Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-200 March 28, 1946

ANASTACIO LAUREL, petitioner, vs.ERIBERTO MISA, as Director of Prisons, respondent.

Sulpicio V. Cea for petitioner.First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr. for respondent.Arturo A. Alafriz as amicus curiae.

BENGZON, J.:

Anastacio Laurel demands his release form Bilibid Prison, mainly asserting that Commonwealth Act No. 682, creating the People's Court, specially section 19, under which he is detained as a political prisoner, is unconstitutional and void. The Solicitor General, meeting the issue, sustains the validity of the whole law.

According to the pleadings, the petitioner, a Filipino citizen, was arrested in Camarines Sur in May, 1945, by the United States Army, and was interned, under a commitment order "for his active collaboration with the Japanese during the Japanese occupation," but in September, 1945, he was turned over to the Commonwealth Government, and since then has been under the custody of the respondent Director of Prisons.

The legality of the prisoner's arrest and detention by the military authorities of the United States is now beyond question.1His present incarceration, which is merely continuation of his previous apprehension, has lasted "more than six hours" counted from his delivery to the respondent; but section 19 of Commonwealth Act No. 682 provides in part as follows:

Upon delivery by the Commander-in-Chief of the Armed Forces of the United States in the Philippines of the persons detained by him as political prisoners, to the Commonwealth Government, the Office of Special Prosecutors shall receive all records, documents, exhibits, and such other things as the Government of the United States may have turned over in connection with and/or affecting said political prisoners, examine the aforesaid records, documents, exhibits, etc., and take, as speedily as possible, such action as maybe proper: Provided, however, . . .. And, provided, further, That, in the interest of public security, the provisions of article one hundred twenty-five of the Revised Penal Code, as amended, shall be deemed, as they are hereby, suspended, insofar as the aforesaid political prisoners are concerned, until the filing of the corresponding information with the People's Court, but the period of suspension shall not be more than six (6) months from the formal delivery of said political prisoners by the Commander-in-Chief of the Armed Forces of the United States in the Philippines to the Commonwealth Government.

In view of the provision, and the statement of the Solicitor General that even on the date the petition was presented his office had, ready for filing, an information charging herein petitioner with treason, we fail to see how petitioner's release may now be decreed.

However, he contends that the aforesaid section violates our Constitution, because it is (a) discriminatory in nature; (b) unlawful delegation of legislative powers; and (c) retroactive in operation.

(a) It is first argued that the suspension is not general in application, it being made operative only to "the political prisoners concerned," that other citizens are not denied the six-hour limitation in article 125 of the Revised Penal Code, that such discrimination is unexcusable and amounts to denial of the equal protection of the laws.

It is accepted doctrine in constitutional law that the "equal protection" clause does not prevent the Legislature from establishing classes of individuals or objects upon which different rules shall operate — so long as the classification is not unreasonable.2 Instances of valid classification are numerous. The point to be determined then, is whether the differentiation in the case of the political prisoner is unreasonable or arbitrary.

One of the proclamations issued by General MacArthur upon his arrival in Leyte (December 29, 1944) referred to those Filipino citizens who had voluntarily given aid, comfort and sustenance to the Japanese. It announced his purpose to to hold them in restraint for the duration of the war, "whereafter they shall be turned over to the Philippine Government for its judgment upon their respective cases." When active hostilities with Japan terminated, General MacArthur ordered the delivery of the Commonwealth of all the prisoners theretofore taken under his said proclamation. There was 6,000 in round numbers. The problem problem was momentous and urgent. Criminal informations against all, or a majority, or even a substantial number of them could not be properly filed in the six-hour period. They could not obviously be turned loose, considering the conditions of peace and order, and the safety of the prisoners themselves. So the President, by virtue of his emergency powers, promulgated Executive Order No. 65 suspending article 125 of the Revised Penal Code, for not more than thirty days, with regard to said detainees or internees, having found such suspension necessary to "enable the Government to fulfill its responsibilities and to adopt temporary measures in relation with their custody and the investigation, prosecution and disposal of their respective cases." The Order added that it shall be in force and effect until the Congress shall provide otherwise. Congress later approved Commonwealth Act. No. 682, establishing the People's Court and the Office of Special Prosecutors for the prosecution and trial of crimes against national security committed during the second World War. It found the thirty-day period too short compared with the facilities available to the prosecution, and set the limit at six months.

Considering the circumstances, we are not prepared to hold the extension of the period for the political detainees was unreasonable. The Legislature chose to give the prosecutor's office sufficient time to investigate and to file the proper charge — or to discharge those whom it may find innocent. If time had not been granted, the prosecutor would perhaps have been forced to indict all the detainees indiscriminately; reserving, of course, its right subsequently to request the liberation of those it may think not guilty. But such wholesale indictment was obviously neither practical nor desirable. We will allow that there may be some dispute as to the wisdom or adequacy of the extension. Yet the point is primarily for the Legislature to decide. The only issue is the power to promulgate special rules for the custody and investigation of active collaborationists, and so long as reasons exist in support of the legislative action courts should be careful not to deny it.

In this connection, it must be stated there can really be no substantial ground to assail the six-month extension, in view of the provisions authorizing the release under bail. Article 125 of the Revised Penal Code was intended to prevent any abuse resulting from confining a person without informing him of his offense and without permitting him to go on bail. Commonwealth Act No. 682 gives no occasion to such abuse. The political prisoners know, or ought to know, they are being kept for crimes against national security. And they are generally permitted to furnish bail bonds.

(b) There is hardly any merit to the argument that as "the duration of the suspension of article 125 is placed in the hands of the Special Prosecutor's Office," the section constitutes an invalid delegation of legislative powers; for as explained by the Solicitor-General, the result — some informations filed before, others afterwards — is merely the "consequence of the fact that six thousand informations could not be filed simultaneously, and that some one had to be first or some one else, necessarily the last." The law, in effect, permitted the Solicitor-General to file the informations within six months. And statutes permitting officers to perform their duties within certain periods of time may not surely be declared invalid delegations of legislative power.

(c) Nor is the position correct that section 19 is retroactive in its operation. It refers to detention after its passage — not before. Incidentally, there is no constitutional objection to retroactive statutes where they relate, to remedies or procedure.3

The argument is advanced that when he was arrested, (May, 1945), article 125 of the Revised Penal Code was in force, and petitioner could have asked for release after six hours and, therefore, Commonwealth Act No. 682 that takes away that right is ex post facto, retroactive and fundamentally objectionable. The premises are incorrect. In May, 1945, he could not have asked for release after six hours. In other words, he would not have been discharged from the custody. (Raquiza vs. Branford, supra.) Article 125 of the Revised Penal Code was in force, it is true; but not as to him. The laws of the Commonwealth were revived in Camarines Sur by operation of General MacArthur's proclamation of October 23, 1944, upon its liberation from enemy control; but subject to his reservation to hold active collaborationists in restraint "for the duration of the war." So, persons apprehended under that directive, for treasonable collaboration, could not necessarily invoke the benefits of article 125 of the Revised Penal Code.

Undoubtedly the Legislature could validly repeal section 125 of the Revised Penal Code. Had it done so, herein petitioner would have no ground to protest on constitutional principles, as he could claim no vested right to the continued enforcement of said section.4 Therefore, a fortiori he may not complain, if, instead of repealing that section, our lawmaking body merely suspended its operation for a definite period of time. Should he counter that such repeal or suspension must be general to be valid, he will be referred to the preceding considerations regarding classification and the equal protection of the laws.

Wherefore, we perceive no irreconcilable conflict between the Constitution and the challenged portions of section 19 of Commonwealth Act No. 682.

The other features of the People's Court Act which are the subject of denunciation by petitioner do not, in our opinion, require specific elucidation at this time, because he has not as yet been held into that court, and the issues appear to have no important or necessary connection with his current deprivation of liberty.5

The petition for the writ of habeas corpus will be denied. With costs.

Moran, C.J., Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones, JJ., concur.

Separate Opinions

OZAETA, J., with whom Paras, J., concurring in the result:

I concur with the majority in upholding the constitutionality of section 19 of the People's Court Act. In the view I held in the Raquiza case the detention of the petitioner by the military authorities was illegal for lack of due process. But the same thing cannot be said as to his present detention by the respondent Director of Prisons, especially now that an information for treason has been filed against him.

PERFECTO, J., dissenting:

On or about May 6, 1945, petitioner was arrested by the C.I.C., United States Army, Camarines Sur. On September 6, 1945 he was turned over to the Commonwealth Government by the United States Army and since that date he remained in prison under the personal custody of the respondent Director of Prisons, and now he comes before us complaining that his arrest and detention are illegal and in violation of many of his constitutional rights, in that:

"(a) He was arrested and detained without a lawful warrant of arrest. (See Constitution, Article III, section 3.) (b) No information or charge has been lodged against him, informing him of the nature and cause of his arrest. (See Constitution, Article III, section 17.) (c) He was not given an opportunity to confront the witnesses who caused his arrest and detention. (See Constitution, Article III, section 17.) (d) He was not accorded the benefit of compulsory process to secure the attendance of witnesses in his behalf. (See Constitution, Article III, section 17.) (e) He was and is being denied the right to a prompt, speedy and public trial. (See Constitution, Article III, section 17.) (f) His arrest and detention was and is without due process of law. (See Constitution, Article III, section 15.) (g) He was not accorded the equal protection of the laws. (See Constitution, Article III, section 1.) (h) He was subjected to cruel and unusual punishment. (See Constitution, Article III, section 19.) (i) He was committed to prison and detained by the respondent under a bill of attainder. (See Constitution, Article III, section 11.)"

Petitioner also maintains that the People's Court Act No. 682, under which the respondent herein purports to act, violates not only the spirit but also the letter of the fundamental law in many ways, in that: "(a) It constitutes an assault upon the independence of the judiciary. (See Tydings-McDuffie Law, section 2, par. [a].) (b) It deprives the accused of certain rights already acquired at the time of its passage, and therefore is ex-post facto in nature (See Constitution, Article III, section 11.) (c) It partakes of the nature of a bill of attainder. (See Constitution, Article III, section 11.) (d) It denies the equal protection of the laws. (See Constitution, Article III, section 1.) (e) It provides for cruel and unusual punishment. (See Constitution, Article III, section 19.) (f) It deprives the citizen of his day in court. (See Constitution, Article III, section 21.) (g) It constitutes an unlawful delegation of legislative and executive functions. (See Tydings-McDuffie Law, section 2, par. [a].) (h) It covers more than one subject matter. (See Constitution, Article IV, section 12, par. 1.) (i) It authorizes the charging and multifarious crimes in one complaint or information thereby making it impossible to be informed to the real nature and cause of the accusation against the accused. (See Constitution, Article III, section 17.) (j) It denies the constitutional right of a person to bail before conviction. (See Constitution, Article III, section 16.)"

Consequently, petitioner prays that Commonwealth Act No. 682 be declared unconstitutional and null and void, that his detention, irrespective of the validity of said act, be declared illegal and in violation of many of his constitutional rights, and that an order be issued for his complete and absolute release.

Respondent answered that, pursuant to the authority of the proclamation issued by the Commander in Chief of the American Armed Forces, Southwest Pacific Area, General Douglas MacArthur, dated December 29, 1944, petitioner was arrested and thereafter detained on May 10, 1945, under a security commitment order, issued by the commanding officer of 904th Counter Intelligence Corps Detachment, United States Army, upon the charge of "active collaboration with the Japanese during the Japanese occupation"; that his subsequent detention as a political prisoner, upon the transfer of his person to the Commonwealth Government by the United States Army, pursuant to the terms of the proclamation issued by General Douglas MacArthur on December 29, 1944, of Executive Order No. 65, issued by the President of the Philippines on September 3, 1945, and pursuant to the provisions of Commonwealth Act No. 682, approved on September 25, 1945, was a mere logical sequence of his previous commitment and hence equally valid and legal.

Respondent alleges also that petitioner has not as yet availed of the benefits of section 19 of Commonwealth Act No. 682, which confers upon political prisoners the privilege of securing their release on bail upon proper application therefor with the People's Court; that Commonwealth Act No. 682 does not trench upon, nor contravene any of the provisions of the Constitution; that it is not ex post facto in nature in that it suspends, in the interests of national security, the provision of article 125 of the Revised Penal Code for a period of not more than six months, which is fully justified by the practical necessities of the situation, considering the circumstances that there are more than 6,000 political prisoners charged with the grave crime of treason and other offenses against national security; that said law does not materially impair the substantial rights of the accused to have the question of his guilt determined according to the substantive law existing at the time of the commission of the offense, that it is not a bill of attainder, since it does not inflict punishment without a judicial trial; that it neither deprives the citizen of his day in court, nor it provides for cruel and unusual punishment; that it applies equally and uniformly to all persons similarly situated; that it complies with the constitutional requisites of due process of law

as applied in criminal procedure; that it does not contravene the constitutional requirement that the accused must be informed of the nature of the accusation against him; that instead of suppressing or denying the constitutional right of an accused to bail before conviction, said act recognizes and concedes to all accused in section 19 the right to bail, except those charged with capital offenses when evidence of guilt is strong; that the information against the petitioner, charging him with treason upon ten counts was ready for filing in the People's Court even on the date the petition in this proceeding was presented; and that in due deference to this Supreme Court, the filing of the said information has been held in abeyance pending the final disposition of this habeas corpus proceeding.

For purposes of this discussion, the discrepancy between petitioner and respondent as to the correct date when petitioner was arrested, May 6 or May 10, cannot affect the merits of the case.

Without a lawful warrant of arrest. — Whether the arrest took place on May 6, 1945, as alleged by petitioner or on May 10, as alleged by respondent, there is absolutely no question that petitioner was arrested without lawful warrant of arrest.

Section 1:3 of Article III of the Constitution provides that "no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complaint and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." This provision, considered in connection with the provision of section 1:1 of article III of the Constitution and section 1:15 of the same article that no person shall be deprived of liberty or be held to answer for a criminal offense without due process of law, implies necessarily that one of the essential requisites for depriving a person of his liberty, when he is accused of an offense, is the existence of a warrant of arrest issued in accordance with the provisions of the Constitution.

We are of opinion that the arrest of petitioner was executed in flagrant violation of the above-mentioned constitutional provisions.

No information as to any charge. — The Constitution provides that one of the fundamental rights of an accused is "to be informed of the nature and cause of the accusation against him." (Section 1:17, Article III of the Constitution.)

This constitutional guarantee appears equally to have been violated in petitioner's case.

Respondent's allegation that petitioner is detained because of his active collaboration with the Japanese during the Japanese occupation does not inform petitioner of the nature and cause of the accusation against him, it appearing that there is no such offense described in any law applicable to petitioner as "active collaboration with the Japanese during the Japanese regime."

Meeting witnesses face to face. — Petitioner complains that he was not given an opportunity to confront his witnesses who caused his arrest detention.

The complaint is equally well-taken. There is nothing in the record to show that before, during, or at any time after his arrest, petitioner has ever been accorded the opportunity of meeting the witnesses "face to face" as provided in section 1:17 of Article III of the Constitution.

Attendance of witnesses in his behalf. — Petitioner complains he was not accorded of the benefit of compulsory process to secure the attendance of the witnesses in his behalf as provided in section 1:17 of Article III of the Constitution. This allegation has not been disputed.

We have, therefore, here another flagrant violation of a constitutional right of petitioner.

Speedy and public trial. — Petitioner invokes also his constitutional right to "have a speedy and public trial" as provided in section 1:17 of Article III of the Constitution.

There is absolutely no question that this constitutional right of petitioner has been equally violated.

Equal protection of the laws. — Petitioner complains that he was not accorded equal protection of the laws as provided in section 1:1 of Article III of the Constitution.

Petitioner's allegation is equally well-founded, there being no question as to the fact that he was and he is being deprived of several of his fundamental rights under the Constitution without any legal process.

Cruel and unusual punishment. — Petitioner complains that he was subjected to cruel and unusual punishment in violation of section 1:19 of Article III of the Constitution.

There is no question that petitioner is being deprived of his liberty without any information or complaint charging him of any specified offense under the laws of the land.

So it appears that he is being, in effect, subjected to the punishment of deprivation of liberty for almost one year, without any definite information as to when will it end. This means that he is being subjected to imprisonment for an indefinite term. It is certainly a cruel and unusual punishment, not only because it is not authorized by any law of the land, but because it is meted out to petitioner for no specific offense at all. The violation of section 1:19 of Article III of the Constitution is indispensable.

Petitioner complains that those responsible for his detention appear to have never heard of such trifles as those contained in the Bill of Rights and even if they did, they contend that the Constitution was never meant for the "untouchables" known in the contemporary Philippine history as a "collaborators," and that no one can imagine a more glaring case for the granting of a writ of habeas corpus than that of the petitioner, it appearing that the circumstances of his arrest are self-demonstrative of the most scandalous violation of the Bill of Rights ever perpetrated under the American flag.

Petitioner, as has been shown, appears well supported in his complaint.

Now, as one of the questions raised in this case, let us determine the validity of that portion of section 19 of Commonwealth Act No. 682, an act creating the People's Court, which provides as follows:

. . . And, provided, further, That, in the interest of public security, the provisions of article one hundred twenty-five of the Revised Penal Code, as amended, shall be deemed, as they are hereby, suspended, insofar as the aforesaid political prisoners are concerned, until the filing of the corresponding information with the People's Court, but the period of suspension shall not be more than six (6) months from the formal delivery of said political prisoners by the Commander-in-Chief of the Armed Forces of the United States in the Philippines to the Commonwealth Government.

The provision of the Revised Penal Code which has been virtually suspended by this law is:

ART. 125. Delay in the delivery of detained persons to the proper judicial authorities. — The penalties provided in the next preceding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours. (As amended by Act No. 3940.)

The pertinent provisions of our fundamental law which limit the powers of the legislative branch of our government in the enactment of laws are as follows:

ART. III. — BILL OF RIGHTS

SECTION 1. (1) No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.

x x x x x x x x x

(15) No person shall be held to answer for a criminal offense without due process of law.

x x x x x x x x x

(17) In all criminal prosecutions the accused shall be presumed to be innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf.

Development of the Doctrine of Due Process of Law.

Though the words "due process of law" have not a long history, the doctrine implied by them has a history in Anglo-American law which extends for more than seven hundred years — back, indeed, to the signing of Magna Charta. And yet, notwithstanding this long period during which countless opportunities have presented themselves for its application and judicial definition, the doctrine has not yet received a statement in such a form that its specific applications can, in all cases, be determined. This failure has been due, not to any lack of judicial effort or acumen, but to the very nature of the doctrine which, asserting a fundamental principle of justice rather than a specific rule of law, is not susceptible of more than general statement. The result is, that the meaning of the phrase has to be sought in the history of its specific applications, and, as the variety of these possible applications is infinite, it will probably never be possible to say that the full content of that meaning has been determined. In Twining vs. New Jersey (211 U.S., 78), we find the court saying: "Few phrases in the law are so elusive of exact apprehension as this. This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise." So also in Davidson vs. New Orleans (96 U.S., 97), the court said: "to define what it is for a state to deprive a person of life, liberty or property without due process of law, in terms which would cover every exercise of power thus forbidden to the state, and exclude those which are not, no more useful construction could be furnished by this or any other court to any part of the fundamental law." And, later in the same opinion: "There is wisdom in the ascertaining of the intent and application of such an important phrase in the Federal Constitution by the gradual process of judicial inclusion and exclusion as the cases presented for decision shall require, with the reasoning on which such discussions may be founded."

In Holden vs. Hardy (169 U.S., 366) the court said: "This court has never attempted to define with precision the words "due process of law." It is sufficient to say that there are certain immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard."

It would appear, then, that a complete knowledge of the meaning of the doctrine of due process of law in American constitutional jurisprudence can be obtained only by a study of every case in which its application has been sought. . . .

Per Legem Terrae.

The historical antecedents of the phrase "due process of law" may be clearly traced back to the expression per legem terrae as it occurs in the Charter wrung by the Barons from King John. The 39th chapter of that document provides that "no freeman shall be taken, or imprisoned, or disseized, or outlawed, or exiled, or in any way destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land" (per legem terrae). In the later re-issues and reaffirmations of this charter by Henry III, in 1216, 1217 and 1225, this provision was repeated, with, however, in the issues of 1217 and 1225, the addition of the words after disseized, "of his freehold, or liberties, or free customs," (de libera tenemento suo vel libertatibus, vel liberis consuetudinibus suis).

The words of Magna Charta, per legem terrae, probably had at this time the technical meaning that no civil or criminal plea should be decided against a freeman until he had been given the opportunity to furnish the customary "proof" which the law, as it then stood, recognized and permitted him to offer. This proof might be by battle, or ordeal, or by compurgation. Whatever form it might assume it was technically known as a law (lex), that is, as a test according to which the defendant's claim was to be upheld or denied. (McKechnie, Magna Charta, 102, 441, 442; Thayer, Evidence, 200; Bigelow, History of Procedure, 155. Thayer and Bigelow are cited by McKechnie.)

In the various petitions of the Parliament in the Fourteenth Century against the arbitrary acts of the King's Council, the guaranty of the law of the land was appealed to, and these petitions, when assented to by the King, became, of course, statutes of the realm. Thus, in 1331, in Stat. 5 Edw. III, C. 9, it was declared that "no man from henceforth shall be attacked by any accusation, nor forejudged of life or limb, nor his lands, tenements, goods nor chattels seized into the King's hands against the form of the Great Charter and the law of the land." So again, in 1351, in Stat. 25, Edw. III, C. 4, it was declared that "from henceforth none shall be taken by petition or suggestion made to our lord the King or his Council, unless it be by presentment or indictment of his good and lawful people of the same neighborhood, where such deeds be done, in due manner, or by process made by writ original at the common law, nor that none be ousted of his franchises, nor of his household, unless he be fully brought in to answer and forejudged of the same by the courts of the law." Still again, in 1355, in Stat. 28, Edw. III, C. 3, there was a substantially similar provision, and there, for what would appear to be the first time, we have the modern phrase employed. "No man," it was declared, "of what state or condition so ever he be, shall be put out of his lands, or tenements, nor taken, nor imprisoned, nor indicted, nor put to death, without he be brought in to answer by due process of law." (Par due process de lei.) (Cf. McGehee, Due Process of Law, Chap. I.)

It is thus apparent that in these petitions and statutes of Edward III, the phrases "due process of law" and "the law of the land" had come to be synonymous, both indicating, as the substance of the petitions shows, that the guaranty insisted upon was that persons should not be imprisoned except upon due indictment, or without an opportunity on their parts to test the legality of their arrest and detention, and that their property should not be taken except in proceedings conducted in due form in which fair opportunity was offered to the one claiming ownership or right to possession to appear and show cause, if any, why the seizure should not be made.

The Petition of Right of 1628, approved by Charles I, recited various arbitrary acts complained of, and appealed to "the laws and franchises of the realm." Coke, in his Second Institute, defined the phrase per legem terrae as meaning "the common law, statute law or custom of England," and then declared: "For the true sense and exposition of these words, see the Statute 37, Edw. III, C. 8, where the words "by the law of the land" are rendered "without due process of law", for there it is said, though it be contained in the Great Charter, that no man be taken, imprisoned, or put out of his freehold without due process of law; that is by indictment or presentment of good and lawful men where such deeds be done or by writ original of the common law.

It was in this sense as employed in the statutes of Edward III and by Coke, and as relating solely to matters of procedure, that the phrase due process of law was introduced into, American law. (3 Willoughby on the Constitution of the United States, 2d ed., sections 1113, 1114, pp. 1685, 1688,)

English and American Use of the Phrase "Due Process of Law" Contrasted.

Coming now to American practice we find that the exact phrase "due process of law" was not employed in any of the eleven State constitutions adopted prior to the Federal Constitution, but that it early found expression in substance, if not in very words, in those instruments. The very words do, however, appear in the Declaration of Rights of the State of New York, adopted in 1777, and in one of the amendments proposed by that State to the Federal Constitution as drafted by the convention of 1787. The first appearance of the express provision in an American instrument of government is in the Fifth Article of Amendment to the Constitution of the United States, adopted in 1791. That amendment provides, inter alia, that "nor shall any person . . . be deprived of life, liberty or property, without due process of law." The Federal imposition of this requirement upon the States did not come until 1868 when the Fourteenth Amendment was ratified.

It is a very remarkable fact that not until our written Constitution was more than half a century old did the phrase receive an interpretation and application which approximates that which it has today, and not, indeed, until a hundred years had passed away was resort had to it as the usual device of those disapproving of the acts of their legislatures. This, however, is no doubt in a measure explainable by the fact that not until the increased complexity of social and industrial life had led, upon the one hand, to the use by the State and Federal Governments of administrative process more or less summary in character and, upon the other hand, to a marked increase in the regulative control of law over private acts and the use of public property, did there appear the necessity for the appeal to this limitation by those who conceived themselves injured by the exercise of such administrative powers or by the enforcement of these legislative regulations.

In two most important respects the application in America of the requirement of due process of law has differed from that which it had received in England prior to 1776, and which, indeed, it still receives in that country. These are: (1) that, in the United States, it operates as a limitation upon the legislative as well as upon the executive branch of the government, and (2) that it relates to substantive as well as to procedural rights. This second application is, however, one which, as we shall see, was not at first developed.

Before the requirement could be recognized as one upon the legislature there had first to be established the doctrine that the courts, when called upon to apply the enactments of the lawmaking branch of the government of which they themselves constitute the judiciary, may declare the invalidity of enactments which, in their judgment, conflict with the provisions of the written Constitution. This doctrine, as is well known, was not accepted without protest, but may be said to have received final and decisive sanction as a fundamental principle of American constitutional jurisprudence in the great opinion of Marshall, rendered in 1803, in the case of Marbury vs. Madison (1 Cr., 137).

That, as contrasted with English practice, the requirement of due process of law was a limitation upon the legislative power, so far, at least, as to render void an enactment authorizing a taking of life, liberty or property by an arbitrary or otherwise defective procedure, seems early to have been held, the argument being founded upon the obvious fact that, as contrasted with the English constitutional documents, American written instruments of government and their accompanying Bills of Rights have for their primary aim the delimitation of the powers of all the departments of government, — of the legislative as well as the executive and judicial. (3 Willoughby, 2d ed., section 1115, pp. 1689, 1690.)

The possibility, under a popular form of government, of oppression in the form of laws enacted by their own representatives, does not appear to have been keenly felt by the people. So far, however, as it was apprehended, the early view seems to have been that the restraints of natural law would be operative, according to the doctrine that the law-making branch of every government is inherently without the power arbitrarily and oppressively to invade the sphere of private rights of persons and property. This natural law doctrine, though it can never be said to have gained a definite establishment, even for a time, nevertheless received frequent obiter assertion, and its influence was for a long time seen in discussions of our higher courts. Thus, for example, in 1875, in Loan Association vs. Topeka the court said: "It must be conceded that there are such rights in every free government beyond the control of the state, — a government which recognized no such rights, which held the lives, the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power is, after all, but a despotism .. The theory of our governments, state and municipal, is opposed to the deposit of unlimited power anywhere. The executive, the legislative and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments — implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A And B who were husband and wife to each other should be no longer, but that A should thereafter be the husband of C, and B the wife of D, or which should enact that the homestead now owned by A should henceforth be the property of B." 3 Willoughby, United States Constitutional Law, section 1116, pp. 1692, 1693.)

There are certain general principles, well settled, however, which narrow the field of discussion, and may serve as helps to correct conclusions. These principles grow out of the proposition universally accepted by American courts on the authority of Coke, that the words "due process of law" are equivalent in meaning to the words "law of the land," contained in that chapter of Magna Charta which provides that "no freeman shall be taken, or imprisoned, disseized, or outlawed, or exiled, or any wise destroyed; nor shall we go upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land."

In Hagar vs. Reclamation Dist. it was said: "It is sufficient to say that by due process of law is meant one which, following the forms of law, is appropriate to the case and just to the parties to be affected. It must be pursued in the ordinary mode prescribed by the law, it must be adapted to the end to be attained, and whenever it is necessary for the protection of the parties, it must give them an opportunity to be heard respecting the justness of the judgment sought. The clause, therefore, means that there can be no proceeding against life, liberty, or property which may result in deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights."

"By the law of the land," said Webster in a much quoted paragraph, "is most clearly intended the general law which hears before it condemns; which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty and property and immunities under the protection of general rules which govern society. Everything which may pass under the form of an enactment is not law of the land." (3 Willoughby, 2d ed., pp. 1708, 1709.)

The fact that the requirement as to due process includes, to a very considerable extent at least, the guarantee of equal protection of the laws, is especially shown in the opinion of the court in Smyth vs. Ames where it is said: "The equal protection of the laws, which by the Fourteenth Amendment no State can deny to the individual, forbids legislation, in whatever form it may be enacted, by which the property of an individual is, without compensation, wrested from him for the benefit of another, or of the public."

The possible distinction between the two prohibitions we find touched upon by Chief Justice Taft in his opinion in Truax vs. Corrigan. He there said: "It may be that they (the two prohibitions) overlap, that a

violation of one may involve at times the violation of the other, but the spheres of the protection they offer are not conterminous. . . . The due process clause . . . of course tends to secure equality of law in the sense that it makes a required minimum of protection for everyone's right of life, liberty, and property, which the Congress of the legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law. . . . But the farmers and adopters of this (Fourteenth) Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty. The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process." Thus, in the instant case, the Chief Justice pointed out that the State statute under examination which prohibited interference by injunctions in disputes between employers and employees concerning terms or conditions of employment resulted in the recognition of one set of actions against ordinary tort feasors and another set against tort feasors in labor disputes. The contention that no one has a vested right to injunctive relief, he said, did not meet the objection that the granting of equitable relief to one man or set of men, and denying it to others under like circumstances and in the same jurisdiction was a denial of the equal protection of the laws.

In Hayes vs. Missouri the court said of the Fourteenth Amendment that it "does not prohibit legislation which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions both in the privileges conferred and in the liabilities imposed." Having quoted this statement, Chief Justice Taft in Truax vs. Corrigan added: "Indeed, protection is not protection unless it does so. Immunity granted to a class, however limited, having the effect to deprive another class, however limited, of a personal or property right, is just clearly a denial of equal protection of the laws to the latter class as if the immunity were in favor of, or the deprivation of right permitted worked against, a larger class."

From what has been said it is clear that, in many cases, laws which have been held invalid as denying due process of law might also have been so held as denying equal protection of the laws, or vice versa, and that, in fact, in not a few cases the courts have referred to both prohibitions leaving it uncertain which prohibition was deemed the most pertinent and potent in the premises. "One of the best general statements of the scope and intent of the provision for the equal protection of the laws is that given by Justice Field in his opinion in Barbier vs. Connolly, in which, speaking for the court, he said:

"The Fourteenth Amendment in declaring that no State "shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws," undoubtedly intended, not only that there should be no arbitrary deprivation of life or liberty or arbitrary spoliation of property but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits by anyone except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one that such as is prescribed to all for like offenses." (3 Willoughby 2d ed., pp. 1928, 1930.)

The legislature may suspend the operation of the general laws of the State, but when it does so the suspension must be general, and cannot be made for individual cases or for particular localities. Privileges may be granted to particular individuals when by so doing the rights of others are not interferred with; disabilities may be removed; the legislature as parens patriae, when not forbidden, may grant authority to

the guardians or trustees of incompetent persons to exercise a statutory control over their states for their assistance, comfort, or support, or for the discharge of legal or equitable liens upon their property; but every one has a right to demand that he be governed by general rules, and a special statute which, without his consent, singles his case out as one to be regulated by a different law from that which is applied in all similar cases, would not be legitimate legislation, but would be such an arbitrary mandate as is not within the province of free governments. Those make the laws "are to govern by promulgated, established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough." This is a maxim in constitutional law, and by it we may test the authority and binding force of legislative enactments. (Cooley's Constitutional Limitations, 7th ed., pp. 558, 559.)

Equality of rights, privileges, and capacities unquestionably should be the aim of the law; and if special privileges are granted, or special burdens or restrictions imposed in any case, it must be presumed that the legislature designed to depart as little as possible from this fundamental maxim of government.

The State, it is to be presumed, has no favors to bestow, and designs to inflict no arbitrary deprivation of rights. Special privileges are always obnoxious, and discriminations against persons or classes are still more so; and, as a rule of construction, it is to be presumed they were probably not contemplated or designed. (Cooley's Constitutional Limitations, 7th ed., pp. 562, 563.)

It is usual for state constitutions and statutes to provide for the accused a speedy and public trial. By a speedy trial is meant one that can be had as soon after indictment as the prosecution can with reasonable diligence prepare for, regard being had to the terms of court; a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppressive delays. The term "speedy" as thus used, being a word of indeterminate meaning, permits legislative definition to some extent; and the authorities uniformly hold that such statutes are enacted for the purpose of enforcing the constitutional right, and that they constitute a legislative construction or definition of the constitutional provision, and must be construed fairly to the accomplishment of that end. Any act of the legislature which infringes the constitutional provision is necessarily nugatory. (16 C. J., pp. 439, 440.)

"The purpose of the statute (1) is to prevent continued incarceration without opportunity to the accused, within a reasonable time, to meet the proofs upon which the charge is based." (State vs. Miller, 72 Wash., 154, 159, 163; 129 P., 1140.) (2) "The constitutional privilege of a speedy trial was intended to prevent an arbitrary, indefinite imprisonment, without any opportunity to the accused to face his accusers in a public trial. It was never intended as furnishing a technical means for escaping trial." (State vs. Miller, supra.) (3) "The sole object and purpose of all the laws from first to last, was to ensure the speedy trial to the accused, and to guard against the a protracted imprisonment or harrassment by a criminal prosecution, an object but little if any less interesting to the public than to him." (Com. vs. Adcock, 8 Grat. [49 Va.], 661, 680.) (Quote Denham vs. Robinson, 72 W. Va. 243, 255; 77 S. E., 970; 45 L.R.A., N.S., 1123; Ann. Cas. 1915D, 997.) (See also Ex parte Santee (2 Va. Cas. [4 Va.], 363, 365) (where the court said: that whilst it has an eye to the solemn duty of protecting the public against the wrongs of those who are regardless of their obligations to society, and to the delays which the Commonwealth may unavoidably encounter in prosecuting breaches of these obligations, it is studious to shield the accused from consequences of the laches of those to whom the duty of conducting the prosecution may have been assigned. The public has rights as well as the accused, and one of the first of these is, that of redressing, or punishing their wrongs. It would not seem reasonable that this right, so necessary for the preservation of society, should be forfeited without its default).

"This provision of our constitutions must receive a reasonable interpretation. It can not be held to mean that in all the possible vicissitudes of human affairs, a person who is accused of a crime shall have a speedy and public trial in due form of law, because there may be times when the civil administration will be suspended by the force of uncontrollable circumstances. This constitutional provision was adopted

upon general considerations growing out of the experience of past times, and was intended to prevent the government from oppressing the citizen by holding criminal prosecutions suspended over him for an indefinite time; and it was also intended to prevent delays in the customary administration of justice, by imposing upon the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal accusations." (Ex parte Turman, 26 Tex., 708, 710; 84 Am. D., 598.). (16 C.J., 440, footnote.)

In any criminal case, the person accused may not be deprived of life, liberty, or property except by due process of law, even though he is guilty. The law by which the question of due process is determined is the law of the jurisdiction where the offense was committed and the trial is had.

Due process of law in a criminal case requires a law creating or defining the offense, a court of competent jurisdiction, accusation in due form, notice and opportunity to defend, trial before an impartial judge or judge and jury according to established criminal procedure, and a right to be discharged unless found guilty. . . .

While the freedom of the state and federal governments to control and regulate the procedure of their courts for the prosecution of criminal offenses is limited by the requirement of the process of law, and the procedure must not work a denial of fundamental rights of accused included within the conception of due process, no particular form or method of procedure in criminal cases is required by the guaranty of due process so long accused as accused has due and sufficient notice of the charge or accusation and an adequate opportunity to be heard in defense. (16 C.J.S., pp. 1171-1173.)

An emergency existing does not increase constitutional power or diminish constitutional restrictions; hence while emergency legislation may temporarily limit available remedies, it does not contemplate the permanent denial of due process. (16 C.J. S., p. 1157.)

Although a law is fair on its face and impartial in appearance, yet, if it is applied and administered with an evil eye and unequal hand, so as to make unjust and illegal discrimination, it is within the prohibition of the Federal Constitution. (Chy Lung vs. Freeman, 92 U.S., 275; 23 Law, ed., 550.)

The action of a state through its officers charged with the administration of a law fair in appearance may be of such a character as to constitute a denial of the equal protection of the laws. (Bailey vs. Alabama, 219 U.S., 219; 31 Sup. Ct. Rep., 145; 55 Law. ed., 191.)

The clause "due process of law" means that there can be no proceeding against life, liberty or property which may result in the deprivation of either, without the observance of those general rules established in our system of jurisprudence for the security of private rights. (Turpin vs. Lemon, 187 U.S., 51; 23 Sup. Ct. Rep., 20; 47 Law. ed., 70.)

CRIMINAL ACCUSATIONS

Perhaps the most important of the protections to personal liberty consist in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or country. The mode of investigating the facts, however, is the same in all; and this through a trial by jury, surrounded by certain safeguards which are a well understood part of the system, and which the government cannot dispense with.

First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their

initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact.

If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible parties to pay it to the government in case the accused should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. . . . The presumption of innocence is an absolute protection against conviction and punishment, except either, first on confession in open court; or, second, on proof which places the guilt beyond any reasonable doubt. Formerly, if a prisoner arraigned for felony stood mute wilfully, and refused to plead, a terrible mode was resorted to for the purpose of compelling him to do so; and this might even end in his death; but a more merciful proceeding is now substituted; the court entering a plea of not guilty for a party who, for any reason, fails to plead for himself.

Again, it is required that the trial be speedy; and here also the injunction is addressed to the sense of justice and sound judgment of the court. In this country, where officers are specially appointed or elected to represent the people in these prosecutions, their position gives them an immense power for oppression; and it is so to be feared they do not always sufficiently appreciate the responsibility, and wield the power with due regard to the legal rights and privileges of the accused. When a person charged with crime is willing to proceed at once to trial, no delay on the part of the prosecution is reasonable, except only that which is necessary for proper preparation and to secure the attendance of witnesses. Very much, however, must be left to the judgment of the prosecuting officer in these cases; and the court would not compel the government to proceed to trial at the first term after indictment found or information filed, if the officer who represents it should state, under the responsibility of his official oath, that he was not and could not be ready at that time. But further delay would not generally be allowed without a more specific showing of the causes which prevent the State proceeding to trial, including the names of the witnesses, the steps taken to procure them, and the facts expected to be proved by them, in order that the court might judge of the reasonableness of the application, and that the prisoner, might, if he saw fit to take that course, secure an immediate trial by admitting that the witnesses, if present, would testify to the facts which the prosecution have claimed could be proven by them. (Cooley's Constitutional Limitations, 7th ed., pp. 436-441.)

Section 19 of our Bill of Rights provides that "no citizen of this state shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land."

"Law of the land" is interpreted to mean a general public law, operating equally upon every member of the community. (Re Jilz, 3 Mo. App., 246.)

"No state shall . . . deny to any person within its jurisdiction the equal protection of the laws;" "nor shall any state deprive any person of life, liberty, or property without due process of law." . . . U.S. Constitution, section 1, article 14.

Due process of law under the 14th Amendment and the equal protection of the law are secured if the law operates on all alike and does not subject the individual to the arbitrary exercise of the powers of

government. (Duncan vs. Missouri, 152 U.S., 382; 38 Law. ed. 487; 14 Sup. Ct. Rep., 570; Hurtado vs. California, 110 U.S., 535; 28 Law. ed., 232; 4 Sup. Ct. Rep., 111, 292.)

Do laws operate equally upon the citizens of the Commonwealth of Texas which will imprison under like verdicts one man for a month and another for six months? Manifestly not.

Section 3 of the Bill of Rights to the State Constitution provides: "All freemen, when they form a social compact, have equal rights."

A law which makes different punishments follow the same identical criminal acts in the different political subdivisions of Texas violates both our state and Federal Constitutions. It fails to accord equal rights and equal protection of the law, and a conviction under it is not in due course of the "law of the land." Re Jilz (3 Mo. App., 246); Re H.F. Millon (16 Idaho, 737; 22 L.R.A. [N.S.], 1123; 102 Pac., 374), and Jackson vs. State (55 Tex. Crim. Rep., 557; 117 S.W., 818), are cited in support of our view in their reasoning.

We think the principles announced in the case of Ex parte Jones (106 Tex. Crim. Rep., 185; 290 S.W., 177), apply in some degree to the instant case. It was there held that article 793, Code Crim. Proc., superseded and controlled an ordinance of the city of Dallas which allowed only 50 cents per day to be credited upon the fine of a convict for labor performed. Provisions similar to those quoted in our state constitution have been a part of Anglo-Saxon jurisprudence since there was wrung from the unwilling hands of King John at Runnymede in 1215 the Magna Charta, which itself provides that a freeman shall not be passed upon or condemned but "by the lawful judgment of his peers and the law of the land." "Law of the land" has the same legal meaning as "due process of law," and one of its accepted meanings is that quoted above. Re Jilz, 3 Mo. App., 243; 3 Words & Phrases, pp. 2227-2232. (Ex parte Sizemore, 59 A.L.R., Annotated, pp. 430, 432.)

And in Re Jilz ([1877]), 3 Mo. App., 243), an act of the legislature of Missouri, which, by limiting the power of a court established in a certain county to assess punishments, varied the penalties for crimes committed therein from those fixed by the general law for the whole state, was held to be unconstitutional in so far as it had that effect, the court saying: "A law which should prescribe death as the punishment of murder in one county, and imprisonment as the penalty for the same crime in other parts of the state, would be void, because not operating equally upon all inhabitants of the state. The general law applicable to the state prescribes, as the punishment for the offense for which the petitioner was convicted, imprisonment in the county jail not exceeding one year, or fine not exceeding $500, or both such fine imprisonment. . . . A law prescribing a different punishment from this in St. Louis county is clearly unconstitutional. It follows that so much of the act referred to, establishing the court of criminal correction, as limits the punishment for this misdemeanor in St. Louis county to imprisonment for six months, is void."

So, in State vs. Buchardt (Mo.) supra, where the same legislative act was in question, the court says: "Under our Constitution, it is not permissible to punish the same offense or violation of some public or general law by one species of punishment in one locality, and by a different or more heavy punishment in other localities in the state. A law inflicting such different penalties for the perpetration of any given crime cannot bear the test of judicial examination."

And, in State vs. Gregori ([1928], — Mo — , 2 S.W. [2d], 747), an act of the legislature which made children seventeen years of age in counties of 50,000 population or more subject to the juvenile court act, while in counties of less than 50,000 population children seventeen years of age were not subject to the juvenile court act, but were subject to full criminal responsibility, was held unconstitutional as denying equal protection of the laws; the court stating that it was the general doctrine that the law relative to those who might be charged with and convicted of crime, as well as to the punishment to be inflicted therefor, should operate equally upon every citizen or inhabitant of the state.

And, in State vs. Fowler ([1927], 193 N.C., 290; 136 S.E., 709), an act of the North Carolina legislature, applicable to five counties of the state only, which imposed as punishment for a specified offense a fine only, while a statute applicable to the whole state imposed a fine or imprisonment, was held to be unconstitutional under both the Federal and State Constitutions as a denial of the equal protection of the laws. The court says: "But the statute under consideration cannot be sustained on the ground that it was enacted in the exercise of the police power. The question is whether it shall supersede "the law of land" — the general public law which was designed to operate without exception or partiality throughout the state. It is needful to remember that indictment was drafted under the general law, and that the decisive question is whether offenders in the five counties referred to may lawfully be exempted from the punishment prescribed by the general law; whether they shall be subject only to a fine when the offenders in ninety-five other counties may be punished by imprisonment. In our judgment this part of section 2 is neither equal protection of the laws nor the protection of equal laws. . . . It is the grant of a special exemption from punishment or an exclusive or separate privilege which is forbidden by the cited provision. . . . The principle of uniformity in the operation of a general law extends to the punishment, and denounces as arbitrary and unreasonable the imposition in one county of any kind of punishment which is different from that which is prescribed under the general law to all who may be guilty of the same offense. It follows that the provision limiting the punishment for the first offense to a fine must be regarded as an arbitrary class distinction which cannot be sustained because forbidden by the fundamental law, and the judgment which was pronounced by authority of the general law must be upheld. (Annotation, 59 A.L.R., Annotated, p. 434.)

Bills of attainder were prohibited to be passed, either by the Congress or by the legislatures of the several States. Attainder, in a strict sense, means an extinction of civil and political rights and capacities; and at the common law it followed, as of course, on conviction and sentence to death for treason; and, in greater or less degree, on conviction and sentence for the different classes of felony.

A bill of attainder was legislative conviction for alleged crime, with judgment of death. Such convictions have not been uncommon under other governments, and the power to pass these bills has been exercised by the Parliament of England at some periods in its history, under the most oppressive and unjustifiable circumstances, greatly aggravated by an arbitrary course of procedure, which had few of the incidents of a judicial investigation into alleged crime. For some time before the American Revolution, however, no one had attempted to defend it as a legitimate exercise of power; and if it would be unjustifiable anywhere, there were many reasons why it would be specially obnoxious under a free government, and why consequently its prohibition, under the existing circumstances of our country, would be a matter of more than ordinary importance. Every one must concede that a legislative body, from its numbers and organization, and from the very intimate dependence of its members upon the people, which renders them liable to be peculiarly susceptible to popular clamor, it not properly constituted to try with coolness, caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is strongly excited — the very class of cases most likely to be prosecuted by this mode. And although it would be conceded that, if such bills were allowable, they should properly be presented only for offenses against the general laws of the land, and be proceeded with on the same full opportunity for investigation and defense which is afforded in the courts of the common law, yet it was remembered that in practice they were often resorted to because an obnoxious person was not subject to punishment under the general law, or because, in proceeding against him this mode, some rule of the common law requiring a particular species of degree of evidence might be evaded, and a conviction secured on proofs that a jury would not be suffered to accept as overcoming the legal presumption of innocence. Whether the accused should necessarily be served with process; what the degree or species of evidence should be required; whether the rules of law should be followed, either in determining what constituted a crime, or in dealing with the accused after conviction — were all questions which would necessarily address themselves to the legislative discretion and sense of justice; and the very qualities which are essential in a court to protect individuals on trial before them against popular clamor, or the hate of those in powers, were precisely those which were likely to prove weak or wanting in the legislative

body at such a time. And what could be more obnoxious in a free government than the exercise of such a power by a popular body, controlled by a mere majority, fresh from the contests of exciting elections, and quite too apt, under the most favorable circumstances, to suspect the motives of their adversaries, and to resort to measures of doubtful propriety to secure party ends?

Nor were legislative punishments of this severe character the only ones known to parliamentary history; there were others of a milder form, which were only less obnoxious in that the consequences were less terrible. These legislative convictions which imposed punishments less than that of death were called bills of pains and penalties, as distinguished from bills of attainder; but the constitutional provisions we have referred to were undoubtedly aimed at any and every species of legislative punishment for criminal or supposed criminal offenses; and the term "bill of attainder" is used in a generic sense, which would include bills of pains and penalties also.

The thoughtful reader will not fail to discover, in the acts of the American States during the Revolutionary period, sufficient reason for this constitutional provision, even if the still more monitory history of the English attainders had not been so freshly remembered. Some of these acts provided for the forfeiture of the estates, within the Commonwealth, of those British subjects who had withdrawn from the jurisdiction because not satisfied that grievances existed sufficiently serious to justify the last resort of an oppressed people, or because of other reasons not satisfactory to the existing authorities; and the only investigation provided for was an inquiry into the desertion. Others mentioned particular persons by name, adjudged them guilty of adhering to the enemies of the State, and proceeded to inflict punishment upon them so far as the presence of property within the Commonwealth would enable the government to do so. These were the resorts of a time of extreme peril, and if possible to justify them in a period of revolution, when everything was staked on success, and when the public safety would not permit too much weight to scruples concerning the private rights of those who were not aiding the popular cause, the power to repeat such acts under any conceivable circumstances in which the country could be placed again was felt to be too dangerous to be felt in the legislative hands. So far as proceedings had been completed under those acts before the treaty of 1783, by the actual transfer of property, they remained valid and effectual afterwards; but so far as they were then incomplete, they were put an end to by that treaty.

The conviction of the propriety of this constitutional provision has been so universal, that it has never been questioned, either in legislative bodies or elsewhere. Nevertheless, cases have recently arisen, growing out of the attempt to break up and destroy the government of the United States, in which the Supreme Court of the United States has adjudged certain actions of Congress to be in violation of this provision and consequently void. The action referred to was designed to exclude from practice in the United States courts all persons who had taken up arms against the government during the recent rebellion, or who had voluntarily given aid and encouragement to its enemies; and the mode adopted to effect the exclusion was to require of all persons, before they should be admitted to the bar or allowed to practice, an oath negativing any such disloyal action. This decision was not at first universally accepted as sound; and the Supreme Courts of West Virginia and of the District of Columbia declined to follow it, insisting that permission to practice in the courts is not a right, but a privilege, and that the withholding it for any reason of State policy or personal unfitness could not be regarded as the infliction of criminal punishment.

The Supreme Court of the United States has also, upon the same reasoning, held a clause in the Constitution of Missouri, which, among other things, excluded all priests and clergymen from practising or teaching unless they should first take a similar oath of loyalty, to be void, overruling in so doing a decision of the Supreme Court of that State. (Cooley's Constitutional Limitations, 7th ed., pp. 368-372.)

The legal problem confronting us is characterized by the fact that we have to avoid the misleading effect resulting from the difference between the text and letter of the law and their grammatical sense and effect on one side, and as it is interpreted and applied in actual practice.

Apparently, there is nothing so harmless as the provision of section 19 of Act No. 682, suspending for a period of not more than six months the provision of article 125 of the Revised Penal Code as amended.

Article 125 of the Revised Penal Code punishes the public officer or employee who "shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours."

Said article has nothing to show that it bears constitutional sanction. It is only a part of the penal laws which are within the full jurisdiction of the legislative power to enact or not to enact. The Philippine Legislature which enacted the Revised Penal Code could have failed to do so without, by that very fact, violating any provision of the Constitution. The succeeding legislative bodies — the unicameral National Assembly and the Congress — may, without question, repeal or suspend article 125 of the Revised Penal Code, as any other article of the same, or even the whole code.

Therefore, as an abstract proposition, as a matter of legal technicality, we believe that there is absolutely no ground for disputing the power of the legislative body to suspend or even repeal article 125 of the Revised Penal Code.

But the provision is vitiated:

(1) By the fact that it is a class legislation, excluding the political prisoners concerned from the same benefits and protection afforded all other persons by article 125.

(2) By the fact that it is interpreted and applied, not only in a negative sense as a deterrent against public officials or employees bent on encroaching and trampling upon the personal freedom of any person, but as a positive authority to said officers and employees to deprive and continue depriving the political prisoners concerned of their personal liberty, without due or any legal process of law provided the deprivation of liberty did not exceed six months, but without reckoning the previous many months of illegal detention they had already suffered before their formal transfer to the Commonwealth Government.

For these two radical and incurable defects, section 19 of Act No. 682 runs counter to the Constitution when it prohibits that no person shall be deprived of his liberty without due process of law nor shall any person be denied the equal protection of the laws. (Article III, section 1 [1], Constitution of the Philippines.)

No one can, with candor and fairness, deny the discriminatory character of the provision. If all discriminations are abhorrent under any regime of law and justice, imperatively more in a democracy such as ours, tribunals must be recreant to their duties if they fail to deny validity to such an odious legal measure, conceived, adopted, and unhappily enacted by the legislative power in one of its blundering moods in utter defiance of the fundamental law of the land.

Petitioner points out that in the provision there is an unconstitutional delegation of legislative powers, because the power to suspend the provision of article 125 of the Revised Penal Code within the maximum period of six months, in fact, is transferred to the Special Prosecutors' Office, which may shorten or lengthen said suspension by filing the corresponding criminal information at any time it may deem convenient.

The Special Prosecutors' Office may not suspend altogether article 125 of the Revised Penal Code by filing immediately the information. It may suspend it for 10 days, by filing the information within that time. It may suspend it for one month, two months, or three months, by filing the information within the desired time. It may suspend it for a maximum period of six months just by mere inaction, by not filing any information at all. The result is, in fact, to place in the hands of the Special Prosecutors' Office the power to suspend article 125 for any length of time within the maximum period of six months. And what is worst is that the suspension that the Special

Prosecutors' Office may decree is individualized, and not of general effect to all the political prisoners concerned, thus making the Special Prosecutors' Office a kind of dictatorship which may dispense its favors and disfavors to individual prisoners under no other test than its convenience and whims.

Evidently, petitioner's complaint is well-taken, giving additional ground for the nullity of the provision in question, the legislative power having been reserved by the Constitution exclusively to Congress.

Lastly, the provision in question appears to legalize the many months of illegal detention already endured by the political prisoners concerned. The legislative power can not legalize illegal detention, much more if that illegal detention has been perpetrated in utter violation of the Bill of Rights of the Constitution.

Petitioner assails the validity of the whole Act No. 682, aside from what has been already said about section 19 thereof, upon the following grounds:

(1) Because it is an ex post facto law, violating section 1 (11), Article III, of the Constitution, petitioner having been deprived of his acquired right to be freed, under penalty to his detainers, within six hours after his detention under article 125 of the Revised Penal Code.

(2) Because section 2 set up a legal trap by which a person, accused in the information of an offense, may be convicted and sentenced for a different one, thus violating his constitutional right "to be informed of the nature and cause of the accusation against him." (Section 1 [17], Article III, Constitution of the Philippines.)

(3) Because it creates a special court to try cases arising years before its creation, transferring a jurisdiction belonging to courts of first instance to the People's Court, a blunder identical in nature and viciousness to the former practice of shuffling judges of first instance, the judicial rigodon resorted to before to suit certain purposes of the government and which was stopped by Judge Borromeo's courageous defense of the independence of the judiciary, in a leading case before the Supreme Court which made history.

(4) Because the creation of the People's Court is a judicial gerrymandering.

(5) Because the name "People's Court" suggests a political entity, a popular dispenser of political justice, in contrast with the stable, impartial, cultured nature of a judiciary, detached from momentary interests and influences.

(6) Because the self-extinguishing character of the People's Court makes it an agency for special mission, more an agency of the legislature than that of the administration of justice.

(7) Because it disqualifies members of the judiciary who served under the Japanese regime.

We cannot but recognize that strength of the objections, specially objections (1), (2) and (7).

But we are not ready to support petitioner's contention that the whole act should be declared null and void, considering that the unconstitutional provisions thereof may be segregated and the remaining portions of the text may stand on their own feet.

Objection (1) adds only another ground to show the unconstitutionality of the provision of section 19, suspending article 125 of the Revised Penal Code; and objection (2) only affects the corresponding provision of section 2 of the act. Objection (7), upon which we have already expressed our opinion in the case of De la Rama vs. Misa (42 off. Gaz., 1544), only affects the provision concerning the disqualification of certain justices of the Supreme Court.

Regarding objections (3), (4), (5), and (6), although they are meritorious, we believe that they are offset by the collegiate character of the newly created court. We are inclined to believe that the main purpose in creating the the People's Court was precisely to afford those who will be charged and tried before it a special safeguard, in the fact that more than one judge will have to hear and try a case, to counterbalance the prevailing prejudice in the community against the persons who are accused for having allegedly collaborated with the enemy. For this reason, we are of opinion that the act creating the People's Court must not be invalidated.

But it is our hope that its creation will not set a precedent that will sanction a wrong principle. Generally speaking, the creation of temporary tribunals to administer justice in specifically pre-determined existing cases is contrary to the nature and character of judicial functions and the purposes of the administration of justice, which must be characterized by the independence of judicial officers, independence that cannot be secured without guaranteeing the stability of tenure of office.

Judges are not supposed to decide on what may appear right or wrong in the evanescent moment when the voice of passion grows louder in the market of human activities. They must not make decisions in the spur of news that make screaming headlines and arouse the uncontrollable emotions of political leaders of the populace. They must decide between right and wrong by the criterion of universal conscience, by the judgment, not only of the fleeting instance of evolving history, but the unending caravans of generations to come.

The inherent justice of their decisions must continue being sensed as the treasured human heritage long long after they had rendered their inescapable tribute to death, like the aroma which continues enriching and sweetening the air long after the flowers have been crushed in the chemist's retorts to give way to their perfumed essence, like the beauty of the temples and palaces of Palmyra which continues charming our memory millenniums after they have become lust dusty ruins, like the heavenly melodies which continue lingering in our ears long after we have heard those musical gems, such as the masterpieces of Bach and the symphonies of Beethoven, like light emitted by stars which ceased to exist centuries ago still traveling in the immensity of space to attract our admiration and arouse dreams of immortality.

In order that judges could render judgments of lasting value which would embody the wisdom of the ages and the moral sense of all time, it is necessary that they should preside over tribunals which must be looked upon as permanent institutions of justice, not temporary makeshifts, more appropriate to serve ephemeral purposes than to be the inviolable temples of an eternal goddess. And the judges themselves, to acquire the olympic serenity, the awesome and noble austerity, the hieratic aloofness, the majestic equanimity proper of their great mission, there being none greater that can be entrusted to a person as the image of God, must feel, by the permanency, stability, and security of their tenure of office, that they owe an undivided loyalty, not to any transient idols or to any momentary masters, no matter how powerful they are, but to the inseparable twin divinities of truth and justice.

Judge Robert N. Wilkin said that the special function of a judicial officer is to determine what is right and what is wrong, not only for the clamorous present, but for silent generations yet come. From him we quote these illuminating paragraphs:

The guiding force in social evolution is not to be found in the arbitrary will of groups, nor in a common purpose. It is to be found in the law of our nature, that imminent or inherent law founded on the characteristics of human kind. "A law instilled and not imposed," as Cicero said, "a law in which we are fashioned, not instructed." It is not created by proclamation or legislative fiat. It is discovered by patient research and spiritual insight.

The true judge must have something of the vision of a prophet. He must be able to see the trends of his time extended, so that principles which he announces may be adjusted to conditions yet to come. The observation of Graham Wallas that a great judge needs a touch of the qualities that make a poet has been quoted with approval by Professor Chafee, Justice Cardozo, and others. Poets, as has been stated, bear the same relation to society as the antennae of an insect to its body; they are "feelers" of the body politic.

Their sensibilities are more acute, more advanced than those of their contemporaries, and what they feel and express today their fellows will feel and understand tomorrow. Poets, prophets, judges — they are Gods elect; we cannot elect them.

The great judge cannot be a child of his ages. If his judgments are to be great they must be timeless, or at least timed to the future. The spirit of the law should enable him to transcend the spirit of his times and he should be able to speak sub specie aeternitatis. What a desecration of the office to choose its incumbent by any system which forces him to temporize!

Judges in early times were priests, or more accurately stated, the priests performed the functions of judges. There is still much about the judicial office that is priestly. This has ever seemed quite natural to those who took seriously their first legal learning from Blackstone, who stated at the outset that all human laws depend upon divine law. While for a time that teaching seemed out of fashion, the more recent trend is to acknowledge again our subjection to a law of nature, a law divine. Be that as it may, it will not disputed that a proper performance of judicial duties requires a devotion quite similar to the consecration of the priest. Judges, like the clergy, should be kept unspotted from the world. Any personal interest, selfish concern, or party consciousness, corrupts not only the judge but the judicial function. Any want of honest detachment in the judge undermines public faith in judicial administration. As has frequently been stated, it is quite as important to the public that judges should be free from the appearance of evil as that they should be free from actual evil. The prevalent disrespect for law is prompted not so much by corruption in the courts, as by that system of choosing judges which makes every judge suspect.

The taking of judicial office should be much like the taking of holy orders — one should not do so who is unwilling to suffer a kind of civil death. The only way in which one can be worthy of the office is by submerging self in the performance of the duties of the office. A judge should be only the voice of the law. As Cicero said, "While the law is voiceless magistrate, the magistrate is law made vocal." It is arrogant presumption for a judge to pose as anything more, and gross indiscretion for him to assert his own voice. The only way in which he can avoid violation of the injunction, "Judge not, that ye be not judged," is by pronouncing, not his personal will, but the judgment of the law. How otherwise could a judge impose a death sentence and live in peace? If the judgment is his own, the blood of the condemned is upon him. If his judgment is at the behest of popular clamor he has given sanction to lynching. But if his judgment is the pronouncement of the law, the judicial function is fulfilled and his conscience is clear. The judicial robe should submerge personality and make its bearer, like a priest in vestment, an impersonal part of a divine function. (The Judicial Function and the Need of Professional Section of Judges by Robert N. Wilkin, Journal of the American Judicature Society, Vol. 29, No. 4, Dec., 1945.)

The facts of current experience showed the imperative need of an intellectual overhauling as part of the work of post-war rehabilitation in all orders of our national life. Many elemental tenets and ideals need be restated, if not rediscovered. The worries and psychological shocks caused by the Japanese initial victories and brutal oppressions concomitant with their occupation of our country, had the effect of warping the mentality and sense of moral values of not a negligible number of persons. There are men whose intellectual outlook and views of freedom and fundamental human rights, tethered by defective development of ideology, are not only outmoded, but absolutely incompatible with the trends of the progress, whose brains appear not to be completely freed from the embryonic amnion and are in need of allantoic nutrition, who would rather wield the bludgeon of jungle arbitrariness and make a coffle of serfs of free people, than abide by the constitutional precepts and the noble doctrines of the UNO Charter, whose juridical ideas, rather than in the forum of modern democracy, have their proper place among the fossils of apteryx, megatheria, and dinosaurs' museum and, notwithstanding, are being haled in apparently responsible sectors of the press as heroes of progressiveness. Such nonsense and intellectual travesty are inconceivable except in a topsy-turvy world which has adopted the thyrsus as the choicest emblem of human happiness, where the frenzied mental processes have been inverted as if in the Corinthian order, the frieze, cornice, and architrave are place at the foot of the column and above it the stylobate.

Among the basic concepts that must be included in the wholesale intellectual overhauling which we need undergo, if we have to follow the mental, social, legal, and moral thread which was cut at the impact of the disastrous invasion of our soil, is the one we have on personal liberty, upon which the traditional democratic principles we had been accepting and following before the enemy occupation, as part of the nature of our social and political institutions, appear to have been forgotten, the present case being one of a series of instances evidencing it, as can be seen in our opinions in Raquiza vs. Bradford (75 Phil., 50); Reyes vs. Crisologo (75 Phil., 225); Duran vs. Abad Santos (75 Phil., 410); Herras Teehankee vs. Rovira (75 Phil., 634); Herras Teehankee vs. Director of Prisons p. 756, post; Tañada vs. Quirino (42 Off. Gaz., 394), the pronouncements in which we are reiterating here.

The moral hiatus in our national life is over, and in this hour of resumption of democratic processes, there is an imperative need, as one of the cornerstones of our national structure, to redefine and reaffirmed our pre-war concept of human freedom.

The petitioner is entitled to be immediately set free, and we vote for restoring him to his personal freedom of which he was deprived without any legal process.

Footnotes

1 See Raquiza vs. Bradford (75 Phil., 50).

2 See 6 R.C.L., section 369; Tañada, Constitution of the Philippines, p. 74; 16 C.J.S., p. 954 et seq.

3 See 16 C.J.S., p. 865 et seq.

4 See 16 C.J.S., section 223.

5 Yangco vs. Board of Public Utility Commissioners (36 Phil., 120).

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant, vs.HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte, respondent.

MAKASIAR, J:

In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate Justice of the Court of Appeals, with "acts unbecoming a judge."

The factual setting of the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for investigation, thus:

Civil Case No. 3010 of the Court of First Instance of Leyte was a complaint for partition filed by Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the properties left by the deceased Francisco Reyes, the common father of the plaintiff and defendant.

In her defenses to the complaint for partition, Mrs. Macariola alleged among other things that; a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes; b) the only legal heirs of the deceased were defendant Macariola, she being the only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the remaining plaintiffs who were the children of the deceased by his second marriage with Irene Ondez; c) the properties left by the deceased were all the conjugal properties of the latter and his first wife, Felisa Espiras, and no properties were acquired by the deceased during his second marriage; d) if there was any partition to be made, those conjugal properties should first be partitioned into two parts, and one part is to be adjudicated solely to defendant it being the share of the latter's deceased mother, Felisa Espiras, and the other half which is the share of the deceased Francisco Reyes was to be divided equally among his children by his two marriages.

On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case 3010, the dispositive portion of which reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of evidence, finds and so holds, and hereby renders judgment (1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes as the only children legitimated by the subsequent marriage of Francisco Reyes Diaz to Irene Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate child of Francisco Reyes Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to the conjugal partnership of the spouses Francisco Reyes Diaz and Felisa Espiras; (4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses Francisco Reyes Diaz and Irene Ondez in common partnership; (5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased Francisco Reyes Diaz; (6) Declaring the defendant Bernardita R. Macariola, being the only legal and

forced heir of her mother Felisa Espiras, as the exclusive owner of one-half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the estate of Francisco Reyes Diaz; (7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No. 2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining one-half (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4) of Lot No. 3416 as belonging to the estate of Francisco Reyes Diaz; (8) Directing the division or partition of the estate of Francisco Reyes Diaz in such a manner as to give or grant to Irene Ondez, as surviving widow of Francisco Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code), and the remaining portion of the estate to be divided among the plaintiffs Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that the extent of the total share of plaintiff Sinforosa R. Bales in the hereditary estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any or each of the other plaintiffs and the defendant (Art. 983, New Civil Code), each of the latter to receive equal shares from the hereditary estate, (Ramirez vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33); (9) Directing the parties, within thirty days after this judgment shall have become final to submit to this court, for approval a project of partition of the hereditary estate in the proportion above indicated, and in such manner as the parties may, by agreement, deemed convenient and equitable to them taking into consideration the location, kind, quality, nature and value of the properties involved; (10) Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R. Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by the first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all other claims of the parties [pp 27-29 of Exh. C].

The decision in civil case 3010 became final for lack of an appeal, and on October 16, 1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A. Notwithstanding the fact that the project of partition was not signed by the parties themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion approved it in his Order dated October 23, 1963, which for convenience is quoted hereunder in full:

The parties, through their respective counsels, presented to this Court for approval the following project of partition:

COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this Honorable Court respectfully submit the following Project of Partition:

l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to Bernardita Reyes Macariola;

2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern part of the lot shall be awarded likewise to Bernardita R. Macariola;

3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;

4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;

5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;

6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions awarded under item (2) and (4) above shall be awarded to Luz Reyes Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares, provided, however that the remaining portion of Lot No. 3416 shall belong exclusively to Priscilla Reyes.

WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is made in accordance with the decision of the Honorable Court be approved.

Tacloban City, October 16, 1963.

(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City

(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City

While the Court thought it more desirable for all the parties to have signed this Project of Partition, nevertheless, upon assurance of both counsels of the respective parties to this Court that the Project of Partition, as above- quoted, had been made after a conference and agreement of the plaintiffs and the defendant approving the above Project of Partition, and that both lawyers had represented to the Court that they are given full authority to sign by themselves the Project of Partition, the Court, therefore, finding the above-quoted Project of Partition to be in accordance with law, hereby approves the same. The parties, therefore, are directed to execute such papers, documents or instrument sufficient in form and substance for the vesting of the rights, interests and participations which were adjudicated to the respective parties, as outlined in the Project of Partition and the delivery of the respective properties adjudicated to each one in view of said Project of Partition, and to perform such other acts as are legal and necessary to effectuate the said Project of Partition.

SO ORDERED.

Given in Tacloban City, this 23rd day of October, 1963.

(SGD) ELIAS B. ASUNCION Judge

EXH. B.

The above Order of October 23, 1963, was amended on November 11, 1963, only for the purpose of giving authority to the Register of Deeds of the Province of Leyte to issue the corresponding transfer certificates of title to the respective adjudicatees in conformity with the project of partition (see Exh. U).

One of the properties mentioned in the project of partition was Lot 1184 or rather one-half thereof with an area of 15,162.5 sq. meters. This lot, which according to the decision was the exclusive property of the deceased Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the project of partition was approved by the trial court the adjudicatees caused Lot 1184 to be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).

Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12).

On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11), which particular portion was declared by the latter for taxation purposes (Exh. F).

On August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The Traders Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as "TRADERS" were registered with the Securities and Exchange Commission only on January 9, 1967 (Exh. E) [pp. 378-385, rec.].

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney when in truth and in fact his name does not appear in the Rolls of

Attorneys and is not a member of the Philippine Bar; and [4] that there was a culpable defiance of the law and utter disregard for ethics by respondent Judge (pp. 1-7, rec.).

Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was filed on October 16, 1968 by herein complainant. In Our resolution of October 28, 1968, We referred this case to then Justice Cecilia Muñoz Palma of the Court of Appeals, for investigation, report and recommendation. After hearing, the said Investigating Justice submitted her report dated May 27, 1971 recommending that respondent Judge should be reprimanded or warned in connection with the first cause of action alleged in the complaint, and for the second cause of action, respondent should be warned in case of a finding that he is prohibited under the law to engage in business. On the third and fourth causes of action, Justice Palma recommended that respondent Judge be exonerated.

The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.), complainant herein instituted an action before the Court of First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the project of partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued by respondent Judge approving the same, as well as the partition of the estate and the subsequent conveyances with damages. It appears, however, that some defendants were dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed because he was no longer a real party in interest when Civil Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on the ground that she was no longer a real party in interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.

On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads as follows:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(1) declaring that only Branch IV of the Court of First Instance of Leyte has jurisdiction to take cognizance of the issue of the legality and validity of the Project of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the partition;

(2) dismissing the complaint against Judge Elias B. Asuncion;

(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge Elias B. Asuncion,

(a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00] for moral damages;

(b) the sum of TWO HUNDRED THOUSAND PESOS [P200,000.001 for exemplary damages;

(c) the sum of FIFTY THOUSAND PESOS [P50,000.00] for nominal damages; and

(d) he sum of TEN THOUSAND PESOS [PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF AND FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN —

(1) Dismissing the complaint against the defendants Mariquita Villasin and the heirs of the deceased Gerardo Villasin;

(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of Gerardo Villasin the cost of the suit.

C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO WERE PLAINTIFFS IN CIVIL CASE NO. 3010 —

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO —

(1) Dismissing the complaint against Bonifacio Ramo;

(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

It is further disclosed by the record that the aforesaid decision was elevated to the Court of Appeals upon perfection of the appeal on February 22, 1971.

I

WE find that there is no merit in the contention of complainant Bernardita R. Macariola, under her first cause of action, that respondent Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of those properties involved in Civil Case No. 3010. 'That Article provides:

Article 1491. The following persons cannot acquire by purchase, even at a public or judicial action, either in person or through the mediation of another:

xxx xxx xxx

(5) Justices, judges, prosecuting attorneys, clerks of superior and inferior courts, and other officers and employees connected with the administration of justice, the property and rights in litigation or levied upon an execution before the court within whose jurisdiction or territory they exercise their respective functions; this prohibition includes the act of acquiring by assignment and shall apply to lawyers, with respect to the property and rights which may be the object of any litigation in which they may take part by virtue of their profession [emphasis supplied].

The prohibition in the aforesaid Article applies only to the sale or assignment of the property which is the subject of litigation to the persons disqualified therein. WE have already ruled that "... for the prohibition to operate, the sale or assignment of the property must take place during the pendency of the litigation involving the property" (The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]).

In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was already final because none of the parties therein filed an appeal within the reglementary period; hence, the lot in question was no longer subject of the litigation. Moreover, at the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the amended order dated November 11, 1963 approving the October 16, 1963 project of partition made pursuant to the June 8, 1963 decision, had long become final for there was no appeal from said orders.

Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil Case

No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot to respondent Judge and his wife who declared the same for taxation purposes only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing Industries, Inc., in which respondent was the president and his wife was the secretary, took place long after the finality of the decision in Civil Case No. 3010 and of the subsequent two aforesaid orders therein approving the project of partition.

While it appears that complainant herein filed on or about November 9 or 11, 1968 an action before the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking to annul the project of partition and the two orders approving the same, as well as the partition of the estate and the subsequent conveyances, the same, however, is of no moment.

The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated October 23, 1963 and November 11, 1963. Therefore, the property was no longer subject of litigation.

The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer alter, change or affect the aforesaid facts — that the questioned sale to respondent Judge, now Court of Appeals Justice, was effected and consummated long after the finality of the aforesaid decision or orders.

Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place over one year after the finality of the decision in Civil Case No. 3010 as well as the two orders approving the project of partition, and not during the pendency of the litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.

It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a consideration for the approval of the project of partition. In this connection, We agree with the findings of the Investigating Justice thus:

And so we are now confronted with this all-important question whether or not the acquisition by respondent of a portion of Lot 1184-E and the subsequent transfer of the whole lot to "TRADERS" of which respondent was the President and his wife the Secretary, was intimately related to the Order of respondent approving the project of partition, Exh. A.

Respondent vehemently denies any interest or participation in the transactions between the Reyeses and the Galapons concerning Lot 1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of Respondent's Memorandum).

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On this point, I agree with respondent that there is no evidence in the record showing that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen, credible and sincere, and I believe him when he testified that he bought Lot 1184-E in good faith and for valuable consideration from the Reyeses without any intervention of, or previous understanding with Judge Asuncion (pp. 391- 394, rec.).

On the contention of complainant herein that respondent Judge acted illegally in approving the project of partition although it was not signed by the parties, We quote with approval the findings of the Investigating Justice, as follows:

1. I agree with complainant that respondent should have required the signature of the parties more particularly that of Mrs. Macariola on the project of partition submitted to him for approval; however, whatever error was committed by respondent in that respect was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client to submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is true that such written authority if there was any, was not presented by respondent in evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his affidavit being the only one that was presented as respondent's Exh. 10, certain actuations of Mrs. Macariola lead this investigator to believe that she knew the contents of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the following documents:

1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U) approving the project of partition was duly entered and registered on November 26, 1963 (Exh. 9-D);

2) Exh. 7 — Certified copy of a deed of absolute sale executed by Bernardita Reyes Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee stated that she was the absolute owner of said one-fourth share, the same having been adjudicated to her as her share in the estate of her father Francisco Reyes Diaz as per decision of the Court of First Instance of Leyte under case No. 3010 (Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT 19520 on December 3, 1963 (see Exh. 9-e).

In connection with the abovementioned documents it is to be noted that in the project of partition dated October 16, 1963, which was approved by respondent on October 23, 1963, followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which complainant sold to Dr. Decena on October 22, 1963, several days after the preparation of the project of partition.

Counsel for complainant stresses the view, however, that the latter sold her one-fourth share in Lot 1154 by virtue of the decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such contention is absurd because from the decision, Exh. C, it is clear that one-half of one- fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the other half of said one-fourth was the share of complainant's mother, Felisa Espiras; in other words, the decision did not adjudicate the whole of the one-fourth of Lot 1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the owner of the entire one-fourth of Lot 1154 only by means of the project of partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no other reason than that she was wen aware of the distribution of the properties of her deceased father as per Exhs. A and B. It is also significant at this point to state that Mrs. Macariola admitted during the cross-examination that she went to Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92, November 28, 1968) from which we can deduce that she could not have been kept ignorant of the proceedings in civil case 3010 relative to the project of partition.

Complainant also assails the project of partition because according to her the properties adjudicated to her were insignificant lots and the least valuable. Complainant, however, did not present any direct and positive evidence to prove the alleged gross inequalities in the choice and distribution of the real properties when she could have easily done so by presenting evidence on the area, location, kind, the assessed and market value of said properties. Without such evidence there is nothing in the record to show that there were inequalities in the distribution of the properties of complainant's father (pp. 386389, rec.).

Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in litigation in his court, it was, however, improper for him to have acquired the same. He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's official conduct should be free from the appearance of impropriety, and his personal behavior, not only upon the bench and in the performance of judicial duties, but also in his everyday life, should be beyond reproach." And as aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have purchased or acquired a portion of a piece of property that was or had been in litigation in his court and caused it to be transferred to a corporation of which he and his wife were ranking officers at the time of such transfer. One who occupies an exalted position in the judiciary has the duty and responsibility of maintaining the faith and trust of the citizenry in the courts of justice, so that not only must he be truly honest and just, but his actuations must be such as not give cause for doubt and mistrust in the uprightness of his administration of justice. In this particular case of respondent, he cannot deny that the transactions over Lot 1184-E are damaging and render his actuations open to suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in litigation in his court and that he was purchasing it from a third person and not from the parties to the litigation, he should nonetheless have refrained from buying it for himself and transferring it to a corporation in

which he and his wife were financially involved, to avoid possible suspicion that his acquisition was related in one way or another to his official actuations in civil case 3010. The conduct of respondent gave cause for the litigants in civil case 3010, the lawyers practising in his court, and the public in general to doubt the honesty and fairness of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).

II

With respect to the second cause of action, the complainant alleged that respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, said corporation having been organized to engage in business. Said Article provides that:

Article 14 — The following cannot engage in commerce, either in person or by proxy, nor can they hold any office or have any direct, administrative, or financial intervention in commercial or industrial companies within the limits of the districts, provinces, or towns in which they discharge their duties:

1. Justices of the Supreme Court, judges and officials of the department of public prosecution in active service. This provision shall not be applicable to mayors, municipal judges, and municipal prosecuting attorneys nor to those who by chance are temporarily discharging the functions of judge or prosecuting attorney.

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5. Those who by virtue of laws or special provisions may not engage in commerce in a determinate territory.

It is Our considered view that although the aforestated provision is incorporated in the Code of Commerce which is part of the commercial laws of the Philippines, it, however, partakes of the nature of a political law as it regulates the relationship between the government and certain public officers and employees, like justices and judges.

Political Law has been defined as that branch of public law which deals with the organization and operation of the governmental organs of the State and define the relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces constitutional law, law of public corporations, administrative law including the law on public officers and elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature of an administrative law because it regulates the conduct of certain public officers and employees with respect to engaging in business: hence, political in essence.

It is significant to note that the present Code of Commerce is the Spanish Code of Commerce of 1885, with some modifications made by the "Commission de Codificacion de las Provincias de Ultramar," which was extended to the Philippines by the Royal Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.

Upon the transfer of sovereignty from Spain to the United States and later on from the United States to the Republic of the Philippines, Article 14 of this Code of Commerce must be deemed to have been abrogated because where there is change of sovereignty, the political laws of the former sovereign, whether compatible or not with those of the new sovereign, are automatically abrogated, unless they are expressly re-enacted by affirmative act of the new sovereign.

Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:

By well-settled public law, upon the cession of territory by one nation to another, either following a conquest or otherwise, ... those laws which are political in their nature and pertain to the prerogatives of the former government immediately cease upon the transfer of sovereignty. (Opinion, Atty. Gen., July 10, 1899).

While municipal laws of the newly acquired territory not in conflict with the, laws of the new sovereign continue in force without the express assent or affirmative act of the conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws of the prior sovereignty as are not in conflict with the constitution or institutions of the

new sovereign, may be continued in force if the conqueror shall so declare by affirmative act of the commander-in-chief during the war, or by Congress in time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall said:

On such transfer (by cession) of territory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country, transfers the allegiance of those who remain in it; and the law which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, remains in force, until altered by the newly- created power of the State.

Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a general principle of the public law that on acquisition of territory the previous political relations of the ceded region are totally abrogated. "

There appears no enabling or affirmative act that continued the effectivity of the aforestated provision of the Code of Commerce after the change of sovereignty from Spain to the United States and then to the Republic of the Philippines. Consequently, Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to the respondent, then Judge of the Court of First Instance, now Associate Justice of the Court of Appeals.

It is also argued by complainant herein that respondent Judge violated paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, which provides that:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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(h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any Iaw from having any interest.

Respondent Judge cannot be held liable under the aforestated paragraph because there is no showing that respondent participated or intervened in his official capacity in the business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the case at bar, the business of the corporation in which respondent participated has obviously no relation or connection with his judicial office. The business of said corporation is not that kind where respondent intervenes or takes part in his capacity as Judge of the Court of First Instance. As was held in one case involving the application of Article 216 of the Revised Penal Code which has a similar prohibition on public officers against directly or indirectly becoming interested in any contract or business in which it is his official duty to intervene, "(I)t is not enough to be a public official to be subject to this crime; it is necessary that by reason of his office, he has to intervene in said contracts or transactions; and, hence, the official who intervenes in contracts or transactions which have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11 [1976]).

It does not appear also from the records that the aforesaid corporation gained any undue advantage in its business operations by reason of respondent's financial involvement in it, or that the corporation benefited in one way or another in any case filed by or against it in court. It is undisputed that there was no case filed in the different branches of the Court of First Instance of Leyte in which the corporation was either party plaintiff or defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with the corporation, having disposed of his interest therein on January 31, 1967.

Furthermore, respondent is not liable under the same paragraph because there is no provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly prohibiting members of the Judiciary from engaging or having interest in any lawful business.

It may be pointed out that Republic Act No. 296, as amended, also known as the Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of fact, under Section 77 of said law, municipal judges may engage in teaching or other vocation not involving the practice of law after office hours but with the permission of the district judge concerned.

Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of sovereignty from Spain to America, because it is political in nature.

Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against the purchase by judges of a property in litigation before the court within whose jurisdiction they perform their duties, cannot apply to respondent Judge because the sale of the lot in question to him took place after the finality of his decision in Civil Case No. 3010 as well as his two orders approving the project of partition; hence, the property was no longer subject of litigation.

In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to the Civil Service Act of 1959 prohibits an officer or employee in the civil service from engaging in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the head of department, the same, however, may not fall within the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last portion of said paragraph speaks of a prohibition by the Constitution or law on any public officer from having any interest in any business and not by a mere administrative rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil service, that is, engaging in private business without a written permission from the Department Head may not constitute graft and corrupt practice as defined by law.

On the contention of complainant that respondent Judge violated Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer or employee shall engage directly in any private business, vocation, or profession or be connected with any commercial, credit, agricultural or industrial undertaking without a written permission from the Head of Department ..."

It must be emphasized at the outset that respondent, being a member of the Judiciary, is covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of 1948 and by Section 7, Article X, 1973 Constitution.

Under Section 67 of said law, the power to remove or dismiss judges was then vested in the President of the Philippines, not in the Commissioner of Civil Service, and only on two grounds, namely, serious misconduct and inefficiency, and upon the recommendation of the Supreme Court, which alone is authorized, upon its own motion, or upon information of the Secretary (now Minister) of Justice to conduct the corresponding investigation. Clearly, the aforesaid section defines the grounds and prescribes the special procedure for the discipline of judges.

And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court can discipline judges of inferior courts as well as other personnel of the Judiciary.

It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ... violation of the existing Civil Service Law and rules or of reasonable office regulations, or in the interest of the service, remove any subordinate officer or employee from the service, demote him in rank, suspend him for not more than one year

without pay or fine him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers and employees.

However, judges cannot be considered as subordinate civil service officers or employees subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly, the Commissioner is not the head of the Judicial Department to which they belong. The Revised Administrative Code (Section 89) and the Civil Service Law itself state that the Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against judges because to recognize the same as applicable to them, would be adding another ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes only two grounds for their removal, namely, serious misconduct and inefficiency.

Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of Civil Service who has original and exclusive jurisdiction "(T)o decide, within one hundred twenty days, after submission to it, all administrative cases against permanent officers and employees in the competitive service, and, except as provided by law, to have final authority to pass upon their removal, separation, and suspension and upon all matters relating to the conduct, discipline, and efficiency of such officers and employees; and prescribe standards, guidelines and regulations governing the administration of discipline" (emphasis supplied). There is no question that a judge belong to the non-competitive or unclassified service of the government as a Presidential appointee and is therefore not covered by the aforesaid provision. WE have already ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent officers and employees who belong to the classified service come under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).

Although the actuation of respondent Judge in engaging in private business by joining the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares that:

A judge should abstain from making personal investments in enterprises which are apt to be involved in litigation in his court; and, after his accession to the bench, he should not retain such investments previously made, longer than a period sufficient to enable him to dispose of them without serious loss. It is desirable that he should, so far as reasonably possible, refrain from all relations which would normally tend to arouse the suspicion that such relations warp or bias his judgment, or prevent his impartial attitude of mind in the administration of his judicial duties. ...

WE are not, however, unmindful of the fact that respondent Judge and his wife had withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective shares to third parties, and it appears also that the aforesaid corporation did not in anyway benefit in any case filed by or against it in court as there was no case filed in the different branches of the Court of First Instance of Leyte from the time of the drafting of the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their shares in the corporation only 22 days after the incorporation of the corporation, indicates that respondent realized that early that their interest in the corporation contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation for their immediate withdrawal from the firm after its incorporation and before it became involved in any court litigation

III

With respect to the third and fourth causes of action, complainant alleged that respondent was guilty of coddling an impostor and acted in disregard of judicial decorum, and that there was culpable defiance of the law and utter disregard for ethics. WE agree, however, with the recommendation of the Investigating Justice that respondent

Judge be exonerated because the aforesaid causes of action are groundless, and WE quote the pertinent portion of her report which reads as follows:

The basis for complainant's third cause of action is the claim that respondent associated and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of the Philippine Bar as certified to in Exh. K.

The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and claims that all the time he believed that the latter was a bona fide member of the bar. I see no reason for disbelieving this assertion of respondent. It has been shown by complainant that Dominador Arigpa Tan represented himself publicly as an attorney-at-law to the extent of putting up a signboard with his name and the words "Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and any person for that matter to have accepted that statement on its face value. "Now with respect to the allegation of complainant that respondent is guilty of fraternizing with Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of violating any canon of judicial ethics as long as his friendly relations with Dominador A. Tan and family did not influence his official actuations as a judge where said persons were concerned. There is no tangible convincing proof that herein respondent gave any undue privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice of law from his personal relations with respondent, or that he used his influence, if he had any, on the Judges of the other branches of the Court to favor said Dominador Tan.

Of course it is highly desirable for a member of the judiciary to refrain as much as possible from maintaining close friendly relations with practising attorneys and litigants in his court so as to avoid suspicion 'that his social or business relations or friendship constitute an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a Judge does have social relations, that in itself would not constitute a ground for disciplinary action unless it be clearly shown that his social relations be clouded his official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).

In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of Appeals, did not violate any law in acquiring by purchase a parcel of land which was in litigation in his court and in engaging in business by joining a private corporation during his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to be more discreet in his private and business activities, because his conduct as a member of the Judiciary must not only be characterized with propriety but must always be above suspicion.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and Gutierrez, JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Separate Opinions

AQUINO, J., concurring and dissenting:

I vote for respondent's unqualified exoneration.

BARREDO, J., concurring and dissenting:

I vote with Justice Aquino.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. L-9959 December 13, 1916

THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the Treasurer of the Philippine Islands, plaintiff-appellee, vs.EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant. Attorney-General Avanceña for appellee.

TRENT, J.:

About $400,000, were subscribed and paid into the treasury of the Philippine Islands by the inhabitants of the Spanish Dominions of the relief of those damaged by the earthquake which took place in the Philippine Islands on June 3, 1863. Subsequent thereto and on October 6 of that year, a central relief board was appointed, by authority of the King of Spain, to distribute the moneys thus voluntarily contributed. After a thorough investigation and consideration, the relief board allotted $365,703.50 to the various sufferers named in its resolution, dated September 22, 1866, and, by order of the Governor-General of the Philippine Islands, a list of these allotments, together with the names of those entitled thereto, was published in the Official Gazette of Manila dated April 7, 1870. There was later distributed, inaccordance with the above-mentioned allotments, the sum of $30,299.65,

leaving a balance of S365,403.85 for distribution. Upon the petition of the governing body of the Monte de Piedad, dated February 1, 1833, the Philippine Government, by order dated the 1st of that month, directed its treasurer to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in installments of $20,000 each. These amounts were received on the following dates: February 15, March 12, April 14, and June 2, 1883, and are still in the possession of the Monte de Piedad. On account of various petitions of the persons, and heirs of others to whom the above-mentioned allotments were made by the central relief board for the payment of those amounts, the Philippine Islands to bring suit against the Monte de Piedad a recover, "through the Attorney-General and in representation of the Government of the Philippine Islands," the $80.000, together with interest, for the benefit of those persons or their heirs appearing in the list of names published in the Official Gazette instituted on May 3, 1912, by the Government of the Philippine Islands, represented by the Insular Treasurer, and after due trial, judgment was entered in favor of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency, together with legal interest from February 28, 1912, and the costs of the cause. The defendant appealed and makes the following assignment of errors:

1. The court erred in not finding that the eighty thousand dollars ($80,000), give to the Monte de Piedad y Caja de Ahorros, were so given as a donation subject to one condition, to wit: the return of such sum of money to the Spanish Government of these Islands, within eight days following the day when claimed, in case the Supreme Government of Spain should not approve the action taken by the former government.

2. The court erred in not having decreed that this donation had been cleared; said eighty thousand dollars ($80,000) being at present the exclusive property of the appellant the Monte de Piedad y Caja de Ahorros.

3. That the court erred in stating that the Government of the Philippine Islands has subrogated the Spanish Government in its rights, as regards an important sum of money resulting from a national subscription opened by reason of the earthquake of June 3, 1863, in these Island.

4. That the court erred in not declaring that Act Numbered 2109, passed by the Philippine Legislature on January 30, 1912, is unconstitutional.

5. That the court erred in holding in its decision that there is no title for the prescription of this suit brought by the Insular Government against the Monte de Piedad y Caja de Ahorros for the reimbursement of the eighty thousand dollars ($80,000) given to it by the late Spanish Government of these Islands.

6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to reimburse the Philippine Government in the sum of eighty thousand dollars ($80,000) gold coin, or the equivalent thereof in the present legal tender currency in circulation, with legal interest thereon from February 28th, 1912, and the costs of this suit.

In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was directed to inform the home Government in what manner the indemnity might be paid to which, by virtue of the resolutions of the relief board, the persons who suffered damage by the earthquake might be entitled, in order to perform the sacred obligation which the Government of Spain had assumed toward the donors.

The next pertinent document in order is the defendant's petition, dated February 1, 1883, addressed to the Governor-General of the Philippine Islands, which reads:

Board of Directors of the Monte de Piedad of Manila Presidencia.

Excellency: The Board of Directors of the Monte de Piedad y Caja de Ahorros of Manila informs your Excellency, First: That the funds which it has up to the present been able to dispose of have been exhausted in loans on jewelry, and there only remains the sum of one thousand and odd pesos, which will

be expended between to-day and day after tomorrow. Second: That, to maintain the credit of the establishment, which would be greatly injured were its operations suspended, it is necessary to procure money. Third: That your Excellency has proposed to His Majesty's Government to apply to the funds of the Monte de Piedad a part of the funds held in the treasury derived form the national subscription for the relief of the distress caused by the earthquake of 1863. Fourth: That in the public treasury there is held at the disposal of the central earthquake relief board over $1090,000 which was deposited in the said treasury by order of your general Government, it having been transferred thereto from the Spanish-Filipino Bank where it had been held. fifth: That in the straightened circumstances of the moment, your Excellency can, to avert impending disaster to the Monte de Piedad, order that, out of that sum of one hundred thousand pesos held in the Treasury at the disposal of the central relief board, there be transferred to the Monte de Piedad the sum of $80,000, there to be held under the same conditions as at present in the Treasury, to wit, at the disposal of the Relief Board. Sixth: That should this transfer not be approved for any reason, either because of the failure of His Majesty's Government to approve the proposal made by your Excellency relative to the application to the needs of the Monte de Piedad of a pat of the subscription intended to believe the distress caused by the earthquake of 1863, or for any other reason, the board of directors of the Monte de Piedad obligates itself to return any sums which it may have received on account of the eighty thousand pesos, or the whole thereof, should it have received the same, by securing a loan from whichever bank or banks may lend it the money at the cheapest rate upon the security of pawned jewelry. — This is an urgent measure to save the Monte de Piedad in the present crisis and the board of directors trusts to secure your Excellency's entire cooperation and that of the other officials who have take part in the transaction.

The Governor-General's resolution on the foregoing petition is as follows:

GENERAL GOVERNMENT OF THE PHILIPPINES. MANILA, February 1, 1883.

In view of the foregoing petition addressed to me by the board of directors of the Monte de Piedad of this city, in which it is stated that the funds which the said institution counted upon are nearly all invested in loans on jewelry and that the small account remaining will scarcely suffice to cover the transactions of the next two days, for which reason it entreats the general Government that, in pursuance of its telegraphic advice to H. M. Government, the latter direct that there be turned over to said Monte de Piedad $80,000 out of the funds in the public treasury obtained from the national subscription for the relief of the distress caused by the earthquake of 1863, said board obligating itself to return this sum should H. M. Government, for any reason, not approve the said proposal, and for this purpose it will procure funds by means of loans raised on pawned jewelry; it stated further that if the aid so solicited is not furnished, it will be compelled to suspend operations, which would seriously injure the credit of so beneficient an institution; and in view of the report upon the matter made by the Intendencia General de Hacienda; and considering the fact that the public treasury has on hand a much greater sum from the source mentioned than that solicited; and considering that this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution, believing that in so doing the wishes of the donors would be faithfully interpreted inasmuch as those wishes were no other than to relieve distress, an act of charity which is exercised in the highest degree by the Monte de Piedad, for it liberates needy person from the pernicious effects of usury; and

Considering that the lofty purposes that brought about the creation of the pious institution referred to would be frustrated, and that the great and laudable work of its establishment, and that the great and laudable and valuable if the aid it urgently seeks is not granted, since the suspension of its operations would seriously and regrettably damage the ever-growing credit of the Monte de Piedad; and

Considering that if such a thing would at any time cause deep distress in the public mind, it might be said that at the present juncture it would assume the nature of a disturbance of public order because of the extreme poverty of the poorer classes resulting from the late calamities, and because it is the only institution which can mitigate the effects of such poverty; and

Considering that no reasonable objection can be made to granting the request herein contained, for the funds in question are sufficiently secured in the unlikely event that H> M. Government does not approve the recommendation mentioned, this general Government, in the exercise of the extraordinary powers conferred upon it and in conformity with the report of the Intendencia de Hacienda, resolves as follows:

First. Authority is hereby given to deliver to the Monte de Piedad, out of the sum held in the public treasury of these Islands obtained from the national subscription opened by reason of the earthquakes of 1863, amounts up to the sum $80,000, as its needs may require, in installments of $20,000.

Second. The board of directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution.

Third. The Intendencia General de Hacienda shall forthwith, and in preference to all other work, proceed to prepare the necessary papers so that with the least possible delay the payment referred to may be made and the danger that menaces the Monte de Piedad of having to suspend its operations may be averted.

H. M. Government shall be advised hereof.lawphi1.net(Signed) P. DE RIVERA.

By the royal order of December 3, 1892, the Governor-General of the Philippine Islands was ordered to "inform this ministerio what is the total sum available at the present time, taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883," and after the rights of the claimants, whose names were published in the Official Gazette of Manila on April 7, 1870, and their heirs had been established, as therein provided, as such persons "have an unquestionable right to be paid the donations assigned to them therein, your general Government shall convoke them all within a reasonable period and shall pay their shares to such as shall identify themselves, without regard to their financial status," and finally "that when all the proceedings and operations herein mentioned have been concluded and the Government can consider itself free from all kinds of claims on the part of those interested in the distribution of the funds deposited in the vaults of the Treasury, such action may be taken as the circumstances shall require, after first consulting the relief board and your general Government and taking account of what sums have been delivered to the Monte de Piedad and those that were expended in 1888 to relieve public calamities," and "in order that all the points in connection with the proceedings had as a result of the earthquake be clearly understood, it is indispensable that the offices hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of the royal order of June 25, 1879." On receipt of this Finance order by the Governor-General, the Department of Finance was called upon for a report in reference to the $80,000 turned over to the defendant, and that Department's report to the Governor-General dated June 28, 1893, reads:

Intendencia General de Hacienda de Filipinas (General Treasury of the Philippines) — Excellency. — By Royal Order No. 1044 of December 3, last, it is provided that the persons who sustained losses by the earthquakes that occurred in your capital in the year 1863 shall be paid the amounts allotted to them out of the sums sent from Spain for this purpose, with observance of the rules specified in the said royal order, one of them being that before making the payment to the interested parties the assets shall be reduced to money. These assets, during the long period of time that has elapsed since they were turned over to the Treasury of the Philippine Islands, were used to cover the general needs of the appropriation, a part besides being invested in the relief of charitable institutions and another part to meet pressing needs occasioned by public calamities. On January 30, last, your Excellency was please to order the

fulfillment of that sovereign mandate and referred the same to this Intendencia for its information and the purposes desired (that is, for compliance with its directions and, as aforesaid, one of these being the liquidation, recovery, and deposit with the Treasury of the sums paid out of that fund and which were expended in a different way from that intended by the donors) and this Intendencia believed the moment had arrived to claim from the board of directors of the Monte de Piedad y Caja de Ahorros the sum of 80,000 pesos which, by decree of your general Government of the date of February 1, 1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating itself to return the same within the period of eight days if H. M. Government did not approve the delivery. On this Intendencia's demanding from the Monte de Piedad the eighty thousand pesos, thus complying with the provisions of the Royal Order, it was to be supposed that no objection to its return would be made by the Monte de Piedad for, when it received the loan, it formally engaged itself to return it; and, besides, it was indisputable that the moment to do so had arrived, inasmuch as H. M. Government, in ordering that the assets of the earthquake relief fund should he collected, makes express mention of the 80,000 pesos loaned to the Monte de Piedad, without doubt considering as sufficient the period of ten years during which it has been using this large sum which lawfully belongs to their persons. This Intendencia also supposed that the Monte de Piedad no longer needed the amount of that loan, inasmuch as, far from investing it in beneficient transactions, it had turned the whole amount into the voluntary deposit funds bearing 5 per cent interests, the result of this operation being that the debtor loaned to the creditor on interest what the former had gratuitously received. But the Monte de Piedad, instead of fulfilling the promise it made on receiving the sum, after repeated demands refused to return the money on the ground that only your Excellency, and not the Intendencia (Treasury), is entitled to order the reimbursement, taking no account of the fact that this Intendencia was acting in the discharge of a sovereign command, the fulfillment of which your Excellency was pleased to order; and on the further ground that the sum of 80,000 pesos which it received from the fund intended for the earthquake victims was not received as a loan, but as a donation, this in the opinion of this Intendencia, erroneously interpreting both the last royal order which directed the apportionment of the amount of the subscription raised in the year 1863 and the superior decree which granted the loan, inasmuch as in this letter no donation is made to the Monte de Piedad of the 80,000 pesos, but simply a loan; besides, no donation whatever could be made of funds derived from a private subscription raised for a specific purpose, which funds are already distributed and the names of the beneficiaries have been published in the Gaceta, there being lacking only the mere material act of the delivery, which has been unduly delayed. In view of the unexpected reply made by the Monte de Piedad, and believing it useless to insist further in the matter of the claim for the aforementioned loan, or to argue in support thereof, this Intendencia believes the intervention of your Excellency necessary in this matter, if the royal Order No. 1044 of December 3, last, is to be complied with, and for this purpose I beg your Excellency kindly to order the Monte de Piedad to reimburse within the period of eight days the 80,000 which it owes, and that you give this Intendencia power to carry out the provisions of the said royal order. I must call to the attention of your Excellency that the said pious establishment, during the last few days and after demand was made upon it, has endorsed to the Spanish-Filipino Bank nearly the whole of the sum which it had on deposit in the general deposit funds.

The record in the case under consideration fails to disclose any further definite action taken by either the Philippine Government or the Spanish Government in regard to the $80,000 turned over to the Monte de Piedad.

In the defendant's general ledger the following entries appear: "Public Treasury: February 15, 1883, $20,000; March 12, 1883, $20,000; April 14, 1883, $20,000; June 2, 1883, $20,000, total $80,000." The book entry for this total is as follows: "To the public Treasury derived from the subscription for the earthquake of 1863, $80,000 received from general Treasury as a returnable loan, and without interest." The account was carried in this manner until January 1, 1899, when it was closed by transferring the amount to an account called "Sagrada Mitra," which latter account was a loan of $15,000 made to the defendant by the Archbishop of Manila, without interest, thereby placing the "Sagrada Mitra" account at $95,000 instead of $15,000. The above-mentioned journal entry for January 1, 1899, reads: "Sagrada Mitra and subscription, balance of these two account which on this date are united in

accordance with an order of the Exmo. Sr. Presidente of the Council transmitted verbally to the Presidente Gerente of these institutions, $95,000."

On March 16, 1902, the Philippine government called upon the defendant for information concerning the status of the $80,000 and received the following reply:

MANILA, March 31, 1902.

To the Attorney-General of the Department of Justice of the Philippine Islands.

SIR: In reply to your courteous letter of the 16th inst., in which you request information from this office as to when and for what purpose the Spanish Government delivered to the Monte de Piedad eighty thousand pesos obtained from the subscription opened in connection with the earthquake of 1863, as well as any other information that might be useful for the report which your office is called upon to furnish, I must state to your department that the books kept in these Pious Institutions, and which have been consulted for the purpose, show that on the 15th of February, 1883, they received as a reimbursable loan and without interest, twenty thousand pesos, which they deposited with their own funds. On the same account and on each of the dates of March 12, April 14 and June 2 of the said year, 1883, they also received and turned into their funds a like sum of twenty thousand pesos, making a total of eighty thousand pesos. — (Signed) Emilio Moreta.

I hereby certify that the foregoing is a literal copy of that found in the letter book No. 2 of those Pious Institutions.

Manila, November 19, 1913 (Sgd.) EMILIO LAZCANOTEGUI, Secretary

(Sgd.) O. K. EMILIO MORETA,Managing Director.

The foregoing documentary evidence shows the nature of the transactions which took place between the Government of Spain and the Philippine Government on the one side and the Monte de Piedad on the other, concerning the $80,000. The Monte de Piedad, after setting forth in its petition to the Governor-General its financial condition and its absolute necessity for more working capital, asked that out of the sum of $100,000 held in the Treasury of the Philippine Islands, at the disposal of the central relief board, there be transferred to it the sum of $80,000 to be held under the same conditions, to wit, "at the disposal of the relief board." The Monte de Piedad agreed that if the transfer of these funds should not be approved by the Government of Spain, the same would be returned forthwith. It did not ask that the $80,000 be given to it as a donation. The Governor-General, after reciting the substance of the petition, stated that "this general Government has submitted for the determination of H. M. Government that the balance which, after strictly applying the proceeds obtained from the subscription referred to, may remain as a surplus, should be delivered to the Monte de Piedad, either as a donation, or as a loan upon the security of the credit of the institution," and "considering that no reasonable objection can be made to granting the request herein contained," directed the transfer of the $80,000 to be made with the understanding that "the Board of Directors of the Monte de Piedad is solemnly bound to return, within eight days after demand, the sums it may have so received, if H. M. Government does not approve this resolution." It will be noted that the first and only time the word "donation" was used in connection with the $80,000 appears in this resolution of the Governor-General. It may be inferred from the royal orders that the Madrid Government did tacitly approve of the transfer of the $80,000 to the Monte de Piedad as a loan without interest, but that Government certainly did not approve such transfer as a donation for the reason that the Governor-General was directed by the royal order of December 3, 1892, to inform the Madrid Government of the total available sum of

the earthquake fund, "taking into consideration the sums delivered to the Monte de Piedad pursuant to the decree issued by your general Government on February 1, 1883." This language, nothing else appearing, might admit of the interpretation that the Madrid Government did not intend that the Governor-General of the Philippine Islands should include the $80,000 in the total available sum, but when considered in connection with the report of the Department of Finance there can be no doubt that it was so intended. That report refers expressly to the royal order of December 3d, and sets forth in detail the action taken in order to secure the return of the $80,000. The Department of Finance, acting under the orders of the Governor-General, understood that the $80,000 was transferred to the Monte de Piedad well knew that it received this sum as a loan interest." The amount was thus carried in its books until January, 1899, when it was transferred to the account of the "Sagrada Mitra" and was thereafter known as the "Sagrada Mitra and subscription account." Furthermore, the Monte de Piedad recognized and considered as late as March 31, 1902, that it received the $80,000 "as a returnable loan, and without interest." Therefore, there cannot be the slightest doubt the fact that the Monte de Piedad received the $80,000 as a mere loan or deposit and not as a donation. Consequently, the first alleged error is entirely without foundation.

Counsel for the defendant, in support of their third assignment of error, say in their principal brief that:

The Spanish nation was professedly Roman Catholic and its King enjoyed the distinction of being deputy ex officio of the Holy See and Apostolic Vicar-General of the Indies, and as such it was his duty to protect all pious works and charitable institutions in his kingdoms, especially those of the Indies; among the latter was the Monte de Piedad of the Philippines, of which said King and his deputy the Governor-General of the Philippines, as royal vice-patron, were, in a special and peculiar manner, the protectors; the latter, as a result of the cession of the Philippine Islands, Implicitly renounced this high office and tacitly returned it to the Holy See, now represented by the Archbishop of Manila; the national subscription in question was a kind of foundation or pious work, for a charitable purpose in these Islands; and the entire subscription not being needed for its original purpose, the royal vice-patron, with the consent of the King, gave the surplus thereof to an analogous purpose; the fulfillment of all these things involved, in the majority, if not in all cases, faithful compliance with the duty imposed upon him by the Holy See, when it conferred upon him the royal patronage of the Indies, a thing that touched him very closely in his conscience and religion; the cessionary Government though Christian, was not Roman Catholic and prided itself on its policy of non-interference in religious matters, and inveterately maintained a complete separation between the ecclesiastical and civil powers.

In view of these circumstances it must be quite clear that, even without the express provisions of the Treaty of Paris, which apparently expressly exclude such an idea, it did not befit the honor of either of the contracting parties to subrogate to the American Government in lieu of the Spanish Government anything respecting the disposition of the funds delivered by the latter to the Monte de Piedad. The same reasons that induced the Spanish Government to take over such things would result in great inconvenience to the American Government in attempting to do so. The question was such a delicate one, for the reason that it affected the conscience, deeply religious, of the King of Spain, that it cannot be believed that it was ever his intention to confide the exercise thereof to a Government like the American. (U. S. vs. Arredondo, 6 Pet. [U. S.], 711.)

It is thus seen that the American Government did not subrogate the Spanish Government or rather, the King of Spain, in this regard; and as the condition annexed to the donation was lawful and possible of fulfillment at the time the contract was made, but became impossible of fulfillment by the cession made by the Spanish Government in these Islands, compliance therewith is excused and the contract has been cleared thereof.

The contention of counsel, as thus stated, in untenable for two reason, (1) because such contention is based upon the erroneous theory that the sum in question was a donation to the Monte de Piedad and not a loan, and (2) because the charity founded by the donations for the earthquake sufferers is not and never was intended to be an ecclesiastical pious work. The first proposition has already been decided adversely to the defendant's contention.

As to the second, the record shows clearly that the fund was given by the donors for a specific and definite purpose — the relief of the earthquake sufferers — and for no other purpose. The money was turned over to the Spanish Government to be devoted to that purpose. The Spanish Government remitted the money to the Philippine Government to be distributed among the suffers. All officials, including the King of Spain and the Governor-General of the Philippine Islands, who took part in the disposal of the fund, acted in their purely civil, official capacity, and the fact that they might have belonged to a certain church had nothing to do with their acts in this matter. The church, as such, had nothing to do with the fund in any way whatever until the $80,000 reached the coffers of the Monte de Piedad (an institution under the control of the church) as a loan or deposit. If the charity in question had been founded as an ecclesiastical pious work, the King of Spain and the Governor-General, in their capacities as vicar-general of the Indies and as royal vice-patron, respectively, would have disposed of the fund as such and not in their civil capacities, and such functions could not have been transferred to the present Philippine Government, because the right to so act would have arisen out of the special agreement between the Government of Spain and the Holy See, based on the union of the church and state which was completely separated with the change of sovereignty.

And in their supplemental brief counsel say:

By the conceded facts the money in question is part of a charitable subscription. The donors were persons in Spain, the trustee was the Spanish Government, the donees, the cestuis que trustent, were certain persons in the Philippine Islands. The whole matter is one of trusteeship. This is undisputed and indisputable. It follows that the Spanish Government at no time was the owner of the fund. Not being the owner of the fund it could not transfer the ownership. Whether or not it could transfer its trusteeship it certainly never has expressly done so and the general terms of property transfer in the Treaty of Paris are wholly insufficient for such a purpose even could Spain have transferred its trusteeship without the consent of the donors and even could the United States, as a Government, have accepted such a trust under any power granted to it by the thirteen original States in the Constitution, which is more than doubtful. It follows further that this Government is not a proper party to the action. The only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither.

If "the whole matter is one of trusteeship," and it being true that the Spanish Government could not, as counsel say, transfer the ownership of the fund to the Monte de Piedad, the question arises, who may sue to recover this loan? It needs no argument to show that the Spanish or Philippine Government, as trustee, could maintain an action for this purpose had there been no change of sovereignty and if the right of action has not prescribed. But those governments were something more than mere common law trustees of the fund. In order to determine their exact status with reference to this fund, it is necessary to examine the law in force at the time there transactions took place, which are the law of June 20, 1894, the royal decree of April 27. 1875, and the instructions promulgated on the latter date. These legal provisions were applicable to the Philippine Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)

The funds collected as a result of the national subscription opened in Spain by royal order of the Spanish Government and which were remitted to the Philippine Government to be distributed among the earthquake sufferers by the Central Relief Board constituted, under article 1 of the law of June 20, 1894, and article 2 of the instructions of April 27, 1875, a special charity of a temporary nature as distinguished from a permanent public charitable institution. As the Spanish Government initiated the creation of the fund and as the donors turned their contributions over to that Government, it became the duty of the latter, under article 7 of the instructions, to exercise supervision and control over the moneys thus collected to the end that the will of the donors should be carried out. The relief board had no power whatever to dispose of the funds confided to its charge for other purposes than to distribute them among the sufferers, because paragraph 3 of article 11 of the instructions conferred the power upon the secretary of the interior of Spain, and no other, to dispose of the surplus funds, should there be any, by assigning them to some other charitable purpose or institution. The secretary could not dispose of any of the funds in this manner so long as they were necessary for the specific purpose for which they

were contributed. The secretary had the power, under the law above mentioned to appoint and totally or partially change the personnel of the relief board and to authorize the board to defend the rights of the charity in the courts. The authority of the board consisted only in carrying out the will of the donors as directed by the Government whose duty it was to watch over the acts of the board and to see that the funds were applied to the purposes for which they were contributed .The secretary of the interior, as the representative of His Majesty's Government, exercised these powers and duties through the Governor-General of the Philippine Islands. The Governments of Spain and of the Philippine Islands in complying with their duties conferred upon them by law, acted in their governmental capacities in attempting to carry out the intention of the contributors. It will this be seen that those governments were something more, as we have said, than mere trustees of the fund.

It is further contended that the obligation on the part of the Monte de Piedad to return the $80,000 to the Government, even considering it a loan, was wiped out on the change of sovereignty, or inn other words, the present Philippine Government cannot maintain this action for that reason. This contention, if true, "must result from settled principles of rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired prior to such change. While the obligation to return the $80,000 to the Spanish Government was still pending, war between the United States and Spain ensued. Under the Treaty of Paris of December 10, 1898, the Archipelago, known as the Philippine Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of $20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the United States "all buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belonged to the public domain, and as such belonged to the crown of Spain." As the $80,000 were not included therein, it is said that the right to recover this amount did not, therefore, pass to the present sovereign. This, in our opinion, does not follow as a necessary consequence, as the right to recover does not rest upon the proposition that the $80,000 must be "other immovable property" mentioned in article 8 of the treaty, but upon contractual obligations incurred before the Philippine Islands were ceded to the United States. We will not inquire what effect his cession had upon the law of June 20, 1849, the royal decree of April 27, 1875, and the instructions promulgated on the latter date. In Vilas vs. Manila (220 U. S., 345), the court said:

That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in conflict with the political character, constitution, or institutions of the substituted sovereign, lose their force, is also plain. (Alvarez y Sanchez vs. United States, 216 U. S., 167.) But it is equally settled in the same public law that the great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler.

If the above-mentioned legal provisions are in conflict with the political character, constitution or institutions of the new sovereign, they became inoperative or lost their force upon the cession of the Philippine Islands to the United States, but if they are among "that great body of municipal law which regulates private and domestic rights," they continued in force and are still in force unless they have been repealed by the present Government. That they fall within the latter class is clear from their very nature and character. They are laws which are not political in any sense of the word. They conferred upon the Spanish Government the right and duty to supervise, regulate, and to some extent control charities and charitable institutions. The present sovereign, in exempting "provident institutions, savings banks, etc.," all of which are in the nature of charitable institutions, from taxation, placed such institutions, in so far as the investment in securities are concerned, under the general supervision of the Insular Treasurer (paragraph 4 of section 111 of Act No. 1189; see also Act No. 701).

Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of Spain devolved upon he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted with approval in Mormon Charch vs. United States (136 U. S.,1, 57), the court said:

The Revolution devolved on the State all the transcendent power of Parliament, and the prerogative of the crown, and gave their Acts the same force and effect.

In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion of the court in a charity case, said:

When this country achieved its independence, the prerogatives of the crown devolved upon the people of the States. And this power still remains with them except so fact as they have delegated a portion of it to the Federal Government. The sovereign will is made known to us by legislative enactment. The State as a sovereign, is the parens patriae.

Chancelor Kent says:

In this country, the legislature or government of the State, as parens patriae, has the right to enforce all charities of public nature, by virtue of its general superintending authority over the public interests, where no other person is entrusted with it. (4 Kent Com., 508, note.)

The Supreme Court of the United States in Mormon Church vs. United States, supra, after approving also the last quotations, said:

This prerogative of parens patriae is inherent in the supreme power of every State, whether that power is lodged in a royal person or in the legislature, and has no affinity to those arbitrary powers which are sometimes exerted by irresponsible monarchs to the great detriment of the people and the destruction of their liberties. On the contrary, it is a most beneficient functions, and often necessary to be exercised in the interest of humanity, and for the prevention of injury to those who cannot protect themselves.

The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3 Cush., 483, 497), wherein the latter court held that it is deemed indispensible that there should be a power in the legislature to authorize the same of the estates of in facts, idiots, insane persons, and persons not known, or not in being, who cannot act for themselves, said:

These remarks in reference to in facts, insane persons and person not known, or not in being, apply to the beneficiaries of charities, who are often in capable of vindicating their rights, and justly look for protection to the sovereign authority, acting as parens patriae. They show that this beneficient functions has not ceased t exist under the change of government from a monarchy to a republic; but that it now resides in the legislative department, ready to be called into exercise whenever required for the purposes of justice and right, and is a clearly capable of being exercised in cases of charities as in any other cases whatever.

In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the real party in interest; that the Attorney-General had no power to institute the action; and that there must be an allegation and proof of a distinct right of the people as a whole, as distinguished from the rights of individuals, before an action could be brought by the Attorney-General in the name of the people. The court, in overruling these contentions, held that it was not only the right but the duty of the Attorney-General to prosecute the action, which related to charities, and approved the following quotation from Attorney-General vs. Compton (1 Younge & C. C., 417):

Where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it is the privilege of the public that the crown should be entitled to intervene by its officers for the purpose of asserting, on behalf on the public generally, the public interest and the public right, which, probably, no individual could be found effectually to assert, even if the interest were such as to allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on Trusts, sec. 732.)

It is further urged, as above indicated, that "the only persons who could claim to be damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis que trustent, and this Government is neither. Consequently, the plaintiff is not the proper party to bring the action." The earthquake fund was the result or the

accumulation of a great number of small contributions. The names of the contributors do not appear in the record. Their whereabouts are unknown. They parted with the title to their respective contributions. The beneficiaries, consisting of the original sufferers and their heirs, could have been ascertained. They are quite numerous also. And no doubt a large number of the original sufferers have died, leaving various heirs. It would be impracticable for them to institute an action or actions either individually or collectively to recover the $80,000. The only course that can be satisfactorily pursued is for the Government to again assume control of the fund and devote it to the object for which it was originally destined.

The impracticability of pursuing a different course, however, is not the true ground upon which the right of the Government to maintain the action rests. The true ground is that the money being given to a charity became, in a measure, public property, only applicable, it is true, to the specific purposes to which it was intended to be devoted, but within those limits consecrated to the public use, and became part of the public resources for promoting the happiness and welfare of the Philippine Government. (Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this action would be contrary to sound public policy, as tending to discourage the prompt exercise of similar acts of humanity and Christian benevolence in like instances in the future.

As to the question raised in the fourth assignment of error relating to the constitutionality of Act No. 2109, little need be said for the reason that we have just held that the present Philippine Government is the proper party to the action. The Act is only a manifestation on the part of the Philippine Government to exercise the power or right which it undoubtedly had. The Act is not, as contended by counsel, in conflict with the fifth section of the Act of Congress of July 1, 1902, because it does not take property without due process of law. In fact, the defendant is not the owner of the $80,000, but holds it as a loan subject to the disposal of the central relief board. Therefor, there can be nothing in the Act which transcends the power of the Philippine Legislature.

In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed before the cession of the Philippine Islands to the United States by the Treaty of Paris of December 10, 1898. The action was brought upon the theory that the city, under its present charter from the Government of the Philippine Islands, was the same juristic person, and liable upon the obligations of the old city. This court held that the present municipality is a totally different corporate entity and in no way liable for the debts of the Spanish municipality. The Supreme Court of the United States, in reversing this judgment and in holding the city liable for the old debt, said:

The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal sense, the successor of the old. As such it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities.

In support of the fifth assignment of error counsel for the defendant argue that as the Monte de Piedad declined to return the $80,000 when ordered to do so by the Department of Finance in June, 1893, the plaintiff's right of action had prescribed at the time this suit was instituted on May 3, 1912, citing and relying upon article 1961, 1964 and 1969 of the Civil Code. While on the other hand, the Attorney-General contends that the right of action had not prescribed (a) because the defense of prescription cannot be set up against the Philippine Government, (b) because the right of action to recover a deposit or trust funds does not prescribe, and (c) even if the defense of prescription could be interposed against the Government and if the action had, in fact, prescribed, the same was revived by Act No. 2109.

The material facts relating to this question are these: The Monte de Piedad received the $80,000 in 1883 "to be held under the same conditions as at present in the treasury, to wit, at the disposal of the relief board." In compliance with the provisions of the royal order of December 3, 1892, the Department of Finance called upon the Monte de Piedad in June, 1893, to return the $80,000. The Monte declined to comply with this order upon the ground that only the Governor-General of the Philippine Islands and not the Department of Finance had the right to order the reimbursement. The amount was carried on the books of the Monte as a returnable loan until January 1, 1899, when it was transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte, through its

legal representative, stated in writing that the amount in question was received as a reimbursable loan, without interest. Act No. 2109 became effective January 30, 1912, and the action was instituted on May 3rd of that year.

Counsel for the defendant treat the question of prescription as if the action was one between individuals or corporations wherein the plaintiff is seeking to recover an ordinary loan. Upon this theory June, 1893, cannot be taken as the date when the statute of limitations began to run, for the reason that the defendant acknowledged in writing on March 31, 1902, that the $80,000 were received as a loan, thereby in effect admitting that it still owed the amount. (Section 50, Code of Civil Procedure.) But if counsels' theory is the correct one the action may have prescribed on May 3, 1912, because more than ten full years had elapsed after March 31, 1902. (Sections 38 and 43, Code of Civil Procedure.)

Is the Philippine Government bound by the statute of limitations? The Supreme Court of the United States in U. S. vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U. S., 120, 125), said:

It is settled beyond doubt or controversy — upon the foundation of the great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided — that the United States, asserting rights vested in it as a sovereign government, is not bound by any statute of limitations, unless Congress has clearly manifested its intention that it should be so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs. Knight, 14 Pet., 301; Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486; Fink vs. O'Neil, 106 U. S., 272, 281.)

In Gibson vs. Choteau, supra, the court said:

It is a matter of common knowledge that statutes of limitation do not run against the State. That no laches can be imputed to the King, and that no time can bar his rights, was the maxim of the common laws, and was founded on the principle of public policy, that as he was occupied with the cares of government he ought not to suffer from the negligence of his officer and servants. The principle is applicable to all governments, which must necessarily act through numerous agents, and is essential to a preservation of the interests and property of the public. It is upon this principle that in this country the statutes of a State prescribing periods within which rights must be prosecuted are not held to embrace the State itself, unless it is expressly designated or the mischiefs to be remedied are of such a nature that it must necessarily be included. As legislation of a State can only apply to persons and thing over which the State has jurisdiction, the United States are also necessarily excluded from the operation of such statutes.

In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:

In the absence of express statutory provision to the contrary, statute of limitations do not as a general rule run against the sovereign or government, whether state or federal. But the rule is otherwise where the mischiefs to be remedied are of such a nature that the state must necessarily be included, where the state goes into business in concert or in competition with her citizens, or where a party seeks to enforces his private rights by suit in the name of the state or government, so that the latter is only a nominal party.

In the instant case the Philippine Government is not a mere nominal party because it, in bringing and prosecuting this action, is exercising its sovereign functions or powers and is seeking to carry out a trust developed upon it when the Philippine Islands were ceded to the United States. The United States having in 1852, purchased as trustee for the Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee, the right of action of the Government on the coupons of such bonds could not be barred by the statute of limitations of Tennessee, either while it held them in trust for the Indians, or since it became the owner of such coupons. (U. S. vs. Nashville, etc., R. Co., supra.) So where lands are held in trust by the state and the beneficiaries have no right to

sue, a statute does not run against the State's right of action for trespass on the trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)

These principles being based "upon the foundation of the great principle of public policy" are, in the very nature of things, applicable to the Philippine Government.

Counsel in their argument in support of the sixth and last assignments of error do not question the amount of the judgment nor do they question the correctness of the judgment in so far as it allows interest, and directs its payment in gold coin or in the equivalent in Philippine currency.

For the foregoing reasons the judgment appealed from is affirmed, with costs against the appellant. So ordered.

Torres, Johnson and Araullo, JJ., concur.Moreland, J., did not sign.