G.R. No.

L-63915 April 24, 1985

LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution,
1
as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question
2
said petitioners
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board or person
unlawfully neglects the performance of an act which the law specifically enjoins as a
duty resulting from an office, trust, or station, or unlawfully excludes another from the
use a rd enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be done to
Protect the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General,
3
this Court held that while the general rule is that "a writ of mandamus would be granted to
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights are
to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions,
4
this Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law
of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansaand for the diligent ones, ready
access to the legislative recordsno such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad.
5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned.
6

It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank
8
to wit:
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban
9
sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published.
10
Neither
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. InPesigan vs. Angeles,
11
the
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.


Separate Opinions

FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable.
4
Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident.
5
In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.



Separate Opinions
FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of
Justice Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the
requirement of publication in the Official Gazette for unpublished "presidential issuances" to have
binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if
made to apply adversely to a party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that such publication required need not
be confined to the Official Gazette. From the pragmatic standpoint, there is an advantage to be
gained. It conduces to certainty. That is too be admitted. It does not follow, however, that failure to
do so would in all cases and under all circumstances result in a statute, presidential decree or any
other executive act of the same category being bereft of any binding force and effect. To so hold
would, for me, raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of effectivity unless
published in the Official Gazette. There is no such requirement in the Constitution as Justice Plana
so aptly pointed out. It is true that what is decided now applies only to past "presidential issuances".
Nonetheless, this clarification is, to my mind, needed to avoid any possible misconception as to what
is required for any statute or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first
paragraph sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The
Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. It may be said though that the guarantee of due process
requires notice of laws to affected Parties before they can be bound thereby; but such notice is not
necessarily by publication in the Official Gazette. The due process clause is not that precise.
1
I am
likewise in agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be bound by a law
without notice. This is elementary fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government
"must be ascertainable in some form if it is to be enforced at all.
3
It would indeed be to reduce it to
the level of mere futility, as pointed out by Justice Cardozo, "if it is unknown and
unknowable.
4
Publication, to repeat, is thus essential. What I am not prepared to subscribe to is the
doctrine that it must be in the Official Gazette. To be sure once published therein there is the
ascertainable mode of determining the exact date of its effectivity. Still for me that does not dispose
of the question of what is the jural effect of past presidential decrees or executive acts not so
published. For prior thereto, it could be that parties aware of their existence could have conducted
themselves in accordance with their provisions. If no legal consequences could attach due to lack of
publication in the Official Gazette, then serious problems could arise. Previous transactions based
on such "Presidential Issuances" could be open to question. Matters deemed settled could still be
inquired into. I am not prepared to hold that such an effect is contemplated by our decision. Where
such presidential decree or executive act is made the basis of a criminal prosecution, then, of
course, its ex post facto character becomes evident.
5
In civil cases though, retroactivity as such is
not conclusive on the due process aspect. There must still be a showing of arbitrariness. Moreover,
where the challenged presidential decree or executive act was issued under the police power, the
non-impairment clause of the Constitution may not always be successfully invoked. There must still
be that process of balancing to determine whether or not it could in such a case be tainted by
infirmity.
6
In traditional terminology, there could arise then a question of unconstitutional application.
That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that
publication is essential to the effectivity of a legislative or executive act of a general application. I am
not in agreement with the view that such publication must be in the Official Gazette. The Civil Code
itself in its Article 2 expressly recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette is subject to this exception,
"unless it is otherwise provided." Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical force of a constitutional command. A
later legislative or executive act which has the force and effect of law can legally provide for a
different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that
presidential decrees and executive acts not thus previously published in the Official Gazette would
be devoid of any legal character. That would be, in my opinion, to go too far. It may be fraught, as
earlier noted, with undesirable consequences. I find myself therefore unable to yield assent to such a
pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this
separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice
Herrera. The Rule of Law connotes a body of norms and laws published and ascertainable and of
equal application to all similarly circumstances and not subject to arbitrary change but only under
certain set procedures. The Court has consistently stressed that "it is an elementary rule of fair play
and justice that a reasonable opportunity to be informed must be afforded to the people who are
commanded to obey before they can be punished for its violation,
1
citing the settled principle based
on due process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article
3 of the Civil Code (based on constructive notice that the provisions of the law are ascertainable
from the public and official repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which
are silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to
a law that has been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall
take effect [only] one year [not 15 days] after such publication.
2
To sustain respondents' misreading
that "most laws or decrees specify the date of their effectivity and for this reason, publication in the
Official Gazette is not necessary for their effectivity
3
would be to nullify and render nugatory the Civil
Code's indispensable and essential requirement of prior publication in the Official Gazette by the
simple expedient of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period generally fixed by
the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it
has to be published. What I would like to state in connection with that proposition is that when a date
of effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after
its publication in the Official Gazette, it will not mean that the decree can have retroactive effect to
the date of effectivity mentioned in the decree itself. There should be no retroactivity if the
retroactivity will run counter to constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their
effectivity, unlike some Constitutions elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be bound thereby; but such notice
is not necessarily by publication in the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazetterequired by any statute as a prerequisite for
their effectivity, if said laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is otherwise provided " Two things
may be said of this provision: Firstly, it obviously does not apply to a law with a built-in provision as
to when it will take effect. Secondly, it clearly recognizes that each law may provide not only a
different period for reckoning its effectivity date but also a different mode of notice. Thus, a law may
prescribe that it shall be published elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their
effectivity, laws must be published in the Official Gazette. The said law is simply "An Act to Provide
for the Uniform Publication and Distribution of the Official Gazette." Conformably therewith, it
authorizes the publication of the Official Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in relation thereto. It also enumerates
what shall be published in the Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines" and "all executive and
administrative orders and proclamations, except such as have no general applicability." It is
noteworthy that not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that publication in the
Official Gazette is essential for the effectivity of laws. This is as it should be, for all statutes are equal
and stand on the same footing. A law, especially an earlier one of general application such as
Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent statute that has
a provision of its own as to when and how it will take effect. Only a higher law, which is the
Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall be by publication in the Official
Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such
publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.
Footnotes
1 Section 6. The right of the people to information on matters of public concern shag
be recognized, access to official records, and to documents and papers pertaining to
official acts, transactions, or decisions, shag be afforded the citizens subject to such
limitation as may be provided by law.
2 Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs. Aidanese, 45 Phil. 345;
Almario vs. City Mayor, 16 SCRA 151;Parting vs. San Jose Petroleum, 18 SCRA
924; Dumlao vs. Comelec, 95 SCRA 392.
3 16 Phil. 366, 378.
4 Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia vs. Balolong, 81 Phil.
486; Republic of the Philippines vs. Encamacion, 87 Phil. 843; Philippine Blooming
Mills, Inc. vs. Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46 Phil.
179.
5 1 Manresa, Codigo Civil 7th Ed., p. 146.
6 People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs. Secretary of Education, et
al., 110 Phil. 150.
7 82 SCRA 30, dissenting opinion.
8 308 U.S. 371, 374.
9 93 Phil.. 68,.
10 The report was prepared by the Clerk of Court after Acting Director Florendo S.
Pablo Jr. of the Government Printing Office, failed to respond to her letter-request
regarding the respective dates of publication in the Official Gazette of the presidential
issuances listed therein. No report has been submitted by the Clerk of Court as to the
publication or non-publication of other presidential issuances.
11 129 SCRA 174.
Fernando, CJ.:
1 Separate Opinion of Justice Plana, first paragraph. He mentioned in tills connection
Article 7, Sec. 21 of the Wisconsin Constitution and State ex rel. White v. Grand
Superior Ct., 71 ALR 1354, citing the Constitution of Indiana, U.S.A
2 Ibid, closing paragraph.
3 Learned Hand, The Spirit of Liberty 104 (1960).
4 Cardozo, The Growth of the Law, 3 (1924).
5 Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January 30, 1982, 111
SCRA 433.
6 Cf. Alalayan v. National Power Corporation, L-24396, July 29, 1968, 24 SCRA 172.
Teehankee, J.:
1 People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late Chief Justice
Paras.
2 Notes in brackets supplied.
3 Respondents: comment, pp. 14-15.
Plana, J.:
* See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The legislature shall provide
publication of all statute laws ... and no general law shall be in force until published."
See also S ate ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing Constitution
of Indiana, U.S.A.
G.R. No. 80718 January 29, 1988
FELIZA P. DE ROY and VIRGILIO RAMOS, petitioners,
vs.
COURT OF APPEALS and LUIS BERNAL, SR., GLENIA BERNAL, LUIS BERNAL, JR., HEIRS
OF MARISSA BERNAL, namely, GLICERIA DELA CRUZ BERNAL and LUIS BERNAL,
SR., respondents.
R E S O L U T I O N

CORTES, J .:
This special civil action for certiorari seeks to declare null and void two (2) resolutions of the Special
First Division of the Court of Appeals in the case of Luis Bernal, Sr., et al. v. Felisa Perdosa De Roy,
et al., CA-G.R. CV No. 07286. The first resolution promulgated on 30 September 1987 denied
petitioners' motion for extension of time to file a motion for reconsideration and directed entry of
judgment since the decision in said case had become final; and the second Resolution dated 27
October 1987 denied petitioners' motion for reconsideration for having been filed out of time.
At the outset, this Court could have denied the petition outright for not being verified as required by
Rule 65 section 1 of the Rules of Court. However, even if the instant petition did not suffer from this
defect, this Court, on procedural and substantive grounds, would still resolve to deny it.
The facts of the case are undisputed. The firewall of a burned-out building owned by petitioners
collapsed and destroyed the tailoring shop occupied by the family of private respondents, resulting in
injuries to private respondents and the death of Marissa Bernal, a daughter. Private respondents had
been warned by petitioners to vacate their shop in view of its proximity to the weakened wall but the
former failed to do so. On the basis of the foregoing facts, the Regional Trial Court. First Judicial
Region, Branch XXXVIII, presided by the Hon. Antonio M. Belen, rendered judgment finding
petitioners guilty of gross negligence and awarding damages to private respondents. On appeal, the
decision of the trial court was affirmed in toto by the Court of Appeals in a decision promulgated on
August 17, 1987, a copy of which was received by petitioners on August 25, 1987. On September 9,
1987, the last day of the fifteen-day period to file an appeal, petitioners filed a motion for extension of
time to file a motion for reconsideration, which was eventually denied by the appellate court in the
Resolution of September 30, 1987. Petitioners filed their motion for reconsideration on September
24, 1987 but this was denied in the Resolution of October 27, 1987.
This Court finds that the Court of Appeals did not commit a grave abuse of discretion when it denied
petitioners' motion for extension of time to file a motion for reconsideration, directed entry of
judgment and denied their motion for reconsideration. It correctly applied the rule laid down
in Habaluyas Enterprises, Inc. v. Japzon, [G.R. No. 70895, August 5, 1985,138 SCRA 461, that the
fifteen-day period for appealing or for filing a motion for reconsideration cannot be extended. In its
Resolution denying the motion for reconsideration, promulgated on July 30, 1986 (142 SCRA 208),
this Court en banc restated and clarified the rule, to wit:
Beginning one month after the promulgation of this Resolution, the rule shall be strictly enforced that
no motion for extension of time to file a motion for reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the Supreme Court as the court of last resort, which
may in its sound discretion either grant or deny the extension requested. (at p. 212)
Lacsamana v. Second Special Cases Division of the intermediate Appellate Court, [G.R. No. 73146-
53, August 26, 1986, 143 SCRA 643], reiterated the rule and went further to restate and clarify the
modes and periods of appeal.
Bacaya v. Intermediate Appellate Court, [G.R. No. 74824, Sept. 15, 1986,144 SCRA 161],stressed
the prospective application of said rule, and explained the operation of the grace period, to wit:
In other words, there is a one-month grace period from the promulgation on May 30,
1986 of the Court's Resolution in the clarificatory Habaluyas case, or up to June 30,
1986, within which the rule barring extensions of time to file motions for new trial or
reconsideration is, as yet, not strictly enforceable.
Since petitioners herein filed their motion for extension on February 27, 1986, it is still
within the grace period, which expired on June 30, 1986, and may still be allowed.
This grace period was also applied in Mission v. Intermediate Appellate Court [G.R. No. 73669,
October 28, 1986, 145 SCRA 306].]
In the instant case, however, petitioners' motion for extension of time was filed on September 9,
1987, more than a year after the expiration of the grace period on June 30, 1986. Hence, it is no
longer within the coverage of the grace period. Considering the length of time from the expiration of
the grace period to the promulgation of the decision of the Court of Appeals on August 25, 1987,
petitioners cannot seek refuge in the ignorance of their counsel regarding said rule for their failure to
file a motion for reconsideration within the reglementary period.
Petitioners contend that the rule enunciated in the Habaluyas case should not be made to apply to
the case at bar owing to the non-publication of the Habaluyas decision in the Official Gazette as of
the time the subject decision of the Court of Appeals was promulgated. Contrary to petitioners' view,
there is no law requiring the publication of Supreme Court decisions in the Official Gazette before
they can be binding and as a condition to their becoming effective. It is the bounden duty of counsel
as lawyer in active law practice to keep abreast of decisions of the Supreme Court particularly where
issues have been clarified, consistently reiterated, and published in the advance reports of Supreme
Court decisions (G. R. s) and in such publications as the Supreme Court Reports Annotated (SCRA)
and law journals.
This Court likewise finds that the Court of Appeals committed no grave abuse of discretion in
affirming the trial court's decision holding petitioner liable under Article 2190 of the Civil Code, which
provides that "the proprietor of a building or structure is responsible for the damage resulting from its
total or partial collapse, if it should be due to the lack of necessary repairs.
Nor was there error in rejecting petitioners argument that private respondents had the "last clear
chance" to avoid the accident if only they heeded the. warning to vacate the tailoring shop and ,
therefore, petitioners prior negligence should be disregarded, since the doctrine of "last clear
chance," which has been applied to vehicular accidents, is inapplicable to this case.
WHEREFORE, in view of the foregoing, the Court Resolved to DENY the instant petition for lack of
merit.
Fernan (Chairman), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
G.R. No. L-46158 November 28, 1986
TAYUG RURAL BANK, plaintiff-appellee,
vs.
CENTRAL BANK OF THE PHILIPPINES, defendant-appellant.
Bengzon, Bengzon, Villaroman & De Vera Law Office for plaintiff-appellee.
Evangelista, Bautista & Valdehuesa Law Office for defendant-appellant.

PARAS, J .:p
Submitted on May 20, 1977 for decision by this Court is this appeal from the decision dated
January 6, 1971 rendered by the Court of First Instance of Manila, Branch III in Civil Case No.
76920, the decretal portion of which states as follows:
WHEREFORE, judgment is rendered for the plaintiff on the complaint and the
defendant is ordered to further credit the plaintiff the amounts collected as
10% penalty in the sum of P19,335.88 or up to July 15, 1969 and to refrain from
collecting the said 10% penalty on the remaining past due loans of plaintiff
with the defendant.
With respect to defendant's counterclaim, judgment is hereby rendered against
the plaintiff and the defendant is ordered to pay the Central Bank of the
Philippines the outstanding balance of its past overdue accounts in the sum of
P444,809,45 plus accrued interest at the rate of 1/2 of 1 % per annum with
respect to the promissory notes (Annexes 1 to 1-E of defendant's Answer) and
2-1/2% per annum with respect to the promissory notes (Annexes 1-f to 1-i of
the Answer). From this amount shall be deducted the sum of P19,335.88
collected as 10% penalty.
The facts of the case based on the parties' stipulation of facts (Record on Appeal p. 67), are
as follows:
Plaintiff-Appellee, Tayug Rural Bank, Inc., is a banking corporation in Tayug, Pangasinan.
During the period from December 28, 1962 to July 30, 1963, it obtained thirteen (13) loans
from Defendant-Appellant, Central Bank of the Philippines, by way of rediscounting, at the
rate of 1/2 of 1% per annum from 1962 to March 28, 1963 and thereafter at the rate of 2-1/2%
per anum. The loans, amounting to P813,000.00 as of July 30, 1963, were all covered by
corresponding promissory notes prescribing the terms and conditions of the aforesaid loans
(Record on Appea, pp. 15-53). As of July 15, 1969, the outstanding balance was P 444,809.45
(Record on Appeal, p. 56).
On December 23, 1964, Appellant, thru the Director of the Department of Loans and Credit,
issued Memorandum Circular No. DLC-8, informing all rural banks that an additional penalty
interest rate of ten per cent (10%) per annum would be assessed on all past due loans
beginning January 4, 1965. Said Memorandum Circular was actually enforced on all rural
banks effective July 4, 1965.
On June 27, 1969, Appellee Rural Bank sued Appellant in the Court of First Instance of
Manila, Branch III, to recover the 10% penalty imposed by Appellant amounting to P16,874.97,
as of September 27, 1968 and to restrain Appellant from continuing the imposition of the
penalty. Appellant filed a counterclaim for the outstanding balance and overdue accounts of
Appellee in the total amount of P444,809.45 plus accrued interest and penalty at 10% per
annum on the outstanding balance until full payment. (Record on Appeal, p. 13). Appellant
justified the imposition of the penalty by way of affirmative and special defenses, stating that
it was legally imposed under the provisions of Section 147 and 148 of the Rules and
Regulations Governing Rural Banks promulgated by the Monetary Board on September 5,
1958, under authority of Section 3 of Republic Act No. 720, as amended (Record on Appeal, p.
8, Affirmative and Special Defenses Nos. 2 and 3).
In its answer to the counterclaim, Appellee prayed for the dismissal of the counterclaim,
denying Appellant's allegations stating that if Appellee has any unpaid obligations with
Appellant, it was due to the latter's fault on account of its flexible and double standard policy
in the granting of rediscounting privileges to Appellee and its subsequent arbitrary and illegal
imposition of the 10% penalty (Record on Appeal, p. 57). In its Memorandum filed on
November 11, 1970, Appellee also asserts that Appellant had no basis to impose the penalty
interest inasmuch as the promissory notes covering the loans executed by Appellee in favor
of Appellants do not provide for penalty interest rate of 10% per annum on just due loans
beginning January 4, 1965 (Record on Appeal p. 96).
The lower court, in its Order dated March 3, 1970, stated that "only a legal question has been
raised in the pleadings" and upholding the stand of plaintiff Rural Bank, decided the case in
its favor. (Rollo, p. 34).
Appellant appealed the decision of the trial court to the Court of Appeals, for determination of
questions of facts and of law. However, in its decision promulgated April 13, 1977, the Court
of Appeals, finding no controverted facts and taking note of the statement of the lower court
in its pre-trial Order dated March 3, 1970 that only a legal question has been raised in the
pleadings, (Record on Appeal, p. 61), ruled that the resolution of the appeal will solely depend
on the legal issue of whether or not the Monetary Board had authority to authorize Appellant
Central Bank to impose a penalty rate of 10% per annum on past due loans of rural banks
which had failed to pay their accounts on time and ordered the certification of this case to
this Court for proper determination (Rollo, pp. 34-35).
On April 20, 1977, the entire record of the case was forwarded to this Court (Rollo, p. 36). In
the resolution of May 20, 1977, the First Division of this Court, ordered the case docketed and
as already stated declared the same submitted for decision (Rollo, p. 38).
In its Brief, Appellant assigns the following errors:
I. THE LOWER COURT ERRED IN HOLDING THAT IT IS BEYOND
THE REACH OF THE MONETARY BOARD TO METE OUT
PENALTIES ON PAST DUE LOANS OF RURAL BANKS
ESPECIALLY SINCE NO PENAL CLAUSE HAS BEEN INCLUDED
IN THE PROMISSORY NOTES.
II. THE LOWER COURT ERRED IN HOLDING THAT THE
IMPOSITION OF THE PENALTY IS AN IMPAIRMENT OF THE
OBLIGATION OF CONTRACT WITHOUT DUE PROCESS.
III. THE LOWER COURT ERRED IN NOT FINDING JUDGMENT
AGAINST PLAINTIFF FOR 10% COST OF COLLECTION OF THE
PROMISSORY NOTE AS PROVIDED THEREIN.
It is undisputed that no penal clause has been included in the promissory notes. For this
reason, the trial court is of the view that Memorandum Circular DLC-8 issued on December
23, 1964 prescribing retroactive effect on all past due loans, impairs the obligation of contract
and deprives the plaintiff of its property without due process of law. (Record on Appel, p. 40).
On the other hand appellant without opposing appellee's right against impairment of
contracts, contends that when the promissory notes were signed by appellee, it was
chargeable with knowledge of Sections 147 and 148 of the rules and regulations authorizing
the Central Bank to impose additional reasonable penalties, which became part of the
agreement. (ibid).
Accordingly, the issue is reduced to the sole question as to whether or not the Central Bank
can validly impose the 10% penalty on Appellee's past overdue loans beginning July 4, 1965,
by virtue of Memorandum Circular No. DLC-8 dated December 23, 1964.
The answer is in the negative.
Memorandum Circular No. DLC-8 issued by the Director of Appellant's Department of Loans
and Credit on December 23, 1964, reads as follows:
Pursuant to Monetary Board Resolution No. 1813 dated December 18, 1964,
and in consonance with Section 147 and 148 of the Rules and Regulations
Governing Rural Banks concerning the responsibility of a rural bank to remit
immediately to the Central Bank payments received on papers rediscounted
with the latter including the loan value of rediscounted papers as they mature,
and to liquidate fully its maturing loan obligations with the Central Bank,
personal checks, for purposes of repayment, shall considered only after such
personal checks shall have been honored at clearing.
In addition, rural banks which shall default in their loan obligations, thus
incurring past due accounts with the Central Bank, shall be assessed an
additional penalty interest rate of ten per cent (10%) per annum on such past
due accounts with the Central Bank over and above the customary interest
rate(s) at which such loans were originally secured from the Central Bank.
(Record on Appeal, p. 135).
The above-quoted Memorandum Circular was issued on the basis of Sections 147 and 148 of
the Rules and Regulations Governing Rural Banks of the Philippines approved on September
5, 1958, which provide:
Section 147. Duty of Rural Bank to turn over payment received for papers
discounted or used for collateral. A Rural Bank receiving any payment on
account of papers discounted or used for collateral must turn the same over to
the creditor bank before the close of the banking day next following the receipt
of payment, as long as the aggregate discounting on loan amount is not fully
paid, unless the Rural Bank substitutes the same with another eligible paper
with at least the same or earlier maturity and the same or greater value.
A Rural Bank failing to comply with the provisions of the preceding paragraph
shall ipso facto lose its right to the rediscounting or loan period, without
prejudice to the Central Bank imposing additional reasonable penalties,
including curtailment or withdrawal of financial assistance.
Sec. 148. Default and other violations of obligation by Rural Bank, effect. A
Rural Bank becomes in default upon the expiration of the maturity period of its
note, or that of the papers discounted or used as collateral, without the
necessity of demand.
A Rural Bank incurring default, or in any other manner, violating any of the
stipulations in its note, shall suffer the consequences provided in the second
paragraph of the preceding section. (Record on Appeal, p. 136.)
The "Rules and Regulations Governing Rural Banks" was published in the Official Gazette, 55
O.G., on June 13, 1959, pp. 5186-5289. It is by virtue of these same Rules that Rural Banks re-
discount their loan papers with the Central Bank at 2-1/2% interest per annum and in turn
lend the money to the public at 12% interest per annum (Defendant's Reply to Plaintiff's
Memorandum, Record on Appeal, p. 130).
Appellant maintains that it is pursuant to Section 3 of R.A. No. 720, as amended, that the
Monetary Board has adopted the set of Rules and Regulations Governing Rural Banks. It
reads:
SEC. 3. In furtherance of this policy, the Monetary Board of the Central Bank of
the Philippines shall formulate the necessary rules and regulations governing
the establishment and operatives of Rural Banks for the purpose of providing
adequate credit facilities to small farmers and merchants, or to cooperatives of
such farmers or merchants and to supervise the operation of such banks.
The specific provision under the law claimed as basis for Sections 147 and 148 of the Rules
and Regulations Governing Rural Banks, that is, on Appellant's authority to extend loans to
Rural Banks by way of rediscounting is Section 13 of R.A. 720, as amended, which provides:
SEC. 13. In an emergency or when a financial crisis is imminent the Central
Bank may give a loan to any Rural Bank against assets of the Rural Bank
which may be considered acceptable by a concurrent vote of at least, five
members of the Monetary Board.
In normal times, the Central Bank may re-discount against papers evidencing a
loan granted by a Rural Bank to any of its customers which can be liquefied
within a period of two hundred and seventy days: PROVIDED, HOWEVER, That
for the purpose of implementing a nationwide program of agricultural and
industrial development, Rural Banks are hereby authorized under such terms
and conditions as the Central Bank shall prescribe to borrow on a medium or
long term basis, funds that the Central Bank or any other government
financing institutions shall borrow from the International Bank for
Reconstruction and Development or other international or foreign lending
institutions for the specific purpose of financing the above stated agricultural
and industrial program. Repayment of loans obtained by the Central Bank of
the Philippines or any other government financing institution from said foreign
lending institutions under this section shall be guaranteed by the Republic of
the Philippines.
As to the supervising authority of the Monetary Board of the Central Bank over Rural Banks,
the same is spelled-out under Section 10 of R.A. 720, as follows:
SEC. 10. The power to supervise the operation of any Rural Bank by the
Monetary Board of the Central Bank as herein indicated, shall consist in
placing limits to the maximum credit allowed any individual borrower; in
prescribing the interest rate; in determining the loan period and loan
procedure; in indicating the manner in which technical assistance shall be
extended to Rural Banks; in imposing a uniform accounting system and
manner of keeping the accounts and records of the Rural Banks; in
undertaking regular credit examination of the Rural Banks: in instituting
periodic surveys of loan and lending procedures, audits, test check of cash
and other transactions of the Rural Banks; in conducting training courses for
personnel of Rural Banks; and, in general in supervising the business
operation of the Rural Banks.
Nowhere in any of the above-quoted pertinent provisions of R.A. 720 nor in any other
provision of R.A. 720 for that matter, is the monetary Board authorized to mete out on rural
banks an additional penalty rate on their past due accounts with Appellant. As correctly
stated by the trial court, while the Monetary Board possesses broad supervisory powers,
nonetheless, the retroactive imposition of administrative penalties cannot be taken as a
measure supervisory in character. (Record on Appeal, p. 141).
Administrative rules and regulations have the force and effect of law (Valerio v. Hon.
Secretary of Agriculture and Natural Resources, 7 SCRA 719; Commissioner of Civil Service
v. Cruz, 15 SCRA 638; R.B. Industrial Development Company, Ltd. v. Enage, 24 SCRA 365;
Director of Forestry v. Munoz, 23 SCRA 1183; Gonzalo Sy v. Central Bank of the Philippines,
70 SCRA 570).
There are, however, limitations to the rule-making power of administrative agencies. A rule
shaped out by jurisprudence is that when Congress authorizes promulgation of
administrative rules and regulations to implement given legislation, all that is required is that
the regulation be not in contradiction with it, but conform to the standards that the law
prescribes (Director of Forestry v. Munoz, 23 SCRA 1183). The rule delineating the extent of
the binding force to be given to administrative rules and regulations was explained by the
Court in Teoxon v. Member of the Board of Administrators (33 SCRA 588), thus: "The
recognition of the power of administrative officials to promulgate rules in the implementation
of the statute, as necessarily limited to what is provided for in the legislative enactment, may
be found as early as 1908 in the case of United States v. Barrias (11 Phil. 327) in 1914 U.S. v.
Tupasi Molina (29 Phil. 119), in 1936 People v. Santos (63 Phil. 300), in 1951 Chinese Flour
Importers Ass. v. Price Stabilization Board (89 Phil. 439), and in 1962 Victorias Milling Co.,
Inc. v. Social Security Commission (4 SCRA 627). The Court held in the same case that "A
rule is binding on the courts so long as the procedure fixed for its promulgation is followed
and its scope is within the statute granted by the legislature, even if the courts are not in
agreement with the policy stated therein or its innate wisdom ...." On the other hand,
"administrative interpretation of the law is at best merely advisory, for it is the courts that
finally determine what the law means." Indeed, it cannot be otherwise as the Constitution
limits the authority of the President, in whom all executive power resides, to take care that
the laws be faithfully executed. No lesser administrative, executive office, or agency then can,
contrary to the express language of the Constitution, assert for itself a more extensive
prerogative. Necessarily, it is bound to observe the constitutional mandate. There must be
strict compliance with the legislative enactment. The rule has prevailed over the years, the
latest restatement of which was made by the Court in the case of Bautista v. J unio (L-50908,
January 31, 1984, 127 SCRA 342).
In case of discrepancy between the basic law and a rule or regulation issued to implement
said law, the basic law prevails because said rule or regulation cannot go beyond the terms
and provisions of the basic law (People v. Lim, 108 Phil. 1091). Rules that subvert the statute
cannot be sanctioned (University of St. Tomas v. Board of Tax Appeals, 93 Phil. 376; Del Mar
v. Phil. Veterans Administration, 51 SCRA 340). Except for constitutional officials who can
trace their competence to act to the fundamental law itself, a public official must locate in the
statute relied upon a grant of power before he can exercise it. Department zeal may not be
permitted to outrun the authority conferred by statute (Radio Communications of the
Philippines, Inc. v. Santiago, L-29236, August 21, 1974, 58 SCRA 493).
When promulgated in pursuance of the procedure or authority conferred upon the
administrative agency by law, the rules and regulations partake of the nature of a statute, and
compliance therewith may be enforced by a penal sanction provided in the law (Victorias
Milling Co., Inc. v. Social Security Commission, 114 Phil. 555; People v. Maceren, L-32166,
October 18, 1977, 79 SCRA 462; Daza v. Republic, L-43276, September 28, 1984, 132 SCRA
267). Conversely, the rule is likewise clear. Hence an administrative agency cannot impose a
penalty not so provided in the law authorizing the promulgation of the rules and regulations,
much less one that is applied retroactively.
The records show that DLC Form No. 11 (Folder of Exhibits, p. 16) was revised December 23,
1964 to include the penal clause, as follows:
In the event that this note becomes past due, the undersigned shall pay a
penalty at the rate of _____ per cent ( ) per annum on such past due account
over and above the interest rate at which such loan was originally secured
from the Central Bank.
Such clause was not a part of the promissory notes executed by Appellee to secure its loans.
Appellant inserted the clause in the revised DLC Form No. 11 to make it a part of the
contractual obligation of rural banks securing loans from the Central Bank, after December
23, 1964. Thus, while there is now a basis for the imposition of the 10% penalty rate on
overdue accounts of rural banks, there was none during the period that Appellee contracted
its loans from Appellant, the last of which loan was on July 30, 1963. Surely, the rule cannot
be given retroactive effect.
Finally, on March 31, 1970, the Monetary Board in its Resolution No. 475 effective April 1,
1970, revoked its Resolution No. 1813, dated December 18, 1964 imposing the questioned
10% per annum penalty rate on past due loans of rural banks and amended sub-paragraph
(a), Section 10 of the existing guidelines governing rural banks' applications for a loan or
rediscount, dated May 7, 1969 (Folder of Exhibits, p. 19). As stated by the trial court, this
move on the part of the Monetary Board clearly shows an admission that it has no power to
impose the 10% penalty interest through its rules and regulations but only through the terms
and conditions of the promissory notes executed by the borrowing rural banks. Appellant
evidently hoped that the defect could be adequately accomplished by the revision of DLC
Form No. 11.
The contention that Appellant is entitled to the 10% cost of collection in case of suit and
should therefore, have been awarded the same by the court below, is well taken. It is
provided in all the promissory notes signed by Appellee that in case of suit for the collection
of the amount of the note or any unpaid balance thereof, the Appellee Rural Bank shall pay
the Central Bank of the Philippines a sum equivalent to ten (10%) per cent of the amount
unpaid not in any case less than five hundred (P500.00) pesos as attorney's fees and costs of
suit and collection. Thus, Appellee cannot be allowed to come to Court seeking redress for
an wrong done against it and then be allowed to renege on its corresponding obligations.
PREMISES CONSIDERED, the decision of the trial court is hereby AFFIRMED with
modification that Appellee Rural Bank is ordered to pay a sum equivalent to 10% of the
outstanding balance of its past overdue accounts, but not in any case less than P500.00 as
attorney's fees and costs of suit and collection.
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Gutierrez, J r., J J ., concur.
G.R. No. L-52306 October 12, 1981
ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COURT OF TAX APPEALS and THE COMMISSIONER OF INTERNAL REVENUE, respondents.

MELENCIO-HERRERA, J .:
This is a Petition for Review on certiorari of the Decision of the Court of Tax Appeals in C.T.A. Case
No. 2809, dated November 29, 1979, which affirmed the assessment by the Commissioner of
Internal Revenue, dated April 16, 1971, of a deficiency withholding income tax against petitioner,
ABS-CBN Broadcasting Corporation, for the years 1965, 1966, 1967 and 1968 in the respective
amounts of P75,895.24, P99,239.18, P128,502.00 and P222, 260.64, or a total of P525,897.06.
During the period pertinent to this case, petitioner corporation was engaged in the business of
telecasting local as well as foreign films acquired from foreign corporations not engaged in trade or
business within the Philippines. for which petitioner paid rentals after withholding income tax of
30%of one-half of the film rentals.
In so far as the income tax on non-resident corporations is concerned, section 24 (b) of the National
Internal Revenue Code, as amended by Republic Act No. 2343 dated June 20, 1959, used to
provide:
(b) Tax on foreign corporations.(1) Non-resident corporations. There shall be
levied, collected, and paid for each taxable year, in lieu of the tax imposed by the
preceding paragraph, upon the amount received by every foreign corporation not
engaged in trade or business within the Philippines, from an sources within the
Philippines, as interest, dividends, rents, salaries, wages, premiums, annuities,
compensations, remunerations, emoluments, or other fixed or determinable annual
or periodical gains, profits, and income, a tax equal to thirty per centum of such
amount. (Emphasis supplied)
On April 12, 1961, in implementation of the aforequoted provision, the Commissioner of Internal
Revenue issued General Circular No. V-334 reading thus:
In connection with Section 24 (b) of Tax Code, the amendment introduced by
Republic Act No. 2343, under which an income tax equal to 30% is levied upon the
amount received by every foreign corporation not engaged in trade or business
within the Philippines from all sources within this country as interest, dividends, rents,
salaries, wages, premiums, annuities, compensations, remunerations, emoluments,
or other fixed or determinable annual or periodical gains, profits, and income, it has
been determined that the tax is still imposed on income derived from capital, or labor,
or both combined, in accordance with the basic principle of income taxation (Sec. 39,
Income Tax Regulations), and that a mere return of capital or investment is not
income (Par. 5,06, 1 Mertens Law of Federal 'Taxation). Since according to the
findings of the Special Team who inquired into business of the non-resident foreign
film distributors, the distribution or exhibition right on a film is invariably acquired for a
consideration, either for a lump sum or a percentage of the film rentals, whether from
a parent company or an independent outside producer, apart of the receipts of a non-
resident foreign film distributor derived from said film represents, therefore, a return
of investment.
xxx xxx xxx
4. The local distributor should withhold 30% of one-half of the film rentals paid to the
non-resident foreign film distributor and pay the same to this office in accordance
with law unless the non- resident foreign film distributor makes a prior settlement of
its income tax liability. (Emphasis ours).
Pursuant to the foregoing, petitioner dutifully withheld and turned over to the Bureau of Internal
Revenue the amount of 30% of one-half of the film rentals paid by it to foreign corporations not
engaged in trade or business within the Philippines. The last year that petitioner withheld taxes
pursuant to the foregoing Circular was in 1968.
On June 27, 1968, Republic Act No. 5431 amended Section 24 (b) of the Tax Code increasing the
tax rate from 30 % to 35 % and revising the tax basis from "such amount" referring to rents, etc. to
"gross income," as follows:
(b) Tax on foreign corporations.(1) Non-resident corporations.A foreign
corporation not engaged in trade or business in the Philippines including a foreign life
insurance company not engaged in the life insurance business in the Philippines
shall pay a tax equal to thirty-five per cent of the gross income received during each
taxable year from all sources within the Philippines, as interests, dividends, rents,
royalties, salaries, wages, premiums, annuities, compensations, remunerations for
technical services or otherwise, emoluments or other fixed or determinable annual,
periodical or casual gains, profits, and income, and capital gains, Provided however,
That premiums shah not include reinsurance premiums. (Emphasis supplied)
On February 8, 1971, the Commissioner of Internal Revenue issued Revenue Memorandum Circular
No. 4-71, revoking General Circular No. V-334, and holding that the latter was "erroneous for lack of
legal basis," because "the tax therein prescribed should be based on gross income without
deduction whatever," thus:
After a restudy and analysis of Section 24 (b) of the National Internal Revenue Code,
as amended by Republic Act No. 5431, and guided by the interpretation given by tax
authorities to a similar provision in the Internal Revenue Code of the United States,
on which the aforementioned provision of our Tax Code was patterned, this Office
has come to the conclusion that the tax therein prescribed should be based on gross
income without t deduction whatever. Consequently, the ruling in General Circular
No. V-334, dated April 12, 1961, allowing the deduction of the proportionate cost of
production or exhibition of motion picture films from the rental income of non-
resident foreign corporations, is erroneous for lack of legal basis.
In view thereof, General Circular No. V-334, dated April 12, 1961, is hereby revoked
and henceforth, local films distributors and exhibitors shall deduct and withhold 35%
of the entire amount payable by them to non-resident foreign corporations, as film
rental or royalty, or whatever such payment may be denominated, without any
deduction whatever, pursuant to Section 24 (b), and pay the withheld taxes in
accordance with Section 54 of the Tax Code, as amended.
All rulings inconsistent with this Circular is likewise revoked. (Emphasis ours)
On the basis of this new Circular, respondent Commissioner of Internal Revenue issued against
petitioner a letter of assessment and demand dated April 15, 1971, but allegedly released by it and
received by petitioner on April 12, 1971, requiring them to pay deficiency withholding income tax on
the remitted film rentals for the years 1965 through 1968 and film royalty as of the end of 1968 in the
total amount of P525,897.06 computed as follows:
1965
Total amount remitted
P 511,059.48
Withholding tax due
thereon
153,318.00
Less: Amount already
assessed
89,000.00
Balance P64,318.00
Add: 1/2% mo. int. fr. 4-
16-66 to 4-16-69
11,577.24
Total amount due &
collectible
P 75,895.24
1966
Total amount remitted
P373,492.24
Withholding tax due
thereon
112,048.00
Less: Amount already
assessed
27,947.00
Balance 84,101.00
Add: 11/2%mo. int. fr. 4-
16-67 to 4-116-70
15,138.18
Total amount due &
collectible
P99,239.18
1967
Total amount remitted
P601,160.65
Withholding tax
due thereon
180,348.00
Less: Amount
already assessed
71,448.00
Balance 108,900.00
Add: 1/2% mo. int.
fr. 4-16-68 to 4-16-
71
19,602.00
Total amount due
& collectible
P128,502.00
1968
Total amount remitted
P881,816.92
Withholding tax due
thereon
291,283.00
Less: Amount already
assessed
92,886.00
Balance P198,447.00
Add: 1/2% mo. int. fr.
4-16-69 to 4-29-71
23,813.64
Total amount due &
collectible
P222,260.44
1

On May 5, 1971, petitioner requested for a reconsideration and withdrawal of the assessment.
However, without acting thereon, respondent, on April 6, 1976, issued a warrant of distraint and levy
over petitioner's personal as well as real properties. The petitioner then filed its Petition for Review
with the Court of Tax Appeals whose Decision, dated November 29, 1979, is, in turn, the subject of
this review. The Tax Court held:
For the reasons given, the Court finds the assessment issued by respondent on April
16, 1971 against petitioner in the amounts of P75,895.24, P 99,239.18, P128,502.00
and P222,260.64 or a total of P525,897.06 as deficiency withholding income tax for
the years 1965, 1966, 1967 and 1968, respectively, in accordance with law. As
prayed for, the petition for review filed in this case is dismissed, and petitioner ABS-
CBN Broadcasting Corporation is hereby ordered to pay the sum of P525,897.06 to
respondent Commissioner of Internal Revenue as deficiency withholding income tax
for the taxable years 1965 thru 1968, plus the surcharge and interest which have
accrued thereon incident to delinquency pursuant to Section 51 (e) of the National
Internal Revenue Code, as amended.
WHEREFORE, the decision appealed from is hereby affirmed at petitioner's cost.
SO ORDERED.
2

The issues raised are two-fold:
I. Whether or not respondent can apply General Circular No. 4-71 retroactively and
issue a deficiency assessment against petitioner in the amount of P 525,897.06 as
deficiency withholding income tax for the years 1965, 1966, 1967 and 1968.
II. Whether or not the right of the Commissioner of Internal Revenue to assess the
deficiency withholding income tax for the year 196,5 has prescribed.
3

Upon the facts and circumstances of the case, review is warranted.
In point is Sec. 338-A (now Sec. 327) of the Tax Code. As inserted by Republic Act No. 6110 on
August 9, 1969, it provides:
Sec. 338-A. Non-retroactivity of rulings. Any revocation, modification, or reversal
of and of the rules and regulations promulgated in accordance with the preceding
section or any of the rulings or circulars promulgated by the Commissioner of Internal
Revenue shall not be given retroactive application if the relocation, modification, or
reversal will be prejudicial to the taxpayers, except in the following cases: (a) where
the taxpayer deliberately mis-states or omits material facts from his return or any
document required of him by the Bureau of Internal Revenue: (b) where the facts
subsequently gathered by the Bureau of Internal Revenue are materially different
from the facts on which the ruling is based; or (c) where the taxpayer acted in bad
faith. (italics for emphasis)
It is clear from the foregoing that rulings or circulars promulgated by the Commissioner of Internal
Revenue have no retroactive application where to so apply them would be prejudicial to taxpayers.
The prejudice to petitioner of the retroactive application of Memorandum Circular No. 4-71 is beyond
question. It was issued only in 1971, or three years after 1968, the last year that petitioner had
withheld taxes under General Circular No. V-334. The assessment and demand on petitioner to pay
deficiency withholding income tax was also made three years after 1968 for a period of time
commencing in 1965. Petitioner was no longer in a position to withhold taxes due from foreign
corporations because it had already remitted all film rentals and no longer had any control over them
when the new Circular was issued. And in so far as the enumerated exceptions are concerned,
admittedly, petitioner does not fall under any of them.
Respondent claims, however, that the provision on non-retroactivity is inapplicable in the present
case in that General Circular No. V-334 is a nullity because in effect, it changed the law on the
matter. The Court of Tax Appeals sustained this position holding that: "Deductions are wholly and
exclusively within the power of Congress or the law-making body to grant, condition or deny; and
where the statute imposes a tax equal to a specified rate or percentage of the gross or entire amount
received by the taxpayer, the authority of some administrative officials to modify or change, much
less reduce, the basis or measure of the tax should not be read into law."
4
Therefore, the Tax Court
concluded, petitioner did not acquire any vested right thereunder as the same was a nullity.
The rationale behind General Circular No. V-334 was clearly stated therein, however: "It ha(d) been
determined that the tax is still imposed on income derived from capital, or labor, or both combined, in
accordance with the basic principle of income taxation ...and that a mere return of capital or
investment is not income ... ." "A part of the receipts of a non-resident foreign film distributor derived
from said film represents, therefore, a return of investment." The Circular thus fixed the return of
capital at 50% to simplify the administrative chore of determining the portion of the rentals covering
the return of capital."
5

Were the "gross income" base clear from Sec. 24 (b), perhaps, the ratiocination of the Tax Court
could be upheld. It should be noted, however, that said Section was not too plain and simple to
understand. The fact that the issuance of the General Circular in question was rendered necessary
leads to no other conclusion than that it was not easy of comprehension and could be subjected to
different interpretations.
In fact, Republic Act No. 2343, dated June 20, 1959, supra, which was the basis of General Circular
No. V-334, was just one in a series of enactments regarding Sec. 24 (b) of the Tax Code. Republic
Act No. 3825 came next on June 22, 1963 without changing the basis but merely adding a proviso
(in bold letters).
(b) Tax on foreign corporation.(1) Non-resident corporations. There shall be
levied, collected and paid for each taxable year, in lieu of the tax imposed by the
preceding paragraph, upon the amount received by every foreign corporation not
engaged in trade or business within the Philippines, from all sources within the
Philippines, as interest, dividends, rents, salaries, wages, premiums annuities,
compensations, remunerations, emoluments, or other fixed or determinable annual
or periodical gains, profits, and income, a tax equal to thirty per centum of such
amount: PROVIDED, HOWEVER, THAT PREMIUMS SHALL NOT INCLUDE
REINSURANCE PREMIUMS. (double emphasis ours).
Republic Act No. 3841, dated likewise on June 22, 1963, followed after, omitting the proviso and
inserting some words (also in bold letters).
(b) Tax on foreign corporations.(1) Non-resident corporations.There shall be levied,
collected and paid for each taxable year, in lieu of the tax imposed by the preceding
paragraph, upon the amount received by every foreign corporation not engaged in trade
or business within the Philippines, from all sources within the Philippines, as interest,
dividends, rents, salaries, wages, premiums, annuities, compensations, remunerations,
emoluments, or other fixed or determinable annual or periodical OR CASUAL gains,
profits and income, AND CAPITAL GAINS, a tax equal to thirty per centum of such
amount.
6
(double emphasis supplied)
The principle of legislative approval of administrative interpretation by re-enactment clearly obtains in
this case. It provides that "the re-enactment of a statute substantially unchanged is persuasive
indication of the adoption by Congress of a prior executive construction.
7
Note should be taken of
the fact that this case involves not a mere opinion of the Commissioner or ruling rendered on a mere
query, but a Circular formally issued to "all internal revenue officials" by the then Commissioner of
Internal Revenue.
It was only on June 27, 1968 under Republic Act No. 5431, supra, which became the basis of
Revenue Memorandum Circular No. 4-71, that Sec. 24 (b) was amended to refer specifically to 35%
of the "gross income."
This Court is not unaware of the well-entrenched principle that the Government is never estopped
from collecting taxes because of mistakes or errors on the part of its
agents.
8
In fact, utmost caution should be taken in this regard.
9
But, like other principles of law, this
also admits of exceptions in the interest of justice and fairplay. The insertion of Sec. 338-A into the
National Internal Revenue Code, as held in the case of Tuason, Jr. vs. Lingad,
10
is indicative of
legislative intention to support the principle of good faith. In fact, in the United States, from where
Sec. 24 (b) was patterned, it has been held that the Commissioner of Collector is precluded from
adopting a position inconsistent with one previously taken where injustice would result
therefrom,
11
or where there has been a misrepresentation to the taxpayer.
12

We have also noted that in its Decision, the Court of Tax Appeals further required the petitioner to
pay interest and surcharge as provided for in Sec. 51 (e) of the Tax Code in addition to the
deficiency withholding tax of P 525,897.06. This additional requirement is much less called for
because the petitioner relied in good faith and religiously complied with no less than a Circular
issued "to all internal revenue officials" by the highest official of the Bureau of Internal Revenue and
approved by the then Secretary of Finance.
13

With the foregoing conclusions arrived at, resolution of the issue of prescription becomes
unnecessary.
WHEREFORE, the judgment of the Court of Tax Appeals is hereby reversed, and the questioned
assessment set aside. No costs.
SO ORDERED.
Makasiar (Acting Chairman), Fernandez, Guerrero and De Castro, * JJ., concur.

Footnotes
1 Comment of Respondents, Rollo, pp. 73-74.
2 Decision, Annex "A", Rollo, pp. 53-,54.
3 Memorandum of Petitioner, Rollo. p. 97.
4 Decision, Annex "A", Rollo, p. 41
5 Comment of Commissioner of Internal Revenue, p. 3.
6 The omission of the proviso "Provided, however, That premiums shall not include
reinsurance premiums" appears to be due to oversight as the purpose of the
amendment was to include capital gains in gross income of foreign non-resident
corporations. See footnote 13, Filipinas Life Assurance Co. vs. Court of Tax Appeals,
21 SCRA 622 (1967).
7 Biddle vs. Commissioner, 302 U.S., 573 (1938); Alexander Howden & Co., Ltd. vs.
Collector of Internal Revenue, 13 SCRA 601 (1965).
8 Visayan Cebu Terminal Co., Inc. vs. Commissioner of Internal Revenue, 13 SCRA
357 (1965); Zamora vs. Court of Tax Appeals, 36 SCRA 77 (1970); Balmaceda vs.
Corominas & Co., Inc. 66 SCRA 555 (1975).
9 Senator James Couzens 11 BTA 1040 (1928), 48 Harvard Law Review 1281,
1300, cited in 10A Metens Law of Federal Income Taxation, Sec. 60.13, p. 189.
10 58 SCRA 170 (1974).
11 Ford Motor Co..vs.U.S.,9 F.Supp.590(1935).
12 J. W. Carter Music Co. vs. Bass, 20 F. 2d 390 (1927).
13 Tuason, Jr. vs. Lingad, 58 SCRA 170 (1974); Connel Bros. Co. Phil. vs. Collector
of Internal Revenue, 10 SCRA 470 (1964).
* Justice Pacifico P. de Castro was designated to sit in the First Division, Justice
Claudio Teehankee being on official leave.
June 18, 1937
G.R. No. L-43082
PABLO LORENZO, as trustee of the estate of Thomas Hanley, deceased, plaintiff-appellant,
vs.
JUAN POSADAS, JR., Collector of Internal Revenue, defendant-appellant.
Pablo Lorenzo and Delfin Joven for plaintiff-appellant.
Office of the Solicitor-General Hilado for defendant-appellant.
LAUREL, J .:
On October 4, 1932, the plaintiff Pablo Lorenzo, in his capacity as trustee of the estate of Thomas
Hanley, deceased, brought this action in the Court of First Instance of Zamboanga against the
defendant, Juan Posadas, Jr., then the Collector of Internal Revenue, for the refund of the amount of
P2,052.74, paid by the plaintiff as inheritance tax on the estate of the deceased, and for the collection
of interst thereon at the rate of 6 per cent per annum, computed from September 15, 1932, the date
when the aforesaid tax was [paid under protest. The defendant set up a counterclaim for P1,191.27
alleged to be interest due on the tax in question and which was not included in the original
assessment. From the decision of the Court of First Instance of Zamboanga dismissing both the
plaintiffs complaint and the defendants counterclaim, both parties appealed to this court.
It appears that on May 27, 1922, one Thomas Hanley died in Zamboanga, Zamboanga, leaving a will
(Exhibit 5) and considerable amount of real and personal properties. On june 14, 1922, proceedings
for the probate of his will and the settlement and distribution of his estate were begun in the Court of
First Instance of Zamboanga. The will was admitted to probate. Said will provides, among other
things, as follows:
4. I direct that any money left by me be given to my nephew Matthew Hanley.
5. I direct that all real estate owned by me at the time of my death be not sold or otherwise disposed of for a period of ten (10)
years after my death, and that the same be handled and managed by the executors, and proceeds thereof to be given to my
nephew, Matthew Hanley, at Castlemore, Ballaghaderine, County of Rosecommon, Ireland, and that he be directed that the same
be used only for the education of my brothers children and their descendants.
6. I direct that ten (10) years after my death my property be given to the above mentioned Matthew Hanley to be disposed of in
the way he thinks most advantageous.
x x x x x x x x x
8. I state at this time I have one brother living, named Malachi Hanley, and that my nephew, Matthew Hanley, is a son of my said
brother, Malachi Hanley.
The Court of First Instance of Zamboanga considered it proper for the best interests of the estate to
appoint a trustee to administer the real properties which, under the will, were to pass to Matthew
Hanley ten years after the two executors named in the will, was, on March 8, 1924, appointed trustee.
Moore took his oath of office and gave bond on March 10, 1924. He acted as trustee until February 29,
1932, when he resigned and the plaintiff herein was appointed in his stead.
During the incumbency of the plaintiff as trustee, the defendant Collector of Internal Revenue, alleging
that the estate left by the deceased at the time of his death consisted of realty valued at P27,920 and
personalty valued at P1,465, and allowing a deduction of P480.81, assessed against the estate an
inheritance tax in the amount of P1,434.24 which, together with the penalties for delinquency in
payment consisting of a 1 per cent monthly interest from July 1, 1931 to the date of payment and a
surcharge of 25 per cent on the tax, amounted to P2,052.74. On March 15, 1932, the defendant filed
a motion in the testamentary proceedings pending before the Court of First Instance of Zamboanga
(Special proceedings No. 302) praying that the trustee, plaintiff herein, be ordered to pay to the
Government the said sum of P2,052.74. The motion was granted. On September 15, 1932, the
plaintiff paid said amount under protest, notifying the defendant at the same time that unless the
amount was promptly refunded suit would be brought for its recovery. The defendant overruled the
plaintiffs protest and refused to refund the said amount hausted, plaintiff went to court with the result
herein above indicated.
In his appeal, plaintiff contends that the lower court erred:
I. In holding that the real property of Thomas Hanley, deceased, passed to his instituted heir, Matthew Hanley, from the moment
of the death of the former, and that from the time, the latter became the owner thereof.
II. In holding, in effect, that there was delinquency in the payment of inheritance tax due on the estate of said deceased.
III. In holding that the inheritance tax in question be based upon the value of the estate upon the death of the testator, and not, as
it should have been held, upon the value thereof at the expiration of the period of ten years after which, according to the
testators will, the property could be and was to be delivered to the instituted heir.
IV. In not allowing as lawful deductions, in the determination of the net amount of the estate subject to said tax, the amounts
allowed by the court as compensation to the trustees and paid to them from the decedents estate.
V. In not rendering judgment in favor of the plaintiff and in denying his motion for new trial.
The defendant-appellant contradicts the theories of the plaintiff and assigns the following error
besides:
The lower court erred in not ordering the plaintiff to pay to the defendant the sum of P1,191.27, representing part of the interest
at the rate of 1 per cent per month from April 10, 1924, to June 30, 1931, which the plaintiff had failed to pay on the inheritance
tax assessed by the defendant against the estate of Thomas Hanley.
The following are the principal questions to be decided by this court in this appeal: (a) When does the
inheritance tax accrue and when must it be satisfied? (b) Should the inheritance tax be computed on
the basis of the value of the estate at the time of the testators death, or on its value ten years later?
(c) In determining the net value of the estate subject to tax, is it proper to deduct the compensation
due to trustees? (d) What law governs the case at bar? Should the provisions of Act No. 3606
favorable to the tax-payer be given retroactive effect? (e) Has there been delinquency in the payment
of the inheritance tax? If so, should the additional interest claimed by the defendant in his appeal be
paid by the estate? Other points of incidental importance, raised by the parties in their briefs, will be
touched upon in the course of this opinion.
(a) The accrual of the inheritance tax is distinct from the obligation to pay the same. Section 1536 as
amended, of the Administrative Code, imposes the tax upon every transmission by virtue of
inheritance, devise, bequest, gift mortis causa, or advance in anticipation of inheritance,devise, or
bequest. The tax therefore is upon transmission or the transfer or devolution of property of a
decedent, made effective by his death. (61 C. J., p. 1592.) It is in reality an excise or privilege tax
imposed on the right to succeed to, receive, or take property by or under a will or the intestacy law, or
deed, grant, or gift to become operative at or after death. According to article 657 of the Civil Code,
the rights to the succession of a person are transmitted from the moment of his death. In other
words, said Arellano, C. J., . . . the heirs succeed immediately to all of the property of the deceased
ancestor. The property belongs to the heirs at the moment of the death of the ancestor as completely
as if the ancestor had executed and delivered to them a deed for the same before his death. (Bondad
vs. Bondad, 34 Phil. 232. See also, Mijares vs. Nery, 3 Phil. 195; Suilong & Co., vs. Chio-Taysan, 12
Phil. 13; Lubrico vs. Arbado, 12 Phil. 391; Innocencio vs. Gat-Pandan, 14 Phil. 491; Aliasas
vs.Alcantara, 16 Phil. 489; Ilustre vs. Alaras Frondosa, 17 Phil. 321; Malahacan vs. Ignacio, 19 Phil.
434; Bowa vs. Briones, 38 Phil. 27; Osario vs. Osario & Yuchausti Steamship Co., 41 Phil. 531; Fule
vs. Fule, 46 Phil. 317; Dais vs. Court of First Instance of Capiz, 51 Phil. 396; Baun vs. Heirs of Baun,
53 Phil. 654.) Plaintiff, however, asserts that while article 657 of the Civil Code is applicable to testate
as well as intestate succession, it operates only in so far as forced heirs are concerned. But the
language of article 657 of the Civil Code is broad and makes no distinction between different classes of
heirs. That article does not speak of forced heirs; it does not even use the word heir. It speaks of
the rights of succession and the transmission thereof from the moment of death. The provision of
section 625 of the Code of Civil Procedure regarding the authentication and probate of a will as a
necessary condition to effect transmission of property does not affect the general rule laid down in
article 657 of the Civil Code. The authentication of a will implies its due execution but once probated
and allowed the transmission is effective as of the death of the testator in accordance with article 657
of the Civil Code. Whatever may be the time when actual transmission of the inheritance takes place,
succession takes place in any event at the moment of the decedents death. The time when the heirs
legally succeed to the inheritance may differ from the time when the heirs actually receive such
inheritance. Poco importa, says Manresa commenting on article 657 of the Civil Code, que desde el
falleimiento del causante, hasta que el heredero o legatario entre en posesion de los bienes de la
herencia o del legado, transcurra mucho o poco tiempo, pues la adquisicion ha de retrotraerse al
momento de la muerte, y asi lo ordena el articulo 989, que debe considerarse como complemento del
presente. (5 Manresa, 305; see also, art. 440, par. 1, Civil Code.) Thomas Hanley having died on May
27, 1922, the inheritance tax accrued as of the date.
From the fact, however, that Thomas Hanley died on May 27, 1922, it does not follow that the
obligation to pay the tax arose as of the date. The time for the payment on inheritance tax is clearly
fixed by section 1544 of the Revised Administrative Code as amended by Act No. 3031, in relation to
section 1543 of the same Code. The two sections follow:
SEC. 1543. Exemption of certain acquisitions and transmissions. The following shall not be taxed:
(a) The merger of the usufruct in the owner of the naked title.
(b) The transmission or delivery of the inheritance or legacy by the fiduciary heir or legatee to the trustees.
(c) The transmission from the first heir, legatee, or donee in favor of another beneficiary, in accordance with the desire of the
predecessor.
In the last two cases, if the scale of taxation appropriate to the new beneficiary is greater than that paid by the first, the former
must pay the difference.
SEC. 1544. When tax to be paid. The tax fixed in this article shall be paid:
(a) In the second and third cases of the next preceding section, before entrance into possession of the property.
(b) In other cases, within the six months subsequent to the death of the predecessor; but if judicial testamentary or intestate
proceedings shall be instituted prior to the expiration of said period, the payment shall be made by the executor or administrator
before delivering to each beneficiary his share.
If the tax is not paid within the time hereinbefore prescribed, interest at the rate of twelve per centum per annum shall be added
as part of the tax; and to the tax and interest due and unpaid within ten days after the date of notice and demand thereof by the
collector, there shall be further added a surcharge of twenty-five per centum.
A certified of all letters testamentary or of administration shall be furnished the Collector of Internal Revenue by the Clerk of
Court within thirty days after their issuance.
It should be observed in passing that the word trustee, appearing in subsection (b) of section 1543,
should read fideicommissary or cestui que trust. There was an obvious mistake in translation from
the Spanish to the English version.
The instant case does fall under subsection (a), but under subsection (b), of section 1544 above-
quoted, as there is here no fiduciary heirs, first heirs, legatee or donee. Under the subsection, the tax
should have been paid before the delivery of the properties in question to P. J. M. Moore as trustee on
March 10, 1924.
(b) The plaintiff contends that the estate of Thomas Hanley, in so far as the real properties are
concerned, did not and could not legally pass to the instituted heir, Matthew Hanley, until after the
expiration of ten years from the death of the testator on May 27, 1922 and, that the inheritance tax
should be based on the value of the estate in 1932, or ten years after the testators death. The
plaintiff introduced evidence tending to show that in 1932 the real properties in question had a
reasonable value of only P5,787. This amount added to the value of the personal property left by the
deceased, which the plaintiff admits is P1,465, would generate an inheritance tax which, excluding
deductions, interest and surcharge, would amount only to about P169.52.
If death is the generating source from which the power of the estate to impose inheritance taxes takes
its being and if, upon the death of the decedent, succession takes place and the right of the estate to
tax vests instantly, the tax should be measured by the value of the estate as it stood at the time of
the decedents death, regardless of any subsequent contingency value of any subsequent increase or
decrease in value. (61 C. J., pp. 1692, 1693; 26 R. C. L., p. 232; Blakemore and Bancroft, Inheritance
Taxes, p. 137. See also Knowlton vs. Moore, 178 U.S., 41; 20 Sup. Ct. Rep., 747; 44 Law. ed., 969.)
The right of the state to an inheritance tax accrues at the moment of death, and hence is ordinarily
measured as to any beneficiary by the value at that time of such property as passes to him.
Subsequent appreciation or depreciation is immaterial. (Ross, Inheritance Taxation, p. 72.)
Our attention is directed to the statement of the rule in Cyclopedia of Law of and Procedure (vol. 37,
pp. 1574, 1575) that, in the case of contingent remainders, taxation is postponed until the estate
vests in possession or the contingency is settled. This rule was formerly followed in New York and has
been adopted in Illinois, Minnesota, Massachusetts, Ohio, Pennsylvania and Wisconsin. This rule,
however, is by no means entirely satisfactory either to the estate or to those interested in the
property (26 R. C. L., p. 231.). Realizing, perhaps, the defects of its anterior system, we find upon
examination of cases and authorities that New York has varied and now requires the immediate
appraisal of the postponed estate at its clear market value and the payment forthwith of the tax on its
out of the corpus of the estate transferred. (In re Vanderbilt, 172 N. Y., 69; 69 N. E., 782; In re
Huber, 86 N. Y. App. Div., 458; 83 N. Y. Supp., 769; Estate of Tracy, 179 N. Y., 501; 72 N. Y., 519;
Estate of Brez, 172 N. Y., 609; 64 N. E., 958; Estate of Post, 85 App. Div., 611; 82 N. Y. Supp., 1079.
Vide also, Saltoun vs. Lord Advocate, 1 Peter. Sc. App., 970; 3 Macq. H. L., 659; 23 Eng. Rul. Cas.,
888.) California adheres to this new rule (Stats. 1905, sec. 5, p. 343).
But whatever may be the rule in other jurisdictions, we hold that a transmission by inheritance is
taxable at the time of the predecessors death, notwithstanding the postponement of the actual
possession or enjoyment of the estate by the beneficiary, and the tax measured by the value of the
property transmitted at that time regardless of its appreciation or depreciation.
(c) Certain items are required by law to be deducted from the appraised gross in arriving at the net
value of the estate on which the inheritance tax is to be computed (sec. 1539, Revised Administrative
Code). In the case at bar, the defendant and the trial court allowed a deduction of only P480.81. This
sum represents the expenses and disbursements of the executors until March 10, 1924, among which
were their fees and the proven debts of the deceased. The plaintiff contends that the compensation
and fees of the trustees, which aggregate P1,187.28 (Exhibits C, AA, EE, PP, HH, JJ, LL, NN, OO),
should also be deducted under section 1539 of the Revised Administrative Code which provides, in
part, as follows: In order to determine the net sum which must bear the tax, when an inheritance is
concerned, there shall be deducted, in case of a resident, . . . the judicial expenses of the
testamentary or intestate proceedings, . . . .
A trustee, no doubt, is entitled to receive a fair compensation for his services (Barney vs. Saunders,
16 How., 535; 14 Law. ed., 1047). But from this it does not follow that the compensation due him
may lawfully be deducted in arriving at the net value of the estate subject to tax. There is no statute
in the Philippines which requires trustees commissions to be deducted in determining the net value of
the estate subject to inheritance tax (61 C. J., p. 1705). Furthermore, though a testamentary trust
has been created, it does not appear that the testator intended that the duties of his executors and
trustees should be separated. (Ibid.; In re Vannecks Estate, 161 N. Y. Supp., 893; 175 App. Div.,
363; In re Collards Estate, 161 N. Y. Supp., 455.) On the contrary, in paragraph 5 of his will, the
testator expressed the desire that his real estate be handled and managed by his executors until the
expiration of the period of ten years therein provided. Judicial expenses are expenses of
administration (61 C. J., p. 1705) but, in State vs. Hennepin County Probate Court (112 N. W., 878; 101
Minn., 485), it was said: . . . The compensation of a trustee, earned, not in the administration of the
estate, but in the management thereof for the benefit of the legatees or devises, does not come
properly within the class or reason for exempting administration expenses. . . . Service rendered in
that behalf have no reference to closing the estate for the purpose of a distribution thereof to those
entitled to it, and are not required or essential to the perfection of the rights of the heirs or legatees. .
. . Trusts . . . of the character of that here before the court, are created for the the benefit of those to
whom the property ultimately passes, are of voluntary creation, and intended for the preservation of
the estate. No sound reason is given to support the contention that such expenses should be taken
into consideration in fixing the value of the estate for the purpose of this tax.
(d) The defendant levied and assessed the inheritance tax due from the estate of Thomas Hanley
under the provisions of section 1544 of the Revised Administrative Code, as amended by section 3 of
Act No. 3606. But Act No. 3606 went into effect on January 1, 1930. It, therefore, was not the law in
force when the testator died on May 27, 1922. The law at the time was section 1544 above-
mentioned, as amended by Act No. 3031, which took effect on March 9, 1922.
It is well-settled that inheritance taxation is governed by the statute in force at the time of the death
of the decedent (26 R. C. L., p. 206; 4 Cooley on Taxation, 4th ed., p. 3461). The taxpayer can not
foresee and ought not to be required to guess the outcome of pending measures. Of course, a tax
statute may be made retroactive in its operation. Liability for taxes under retroactive legislation has
been one of the incidents of social life. (Seattle vs. Kelleher, 195 U. S., 360; 49 Law. ed., 232 Sup.
Ct. Rep., 44.) But legislative intent that a tax statute should operate retroactively should be perfectly
clear. (Scwab vs. Doyle, 42 Sup. Ct. Rep., 491; Smietanka vs. First Trust & Savings Bank, 257 U. S.,
602; Stockdale vs. Insurance Co., 20 Wall., 323; Lunch vs. Turrish, 247 U. S., 221.) A statute should
be considered as prospective in its operation, whether it enacts, amends, or repeals an inheritance
tax, unless the language of the statute clearly demands or expresses that it shall have a retroactive
effect, . . . . (61 C. J., P. 1602.) Though the last paragraph of section 5 of Regulations No. 65 of the
Department of Finance makes section 3 of Act No. 3606, amending section 1544 of the Revised
Administrative Code, applicable to all estates the inheritance taxes due from which have not been
paid, Act No. 3606 itself contains no provisions indicating legislative intent to give it retroactive effect.
No such effect can begiven the statute by this court.
The defendant Collector of Internal Revenue maintains, however, that certain provisions of Act No.
3606 are more favorable to the taxpayer than those of Act No. 3031, that said provisions are penal in
nature and, therefore, should operate retroactively in conformity with the provisions of article 22 of
the Revised Penal Code. This is the reason why he applied Act No. 3606 instead of Act No. 3031.
Indeed, under Act No. 3606, (1) the surcharge of 25 per cent is based on the tax only, instead of on
both the tax and the interest, as provided for in Act No. 3031, and (2) the taxpayer is allowed twenty
days from notice and demand by the Collector of Internal Revenue within which to pay the tax,
instead of ten days only as required by the old law.
Properly speaking, a statute is penal when it imposes punishment for an offense committed against
the state which, under the Constitution, the Executive has the power to pardon. In common use,
however, this sense has been enlarged to include within the term penal statutes all status which
command or prohibit certain acts, and establish penalties for their violation, and even those which,
without expressly prohibiting certain acts, impose a penalty upon their commission (59 C. J., p. 1110).
Revenue laws, generally, which impose taxes collected by the means ordinarily resorted to for the
collection of taxes are not classed as penal laws, although there are authorities to the contrary. (See
Sutherland, Statutory Construction, 361; Twine Co. vs. Worthington, 141 U. S., 468; 12 Sup. Ct., 55;
Rice vs. U. S., 4 C. C. A., 104; 53 Fed., 910; Com. vs. Standard Oil Co., 101 Pa. St., 150; State vs.
Wheeler, 44 P., 430; 25 Nev. 143.) Article 22 of the Revised Penal Code is not applicable to the case
at bar, and in the absence of clear legislative intent, we cannot give Act No. 3606 a retroactive effect.
(e) The plaintiff correctly states that the liability to pay a tax may arise at a certain time and the tax
may be paid within another given time. As stated by this court, the mere failure to pay ones tax does
not render one delinquent until and unless the entire period has elapsed within which the taxpayer is
authorized by law to make such payment without being subjected to the payment of penalties for
failure to pay his taxes within the prescribed period. (U. S. vs. Labadan, 26 Phil. 239.)
The defendant maintains that it was the duty of the executor to pay the inheritance tax before the
delivery of the decedents property to the trustee. Stated otherwise, the defendant contends that
delivery to the trustee was delivery to the cestui que trust, the beneficiary in this case, within the
meaning of the first paragraph of subsection (b) of section 1544 of the Revised Administrative Code.
This contention is well taken and is sustained. The appointment of P. J. M. Moore as trustee was made
by the trial court in conformity with the wishes of the testator as expressed in his will. It is true that
the word trust is not mentioned or used in the will but the intention to create one is clear. No
particular or technical words are required to create a testamentary trust (69 C. J., p. 711). The words
trust and trustee, though apt for the purpose, are not necessary. In fact, the use of these two
words is not conclusive on the question that a trust is created (69 C. J., p. 714). To create a trust by
will the testator must indicate in the will his intention so to do by using language sufficient to separate
the legal from the equitable estate, and with sufficient certainty designate the beneficiaries, their
interest in the trust, the purpose or object of the trust, and the property or subject matter thereof.
Stated otherwise, to constitute a valid testamentary trust there must be a concurrence of three
circumstances: (1) Sufficient words to raise a trust; (2) a definite subject; (3) a certain or ascertain
object; statutes in some jurisdictions expressly or in effect so providing. (69 C. J., pp. 705,706.)
There is no doubt that the testator intended to create a trust. He ordered in his will that certain of his
properties be kept together undisposed during a fixed period, for a stated purpose. The probate court
certainly exercised sound judgment in appointment a trustee to carry into effect the provisions of the
will (see sec. 582, Code of Civil Procedure).
P. J. M. Moore became trustee on March 10, 1924. On that date trust estate vested in him (sec. 582 in
relation to sec. 590, Code of Civil Procedure). The mere fact that the estate of the deceased was
placed in trust did not remove it from the operation of our inheritance tax laws or exempt it from the
payment of the inheritance tax. The corresponding inheritance tax should have been paid on or before
March 10, 1924, to escape the penalties of the laws. This is so for the reason already stated that the
delivery of the estate to the trustee was in esse delivery of the same estate to the cestui quetrust, the
beneficiary in this case. A trustee is but an instrument or agent for the cestui que trust (Shelton vs.
King, 299 U. S., 90; 33 Sup. Ct. Rep., 689; 57 Law. ed., 1086). When Moore accepted the trust and
took possession of the trust estate he thereby admitted that the estate belonged not to him but to
his cestui que trust (Tolentino vs. Vitug, 39 Phil.126, cited in 65 C. J., p. 692, n. 63). He did not acquire
any beneficial interest in the estate. He took such legal estate only as the proper execution of the trust
required (65 C. J., p. 528) and, his estate ceased upon the fulfillment of the testators wishes. The
estate then vested absolutely in the beneficiary (65 C. J., p. 542).
The highest considerations of public policy also justify the conclusion we have reached. Were we to
hold that the payment of the tax could be postponed or delayed by the creation of a trust of the type
at hand, the result would be plainly disastrous. Testators may provide, as Thomas Hanley has
provided, that their estates be not delivered to their beneficiaries until after the lapse of a certain
period of time. In the case at bar, the period is ten years. In other cases, the trust may last for fifty
years, or for a longer period which does not offend the rule against perpetuities. The collection of the
tax would then be left to the will of a private individual. The mere suggestion of this result is a
sufficient warning against the acceptance of the essential to the very existence of government.
(Dobbins vs. Erie Country, 16 Pet., 435; 10 Law. ed., 1022; Kirkland vs. Hotchkiss, 100 U. S., 491; 25
Law. ed., 558; Lane County vs. Oregon, 7 Wall., 71; 19 Law. ed., 101; Union Refrigerator Transit Co.
vs. Kentucky, 199 U. S., 194; 26 Sup. Ct. Rep., 36; 50 Law. ed., 150; Charles River Bridge vs. Warren
Bridge, 11 Pet., 420; 9 Law. ed., 773.) The obligation to pay taxes rests not upon the privileges
enjoyed by, or the protection afforded to, a citizen by the government but upon the necessity of
money for the support of the state (Dobbins vs. Erie Country, supra). For this reason, no one is allowed
to object to or resist the payment of taxes solely because no personal benefit to him can be pointed
out. (Thomas vs. Gay, 169 U. S., 264; 18 Sup. Ct. Rep., 340; 43 Law. ed., 740.) While courts will not
enlarge, by construction, the governments power of taxation (Bromley vs. McCaughn, 280 U. S., 124;
74 Law. ed., 226; 50 Sup. Ct. Rep., 46) they also will not place upon tax laws so loose a construction
as to permit evasions on merely fanciful and insubstantial distinctions. (U. S. vs. Watts, 1 Bond., 580;
Fed. Cas. No. 16,653; U. S. vs. Wigglesirth, 2 Story, 369; Fed. Cas. No. 16,690, followed in Froelich &
Kuttner vs. Collector of Customs, 18 Phil. 461, 481; Castle Bros., Wolf & Sons vs. McCoy, 21 Phil.
300; Muoz & Co. vs. Hord, 12 Phil. 624; Hongkong & Shanghai Banking Corporation vs. Rafferty, 39
Phil. 145; Luzon Stevedoring Co. vs. Trinidad, 43 Phil. 803.) When proper, a tax statute should be
construed to avoid the possibilities of tax evasion. Construed this way, the statute, without resulting in
injustice to the taxpayer, becomes fair to the government.
That taxes must be collected promptly is a policy deeply intrenched in our tax system. Thus, no court
is allowed to grant injunction to restrain the collection of any internal revenue tax ( sec. 1578, Revised
Administrative Code; Sarasola vs. Trinidad, 40 Phil. 252). In the case of Lim Co Chui vs. Posadas (47 Phil.
461), this court had occasion to demonstrate trenchment adherence to this policy of the law. It held
that the fact that on account of riots directed against the Chinese on October 18, 19, and 20, 1924,
they were prevented from praying their internal revenue taxes on time and by mutual agreement
closed their homes and stores and remained therein, does not authorize the Collector of Internal
Revenue to extend the time prescribed for the payment of the taxes or to accept them without the
additional penalty of twenty five per cent. (Syllabus, No. 3.)
. . . It is of the utmost importance, said the Supreme Court of the United States, . . . that the
modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in
the proceedings of the officers, upon whom the duty is developed of collecting the taxes, may derange
the operations of government, and thereby, cause serious detriment to the public. (Dows vs.
Chicago, 11 Wall., 108; 20 Law. ed., 65, 66; Churchill and Tait vs. Rafferty, 32 Phil. 580.)
It results that the estate which plaintiff represents has been delinquent in the payment of inheritance
tax and, therefore, liable for the payment of interest and surcharge provided by law in such cases.
The delinquency in payment occurred on March 10, 1924, the date when Moore became trustee. The
interest due should be computed from that date and it is error on the part of the defendant to
compute it one month later. The provisions cases is mandatory (see and cf. Lim Co Chui vs.
Posadas,supra), and neither the Collector of Internal Revenue or this court may remit or decrease such
interest, no matter how heavily it may burden the taxpayer.
To the tax and interest due and unpaid within ten days after the date of notice and demand thereof by
the Collector of Internal Revenue, a surcharge of twenty-five per centum should be added (sec. 1544,
subsec. (b), par. 2, Revised Administrative Code). Demand was made by the Deputy Collector of
Internal Revenue upon Moore in a communication dated October 16, 1931 (Exhibit 29). The date fixed
for the payment of the tax and interest was November 30, 1931. November 30 being an official
holiday, the tenth day fell on December 1, 1931. As the tax and interest due were not paid on that
date, the estate became liable for the payment of the surcharge.
In view of the foregoing, it becomes unnecessary for us to discuss the fifth error assigned by the
plaintiff in his brief.
We shall now compute the tax, together with the interest and surcharge due from the estate of
Thomas Hanley in accordance with the conclusions we have reached.
At the time of his death, the deceased left real properties valued at P27,920 and personal properties
worth P1,465, or a total of P29,385. Deducting from this amount the sum of P480.81, representing
allowable deductions under section 1539 of the Revised Administrative Code, we have P28,904.19 as the
net value of the estate subject to inheritance tax.
The primary tax, according to section 1536, subsection (c), of the Revised Administrative Code, should
be imposed at the rate of one per centum upon the first ten thousand pesos and two per centum upon
the amount by which the share exceed thirty thousand pesos, plus an additional two hundred per
centum. One per centum of ten thousand pesos is P100. Two per centum of P18,904.19 is P378.08.
Adding to these two sums an additional two hundred per centum, or P965.16, we have as primary tax,
correctly computed by the defendant, the sum of P1,434.24.
To the primary tax thus computed should be added the sums collectible under section 1544 of the
Revised Administrative Code. First should be added P1,465.31 which stands for interest at the rate of
twelve per centum per annum from March 10, 1924, the date of delinquency, to September 15, 1932,
the date of payment under protest, a period covering 8 years, 6 months and 5 days. To the tax and
interest thus computed should be added the sum of P724.88, representing a surcharge of 25 per cent
on both the tax and interest, and also P10, the compromise sum fixed by the defendant (Exh. 29),
giving a grand total of P3,634.43.
As the plaintiff has already paid the sum of P2,052.74, only the sums of P1,581.69 is legally due from
the estate. This last sum is P390.42 more than the amount demanded by the defendant in his
counterclaim. But, as we cannot give the defendant more than what he claims, we must hold that the
plaintiff is liable only in the sum of P1,191.27 the amount stated in the counterclaim.
The judgment of the lower court is accordingly modified, with costs against the plaintiff in both
instances. So ordered.
Avancea, C.J., Abad Santos, Imperial, Diaz and Concepcion, JJ., concur.
Villa-Real, J., concurs.
August 10, 1916
G.R. No. L-10712
ANSELMO FERRAZZINI, plaintiff-appellee,
vs.
CARLOS GSELL, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.
Ramon Sotelo for appellee.
TRENT, J .:
This action was brought to recover damages for an alleged wrongful discharge of the plaintiff, who had
been employed by the defendant for an indefinite time to work in the latters industrial enterprises in
the city of Manila. The defendant admitted that he discharged the plaintiff without giving him the
written advice of six months in advance as provided in the contract, but alleged that the discharge
was lawful on account of absence, unfaithfulness, and disobedience of orders. The defendant sought
affirmative relief for a further alleged breach of the contract by the plaintiff after his discharge. From a
judgment in favor of the plaintiff the defendant appealed and now urges that the trial court erred (1)
in finding that the plaintiffs discharge was not justified and (2) in declining to consider the
counterclaim and enter judgment in accordance therewith.
1. The plaintiff engaged his skilled service to the defendant for the entire existence of this
agreement at a fixed monthly salary and agreed to devote his entire time and efforts to the best of
his knowledge and skill exclusively in carrying out in the most satisfactory manner possible all of the
work which may be entrusted to him during the existence of this contract and undertaking,
furthermore, to exercise a strict discretion in all matters pertaining to the work so entrusted to him
and the whole thereof, . . . .
The relation of master and servant, which was created by the contract, cast certain duties and
obligations upon the parties, which they were bound to discharge and fulfill; the foremost, on the part
of the master, were those of furnishing the servant with a reasonably safe place to work, to pay him
for his services, and not to discharge him until the expiration of six months after notice; and the
foremost, on the part of the servant, were those of loyalty, faithfulness, and obedience to all
reasonable orders not inconsistent with the contract. Consequently, if the plaintiffs discharge were
without just cause, it was in violation of the contract of service and he is entitled to recover.
Otherwise, he is not, because the breach on his part must necessarily have occurred before his
discharge. Hence, the defendant must prove justification for his act for the reason that it was in
contravention of the six-months clause in the contract. In order to justify the dismissal of the plaintiff,
the defendant must show that the plaintiff was guilty of conduct which can be construed to be a
breach of some express or implied provision in the contract of service. If it has been shown that the
plaintiffs conduct was inconsistent with the relation of master and servant or incompatible with the
due and faithful performance of his duties, his discharge was justified. In view of the fact that the
determination of these questions necessarily requires a careful review of the evidence and in view of
the further fact that we cannot accept the trial courts findings upon these important points, we think
it advisable to set forth briefly the substance of all of the material testimony submitted by both
parties.
ANSELMO FERRAZZINI: On Friday evening at supper there was some talk about Mr. Gsell measuring the goods for the
umbrellas. Then I said that if Mr. Gsell does this, it is my idea that he has no confidence in his employees. I was talking to
everybody in general. There were present Mr. Specht, Mr. Alberto Ferrazzini and Mr. Inhelder. Mr. Specht was an employee of
the defendant at the time. I do not remember telling Specht that he was not receiving sufficient salary. The only thing I remember
distinctly is that i said `that Mr. Gsell does not seem to have any confidence in us.
Q. Is it not a fact that shortly, or sometime before your discharge, you have been in the habit of leaving the factory for
considerable periods in the morning to go outside for the purpose of taking a drink? -
A. As long as I have been with the firm of Carlos Gsell I was allowed in the morning ten or fifteen minutes during the hot season
to absent myself to have a drink of beer or whisky and soda; and the same in the afternoon.
Q. Is it not a fact that Mr. Bender, the manager of the factory, had repeated spoken to you, or had several times spoken to you
about your habit of leaving the factory for the purpose of taking a drink, and had prohibited you from doing it, forbade you to do
it? -
A. He merely told me not to do it in such an ostentatious manner. Mr. Bender told me that Mr. Gsell did not like to see me go out
in the forenoon and afternoon; I told him that Mr. Gsell himself had told me on one occasion that if I had to have a drink I could
go out for it and it would be all right; this was in the presence of Mr. Landvatter.
Q. Then, am I to understand that when you went out to take a drink it was because you must have one? -
A. Yes, of course.
Q. Is it not a fact that Mr. Bender had conversations with you, at least once in the month of March, regarding this matter? -
A. I dont remember it.
Q. Were not you frequently spoken to about it? -
A. No, sir.
CARLOS GSELL: The first reason that led to his dismissal was because several months, through April and May, he had the habit
of going out in the morning and afternoon for having a drink; not one but many drinks, because he was out sometimes an hour
and an hour and a half; and as I have a factory with 400 working people I have to see that certain discipline is maintained in the
factory. I gave instructions to the manager. Mr. Bender, to see that this habit would be dropped, but he (the plaintiff) would not
do so. Now what made me pleased to dismiss him was because on a certain night at the mess where he ate with other employees
of my house, he provoked one of my employees, a new arrival, and said that all the control I had in the factory was one of
mistrust; he said I was suspicious; that I measured the cloth in my office for the umbrellas and that he would not support such
treatment from my side; at the same time he said to this newly arrived employee that the salary that he, the new man, got under
the contract was not sufficient to live on and that he should not continue to work for me. I asked the plaintiff about the
conversation which he had at the mess and he did not deny it. He said that he did not mean it to be so bad. The factory was
prejudiced on account of the plaintiff absenting himself, because sometimes I wanted to speak to him, tell him something, and he
was not there. I had to wait for him, and then when he came back it was noon perhaps, and it could not be done. I gave
instructions to Mr. Bender, the manager, to stop the plaintiffs going out without permission. I did not exactly authorized the
plaintiff to go out to drink. I always wanted to stop this. The plaintiff was the older of those who have gone out to drink. The
plaintiff held a responsible position. In the first place it was his duty to make repairs to the machinery in all the departments;
later he was entrusted with the various departments not at the same time; once he had the bleaching department; once he had
to help out in the umbrella factory; and then he was in charge of the hat factory. The plaintiff had other employees under him.
CARL BENDER: I came to the Philippine Islands in the middle of March as the defendants manager. I saw that the plaintiff was
frequently out of the factory. I told him that we was not allowed to leave the factory without my permission. HE kept up the habit
of going out in the morning and afternoon for an hour or more and I told him the second time. He told me that he had permission
from the former manager to go out and take a drink. I again told him he must not go out without my permission. Notwithstanding
these orders, he was out one whole Saturday afternoon and I reported him to the defendant. The plaintiff went out without
permission some thirty-five times after I ordered him not to do so. I had the other employees search for him, but they could not
find him. He would go out four or five times a week.
HERMAN INHELDER: I was present at the mess in June when that conversation took place. We were discussing several things,
including the business and the way the umbrella factory was run. The plaintiff spoke in a manner that indicated that Mr. Gsell
did not trust Mr. Specht. I did not want to have this kind of a conversation going on there and I told the plaintiff he had better
leave the house.
Q. Did the plaintiff say anything with respect to the amount of salary, which Mr. Specht was receiving? If so, what? -
A. I wont pretend that Mr. Ferrazzini said it that night, about the salary, but he said it on several occasions before, and well
what he did say was that Mr. Specht ought not to work so much for such a small salary.
ALBERTO FERRAZZINI: I was present when the conversation took place in the mess one evening of June last. A discussion
arose about Mr. Gsell exercising control over the merchandise or goods. Then the plaintiff said that this seemed to show that
Gsell had no confidence in Mr. Specht. Mr. Specht was in charge of the umbrella department. The conversation was then carried
on in German and I could not understand what they said.
HANS SPECHT: I am foreman of the umbrella factor of the defendant. During the conversation at the mass the plaintiff told me
that the defendant had no confidence in me. I protested and then the plaintiff tried to prove it by stating that the defendant was
investigating things in the umbrella factory, verifying the goods for the umbrellas. The plaintiff said nothing about my salary at
that time, but on a previous occasion he told me that I was foolish at my age to work for such a small salary. I reported the
matter to the defendant.
The plaintiff admits that he stated to those present at the mess that if the defendant measured the
cloth for the umbrellas, It is my idea that he has no confidence in his employees. Mr. Specht, the
foreman f the umbrella factory, says that During the conversation at the mess, the plaintiff told me
that the defendant had no confidence in me. The plaintiff testified that he did not remember telling
Specht that he (Specht) was not receiving sufficient salary, while Inhelder testified positively that the
plaintiff stated on several occasions that Specht ought not to work so much for such a small salary,
and Specht also testified positively that he (the plaintiff) told me that I was foolish at my age to work
for such a small salary. As to the plaintiffs absenting himself during working hours for the purpose of
drinking, we have, on the one hand, the plaintiffs testimony to the effect that as long as he had been
with the firm of Gsell he had been allowed in the morning ten or fifteen minutes during the hot
season to absent himself to have a drink of beer or whiskey, and the same in the afternoon, and that
the manager merely told me not to do it in such an ostentatious manner. While, on the other hand,
we have the testimony of the defendant wherein he states that he instructed his manager, Mr. Bender,
to direct the plaintiff to discontinue his habit of drinking during working hours, and the testimony of
the manager (Bender) to the effect that he expressly directed the plaintiff not to go out without
permission. But the plaintiff violated his express order some thirty-five times, keeping up the habit of
going out (for the purpose of drinking) in the morning and afternoon for an hour or more at a time. All
of the foregoing show a course of conduct on the part of the plaintiff inconsistent with the due and
faithful performance of his duties as an employee of the defendant. He sought to create a feeling of
unrest among the employees by inducing them to believe that the defendant had no confidence in
them and that at least one employee was not receiving sufficiently salary. If it were true that the
defendant was measuring the cloth for the umbrellas, he had a right to do so and this fact would not
justify the plaintiff in saying that the defendant had no confidence in the employees. Likewise, if it be
true that the defendant or his manager did at first authorize the plaintiff to absent himself during
working hours for the purpose of drinking, the defendant had a perfect right to withdraw this
permission at anytime he saw fit to do so. In fact, the defendant, through his manager, expressly
directed the plaintiff to cease leaving the factory for that purpose, but the plaintiff violated this order
numerous times. The plaintiff, being at times foreman and at other times in charge of important
departments of the factory wherein some four hundred employees were at work, it cannot be
questioned but that the defendant not only had a right to prohibit drinking during working hours, but it
was his duty to do so for his own interests and the safety of his other employees. But it is intimated in
the record that the defendant discharged the plaintiff on account of the conversation at the mess. If it
be true that the defendant gave this as his sole reason for so acting at the time he discharged the
plaintiff, yet he would not be prevented from setting up at the trial the fact that the plaintiff continued
to disobey his orders with reference to absenting himself for the purpose of drinking. The defendant
was, at the time he discharged the plaintiff, authorized to take into consideration the latters whole
course of conduct in determining whether the contract of employment should be terminated. We are,
therefore, convinced that real errors was committed by the trial court in its findings of fact and that
the record fully justifies a reversal of such findings, and a declaration to the effect that the defendant
was justified in terminating the contract of employment.
2. At the opening of the trial in the court below and before any testimony had been taken, counsel for
the defendant stated:
I desire to amend my answer at this time by the addition of the following paragraph:
The defendant further alleges for a second and further defense to the complaint herein, and for a counterclaim thereto, that the
plaintiff has engaged in business in the Philippine Islands since leaving the service of the defendant and without the defendants
request or consent, in violation of his contract with the defendant; wherefore, the defendant demands judgment against the
plaintiff for the sum of ten thousand pesos.
By the COURT: If the plaintiff does not claim any time to answer the new pleadings, the court will grant the amendment as asked
for.
By Mr. SOTELO: I note my exception to the admission of a counterclaim at this time; I have no time to prepare myself to meet it.
By the COURT: The court has stated that if counsel for the plaintiff requires time to answer or meet this counterclaim he will be
granted time to do so.
By Mr. SOTELO: The attorney for the plaintiff answers to the court that much time has been lost already since the filing of the
complaint and the trial, and he wants to go to trial in order that the plaintiff may get what he is justly entitled to.
Testimony in support of the counterclaim was duly introduced before the close of the trial. In the final
decision the court said:
The court is of the opinion that the defendants so-called amendment to his answer, dictated by counsel to the official
stenographer, and not `upon motion filed in court, and after notice to the adverse party and an opportunity to be heard, must be
disregarded in the consideration of this case.
This is manifest error. The verbal petition was expressly granted and the proferred amendment
accepted by the court. Plaintiffs counsel noted his exception to this ruling and signified his willingness
to proceed with the trial. All thereafter considered the answer as thus amended. We must, therefore,
dispose of the defendants counterclaim upon the merits.
That portion of the contract upon which the defendants counterclaimed is based reads as follows:
That during the term of this contract, and for the period of five years after the termination of the employment of the said party of
the second part, whether this contract continue in force for the period of one, two, three or more years, or be sooner terminated,
the said party of the second party shall not engage or interest himself in any business enterprises similar to or in competition
with those conducted, maintained or operated by the said party of the first day in the Philippines, and shall not assist, aid or
encourage any such enterprise by the furnishing of information, advice or suggestions of any kind, and shall not enter into the
employ of any enterprises in the Philippine Islands, whatever, save and except after obtaining special written permission therefor
from the said party of the first part. It is further stipulated and agreed that the said party of the second part is hereby obligated
and bound to pay unto the party of the first part the sum of ten thousand pesos, Philippine currency (P10,000) as liquidated
damages for each and every breach of the present clause of this contract, whether such breach occurred during the employment
of the said party of the second part or at any time during the period of five years from and after the termination of said
employment, and without regard to the cause of the termination of said employment.
The plaintiff admits that he entered the employment of Mr. Whalen in the Philippine Islands as a
foreman on some construction work for a cement factory within a few days after his discharge and
without the consent, either written or verbal, of the defendant. This work was entirely different and
disassociated from that engaged in by the defendant Gsell, yet this act of the plaintiff was a technical
violation of the above-quoted provisions of the contract wherein he expressly agreed and obligated
himself not to enter into the employment of any enterprise in the Philippine Islands, whatever, save
and except after obtaining special written permission therefor from the defendant. The question now
arises whether these provisions of the contract are valid and binding upon the plaintiff.
Counsel for the defendant in their printed brief say:
There is no doubt as to the validity of the contract, Gsell vs. Koch (16 Phil. Rep., 1) has settled that question in a similar contract
and that decision has never been criticised, but is cited as recently as 1914 with approved. (Lambert vs. Fox, 26 Phil. Rep., 588).
An examination of these cases, as well as others in point, is necessary in order to determine whether
or not the question has been settled, and if we find that it is still an open one in this jurisdiction, we
must proceed with the case. In pursuing this inquiry it is well to bear in mind (1) that the case under
consideration has been tried in both courts exclusively upon the theory that the local law alone is
applicable to the contract and (2) that the business in which the plaintiff became engaged was entirely
different and distinct from that conducted, maintained or operated by the defendant.
In Gsell vs. Koch, supra, a demurrer was sustained upon the ground that the allegations in the complaint
did not constitute a cause of action, and after defendant declined to amend, judgment was entered
dismissing the action. On appeal this order was reversed and the record returned with instructions to
direct the defendant to answer. The paragraph in the written contract, upon which the judgment of
this court rests, reads:
Third. The said Pedro Koch binds himself to pay in cash to Mr. Gsell the sum of ten thousand pesos if, after leaving the firm of C.
Gsell, and against the latters will, he shall engage directly or indirectly in carrying on any business in which the said Carlos
Gsell is at present engaged, or within the two and one-half years fixed for the duration of the present contract in these Islands,
either as an employee or member of a firm or company, or on his own account; and he furthermore binds himself to pay in cash
to Mr. Gsell an equal sum of ten thousand pesos for each violation of any secret of the business entrusted him.
The plaintiff in that case was engaged solely and exclusively in the manufacture of umbrellas,
matches, and hats. The secret process for making straw hats had cost the plaintiff some P20,000 and
the defendant Koch, after having entered the hat factory under a contract of employment and after
having learned the secret process employed by the plaintiff, left the plaintiffs service and engaged in
the manufacture of straw hats in violation of the above-quoted provisions of the contract, using the
trade secrets which he had thus learned. The provisions in the contract against the engaging in the
manufacturing of straw hats in the Philippine Islands were held to be reasonably necessary for the
protection of the plaintiff and not oppressive in so far as the defendant was concerned. In the case
under consideration the contract goes far beyond that which formed the basis of the action in the case
just cited. Here the plaintiff Ferrazzini was prohibited from engaging in any business or occupation
whatever in the Philippine Islands for a period of five years after the termination of this contract of
employment without special written permission from the defendant. This plaintiff became engaged, as
we have said, as a foreman in a cement factory, while the defendant in the other case became
engaged in identically the same business which his employer was carrying on, that is, the manufacture
of straw hats. Consequently, the reasons which support the validity of the contract in the one case are
not applicable to the other. The same is true of the case of Fornow vs. Hoffmeister (6 Phil. Rep., 33),
wherein the decision rests solely upon the question whether the contract was in violation of the
contract labor laws. No other question was submitted or decided in that case. Therefore, whether the
clause under consideration is valid and enforcible is still an open question.
Articles 1091 and 1255 of the Civil Code read:
ART. 1091. Obligations arising from contracts have legal force between the contracting parties, and must be fulfilled in
accordance with their stipulations.
ART. 1255. The contracting parties may make the agreement and establish the clauses and conditions which they may deem
advisable, provided they are not in contravention of law, morals, or public order.
Hence, the policy of the law requires that the freedom of persons to enter into contracts shall not be
lightly interfered with, but if a contract be not founded upon a legal consideration (causa) or if it
conflicts with the morals of the times or contravenes some established interest of society, the courts
will not aid in its enforcement.
Passing over the question whether consideration of the American law and the causa of the civil law
are equivalent and whether there was adequate or legal consideration or causa on which the
contract was founded, we will limit our further inquiry to the determination of the question whether
that part of the contract under consideration is against public policy (orden publico).
Manresa, Vol. 8 p. 606, says:
Public policy (orden publico) which does not here signify the material keeping of public order represents in the law of
persons the public, social and legal interest, that which is permanent and essential of the institutions, that which, even if favoring
an individual in whom the right lies, cannot be left to his own will. It is an idea which, in cases of the waiver of any right, is
manifested with clearness and force. Thus the jurisprudence on the subject of mortgages contains an interesting declarations on
this point in a resolution of January 24, 1898, wherein it was held that: `The power of the husband to give marital permission
cannot be validly conferred upon any attorney-in-fact, as the legislator has willed that, for reasons of the interest of society and
of family government and discipline it should be vested only in the husband, being personal to him in the highest sense and
therefore not capable of being transmitted.
Mucius Scaevolas (vol. 20, p., 505) conclusion is that:
Agreements in violation of orden publico must be considered as those which conflict with law, whether properly, strictly and
wholly a public law (derecho) or whether a law of the person, but law which in certain respects affects the interest of society.
Articles 1893 and 1895 of Merricks Revised Civil Code of Louisiana, a civil law state, read:
ART. 1893. An obligation without a cause, or with a false or unlawful cause, can have no effect.
ART. 1895. Illegal or immoral cause. The cause is unlawful, when it is forbidden by law, when it iscontra bonos mores or to
public order.
In Fabacher vs. Bryant & Mather (46 La. Ann., 820), the plaintiff and one Thomas Egan were engaged in
the business of hauling cotton for the presses in the city of New Orleans. Both of these men were
members of the Draymens Association which had adopted a tariff of charges and undertook to
distribute among the members the hauling of the various presses. The owners of the press were not
consulted either as to the prices to be paid or as to those who should do the hauling. They could not
obtain draymen outside of the union. They had to engage those designated by the union. The
defendants employed Egan on the latters representation that he had been so designated. Later the
defendants employed the plaintiff upon the same representations. Finally, after investigation, the
defendants declined to permit the plaintiff to do the work and carried out their contract with Egan. The
plaintiff thereupon instituted this action for damages based upon the breach of his contract by the
defendants. On the setting aside of a verdict in favor of the plaintiff by the trial court and an appeal
having been duly entered, the Supreme Court affirmed the judgment, directing the dismissal of the
case, holding that the plaintiffs contract was plainly repugnant to public policy, citing articles 1893
and 1895 supra. (India Bagging Association vs. Kock, 14 La. ann., 168; Gravier vs. Carraby, 17 La.,
118, 142, and cases collected in 20 Hennens Digest, p. 1007, No. 1.)
In India Bagging Association vs. Kock, supra, an association of eight commercial firms in New Orleans,
holders of 7,410 bales of India cotton bagging, was formed, the members binding themselves for the
term of three months not to sell any bagging, nor offer to sell any, except with the consent of the
majority of them expressed at a meeting; under the penalty of ten dollars for every bale sold or
offered for sale. This action was brought against one of the members by the manager of the
association for the recovery of a penalty of $7,400 for having sold 740 bales of bagging in
contravention of the articles of the association. From a judgment in favor of the association the
defendant member appealed and the Supreme Court reversed the judgment saying:
The agreement between the parties was palpably and unequivocably a combination in restraint of
trade, and to enhance the price in the market of an article of primary necessity to cotton planters.
Such combination are contrary to public order, and cannot be enforced in a court of justice.
By public policy, as defined by the courts in the United States and England, is intended that principle
of the law which holds that no subject or citizen can lawfully do that which has a tendency to be
injurious to the public or against the public good, which may be termed the policy of the law, or
public policy in relation to the administration of the law. (Words & Phrases Judicially Defined, vol. 6,
p. 5813, and cases cited.) Public policy is the principle under which freedom of contract or private
dealing is restricted by law for the good of the public. (Id., Id.) In determining whether a contract is
contrary to public policy the nature of the subject matter determines the source from which such
question is to be solved. (Hartford Fire Ins. Co. vs. Chicago, M. & St. P. Ry. Co., 62 Fed. 904, 906.)
The foregoing is sufficient to show that there is no difference in principle between the public policy
(orden publico) in the two jurisdictions (the United States and the Philippine Islands) as determined by
the Constitution, laws, and judicial decisions.
In the United States it is well settled that contracts in undue or unreasonable restraint of trade are
unenforcible because they are repugnant to the established public policy in that country. Such
contracts are illegal in the sense that the law will not enforce them. The Supreme Court of the United
States, in Oregon Steam Navigation Co. vs. Winsor (20 Wall., 64), quoted with approval in Gibbs vs.
Consolidated Gas Co. of Baltimore (130 U. S., 396), said:
Cases must be judged according to their circumstances, and can only be rightly judged when the reason and grounds of the rule
as carefully considered. There are two principal grounds on which the doctrine is founded that a contract in restraint of trade is
void as against public policy. One is, the injury to the public by being deprived of the restricted partys industry; and the other is,
the injury to the party himself by being precluded from pursuing his occupation, and thus being prevented from supporting
himself and his family.
And in Gibbs vs. Consolidated Gas Co. of Baltimore, supra, the court stated the rule thus:
Pubic welfare is first considered, and if it be not involved, and the restraint upon one party is not greater than protection to the
other party requires, that contract may be sustained. The question is, whether, under the particular circumstances of the case and
the nature of the particular contract involved in it, the contract is, or is not, unreasonable.
Chapter 5, title 13, book 2, of our Penal Code makes it a crime for a person to solicit any gift or
promise as a consideration for agreeing to refrain from taking part in any public, auction, or
attempting to cause bidders to stay away from such auction by means of threats, gifts, promises or
any other artifice, with intent to affect the price of the thing auctioned (Art. 542), or to combine for
the purpose of lowering or raising wages to an abusive extent, or to regulate the conditions of labor
(Art. 543), or by spreading false rumors, or by making use of any other artifice, succeeds in altering
the prices which would naturally be obtained in free competition for merchandise, stocks, public and
private securities, or any other thing which may be the object of trade and commerce (Art. 544).
AndAct No. 98, as amended, of the Philippine Commission likewise makes it a crime for any person or
corporation, engaged as a common carrier, to subject any particular person, firm, company,
corporation, or locality, or any particular kind of traffic to any undue or unreasonable prejudice or
discrimination. To this extent the Legislature has expressly covered the subject and left to the courts
to determine in each case whether any other particular agreement or contract is contrary to public
policy.
It needs no argument to show that an agreement or contract entered into for the purpose of
accomplishing any of the prohibited acts mentioned in the above cited provisions of the Penal Code or
in Act No. 98 would be unenforcible as being in violation of positive law. Those falling within the
provisions of articles 542 and 544 of the Penal Code and Act No. 98 would clearly be agreements or
contracts in undue or unreasonable restraint of trade. The meaning given to the word trade would
determine the question whether those coming within the provisions of article 543 would or would not
be the same. If the commercial meaning of the word should govern, and in this sense t has reference
to the business of selling or exchanging some tangible substance or commodity for money, or the
business of dealing by way of sale in commodities, it would appear that such would not be contract in
restraint of trade. This may be the most common significance of the word trade. but it is not the
only one, nor the most comprehensive meaning in which the word is properly used. In the broader
sense, it is any occupation or business carried on for subsistence or profit. Andersons Dictionary of
Law gives the following definition: Generally equivalent to occupation, employment, or business,
whether manual or mercantile; any occupation, employment or business carried on for profit, gain, or
livelihood, not in the liberal arts or in the learned professions. In Abbotts Law Dictionary the word is
defined as an occupation, employment or business carried on for gain or profit. Among the
definitions given in the Encyclopaedic Dictionary is the following: The business which a person has
learnt, and which he carries on for subsistence or profit; occupation; particularly employment,
whether manual or mercantile, as distinguished from the liberal arts or the learned professions and
agriculture. Bouvier limits the meaning to commerce and traffic and the handicraft of mechanics. (In
re Pinkney, 47 Kan., 89.) We are inclined to adopt and apply the broader meaning given by the
lexicographers.
The contract under consideration, tested by the law, rules and principles above set forth, is clearly one
in undue or unreasonable restraint of trade and therefore against public policy. It is limited as to time
and space but not as to trade. It is not necessary for the protection of the defendant, as this is
provided for in another part of the clause. It would force the plaintiff to leave the Philippine Islands in
order to obtain a livelihood in case the defendant declined to give him the written permission to work
elsewhere in this country.
The foregoing are our reasons upon which the short decision and order for judgment, heretofore
filed,
[[
1
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were based.
Torres, Johnson, and Araullo, JJ., concur.
January 17, 1916
G.R. No. L-11002
THE UNITED STATES, plaintiff-appellee,
vs.
MATEO P. PALACIO, defendant-appellant.
Antonio Belmonte for appellant.
Attorney-General Avancea for appellee.
ARAULLO, J .:
These proceedings for violation of section 87 of Act No. 82, the Municipal Code, were brought against
the defendant, Mateo P. Palacio, in the Court of First Instance of Leyte by the following complaint filed
therein by the fiscal on December 18, 1914.
The undersigned charges Mateo P. Palacio with having violated section 87 of Act No. 82, in the following manner, to wit: Said
accused, on or about the 26th day of September, 1914, in the municipality of Tacloban, Province of Leyte, P.I., he being then and
there a deputy to the provincial assessor of Leyte, charged with the duty of assessing real property, did wilfully, unlawfully, and
criminally upon revising the assessment and in reassessing the property of Francisco Madlonito, situated in the barrio of Di-it,
municipality of Tacloban, omit from the tax list certain real properties and improvements belonging to said Francisco Madlonito,
knowing that the properties omitted were lawfully taxable; in violation of law.
A demurrer having been filed by defendants counsel on the ground that the facts alleged in the
complaint did not constituted the crime provided for and punished by said section 87 of Act No. 82,
the same was overruled, and, defendant having pleaded not guilty, the case came to trial. Evidence
was introduced by both the prosecution and the defense, and, on January 15, 1915, said Court of First
Instance rendered judgment in which, insisting upon the overruling of the demurrer interposed to the
complaint, and finding of the demurrer interposed to the complaint, and finding the defendant guilty of
the crime therein charged, he sentenced him to the penalty of forty days imprisonment in the
provincial jail, to pay a fine of P100, or, in case of insolvency, to suffer the corresponding subsidiary
imprisonment and to pay the costs. Defendant has appealed from this judgment and has assigned
thereto various errors which, as stated by the Attorney-General in his brief, may be reduced to the
following:
1. That the lower court erred in holding that the evidence adduced at trial proves defendants guilt beyond all reasonable doubt.
2. That the facts alleged in the complaint and proven at trial do not constitute the infraction provided for and punished by section
87 of Act No. 82, known as the Municipal Code.
The evidence shows beyond all doubt that while defendant was serving as a deputy to the provincial
assessor of Leyte, duly appointed and such, and having proceeded under orders of said assessor,
given in the month of September, 1914, to verify the measurement, evaluation, and assessment of
the properties of one Francisco Madlonito, situated in the barrio of Di-it, municipality of Tacloban of
said province, he presented in performance of his duty a report in which he recorded as real property
belonging to said Francisco Madlonito a rectangular parcel of unirrigated land which was adjoined on
the north by the land of Anacleto Condes; on the east, by that of Ventura Vias; on the south, by that
of Jose Guardino; and on the west, by woods; it measured 3 hectares 51 ares and 23 centiares in
area, the only improvements consisting of 500 hemp plants; that several days afterwards, in the
following month of October, the provincial assessor, having been advised that defendants report was
false, proceeded in company with another deputy to remeasure and to make a new valuation and
assessment of the same land, under guidance of and in accordance with date furnished by the same
Francisco Madlonito who had previously conducted and furnished information to defendant; as a result
of this proceeding on the part of said provincial assessor, it was ascertained that said land was
unirrigated hemp or corn land; that it was polygonal in form and was adjoined on the north by the
property of Anacleto Condes and Basilio Espejo; on the east, by that of Nicanor Dolina, Basilio Espejo
and Ventura Vias; on the south, by the land of Tomas Tabosa and a wood; and by a wood on the
west; it was found to measure 15 hectares 17 ares and 65 centiares in extent, the improvements
thereon consisting of a plantation of hemp, a dwelling house of mixed material, 80 clumps of banana
trees, 9 cacao trees, 24 coconut trees 5 years of age, and one coconut tree in bearing. It was
therefore apparent that in the tax list of real property which, as deputy to the provincial assessor,
defendant was charged to prepare that is, the report presented by him he had omitted real
property belonging to Francisco Madlonito, which property consisted of 12 hectares 66 ares and 42
centares of land and all the improvements mentioned, with the exception of the 500 hemp plants
specified in this report.
Defendant endeavored in a way to explain this omission by attributing it to the fact that in making his
report he relied upon the information furnished by Francisco Madlonito himself, and, with respect to
the area, on that given him at the time by the two laborers who measured the land and who assured
him that said measurement was correct, because it was the same as that which has been pointed out
to them by the owner of the land. Defendant further explained that he also accepted the informations
furnished by said laborers with respect to the improvements specified in said report as consisting of a
plantation of hemp; that these men had told him that there were no other improvements except the
hemp plantation and some banana trees of which he did not know how many there were; with respect
to the house, Francisco Madlonito told him that it belonged to Emiliano, Franciscos brother; that this
latter was absent at the time and therefore defendant did not measure the property, deciding to
postpone doing so until the 15th of January of the following year, when he intended to return.
These explanations of the defendant are not satisfactory, nor can they serve to exonerate him as he
claims because, in the first place, he should not have relied on what the interest party himself,
Francisco Madlonito, told him, nor upon the information which, at the time he inspected and measured
the lands, was furnished him by the two laborers of whose services he availed himself for the actual
performance of that labor. He himself ought to have verified the correctness of the information and
have informed himself of the true area of the land and of all the improvements thereon, they being in
sight, in order to include them in the report which it was his duty to render to the provincial assessor
in fulfillment of the mission confined to him. In the second place, Francisco Madlonito himself testified
at the trial that he had furnished defendant with the same date and information which he
subsequently gave to the provincial assessor and to the latters other deputy when they both went to
verify and investigate the defendants work, form which verification and investigation it was disclosed
that the land was larger by 12 hectares 66 ares and 42 centiares and that it contained many other
improvements such as clumps of coconut, cacao and banana trees, besides the 500 hemp plants
mentioned in defendants report. We therefore fail to understand and it has not been explained how
said improvements could have been omitted from the report, nor how defendant could have failed to
mentioned therein such a large tract of land as that of the 12 hectares above referred to. This,
together with the circumstances of defendants having passed the previous night in Francisco
Madlonitos own house, and having had, therefore, sufficient opportunity and time to inform himself of
exactly what the latters property, which was to be measure and recorded in said report, consisted of,
constitute proof that defendant (exception made in so far as the house is concerned, for it might be
true that it did belong to Francisco Madlonitos brother), willfully omitted from his report and extensive
portion of Francisco Madlonitos real property that he knew was lawfully taxable and which it was his
duty to record in said document. The lower court did not, therefore, incur the first error assigned by
defendants counsel in his brief.
Defendants counsel alleges, however, that the act committed by his client and which, as aforesaid,
was proven at trial, does not constitute an infraction provided for and punished by section 87 of Act
No. 82, known as the Municipal Code.
That section provides as follows:
Any officer charged with the duty of assessing real property, who shall willfully omit from the tax lists real property which he
knows to be lawfully taxable, shall be guilty of a misdemeanor and punishable by a fine not exceeding one thousand pesos, or
imprisonment not exceeding two years, or both, in the discretion of the court.
Section 49 of the same Act, No. 82, provides that the real estate of the municipality shall be valued
and assessed for taxation by a board, to consist of the president, the municipal treasurer, and a
specially authorized deputy of the provincial treasurer, which board shall be known as the municipal
board of assessors.
Said section 49 was amended by section 1 of Act No. 1930, so that the aforementioned municipal
board of assessors should consist of the municipal president the municipal treasurer and, instead of
the deputy to the provincial treasurer, of a third member to be appointed by the provincial board.
Subsequently, on February 11, 1913, Act No. 2238 was passed, section 1 of which created the
position of provincial assessor for each province containing municipalities organized under the
provisions of the Municipal Code. Section 2 of this Act provides that provincial assessors shall be
allowed such number of deputies and clerks as shall be fixed by the provincial board with the approval
of the Executive Secretary, and section 4, in reciting the duties of the provincial assessor, and,
consequently, those of his deputies, provides that, when directed by provincial board, he shall revise
and correct the assessments and valuations of real property for the purpose of taxation, and , in the
manner set forth in the Act, revise and correct, when so directed, any and all assessments and
valuations for taxation, make a correct and just assessments and state the true value of the real
property. Other sections of this Act confer upon the provincial assessor various powers in connection
with the preparation of the lists of property subject to assessment, and, finally, establishes the
procedure that must be followed where any municipality or any property owner does not agree with
the assessment and valuation so made.
As may be seen, the purpose of Act No. 2238, in creating the office of provincial assessor and allowing
him such number of deputies and clerks as shall be fixed by the provincial board with the approval of
the Executive Secretary, was the same as that of Act No. 82, in creating, in section 49 thereof, the
municipal board of assessors; and Act No. 1930, in amending said section in the manner
aforementioned, to wit, by providing that all the real property, taxable or subject to the land tax,
existing in the municipalities of these Islands, should be assessed, and, for this purpose and in order
that the provincial board should exercise the necessary and proper supervision over acts of the
municipalities relative to said tax, provided that someone representing the provincial board or better
said, a provincial official, should be a member of the municipal board of assessors a purpose and
object which are more accentuated in Act No. 2238 by expressly creating the office of provincial
assessor for the revision and correction of assessments and valuations of real property declared in the
municipalities and to enable this official to take a direct and active part in preparing the lists of
property subject to said tax. Said Act 2238 is therefore intimately related to the two Acts Nos. 82 and
1930 aforecited, and is virtually a complement of the same in so far as regards the declaration and
assessment of taxable property.
Said Act No. 2238 provides in section 18 that all Acts or parts of Acts in conflict therewith are repealed.
In the two aforementioned Acts, Nos. 82 and 1930, in so far as relates to the assessment and
valuation of taxable real property in municipalities, there is, strictly speaking, nothing which may be
said to be in conflict with said Act no. 2238, not only for the reason above stated, but also because
this Act has done nothing but change the method and procedure provided in Act No. 82, the Municipal
Code, for determining the taxable real property in the municipalities and the value thereof, by means
of the intervention which in said procedure is given to the provincial assessors. But that municipalities
are not excluded from taking part in the proceedings is shown by the fact that section 9 of this Act No.
2238 provides that, prior to directing the provincial assessor in accordance with the provisions thereof,
to proceed to revise and correct the assessments and valuations of real property, the provincial board
shall require each municipal council of the municipalities organized under the provisions of the
Municipal Code (Act No. 82) to prepare, in such form and detail as the Executive Secretary may
prescribe, a general schedule of the values of the different classes of land for the municipality which
shall be forwarded to the provincial board for approval, and such schedule, when approved by the
provincial board, shall serve the assessor as basis for the valuation and assessment. It also provides
in section 13 that it shall be the duty of the municipal president, secretary and treasurer and all
municipal employees, to render every assistance in their power to the provincial assessor.
Furthermore, one of the rules of interpretation, as very properly said by defendants counsel in his
brief, is that when there are two laws on the same subject enacted on different dates, and it appears
evidently by the form and essence of the later law that it was the intention of the legislator to cover
therein the whole of the subject, and that it is a complete and perfect system, or is in itself a
provision, the latest law should be considered as a legal declaration that all that is comprised therein
shall continue in force and that all that is not shall rejected and repealed. A simple perusal of Act No.
2238 is sufficient to show that it was not the intention of the legislature to cover all matters relative to
the assessment and valuation of the taxable real property of the municipalities, and subject, because,
as aforesaid, the Act in question is closely related to Act No. 82, of which it is virtually a complement
in so far as regards the organization of the service of making the lists for the complete and adequate
collection to the tax on the real property in municipalities organized under said Act No. 82. It cannot,
therefore, be maintained that section 87 of this latter Act should be considered as repealed, in so far
as it prescribes the penalty incurred by any official who, being charged with the duty of assessing real
property, wilfully omits form the tax lists any real property which he knows to be lawfully taxable.
Repeals by implications are not favored, and will not be decreed, unless it is manifest that the legislature so intended. As laws
are presumed to be passed with deliberation and with full knowledge of all existing ones on the subject, it is but reasonable to
conclude that in passing a statute it was not intended to interfere with or abrogate any former law relating to same matter, unless
the repugnancy between the two is not only irreconcilable, but also clear and convincing, and flowing necessarily from the
language used, unless the later act fully embraces the subject matter of the earlier, or unless the reason for the earlier act is
beyond peradventure removed. Hence, every effort must be used to make all acts stand and if, by any reasonable construction,
they can be reconciled, the later act will not operate as a repeal of the earlier. (23 Am. and Eng. Ency. of Law, p. 489, and cases
there cited [vol. 26, pp. 721, 726].)
As said Act No. 2238 provides no penalty for the provincial assessor or his deputy who, in revising the
assessment and preparing the tax list of real property, wilfully makes any omission such as that
aforestated; and as the provincial assessor, or his deputy, is a public official or an official of the class
referred to in section 87, it being immaterial whether he be a provincial or a municipal official (for it is
sufficient that it be the duty of such official to assess real property) it is evident that the said penal
provisions in force and is applicable to the provincial assessors and their deputies referred to in Act
No. 2238, and that the lower court did not err in sentencing defendant, under the provisions of said
section 87, to the penalty specified in the judgment appealed from.
The fact that the cadastral survey of the municipality of Tacloban was to terminated at the time of the
discovery of the omission made by the defendant in the report presented by him to the provincial
assessor, and that such omission might have been repaired by correcting the list or report by means
of revision and new assessment made by the provincial assessor himself on his proceeding with the
investigation of the misdemeanor committed by defendant, does not exempt the latter from liability,
because what the law punished in said section 87 is the fact of the willful omission, by the official
charged with the duty of assessing the real property in the tax list, of any property which he knows to
be lawfully taxable; and it is immaterial whether said omission can or cannot subsequently be
remedied, because it constitutes in itself a false representation in that document and a fraud
committed by the public official to prejudice of the Government or with intent to cause such prejudice.
By reason of the foregoing, and the judgment appealed from being in accordance with the merits of
the case and the law, we hereby affirm the same, with the costs against appellant. So ordered.
Arellano, C.J., Torres and Johnson, JJ., concur.
Carson and Trent, JJ., dissent.
[A.M. No. MTJ-99-1211. January 28, 2000]
ZENAIDA S. BESO, complainant, vs. Judge JUAN DAGUMAN, MCTC, Sta.
Margarita-Tarangan-Pagsanjan, Samar, respondent.AAE
D E C I S I O N
YNARES-SANTIAGO, J .:
In this administrative complaint, respondent Judge stands charged with Neglect of Duty and
Abuse of Authority. In a Complaint-Affidavit dated December 12, 1997, Zenaida S. Beso
charged Judge Juan J. Daguman, Jr. with solemnizing marriage outside of his jurisdiction and of
negligence in not retaining a copy and not registering the marriage contract with the office of the
Local Civil Registrar alleging
"a. That on August 28, 1997, I and my fiancee (sic) BERNARDITO A. YMAN
got married and our marriage was solemnized by judge (sic) Juan Daguman in his
residence in J.P.R. Subdivision in Calbayog City, Samar; xxxoc
b. That the ceremony was attended by PACIFICO MAGHACOT who acted as
our principal sponsor and spouses RAMON DEAN and TERESITA DEAN; xxx
c. That after our wedding, my husband BERNARDITO YMAN abandoned me
without any reason at all;
d. That I smell something fishy; so what I did was I went to Calbayog City and
wrote the City Civil Registrar to inquire regarding my Marriage Contract;
e. That to my surprise, I was informed by the Local Civil Registrar of Calbayog
City that my marriage was not registered; xxx-4=L
f. That upon advisement of the Local Civil Registrar, I wrote Judge Juan
Daguman, to inquire;
g. That to my second surprise, I was informed by Judge Daguman that all the
copies of the Marriage Contract were taken by Oloy (Bernardito A. Yman);
h. That no copy was retained by Judge Daguman;
i. That I believe that the respondent judge committed acts prejudicial to my
interest such as:4L'4==|
1. Solemnizing our marriage outside his jurisdiction;
2. Negligence in not retaining a copy and not registering our marriage
before the office of the Local Civil Registrar."
The Affidavit-Complaint was thereafter referred to respondent Judge for comment.
In his Comment, respondent Judge averred that:
1. The civil marriage of complainant Zenaida Beso and Bernardito Yman had to
be solemnized by respondent in Calbayog City though outside his territory as
municipal Judge of Sta. Margarita, Samar due to the following and pressing
circumstances:4-'
1.1. On August 28, 1997 respondent was physically indisposed and unable
to report to his station in Sta. Margarita. In the forenoon of that date,
without prior appointment, complainant Beso and Mr. Yman unexpectedly
came to the residence of respondent in said City, urgently requesting the
celebration of their marriage right then and there, first, because
complainants said she must leave that same day to be able to fly from
Manila for abroad as scheduled; second, that for the parties to go to
another town for the marriage would be expensive and would entail
serious problems of finding a solemnizing officer and another pair of
witnesses or sponsors, while in fact former Undersecretary Pacifico
Maghacot, Sangguniang Panglunsod [member] Ramon Dean were already
with them as sponsors; third, if they failed to get married on August 28,
1997, complainant would be out of the country for a long period and their
marriage license would lapse and necessitate another publication of notice;
fourth, if the parties go beyond their plans for the scheduled marriage,
complainant feared it would complicate her employment abroad; and, last,
all other alternatives as to date and venue of marriage were considered
impracticable by the parties;
1.2. The contracting parties were ready with the desired cocuments (sic)
for a valid marriage, which respondent found all in order.4AA
1.3. Complainant bride is an accredited Filipino overseas worker, who,
respondent realized, deserved more than ordinary official attention under
present Government policy.
2. At the time respondent solemnized the marriage in question, he believed in
good faith that by so doing he was leaning on the side of liberality of the law so
that it may be not be too expensive and complicated for citizens to get married.
3. Another point brought up in the complaint was the failure of registration of the
duplicate and triplicate copies of the marriage certificate, which failure was also
occasioned by the following circumstances beyond the control of
respondent:4-1
3.1. After handing to the husband the first copy of the marriage certificate,
respondent left the three remaining copies on top of the desk in his private
office where the marriage ceremonies were held, intending later to register
the duplicate and triplicate copies and to keep the forth (sic) in his office.
3.2. After a few days following the wedding, respondent gathered all the
papers relating to the said marriage but notwithstanding diligent search in
the premises and private files, all the three last copies of the certificate
were missing. Promptly, respondent invited by subpoena xxx Mr. Yman to
shed light on the missing documents and he said he saw complainant Beso
put the copies of the marriage certificate in her bag during the wedding
party. Unfortunately, it was too late to contact complainant for a
confirmation of Mr. Ymans claim.4U14-
3.3. Considering the futility of contracting complainant now that she is out
of the country, a reasonable conclusion can be drawn on the basis of the
established facts so far in this dispute. If we believe the claim of
complainant that after August 28, 1997 marriage her husband, Mr. Yman,
abandoned her without any reason xxx but that said husband admitted "he
had another girl by the name of LITA DANGUYAN" xxx it seems
reasonably clear who of the two marriage contracting parties probably
absconded with the missing copies of the marriage
certificate.411'4AA
3.4. Under the facts above stated, respondent has no other recourse but to
protect the public interest by trying all possible means to recover custody
of the missing documents in some amicable way during the expected
hearing of the above mentioned civil case in the City of Marikina, failing
to do which said respondent would confer with the Civil Registrar General
for possible registration of reconstituted copies of said documents.
The Office of the Court Administrator (OCA) in an evaluation report dated August 11, 1998
found that respondent Judge " committed non-feasance in office" and recommended that he be
fined Five Thousand Pesos (P5,000.00) with a warning that the commission of the same or future
acts will be dealt with more severely pointing out that:
"As presiding judge of the MCTC Sta. Margarita Tarangnan-Pagsanjan, Samar,
the authority to solemnize marriage is only limited to those municipalities under
his jurisdiction. Clearly, Calbayog City is no longer within his area of
jurisdiction.4U11
Additionally, there are only three instances, as provided by Article 8 of the
Family Code, wherein a marriage may be solemnized by a judge outside his
chamber[s] or at a place other than his sala, to wit:
(1) when either or both of the contracting parties is at the point of death;
(2) when the residence of either party is located in a remote place;4L41=
(3) where both of the parties request the solemnizing officer in
writing in which case the marriage may be solemnized at a house
or place designated by them in a sworn statement to that effect.
The foregoing circumstances are unavailing in the instant case.
Moreover, as solemnizing officer, respondent Judge neglected his duty when he
failed to register the marriage of complainant to Bernardito Yman.
Such duty is entrusted upon him pursuant to Article 23 of the Family Code which
provides:4-
"It shall be the duty of the person solemnizing the marriage to furnish
either of the contracting parties the original of the marriage certificate
referred to in Article 6 and to send the duplicate and triplicate copies of
the certificates not later than fifteen days after the marriage, to the local
civil registrar of the place where the marriage was solemnized. xxx"
(underscoring ours)
It is clearly evident from the foregoing that not only has the respondent Judge
committed non-feasance in office, he also undermined the very foundation of
marriage which is the basic social institution in our society whose nature,
consequences and incidents are governed by law. Granting that respondent Judge
indeed failed to locate the duplicate and triplicate copies of the marriage
certificate, he should have exerted more effort to locate or reconstitute the same.
As a holder of such a sensitive position, he is expected to be conscientious in
handling official documents. His imputation that the missing copies of the
marriage certificate were taken by Bernardito Yman is based merely on
conjectures and does not deserve consideration for being devoid of proof."
After a careful and thorough examination of the evidence, the Court finds the evaluation report
of the OCA well-taken.4U=14L
Jimenez v. Republic
[1]
underscores the importance of marriage as a social institution thus:
"[M]arriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and permanence. The
security and stability of the state are largely dependent upon it. It is the interest and duty of each
and every member of the community to prevent the bringing about of a condition that would
shake its foundation and ultimately lead to its destruction."
With regard to the solemnization of marriage, Article 7 of the Family Code provides, among
others, that
"ART. 7. Marriage may be solemnized by:4U=1
(1) Any incumbent member of the judiciary within the courts jurisdiction; xxx"
(Italics ours)
In relation thereto, Article 8 of the same statute mandates that:
ART. 8. The marriage shall be solemnized publicly in the chambers of the judge
or in open court, in the church, chapel or temple, or in the office of the consul-
general, consul or vice-consul, as the case may be, and not elsewhere, except in
cases of marriages contracted at the point of death or in remote places in
accordance with Article 29 of this Code, or where both parties request the
solemnizing officer in writing in which case the marriage may be solemnized at a
house or place designated by them in a sworn statement to that effect." (Italics
ours)4AA'4*1
As the above-quoted provision clearly states, a marriage can be held outside the judges
chambers or courtroom only in the following instances: 1.] at the point of death; 2.] in remote
places in accordance with Article 29, or 3.] upon the request of both parties in writing in a sworn
statement to this effect.
In this case, there is no pretense that either complainant Beso or her fiance Yman was at the
point of death or in a remote place. Neither was there a sworn written request made by the
contracting parties to respondent Judge that the marriage be solemnized outside his chambers or
at a place other than his sala. What, in fact, appears on record is that respondent Judge was
prompted more by urgency to solemnize the marriage of Beso and Yman because complainant
was "[a]n overseas worker, who, respondent realized deserved more than ordinary official
attention under present Government policy." Respondent Judge further avers that in solemnizing
the marriage in question, "[h]e believed in good faith that by doing so he was leaning on the side
of liberality of the law so that it may not be too expensive and complicated for citizens to get
married."4U=1='
A person presiding over a court of law must not only apply the law but must also live and abide
by it and render justice at all times without resorting to shortcuts clearly uncalled for.
[2]
A judge is
not only bound by oath toapply the law;
[3]
he must also be conscientious and thorough in doing
so.
[4]
Certainly, judges, by the very delicate nature of their office should be more circumspect in
the performance of their duties.
[5]

If at all, the reasons proffered by respondent Judge to justify his hurried solemnization of the
marriage in this case only tends to degrade the revered position enjoyed by marriage in the
hierarchy of social institutions in the country. They also betray respondents cavalier proclivity
on its significance in our culture which is more disposed towards an extended period of
engagement prior to marriage and frowns upon hasty, ill-advised and ill-timed marital
unions.-1
An elementary regard for the sacredness of laws let alone that enacted in order to preserve so
sacrosanct an inviolable social institution as marriage and the stability of judicial doctrines laid
down by superior authority should have given respondent judge pause and made him more
vigilant in the exercise of his authority and the performance of his duties as a solemnizing
officer. A judge is, furthermore, presumed to know the constitutional limits of the authority or
jurisdiction of his court.
[6]
Thus respondent Judge should be reminded that
A priest who is commissioned and allowed by his ordinary to marry the faithful,
is authorized to do so only within the area of the diocese or place allowed by his
Bishop. An appellate court justice or a Justice of this Court has jurisdiction over
the entire Philippines to solemnize marriages, regardless of the venue, as long as
the requisites of the law are complied with. However, Judges who are appointed
to specific jurisdictions may officiate in weddings only within said areas and not
beyond. Where a judge solemnizes a marriage outside his courts jurisdiction,
there is a resultant irregularity in the formal requisite laid down in Article 3,
which while it may not affect the validity of the marriage, may subject the
officiating official to administrative liability.
[7]
4--'4
Considering that respondent Judges jurisdiction covers the municipality of Sta. Margarita-
Tarangan-Pagsanjan, Samar only, he was not clothed with authority to solemnize a marriage in
the City of Calbayog.
[8]

Furthermore, from the nature of marriage, aside from the mandate that a judge should exercise
extra care in the exercise of his authority and the performance of his duties in its solemnization,
he is likewise commanded to observe extra precautions to ensure that the event is properly
documented in accordance with Article 23 of the Family Code which states in no uncertain terms
that
ART. 23. - It shall be the duty of the person solemnizing the marriage to furnish
either of the contracting parties, the original of the marriage contract referred to in
Article 6 and to send the duplicate and triplicate copies of the certificate not later
than fifteen days after the marriage, to the local civil registrar of the place where
the marriage was solemnized. Proper receipts shall be issued by the local civil
registrar to the solemnizing officer transmitting copies of the marriage certificate.
The solemnizing officer shall retain in his file the quadruplicate copy of the
marriage certificate, the original of the marriage license and, in proper cases, the
affidavit of the contracting party regarding the solemnization of the marriage in a
place other than those mentioned in Article 8. (Italics supplied)==
In view of the foregoing, we agree with the evaluation of the OCA that respondent Judge was
less than conscientious in handling official documents. A judge is charged with exercising extra
care in ensuring that the records of the cases and official documents in his custody are intact.
There is no justification for missing records save fortuitous events.
[9]
However, the records show
that the loss was occasioned by carelessness on respondent Judges part. This Court reiterates
that judges must adopt a system of record management and organize their dockets in order to
bolster the prompt and efficient dispatch of business.
[10]
It is, in fact, incumbent upon him to
devise an efficient recording and filing system in his court because he is after all the one directly
responsible for the proper discharge of his official functions.
[11]

In the evaluation report, the OCA recommended that respondent Judge be fined Five Thousand
Pesos (P5,000.00) and warned that a repetition of the same or similar acts will be dealt with more
severely. This Court adopts the recommendation of the OCA. 1Z1'
WHEREFORE, in view of all the foregoing, respondent Judge is hereby FINED Five Thousand
Pesos (P5,000.00) and STERNLY WARNED that a repetition of the same or similar infractions
will be dealt with more severely.
SO ORDERED.4U1'4A
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.



[1]
109 Phil. 273 [1960].
[2]
Ortiz v. Palaypon, 234 SCRA 391 [1994].
[3]
Caram Resources Corp. v. Contreras, 237 SCRA 724 [1994].
[4]
Benjamin, Sr. v. Alaba, 261 SCRA 429 [1996].
[5]
Galvez v. Eduardo, 252 SCRA 570 [1996].
[6]
Guieb v. Fontanilla, 247 SCRA 348 [1995].
[7]
Navarro v. Domagtoy, 259 SCRA 129 [1996], citing Art. 4 Family Code; italics supplied.
[8]
See Sempio-Diy A.V. Handbook On The Family Code Of The Philippines, 1988 ed., p. 70.
[9]
Sabitsana v. Villamor, 202 SCRA 435 [1991], citing Longboan v. Polig, 186 SCRA 567 [1990].
[10]
Bernardo v. Judge Amelia A. Fabros, AM No. MTJ-99-1189, 12 May 1999.
[11]
OCA v. Judge Francisco D. Villanueva, 279 SCRA 267 [1997], citing Agcaoili v. Ramos, 229 SCRA 705 [1994];
see also OCA v. RTC Judge Amelita DK Benedicto, 296 SCRA 62 [1998]; Mamamayan ng Zapote I, Bacoor,
Cavite v. Balderian, 265 SCRA 360 [1996]; Celino v. Abrogar, 245 SCRA 304 [1995].
[A.M. No. MTJ-96-1088. July 19, 1996]
RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C.
DOMAGTOY, respondent.
D E C I S I O N
ROMERO, J .:
The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao
del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific
acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy,
which, he contends, exhibits gross misconduct as well as inefficiency in office and
ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between
Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely
separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano
Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October
27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit
Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at
the respondent judge's residence in the municipality of Dapa, which does not fall within
his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40
to 45 kilometers away from the municipality of Dapa, Surigao del Norte.
In his letter-comment to the Office of the Court Administrator, respondent judge
avers that the office and name of the Municipal Mayor of Dapa have been used by
someone else, who, as the mayor's "lackey," is overly concerned with his actuations
both as judge and as a private person. The same person had earlier filed
Administrative Matter No. 94-980-MTC, which was dismissed for lack of merit on
September 15, 1994, and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v.
Judge Hernando C. Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from his
act of having solemnized the marriage between Gaspar Tagadan, a married man
separated from his wife, and Arlyn F. Borga by stating that he merely relied on the
Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that
Mr. Tagadan and his first wife have not seen each other for almost seven years.
[1]
With
respect to the second charge, he maintains that in solemnizing the marriage between
Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code
which states that: "Marriage may be solemnized by: (1) Any incumbent member of the
judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in
question.
The complaint was not referred, as is usual, for investigation, since the pleadings
submitted were considered sufficient for a resolution of the case.
[2]

Since the countercharges of sinister motives and fraud on the part of complainant
have not been sufficiently proven, they will not be dwelt upon. The acts complained of
and respondent judge's answer thereto will suffice and can be objectively assessed by
themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn
Borga states that Tagadan's civil status is "separated." Despite this declaration, the
wedding ceremony was solemnized by respondent judge. He presented in evidence a
joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn
to before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey,
Samar.
[3]
The affidavit was not issued by the latter judge, as claimed by respondent
judge, but merely acknowledged before him. In their affidavit, the affiants stated that
they knew Gaspar Tagadan to have been civilly married to Ida D. Pearanda in
September 1983; that after thirteen years of cohabitation and having borne five children,
Ida Pearanda left the conjugal dwelling in Valencia, Bukidnon and that she has not
returned nor been heard of for almost seven years, thereby giving rise to the
presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is
sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to
proceed with the marriage ceremony. We do not agree.
Article 41 of the Family Code expressly provides:
"A marriage contracted by any person during the subsistence of a previous marriage
shall be null and void, unless before the celebration of the subsequent marriage, the
prior spouse had been absent for four consecutive years and the spouse present had a
well-founded belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the provisions of
Articles 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided in
this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse." (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the
law is clear and simple. Even if the spouse present has a well-founded belief that the
absent spouse was already dead, a summary proceeding for the declaration of
presumptive death is necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely incorporated into the Family Code to
discourage subsequent marriages where it is not proven that the previous marriage has
been dissolved or a missing spouse is factually or presumptively dead, in accordance
with pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the
declaration of his first wife's presumptive death. Absent this judicial declaration, he
remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest
error on the part of respondent judge to have accepted the joint affidavit submitted by
the groom. Such neglect or ignorance of the law has resulted in a bigamous, and
therefore void, marriage. Under Article 35 of the Family Code, "The following marriage
shall be void from the beginning: (4) Those bigamous x x x marriages not falling under
Article 41."
The second issue involves the solemnization of a marriage ceremony outside the
court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:
"Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
x x x x x x xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in
open court, in the church, chapel or temple, or in the office of the consul-general,
consul or vice-consul, as the case may be, and not elsewhere, except in cases of
marriages contracted on the point of death or in remote places in accordance
with Article 29 of this Code, or where both parties request the solemnizing
officer in writing in which case the marriage may be solemnized at a house or
place designated by them in a sworn statement to that effect."
Respondent judge points to Article 8 and its exceptions as the justifications for his
having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario
outside of his court's jurisdiction. As the aforequoted provision states, a marriage can
be held outside of the judge's chambers or courtroom only in the following
instances: (1) at the point of death, (2) in remote places in accordance with Article 29 or
(3) upon request of both parties in writing in a sworn statement to this effect. There is
no pretense that either Sumaylo or del Rosario was at the point of death or in a remote
place. Moreover, the written request presented addressed to the respondent judge was
made by only one party, Gemma del Rosario.
[4]

More importantly, the elementary principle underlying this provision is the authority
of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the
"authority of the solemnizing officer." Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the judiciary within the court's jurisdiction."
Article 8, which is a directory provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of the solemnizing officer as
provided in the preceding provision. Non-compliance herewith will not invalidate the
marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful,
is authorized to do so only within the area of the diocese or place allowed by his
Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the
entire Philippines to solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond. Where a
judge solemnizes a marriage outside his court's jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Article 3, which while it may not affect the
validity of the marriage, may subject the officiating official to administrative liability.
[5]

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta.
Monica and Burgos, he was not clothed with authority to solemnize a marriage in the
municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein
as grounds for the exercise of his misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the
law. The legal principles applicable in the cases brought to our attention are elementary
and uncomplicated, prompting us to conclude that respondent's failure to apply them is
due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least,
proficient in the law they are sworn to apply, more than the ordinary laymen. They
should be skilled and competent in understanding and applying the law. It is imperative
that they be conversant with basic legal principles like the ones involved in instant
case.
[6]
It is not too much to expect them to know and apply the law
intelligently.
[7]
Otherwise, the system of justice rests on a shaky foundation indeed,
compounded by the errors committed by those not learned in the law. While
magistrates may at times make mistakes in judgment, for which they are not penalized,
the respondent judge exhibited ignorance of elementary provisions of law, in an area
which has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous
and void, there being a subsisting marriage between Gaspar Tagadan and Ida
Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the Court,
a six-month suspension and a stern warning that a repetition of the same or similar acts
will be dealt with more severely. Considering that one of the marriages in question
resulted in a bigamous union and therefore void, and the other lacked the necessary
authority of respondent judge, the Court adopts said recommendation. Respondent is
advised to be more circumspect in applying the law and to cultivate a deeper
understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is
hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that
a repetition of the same or similar acts will be dealt with more severely.
SO ORDERED.
Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.



[1]
Rollo, pp. 7-8.
[2]
Uy v. Dizon-Capulong, A.M. No. RTJ-91-766, April 7, 1993; Montemayor v. Collado, A.M. No. 2519-
MTJ, September 10, 1981; Ubongon v. Mayo, A.M. No. 1255-CTJ, August 6, 1980, 99 SCRA 30.
[3]
Rollo, p. 12.
[4]
Rollo, pp. 10-11.
[5]
Article 4, Family Code.
[6]
Lim v. Domogas, A.M. No. RTJ-92-899, October 15, 1993, 227 SCRA 258, 263 citing
Ubongan v. Mayo, 99 SCRA 30 and Ajeno v. Inserto, 71 SCRA 166.
[7]
Galan Realty Co. v. Arranz, A.M. No. MTJ-93-978, October 27, 1994, 237 SCRA 771.
December 4, 1922
G.R. No. L-19628
LICHAUCO & COMPANY, INC., petitioner,
vs.
SILVERIO APOSTOL, as Director of Agriculture, and RAFAEL CORPUS, as Secretary of
Agriculture and Natural Resources, respondents.
Gibbs, McDonough and Johnson for petitioner.
Attorney-General Villa-Real for respondents.
STREET, J .:
This is an original petition for the writs ofmandamus and injunction, filed in this court by Lichauco &
Company against the respondents, Silverio Apostol, as Director of Agriculture, and Rafael Corpus, as
Secretary of Agriculture and Natural Resources. An order having been issued by this court requiring
the respondents to appear and show cause why the relief prayed for should not be granted, the
Attorney-General presented a return, in the nature of a demurrer, in their behalf; and the cause is
now before us for the determination of the questions thus presented.
It is alleged in the complaint that the petitioner is a corporation duly organized under the laws of the
Philippine Islands and that it has been engaged for several years in the business of importing carabao
and other draft animals into the Philippine Islands and that it is now desirous of importing from Pnom-
Pehn, in French Indo-China, a shipment of draft cattle and bovine cattle for the manufacture of serum
but that the respondent Director of Agriculture refuses to admit said cattle, except upon the condition,
stated in Administrative Order No. 21 of the Bureau of Agriculture, that said cattle shall have been
immunized from rinderpest before embarcation at Pnom-Pehn. The petitioner therefore asks for an
order requiring the respondents to admit the contemplated importation of cattle into the Islands and
enjoining them from the enforcement of said administrative order in the future.
The petitioner asserts that under the first proviso to section 1762 of the Administrative Code, as
amended by Act No. 3052 of the Philippine Legislature, it has an absolute and unrestricted right to
import carabao and other draft animals and bovine cattle for the manufacture of serum from Pnom-
Pehn, Indo-China, into the Philippine Islands and that the respondents have no authority to impose
upon the petitioner the restriction referred to above, requiring the immunization of the cattle before
shipment.
The respondents, on the other hand, rely upon section 1770 of the Administrative Code and upon
Administrative Order No. 21 of the Bureau of Agriculture, promulgated on July 29, 1922, by the
Director of Agriculture, in relation with Department Order No. 6, promulgated on July 28, 1922, by the
Secretary of Agriculture and Natural Resources, as supplying authority for the action taken.
Such portions of the laws above-mentioned as are material to the present controversy will be set out
in full, preceded by section 1762 of the Administrative Code, as originally enacted, to which will be
appended the pertinent parts of the orders referred to and the communication of the Director of
Agriculture of August 31, 1922.
1. First paragraph of section 1762 of Administrative Code in original form:
SEC. 1762. Bringing of diseased animal into Islands forbidden. Except upon permission of the Director of Agriculture, with the
approval of the head of Department first had, it shall be unlawful for any person knowingly to ship or otherwise bring into the
Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any effects
pertaining to such animal which are liable to introduce such disease into the Philippine Islands.
2. First paragraph of section 1762 of Administrative Code, as amended by Act No. 3052 of the
Philippine Legislature:
SEC. 1762. Bringing of animals imported from foreign countries into the Philippine Islands. It shall be unlawful for any person
or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of
Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of
various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such
as may be necessary for the improvement of the breed, not to exceed five hundred head per annum: Provided, however, That the
Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the
manufacture of serum: Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of
which into the Islands is authorized by this Act, shall be submitted to regulations issued by the Director of Agriculture, with the
approval of the head of the department, prior to authorizing its transfer to other provinces.
3. Section 1770 of Administrative Code:
SEC. 1770. Prohibition against bringing of animals from infected foreign countries. When the Department Head shall by
general order declare that a dangerous communicable animal disease prevails in any foreign country, port, or place and that
there is danger of spreading such disease by the importation of domestic animals therefrom, it shall be unlawful for any person
knowingly to ship or bring into the Philippine Islands any such animal, animal effects, parts, or products from such place, unless
the importation thereof shall be authorized under the regulation of the Bureau of Agriculture.
4. Department Order No. 6, promulgated on July 28, 1922, by Secretary of Agriculture and Natural
Resources:
DEPARTMENT ORDER NO. 6.}
Series of 1922.}
Owing to the fact that a dangerous communicable disease known as rinderpest exist in Hongkong, French Indo-China and
British India, it is hereby declared, in accordance with the provisions of section 1770 of Act No. 2711 (Administrative Code of
the Philippine Islands of 1917), that rinderpest prevails in said countries, and as there is danger of spreading such disease by the
importation of cattle, carabaos, and pigs therefrom, it shall be unlawful for any person knowingly to ship or bring into the
Philippine Islands any such animal, animal effects, parts, or products from Hongkong, French Indo-China and British India,
unless the importation thereof shall be authorized under the regulations of the Bureau of Agriculture.
The provisions of this order shall take effect on and after August 1, 1922.
5. Administrative Order No. 21, of the Bureau of Agriculture, promulgated July 29, 1922, by the
Director of Agriculture:
ADMINISTRATIVE ORDER NO. 21}
}
Re importation of cattle, carabaos, and pigs from French Indo-China, Hongkong and India.
1. Pursuant to the provisions of Department Order No. 6, series of 1922, of the Department of Agriculture and Natural
Resources, the present regulations of the Bureau of Agriculture governing the importation of livestock from French Indo-China
and Hongkong are hereby amended to the effect that the importation of livestock of the species named in the aforementioned
Department Order is hereby prohibited from French Indo-China, Hongkong and India. However, animals immunized against
rinderpest, for which the importer before placing his order shall have obtained from the Director of Agriculture a written permit
to import them from the above named countries, may be allowed entrance into the Philippine Islands.
2. This order shall take effect on and after August 1, 1922.
6. Communication of August 31, 1922, from the Acting Director of Agriculture to Faustino Lichauco (in
part):
SIR: In reply to your application for permission to import from 300 to 400 carabaos immunized against rinderpest from Pnom-
Pehn, French Indo-China, I have the honor to inform you that the permission is hereby granted, under the following conditions:
1. Animals must be immunized by the simultaneous method before shipment. At least 10 c.c. of good virulent blood must be
injected at the first injection simultaneously with the serum. Ten days after the simultaneous inoculation all non-reactors must
receive another injection of not less than 10 c.c. of virulent blood (alone).
2. The immunization must be done by a veterinarian designated by the French Government for the purpose, who must issue a
certificate stating the fact that the animal has been immunized according to the requirements in number 1 and it must not be
embarked until ten days after the second injection of virulent blood.
Very respectfully,
SILVERIO APOSTOL,
Acting Director of Agriculture.
Upon glancing over the matter above collated, it will be seen at once that section 1770 of the
Administrative Code on its face authorizes the action taken by the Secretary of Agriculture and Natural
Resources in closing our ports (in the manner and to the extent indicated in Department Order No. 6)
to the importation of cattle and carabao from French Indo-China, supposing of course, as everybody
knows and as the petitioner does not deny, that the disease of rinderpest exists in that country.
It is claimed, however, that section 1762 of the Administrative Code, so far as it authorizes restriction
upon the importation of draft cattle and bovine cattle for the manufacture of serum, has been
impliedly repealed by the amendatory Act No. 3052, which is of later enactment that the
Administrative Code; and in this connection reliance is chiefly placed on the first proviso to section
1762, as amended by said Act No. 3052, which is in these words: Provided, however, That the
Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle
and bovine cattle for the manufacture of serum. This then is the first and principal question in the
case, namely, whether section 1770 has been repealed by implication, in so far as it relates to draft
animals and bovine cattle for the manufacture of serum. We say repealed by implication, for it will be
noted that that Act No. 3052 has no repealing clause, and it contains only one section, i. e., that
amending section 1762 of the Administrative Code.
We are of the opinion that the contention of the petitioner is untenable, for the reason that section
1762, as amended, is obviously of a general nature, while section 1770 deals with a particular
contingency not made the subject of legislation in section 1762. Section 1770 is therefore not to be
considered as inconsistent with section 1762, as amended; on the other hand, it must be treated as a
special qualification of section 1762. Of course the two provisions are different, in the sense that if
section 1762, as amended, is considered alone, the cattle which the petitioner wishes to bring in can
be imported without restriction, while if section 1770 is still in force the cattle, under the conditions
stated in the petition, can be brought in only upon compliance with the requirements of Administrative
Order No. 21. But this difference between the practical effect of the two provisions does not make
then inconsistent in the sense that the earlier provision (sec. 1770) should be deemed repealed by the
amendatory Act (3052).
That section 1770 is special, in the sense of dealing with a special contingency not dealt with in
section 1762, is readily apparent upon comparing the two provisions. Thus, we find that while section
1762 relates generally to the subject of the bringing of animals into the Island at any time and from
any place, section 1770 confers on the Department Head a special power to deal with the situation
which arises when a dangerous communicable disease prevails in some defined foreign country, and
the provision is intended to operate only so long as that situation continues. Section 1770 is the
backbone of the power to enforce animal quarantine in these Islands in the special emergency therein
contemplated; and if that section should be obliterated, the administrative authorities here would be
powerless to protect the agricultural industry of the Islands from the spread of animal infection
originating abroad.
We note that the argument for unrestricted importation extends only to the importation of cattle for
draft purposes and bovine cattle for the manufacture of serum, leaving section 1770 theoretically in
full effect as regards the importation of cattle for other purposes, as where they are imported for
slaughter; but the importation of cattle for draft purposes is the principal thing, and unless that can be
regulated under the conditions and to the extent attempted by the respondents in this case, the power
given in section 1770 is obviously worthless.
In our opinion section 1762, as amended, and section 1770 must be construed in pari materia as
harmonious parts of the law dealing with animal quarantine; and section 1762, as amended, can be
given effect only in so far as it is not restricted by section 1770. Here, as always, the general must
yield to the particular.
If the Congress of the United States should this day repeal the Chinese Exclusion Law so far as it
affects these Islands, and should declare that all persons of Chinese nationality shall be at liberty to
enter the Philippine Islands without restriction, would anybody suppose that such enactment would
have the effect of abolishing the power to maintain quarantine against any Chinese port where cholera
or bubonic plaque might hereafter be raging in epidemic form? Yet the question now before us is not
fundamentally different from the one thus supposed.
The judicial precedents are conclusive to the effect that no implied repeal of a special provisions of the
character of the one now under consideration will result from the enactment of broader provision of a
general nature. In other words, a general statute without negative words does not repeal a previous
statute which is particular, even though the provisions of one be different from the other. (Rymer vs.
Luzerne County, 12 L. R. A., 192; Petri vs. F. E. Creelman Lumber Co., 199 U. S., 487; 50 L. ed.,
281.)
Wherever there is a particular enactment and a general enactment in the same statute, and the latter,
taken in its most comprehensive sense, would overrule the former, the particular enactment must be
operative, and the general enactment must be taken to affect only the other parts of the statute to
which it may properly apply. (Sir John Romilly, Master of the Rolls, in Pretty vs. Solly, 26 Beav., 606,
610.)
The additional words of qualification needed to harmonize a general and a prior special provision in the
same statute should be added to the general provision, rather than to the special one. (Rodgers vs.
United States, 185 U. S., 82; 46 L. ed., 816.)
Specific legislation upon a particular subject is not affected by a general law upon the same subject
unless it clearly appears that the provision of the two laws are so repugnant that the legislature must
have intended by the later to modify or repeal the earlier legislation. The special act and the general
law must stand together, the one as the law of the particular subject and the other as the general law
of the land. (Ex Parte United States, 226 U. S., 420; 57 L. ed., 281; Ex Parte Crow Dog, 109 U. S.,
556; 27 L. ed., 1030; Partee vs. St. Louis & S. F. R. Co., 204 Fed. Rep., 970.)
Where there are two acts or provisions, one of which is special and particular, and certainly includes
the matter in question, and the other general, which, if standing alone, would include the same matter
and thus conflict with the special act or provision, the special must be taken as intended to constitute
an exception to the general act or provision, especially when such general and special acts or
provisions are contemporaneous, as the Legislature is not to be presumed to have intended a conflict.
(Crane vs. Reeder and Reeder, 22 Mich., 322, 334; University of Utah vs. Richards, 77 Am. St. Rep.,
928.)
It is well settled that repeals by implication are not to be favored. And where two statutes cover, in
whole or in part, the same matter, and are not absolutely irreconcilable, the duty of the court no
purpose to repeal being clearly expressed or indicated is, if possible, to give effect to both. In other
words, it must not be supposed that the Legislature intended by a latter statute to repeal a prior one
on the same subject, unless the last statute is so broad in its terms and so clear and explicit in its
words as to show that it was intended to cover the whole subject, and therefore to displace the prior
statute. (Frost vs. Wenie, 157 U. S., 46; 39 L. ed., 614, 619.)
As stated in the pages of the two most authoritative legal encyclopedias, the rule is that a prior
legislative act will not be impliedly repealed by a later act unless there is a plain, unavoidable and
irreconcilable repugnancy between the two. If both acts can by any reasonable construction stand
together, both will be sustained. (36 Cyc., 1074- 1076; 26 Am. & Eng. Encyc. Law, 2d ed., 725-726.)
A masterly analysis of the decisions of the United States Courts pertinent to the matter now in hand
will be found in the monographic article on Statutes and Statutory Construction, written by Chas. C.
Moore and prefixed as a General Introduction to Federal Statutes Annotated. The discussion there
given is too lengthy to be here reproduced in full, but some of the observations of the learned author
are so appropriate to the case before us that we cannot forego the temptation to include the same in
this opinion. Says the writer: The various provisions of an act should be read so that all may, if
possible, have their due and conjoint effect without repugnancy or inconsistency. The sections of a
code relative to any subject must be harmonized and to that end the letter of any section may
sometimes be disregarded. But where absolute harmony between parts of a statute is demonstrably
non-existent, the court must reject that one which is least in accord with the general plan of the
whole, or if there be no such ground for choice between inharmonious section, the later section being
the last expression of the legislative mind must, in construction, vacate the former to the extent of the
repugnancy. (1 Fed. Stat. Ann., 2d ed., 49-50.)
And speaking with reference to the rule by which special provisions are held to dominate over general
provisions in the same or later laws, the author proceeds: it is an old and familiar rule, said Mr.
Justice Lamar, that where there is in the same statute a particular enactment, and also a general one,
which in its most comprehensive sense would include what is embraced in the former, the particular
enactment must be operative, and the general enactment must be taken to affect only such cases
within its general language as are not within the provisions of the particular enactment. And the
Justice proceeded to apply that rule in the construction of a statute upon which there had been much
ingenious argument and a decided conflict of authority in the inferior federal courts. The stature was
an act of Congress of 1876, declaring nonmailable every obscene . . . book, pamphlet, paper, writing,
print, or other publication of an indecent character, and other enumerated articles, and making it a
misdemeanor to deposit any of them for mailing. In a prosecution under the act, the Circuit Court
certified to the Supreme Court the following question: Is the knowingly depositing in the mails of an
obscene letter, inclosed in an envelope or wrapper upon which there is nothing but the name and
address of the person to whom the letter is written, an offense within the act? On behalf of the
government it was contended that the word writing comprehended such a letter, but the Supreme
Court held otherwise. In the course of his argument in support of the view of the court, Justice Lamar
pointed out that the statute, after enumeration what articles shall be nonmailable, adds a separate
and distinct clause declaring that every letter upon the envelope of which . . . indecent, lewd,
obscene, or lascivious delineations, epithets, terms, or language may be written or printed . . . shall
not be conveyed in the mails, and the person knowingly or willfully depositing the same in the mails
shall be deemed guilty of a misdemeanor, etc. This distinctly additional clause, continued the
Justice, specifically designating and describing the particular class of letters which shall be
nonmailable, clearly limits the inhibitions of the statute to that class of letters alone whose indecent
matter is exposed on the envelope. (1 Fed. Stat. Ann., 2d ed., 50-51; also at pp. 164-166.)
The cases relating to the subject of repeal by implication all proceed on the assumption that if the act
of latter date clearly reveals an intention on the part of the lawmaking power to abrogate the prior
law, this intention must be given effect; but there must always be a sufficient revelation of this
intention, and it has become an unbending rule of statutory construction that the intention to repeal a
former law will not be imputed to the Legislature when it appears that the two statute, or provisions,
with reference to which the question arises bear to each other the relation of general to special. It is
therefore idle to speculate whether in the case before us the Philippine Legislature may or may not
have intended to modify or abrogate section 1770 of the Administrative Code at the time the
amendment to section 1762 was enacted, for if any such intention was entertained, it was not
revealed in a way that would justify a court in giving this intention effect. We may add, however, that,
in the opinion of the majority of the Justices participating in this decision, the Legislature in amending
section 1762 could not possibly have entertained a design to modify section 1770; for, as we have
already shown, the abrogation of that provision, even as regards draft animals alone, would leave the
animal industry of the Islands exposed to the danger incident to the unrestricted importation of
infected animals from districts where rinderpest prevails. The unreasonableness of this interpretation
of the amendatory law alone supplies sufficient warrant for rejecting it. The Legislature could not
possibly have intended to destroy the effectiveness of quarantine as regards imported animals.
Our conclusion then is that section 1770 of the Administrative Code remains in full force; and the
determination of this question is we think necessarily fatal to the petitioners case.
It is insisted, however, that even supposing section 1770 of the Administrative Code to be in force,
nevertheless, the requirement of immunization at the port of embarcation is unreasonable, inasmuch
as the immunization of the cattle at that port, under the supervision of the Government veterinarians
of French Indo-China, is not unconditionally accepted as efficacious by the Philippine authorities, as
shown by the fact that the latter further require tests to be made upon the arrival of the cattle here,
consisting of inoculation with virulent blood of animals suffering from rinderpest which involves
additional expenses and exposes the importer to the loss of his entire herd.
Considerations of this nature are we think more proper to be addressed to the authorities responsible
for the regulations than to this court. About the principal fact that rinderpest exists in the regions
referred to in Department Order No. 6, there is, and can be no dispute; and when the Department
Head declared that the disease prevails in those regions and that there is danger of spreading it by the
importation of cattle and carabao into this country, he was acting upon a matter within his province,
and we are not disposed to review the conclusion.
It has been suggested that the regulative power vested in the Director of Agriculture under section
1770 of the Administrative Code with respect to the admission of cattle into the Philippine Islands
attaches only when the importation has been effected; and that the said Director has no authority to
dictate the measures to be taken by the importer before the cattle are embarked for transportation to
these Islands. This contention, in our opinion, reflects a mistaken point of view with reference to the
effect of the regulations; and the answer is to be found in the consideration that the regulation in
question has prospective reference to the condition of the cattle upon their arrival here. In other
words, the prior immunization of the cattle is made a condition precedent to the right to bring them
in; as much as to say, that only animals conforming to the required type will be admitted. The
importer is thus left at entire liberty in respect to the taking of the necessary measures to gain
admittance for his cattle in our ports; and if he fails to do so, the penalty merely is that the cattle are
not admitted.
Upon the whole we are of the opinion that the petition does not show sufficient ground for granting
the writs of mandamus and injunction. The demurrer interposed thereto by the respondents in their
return to the order to show cause, dated October 7, 1922, is therefore sustained, and the temporary
restraining order heretofore promulgated in this cause, dated September 21, 1922, is dissolved; and
unless within five days after notification hereof the petitioner shall so amend his petition as to show a
sufficient cause of action, an order absolute will be entered, dismissing the same, with costs. So
ordered.
Malcolm, Avancea, Villamor, and Ostrand, JJ., concur.
Separate Opinions
JOHNS, J ., dissenting:
The question involved is the meaning and construction of Act No. 3052 of the Legislature at its special
session approved March 14, 1922, as it amends section 1762 of Act No. 2711, and to what extent, if
any, it repeals or modifies section 1770 of Act No. 2711.
It will be noted that section 1 of Act No. 3052 reads as follows:
Section seventeen hundred and sixty-two of Act Numbered Twenty-seven hundred and eleven, known
as the Administrative Code, is hereby amended to read as follows:
Hence, Act No. 3052 becomes, and is, a complete substitute for section 1762 of Act No. 2711, which
reads as follows:
SEC. 1762. Bringing of diseased animal into Islands forbidden. Except upon permission of the Director of Agriculture, with the
approval of the head of Department first had, it shall be unlawful for any person knowingly to ship or otherwise bring into the
Philippine Islands any animal suffering from, infected with, or dead of any dangerous communicable disease, or any effects
pertaining to such animal which are liable to introduce such disease into the Philippine Islands.
Any such animal or its effects may be permitted by the Director of Agriculture, with the approval of the head of Department first
had, to enter the Islands under such conditions as to quarantine, cremation, or other disposal as he may direct, or which shall be
deemed by him sufficient to prevent the spread of any such disease.
As amended by Act No. 3052, section 1762 reads as follows:
SEC. 1762. Bringing of animals imported from foreign countries into the Philippine Islands. It shall be unlawful for any person
or corporation to import, bring or introduce live cattle into the Philippine Islands from any foreign country. The Director of
Agriculture may, with the approval of the head of the department first had, authorize the importation, bringing or introduction of
various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these Islands, and such
as may be necessary for the improvement of the breed, not to exceed five hundred head per annum: Provided, however, That the
Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine cattle for the
manufacture of serum: Provided, further, That all live cattle from foreign countries the importation, bringing or introduction of
which into the Islands is authorized by this Act, shall be submitted to regulations issued by the Director of Agriculture, with the
approval of the head of the department, prior to authorizing its transfer to other provinces.
At the time of the approval of this Act, the Governor-General shall issue regulations and others to provide against a raising of
the price of both fresh and refrigerated meat. The Governor-General also may, by executive order, suspend this prohibition for a
fixed period in case local conditions require it.
It was approved March 14, 1922.
It will be noted that the original Act was entitled:
Bringing of diseased animal into Islands forbidden.
And that, as amended by Act No. 3052, it is now entitled:
Bringing of animals imported from foreign countries into the Philippine Islands.
Of course, it must follow that any animal imported into the Philippine Islands must be brought here
from a foreign country within the meaning of either Act. It will be noted that the word diseased, as
found in the title of the original Act, is not found in the title of the Act as amended. To my mind this is
important, especially in view of the language used in the amended Act, which reads:
It shall be unlawful for any person or corporation to import, bring or introduce live cattle into the Philippine Islands from any
foreign country.
Standing alone that language would be construed as an express prohibition against bringing cattle of
any kind into the Philippine Islands from any foreign country. The Act then says:
The Director of Agriculture may, with the approval of the head of the department first had, authorized the importation, bringing
or introduction of various classes of thoroughbred cattle from foreign countries for breeding the same to the native cattle of these
Islands, and such as may be necessary for the improvement of the breed, not to exceed five hundred head per annum.
By those provisions the Director of Agriculture, with the approval of the head of the department first
had and obtained, may authorize the importation of thoroughbred cattle for breeding purposes not to
exceed five hundred head per annum. To import such cattle, the shipper must obtain the consent of
the Director of Agriculture, together with the approval of the head of the department, and it must
appear that the cattle are thoroughbred cattle from foreign countries for breeding the same to the
native cattle of these Islands, and that they are of the kind which will improve the breed of the native
cattle, and the number must not exceed five hundred head per annum. That is to say, by the express
terms of the Act, thoroughbred cattle cannot be imported without the express consent and approval of
the Director of Agriculture and the head of his department, and then only for specific purposes, and
then in a limited quantity. Such provision will not admit of any other construction. Bearing those
provisions and such construction in mind, the Act further says:
Provided, however, That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft
cattle and bovine cattle for the manufacture of serum.
Under the former provision of the Act thoroughbred cattle cannot be imported without the consent of
the Director of Agriculture, without the approval of the head of the department first had. But as to
draft cattle and bovine cattle, the Act expressly provides:
That the Director of Agriculture shall in all cases permit the importation.
That is to say, as to thoroughbred cattle, he may or may not grant the permit, and then only in a
limited number. But as to draft cattle and bovine cattle for the manufacture of serum, he shall in all
cases permit the importation. As to such cattle it is not a matter of his choice or discretion. But the
majority opinion holds that he is given that power and discretion under section 1770 of Act No. 2711,
which reads as follows:
SEC. 1770. Prohibition against bringing of animals from infected foreign countries. When the Department Head shall be
general order that a dangerous communicable animal disease prevails in any foreign country, port, or place and that there is
danger of spreading such disease by the importation of domestic animals therefrom, it shall be unlawful for any person
knowingly to ship or bring into the Philippine Islands any such animal, animal effects, parts, or products from such place, unless
the importation thereof shall be authorized under the regulations of the Bureau of Agriculture.
It will be noted that section 1770 was enacted in 1917, and that Act No. 3052 was enacted March 14,
1922, five years after section 1770 became a law. It will also be noted that the rules and regulation
here sought to be enforced were promulgated in July, 1922, under section 1770, and four months
after Act No. 3052 became a law. That is to say, that here you have rules and regulations of a
subordinate department promulgated in July, 1922, that are in dire0ct conflict with an Act of the
Legislature approved March, 1922. But it is contended that one is a special and the other a general
law, and that the two Acts should be construed in pari materia. The construction overlooks the fact that
the force and effect of section 1770 of Act No 2711 is founded upon section 1762, and that both are
sections of the same general Act, and that when section 1762 is repealed, as it is, by Act No. 3052, in
so far as it applies to draft and bovine cattle, there is nothing left upon which section 1770 can
operate or to which it would apply. That is to say, that section 1762 and section 1770 are both
sections of a general Act, and part of one and the same Act, and Act No. 3052 expressly repeals
section 1762, and by doing so it repeals section 1770, in so far as it applies to draft and bovine cattle
for the manufacture of serum.
For illustration: Suppose that section 1762 had never been amended by Act No. 3052, and that the
Legislature enacted a law expressly repealing the whole section, how then would section 1770
operate, and to what would it apply, and how and where would it be in force and effect? There would
be nothing to which it could apply. Section 1770 is absolutely dependent upon section 1762, without
which it cannot be of any force or effect. Both of them are sections of the same general law, and one
is dependent upon the other, hence, when you amend or repeal section 1762, you modify or repeal
section 1770, in so far as it relates to, or is a part of, section 1762.
Section 1770 is entitled:
Prohibition against bringing of animals from infected foreign countries.
Section 1762, as amended by Act No. 3052, is entitled:
Bringing of animals imported from foreign countries into the Philippine Islands.
Section 1762, as amended, recites:
That the Director of Agriculture shall in all cases permit the importation, etc.
The word importation has a well-defined meaning, and must have been used with reference to its
legal meaning.
Words and Phrases, volume IV, page 3438, says:
The literal meaning of importation is to bring in with intent to land. It means a bringing into some port, harbor, or haven,
with an intent to land the goods there. It takes place when the vessel arrives at a port of entry, intending there to discharge her
cargo. (Kidd vs. Flagler [U.S.], 54 Fed., 367, 369; The Mary [U.S.], 16 Fed. Cas., 932, 933.)
Importation is not the making entry of goods at the customhouse, but merely the bringing them into
port; and the importation is complete before entry at the customhouse. (United States vs. Lyman
[U.S.], 26 Fed. Cas., 1024, 1028; Perots vs. United States, 19 Fed. Cas., 258.)
Act Cong. July 1, 1812, c. 112, providing a double duty on all goods, wares, and merchandise
imported into the United States from and after the passage of the acts, means not only that there
shall be an arrival within the limits of the United States and of a collection district, but also within the
limits of some port of entry. (Arnold vs. United States, 13 U. S. [9 Cranch], 104, 120; 3 L. ed., 671.)
An article is not imported from a foreign country, within the meaning of the tariff laws, until it actually
arrives at a port of entry of the United States, and the importation is governed by the law in force at
the time of such arrival; and hence under the Treaty of Paris, by which Spain ceded the Philippine
Islands to the United States, and which took effect by the exchange of ratification and the presidents
proclamation on April 1, 1899, which repealed the existing tariff duties on goods brought from those
islands, the goods, arriving at a port of entry of the United States from Philippine ports after its taking
effect, were not subject to duty, although they were shipped before April 11th. (American Sugar
Refining Co. vs. Bidwell [U.S.], 124 Fed., 677, 681.)
Applying this definition, the legislative Act says:
That the Director of Agriculture shall in all cases permit the importation, etc.
Giving to the word importation, as used in the Act, its legal meaning, it is the express duty of the
Director of Agriculture to permit the bringing or introduction of draft cattle and bovine cattle with the
ports and harbors of the Philippine Islands when they are brought here with intent to land. That is the
definition given to the word importation by both the Federal and the Supreme Courts of the United
State. That is to say, that in all cases it is the express duty of the Director of Agriculture to permit the
bringing or introduction of draft cattle and bovine cattle for the manufacture of serum within the
jurisdiction, ports and harbors of the Philippine Islands. If that part of Act No. 3052 does not mean
what it says, it does not mean anything. Again, it must be conceded that the Legislature of the
Philippine Islands has no authority to make or enforce any law beyond its jurisdiction, and that it
never intended to do so.
As the majority opinion states, the case is submitted to the court on the demurrer of the defendants
to the complaint. Hence, all of the material allegations of the complaint are admitted.
The defendants rely upon Department Order No. 6, as follows:
DEPARTMENT ORDERNO. 6.}
Series of 1922.}
Owing to the fact that a dangerous communicable disease known as rinderpest exist in Hongkong, French Indo-China and
British India, it is hereby declared, in accordance with the provisions of section 1770 of Act No. 2711 (Administrative Code of
the Philippine Islands of 1917), that rinderpest prevails in said countries, and as there is danger of spreading such disease by the
importation of cattle, carabaos, and pigs therefrom, it shall be unlawful for any person knowingly to ship or bring into the
Philippine Islands any such animal, animal effects, parts, or products from Hongkong, French Indo-China and British India,
unless the importation thereof shall be authorized under the regulations of the Bureau of Agriculture.
The provisions of this order shall take effect on and after August 1, 1922.
And Administrative Order No. 21, as follows:
ADMINISTRATIVE ORDERNO. 21.}
}
Re importation of cattle, carabaos, and pigs from French Indo-China, Hongkong and India.
1. Pursuant to the provisions of Department Order No. 6, series of 1922, of the Department of Agriculture and Natural
Resources, the present regulations of the Bureau of Agriculture governing the importation of livestock from French Indo-China
and Hongkong are hereby amended to the effect that the importation of livestock of the species named in the aforementioned
Department Order is hereby prohibited from French Indo-China, Hongkong and India. However, animals immunized against
rinderpest, for which the importer before placing his order shall have obtained from the Director of Agriculture a written permit
to import them from the above named countries, may be allowed entrance into the Philippine Islands.
2. This order shall take effect on and after August 1, 1922.
Hence, you have this situation. You have an Act of the Legislature which says:
That the Director of Agriculture shall in all cases permit the importation, bringing or introduction of draft cattle and bovine
cattle for the manufacture of serum, passed by the Legislature in March, 1922, and you have rules and regulations of a
subordinate department of the Government which absolutely prohibits the importation of draft cattle and bovine cattle for the
manufacture of serum, unless the importation thereof shall be authorized under the regulations of the Bureau of Agriculture,
and that the importation of livestock of the species named in the aforementioned Department Order is hereby prohibited from
French Indo-China, Hongkong and India, and where the important, before placing his order in a foreign country, shall obtain a
written permit from the Director of Agriculture, and then he may be allowed to import cattle into the Philippine Islands.
The question is thus squarely presented whether the rules and regulations of a subordinate
department can overthrow and destroy the express provisions of a legislative Act. It will be noted that
Act No. 3052 expressly provides that with certain limitations and reservations, and with the consent
and approval of the Director of Agriculture and the head of the department, thoroughbred cattle may
be brought into the Islands in limited number for certain purposes. There are no such restriction or
limitations for the bringing in or introduction of draft and bovine cattle. Under that provision, the
Legislature has said in express terms that the Director of Agriculture shall grant the permit in all
cases. If it had been the purpose and intent of the Legislature to place any restrictions or limitations
upon the importation, bringing or introduction of draft cattle and bovine cattle for the manufacture of
serum, it would have said so, as it did in the previous provision of the Act for the importation of
thoroughbred cattle. But it is contended that, notwithstanding Act No. 3052, section 1770 is not
repealed and remains in full force and effect.
Upon the question of where and how a statute is repealed, Lewis Sutherland Statutory Construction is
a recognized as standard authority in all the courts. In section 247 (vol. I), the author says:
. . . therefore, the former law is constructively repealed, since it cannot be supposed that the law-making power intends to enact
or continue in force laws which are contradictions. The repugnancy being ascertained, the later act or provision in date or
position has full force, and displace by repeal whatever in the precedent law is inconsistent with it.
Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such
repeal or not. In the nature of things it would be so, not only on the theory of intention, but because
contradictions cannot stand together.
Where the later or revising statute clearly covers the whole subject-matter of antecedent acts, and it plainly appears to have
been the purpose of the legislature to give expression in it to the whole law on the subject, the latter is held to be replaced by
necessary implication.
An affirmative enactment of a new rule implies a negative of whatever is not included, or is different;
and if by the language used a thing is limited to be done is a particular form or manner, it includes a
negative that it shall not be done otherwise. An intention will not be ascribed to the law-making power
to establish conflict and hostile systems upon the same subject, or to leave in force provisions of law
by which the later will of the legislature may be thwarted and overthrown. Such a result would render
legislation a useless and idle ceremony, and subject the law to the reproach of uncertainly and
unintelligibility. (Sec. 249.)
Where a later act grants to an officer or tribunal a part of a larger power already possessed, and in
terms which interpreted by themselves import a grant of all the power the grantee is intended to
exercise, it repeals the prior act from which the larger power had been derived. (Sec. 250.)
In the leading case of Gorham vs. Luckett (6 B. Mon., 146), Marshall, J., says:
This is not a case of the re-enactment of a former law in the same words, or with additional provisions, nor of a regrant of a pre-
existing power to the same or a greater extent. It is not a case of cumulative or additional power or right or remedy. Nor does it
come within the rule that a subsequent affirmative statute does not repeal a previous one, which can only apply where both
statute can have effect. This is a formal and express grant of limited power to a depository which already had unlimited power.
And it can have no effect, nor be ascribed to any other purpose, but that of limiting the extent of the pre-existing power. If certain
provisions of two statutes are identical, the last need not be construed as repealing, but merely as continuing or re-affirming, the
first, for which there might be various reasons. So, if a statute give a remedy, or provide that certain acts shall be sufficient for
the attainment or security of certain objects, and a subsequent statute declare that a part of the same remedy or some of the same
acts, or other acts entirely different, shall suffice for the accomplishment of the same object, here the latter act does not
necessarily repeal the former, except so far as it may be expressed or implied in the former that the end shall be attained by no
other mode but that which it prescribes. If there be no such restriction in the first, there is no conflict between them. Both may
stand together with full effect, and the provisions of either may be pursued.
But if a subsequent statute requires the same, and also more than a former statute had made
sufficient, this is in effect a repeal of so much of the former statute as declares the sufficient of what it
prescribes. And if the last act professes, or manifestly intends to regulate the whole subject to which it
relates, it necessary supersedes and repeals all former acts, so far as it differs from them in its
prescriptions. The great object, then is, to ascertain the true interpretation of the last act. That being
ascertained, the necessary consequence is, that the legislative intention thus decided from, it must
prevail over any prior inconsistent intention to be deduced from a previous act.
. . . The difficulty, or rather the embarrassment in the case, arises from the fact that a previous law had given to the same grantee
unlimited power on the same subject, and that this twentieth section makes no reference to the previous law, and contains no
express words or restriction or change, but granting an express and limited power, is framed as if it were the first and only act on
the subject. But do not these circumstance indicate that it is to be construed as if it were the only act on the subject? Or shall the
first act, which is inferior in authority so far as they conflict, so far affect the construction of the last, as to deprive it of all effect?
We say the last act must have effect according to its terms and its obvious intent. And as both cannot have full operation
according to their terms and intent, the first and not the last act must yield.
Section 1770 was enacted in 1917, and Act No. 3052 in 1922, five years later, and the rules and
regulations sought to be enforced are founded upon section 1770 and were promulgated about five
months after Act No. 3052 became a law. The two sections are not only inconsistent, but there is a
direct conflict between them as to the importation of draft and bovine cattle, especially as to the
promulgated rules and regulations. The Legislature says that as to draft and bovine cattle, the permit
shall be granted in all cases, and defendants say that we will not grant the permit under any
circumstances, unless you comply with the rules and regulations that we have promulgated, which are
impossible of performance, and are in direct conflict with Act No. 3052 of the Legislature.
As Lewis Sutherland says:
. . . therefore, the former law is constructively repealed, since it cannot be supposed that the law-making power intends to enact
or continue in force laws which are contradictions. The repugnancy being ascertained, the later act or provision in date or
position has full force, and displaces by repeal whatever in the precedent law is inconsistent with it.
And
Subsequent legislation repeals previous inconsistent legislation whether it expressly declares such repeal or not. In the nature of
things it would be so, not only on the theory of intention, but because contradictions cannot stand together.
It must be conceded that any authority of the defendants to promulgated rules and regulations must
be found upon some legislative act, and that in the absence of legislative authority, the defendants
have no right or license to promulgate any rules and regulations for any purpose. Hence, you have
this situation; that the Legislature in positive and express language has said that the Director of
Agriculture shall in all cases permit the importation, bringing and introduction of draft cattle and
bovine cattle for the manufacture of serum, and the defendants have said that we will not comply
with the legislative act, you shall not import cattle until you comply with rules and regulations which
we have made and promulgated, which rules and regulations, in legal effect, absolutely prohibit the
importation of such cattle for any purpose.
It is not for this court to legislate or to say whether or not Act No. 3052 is a good law or a bad law.
Suffice it to say that it was enacted by the Legislative, which, to say the least, knows as much about
the cattle business in the Philippine Islands as do the members of this court.
In its petition, the plaintiff offers to comply with all the port, harbor and quarantine rules and
regulations of the Philippine Islands. But it is contended that they are not sufficient to prevent the
spread of disease among the cattle. If not, they should be amended, and other and more strict
quarantine regulations within the Philippine Islands should be adopted, and the Legislature has the
power to absolutely prohibited the importation of cattle into the Islands for any and all purposes,
which it did in Act No. 3052, except as to certain limitations and provisions, among which are that in
all cases the Director of Agriculture shall permit the importation, bringing and introduction of draft
cattle and bovine cattle for the manufacture of serum.
Under the facts alleged, the petitioner has brought itself squarely within those provisions and the
Director of Agriculture has denied him the permit which the Legislature says he must grant, and has
imposed upon it the performance of impossible rules and regulations as a condition precedent to the
granting of the permit.
Under the majority opinion, as to the importation of draft and bovine cattle, we have a government of
rules and regulations promulgated by a subordinate of the government which are in direct conflict with
the legislative Act.
By the majority opinion all that portion of Act No. 3052, which says that the Director of Agriculture
shall in all cases permit the importation, etc., becomes a nullity and is overruled by a subordinate
branch of the Government. In legal effect, it holds that, in so far as there is a conflict between them,
the provisions of section 1770 must prevail over the provisions of Act No. 3052. That is not good law.
In so far as there is a conflict, Act No. 3052 should be construed as repealing section 1770, for the
simple reason that Act No. 3052 became a law about five years after section 1770.
The majority opinion violates every canon of statutory construction. For such reasons, with all due
respect to it, I vigorously dissent.
Araullo, C. J., and Romualdez, J., concur.
G.R. No. L-39990 July 22, 1975
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAFAEL LICERA, defendant-appellant.
Office of the Solicitor General Felix Q. Antonio, Assistant Solicitor General Crispin V. Bautista and
Solicitor Pedro A. Ramirez for plaintiff-appellee.
Romeo Mercado (as Counsel de Oficio) for defendant-appellant.

CASTRO, J .:
This is an appeal, on a question of law, by Rafael Licera from the judgment dated August 14, 1968
of the Court of First Instance of Occidental Mindoro convicting him of the crime of illegal possession
of firearm and sentencing him to imprisonment of five (5) years. We reverse the judgment of
conviction, for the reasons hereunder stated.
On December 3, 1965 the Chief of Police of Abra de Ilog, Occidental Mindoro, filed a complaint,
subscribed and sworn to by him, with the municipal court of the said municipality, charging Rafael
Licera with illegal possession of a Winchester rifle, Model 55, Caliber .30. On August 13, 1966 the
municipal court rendered judgment finding Licera guilty of the crime charged, sentencing him to
suffer an indeterminate penalty ranging five years and one day to six years and eight months of
imprisonment. Licera appealed to the Court of First Instance of Occidental Mindoro.
In the Court of First Instance, the parties agreed to the joint trial of the case for illegal possession of
firearm and another case, likewise filed against Licera with the municipal court but already forwarded
to the said Court of First Instance, for assault upon an agent of a person in authority, the two
offenses having arisen from the same occasion: apprehension of Licera by the Chief of Police and a
patrolman of Abra de Ilog on December 2, 1965 for possession of the Winchester rifle without the
requisite license or permit therefor.
On August 14, 1968 the court a quo rendered judgment acquitting Licera of the charge of assault
upon an agent of a person in authority, but convicting him of illegal possession of firearm, sentencing
him to suffer five years of imprisonment, and ordering the forfeiture of the Winchester rifle in favor of
the Government.
Licera's appeal to the Court of Appeals was certified on October 16, 1974 to this Court as involving
only one question of law.
Licera invokes as his legal justification for his possession of the Winschester rifle his appointment as
secret agent on December 11, 1961 by Governor Feliciano Leviste of Batangas. He claims that as
secret agent, he was a "peace officer" and, thus, pursuant to People vs. Macarandang,
1
was exempt
from the requirements relating to the issuance of license to possess firearms. He alleges that the
court a quo erred in relying on the later case ofPeople vs. Mapa
2
which held that section 879 of the
Revised Administrative Code provides no exemption for persons appointed as secret agents by
provincial governors from the requirements relating to firearm licenses.
The principal question thus posed calls for a determination of the rule that should be applied to the
case at bar that enunciated in Macarandang or that in Mapa.
The appointment given to Licera by Governor Leviste which bears the date "December 11, 1961"
includes a grant of authority to Licera to possess the Winchester rifle in these terms: "In accordance
with the decision of the Supreme Court in G.R. No. L-12088 dated December 23, 1959, you will have
the right to bear a firearm ... for use in connection with the performance of your duties." Under the
rule then prevailing, enunciated in Macarandang,
3
the appointment of a civilian as a "secret agent to
assist in the maintenance of peace and order campaigns and detection of crimes sufficiently put[s]
him within the category of a "peace officer" equivalent even to a member of the municipal police"
whom section 879 of the Revised Administrative Code exempts from the requirements relating to
firearm licenses.
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying or interpreting
the laws or the Constitution form part of this jurisdiction's legal system. These decisions, although in
themselves not laws, constitute evidence of what the laws mean. The application or interpretation
placed by the Court upon a law is part of the law as of the date of the enactment of the said law
since the Court's application or interpretation merely establishes the contemporaneous legislative
intent that the construed law purports to carry into effect.
4

At the time of Licera's designation as secret agent in 1961 and at the time of his apprehension for
possession of the Winchester rifle without the requisite license or permit therefor in 1965,
the Macarandang rule the Courts interpretation of section 879 of the Revised Administrative Code
- formed part of our jurisprudence and, hence, of this jurisdiction's legal system. Mapa revoked
the Macarandang precedent only in 1967. Certainly, where a new doctrine abrogates an old rule, the
new doctrine should operate respectively only and should not adversely affect those favored by the
old rule, especially those who relied thereon and acted on the faith thereof. This holds more
especially true in the application or interpretation of statutes in the field of penal law, for, in this area,
more than in any other, it is imperative that the punishability of an act be reasonably foreseen for the
guidance of society.
5

Pursuant to the Macarandang rule obtaining not only at the time of Licera's appointment as secret
agent, which appointment included a grant of authority to possess the Winchester rifle, but as well at
the time as of his apprehension, Licera incurred no criminal liability for possession of the said rifle,
notwithstanding his non-compliance with the legal requirements relating to firearm licenses.1wph 1. t
ACCORDINGLY, the judgment a quo is reversed, and Rafael Licera is hereby acquitted. Costs de
oficio.
Makasiar, Esguerra, Muoz Palma and Martin, JJ., concur.
Teehankee, J., is on leave.

Footnotes
1 L-12088, December 23, 1959, 106 Phil. 713.
2 L-22301, August 30, 1967, 20 SCRA 1164.
3 Vide People vs. Lucero, L-10845, April 28,1958, 103 Phil. 500.
4 People vs. Jabinal, L-30061, February 27, 1974, 55 SCRA 607. Vide Senarillos vs.
Hermosisima, L-10662, December 14, 1956, 100 Phil. 501.
5 People vs. Jabinal, ibid.
G.R. No. L-30061 February 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,
vs.
JOSE JABINAL Y CARMEN, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M. Martinez for plaintiff-
appellee.
Pedro Panganiban y Tolentino for defendant-appellant.

ANTONIO, J .:p
Appeal from the judgment of the Municipal Court of Batangas (provincial capital), Batangas, in
Criminal Case No. 889, finding the accused guilty of the crime of Illegal Possession of Firearm and
Ammunition and sentencing him to suffer an indeterminate penalty ranging from one (1) year and
one (1) day to two (2) years imprisonment, with the accessories provided by law, which raises in
issue the validity of his conviction based on a retroactive application of Our ruling in People v.
Mapa.
1

The complaint filed against the accused reads:
That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the
poblacion, Municipality of Batangas, Province of Batangas, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, a person not
authorized by law, did then and there wilfully, unlawfully and feloniously keep in his
possession, custody and direct control a revolver Cal. .22, RG8 German Made with
one (1) live ammunition and four (4) empty shells without first securing the necessary
permit or license to possess the same.
At the arraignment on September 11, 1964, the accused entered a plea of not guilty, after which trial
was accordingly held.
The accused admitted that on September 5, 1964, he was in possession of the revolver and the
ammunition described in the complaint, without the requisite license or permit. He, however, claimed
to be entitled to exoneration because, although he had no license or permit, he had an appointment
as Secret Agent from the Provincial Governor of Batangas and an appointment as Confidential
Agent from the PC Provincial Commander, and the said appointments expressly carried with them
the authority to possess and carry the firearm in question.
Indeed, the accused had appointments from the above-mentioned officials as claimed by him. His
appointment from Governor Feliciano Leviste, dated December 10, 1962, reads:
Reposing special trust and confidence in your civic spirit, and trusting that you will be
an effective agent in the detection of crimes and in the preservation of peace and
order in the province of Batangas, especially with respect to the suppression of
trafficking in explosives, jueteng, illegal cockfighting, cattle rustling, robbery and the
detection of unlicensed firearms, you are hereby appointed a SECRET AGENT of the
undersigned, the appointment to take effect immediately, or as soon as you have
qualified for the position. As such Secret Agent, your duties shall be those generally
of a peace officer and particularly to help in the preservation of peace and order in
this province and to make reports thereon to me once or twice a month. It should be
clearly understood that any abuse of authority on your part shall be considered
sufficient ground for the automatic cancellation of your appointment and immediate
separation from the service. In accordance with the decision of the Supreme Court in
G.R. No. L-12088 dated December 23, 1959, you will have the right to bear a
firearm, particularly described below, for use in connection with the performance of
your duties.
By virtue hereof, you may qualify and enter upon the performance of your duties by
taking your oath of office and filing the original thereof with us.
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FIREARM AUTHORIZED TO CARRY:
Kind: ROHM-Revolver
Make: German
SN: 64
Cal: .22
On March 15, 1964, the accused was also appointed by the PC Provincial Commander of Batangas
as Confidential Agent with duties to furnish information regarding smuggling activities, wanted
persons, loose firearms, subversives and other similar subjects that might affect the peace and order
condition in Batangas province, and in connection with these duties he was temporarily authorized to
possess a ROHM revolver, Cal. .22 RG-8 SN-64, for his personal protection while in the
performance of his duties.
The accused contended before the court a quo that in view of his above-mentioned appointments as
Secret Agent and Confidential Agent, with authority to possess the firearm subject matter of the
prosecution, he was entitled to acquittal on the basis of the Supreme Court's decision in People vs.
Macarandang
2
and People vs. Lucero.
3
The trial court, while conceding on the basis of the evidence
of record the accused had really been appointed Secret Agent and Confidential Agent by the
Provincial Governor and the PC Provincial Commander of Batangas, respectively, with authority to
possess and carry the firearm described in the complaint, nevertheless held the accused in its
decision dated December 27, 1968, criminally liable for illegal possession of a firearm and
ammunition on the ground that the rulings of the Supreme Court in the cases
of Macarandang and Lucero were reversed and abandoned in People vs. Mapa, supra. The court
considered as mitigating circumstances the appointments of the accused as Secret Agent and
Confidential Agent.
Let us advert to Our decisions in People v. Macarandang, supra, People v. Lucero,
supra, and People v. Mapa, supra. In Macarandang, We reversed the trial court's judgment of
conviction against the accused because it was shown that at the time he was found to possess a
certain firearm and ammunition without license or permit, he had an appointment from the Provincial
Governor as Secret Agent to assist in the maintenance of peace and order and in the detection of
crimes, with authority to hold and carry the said firearm and ammunition. We therefore held that
while it is true that the Governor has no authority to issue any firearm license or permit,
nevertheless, section 879 of the Revised Administrative Code provides that "peace officers" are
exempted from the requirements relating to the issuance of license to possess firearms; and
Macarandang's appointment as Secret Agent to assist in the maintenance of peace and order and
detection of crimes, sufficiently placed him in the category of a "peace officer" equivalent even to a
member of the municipal police who under section 879 of the Revised Administrative Code are
exempted from the requirements relating to the issuance of license to possess firearms. In Lucero,
We held that under the circumstances of the case, the granting of the temporary use of the firearm to
the accused was a necessary means to carry out the lawful purpose of the batallion commander to
effect the capture of a Huk leader. In Mapa, expressly abandoning the doctrine in Macarandang, and
by implication, that in Lucero, We sustained the judgment of conviction on the following ground:
The law is explicit that except as thereafter specifically allowed, "it shall be unlawful
for any person to ... possess any firearm, detached parts of firearms or ammunition
therefor, or any instrument or implement used or intended to be used in the
manufacture of firearms, parts of firearms, or ammunition." (Sec. 878, as amended
by Republic Act No. 4, Revised Administrative Code.) The next section provides that
"firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or
marines [of the Armed Forces of the Philippines], the Philippine Constabulary, guards
in the employment of the Bureau of Prisons, municipal police, provincial governors,
lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors,
and guards of provincial prisoners and jails," are not covered "when such firearms
are in possession of such officials and public servants for use in the performance of
their official duties." (Sec. 879, Revised Administrative Code.)
The law cannot be any clearer. No provision is made for a secret agent. As such he
is not exempt. ... .
It will be noted that when appellant was appointed Secret Agent by the Provincial Government in
1962, and Confidential Agent by the Provincial Commander in 1964, the prevailing doctrine on the
matter was that laid down by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our
decision in People v. Mapa reversing the aforesaid doctrine came only in 1967. The sole question in
this appeal is: Should appellant be acquitted on the basis of Our rulings in Macarandang and Lucero,
or should his conviction stand in view of the complete reversal of
the Macarandang and Lucero doctrine in Mapa? The Solicitor General is of the first view, and he
accordingly recommends reversal of the appealed judgment.
Decisions of this Court, although in themselves not laws, are nevertheless evidence of what the laws
mean, and this is the reason why under Article 8 of the New Civil Code "Judicial decisions applying
or interpreting the laws or the Constitution shall form a part of the legal system ... ." The
interpretation upon a law by this Court constitutes, in a way, a part of the law as of the date that law
originally passed, since this Court's construction merely establishes the contemporaneous legislative
intent that law thus construed intends to effectuate. The settled rule supported by numerous
authorities is a restatement of legal maxim "legis interpretatio legis vim obtinet" the interpretation
placed upon the written law by a competent court has the force of law. The doctrine laid down
in Lucero andMacarandang was part of the jurisprudence, hence of the law, of the land, at the time
appellant was found in possession of the firearm in question and when he arraigned by the trial
court. It is true that the doctrine was overruled in the Mapa case in 1967, but when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine should be applied prospectively,
and should not apply to parties who had relied on the old doctrine and acted on the faith thereof.
This is especially true in the construction and application of criminal laws, where it is necessary that
the punishability of an act be reasonably foreseen for the guidance of society.
It follows, therefore, that considering that appellant conferred his appointments as Secret Agent and
Confidential Agent and authorized to possess a firearm pursuant to the prevailing doctrine
enunciated in Macarandang andLucero, under which no criminal liability would attach to his
possession of said firearm in spite of the absence of a license and permit therefor, appellant must be
absolved. Certainly, appellant may not be punished for an act which at the time it was done was held
not to be punishable.
WHEREFORE, the judgment appealed from is hereby reversed, and appellant is acquitted, with
costs de oficio.
Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ., concur.
Fernando, J., took no part.

Footnotes
1 L-22301, August 30, 1967, 20 SCRA 1164.
2 106 Phil. (1959), 713.
3 103 Phil. (1958), 500.
A.M. No. 203-J November 18, 1975
THE SECRETARY OF JUSTICE, complainant,
vs.
JUDGE ALFREDO CATOLICO, respondent.
A.M. No. 625-CFI November 18, 1975
FERMINA OLAES, complainant,
vs.
JUDGE ALFREDO CATOLICO, respondent.

BARREDO, J .:
Two administrative complaints with four charges, the first three of them formulated by the Secretary
of Justice, against Judge Alfredo Catolico of Branch III of the Court of First Instance of Cavite
charging him with "serious misconduct and gross disregard of law." It may be mentioned at the
outset that the action taken by the Secretary of justice must have been caused by the following
portion of the decision of the Court in the case of People vs. Judge Alfredo Catolico, 38 SCRA 389:
11. In view of the rash and improper actuations of respondent judge, which could
have resulted in a serious miscarriage of justice, the Court has resolved that this
matter be brought to the attention of the Secretary of Justice for the initiation of
appropriate administrative action, as the facts and circumstances warrant. This is in
fact the third case involving respondent judge that has thus been resolved to be
officially brought to the Secretary's attention the two others being the contempt
proceedings in Barrera vs. Barrera, supra, and the prohibition proceedings in Queto
vs. Catolico. (31 SCRA 52 [Jan. 23, 1970.])
The first complaint arose out of the actuations in October of 1965 of respondent, then acting as
Judge of the Court of First Instance of Misamis Occidental, relative to the naturalization cases of
over fifty naturalized citizens wherein said respondent not only declared motu proprio, without any
corresponding petition of the Republic of the Philippines, null and void the oath taking of therein
petitioners, with the aggravating circumstance that, without priorly hearing the petitioner concerned,
"the respondent delivered in open court a lengthy dissertation reflecting on the honesty and integrity
of provincial and city fiscals appearing in naturalization cases, and venting his spleen particularly on
Chua Tuan, referred to him as a Chinese who had become a multi-millionaire by making over
shipments of copra, who was "untouchable because he could buy his way out in Malacaang, in the
Army, in the Foreign Affairs, in the Immigration, in the Bureau of Internal Revenue and in the Courts
of Justice," of which the respondent said he would take judicial notice. The respondent further
castigated Chua Tuan with the following epithets: "balasuba;" ingrate; "hambug;" animalistic; a
danger and a disgrace to the community; a dishonor to the Filipino people." (Pars. 5 & 6, p. 2 of
complaint.)
The second and third complaints relate to the insistence of respondent to consider himself as without
jurisdiction to continue trying every case, civil and criminal, which he found had not been tried for
more than thirty days since the respective previous hearings therein, for which reason, he ordered
their dismissal, with aggravating circumstance, that he refused to recognize not only the authority of
the Court to authorize the continuation of the corresponding proceedings but also the personality of
the Clerk of this Court to transmit to him the pertinent resolutions of the Court in the usual form in
which parties have always been notified in all cases of resolutions of the Court.
The fourth complaint was filed by the widow of the victim, Mrs. Fermina Olaes, in a case of homicide
in which the arraignment was held on October 3, 1973 and the hearings were set on October 15,
November 23 and 27, December 6, 12, 17, 18, 20, 21 and 26, 1973 and January 2, 3 and 4, 1974
and the decision acquitting the accused was promulgated by respondent on January 10, 1974, two
days before he reached the age of 70 years, the complainant charging that respondent hurried, in
preference to other cases in his sala which deserved earlier attention, the trial with the intention of
being able to finish and decide the same favorably to the accused before he (the judge) could retire,
with the aggravating circumstance that:
2. Respondent during the hearing of December 26, 1973 was so carried away by his
emotions that he was, for two hours, the one asking questions to the prosecution's
witness; and that in the process, respondent "bullied, ridiculed, frightened, threatened
(there was even an instance when the judge was banging the table with his own fist)
and humiliated the witness.
3. Respondent has the propensity to ridicule the witness manifested in his questions
regarding the illness of the witness when he asked the latter if he was examined by a
veterinarian.
4. Respondent tried the case with a "wrapped-up decision-that of acquittal
"manifested in his order dated December 26, 1973:
... and in order to disabuse any fear on the part of the prosecution for indeed the
prosecution always believes that anybody accused must have to be sentenced to die
if necessary and can not admit into their mind that there are doubt that may linger
longer in the mind of the Court and can not be explained by any amount of oral
testimony because the prosecution cannot present evidence enough for the
conviction of the accused beyond any doubt ... (Pars. 2 to 4, page 2 of Report.)
In his answers, respondent claims that all his impugned actuations were motivated by his desire to
comply with the rules and the law and, most of all, the best interests of justice which require the
speedy and expeditious disposition of cases. In regard to what he did in the naturalization cases
aforementioned, respondent avers that the rulings of this Court sustain him in his view that the
petitioners in the said cases had not validly become Filipino citizens because they had taken their
oaths of allegiance prematurely, and since this fact was evident in the record, he could act motu
proprio to require them to validate their said oaths. He denies having improperly castigated Chua
Tan. Anent the last complaint, respondent maintains he had nothing to do with the preparation of the
calendar and denies having been actuated any bias or prejudice either in his questioning of the
witnesses or in acquitting the accused. And as a general and fundamental defense, respondent
pleads that "if at all there was any error committed it is of the mind rather than of the heart".
For the obvious reason that all the facts involved in the first three complaints relate to matters of
record in the proceedings in this Court in which respondent had been duly heard, no further
administrative proceedings were held after respondent filed his answer. The fourth case was
referred to Justice Buenaventura de la Fuente of the Court of Appeals for appropriate investigation.
The report was submitted on August 1, 1975.
In connection with respondent's actuations involved in the first charge of the Secretary of Justice, the
Court has in a way already admonished respondent. In the decision in Queto vs. Catolico, 31 SCRA
52, Chief Justice Makalintal spoke for the Court thus:
Judges, in their zeal to uphold the law, should not lose the proper judicial
perspective, and should see to it that in the execution of their sworn duties they do
not overstep the limitations of their power as laid down by statute and by the rules of
procedure. If they arrogate unto themselves the authority allocated to other officials,
there can be no consequence but confusion in the administration of justice and, in
many instances, oppressive disregard of the basic requirements of due process.
With reference to the second and third charges of the Secretary, the Court has already reprimanded
respondent in its decision in Barrera vs. Barrera, 34 SCRA 98, and thru Justice Fernando, We
therein stated:
Given the opportunity to explain both in a memorandum and in oral argument, he
remained adamant and obdurate. It was apparent he was not averse to disciplinary
action being visited on his conduct. ...
What calls for disciplinary action is the recklessness with which respondent judge did
hurl the baseless allegation that the Clerk of this Court was permitted to exercise an
authority which appertained to the Chief Justice. He did speak with all the valor of
ignorance. Nor did he retreat from such an indefensible stand in the face of his being
informed that what the Clerk did was solely in accordance with what was previously
decided by this Court, which certainly will not tolerate, anybody else, much less a
subordinate, to speak and act for itself. This gross disrespect shown to this Court has
no justification. The misdeed of respondent judge is compounded by such an
accusation apparently arising from his adamantine conviction that a doctrine of this
Court that fails to meet his approval need not be applied ... "
In People vs. Catolico, 38 SCRA 389, Justice Teehankee added the following strictures:
9. Respondent judge's capricious dismissal of cases in his court in Cavite, based on
his own unique appreciation of the provisions of Rule 22, section 3 of the Revised
Rules of Court to the effect' that upon the lapse of three months from the first day of
trial on the merits, the trial judge lost control of the same, and may not continue trying
the same [when there is no written authority from the Chief Justice of the Supreme
Court] for the only thing possible to be done is to dismiss the case,' (Respondent
judge's comments to the contempt charge against him, notes in brackets supplied, in
Barrera vs. Barrera, 34 SCRA 98) notwithstanding his awareness of this Court's
contrary ruling in Barrueco, supra, was already noted by the Court in Barrera vs.
Barrera (Supra, fn. 17) decided on July 31, 1970. In said case, where respondent
judge was held in contempt of this court and reprimanded, he was reminded of his
duty to apply the law as interpreted by this Court "as the final arbiter of any justiciable
controversy' and of the great mischief and prejudice to the administration of justice,
and unnecessary inconvenience, delay and expenses to litigants, that would be
needlessly caused, should judges of lower courts dispose of cases in accordance
with their personal views contrary to the final authoritative pronouncements of this
Court. The Court has noted that the inconsistency of respondent judge's present
posture that he loses control of a case upon the lapse of three months from the first
day of trial on the merits and has only to dismiss the case was brought out at the
contempt hearing in said case when he admitted that he did not follow such a course
of action in the other trial courts presided by him, viz, the Courts of First Instance or
Misamis Occidental and of Ilocos Norte, prior to his appointment to the Cavite court.
10. In the same case of Barrera, this Court, per Mr. Justice Enrique M. Fernando,
already found respondent judge in contempt for recklessly "hurling the baseless
allegation that the Clerk of this Court was permitted to exercise an authority which
appertained to the Chief Justice. He did speak with all the valor of ignorance. Nor did
he retreat from such an indefensible stand in the face of his being informed that what
the Clerk did was solely in accordance with what was previously decided by this
Court, which certainly will not tolerate, anybody else, much less a subordinate, to
speak and act for itself. This gross disrespect shown to this Court has no
justification."
In his present order of denial of the People's motion for reconsideration, respondent
judge committed the same reckless act of making it appear in his Order that it was
the Clerk of this Court who "informs the presiding judge that he is extending authority
to continue hearing and trying, until finished all criminal cases pending ...,"
notwithstanding that the Clerk of this Court signed the communication expressly "By
authority of the Chief Justice.
Such action of respondent judge, aside from being grossly disrespectful of the Court,
exposes his lack of appreciation or disregard of the time-honored usage of the Court
that minute resolutions, summons and processes of the Court as well as official
actions of the Chief Justice, upon being duly adopted and recorded are transmitted to
the interested parties by and upon the signature of the Clerk of Court who is duly
authorized to do so. With the thousands of resolutions approved monthly by the
Court, it would unduly tax the time and attention of the Chief Justice and members of
the Court to the prejudice of the administration of justice if all such papers, other than
decisions, could be released only upon their own signatures. The situation is
analogous to administrative decisions signed by the Executive Secretary "by
authority of the President," which decisions are given full faith and credit by our
courts as decisions of the President, "unless disapproved or reprobated by the Chief
Executive." (Lacson-Magallanes Co., Inc. vs. Pao, 21 SCRA 895 [Nov. 17, 1967].).
Anent the fourth charge, the report of the investigator is to the effect that the actuations of
respondent complained of by Mrs. Olaes were not due to any improper or personal motive and were
just the result of the innocuous eccentricities and odd ways and ideas of respondent which could not
be categorized as serious misconduct nor deserving of any heavier sanction than admonition.
While the Court was awaiting said report, however, in a letter dated April 17, 1975, respondent
informed the Court that His Excellency, President Ferdinand E. Marcos had accepted his resignation
effective January 11, 1974, "without prejudice to his receiving whatever rights he may be entitled to
under the retirement and other existing laws." Premises considered, and in line with the established
policy regarding similar situations wherein the President has accepted resignations without prejudice
to the grant of legally possible retirement benefits thus rendering administrative cases pending
against the official concerned, moot and academic, the Court resolved to DISMISS above-entitled
cases.
Makalintal, Antonio, Esguerra, Aquino, Concepcion, Jr. and Martin, JJ., concur.
Fernando, J., concurs in the result.
Castro, Teehankee, Makasiar and Muoz Palma, JJ., took no part.
G.R. No. L-30642 April 30, 1985
PERFECTO S. FLORESCA, in his own behalf and on behalf of the minors ROMULO and
NESTOR S. FLORESCA; and ERLINDA FLORESCA-GABUYO, PEDRO S. FLORESCA, JR.,
CELSO S. FLORESCA, MELBA S. FLORESCA, JUDITH S. FLORESCA and CARMEN S.
FLORESCA;
LYDIA CARAMAT VDA. DE MARTINEZ in her own behalf and on behalf of her minor children
LINDA, ROMEO, ANTONIO JEAN and ELY, all surnamed Martinez; and DANIEL MARTINEZ
and TOMAS MARTINEZ;
SALUSTIANA ASPIRAS VDA. DE OBRA, in her own behalf and on behalf of her minor children
JOSE, ESTELA, JULITA SALUD and DANILO, all surnamed OBRA;
LYDIA CULBENGAN VDA. DE VILLAR, in her own behalf and on behalf of her minor children
EDNA, GEORGE and LARRY III, all surnamed VILLAR;
DOLORES LOLITA ADER VDA. DE LANUZA, in her own behalf and on behalf of her minor
children EDITHA, ELIZABETH, DIVINA, RAYMUNDO, NESTOR and AURELIO, JR. all surnamed
LANUZA;
EMERENCIANA JOSE VDA. DE ISLA, in her own behalf and on behalf of her minor children
JOSE, LORENZO, JR., MARIA, VENUS and FELIX, all surnamed ISLA, petitioners,
vs.
PHILEX MINING CORPORATION and HON. JESUS P. MORFE, Presiding Judge of Branch XIII,
Court of First Instance of Manila, respondents.
Rodolfo C. Pacampara for petitioners.
Tito M. Villaluna for respondents.

MAKASIAR, J .:
This is a petition to review the order of the former Court of First Instance of Manila, Branch XIII,
dated December 16, 1968 dismissing petitioners' complaint for damages on the ground of lack of
jurisdiction.
Petitioners are the heirs of the deceased employees of Philex Mining Corporation (hereinafter
referred to as Philex), who, while working at its copper mines underground operations at Tuba,
Benguet on June 28, 1967, died as a result of the cave-in that buried them in the tunnels of the
mine. Specifically, the complaint alleges that Philex, in violation of government rules and regulations,
negligently and deliberately failed to take the required precautions for the protection of the lives of its
men working underground. Portion of the complaint reads:
xxx xxx xxx
9. That for sometime prior and up to June 28,1967, the defendant PHILEX, with
gross and reckless negligence and imprudence and deliberate failure to take the
required precautions for the due protection of the lives of its men working
underground at the time, and in utter violation of the laws and the rules and
regulations duly promulgated by the Government pursuant thereto, allowed great
amount of water and mud to accumulate in an open pit area at the mine above Block
43-S-1 which seeped through and saturated the 600 ft. column of broken ore and
rock below it, thereby exerting tremendous pressure on the working spaces at its
4300 level, with the result that, on the said date, at about 4 o'clock in the afternoon,
with the collapse of all underground supports due to such enormous pressure,
approximately 500,000 cubic feet of broken ores rocks, mud and water, accompanied
by surface boulders, blasted through the tunnels and flowed out and filled in, in a
matter of approximately five (5) minutes, the underground workings, ripped timber
supports and carried off materials, machines and equipment which blocked all
avenues of exit, thereby trapping within its tunnels of all its men above referred to,
including those named in the next preceding paragraph, represented by the plaintiffs
herein;
10. That out of the 48 mine workers who were then working at defendant PHILEX's
mine on the said date, five (5) were able to escape from the terrifying holocaust; 22
were rescued within the next 7 days; and the rest, 21 in number, including those
referred to in paragraph 7 hereinabove, were left mercilessly to their fate,
notwithstanding the fact that up to then, a great many of them were still alive,
entombed in the tunnels of the mine, but were not rescued due to defendant
PHILEX's decision to abandon rescue operations, in utter disregard of its bounden
legal and moral duties in the premises;
xxx xxx xxx
13. That defendant PHILEX not only violated the law and the rules and regulations
duly promulgated by the duly constituted authorities as set out by the Special
Committee above referred to, in their Report of investigation, pages 7-13, Annex 'B'
hereof, but also failed completely to provide its men working underground the
necessary security for the protection of their lives notwithstanding the fact that it had
vast financial resources, it having made, during the year 1966 alone, a total operating
income of P 38,220,254.00, or net earnings, after taxes of P19,117,394.00, as per its
llth Annual Report for the year ended December 31, 1966, and with aggregate assets
totalling P 45,794,103.00 as of December 31, 1966;
xxx xxx xxx
(pp. 42-44, rec.)
A motion to dismiss dated May 14, 1968 was filed by Philex alleging that the causes of action of
petitioners based on an industrial accident are covered by the provisions of the Workmen's
Compensation Act (Act 3428, as amended by RA 772) and that the former Court of First Instance
has no jurisdiction over the case. Petitioners filed an opposition dated May 27, 1968 to the said
motion to dismiss claiming that the causes of action are not based on the provisions of the
Workmen's Compensation Act but on the provisions of the Civil Code allowing the award of actual,
moral and exemplary damages, particularly:
Art. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no pre- existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.
Art. 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-
delict.
(b) Art. 1173The fault or negligence of the obligor consists in the omission of that
diligence which is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. When negligence shows
bad faith, the provisions of Articles 1171 and 2201, paragraph 2 shall apply.
Art. 2201. x x x x x x x x x
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant
acted with gross negligence.
After a reply and a rejoinder thereto were filed, respondent Judge issued an order dated June 27,
1968 dismissing the case on the ground that it falls within the exclusive jurisdiction of the Workmen's
Compensation Commission. On petitioners' motion for reconsideration of the said order, respondent
Judge, on September 23, 1968, reconsidered and set aside his order of June 27, 1968 and allowed
Philex to file an answer to the complaint. Philex moved to reconsider the aforesaid order which was
opposed by petitioners.
On December 16, 1968, respondent Judge dismissed the case for lack of jurisdiction and ruled that
in accordance with the established jurisprudence, the Workmen's Compensation Commission has
exclusive original jurisdiction over damage or compensation claims for work-connected deaths or
injuries of workmen or employees, irrespective of whether or not the employer was negligent, adding
that if the employer's negligence results in work-connected deaths or injuries, the employer shall,
pursuant to Section 4-A of the Workmen's Compensation Act, pay additional compensation equal to
50% of the compensation fixed in the Act.
Petitioners thus filed the present petition.
In their brief, petitioners raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DISMISSING THE PLAINTIFFS- PETITIONERS'
COMPLAINT FOR LACK OF JURISDICTION.
II
THE LOWER COURT ERRED IN FAILING TO CONSIDER THE CLEAR
DISTINCTION BETWEEN CLAIMS FOR DAMAGES UNDER THE CIVIL CODE
AND CLAIMS FOR COMPENSATION UNDER THE WORKMEN'S
COMPENSATION ACT.
A
In the first assignment of error, petitioners argue that the lower court has jurisdiction over the cause
of action since the complaint is based on the provisions of the Civil Code on damages, particularly
Articles 2176, 2178, 1173, 2201 and 2231, and not on the provisions of the Workmen's
Compensation Act. They point out that the complaint alleges gross and brazen negligence on the
part of Philex in failing to take the necessary security for the protection of the lives of its employees
working underground. They also assert that since Philex opted to file a motion to dismiss in the
court a quo, the allegations in their complaint including those contained in the annexes are deemed
admitted.
In the second assignment of error, petitioners asseverate that respondent Judge failed to see the
distinction between the claims for compensation under the Workmen's Compensation Act and the
claims for damages based on gross negligence of Philex under the Civil Code. They point out that
workmen's compensation refers to liability for compensation for loss resulting from injury, disability or
death of the working man through industrial accident or disease, without regard to the fault or
negligence of the employer, while the claim for damages under the Civil Code which petitioners
pursued in the regular court, refers to the employer's liability for reckless and wanton negligence
resulting in the death of the employees and for which the regular court has jurisdiction to adjudicate
the same.
On the other hand, Philex asserts that work-connected injuries are compensable exclusively under
the provisions of Sections 5 and 46 of the Workmen's Compensation Act, which read:
SEC. 5. Exclusive right to compensation.The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury ...
SEC. 46. Jurisdiction. The Workmen's Compensation Commissioner shall have
exclusive jurisdiction to hear and decide claims for compensation under the
Workmen's Compensation Act, subject to appeal to the Supreme Court, ...
Philex cites the case of Manalo vs. Foster Wheeler (98 Phil. 855 [1956]) where it was held that "all
claims of workmen against their employer for damages due to accident suffered in the course of
employment shall be investigated and adjudicated by the Workmen's Compensation Commission,"
subject to appeal to the Supreme Court.
Philex maintains that the fact that an employer was negligent, does not remove the case from the
exclusive character of recoveries under the Workmen's Compensation Act; because Section 4-A of
the Act provides an additional compensation in case the employer fails to comply with the
requirements of safety as imposed by law to prevent accidents. In fact, it points out that Philex
voluntarily paid the compensation due the petitioners and all the payments have been accepted in
behalf of the deceased miners, except the heirs of Nazarito Floresca who insisted that they are
entitled to a greater amount of damages under the Civil Code.
In the hearing of this case, then Undersecretary of Labor Israel Bocobo, then Atty. Edgardo Angara,
now President of the University of the Philippines, Justice Manuel Lazaro, as corporate counsel and
Assistant General Manager of the GSIS Legal Affairs Department, and Commissioner on Elections,
formerly UP Law Center Director Froilan Bacungan, appeared as amici curiae and thereafter,
submitted their respective memoranda.
The issue to be resolved as WE stated in the resolution of November 26, 1976, is:
Whether the action of an injured employee or worker or that of his heirs in case of his
death under the Workmen's Compensation Act is exclusive, selective or cumulative,
that is to say, whether his or his heirs' action is exclusively restricted to seeking the
limited compensation provided under the Workmen's Compensation Act or whether
they have a right of selection or choice of action between availing of the worker's
right under the Workmen's Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and/or exemplary) from the
employer by virtue of negligence (or fault) of the employer or of his other employees
or whether they may avail cumulatively of both actions, i.e., collect the limited
compensation under the Workmen's Compensation Act and sue in addition for
damages in the regular courts.
There are divergent opinions in this case. Justice Lazaro is of the opinion that an injured employee
or worker, or the heirs in case of his death, may initiate a complaint to recover damages (not
compensation under the Workmen's Compensation Act) with the regular court on the basis of
negligence of an employer pursuant to the Civil Code provisions. Atty. Angara believes otherwise.
He submits that the remedy of an injured employee for work-connected injury or accident is
exclusive in accordance with Section 5 of the Workmen's Compensation Act, while Atty. Bacungan's
position is that the action is selective. He opines that the heirs of the employee in case of his death
have a right of choice to avail themselves of the benefits provided under the Workmen's
Compensation Act or to sue in the regular court under the Civil Code for higher damages from the
employer by virtue of negligence of the latter. Atty. Bocobo's stand is the same as that of Atty.
Bacungan and adds that once the heirs elect the remedy provided for under the Act, they are no
longer entitled to avail themselves of the remedy provided for under the Civil Code by filing an action
for higher damages in the regular court, and vice versa.
On August 3, 1978, petitioners-heirs of deceased employee Nazarito Floresca filed a motion to
dismiss on the ground that they have amicably settled their claim with respondent Philex. In the
resolution of September 7, 1978, WE dismissed the petition only insofar as the aforesaid petitioners
are connected, it appearing that there are other petitioners in this case.
WE hold that the former Court of First Instance has jurisdiction to try the case,
It should be underscored that petitioners' complaint is not for compensation based on the Workmen's
Compensation Act but a complaint for damages (actual, exemplary and moral) in the total amount of
eight hundred twenty-five thousand (P825,000.00) pesos. Petitioners did not invoke the provisions of
the Workmen's Compensation Act to entitle them to compensation thereunder. In fact, no allegation
appeared in the complaint that the employees died from accident arising out of and in the course of
their employments. The complaint instead alleges gross and reckless negligence and deliberate
failure on the part of Philex to protect the lives of its workers as a consequence of which a cave-in
occurred resulting in the death of the employees working underground. Settled is the rule that in
ascertaining whether or not the cause of action is in the nature of workmen's compensation claim or
a claim for damages pursuant to the provisions of the Civil Code, the test is the averments or
allegations in the complaint (Belandres vs. Lopez Sugar Mill, Co., Inc., 97 Phil. 100).
In the present case, there exists between Philex and the deceased employees a contractual
relationship. The alleged gross and reckless negligence and deliberate failure that amount to bad
faith on the part of Philex, constitute a breach of contract for which it may be held liable for damages.
The provisions of the Civil Code on cases of breach of contract when there is fraud or bad faith,
read:
Art. 2232. In contracts and quasi-contracts, the court may award exemplary damages
if the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner.
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is able shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In cases of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
Furthermore, Articles 2216 et seq., Civil Code, allow the payment of all kinds of damages, as
assessed by the court.
The rationale in awarding compensation under the Workmen's Compensation Act differs from that in
giving damages under the Civil Code. The compensation acts are based on a theory of
compensation distinct from the existing theories of damages, payments under the acts being made
as compensation and not as damages (99 C.J.S. 53). Compensation is given to mitigate the
harshness and insecurity of industrial life for the workman and his family. Hence, an employer is
liable whether negligence exists or not since liability is created by law. Recovery under the Act is not
based on any theory of actionable wrong on the part of the employer (99 C.J.S. 36).
In other words, under the compensation acts, the employer is liable to pay compensation benefits for
loss of income, as long as the death, sickness or injury is work-connected or work-aggravated, even
if the death or injury is not due to the fault of the employer (Murillo vs. Mendoza, 66 Phil. 689). On
the other hand, damages are awarded to one as a vindication of the wrongful invasion of his rights. It
is the indemnity recoverable by a person who has sustained injury either in his person, property or
relative rights, through the act or default of another (25 C.J.S. 452).
The claimant for damages under the Civil Code has the burden of proving the causal relation
between the defendant's negligence and the resulting injury as well as the damages suffered. While
under the Workmen's Compensation Act, there is a presumption in favor of the deceased or injured
employee that the death or injury is work-connected or work-aggravated; and the employer has the
burden to prove otherwise (De los Angeles vs. GSIS, 94 SCRA 308; Carino vs. WCC, 93 SCRA 551;
Maria Cristina Fertilizer Corp. vs. WCC, 60 SCRA 228).
The claim of petitioners that the case is not cognizable by the Workmen's Compensation
Commission then, now Employees Compensation Commission, is strengthened by the fact that
unlike in the Civil Code, the Workmen's Compensation Act did not contain any provision for an
award of actual, moral and exemplary damages. What the Act provided was merely the right of the
heirs to claim limited compensation for the death in the amount of six thousand (P6,000.00) pesos
plus burial expenses of two hundred (P200.00) pesos, and medical expenses when incurred
(Sections 8, 12 and 13, Workmen's Compensation Act), and an additional compensation of only 50%
if the complaint alleges failure on the part of the employer to "install and maintain safety appliances
or to take other precautions for the prevention of accident or occupational disease" (Section 4-A,
Ibid.). In the case at bar, the amount sought to be recovered is over and above that which was
provided under the Workmen's Compensation Act and which cannot be granted by the Commission.
Moreover, under the Workmen's Compensation Act, compensation benefits should be paid to an
employee who suffered an accident not due to the facilities or lack of facilities in the industry of his
employer but caused by factors outside the industrial plant of his employer. Under the Civil Code,
the liability of the employer, depends on breach of contract or tort. The Workmen's Compensation
Act was specifically enacted to afford protection to the employees or workmen. It is a social
legislation designed to give relief to the workman who has been the victim of an accident causing his
death or ailment or injury in the pursuit of his employment (Abong vs. WCC, 54 SCRA 379).
WE now come to the query as to whether or not the injured employee or his heirs in case of death
have a right of selection or choice of action between availing themselves of the worker's right under
the Workmen's Compensation Act and suing in the regular courts under the Civil Code for higher
damages (actual, moral and exemplary) from the employers by virtue of that negligence or fault of
the employers or whether they may avail themselves cumulatively of both actions, i.e., collect the
limited compensation under the Workmen's Compensation Act and sue in addition for damages in
the regular courts.
In disposing of a similar issue, this Court in Pacana vs. Cebu Autobus Company, 32 SCRA 442,
ruled that an injured worker has a choice of either to recover from the employer the fixed amounts
set by the Workmen's Compensation Act or to prosecute an ordinary civil action against the
tortfeasor for higher damages but he cannot pursue both courses of action simultaneously.
In Pacaa WE said:
In the analogous case of Esguerra vs. Munoz Palma, involving the application of
Section 6 of the Workmen's Compensation Act on the injured workers' right to sue
third- party tortfeasors in the regular courts, Mr. Justice J.B.L. Reyes, again speaking
for the Court, pointed out that the injured worker has the choice of remedies but
cannot pursue both courses of action simultaneously and thus balanced the relative
advantage of recourse under the Workmen's Compensation Act as against an
ordinary action.
As applied to this case, petitioner Esguerra cannot maintain his action for damages
against the respondents (defendants below), because he has elected to seek
compensation under the Workmen's Compensation Law, and his claim (case No.
44549 of the Compensation Commission) was being processed at the time he filed
this action in the Court of First Instance. It is argued for petitioner that as the
damages recoverable under the Civil Code are much more extensive than the
amounts that may be awarded under the Workmen's Compensation Act, they should
not be deemed incompatible. As already indicated, the injured laborer was initially
free to choose either to recover from the employer the fixed amounts set by the
Compensation Law or else, to prosecute an ordinary civil action against the
tortfeasor for higher damages. While perhaps not as profitable, the smaller indemnity
obtainable by the first course is balanced by the claimant's being relieved of the
burden of proving the causal connection between the defendant's negligence and the
resulting injury, and of having to establish the extent of the damage suffered; issues
that are apt to be troublesome to establish satisfactorily. Having staked his fortunes
on a particular remedy, petitioner is precluded from pursuing the alternate course, at
least until the prior claim is rejected by the Compensation Commission. Anyway,
under the proviso of Section 6 aforequoted, if the employer Franklin Baker Company
recovers, by derivative action against the alleged tortfeasors, a sum greater than the
compensation he may have paid the herein petitioner, the excess accrues to the
latter.
Although the doctrine in the case of Esguerra vs. Munoz Palma (104 Phil. 582), applies to third-party
tortfeasor, said rule should likewise apply to the employer-tortfeasor.
Insofar as the heirs of Nazarito Floresca are concerned, as already stated, the petition has been
dismissed in the resolution of September 7, 1978 in view of the amicable settlement reached by
Philex and the said heirs.
With regard to the other petitioners, it was alleged by Philex in its motion to dismiss dated May 14,
1968 before the court a quo, that the heirs of the deceased employees, namely Emerito Obra, Larry
Villar, Jr., Aurelio Lanuza, Lorenzo Isla and Saturnino Martinez submitted notices and claims for
compensation to the Regional Office No. 1 of the then Department of Labor and all of them have
been paid in full as of August 25, 1967, except Saturnino Martinez whose heirs decided that they be
paid in installments (pp. 106-107, rec.). Such allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated May 27, 1968 (pp. 121-122, rec.) in the lower court, but
they set up the defense that the claims were filed under the Workmen's Compensation Act before
they learned of the official report of the committee created to investigate the accident which
established the criminal negligence and violation of law by Philex, and which report was forwarded
by the Director of Mines to the then Executive Secretary Rafael Salas in a letter dated October 19,
1967 only (p. 76, rec.).
WE hold that although the other petitioners had received the benefits under the Workmen's
Compensation Act, such may not preclude them from bringing an action before the regular court
because they became cognizant of the fact that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving compensation under the Act. Had petitioners been
aware of said violation of government rules and regulations by Philex, and of its negligence, they
would not have sought redress under the Workmen's Compensation Commission which awarded a
lesser amount for compensation. The choice of the first remedy was based on ignorance or a
mistake of fact, which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However, should the petitioners be
successful in their bid before the lower court, the payments made under the Workmen's
Compensation Act should be deducted from the damages that may be decreed in their favor.
B
Contrary to the perception of the dissenting opinion, the Court does not legislate in the instant case.
The Court merely applies and gives effect to the constitutional guarantees of social justice then
secured by Section 5 of Article 11 and Section 6 of Article XIV of the 1935 Constitution, and now by
Sections 6, 7, and 9 of Article 11 of the DECLARATION OF PRINCIPLES AND STATE POLICIES of
the 1973 Constitution, as amended, and as implemented by Articles 2176, 2177, 2178, 1173, 2201,
2216, 2231 and 2232 of the New Civil Code of 1950.
To emphasize, the 1935 Constitution declares that:
Sec. 5. The promotion of social justice to insure the well-being and economic security
of all the people should be the concern of the State (Art. II).
Sec. 6. The State shall afford protection to labor, especially to working women, and
minors, and shall regulate the relations between landowner and tenant, and between
labor and capital in industry and in agriculture. The State may provide for compulsory
arbitration (Art. XIV).
The 1973 Constitution likewise commands the State to "promote social justice to insure the dignity,
welfare, and security of all the people "... regulate the use ... and disposition of private property and
equitably diffuse property ownership and profits "establish, maintain and ensure adequate social
services in, the field of education, health, housing, employment, welfare and social security to
guarantee the enjoyment by the people of a decent standard of living" (Sections 6 and 7, Art. II, 1973
Constitution); "... afford protection to labor, ... and regulate the relations between workers and
employers ..., and assure the rights of workers to ... just and humane conditions of work"(Sec. 9, Art.
II, 1973 Constitution, emphasis supplied).
The foregoing constitutional guarantees in favor of labor institutionalized in Section 9 of Article 11 of
the 1973 Constitution and re-stated as a declaration of basic policy in Article 3 of the New Labor
Code, thus:
Art. 3. Declaration of basic policy.The State shall afford protection to labor,
promote full employment, ensure equal work opportunities regardless of sex, race or
creed, and regulate the relations between workers and employers. The State
shall assure the rights of workers to self-organization, collective bargaining, security
of tenure, and just and humane conditions of work. (emphasis supplied).
The aforestated constitutional principles as implemented by the aforementioned articles of the New
Civil Code cannot be impliedly repealed by the restrictive provisions of Article 173 of the New Labor
Code. Section 5 of the Workmen's Compensation Act (before it was amended by R.A. No. 772 on
June 20, 1952), predecessor of Article 173 of the New Labor Code, has been superseded by the
aforestated provisions of the New Civil Code, a subsequent law, which took effect on August 30,
1950, which obey the constitutional mandates of social justice enhancing as they do the rights of the
workers as against their employers. Article 173 of the New Labor Code seems to diminish the rights
of the workers and therefore collides with the social justice guarantee of the Constitution and the
liberal provisions of the New Civil Code.
The guarantees of social justice embodied in Sections 6, 7 and 9 of Article II of the 1973 Constitution
are statements of legal principles to be applied and enforced by the courts. Mr. Justice Robert
Jackson in the case of West Virginia State Board of Education vs. Barnette, with characteristic
eloquence, enunciated:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be applied by the courts. One's
right to life, liberty, and property, to free speech, a free press, freedom of worship
and assembly, and other fundamental rights may not be submitted to vote; they
depend on the outcome of no elections (319 U.S. 625, 638, 87 L.ed. 1638, emphasis
supplied).
In case of any doubt which may be engendered by Article 173 of the New Labor Code, both the New
Labor Code and the Civil Code direct that the doubts should be resolved in favor of the workers and
employees.
Thus, Article 4 of the New Labor Code, otherwise known as Presidential Decree No. 442, as
amended, promulgated on May 1, 1974, but which took effect six months thereafter, provides that
"all doubts in the implementation and interpretation of the provisions of this Code, including its
implementing rules and regulations, shall be resolved in favor of labor" (Art. 2, Labor Code).
Article 10 of the New Civil Code states: "In case of doubt in the interpretation or application of laws, it
is presumed that the law-making body intended right and justice to prevail. "
More specifically, Article 1702 of the New Civil Code likewise directs that. "In case of doubt, all labor
legislation and all labor contracts shall be construed in favor of the safety and decent living of the
laborer."
Before it was amended by Commonwealth Act No. 772 on June 20, 1952, Section 5 of the
Workmen's Compensation Act provided:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury (emphasis supplied).
Employers contracting laborecsrs in the Philippine Islands for work outside the same
may stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in
and during the performance of the duties of the employment; and all service
contracts made in the manner prescribed in this section shall be presumed to include
such agreement.
Only the second paragraph of Section 5 of the Workmen's Compensation Act No. 3428, was
amended by Commonwealth Act No. 772 on June 20, 1952, thus:
Sec. 5. Exclusive right to compensation.- The rights and remedies granted by this Act
to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws, because of said injury.
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply
to injuries received outside the Island through accidents happening in and during the
performance of the duties of the employment. Such stipulation shall not prejudice the
right of the laborers to the benefits of the Workmen's Compensation Law of the place
where the accident occurs, should such law be more favorable to them (As amended
by section 5 of Republic Act No. 772).
Article 173 of the New Labor Code does not repeal expressly nor impliedly the applicable provisions
of the New Civil Code, because said Article 173 provides:
Art. 173. Exclusiveness of liability.- Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Commonwealth Act Numbered
One hundred eighty- six, as amended, Commonwealth Act Numbered Six hundred
ten, as amended, Republic Act Numbered Forty-eight hundred Sixty-four, as
amended, and other laws whose benefits are administered by the System during the
period of such payment for the same disability or death, and conversely (emphasis
supplied).
As above-quoted, Article 173 of the New Labor Code expressly repealed only Section 699 of the
Revised Administrative Code, R.A. No. 1161, as amended, C.A. No. 186, as amended, R.A. No.
610, as amended, R.A. No. 4864, as amended, and all other laws whose benefits are administered
by the System (referring to the GSIS or SSS).
Unlike Section 5 of the Workmen's Compensation Act as aforequoted, Article 173 of the New Labor
Code does not even remotely, much less expressly, repeal the New Civil Code provisions heretofore
quoted.
It is patent, therefore, that recovery under the New Civil Code for damages arising from negligence,
is not barred by Article 173 of the New Labor Code. And the damages recoverable under the New
Civil Code are not administered by the System provided for by the New Labor Code, which defines
the "System" as referring to the Government Service Insurance System or the Social Security
System (Art. 167 [c], [d] and [e] of the New Labor Code).
Furthermore, under Article 8 of the New Civil Code, decisions of the Supreme Court form part of the
law of the land.
Article 8 of the New Civil Code provides:
Art. 8. Judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines.
The Court, through the late Chief Justice Fred Ruiz Castro, in People vs. Licera ruled:
Article 8 of the Civil Code of the Philippines decrees that judicial decisions applying
or interpreting the laws or the Constitution form part of this jurisdiction's legal system.
These decisions, although in themselves not laws, constitute evidence of what the
laws mean. The application or interpretation placed by the Court upon a law is part of
the law as of the date of the enactment of the said law since the Court's application
or interpretation merely establishes the contemporaneous legislative intent that the
construed law purports to carry into effect" (65 SCRA 270, 272-273 [1975]).
WE ruled that judicial decisions of the Supreme Court assume the same authority as the statute
itself (Caltex vs. Palomer, 18 SCRA 247; 124 Phil. 763).
The aforequoted provisions of Section 5 of the Workmen's Compensation Act, before and after it
was amended by Commonwealth Act No. 772 on June 20, 1952, limited the right of recovery in favor
of the deceased, ailing or injured employee to the compensation provided for therein. Said Section 5
was not accorded controlling application by the Supreme Court in the 1970 case of Pacana vs. Cebu
Autobus Company (32 SCRA 442) when WE ruled that an injured worker has a choice of either to
recover from the employer the fixed amount set by the Workmen's Compensation Act or to
prosecute an ordinary civil action against the tortfeasor for greater damages; but he cannot pursue
both courses of action simultaneously. Said Pacana case penned by Mr. Justice Teehankee, applied
Article 1711 of the Civil Code as against the Workmen's Compensation Act, reiterating the 1969
ruling in the case of Valencia vs. Manila Yacht Club (28 SCRA 724, June 30,1969) and the 1958
case of Esguerra vs. Munoz Palma (104 Phil. 582), both penned by Justice J.B.L. Reyes. Said
Pacana case was concurred in by Justices J.B.L. Reyes, Dizon, Makalintal, Zaldivar, Castro,
Fernando and Villamor.
Since the first sentence of Article 173 of the New Labor Code is merely a re-statement of the first
paragraph of Section 5 of the Workmen's Compensation Act, as amended, and does not even refer,
neither expressly nor impliedly, to the Civil Code as Section 5 of the Workmen's Compensation Act
did, with greater reason said Article 173 must be subject to the same interpretation adopted in the
cases of Pacana, Valencia and Esguerra aforementioned as the doctrine in the aforesaid three (3)
cases is faithful to and advances the social justice guarantees enshrined in both the 1935 and 1973
Constitutions.
It should be stressed likewise that there is no similar provision on social justice in the American
Federal Constitution, nor in the various state constitutions of the American Union. Consequently, the
restrictive nature of the American decisions on the Workmen's Compensation Act cannot limit the
range and compass of OUR interpretation of our own laws, especially Article 1711 of the New Civil
Code, vis-a-vis Article 173 of the New Labor Code, in relation to Section 5 of Article II and Section 6
of Article XIV of the 1935 Constitution then, and now Sections 6, 7 and 9 of the Declaration of
Principles and State Policies of Article II of the 1973 Constitution.
The dissent seems to subordinate the life of the laborer to the property rights of the employer. The
right to life is guaranteed specifically by the due process clause of the Constitution. To relieve the
employer from liability for the death of his workers arising from his gross or wanton fault or failure to
provide safety devices for the protection of his employees or workers against the dangers which are
inherent in underground mining, is to deprive the deceased worker and his heirs of the right to
recover indemnity for the loss of the life of the worker and the consequent loss to his family without
due process of law. The dissent in effect condones and therefore encourages such gross or wanton
neglect on the part of the employer to comply with his legal obligation to provide safety measures for
the protection of the life, limb and health of his worker. Even from the moral viewpoint alone, such
attitude is un-Christian.
It is therefore patent that giving effect to the social justice guarantees of the Constitution, as
implemented by the provisions of the New Civil Code, is not an exercise of the power of law-making,
but is rendering obedience to the mandates of the fundamental law and the implementing legislation
aforementioned.
The Court, to repeat, is not legislating in the instant case.
It is axiomatic that no ordinary statute can override a constitutional provision.
The words of Section 5 of the Workmen's Compensation Act and of Article 173 of the New Labor
Code subvert the rights of the petitioners as surviving heirs of the deceased mining employees.
Section 5 of the Workmen's Compensation Act and Article 173 of the New Labor Code are
retrogressive; because they are a throwback to the obsolete laissez-faire doctrine of Adam Smith
enunciated in 1776 in his treatise Wealth of Nations (Collier's Encyclopedia, Vol. 21, p. 93, 1964),
which has been discarded soon after the close of the 18th century due to the Industrial Revolution
that generated the machines and other mechanical devices (beginning with Eli Whitney's cotton gin
of 1793 and Robert Fulton's steamboat of 1807) for production and transportation which are
dangerous to life, limb and health. The old socio-political-economic philosophy of live-and-let-live is
now superdesed by the benign Christian shibboleth of live-and-help others to live. Those who
profess to be Christians should not adhere to Cain's selfish affirmation that he is not his brother's
keeper. In this our civilization, each one of us is our brother's keeper. No man is an island. To assert
otherwise is to be as atavistic and ante-deluvian as the 1837 case of Prisley vs. Fowler (3 MN 1,150
reprint 1030) invoked by the dissent, The Prisley case was decided in 1837 during the era of
economic royalists and robber barons of America. Only ruthless, unfeeling capitalistics and egoistic
reactionaries continue to pay obeisance to such un-Christian doctrine. The Prisley rule humiliates
man and debases him; because the decision derisively refers to the lowly worker as "servant" and
utilizes with aristocratic arrogance "master" for "employer." It robs man of his inherent dignity and
dehumanizes him. To stress this affront to human dignity, WE only have to restate the quotation
from Prisley, thus: "The mere relation of the master and the servant never can imply an obligation on
the part of the master to take more care of the servant than he may reasonably be expected to do
himself." This is the very selfish doctrine that provoked the American Civil War which generated so
much hatred and drew so much precious blood on American plains and valleys from 1861 to 1864.
"Idolatrous reverence" for the letter of the law sacrifices the human being. The spirit of the law
insures man's survival and ennobles him. In the words of Shakespeare, "the letter of the law killeth;
its spirit giveth life."
C
It is curious that the dissenting opinion clings to the myth that the courts cannot legislate.
That myth had been exploded by Article 9 of the New Civil Code, which provides that "No judge or
court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.
"
Hence, even the legislator himself, through Article 9 of the New Civil Code, recognizes that in certain
instances, the court, in the language of Justice Holmes, "do and must legislate" to fill in the gaps in
the law; because the mind of the legislator, like all human beings, is finite and therefore cannot
envisage all possible cases to which the law may apply Nor has the human mind the infinite capacity
to anticipate all situations.
But about two centuries before Article 9 of the New Civil Code, the founding fathers of the American
Constitution foresaw and recognized the eventuality that the courts may have to legislate to supply
the omissions or to clarify the ambiguities in the American Constitution and the statutes.
'Thus, Alexander Hamilton pragmatically admits that judicial legislation may be justified but denies
that the power of the Judiciary to nullify statutes may give rise to Judicial tyranny (The Federalist,
Modern Library, pp. 503-511, 1937 ed.). Thomas Jefferson went farther to concede that the court is
even independent of the Nation itself (A.F.L. vs. American Sash Company, 1949 335 US 538).
Many of the great expounders of the American Constitution likewise share the same view. Chief
Justice Marshall pronounced: "It is emphatically the province and duty of the Judicial department to
say what the law is (Marbury vs. Madison I Cranch 127 1803), which was re-stated by Chief Justice
Hughes when he said that "the Constitution is what the judge says it is (Address on May 3, 1907,
quoted by President Franklin Delano Roosevelt on March 9, 1937). This was reiterated by Justice
Cardozo who pronounced that "No doubt the limits for the judge are narrower. He legislates only
between gaps. He fills the open spaces in the law. " (The Nature of the Judicial Process, p. 113). In
the language of Chief Justice Harlan F. Stone, "The only limit to the judicial legislation is the restraint
of the judge" (U.S. vs. Butler 297 U.S. 1 Dissenting Opinion, p. 79), which view is also entertained by
Justice Frankfurter and Justice Robert Jackson. In the rhetoric of Justice Frankfurter, "the courts
breathe life, feeble or strong, into the inert pages of the Constitution and all statute books."
It should be stressed that the liability of the employer under Section 5 of the Workmen's
Compensation Act or Article 173 of the New Labor Code is limited to death, ailment or injury caused
by the nature of the work, without any fault on the part of the employers. It is correctly termed no
fault liability. Section 5 of the Workmen's Compensation Act, as amended, or Article 173 of the New
Labor Code, does not cover the tortious liability of the employer occasioned by his fault or culpable
negligence in failing to provide the safety devices required by the law for the protection of the life,
limb and health of the workers. Under either Section 5 or Article 173, the employer remains liable to
pay compensation benefits to the employee whose death, ailment or injury is work-connected, even
if the employer has faithfully and diligently furnished all the safety measures and contrivances
decreed by the law to protect the employee.
The written word is no longer the "sovereign talisman." In the epigrammatic language of Mr. Justice
Cardozo, "the law has outgrown its primitive stage of formalism when the precise word was the
sovereign talisman, and every slip was fatal" (Wood vs. Duff Gordon 222 NW 88; Cardozo, The
Nature of the Judicial Process 100). Justice Cardozo warned that: "Sometimes the conservatism of
judges has threatened for an interval to rob the legislation of its efficacy. ... Precedents established
in those items exert an unhappy influence even now" (citing Pound, Common Law and Legislation
21 Harvard Law Review 383, 387).
Finally, Justice Holmes delivered the coup de grace when he pragmatically admitted, although with a
cautionary undertone: "that judges do and must legislate, but they can do so only interstitially they
are confined from molar to molecular motions" (Southern Pacific Company vs. Jensen, 244 US 204
1917). And in the subsequent case of Springer vs. Government (277 US 188, 210-212, 72 L.ed. 845,
852- 853), Justice Holmes pronounced:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. x x x. When we come to the
fundamental distinctions it is still more obvious that they must be received with a
certain latitude or our government could not go on.
To make a rule of conduct applicable to an individual who but for such action would
be free from it is to legislate yet it is what the judges do whenever they determine
which of two competing principles of policy shall prevail.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into waterlight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires.
True, there are jurists and legal writers who affirm that judges should not legislate, but grudgingly
concede that in certain cases judges do legislate. They criticize the assumption by the courts of such
law-making power as dangerous for it may degenerate into Judicial tyranny. They include
Blackstone, Jeremy Bentham, Justice Black, Justice Harlan, Justice Roberts, Justice David Brewer,
Ronald Dworkin, Rolf Sartorious, Macklin Fleming and Beryl Harold Levy. But said Justices, jurists or
legal commentators, who either deny the power of the courts to legislate in-between gaps of the law,
or decry the exercise of such power, have not pointed to examples of the exercise by the courts of
such law-making authority in the interpretation and application of the laws in specific cases that gave
rise to judicial tyranny or oppression or that such judicial legislation has not protected public interest
or individual welfare, particularly the lowly workers or the underprivileged.
On the other hand, there are numerous decisions interpreting the Bill of Rights and statutory
enactments expanding the scope of such provisions to protect human rights. Foremost among them
is the doctrine in the cases of Miranda vs. Arizona (384 US 436 1964), Gideon vs. Wainright (372
US 335), Escubedo vs. Illinois (378 US 478), which guaranteed the accused under custodial
investigation his rights to remain silent and to counsel and to be informed of such rights as even as it
protects him against the use of force or intimidation to extort confession from him. These rights are
not found in the American Bill of Rights. These rights are now institutionalized in Section 20, Article
IV of the 1973 Constitution. Only the peace-and-order adherents were critical of the activism of the
American Supreme Court led by Chief Justice Earl Warren.
Even the definition of Identical offenses for purposes of the double jeopardy provision was
developed by American judicial decisions, not by amendment to the Bill of Rights on double jeopardy
(see Justice Laurel in People vs. Tarok, 73 Phil. 260, 261-268). And these judicial decisions have
been re-stated in Section 7 of Rule 117 of the 1985 Rules on Criminal Procedure, as well as in
Section 9 of Rule 117 of the 1964 Revised Rules of Court. In both provisions, the second offense is
the same as the first offense if the second offense is an attempt to commit the first or frustration
thereof or necessarily includes or is necessarily included in the first offense.
The requisites of double jeopardy are not spelled out in the Bill of Rights. They were also developed
by judicial decisions in the United States and in the Philippines even before people vs. Ylagan (58
Phil. 851-853).
Again, the equal protection clause was interpreted in the case of Plessy vs. Ferguson (163 US 537)
as securing to the Negroes equal but separate facilities, which doctrine was revoked in the case of
Brown vs. Maryland Board of Education (349 US 294), holding that the equal protection clause
means that the Negroes are entitled to attend the same schools attended by the whites-equal
facilities in the same school-which was extended to public parks and public buses.
De-segregation, not segregation, is now the governing principle.
Among other examples, the due process clause was interpreted in the case of People vs. Pomar (46
Phil. 440) by a conservative, capitalistic court to invalidate a law granting maternity leave to working
women-according primacy to property rights over human rights. The case of People vs. Pomar is no
longer the rule.
As early as 1904, in the case of Lochner vs. New York (198 US 45, 76, 49 L. ed. 937, 949), Justice
Holmes had been railing against the conservatism of Judges perverting the guarantee of due
process to protect property rights as against human rights or social justice for the working man. The
law fixing maximum hours of labor was invalidated. Justice Holmes was vindicated finally in 1936 in
the case of West Coast Hotel vs. Parish (300 US 377-79; 81 L. ed. 703) where the American
Supreme Court upheld the rights of workers to social justice in the form of guaranteed minimum
wage for women and minors, working hours not exceeding eight (8) daily, and maternity leave for
women employees.
The power of judicial review and the principle of separation of powers as well as the rule on political
questions have been evolved and grafted into the American Constitution by judicial decisions
(Marbury vs. Madison, supra Coleman vs. Miller, 307 US 433, 83 L. ed. 1385; Springer vs.
Government, 277 US 210-212, 72 L. ed. 852, 853).
It is noteworthy that Justice Black, who seems to be against judicial legislation, penned a separate
concurring opinion in the case of Coleman vs. Miller, supra, affirming the doctrine of political
question as beyond the ambit of judicial review. There is nothing in both the American and Philippine
Constitutions expressly providing that the power of the courts is limited by the principle of separation
of powers and the doctrine on political questions. There are numerous cases in Philippine
jurisprudence applying the doctrines of separation of powers and political questions and invoking
American precedents.
Unlike the American Constitution, both the 1935 and 1973 Philippine Constitutions expressly vest in
the Supreme Court the power to review the validity or constitutionality of any legislative enactment or
executive act.
WHEREFORE, THE TRIAL COURT'S ORDER OF DISMISSAL IS HEREBY REVERSED AND SET
ASIDE AND THE CASE IS REMANDED TO IT FOR FURTHER PROCEEDINGS. SHOULD A
GREATER AMOUNT OF DAMAGES BE DECREED IN FAVOR OF HEREIN PETITIONERS, THE
PAYMENTS ALREADY MADE TO THEM PURSUANT TO THE WORKMEN'S COMPENSATION
ACT SHALL BE DEDUCTED. NO COSTS.
SO ORDERED.
Fernando, C.J., Teehankee, Plana, Escolin, De la Fuente, Cuevas and Alampay JJ., concur.
Concepcion, Jr., J., is on leave.
Abad Santos and Relova, JJ., took no part.


Separate Opinions

MELENCIO-HERRERA, J ., dissenting:
A
This case involves a complaint for damages for the death of five employees of PHILEX Mining
Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides
for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found
in Title XVIII-Damages that:
COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF
DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS.
Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil.
582, 586, Justice J.B.L. Reyes had said:
Petitioner also avers that compensation is not damages. This argument is but a play
on words. The term compensation' is used in the law (Act 3812 and Republic Act
772) in the sense of indemnity for damages suffered, being awarded for a personal
injury caused or aggravated by or in the course of employment. ...
By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply
to the complaint involved in the instant case. That "special law", in reference to the complaint, can be
no other than the Workmen's Compensation
Even assuming, without conceding, that an employee is entitled to an election of remedies, as the
majority rules, both options cannot be exercised simultaneously, and the exercise of one will
preclude the exercise of the other. The petitioners had already exercised their option to come under
the Workmen's Compensation Act, and they have already received compensation payable to them
under that Act. Stated differently, the remedy under the Workmen's Compensation Act had already
become a "finished transaction".
There are two considerations why it is believed petitioners should no longer be allowed to exercise
the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's
Compensation Act have already become the law in regards to" the "election of remedies", because
those proceedings had become a "finished transaction".
In the second place, it should be plainly equitable that, if a person entitled to an "election of
remedies" makes a first election and accepts the benefits thereof, he should no longer be allowed to
avail himself of the second option. At the very least, if he wants to make a second election, in
disregard of the first election he has made, when he makes the second election he should surrender
the benefits he had obtained under the first election, This was not done in the case before the Court.
B.
'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding
"the exclusory provision of the Workmen's Compensation Act." I may further add:
1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took
effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes.
Act No. 3428 was adopted by the Philippine legislature, in Spanish and some
sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter
209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's
Compensation Act, p. 2]
Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under
the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266,
267.
Sec. 112. Hawaii
Statutory Synopsis. The act is compulsory as to employees in 'all industrial
employment' and employees of the territory and its political subdivisions. (Sections
7480-7481, S.S., Vol. 1, p. 713.)
Compensation is not payable when injury is due to employee's willful intention to
injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.)
When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p.
714.)
2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the
Philippine Legislature worded the first paragraph of Section 5 of the Act as follows:
SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this
Act to an employee
by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer
under the Civil Code and other laws, because of said injury (Paragraphing and
emphasis supplied)
In regards to the intent of the Legislature under the foregoing provision:
A cardinal rule in the interpretation of statutes is that the meaning and intention of the
law-making body must be sought, first of all in the words of the statute itself, read
and considered in their natural, ordinary, commonly-accepted and most obvious
significations, according to good and approved usage and without resorting to forced
or subtle construction Courts, therefore, as a rule, cannot presume that the law-
making body does not know the meaning of words and the rules of grammar.
Consequently, the grammatical reading of a statute must be presumed to yield its
correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied]
3. The original second paragraph of Section 5 provided:
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in
and during the performance of the duties of the employment. (Italics supplied)
The use of the word "exclusively is a further confirmation of the exclusory provision of the Act,
subject only to exceptions which may be provided in the Act itself.
4. It might be mentioned that, within the Act itself, provision is made for remedies other than within
the Act itself. Thus, Section 6, in part, provides:
SEC. 6. Liability of third parties.-In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it
shall be optional with such injured employee either to claim compensation from his
employer, under this Act, or sue such other person for damages, in accordance with
law; ... (Emphasis supplied)
If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to
sue his employer under the Civil Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the
legislative intent not to allow any option to an employee to sue the employer under the Civil Code for
injuries compensable under the Act.
5. There should be no question but that the original first paragraph of Section 5 of the Workmen's
Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if
entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code
nor to any other law relative to the liability of the employer. After 1927, there were occasions when
the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies
under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the
legislatives continuing intent to maintain the exclusory provision of the first paragraph of Section 5
unless otherwise provided in the Act itself.
(a) The original second paragraph of Section 5 provided:
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply
(exclusively) to injuries received outside the Islands through accidents happening in
and during the performance of the duties of the employment (and all service
contracts made in the manner prescribed in this section be presumed to include such
agreement).
On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the
elimination of the underlined words in parentheses, and the addition of this sentence at the end of
the paragraph:
Such stipulation shall not prejudice the right of the laborers to the benefits of the
Workmen's Compensation Law of the place where the accident occurs, should such
law be more favorable to them. (Emphasis supplied)
It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that
time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that
the employee would have the option to sue the employer under the Act, or under the Civil Code,
should the latter be more favorable to him.
(b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured
employee without regard to the presence or absence of negligence on the part of the employer. The
compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689
[1938]).
In time, it must have been thought that it was inequitable to have the amount of compensation,
caused by negligence on the part of the employer, to be the same amount payable when the
employer was not negligent. Based on that thinking, Section 4-A
1
was included into the Act, on June
20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case
there was negligence on the part of the employer. That additional section evidenced the intent of the
legislator not to give an option to an employee, injured with negligence on the part of the employer,
to sue the latter under the provisions of the Civil Code.
On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again
given the opportunity to provide, but he did not, the option to an employee to sue under the Act or
under the Civil Code.
When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court
is unjustifiably legislating.
It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint.
GUTIERREZ, JR., J ., dissenting:
To grant the petition and allow the victims of industrial accidents to file damages suits based on torts
would be a radical innovation not only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in the long history of workmen's
compensation. At the very least, it should be the legislature and not this Court which should remove
the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present
Labor Code on employees' compensation.
Workmen's compensation evolved to remedy the evils associated with the situation in the early years
of the industrial revolution when injured workingmen had to rely on damage suits to get recompense.
Before workmen's compensation, an injured worker seeking damages would have to prove in a tort
suit that his employer was either negligent or in bad faith, that his injury was caused by the employer
and not a fellow worker, and that he was not guilty of contributory negligence. The employer could
employ not only his wealth in defeating the claim for damages but a host of common law defenses
available to him as well. The worker was supposed to know what he entered into when he accepted
employment. As stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030)
decided in 1837 "the mere relation of the master and the servant never can imply an obligation on
the part of the master to take more care of the servant than he may reasonably be expected to do of
himself." By entering into a contract of employment, the worker was deemed to accept the risks of
employment that he should discover and guard against himself.
The problems associated with the application of the fellow servant rule, the assumption of risk
doctrine, the principle of contributory negligence, and the many other defenses so easily raised in
protracted damage suits illustrated the need for a system whereby workers had only to prove the fact
of covered employment and the fact of injury arising from employment in order to be compensated.
The need for a compensation scheme where liability is created solely by statute and made
compulsory and where the element of fault-either the fault of the employer or the fault of the
employee-disregarded became obvious. Another objective was to have simplified, expeditious,
inexpensive, and non-litigious procedures so that victims of industrial accidents could more readily, if
not automatically, receive compensation for work-related injuries.
Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a
major step in the desired direction. However, employers liability legislation proved inadequate.
Legislative reform led to the workmen's compensation.
I cite the above familiar background because workmen's compensation represents a compromise. In
return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the
right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only
disregards the element of fault but it is also a pre- determined amount based on the wages of the
injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the
total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer
is required to act swiftly on compensation claims. An administrative agency supervises the program.
And because the overwhelming mass of workingmen are benefited by the compensation system,
individual workers who may want to sue for big amounts of damages must yield to the interests of
their entire working class.
The nature of the compensation principle is explained as follows:
An appreciation of the nature of the compensation principle is essential to an
understanding of the acts and the cases interpreting them.
By the turn of the century it was apparent that the toll of industrial accidents of both
the avoidable and unavoidable variety had become enormous, and government was
faced with the problem of who was to pay for the human wreckage wrought by the
dangers of modern industry. If the accident was avoidable and could be attributed to
the carelessness of the employer, existing tort principles offered some measure of
redress. Even here, however, the woeful inadequacy of the fault principle was
manifest. The uncertainty of the outcome of torts litigation in court placed the
employee at a substantial disadvantage. So long as liability depended on fault there
could be no recovery until the finger of blame had been pointed officially at the
employer or his agents. In most cases both the facts and the law were uncertain. The
witnesses, who were usually fellow workers of the victim, were torn between
friendship or loyalty to their class, on the one hand, and fear of reprisal by the
employer, on the other. The expense and delay of litigation often prompted the
injured employee to accept a compromise settlement for a fraction of the full value of
his claim. Even if suit were successfully prosecuted, a large share of the proceeds of
the judgment were exacted as contingent fees by counsel. Thus the employer
against whom judgment was cast often paid a substantial damage bill, while only a
part of this enured to the benefit of the injured employee or his dependents. The
employee's judgment was nearly always too little and too late.
xxx xxx xxx
Workmen's Compensation rests upon the economic principle that those persons who
enjoy the product of a business- whether it be in the form of goods or services-
should ultimately bear the cost of the injuries or deaths that are incident to the
manufacture, preparation and distribution of the product. ...
xxx xxx xxx
Under this approach the element of personal fault either disappears entirely or is
subordinated to broader economic considerations. The employer absorbs the cost of
accident loss only initially; it is expected that this cost will eventually pass down the
stream of commerce in the form of increase price until it is spread in dilution among
the ultimate consumers. So long as each competing unit in a given industry is
uniformly affected, no producer can gain any substantial competitive advantage or
suffer any appreciable loss by reason of the general adoption of the compensation
principle.
In order that the compensation principle may operate properly and with fairness to all
parties it is essential that the anticipated accident cost be predictable and that it be
fixed at a figure that will not disrupt too violently the traffic in the product of the
industry affected. Thus predictability and moderateness of cost are necessary from
the broad economic viewpoint. ....
Compensation, then, differs from the conventional damage suit in two important
respects: Fault on the part of either employer or employee is eliminated; and
compensation payable according to a definitely limited schedule is substituted for
damages. All compensation acts alike work these two major changes, irrespective of
how they may differ in other particulars.
Compensation, when regarded from the viewpoint of employer and employee
represents a compromise in which each party surrenders certain advantages in order
to gain others which are of more importance both to him and to society. The
employer gives up the immunity he otherwise would enjoy in cases where he is not at
fault, and the employee surrenders his former right to full damages and accepts
instead a more modest claim for bare essentials, represented by compensation.
The importance of the compromise character of compensation cannot be
overemphasized. The statutes vary a great deal with reference to the proper point of
balance. The amount of weekly compensation payments and the length of the period
during which compensation is to be paid are matters concerning which the acts differ
considerably. The interpretation of any compensation statute will be influenced
greatly by the court's reaction to the basic point of compromise established in the
Act. If the court feels that the basic compromise unduly favors the employer, it will be
tempted to restore what it regards as a proper balance by adopting an interpretation
that favors the worker. In this way, a compensation act drawn in a spirit of extreme
conservatism may be transformed by a sympathetic court into a fairly liberal
instrument; and conversely, an act that greatly favors the laborer may be so
interpreted by the courts that employers can have little reason to complain. Much of
the unevenness and apparent conflict in compensation decisions throughout the
various jurisdictions must be attributed to this." (Malone & Plant, Workmen's
Compensation American Casebook Series, pp. 63-65).
The schedule of compensation, the rates of payments, the compensable injuries and diseases, the
premiums paid by employers to the present system, the actuarial stability of the trust fund and many
other interrelated parts have all been carefully studied before the integrated scheme was enacted in
to law. We have a system whose parts must mesh harmonious with one another if it is to succeed.
The basic theory has to be followed.
If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of
the system without touching the related others, the entire structure is endangered. For instance, I am
personally against stretching the law and allowing payment of compensation for contingencies never
envisioned to be compensable when the law was formulated. Certainly, only harmful results to the
principle of workmen's compensation can arise if workmen, whom the law allows to receive
employment compensation, can still elect to file damage suits for industrial accidents. It was
precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads:
SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury. ...
Article 173 of the labor Code also provides:
ART. 173. Exclusivenesss of liability.Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents.
I am against the Court assuming the role of legislator in a matter calling for actuarial studies and
public hearings. If employers already required to contribute to the State Insurance Fund will still have
to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary.
The issue before us is more far reaching than the interests of the poor victims and their families. All
workers covered by workmen's compensation and all employers who employ covered employees
are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to
dissent from the majority opinion.


Separate Opinions

MELENCIO-HERRERA, J ., dissenting:
A
This case involves a complaint for damages for the death of five employees of PHILEX Mining
Corporation under the general provisions of the Civil Code. The Civil Code itself, however, provides
for its non-applicability to the complaint. It is specifically provided in Article 2196 of the Code, found
in Title XVIII-Damages that:
COMPENSATION FOR WORKMEN AND OTHER EMPLOYEES IN CASE OF
DEATH, INJURY OR ILLNESS IS REGULATED BY SPECIAL LAWS.
Compensation and damages are synonymous. In Esguerra vs. Muoz Palma, etc., et al., 104 Phil.
582, 586, Justice J.B.L. Reyes had said:
Petitioner also avers that compensation is not damages. This argument is but a play
on words. The term compensation' is used in the law (Act 3812 and Republic Act
772) in the sense of indemnity for damages suffered, being awarded for a personal
injury caused or aggravated by or in the course of employment. ...
By the very provisions of the Civil Code, it is a "special law", not the Code itself, which has to apply
to the complaint involved in the instant case. That "special law", in reference to the complaint, can be
no other than the Workmen's Compensation
Even assuming, without conceding, that an employee is entitled to an election of remedies, as the
majority rules, both options cannot be exercised simultaneously, and the exercise of one will
preclude the exercise of the other. The petitioners had already exercised their option to come under
the Workmen's Compensation Act, and they have already received compensation payable to them
under that Act. Stated differently, the remedy under the Workmen's Compensation Act had already
become a "finished transaction".
There are two considerations why it is believed petitioners should no longer be allowed to exercise
the option to sue under the Civil Code. In the first place, the proceedings under the Workmen's
Compensation Act have already become the law in regards to" the "election of remedies", because
those proceedings had become a "finished transaction".
In the second place, it should be plainly equitable that, if a person entitled to an "election of
remedies" makes a first election and accepts the benefits thereof, he should no longer be allowed to
avail himself of the second option. At the very least, if he wants to make a second election, in
disregard of the first election he has made, when he makes the second election he should surrender
the benefits he had obtained under the first election, This was not done in the case before the Court.
B.
'There is full concurrence on my part with the dissenting opinion of Mr. Justice Gutierrez upholding
"the exclusory provision of the Workmen's Compensation Act." I may further add:
1. The Workmen's Compensation Act (Act No. 3428) was approved on December 10, 1927 and took
effect on June 10, 1928. It was patterned from Minnesota and Hawaii statutes.
Act No. 3428 was adopted by the Philippine legislature, in Spanish and some
sections of the law were taken from the statutes of Minnesota and Hawaii, (Chapter
209 of the Revised Laws of Hawaii, 1925). [Morabe & Inton, Workmen's
Compensation Act, p. 2]
Under the Workmen's Compensation Act of Hawaii, when the Act is applicable, the remedy under
the Act is exclusive The following is stated in 1 Schneider Workmen's Compensation Text, pp. 266,
267.
Sec. 112. Hawaii
Statutory Synopsis. The act is compulsory as to employees in 'all industrial
employment' and employees of the territory and its political subdivisions. (Sections
7480-7481, S.S., Vol. 1, p. 713.)
Compensation is not payable when injury is due to employee's willful intention to
injure himself or another or to his intoxication. (Sec. 7482, S.S., p. 713.)
When the act is applicable the remedy thereunder is exclusive (Sec. 7483, S.S., p.
714.)
2. In providing for exclusiveness of the remedy under our Workmen's Compensation Act, the
Philippine Legislature worded the first paragraph of Section 5 of the Act as follows:
SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this
Act to an employee
by reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer
under the Civil Code and other laws, because of said injury (Paragraphing and
emphasis supplied)
In regards to the intent of the Legislature under the foregoing provision:
A cardinal rule in the interpretation of statutes is that the meaning and intention of the
law-making body must be sought, first of all in the words of the statute itself, read
and considered in their natural, ordinary, commonly-accepted and most obvious
significations, according to good and approved usage and without resorting to forced
or subtle construction Courts, therefore, as a rule, cannot presume that the law-
making body does not know the meaning of words and the rules of grammar.
Consequently, the grammatical reading of a statute must be presumed to yield its
correct sense. (Espino vs. Cleofe 52 SCRA 92, 98) [Italics supplied]
3. The original second paragraph of Section 5 provided:
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply
exclusively to injuries received outside the Islands through accidents happening in
and during the performance of the duties of the employment. (Italics supplied)
The use of the word "exclusively is a further confirmation of the exclusory provision of the Act,
subject only to exceptions which may be provided in the Act itself.
4. It might be mentioned that, within the Act itself, provision is made for remedies other than within
the Act itself. Thus, Section 6, in part, provides:
SEC. 6. Liability of third parties.-In case an employee suffers an injury for which
compensation is due under this Act by any other person besides his employer, it
shall be optional with such injured employee either to claim compensation from his
employer, under this Act, or sue such other person for damages, in accordance with
law; ... (Emphasis supplied)
If the legislative intent under the first paragraph of Section 5 were to allow the injured employee to
sue his employer under the Civil Code, the legislator could very easily have formulated the said first
paragraph of Section 5 according to the pattern of Section 6. That that was not done shows the
legislative intent not to allow any option to an employee to sue the employer under the Civil Code for
injuries compensable under the Act.
5. There should be no question but that the original first paragraph of Section 5 of the Workmen's
Compensation Act, formulated in 1927, provided that an injured worker or employee, or his heirs, if
entitled to compensation under the Act, cannot have independent recourse neither to the Civil Code
nor to any other law relative to the liability of the employer. After 1927, there were occasions when
the legislator had the opportunity to amend the first paragraph of Section 5 such that the remedies
under the Act would not be exclusive; yet, the legislator refrained from doing so. That shows the
legislatives continuing intent to maintain the exclusory provision of the first paragraph of Section 5
unless otherwise provided in the Act itself.
(a) The original second paragraph of Section 5 provided:
Employers contracting laborers in the Philippine Islands for work outside the same
shall stipulate with such laborers that the remedies prescribed by this Act shall apply
(exclusively) to injuries received outside the Islands through accidents happening in
and during the performance of the duties of the employment (and all service
contracts made in the manner prescribed in this section be presumed to include such
agreement).
On June 20, 1952, through RA 772, the foregoing second paragraph was amended with the
elimination of the underlined words in parentheses, and the addition of this sentence at the end of
the paragraph:
Such stipulation shall not prejudice the right of the laborers to the benefits of the
Workmen's Compensation Law of the place where the accident occurs, should such
law be more favorable to them. (Emphasis supplied)
It will be seen that, within the Act itself, the exclusory character of the Act was amended. At that
time, if he had so desired, the legislator could have amended the first paragraph of Section 5 so that
the employee would have the option to sue the employer under the Act, or under the Civil Code,
should the latter be more favorable to him.
(b) The Workmen's Compensation Act, which took effect in 1927, grants compensation to an injured
employee without regard to the presence or absence of negligence on the part of the employer. The
compensation is deemed an expense chargeable to the industry (Murillo vs. Mendoza, 66 Phil. 689
[1938]).
In time, it must have been thought that it was inequitable to have the amount of compensation,
caused by negligence on the part of the employer, to be the same amount payable when the
employer was not negligent. Based on that thinking, Section 4-A
1
was included into the Act, on June
20, 1952, through RA 772. Said Section 4-A increased the compensation payable by 50% in case
there was negligence on the part of the employer. That additional section evidenced the intent of the
legislator not to give an option to an employee, injured with negligence on the part of the employer,
to sue the latter under the provisions of the Civil Code.
On June 20, 1964, Section 4-A was amended (insubstantially) by RA 4119. The legislator was again
given the opportunity to provide, but he did not, the option to an employee to sue under the Act or
under the Civil Code.
When a Court gives effect to a statute not in accordance with the intent of the law-maker, the Court
is unjustifiably legislating.
It is in view of the foregoing that I vote for affirmation of the trial Court's dismissal of the Complaint.
GUTIERREZ, JR., J ., dissenting:
To grant the petition and allow the victims of industrial accidents to file damages suits based on torts
would be a radical innovation not only contrary to the express provisions of the Workmen's
Compensation Act but a departure from the principles evolved in the long history of workmen's
compensation. At the very least, it should be the legislature and not this Court which should remove
the exclusory provision of the Workmen's Compensation Act, a provision reiterated in the present
Labor Code on employees' compensation.
Workmen's compensation evolved to remedy the evils associated with the situation in the early years
of the industrial revolution when injured workingmen had to rely on damage suits to get recompense.
Before workmen's compensation, an injured worker seeking damages would have to prove in a tort
suit that his employer was either negligent or in bad faith, that his injury was caused by the employer
and not a fellow worker, and that he was not guilty of contributory negligence. The employer could
employ not only his wealth in defeating the claim for damages but a host of common law defenses
available to him as well. The worker was supposed to know what he entered into when he accepted
employment. As stated in the leading case of Priestley u. Fowler (3 M. & W. 1, 150 Reprint 1030)
decided in 1837 "the mere relation of the master and the servant never can imply an obligation on
the part of the master to take more care of the servant than he may reasonably be expected to do of
himself." By entering into a contract of employment, the worker was deemed to accept the risks of
employment that he should discover and guard against himself.
The problems associated with the application of the fellow servant rule, the assumption of risk
doctrine, the principle of contributory negligence, and the many other defenses so easily raised in
protracted damage suits illustrated the need for a system whereby workers had only to prove the fact
of covered employment and the fact of injury arising from employment in order to be compensated.
The need for a compensation scheme where liability is created solely by statute and made
compulsory and where the element of fault-either the fault of the employer or the fault of the
employee-disregarded became obvious. Another objective was to have simplified, expeditious,
inexpensive, and non-litigious procedures so that victims of industrial accidents could more readily, if
not automatically, receive compensation for work-related injuries.
Inspite of common law defenses to defeat a claim being recognized, employers' liability acts were a
major step in the desired direction. However, employers liability legislation proved inadequate.
Legislative reform led to the workmen's compensation.
I cite the above familiar background because workmen's compensation represents a compromise. In
return for the near certainty of receiving a sum of money fixed by law, the injured worker gives up the
right to subject the employer to a tort suit for huge amounts of damages. Thus, liability not only
disregards the element of fault but it is also a pre- determined amount based on the wages of the
injured worker and in certain cases, the actual cost of rehabilitation. The worker does not receive the
total damages for his pain and suffering which he could otherwise claim in a civil suit. The employer
is required to act swiftly on compensation claims. An administrative agency supervises the program.
And because the overwhelming mass of workingmen are benefited by the compensation system,
individual workers who may want to sue for big amounts of damages must yield to the interests of
their entire working class.
The nature of the compensation principle is explained as follows:
An appreciation of the nature of the compensation principle is essential to an
understanding of the acts and the cases interpreting them.
By the turn of the century it was apparent that the toll of industrial accidents of both
the avoidable and unavoidable variety had become enormous, and government was
faced with the problem of who was to pay for the human wreckage wrought by the
dangers of modern industry. If the accident was avoidable and could be attributed to
the carelessness of the employer, existing tort principles offered some measure of
redress. Even here, however, the woeful inadequacy of the fault principle was
manifest. The uncertainty of the outcome of torts litigation in court placed the
employee at a substantial disadvantage. So long as liability depended on fault there
could be no recovery until the finger of blame had been pointed officially at the
employer or his agents. In most cases both the facts and the law were uncertain. The
witnesses, who were usually fellow workers of the victim, were torn between
friendship or loyalty to their class, on the one hand, and fear of reprisal by the
employer, on the other. The expense and delay of litigation often prompted the
injured employee to accept a compromise settlement for a fraction of the full value of
his claim. Even if suit were successfully prosecuted, a large share of the proceeds of
the judgment were exacted as contingent fees by counsel. Thus the employer
against whom judgment was cast often paid a substantial damage bill, while only a
part of this enured to the benefit of the injured employee or his dependents. The
employee's judgment was nearly always too little and too late.
xxx xxx xxx
Workmen's Compensation rests upon the economic principle that those persons who
enjoy the product of a business- whether it be in the form of goods or services-
should ultimately bear the cost of the injuries or deaths that are incident to the
manufacture, preparation and distribution of the product. ...
xxx xxx xxx
Under this approach the element of personal fault either disappears entirely or is
subordinated to broader economic considerations. The employer absorbs the cost of
accident loss only initially; it is expected that this cost will eventually pass down the
stream of commerce in the form of increase price until it is spread in dilution among
the ultimate consumers. So long as each competing unit in a given industry is
uniformly affected, no producer can gain any substantial competitive advantage or
suffer any appreciable loss by reason of the general adoption of the compensation
principle.
In order that the compensation principle may operate properly and with fairness to all
parties it is essential that the anticipated accident cost be predictable and that it be
fixed at a figure that will not disrupt too violently the traffic in the product of the
industry affected. Thus predictability and moderateness of cost are necessary from
the broad economic viewpoint. ....
Compensation, then, differs from the conventional damage suit in two important
respects: Fault on the part of either employer or employee is eliminated; and
compensation payable according to a definitely limited schedule is substituted for
damages. All compensation acts alike work these two major changes, irrespective of
how they may differ in other particulars.
Compensation, when regarded from the viewpoint of employer and employee
represents a compromise in which each party surrenders certain advantages in order
to gain others which are of more importance both to him and to society. The
employer gives up the immunity he otherwise would enjoy in cases where he is not at
fault, and the employee surrenders his former right to full damages and accepts
instead a more modest claim for bare essentials, represented by compensation.
The importance of the compromise character of compensation cannot be
overemphasized. The statutes vary a great deal with reference to the proper point of
balance. The amount of weekly compensation payments and the length of the period
during which compensation is to be paid are matters concerning which the acts differ
considerably. The interpretation of any compensation statute will be influenced
greatly by the court's reaction to the basic point of compromise established in the
Act. If the court feels that the basic compromise unduly favors the employer, it will be
tempted to restore what it regards as a proper balance by adopting an interpretation
that favors the worker. In this way, a compensation act drawn in a spirit of extreme
conservatism may be transformed by a sympathetic court into a fairly liberal
instrument; and conversely, an act that greatly favors the laborer may be so
interpreted by the courts that employers can have little reason to complain. Much of
the unevenness and apparent conflict in compensation decisions throughout the
various jurisdictions must be attributed to this." (Malone & Plant, Workmen's
Compensation American Casebook Series, pp. 63-65).
The schedule of compensation, the rates of payments, the compensable injuries and diseases, the
premiums paid by employers to the present system, the actuarial stability of the trust fund and many
other interrelated parts have all been carefully studied before the integrated scheme was enacted in
to law. We have a system whose parts must mesh harmonious with one another if it is to succeed.
The basic theory has to be followed.
If this Court disregards this totality of the scheme and in a spirit of generosity recasts some parts of
the system without touching the related others, the entire structure is endangered. For instance, I am
personally against stretching the law and allowing payment of compensation for contingencies never
envisioned to be compensable when the law was formulated. Certainly, only harmful results to the
principle of workmen's compensation can arise if workmen, whom the law allows to receive
employment compensation, can still elect to file damage suits for industrial accidents. It was
precisely for this reason that Section 5 of the Workmen's Compensation Act, which reads:
SEC. 5. Exclusive right to compensation.-The rights and remedies granted by this
Act to an employee by reason of a personal injury entitling him to compensation shall
exclude all other rights and remedies accruing to the employee, his personal
representatives, dependents or nearest of kin against the employer under the Civil
Code and other laws because of said injury. ...
Article 173 of the labor Code also provides:
ART. 173. Exclusivenesss of liability.Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents.
I am against the Court assuming the role of legislator in a matter calling for actuarial studies and
public hearings. If employers already required to contribute to the State Insurance Fund will still have
to bear the cost of damage suits or get insurance for that purpose, a major study will be necessary.
The issue before us is more far reaching than the interests of the poor victims and their families. All
workers covered by workmen's compensation and all employers who employ covered employees
are affected. Even as I have deepest sympathies for the victims, I regret that I am constrained to
dissent from the majority opinion.

Footnotes
1 SEC. 4-A. Right to additional compensation.- In case of the employee's death,
injury or sickness due to the failure of the to comply with any law, or with any order,
rule or regulation of the Workmen's Compensation Commission or the Bureau of
Labor Standards or should the employer violate the provisions of Republic Act
Numbered Six hundred seventy-nine and its amendments or fail to install and
maintain safety appliances, or take other precautions for the prevention of accidents
or occupational disease, he shall be liable to pay an additional compensation equal
to fifty per centum of the compensation fixed in this Act.
August 1, 1916
G.R. No. L-10010
CHU JAN, plaintiff-appellee,
vs.
LUCIO BERNAS, defendant-appellant.
Sulpicio V. Cea for appellant.
ARAULLO, J .:
On the afternoon of June 26, 1913, a match was held in the cockpit of the municipality of Tabaco,
Albay, between two cocks belonging to the plaintiff and to the defendant respectively. Each of said
persons had put up a wager of P160; and as the referee of the cockpit had declared the defendants
cock the winner in the bout, the plaintiff brought suit against the defendant in the justice of the peace
court of the said pueblo, asking that his own rooster be declared the winner. The justice of the peace
court decided that the bout was a draw. From this judgment the defendant appealed to the Court of
First Instance of the province. For the purposes of the appeal, the plaintiff filed his complaint and
prayed this court to render judgment ordering the defendant to abide by and comply with the rules
and regulations governing cockfights, to pay the stipulated wager of P160; to return the other like
amount (both sums of wager being held for safe-keeping by the cockpit owner, Tomas Almonte) and
to assess the costs of both instances against the defendant.
The defendant denied each and all of the allegations of the complaint and moved to dismiss with the
costs against the plaintiff. On September 11, 1913, the said Court of First Instance rendered judgment
dismissing the appeal without special finding as to costs. The defendant excepted to this judgment as
well as to an order dictated by the same court on November 8th of the same year, on the plaintiffs
motion, ordering the provincial treasurer of Albay and, if necessary, the municipal treasurer of Tabaco
of the same province, to release the deposit of P160 and return it to its owner, the plaintiff Chinaman,
Chu Jan. These proceedings have come before us on appeal by means of the proper bill of exceptions.
The grounds for the dismissal pronounced by the lower court in the judgment appealed from ere that
the court has always dismissed cases of this nature, that he is not familiar with the rules governing
cockfights and the duties of referees thereof; that he does not know where to find the law on the
subject and, finally, that he knows of no law whatever that governs the rights to the plaintiff and the
defendant in questions concerning cockfights.
The ignorance of the court or his lack of knowledge regarding the law applicable to a case submitted
to him for decision, the fact that the court does not know the rules applicable to a certain matter that
is the subject of an appeal which must be decided by him and his not knowing where to find the law
relative to the case, are not reasons that can serve to excuse the court for terminating the
proceedings by dismissing them without deciding the issues. Such an excuse is the less acceptable
because, foreseeing that a case might arise to which no law would be exactly applicable, the Civil
Code, in the second paragraph of article 6, provides that the customs of the place shall be observed,
and, in the absence thereof, the general principles of law.
Therefore the judgment and the order appealed from, hereinbefore mentioned, are reversed and to
record of the proceedings shall remanded to the court from whence they came for due trial and
judgment as provided by law. No special finding is made with regard to costs. So ordered.
Arellano, C. J., Torres, Johnson, and Trent, JJ., concur.
Moreland, J., took no part.
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION, Presiding Judge of the Regional Trial Court, National
Capital Judicial Region, Branch 47, Manila, HENRY LAGARTO y PETILLA and ERNESTO
CORDERO, respondents.

KAPUNAN, J .:
The sole issue in the case at bench involves a question of law. After finding that an accused
individual in a criminal case has, on the occasion of Rape, committed Homicide, is the judge allowed
any discretion in imposing either the penalty of Reclusion Perpetua or Death?
The facts antecedent to the case before this Court, as narrated by petitioner,
1
involve the
perpetration of acts so bizarre and devoid of humanity as to horrify and numb the senses of all
civilized men:
On August 2, 1994, the cadaver of a young girl, later identified as Angel Alquiza
wrapped in a sack and yellow table cloth tied with a nylon cord with both feet and left
hand protruding from it was seen floating along Del Pan St. near the corner of
Lavesares St., Binondo, Manila.
When untied and removed from its cover, the lifeless body of the victim was seen
clad only in a light colored duster without her panties, with gaping wounds on the left
side of the face, the left chin, left ear, lacerations on her genitalia, and with her head
bashed in.
On the basis of sworn statements of witnesses, booking sheets, arrest reports and the necropsy
report of the victim, Abundio Lagunday, a.k.a. Jr. Jeofrey of no fixed address, and Henry Lagarto y
Petilla, of 288 Area H. Parola Compound, Tondo, Manila were later charged with the crime of Rape
with Homicide in an Information dated August 8, 1994 filed with the Regional Trial Court of Manila,
National Capital Judicial Region. Said Information, docketed as Criminal Case No. 94-138071,
reads:
That on or about August 2, 1994, in the City of Manila, Philippines, the said accused,
conspiring and confederating together with one alias "LANDO" and other persons
whose true names, identifies and present whereabouts are still unknown and helping
one another, with treachery, taking advantage of their superior strength and
nocturnity, and ignominy, and with the use of force and violence, that is, by taking
ANGEL ALQUIZA y LAGMAN into a warehouse, covering her mouth, slashing her
vagina, hitting her head with a thick piece of wood and stabbing her neck did then
and there wilfully, unlawfully and feloniously have carnal knowledge of the person of
said ANGEL ALQUIZA y LAGMAN, a minor, seven (7) years of age, against the
latter's will and consent and on said occasion the said ABUNDIO LAGUNDAY, a.k.a.
"LANDO" and others, caused her fatal injuries which were the direct cause of her
death immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y Maristela, a.k.a. "Booster," of 1198
Sunflower St., Tondo, Manila, Rolando Manlangit y Mamerta, a.k.a. "Lando," of 1274
Kagitingan St., Tondo, Manila, Richard Baltazar y Alino, a.k.a. "Curimao," also of
1274 Kagitingan St., Tondo, Manila, and Catalino Yaon y Aberin, a.k.a. "Joel," of
1282 Lualhati St., Tondo, Manila were accused of the same crime of Rape with
Homicide in an Information dated August 11, 1994, docketed as Criminal Case No.
94-138138, allegedly committed as follows:
That on or about the 2nd day of August, 1994, in the City of Manila,
Philippines, the said accused conspiring and confederating with
ABUNDIO LAGUNDAY Alias "JR," JEOFREY and HENRY
LAGARTO y PETILLA who have already been charged in the
Regional Trial Court of Manila of the same offense under Criminal
Case No. 94-138071, and helping one another, with treachery, taking
advantage of their superior strength and nocturnity and ignominy, and
with the use of force and violence, that is, by taking ANGEL ALQUIZA
y LAGMAN into a pedicab, and once helpless, forcibly bringing her to
a nearby warehouse, covering her mouth, slashing her vagina, hitting
her head with a thick piece of wood and stabbing her neck, did then
and there wilfully, unlawfully and feloniously have carnal knowledge
of the person of said ANGEL ALQUIZA y LAGMAN, a minor, seven
(7) years of age, against the latter's will and consent and on said
occasion the said accused together with their confederates ABUNDIO
LAGARTO y PETILLA caused her fatal injuries which were the direct
cause of her death immediately thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to Branch 47 of the Regional Trial Court of
Manila, presided over by respondent Judge.
Duly arraigned, all the accused, except Abundio Lagunday who was already dead,
(allegedly shot by police escorts after attempting to fire a gun he was able to grab
from SPO1 D. Vidad on August 12, 1994), pleaded "Not Guilty." Abundio Lagunday
was dropped from the Information.
After trial and presentation of the evidence of the prosecution and the defense, the trial court
rendered a decision
2
on January 31, 1995 finding the defendants Henry Lagarto y Petilla and
Ernesto Cordero y Maristela guilty beyond reasonable doubt of the crime of Rape with Homicide and
sentenced both accused with the "penalty ofreclusion perpetua with all the accessories provided for
by law."
3
Disagreeing with the sentence imposed, the City Prosecutor of Manila on February 8,
1995, filed a Motion for Reconsideration, praying that the Decision be "modified in that the penalty of
death be imposed" against respondents Lagarto and Cordero, in place of the original penalty
(reclusion perpetua). Refusing to act on the merits of the said Motion for Reconsideration,
respondent Judge, on February 10, 1995, issued an Order denying the same for lack of jurisdiction.
The pertinent portion reads:
The Court believes that in the above-entitled cases, the accused Lagarto and
Cordero have complied with the legal requirements for the perfection of an appeal.
Consequently, for lack of jurisdiction, this Court cannot take cognizance of the Motion
for Reconsideration of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by this Court regarding the Notices of Appeal
filed by both herein accused is hereby reiterated.
The Clerk of this Court is hereby directed to transmit the complete records of these
cases, together with the notices of appeal, to the Honorable Supreme Court, in
accordance with Sec. 8, Rule 122 of the Revised Rules of Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue in the case at bench. The basis of the trial court's
determination of guilt and its conclusions will only be subject to our scrutiny at an appropriate time
on appeal. We have thus clinically limited our narration of events to those cold facts antecedent to
the instant case relevant to the determination of the legal question at hand, i.e., whether or not the
respondent judge acted with grave abuse of discretion and in excess of jurisdiction when he failed
and/or refused to impose the mandatory penalty of death under Republic Act No. 7659, after finding
the accused guilty of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the bedrock of our system of justice. If judges, under the guise of
religious or political beliefs were allowed to roam unrestricted beyond boundaries within which they
are required by law to exercise the duties of their office, then law becomes meaningless. A
government of laws, not of men excludes the exercise of broad discretionary powers by those acting
under its authority. Under this system, judges are guided by the Rule of Law, and ought "to protect
and enforce it without fear or favor,"
4
resist encroachments by governments, political parties,
5
or
even the interference of their own personal beliefs.
In the case at bench, respondent judge, after weighing the evidence of the prosecution and the
defendant at trial found the accused guilty beyond reasonable doubt of the crime of Rape with
Homicide. Since the law in force at the time of the commission of the crime for which respondent
judge found the accused guilty was Republic Act No. 7659, he was bound by its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is hereby amended to read as follows:
Art. 335. When and how rape is committed. Rape is committed by having carnal
knowledge of a woman under any of the following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or otherwise unconscious; and
3. When the woman is under twelve years of age or is demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with the use of a deadly weapon or by two
or more persons, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a homicide is committed by reason or
on the occasion thereof, the penalty shall be reclusion perpetua to death.
When by reason or on the occasion of the rape, a homicide is committed, the penalty
shall be death. . . .
6

Clearly, under the law, the penalty imposable for the crime of Rape with Homicide is not Reclusion
Perpetua but Death. While Republic Act 7659 punishes cases of ordinary rape with the penalty
of Reclusion Perpetua, it allows judges the discretion depending on the existence of
circumstances modifying the offense committed to impose the penalty of either Reclusion
Perpetua only in the three instances mentioned therein. Rape with homicide is not one of these three
instances. The law plainly and unequivocably provides that "[w]hen by reason or on the occasion of
rape, a homicide is committed, the penalty shall be death." The provision leaves no room for the
exercise of discretion on the part of the trial judge to impose a penalty under the circumstances
described, other than a sentence of death.
We are aware of the trial judge's misgivings in imposing the death sentence because of his religious
convictions. While this Court sympathizes with his predicament, it is its bounden duty to emphasize
that a court of law is no place for a protracted debate on the morality or propriety of the sentence,
where the law itself provides for the sentence of death as a penalty in specific and well-defined
instances. The discomfort faced by those forced by law to impose the death penalty is an ancient
one, but it is a matter upon which judges have no choice. Courts are not concerned with the wisdom,
efficacy or morality of laws. In People vs. Limaco 7 we held that:
[W]hen . . . private opinions not only form part of their decision but constitute a decisive
factor in arriving at a conclusion and determination of a case or the penalty imposed,
resulting in an illegality and reversible error, then we are constrained to state our opinion,
not only to correct the error but for the guidance of the courts. We have no quarrel with
the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death
penalty. Today there are quite a number of people who honestly believe that the supreme
penalty is either morally wrong or unwise or ineffective. However, as long as that penalty
remains in the statute books, and as long as our criminal law provides for its imposition in
certain cases, it is the duty of judicial officers to respect and apply the law regardless of
their private opinions. It is a well settled rule that the courts are not concerned with the
wisdom, efficacy or morality of laws. That question falls exclusively within the province of
the Legislature which enacts them and the Chief Executive who approves or vetoes
them. The only function of the judiciary is to interpret the laws and, if not in disharmony
with the Constitution, to apply them. And for the guidance of the members of the judiciary
we feel it incumbent upon us to state that while they as citizens or as judges may regard
a certain law as harsh, unwise or morally wrong, and may recommend to the authority or
department concerned, its amendment, modification, or repeal, still, as long as said law is
in force, they must apply it and give it effect as decreed by the law-making body.
8

Finally, the Rules of Court mandates that after an adjudication of guilt, the judge should impose "the
proper penalty and civil liability provided for by the law on the accused."
9
This is not a case of a
magistrate ignorant of the law. This is a case in which a judge, fully aware of the appropriate
provisions of the law, refuses to impose a penalty to which he disagrees. In so doing, respondent
judge acted without or in excess of his jurisdiction or with grave abuse of discretion amounting to a
lack of jurisdiction in imposing the penalty of Reclusion Perpetua where the law clearly imposes the
penalty of Death.
WHEREFORE, PREMISES CONSIDERED, the instant petition is GRANTED. The case is hereby
REMANDED to the Regional Trial Court for the imposition of the penalty of death upon private
respondents in consonance with respondent judge's finding that the private respondents in the
instant case had committed the crime of Rape with Homicide under Article 335 of the Revised Penal
Code, as amended by Section 11 of Republic Act No. 7659, subject to automatic review by this
Court of the decision imposing the death penalty.
SO ORDERED.
Feliciano, Padilla, Romero, Bellosillo, Melo, Puno, Mendoza, Francisco and Hermosisima, Jr., JJ.,
concur.



Separate Opinions

NARVASA, C.J ., concurring:
I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw
up this separate opinion merely to address a question which may be raised in relation to the appeal
taken by the accused from the judgment of conviction rendered by respondent Judge. It will be
recalled that respondent Judge declined to act on the merits of motion for reconsideration filed by
the prosecution praying that his decision sentencing both accused to suffer reclusion perpetua be
"modified in that the penalty of death be imposed" for the reason that since the accused had
already "complied with the legal requirements for the perfection of an appeal," the Trial Court had
lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court
of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the
court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This
proposition considered, and following respondent Judge's reasoning, this Court's directive for the
remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon
private respondents," might appear to be open to question, since it would require the Trial Court to
act in cases over which it had lost jurisdiction. Such a conclusion is not warranted.
The judgment in question is void, and has been annulled and set aside by this Court, because
rendered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack
of jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond
reasonable doubt, a penalty other than that peremptorily prescribed by law. The judgment being
void, the appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be
deemed to have thereby lost jurisdiction of the cases. It cannot thus be said that it is being required
by this Court to act in cases over which it has already lost jurisdiction. There exists no legal obstacle
to the remand of the cases to it and its modification of the judgment so that it may comply with the
mandatory prescription of the law.
REGALADO, J ., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo impose
the correct penalty of death as provided by law and consequent to its findings of guilt on the part of
private respondents. Indeed, this separate opinion which explicates my conformity with the
procedure adopted and the mandate thereof would not have been necessary were it not for the
contrary observations that the petition herein should either have been dismissed or consolidated with
the criminal case elevated on appeal by private respondents.
Such digression from the judgment unconditionally accepted by the other members of the Court
does not impress me as being concordant with the Rules of Court and decisional law. What is before
us in the case at bar is an original civil action invoking the extraordinary writ of certiorari for the
imposition of the correct penalty specified by law, which legal duty respondent judge refused to
comply with in grave abuse of his judicial discretion.
1
On the other hand, the criminal case with
which it is sought to be consolidated is an appellate recourse wherein the relief sought is primarily
the reversal of the finding of guilt and the absolution of private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil
action are entirely different from the issues for resolution and the modificatory judgment desired in
the appealed criminal case. The basic rule in consolidation of cases in civil procedure
2
requires,
among others, the same subject matter and the existence of a common question of law or fact. This
is essentially the same as the rule on consolidation in criminal procedure
3
which contemplates
charges for offenses founded on the same facts, or forming part of a series of offenses of similar
character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal
actions, and not a special civil action in combination with the former. The impropriety of the latter
situation is specially underscored where the resolution of the controversy in the special civil action is
a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial
courts in the exercise of original jurisdiction and to the appellate courts in the implementation of
revisory power.
The purpose of the present original action for certiorari is to have the erroneous judgment of
respondent judge erroneous because he imposed the wrong penalty corrected on that score in
the first instance. After such correction shall have been effected, then the appeal from his judgment
shall proceed for the desired review by this Court to determine the guilt or innocence of appellants.
The corrective action must proceed first and the resultant amended judgment containing the proper
penalty shall be the basis for the review as to whether appellants are truly guilty and have to be
meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification
with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity of
both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate
review be conducted with the judgment containing an unauthorized penalty as the basis therefor,
with this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse.
True, an appeal throws the judgment a quoopen for review and the Court may raise the penalty to
the appropriate punitive level. But, as the People pertinently observes, what is there to prevent
appellants from withdrawing their appeal upon sensing from the arguments that, instead of the
acquittal or reduced penalty aspired for, the ultimate denouement would be the death sentence?
Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his
appeal in the appellate court.
4
Generally, the withdrawal of an appeal before the filing of the
appellee's brief in this Court is permitted.
5
Assuming that the Court denies the withdrawal of the
appeal in order that the mistake in the penalty imposed may be corrected in the judgment of the
case on the merits,
6
why should the appellate course of the proceedings still have to be subject to
such contingencies with the inevitable waste of time and effort in the formulation of alternative
theories in two sets of pleadings by both parties when with the decisive sweep of the adjudgment
here the doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error
from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in
the penalty is now rectified with the death sentence being substituted therefor, as undeniably it
should be, then the case will consequently be before this Court on automatic review. That provision
calling for automatic review when capital punishment is inflicted
7
serves equally the interests of both
the defense and the prosecution through protective features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of
death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless
proceed, albeit without the benefit of briefs or arguments from the accused.
8
The automatic review of
the case shall proceed even if the death convict shall escape,
9
as an exception to the provisions of
Section 8, Rule 124, and such automatic review cannot be waived.
10
The aforementioned beneficial
effects are not provided for and may not be availed of by the accused in an ordinary appeal to this
Court.
The automatic review of the death sentence ensures the right of the condemned person to
procedural due process on appeal, and safeguards the interests of the State by exacting the
corresponding penal sanction decreed by law. The disposition adopted by the Court in this case
subserves the ends of these fundamental policies, hence my unqualified assent thereto.
VITUG, J ., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal
before this Court. Thus, the instant petition, in my view, has become academic since an appeal
brings the case wide open for review and consideration. A ruling on the petition would be precipitate
and might be so perceived as peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it
should at the very least be consolidated with the appealed case.
Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs.

Separate Opinions
NARVASA, C.J ., concurring:
I concur with the conclusions and dispositions set forth in the opinion of Mr. Justice Kapunan. I draw
up this separate opinion merely to address a question which may be raised in relation to the appeal
taken by the accused from the judgment of conviction rendered by respondent Judge. It will be
recalled that respondent Judge declined to act on the merits of motion for reconsideration filed by
the prosecution praying that his decision sentencing both accused to suffer reclusion perpetua be
"modified in that the penalty of death be imposed" for the reason that since the accused had
already "complied with the legal requirements for the perfection of an appeal," the Trial Court had
lost jurisdiction over the cases. It was precisely that refusal that prompted the institution in this Court
of the special civil action of certiorari at bar.
It is indeed axiomatic that once an appeal is perfected from a judgment, jurisdiction is lost by the
court rendering the judgment; and jurisdiction over the case passes to the appellate tribunal. This
proposition considered, and following respondent Judge's reasoning, this Court's directive for the
remand of the case "to the Regional Trial Court for the imposition of the penalty of death upon
private respondents," might appear to be open to question, since it would require the Trial Court to
act in cases over which it had lost jurisdiction. Such a conclusion is not warranted.
The judgment in question is void, and has been annulled and set aside by this Court, because
rendered "without or in excess of . . . jurisdiction or with grave abuse of discretion amounting to lack
of jurisdiction," in so far as it imposes, in light of the facts found to have been proven beyond
reasonable doubt, a penalty other than that peremptorily prescribed by law. The judgment being
void, the appeal attempted to be taken therefrom is inefficacious. The Trial Court may not be
deemed to have thereby lost jurisdiction of the cases. It cannot thus be said that it is being required
by this Court to act in cases over which it has already lost jurisdiction. There exists no legal obstacle
to the remand of the cases to it and its modification of the judgment so that it may comply with the
mandatory prescription of the law.
REGALADO, J ., concurring:
I concur without reservation in the ponencia in this case and its directive that the court a quo impose
the correct penalty of death as provided by law and consequent to its findings of guilt on the part of
private respondents. Indeed, this separate opinion which explicates my conformity with the
procedure adopted and the mandate thereof would not have been necessary were it not for the
contrary observations that the petition herein should either have been dismissed or consolidated with
the criminal case elevated on appeal by private respondents.
Such digression from the judgment unconditionally accepted by the other members of the Court
does not impress me as being concordant with the Rules of Court and decisional law. What is before
us in the case at bar is an original civil action invoking the extraordinary writ of certiorari for the
imposition of the correct penalty specified by law, which legal duty respondent judge refused to
comply with in grave abuse of his judicial discretion.
1
On the other hand, the criminal case with
which it is sought to be consolidated is an appellate recourse wherein the relief sought is primarily
the reversal of the finding of guilt and the absolution of private respondents.
Evidently, the determinative issues involved and the limited relief sought in the present special civil
action are entirely different from the issues for resolution and the modificatory judgment desired in
the appealed criminal case. The basic rule in consolidation of cases in civil procedure
2
requires,
among others, the same subject matter and the existence of a common question of law or fact. This
is essentially the same as the rule on consolidation in criminal procedure
3
which contemplates
charges for offenses founded on the same facts, or forming part of a series of offenses of similar
character.
Also, these reglementary requisites for consolidation require two or more ordinary civil or criminal
actions, and not a special civil action in combination with the former. The impropriety of the latter
situation is specially underscored where the resolution of the controversy in the special civil action is
a pre-judicial matter in the appealed criminal case. These considerations apply to both the trial
courts in the exercise of original jurisdiction and to the appellate courts in the implementation of
revisory power.
The purpose of the present original action for certiorari is to have the erroneous judgment of
respondent judge erroneous because he imposed the wrong penalty corrected on that score in
the first instance. After such correction shall have been effected, then the appeal from his judgment
shall proceed for the desired review by this Court to determine the guilt or innocence of appellants.
The corrective action must proceed first and the resultant amended judgment containing the proper
penalty shall be the basis for the review as to whether appellants are truly guilty and have to be
meted that ultimate penalty. To have the certiorari action proceed simultaneously and in unification
with the appellate proceeding strikes me as an aberrant procedure. While it does not exactly square
with the figurative posture of putting the cart before the horse, it does result in the same absurdity of
both the horse and the cart moving abreast at the same time along the same judicial path.
It would even be worse if, as suggested, this certiorari action should be dismissed and the appellate
review be conducted with the judgment containing an unauthorized penalty as the basis therefor,
with this Court closing its eyes to such a flagrant mistake. This time the cart precedes the horse.
True, an appeal throws the judgment a quoopen for review and the Court may raise the penalty to
the appropriate punitive level. But, as the People pertinently observes, what is there to prevent
appellants from withdrawing their appeal upon sensing from the arguments that, instead of the
acquittal or reduced penalty aspired for, the ultimate denouement would be the death sentence?
Jurisprudence tells us that before the case is submitted for decision, an appellant may withdraw his
appeal in the appellate court.
4
Generally, the withdrawal of an appeal before the filing of the
appellee's brief in this Court is permitted.
5
Assuming that the Court denies the withdrawal of the
appeal in order that the mistake in the penalty imposed may be corrected in the judgment of the
case on the merits,
6
why should the appellate course of the proceedings still have to be subject to
such contingencies with the inevitable waste of time and effort in the formulation of alternative
theories in two sets of pleadings by both parties when with the decisive sweep of the adjudgment
here the doubts are dissipated and the real areas of contention are laid bare?
Nor is that all. Appellants have come to this Court through the medium of an appeal by writ of error
from a judgment of the trial court imposing the wrong penalty of reclusion perpetua. If the mistake in
the penalty is now rectified with the death sentence being substituted therefor, as undeniably it
should be, then the case will consequently be before this Court on automatic review. That provision
calling for automatic review when capital punishment is inflicted
7
serves equally the interests of both
the defense and the prosecution through protective features established by case law.
Thus, even if the accused had unnecessarily appealed from the judgment imposing the penalty of
death and he thereafter withdraws his appeal, the automatic review of the case shall nonetheless
proceed, albeit without the benefit of briefs or arguments from the accused.
8
The automatic review of
the case shall proceed even if the death convict shall escape,
9
as an exception to the provisions of
Section 8, Rule 124, and such automatic review cannot be waived.
10
The aforementioned beneficial
effects are not provided for and may not be availed of by the accused in an ordinary appeal to this
Court.
The automatic review of the death sentence ensures the right of the condemned person to
procedural due process on appeal, and safeguards the interests of the State by exacting the
corresponding penal sanction decreed by law. The disposition adopted by the Court in this case
subserves the ends of these fundamental policies, hence my unqualified assent thereto.
VITUG, J ., dissenting:
The ponencia itself indicates that the case against the convicted accused is already on appeal
before this Court. Thus, the instant petition, in my view, has become academic since an appeal
brings the case wide open for review and consideration. A ruling on the petition would be precipitate
and might be so perceived as peremptory on the imposition of the death penalty.
With all due respect, it is my personal view that if the Court is not disposed to dismiss the petition, it
should at the very least be consolidated with the appealed case.
Accordingly, I am constrained, at this time, to vote for the dismissal of the petition.
Davide, Jr., J. concurs.
Footnotes
1 Rollo, p. 4, Except as to the penalty imposed, petitioner and respondent
court are in agreement as to the essential facts of the case.
2 Rollo, pp. 24-51.
3 Rollo, p. 28, The dispositive portion reads:
WHEREFORE, premises considered judgment is hereby rendered,
dismissing the information as against ROLANDO MANLANGIT for lack of
evidence, and finding both accused HENRY LAGARTO y PETILLA and
ERNESTO CORDERO y MARISTELA "guilty beyond reasonable doubt of the
crime of RAPE WITH HOMICIDE charged in the Information of these cases,
and sentencing both accused the penalty of reclusion perpetua with all the
accessories provided for by law."
Said accused are further ordered to indemnify, jointly and severally, the
private complainant the sum of P100,000 for the death of the victim, ANGEL
ALQUIZA; the sum of P500,000 for moral damages, and the amount of
P52,000.00 for actual damages representing expenses incurred for the wake
and funeral of the victim. They are further ordered to pay the costs of these
suits.
SO ORDERED. (ANNEX 'A', Petition)
4 Act of Athens (1955).
5 Id.
6 Emphasis supplied.
7 88 Phil. 36 [1951].
8 Id. at 43-44.
9 Rule 120, sec. 1.
REGALADO, concurring:
1 People vs. Olaes, 105 Phil. 502 (1959); People vs. Limaco, 88 Phil. 35
(1951); People vs. Carillo, et al., 85 Phil. 611 (1950).
2 Section 1, Rule 31.
3 Section 14, Rule 119.
4 U.S. vs. Sotto, 38 Phil. 666 (1918).
5 People vs. Mendoza, 93 Phil. 581 (1953).
6 See People vs. Roque, G.R. No. 53470, June 26, 1981, 105 SCRA 117.
7 Sec. 10, Rule 122.
8 People vs. Villanueva, 93 Phil. 927 (1953).
9 People vs. Vallente, L-37937, September 30, 1986, 144 SCRA 495; People
vs. Cornelio, et al., L-1289, June 10, 1971, 39 SCRA 435.
10 People vs. Daban, L-31429, January 31, 1972, 43 SCRA 185.
A.M. No. 53-MJ January 31, 1974
LOURDES CORPUS, complainant,
vs.
MUNICIPAL JUDGE CIPRIANO P. CABALUNA, JR., ALIMODIAN, ILOILO, respondent.

MUOZ PALMA, J .:1wph 1.t
Sometime on August 26, 1953, Lourdes Corpus and several, others filed with the Court of
First Instance of Iloilo a complaint against Tiburcia Brabanco and Felix Amijana docketed as
civil case No. 2843 concerning the ownership of two parcels of land located in Barrio Bugang,
Municipality of Alimodian, Province of Iloilo. In a decision dated September 5, 1955, the Court
of First Instance of Iloilo rendered judgment declaring the plaintiffs true owners of the parcels
of land described in the complaint and ordering the defendants to vacate the same. These
case was appealed to the Court of Appeals by the defendants and on February 26, 1963, a
judgment was rendered which affirmed the decision of the trial court.
1

In the meantime, the Municipal Judge of Alimodian, Iloilo, Mr. Cipriano P. Cabaluna, Jr.,
acting as Cadastral Judge, heard several cadastral cases, one of which was Cadastral Case
No. N-11, L.R.C. Cadastral Record No. N-387 of the Alimodian Cadastre, which involved a
parcel of land described as cadastral lot 1762, with Adriano Camarista as claimant. In the
course of the hearing of the case, Adriano Camarista executed a deed of sale in favor of
Procopio Cabalfin and the document was ratified by Judge Cabaluna, Jr. After the hearing,
cadastral lot 1762 was adjudicated to spouses Procopio and Cleofe Cabalfin on July 30,
1963.
2

On March 4, 1964, Lourdes Corpus and her co-plaintiffs in civil case 2843 filed in the
cadastral case a petition to set aside the decision rendered therein and to order another
hearing on the ground that cadastral lot 1762 is the same parcel of land litigated in civil case
2843 which was awarded to them by final judgment of the Court of Appeals. Upon receipt of
this petition, Judge Cabaluna, Jr. inhibited himself and forwarded the records to the Court of
First Instance of Iloilo for a hearing on the merits.
3

Lourdes Corpus likewise filed on April 26, 1966, a complaint with the Court of First Instance
of Iloilo against spouses Procopio and Cleofe Cabalfin for annulment of the aforementioned
decision rendered in the cadastral case
4
and there the trial court found that cadastral lot 1762
and the land litigated in civil case 2843 were indeed one and the same.
5

Not contented with having filed civil case 6998, Lourdes Corpus charged Judge Cabaluna, Jr.
before the Secretary of Justice with having committed "gross fraud" in that knowing, of the
pendency of the above-mentioned civil case before the Court of Appeals, said Judge
nonetheless ratified a deed of sale of cadastral lot 1762 in favor of Procopio Cabalfin and
awarded said lot to the latter.
6
The Secretary of Justice required respondent Judge to answer
the complaint after which the record was forwarded to Judge Sancho Y. Inserto of the Court
of First Instance of Iloilo for investigation, report and recommendation. On May 24, 1972,
Judge Inserts submitted his report and recommended the exoneration of respondent for lack
of evidence to substantiate the charge.
7
The office of the Secretary of Justice concurs with
the recommendation.
8

For the charge of "gross fraud" to prosper there is need of clear and convincing evidence
that respondent knew that one of the parcels involved in civil case 2843 and adjudicated to
complainantwas the same property which he awarded to spouses Cabalfin in the cadastral
proceeding; such evidence is, however, wanting in the record of this case.
The only possible basis for complainant's accusation was her testimony that sometime in
1961 she met respondent who inquired about the status or "development" of the civil case
and she informed him that the case was still pending before the Court of Appeals.
9
Assuming
that the conversation occurred, complainant failed, however, to bring out that respondent
was cognizant of the relation of the property involved in the civil case to the land applied for
in the cadastral proceeding. The complaint in the civil case did not identify any of the two
parcels described therein as cadastral lot 1762
10
which was the identification used in the
cadastral proceeding. As a matter of fact, complainant herself was unaware in 1961 that
cadastral lot 1762 claimed by Adriano Camarista in the cadastral proceeding was the same
land adjudicated to her and her co-plaintiffs in the civil case, and for that reason she did not
oppose the claim of Camarista not until she filed her answer in the cadastral proceeding on
February 6, 1964, by which time, however, the land had already been awarded to spouses
Procopio Cabalfin and Cleofe C. Cabalfin as vendees of the applicant.
11

The acts of respondent in ratifying the deed of sale of lot 1762 executed by Adriano
Camarista in favor of spouses Cabalfin and adjudicating said lot to the latter as vendees
thereof are not in themselves "fraudulent", to use the word of complainant, in the absence of
any showing that respondent connivedwith the claimant Adriano Camarista and/or spouses
Cabalfin in causing the approval of the latter's claim over the land in question to the
prejudice of the rights of complainant.
Fraud is serious charge which cannot be lightly inferred from allegations or circumstances
surrounding a particular situation, but must be supported by clear and convincing proof.
12

WHEREFORE, We exonerate respondent and dismiss the charge against him.
Makalintal, C.J ., Castro, Teehankee, Makasiar and Esguerra, J J ., concur.1wph 1.t

Footnotes
1 CA-G.R. No. 17053-R, pp. 45-66, Rollo.
2 Pp. 92-115, Rollo.
3 Pp. 69-72, Rollo.
4 Civil Case No. 6998, p. 73, Rollo.
5 Pp. 78-84, Rollo.
6 Pp. 3-6, Rollo.
7 Pp. 272-279, Rollo.
8 See pp. A & B, Rollo.
9 Tsn. pp. 6-7, March 6, 1972, pp. 159-160, rollo.
10 See Complaint, pp. 45-47, rollo.
11 P. 115, rollo.
12 Republic vs. Ker & Co., 18 SCRA 207; Gutierrez vs. Villegas, et al., 8 SCRA
527, 537.
G.R. No. L-42050-66 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE JUDGE AMANTE P. PURISIMA, COURT OF FIRST INSTANCE OF MANILA,
BRANCH VII, and PORFIRIO CANDELOSAS, NESTOR BAES, ELIAS L. GARCIA, SIMEON
BUNDALIAN, JR., JOSEPH C. MAISO, EDUARDO A. LIBORDO, ROMEO L. SUGAY, FEDERICO
T. DIZON, GEORGE M. ALBINO, MARIANO COTIA, JR., ARMANDO L. DIZON, ROGELIO B.
PARENO, RODRIGO V. ESTRADA, ALFREDO A. REYES, JOSE A. BACARRA, REYNALDO
BOGTONG, and EDGARDO M. MENDOZA, respondents.
G.R. No. L-46229-32 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
REYNALDO LAQUI Y AQUINO, ELPIDIO ARPON, VICTOR EUGENIO Y ROQUE and ALFREDO
VERSOZA, respondents.
G.R. No. L-46313-16 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
JUDGE MAXIMO A. MACEREN, COURT OF FIRST INSTANCE OF MANILA, BRANCH XVIII, and
JUANITO DE LA CRUZ Y NUNEZ, SABINO BUENO Y CACAL, TIRSO ISAGAN Y FRANCISCO
and BEN CASTILLO Y UBALDO, respondents.
G.R. No. L-46997 November 20, 1978
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE WENCESLAO M. POLO, Judge of the Court of First Instance of Samar, and
PANCHITO REFUNCION, respondents.
Jose L. Gamboa, Fermin Martin, Jr. & Jose D. Cajucom, Office of the City of Fiscal of Manila and the
Office of Provincial Fiscal of Samar for petitioners.
Norberto Parto for respondents Candelosas, Baes and Garcia.
Amado C. de la Marced for respondents Simeon Bundalian Jr., et al.
Manuel F. de Jesus for all the respondents in L-46229-32 and L-46313-16.
Norberto L. Apostol for respondent Panchito Refuncion.
Hon. Amante P. Purisima for and in his own behalf.

MUOZ PALMA, J .:
These twenty-six (26) Petitions for Review filed by the People of the Philippines represented,
respectively, by the Office of the City Fiscal of Manila, the Office of the Provincial Fiscal of Samar,
and joined by the Solicitor General, are consolidated in this one Decision as they involve one basic
question of law.
These Petitions or appeals involve three Courts of First Instance, namely: the Court of First Instance
of Manila, Branch VII, presided by Hon. Amante P. Purisima (17 Petitions), the Court of First
Instance of Manila, Branch XVIII, presided by Hon. Maximo A. Maceren (8 Petitions) and, the Court
of First Instance of Samar, with Hon. Wenceslao M. Polo, presiding, (1 Petition).
Before those courts, Informations were filed charging the respective accused with "illegal possession
of deadly weapon" in violation of Presidential Decree No. 9. On a motion to quash filed by the
accused, the three Judges mentioned above issued in the respective cases filed before them the
details of which will be recounted below an Order quashing or dismissing the Informations, on
a common ground, viz, that the Information did not allege facts which constitute the offense
penalized by Presidential Decree No. 9 because it failed to state one essential element of the crime.
Thus, are the Informations filed by the People sufficient in form and substance to constitute the
offense of "illegal possession of deadly weapon" penalized under Presidential Decree (PD for short)
No. 9? This is the central issue which we shall resolve and dispose of, all other corollary matters not
being indispensable for the moment.
A The Information filed by the People
1. In L-42050-66, one typical Information filed with the Court presided by Judge Purisima follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus PORFIRIO CANDELOSAS Y
DURAN, accused.
Crim. Case No. 19639
VIOLATION OF PAR. 3, PRES. DECREE No. 9 OF PROCLAMATION 1081
INFORMATION
The undersigned accuses PORFIRIO CANDELOSAS Y DURAN of a violation of
paragraph 3, Presidential Decree No. 9 of Proclamation 1081, committed as follows:
That on or about the 14 th day of December, 1974, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully, feloniously and knowingly
have in his possession and under his custody and control one (1) carving knife with a
blade of 6- inches and a wooden handle of 5-1/4 inches, or an overall length of 11-
inches, which the said accused carried outside of his residence, the said weapon
not being used as a tool or implement necessary to earn his livelihood nor being
used in connection therewith.
Contrary to law. (p. 32, rollo of L-42050-66)
The other Informations are similarly worded except for the name of the accused, the date and place
of the commission of the crime, and the kind of weapon involved.
2. In L-46229-32 and L-46313-16, the Information filed with the Court presided by Judge Maceren
follows:
THE PEOPLE OF THE PHILIPPINES, plaintiff, versus REYNALDO LAQUI Y
AQUINO, accused.
CRIM.
CASE
NO.
29677
VIOL.
OF
PAR.
3,
PD 9
IN
REL.
TO LOI
No.
266 of
the
Chief
Executi
ve
dated
April 1,
1975
INFORMATION
The undersigned accuses REYNALDO LAQUI Y AQUINO of a VIOLATION OF
PARAGRAPH 3, PRESIDENTIAL DECREE NO. 9 in relation to Letter of Instruction
No. 266 of the Chief Executive dated April 1, 1975, committed as follows:
That on or about the 28 th day of January, 1977, in the City of Manila, Philippines,
the said accused did then and there wilfully, unlawfully and knowingly carry outside
of his residence a bladed and pointed weapon, to wit: an ice pick with an overall
length of about 8 inches, the same not being used as a necessary tool or
implement to earn his livelihood nor being used in connection therewith.
Contrary to law. (p. 14, rollo of L-46229-32)
The other Informations are likewise similarly worded except for the name of the accused, the date
and place of the commission of the crime, and the kind of weapon involved.
3. In L-46997, the Information before the Court of First Instance of Samar is quoted hereunder:
PEOPLE OF THE PHILIPPINES, complainant, versus PANCHITO REFUNCION,
accused.
CRIM.
CASE
NO.
933
For:
ILLEG
AL
POSS
ESSIO
N OF
DEADL
Y
WEAP
ON
(VIOLA
TION
OF PD
NO. 9)
INFORMATION
The undersigned First Assistant Provincial Fiscal of Samar, accuses PANCHITO
REFUNCION of the crime of ILLEGAL POSSESSION OF DEADLY WEAPON or
VIOLATION OF PD NO. 9 issued by the President of the Philippines on Oct. 2, 1972,
pursuant to Proclamation No. 1081 dated Sept. 21 and 23, 1972, committed as
follows:
That on or about the 6th day of October, 1976, in the evening at Barangay Barruz,
Municipality of Matuginao, Province of Samar Philippines, and within the jurisdiction
of this Honorabe Court, the abovenamed accused, knowingly, wilfully, unlawfully and
feloniously carried with him outside of his residence a deadly weapon called
socyatan, an instrument which from its very nature is no such as could be used as a
necessary tool or instrument to earn a livelihood, which act committed by the
accused is a Violation of Presidential Decree No. 9.
CONTRARY TO LAW. (p. 8, rollo of L-46997)
B. The Orders of dismissal
In dismissing or quashing the Informations the trial courts concurred with the submittal of the
defense that one essential element of the offense charged is missing from the Information, viz: that
the carrying outside of the accused's residence of a bladed, pointed or blunt weapon is in
furtherance or on the occasion of, connected with or related to subversion, insurrection, or rebellion,
organized lawlessness or public disorder.
1. Judge Purisima reasoned out, inter alia, in this manner:
... the Court is of the opinion that in order that possession of bladed weapon or the
like outside residence may be prosecuted and tried under P.D. No. 9, the information
must specifically allege that the possession of bladed weapon charged was for the
purpose of abetting, or in furtherance of the conditions of rampant criminality,
organized lawlessness, public disorder, etc. as are contemplated and recited in
Proclamation No. 1081, as justification therefor. Devoid of this specific allegation, not
necessarily in the same words, the information is not complete, as it does not allege
sufficient facts to constitute the offense contemplated in P.D. No. 9. The information
in these cases under consideration suffer from this defect.
xxx xxx xxx
And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which
only God knows where it came from. Whereas before martial law an extortion-
minded peace officer had to have a stock of the cheapest paltik, and even that could
only convey the coercive message of one year in jail, now anything that has the
semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik.
For sure, P.D. No. 9 was conceived with the best of intentions and wisely applied, its
necessity can never be assailed. But it seems it is back-firing, because it is too hot in
the hands of policemen who are inclined to backsliding.
The checkvalves against abuse of P.D. No. 9 are to be found in the heart of the
Fiscal and the conscience of the Court, and hence this resolution, let alone technical
legal basis, is prompted by the desire of this Court to apply said checkvalves. (pp.
55-57, rollo of L-42050-66)
2. Judge Maceren in turn gave his grounds for dismissing the charges as follows:
xxx xxx xxx
As earlier noted the "desired result" sought to be attained by Proclamation No. 1081
is the maintenance of law and order throughout the Philippines and the prevention
and suppression of all forms of lawless violence as well as any act of insurrection or
rebellion. It is therefore reasonable to conclude from the foregoing premises that the
carrying of bladed, pointed or blunt weapons outside of one's residence which is
made unlawful and punishable by said par. 3 of P.D. No. 9 is one
thatabets subversion, insurrection or rebellion, lawless violence, criminality, chaos
and public disorder or is intended to bring about these conditions. This conclusion is
further strengthened by the fact that all previously existing laws that also made the
carrying of similar weapons punishable have not been repealed, whether expressly
or impliedly. It is noteworthy that Presidential Decree No. 9 does not contain any
repealing clause or provisions.
xxx xxx xxx
The mere carrying outside of one's residence of these deadly weapons if not
concealed in one's person and if not carried in any of the aforesaid specified places,
would appear to be not unlawful and punishable by law.
With the promulgation of Presidential Decree No. 9, however, the prosecution,
through Assistant Fiscal Hilario H. Laqui, contends in his opposition to the motion to
quash, that this act is now made unlawful and punishable, particularly by paragraph 3
thereof, regardless of the intention of the person carrying such weapon because the
law makes it "mala prohibita". If the contention of the prosecution is correct, then if a
person happens to be caught while on his way home by law enforcement officers
carrying a kitchen knife that said person had just bought from a store in order that the
same may be used by one's cook for preparing the meals in one's home, such
person will be liable for punishment with such a severe penalty as imprisonment from
five to ten years under the decree. Such person cannot claim that said knife is going
to be used by him to earn a livelihood because he intended it merely for use by his
cook in preparing his meals.
This possibility cannot be discounted if Presidential Decree No. 9 were to be
interpreted and applied in the manner that that the prosecution wants it to be done.
The good intentions of the President in promulgating this decree may thus be
perverted by some unscrupulous law enforcement officers. It may be used as a tool
of oppression and tyranny or of extortion.
xxx xxx xxx
It is therefore the considered and humble view of this Court that the act which the
President intended to make unlawful and punishable by Presidential Decree No. 9,
particularly by paragraph 3 thereof, is one that abets or is intended to abet
subversion, rebellion, insurrection, lawless violence, criminality, chaos and public
disorder. (pp. 28-30, rollo of L-46229-32)
3. Judge Polo of the Court of First Instance of Samar expounded his order dismissing the
Information filed before him, thus:
... We believe that to constitute an offense under the aforcited Presidential decree,
the same should be or there should be an allegation that a felony was committed in
connection or in furtherance of subversion, rebellion, insurrection, lawless violence
and public disorder. Precisely Proclamation No. 1081 declaring a state of martial law
throughout the country was issued because of wanton destruction to lives and
properties widespread lawlessness and anarchy. And in order to restore the
tranquility and stability of the country and to secure the people from violence anti loss
of lives in the quickest possible manner and time, carrying firearms, explosives and
deadly weapons without a permit unless the same would fall under the exception is
prohibited. This conclusion becomes more compelling when we consider the penalty
imposable, which is from five years to ten years. A strict enforcement of the provision
of the said law would mean the imposition of the Draconian penalty upon the
accused.
xxx xxx xxx
It is public knowledge that in rural areas, even before and during martial law, as a
matter of status symbol, carrying deadly weapons is very common, not necessarily
for committing a crime nor as their farm implement but for self-preservation or self-
defense if necessity would arise specially in going to and from their farm. (pp. 18-19,
rollo of L-46997)
In most if not all of the cases, the orders of dismissal were given before arraignment of the accused.
In the criminal case before the Court of (First Instance of Samar the accused was arraigned but at
the same time moved to quash the Information. In all the cases where the accused were under
arrest, the three Judges ordered their immediate release unless held on other charges.
C. The law under which the Informations in question were filed by the People.
As seen from the Informations quoted above, the accused are charged with illegal possession of
deadly weapon in violation of Presidential Decree No. 9, Paragraph 3.
We quote in full Presidential Decree No. 9, to wit:
PRESIDENTIAL DECREE NO. 9
DECLARING VIOLATIONS OF GENERAL ORDERS NO. 6 and NO. 7 DATED
SEPTEMBER 22, 1972, AND SEPTEMBER 23, 1972, RESPECTIVELY, TO BE
UNLAWFUL AND PROVIDING PENALTIES THEREFORE.
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, the
Philippines has been placed under a state of martial law;
WHEREAS, by virtue of said Proclamation No. 1081, General Order No. 6 dated
September 22, 1972 and General Order No. 7 dated September 23, 1972, have been
promulgated by me;
WHEREAS, subversion, rebellion, insurrection, lawless violence, criminality, chaos
and public disorder mentioned in the aforesaid Proclamation No. 1081 are committed
and abetted by the use of firearms, explosives and other deadly weapons;
NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the
Armed Forces of the Philippines, in older to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:
1. Any violation of the aforesaid General Orders Nos. 6 and 7 is unlawful and the
violator shall, upon conviction suffer:
(a) The mandatory penalty of death by a firing squad or electrocution as a Military,
Court/Tribunal/Commission may direct, it the firearm involved in the violation is
unlicensed and is attended by assault upon, or resistance to persons in authority or
their agents in the performance of their official functions resulting in death to said
persons in authority or their agent; or if such unlicensed firearm is used in the
commission of crimes against persons, property or chastity causing the death of the
victim used in violation of any other General Orders and/or Letters of Instructions
promulgated under said Proclamation No. 1081:
(b) The penalty of imprisonment ranging from twenty years to life imprisonment as a
Military Court/Tribunal/commission may direct, when the violation is not attended by
any of the circumstances enumerated under the preceding paragraph;
(c) The penalty provided for in the preceding paragraphs shall be imposed upon the
owner, president, manager, members of the board of directors or other responsible
officers of any public or private firms, companies, corporations or entities who shall
willfully or knowingly allow any of the firearms owned by such firm, company,
corporation or entity concerned to be used in violation of said General Orders Nos. 6
and 7.
2. It is unlawful to posses deadly weapons, including hand grenades, rifle grenades
and other explosives, including, but not limited to, "pill box bombs," "molotov cocktail
bombs," "fire bombs," or other incendiary device consisting of any chemical,
chemical compound, or detonating agents containing combustible units or other
ingredients in such proportion, quantity, packing, or bottling that ignites by fire, by
friction, by concussion, by percussion, or by detonation of all or part of the compound
or mixture which may cause such a sudden generation of highly heated gases that
the resultant gaseous pressures are capable of producing destructive effects on
continguous objects or of causing injury or death of a person; and any person
convicted thereof shall be punished by imprisonment ranging from ten to fifteen years
as a Military Court/Tribunal/Commission may direct.
3. It is unlawful to carry outside of residence any bladed, pointed or blunt weapon
such as "fan knife," "spear," "dagger," "bolo," "balisong," "barong," "kris," or club,
except where such articles are being used as necessary tools or implements to earn
a livelihood and while being used in connection therewith; and any person found
guilty thereof shall suffer the penalty of imprisonment ranging from five to ten years
as a Military Court/Tribunal/Commission may direct.
4. When the violation penalized in the preceding paragraphs 2 and 3 is committed
during the commission of or for the purpose of committing, any other crime, the
penalty shall be imposed upon the offender in its maximum extent, in addition to the
penalty provided for the particular offenses committed or intended to be committed.
Done in the City of Manila, this 2nd day of October in the year of Our Lord, nineteen
hundred and seventy-two.
(SGD) FERDINAND E.
MARCOS
Preside
nt
Republic of the
Philippines
D. The arguments of the People
In the Comment filed in these cases by the Solicitor General who as stated earlier joins the City
Fiscal of Manila and the Provincial Fiscal of Samar in seeking the setting aside of the questioned
orders of dismissal, the main argument advanced on the issue now under consideration is that a
perusal of paragraph 3 of P.D. 9 'shows that the prohibited acts need not be related to subversive
activities; that the act proscribed is essentially a malum prohibitum penalized for reasons of public
policy.
1

The City Fiscal of Manila in his brief adds further that in statutory offenses the intention of the
accused who commits the act is immaterial; that it is enough if the prohibited act is voluntarily
perpetuated; that P.D. 9 provides and condemns not only the carrying of said weapon in connection
with the commission of the crime of subversion or the like, but also that of criminality in general, that
is, to eradicate lawless violence which characterized pre-martial law days. It is also argued that the
real nature of the criminal charge is determined not from the caption or preamble of the information
nor from the specification of the provision of law alleged to have been violated but by the actual
recital of facts in the complaint or information.
2

E. Our Ruling on the matter
1. It is a constitutional right of any person who stands charged in a criminal prosecution to be
informed of the nature and cause of the accusation against him.
3

Pursuant to the above, Section 5, Rule 110 of the Rules of Court, expressly requires that for a
complaint or information to be sufficient it must, inter alia state the designation of the offense by the
statute, and the acts or omissions complained of as constituting the offense. This is essential to
avoid surprise on the accused and to afford him the opportunity to prepare his defense accordingly.
4

To comply with these fundamental requirements of the Constitution and the Rules on Criminal
Procedure, it is imperative for the specific statute violated to be designated or mentioned 4 in the
charge. In fact, another compelling reason exists why a specification of the statute violated is
essential in these cases. As stated in the order of respondent Judge Maceren the carrying of so-
called "deadly weapons" is the subject of another penal statute and a Manila city ordinance. Thus,
Section 26 of Act No. 1780 provides:
Section 26. It should be unlawful for any person to carry concealed about his person
any bowie knife, dirk dagger, kris, or other deadly weapon: ... Any person violating
the provisions of this section shall, upon conviction in a court of competent
jurisdiction, be punished by a fine not exceeding five hundred pesos, or by
imprisonment for a period not exceeding six months, or both such fine and
imprisonment, in the discretion of the court.
Ordinance No. 3820 of the City of Manila as amended by Ordinance No. 3928 which took effect on
December 4, 1957, in turn penalizes with a fine of not more than P200.00 or imprisonment for not
more than one months, or both, at the discretion of the court, anyone who shall carry concealed in
his person in any manner that would disguise its deadly character any kind of firearm, bowie knife, or
other deadly weapon ... in any public place.Consequently, it is necessary that the particular law
violated be specified as there exists a substantial difference between the statute and city ordinance
on the one hand and P.D. 9 (3) on the other regarding the circumstances of the commission of the
crime and the penalty imposed for the offense.
We do not agree with petitioner that the above-mentioned statute and the city ordinance are deemed
repealed by P.D. 9 (3).
5
P. D. 9(3) does not contain any repealing clause or provision, and repeal by
implication is not favored.
6
This principle holds true with greater force with regards to penal statutes
which as a rule are to be construed strictly against the state and liberally in favor of the accused.
7
In
fact, Article 7 of the New Civil Code provides that laws are repealed only by subsequent ones and
their violation or non- observance shall not be excused by disuse, or custom or practice to the
contrary.
Thus we are faced with the situation where a particular act may be made to fall, at the discretion of a
police officer or a prosecuting fiscal, under the statute, or the city ordinance, or the presidential
decree. That being the case, the right becomes more compelling for an accused to be confronted
with the facts constituting the essential elements of the offense charged against him, if he is not to
become an easy pawn of oppression and harassment, or of negligent or misguided official action
a fear understandably shared by respondent Judges who by the nature of their judicial functions are
daily exposed to such dangers.
2. In all the Informations filed by petitioner the accused are charged in the caption as well as in the
body of the Information with a violation of paragraph 3, P.D. 9. What then are the elements of the
offense treated in the presidential decree in question?
We hold that the offense carries two elements: first, the carrying outside one's residence of any
bladed, blunt, or pointed weapon, etc. not used as a necessary tool or implement for a livelihood;
and second, that the act of carrying the weapon was either in furtherance of, or to abet, or in
connection with subversion, rebellion, insurrection, lawless violence, criminality, chaos, or public
disorder.
It is the second element which removes the act of carrying a deadly weapon, if concealed, outside of
the scope of the statute or the city ordinance mentioned above. In other words, a simple act of
carrying any of the weapons described in the presidential decree is not a criminal offense in itself.
What makes the act criminal or punishable under the decree is the motivation behind it. Without that
motivation, the act falls within the purview of the city ordinance or some statute when the
circumstances so warrant.
Respondent Judges correctly ruled that this can be the only reasonably, logical, and valid
construction given to P.D. 9(3).
3. The position taken by petitioner that P.D. 9(3) covers one and all situations where a person
carries outside his residence any of the weapons mentioned or described in the decree irrespective
of motivation, intent, or purpose, converts these cases into one of "statutory construction." That there
is ambiguity in the presidential decree is manifest from the conflicting views which arise from its
implementation. When ambiguity exists, it becomes a judicial task to construe and interpret the true
meaning and scope of the measure, guided by the basic principle that penal statutes are to be
construed and applied liberally in favor of the accused and strictly against the state.
4. In the construction or interpretation of a legislative measure a presidential decree in these
cases the primary rule is to search for and determine the intent and spirit of the law. Legislative
intent is the controlling factor, for in the words of this Court in Hidalgo v. Hidalgo, per Mr. Justice
Claudio Teehankee, whatever is within the spirit of a statute is within the statute, and this has to be
so if strict adherence to the letter would result in absurdity, injustice and contradictions.
8

There are certain aids available to Us to ascertain the intent or reason for P.D. 9(3).
First, the presence of events which led to or precipitated the enactment of P.D. 9. These events are
clearly spelled out in the "Whereas" clauses of the presidential decree, thus: (1) the state of martial
law in the country pursuant to Proclamation 1081 dated September 21, 1972; (2) the desired result
of Proclamation 1081 as well as General Orders Nos. 6 and 7 which are particularly mentioned in
P.D. 9; and (3) the alleged fact that subversion, rebellion, insurrection, lawless violence, criminality,
chaos, aid public disorder mentioned in Proclamation 1081 are committed and abetted by the use of
firearms and explosives and other deadly weapons.
The Solicitor General however contends that a preamble of a statute usually introduced by the word
"whereas", is not an essential part of an act and cannot enlarge or confer powers, or cure inherent
defects in the statute (p. 120, rollo of L-42050-66); that the explanatory note or enacting clause of
the decree, if it indeed limits the violation of the decree, cannot prevail over the text itself inasmuch
as such explanatory note merely states or explains the reason which prompted the issuance of the
decree. (pp. 114-115, rollo of 46997)
We disagree with these contentions. Because of the problem of determining what acts fall within the
purview of P.D. 9, it becomes necessary to inquire into the intent and spirit of the decree and this
can be found among others in the preamble or, whereas" clauses which enumerate the facts or
events which justify the promulgation of the decree and the stiff sanctions stated therein.
A "preamble" is the key of the statute, to open the minds of the makers as to
the mischiefs which are to be remedied, and objects which are to be accomplished,
by the provisions of the statute." (West Norman Timber v. State, 224 P. 2d 635, 639,
cited in Words and Phrases, "Preamble"; emphasis supplied)
While the preamble of a statute is not strictly a part thereof, it may, when the statute
is in itself ambiguous and difficult of interpretation, be resorted to, but not to create a
doubt or uncertainty which otherwise does not exist." (James v. Du Bois, 16 N.J.L. (1
Har.) 285, 294, cited in Words and Phrases, "Preamble")
In Aboitiz Shipping Corporation, et al. v. The City of Cebu, et al. this Court had occasion to state that
'(L)egislative intent must be ascertained from a consideration of the statute as a whole, and not of an
isolated part or a particular provision alone. This is a cardinal rule of statutory construction. For taken
in the abstract, a word or phrase might easily convey a meaning quite different from the one actually
intended and evident when the word or phrase is considered with those with which it is associated.
Thus, an apparently general provision may have a limited application if read together with other
provisions.
9

Second, the result or effects of the presidential decree must be within its reason or intent.
In the paragraph immediately following the last "Whereas" clause, the presidential decree states:
NOW, THEREFORE, I , FERDINAND E. MARCOS, Commander-in-Chief of an the
Armed Forces of the Philippines, in order to attain the desired result of the aforesaid
Proclamation No. 1081 and General Orders Nos. 6 and 7, do hereby order and
decree that:
xxx xxx xxx
From the above it is clear that the acts penalized in P.D. 9 are those related to
the desired result of Proclamation 1081 and General Orders Nos. 6 and 7. General
Orders Nos. 6 and 7 refer to firearms and therefore have no relevance to P.D. 9(3)
which refers to blunt or bladed weapons. With respect to Proclamation 1081 some of
the underlying reasons for its issuance are quoted hereunder:
WHEREAS, these lawless elements having taken up arms against our duly
constituted government and against our people, and having committed and are still
committing acts of armed insurrection and rebellion consisting of armed raids, forays,
sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons,
destruction of public and private buildings, and attacks against innocent and
defenseless civilian lives and property, all of which activities have seriously
endangered and continue to endanger public order and safety and the security of the
nation, ...
xxx xxx xxx
WHEREAS, it is evident that there is throughout the land a state of anarchy and
lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent
to an actual war between the forces of our duly constituted government and the New
People's Army and their satellite organizations because of the unmitigated forays,
raids, ambuscades, assaults, violence, murders, assassinations, acts of terror,
deceits, coercions, threats, intimidations, treachery, machinations, arsons, plunders
and depredations committed and being committed by the aforesaid lawless elements
who have pledged to the whole nation that they will not stop their dastardly effort and
scheme until and unless they have fully attained their primary and ultimate purpose
of forcibly seizing political and state power in this country by overthrowing our
present duly constituted government, ... (See Book I, Vital Documents on the
Declaration of Martial Law in the Philippines by the Supreme Court of the Philippines,
pp. 13-39)
It follows that it is only that act of carrying a blunt or bladed weapon with a motivation connected with
or related to the afore-quoted desired result of Proclamation 1081 that is within the intent of P.D.
9(3), and nothing else.
Statutes are to be construed in the light of purposes to be achieved and the evils
sought to be remedied. (U.S. v. American Tracking Association, 310 U.S. 534, cited
in LVN Pictures v. Philippine Musicians Guild, 110 Phil. 725, 731; emphasis supplied)
When construing a statute, the reason for its enactment should be kept in mind, and
the statute should be construed with reference to its intended scope and purpose.
(Statutory Construction by E.T. Crawford, pp. 604-605, cited in Commissioner of
Internal Revenue v. Filipinas Compania de Seguros, 107 Phil. 1055, 1060; emphasis
supplied)
5. In the construction of P.D. 9(3) it becomes relevant to inquire into the consequences of the
measure if a strict adherence to the letter of the paragraph is followed.
It is a salutary principle in statutory construction that there exists a valid presumption that
undesirable consequences were never intended by a legislative measure, and that a construction of
which the statute is fairly susceptible is favored, which will avoid all objectionable, mischievous,
indefensible, wrongful, evil, and injurious consequences.
9
-a
It is to be presumed that when P.D. 9 was promulgated by the President of the Republic there was
no intent to work a hardship or an oppressive result, a possible abuse of authority or act of
oppression, arming one person with a weapon to impose hardship on another, and so on.
10

At this instance We quote from the order of Judge Purisima the following:
And while there is no proof of it before the Court, it is not difficult to believe the
murmurings of detained persons brought to Court upon a charge of possession of
bladed weapons under P.D. No. 9, that more than ever before, policemen - of course
not all can be so heartless now have in their hands P.D. No. 9 as a most
convenient tool for extortion, what with the terrifying risk of being sentenced to
imprisonment of five to ten years for a rusted kitchen knife or a pair of scissors, which
only God knows where it came from. Whereas before martial law an extortion-
minded peace officer had to have a stock of the cheapest paltik, and even that could
only convey the coercive message of one year in jail, now anything that has the
semblance of a sharp edge or pointed object, available even in trash cans, may
already serve the same purpose, and yet five to ten times more incriminating than
the infamous paltik. (pp. 72-73, rollo L-42050-66)
And as respondent Judge Maceren points out, the people's interpretation of P.D. 9(3) results in
absurdity at times. To his example We may add a situation where a law-abiding citizen, a lawyer by
profession, after gardening in his house remembers to return the bolo used by him to his neighbor
who lives about 30 meters or so away and while crossing the street meets a policeman. The latter
upon seeing the bolo being carried by that citizen places him under arrest and books him for a
violation of P.D. 9(3). Could the presidential decree have been conceived to produce such absurd,
unreasonable, and insensible results?
6. Penal statutes are to be construed strictly against the state and liberally in favor of an accused.
American jurisprudence sets down the reason for this rule to be "the tenderness of the law of the
rights of individuals; the object is to establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited."
11
The purpose is not to enable a guilty person to
escape punishment through a technicality but to provide a precise definition of forbidden acts.
12

Our own decisions have set down the same guidelines in this manner, viz:
Criminal statutes are to be construed strictly. No person should be brought within
their terms who is not clearly within them, nor should any act be pronounced criminal
which is not made clearly so by the statute. (U.S. v. Abad Santos, 36 Phil. 243, 246)
The rule that penal statutes are given a strict construction is not the only factor
controlling the interpretation of such laws, instead, the rule merely serves as an
additional, single factor to be considered as an aid in determining the meaning of
penal laws. (People v. Manantan, 5 SCRA 684, 692)
F. The Informations filed by petitioner are fatally defective.
The two elements of the offense covered by P.D. 9(3) must be alleged in the Information in order
that the latter may constitute a sufficiently valid charged. The sufficiency of an Information is
determined solely by the facts alleged therein.
13
Where the facts are incomplete and do not convey
the elements of the crime, the quashing of the accusation is in order.
Section 2(a), Rule 117 of the Rules of Court provides that the defendant may move to quash the
complaint or information when the facts charged do not constitute an offense.
In U.S.U. Gacutan, 1914, it was held that where an accused is charged with knowingly rendering an
unjust judgment under Article 204 of the Revised Penal Code, failure to allege in the Information that
the judgment was rendered knowing it to be unjust, is fatal.
14

In People v. Yadao, 1954, this Court through then Justice Cesar Bengzon who later became Chief
Justice of the Court affirmed an order of the trial court which quashed an Information wherein the
facts recited did not constitute a public offense as defined in Section 1, Republic Act 145.
15

G. The filing of these Petitions was unnecessary because the People could have availed itself of
other available remedies below.
Pertinent provisions of the Rules of Court follow:
Rule 117, Section 7. Effect of sustaining the motion to quash. If the motion to
quash is sustained the court may order that another information be filed. If such order
is made the defendant, if in custody, shall remain so unless he shall be admitted to
bail. If such order is not made or if having been made another information is not filed
withuntime to be specified in the order, or within such further time as the court may
allow for good cause shown, the defendant, if in custody, shall be discharged
therefrom, unless he is in custody on some other charge.
Rule 110, Section 13. Amendment. The information or complaint may be
amended, in substance or form, without leave of court, at any time before the
defendant pleads; and thereafter and during the trial as to all matters of form, by
leave and at the discretion of the court, when the same can be done without
prejudice to the rights of the defendant.
xxx xxx xxx
Two courses of action were open to Petitioner upon the quashing of the Informations in these
cases, viz:
First, if the evidence on hand so warranted, the People could have filed an amended Information to
include the second element of the offense as defined in the disputed orders of respondent Judges.
We have ruled that if the facts alleged in the Information do not constitute a punishable offense, the
case should not be dismissed but the prosecution should be given an opportunity to amend the
Information.
16

Second, if the facts so justified, the People could have filed a complaint either under Section 26 of
Act No. 1780, quoted earlier, or Manila City Ordinance No. 3820, as amended by Ordinance No.
3928, especially since in most if not all of the cases, the dismissal was made prior to arraignment of
the accused and on a motion to quash.
Section 8. Rule 117 states that:
An order sustaining the motion to quash is not a bar to another prosecution for the
same offense unless the motion was based on the grounds specified in section 2,
subsections (f) and (h) of this rule.
Under the foregoing, the filing of another complaint or Information is barred only when the criminal
action or liability had been extinguished (Section 2[f]) or when the motion to quash was granted for
reasons of double jeopardy. (ibid., [h])
As to whether or not a plea of double jeopardy may be successfully invoked by the accused in all
these cases should new complaints be filed against them, is a matter We need not resolve for the
present.
H. We conclude with high expectations that police authorities and the prosecuting arm of the
government true to the oath of office they have taken will exercise utmost circumspection and good
faith in evaluating the particular circumstances of a case so as to reach a fair and just conclusion if a
situation falls within the purview of P.D. 9(3) and the prosecution under said decree is warranted and
justified. This obligation becomes a sacred duty in the face of the severe penalty imposed for the
offense.
On this point, We commend the Chief State Prosecutor Rodolfo A. Nocon on his letter to the City
Fiscal of Manila on October 15, 1975, written for the Secretary, now Minister of Justice, where he
stated the following:
In any case, please study well each and every case of this nature so that persons
accused of carrying bladed weapons, specially those whose purpose is not to subvert the
duly constituted authorities, may not be unduly indicted for the serious offenses falling
under P.D. No. 9.
17

Yes, while it is not within the power of courts of justice to inquire into the wisdom of a law, it is
however a judicial task and prerogative to determine if official action is within the spirit and letter of
the law and if basic fundamental rights of an individual guaranteed by the Constitution are not
violated in the process of its implementation. We have to face the fact that it is an unwise and unjust
application of a law, necessary and justified under prevailing circumstances, which renders the
measure an instrument of oppression and evil and leads the citizenry to lose their faith in their
government.
WHEREFORE, We DENY these 26 Petitions for Review and We AFFIRM the Orders of respondent
Judges dismissing or quashing the Information concerned, subject however to Our observations
made in the preceding pages 23 to 25 of this Decision regarding the right of the State or Petitioner
herein to file either an amended Information under Presidential Decree No. 9, paragraph 3, or a new
one under other existing statute or city ordinance as the facts may warrant.
Without costs.
SO ORDERED.
Fernando, Teehankee, Santos, Fernandez and Guerrero, JJ., concur.
Castro, C.J. and Antonio, J, concur in the result.
Aquino, J, took no part.


Separate Opinions

BARREDO, J ., concurring.
I concur with the qualification that under existing jurisprudence conviction is possible, without the
need of amending the information, for violation of other laws or ordinances on concealment of deadly
weapons.
Makasiar, J, concurs.
CONCEPCION, J R., J , concurring:
I concur with the additional observation that accused could properly be convicted of a violation of Act
1780 of the Philippine Commission or of the ordinance.


Separate Opinions
BARREDO, J ., concurring.
I concur with the qualification that under existing jurisprudence conviction is possible, without the
need of amending the information, for violation of other laws or ordinances on concealment of deadly
weapons.
Makasiar, J, concurs.
CONCEPCION, J R., J , concurring:
I concur with the additional observation that accused could properly be convicted of a violation of Act
1780 of the Philippine Commission or of the ordinance.
Footnotes
1 p. 118, rollo of L-42050-66.
2 pp. 10-11, brief of Petitioner at p. 218, Ibid.
3 Art. IV, Sec. 19, 1973 Constitution.
4 Francisco on the Revised Rules of Court, 1969 Ed., Vol. on Criminal Procedure, p.
86.
5 pp. 33-34 brief of Petitioner filed by the City Fiscal of Manila.
6 Valera v. Tuason, Jr., et al., 80 Phil. 823, citing U.S. v. Palacio, 33 Phil. 208;
Quisumbing v. Lachica, 2 SCRA 182; Almeda v. Florentino, 15 SCRA 514; Lechoco
v. Civil Aeronautics Board, 43 SCRA 670.
7 People v. Elkanish, 1951, 90 Phil. 53, 57 People v. Yadao, 1954, 94 Phil. 726, 728.
8 33 SCRA 105. See also 73 Am Jur 2d 351 citing United States v. N.E. Rosenblum
Truck Lines, Inc., 315 US 50,86 L Ed 671; United States v. Stone & Downer Co., 274
US 225, 71 L Ed 1013; Ebert v. Poston, 266 US 548, 69 L Ed 435; Wisconsin C.R.
Co. v. Forsythe, 159 US 46,40 L Ed 71.
9 13 SCRA 449, 453; Emphasis supplied.
9-a 73 Am Jur 2d 428.
10 See 73 Am Jur 2d 432-433 for cases on the foregoing undesirable consequences.
11 United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin
Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d 549; Jennings v.
Commonwealth, 109 Va 821, 63 SE 1080, all cited in 73 Am Jur 2d 452.
12 State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory
Construction, Rev. Ed. pp. 183-184.
13 People v. Supnad, 7 SCRA 603, 606.
14 28 Phil. See Moran, Comments on the Rules of Court, 1970 Ed., Vol. 4, p. 222.
15 94 Phil. 726.
16 People v. Plaza, 7 SCRA 617.
17 This letter which was addressed to the City Fiscal of Manila referred to a decision
of the Court of First Instance of Manila, Branch III, in Criminal Case No. 21178,
"People vs. Conrado C. Petate, "for violation of Presidential Decree No. 9.
G.R. No. L-5691 December 27, 1910
S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ, plaintiffs-appellees,
vs.
WILLIAM VAN BUSKIRK, defendant-appellant.
Lionel D. Hargis for appellant.
Sanz and Oppisso for appellee.

MORELAND, J .:
The facts found by the trial court are undisputed by either party in this case. They are
That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding
in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of
the street as she was going, when a delivery wagon belonging to the defendant used for the
purpose of transportation of fodder by the defendant, and to which was attached a pair of
horses, came along the street in the opposite direction to that the in which said plaintiff was
proceeding, and that thereupon the driver of the said plaintiff's carromata, observing that the
delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk
on the left-hand side of the street and stopped, in order to give defendant's delivery wagon
an opportunity to pass by, but that instead of passing by the defendant's wagon and horses
ran into the carromata occupied by said plaintiff with her child and overturned it, severely
wounding said plaintiff by making a serious cut upon her head, and also injuring the
carromata itself and the harness upon the horse which was drawing it.

These facts are not dispute, but the defendant presented evidence to the effect that the
cochero, who was driving his delivery wagon at the time the accident occurred, was a good
servant and was considered a safe and reliable cochero; that the delivery wagon had sent to
deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of
delivery thereof the cochero driving the team as defendant's employee tied the driving lines
of the horses to the front end of the delivery wagon and then went back inside of the wagon
for the purpose of unloading the forage to be delivered; that while unloading the forage and
in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a
whip and made some other noises, which frightened the horses attached to the delivery
wagon and they ran away, and the driver was thrown from the inside of the wagon out
through the rear upon the ground and was unable to stop the horses; that the horses then
ran up and on which street they came into collision with the carromata in which the plaintiff,
Carmen Ong de Martinez, was riding.
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and gave judgment
against him for P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day
of October, 1908, and for the costs of the action. The case is before us on an appeal from that
judgment.
There is no general law of negligence in the Philippine Islands except that embodied in the Civil
Code. The provisions of that code pertinent to this case are
Art. 1902. A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.
Art. 1903. The obligation imposed by preceding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
Guardians are liable for the damages caused by minors or incapacitated persons who are
under their authority and live with them.
Owners of directors of an establishment or enterprise are equally liable for the damages
caused by the employees in the service of the branches in which the latter may be employed
or on account of their duties.
The State is liable in this sense when it acts through a special agent, but not when the
damages should have been caused by the official to whom properly it pertained to do the act
performed, in which case the provisions of the preceding article shall be applicable.
Finally, masters or directors of arts and trades are liable for the damages caused by their
pupils or apprentices while they are under their custody.
The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.
Passing the question whether or not an employer who has furnished a gentle and tractable team and
a trusty and capable driver is, under the last paragraph of the above provisions, liable for the
negligence of such driver in handling the team, we are of the opinion that the judgment must be
reversed upon the ground that the evidence does not disclose that the cochero was negligent.
While the law relating to negligence in this jurisdiction may possibly be some what different from that
in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of
negligence is determined are, nevertheless, generally the same. That is to say, while the law
designating the person responsible for a negligent act may not be the same here as in many
jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as
elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April,
1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April,
1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the damage were gentle and
tractable; that the cochero was experienced and capable; that he had driven one of the horses
several years and the other five or six months; that he had been in the habit, during all that time, of
leaving them in the condition in which they were left on the day of the accident; that they had never
run away up to that time and there had been, therefore, no accident due to such practice; that to
leave the horses and assist in unloading the merchandise in the manner described on the day of the
accident was the custom of all cochero who delivered merchandise of the character of that which
was being delivered by the cochero of the defendant on the day in question, which custom was
sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner
described by the evidence in this case, either under Spanish or American jurisprudence.
(Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442;
Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80
N. Y., 212.) lawphi1. net
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:
He was performing his duty while removing the goods into the house, and, if every person
who suffered a cart to remain in the street while he took goods out of it was obliged to
employ another to look after the horses, it would be impossible for the business of the
metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
The degree of care required of the plaintiff, or those in charged of his horse, at the time of
the injury, is that which would be exercised by a person of ordinary care and prudence under
like circumstances. It can not be said that the fact of leaving the horse unhitched is in itself
negligence. Whether it is negligence to leave a horse unhitched must be depend upon the
disposition of the horse; whether he was under the observation and control of some person
all the time, and many other circumstances; and is a question to be determined by the jury
from the facts of each case.
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial
court to refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a public highways while the driver is upon the
sidewalk loading goods on the wagon." The said court closed its opinion with these words:
There was evidence which could have fully justified the jury in finding that the horse was
quite and gentle, and that the driver was upon the sidewalk loading goods on the wagon, at
time of the alleged injury, and that the horse had been used for years in that way without
accident. The refusal of the trial court to charge as requested left the jury free to find was
verdict against the defendant, although the jury was convinced that these facts were
proven.lawphil.net
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
That evidence that a servant, whom traders employed to deliver goods, upon stopping with
his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a
railroad crossing, left the horse unfastened for four or five minutes while he was in the house,
knowing that it was not afraid of cars, and having used it for three or four months without
ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a want of due
care on his part.
The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise
reasonable care and prudence. Where reasonable care is employed in doing an act not itself illegal
or inherently likely to produce damage to others, there will be no liability, although damage in fact
ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524;
Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs.Hurlbut, 158 N. Y., 34
Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or
imprudent. Acts the performance of which has not proved destructive or injurious and which have,
therefore, been acquiesced in by society for so long a time that they have ripened into custom, can
not be held to be themselves unreasonable or imprudent. Indeed the very reason why they have
been permitted by society is that they beneficial rather than prejudicial.itc-alf Accidents sometimes
happen and injuries result from the most ordinary acts of life. But such are not their natural or
customary results. To hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes
successfully invoked in such a case, does not in any sense militate against the reasoning presented.
That maxim at most only creates a prima facie case, and that only in the absence of proof of the
circumstances under which the act complained of was performed. It is something invoked in favor of
the plaintiff before defendant's case showing the conditions and circumstances under which the
injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is
demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the
court said (p. 554):
. . . The whole effect of the instruction in question, as applied to the case before the jury, was
that if the steamboat, on a calm day and in smooth water, was thrown with such force
against a wharf properly built, as to tear up some of the planks of the flooring, this would
be prima facie evidence of negligence on the part of the defendant's agent in making the
landing, unless upon the whole evidence in the case this prima facieevidence was rebutted.
As such damage to a wharf is not ordinarily done by a steamboat under control of her
officers and carefully managed by them, evidence that such damage was done in this case
was prima facie, and, if unexplained, sufficient evidence of negligence on their part, and the
jury might properly be so instructed.
There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway
and the accident resulting therefrom, but also the conditions under which the runaway occurred.
Those conditions showing of themselves that the defendant's cochero was not negligent in the
management of the horse, the prima faciecase in plaintiffs' favor, if any, was destroyed as soon as
made.
It is a matter of common knowledge as well as proof that it is the universal practice of merchants to
deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in
which that was then being delivered; and that it is the universal practice to leave the horses in the
manner in which they were left at the time of the accident. This is the custom in all cities. It has not
been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has
acquiesced for years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby make culpable
and guilty one who had every reason and assurance to believe that he was acting under the
sanction of the strongest of all civil forces, the custom of a people? We think not.
The judgement is reversed, without special finding as to costs. So ordered.
Arellano, C. J., Mapa, Johnson, Carson and Trent, JJ., concur.
Separate Opinions
TORRES, J ., dissenting:
I am of the opinion that the judgment should be affirmed.
G.R. No. L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and
HONORABLE COURT OF APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J .:
Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing,
leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for
the grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then
Court of First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among
others that (a) they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy
Mat died intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her
children to him; and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the
intestate estate of the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged
that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the
other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is
the eldest among them and is competent, willing and desirous to become the administratrix of the
estate of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court,
finding among others that:
(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-
64;]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao
Kee with Sy Mat [CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the
acknowledged illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision,
pp. 27-28; Rollo, pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix
of the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying that of the probate court, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby
MODIFIED and SET ASIDE and a new judgment rendered as follows:
(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and
Rodolfo Sy acknowledged natural children of the deceased Sy Kiat with Asuncion
Gillego, an unmarried woman with whom he lived as husband and wife without
benefit of marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the
acknowledged natural children of the deceased Sy Kiat with his Chinese wife Yao
Kee, also known as Yui Yip, since the legality of the alleged marriage of Sy Mat to
Yao Kee in China had not been proven to be valid to the laws of the Chinese
People's Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of
Tomas Sy (Exhibit "G-1", English translation of Exhibit "G") of the Avenue Tractor
and Diesel Parts Supply to be valid and accordingly, said property should be
excluded from the estate of the deceased Sy Kiat; and
(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial
administratrix of the estate of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36-
37.]
From said decision both parties moved for partial reconsideration, which was however denied by
respondent court. They thus interposed their respective appeals to this Court.
Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook
Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of
the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the
motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No.
56045. **
The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of
the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June
22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the
following as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE
MARRIAGE OF SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID
IN ACCORDANCE WITH LAWS OF THE PEOPLE'S REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA
SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS
NATURAL CHILDREN OF SY KIAT WITH ASUNCION GILLEGO. [Petition, p. 2;
Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and
custom was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien,
China; that she does not have a marriage certificate because the practice during that
time was for elders to agree upon the betrothal of their children, and in her case, her
elder brother was the one who contracted or entered into [an] agreement with the
parents of her husband; that the agreement was that she and Sy Mat would be
married, the wedding date was set, and invitations were sent out; that the said
agreement was complied with; that she has five children with Sy Kiat, but two of them
died; that those who are alive are Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen,
the eldest being Sze Sook Wah who is already 38 years old; that Sze Sook Wah was
born on November 7, 1939; that she and her husband, Sy Mat, have been living in
FooKien, China before he went to the Philippines on several occasions; that the
practice during the time of her marriage was a written document [is exchanged] just
between the parents of the bride and the parents of the groom, or any elder for that
matter; that in China, the custom is that there is a go- between, a sort of marriage
broker who is known to both parties who would talk to the parents of the bride-to-be;
that if the parents of the bride-to-be agree to have the groom-to-be their son in-law,
then they agree on a date as an engagement day; that on engagement day, the
parents of the groom would bring some pieces of jewelry to the parents of the bride-
to-be, and then one month after that, a date would be set for the wedding, which in
her case, the wedding date to Sy Kiat was set on January 19, 1931; that during the
wedding the bridegroom brings with him a couch (sic) where the bride would ride and
on that same day, the parents of the bride would give the dowry for her daughter and
then the document would be signed by the parties but there is no solemnizing officer
as is known in the Philippines; that during the wedding day, the document is signed
only by the parents of the bridegroom as well as by the parents of the bride; that the
parties themselves do not sign the document; that the bride would then be placed in
a carriage where she would be brought to the town of the bridegroom and before
departure the bride would be covered with a sort of a veil; that upon reaching the
town of the bridegroom, the bridegroom takes away the veil; that during her wedding
to Sy Kiat (according to said Chinese custom), there were many persons present;
that after Sy Kiat opened the door of the carriage, two old ladies helped her go down
the carriage and brought her inside the house of Sy Mat; that during her wedding, Sy
Chick, the eldest brother of Sy Kiat, signed the document with her mother; that as to
the whereabouts of that document, she and Sy Mat were married for 46 years
already and the document was left in China and she doubt if that document can still
be found now; that it was left in the possession of Sy Kiat's family; that right now, she
does not know the whereabouts of that document because of the lapse of many
years and because they left it in a certain place and it was already eaten by the
termites; that after her wedding with Sy Kiat, they lived immediately together as
husband and wife, and from then on, they lived together; that Sy Kiat went to the
Philippines sometime in March or April in the same year they were married; that she
went to the Philippines in 1970, and then came back to China; that again she went
back to the Philippines and lived with Sy Mat as husband and wife; that she begot
her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among
the many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate
is issued by the Chinese government, a document signed by the parents or elders of the parties
being sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect
that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission
to her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p.
17; Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where
the following entries are found: "Marital statusMarried"; "If married give name of spousesYao
Kee"; "Address-China; "Date of marriage1931"; and "Place of marriageChina" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the
following entries are likewise found: "Civil statusMarried"; and, 'If married, state name and address
of spouseYao Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's
Republic of China to the effect that "according to the information available at the Embassy Mr. Sy
Kiat a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19,
1931 in Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However,
the same do not suffice to establish the validity of said marriage in accordance with Chinese law or
custom.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced)
as a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue
Use of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12
citing JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires
that "a custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.]
On this score the Court had occasion to state that "a local custom as a source of right can not be
considered by a court of justice unless such custom is properly established by competent evidence
like any other fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a
higher degree, should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code which states that:
Art. 71. All marriages performed outside the Philippines in accordance with the laws in
force in the country where they were performed and valid there as such, shall also be
valid in this country, except bigamous, Polygamous, or incestuous marriages, as
determined by Philippine law. (Emphasis supplied.) ***
Construing this provision of law the Court has held that to establish a valid foreign marriage two
things must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the
alleged foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49
(1922).]
In proving a foreign law the procedure is provided in the Rules of Court. With respect to
an unwritten foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.The oral testimony of witnesses, skilled therein, is
admissible as evidence of the unwritten law of a foreign country, as are also printed
and published books of reports of decisions of the courts of the foreign country, if
proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.An official record or an entry therein,
when admissible for any purpose, may be evidenced by an official publication thereof
or by a copy attested by the officer having the legal custody of the record, or by his
deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record is kept
and authenticated by the seal of his office.
The Court has interpreted section 25 to include competent evidence like the testimony of a witness
to prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686,
700-701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence relative to the law and custom
of China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of
China's law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on
the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of
the marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat
cannot be recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy
Joc Lieng v. Sy Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine
courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact
[Yam Ka Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the
subject of Chinese marriage, what was left to be decided was the issue of whether or not the fact of
marriage in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p.
160.]
Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of
the law of China on marriage in the aforecited case, petitioners however have not shown any proof
that the Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in
1847 was still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-
four (84) years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to
the instant case. They aver that the judicial pronouncement in the Memoracion case, that the
testimony of one of the contracting parties is competent evidence to show the fact of marriage, holds
true in this case.
The Memoracion case however is not applicable to the case at bar as said case did not concern a
foreign marriage and the issue posed was whether or not the oral testimony of a spouse is
competent evidence to prove the fact of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is
the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552,
555.] Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known
here in the Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was
celebrated [CFI decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if
true, cannot be recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the status of private respondents.
Respondent court found the following evidence of petitioners' filiation:
(1) Sy Kiat's Master Card of Registered Alien where the following are entered:
"Children if any: give number of childrenFour"; and, "NameAll living in China"
[Exhibit "SS-1";]
(2) the testimony of their mother Yao Kee who stated that she had five children with
Sy Kiat, only three of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze
Chin Yan [TSN, December 12, 1977, pp. 9-11;] and,
(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local
Civil Registrar of Manila to support Sze Sook Wah's application for a marriage
license, wherein Sy Kiat expressly stated that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three
daughters with his Chinese wife, two of whomSook Wah and Sze Kai Choshe knows, and one
adopted son [TSN, December 6,1977, pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the
laws of China, they cannot be accorded the status of legitimate children but only that of
acknowledged natural children. Petitioners are natural children, it appearing that at the time of their
conception Yao Kee and Sy Kiat were not disqualified by any impediment to marry one another [See
Art. 269, Civil Code.] And they are acknowledged children of the deceased because of Sy Kiat's
recognition of Sze Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who
are her sisters of the full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of
marriage. They have in their favor their father's acknowledgment, evidenced by a compromise
agreement entered into by and between their parents and approved by the Court of First Instance on
February 12, 1974 wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego
but likewise made provisions for their support and future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that they are common-law husband and wife and
that out of such relationship, which they have likewise decided to definitely and finally
terminate effective immediately, they begot five children, namely: Aida Sy, born on
May 30, 1950; Manuel Sy, born on July 1, 1953; Teresita Sy, born on January 28,
1955; Ricardo Sy now deceased, born on December 14, 1956; and Rodolfo Sy, born
on May 7, 1958.
3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the
parties mutually agree and covenant that
(a) The stocks and merchandize and the furniture and equipments ...,
shall be divided into two equal shares between, and distributed to, Sy
Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall
transfer the same to their children, namely, Aida Sy, Manuel Sy,
Teresita Sy, and Rodolfo Sy.
(b) the business name and premises ... shall be retained by Sy Kiat.
However, it shall be his obligation to give to the aforenamed children
an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the
rental of the two doors of the same building now occupied by Everett
Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the existence of the
common-law husband-and-wife relationship between the parties, of the real estates
and properties registered and/or appearing in the name of Asuncion Gillego ... , the
parties mutually agree and covenant that the said real estates and properties shall be
transferred in equal shares to their children, namely, Aida Sy, Manuel Sy, Teresita
Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego during her lifetime ...
[Exhibit "D".] (Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before a court of record by which a child may
be voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic
Relations Court.
Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to
the Juvenile and Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.
xxx xxx xxx
The provisions of the Judiciary Act to the contrary notwithstanding, the court shall
have exclusive original jurisdiction to hear and decide the following cases:
xxx xxx xxx
(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity
and acknowledgment;
(3) Annulment of marriages, relief from marital obligations, legal separation of
spouses, and actions for support;
(4) Proceedings brought under the provisions of title six and title seven, chapters one
to three of the civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization
Act of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and
jurisdiction are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and
Divinagracia v. Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no
longer necessary to pass upon the issue of jurisdiction raised by petitioners.
Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502
sec. 91-A last paragraph that:
xxx xxx xxx
If any question involving any of the above matters should arise as an incident in any
case pending in the ordinary court, said incident shall be determined in the main
case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case
involving paternity and acknowledgment may be ventilated as an incident in the intestate
or testate proceeding (See Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that
legal provision presupposes that such an administration proceeding is pending or existing
and has not been terminated. [at pp. 313-314.] (Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by
the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v.
Luciano, G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent
multiplicity of suits. Accordingly, this Court finds no reversible error committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes
* The petition for review in G.R. No. 56045 was denied for lack of merit on March 9,
1981, Counsel for the petitioners then filed a Motion for Consolidation and for
Extension of Time to File Motion for Reconsideration which was granted on July 8,
1981. On February 17, 1982, however, petitioners' motion for reconsideration of the
resolution of March 9, 1981 was denied.
** Other than the exceptions contained in this article, this provision of law is derived
from Section 19, Act No. 3613 and Section IV, General Order No. 68.
*** The presumption that, in the absence of proof, the foreign law is the same as the
law of the forum, is known as processual presumption which has been applied by this
Court in the cases of Lim v. The Insular Collector of Customs, 36 Phil, 472 (1917);
International Harvester Co. in Russia v. Hamburg-American Line, 42 Phil. 845
(1918); Miciano v. Brimo, 60 Phil, 867 (1924); and Rayray v. Chae Kyung Lee, G.R.
No. L-18176, October 26, 1966,18 SCRA 450.
**** Rep. Act 4834 created the Juvenile and Domestic Relations Court of Iloilo.
Section 1 of said Act is the exact copy of section 19-A of Rep. Act 5502.
July 30, 1979
PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME "SYCIP, SALAZAR,
FELICIANO, HERNANDEZ & CASTILLO." LUCIANO E. SALAZAR, FLORENTINO P.
FELICIANO, BENILDO G. HERNANDEZ. GREGORIO R. CASTILLO. ALBERTO P. SAN JUAN,
JUAN C. REYES. JR., ANDRES G. GATMAITAN, JUSTINO H. CACANINDIN, NOEL A. LAMAN,
ETHELWOLDO E. FERNANDEZ, ANGELITO C. IMPERIO, EDUARDO R. CENIZA, TRISTAN A.
CATINDIG, ANCHETA K. TAN, and ALICE V. PESIGAN, petitioners.
IN THE MATTER OF THE PETITION FOR AUTHORITY TO CONTINUE USE OF THE FIRM NAME
"OZAETA, ROMULO, DE LEON, MABANTA & REYES." RICARDO J. ROMULO, BENJAMIN M.
DE LEON, ROMAN MABANTA, JR., JOSE MA, REYES, JESUS S. J. SAYOC, EDUARDO DE
LOS ANGELES, and JOSE F. BUENAVENTURA, petitioners.
R E S O L U T I O N
MELENCIO-HERRERA, J .:+.wph!1
Two separate Petitions were filed before this Court 1) by the surviving partners of Atty. Alexander
Sycip, who died on May 5, 1975, and 2) by the surviving partners of Atty. Herminio Ozaeta, who died
on February 14, 1976, praying that they be allowed to continue using, in the names of their firms, the
names of partners who had passed away. In the Court's Resolution of September 2, 1976, both
Petitions were ordered consolidated.
Petitioners base their petitions on the following arguments:
1. Under the law, a partnership is not prohibited from continuing its business under a firm name
which includes the name of a deceased partner; in fact, Article 1840 of the Civil Code explicitly
sanctions the practice when it provides in the last paragraph that: t. hqw
The use by the person or partnership continuing the business of the partnership name,
or the name of a deceased partner as part thereof, shall not of itself make the individual
property of the deceased partner liable for any debts contracted by such person or
partnership.
1

2. In regulating other professions, such as accountancy and engineering, the legislature has
authorized the adoption of firm names without any restriction as to the use, in such firm name, of the
name of a deceased partner;
2
the legislative authorization given to those engaged in the practice of
accountancy a profession requiring the same degree of trust and confidence in respect of clients
as that implicit in the relationship of attorney and client to acquire and use a trade name, strongly
indicates that there is no fundamental policy that is offended by the continued use by a firm of
professionals of a firm name which includes the name of a deceased partner, at least where such
firm name has acquired the characteristics of a "trade name."
3

3. The Canons of Professional Ethics are not transgressed by the continued use of the name of a
deceased partner in the firm name of a law partnership because Canon 33 of the Canons of
Professional Ethics adopted by the American Bar Association declares that: t. hqw
... The continued use of the name of a deceased or former partner when permissible by
local custom, is not unethical but care should be taken that no imposition or deception is
practiced through this use. ...
4

4. There is no possibility of imposition or deception because the deaths of their respective deceased
partners were well-publicized in all newspapers of general circulation for several days; the
stationeries now being used by them carry new letterheads indicating the years when their
respective deceased partners were connected with the firm; petitioners will notify all leading national
and international law directories of the fact of their respective deceased partners' deaths.
5

5. No local custom prohibits the continued use of a deceased partner's name in a professional firm's
name;
6
there is no custom or usage in the Philippines, or at least in the Greater Manila Area, which
recognizes that the name of a law firm necessarily Identifies the individual members of the firm.
7

6. The continued use of a deceased partner's name in the firm name of law partnerships has been
consistently allowed by U.S. Courts and is an accepted practice in the legal profession of most
countries in the world.
8

The question involved in these Petitions first came under consideration by this Court in 1953 when a
law firm in Cebu (the Deen case) continued its practice of including in its firm name that of a
deceased partner, C.D. Johnston. The matter was resolved with this Court advising the firm to desist
from including in their firm designation the name of C. D. Johnston, who has long been dead."
The same issue was raised before this Court in 1958 as an incident in G. R. No. L-11964, entitled
Register of Deeds of Manila vs. China Banking Corporation. The law firm of Perkins & Ponce Enrile
moved to intervene asamicus curiae. Before acting thereon, the Court, in a Resolution of April 15,
1957, stated that it "would like to be informed why the name of Perkins is still being used although
Atty. E. A. Perkins is already dead." In a Manifestation dated May 21, 1957, the law firm of Perkins
and Ponce Enrile, raising substantially the same arguments as those now being raised by
petitioners, prayed that the continued use of the firm name "Perkins & Ponce Enrile" be held proper.
On June 16, 1958, this Court resolved: t.hqw
After carefully considering the reasons given by Attorneys Alfonso Ponce Enrile and
Associates for their continued use of the name of the deceased E. G. Perkins, the
Court found no reason to depart from the policy it adopted in June 1953 when it
required Attorneys Alfred P. Deen and Eddy A. Deen of Cebu City to desist from
including in their firm designation, the name of C. D. Johnston, deceased. The Court
believes that, in view of the personal and confidential nature of the relations between
attorney and client, and the high standards demanded in the canons of professional
ethics, no practice should be allowed which even in a remote degree could give rise
to the possibility of deception. Said attorneys are accordingly advised to drop the
name "PERKINS" from their firm name.
Petitioners herein now seek a re-examination of the policy thus far enunciated by the Court.
The Court finds no sufficient reason to depart from the rulings thus laid down.
A. Inasmuch as "Sycip, Salazar, Feliciano, Hernandez and Castillo" and "Ozaeta, Romulo, De Leon,
Mabanta and Reyes" are partnerships, the use in their partnership names of the names of deceased
partners will run counter to Article 1815 of the Civil Code which provides: t.hqw
Art. 1815. Every partnership shall operate under a firm name, which may or may not
include the name of one or more of the partners.
Those who, not being members of the partnership, include their names in the firm
name, shall be subject to the liability, of a partner.
It is clearly tacit in the above provision that names in a firm name of a partnership must either be
those of living partners and. in the case of non-partners, should be living persons who can be
subjected to liability. In fact, Article 1825 of the Civil Code prohibits a third person from including his
name in the firm name under pain of assuming the liability of a partner. The heirs of a deceased
partner in a law firm cannot be held liable as the old members to the creditors of a firm particularly
where they are non-lawyers. Thus, Canon 34 of the Canons of Professional Ethics "prohibits an
agreement for the payment to the widow and heirs of a deceased lawyer of a percentage, either
gross or net, of the fees received from the future business of the deceased lawyer's clients, both
because the recipients of such division are not lawyers and because such payments will not
represent service or responsibility on the part of the recipient. " Accordingly, neither the widow nor
the heirs can be held liable for transactions entered into after the death of their lawyer-predecessor.
There being no benefits accruing, there ran be no corresponding liability.
Prescinding the law, there could be practical objections to allowing the use by law firms of the names
of deceased partners. The public relations value of the use of an old firm name can tend to create
undue advantages and disadvantages in the practice of the profession. An able lawyer without
connections will have to make a name for himself starting from scratch. Another able lawyer, who
can join an old firm, can initially ride on that old firm's reputation established by deceased partners.
B. In regards to the last paragraph of Article 1840 of the Civil Code cited by petitioners, supra, the
first factor to consider is that it is within Chapter 3 of Title IX of the Code entitled "Dissolution and
Winding Up." The Article primarily deals with the exemption from liability in cases of a dissolved
partnership, of the individual property of the deceased partner for debts contracted by the person or
partnership which continues the business using the partnership name or the name of the deceased
partner as part thereof. What the law contemplates therein is a hold-over situation preparatory to
formal reorganization.
Secondly, Article 1840 treats more of a commercial partnership with a good will to protect rather than
of aprofessional partnership, with no saleable good will but whose reputation depends on the
personal qualifications of its individual members. Thus, it has been held that a saleable goodwill can
exist only in a commercial partnership and cannot arise in a professional partnership consisting of
lawyers.
9
t.hqw
As a general rule, upon the dissolution of a commercial partnership the succeeding
partners or parties have the right to carry on the business under the old name, in the
absence of a stipulation forbidding it, (s)ince the name of a commercial partnership is
a partnership asset inseparable from the good will of the firm. ... (60 Am Jur 2d, s
204, p. 115) (Emphasis supplied)
On the other hand, t. hqw
... a professional partnership the reputation of which depends or; the individual skill of
the members, such as partnerships of attorneys or physicians, has no good win to be
distributed as a firm asset on its dissolution, however intrinsically valuable such skill
and reputation may be, especially where there is no provision in the partnership
agreement relating to good will as an asset. ... (ibid, s 203, p. 115) (Emphasis
supplied)
C. A partnership for the practice of law cannot be likened to partnerships formed by other
professionals or for business. For one thing, the law on accountancy specifically allows the use of a
trade name in connection with the practice of accountancy.
10
t.hqw
A partnership for the practice of law is not a legal entity. It is a mere relationship or
association for a particular purpose. ... It is not a partnership formed for the purpose of
carrying on trade or business or of holding property."
11
Thus, it has been stated that "the
use of a nom de plume, assumed or trade name in law practice is improper.
12

The usual reason given for different standards of conduct being applicable to the
practice of law from those pertaining to business is that the law is a profession.
Dean Pound, in his recently published contribution to the Survey of the Legal
Profession, (The Lawyer from Antiquity to Modern Times, p. 5) defines a profession
as "a group of men pursuing a learned art as a common calling in the spirit of public
service, no less a public service because it may incidentally be a means of
livelihood."
xxx xxx xxx
Primary characteristics which distinguish the legal profession from business are:
1. A duty of public service, of which the emolument is a byproduct, and in which one
may attain the highest eminence without making much money.
2. A relation as an "officer of court" to the administration of justice involving thorough
sincerity, integrity, and reliability.
3. A relation to clients in the highest degree fiduciary.
4. A relation to colleagues at the bar characterized by candor, fairness, and unwillingness
to resort to current business methods of advertising and encroachment on their practice,
or dealing directly with their clients.
13

"The right to practice law is not a natural or constitutional right but is in the nature of a privilege or
franchise.
14
It is limited to persons of good moral character with special qualifications duly
ascertained and certified.
15
The right does not only presuppose in its possessor integrity, legal
standing and attainment, but also the exercise of a special privilege, highly personal and partaking of
the nature of a public trust."
16

D. Petitioners cited Canon 33 of the Canons of Professional Ethics of the American Bar Association"
in support of their petitions.
It is true that Canon 33 does not consider as unethical the continued use of the name of a deceased
or former partner in the firm name of a law partnership when such a practice is permissible by local
custom but the Canon warns that care should be taken that no imposition or deception is practiced
through this use.
It must be conceded that in the Philippines, no local custom permits or allows the continued use of a
deceased or former partner's name in the firm names of law partnerships. Firm names, under our
custom, Identify the more active and/or more senior members or partners of the law firm. A glimpse
at the history of the firms of petitioners and of other law firms in this country would show how their
firm names have evolved and changed from time to time as the composition of the partnership
changed. t. hqw
The continued use of a firm name after the death of one or more of the partners
designated by it is proper only where sustained by local custom and not where by
custom this purports to Identify the active members. ...
There would seem to be a question, under the working of the Canon, as to the
propriety of adding the name of a new partner and at the same time retaining that of
a deceased partner who was never a partner with the new one. (H.S. Drinker, op.
cit., supra, at pp. 207208) (Emphasis supplied).
The possibility of deception upon the public, real or consequential, where the name of a deceased
partner continues to be used cannot be ruled out. A person in search of legal counsel might be
guided by the familiar ring of a distinguished name appearing in a firm title.
E. Petitioners argue that U.S. Courts have consistently allowed the continued use of a deceased
partner's name in the firm name of law partnerships. But that is so because it is sanctioned by
custom.
In the case of Mendelsohn v. Equitable Life Assurance Society (33 N.Y.S. 2d 733) which petitioners
Salazar, et al. quoted in their memorandum, the New York Supreme Court sustained the use of the
firm name Alexander & Green even if none of the present ten partners of the firm bears either
name because the practice was sanctioned by custom and did not offend any statutory provision or
legislative policy and was adopted by agreement of the parties. The Court stated therein: t.hqw
The practice sought to be proscribed has the sanction of custom and offends no
statutory provision or legislative policy. Canon 33 of the Canons of Professional
Ethics of both the American Bar Association and the New York State Bar Association
provides in part as follows: "The continued use of the name of a deceased or former
partner, when permissible by local custom is not unethical, but care should be taken
that no imposition or deception is practiced through this use." There is no question as
to local custom. Many firms in the city use the names of deceased members with the
approval of other attorneys, bar associations and the courts. The Appellate Division
of the First Department has considered the matter and reached The conclusion that
such practice should not be prohibited. (Emphasis supplied)
xxx xxx xxx
Neither the Partnership Law nor the Penal Law prohibits the practice in question. The use
of the firm name herein is also sustainable by reason of agreement between the
partners.
18

Not so in this jurisdiction where there is no local custom that sanctions the practice. Custom has
been defined as a rule of conduct formed by repetition of acts, uniformly observed (practiced) as a
social rule, legally binding and obligatory.
19
Courts take no judicial notice of custom. A custom must
be proved as a fact, according to the rules of evidence.
20
A local custom as a source of right cannot
be considered by a court of justice unless such custom is properly established by competent
evidence like any other fact.
21
We find such proof of the existence of a local custom, and of the
elements requisite to constitute the same, wanting herein. Merely because something is done as a
matter of practice does not mean that Courts can rely on the same for purposes of adjudication as a
juridical custom. Juridical custom must be differentiated from social custom. The former can
supplement statutory law or be applied in the absence of such statute. Not so with the latter.
Moreover, judicial decisions applying or interpreting the laws form part of the legal system.
22
When
the Supreme Court in the Deen and Perkins cases issued its Resolutions directing lawyers to desist
from including the names of deceased partners in their firm designation, it laid down a legal rule
against which no custom or practice to the contrary, even if proven, can prevail. This is not to speak
of our civil law which clearly ordains that a partnership is dissolved by the death of any
partner.
23
Custom which are contrary to law, public order or public policy shall not be
countenanced.
24

The practice of law is intimately and peculiarly related to the administration of justice and should not
be considered like an ordinary "money-making trade." t .hqw
... It is of the essence of a profession that it is practiced in a spirit of public service. A
trade ... aims primarily at personal gain; a profession at the exercise of powers beneficial
to mankind. If, as in the era of wide free opportunity, we think of free competitive self
assertion as the highest good, lawyer and grocer and farmer may seem to be freely
competing with their fellows in their calling in order each to acquire as much of the world's
good as he may within the allowed him by law. But the member of a profession does not
regard himself as in competition with his professional brethren. He is not bartering his
services as is the artisan nor exchanging the products of his skill and learning as the
farmer sells wheat or corn. There should be no such thing as a lawyers' or physicians'
strike. The best service of the professional man is often rendered for no equivalent or for
a trifling equivalent and it is his pride to do what he does in a way worthy of his profession
even if done with no expectation of reward, This spirit of public service in which the
profession of law is and ought to be exercised is a prerequisite of sound administration of
justice according to law. The other two elements of a profession, namely, organization
and pursuit of a learned art have their justification in that they secure and maintain that
spirit.
25

In fine, petitioners' desire to preserve the Identity of their firms in the eyes of the public must bow to
legal and ethical impediment.
ACCORDINGLY, the petitions filed herein are denied and petitioners advised to drop the names
"SYCIP" and "OZAETA" from their respective firm names. Those names may, however, be included
in the listing of individuals who have been partners in their firms indicating the years during which
they served as such.
SO ORDERED.
Teehankee, Concepcion, Jr., Santos, Fernandez, Guerrero and De Castro, JJ., concur
Fernando, C.J. and Abad Santos, J., took no part.

Separate Opinions

FERNANDO, C.J ., concurring:
The petitions are denied, as there are only four votes for granting them, seven of the Justices being
of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is
out of delicadeza that the undersigned did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the
father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and
not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera:
'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes
AQUINO, J ., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in
their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He
was the founder of the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta
& Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said
firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased
partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that
the continued use by a law firm of the name of a deceased partner, "when permissible by local
custom, is not unethical" as long as "no imposition or deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and
Herminio Ozaeta are dead or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and
Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of
Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication
of the year when he died. No one complained that the retention of the name of Judge Ross in the
firm name was illegal or unethical.

# Separate Opinions
FERNANDO, C.J ., concurring:
The petitions are denied, as there are only four votes for granting them, seven of the Justices being
of the contrary view, as explained in the plurality opinion of Justice Ameurfina Melencio-Herrera. It is
out of delicadeza that the undersigned did not participate in the disposition of these petitions, as the
law office of Sycip, Salazar, Feliciano, Hernandez and Castillo started with the partnership of
Quisumbing, Sycip, and Quisumbing, the senior partner, the late Ramon Quisumbing, being the
father-in-law of the undersigned, and the most junior partner then, Norberto J. Quisumbing, being his
brother- in-law. For the record, the undersigned wishes to invite the attention of all concerned, and
not only of petitioners, to the last sentence of the opinion of Justice Ameurfina Melencio-Herrera:
'Those names [Sycip and Ozaeta] may, however, be included in the listing of individuals wtes
AQUINO, J ., dissenting:
I dissent. The fourteen members of the law firm, Sycip, Salazar, Feliciano, Hernandez & Castillo, in
their petition of June 10, 1975, prayed for authority to continue the use of that firm name,
notwithstanding the death of Attorney Alexander Sycip on May 5, 1975 (May he rest in peace). He
was the founder of the firm which was originally known as the Sycip Law Office.
On the other hand, the seven surviving partners of the law firm, Ozaeta, Romulo, De Leon, Mabanta
& Reyes, in their petition of August 13, 1976, prayed that they be allowed to continue using the said
firm name notwithstanding the death of two partners, former Justice Roman Ozaeta and his son,
Herminio, on May 1, 1972 and February 14, 1976, respectively.
They alleged that the said law firm was a continuation of the Ozaeta Law Office which was
established in 1957 by Justice Ozaeta and his son and that, as to the said law firm, the name
Ozaeta has acquired an institutional and secondary connotation.
Article 1840 of the Civil Code, which speaks of the use by the partnership of the name of a deceased
partner as part of the partnership name, is cited to justify the petitions. Also invoked is the canon that
the continued use by a law firm of the name of a deceased partner, "when permissible by local
custom, is not unethical" as long as "no imposition or deception is practised through this use"
(Canon 33 of the Canons of Legal Ethics).
I am of the opinion that the petition may be granted with the condition that it be indicated in the
letterheads of the two firms (as the case may be) that Alexander Sycip, former Justice Ozaeta and
Herminio Ozaeta are dead or the period when they served as partners should be stated therein.
Obviously, the purpose of the two firms in continuing the use of the names of their deceased
founders is to retain the clients who had customarily sought the legal services of Attorneys Sycip and
Ozaeta and to benefit from the goodwill attached to the names of those respected and esteemed law
practitioners. That is a legitimate motivation.
The retention of their names is not illegal per se. That practice was followed before the war by the
law firm of James Ross. Notwithstanding the death of Judge Ross the founder of the law firm of
Ross, Lawrence, Selph and Carrascoso, his name was retained in the firm name with an indication
of the year when he died. No one complained that the retention of the name of Judge Ross in the
firm name was illegal or unethical.
#Footnotest.hqw
1 See Memorandum of Salazar, et al., p. 5: see also Petition of Romulo, et al., p. 3.
2 Citing Sec, 16-A, Public Act No. 3105, as amended by Commonwealth Act No.
342; Sec. 39, Commonwealth Act No. 294; Sec. 23, Republic Act No. 318; Sec. 39,
Republic Act No. 184.
3 Memorandum of Salazar, et al., pp. 7-8.
4 Memorandum of Salazar, et al., pp. 8-10; Petition of Romulo, et al., pp. 3- 4.
5 Memorandum of Salazar, et al., p. 13; Petition of Romulo, et al., p. 4.
6 Petition of Romulo, et al., p. 4.
7 Memorandum of Salazar, et al., p. 11.
8 Memorandum of Salazar, et al., pp. 6-7 and pp. 16-18; Petition of Romulo. et al., p,
5.
9 Seddal vs. Keating, 8 App. Div. 2d 44, 185 NYS 2d 630, affd 7 NY 2d 846, 196
NYS 2d 986, 164 NE 2d 860.
10 Section 16-A, Commonwealth Act No. 342.
11 In re Crawford's Estate, 184 NE 2d 779, 783.
12 H.S. Drinker, Legal Ethics (1953), p. 206; see also Canon 33, par. 2, Canons of
Professional Ethics.
13 H.S, Drinker, Legal Ethics (1953) pp. 4-5.
14 7 C.J.S. 708.
15 Am Jur 270.
16 In re Lavine, 41 P2d 161, all cited in Martin, Legal and Judicial Ethics, Fifth Ed., p.
8.
17 Canons 1 to 32 which were adopted by the American Bar Association in 1908
were also adopted by the Philippine Bar Association in 1917. The American Bar
Association adopted Canons 33 to 45 in 1928, Canon 46 in 1933 and Canon 47 in
1937. On April 20, 1946, when Canons 33 to 47 where already in effect, the Revised
Constitution of the Philippine Bar Association was approved and it provided that the
Association "adopts and makes its own the Code of Ethics of the American Bar
Association." (Martin, Legal and Judicial Ethics, Fifth Ed. p, 341).
18 33 N.Y.S. 2d 733, 734.
19 JBL Reyes & RC Puno, Outline of Philippine Civil Law. Fourth Ed., Vol. I, p. 7
20 Article 12, Civil Code.
21 Patriarca vs. Orate, 7 Phil. 390, 395 (1907).
22 Art. 8, Civil Code
23 Art. 1830, Civil Code.
24 Art. 11, Civil Code.
25 Roscoe Pound, The Lawyer From Antiquity To Modern Times, (1953), pp. 9-10.
G.R. No. 70479 February 27, 1987
FIRESTONE TIRE AND RUBBER COMPANY OF THE PHILIPPINES, petitioner,
vs.
CARLOS LARIOSA and NATIONAL LABOR RELATIONS COMMISSION, respondents.

FERNAN, J :
In this petition for certiorari, petitioner Firestone Tire and Rubber Company of the Philippines
[Firestone for brevity] assails the decision of public respondent National Labor Relations
Commission which ordered the reinstatement without backwages of Carlos Lariosa, a dismissed tire
builder of petitioner, as having been rendered with grave abuse of discretion amounting to lack of
jurisdiction.
The facts are as follows:
Carlos Lariosa started working with Firestone on January 3, 1972 as a factory worker. At the time of
his dismissal, he was a tire builder.
At around 2:00 o'clock in the afternoon of July 27, 1983, as he was about to leave the company
premises Lariosa submitted himself to a routine check by the security guards at the west gate. He
was frisked by Security Guard Ambrosio Liso [Lizo] while his personal bag was inspected by
Security Guard Virgilio Olvez. In the course of the inspection, sixteen [16] wool flannel swabs, all
belonging to the company, were found inside his bag, tucked underneath his soiled clothes.
As a result of the incident, Firestone terminated Lariosa's services on August 2, 1983, citing as
grounds therefor: "stealing company property and loss of trust."
1
Firestone also filed a criminal
complaint against him with the Rizal provincial fiscal for attempted theft [IS No. 83-436-M].
2

Lariosa, on the other hand, sued Firestone before the Ministry of Labor and Employment for illegal
dismissal, violation of Batas Pambansa Blg. 130 and its related rules and regulations, and damages.
The Labor Arbiter, in his decision dated May 8, 1984, found Lariosa's dismissal justified.
3
However,
on appeal, the National Labor Relations Commission on December 28, 1984 reversed the decision
of the Labor Arbiter [with one commissioner voting for affirmance] and held that the dismissal of
Lariosa was too severe a penalty. It therefore ordered Lariosa's reinstatement but without
backwages, the period when he was out of work to be considered a suspension.
4

Petitioner Firestone, in this special civil action for certiorari, contends that the NLRC erred in not
dismissing Lariosa's appeal for being late, in finding that Lariosa was not accorded due process and
in reversing the Labor Arbiter.
We shall deal first with the timeliness of the appeal. It is admitted that Lariosa filed his appeal on
June 7, 1984 or after the lapse of fourteen days from notice of the decision of the Labor Arbiter.
Article 223 of the Labor Code clearly provides for a reglementary period of ten days within which to
appeal decision of the Labor Arbiter to the NLRC. The ten-day period has been interpreted by this
Court in the case of Vir-jen Shipping and Marine Services, Inc. vs. NLRC, G.R. No. 58011-12, July
20, 1982, 115 SCRA 347, 361, to mean ten "calendar" days and not ten "working" days. However,
the "Notice of Decision" which Lariosa's lawyer received together with a copy of the arbiter's decision
advised them that an appeal could be taken to the NLRC within ten "working" days from receipt of
the said decision.
5

Mindful of the fact that Lariosa's counsel must have been misled by the implementing rules of the
labor commission and considering that the shortened period for appeal is principally intended more
for the employees' benefit, rather than that of the employer, We are inclined to overlook this
particular procedural lapse and to proceed with the resolution of the instant case.
A review of the record shows that Lariosa was indubitably involved in the attempted theft of the
flannel swabs. During the investigation called by the company's industrial relations manager Ms.
Villavicencio on July 28, 1983, or one day after the incident, Security Guards Liso and Olvez
contradicted Lariosa's bare claim that he had no intention to bring home the swabs and that he had
simply overlooked that he had earlier placed them inside his bag after they were given to him by his
shift supervisor while he was busy at work. Guard Olvez stated that when he confronted Lariosa with
the swabs, the latter replied that they were for "home use." And when he requested Lariosa to stay
behind while he reported the matter to the authorities, Lariosa refused and hurriedly left the premises
and boarded a passing jeepney.
6

From the records, it is likewise clear that Firestone did not act arbitrarily in terminating Lariosa's
services. On the contrary, there are transcripts to prove that an investigation of the incident was
promptly conducted in the presence of the employee concerned, the union president and the
security guards who witnessed the attempted asportation. Records also belie the allegation that
Lariosa was shown his walking papers on the very day of the incident. The letter of Ms. Villavicencio
to Lariosa dated August 1, 1983 informing the latter of his dismissal effective August 2, 1983
conclusively shows that he was discharged only on August 2, 1983, after an investigation was held
to ventilate the truth about the July 27 incident.
7
Thus, we cannot agree with the NLRC's conclusion
that even if Firestone had found substantial proof of Lariosa's misconduct, it did not observe the
statutory requirements of due process.
There is no gainsaying that theft committed by an employee constitutes a valid reason for his
dismissal by the employer. Although as a rule this Court leans over backwards to help workers and
employees continue with their employment or to mitigate the penalties imposed on them, acts of
dishonesty in the handling of company property are a different matter.
8

Thus, under Article 283 of the Labor Code, an employer may terminate an employment for "serious
misconduct" or for "fraud or willful breach by the employee of the trust reposed in him by his
employer or representative."
If there is sufficient evidence that an employee has been guilty of a breach of trust or that his
employer has ample reasons to distrust him, the labor tribunal cannot justly deny to the employer the
authority to dismiss such an employee.
9

As a tire builder, Lariosa was entrusted with certain materials for use in his job. On the day in
question, he was given two bundles of wool flannel swabs [ten pieces per bundle] for cleaning disks.
He used four swabs from one pack and kept the rest [sixteen pieces] in his "blue travelling
bag."
10
Why he placed the swabs in his personal bag, which is not the usual receptacle for company
property, has not been satisfactorily explained.
If Lariosa, by his own wrong-doing, could no longer be trusted, it would be an act of oppression to
compel the company to retain him, fully aware that such an employee could, in the long run,
endanger its very viability.
The employer's obligation to give his workers just compensation and treatment carries with it the
corollary right to expect from the workers adequate work, diligence and good conduct.
11

In view of the foregoing, We rule that Firestone had valid grounds to dispense with the services of
Lariosa and that the NLRC acted with grave abuse of discretion in ordering his reinstatement.
However, considering that Lariosa had worked with the company for eleven years with no known
previous bad record, the ends of social and compassionate justice would be served if he is paid full
separation pay but not reinstatement without backages as decreed by the NLRC.
12

WHEREFORE, the petition is granted. The decision of the National Labor Relations Commission
dated December 28, 1984 is reversed and set aside. Petitioner Firestone Tire and Rubber Company
of the Philippines is directed to pay its dismissed worker Carlos Lariosa the separation pay to which
he may be entitled under the law, or any collective bargaining agreement or company rules or
practice, whichever is higher.
SO ORDERED.
Alampay, Gutierrez, Jr., Paras, Padilla and Bidin JJ., concur.
Cortes, J., took no part.
Footnotes
1 Rollo, P. 43.
2 Rollo, p. 82.
3 Rollo, p. 27.
4 Rollo, pp. 20-21.
5 Rollo, p. 88.
6 Rollo p. 43.
7 Rollo, pp. 42-43.
8 Metro Drug Corporation vs. NLRC, G.R. No. 72248, July 22, 1986, 143 SCRA 132,
citing Dole Philippines, Inc. vs. NLRC, G.R. 55413, July 25, 1983, 123 SCRA 673.
9 Philippine Geothermal Inc. vs. NLRC, G.R. Nos. 55249-50, October 19, 1982, 117
SCRA 692, 695; Reynolds Philippines Corp. vs. Eslava, G.R. No. L-48814, June 27,
1985, 137 SCRA 259.
10 Rollo, p. 93.
11 Jacinto vs. Standard-Vacuum Oil Co., 70 Phil. 501; San Miguel Corporation vs.
NLRC, G.R. No. 56554, July 20, 1982, 115 SCRA 329.
12 Engineering Equipment Inc. vs. NLRC, G.R. No. 59221, December 26, 1984, 133
SCRA 752; National Service Corporation vs. Leogardo, Jr., G.R. No. 64296, July 20,
1984, 130 SCRA 502.
G.R. No. L-14858 December 29, 1960
MARIANO S. GONZAGA, petitioner-appellee,
vs.
AUGUSTO CE DAVID, as Registrar of the Motor Vehicles Office of Cagayan, respondent-
appellant.
Office of the Asst. Solicitor General Guillermo E. Torres and Solicitor E. D. Ignacio for appellant.
Ventura V. Perez for appellee.

REYES, J.B.L., J .:
The essential antecedents of this case are not disputed. On February, 1957, Mariano Gonzaga, as
owner, registered with the Motor Vehicles Office a cargo truck and a passenger bus, paying the first
installment for registration fees due on said vehicles for 1957. To cover the second installment for
registration fees, Gonzaga remitted to the Provincial Treasurer of Cagayan, by registered mail,
P500.00, under postal money orders Nos. 18553, 18554 and 18555, purchased from and issued by
the Post Office of Camalaniugan, Cagayan. The postal cancellation mark on the envelope containing
the remittance of Gonzaga bears the date August 31, 1957; so does the postal cancellation mark on
the face of the money orders.
The Registrar of the Motor Vehicles Office of Cagayan ruled that pursuant to Section 8 (1), Act 3992,
otherwise known as the Revised Motor Vehicle Law, the second installment for registration fees was
payable on or before the last working day of August; that the last working day of August, 1957 was
Friday, August 30, 1957; that consequently, the remittance of Gonzaga bearing postal cancellation
mark dated August 31, 1957 was made beyond the time fixed by law. Accordingly, said official
sought to impose a 50% delinquency penalty, or otherwise, threatened to confiscate the certificate of
registration for the two trucks (Annexes "B" & "C").lawphil.net
Gonzaga brought this action in the Court of First Instance, which, upon a stipulation of facts,
rendered judgment, the dispositive part reading
POR TANTO, el Juzgado dicta decision declarando, como por la presente declara, que el
pago hecho con los giros postales Nos. 18553, 18554 y 18555, por el recurrente, se ha
hecho dentro del plazo fijado por ley; y, por tanto, el recurrente no ha incurrido con
morosidad en cuanto a dicho pago.
Se ordena al recurrido, sus agentes y representantes, que se abstengan de confiscar el
certificado de registro de los dos trucks del recurrente, por la alegada morosidad del citado
pago.
Sin costas.
ASI SE ORDENA.
The only issue in this appeal is whether the remittance of petitioner-appellee covering the second
installment of registration fees for 1957, made by registered mail with postal cancellation dated
August 31, 1957, was within the time fixed by law.
The following are the pertinent provisions of Act 3992 as amended
Sec. 8 (I) ". . . The registration fees provided in this Act for trucks may be payable in two
equal installments, the first to be paid on or before the last working day of February, and the
second to be paid on or before the last working day of August. (Emphasis supplied)
Sec. 6 (b) "The date of cancellation of the postage stamps of envelopes containing money
orders, checks, or cash shall be considered as the date of
application. . . .
In support of its contention that August 30, and not August 31, was the last working day of August,
1957, respondent-appellant invokes Republic Act No. 1880, otherwise known as the "40-Hour Week
Law", pursuant to which government offices are to hold office from Monday to Friday only, unless
one of those expressly exempted therefrom.
As correctly held by the court below, the fact that pursuant to Republic Act 1880, the Motor Vehicles
Office in Tuguegarao, Cagayan, had no office on Saturday, Aug. 31, 1957, is immaterial in the case.
The last working day contemplated in Sec. 8(I) of Act 3992 as amended should not necessarily
mean the last working day for Motor Vehicle Office. Under Sec. 6(b) of said Act, providing for
payment of registration fees by mail, the date of cancellation of the postage stamps of the envelope
containing the remittance is considered the date of application. Consequently, where the manner of
payment falls under said Section 6(b), the law, in recognizing the date of cancellation as the date of
application, impliedly permits of a remittance or payment within that last day of August that the Post
Office may still effect cancellation; and the remittance, in fact, bears a postal cancellation, dated
August 31, 1957. Moreover, it is not pretended by respondent-appellant that the Post Office ceased
or has ceased to transact business and discharge its functions on Saturdays by reason alone of
Republic Act No. 1880. Clearly, therefore,the remittance by petitioner-appellee was within the by
law, as provided in Section 8 (I), in connection with Section 6 (b) of Act 3992, as amended.lawphil.net
The fact that August 31, 1957 was declared a special public holiday by Proclamation No. 437 (dated
August 21, 1957) of the President of the Philippines did not have the effect of making the preceding
day, August 30, the last day for paying registration fees without penalty. On the contrary, Section 31
of the Revised Administrative Code provides
Sec. 31. Pretermission of holiday. Where the day, or the last day, for doing any act
required or permitted by law falls on a holiday, the act may be done the next succeeding
business day.
In Calano vs. Cruz, 91 Phil., 247, we ruled as follows:
The complaint filed by the petitioner herein was presented in the court a quo on November
23, 1951, exactly on the eight day after the proclamation of the respondent as duly elected
councilor for the Municipality of Orion, Bataan. It happens, however, that November 22,
1951, the last day of the seven-day period prescribed by Section 173 of the Revised Election
Code, was declared a "Special Public Holiday For National Thanksgiving" by Proclamation
No. 290, series of 1951, of the President of the Philippines. The trial court held that the
provisions of Section 1 of Rule 28 of the Rules of Court could not be applied to the case at
bar because it is an election case (Rule 132, Rules of Court), and declared that the
complaint was filed outside of the period provided for by law. Assuming that Section 1 of
Rule 28 of the Rules of Court is not applicable, the law applicable is Section 31 of the
Revised Administrative Code, which provides that "Where the day, or the last day, for doing
any act required or permitted by law falls on a holiday, the act may be done on the next
succeeding business day." The court a quo, therefore, committed an error in declaring that
the complaint was filed out of time.
The ruling is on all fours on the issue before us, and against respondent-appellant.
The decision appealed from is affirmed. Without costs..
Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Gutierrez David, Paredes, and
Dizon, JJ., concur.
G.R. No. L-32116 April 2l, 1981
RURAL BANK OF CALOOCAN, INC. and JOSE O. DESIDERIO, JR., petitioners,
vs.
THE COURT OF APPEALS and MAXIMA CASTRO, respondents.

DE CASTRO, * J .:
This is a petition for review by way of certiorari of the decision
1
of the Court of Appeals in CA-G.R.
No. 39760-R entitled "Maxima Castro, plaintiff-appellee, versus Severino Valencia, et al.,
defendants; Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and Arsenio Reyes, defendants-
appellants," which affirmed in toto the decision of the Court of First Instance of Manila in favor of
plaintiff- appellee, the herein private respondent Maxima Castro.
On December 7, 1959, respondent Maxima Castro, accompanied by Severino Valencia, went to the
Rural Bank of Caloocan to apply for an industrial loan. It was Severino Valencia who arranged
everything about the loan with the bank and who supplied to the latter the personal data required for
Castro's loan application. On December 11, 1959, after the bank approved the loan for the amount
of P3,000.00, Castro, accompanied by the Valencia spouses, signed a promissory note
corresponding to her loan in favor of the bank.
On the same day, December 11, 1959, the Valencia spouses obtained from the bank an equal
amount of loan for P3,000.00. They signed a promissory note (Exhibit "2") corresponding to their
loan in favor of the bank and had Castro affixed thereon her signature as co-maker.
The two loans were secured by a real-estate mortgage (Exhibit "6") on Castro's house and lot of 150
square meters, covered by Transfer Certificate of Title No. 7419 of the Office of the Register of
Deeds of Manila.
On February 13, 1961, the sheriff of Manila, thru Acting Chief Deputy Sheriff Basilio Magsambol,
sent a notice of sheriff's sale addressed to Castro, announcing that her property covered by T.C.T.
No. 7419 would be sold at public auction on March 10, 1961 to satisfy the obligation covering the
two promissory notes plus interest and attorney's fees.
Upon request by Castro and the Valencias and with conformity of the bank, the auction sale that was
scheduled for March 10, 1961 was postponed for April 10, 1961. But when April 10, 1961 was
subsequently declared a special holiday, the sheriff of Manila sold the property covered by T.C.T.
No. 7419 at a public auction sale that was held on April 11, 1961, which was the next succeeding
business day following the special holiday.
Castro alleged that it was only when she received the letter from the Acting Deputy Sheriff on
February 13, 1961, when she learned for the first time that the mortgage contract (Exhibit "6") which
was an encumbrance on her property was for P6.000.00 and not for P3,000.00 and that she was
made to sign as co-maker of the promissory note (Exhibit "2") without her being informed of this.
On April 4, 1961, Castro filed a suit denominated "Re: Sum of Money," against petitioners Bank and
Desiderio, the Spouses Valencia, Basilio Magsambol and Arsenio Reyes as defendants in Civil Case
No. 46698 before the Court of First Instance of Manila upon the charge, amongst others, that thru
mistake on her part or fraud on the part of Valencias she was induced to sign as co-maker of a
promissory note (Exhibit "2") and to constitute a mortgage on her house and lot to secure the
questioned note. At the time of filing her complaint, respondent Castro deposited the amount of
P3,383.00 with the court a quo in full payment of her personal loan plus interest.
In her amended complaint, Castro prayed, amongst other, for the annulment as far as she is
concerned of the promissory note (Exhibit "2") and mortgage (Exhibit "6") insofar as it exceeds
P3,000.00; for the discharge of her personal obligation with the bank by reason of a deposit of
P3,383.00 with the court a quo upon the filing of her complaint; for the annulment of the foreclosure
sale of her property covered by T.C.T. No. 7419 in favor of Arsenio Reyes; and for the award in her
favor of attorney's fees, damages and cost.
In their answers, petitioners interposed counterclaims and prayed for the dismissal of said complaint,
with damages, attorney's fees and costs.
2

The pertinent facts arrived from the stipulation of facts entered into by the parties as stated by
respondent Court of Appeals are as follows:
Spawning the present litigation are the facts contained in the following stipulation of
facts submitted by the parties themselves:
1. That the capacity and addresses of all the parties in this case are admitted .
2. That the plaintiff was the registered owner of a residential house and lot located at
Nos. 1268-1270 Carola Street, Sampaloc, Manila, containing an area of one hundred
fifty (150) square meters, more or less, covered by T.C.T. No. 7419 of the Office of
the Register of Deeds of Manila;
3. That the signatures of the plaintiff appearing on the following documents are
genuine:
a) Application for Industrial Loan with the Rural Bank of Caloocan, dated December
7, 1959 in the amount of P3,000.00 attached as Annex A of this partial stipulation of
facts;
b) Promissory Note dated December 11, 1959 signed by the plaintiff in favor of the
Rural Bank of Caloocan for the amount of P3,000.00 as per Annex B of this partial
stipulation of facts;
c) Application for Industrial Loan with the Rural Bank of Caloocan, dated December
11, 1959, signed only by the defendants, Severino Valencia and Catalina Valencia,
attached as Annex C, of this partial stipulation of facts;
d) Promissory note in favor of the Rural Bank of Caloocan, dated December 11, 1959
for the amount of P3000.00, signed by the spouses Severino Valencia and Catalina
Valencia as borrowers, and plaintiff Maxima Castro, as a co-maker, attached as
Annex D of this partial stipulation of facts;
e) Real estate mortgage dated December 11, 1959 executed by plaintiff Maxima
Castro, in favor of the Rural Bank of Caloocan, to secure the obligation of P6,000.00
attached herein as Annex E of this partial stipulation of facts;
All the parties herein expressly reserved their right to present any evidence they may
desire on the circumstances regarding the execution of the above-mentioned
documents.
4. That the sheriff of Manila, thru Acting Chief Deputy Sheriff, Basilio Magsambol,
sent a notice of sheriff's sale, address to the plaintiff, dated February 13, 1961,
announcing that plaintiff's property covered by TCT No. 7419 of the Register of
Deeds of the City of Manila, would be sold at public auction on March 10, 1961 to
satisfy the total obligation of P5,728.50, plus interest, attorney's fees, etc., as
evidenced by the Notice of Sheriff's Sale and Notice of Extrajudicial Auction Sale of
the Mortgaged property, attached herewith as Annexes F and F-1, respectively, of
this stipulation of facts;
5. That upon the request of the plaintiff and defendants-spouses Severino Valencia
and Catalina Valencia, and with the conformity of the Rural Bank of Caloocan, the
Sheriff of Manila postponed the auction sale scheduled for March 10, 1961 for thirty
(30) days and the sheriff re-set the auction sale for April 10, 1961;
6. That April 10, 1961 was declared a special public holiday; (Note: No. 7 is omitted
upon agreement of the parties.)
8. That on April 11, 1961, the Sheriff of Manila, sold at public auction plaintiff's
property covered by T.C.T. No. 7419 and defendant, Arsenio Reyes, was the highest
bidder and the corresponding certificate of sale was issued to him as per Annex G of
this partial stipulation of facts;
9. That on April 16, 1962, the defendant Arsenio Reyes, executed an Affidavit of
Consolidation of Ownership, a copy of which is hereto attached as Annex H of this
partial stipulation of facts;
10. That on May 9, 1962, the Rural Bank of Caloocan Incorporated executed the final
deed of sale in favor of the defendant, Arsenio Reyes, in the amount of P7,000.00, a
copy of which is attached as Annex I of this partial stipulation of facts;
11. That the Register of Deeds of the City of Manila issued the Transfer Certificate of
Title No. 67297 in favor of the defendant, Arsenio Reyes, in lieu of Transfer
Certificate of Title No. 7419 which was in the name of plaintiff, Maxima Castro, which
was cancelled;
12. That after defendant, Arsenio Reyes, had consolidated his title to the property as
per T.C.T. No. 67299, plaintiff filed a notice of lis pendens with the Register of Deeds
of Manila and the same was annotated in the back of T.C.T. No. 67299 as per Annex
J of this partial stipulation of facts; and
13. That the parties hereby reserved their rights to present additional evidence on
matters not covered by this partial stipulation of facts.
WHEREFORE, it is respectfully prayed that the foregoing partial stipulation of facts
be approved and admitted by this Honorable Court.
As for the evidence presented during the trial, We quote from the decision of the Court of Appeals
the statement thereof, as follows:
In addition to the foregoing stipulation of facts, plaintiff claims she is a 70-year old
widow who cannot read and write the English language; that she can speak the
Pampango dialect only; that she has only finished second grade (t.s.n., p. 4,
December 11, 1964); that in December 1959, she needed money in the amount of
P3,000.00 to invest in the business of the defendant spouses Valencia, who
accompanied her to the defendant bank for the purpose of securing a loan of
P3,000.00; that while at the defendant bank, an employee handed to her several
forms already prepared which she was asked to sign on the places indicated, with no
one explaining to her the nature and contents of the documents; that she did not
even receive a copy thereof; that she was given a check in the amount of P2,882.85
which she delivered to defendant spouses; that sometime in February 1961, she
received a letter from the Acting Deputy Sheriff of Manila, regarding the extrajudicial
foreclosure sale of her property; that it was then when she learned for the first time
that the mortgage indebtedness secured by the mortgage on her property was
P6,000.00 and not P3,000.00; that upon investigation of her lawyer, it was found that
the papers she was made to sign were:
(a) Application for a loan of P3,000.00 dated December 7, 1959 (Exh. B-1 and Exh.
1);
(b) Promissory note dated December 11, 1959 for the said loan of P3,000.00 (Exh-
B-2);
(c) Promissory note dated December 11, 1959 for P3,000.00 with the defendants
Valencia spouses as borrowers and appellee as co-maker (Exh. B-4 or Exh. 2).
The auction sale set for March 10, 1961 was postponed co April 10, 1961 upon the
request of defendant spouses Valencia who needed more time within which to pay
their loan of P3,000.00 with the defendant bank; plaintiff claims that when she filed
the complaint she deposited with the Clerk of Court the sum of P3,383.00 in full
payment of her loan of P3,000.00 with the defendant bank, plus interest at the rate of
12% per annum up to April 3, 1961 (Exh. D).
As additional evidence for the defendant bank, its manager declared that sometime in
December, 1959, plaintiff was brought to the Office of the Bank by an employee- (t.s.n., p
4, January 27, 1966). She wept, there to inquire if she could get a loan from the bank.
The claims he asked the amount and the purpose of the loan and the security to he given
and plaintiff said she would need P3.000.00 to be invested in a drugstore in which she
was a partner (t.s.n., p. 811. She offered as security for the loan her lot and house at
Carola St., Sampaloc, Manila, which was promptly investigated by the defendant bank's
inspector. Then a few days later, plaintiff came back to the bank with the wife of
defendant Valencia A date was allegedly set for plaintiff and the defendant spouses for
the processing of their application, but on the day fixed, plaintiff came without the
defendant spouses. She signed the application and the other papers pertinent to the loan
after she was interviewed by the manager of the defendant. After the application of
plaintiff was made, defendant spouses had their application for a loan also prepared and
signed (see Exh. 13). In his interview of plaintiff and defendant spouses, the manager of
the bank was able to gather that plaintiff was in joint venture with the defendant spouses
wherein she agreed to invest P3,000.00 as additional capital in the laboratory owned by
said spouses (t.s.n., pp. 16-17)
3

The Court of Appeals, upon evaluation of the evidence, affirmed in toto the decision of the Court of
First Instance of Manila, the dispositive portion of which reads:
FOR ALL THE FOREGOING CONSIDERATIONS, the Court renders judgment and:
(1) Declares that the promissory note, Exhibit '2', is invalid as against plaintiff herein;
(2) Declares that the contract of mortgage, Exhibit '6', is null and void, in so far as the
amount thereof exceeds the sum of P3,000.00 representing the principal obligation of
plaintiff, plus the interest thereon at 12% per annum;
(3) Annuls the extrajudicial foreclosure sale at public auction of the mortgaged
property held on April 11, 1961, as well as all the process and actuations made in
pursuance of or in implementation thereto;
(4) Holds that the total unpaid obligation of plaintiff to defendant Rural Bank of
Caloocan, Inc., is only the amount of P3,000.00, plus the interest thereon at 12% per
annum, as of April 3, 1961, and orders that plaintiff's deposit of P3,383.00 in the
Office of the Clerk of Court be applied to the payment thereof;
(5) Orders defendant Rural Bank of Caloocan, Inc. to return to defendant Arsenio
Reyes the purchase price the latter paid for the mortgaged property at the public
auction, as well as reimburse him of all the expenses he has incurred relative to the
sale thereof;
(6) Orders defendants spouses Severino D. Valencia and Catalina Valencia to pay
defendant Rural Bank of Caloocan, Inc. the amount of P3,000.00 plus the
corresponding 12% interest thereon per annum from December 11, 1960 until fully
paid; and
Orders defendants Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and spouses
Severino D. Valencia and Catalina Valencia to pay plaintiff, jointly and severally, the
sum of P600.00 by way of attorney's fees, as well as costs.
In view of the conclusion that the court has thus reached, the counterclaims of
defendant Rural Bank of Caloocan, Inc., Jose Desiderio, Jr. and Arsenio Reyes are
hereby dismissed, as a corollary
The Court further denies the motion of defendant Arsenio Reyes for an Order requiring
Maxima Castro to deposit rentals filed on November 16, 1963, resolution of which was
held in abeyance pending final determination of the case on the merits, also as a
consequence of the conclusion aforesaid.
4

Petitioners Bank and Jose Desiderio moved for the reconsideration
5
of respondent court's decision.
The motion having been denied,
6
they now come before this Court in the instant petition, with the
following Assignment of Errors, to wit:
I
THE COURT OF APPEALS ERRED IN UPHOLDING THE PARTIAL ANNULMENT
OF THE PROMISSORY NOTE, EXHIBIT 2, AND THE MORTGAGE, EXHIBIT 6,
INSOFAR AS THEY AFFECT RESPONDENT MAXIMA CASTRO VIS-A-VIS
PETITIONER BANK DESPITE THE TOTAL ABSENCE OF EITHER ALLEGATION
IN THE COMPLAINT OR COMPETENT PROOF IN THE EVIDENCE OF ANY
FRAUD OR OTHER UNLAWFUL CONDUCT COMMITTED OR PARTICIPATED IN
BY PETITIONERS IN PROCURING THE EXECUTION OF SAID CONTRACTS
FROM RESPONDENT CASTRO.
II
THE COURT OF APPEALS ERRED IN IMPUTING UPON AND CONSIDERING
PREJUDICIALLY AGAINST PETITIONERS, AS BASIS FOR THE PARTIAL
ANNULMENT OF THE CONTRACTS AFORESAID ITS FINDING OF FRAUD
PERPETRATED BY THE VALENCIA SPOUSES UPON RESPONDENT CASTRO
IN UTTER VIOLATION OF THE RES INTER ALIOS ACTA RULE.
III
THE COURT OF APPEAL ERRED IN NOT HOLDING THAT, UNDER THE FACTS
FOUND BY IT, RESPONDENT CASTRO IS UNDER ESTOPPEL TO IMPUGN THE
REGULARITY AND VALIDITY OF HER QUESTIONED TRANSACTION WITH
PETITIONER BANK.
IV
THE COURT OF APPEALS ERRED IN NOT FINDING THAT, BETWEEN
PETITIONERS AND RESPONDENT CASTRO, THE LATTER SHOULD SUFFER
THE CONSEQUENCES OF THE FRAUD PERPETRATED BY THE VALENCIA
SPOUSES, IN AS MUCH AS IT WAS THRU RESPONDENT CASTRO'S
NEGLIGENCE OR ACQUIESCENSE IF NOT ACTUAL CONNIVANCE THAT THE
PERPETRATION OF SAID FRAUD WAS MADE POSSIBLE.
V
THE COURT OF APPEALS ERRED IN UPHOLDING THE VALIDITY OF THE
DEPOSIT BY RESPONDENT CASTRO OF P3,383.00 WITH THE COURT BELOW
AS A TENDER AND CONSIGNATION OF PAYMENT SUFFICIENT TO
DISCHARGE SAID RESPONDENT FROM HER OBLIGATION WITH PETITIONER
BANK.
VI
THE COURT OF APPEALS ERRED IN NOT DECLARING AS VALID AND BINDING
UPON RESPONDENT CASTRO THE HOLDING OF THE SALE ON
FORECLOSURE ON THE BUSINESS DAY NEXT FOLLOWING THE ORIGINALLY
SCHEDULED DATE THEREFOR WHICH WAS DECLARED A HOLIDAY WITHOUT
NECESSITY OF FURTHER NOTICE THEREOF.
The issue raised in the first three (3) assignment of errors is whether or not respondent court
correctly affirmed the lower court in declaring the promissory note (Exhibit 2) invalid insofar as they
affect respondent Castro vis-a-vis petitioner bank, and the mortgage contract (Exhibit 6) valid up to
the amount of P3,000.00 only.
Respondent court declared that the consent of Castro to the promissory note (Exhibit 2) where she
signed as co-maker with the Valencias as principal borrowers and her acquiescence to the mortgage
contract (Exhibit 6) where she encumbered her property to secure the amount of P6,000.00 was
obtained by fraud perpetrated on her by the Valencias who had abused her confidence, taking
advantage of her old age and ignorance of her financial need. Respondent court added that "the
mandate of fair play decrees that she should be relieved of her obligation under the contract"
pursuant to Articles 24
7
and 1332
8
of the Civil Code.
The decision in effect relieved Castro of any liability to the promissory note (Exhibit 2) and the
mortgage contract (Exhibit 6) was deemed valid up to the amount of P3,000.00 only which was
equivalent to her personal loan to the bank.
Petitioners argued that since the Valencias were solely declared in the decision to be responsible for
the fraud against Castro, in the light of the res inter alios acta rule, a finding of fraud perpetrated by
the spouses against Castro cannot be taken to operate prejudicially against the bank. Petitioners
concluded that respondent court erred in not giving effect to the promissory note (Exhibit 2) insofar
as they affect Castro and the bank and in declaring that the mortgage contract (Exhibit 6) was valid
only to the extent of Castro's personal loan of P3,000.00.
The records of the case reveal that respondent court's findings of fraud against the Valencias is well
supported by evidence. Moreover, the findings of fact by respondent court in the matter is deemed
final.
9
The decision declared the Valencias solely responsible for the defraudation of Castro.
Petitioners' contention that the decision was silent regarding the participation of the bank in the fraud
is, therefore, correct.
We cannot agree with the contention of petitioners that the bank was defrauded by the Valencias.
For one, no claim was made on this in the lower court. For another, petitioners did not submit proof
to support its contention.
At any rate, We observe that while the Valencias defrauded Castro by making her sign the
promissory note (Exhibit 2) and the mortgage contract (Exhibit 6), they also misrepresented to the
bank Castro's personal qualifications in order to secure its consent to the loan. This must be the
reason which prompted the bank to contend that it was defrauded by the Valencias. But to reiterate,
We cannot agree with the contention for reasons above-mentioned. However, if the contention
deserves any consideration at all, it is in indicating the admission of petitioners that the bank
committed mistake in giving its consent to the contracts.
Thus, as a result of the fraud upon Castro and the misrepresentation to the bank inflicted by the
Valencias both Castro and the bank committed mistake in giving their consents to the contracts. In
other words, substantial mistake vitiated their consents given. For if Castro had been aware of what
she signed and the bank of the true qualifications of the loan applicants, it is evident that they would
not have given their consents to the contracts.
Pursuant to Article 1342 of the Civil Code which provides:
Art. 1342. Misrepresentation by a third person does not vitiate consent, unless such
misrepresentation has created substantial mistake and the same is mutual.
We cannot declare the promissory note (Exhibit 2) valid between the bank and Castro and the
mortgage contract (Exhibit 6) binding on Castro beyond the amount of P3,000.00, for while the
contracts may not be invalidated insofar as they affect the bank and Castro on the ground of fraud
because the bank was not a participant thereto, such may however be invalidated on the ground of
substantial mistake mutually committed by them as a consequence of the fraud and
misrepresentation inflicted by the Valencias. Thus, in the case of Hill vs. Veloso,
10
this Court
declared that a contract may be annulled on the ground of vitiated consent if deceit by a third
person, even without connivance or complicity with one of the contracting parties, resulted in mutual
error on the part of the parties to the contract.
Petitioners argued that the amended complaint fails to contain even a general averment of fraud or
mistake, and its mention in the prayer is definitely not a substantial compliance with the requirement
of Section 5, Rule 8 of the Rules of Court. The records of the case, however, will show that the
amended complaint contained a particular averment of fraud against the Valencias in full compliance
with the provision of the Rules of Court. Although, the amended complaint made no mention of
mistake being incurred in by the bank and Castro, such mention is not essential in order that the
promissory note (Exhibit 2) may be declared of no binding effect between them and the mortgage
(Exhibit 6) valid up to the amount of P3,000.00 only. The reason is that the mistake they mutually
suffered was a mere consequence of the fraud perpetrated by the Valencias against them. Thus, the
fraud particularly averred in the complaint, having been proven, is deemed sufficient basis for the
declaration of the promissory note (Exhibit 2) invalid insofar as it affects Castro vis-a-vis the bank,
and the mortgage contract (Exhibit 6) valid only up to the amount of P3,000.00.
The second issue raised in the fourth assignment of errors is who between Castro and the bank
should suffer the consequences of the fraud perpetrated by the Valencias.
In attributing to Castro an consequences of the loss, petitioners argue that it was her negligence or
acquiescence if not her actual connivance that made the fraud possible.
Petitioners' argument utterly disregards the findings of respondent Court of Appeals wherein
petitioners' negligence in the contracts has been aptly demonstrated, to wit:
A witness for the defendant bank, Rodolfo Desiderio claims he had subjected the plaintiff-
appellee to several interviews. If this were true why is it that her age was placed at 61
instead of 70; why was she described in the application (Exh. B-1-9) as drug
manufacturer when in fact she was not; why was it placed in the application that she has
income of P20,000.00 when according to plaintiff-appellee, she his not even given such
kind of information -the true fact being that she was being paid P1.20 per picul of the
sugarcane production in her hacienda and 500 cavans on the palay production.
11

From the foregoing, it is evident that the bank was as much , guilty as Castro was, of negligence in
giving its consent to the contracts. It apparently relied on representations made by the Valencia
spouses when it should have directly obtained the needed data from Castro who was the
acknowledged owner of the property offered as collateral. Moreover, considering Castro's personal
circumstances her lack of education, ignorance and old age she cannot be considered utterly
neglectful for having been defrauded. On the contrary, it is demanded of petitioners to exercise the
highest order of care and prudence in its business dealings with the Valencias considering that it is
engaged in a banking business a business affected with public interest. It should have ascertained
Castro's awareness of what she was signing or made her understand what obligations she was
assuming, considering that she was giving accommodation to, without any consideration from the
Valencia spouses.
Petitioners further argue that Castro's act of holding the Valencias as her agent led the bank to
believe that they were authorized to speak and bind her. She cannot now be permitted to deny the
authority of the Valencias to act as her agent for one who clothes another with apparent authority as
her agent is not permitted to deny such authority.
The authority of the Valencias was only to follow-up Castro's loan application with the bank. They
were not authorized to borrow for her. This is apparent from the fact that Castro went to the Bank to
sign the promissory note for her loan of P3,000.00. If her act had been understood by the Bank to be
a grant of an authority to the Valencia to borrow in her behalf, it should have required a special
power of attorney executed by Castro in their favor. Since the bank did not, We can rightly assume
that it did not entertain the notion, that the Valencia spouses were in any manner acting as an agent
of Castro.
When the Valencias borrowed from the Bank a personal loan of P3,000.00 evidenced by a
promissory note (Exhibit 2) and mortgaged (Exhibit 6) Castro's property to secure said loan, the
Valencias acted for their own behalf. Considering however that for the loan in which the Valencias
appeared as principal borrowers, it was the property of Castro that was being mortgaged to secure
said loan, the Bank should have exercised due care and prudence by making proper inquiry if
Castro's consent to the mortgage was without any taint or defect. The possibility of her not knowing
that she signed the promissory note (Exhibit 2) as co-maker with the Valencias and that her property
was mortgaged to secure the two loans instead of her own personal loan only, in view of her
personal circumstances ignorance, lack of education and old age should have placed the Bank
on prudent inquiry to protect its interest and that of the public it serves. With the recent occurrence of
events that have supposedly affected adversely our banking system, attributable to laxity in the
conduct of bank business by its officials, the need of extreme caution and prudence by said officials
and employees in the discharge of their functions cannot be over-emphasized.
Question is, likewise, raised as to the propriety of respondent court's decision which declared that
Castro's consignation in court of the amount of P3,383.00 was validly made. It is contended that the
consignation was made without prior offer or tender of payment to the Bank, and it therefore, not
valid. In holding that there is a substantial compliance with the provision of Article 1256 of the Civil
Code, respondent court considered the fact that the Bank was holding Castro liable for the sum of
P6,000.00 plus 12% interest per annum, while the amount consigned was only P3,000.00 plus 12%
interest; that at the time of consignation, the Bank had long foreclosed the mortgage extrajudicially
and the sale of the mortgage property had already been scheduled for April 10, 1961 for non-
payment of the obligation, and that despite the fact that the Bank already knew of the deposit made
by Castro because the receipt of the deposit was attached to the record of the case, said Bank had
not made any claim of such deposit, and that therefore, Castro was right in thinking that it was futile
and useless for her to make previous offer and tender of payment directly to the Bank only in the
aforesaid amount of P3,000.00 plus 12% interest. Under the foregoing circumstances, the
consignation made by Castro was valid. if not under the strict provision of the law, under the more
liberal considerations of equity.
The final issue raised is the validity or invalidity of the extrajudicial foreclosure sale at public auction
of the mortgaged property that was held on April 11, 1961.
Petitioners contended that the public auction sale that was held on April 11, 1961 which was the next
business day after the scheduled date of the sale on April 10, 1961, a special public holiday, was
permissible and valid pursuant to the provisions of Section 31 of the Revised Administrative Code
which ordains:
Pretermission of holiday. Where the day, or the last day, for doing any act required
or permitted by law falls on a holiday, the act may be done on the next succeeding
business day.
Respondent court ruled that the aforesaid sale is null and void, it not having been carried out in
accordance with Section 9 of Act No. 3135, which provides:
Section 9. Notice shall be given by posting notices of the sale for not less than
twenty days in at least three public places of the municipality or city where the
property is situated, and if such property is worth more than four hundred pesos,
such notice shall also be published once a week for at least three consecutive weeks
in a newspaper of general circulation in the municipality or city.
We agree with respondent court. The pretermission of a holiday applies only "where the day, or the
last day for doing any act required or permitted by law falls on a holiday," or when the last day of a
given period for doing an act falls on a holiday. It does not apply to a day fixed by an office or officer
of the government for an act to be done, as distinguished from a period of time within which an act
should be done, which may be on any day within that specified period. For example, if a party is
required by law to file his answer to a complaint within fifteen (15) days from receipt of the summons
and the last day falls on a holiday, the last day is deemed moved to the next succeeding business
day. But, if the court fixes the trial of a case on a certain day but the said date is subsequently
declared a public holiday, the trial thereof is not automatically transferred to the next succeeding
business day. Since April 10, 1961 was not the day or the last day set by law for the extrajudicial
foreclosure sale, nor the last day of a given period but a date fixed by the deputy sheriff, the
aforesaid sale cannot legally be made on the next succeeding business day without the notices of
the sale on that day being posted as prescribed in Section 9, Act No. 3135.
WHEREFORE, finding no reversible error in the judgment under review, We affirm the same in toto.
No pronouncement as to cost.
SO ORDERED.
Teehankee (Acting, C.J.) Makasiar, Fernandez, Guerrero and Melencio-Herrera, JJ., concur.

Footnotes
* Mr. Justice de Castro was designated to sit with the First Division under Special
Order No. 225.
1 Rollo, pp. 112-133.
2 Record on Appeal, pp. 84-89.
3 Rollo, pp. 112-117.
4 Rollo, pp. 117-118.
5 Motion for Reconsideration, Rollo, pp. 134-167.
6 Resolution of the Court of Appeals, dated May 25, 1970, Rollo, p. 168.
7 Art. 24. In all contractual property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection.
8 Art. 1332. When one of the parties is unable to read or if the contract is in a
language not understood by him, and mistake or fraud is alleged, the person
enforcing the contract must show that the terms thereof have been fully explained to
the former.
9 Guico vs. Mayuga 63 Phil. 328; Velasco vs. Court of Appeals, 90 Phil. 688;
Fonacier vs. Court of Appeals, 96 Phil. 417.
10 31 Phil. 160.
11 pp. 13-14, CA decision.
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs.
REDERICK A. RECIO, respondent.
D E C I S I O N
PANGANIBAN, J .:
A divorce obtained abroad by an alien may be recognized in our jurisdiction, provided such
decree is valid according to the national law of the foreigner. However, the divorce decree and
the governing personal law of the alien spouse who obtained the divorce must be proven. Our
courts do not take judicial notice of foreign laws and judgments; hence, like any other facts, both
the divorce decree and the national law of the alien must be alleged and proven according to our
law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to nullify the
January 7, 1999 Decision
[1]
and the March 24, 1999 Order
[2]
of the Regional Trial Court of
Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed Decision disposed as
follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and
Rederick A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved
and both parties can now remarry under existing and applicable laws to any and/or
both parties.
[3]

The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen, in
Malabon, Rizal, on March 1, 1987.
[4]
They lived together as husband and wife in Australia. On
May 18, 1989,

[5]
a decree of divorce, purportedly dissolving the marriage, was issued by an
Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a Certificate of
Australian Citizenship issued by the Australian government.
[6]
Petitioner -- a Filipina -- and
respondent were married on January 12, 1994 in Our Lady of Perpetual Help Church in
Cabanatuan City.
[7]
In their application for a marriage license, respondent was declared as
single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior judicial
dissolution of their marriage. While the two were still in Australia, their conjugal assets were
divided on May 16, 1996, in accordance with their Statutory Declarations secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of Marriage
[10]
in
the court a quo, on the ground of bigamy -- respondent allegedly had a prior subsisting marriage
at the time he married her on January 12, 1994. She claimed that she learned of respondents
marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to petitioner his
prior marriage and its subsequent dissolution.
[11]
He contended that his first marriage to an
Australian citizen had been validly dissolved by a divorce decree obtained in Australia in
1989;
[12]
thus, he was legally capacitated to marry petitioner in 1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit for the
declaration of nullity was pending -- respondent was able to secure a divorce decree from a
family court in Sydney, Australia because the marriage ha[d] irretrievably broken down.
[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground that it
stated no cause of action.
[14]
The Office of the Solicitor General agreed with respondent.
[15]
The
court marked and admitted the documentary evidence of both parties.
[16]
After they submitted
their respective memoranda, the case was submitted for resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued in
Australia was valid and recognized in the Philippines. It deemed the marriage ended, but not on
the basis of any defect in an essential element of the marriage; that is, respondents alleged lack
of legal capacity to remarry. Rather, it based its Decision on the divorce decree obtained by
respondent. The Australian divorce had ended the marriage; thus, there was no more marital
union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40,
52 and 53 of the Family Code as the applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our
courts.
[19]

The Petition raises five issues, but for purposes of this Decision, we shall concentrate on two
pivotal ones: (1) whether the divorce between respondent and Editha Samson was proven, and
(2) whether respondent was proven to be legally capacitated to marry petitioner. Because of our
ruling on these two, there is no more necessity to take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and Editha
Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce decree, like any
other foreign judgment, may be given recognition in this jurisdiction only upon proof of the
existence of (1) the foreign law allowing absolute divorce and (2) the alleged divorce decree
itself. She adds that respondent miserably failed to establish these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code, marriages
solemnized abroad are governed by the law of the place where they were celebrated (the lex loci
celebrationis). In effect, the Code requires the presentation of the foreign law to show the
conformity of the marriage in question to the legal requirements of the place where the marriage
was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts cannot grant
it.
[21]
A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad,
because of Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In mixed marriages involving a Filipino
and a foreigner, Article 26
[25]
of the Family Code allows the former to contract a subsequent
marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or
her to remarry.
[26]
A divorce obtained abroad by a couple, who are both aliens, may be
recognized in the Philippines, provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and proof are concerned,
can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain divorces abroad, which
may be recognized in the Philippines, provided they are valid according to their national
law.
[28]
Therefore, before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law
allowing it.
[29]
Presentation solely of the divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must first
comply with the registration requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall
file separately a sworn application for such license with the proper local civil registrar
which shall specify the following:
x x x x x x x x x
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
x x x x x x x x x
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate
required in the last preceding article, the death certificate of the deceased spouse or
the judicial decree of the absolute divorce, or the judicial decree of annulment or
declaration of nullity of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
childrens presumptive legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public
document -- a written official act of an Australian family court. Therefore, it requires no further
proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given presumptive
evidentiary value, the document must first be presented and admitted in evidence.
[30]
A divorce
obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is
the judgment itself.
[31]
The decree purports to be a written act or record of an act of an official
body or tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be
proven as a public or official record of a foreign country by either (1) an official publication or
(2) a copy thereof attested
[33]
by the officer having legal custody of the document. If the record is
not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the
proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign
country in which the record is kept and (b) authenticated by the seal of his office.

[34]

The divorce decree between respondent and Editha Samson appears to be an authentic one
issued by an Australian family court.
[35]
However, appearance is not sufficient; compliance with
the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was submitted
in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had
not been registered in the Local Civil Registry of Cabanatuan City.
[36]
The trial court ruled that it
was admissible, subject to petitioners qualification.
[37]
Hence, it was admitted in evidence and
accorded weight by the judge. Indeed, petitioners failure to object properly rendered the divorce
decree admissible as a written act of the Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary;
respondent was no longer bound by Philippine personal laws after he acquired Australian
citizenship in 1992.
[39]
Naturalization is the legal act of adopting an alien and clothing him with
the political and civil rights belonging to a citizen.
[40]
Naturalized citizens, freed from the
protective cloak of their former states, don the attires of their adoptive countries. By becoming
an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that
had tied him to Philippine personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon petitioner,
because she is the party challenging the validity of a foreign judgment. He contends that
petitioner was satisfied with the original of the divorce decree and was cognizant of the marital
laws of Australia, because she had lived and worked in that country for quite a long
time. Besides, the Australian divorce law is allegedly known by Philippine courts; thus, judges
may take judicial notice of foreign laws in the exercise of sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the existence of
a fact or thing necessary in the prosecution or defense of an action.
[41]
In civil cases, plaintiffs
have the burden of proving the material allegations of the complaint when those are denied by
the answer; and defendants have the burden of proving the material allegations in their answer
when they introduce new matters.
[42]
Since the divorce was a defense raised by respondent, the
burden of proving the pertinent Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign
laws.
[43]
Like any other facts, they must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by reason of their judicial function.
[44]
The
power of judicial notice must be exercised with caution, and every reasonable doubt upon the
subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent was
legally incapacitated to marry her in 1994. Hence, she concludes that their marriage was void ab
initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the legal
dissolution of a lawful union for a cause arising after marriage. But divorces are of different
types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and (2) limited
divorce or a mensa et thoro. The first kind terminates the marriage, while the second suspends it
and leaves the bond in full force.
[45]
There is no showing in the case at bar which type of divorce
was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or provisional
judgment of divorce. It is in effect the same as a separation from bed and board, although an
absolute divorce may follow after the lapse of the prescribed period during which no
reconciliation is effected.
[46]

Even after the divorce becomes absolute, the court may under some foreign statutes and
practices, still restrict remarriage. Under some other jurisdictions, remarriage may be limited by
statute; thus, the guilty party in a divorce which was granted on the ground of adultery may be
prohibited from marrying again. The court may allow a remarriage only after proof of good
behavior.
[47]

On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree becomes absolute
(unless the other party has died) commits the offence of bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by respondent may have
been restricted. It did not absolutely establish his legal capacity to remarry according to his
national law. Hence, we find no basis for the ruling of the trial court, which erroneously
assumed that the Australian divorce ipso facto restored respondents capacity to remarry despite
the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable
presumption or presumptive evidence as to his civil status based on Section 48, Rule 39
[49]
of the
Rules of Court, for the simple reason that no proof has been presented on the legal effects of the
divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the Family
Code was not submitted together with the application for a marriage license. According to her,
its absence is proof that respondent did not have legal capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the national
law of the party concerned. The certificate mentioned in Article 21 of the Family Code would
have been sufficient to establish the legal capacity of respondent, had he duly presented it in
court. A duly authenticated and admitted certificate is prima facie evidence of legal capacity to
marry on the part of the alien applicant for a marriage license.
[50]

As it is, however, there is absolutely no evidence that proves respondents legal capacity to
marry petitioner. A review of the records before this Court shows that only the following
exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit A
Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between Rederick A. Recio (Filipino-
Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan City, Nueva
Ecija;
[52]
(c) Exhibit C Certificate of Marriage Between Rederick A. Recio (Filipino) and
Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro Manila;
[53]
(d) Exhibit D
Office of the City Registrar of Cabanatuan City Certification that no information of annulment
between Rederick A. Recio and Editha D. Samson was in its records;
[54]
and (e) Exhibit E
Certificate of Australian Citizenship of Rederick A. Recio;
[55]
(2) for respondent: (a) Exhibit 1 -
- Amended Answer;
[56]
(b) Exhibit 2 Family Law Act 1975 Decree Nisi of Dissolution of
Marriage in the Family Court of Australia;
[57]
(c) Exhibit 3 Certificate of Australian
Citizenship of Rederick A. Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of Marriage in
the Family Court of Australia Certificate;
[59]
and Exhibit 5 -- Statutory Declaration of the Legal
Separation Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.
[60]

Based on the above records, we cannot conclude that respondent, who was then a
naturalized Australian citizen, was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a quo erred in finding that the divorce
decree ipso facto clothed respondent with the legal capacity to remarry without requiring him to
adduce sufficient evidence to show the Australian personal law governing his status; or at the
very least, to prove his legal capacity to contract the second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null and void
on the ground of bigamy. After all, it may turn out that under Australian law, he was really
capacitated to marry petitioner as a direct result of the divorce decree. Hence, we believe that
the most judicious course is to remand this case to the trial court to receive evidence, if any,
which show petitioners legal capacity to marry petitioner. Failing in that, then the court a
quo may declare a nullity of the parties marriage on the ground of bigamy, there being already
in evidence two existing marriage certificates, which were both obtained in the Philippines, one
in Malabon, Metro Manila dated March 1, 1987 and the other, in Cabanatuan City dated January
12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry petitioner; and failing in that, of
declaring the parties marriage void on the ground of bigamy, as above discussed. No costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.



[1]
Penned by Judge Feliciano V. Buenaventura; rollo, pp. 7-9.
[2]
Rollo, p. 10.
[3]
Ibid., p. 9.
[4]
Rollo, p. 37.
[5]
Ibid., p. 47.
[6]
Id., p. 44.
[7]
Id., p. 36.
[8]
Annex 1; temporary rollo, p. 9.
[9]
The couple secured an Australian Statutory Declaration of their legal separation and division of conjugal
assets.
See Annexes 3 and 4 of Respondents Comment; rollo, p. 48.
[10]
Id., pp. 33-35.
[11]
Id., p. 39.
[12]
Amended Answer, p. 2; rollo, p. 39.
[13]
Id., pp. 77-78.
[14]
Id., p. 43.
[15]
Rollo, pp. 48-51.
[16]
TSN, December 16, 1998, pp. 1-8; records, pp. 172-179.
[17]
RTC Order of December 16, 1998; ibid., p. 203.
[18]
The case was deemed submitted for decision on January 11, 2000, upon this Courts receipt of the Memorandum
for petitioner, signed by Atty. Olivia Velasco-Jacoba. The Memorandum for respondent, signed by Atty. Gloria V.
Gomez of Gomez and Associates, had been filed on December 10, 1999.
[19]
Petitioners Memorandum, pp. 8-9; rollo, pp. 242-243.
[20]
43 Phil. 43, 49, March 3, 1922.
[21]
Ruben F. Balane, Family Courts and Significant Jurisprudence in Family Law, Journal of the Integrated Bar of
the Philippines, 1
st
& 2
nd
Quarters, 2001, Vol. XXVII, No. 1, p. 25.
[22]
ART. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.
[23]
ART. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the
laws of the country in which they are executed.
x x x x x x x x x
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by
determinations or conventions agreed upon in a foreign country.
[24]
Tenchaves v. Escano 15 SCRA 355, 362, November 29, 1965; Barretto Gonzalez v. Gonzalez, 58 Phil. 67, 71-72,
March 7, 1933.
[25]
Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those prohibited
under Articles 35(1), (4), (5), and (6), 36, 37, and 38. (71a)
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter
validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have
capacity to remarry under Philippine law. (As amended by EO 227, prom. July 27, 1987)
[26]
Cf. Van Dorn v. Romillo Jr., 139 SCRA 139, 143-144, October 8, 1985; and Pilapil v. Ibay-Somera, 174 SCRA
653, 663, June 30, 1989.
[27]
Van Dorn v. Romillo Jr., supra.
[28]
Ibid., p. 143.
[29]
For a detailed discussion of Van Dorn, see Salonga, Private International Law, 1995 ed. pp. 295-300. See
also Jose C. Vitug, Compendium of Civil Law and Jurisprudence, 1993 ed., p. 16;
[30]
SEC. 19. Classes of documents.For the purpose of their presentation in evidence, documents are either public
or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the Philippines, or of a foreign country.
x x x x x x x x x.
[31]
Burr W. Jones, Commentaries on the Law of Evidence in Civil Cases, Vol. IV, 1926 ed., p. 3511; 3, Rule 130 of
the Rules on Evidence provides that when the subject of inquiry is the contents of a document, no evidence shall be
admissible other than the original document itself.
[32]
SEC. 19. Classes of documents. For the purpose of their presentation in evidence, documents are either
public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign authority, official bodies and
tribunals, and public officers, whether in the Philippines, or of a foreign country.
x x x x x x x x x.
[33]
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the
purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if
there be any, or if he be the clerk of a court having a seal, under the seal of such court.
[34]
Sec. 24. Proof of official record.The record of public documents referred to in paragraph (a) of Section 19,
when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the
officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the
Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice-
consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office.
See also Asiavest Ltd. v. Court of Appeals, 296 SCRA 539, 550-551, September 25, 1998; Pacific Asia Overseas
Shipping Corp. v. National Labor Relations Commission, 161 SCRA 122, 133-134, May 6, 1988.
[35]
The transcript of stenographic notes states that the original copies of the divorce decrees were presented in court
(TSN, December 16, 1998, p. 5; records, p. 176), but only photocopies of the same documents were attached to the
records (Records, Index of Exhibits, p. 1.).
[36]
TSN, December 15, 1998, p. 7; records, p. 178.
[37]
TSN, December 16, 1998, p. 7; records, p. 178.
[38]
People v. Yatco, 97 Phil. 941, 945, November 28, 1955; Marella v. Reyes, 12 Phil. 1, 3, November 10,
1908; People v. Diaz, 271 SCRA 504, 516, April 18, 1997; De la Torre v. Court of Appeals, 294 SCRA 196, 203-
204, August 14, 1998; Maunlad Savings & Loan Asso., Inc. v. Court of Appeals, GR No. 114942, November 27,
2000, pp. 8-9.
[39]
Art. 15, Civil Code.
[40]
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 ed., p. 566.
[41]
Ricardo J. Francisco, Evidence: Rules of Court in the Philippines, second edition, p. 382.
[42]
Ibid., p. 384.
[43]
Wildvalley Shipping Co., Ltd. v. Court of Appeals, GR No. 119602, October 6, 2000, p. 7.
[44]
Francisco, p. 29, citing De los Angeles v. Cabahug, 106 Phil. 839, December 29, 1959.
[45]
27A CJS, 15-17, 1.
[46]
Ibid., p. 611-613, 161.
[47]
27A CJS, 625, 162.
[48]
Rollo, p. 36.
[49]
SEC. 48. Effect of foreign judgments or final orders.The effect of a judgment or final order of a tribunal of a
foreign country, having jurisdiction to render the judgment or final order is as follows:
x x x x x x x x x
(b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence
of a right as between the parties and their successors in interest by a subsequent title.
In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to
the party, collusion, fraud, or clear mistake of law or fact.
[50]
In passing, we note that the absence of the said certificate is merely an irregularity in complying with the
formal requirement for procuring a marriage license. Under Article 4 of the Family Code, an irregularity will not
affect the validity of a marriage celebrated on the basis of a marriage license issued without that
certificate. (Vitug, Compendium, pp. 120-126; Sempio-Diy, Handbook on the Family Code of the Philippines, 1997
reprint, p. 17; Rufus Rodriguez, The Family Code of the Philippines Annotated, 1990 ed., p. 42; Melencio Sta. Maria
Jr., Persons and Family Relations Law, 1999 ed., p. 146.)
[51]
Records, pp. 1-3.
[52]
Ibid., p. 4.
[53]
Id., p. 5.
[54]
Id., p. 180.
[55]
Id., pp. 170-171.
[56]
Id., pp. 84-89.
[57]
Id., pp. 181-182.
[58]
Id., pp. 40-41.
[59]
Id., p. 183.
[60]
Id., pp. 184-187.
G.R. No. L-7234 May 21, 1955
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
PAZ M. DEL ROSARIO, defendant-appellee.
Assistant Solicitor General, Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.
A. Mendoza, E. del Rosario and G. Romero for appellee.
LABRADOR, J .:
On July 27, 1953, an information was filed in the Municipal Court of Pasay City charging Paz M. del
Rosario with slight physical injuries committed on the 28th day of May, 1953. The accused
thereupon presented a motion to quash the information on the ground that the offense charged had
already prescribed in accordance with the provisions of Articles 90 and 91 of the Revised Penal
Code. The municipal court sustained this motion and dismissed the case. Against the order of
dismissal appeal is made directly to this Court under the provisions of section 17, sub-paragraph 6 of
the Judiciary Act of 1948 as only questions of law are involved in the appeal.
The pertinent provisions of Articles 90 and 91 of the Revised Penal Code are as follows:
ART. 90. Prescription of crimes. . . . .
The offenses of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.
ART. 91. Computation of prescription of offenses. The period of prescription shall
commence to run from the day on which the crime is discovered by the offended party, the
authorities or their agents, . . . ..
The court a quo held that in accordance with Article 13 of the new Civil Code the "month" mentioned
in Article 90 of the Revised Penal Code should be one of 30 days, and since the period of
prescription commences to run from the day "on which the crime is discovered by the offended
party," i.e., in this case on May 28, 1953 when it was committed, the two months period provided for
the prescription of the offense already expired when the information was filed, because the filing was
on the 61st day. The Solicitor General in this appeal argues that in the same manner that Article 13
of the new Civil Code is applied to determine the length of the two months period required for the
prescription of the offense, its provision (of the said Article 13) contained in paragraph 3 which reads
"In computing a period, the first day shall be excluded, and the last day included" should also be
applied, so that the information should be considered as filed on the 60th day and not on the 61st
day after the offense has been committed. The resolution of the appeal involves the determination of
two legal issues, first, whether the prescriptive period should commence from the very day on which
the crime was committed, or from the day following that in which it was committed, in accordance
with the third paragraph of Article 13 of the Civil Code of the Philippines, and second, whether the
term "month" in the Revised Penal Code should be understood to be a month of 30 days, instead of
the civil calendar or calendar month.
As to the first question, we note that Article 91 of the Revised Penal Code provides that the period
shall commence to run from the day on which the offense is committed or discovered. The title
indicates that the provision merely purports to prescribe the manner of computing the period of
prescription. In the computation of a period of time within which an act is to be done, the law in this
jurisdiction has always directed the first day be excluded and the last included (See section 1, Rule
28 of the Rules of Court; section 13, Rev. Adm. Code and Art. 13, Civil Code of the Philippines). And
in the case of Surbano vs. Gloria, 51 Phil., 415, where the question involved was whether an offense
had prescribed, we held that from February 18 to March 15, 1927 only a period of 25 days elapsed,
because we excluded the first day (February 18) and included the last day (March 15). The above
method of computation was in force in this jurisdiction even before the advent of the American
regime (Article 7, Spanish Civil Code). It is logical to presume, therefore, that the Legislature in
enacting Article 91 of the Revised Penal Code meant or intended to mean that in the computation of
the period provided for therein, the first day is to be excluded and the last one to be included, in
accord with existing laws.
We find much sense in the argument of the Solicitor General that if the Civil Code of the Philippines
is to be resorted to in the interpretation of the length of the month, so should it be resorted to in the
computation of the period of prescription. Besides, Article 18 of the Civil Code (Article 16 of the old
Civil Code) expressly directs that any deficiency in any special law (such as the Revised Penal
Code) must be supplied by its provisions. As the Revised Penal Code is deficient in that it does not
explicitly define how the period is to be computed, resort must be had to its Article 13, which
contains in detail the manner of computing a period. We find, therefore, that the trial court committed
error in not excluding the first day in the computation of the period of prescription of the offense.
The other question is whether a month mentioned in Article 90 should be considered as the calendar
month and not the 30-day month. It is to be noted that no provision of the Revised Penal Code
defines the length of the month. Article 7 of the old Civil Code provided that a month shall be
understood as containing 30 days; but this concept was modified by section 13 of the Revised
Administrative Code which provides that a month means the civil or calendar month and not the
regular 30-day month (Gutierrez vs. Carpio, 53 Phil., 334). With the approval of the Civil Code of the
Philippines (R.A. No. 386), however, we have reverted to the provisions of the Spanish Civil Code in
accordance with which a month is to be considered as the regular 30-day month (Article 13). This
provision of the new Civil Code has been intended for general application in the interpretation of the
laws. As the offense charged in the information in the case at bar took place on May 28, 1953, after
the new Civil Code had come to effect, this new provision should apply, and in accordance therewith
the month in Article 90 of the Revised Penal Code should be understood to mean the regular 30
day month.
In our conclusion that the term "month" used in the Revised Penal Code should be interpreted in the
sense that the new Civil Code defines the said term, we find persuasive authority in a decision of the
Supreme Court of Spain. In a case decided by it in the year 1887 (S. de 30 de Marzo de 1887), prior
to the approval of the Civil Code of Spain, it had declared that when the law spoke of months, it
meant the natural month or the solar month, in the absence of express provisions to the contrary.
But after the promulgation of the Civil Code of Spain, which provided in its Article 7 a general rule for
the interpretation of the laws, and with particular respect to months, that a month shall be
understood as a 30-day month, said court held that the two months period for the prescription of a
light offense should be understood to mean 60 days, a month being a 30-day month. (S. de 6 de
abril de 1895, 3 Viada, p. 45). Similarly, we hold that in view of the express provisions of Article 13 of
the new Civil Code the term "month" used in Article 90 of the Revised Penal Code should be
understood to mean the 30-day month and not the solar or civil month.
We hold, therefore, that the offense charged in the information prescribed in 60 days, said period to
be counted by excluding May 28, the commission of the offense, and we find that when the
information was filed on July 27, 1953 the offense had not yet been prescribed because July 27 is
the sixtieth day from May 29.
The order of dismissal appealed from is hereby reversed and the case ordered reinstated. Without
costs.
Pablo, Acting C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion and Reyes,
J.B.L., JJ., concur.
G.R. No. L-29131 August 27, 1969
NATIONAL MARKETING CORPORATION, plaintiff-appellant,
vs.
MIGUEL D. TECSON, ET AL., defendants,
MIGUEL D. TECSON, defendant-appellee,
THE INSURANCE COMMISSIONER, petitioner.
Government Corporate Counsel Leopoldo M. Abellera and Trial Atty. Antonio M. Brillantes for
plaintiff-appellant.
Antonio T. Lacdan for defendant-appellee.
Office of the Solicitor General for petitioner.
CONCEPCION, C.J .:
This appeal has been certified to us by the Court of Appeals only one question of law being
involved therein.
On November 14, 1955, the Court of First Instance of Manila rendered judgment, in Civil Case
No. 20520 thereof, entitled "Price Stabilization Corporation vs. Miguel D. Tecson and Alto Surety and
Insurance Co., Inc.," the dispositive part of which reads as follows:
For the foregoing consideration, the Court decides this case:
(a) Ordering the defendants Miguel D. Tecson and Alto Surety Insurance Co., Inc. to
pay jointly and severally plaintiff PRATRA the sum of P7,200.00 plus 7% interest from May
25, 1960 until the amount is fully paid, plus P500.00 for attorney's fees, and plus costs;
(b) ordering defendant Miguel D. Tecson to indemnify his co-defendant Alto Surety &
Insurance Co., Inc. on the cross-claim for all the amounts it would be made to pay in this
decision, in case defendant Alto Surety & Insurance Co., Inc. pay the amount adjudged to
plaintiff in this decision. From the date of such payment defendant Miguel D. Tecson would
pay the Alto Surety & Insurance Co., Inc., interest at 12% per annum until Miguel D. Tecson
has fully reimbursed plaintiff of the said amount.
Copy of this decision was, on November 21, 1955, served upon the defendants in said case.
On December 21, 1965, the National Marketing Corporation, as successor to all the properties,
assets, rights, and choses in action of the Price Stabilization Corporation, as plaintiff in that case and
judgment creditor therein, filed, with the same court, a complaint, docketed as Civil Case No. 63701
thereof, against the same defendants, for the revival of the judgment rendered in said Case No.
20520. Defendant Miguel D. Tecson moved to dismiss said complaint, upon the ground of lack of
jurisdiction over the subject matter thereof and prescription of action. Acting upon the motion and
plaintiff's opposition thereto, said Court issued, on February 14, 1966, an order reading:
Defendant Miguel Tecson seeks the dismissal of the complaint on the ground of lack
of jurisdiction and prescription. As for lack of jurisdiction, as the amount involved is less than
P10,000 as actually these proceedings are a revival of a decision issued by this same court,
the matter of jurisdiction must be admitted. But as for prescription. Plaintiffs admit the
decision of this Court became final on December 21, 1955. This case was filed exactly on
December 21, 1965 but more than ten years have passed a year is a period of 365 days
(Art. 13, CCP). Plaintiff forgot that 1960, 1964 were both leap years so that when this present
case was filed it was filed two days too late.
The complaint insofar as Miguel Tecson is concerned is, therefore, dismissed as
having prescribed.1wph 1. t
The National Marketing Corporation appealed from such order to the Court of Appeals, which,
on March 20, 1969t certified the case to this Court, upon the ground that the only question therein
raised is one of law, namely, whether or not the present action for the revival of a judgment is barred
by the statute of limitations.
Pursuant to Art. 1144(3) of our Civil Code, an action upon a judgment "must be brought within
ten years from the time the right of action accrues," which, in the language of Art. 1152 of the same
Code, "commences from the time the judgment sought to be revived has become final." This, in turn,
took place on December 21, 1955, or thirty (30) days from notice of the judgment which was
received by the defendants herein on November 21, 1955 no appeal having been taken
therefrom.
1
The issue is thus confined to the date on which ten (10) years from December 21, 1955
expired.
Plaintiff-appellant alleges that it was December 21, 1965, but appellee Tecson maintains
otherwise, because "when the laws speak of years ... it shall be understood that years are of three
hundred sixty-five days each" according to Art. 13 of our Civil Code and, 1960 and 1964 being
leap years, the month of February in both had 29 days, so that ten (10) years of 365 days each, or
an aggregate of 3,650 days, from December 21, 1955, expired on December 19, 1965. The lower
court accepted this view in its appealed order of dismissal.
Plaintiff-appellant insists that the same "is erroneous, because a year means a calendar
year (Statutory Construction, Interpretation of Laws, by Crawford, p. 383) and since what is being
computed here is the number of years, a calendar year should be used as the basis of computation.
There is no question that when it is not a leap year, December 21 to December 21 of the following
year is one year. If the extra day in a leap year is not a day of the year, because it is the 366th day,
then to what year does it belong? Certainly, it must belong to the year where it falls and, therefore,
that the 366 days constitute one year."
2

The very conclusion thus reached by appellant shows that its theory contravenes the explicit
provision of Art. 13 of the Civil Code of the Philippines, limiting the connotation of each "year" as
the term is used in our laws to 365 days. Indeed, prior to the approval of the Civil Code of Spain,
the Supreme Court thereof had held, on March 30, 1887, that, when the law spoke of months, it
meant a "natural" month or "solar" month, in the absence of express provision to the contrary. Such
provision was incorporated into the Civil Code of Spain, subsequently promulgated. Hence, the
same Supreme Court declared
3
that, pursuant to Art. 7 of said Code, "whenever months ... are
referred to in the law, it shall be understood that the months are of 30 days," not the "natural," or
"solar" or "calendar" months, unless they are "designated by name," in which case "they shall be
computed by the actual number of days they have. This concept was later, modified in the
Philippines, by Section 13 of the Revised Administrative Code, Pursuant to which, "month shall be
understood to refer to a calendar month."
4
In the language of this Court, in People vs. Del
Rosario,
5
with the approval of the Civil Code of the Philippines (Republic Act 386) ... we
have reverted to the provisions of the Spanish Civil Code in accordance with which a month is to be
considered as the regular 30-day month ... and not the solar or civil month," with the particularity
that, whereas the Spanish Code merely mentioned "months, days or nights," ours has added thereto
the term "years" and explicitly ordains that "it shall be understood that years are of three hundred
sixty-five days."
Although some members of the Court are inclined to think that this legislation is not realistic,
for failure to conform with ordinary experience or practice, the theory of plaintiff-appellant herein
cannot be upheld without ignoring, if not nullifying, Art. 13 of our Civil Code, and reviving Section 13
of the Revised Administrative Code, thereby engaging in judicial legislation, and, in effect, repealing
an act of Congress. If public interest demands a reversion to the policy embodied in the Revised
Administrative Code, this may be done through legislative process, not by judicial decree.
WHEREFORE, the order appealed from should be as it is hereby affirmed, without costs. It is
so ordered.
Dizon, Makalintal, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur.
Reyes, J.B.L., and Zaldivar, JJ., are on leave.
Footnotes
1
Sec. 1, Rule 39, in relation to Sec. 3, Rule 31, Rules of Court.
2
Emphasis ours.
3
Decision of April 6, 1895.
4
Guzman v. Lichauco, 42 Phil. 292; Gutierrez v. Carpio, 53 Phil. 334, 335-336.
5
97 Phil. 70-71.