date of the decision of the
Supreme Court of the United States in the Tiaco v. Forbes case
(May 5, 1913) congressional legislation has deprived the
Governor-General and the Philippine Legislature of authority to
deport aliens except as therein provided, even when acting
under their combined powers.
The Act of Congress approved August 29, 1916 (popularly
known as the Jones Law); and the Act of Congress which
became law over the veto of the President, February 5, 1917
(The Immigration Law), are relied upon in support of this
contention.
(A) But the Jones Law (Act of August 29, 1916) as expressly
appears from its preamble was enacted "to provide a more
autonomous Government" for the Philippine Islands, and the
reasons assigned in the former case for the recognition of the
power to deport aliens in the government of the Philippine
Islands "as an incident of the self-determination, however
limited, given to it by the United States," apply with even
greater force under that statute than under the earlier organic
Act (Act of March 2, 1901 and Act of July 1, 1902.)
231
Furthermore, the Jones Law (section 6) expressly continued "in
force and effect" all laws then "in force" in the Philippine Islands
(except as altered, amended, or modified by its terms or by
subsequent legislation), including section 83 of the
Administrative Code of 1916 (which incorporated the
provisions of Act No. 2113, and is identical with section 69 of
the Administrative Code of 1917). Prior to the enactment of the
Jones Law, this court, in an unanimous opinion in the Chan Yick
Sam case, promulgated October 1, 1915 (31 Phil. Rep., 560),
had expressly construed the language used in Act No. 2113 and
held that under its provisions the Governor-General was
authorized to institute and maintain deportation proceedings
in the manner and form prescribed therein. It will be seen,
therefore, that far from depriving the Governor-General and
the Philippine Legislature of authority to deport aliens, the
Jones Law expressly ratified and continued in force the
statutory grant by the Philippine Legislature of authority to the
Governor-General to deport aliens "upon investigation"
conducted in the manner and form prescribed in these statutes.
Some question is now raised as to the correctness of the
construction placed upon the provisions of the Philippine
statute (Act No. 2113) in the Chan Yick Sam case (supra) and it
is urged that, correctly construed, the language of this statute
was not intended to confer authority, and should be held to
furnish merely the procedure by which the action of the
Governor-General must be regulated in the deportation of
aliens.
We do not agree with these contentions, as will appear at
greater length hereafter. But even if it were true that the court
erred in its interpretation of the language of the statute in the
Chan Yick Sam case (supra), we think that under well-settled
rules of statutory construction, this statute, when incorporated
into and "continued in force" as a part of the Administrative
Code, after it had been construed by this court; and when
ratified and again "continued in force" by the enactment by
Congress of the Jones Law; must be held to have been thus
"continued in force" by Congress and the Philippine Legislature
with the meaning and effect placed upon it in the Chan Yick Sam
decision (supra); that is to say, as a grant of regulated power to
deport aliens after investigation conducted in the manner and
form prescribed in the statute.
When the provisions of Act No. 2113 were enacted and
"continued in force" by the enactment of the Administrative
Code, and again "continued in force" by the enactment of the
Jones Law the construction theretofore placed upon it by this
court became an integral part of these statutes "having the
force and effect of a legislative command."cralaw virtua1aw
library
Supported by numerous citations of authority the doctrine is
set forth as follows by Sutherland in his work on Statutory
Construction (vol. II, 2d. ed., sections 403 and
404):jgc:chanrobles.com.ph
232
"403. In the interpretation of reenacted statutes the court will
follow the construction which they received when previously in
force. The legislature will be presumed to know the effect
which such statutes originally had, and by reenactment to
intend that they should again have the same effect. The same
rule applies to the readoption of a constitutional provision. It is
not necessary that a statute should be reenacted in identical
words in order that the rule may apply. It is sufficient if it is
reenacted in substantially the same words. The same principle
applies when a statutory provision is taken from a
constitutional provision which has been construed. The rule has
been held to apply to the reenactment of a statute which has
received a practical construction on the part of those who are
called upon to execute it. The Supreme Court of Nebraska says:
’Where the legislature in framing an act resorts to language
similar in its import to the language of other acts which have
received a practical construction by the executive departments
and by the legislature itself, it is fair to presume that the
language was used in the later act with a view to the
construction so given the earlier.’ . . .
"404. When a statute is adopted from another state or county
and such statute has previously been construed by the courts
of such state or county, the statute is deemed, as a general rule,
to have been adopted with the construction so given to it. The
same rule applies to the adoption of a constitutional provision
from another state. So when congress adopts a state statute for
the District of Columbia. Where the foreign statute is mainly
adopted, though not entirely and unchanged, the prior
decisions of the foreign court are held to be entitled to great
weight. Congress extended certain laws of Arkansas over the
Indian Territory, and it was held that the construction
previously placed upon them by the supreme court of Arkansas
should be followed. . . . It is held that the general rule should
not be departed from except for the strongest reasons."cralaw
virtua1aw library
(B) The contention that Congress, by the enactment of the
Immigration Act of 1917, and the extension of its provisions to
the Philippine Islands, "occupied the field," and thereby
deprived the Government of the Philippine Islands of power to
deport aliens, except as provided in the Act itself, would seem
to be substantially identical with the contention, adversely
disposed of by the Supreme Court of the United States in the
Tiaco v. Forbes case to the effect that "the subject of the
exclusion or expulsion of foreigners from any portion of the
vast domains of the United States is one over which Congress
has complete control" and that "Congress, both prior to and
after the passage of the Organic Act, had legislated for the
Philippines regarding the regulation of the admission and
exclusion of foreigners" by making the Chinese exclusion laws
applicable to the Philippine Islands and by the enactment of the
Immigration Acts of March 3, 1903, and of February 6, 1905.
233
In an attempt to distinguish the effect of the extention of the
Immigration Act of 1917 to the Philippine Islands, from that
given by the Supreme Court of the United States to the like
extension of the Chinese exclusion laws and the Immigration
Acts in force when the Tiaco v. Forbes decision was rendered,
it is contended that the express provisions in the Immigration
Act of 1917 for the regulation of the residence and the
deportation of immigrants, under the terms of section 19 of the
Act, is an implied negation of authority to the Government of
the Philippine Islands to deport aliens for any other reason
whatever. But it will be remembered that the Chinese exclusion
laws, in force when the Tiaco v. Forbes decision was rendered,
also contained provisions for the regulation of the residence
and the deportation of Chinese persons, and a like contention
as to the rights of the plaintiff in error in that case, who was a
Chinese person, to be exempt from deportation as an act of
state, for any reason not specified in the Chinese exclusion laws
and the Immigration Acts of 1903 and 1905, was fruitlessly
urged upon the Supreme Court of the United States.
As will be seen, in the citation from the opinion in the Tiaco v.
Forbes case (supra) the Supreme Court of the United States
dealt with these contentions very summarily merely observing
that "The extension of the Chinese exclusion and immigration
laws to the Philippine Islands has no bearing on the matter. The
right to remain, for instance, under the Act of April 29, 1902 (c.
641, par. 4, 32 Stat., 176), does not prevail over a removal as an
act of state." We think that a like disposition should be made of
the contentions of counsel based on the provisions of the
Immigration Act of 1917.
It is to be observed, furthermore, that the Immigration Act of
1917 expressly provides:jgc:chanrobles.com.ph
"That this Act shall be enforced in the Philippine Islands by the
officers of the general government thereof, unless and until it
is superseded by an act passed by the Philippine Legislature and
approved by the President of the United States to regulate
immigration in the Philippine Islands as authorized in the Act
entitled ’An Act to declare the purpose of the people of the
United States as to the future political status of the people of
the Philippine Islands, and to provide a more autonomous
government for those islands’ approved August twenty-ninth,
nineteen hundred and sixteen."cralaw virtua1aw library
This Act became law on February 5, 1917.
The provisions of the Act approved August 29, 1916, (the Jones
Law) referred to therein, is as follows:jgc:chanrobles.com.ph
"That while this Act provides that the Philippine Government
shall have the authority to enact a tariff law the trade relations
between the islands and the United States shall continue to be
governed exclusively by laws of the Congress of the United
States: Provided, That tariff acts or acts amendatory to the tariff
of the Philippine Islands shall not become law until they shall
234
receive the approval of the President of the United States, nor
shall any act of the Philippine Legislature affecting immigration
or the currency or coinage laws of the Philippines become a law
until it has been approved by the President of the United
States: Provided further, That the President shall approve or
disapprove any act mentioned in the foregoing proviso within
six months from and after its enactment and submission for his
approval, and if not disapproved within such time it shall
become a law the same as if it had been specifically approved."
(Sec. 10, Emphasis ours.)
Prior to the enactment of the Immigration Act, the Philippine
Legislature had provided in the Administrative Code of 1916, as
follows:jgc:chanrobles.com.ph
"A subject of a foreign power residing in the Philippine Islands
shall not be deported, expelled or excluded from said Islands or
repatriated to his own country by the Governor-General except
upon prior investigation, conducted by said Executive or his
authorized agent, of the ground upon which such action is
contemplated. In such case the person concerned shall be
informed of the charge or charges against him and he shall be
allowed not less than three days for the preparation of his
defense. He shall also have the right to be heard by himself or
counsel, to produce witnesses in his own behalf, and to cross-
examine the opposing witnesses." (Sec. 83.)
This provision of the Code of 1916 was repealed and reenacted
in identical terms, as section 69 of the Administrative Code of
1917, by the Philippine Legislature on March 10, 1917, that is
to say, subsequent to the date when the Immigration Act
became law over the veto of the President.
The Administrative Code of 1917 was approved by the
President on October 1, 1917.
As we have just said, we are of opinion that the extension of
the Immigration Act of 1917 to the Philippine Islands has no
bearing on the question of the power of the Philippine
Government to deport or expel aliens from these islands for
other reasons than those mentioned in that Act; and that the
right of the petitioner to remain under that Act "cannot prevail
over his removal as an act of state" of the Philippine
Government. But, assuming for the sake of argument, that we
are in error in this regard, and that the provisions of section 83
of the Code of 1916 were abrogated or repealed, in whole or in
part by the extention of the Immigration Act of 1917 to the
Philippine Islands, we are satisfied that the Immigration Act
itself must be held to have been superseded (under authority
of the above cited provisions of the Act itself) to precisely the
like extent, by the reenactment of the provisions of the former
code, in identical terms, as section 69 of the Administrative
Code of 1917, with the approval of the President of the United
States. If it be true that the provisions of section 83 of the
Administrative Code of 1916 were "affected" by the enactment
235
of the Act of Congress, it must also be true that the provisions
of the Act of Congress were "affected" to a like extent by the
enactment of section 69 of the Administrative Code of 1917
with the approval of the President of the United States. It
follows that the authority which was conferred by the
Legislature upon the Governor-General under the terms of
section 83 of the Administrative Code 1916 was in like manner
conferred upon him under the terms of section 69 of the
Administrative Code of 1917, unaffected by the provisions of
the Immigration Act from and after the day upon which that
code received the approval of the President.
The specious suggestion that section 69 of the Administrative
Code of 1917 was intended to furnish, or that it should be held
to furnish merely a set of regulations for the enforcement of
the Immigration Act of that year (Act of Congress of February 5,
1917) is manifestly at variance with the legislative history of this
statute, which is a reenactment in identical terms of section 83
of the Administrative Code of 1916, the latter statute
incorporating and continuing in force, with some slight
amendments, the provisions of Act No. 2113 approved
February 1, 1912.
The last contention made as to the lack of power in the
Governor-General which need be noticed may be stated as
follows:chanrob1es virtual 1aw library
Conceding that at the time when the Tiaco v. Forbes decision
was rendered by the Supreme Court of the United States, the
Philippine Government had power to deport aliens as an act of
state; and conceding that neither the Jones Law (Act of August
29, 1916), nor the Immigration Act of 1917, have had the effect
of depriving the Philippine Government of that power, so that
it continues in existence to this day; nevertheless, this case is to
be distinguished from the Tiaco v. Forbes case, in that the Act
of the Philippine Legislature (No. 1986) enacted April 19, 1910,
approving, ratifying and affirming the action of the Governor-
General in the former case, was equivalent to an express
authorization of the former deportation by the legislature
whereas, as it is claimed, there is no act of the Philippine
Legislature authorizing the Governor-General to order the
deportation in the instant case. It is urged that neither section
69 of the Administrative Code of 1917, nor section 83 of the
Administrative Code of 1916, nor Act No. 2113 of the Philippine
Legislature conferred or purported to confer any such authority
upon the Governor-General of the Philippine Islands.
It will readily be seen that this contention calls upon us for a
construction of the meaning and effect of our local statutes,
unaffected by any question as to the relation of these statutes
to congressional legislation or the provisions of the
Constitution of the United States.
We are of opinion that by the enactment of the series of
statutes just cited, the Philippine Legislature conferred upon
236
the Governor-General authority to deport subjects of foreign
powers, as an act of state, "upon prior investigation,"
conducted in the manner indicated in section 69 of the
Administrative Code of 1917.
As we have already indicated, this court was called upon, in the
case of Chan Yick Sam v. Prosecuting Attorney of Manila,
decided October 1, 1915 (31 Phil. Rep., 560), to consider the
meaning and effect of the provisions of Act No. 2113, enacted
February 1, 1912, and it was there held that this Act furnished
full and lawful authority to the Governor-General to proceed to
deport a foreigner.
The syllabus of that decision, prepared by the writer of the
opinion, is as follows:jgc:chanrobles.com.ph
"Held: Under the facts stated in the opinion, that the
prosecuting attorney of the city of Manila, in compliance with
an order of the Governor-General, has, in accordance with Act
No. 2113, the authority to examine witnesses concerning
certain charges against aliens who are suspected of inciting the
perpetration of certain acts against the safety, welfare, and
peace of the Chinese community in the city of Manila and of
being persons subject to deportation. (Forbes v. Chuoco Tiaco
and Crossfield, 16 Phil. Rep., 534; 228 U. S., 549.)"
In that case, which arose after the Tiaco v. Forbes case had been
decided by the Supreme Court of the United States, this court
sustained a ruling of the Court of First Instance of Manila
denying a writ of prohibition against the maintenance of
deportation proceedings instituted under and by authority of
Act No. 2113, and held that the act conferred the necessary
authority upon the Governor-General and his authorized
agents to institute and maintain such deportation proceedings.
It should be a sufficient answer to the contentions of counsel
as to the absence of legislative authority to deport the
petitioner, to refer to our ruling in the case just cited; but Act
No. 2113 having been superseded and incorporated in slightly
amended form in the Administrative Codes, and the argument
in favor of the grant of power having been strongly reenforced
thereby, it may not be amiss to reconsider the whole question
as raised in the instant case. To this end it will be well to review
the whole course of local legislation on this subject considered
in relation to the decisions of the courts with reference thereto.
Act No. 1986 of the Philippine Legislature, enacted April 19,
1910, is as follows:jgc:chanrobles.com.ph
"AN ACT CONFIRMING THE ACTION OF THE GOVERNOR-
GENERAL IN DEPORTING FROM THE PHILIPPINE ISLANDS, BY
REQUEST OF THE IMPERIAL CHINESE CONSUL-GENERAL, ON
AUGUST NINETEENTH, NINETEEN HUNDRED AND NINE,
CERTAIN PERSONS OF CHINESE NATIONALITY.
237
"Whereas the Governor-General has recently, at the request of
the representative of the Chinese Government, and in the
exercise of authority vested in him by law, authorized the
deportation from the Philippine Islands of twelve alien Chinese,
subjects of the Emperor of China, after careful investigation,
and upon being convinced, by the result of said investigation,
that the presence of the said individuals in the Philippine
Islands might result in serious harm to the Chinese colony and
constitute a serious danger to the public tranquility and
welfare; and
"Whereas, the Governor-General has sent a message to the
Legislature, setting forth the facts in regard to the matter,
therefore,
"By authority of the United States, be it enacted by the
Philippine Legislature, that:jgc:chanrobles.com.ph
"SECTION 1. The action of the Governor-General in deporting
from the Philippine Islands, at the request of the Imperial
Chinese Consul-General, on or about the nineteenth day of
August, nineteen hundred and nine, the twelve persons of the
Chinese race and subjects of the Emperor of China, is hereby
approved, ratified, confirmed, and in all respects declared legal,
and not subject to question or review.
"SEC. 2. The public good requiring the speedy enactment of this
bill, the same shall take effect on its pasage, in accordance with
section one of Act Numbered Nineteen hundred and forty-five
of the Philippine Legislature, entitled ’An Act providing the time
at which all Acts of the Philippine Legislature shall take effect.’"
This statute was enacted a few weeks after civil actions for
damages had been instituted by some of the Chinese deportees
against the Governor-General and the police officers who
executed his deportation order. Its evident purpose was to cure
any defect which might be found to exist in the authority of the
Governor-General in the premises; and although it expressly
recited in its preamble that he had ordered the deportation "in
the exercise of authority vested in him by law," it is very clear
that it was felt that the contentions of his counsel as to the
legality of the deportation order would be strengthened by an
express ratification of the order, which, as was later declared
by the Supreme Court of the United States, had the effect of an
express grant of power by the Legislature.
From the message of the Governor-General and the published
reports of the legislative and judicial proceedings incident to
the deportation of Chuoco Tiaco, it appears that sharp
differences of opinion arose at that time as to the power of the
Philippine Government to deport aliens; that grave doubts
existed in the minds of many of the members of the legislature
as to whether the Governor-General could exercise the power
by virtue of his office alone, without legislative sanction or
authority; and that conflicting views were entertained by some
of the members of the legislative bodies and the then Chief
238
Executive as to whether the Legislature had authority to limit,
restrict, or regulate the exercise of this power.
Two years later, evidently as the outcome of the discussion of
the Chuoco Tiaco deportation proceedings, the general subject
of deportation and repatriation of foreigners was dealt with by
the Philippine Legislature in Act No 2113, enacted February 1,
1912, which is as follows:jgc:chanrobles.com.ph
"AN ACT REGULATING THE AUTHORITY OF THE GOVERNOR-
GENERAL OF THE PHILIPPINE ISLANDS TO DEPORT, EXCLUDE,
EXPEL, OR REPATRIATE FOREIGNERS.
"Whereas it has been decided that the Governor-General of the
Philippine Islands has authority to deport, expel, exclude, or
repatriate foreigners, by due process of law;
"Whereas there is no law at present in the Philippine Islands
which determines or defines such process of law;
"Whereas it is necessary and advisable for the individual
security of all residents of these Islands clearly to fix said
process of Law: Now, therefore,
"By authority of the United States, be it enacted by the
Philippine Legislature, that:jgc:chanrobles.com.ph
"SECTION 1. Hereafter the Governor-General of the Philippine
Islands may not deport, expel, exclude, or repatriate from said
Islands any foreigners residing therein without prior
investigation made by said Executive or his authorized agents,
in which the person or persons whose deportation, expulsion,
exclusion, or repatriation is contemplated, and their counsel
and witnesses shall be given a hearing. Such persons shall be
informed of any charges which there may be against them, and
shall be granted a period of time not less than three days to
prepare their defense and shall be given an opportunity to
cross-examine the witnesses for the prosecution: Provided,
That this Act shall not be construed as authorizing the
extrañamiento, destierro, deportation, or any other form of
expulsion from the Islands of Filipinos.
"SEC. 2. All Acts and legal provisions legally incompatible
herewith are hereby repealed.
"SEC. 3. The public good requiring the speedy enactment of this
bill, the same shall take effect on its passage in accordance with
section one of Act Numbered Nineteen hundred and forty-five
of the Philippine Legislature."cralaw virtua1aw library
A year later the Supreme Court of the United States in the Tiaco
v. Forbes case, decided May 5, 1913, set all doubts at rest as to
the power of the Philippine Government to deport aliens as an
act of state; and, reserving opinion as to whether the Governor-
General could exercise the power "by virtue of his office alone,"
239
made it clear that the Philippine Legislature and the Governor-
General, acting "under their combined powers," had authority
to deport aliens as an act of state; and that "the very ground of
the power in the necessities of public welfare shows that it may
have to be exercised in a summary way through executive
officers."cralaw virtua1aw library
Less than six months after the promulgation of the decision in
the Tiaco v. Forbes case, this court, citing and relying upon that
decision, held in the Chan Yick Sam case (31 Phil. Rep., 560),
that the Governor-General had authority under the above cited
Act No. 2113, to institute and maintain deportation
proceedings against a foreigner in accord with its provisions.
On February 24, 1916, the Philippine Legislature enacted the
Administrative Code of that year, and on March 10, 1917, it
enacted the Administrative Code now in force, substantially
incorporating therein the provisions of the former code, with
such amendments and additions as were deemed necessary
and expedient, as the result of the enactment of the Jones Law
(Act of August 29, 1916), providing for a more autonomous
government for the Philippine Islands. Section 83 of the Code
of 1916, and 69 of the Code of 1917 are identical, and
incorporate into those codes the provisions of Act No. 2113,
with the omission of the title and preamble and some slight
changes in the body of the Act.
Section 69 of the Code of 1917 is a subdivision of article II,
chapter IV, title II, which treats of "Particular powers and duties
of the Governor-General," itself a subdivision of Book I which
treats of the "Organization, powers, and general administration
of the Philippine Government."cralaw virtua1aw library
This section is as follows:jgc:chanrobles.com.ph
"Deportation of subject of foreign power. — A subject of a
foreign power residing in the Philippine Islands shall not be
deported, expelled, or excluded from said Islands or repatriated
to his own country by the Governor-General except upon prior
investigation, conducted by said Executive or his authorized
agent, of the ground upon which such action is contemplated.
In such case the person concerned shall be informed of the
charge or charges against him and he shall be allowed not less
than three days for the preparation of his defense. He shall also
have the right to be heard by himself or counsel, to produce
witnesses in his own behalf, and to cross-examine the opposing
witnesses."cralaw virtua1aw library
Section 3 of the Code of 1917 provides as follows
"Relation of Administrative Code to prior laws. — Such
provisions of this Code as incorporate prior laws shall be
deemed to be made in continuation thereof and to be in the
nature of amendments thereto, without prejudice to any right
already accrued."cralaw virtua1aw library
240
We think that the authority of the Governor-General to deport,
expel, exclude or repatriate subjects of foreign powers residing
in the Philippine Islands, as an act of state, upon prior
investigation, is clearly derivable from the express terms of this
statute, having in mind its context and relative position in the
Code; its antecedents; the whole course of local legislation with
relation to the matter of deportation of aliens; and the
acquiescence of the legislator in the construction placed upon
Act No. 2113 by this court in the Chan Yick Sam case (supra) and
in the assumption by the Chief Executive of authority
thereunder, of both of which he had notice when again and yet
again he incorporated the provisions of Act No. 2113-in the
Administrative Codes.
It is urged that, read by itself, section 69 of the Code of 1917,
like its predecessors, Act No. 2113 and section 83 of the Code
of 1916, which it continues in force with some amendments, is
a purely adjective or procedural statute; that it contains no
express grant of authority; and that it purports merely to
regulate the exercise by the Governor-General of authority to
deport, as an act of state.
We are of opinion, however, that while it is doubtless true that
the second paragraph of this section relates wholly to
procedure, the first paragraph not merely regulates and
controls the power of the Governor-General, but, certainly by
plain implication, and as we think in express terms, confers
authority in deportation proceedings, when they are had upon
prior investigation, and conducted in the manner and form
prescribed in this section.
The somewhat unusual phrasing of the language of Act No.
2113 quite clearly reflects the doubts and uncertainties then
existing as to the source, the ultimate depositary, and even the
existence of power. in the Philippine Government to deport
aliens as an act of state. But it is not of vital importance whether
the members of the Legislature were, or were not, correctly
advised as to their power in the premises, or the source from
which it is derived. The real question is whether legislative
intent to concede the power to the Governor-General and to
assert merely their own power to regulate its exercise, finds
expression in the language of the statute. We entertain no
doubt that if not, expressly, then by plain implication, the
Governor-General was authorized under the terms of the first
paragraph [section] of the statute to deport aliens, upon
investigation conducted in the manner prescribed therein. That
the legislator himself understood that this paragraph contained
a grant of authority, express or implied, is quite clearly
indicated by the proviso, which expressly declares that "this Act
shall not be construed as authorizing" the deportation or
expulsion from the Islands of Filipinos: evidently intended to
foreclose the possibility that the word foreigners, used in a
statute enacted in the English language under American
sovereignty might be construed to include Filipinos.
241
It is true that this statute purported to be an act regulating the
authority of the Governor-General to deport foreigners, and
that the preamble sets forth that "it had been decided" that the
Governor-General had authority to deport aliens by due
process of law. But it will be seen that in exercising the right
tacitly assumed by the legislator in the other paragraphs of the
preamble, to "determine," "define," and "fix" such process of
law, he clearly and explicity specified in the body of the act itself
the instances in which he consented to the exercise of such
authority as well as those in which he forbade its exercise.
The cautious phrasing of the paragraph of the preamble which
declared that "it has been decided that the Governor-General
has authority to deport foreigners by due process of law"
discloses that the lawmakers desired to reserve their own views
on that subject; and we think that a critical examination of the
whole statute clearly discloses the intention of the lawmakers
to assert the right to regulate so as to forbid arbitrary
deportations and at the same time to concede the right to
deport foreigners upon prior investigation, coupled, however,
with an express declaration of the legislative will to prohibit the
deportation of Filipinos on any pretext whatever.
That which is plainly implied in the language of a statute is as
much a part of it as that which is expressed. (Sutherland on
Statutory Construction, 2d. ed., p. 9236.)
If, however, the peculiar phrasing of Act No. 2113 with its
preamble, left any real ground for uncertainty as to the
intention of the legislator to concede a regulated power to
deport aliens, no such doubt arises as to the legislative intent
in the enactment of the provisions touching the deportation of
aliens in the administrative codes.
Omitting the title and the preamble, the provisions of Act No.
2113, with some slight but significant amendments were
included among the provisions of these carefully prepared
administrative codes defining and delimiting the jurisdiction
and distribution of powers of government, and they are to be
found in the chapters of those codes which set forth "the
particular powers and duties of the Governor-General
Prior to the enactment of these codes the Supreme Court of the
United States had dealt with the subject in the Tiaco v. Forbes
case, and this court had construed Act No. 2113 in the Chan Yick
Sam case. These decisions and the lapse of time had clarified
the atmosphere; and the Legislature when it again undertook
to deal with the subject of deportation of foreigners, as an act
of state, under the section title of "Deportation of subject of
foreign power," instead of directing its prohibition against the
Governor-General himself, as in the old statute wherein it
provided that the ’Governor-General may not deport foreigners
except, etc.", directed its prohibition against deportations of
subjects of a foreign power by the Governor-General except
upon prior investigation, etc. The modification in the language
242
is slight but significant, because it suggests, first that the
legislator felt and knew that he was dealing with an established
practice, sanctioned by the courts; and, second, that in the code
provisions the legislator was not merely regulating and
controlling the practice, but consciously defining and delimiting
the occasions upon which the power to deport might, and upon
which it might not be exercised by the Governor-General with
legislative authority.
The substitution of the words "subjects of a foreign power" in
the code in place of the word "foreigner" in Act No. 2113, was
intended, of course, to render unnecessary the proviso in the
Act expressly denying a grant of authority to deport Filipinos,
by the use of descriptive words in the grant of authority which
could not be construed, under any possible circumstances or in
any language, to include natives of the Islands.
Examined with relation to the context, and the express purpose
and object of the codification of the laws defining and
delimiting the powers of Government in the Philippine Islands,
we are of opinion that the ordinary and usual interpretation
which should be Placed upon the language of section 69 of the
Administrative Code of 1917, and the application thereto of the
ordinary rules of grammatical construction, must be held to
sustain the contention of the Attorney-General that it was
intended to confer and that it does in fact confer a regulated
authority upon the Governor-General in the matter of
deportation of aliens.
Finally, we think that the acquiescense of the legislator in the
interpretation placed upon the statute by the courts, and in the
assumption of authority thereunder by the Governor-General,
operated in itself as a grant of such power. The Philippine
Legislature had notice prior to the enactment of Act No. 1986
in the year 1910, that the Governor-General had asserted and
exercised the power to deport aliens as an act of state. Both the
Legislature, and the special board of experienced lawyers and
judges who prepared the Administrative Codes of 1916 and
1917, must be presumed to have had notice that thereafter, the
Governor-General again asserted the right to exercise that
power under and by virtue of the authority contained in the
provisions of Act No. 2113 approved February 1, 1912. The
proceedings in one such case are set out at length in the reports
of our decision in the case of Chan Yick Sam, promulgated
October 1, 1915, and reported in the weekly Official Gazette 1
and in 31 Phil. Rep., 560. In that case, as we have seen, this
court expressly recognized and unanimously sustained the
authority of the Governor-General to maintain these
proceedings under and by virtue of the statute (Act No. 2113).
And yet, upon two separate occasions thereafter, the
provisions of that statute were reenacted with some slight
amendments which in no wise affected the expression of the
legislative will touching the exercise of the power to deport
aliens by the Chief Executive
243
We think that if there ever was any ground for doubt as to the
legislative intent to concede authority to the Governor-General
by the enactment of Act No. 2113, it was swept away by the
reenactment of its provisions in the administrative codes under
the circumstances just indicated; and that the Philippine
Legislature must be held to have acquiesced in, and consented
to the continuance of the practice long ere this. (Cf. Citations
from Sutherland on Statutory Construction [supra].)
In the case of U. S. v. Midwest Oil Company (35 Sup. Ct. Rep.,
309):jgc:chanrobles.com.ph
"The power of the President to make certain land reservations
was questioned. It appeared that the President or the Executive
Department of the Government claimed the authority to make
such reservations without any statutory grant. It also appeared
that Congress had notice of this claim of authority and did not
repudiate it; the Supreme Court of the United States held that
’Its silence was acquiescence. Its acquiescence was equivalent
to consent to continue the practice until the power was
revoked by some subsequent action by Congress.’"
In our consideration of the case thus far, we have rested our
conclusions strictly on the doctrine of the decision of the
Supreme Court of the United States in the Tiaco v. Forbes case
as we understand it, because in this case as in that case, we
believe that the concession or grant of authority to the
Governor-General by the Philippine Legislature validates the
deportation of the petitioner, as an act done under their
combined powers, whether or not power to deport aliens is
vested in the Governor-General "by virtue of his office alone."
It would seem that we might stop here, but in view of the
marked divergence of opinion which has developed in the
discussion of this case as to whether the language of the local
statutes sustains a ruling that the Philippine Legislature has, in
fact, conferred authority upon the Governor-General in the
premises, it may be proper to indicate that we think that an
examination of the history of the office of the Chief Executive
in these Islands under American sovereignty will disclose that,
until and unless he is deprived of such authority by some act of
Congress or of the Philippine Legislature, the power of the
Philippine Government to deport aliens as an act of state is
vested in the Governor-General by virtue of his office subject
only to the regulations prescribed in section 69 of the
Administrative Code of 1917, or by future legislation on the
subject.
We incline to the belief that authority to control, limit, restrict,
and perhaps even to prohibit the exercise by the Governor-
General of this power, by appropriate legislation, was
conferred upon the Philippine Legislature, the elected
representatives of the people of the Islands, under the terms of
the Jones Law (Act of August 29, 1916), providing a more
autonomous form of government for the people of the
Philippine Islands. We think, furthermore, that the enactment
of that statute furnishes a sufficient grant of authority to the
244
Philippine Legislature to provide for the exercise of the power
of the Philippine Government to deport aliens through such
instrumentalities, and under such appropriate regulations, as it
may deem proper to prescribe; and to ratify, confirm, or
concede authority for the exercise of such power in the Chief
Executive. Indeed, that body has heretofore exercise legislative
power to confer jurisdiction upon the courts to order the
deportation of aliens upon a second conviction of a violation of
the Opium Law. We are disposed also to think that such power
was vested in the Philippine Legislature prior to the enactment
of the Jones Law. But we are well satisfied, also, that under
American sovereignty, the essentially civil power to deport
aliens as an act of state was originally vested in the first Civil
Governor by virtue of the presidential orders hereinafter cited,
affirmed and ratified by the Congress of the United States; and
that it has continued in the office of the Chief Executive, the
Governor-General, ever since, except in so far as his power has
been restricted, limited or controlled by the various acts of the
Philippine Legislature to which reference has already been
made.
We find nothing in the history of the legislative relations of the
Philippine Islands and the United States which would indicate
that the power, which undoubtedly was vested in the first Civil
Governor, has been withdrawn from any of his successors.
Doubtless the power to legislate upon the subject was
conferred upon the Philippine Legislature under the Jones Law;
but there is nothing in that act to indicate the intention of
Congress by its enactment and without further legislation, local
or congressional, to abrogate the regulated system then in
force for the exercise of the power to deport aliens as an act of
state, and to deprive the Governor-General of the power
vested in him prior to its enactment.
Our rulings on the other branch of the case necessitating the
denial of the petitioner’s prayer for discharge under the writ,
and our time being extremely limited, we may not pursue the
inquiry further. We must therefore content ourselves with a
reference to the President’s Instructions to the Commission of
April 7, 1900; the Executive Order of the President of June 21,
1901; the Spooner Amendment of the Act of Congress of March
2, 1901; section 1 of the Act of Congress of July 1, 1902; the Act
of Congress of August 29, 1916, and U. S. v. Bull, 15 Phil. Rep.,
7.
The Spooner Amendment found in the Act of Congress of
March 2, 1901, is as follows:jgc:chanrobles.com.ph
"All military, civil and judicial powers necessary to govern the
Philippine Islands, acquired from Spain by the treaties
concluded at Paris on the tenth day of December, eighteen
hundred and ninety-eight, and at Washington on the seventh
day of November, nineteen hundred, shall, until otherwise
provided by Congress, be vested in such person or persons, and
shall be exercised in such manner as the President of the United
States shall direct, for the establishment of civil government
245
and for maintaining and protecting the inhabitants of said
Islands in the free enjoyment of their liberty, property, and
religion." (31 Stat. at L., 910.)
The order of the President of June 21; 1901, appointing a Civil
Governor is as follows:jgc:chanrobles.com.ph
"On and after the 4th day of July, 1901, until it shall be
otherwise ordered, the President of the Philippine Commission
will exercise the executive authority in all civil affairs in the
government of the Philippine Islands heretofore exercised in
such affairs by the Military Governor of the Philippines, and to
that end the Hon. William H. Taft, President of said
Commission, is hereby appointed Civil Governor of the
Philippine Islands. Such executive authority will be exercised
under, and in conformity to, the instructions to the Philippine
Commissioners, dated April 7, 1901), and subject to the
approval and control of the Secretary of War of the United
States."cralaw virtua1aw library
Section 1 of the Act of Congress of July 1, 1902 (Philippine Bill)
is, in part, as follows:jgc:chanrobles.com.ph
"Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That the
action of the President of the United States in creating the
Philippine Commission and authorizing said Commission to
exercise the powers of government to the extent and in the
manner and form and subject to the regulation and control set
forth in the instructions of the President to the Philippine
Commission, dated April seventh, nineteen hundred, and in
creating the offices of Civil Governor and Vice-Civil Governor of
the Philippine Islands, and authorizing the said Civil Governor
to exercise the powers of the Government to the extent and in
the manner and form set forth in the executive order dated
June twenty-first, nineteen hundred and one, . . . is hereby
approved, ratified, and confirmed, and until otherwise
provided by law the said Islands shall continue to be governed
as thereby and herein provided, . . . ."cralaw virtua1aw library
Nevertheless, one objection to the theory that power to deport
aliens is vested in the Governor-General by virtue of his office
alone, under the terms of the above cited congressional
legislation; and that the Chief Executive of the Philippine Islands
may lawfully exercise that power, subject to regulation by
Congress or the Philippine Legislature, until and unless he is
deprived of authority by Act of Congress or the Philippine
Legislature, deserves some attention. It has been suggested
that the power to deport aliens as an act of state, which was
undoubtedly included among the powers which the Military
Governor was authorized to exercise after the occupation of
the Islands by the armed forces of the United States, should not
be held to have vested in the first Civil Governor and his
successors in office by virtue of the executive orders of the
President, the Spooner Amendment and the various acts of
Congress organizing the Philippine Government, because it
246
would be unreasonable to suppose that it was the intention of
Congress to provide for the transfer of purely military powers
to a civil executive; and because in no event would powers
which had their origin wholly in military necessity survive the
complete disappearance of the military situation creating the
necessity. But these contentions are manifestly based on the
erroneous premise that the power to deport aliens as an act of
state which was exercised by the commander-in-chief of the
military forces in occupied territory, was necessarily a purely
military power similar in kind and origin to the power, for
example, which he exercised to deport natives of the Islands or
citizens of the United States.
We readily agree that it would be unreasonable to suppose that
the power to deport any person whatever, whether a citizen of
the United States or not, whose presence appeared to
constitute an obstacle in the path of the military forces of the
United States in the Philippines, was transmitted from the
Military Governor to the Civil Governor and his successors in
office through a period of nearly two decades of profound
peace. But the power to deport aliens is not derived exclusively
or necessarily from military necessity. Indeed, its exercise is in
many, if not in most instances, a function of the civil and
political department of the Government, properly vested in the
civil authorities in time of war as in time of peace, unless taken
over by the military commander by the assumption of civil as
well as military powers in territory under his command. (Cf
Moore’s International Law Digest, vol. IV, sec. 550 et seq.)
In the case of Fok Yo v. U. S. ([1902], 185 U. S., 296) the Supreme
Court of the United States said:jgc:chanrobles.com.ph
"The doctrine is firmly established that the power to exclude or
expel aliens is vested in the political department of the
government, to be regulated by treaty or by Act of Congress
and to be executed by the executive authority according to
such regulations, . . . ."cralaw virtua1aw library
We are of opinion that in the Philippine Islands the doctrine
which should be established is that the power to exclude or
expel aliens is vested in the political department of the
government, to be regulated by treaty, or Act of Congress of
the United States, or by Act of the Philippine Legislature; and,
under the laws as they now stand on the statute books, to be
executed by the Governor-General, the supreme executive
authority, according to such regulations.
Although somewhat out of its logical order, we think we should
add here some comment on an objection to our rulings to
which our attention was more especially directed, upon reading
one of the dissenting opinions after the foregoing had been
completed. It is urged that not only was Congress lacking in
power, under the Constitution, to delegate undefined authority
to deport aliens to the Philippine Government, but also that the
Philippine Legislature was lacking in constitutional authority to
247
delegate such undefined authority to the Chief Executive of the
Philippine Islands.
These contentions would seem to be sufficiently disposed of by
directing attention to the fact that the Supreme Court of the
United States has held, in the case of Tiaco v. Forbes (supra),
not only that Congress has the power so to do, but that it did in
fact delegate full power to the Philippine Government to
deport aliens as an act of state; and, further, that when the
Governor-General does in fact deport an alien, by authority of
an Act of the Philippine Legislature, the deportation may
properly be treated as an act of state, done under "the
combined powers" of the Philippine Legislature and the
Governor-General.
It will be well, nevertheless, to examine this contention at
greater length, on principle as well as on authority.
As is well said in a decision (Yick Wo v. Hopkins, 118 U. S., 356)
cited in one of the dissenting opinions in this case, "It is, indeed,
quite true, that there must always be lodged somewhere, and
in some person or body, the authority of final decision."cralaw
virtua1aw library
But despite this manifest truism, it is insistently contended that
it is unconstitutional and contrary to the basic principles of
American sovereignty in these Islands to lodge in the hands of
the Governor-General power to deport aliens, unless the
instances in which such power may be exercised are specifically
designated and defined. It is said that it is a useless and vain
formality to require that "the alien shall be heard before he is
expelled, if the expulsion may take place regardless of what he
may say," and that "the mere formality of a hearing is not in
itself sufficient to constitute due process of law."cralaw
virtua1aw library
As we understand these contentions, it is urged that even if it
were admitted that Congress or the Philippine Legislature may
lawfully delegate power to deport aliens to the Chief Executive
in certain specified and enumerated instances, neither
Congress nor the Philippine Legislature may lawfully delegate
power, generally, in all the instances in which they themselves
may exercise such power. But what are the instances in which
such power may be delegated, and in what instances is it
unconstitutional to delegate the power to deport? If power to
deport may be delegated in some instances, where is the
constitutional or legal prohibition upon the delegation of the
power in all instances?
The truth is, of course, that the instances in which aliens may
be deported as an act of state must be determined upon
recognized principles of international law; and that the
Legislature, when it conferred a regulated power on the
Governor-General to deport aliens, upon prior investigation, in
all instances in which the Government of the Philippines may
deport aliens as an act of state, did not confer an arbitrary
248
power to deport any alien upon "a mere whim" as is suggested,
but only such aliens as may properly and lawfully be deported
under recognized rules of international law.
While it is impossible to enumerate the cases wherein aliens
may properly and lawfully be deported under recognized rules
of international law, it is not impossible to lay down "a rule of
law defining the standard of conduct for the violation of which
the right of asylum which aliens enjoy under our laws is to be
forfeited." Indeed few rules of law are more firmly established
both in international law and in American municipal law than
that every alien forfeits his right of asylum in the country in
which he resides, in the absence of treaty provisions to the
contrary, when his conduct or his mode of life renders his
presence there inimical to the public interests. As was said by a
standard authority on International Law "Some writers have
essayed to enumerate the legitimate causes of expulsion. The
effort is useless. The reasons may be summed up and
condensed in a single word: The public interest of the State.
Bluntschli wished to deny to states the right of expulsion but he
was obliged to acknowledge that aliens might be expelled by a
simple administrative measure." (Bonfils, Manual du Droit Int.
Public, sec. 442; Moore’s International Law Digest, Vol. IV, p.
68.)
It will be seen then, that when the Congress of the United
States and the Philippine Legislature conferred power on the
Governor-General to deport aliens upon prior investigation,
they did not confer arbitrary power to deport aliens at his mere
whim; his authority being limited to cases wherein, after due
investigation, the conduct or mode of life of the persons whose
deportation is contemplated is found to be inimical to the
public interests. It needs no argument nor citation of
authorities to show that it was within the power of Congress
and the Philippine Legislature to confer jurisdiction upon the
Governor-General to adjudicate the facts upon which such
deportations must be predicated; and to make his judgments in
such cases as final and as conclusive as if like jurisdiction had
been conferred upon the ordinary courts of law.
Let it be noted that we are not discussing, at this time, the
political wisdom of conferring such powers on the Chief
Executive. It is not within the province of the courts to pass
upon the wisdom or unwisdom of legislative enactments. The
question is not whether Congress and the Philippine Legislature
should have delegated authority of this kind, but whether such
authority could be delegated under the laws and the
Constitution of the United States. No reason, other than those
of mere political expediency, have been suggested for denying
the power of the Legislature to confer such authority; and yet
as was said by the Supreme Court of the United States in the
Tiaco v. Forbes case (supra) "The very ground of the power in
the necessities of the public welfare shows that it may have to
be exercised in a summary way through executive
officers."cralaw virtua1aw library
249
Moreover, we are dealing in the present case with a specific
instance of the exercise of the power to deport, wherein the
ground upon which the deportation is contemplated is that the
petitioner is "an undesirable alien, whose continued presence
in the Islands is a menace to the peace and safety of the
community," as appears from the deportation order itself, and
the charges upon which the investigation was held. If the
petitioner is in fact what he has been adjudged to be after a fair
and impartial hearing, no one can doubt, under present
conditions, that this is a proper instance for the exercise by the
Governor-General of the delegated authority to deport aliens
as an act of state; and even if the grant of power should be held
to be ineffective as an unrestricted and unlimited delegation of
power to deport aliens, it must be held to be a sufficient
delegation of a regulated power to deport aliens upon grounds
such as those upon which the deportation of the petitioner are
based.
In eloquent and impassioned periods counsel for the petitioner
urge us to order his discharge from detention, and thus
"conserve the sacred traditions of personal liberty maintained
by the founders of the American Republic and their English
ancestors;" and we are told that to sustain the regulated power
of the Governor-General to deport aliens from the Philippine
Islands as an act of state, is to challenge the principles and
authority of Magna Charta, the Constitution of the United
States, the Philippine Bill of Rights, and to set ourselves against
all the historic precedents established by the Anglo-Saxon race
through centuries of toil, and blood, and oppression.
But in answer to all this we need only say in addition to what
has been said already:chanrob1es virtual 1aw library
1. That the Supreme Court of the United States was not
deterred by such considerations from upholding the power of
the Governor-General in the Tiaco v. Forbes case (supra) a few
years ago, when it said that the summary deportation of the
plaintiffs in that case did not deprive them of liberty "without
due process of law;" and that "As Congress is not prevented
(from deporting aliens) by the Constitution, the Philippine
Government cannot be prevented by the Philippine Bill of
Rights alone."cralaw virtua1aw library
2. That the founders of the American Republic, themselves, saw
nothing in the Constitution to deter them from placing the Alien
and Sedition Laws upon the statute books, when the need
therefor arose a few years after that great instrument was
adopted (1798). It will be remembered that it was the members
of the Federalist party, many of whom had taken a leading part
in the constitutional convention, who were responsible for the
enactment of the statute which empowered the President to
deport all aliens whom he should judge dangerous to the peace
and safety of the community. And though, as a result of popular
agitation, this statute was not reenacted after it had expired
under its own terms, that fact furnishes no ground for
250

argument either for or against its constitutionality The statute

never was judicially tested. and we have no authoritative
Judicial pronouncement as to its constitutionality.

3. That the great English judges do not find in Magna Charta nor
elsewhere in the British Constitution anything which forbids the
deportation of aliens by executive authority in the colonies of
the Empire, even in the great self-governing colonies such as
Canada. "Eminent English judges, sitting in the Judicial
Committee of the Privy Council, have gone very far in
supporting the exclusion or expulsion, by the executive
authority of a colony of aliens having no absolute right to enter
its territory or to remain therein." (In re Adam, 1 Moore, P. C.,
460, quoted in Fong Yue Ting v. United States, 149 U. S., 698,
709.) "The Crown has power to exclude an alien and may
delegate that power to Canada." (Atty. Gen. v. Cain, A, C., 542,
reversing Re Gilhula, 10 Ont. L. Rep., 469.)

From what has been said it is clear that the prayer of the
petitioner for discharge under the writ should be denied.

Let the appropriate order be entered, three days after the filing
of this opinion, remanding the petitioner to the custody of the
chief of police of the city of Manila, with the costs of the
proceedings against the petitioner; and ten days thereafter let
the record be filed with the archives of original proceedings in
this court.